Case 1:17-cv-05228 Document 1 Filed 09/06/17 Page 1 of 58 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,

CIVIL ACTION NO. 17-cv-5228
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

v.

DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,

Defendants.
INTRODUCTION 1. The States of New York, Massachusetts, Washington, Connecticut, Delaware,

District Of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania,

Rhode Island, Vermont, and Virginia (the “States”) bring this action to protect the States—

including their residents, employers, regulatory systems, and educational institutions—against the

illegal actions of the President and the federal government. On September 5, 2017, the U.S.

Department of Homeland Security (“DHS”) issued a Memorandum (the “DHS Memorandum”)

ending Deferred Action for Childhood Arrivals (“DACA”), a program that has protected from

deportation approximately 800,000 young people who grew up in this country, most of whom have

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known no home other than the United States. Pursuant to the DHS Memorandum, the federal government will only issue renewals for grantees whose terms expire before March 5, 2018, provided they apply for renewal by October 5, 2018. DHS will immediately cease accepting new applications under DACA.
2. Since 2012, DACA has allowed hundreds of thousands of young people to live, study, and work in the United States, and to become stable and even more productive members of their communities, without fear that they could be arrested and placed in deportation proceedings at any moment. Throughout the country, DACA grantees are employed by various companies and State and municipal agencies, which benefit from their skills and productivity. DACA grantees also contribute significantly to State and local revenues and tax bases. DACA recipients will also lose their eligibility for public and employer-based health insurance programs that reduce the States’ health expenditures and promote public health. They also will lose their right to enroll in higher education institutions with in-state admissions preferences and tuition; thus, public universities will be deprived of a means by which they enrich the experience of all students and faculty through diversity and new perspectives.
3. More than 78 percent of DACA grantees are of Mexican origin, See Ex. 1 (USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017, June 8, 2017), which is more than double the percentage of people of Mexican origin that comprise of the overall foreign-born population (29 percent) of the United States. See Ex. 2 (U.S. Census Bureau, The Foreign-Born Population in the United States).
4. Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments—whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage people with
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Mexican roots. The consequence of the President’s animus-driven decision is that approximately

800,000 persons who have availed themselves of the program will ultimately lose its protections,

and will be exposed to removal when their authorizations expire and they cannot seek renewal.

The individuals who have relied on DACA are now more vulnerable to removal than before the

program was initiated, as they turned over sensitive information to the federal government in their

applications. Despite the federal government’s repeated promises that it would not use such

information to conduct enforcement measures, the DHS Memorandum does not explain how the

government will keep that information secure, nor does it provide any assurances that immigration

enforcement agents will not use such information to find and remove those who applied for DACA.

5. Rescinding DACA will cause harm to hundreds of thousands of the States’

residents, injure State-run colleges and universities, upset the States’ workplaces, damage the

States’ economies, hurt State-based companies, and disrupt the States’ statutory and regulatory

interests. The States respectfully request that this Court invalidate the portions of the DHS

Memorandum challenged here. Further, the States ask that the Court enjoin the federal government

from using data gathered for the DACA program in immigration enforcement.

JURISDICTION AND VENUE

6. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a).

7. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1).

Defendants are United States agencies or officers sued in their official capacities. The State of

New York is a resident of this judicial district, and a substantial part of the events or omissions

giving rise to this Complaint occurred within the Eastern District of New York.

8. The States bring this action to redress harms to their proprietary interests and their

interests as parens patriae.

PARTIES

PLAINTIFF STATE OF NEW YORK

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9. The State of New York, represented by and through its Attorney General, Eric T. Schneiderman, is a sovereign state of the United States of America.
10. The Governor is the chief executive officer of the State of New York. The Governor is responsible for overseeing the operations of the State of New York and ensuring that its laws are faithfully executed.
11. New York is aggrieved by Defendants’ actions and has standing to bring this action because of the injuries caused by Defendants’ rescission of DACA, including irreparable injuries to its proprietary, sovereign, and quasi-sovereign interests.
12. The Attorney General is empowered to advance New York’s strong and important public policy against unlawful discrimination. New York’s Constitution guarantees all persons the right to equal treatment under the law and forbids discrimination based on race, color, creed or religion. N.Y. Const. art. I, § 11. And New York’s statutes reiterate the State’s strong interest in combatting discrimination and prejudice. N.Y. Exec. Law § 290.
13. According to the latest American Community Survey, New York is home to more than 4.4 million foreign-born residents, including an estimated 76,000 or more DACA-eligible residents. See Ex. 3 ¶ 7(c) (Decl. Essig, Wiehe and Hill). According to the United States Citizen and Immigration Services (“USCIS”), 41,970 initial DACA applications and 53,693 renewal applications from New York have been approved through the first quarter of 2017. New York was the third largest source of DACA applications and approvals in the United States.
14. New York State has an interest in protecting the economic health and welfare of its residents. More than 91% of DACA grantees are employed. See Ex. 5 ¶ 11 (Decl. Wong). They work for some of the largest companies in New York and for small and family-owned business that have a significant impact on local economies in New York. Ex. 5 ¶¶ 21, 36(b) (Decl. Wong). And they provide vital services to New Yorkers in important fields such as healthcare, education, law, and social services. See Ex. 6 ¶ 13 (Decl. C.A.); Ex. 11 ¶ 8 (Decl. TFA); Ex 52 MOIA ¶ 8 (Decl. MOIA).
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15. Rescinding DACA will result in disruptions in each of these fields, as companies and non-profits will be forced to terminate qualified and trained employees who have lost employment authorization. One expert estimates that rescinding the DACA program will cost New York State $38.6 billion dollars over the next ten years. See Ex. 4, Table 1 (Decl. Brannon).
16. New York State also has a proprietary interest in maintaining a qualified workforce. Both New York State and municipalities across New York have hired DACA grantees to work in government agencies and institutions because of their specialized skills and qualifications. See Ex. 52 ¶ 8 (Decl. MOIA); Ex. 11 ¶ 8 (Decl. TFA). These agencies and institutions have invested significant amounts of time and money to hire and train these DACA grantees. Accordingly, the agencies and institutions will be adversely affected by DACA’s termination as they will lose the value of their investments as well as the services of qualified and trained employees. See Ex. 52 ¶ 8 (Decl. MOIA); Ex. 11 ¶ 8 (Decl. TFA).
17. Rescinding the DACA program will decrease New York State’s tax revenues. Through work authorization, DACA grantees more effectively avoid underemployment than their undocumented peers and are able obtain higher wages. See Ex. 3 ¶ 4(b) (Decl. Essig, Wiehe and Hill). Higher incomes result in higher tax revenues in New York State. In addition, DACA grantees have increased purchasing power, and report buying cars and homes at significant rates. See Ex. 5 ¶ 16 (Decl. Wong). These types of expensive purchases contribute to New York State’s tax revenues in the form of sales and property taxes. According to the Institute on Taxation and Economic Policy (“ITEP”), DACA-eligible individuals in New York currently contribute $140 million annually in state and local taxes. However, the loss in employment that would result from rescinding DACA would decrease contributions from this population by between $55 million and $84 million annually. See Ex. 3 ¶ 7(c) (Decl. Essig, Wiehe and Hill).
18. The DACA program has encouraged thousands of grantees to pursue higher education they would not otherwise have sought. See Ex. 5 ¶¶ 18-21 (Decl. Wong). Rescinding DACA will adversely impact current DACA grantees enrolled in colleges and universities who will be unable to plan for the future, apply for and obtain internships, study abroad, simultaneously
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work to pay costs and fees, and obtain certain financial aid and scholarships. See Ex. 12 ¶¶ 7-8 (Decl. Milliken). Students subject to these conditions may choose to withdraw from their college or university.
19. New York State’s public colleges and universities also will be harmed if DACA is rescinded. Both the State University of New York (“SUNY”) and the City University of New York (“CUNY”) have encouraged DACA grantees to apply as part of their strong commitment to diversity, equity, and inclusion. See Ex. 12 ¶ 10 (Decl. Milliken, CUNY Chancellor), and Ex. 99 (Decl. Johnson, SUNY Chancellor). At CUNY, hundreds of DACA grantees have enrolled in the university, many with the benefit of full scholarships.
20. Rescinding DACA will cause many high-achieving students to drop out. As a result, New York’s public universities will lose the diversity and enrichment this population brings to the school community. Moreover, the public universities will lose the resources they have spent on educating students who ultimately do not graduate. See Ex. 12 ¶ 8 (Decl. Milliken).
21. New York State has an interest in protecting the health of its residents. Rescinding DACA will harm that interest by increasing the number of uninsured adults in New York and forcing many to avoid medical care unless and until an emergency arises. With the benefit of work authorization, more than 50% of DACA grantees obtain employer-provided health insurance. See Ex. 5 ¶ 12 (Decl. Wong). Without DACA, these individuals will be unable to obtain health insurance from employers.
22. In addition, rescinding DACA may prevent access to Medicaid for current DACA grantees. New York State currently funds Medicaid coverage for low-income undocumented immigrants who have received deferred action, including DACA-eligible immigrants. See Ex. 77 (Office of Health Insurance Program, Children’s Health Insurance Program Reauthorization Act (CHIPRA); Expanded Coverage for Certain Qualified and PRUCOL Aliens, May 7, 2013). In contrast, undocumented immigrants without deferred action in New York only have access to limited emergency Medicaid funds. Rescinding DACA will require New York to either alter its
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regulatory scheme to fund Medicaid for formerly DACA-eligible immigrants or allow this population to go uninsured and rely on state healthcare funding only in the event of emergencies.
23. New York State’s quasi-sovereign interest in protecting the welfare of its residents includes its interest in protecting family rights. Most DACA grantees live in households with American citizen family members. One expert survey estimates that 73% of DACA grantees live with a citizen sibling, spouse or child. See Ex. 5 ¶ 23 (Decl. Wong).
24. Rescinding deferred action will lead to increased uncertainty in these mixed-status families, and it will increase the likelihood of splitting DACA grantees from their citizen family members. Moreover, rescission of work authorization of DACA grantees will threaten the financial and housing security of some of these families, especially where the DACA grantee provides financial help to his or her family. See Ex. 5 ¶ 16 (Decl. Wong). New York’s interest in protecting the rights of families would clearly be harmed by any decision to rescind deferred action or employment authorization for DACA grantees in New York, thereby subjecting their families to potential separation, financial instability, and housing insecurity.
25. Many DACA grantees also have families overseas, including parents and siblings. DACA permitted grantees to visit family members for the first time in years, through advance parole.
26. Rescinding DACA would prevent current grantees in New York from visiting their families abroad.
PLAINTIFF COMMONWEALTH OF MASSACHUSETTS 27. The Commonwealth of Massachusetts, represented by and through its Attorney General, is a sovereign state of the United States of America. Massachusetts is aggrieved and has standing to bring this action because of the injuries to the state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests.
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28. Massachusetts is home to more than one million immigrants, including an estimated 19,000 or more DACA-eligible residents.[1] See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).
29. Massachusetts also is home to many of the world’s leading universities and businesses. These institutions rely heavily on immigrants, who bring tremendous talent, knowledge, and expertise to academic communities and to the labor force. Many of these immigrants are DACA grantees.
30. As of March 31, 2017, USCIS had approved 7,934 initial DACA applications and 10,854 renewals for residents of Massachusetts. See Ex. 1 (USCIS Data); Ex. 5 ¶ 31 (Decl. Wong). The DACA program has allowed these individuals, many of whom are long-term residents of Massachusetts, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits.
31. An estimated 7,252 Massachusetts DACA grantees are employed. See Ex. 5 ¶ 32 (Decl. Wong). An estimated 428 are business owners. Id. An estimated 3,562 are in school, and 2,547 are currently pursuing a bachelor’s degree or higher. Id., ¶ 33.
32. Rescinding DACA will harm the ability of Massachusetts colleges and universities, including public universities, to satisfy their educational missions and prepare Massachusetts residents for the workforce. See Ex. 61 ¶¶ 5-7 (Decl. UMass).
33. The nation’s leading private universities—many of which are located in Massachusetts will suffer similar harms if DACA is rescinded. Harvard University, for example, has more than 50 DACA students currently enrolled. See Ex. 96 ¶ 6 (Decl. Masden, Harvard University). Tufts University has more than 25 DACA students. See Ex. 97 ¶ 8 (Decl. Jeka, Tufts University.) These students often have had to overcome significant challenges in order to gain acceptance and bring critical perspectives, insights, and experiences to their universities. See Ex.
[1] See Migration Policy Institute, Deferred Action for Childhood Arrivals (DACA) Data Tools, available at http://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles#overlaycontext=events.
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97 ¶ 5 (Tufts Decl.); Ex. 96 ¶ 5 (Harvard Decl.). They make important and lasting contributions, including through their classroom participation, their extracurricular engagements, and their commitment to independent study and research. See Ex. 97 (Tufts Decl.), ¶ 5; Ex. 96 ¶¶ 7, 12 (Harvard Decl.). Employment authorization gives these students and their universities an assurance that they may put their talents to use in the United States job market after graduation— something that benefits Massachusetts and the nation as a whole. See Ex. 96 (Harvard Decl.), ¶ 12. DACA has allowed these students to step outside the shadow of their immigration status and to participate fully as members of academic and campus communities in ways that likely would not be possible otherwise. See Ex. 97 (Tufts Decl.), ¶ 7; Ex. 96 (Harvard Decl.), ¶ 12. Rescinding DACA will take important opportunities away from DACA students and reintroduce fear and uncertainty into their lives, with significant adverse effects on these students, their universities, and the broader community. See Ex. 97 (Tufts Decl.); Ex. 96 ¶ 13 (Harvard Decl.).
34. DACA grantees who are Massachusetts residents receive in-state tuition at public universities in the Commonwealth, and are eligible for a variety of scholarships. See Ex. 7 (Mass. Dept. of Higher Education Memorandum, Residency Status for Tuition Classification Purposes – Deferred Action for Childhood Arrivals, Nov. 21, 2012); Ex. 61 ¶ 5 (Decl. UMass). Without the DACA program, talented young immigrants will be less likely to apply to and attend state schools because they will not be able to afford tuition given the lack of available financial assistance and the likelihood that they will not be able to work legally upon graduation. Those who already are attending state schools may be forced to drop out. See, e.g., ¶ 5 Ex. 61 (University of Massachusetts Decl.); Ex. 72 ¶ 5 (Decl. Teodoro); Ex. 69 ¶¶ 8, 10 (Decl. Mendes); Ex. 60 ¶¶ 6, 9 (Decl. Guevara Decl.).
35. DACA students in graduate programs at public universities in the Commonwealth, in particular, will be significantly affected because the loss of employment authorization needed for graduate assistantship (research or teaching) will likely mean the loss of tuition waivers and other benefits such as subsidized health, dental, and vision insurance for the students and their families. Ex. 61 ¶ 5 (UMass Decl.).
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36. In addition, DACA students in both undergraduate or graduate programs, including research and teaching programs, that require students to have employment authorization to complete elements of the program—such as paid internships, residency training, and graduate assistantships—will be severely impacted if DACA is rescinded. Ex. 61 ¶ 6 (UMass Decl.).
37. Losing these talented young immigrants will deprive Massachusetts state schools of the special contributions and perspectives they bring to campus communities, both as students and alumni. Ex. 61 ¶ 7 (UMass Decl.). If current DACA students are forced to drop out, the University of Massachusetts also will lose the value of the financial assistance it has granted to and the other resources it has spent educating students who ultimately do not graduate. Id. Rescinding DACA also will impose additional tangible costs on our state schools, which already have begun to experience disruption as a result of uncertainty over the future of the program and are preparing for the likelihood of increased institutional funds needed to help DACA students meet the loss of employment. Ex. 61 ¶¶ 8-9 (UMass Decl.).
38. Rescinding DACA will further deprive Massachusetts of the earning potential of graduates from public universities who are most likely to stay here and join the state’s workforce. Nine out of ten Massachusetts public higher education graduates remain in the state, working or pursuing further education. See Ex. 93 (Mass. Dept. of Higher Education, Time to Lead, The Need for Excellence in Public Higher Education, Sept. 2012).
39. Rescinding DACA will cause Massachusetts to lose qualified state employees. A number of DACA grantees work in government or at state-run institutions. See, e.g., Ex. 70 ¶ 6 (Decl. I.V.); Ex. 61 ¶ 10 (University of Massachusetts Decl.). Massachusetts has expended time and resources to hire, train, and manage DACA grantees. If these individuals become ineligible to work, Massachusetts will lose the value of its investment and the services of employees who perform important functions for the state.
40. Rescinding DACA will jeopardize the state’s licensing scheme for drivers. Under DACA, thousands of young Massachusetts residents are able to receive social security cards and thereby have access to driver’s licenses, which they depend on to attend heath care appointments,
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to commute to work and school, and to attend to other necessities for themselves and their family members. Ex. 9 (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements); See, e.g., Ex. 71 ¶¶ 5-7, 9 (Decl. I.T.); Ex. 69 ¶¶ 7-8 (Decl. Mendes); Ex. 70 ¶¶ 5, 8 (Decl. I.V.). Rescinding DACA will make it impossible for these individuals to apply for new licenses or renew the licenses they have, leading to a number of potential outcomes, including a decrease in productivity of these residents and an increase in unlicensed drivers on the road.
41. Rescinding DACA will harm public health and impose additional health care costs on the state. Work authorization allows DACA recipients to access employer-sponsored health benefits. See, e.g., Ex. 72 ¶ 4 (Decl. Teodoro); Ex. 69 ¶¶ 6, 10 (Mendes Decl.). Without these benefits, more Massachusetts residents are likely to forgo needed health care, including preventive care, which will create more costly health problems in the long run. It also will cause more people to rely on state-funded and/or state-administered public health care and other benefits, and thus impose additional costs on the state. Through its MassHealth Limited and Children’s Medical Security Plan programs, Massachusetts offers health care benefits to residents whose immigration status otherwise keeps them from accessing health care benefits and services. In addition, Massachusetts’ state-administered Health Safety Net program reimburses hospitals for emergency and urgent services provided to uninsured patients and pays community health centers for certain preventive services, all irrespective of immigration status.
42. Rescinding DACA will harm the general welfare of Massachusetts DACA grantees and their families. Most DACA grantees live in households with family members who are American citizens. One expert survey estimates that 73% of DACA grantees in Massachusetts live with a citizen sibling, spouse, or child. See Ex. 5 (Wong Decl.), ¶ 34. Many of these families rely on the income of DACA grantees. See, e.g., Ex. 69 ¶¶ 6, 10 (Decl. Mendes); Ex. 60 ¶ 5 (Decl. Guevara). Many DACA grantees also have families overseas, including parents and siblings. DACA had made it possible for these grantees to visit family members, often for the first time in years. See, e.g., Ex. 72 ¶ 7 (Decl. Teodoro); Ex. 70 ¶ 5 (Decl. I.V.). Rescinding DACA will harm all of these families in profound ways.
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43. Rescinding DACA also will hurt the Massachusetts economy. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the state. According to one estimate, DACA-eligible residents contribute approximately $24 million annually in state and local taxes in Massachusetts—a contribution that may drop by $9 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that ending DACA would, over a ten-year period, cost the Massachusetts economy $258 million in lost tax revenue and $924.5 million overall. Brannon Decl., Table 1.
PLAINTIFF STATE OF WASHINGTON 44. Washington is aggrieved by Defendants’ actions and has standing to bring this action because of the injury to its sovereignty as a state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 45. The Governor is the chief executive officer of the State of Washington. The Governor is responsible for overseeing the operations of the State of Washington and ensuring that its laws are faithfully executed. 46. The Attorney General is the chief legal adviser to the State of Washington. The Attorney General’s powers and duties include acting in federal court on matters of public concern. 47. Washington has declared that practices that discriminate against any of its inhabitants because of race, color, or national origin are matters of public concern that threaten the rights and proper privileges of the State and harm the public welfare, health, and peace of the people. See Wash. Rev. Code 49.60.010. 48. Washington’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest.
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49. Washington also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
50. Washington’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Washington’s residents, including individuals who suffer indirect injuries and members of the general public.
51. As of March 2017, Washington is home to more than 17,800 DACA recipients. See Ex. 1 (USCIS Data). Participating in the DACA program has allowed these individuals, many of whom are long-term residents of Washington, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits.
52. Immigration is an important economic driver in Washington. Many Washington workers are immigrants, and many of those immigrant workers are DACA recipients. See Ex. 5 ¶¶ 12, 13 (Decl. Wong) Many companies in Washington are dependent on DACA grantees to operate and grow their businesses. DACA recipients work for our State’s largest companies as software engineers, finance professionals, and retail and sales associates, including for Amazon, Microsoft and Starbucks Ex. 63 ¶¶ 4-5 (Decl. Blackwell-Hawkins, Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex. 8 ¶¶ 7-8 (Decl. Mutty, Starbucks).
53. The market for highly skilled workers and employees is extremely competitive. Id. Rescinding the work authorization of DACA recipients will inhibit Washington companies’ ability to adequately staff their organizations, develop their workforces, and recruit talent. If recruiting efforts are less successful, these companies’ abilities to develop and deliver successful products and services may be adversely affected. Id.
54. Rescinding DACA will likewise cause Washington to lose qualified state employees. See e.g., Ex. 56 ¶¶ 2-4 (Decl. Quinonez). Many DACA recipients work in government or at state-run institutions. See Ex. 62 ¶ 3 (Decl. Monroe, Dept. of Ecology); Ex. 65 ¶ 3 (Decl. Kaplan, Dept. of Social and Health Svcs.); Ex. 92 ¶ 3 (Decl. Jones, Treasury); Ex. 91 ¶ 3 (Decl.
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Garza, Big Bend Community College); Ex. 64 ¶ 3 (Decl. Glatt, Columbia Basin College); Ex. 58 ¶ 4 (Decl. Loera, Washington State University). These employees were hired because of their specialized skills and qualifications.
55. Washington expended time and funds to hire, train, and manage DACA recipients. If these individuals become ineligible to work, Washington will lose the value of its investment and the services of employees who perform important functions for the state.
56. Rescinding DACA will harm the ability of Washington universities, including public universities, to satisfy their educational missions and prepare Washington residents for the workforce. According to the Washington Student Achievement Council, the state agency that advances educational opportunities in the state, there are more than 1,400 DACA students in Washington attending institutions of higher education. See Ex. 59 ¶ 9 (Decl. Thompson, WSAC).
57. The University of Washington and Washington State University are the two largest public universities in the State. More than one hundred DACA grantees attend the University of Washington, based in Seattle. See Ex. 57 ¶ 4 (Decl. Ballinger, University of Washington). More than 150 DACA grantees attend Washington State University, based in Pullman. See Ex. 58 ¶ 4 ( Decl. Loera, Washington State University).
58. The DHS Memorandum will likely cause some DACA recipients to leave Washington colleges and universities. The cost of a college education may make little sense for students unable to work following graduation. See, Ex. 56 ¶ 7 (Decl. Quinonez). Future DACA students may be prevented from enrolling. These harms damage the educational mission of Washington’s institutions of higher education and affect their tuition revenues. See Ex. 57 ¶¶ 4-6 (Decl. Ballinger, University of Washington); Ex. 58 ¶¶ 4-8 (Decl. Loera, Washington State University).
59. Rescinding DACA also will hurt the Washington economy. Stripping DACA recipients of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the state. According to one estimate, DACA-eligible residents contribute approximately $51 million annually in state and local taxes in Washington. See Ex. 3 ¶
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7(d) (Decl. Essig, Wiehe and Hill); Ex. 55 ¶¶ 5-7 (Decl. Perez ). Another estimate suggests that ending DACA would, over a ten-year period, cost the Washington economy $258 million in lost tax revenue and $6.4 billion in GDP growth. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients average higher earning capacities than their undocumented peers and are able to better participate in our economy, for example by purchasing homes and cars that are taxed by our state and local authorities. See Ex. 5 ¶¶ 10-13 (Decl. Wong).
60. In sum, the DHS Memorandum’s rescission of DACA affects Washington’s economy, residents, families, educational institutions, state agencies, and businesses.
PLAINTIFF STATE OF CONNECTICUT 61. Connecticut is aggrieved by Defendants’ actions and has standing to bring this action because of the injury to its sovereignty as a state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. Attorney General George Jepsen brings this action on behalf of Connecticut at the request of Governor Dannel P. Malloy to protect the interests of Connecticut and its residents. 62. Connecticut has an interest, as evidenced by its Constitution and state law, in prohibiting discrimination on the basis of race, color, or national origin. See Conn. Const. art. First, § 20; Conn. Gen. Stat. § 46a-58. 63. Connecticut's interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest. 64. Connecticut also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
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65. Connecticut's interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Connecticut’s residents, including individuals who suffer indirect injuries and members of the general public.
66. As of March 31, 2017, USCIS had approved 4,929 initial DACA applications and 5,882 renewals for residents of Connecticut, for a total of 10,811. See Ex. 1 (USCIS Data). The DACA program has allowed these individuals, many of whom are long-term residents of Connecticut, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits.
67. Connecticut provides in-state tuition to DACA recipients at its public universities and colleges. Conn. Gen. Stat. § 10a-29. The Defendants' actions will likely cause some DACA recipients to leave Connecticut colleges and universities. These harms damage the educational mission of Connecticut’s institutions of higher education and affect their tuition revenues.
68. Rescinding DACA also will hurt the Connecticut economy. Stripping DACA recipients of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the state.
69. In sum, Defendants' actions affect Connecticut’s economy, residents, families, educational institutions, state agencies, and businesses.
PLAINTIFF STATE OF DELAWARE 70. The State of Delaware has a strong interest in retaining the DACA program. USCIS has approved approximately 1,450 initial applications from DACA grantees since 2012. See Ex. 1 (USCIS Data). One expert estimates that of that total, at least 1,256 DACA grantees currently work in Delaware’s economy. See Ex. 53 (Nicole Prchal Svajlenka, A New Threat to DACA Could Cost States Billions of Dollars, Center for American Progress, July 21, 2017) 71. Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. If DACA is terminated, these grantees will lose their work authorization. The resulting loss in employment will cause significant loses
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in tax revenue and Gross Domestic Product (“GDP”). Over ten years, Delaware can expect to lose $258 million in tax revenues, and $924.5 million in GDP with the loss of DACA. See Ex. 4 Table 1 (Brannon Decl.).
72. Moreover, rescinding DACA would adversely impact Delaware’s public universities. Currently, about 75 DACA grantees attend Delaware State University (“DSU”). See Ex. 81 (Scott Gross, DSU immigrant students fear Trump’s DACA decision, Delawareonline, Sept. 2 2017). These high achieving students contribute to the university’s mission to advance diversity and inclusion. These students would be less likely to continue pursuing their education at DSU if there is no viable employment option available to them upon graduation.
PLAINTIFF COMMONWEALTH OF DISTRICT OF COLUMBIA 73. The District of Columbia is a municipal corporation empowered to sue and be sued, and is the local government for the territory constituting the permanent seat of the federal government. The District is represented by and through its chief legal officer, the Attorney General for the District of Columbia. The Attorney General has general charge and conduct of all legal business of the District and all suits initiated by and against the District and is responsible for upholding the public interest. DC Code § 1-301.81(a)(1). 74. The District has declared its intent to end discrimination based on race, color, religion, or national origin. DC Code § 2-1401.01. 75. The District’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest. 76. The District also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law. 77. The District has a compelling interest in that the Constitution and federal law of the U.S. are enforced and protect their residents as designed. In addition, the District has an interest in protecting its economy and residents.
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78. Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests.
79. The District’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of the District’s residents, including individuals who suffer indirect injuries and members of the general public.
80. The District has an interest in protecting its residents’ family rights. Most DACA recipients live in households with American citizen family members.
81. The rescission of DACA will lead to increased uncertainty in these families, and will increase the likelihood of splitting DACA recipients from their citizen family members. Moreover, the rescission of DACA will make employment of DACA recipients more difficult and will threaten the financial and housing security of some of these families, especially where the DACA recipient is head of household. The District’s interest in protecting the rights of families is clearly harmed by the rescission of DACA, and subjects DACA families to potential separation, financial instability, and housing insecurity.
82. Many DACA recipients also have families overseas, including parents and siblings. DACA permitted these recipients to visit these family members through advance parole. The rescission of DACA will prevent recipients from taking the risk of visiting their families abroad.
83. Immigrants are an important part of the District’s economy. Many of the District’s workers and students are immigrants and many of those immigrants are DACA recipients.
84. Many DACA recipients attend the colleges and universities in the District as postsecondary and graduate students. The rescission of DACA will have an adverse effect on both the students and the colleges and universities. The rescission of DACA will likely cause some DACA recipients to leave District colleges and universities. Future DACA students will likely be prevented from enrolling. These harms damage the educational mission of the District’s institutions of higher education and affect their revenues.
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85. DACA recipients also work for the District government and District businesses. The District government and businesses have expended time and funds to hire, train, and manage DACA grantees, and will lose the value of that investment—and in the employees’ ongoing labor—if employees are not able to continue to work and travel due to DACA’s rescission.
86. DACA recipients contribute to the District’s tax base by, for example, purchasing homes and cars that are taxed by the District. The District will lose tax revenue as a result of the rescission of DACA.
87. The rescission of DACA affects District residents, families and businesses, as well as harms the District’s proprietary interests.
PLAINTIFF STATE OF HAWAII 88. The State of Hawaii represented by and through its Attorney General, is a sovereign state of the United States of America. Hawaii is aggrieved and has standing to bring this action because of the injury to its sovereignty as a state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 89. Hawaii is a state of 1.4 million residents, almost 18% of whom are foreign born. See Ex. 2. 90. Almost 600 young people in Hawaii have passed background checks and live and work legally in Hawaii as a direct result of DACA. See Ex. 1 (USCIS Data). 91. Hawaii is home to many places of higher education and businesses, which rely heavily on immigrants, who bring tremendous talent, knowledge, and expertise to academic communities and to the labor force. Many of these immigrants are DACA grantees. 92. By the latest available numbers, USCIS had approved 558 initial DACA applications and 1,740 renewals for residents of Hawaii. Obtaining DACA status has allowed these individuals, many of whom are long-term residents of Hawaii, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits.
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93. Rescinding DACA will harm the ability of Hawaii colleges and universities, including public universities, to satisfy their educational missions and prepare Hawaii residents for the workforce. There are currently 13 DACA students enrolled for classes in fall 2017 at the University of Hawaii’s ten campuses. See Ex. 73 (University of Hawai’i, UH and State Leaders Respond to DACA Program Termination, Sept. 5, 2017).
94. DACA grantees who are Hawaii residents are eligible for certain benefits at the University of Hawaii. According to David Lassner, President of the University of Hawaii, “[o]ver four years ago the University of Hawaii Board of Regents adopted a policy to extend eligibility for resident tuition rates to undocumented students, including but not limited to those who have filed for DACA.” See Ex. 73 (University of Hawai’i, UH and State Leaders Respond to DACA Program Termination, Sept. 5, 2017).
95. Losing these talented young immigrants will deprive Hawaii state schools of the special contributions and perspectives they bring to campus communities, both as students and alumni. If current DACA students are forced to drop out, the University of Hawaii also will lose the value of the financial assistance it has granted to, and the other resources it has spent, educating students who ultimately do not graduate.
96. Rescinding DACA will further deprive Hawaii of the earning potential of graduates from public universities who are likely to stay here and join the state’s workforce. Ending DACA would cost Hawaii more than $28.8 million in annual GDP losses. See Ex. 53 (Center for American Progress, A New Threat to DACA Could Cost States Billions of Dollars, Jul. 21, 2017).
97. Over the next ten years Hawaii also stands to lose $126 million in tax revenues and $451.5 million in further GDP losses if DACA is rescinded.
PLAINTIFF STATE OF ILLINOIS 98. The State of Illinois, by and through its Attorney General, Lisa Madigan, is a sovereign state of the United States of America. Illinois is aggrieved by Defendants’ actions and has standing to bring this action because of harm to Illinois’ state institutions and economy, including immediate and irreparable injuries to its sovereign and proprietary interests.
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99. Between FY 2012 and FY 2017, 42,376 individuals residing in Illinois have been approved for the DACA program, and 37,039 individuals have renewed a DACA application. Ex. 1.
100. Approximately 36,867 DACA recipients work in the state of Illinois and contribute to the Illinois economy. Should those workers be removed from Illinois, the state economy would suffer approximately $2.3 billion in annual GDP loss. Ex. 53.
101. ITEP estimates that Illinois would lose approximately $54.7 million in local and state tax revenue if DACA protections are eliminated. Ex. 54 (Misha E. Hill and Meg Wiehe, State & Local Tax Contributions of Young Undocumented Immigrants, Institute on Taxation and Economic Policy, April 25, 2017).
102. Illinois also has enacted laws to enable DACA grantees to participate in the economy professionally. These include providing that no person in Illinois shall be prohibited from receiving a law license solely because he or she is not a citizen and explicitly allowing DACA recipients to apply for a license to practice law within the state of Illinois. 705 Ill. Comp. Stat. 205/2.
103. Furthermore, Illinois has enacted laws and implemented government programs to support DACA participants. Elimination of DACA would harm these programs.
104. For example, Illinois law has been amended to facilitate and encourage the attendance of DACA grantees at public universities in Illinois. DACA participants may obtain instate tuition to attend Illinois’s public universities. 110 Ill. Comp. Stat. 305/7e-5. Illinois’s public universities also accept and provide resources for DACA recipients. See Ex. 66 (University of Illinois at Chicago, Resources for Undocumented Students); Ex. 67 (Illinois State University, Admissions and Financial Aid for Undocumented Student Admissions; Ex. 68 (University of Illinois, Undocumented Applicants, Illinois Admissions).
105. Furthermore, through the Illinois Dream Act, Public Law No. 97-0233, Illinois law permits anyone with a valid social security number or taxpayer number, including DACA recipients, to participate in state-run college financing programs, such as the State Treasurer’s
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College Savings Pool, 15 Ill. Comp. Stat. 505/16.5, and the Illinois Prepaid Tuition Plan, 110 Ill. Comp. Stat. 979/45.
106. Illinois has an interest in ensuring that the investments made in the education of DACA grantees attending Illinois’s public universities through scholarships and financial aid are not diminished by a disruption in the DACA program.
107. A rescission of the DACA program also would disrupt Illinois employers who employ DACA grantees, resulting in economic loss to the state of Illinois and Illinois employers. Furthermore, Illinois would be harmed by the loss of local and state tax revenue due to the removal of DACA program protections for Illinois workers. One expert estimates that rescinding the DACA program will cost Illinois $6.9 billion over the next ten years. Ex. 3 Table 1 (Decl. Bannon).
PLAINTIFF STATE OF IOWA 108. The State of Iowa, represented by and through its Attorney General, Tom Miller, is a sovereign state of the United States of America. Iowa is aggrieved by Defendants’ action and has standing to bring this action because of harm to Iowa’s state institutions and economy, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 109. The State of Iowa has a strong interest in retaining the DACA program. As of March 31, 2017, USCIS had approved approximately 2,798 initial DACA applications and 2,780 renewals for residents of Iowa, for a total of 5,578. Ex. 1 (USCIS Data). One expert estimates that of that total, at least 2,434 DACA grantees currently work in Iowa’s economy. Ex. 53 (Nicole Prchal Svajlenka, A New Threat to DACA Could Cost States Billions of Dollars, Center for American Progress, July 21, 2017). 110. If DACA is terminated, these grantees will lose their work authorization. The resulting loss in employment will cause significant losses in tax revenue and Gross Domestic Product (“GDP”). Over ten years, Iowa can expect to lose $258 million in tax revenues, and $924.5 million in GDP with the loss of DACA. Ex. 4 Table 1 (Brannon Decl.).
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111. Iowa has an interest, as evidenced by its Constitution and state law, in prohibiting discrimination on the basis of race, color, or national origin. See Iowa Const. art. I, Iowa Code Chapter 216.
112. Iowa’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasisovereign interest.
113. Iowa also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
114. Iowa’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Iowa’s residents, including individuals who suffer indirect injuries and members of the general public.
115. In sum, Defendants’ actions affect Iowa’s economy, residents, families, educational institutions, state agencies, and businesses.
PLAINTIFF STATE OF NEW MEXICO 116. The State of New Mexico, represented by and through its Attorney General, is a sovereign state of the United States of America. New Mexico is aggrieved by Defendants’ actions and has standing to bring this action because of the injury to its sovereignty as a state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 117. According to the latest American Community Survey, New Mexico is home to more than 211,249 foreign-born residents, of whom approximately 7,000 are DACA-eligible residents. 118. Foreign-born residents of New Mexico constitute more than 10% of the State’s population. Some 34.4% of the foreign-born New Mexicans—72,652 persons—are naturalized
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citizens eligible to vote in New Mexico. In 2010, 8.4% of all business owners in New Mexico were foreign-born, according to the Fiscal Policy Institute.
119. Immigrants comprised 12.6% of the state’s workforce in 2013 (or 122,131 workers), according to the U.S. Census Bureau.
120. Of the 876,000 recipients of deferred action nationwide, 7,300 live in New Mexico, according to the latest figures provided by the USCIS.
121. ITEP estimates that New Mexico could lose up to $7.5 million in state and local taxes if DACA were eliminated.
122. An estimated 5.9% (or 57,438) of registered voters in New Mexico were “New Americans”—naturalized citizens or the U.S.-born children of immigrants who were raised during the current era of immigration from Latin America and Asia which began in 1965—according to an analysis of 2012 Census Bureau data by American Immigration Council.
123. DACA-eligible residents are estimated to contribute more than $19 million in New Mexico’s state and local taxes, a figure of particular importance in a state often ranked as among the poorest in the country. DACA-eligible residents are part of the State’s near-majority Latino population, which wields some $24.9 billion in consumer purchasing power, and are also part of the increasing numbers of Asian families in the State.
124. The 2014 purchasing power of Latinos in New Mexico totaled $23.4 billion—an increase of 374% since 1990. Asian buying power totaled $1.5 billion—an increase of 724% since 1990, according to the Selig Center for Economic Growth at the University of Georgia.
125. Immigration boosts housing values in communities, and increases in housing values adds to the health of New Mexico’s economy. From 2000 to 2010, according to the Americas Society/Council of the Americas, the value added by immigration to the price of the average home was $2,654 in Bernalillo, the State’s most populous county.
126. New Mexico’s 37,195 Latino-owned businesses had sales and receipts of $6.5 billion and employed 50,021 people in 2007, the last year for which data is available. The state’s
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3,321 Asian-owned businesses had sales and receipts of $1.1 billion and employed 10,739 people in 2007, according to the U.S. Census Bureau’s Survey of Business Owners.

127.

From 2006 to 2010, there were 11,440 new immigrant business owners in New

Mexico, and they had total net business income of $389 million, which makes up 8.9% of all net

business income in the state, according to Robert Fairlie of the University of California, Santa

Cruz.

128.

New Mexico’s 3,711 foreign students contributed $85.1 million to the state’s

economy in tuition, fees, and living expenses for the 2013-2014 academic year, according

to NAFSA: Association of International Educators.

129.

Foreign students contribute to New Mexico’s metropolitan areas. From 2008 to

2012, according to the Brookings Institution, 1,848 foreign students paid $17.8 million in tuition

and $11.3 million in living costs in the Las Cruces metropolitan area.

130.

Foreign students also contribute to innovation in New Mexico. In 2009, “non-

resident aliens” comprised 42.1% of master’s degrees and 42.9% of doctorate degrees in science,

technology, engineering, and mathematics (STEM) fields, according to the Partnership for a New

American Economy.

131.

Latinos in New Mexico paid $2.7 billion in federal taxes and $1.3 billion in

state/local taxes in 2013, according to the Partnership for a New American Economy. In particular,

foreign-born Latinos paid $463 million in federal taxes and $252 million in state/local taxes.

132.

The federal tax contribution of New Mexico’s Latino population included $1.9

billion to Social Security and $441 million to Medicare in 2013. Foreign-born Latinos contributed

$356 million to Social Security and $83 million to Medicare that year.

133.

Unauthorized immigrants comprised roughly 4.7% of the state’s workforce (or

45,000 workers) in 2012, according to a report by the Pew Hispanic Center. If all unauthorized

immigrants were removed from New Mexico, the state would lose $1.8 billion in economic

activity, $809.1 million in gross state product, and approximately 12,239 jobs, even accounting for

adequate market adjustment time, according to a report by the Perryman Group.

134.

Rescinding DACA in New Mexico will adversely impact current DACA grantees

enrolled in New Mexico’s colleges and universities. Without DACA’s employment authorization,

these students will be unable to plan for the future, apply for and obtain internships, study abroad,

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simultaneously work to pay costs and fees, or obtain certain financial aid and scholarships.

Without these students, New Mexico’s institutions of higher education will suffer loss of

enrollment, a reduction in diversity and negative financial consequences.

135.

Significantly, it is common for New Mexico’s families to include both U.S.-born

and foreign born members. Rescinding DACA will jeopardize the health, security and stability of

New Mexico families by forcing separation and alienation.

136.

New Mexico has a continuing interest in protecting and securing the safety and

stability of its families, and that interest mandates the State’s involvement in this litigation.

PLAINTIFF STATE OF NORTH CAROLINA

137.

The State of North Carolina, represented by Attorney General Josh Stein, is a

sovereign state of the United States of America. North Carolina has standing to bring this action

because it has suffered and will continue to suffer injuries to its sovereignty as a state caused by

Defendants' rescission of DACA. These harms include injuries to North Carolina's state

institutions and economy, including to its sovereign and proprietary interests.

138. North Carolina has an interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health.
139. According to USCIS, 27,385 initial DACA applications and 22,327 renewal applications from North Carolina have been approved through the second quarter of 2017. See Ex. 1.
140. Immigration is a vital catalyst to North Carolina's economy. According to a study conducted by the Latino Migration Project at the University of North Carolina at Chapel Hill, in 1990, only 1.7% of the State's population was foreign-born. By 2014, that proportion had increased to 7.6%. This demographic change is due, in large part, to industries' recruitment of foreign-born individuals, primarily of Latin American origin to fill available jobs that have been created as a result of the expansion of North Carolina's economy. See Ex. 87 (Latino Migration Project, DACA Program in North Carolina, Perspectives from Immigrants and Community-Based Organizations, Jan. 2017).

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141. By 2012, as estimated 350,000 people (44% of the state's immigrant population) did not have legal immigration status. See Ex. 81 (Pew Research Center, U.S. Unauthorized Immigration Population Estimates, Mar. 2015).
142. After the institution of the DACA program in 2012, North Carolina had one of the highest application rates to DACA in the nation. Out of an estimated 26,000 eligible people, 75% had applied to the DACA program. By June 2014, USCIS had approved almost 21,000 applications. See Ex. 1 .
143. North Carolina has one of the largest undocumented high school populations in the country, with close to 31,000 undocumented students enrolled as of 2015. See Ex. 82 (Technician, Immigrants Still Face Obstacles To Go To College Despite DACA, Mar. 2015) . There are a total of 16 public universities in North Carolina, enrolling nearly 225,000 students. See Ex. 83 (University of North Carolina, Our 17 campuses). Affected students attend these universities, as well as North Carolina's community and technical colleges. Rescinding DACA permits will cause students currently enrolled to leave North Carolina community and technical colleges and universities. In addition, future DACA students may be prevented from finishing their high school education or from enrolling in North Carolina's colleges and universities. These harms damage the educational mission of North Carolina's institutions of higher learning and affect their tuition revenues.
144. According to the 2010 census, North Carolina is the ninth wealthiest state in terms of gross domestic product. See Ex. 85( Greyhill Advisors, GDP By State). Charlotte, North Carolina's largest city is the second largest banking center in the United States. See Ex. 84 (North Carolina History Project, Charlotte Soars To Become The Nation’s Second Largest Financial Center). The Research Triangle Park, home to more than 170 companies and federal agencies, is the largest and oldest continuously operating research and science park in the United States. See Ex. 86 (Research Triangle Park). The market to employ skilled workers to fuel these expanding economies is highly competitive. Rescinding work authorization for DACA recipients will cripple the ability for North Carolina's companies to attract and maintain a robust workforce, adversely
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affecting the companies' ability to develop and deliver products and services. In addition, the inability to maintain a workforce may induce companies to relocate out of North Carolina.
145. DACA recipients make significant contributions to North Carolina's tax base. The DACA program has encouraged tens of thousands of individuals to secure driver's licenses, continue their education, obtain employment, secure better employment or benefits, and integrate themselves into the fabric of North Carolina society.
146. The rescission of DACA creates upheaval in the operation of state-run programs, including programs relating to public benefits and scholarships, as well as in the operation of North Carolina's private economy. One expert estimates that rescinding the DACA program will cost North Carolina 7.8 billion dollars over the next ten years. See Ex. 4 (Decl. Brannon, Table 1).
147. As a result of the DHS Memorandum, North Carolina's residents, families, and businesses will suffer physical and economic harms. In addition, DHS Memorandum also harms North Carolina's proprietary interests.
PLAINTIFF STATE OF OREGON 148. Oregon is aggrieved by Defendants’ actions and has standing to bring this action because of its injuries caused by Defendants’ rescission of DACA, including immediate, longterm, and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 149. The Governor is the chief executive officer of the State of Oregon. The Governor is responsible for overseeing the operations of the State of Oregon and ensuring that its laws are faithfully executed. 150. The Attorney General is the chief legal officer of the State of Oregon. The Attorney General’s powers and duties include acting in federal court on matters of public concern and at the request of state agencies and officials. 151. Oregon has codified its state policy that practices of unlawful discrimination against any of its inhabitants because of religion or national origin are “a matter of state concern,” and that such discrimination “menaces the institutions and foundation of a free democratic state.” Or. Rev. Stat. § 659A.006.
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152. Oregon’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasisovereign interest.
153. Oregon also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
154. Oregon’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Oregon’s residents, including individuals who suffer indirect injuries and members of the general public.
155. Oregon has a strong interest in promoting employment and business creation and in the tax revenues that result.
156. Oregon is home to more than 11,000 DACA recipients, many of whom are longterm residents of Oregon. See Ex. 1. The DACA program has allowed these individuals to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, obtain employer-based health insurance, among other benefits. Oregon also has many individuals who would have become eligible for DACA in the coming months or years if Defendants had not acted to end the program.
157. Immigration is an important economic driver in Oregon. Many Oregon workers are immigrants, and many of those immigrant workers are DACA recipients.
158. Rescinding DACA will harm the ability of Oregon colleges and universities, including public universities, to satisfy their educational missions and prepare Oregon residents for the workforce. Oregon’s colleges and universities also prepare students to be the next generation of political, civic, and private and public sector leaders.
159. Oregon invests in its educational mission by also investing in its DACA recipient students. It does this by, among other things, offering free comprehensive K-12 education to undocumented students, and, upon graduation from an Oregon high school or GED program,
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offering tuition equity (in-state tuition benefits) and access to state financial aid to Oregon residents who are undocumented, including DACA recipients.
160. Portland State University, based in Portland, Oregon, is a public university that enrolls and in some cases employs DACA recipients. Losing the ability to employ these DACA recipients means the university loses economic and training investments. The potential loss of those enrolled means a loss of graduates and future alumni who would invest their time and talents in the university and community. Other Oregon colleges and universities, including community colleges, also enroll and in some cases employ DACA recipients.
161. Eastern Oregon University, based in La Grande, Oregon, and Western Oregon University, based in Monmouth, Oregon, are public universities that enroll DACA recipients, and are partner universities with USDream project, which provides scholarships to DACA students from non-tuition equity states to come to Oregon partner universities to study.
162. The rescission of DACA will likely cause some DACA recipients to leave Oregon colleges and universities, or take longer to complete their course of study because they can no longer work to support their educational expenses that are not covered by financial aid. The cost of a college education may make little sense for students unable to work following graduation, which may discourage students from enrolling or continuing with their course of study. In one study, more than 90% of the respondent DACA grantees who were in school agreed that because of DACA, they pursued educational opportunities that they previously could not. See Ex. 22 (Center for American Progress, New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Oct. 18, 2016). These harms damage the educational mission of Oregon’s institutions of higher education and affect their tuition revenues. It also undermines Oregon’s investment in and efforts to develop a well-educated workforce that can contribute to the State’s economy and competitiveness. The harm is for years to come, not just the short-term.
163. Rescinding DACA also will hurt the Oregon economy. Stripping DACA recipients of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the state. According to one estimate, DACA-eligible residents contribute
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approximately $20 million in state and local taxes in Oregon, and the State would lose approximately $11 million in state and local tax revenue if the DACA program were rescinded. See Ex. 54 (Institute on Taxation and Economic Policy, State and Local Contributions of Young Undocumented Immigrants, Apr. 2017). It also has been estimated that removing DACA workers would cost Oregon more than $600 million in GDP. See Ex. 53 (Center for American Progress, A New Threat to DACA Could Cost State Billions of Dollars¸ Jul. 21, 2017). Research shows that DACA recipients average higher earning capacities than their undocumented peers and are able to better participate in our economy, for example by purchasing homes and starting businesses that are taxed by our state and local authorities. See Ex. 22.
164. In sum, Defendants’ actions in rescinding DACA adversely and significantly affects Oregon’s economy, residents, families, educational institutions, state agencies, and businesses.
PLAINTIFF STATE OF PENSYLVANIA 165. The Commonwealth of Pennsylvania, represented by and through its Attorney General, “the chief law officer of the Commonwealth,” is a sovereign state of the United States of America. PA Const., Art. IV, § 4.1. 166. Pennsylvania was founded by William Penn, an early Quaker and advocate of democracy, immigration and religious freedom and places great value on tolerance, diversity, multiculturalism and an openness to others of different races, religions and nationalities. 167. The Attorney General of Pennsylvania files this action because Defendants’ rescission of DACA, has caused injuries to its sovereign, quasi-sovereign, and proprietary interests. The Attorney General of the Commonwealth of Pennsylvania also has standing under the parens patriae doctrine to protect the people, schools, institutions and economy of Pennsylvania including quasi-sovereign interests such as the general health, comfort and welfare of the citizens of Pennsylvania. In filing this action, the Attorney General seeks to redress the
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injuries to the interests described herein, which are separate from the narrow interests of particular individuals.
168. Pennsylvania’s laws reflect its commitment to its values of diversity, multiculturalism and openness to others of different races and nationalities. For example, Pennsylvania’s Human Relations Act recognizes that an individual’s opportunity to obtain employment, public accommodation, housing accommodation and commercial property without discrimination on the basis of “race, color, familial status, … ancestry [and] national origin” is a “civil right” that is “enforceable” under Pennsylvania law. 43 P.S. § 953 (“The opportunity for an individual to obtain employment for which he is qualified, and to obtain all the accommodations, advantages, facilities and privileges of any public accommodation and of any housing accommodation and commercial property without discrimination because of race, color, familial status, religious creed, ancestry, handicap or disability, age, sex, national origin, the use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act.”). See also 43 P.S. § 955.
169. Pennsylvania is home to approximately 15,000 DACA-eligible immigrants. See Ex. 54.
170. As of March 31, 2017, initial DACA applications had been accepted for 5,889 young immigrants living in Pennsylvania. See Ex. 1.
171. Of those Pennsylvania DACA recipients, it is estimated that 5,123 are working in Pennsylvania where they generate approximately $357,080,795 of economic activity annually. See Ex. 53.
172. In connection with this significant Pennsylvania economic activity, workers enrolled in DACA generate an estimated $20.7 million in state and local taxes in Pennsylvania each year. See Ex. 54.
173. Among other items set forth herein, Pennsylvania is particularly concerned that, based on the DHS’ Memorandum rescinding DACA, immigrants who shared their sensitive,
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personal information with the federal government in reliance on DACA’s promise that their information would not be used against them in immigration enforcement proceedings will now face exactly that – a federal government that lured these young people to share their personal information and will now break its promise and use that information to deport them. The DHS Memorandum, notably, fails to honor the federal government’s promise to these important economic contributors to Pennsylvania. And Defendants’ actions will cause Pennsylvania to lose hundreds of millions of dollars in economic activity – and tens of millions of state and local tax dollars – annually.
PLAINTIFF STATE OF RHODE ISLAND 174. The State of Rhode Island, represented by and through its Attorney General, is a sovereign state of the United States of America. Rhode Island is aggrieved by Defendants’ actions and has standing to bring this action because of the injury to its sovereignty as a state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 175. The State of Rhode Island has prohibited practices that discriminate against any of its inhabitants because of race, color, or national origin. R.I. Gen. Laws § 42-112-1. 176. Rhode Island’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest. 177. Rhode Island also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law. 178. Rhode Island’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Rhode Island’s residents, including individuals who suffer indirect injuries and members of the general public.
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179. According to the latest American Community Survey, Rhode Island is home to more than 140,000 foreign-born residents. See Ex. 79 (Rhode Island State Center, Census Data Bulletin, March 2014).
180. The Migration Policy Institute estimates that there are 5,000 DACA-eligible residents in Rhode Island. See Ex. 80 (Migration Policy Institute, State/County DACA Estimates).
181. According to USCIS, 1,229 initial DACA applications and 1,733 renewal applications from Rhode Island have been approved through the second quarter of 2017. See Ex. 1.
182. The market for highly skilled workers and employees is extremely competitive. Rescinding the work authorization of DACA grantees will inhibit Rhode Island companies’ ability to adequately staff their organizations, develop their workforces, and recruit talent. If recruiting efforts are less successful, these companies’ abilities to develop and deliver successful products and services may be adversely affected.
183. Rhode Island expended time and funds to hire, train, and manage DACA recipients. Rhode Island wastes that time and money, and loses the value of employee labor, if employees are not able to continue to work due to DACA’s rescission.
184. DACA recipients make significant contributions to state and local taxes. DACA recipients average higher earning capacities than their undocumented peers and are able to better participate in our economy, for example by purchasing homes and cars that are taxed by our state and local authorities. According to ITEP, the State of Rhode Island alone will lose $2.6 million in state and local taxes if DACA protections are lost. See Ex. 54.
185. According to the Center for American Progress, Rhode Island will lose more than $61 million in annual GDP as a result of losing DACA workers. See Ex. 53.
186. In sum, the DHS Memorandum’s rescission of DACA affects Rhode Island residents, families, and businesses, as well as harms Rhode Island’s proprietary interests.
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PLAINTIFF STATE OF VERMONT 187. The State of Vermont, represented by and through its Attorney General, is a sovereign state of the United States of America. Vermont is aggrieved by Defendants’ actions and has standing to bring this action because of the injury to its sovereignty as a state caused by Defendants’ rescission of DACA, including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary interests. 188. The Attorney General is empowered to advance Vermont’s strong and important public policy against unlawful discrimination. The Common Benefits Clause of Vermont’s Constitution provides that government “is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community,” not for the “advantage of any single person, family, or set of persons, who are a part only of that community.” Vt. Const., ch. I, art 7. 189. The State of Vermont has prohibited practices that discriminate against any of its inhabitants because of race, color, national origin, ancestry, and place of birth. 9 V.S.A. § 4502; 21 V.S.A. § 495. 190. Vermont’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasisovereign interest. 191. Vermont also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law. 192. Vermont’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Vermont’s residents, including individuals who suffer indirect injuries and members of the general public.
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193. According to the latest American Community Survey, Vermont is home to over 26,000 foreign-born residents.1
194. According to United States Citizen and Immigration Services (“USCIS”), 42 initial DACA applications and 162 renewal applications from Vermont have been approved through the second quarter of 2017. Ex. 1 (USCIS Data).
195. One expert estimates that of that total, at least 37 DACA grantees currently work in Vermont’s economy. Ex. 53 (Nicole Prchal Svajlenka, A New Threat to DACA Could Cost States Billions of Dollars, Center for American Progress, July 21, 2017). If DACA is terminated, these grantees will lose their work authorization. The resulting loss in employment will cause significant loses in tax revenue and Gross Domestic Product (“GDP”). Over ten years, Vermont can expect to $2,429,910 in GDP with the loss of DACA. Id.
196. The market for highly skilled workers and employees is extremely competitive. Rescinding the work authorization of DACA recipients will inhibit Vermont companies’ ability to adequately staff their organizations, develop their workforces, and recruit talent. If recruiting efforts are less successful, these companies’ abilities to develop and deliver successful products and services may be adversely affected.
197. DACA recipients make significant contributions to state and local taxes. DACA recipients average higher earning capacities than their undocumented peers and are able to better participate in our economy, for example by purchasing homes and cars that are taxed by our state and local authorities. According to the Institute on Taxation and Economic Policy (“ITEP”), the State of Vermont alone will lose $48,000 in state and local taxes if DACA protections are lost. See Ex. 54 (2017 DACA Tax).
198. In sum, President Trump’s Executive Order rescinding DACA affects Vermont residents, families, and businesses, as well as harms Vermont’s proprietary interests.
1 U.S. Census Bureau, Place of birth for the foreign-born population in the United States: Vermont, 20112015 American Community Survey 5-Year Estimates; American Immigration Council, Fact Sheet: New Americans in Vermont (Jan. 1, 2015), available at https://www.americanimmigrationcouncil.org/research/new-americansvermont.
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PLAINTIFF COMMONWEALTH OF VIRGINIA 199. The Commonwealth of Virginia has a strong interest in retaining the DACA program. USCIS has approved over 12,000 initial applications from DACA grantees since 2012. See Ex. 1. 200. If DACA is terminated, these grantees will lose their work authorization. The resulting loss in employment will cause significant loses in tax revenue and Gross Domestic Product (“GDP”). Over ten years, Virginia can expect to lose $1.03 billion in tax revenues, and $3.68 billion in GDP with the loss of DACA. See Ex. 4, Table 1 (Brannon Decl.). 201. Moreover, rescinding DACA would adversely impact Virginia’s public colleges and universities. According to the State Council of Higher Education for Virginia, over a thousand DACA grantees attend Virginia’s two-year and four-year public institutions of higher learning. These students would be less likely to continue pursuing their education at those institutions if there is no viable employment option available to them upon graduation.
DEFENDANTS 202. Defendant Donald Trump is the President of the United States, and authorized the issuance of the DHS Memorandum that purports to rescind DACA. He is sued in his official capacity. 203. Defendant DHS is a federal cabinet agency responsible for implementing the DACA program. DHS is a Department of the Executive Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 552(f). 204. Defendant USCIS is an Operational and Support Component agency within DHS. USCIS is the sub-agency responsible for administering the DACA program. 205. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an Operational and Support Component agency within DHS. ICE is responsible for enforcing federal immigration law, including identifying, apprehending, detaining, and removing non-citizens.
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206. Defendant Elaine C. Duke is the Acting Secretary of the Department of Homeland Security. She is responsible for implementing and enforcing the Immigration and Nationality Act, and oversees USCIS and ICE. She is sued in her official capacity.
207. Defendant the United States of America includes all government agencies and departments responsible for the implementation and rescission of the DACA program.
ALLEGATIONS Establishment of the DACA Program.
208. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program (the “2012 DACA Memorandum”). See Ex. 34 (2012 DACA Memorandum). Under DACA, individuals who were brought to the United States as children and meet specific criteria may request deferred action for a period of two years, subject to renewal.
209. Deferred action is a well-established form of prosecutorial discretion under which the government forbears from taking removal action against an individual for a designated period. The 2012 DACA Memorandum explained that DACA covers “certain young people who were brought to this country as children and know only this country as home” and that the immigration laws are not “designed to remove productive young people to countries where they may not have lived or even speak the language.” Id. at 1-2.
210. The 2012 DACA Memorandum established that an applicant would be considered for an exercise of prosecutorial discretion only by satisfying each of the following criteria:
a. came to the United States under the age of sixteen; b. had continuously resided in the United States for at least five years preceding
the date of the memorandum and is present in the United States on the date of the memorandum; c. was currently in school, had graduated from high school, had obtained a general education development certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
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d. had not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
e. was not above the age of thirty. Id. at 1.
211. USCIS described DACA as follows: “Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.” See Ex. 14, Question 1 (USCIS Help Center, DACA FAQs).
212. As the government has recognized, our nation “continue[s] to benefit . . . from the contributions of those young people who have come forward and want nothing more than to contribute to our country and our shared future.” See Ex. 15 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu, Dec. 30, 2016). The DACA Application Process
213. USCIS affirmatively represented to DACA applicants that “[a]ll individuals who believe they meet the guidelines . . . may affirmatively request consideration of DACA from USCIS through this process,” and after USCIS receives the applicant’s forms, evidence, supporting documents and application fee, “USCIS will review them for completeness.” USCIS further affirmatively represented to DACA applicants that if it determines that the request is complete, USCIS will send the applicant notices of receipt and for needed appointments, and then review the
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applications “on an individual, case-by-case basis” and notify applicants of its determination in writing. See Ex. 16 (USCIS Help Center, How do I request consideration of DACA?).
214. In order to apply for the DACA program, applicants had to submit extensive documentation establishing that they meet the eligibility criteria. Applicants had to submit a Form I-765 Application for Employment Authorization, and pay a $495 fee. See Ex. 14 at Questions 2841; see also Ex. 17 (USCIS, I-821D, Consideration of Deferred Action for Childhood Arrivals) (explaining that the filing fee for a DACA application cannot be waived).
215. DACA applicants had to undergo biometric and biographic background checks. When conducting these checks, DHS reviewed the applicant’s biometric and biographic information “against a variety of databases maintained by DHS and other federal government agencies.” See Ex. 14 at Questions 23. If any information “indicates that [the applicant’s] presence in the United States threatens public safety or national security,” the applicant will be ineligible for DACA absent “exceptional circumstances.” Id. at Question 65.
216. Once individuals were admitted into the DACA program, internal USCIS “Standard Operating Procedures” dictate that, absent an “Egregious Public Safety” issue, DACA grantees should not be terminated from the program until the government has provided a “Notice of Intent to Terminate” which “thoroughly explain[s]” the grounds for the termination.” See Ex. 18 at 132, Appendix I (DHS, National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals, Apr. 4, 2013). DHS policy further provided that the grantees of such notice should be afforded 33 days to “file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate” prior to termination of participation in the DACA program. Id.
217. At the expiration of their two-year DACA term, grantees could seek renewal. As USCIS has represented, DACA applicants “may be considered for renewal of DACA” if they meet
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the guidelines for consideration and meet other criteria which “must be met for consideration of DACA renewal.” See Ex. 19 (USCIS Help Center, How will USCIS evaluate my request for renewal of DACA?). Benefits Provided Under the DACA Program
218. DACA confers numerous benefits on DACA grantees. Notably, DACA grantees are granted the right not to be arrested or detained based solely on their immigration status during the time period their deferred action is in effect. See Ex. 14, Question 9.
219. DACA grantees also are granted eligibility for work authorization. As USCIS has explained, “an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action . . . .’” Id., Question 1.
220. DACA grantees are eligible to receive certain public benefits. These include Social Security, retirement, and disability benefits, and, in certain states, benefits such as driver’s licenses or unemployment insurance. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d). In the State of Washington, DACA holders also are eligible for certain state financial aid programs and state-funded food assistance. See Wash. Rev. Code § 28B.92.010; Wash. Admin. Code §§ 388-400-0050, 388-4240001, 388-424-0030. In the State of New York, DACA holders are eligible for teaching and nursing licenses. See Comm. of Educ. Regs. §§ 59.4; 80-1.3; Ex. 78 (NYS Board of Regents Press Release, Feb. 24, 2016).
221. DACA enables grantees to secure equal access to numerous other benefits and opportunities on which Americans depend, enabling grantees to open bank accounts, obtain credit cards, start businesses, purchase homes and cars, and conduct other aspects of daily life that are otherwise often unavailable for undocumented immigrants. See Ex. 5 (Wong Decl.).
222. DACA has enabled hundreds of thousands of young people “to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and
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give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—
all on the books.” See Ex. 15 (Letter from Sec’y Johnson).
223. These positive effects have rippled throughout the States’ economies. Rescinding
DACA would not only rip away the life-changing benefits to individual DACA grantees, but would
also reverse the benefits to the community at large, including innumerable small businesses, nonprofits, and governments.2
The Government’s Assurances That the Information Provided by DACA Applicants Would be Kept Confidential and Not Used for Enforcement
224. When the DACA program was first implemented, many eligible young people were reluctant to voluntarily disclose information that could help facilitate their removal from the United States. To encourage applications, DHS repeatedly promised applicants that information they provided as part of the DACA application process would “not later be used for immigration enforcement purposes.” Ex. 15 (Letter from Sec’y Johnson).
225. Moreover, the approval notice granting deferred action under DACA lists only “fraud or misrepresentation” in the application process or “[s]ubsequent criminal activity” as grounds for revoking DACA. Ex. 24 (USCIS, DACA Approval Notice).
226. The government’s commitment to the DACA program was further communicated to young people through its publication entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA)” (the “DACA SOP”). Ex. 18. This document sets forth the standards agency applies concerning DACA applications with nearly 150 pages of specific instructions for granting or denying deferred action.
2 See e.g., Ex. 20 (Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, the Cato Institute, Jan. 18, 2017) (“The deportation of DACA participants would cost the American economy billions of dollars, as well as billions of tax dollars foregone, while doing little to address the true concerns that Americans may have about unauthorized immigrants”); Ex. 21 (Tom Wong, et al., DACA Grantees’ Economic and Educational Gains Continue to Grow, Center for American Progress, Aug. 28, 2017) (quoting multiple DACA grantees whose small businesses will suffer or even close if DACA is rescinded); Ex. 22 (Tom Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress, Oct. 18, 2016) (study showing that 9 percent of DACA grantees work at non-profits, a significant percentage work in education, and 6 percent started their own business, including one owner who employs nine people and hopes to continue to grow and “hire even more people from the community” [internal brackets and quotation marks omitted]).
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227. USCIS affirmatively represented to DACA applicants that, except in limited circumstances, “[i]nformation provided in [a DACA request] is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings.” Ex. 25 (USCIS Help Center, Will the information I share in my request for DACA be used for immigration enforcement purposes?).
228. USCIS affirmatively represented to DACA applicants that, except in limited circumstances, “[i]f you have submitted request for consideration of DACA and USCIS decides not to defer your case . . . your case will not be referred to ICE for purposes of removal proceedings.” Ex. 26 (USCIS Help Center, If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?).
229. In the exceptional circumstances when USCIS refers a DACA applicant to ICE, USCIS affirmatively represented to DACA applicants that “information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians.” Ex. 27 (USCIS Help Center, If my DACA case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?).
230. USCIS affirmatively represented to employers of DACA applicants that, except in limited circumstances, if they provide their employees "with information regarding his or her employment to support a request for consideration of DACA . . . . This information will not be shared with ICE for civil immigration enforcement purposes.” Ex. 28 (USCIS Help Center, If I provide my employee with information regarding his or her employment to support a request for consideration of DACA, will that information be used for immigration enforcement purposes against me and/or my company?).
231. The government’s representations that information provided by a DACA recipient would not be used against him or her for later immigration enforcement proceedings were unequivocal and atypical. For example, the federal government does not make the same
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representations for participants in other similar programs, such as Temporary Protected Status. These assurances were key to the success of the DACA initiative. By making repeated, unique, and strong representations, the federal government induced persons to rely on those representations and apply to become DACA grantees despite the potential risks.
The Government’s Statements Regarding Continuity and Fair Treatment for DACA Grantees
232. Numerous public officials from both political parties have reinforced the federal government’s promise to provide continuity and fair treatment to DACA grantees, and have recognized that DACA grantees have relied on the government’s representations in applying for DACA. For example, in December 2016, then-Secretary of Homeland Security Jeh Charles Johnson acknowledged that there are 750,000 DACA grantees who have “relied on the U.S. government’s representations” about DACA, and asserted that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.” Ex. 15.
233. On December 8, 2016, then-President-elect Trump stated in an interview with TIME magazine that he would find an accommodation for DACA grantees, stating, “We’re going to work something out that’s going to make people happy and proud.” He further recognized, “[DACA grantees] got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.” Ex. 29 (Michael Scherer, Person of the Year 2016, TIME Magazine, Dec. 2016).
234. Again, on January 18, 2017, then President-elect Trump promised in an interview with Fox & Friends that he was working on a plan to make DACA grantees “very happy.” He further stated, “We’re working on a plan right now. And that plan, over the next two to three months, is going to come out. And it’s a plan that’s going to be very firm, but it’s going to have a lot of heart.” Ex. 30 (Francesca Chambers, Trump signals he’s softening on immigration as he says he’s ‘working on a plan’ that will make DREAMers ‘very happy,’ Daily Mail, Jan. 18, 2017).
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235. In January 2017, Speaker of the House Paul Ryan stated that the government must ensure that “the rug doesn’t get pulled out from under” DACA grantees, who have “organize[d] [their] li[ves] around” the DACA program. Ex. 31 (CNN, Transcript of CNN Town Hall with Speaker Paul Ryan, Jan. 12, 2017).
236. On January 25, 2017, President Trump again stated in an interview with David Muir that “[DACA grantees] shouldn’t be very worried. I do have a big heart.” Ex. 32 (ABC News, Transcript of ABC News anchor David Muir interview with Donald Trump, Jan. 25, 2017).
237. On March 29, 2017, Secretary Kelly reaffirmed that “DACA status” is a “commitment . . . by the government towards the DACA person, or the so-called Dreamer.” Ex. 33 (Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration, Politico, Mar. 29, 2017).
238. On April 21, 2017, President Trump confirmed that his Administration’s policy is not to deport DACA grantees, and suggested that they “should rest easy.” Ex. 34 (The Associated Press, Transcript of interview with Trump, Apr. 21, 2017).
President Trump’s Statements about Mexicans 239. Despite these various and repeated promises to DACA grantees made by the federal
government and by President Trump, including a recognition of DACA’s value and successes, President Trump has a long history of disparaging Mexicans, who comprise the vast majority of DACA grantees.
240. In announcing his presidential campaign, then-candidate Trump compared Mexican immigrants to rapists, stating: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” Ex. 35 (Washington Post, Transcript of Donald Trump’s Presidential Bid Announcement, June 16, 2015).
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241. During the first Republican presidential debate, then-candidate Trump again restated his distaste for immigrants from Mexico: “The Mexican government is much smarter, much sharper, much more cunning. And they send the bad ones over because they don’t want to pay for them. They don’t want to take care of them.” Ex. 36 (Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News, Aug. 6, 2015.
242. Soon after, on August 25, 2015, then-candidate Trump refused to answer questions about immigration from Jorge Ramos, a Mexican-American and the top news anchor at Univision, a Spanish-language news channels. After sending his bodyguard to physically remove Mr. Ramos, then-candidate Trump derisively told Mr. Ramos to “Go back to Univision.” Ex. 37 (Phillip Rucker, First, Trump booted Univision anchor Jorge Ramos out of his news conference. Then things got interesting, The Washington Post, Aug. 25, 2015).
243. In May 2016, then-candidate Trump referred to anti-Trump protestors who carried the Mexican flag on Twitter as “criminals” and “thugs.” Ex. 38 (Donald Trump, The protestors in New Mexico were thugs who were flying the Mexican Flag, Twitter, May 25, 2016), and Ex. 39 (Donald Trump, Many of the thugs that attacked peaceful Trump supporters in San Jose were illegals, Twitter, June 4, 2016).
244. In June 2016, then-candidate Trump impugned the integrity of a federal judge presiding over a lawsuit against one of his businesses because the judge is Hispanic. Suggesting his own opinions are anti-Hispanic, then-candidate Trump commented that Judge Gonzalo Curiel’s unfavorable rulings “[H]as to do with perhaps that I’m very, very strong on the border. . . Now, he is Hispanic, I believe. He is a very hostile judge to me.” Ex. 40 (Jose A. DelReal and Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts, The Washington Post, June 1, 2016).
245. In an interview with CBS News on June 5, 2016, then-candidate Trump again reiterated his anti-Mexican views, noting that “[Judge Curiel]’s a member of a club or society very strongly, pro-Mexican, which is all fine. But I say he’s got bias.” Ex. 41 (Transcript of Face the Nation, CBS News, June 5, 2016). Judge Curiel is a member of is the San Diego Chapter of the
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La Raza Lawyers Association. See Ex. 42 (Michelle Ye Hee Lee, Trump supporters’ false claim that Trump U judge is a member of a pro-immigrant group, The Washington Post, June 7, 2016).
246. On August 21, 2015, two men urinated on a sleeping Latino man and then beat him with a metal pole. At the police station, they stated “Donald Trump was right; all these illegals need to be deported.” When asked about the incident, then-candidate Trump failed to condemn the men, instead stating that they were “passionate.” Specifically, Trump stated, “[i]t would be a shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.” Ex. 43 (Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, The Boston Globe, Aug. 21, 2015).
247. In October 2016, during a presidential debate,then-candidate Trump responded to a question about immigration by stating: “We have some bad hombres here and we’re going to get them out.” Ex. 44 (Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, The Washington Post, Aug. 30, 2017).
248. On January 27, 2017, newly-inaugurated President Trump and Mexico’s President Peña Nieto discussed President Trump’s proposal for a border wall over the phone. During that transcribed conversation, President Trump again referred to “hombres” stating: “You have some pretty tough hombres in Mexico that you may need help with, and we are willing to help you with that big-league. But they have to be knocked out and you have not done a good job of knocking them out.” Ex. 45 (Greg Miller et. al., Full Transcripts of Trump’s Calls with Mexico and Australia, The Washington Post, Aug. 3, 2017).
249. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge’s order to stop racially profiling Latinos. See Ex. 46 (Julie Hirschfield Davis and Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, The N.Y. Times, Aug. 25, 2017).
250. Arpaio had been detaining people ostensibly because they had violated the law. But in practice, his office detained huge numbers of individuals solely because they looked Latino,
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without any reasonable suspicion of illegal conduct. See generally Melendres v. Arpaio, Findings of Fact & Conclusions of Law, 2:07-cv-02513-GMS, ECF Doc. No.579 (D. Az. May 24, 2013). After a federal court enjoined that practice in 2011, Arpaio continued his unlawful and discriminatory practices unabated, “announc[ing] to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” United States v. Arpaio, Findings of Fact & Conclusions of Law, 2:16-cr-01012-SRB, ECF Doc. No. 210 at 13 (D. Az. July 31, 2017). On July 31, 2017, a federal court held Arpaio in criminal contempt, holding that he had willfully acted in “flagrant disregard” of the injunction. Id.
251. Before issuing the pardon, President Trump asked, “Was Sheriff Joe convicted for doing his job?” Ex. 46. After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio “an American patriot.” Id.
252. As President Trump’s statements about Mexico and those with Mexican roots show, the President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency, even when such impulses are impermissible motives for directing governmental policy. Trump Administration’s Threatening Statements about Deporting Immigrants
253. On June 13, 2017, Acting ICE Director Thomas Homan testified in front of the House Appropriations Committee's Subcommittee on Homeland Security, stating as to “every immigrant in the country without papers,” that they “should be uncomfortable. You should look over your shoulder. And you need to be worried.” Hearing on the ICE and CBP F.Y. 2018 Budget Before the Subcomm. on Homeland Security of the H. Comm. on Appropriations, 115th Cong. (2017) 2017 WLNR 18737622. CNN reported that Homan “doubled down” on these statements in an interview later that week, stating that “Trump and his administration have made clear that any undocumented immigrant could be arrested and face deportation proceedings at any time, unless they have current and valid protection under DACA.” Ex. 48 (Tal Kopan, ICE Director: Undocumented immigrants ‘should be afraid,’ CNN, June 6, 2017).
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254. On April 19, 2017, United States Attorney General Jefferson B. Sessions stated in an interview on Fox News’ “Happening Now,” program—in response to a question regarding the deportation of a DACA recipient—that “[e]verybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully that they aren’t going to be deported.” Ex. 49 (Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News, Apr. 19, 2017).
President Trump Rescinds DACA in Response to the Litigation Threats of a State Found To Have Discriminated Against Latinos/Hispanics Nine Times Since 2012
255. On June 29, 2017, the Attorneys General of ten states, led by the State of Texas, sent U.S. Attorney General Sessions a letter threatening to add claims to litigation currently pending in the Southern District of Texas “to challenge both the DACA program and the remaining expanded DACA permits,” if the Executive Branch did not agree to end the DACA program by September 5, 2017.
256. The demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas.
257. Over the preceding decade, federal courts have repeatedly found the State of Texas liable for engaging in unlawful discrimination based on race and/or national origin.
258. For example, in Texas v. United States, 887 F. Supp. 2d 133, 161 (D.D.C. 2012), three federal judges blocked a Congressional and State House redistricting plan after finding that it “was enacted with discriminatory purpose.”
259. The litigation eventually culminated in a ruling by a three-judge panel on August 15, 2017 finding, again, that the 2010 congressional districts had been created with “racially discriminatory intent” against Latinos and African American voters. Perez v. Abbott, SA-11-CV360, 2017 U.S. Dist. LEXIS 129982, at *55 (W.D. Tex. Aug. 15, 2017).
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260. On October 9, 2014, in separate litigation challenging a state voter photo identification (“ID”) law, a Texas federal district court judge found that the provision had been “imposed with an unconstitutional discriminatory purpose” and “constitute[d] an unconstitutional poll tax.” Veasey v. Perry, 71 F. Supp. 3d 627, 633 (S.D. Tex. 2014).
261. On remand from the Fifth Circuit, a federal district court concluded that the 2011 Legislature intentionally discriminated against minority voters by requiring presentation of a photo ID when casting their ballots. Veasey v. Abbott, 2017 U.S. Dist. LEXIS 54253, at *14-18 (S.D. Tex. Apr. 10, 2017).
262. DHS issued the DHS Memorandum rescinding DACA on September 5, 2017, in direct response to the threats of the State of Texas and the other ten states, fulfilling the demand of a State marked with a history of racial discrimination. President Trump Backtracks on His Promise and Rescinds DACA
263. Despite its repeated assurances, the federal government announced that the DACA program will be rescinded and that the government will immediately cease accepting applications under DACA. The federal government will process pending applications on a case-by-case basis. See Ex. 74 (DHS, Memorandum Rescinding DACA, September 5, 2017). The federal government will only issue renewals for recipients whose permits expire before March 5, 2018, provided they apply for renewal by October 5, 2018. Id. The DHS Memorandum further specifies that the government will not approve any new or pending applications for advanced parole. Id.
264. In issuing the DHS Memorandum rescinding DACA, the federal government misleadingly claimed that DACA was unconstitutional, despite no court making that determination. See Ex. 75 (DOJ, Attorney General Sessions Remarks on DACA, September 5, 2017).
265. As a result of the DHS Memorandum, after the expiration of DACA grantees’ terms, the grantees will immediately face the risk of losing their employment, as well as vital benefits, such as social security cards, driver licenses, financial aid, disability and health benefits, among others. They also may lose their homes and communities if the program is allowed to
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expire: an internal White House memo reported on by CNN stated that DHS now is urging DACA recipients “to prepare for and arrange their departure from the United States” when their DACA terms end. Ex. 88 (Tal Kopan & Jim Acosta, Admin Memo: DACA recipients should prepare for departure from the United States, CNN, Sept. 5, 2017).
266. President Trump also has taken affirmative steps to reduce the privacy protections applicable to DACA data. In January 2017, President Trump issued an Executive Order directing all agencies, including DHS, to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” Ex. 76 (Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” Jan. 25, 2017). DHS has confirmed that its new privacy policy, adopted in response to the Executive Order, “permits the sharing of information about immigrants and non-immigrants with federal, state, and local law enforcement.” Ex. 51 (DHS, Privacy Policy 2017-01 Questions & Answers, Apr. 27, 2017).
267. The DHS Memorandum provides no assurance to DACA grantees, or direction to USCIS and ICE, that information contained in DACA applications or renewal requests cannot be used for the purpose of future immigration enforcement proceedings.
268. To the contrary, DHS posted public guidance about the impact of the rescission on the same day that the DHS Memorandum was issued, expressly declining to give concrete assurances about how it would use the information provided by DACA applicants. DHS states that although it generally will not “proactively” use information obtained through DACA for enforcement, it reserves the right to change that policy “at any time without notice” and that the policy “may not be relied upon” by any party. Ex. 89 (DHS, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals, Sept. 5, 2017). DACA grantees thus immediately face the risk that information they provided to the federal government could be used against them at any time, without notice, for purposes of immigration enforcement, including detention or deportation.
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FIRST CAUSE OF ACTION (Fifth Amendment – Equal Protection) 269. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 270. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 271. The DHS Memorandum—together with the President’s numerous statements about his intentions towards Mexicans, who comprise the largest population of DACA grantees—target individuals for discriminatory treatment based on their national origin, without lawful justification. 272. The DHS Memorandum was motivated, at least in part, by a discriminatory motive and/or a desire to harm a particular group. 273. The discriminatory terms and application of the DHS Memorandum cannot be sufficiently justified by federal interests. 274. Through their actions above, Defendants have violated the equal protection guarantee of the Fifth Amendment. 275. Defendants’ violation causes ongoing harm to the States and their residents.
SECOND CAUSE OF ACTION (Fifth Amendment – Due Process – Information Use) 276. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 277. The Due Process Clause of the Fifth Amendment requires that immigration enforcement actions taken by the federal government be fundamentally fair. 278. Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.
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279. Through their actions above, Defendants have violated the due process guarantee of the Fifth Amendment.
280. Defendants’ violation causes ongoing harm to the States and their residents.
THIRD CAUSE OF ACTION (Administrative Procedure Act – Substantively Arbitrary and Capricious,
Abuse of Discretion, Contrary to Constitution or Statute) 281. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 282. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. In implementing the DHS Memorandum and rescinding DACA with minimal formal guidance, federal agencies have taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative Procedure Act. 283. In implementing the DHS Memorandum, federal agencies have acted arbitrarily and capriciously, and otherwise not in accordance with law, and have abused their discretion, in violation of the APA. 284. Defendants’ violation causes ongoing harm to the States’ residents.
FOURTH CAUSE OF ACTION (Administrative Procedure Act – Procedurally Arbitrary and Capricious,
Notice and Comment) 285. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 286. The APA, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 287. DHS is an “agency” under the APA. 5 U.S.C. § 551(1). 288. The actions that DHS has taken to implement the DHS Memorandum are “rules” under the APA. 5 U.S.C. § 551(4).
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289. In implementing the DHS Memorandum, federal agencies have changed the substantive criteria by which individuals DACA grantees work, live, attend school, obtain credit, and travel in the United States. Federal agencies did not follow the procedures required by the APA before taking action impacting these substantive rights.
290. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. 5 U.S.C. § 553.
291. The Defendants promulgated and relied upon these rules without authority and without notice-and-comment rulemaking in violation of the APA.
292. The States will be impacted because they have not had the opportunity to comment on the rescission of DACA.
293. Defendants’ violation causes ongoing harm to the States and their residents. FIFTH CAUSE OF ACTION
(Regulatory Flexibility Act – Failure to Issue Regulatory Flexibility Analyses) 294. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 295. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal agencies to analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for public comment. 5 U.S.C. §§ 603-604. 296. “Small entities” for purposes of the RFA includes small businesses, small nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6). 297. The actions that DHS has taken to implement the DHS Memorandum are “rules” under the RFA. 5 U.S.C. § 601(2). 298. The actions that DHS has taken to implement the DHS Memorandum are likely to have a significant economic impact on a substantial number of small entities. 5 U.S.C. § 602(a)(1). 299. Defendants have not issued the required analyses of DHS’s new rules.
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300. Defendants’ failure to issue the initial and final Regulatory Flexibility Analyses violates the RFA and is unlawful.
301. Defendants’ violation causes ongoing harm to the States and their residents. PRAYER FOR RELIEF
302. Wherefore, the States pray that the Court: a. Declare that the DHS Memorandum rescinding the DACA program is unauthorized by and contrary to the Constitution and laws of the United States; b. Declare that the actions that DHS has taken to implement the DHS Memorandum rescinding the DACA program are procedurally unlawful under the APA; c. Declare that the actions that DHS has taken to implement the DHS Memorandum rescinding the DACA program are substantively unlawful under the APA; d. Declare that the actions that DHS has taken to implement the DHS Memorandum rescinding the DACA program are unlawful under the RFA; e. Enjoin Defendants from rescinding the DACA program, pending further orders from this Court; f. Enjoin Defendants from using information obtained in any DACA application or renewal request to identify, apprehend, detain, or deport any DACA applicant or member of any DACA applicant’s family, or take any action against a DACA applicant’s current or former employer; and g. Award such additional relief as the interests of justice may require.
DATED: September 6, 2017
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Case 1:17-cv-05228 Document 1 Filed 09/06/17 Page 56 of 58 PageID #: 56

MAURA HEALEY Attorney General for the Commonwealth of Massachusetts
By: /s Jonathan B. Miller Jonathan B. Miller (Bar No. JM3508) Genevieve C. Nadeau* Abigail B. Taylor* Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 jonathan.miller@state.ma.us genevieve.nadeau@state.ma.us abigail.taylor@state.ma.us Tel. (617) 727-2200

ERIC T. SCHNEIDERMAN Attorney General of the State of New York
By: /s Lourdes M. Rosado Lourdes M. Rosado, Bureau Chief Sania Khan, Assistant Attorney General Diane Lucas, Assistant Attorney General Ajay Saini, Assistant Attorney General Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 23rd Floor New York, New York 10271 Lourdes.Rosado@ag.ny.gov Sania.Khan@ag.ny.gov Diane.Lucas@ag.ny.gov Ajay.Saini@ag.ny.gov Tel. (212) 416-6438 Fax (212) 416-8074
BOB FERGUSON Attorney General of the State Washington
By: /s/ Robert W Ferguson Robert W. Ferguson,* WSBA #26004 Attorney General Colleen M. Melody,* WSBA #42275 Civil Rights Unit Chief Marsha Chien,* WSBA #47020 Assistant Attorney General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 ColleenM1@atg.wa.gov MarshaC@atg.wa.gov Tel. (206) 464-7744

GEORGE JEPSEN Attorney General of the State of Connecticut
By: /s Mark K. Kohler Mark F. Kohler* Assistant Attorney General 55 Elm Street Hartford, CT 06106

KARL A. RACINE Attorney General for the District of Columbia
By: /s Robyn R. Bender Robyn R. Bender* Deputy Attorney General Public Advocacy Division 441 4th Street, NW Suite 650 North

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Case 1:17-cv-05228 Document 1 Filed 09/06/17 Page 57 of 58 PageID #: 57

DOUGLAS S. CHIN Attorney General of the State of Hawaii
By: /s Donna Kalama Deputy Attorney General Donna Kalama* State of Hawaii, Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Tel: (808) 586-1282

Washington, DC 20001 Tel. (202) 724-6610 Fax (202) 730-0650
LISA MADIGAN Attorney General of the State of Illinois
By: /s Karyn L. Bass Ehler Karyn L. Bass Ehler,* Chief, Civil Rights Bureau Harpreet Khera,* Deputy Bureau Chief, Special Litigation Bureau Anna Crane,* Assistant Attorney General Caitlyn McEllis,* Assistant Attorney General Jeff VanDam,* Assistant Attorney General Civil Rights Bureau Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Tel. (312) 814-3400 Fax (312) 814-3212

THOMAS J. MILLER Attorney General of the State of Iowa

HECTOR H. BALDERAS Attorney General of the State of New Mexico

By: /s Jeffrey S. Thompson Jeffrey S. Thompson* Solicitor General Office of the Attorney General of Iowa 1305 E. Walnut Street Des Moines, IA 50319 Jeffrey.Thompson@Iowa.gov Tel. 515 281 4419 Fax. 515 281 4209

By: /s Tania Maestas Tania Maestas,* Deputy Attorney General Ari Biernoff,* Assistant Attorney General Jennie Lusk,* Assistant Attorney General New Mexico Office of the Attorney General 408 Galisteo St. Santa Fe, NM 87501 Tel. (505) 490-4060 Fax (505) 490-4883

MATTHEW DENN Attorney General of the State of Delaware By: s/ Matt Denn
Attorney General Matt Denn* Delaware Department of Justice Carvel State Building 820 N. French St. Wilmington, DE 19801

PETER KILMARTIN Attorney General of the State of Rhode Island By: /s Peter Kilmartin
Peter Kilmartin* RI Office of the Attorney General 150 South Main Street Providence, RI 02903

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JOSH STEIN Attorney General of the State of North Carolina ELLEN F. ROSENBLUM

Attorney General of the State of Oregon

By: /s Sripriya Narasimhan

Sripriya Narasimhan*
North Carolina Department of Justice 114 W. Edenton Street Raleigh, North Carolina 27603 Tel. (919) 716-6400

By: /s Brian De Haan Brian De Haan* #4565396 Assistant Attorney General Trial Attorney brian.a.dehaan@doj.state.or.us Tel. (971) 673-1880

Fax (971) 673-5000

JOSH SHAPIRO Attorney General of Commonwealth of Pennsylvania By: /s Jonathan Scott Goldman
Jonathan Scott Goldman,* Executive Deputy Attorney General, Civil Law Division Michael J. Fischer,* Chief Deputy Attorney General, Impact Litigation Section Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA 17120 Tel. (717) 787-3391

THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont By: /s Benjamin D. Battles
Benjamin D. Battles,* Solicitor General Julio A. Thompson,* Assistant Attorney General, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, Vermont 05609 benjamin.battles@vermont.gov Tel. (802) 828-5500 Fax (802) 828-3187

MARK R. HERRING Attorney General of the State of Virginia By: /s Matthew R. McGuire
Matthew R. McGuire,* Acting Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219

*Pro hac vice motions will be forthcoming.

58

JS 44 (Rev. 06/17) Case 1:17-cv-05228 DoCcuImVeILnt C1-O1 VFEilRedS0H9/E06E/1T7 Page 1 of 5 PageID #: 59

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

IN. e(wa)YoPrLk,AeItNaTl. IFFS

TDruEmFpE, eNtDalA. NTS

(b) County of Residence of First Listed Plaintiff New York County
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number) See attached.

County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

’ 1 U.S. Government Plaintiff

’ 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

’ 1 ’ 1 Incorporated or Principal Place

’ 4 ’4

of Business In This State

’ 2 U.S. Government Defendant

’ 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

’ 2 ’ 2 Incorporated and Principal Place of Business In Another State

’ 5 ’5

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

Citizen or Subject of a

’3

Foreign Country

FORFEITURE/PENALTY

’ 3 Foreign Nation

’ 6 ’6

Click here for: Nature of Suit Code Descriptions.

BANKRUPTCY

OTHER STATUTES

’ 110 Insurance

PERSONAL INJURY

PERSONAL INJURY ’ 625 Drug Related Seizure

’ 422 Appeal 28 USC 158

’ 120 Marine

’ 310 Airplane

’ 130 Miller Act

’ 315 Airplane Product

’ 140 Negotiable Instrument

Liability

’ 150 Recovery of Overpayment ’ 320 Assault, Libel &

& Enforcement of Judgment

Slander

’ 151 Medicare Act

’ 330 Federal Employers’

’ 152 Recovery of Defaulted

Liability

Student Loans

’ 340 Marine

(Excludes Veterans)

’ 345 Marine Product

’ 365 Personal Injury Product Liability
’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability
’ 368 Asbestos Personal Injury Product Liability

of Property 21 USC 881 ’ 423 Withdrawal

’ 690 Other

28 USC 157

PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 835 Patent - Abbreviated
New Drug Application ’ 840 Trademark

’ 153 Recovery of Overpayment
of Veteran’s Benefits ’ 160 Stockholders’ Suits ’ 190 Other Contract ’ 195 Contract Product Liability ’ 196 Franchise

Liability ’ 350 Motor Vehicle ’ 355 Motor Vehicle
Product Liability ’ 360 Other Personal
Injury ’ 362 Personal Injury -

PERSONAL PROPERTY

LABOR

’ 370 Other Fraud

’ 710 Fair Labor Standards

’ 371 Truth in Lending

Act

’ 380 Other Personal

’ 720 Labor/Management

Property Damage

Relations

’ 385 Property Damage

’ 740 Railway Labor Act

Product Liability

’ 751 Family and Medical

SOCIAL SECURITY ’ 861 HIA (1395ff) ’ 862 Black Lung (923) ’ 863 DIWC/DIWW (405(g)) ’ 864 SSID Title XVI ’ 865 RSI (405(g))

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS ’ 790 Other Labor Litigation

FEDERAL TAX SUITS

’ 210 Land Condemnation

’ 440 Other Civil Rights

Habeas Corpus:

’ 791 Employee Retirement

’ 870 Taxes (U.S. Plaintiff

’ 220 Foreclosure

’ 441 Voting

’ 463 Alien Detainee

Income Security Act

or Defendant)

’ 230 Rent Lease & Ejectment ’ 240 Torts to Land ’ 245 Tort Product Liability ’ 290 All Other Real Property

’ 442 Employment

’ 510 Motions to Vacate

’ 443 Housing/

Sentence

Accommodations

’ 530 General

’ 445 Amer. w/Disabilities - ’ 535 Death Penalty

IMMIGRATION

’ 871 IRS—Third Party 26 USC 7609

Employment

Other:

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other

Other

’ 550 Civil Rights

’ 448 Education

’ 555 Prison Condition

’ 560 Civil Detainee -

’ 462 Naturalization Application ’ 465 Other Immigration
Actions

Conditions of

Confinement

’ 375 False Claims Act ’ 376 Qui Tam (31 USC
3729(a)) ’ 400 State Reapportionment ’ 410 Antitrust ’ 430 Banks and Banking ’ 450 Commerce ’ 460 Deportation ’ 470 Racketeer Influenced and
Corrupt Organizations ’ 480 Consumer Credit ’ 490 Cable/Sat TV ’ 850 Securities/Commodities/
Exchange ’ 890 Other Statutory Actions ’ 891 Agricultural Acts ’ 893 Environmental Matters ’ 895 Freedom of Information
Act
’ 896 Arbitration ’ 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision ’ 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

’ 1 Original

’ 2 Removed from

Proceeding

State Court

’ 3 Remanded from Appellate Court

’ 4 Reinstated or ’ 5 Transferred from

Reopened

Another District

(specify)

’ 6 Multidistrict Litigation Transfer

’ 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI.

CAUSE OF ACTION

5 U.S.C. § 706(2)
Brief description of cause:

Rescission of DACA violates the APA, Equal Protection violation, 5th Am DP clause, and Regulatory Flexibility Act

VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

IF

ANY(Local

Rule

50.4

(See instructions):
letter forthcoming)JUDGE

Nicholas G. Garaufis

DOCKET NUMBER 16-cv-4756

DATE
09/06/2017
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s Lourdes M. Rosado

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APPLYING IFP

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Case 1:17-cv-05228 Document 1-1 Filed 09/06/17 Page 2 of 5 PageID #: 60
CERTIFICATION OF ARBITRATION ELIGIBILITY
Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000, exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a certification to the contrary is filed.

I, _L_ou_rd_e_s M_._R_o_sa_d_o ___________, counsel for _N_ew__Yo_rk_, _et_a_l. _________, do hereby certify that the above captioned civil action is ineligible for compulsory arbitration for the following reason(s):

monetary damages sought are in excess of $150,000, exclusive of interest and costs,

the complaint seeks injunctive relief,

the matter is otherwise ineligible for the following reason

DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1

N/A

Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

RELATED CASE STATEMENT (Section VIII on the Front of this Form)

Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a) provides that “A civil case is “related” to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be deemed “related” to another civil case merely because the civil case: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that “Presumptively, and subject to the power of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still pending before the court.”

NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)

1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk County:_N_o_______________________

2.) If you answered “no” above: a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk County?_N_o_______________________

b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern District?_Y_es_______________________

If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau or Suffolk County?______________________
(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).

BAR ADMISSION

I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.

Yes

No

Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?

Yes (If yes, please explain)

No

I certify the accuracy of all information provided above.
Signature:__/s__L__o_u_r_d_e__s__M__. _R__o_s_a__d_o____________________

Case 1:17-cv-05228 Document 1-1 Filed 09/06/17 Page 3 of 5 PageID #: 61
Civil Cover Sheet Attachment Defendants Donald Trump, in His Official Capacity as President of The United States U.S. Department of Homeland Security Elaine C. Duke, in Her Official Capacity U.S. Citizenship and Immigration Services U.S. Immigration and Customs Enforcement The United States of America

MAURA HEALEY Attorney General for the Commonwealth of Massachusetts
Jonathan B. Miller (Bar No. JM3508) Genevieve C. Nadeau* Abigail B. Taylor* Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 jonathan.miller@state.ma.us genevieve.nadeau@state.ma.us abigail.taylor@state.ma.us Tel. (617) 727-2200

ERIC T. SCHNEIDERMAN Attorney General of the State of New York
Lourdes M. Rosado, Bureau Chief Sania Khan, Assistant Attorney General Diane Lucas, Assistant Attorney General Ajay Saini, Assistant Attorney General Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 23rd Floor New York, New York 10271 Lourdes.Rosado@ag.ny.gov Sania.Khan@ag.ny.gov Diane.Lucas@ag.ny.gov Ajay.Saini@ag.ny.gov Tel. (212) 416-6438 Fax (212) 416-8074
BOB FERGUSON Attorney General of the State Washington
Robert W. Ferguson,* WSBA #26004 Attorney General Colleen M. Melody,* WSBA #42275 Civil Rights Unit Chief Marsha Chien,* WSBA #47020 Assistant Attorney General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 ColleenM1@atg.wa.gov MarshaC@atg.wa.gov Tel. (206) 464-7744

Case 1:17-cv-05228 Document 1-1 Filed 09/06/17 Page 4 of 5 PageID #: 62

GEORGE JEPSEN Attorney General of the State of Connecticut
Mark F. Kohler* Assistant Attorney General 55 Elm Street Hartford, CT 06106
DOUGLAS S. CHIN Attorney General of the State of Hawaii
Donna Kalama* Deputy Attorney General State of Hawaii, Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Tel: (808) 586-1282

KARL A. RACINE Attorney General for the District of Columbia
Robyn R. Bender* Deputy Attorney General Public Advocacy Division 441 4th Street, NW Suite 650 North Washington, DC 20001 Tel. (202) 724-6610 Fax (202) 730-0650
LISA MADIGAN Attorney General of the State of Illinois
Karyn L. Bass Ehler,* Chief, Civil Rights Bureau Harpreet Khera,* Deputy Bureau Chief, Special Litigation Bureau Anna Crane,* Assistant Attorney General Caitlyn McEllis,* Assistant Attorney General Jeff VanDam,* Assistant Attorney General Civil Rights Bureau Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Tel. (312) 814-3400 Fax (312) 814-3212

THOMAS J. MILLER Attorney General of the State of Iowa
Jeffrey S. Thompson* Solicitor General Office of the Attorney General of Iowa 1305 E. Walnut Street Des Moines, IA 50319 Jeffrey.Thompson@Iowa.gov Tel. 515 281 4419 Fax. 515 281 4209

HECTOR H. BALDERAS Attorney General of the State of New Mexico
Tania Maestas,* Deputy Attorney General Ari Biernoff,* Assistant Attorney General Jennie Lusk,* Assistant Attorney General New Mexico Office of the Attorney General 408 Galisteo St. Santa Fe, NM 87501 Tel. (505) 490-4060 Fax (505) 490-4883

Case 1:17-cv-05228 Document 1-1 Filed 09/06/17 Page 5 of 5 PageID #: 63

JOSH STEIN Attorney General of the State of North Carolina
Sripriya Narasimhan* North Carolina Department of Justice 114 W. Edenton Street Raleigh, North Carolina 27603 Tel. (919) 716-6400
JOSH SHAPIRO Attorney General of Commonwealth of Pennsylvania
Jonathan Scott Goldman,* Executive Deputy Attorney General, Civil Law Division Michael J. Fischer,* Chief Deputy Attorney General, Impact Litigation Section Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA 17120 Tel. (717) 787-3391
MARK R. HERRING Attorney General of the State of Virginia
Matthew R. McGuire,* Acting Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219
PETER KILMARTIN Attorney General of the State of Rhode Island
Peter Kilmartin* RI Office of the Attorney General 150 South Main Street Providence, RI 02903
*Pro hac vice motions will be forthcoming.

ELLEN F. ROSENBLUM Attorney General of the State of Oregon
Brian De Haan* #4565396 Assistant Attorney General Trial Attorney brian.a.dehaan@doj.state.or.us Tel. (971) 673-1880 Fax (971) 673-5000
THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont
Benjamin D. Battles,* Solicitor General Julio A. Thompson,* Assistant Attorney General, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, Vermont 05609 benjamin.battles@vermont.gov Tel. (802) 828-5500 Fax (802) 828-3187
MATTHEW DENN Attorney General of the State of Delaware
Attorney General Matt Denn* Delaware Department of Justice Carvel State Building 820 N. French St. Wilmington, DE 19801

Case 1:17-cv-05228 Document 1-2 Filed 09/06/17 Page 1 of 5 PageID #: 64

DECLARATIONS & EXHIBITS PLACEHOLDER
(CD-ROM with Exhibits will be delivered to Clerk’s Office)

Exhibit # 1
2

Title USCIS DACA Data Census Bureau Presentation on the Foreign-Born Population in the United States

3

Decl. Essig, Wiehe and Hill

4

Decl. Brannon

5

Decl. Wong

6

Decl. Cesar Andrade

7

Massachusetts Department of Higher Education Memorandum

8

Decl. Paul Mutty

9

Massachusetts Department of Motor Vehicles ID Requirements

The Latino Migration Project Report on The DACA Program in North Carolina 10

11

Decl. Carrizales

12

Decl. Milliken

13

DHS DACA Memorandum (2012)

14

USCIS Help Center, DACA FAQs

15

Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu

16

USCIS Help Center, How do I request consideration of DACA?

17

USCIS Help Center, I-821D, Consideration of DACA

DHS, National Standard Operating Procedure (SOP): Deferred Action for

18

Childhood Arrivals (DACA)

USCIS Help Center, How will USCIS evaluate my request for renewal of DACA? 19

Cato Institute Report on The Economic and Fiscal Impact of Repealing DACA 20

Center for American Progress, DACA Grantees Economic and Educational Gains

21

Continue to Grow

Case 1:17-cv-05228 Document 1-2 Filed 09/06/17 Page 2 of 5 PageID #: 65

Center for American Progress, New Study of DACA Beneficiaries Shows Positive

22

Economic and Educational Outcomes

23

USCIS Help Center, I-131, Application for Travel Document

24

Sample DACA Approval Notice

USCIS Help Center, Will the information I share in my request for DACA be used

25

for immigration enforcement purposes?

USCIS Help Center, If USCIS does not exercise deferred action in my case will I

26

be placed in removal proceedings?

USCIS Help Center, If my DACA case is referred to ICE for immigraiton

enforcement purposes or if I receive an NTA, will information related to my

27

family members and guardians also be referred to ICE for immigration

enforcement purposes?

USCIS Help Center, If I provide my employee with information regarding his or

her employment to support a request for consideration of DACA, will that

28

information be used for immigration enforcement purposes against me and/or my

company?

29

TIME Magazine, Person of the Year 2016

Daily Mail, Trump says he's working on a plan to accommodate DREAMers 'very

30

happy'

31

CNN, Transcript of CNN Town Hall with Speaker Paul Ryan

ABC News, Transcript of ABC News anchor David Muir interview with Donald

32

Trump

Politico, Wary Democrats look to Kelly for answers on immigration 33

34

Associated Press, Transcript of interview with Trump

Washington Post, Full text: Donald Trump announces a presidential bid 35

Fox News, At GOP debate, Trump says 'stupid' U.S leaders are being duped by

36

Mexico

Washington Post, First Trump booted Univision anchor Jorge Ramos out of his

37

news conference. Then things got interesting

Donald Trump Twitter, The protestors in New Mexico were thugs who were

38

flying the Mexican flag.

Donald Trump Twitter, Many of the thugs that attacked peaceful Trump

39

supporters in SJ were illegals

Washington Post, Trump's personal, racially tinged attacks on federal judge alarm

40

legal experts

41

CBS News, Face the Nation transcript June 5, 2016: Trump

Case 1:17-cv-05228 Document 1-2 Filed 09/06/17 Page 3 of 5 PageID #: 66

Washington Post, Trump supporters false claim that Trump U judge is a member

42

of a pro-immigrant group

Boston Globe, 'Passionate' Trump fans behind homeless man's beating? 43

Washington Post, 'Trump on immigration: There are 'bad hombres' in the United

44

States

Washington Post, 'This deal will make me look terrible': Full transcripts of

45

Trump's calls with Mexico and Australia

NYTimes, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on

46

Illegal Immigration

Hearing on the ICE and CBP F.Y. 2018 Budget, 2017 WLNR 18737622 47

48

CNN, ICE Director: Undocumented immigrants 'should be afraid'

Fox News, Sessions defends immigration policies after reported 'DREAMer'

49

deportation

American Immigration Council, New Americans in New Mexico; The Political

50

and Economic Power of Immigrants, Latinos and Asians in the Land of

Enchantment

51

DHS, Privacy Policy 2017-01

52

Decl. MOIA

Center for American Progress, A New Threat to DACA Could Cost States Billions

53

of Dollars

ITEP, State & Local Contributions of Young Undocumented Immigrants 54

55

Decl. Alejandra Perez

56

Decl. Paul Quinonez

57

Decl. Phil Ballinger

58

Decl. Lucila Loera

59

Decl. Rebecca Thompson

60

Decl. Reina Guevera

61

Decl. Umass

62

Decl. Alexandra Monroe

63

Decl. Ayesha-Blackwell Hawkins

64

Decl. Camilla Glatt

65

Decl. Kaplan

66

UIC, Resources for Undocumented Students

ISU, Admissions and Financial Aid for Undocumented Students Admissions 67

68

U of I, Undocumented Applicants, Illinois Admissions

69

Decl. Cairo Mendes

Case 1:17-cv-05228 Document 1-2 Filed 09/06/17 Page 4 of 5 PageID #: 67

70

Decl. I.V.

71

Decl. I.T.

72

Decl. Renata Teodoro

U of H News, U of H and state leaders respond to DACA program termination 73

74

DHS, Memorandum Rescinding DACA (Sept. 5, 2017)

75

DOJ, Attorney General Remarks on DACA

76

Executive Order 13768, "Enhancing Public Safety in the Interior of the United States"

77

NYS Office of Health Insurance Programs, Letter from Director Judith Arnoald to Local District Commissioners, Medicaid Directors

78

NYSED, Board of Regents Approves Regulations to Allow DACA Recipients to Apply for Teacher Certification and Professional Licenses

79

Rhode Island State Center, Census Data Bulletin

80

MPI, State/County DACA Estimates

81

Pew Research Center, U.S. unauthorized immigration population estimates

82

Technician, Immigrants still face obstacles to go to college despite DACA

83

UNC, Our 17 Campuses

84

North Carolina History Project, Charlotte Soars to Become the Nation's Second Largest Financial Center

85

Greyhill Advisors, GDP by State

86

The Research Triangle Park, The Future of Great Ideas

Latino Migration Project, The Deferred Action for Childhood Arrivals (DACA)

87

program in North Carolina, Perspectives from Immigrants and Community-Based

Organizations

88

CNN, Administartion Memo: DACA recipients should prepare for departure

89

DHS, FAQs: Recission of DACA

90

Decl. Martin Shivley

91

Decl. Kim Ann Garza

92

Decl. Rich Jones

93

Mass Dept. of Higher Education, Time to Lead Report

94

NAFSA, New Mexico Benefits from International Students

95

Handbook on Economics of International Migration, Immigration and Entrepreneurship

Case 1:17-cv-05228 Document 1-2 Filed 09/06/17 Page 5 of 5 PageID #: 68

96

Decl. Madsen

97

Decl. Jeka

98

Decl. Naveed

99

Decl. SUNY

100 Census Bureau, New Mexico QuickFacts

101 Migration Policy Institute, New Mexico Profile

102 Fiscal Policy Institute, Immigrant Small Business Owners

103 Santa Fe New Mexican, Report: Dreamers contribute millions in taxes to N.M.

Census Bureau, Current Population Survey, Table 4B: Reported Voting and

104

Registration by Sex and Race

Americas Society/Council of Americas, Interactive of Immigraiton on the Housing

105

Market

Case 1:17-cv-05228 Document 1-3 Filed 09/06/17 Page 1 of 2 PageID #: 69

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) U.S. Department of Homeland Security Attn: Acting Secretary of Department of Homeland Security, Elaine C. Duke 3801 Nebraska Ave NW Washington, D.C. 20016

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-3 Filed 09/06/17 Page 2 of 2 PageID #: 70

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:17-cv-05228 Document 1-4 Filed 09/06/17 Page 1 of 2 PageID #: 71

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) U.S. Department of Homeland Security Office of the General Counsel Attn: Acting General Counsel, Joseph Maher 3801 Nebraska Ave NW Washington, D.C. 20016

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-4 Filed 09/06/17 Page 2 of 2 PageID #: 72

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:17-cv-05228 Document 1-5 Filed 09/06/17 Page 1 of 2 PageID #: 73

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) DONALD TRUMP, in his official capacity as President of the United States The White House 1600 Pennsylvania Avenue, NW Washington D.C. 20500

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-5 Filed 09/06/17 Page 2 of 2 PageID #: 74

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:17-cv-05228 Document 1-6 Filed 09/06/17 Page 1 of 2 PageID #: 75

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Immigration and Customs Enforcement Varick Street Service Processing Center – Office of Chief Counsel (New York) 201 Varick Street, Room 1130 New York, NY, 10014 Phone: (212) 863-3550

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-6 Filed 09/06/17 Page 2 of 2 PageID #: 76

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:17-cv-05228 Document 1-7 Filed 09/06/17 Page 1 of 2 PageID #: 77

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) USCIS Headquarters Attn:? 20 Massachusetts Avenue Washington, D.C. 20529

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-7 Filed 09/06/17 Page 2 of 2 PageID #: 78

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:17-cv-05228 Document 1-8 Filed 09/06/17 Page 1 of 2 PageID #: 79

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) USCIS - New York City Field Office Attn: Barbara Felska, Deputy Field Office Director 26 Federal Plaza, 3rd Floor, Room 3-120 New York, NY 10278

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-8 Filed 09/06/17 Page 2 of 2 PageID #: 80

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 1:17-cv-05228 Document 1-9 Filed 09/06/17 Page 1 of 2 PageID #: 81

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
___E_a_s_te_r_n_D_ iDstirsitcrticotfoNfe_w__Y_o_r_k____

New York, et al.,
Plaintiff(s)
v. Trump, et al.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 1:17-CV-5228

)

)

)

)

)

SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) THE UNITED STATES OF AMERICA Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Lourdes M. Rosado
New York State Office of the Attorney General 120 Broadway New York, NY 10271

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

DOUGLAS C. PALMER
CLERK OF COURT

N/A

Signature of Clerk or Deputy Clerk

Case 1:17-cv-05228 Document 1-9 Filed 09/06/17 Page 2 of 2 PageID #: 82

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:17-CV-5228

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

’ I personally served the summons on the individual at (place)

on (date)

; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

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 ACO
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:17-cv-05228-NGG-VMS

State Of New York et al v. Donald Trump et al Assigned to: Judge Nicholas G. Garaufis Referred to: Magistrate Judge Vera M. Scanlon related Case: 1:16-cv-04756-NGG-VMS Cause: 05:551 Administrative Procedure Act

Date Filed: 09/06/2017 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State Of New York

represented by Ajay Saini New York State Office of the Attorney General 120 Broadway, 23rd Flr Brooklyn, NY 10271 212-416-8714 Fax: 212-416-6030 Email: ajay.saini@ag.ny.gov TERMINATED: 01/17/2020 ATTORNEY TO BE NOTICED

Anisha S Dasgupta NYS Office of the Attorney General Division of Appeals and Opinions 28 Liberty Street Ste 23rd Floor New York, NY 10005 212-416-8921 Email: anisha.dasgupta@ag.ny.gov ATTORNEY TO BE NOTICED

Diane Omotayo Lucas NY Attorney General 120 Broadway New York, NY 10271 212-416-8149 Fax: 212-416-8074 Email: diane.lucas@ag.ny.gov

Plaintiff State of Massachusetts

TERMINATED: 07/13/2018 ATTORNEY TO BE NOTICED
Joseph John Wardenski NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-8441 Email: joseph.wardenski@ag.ny.gov ATTORNEY TO BE NOTICED
Matthew B Colangelo New York State Office of the Attorney General 28 Liberty Street, 19th Floor New York, NY 10005 212-416-6057 Fax: 212-416-6007 Email: matthew.colangelo@ag.ny.gov ATTORNEY TO BE NOTICED
Sania Waheed Khan NYS Office of the Attorney General 120 Broadway New York, NY 10271 (212)416-8534 Fax: (212)416-6009 Email: sania.khan@ag.ny.gov ATTORNEY TO BE NOTICED
Lourdes Maria Rosado New York Civil Liberties Union 1 Whitehall Street Ste 3rd Floor New York, NY 10004 212-607-3316 Email: lrosado@nyclu.org TERMINATED: 02/12/2019 ATTORNEY TO BE NOTICED
represented by Genevieve Clair Nadeau Massachusetts Attorney General's Office One Ashburton Place 18th Floor Boston, MA 02108

617-963-2121 Fax: 617-727-5762 Email: genevieve.nadeau@protectdemocracy.org TERMINATED: 03/05/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail Taylor Massachusetts Office of the Attorney General 1 Ashburton Place, 18th Floor Boston, MA 02108 617-963-2232 Fax: 617-727-5762 Email: abigail.taylor@state.ma.us PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Jonathan B. Miller Office of the Attorney General One Ashburton Place Boston, MA 02108 617-963-2073 Fax: 617-727-5762 Email: jonathan.miller@state.ma.us TERMINATED: 01/02/2020 ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Washington

represented by Marsha Chien Washington State Attorney General's Office 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-464-7744 Fax: 206-464-6451 Email: marshac@atg.wa.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Colleen Melody Washington State Attorney General's Office 800 Fifth Avenue Suite 2000 Seattle, WA 98104 206-464-7744 Fax: 206-464-6451 Email: colleenm1@atg.wa.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Robert W. Ferguson Washington State Attorney General's Office Po Box 40100 Olympia, WA 98504 206-464-7744 Fax: 206-646-6451 Email: chamenew@atg.wa.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo

Plaintiff State of Connecticut
Plaintiff State of Delaware

(See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Mark F. Kohler Connecticut Office of the Attorney General 165 Capitol Avenue Ste 5000 Hartford, CT 06106 860-808-5020 Fax: 860-808-5347 Email: mark.kohler@ct.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron R. Goldstein Delaware Department of Justice 820 North French Street 6th Floor Wilmington, DE 19801 302-577-8326 Fax: 302-577-6630 Email: aaron.goldstein@state.de.us

Plaintiff District of Columbia

PRO HAC VICE ATTORNEY TO BE NOTICED
Aleine M. Cohen Delaware Department of Justice 820 North French Street 6th Floor Wilmington, DE 19801 302-577-8940 Fax: 302-577-6630 Email: aleine.cohen@state.de.us PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Christian Douglas Wright Delaware Department of Justice 820 N. French Street Wilmington, DE 19801 302-577-8944 Email: christian.wright@delaware.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Valerie M. Nannery 2208 Good Hope Road SE Washington, DC 20020 202-577-4436 Email: valerie.nannery@dc.gov TERMINATED: 10/11/2019

Plaintiff State of Hawaii

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathleen Marie Konopka DC Office of the Attorney General 400 6th Street, N.W. Ste 10th Floor Washington, DC 20001 202-724-6610 Email: kathleen.konopka@dc.gov ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Deirdre Marie-Iha Department of the Attorney General 425 Queen Street Honolulu, HI 96813 808-586-1292 Fax: 808-586-1239 Email: deirdre.marie-iha@hawaii.gov TERMINATED: 09/11/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Donna H. Kalama Department of the Attorney General State Of Hawaii 425 Queen Street Honolulu, HI 96813 808-586-1224 Fax: 808-586-1239 Email: donna.h.kalama@hawaii.gov

Plaintiff State of Illinois

TERMINATED: 05/21/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert T. Nakatsuji Department of the Attorney General 425 Queen Street Honolulu, HI 96813 808-586-1360 Fax: 808-586-8116 Email: robert.t.nakatsuji@hawaii.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Anna P. Crane Illinois Attorney General 100 W Randolph St 11th Floor Chicago, IL 60601 312-814-5028 Fax: 312-814-4452 Email: acrane@atg.state.il.us TERMINATED: 02/27/2019

Plaintiff State of Iowa

PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey VanDam Office of the Illinois Attorney General 100 W Randolph St Chicago, IL 60601 312-814-3400 Fax: 312-814-3212 Email: jvandam@atg.state.il.us PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Nathanael Blake Office of the Iowa Attorney General 1305 E Walnut St Des Moines, IA 50319 515-281-4325 Fax: 515-281-4209 Email: nathan.blake@iowa.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo

Plaintiff State of New Mexico
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Tania Maestas NM Office of the Attorney General Po Drawer 1508 408 Galisteo Street Santa Fe, NM 87504 505-490-4877 Fax: 505-490-4883 Email: tmaestas@nmag.gov LEAD ATTORNEY PRO HAC VICE
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Ari Biernoff New Mexico Attorney General's Office Po Drawer 1508 Santa Fe, NM 87504 505-490-4058 Fax: 505-490-4881 Email: abiernoff@nmag.gov TERMINATED: 02/06/2019 ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED

State of North Carolina
Plaintiff State of Oregon

represented by Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Alexander De Haan Oregon Department of Justice Oregon Department of Justice 100 Sw Market Street Portland, OR 97201 971-673-1880 Fax: 971-673-1884 Email: brian.a.dehaan@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Sarah Weston Oregon Department of Justice 100 Sw Market Street Portland, OR 97201 971-673-1880 Fax: 971-673-5000 Email: sarah.weston@doj.state.or.us PRO HAC VICE ATTORNEY TO BE NOTICED
Scott Kaplan Oregon Department of Justice 100 Sw Market Street Portland, OR 97201

Plaintiff State of Pennsylvania

971-673-1880 Fax: 971-673-5000 Email: scott.kaplan@doj.state.or.us PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Fischer Office of Attorney General Strawberry Square, 16th Floor Harrisburg, PA 17120 215-560-2402 Fax: 215-560-2202 Email: mfischer@attorneygeneral.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Aimee D. Thomson PA Office of the Attorney General Impact Litigation Section 1600 Arch Street Suite 300 Philadelphia, PA 19103 267-940-6696 Email: athomson@attorneygeneral.gov ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Jonathan Goldman Pennsylvania Office of Attorney General

Plaintiff State of Rhode Island

Civil Law Division 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-1471 Fax: 717-772-4526 Email: jgoldman@attorneygeneral.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Roach Rhode Island Attorney General 150 South Main Street Providence, RI 02903 (401)274-4400 Fax: (401)222-2995 Email: aroach@riag.ri.gov PRO HAC VICE
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Michael Field Rhode Island Attorney General 150 South Main Street Providence, RI 02903 401-274-4400 Fax: 401-222-2995 Email: mfield@riag.ri.gov ATTORNEY TO BE NOTICED
Rebecca Partington Rhode Island Attorney General

Plaintiff State of Vermont

150 South Main Street Providence, RI 02903 401-274-4400 Fax: 401-222-2995 Email: rpartington@riag.ri.gov ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Benjamin Daniel Battles Vermont Attorney General's Office 109 State Street Montpelier, VT 05609 (802)828-3171 Fax: (802)828-3187 Email: benjamin.battles@vermont.gov ATTORNEY TO BE NOTICED
Julio A. Thompson Vermont Attorney General 109 State Street Montpelier, VT 05609 802-828-3186 Fax: 802-828-2154 Email: julio.thompson@vermont.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Virginia

Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew R. McGuire Office of the Attorney General 202 North Ninth Street Richmond, VA 23219 804-786-2071 Fax: 804-371-0200 Email: mmcguire@oag.state.va.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Kallen Office of the Attorney General 202 North 9th Street Richmond, VA 23219 804-786-7704 Email: mkallen@oag.state.va.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Lourdes Maria Rosado (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Colorado
V. Defendant Donald Trump in his official capacity as President of the United States

represented by Eric Olson 1300 Broadway, 10th Floor Denver, CO 80203 720-508-6548 Email: eric.olson@coag.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jacqueline C. Melmed Office of the Governor of Colorado 200 E Colfax Ave Room 121 Denver, CO 80203 303-866-6390 Fax: 303-866-6390 Email: jackic.melmed@state.co.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anisha S Dasgupta (See above for address) ATTORNEY TO BE NOTICED
Matthew B Colangelo (See above for address) ATTORNEY TO BE NOTICED
Sania Waheed Khan (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch Po Box 883 Washington, DC 20044 202-514-3374 Fax: 202-616-8460 Email: brad.rosenberg@usdoj.gov

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland DOJ-Civ 1100 L St, NW Washington, DC 20005 202-514-1280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001 202-879-3855 Email: brett.a.shumate@usdoj.gov TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Christopher D. Dodge DOJ-Civ Civil Division 1100 L Street NW Washington, DC 20005 202-598-5571 Email: christopher.d.dodge@usdoj.gov ATTORNEY TO BE NOTICED
Galen Thorp DOJ-Civ Federal Programs Branch 1100 L Street NW Washington, DC 20530 202-514-4781 Email: galen.thorp@usdoj.gov ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo U. S. Attorney's Office 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6288 Fax: 718-254-7489 Email: joseph.marutollo@usdoj.gov

Defendant
U.S. Department of Homeland Security

ATTORNEY TO BE NOTICED
Kate Bailey U.S. Department of Justice Civil Division, Federal Programs 20 Massachusetts Ave Nw Rm 6139 Washington, DC 20001 202-514-9239 Fax: 202-616-8470 Email: kate.bailey@usdoj.gov ATTORNEY TO BE NOTICED
Stephen M. Pezzi U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue Nw Washington, DC 20530 202-305-8576 Fax: 202-616-8470 Email: stephen.pezzi@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brad Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Christopher D. Dodge (See above for address) ATTORNEY TO BE NOTICED
Galen Thorp (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirstjen M. Nielsen in her official capacity TERMINATED: 08/28/2020

Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Christopher D. Dodge (See above for address) ATTORNEY TO BE NOTICED
Galen Thorp (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Pezzi

(See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. Citizenship and Immigration Services

represented by Brad Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brett Shumate (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED

Christopher D. Dodge (See above for address) ATTORNEY TO BE NOTICED

Galen Thorp (See above for address) ATTORNEY TO BE NOTICED

Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED

Kate Bailey (See above for address) ATTORNEY TO BE NOTICED

Stephen M. Pezzi (See above for address) ATTORNEY TO BE NOTICED

Defendant
U.S. Immigration and Customs Enforcement

represented by Brad Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States of America

Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED
Christopher D. Dodge (See above for address) ATTORNEY TO BE NOTICED
Galen Thorp (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate (See above for address) TERMINATED: 04/11/2019 ATTORNEY TO BE NOTICED

Christopher D. Dodge (See above for address) ATTORNEY TO BE NOTICED

Galen Thorp (See above for address) ATTORNEY TO BE NOTICED

Joseph Anthony Marutollo (See above for address) ATTORNEY TO BE NOTICED

Kate Bailey (See above for address) ATTORNEY TO BE NOTICED

Stephen M. Pezzi (See above for address) ATTORNEY TO BE NOTICED

Defendant
Chad Wolf Chad Wolf, in his official capacity as Acting Secretary of Homeland Security

represented by Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher D. Dodge (See above for address) ATTORNEY TO BE NOTICED

Amicus
Fred T. Korematsu Center for Law and Equality 1215 East Columbia St Seattle, WA 98122 206-398-4025

represented by Robert Chang Ronald A. Peterson Law Clinic 1215 East Columbia St Seattle, WA 98122 206-398-4130 Fax: 206-398-4036 Email: changro@seattleu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Lawyers' Committee for Civil Rights Under Law

represented by Matthew T. McLaughlin Venable LLP

1290 Avenue of the Americas New York, NY 10104 212-307-5500 Email: MTMcLaughlin@Venable.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin L. Saad Venable LLP 600 Massachusetts Ave Nw Washington, DC 20001 202-344-4000 Fax: 202-344-8300 Email: mlsaad@venable.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Anthony Guerra Venable LLP 1290 Avenue of The Americas 20th Floor New York, NY 10104 212-808-5670 Fax: 212-307-5598 Email: maguerra@venable.com ATTORNEY TO BE NOTICED
Sameer Parvez Sheikh Venable LLP 600 Massachusetts Ave Nw Washington, DC 20001 202-344-4168 Fax: 202-344-8300 Email: spsheikh@venable.com PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Samuel Silverstein Lawyers' Committee for Civil Rights Under Law 1401 New York Ave Nw Suite 400 Washington, DC 20005 202-662-8316 Fax: 202-783-0857 Email:

Amicus United We Dream
Amicus Government of the United Mexican States

tsilverstein@lawyerscommittee.org ATTORNEY TO BE NOTICED
William D. Coston Venable LLP 600 Massachusetts Ave, Nw Washington, DC 20001 202-344-4813 Fax: 202-344-8300 Email: wdcoston@venable.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Peter Karanjia DLA Piper LLP 500 Eighth Street, NW Washington, DC 20004 202-799-4135 Email: peter.karanjia@us.dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leon Fresco Holland & Knight LLP 800 17th Street, Nw Suite 1100 Washington, DC 20006 202-469-5129 Fax: 202-955-5564 Email: leon.fresco@hklaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard Sokol Holland & Knight LLP 31 West 52nd Street New York, NY 10019 212-513-3200 Fax: 212-385-9010 Email: howard.sokol@hklaw.com ATTORNEY TO BE NOTICED

Amicus Current and Former Law Enforcement Leaders
Amicus 114 U.S. - Based Companies

represented by Caryn Cecelia Lederer Hughes Socol Piers Resnick & Dym 70 West Madison Street Suite 4000 Chicago, Il 60602 312-604-2622 Fax: 312-604-2623 Email: clederer@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew J. Pincus Mayer Brown, LLP 1999 K Steet Nw Washington, DC 20006 202-263-3000 Fax: 202-263-5220 Email: apincus@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen Lin Mayer Brown LLP 1221 Avenue Of The Americas New York, NY 10020 212-506-2538 Fax: 212-849-5539 Email: klin@mayerbrown.com TERMINATED: 02/27/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Rory Schneider Mayer Brown LLP 1221 Avenue Of The Americas New York, NY 10020 UNITED STA 212-506-2157 Fax: 212-849-5775 Email: rschneider@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Partnership for Educational Justice
Amicus DelawareCAN: The Delaware Campaign for Achievement Now
Amicus HawaiiKidsCAN
Amicus

represented by Kaitland McCann Kennelly Cooley LLP 55 Hudson Yards New York, NY 10001 212-479-6643 Email: kkennelly@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Schwartz Cooley LLP 1114 Avenue Of The Americas New York, NY 10036 212-479-6000 Fax: 212-479-6275 Email: wschwartz@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kaitland McCann Kennelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kaitland McCann Kennelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

NewMexicoKidsCAN
Amicus Virginia Excels
Amicus Wendy M Star
Amicus New York University

represented by Kaitland McCann Kennelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kaitland McCann Kennelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Schwartz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Wendy Michelle Star New York State United Teachers 52 Broadway, 9th Floor Ny, NY 10004 (212)228-3382 Fax: 212-995-2347 Email: wstar@nysutmail.org ATTORNEY TO BE NOTICED
represented by Ashley C. Ferguson Proskauer Rose LLP 11 Times Square New York, NY 10036 212-969-3674 Fax: 212-969-2900 Email: aferguson@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa DiGrande Proskauer Rose LLP

11 Times Square New York, NY 10036 212-969-3626 Fax: 212-969-2900 Email: mdigrande@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth D. Fiur Proskauer Rose LLP 11 Times Square New York, NY 10036 212-969-3146 Fax: 212-969-2900 Email: sfiur@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Shiloh Rainwater Proskauer Rose LLP Eleven Times Square New York, NY 10036 212-969-3563 Fax: 212-969-2900 Email: srainwater@proskauer.com TERMINATED: 08/20/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven E. Obus Proskauer Rose, LLP 11 Times Square New York, NY 10036 212-969-3525 Fax: 212-969-2900 Email: sobus@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tiffany Woo Proskauer Rose LLP Eleven Times Square New York, NY 10036

Amicus Asian Law Alliance
Amicus Canal Alliance
Amicus Centro Legal de la Raza
Amicus Children's Law Center of Massachusetts (CLCM)
Amicus Community Legal Services in East Palo Alto (CLSEPA)
Amicus Dolores Street Community Services

212-969-3000 Fax: 212-969-2900 Email: twoo@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson Cooley LLP 3175 Hanover Street Palo Alto, CA 93404 650-843-5000 Email: kwilson@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus East Bay Sanctuary Covenant

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Heartland Alliance's National Immigrant Justice Center (NIJC)

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Hebrew Immigrant Aid Society (HIAS) Pennsylvania

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Immigrant Legal Resource Center (ILRC)

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Justice Center of Southeast Massachusetts

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Just Neighbors

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Legal Aid Justice Center (LAJC)

represented by Kara Corinne Wilson (See above for address)

Amicus The Legal Aid Society of San Mateo County (LASSMC)
Amicus Legal Services for Children (LSC)
Amicus Massachusetts Law Reform Institute (MLRI)
Amicus National Justice for Our Neighbors
Amicus New York Legal Assistance Group (NYLAG)
Amicus Northwest Immigrant Rights Project
Amicus OneJustice

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kara Corinne Wilson (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Rocky Mountain Immigrant Advocacy Network (RMIAN)

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Services, Immigrant Rights, and Education Network (SIREN)

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
City of Los Angeles Los Angeles City Attorney's Office 200 N. Main Street 800 City Hall East Los Angeles, CA 90012 (213)978-8130

represented by Michael Dundas Los Angeles City Attorney 200 North Main Street, 7th Floor Los Angeles Los Angeles, CA 90012 UNITED STA 213-978-8130 Fax: 213-978-8222 Email: mike.dundas@lacity.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus the Anti-Defamation League

represented by John Barney Harris Frankfurt Kurnit Klein & Selz, P.C. 28 Liberty Street New York, NY 10005 212-980-0120 Email: jharris@fkks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus LatinoJustice PRLDEF, Inc.

represented by Fernando A. Bohorquez , Jr. Baker & Hostetler LLP 45 Rockefeller Plaza New York, NY 10111

Amicus Alianza Americas
Amicus Arab American Institute
Amicus The Asian American Legal Defense and Education Fund
Amicus Asian American Bar Association of New York
Amicus Asian Americans Advancing Justice
Amicus Asian Americans Advancing Justice-Asian Law Caucus
Amicus

212-589-4252 Fax: 212-589-4201 Email: fbohorquez@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ASPIRA
Amicus Council on American-Islamic Relations
Amicus CUNY DREAMers
Amicus Dream Action Coalition
Amicus The Hispanic Association of Colleges and Universities
Amicus The Hispanic National Bar Association
Amicus Hispanic Federation, Inc.
Amicus

represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

League of United Latin American Citizens
Amicus New York State Youth Leadership Council
Amicus Presente.org
Amicus RU Dreamers
Amicus UnidosUS
Amicus The Legal Aid Society
Amicus African Services Committee

represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Fernando A. Bohorquez , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner Cleary Gottlieb Steen and Hamilton LLP One Liberty Plaza New York, NY 10006 212-225-2000 Fax: 212-225-3999 Email: jkolodner@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address)

Amicus Immigrant Justice Corps
Amicus MinKwon Center for Community Action
Amicus South Bronx United
Amicus UnLocal
Amicus The Door
Amicus Brown University

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff O'Melveny & Myers 7 Times Square New York, NY 10036 212-326-2000 Fax: 212-326-2061 Email: ssarnoff@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus California Institute of Technology
Amicus Columbia University

Danielle Carim Gray O'Melveny & Myers LLP 7 Times Square New York, NY 10036 212-326-2000 Fax: 212-326-2061 Email: dgray@omm.com TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler O'Melveny & Myers 7 Times Square New York, NY 10036 212-326-2000 Fax: 212-326-2061 Email: jsokoler@omm.com TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray

Amicus Cornell University
Amicus Dartmouth College
Amicus

(See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Duke University

represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED

Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Emory University

represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED

Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus George Washington University

represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED

Jennifer B. Sokoler

Amicus Georgetown University
Amicus Harvard University
Amicus Massachusetts Institute of Technology

(See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Northwestern University
Amicus Stanford University

Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus University of Chicago
Amicus University of Pennsylvania
Amicus Vanderbilt University

represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED

Amicus Washington University in St. Louis
Amicus Yale University
Amicus Service Employees International Union

Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stuart M. Sarnoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Deepak Gupta Gupta Wessler PLLC 1900 L Street, Nw Suite 312

Washington, DC 20036 202-888-1741 Fax: 202-888-7792 Email: deepak@guptawessler.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
American Federation of State, County and Municipal Employees

represented by Deepak Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Communications Workers of America

represented by Deepak Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
United Farm Workers of America

represented by Deepak Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
International Union of Painters and Allied Trades

represented by Deepak Gupta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Brooklyn Defender Services

represented by Kara Corinne Wilson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Albuquerque Insight Meditation Center et al

represented by Adeel Abdullah Mangi Patterson, Belknap, Webb & Tyler LLP 1133 Avenue Of The Americas New York, NY 10036 212-336-2000 Fax: 212-336-2222

Amicus Former Federal Immigration and Homeland Security Officials
Amicus Amherst College

Email: aamangi@pbwt.com ATTORNEY TO BE NOTICED
Sirine Shebaya National Immigration Project of the National Lawyers' G 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202-656-4788 Email: sirine@nipnlg.org ATTORNEY TO BE NOTICED
Steven Alan Zalesin Patterson, Belknap, Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2110 Fax: 212-336-2111 Email: sazalesin@pbwt.com ATTORNEY TO BE NOTICED
represented by J. Wells Harrell Boies Schiller Flexner LLP 1401 New York Ave, Nw Washington, DC 20005 202-237-2727 Fax: 202-237-6131 Email: wharrell@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin Jenner & Block LLP 919 Third Avenue 37th Floor New York, NY 10022 212-891-1685 Fax: 212-891-1699 Email: kjestin@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Barnard College
Amicus Boston University
Amicus Bowdoin College
Amicus Brandeis University
Amicus Bucknell University
Amicus Carnegie Mellon University
Amicus Case Western University
Amicus

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Northeastern University

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Colby College

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Colgate University

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Emerson College

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Los Angeles Community College District

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Los Rios Community College District

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
University of Maryland-College Park

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Middlebury College

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Mount Holyoke College

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Pace University

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Rice University

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
San Mateo Community College District

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Tufts University

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Vassar College

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Washington University in St. Louis
Amicus Wellesley College
Amicus Williams College
Amicus College Confident
Amicus Empire Justice Center
Amicus The Immigrant and NonCitizen Rights Clinic at the CUNY School of Law

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Carim Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) TERMINATED: 03/01/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address)

Amicus Northern Manhattan Improvement Corporation
Amicus Northwest Immigrant Rights Project
Amicus Safe Horizon
Amicus Sosa Law
Amicus TODEC Legal Center
Amicus Volunteers of Legal Service
Amicus 27 Additional Cities and Counties

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Samuel Kolodner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus National League of Cities Amicus United States Conference of Mayors (USCM) Amicus County of Los Angeles
Amicus Constitutional Accountability Center
Amicus Morton Rosenberg

represented by Margaret Carter O'Melveny & Myers LLP O'Melveny & Myers LLP 400 South Hope Street 18th Floor Los Angeles, CA 90071 213-430-6000 Email: mcarter@omm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Suvor O'Melveny & Myers LLP 400 S. Hope Street Los Angeles, CA 90071 213-430-7669 Email: dsuvor@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw Suite 501 Washington, DC 20036 202-296-6889 Fax: 202-296-6895 Email: david@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Davies Orrick, Herrington & Sutcliffe LLP

1152 15th Street NW Washington, DC 20005 202-339-8481 Fax: 202-339-8500 Email: mark.davies@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Upnit K. Bhatti Orrick, Herrington & Sutcliffe LLP 1152 15th St NW Washington, DC 20005 315-883-6401 Email: ubhatti@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/06/2017
09/06/2017 09/06/2017 09/06/2017

# Docket Text
1 COMPLAINT State of New York, et al. against All Defendants filing fee $ 400, receipt number 0207-9807840 Was the Disclosure Statement on Civil Cover Sheet completed -NO,, filed by State of North Carolina, State of Hawaii, State of Massachussetts, State Of New York, State of Virginia, State of Pennsylvania, District of Columbia, State of Washington, State of Iowa, State of Oregon, State of Rhode Island, State of Vermont, State of Illinois, State of Connecticut, State of New Mexico, State of Delaware. (Attachments: # 1 Civil Cover Sheet, # 2 Appendix, # 3 Proposed Summons Elaine C. Duke, # 4 Proposed Summons DHS HQ, # 5 Proposed Summons Donald Trump, # 6 Proposed Summons ICE, # 7 Proposed Summons USCIS HQ, # 8 Proposed Summons USCIS NYC, # 9 Proposed Summons USA (DOJ)) (Rosado, Lourdes) (Entered: 09/06/2017)
Case assigned to Judge Allyne R. Ross and Magistrate Judge Robert M. Levy. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) (Entered: 09/06/2017)
2 Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General (Bowens, Priscilla) (Entered: 09/06/2017)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United

09/06/2017 09/07/2017 09/07/2017 09/07/2017 09/07/2017
09/07/2017

States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf . You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 09/06/2017)
4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) (Entered: 09/06/2017)
5 NOTICE of Appearance by Jonathan B. Miller on behalf of State of Massachussetts (aty to be noticed) (Miller, Jonathan) (Entered: 09/07/2017)
6 MOTION for Leave to Appear Pro Hac Vice Colleen Melody Filing fee $ 150, receipt number 0207-9810258. by State of Washington. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel, # 2 Exhibit Certificate of Good Standing - WA) (Melody, Colleen) (Entered: 09/07/2017)
7 MOTION for Leave to Appear Pro Hac Vice Robert Ferguson Filing fee $ 150, receipt number 0207-9810331. by State of Washington. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel, # 2 Exhibit Certificate of Good Standing -WA) (Melody, Colleen) (Entered: 09/07/2017)
8 MOTION to Reassign Case requesting reassignment to the Honorable Nicholas G. Garaufis, because it is related to Batalla Vidal et al. v. Baran et al., No. 1:16-cv-4756 by State Of New York, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachussetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Guzzi, Roseann) (Entered: 09/07/2017)
ORDER REASSIGNING CASE. Case reassigned to Judge Nicholas G. Garaufis and Magistrate Judge James Orenstein for all further proceedings. Judge Allyne R. Ross, Magistrate Judge Robert M. Levy no longer assigned to case Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual

Practices require such. Ordered by Chief Judge Dora Lizette Irizarry on 9/7/2017. (Bowens, Priscilla) (Entered: 09/07/2017)

09/08/2017

9 ORDER granting 6 Motion for Leave to Appear Pro Hac Vice -- Attorney Colleen Melody, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 15, 2017, Ms. Melody shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Melody shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Melody shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/8/2017. (Miao, Tiffany) (Entered: 09/08/2017)

09/08/2017

10 ORDER granting 7 Motion for Leave to Appear Pro Hac Vice -- Attorney Robert Ferguson, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 15, 2017, Mr. Ferguson shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Ferguson shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Ferguson shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/8/2017. (Miao, Tiffany) (Entered: 09/08/2017)

09/08/2017

11 NOTICE of Appearance by Colleen Melody on behalf of State of Washington (notification declined or already on case) (Melody, Colleen) (Entered: 09/08/2017)

09/08/2017

12 EXHIBIT List attaching exhibits 1-105, originally identified in ECF 12 by District of Columbia, State Of New York, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. Related document: 1 Complaint,,, filed by State of Hawaii, State of Virginia, State of Rhode Island, State Of New York, State of Iowa, State of Vermont, State of Connecticut, State of Oregon, State of Illinois, District of Columbia, State of North Carolina, State of Delaware, State of Massachusetts, State of New Mexico, State of Washington, State of Pennsylvania. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35,

# 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105) (Rosado, Lourdes) (Entered: 09/08/2017)

09/08/2017 13 NOTICE of Appearance by Ajay Saini on behalf of State Of New York (aty to be noticed) (Saini, Ajay) (Entered: 09/08/2017)

09/08/2017 14 NOTICE of Appearance by Diane Omotayo Lucas on behalf of State Of New York (aty to be noticed) (Lucas, Diane) (Entered: 09/08/2017)

09/08/2017 15 NOTICE of Appearance by Sania Waheed Khan on behalf of State Of New York (aty to be noticed) (Khan, Sania) (Entered: 09/08/2017)

09/08/2017 16 NOTICE of Appearance by Ari Biernoff on behalf of State of New Mexico (aty to be noticed) (Biernoff, Ari) (Entered: 09/08/2017)

09/11/2017 17 NOTICE of Appearance by Robert W. Ferguson on behalf of State of Washington (aty to be noticed) (Ferguson, Robert) (Entered: 09/11/2017)

09/11/2017 18 NOTICE of Appearance by Benjamin Daniel Battles on behalf of State of Vermont (aty to be noticed) (Battles, Benjamin) (Entered: 09/11/2017)

09/11/2017

19 MOTION for Leave to Appear Pro Hac Vice Marsha J. Chien Filing fee $ 150, receipt number 0207-9820306. by State of Washington. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificate of Good Standing - State of Washington, # 3 Exhibit Certificate of Good Standing - State of California) (Chien, Marsha) (Entered: 09/11/2017)

09/11/2017

20 NOTICE of Appearance by Marsha Chien on behalf of State of Washington (notification declined or already on case) (Chien, Marsha) (Entered: 09/11/2017)

09/12/2017

ORDER granting 19 Motion for Leave to Appear Pro Hac Vice -Attorney Marsha Chien, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 19, 2017, Ms. Chien shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Chien shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Chien shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/12/2017. (Miao, Tiffany) (Entered: 09/12/2017)

09/13/2017

21 MOTION for Leave to Appear Pro Hac Vice Matthew R. McGuire Filing fee $ 150, receipt number 0207-9825553. by State of Virginia. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificate of Good Standing from the Commonwealth of Virginia) (McGuire, Matthew) (Entered: 09/13/2017)

09/13/2017

22 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9827403. by State of New Mexico. (Attachments: # 1 Affidavit Affidavit for Pro Hac Vice - Tania Maestas, # 2 Certificate of Good Standing - Tania Maestas) (Maestas, Tania) (Entered: 09/13/2017)

09/13/2017

23 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9827426. by State of Hawaii. (Attachments: # 1 Notice of Motion to Admit Counsel Pro Hac Vice, # 2 Affidavit of Donna H. Kalama) (Kalama, Donna) (Entered: 09/13/2017)

09/14/2017

ORDER granting 21 Motion for Leave to Appear Pro Hac Vice -Attorney Matthew McGuire, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 21, 2017, Mr. McGuire shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. McGuire shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. McGuire shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/14/2017. (Miao, Tiffany) (Entered: 09/14/2017)

09/14/2017

ORDER granting 22 Motion for Leave to Appear Pro Hac Vice -Attorney Tania Maestas, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 21, 2017, Ms. Maestas shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Maestas shall file a notice of appearance and ensure that she receives electronic notification of activity

in this case. Ms. Maestas shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/14/2017. (Miao, Tiffany) (Entered: 09/14/2017)

09/14/2017

ORDER granting 23 Motion for Leave to Appear Pro Hac Vice -Attorney Donna Kalama, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 21, 2017, Ms. Kalama shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Kalama shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Kalama shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/14/2017. (Miao, Tiffany) (Entered: 09/14/2017)

09/14/2017

24 MOTION for Leave to Appear Pro Hac Vice by Genevieve Nadeau Filing fee $ 150, receipt number 0207-9829035. by State of Massachusetts. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificates of Good Standing) (Nadeau, Genevieve) (Entered: 09/14/2017)

09/14/2017 25 SUMMONS Returned Executed by State Of New York. All Defendants. (Lucas, Diane) (Entered: 09/14/2017)

09/14/2017

26 NOTICE of Appearance by Donna H. Kalama on behalf of State of Hawaii (notification declined or already on case) (Kalama, Donna) (Entered: 09/14/2017)

09/14/2017

27 NOTICE of Appearance by Tania Maestas on behalf of State of New Mexico (notification declined or already on case) (Maestas, Tania) (Entered: 09/14/2017)

09/15/2017

ORDER granting 24 Motion for Leave to Appear Pro Hac Vice -Attorney Genevieve Nadeau, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 21, 2017, Ms. Nadeau shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Nadeau shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Nadeau shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/15/2017. (Miao, Tiffany) (Entered: 09/15/2017)

09/15/2017

28 ORDER: As discussed on the record at the conference in the Batalla Vidal action on September 14, 2017, I respectfully direct the parties to meet and confer about discovery. No later than September 22, 2017, the parties shall report their respective positions on the threshold question of whether discovery should proceed now or await the resolution of the defendants' anticipated motion for dismissal. By the same date, the parties

shall submit their respective scheduling proposals in the event discovery is not stayed, as well as a proposed schedule for litigating any specific discovery disputes that the parties have identified as likely to arise. I will expect the parties to be prepared to discuss all matters relating to discovery at the next conference on September 26, 2017. In light of the fact that the parties to the Batalla Vidal action have agreed to the filing of a second amended complaint that will include claims that overlap with those already asserted in State of New York action, I encourage the plaintiffs' counsel in the latter case to participate in the meet-and-confer process in the former. Although issue has not yet been joined in the State of New York action, the participation of counsel from that case in the discovery planning process in the Batalla Vidal action will help to avoid needless burdens on the parties in each case. I therefore invite counsel for the parties in the State of New York action to appear at the conference in the Batalla Vidal action on September 26, 2017, and to participate in the discussion of issues relating to the discovery process. Ordered by Magistrate Judge James Orenstein on 9/15/2017. (Orenstein, James) (Entered: 09/15/2017)

09/15/2017

29 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9832264. by State of Connecticut. (Kohler, Mark) (Entered: 09/15/2017)

09/15/2017

30 MOTION for Leave to Appear Pro Hac Vice Anna Crane Filing fee $ 150, receipt number 0207-9833040. by State of Illinois. (Attachments: # 1 Affidavit of Anna Crane in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificate of Good Standing - IL) (Crane, Anna) (Entered: 09/15/2017)

09/15/2017 31 NOTICE of Appearance by Brad Rosenberg on behalf of All Defendants (aty to be noticed) (Rosenberg, Brad) (Entered: 09/15/2017)

09/15/2017 32 NOTICE of Appearance by Joseph Anthony Marutollo on behalf of All Defendants (aty to be noticed) (Marutollo, Joseph) (Entered: 09/15/2017)

09/18/2017

33 NOTICE of Appearance by Matthew R. McGuire on behalf of State of Virginia (notification declined or already on case) (McGuire, Matthew) (Entered: 09/18/2017)

09/18/2017

ORDER granting 29 Motion for Leave to Appear Pro Hac Vice -Attorney Mark Kohler, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By Septemeber 25, 2017, Mr. Kohler shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Kohler shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Kohler shall also ensure that the $150 admission fee be submitted to

the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/18/2017. (Miao, Tiffany) (Entered: 09/18/2017)

09/18/2017

ORDER granting 30 Motion for Leave to Appear Pro Hac Vice -Attorney Anna Crane, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 25, 2017, Ms. Crane shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Crane shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Crane shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/18/2017. (Miao, Tiffany) (Entered: 09/18/2017)

09/18/2017

34 NOTICE of Appearance by Genevieve C. Nadeau on behalf of State of Massachusetts (notification declined or already on case) (Nadeau, Genevieve) (Entered: 09/18/2017)

09/18/2017

35 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9835930. by State of Massachusetts. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Taylor, Abigail) (Entered: 09/18/2017)

09/19/2017

ORDER granting 35 Motion for Leave to Appear Pro Hac Vice -Attorney Abigail Taylor, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 26, 2017, Ms. Taylor shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Taylor shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Taylor shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/19/2017. (Miao, Tiffany) (Entered: 09/19/2017)

09/19/2017

36 NOTICE of Appearance by Anna P. Crane on behalf of State of Illinois (notification declined or already on case) (Crane, Anna) (Entered: 09/19/2017)

09/19/2017

37 NOTICE of Appearance by Abigail Taylor on behalf of State of Massachusetts (notification declined or already on case) (Taylor, Abigail) (Entered: 09/19/2017)

09/19/2017

38 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9840378. by State of Iowa. (Attachments: # 1 Affidavit, # 2 Certificate in Good Standing) (Blake, Nathanael) (Entered: 09/19/2017)

09/20/2017 39 NOTICE of Appearance by Stephen M. Pezzi on behalf of All Defendants (aty to be noticed) (Pezzi, Stephen) (Entered: 09/20/2017)

09/21/2017

ORDER granting 38 Motion for Leave to Appear Pro Hac Vice -Attorney Nathanael Blake, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 28, 2017, Mr. Blake shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Blake shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Blake shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/21/2017. (Miao, Tiffany) (Entered: 09/21/2017)

09/22/2017

40 First MOTION for Leave to Appear Pro Hac Vice Michael Field Filing fee $ 150, receipt number 0207-9849298. by State of Rhode Island. (Attachments: # 1 Affidavit - Field, Michael, # 2 Good Standing - Field, Michael) (Roach, Adam) (Entered: 09/22/2017)

09/22/2017

41 First MOTION for Leave to Appear Pro Hac Vice Adam Roach Filing fee $ 150, receipt number 0207-9849337. by State of Rhode Island. (Attachments: # 1 PHV Affidavit - Roach, Adam, # 2 PHV Good Standing - Roach) (Roach, Adam) (Entered: 09/22/2017)

09/22/2017

42 First MOTION for Leave to Appear Pro Hac Vice Rebecca Partington Filing fee $ 150, receipt number 0207-9849359. by State of Rhode Island. (Attachments: # 1 PHV Affidavit - Partington, # 2 PHV Good Standing - Partington) (Roach, Adam) (Entered: 09/22/2017)

09/22/2017

43 Letter in Response to Sept. 15, 2017 Order Regarding Defendants' Position on Discovery by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Pezzi, Stephen) (Entered: 09/22/2017)

09/25/2017

ORDER granting 40 Motion for Leave to Appear Pro Hac Vice -Attorney Michael Field, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By October 2, 2017, Mr. Field shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Field shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Field shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/25/2017. (Miao, Tiffany) (Entered: 09/25/2017)

09/25/2017

ORDER granting 41 Motion for Leave to Appear Pro Hac Vice Attorney Adam Roach, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By October 2, 2017, Mr. Roach shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Roach shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Roach shall

also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/25/2017. (Miao, Tiffany) (Entered: 09/25/2017)

09/25/2017

ORDER granting 42 Motion for Leave to Appear Pro Hac Vice -Attorney Rebecca Partington, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By October 2, 2017, Ms. Partington shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Partington shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Partington shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/25/2017. (Miao, Tiffany) (Entered: 09/25/2017)

09/26/2017

44 NOTICE of Appearance by Adam Roach on behalf of State of Rhode Island (notification declined or already on case) (Roach, Adam) (Entered: 09/26/2017)

09/27/2017 45 NOTICE of Appearance by Michael Field on behalf of State of Rhode Island (aty to be noticed) (Field, Michael) (Entered: 09/27/2017)

09/27/2017

46 SCHEDULING ORDER: Joint proposal for schedule of bi-weekly status conferences to address outstanding discovery disputes due by: September 29, 2017. Deadline for all Rule 26(a)(1) disclosures: October 4, 2017. Deadline for defendants' production of administrative record and privilege log: October 6, 2017. Objections to discovery requests due by: 1 week after service of requests. Responses to discovery requests due by: 2 weeks after service of requests. Deposition errata due by: 1 week after deposition. Joint status report due by: 1 week before each status conference. All expert disclosures due by: November 15, 2017. All discovery to be completed by: December 15, 2017. SEE ATTACHED ORDER. Ordered by Magistrate Judge James Orenstein on 9/27/2017. (Orenstein, James) (Entered: 09/27/2017)

09/28/2017

47 NOTICE of Appearance by Rebecca Partington on behalf of State of Rhode Island (aty to be noticed) (Partington, Rebecca) (Entered: 09/28/2017)

09/29/2017

48 Letter MOTION to Vacate in part Sept. 27, 2017 Case-Management and Scheduling Order by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 09/29/2017)

09/30/2017

ORDER re: Defendants' 48 Motion to Vacate in Part Magistrate Judge James Orenstein's 46 Case Management and Scheduling Order. Plaintiffs are DIRECTED to respond to Defendants' motion by no later than

Tuesday, October 3, 2017, at 12 p.m. Ordered by Judge Nicholas G. Garaufis on 9/30/2017. (Scott, Conrad) (Entered: 09/30/2017)

10/02/2017

SCHEDULING ORDER: I respectfully direct the parties to appear before me for a status conference on each of the following dates, at 2:00 p.m. in courtroom 11D South: October 11, October 25, November 8, November 29, and December 13, 2017. I further respectfully direct the parties to submit a joint status report by October 6, 2017, in advance of the first conference scheduled above, and to submit a joint status report no later than one week before each subsequent conference. I will cancel any conference on the parties' unanimous request. Any counsel of record who wishes to listen to a conference by telephone may make arrangements to do so, but any counsel who wishes to be heard at a conference must appear in person. Ordered by Magistrate Judge James Orenstein on 10/2/2017. (Orenstein, James) (Entered: 10/02/2017)

10/03/2017

49 RESPONSE in Opposition re 48 Letter MOTION to Vacate in part Sept. 27, 2017 Case-Management and Scheduling Order filed by All Plaintiffs. (Lucas, Diane) (Entered: 10/03/2017)

10/03/2017

50 MOTION for Leave to Appear Pro Hac Vice by Michael Fischer Filing fee $ 150, receipt number 0207-9875850. by State of Pennsylvania. (Attachments: # 1 Affidavit in Support of Motion, # 2 Exhibit Certificate of Good Standing, # 3 Certificate of Good Standing) (Fischer, Michael) (Entered: 10/03/2017)

10/03/2017

51 ORDER re Defendants' Motion to Vacate in Part Magistrate Judge James Orenstein's Case Management and Scheduling Order: The Motion is GRANTED in part, as stated in the attached order. Defendants' time to submit a privilege log is extended to October 20, 2017. The court will address Defendants' remaining objections by separate order. Defendants are invited to file a reply, not to exceed five pages, to Plaintiffs' oppositions no later than October 10, 2017. Re (69) Motion to Vacate in Case 16-CV-4756-NGG-JO and (48) Motion to Vacate in Case 17-CV5228-NGG-JO. Ordered by Judge Nicholas G. Garaufis on 10/3/2017. (Scott, Conrad) (Entered: 10/03/2017)

10/04/2017

ORDER granting 50 Motion for Leave to Appear Pro Hac Vice -Attorney Michael Fischer, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By October 11, 2017, Mr. Fischer shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Fischer shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Fischer shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 10/4/2017. (Drake, Shaw) (Entered: 10/04/2017)

10/04/2017

52 NOTICE of Appearance by Michael Fischer on behalf of State of Pennsylvania (notification declined or already on case) (Fischer, Michael) (Entered: 10/04/2017)

10/04/2017 53 NOTICE of Appearance by Kate Bailey on behalf of All Defendants (aty to be noticed) (Bailey, Kate) (Entered: 10/04/2017)

10/04/2017

54 AMENDED COMPLAINT from Plaintiff States against All Defendants, filed by State of North Carolina, State of Hawaii, State of Massachusetts, State Of New York, State of Virginia, State of Pennsylvania, District of Columbia, State of Washington, State of Iowa, State of Oregon, State of Rhode Island, State of Vermont, State of Illinois, State of Connecticut, State of New Mexico, State of Delaware, State of Colorado. (Attachments: # 1 Appendix Exhibit List) (Khan, Sania) (Entered: 10/04/2017)

10/04/2017

55 Exhibit List to Plaintiff States' First Amended Complaint (ECF 54) by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, # 17 Exhibit Exhibit 17, # 18 Exhibit Exhibit 18, # 19 Exhibit Exhibit 19, # 20 Exhibit Exhibit 20, # 21 Exhibit Exhibit 21, # 22 Exhibit Exhibit 22, # 23 Exhibit Exhibit 23, # 24 Exhibit Exhibit 24, # 25 Exhibit Exhibit 25, # 26 Exhibit Exhibit 26, # 27 Exhibit Exhibit 27, # 28 Exhibit Exhibit 28, # 29 Exhibit Exhibit 29, # 30 Exhibit Exhibit 30, # 31 Exhibit Exhibit 31, # 32 Exhibit Exhibit 32, # 33 Exhibit Exhibit 33, # 34 Exhibit Exhibit 34, # 35 Exhibit Exhibit 35, # 36 Exhibit Exhibit 36, # 37 Exhibit Exhibit 37, # 38 Exhibit Exhibit 38, # 39 Exhibit Exhibit 39, # 40 Exhibit Exhibit 40, # 41 Exhibit Exhibit 41, # 42 Exhibit Exhibit 42, # 43 Exhibit Exhibit 43, # 44 Exhibit Exhibit 44, # 45 Exhibit Exhibit 45, # 46 Exhibit Exhibit 46, # 47 Exhibit Exhibit 47, # 48 Exhibit Exhibit 48, # 49 Exhibit Exhibit 49, # 50 Exhibit Exhibit 50, # 51 Exhibit Exhibit 51, # 52 Exhibit Exhibit 52, # 53 Exhibit Exhibit 53, # 54 Exhibit Exhibit 54, # 55 Exhibit Exhibit 55, # 56 Exhibit Exhibit 56, # 57 Exhibit Exhibit 57, # 58 Exhibit Exhibit 58, # 59 Exhibit Exhibit 59, # 60 Exhibit Exhibit 60, # 61 Exhibit Exhibit 61, # 62 Exhibit Exhibit 62, # 63 Exhibit Exhibit 63, # 64 Exhibit Exhibit 64, # 65 Exhibit Exhibit 65, # 66 Exhibit Exhibit 66, # 67 Exhibit Exhibit 67, # 68 Exhibit Exhibit 68, # 69 Exhibit Exhibit 69, # 70 Exhibit Exhibit 70, # 71 Exhibit Exhibit 71, # 72 Exhibit Exhibit 72,

# 73 Exhibit Exhibit 73, # 74 Exhibit Exhibit 74, # 75 Exhibit Exhibit 75, # 76 Exhibit Exhibit 76, # 77 Exhibit Exhibit 77, # 78 Exhibit Exhibit 78, # 79 Exhibit Exhibit 79, # 80 Exhibit Exhibit 80, # 81 Exhibit Exhibit 81, # 82 Exhibit Exhibit 82, # 83 Exhibit Exhibit 83, # 84 Exhibit Exhibit 84, # 85 Exhibit Exhibit 85, # 86 Exhibit Exhibit 86, # 87 Exhibit Exhibit 87, # 88 Exhibit Exhibit 88, # 89 Exhibit Exhibit 89, # 90 Exhibit Exhibit 90, # 91 Exhibit Exhibit 91, # 92 Exhibit Exhibit 92, # 93 Exhibit Exhibit 93, # 94 Exhibit Exhibit 94, # 95 Exhibit Exhibit 95, # 96 Exhibit Exhibit 96, # 97 Exhibit Exhibit 97, # 98 Exhibit Exhibit 98, # 99 Exhibit Exhibit 99, # 100 Exhibit Exhibit 100, # 101 Exhibit Exhibit 101, # 102 Exhibit Exhibit 102, # 103 Exhibit Exhibit 103, # 104 Exhibit Exhibit 104, # 105 Exhibit Exhibit 105, # 106 Exhibit Exhibit 106, # 107 Exhibit Exhibit 107, # 108 Exhibit Exhibit 108, # 109 Exhibit Exhibit 109, # 110 Exhibit Exhibit 110, # 111 Exhibit Exhibit 111, # 112 Exhibit Exhibit 112, # 113 Exhibit Exhibit 113, # 114 Exhibit Exhibit 114, # 115 Exhibit Exhibit 115, # 116 Exhibit Exhibit 116, # 117 Exhibit Exhibit 117, # 118 Exhibit Exhibit 118, # 119 Exhibit Exhibit 119, # 120 Exhibit Exhibit 120, # 121 Exhibit Exhibit 121, # 122 Exhibit Exhibit 122, # 123 Exhibit Exhibit 123, # 124 Exhibit Exhibit 124, # 125 Exhibit Exhibit 125, # 126 Exhibit Exhibit 126, # 127 Exhibit Exhibit 127, # 128 Exhibit Exhibit 128, # 129 Exhibit Exhibit 129, # 130 Exhibit Exhibit 130, # 131 Exhibit Exhibit 131, # 132 Exhibit Exhibit 132, # 133 Exhibit Exhibit 133, # 134 Exhibit Exhibit 134, # 135 Exhibit Exhibit 135, # 136 Exhibit Exhibit 136, # 137 Exhibit Exhibit 137, # 138 Exhibit Exhibit 138, # 139 Exhibit Exhibit 139, # 140 Exhibit Exhibit 140, # 141 Exhibit Exhibit 141, # 142 Exhibit Exhibit 142, # 143 Exhibit Exhibit 143, # 144 Exhibit Exhibit 144, # 145 Exhibit Exhibit 145, # 146 Exhibit Exhibit 146, # 147 Exhibit Exhibit 147, # 148 Exhibit Exhibit 148, # 149 Exhibit Exhibit 149, # 150 Exhibit Exhibit 150, # 151 Exhibit Exhibit 151, # 152 Exhibit Exhibit 152, # 153 Exhibit Exhibit 153, # 154 Exhibit Exhibit 154, # 155 Exhibit Exhibit 155, # 156 Exhibit Exhibit 156, # 157 Exhibit Exhibit 157, # 158 Exhibit Exhibit 158, # 159 Exhibit Exhibit 159, # 160 Exhibit Exhibit 160, # 161 Exhibit Exhibit 161, # 162 Exhibit Exhibit 162, # 163 Exhibit Exhibit 163, # 164 Exhibit Exhibit 164, # 165 Exhibit Exhibit 165, # 166 Exhibit Exhibit 166, # 167 Exhibit Exhibit 167, # 168 Exhibit Exhibit 168, # 169 Exhibit Exhibit 169, # 170 Exhibit Exhibit 170, # 171 Exhibit Exhibit 171, # 172 Exhibit Exhibit 172, # 173 Exhibit Exhibit 173, # 174 Exhibit Exhibit 174, # 175 Exhibit Exhibit 175, # 176 Exhibit Exhibit 176, # 177 Exhibit Exhibit 177, # 178 Exhibit Exhibit 178, # 179 Exhibit Exhibit 179) (Saini, Ajay) (Entered: 10/04/2017)

10/06/2017

56 NOTICE by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America of

Filing of Administrative Record (Attachments: # 1 Ex. 1 - Administrative Record) (Pezzi, Stephen) (Entered: 10/06/2017)

10/06/2017

57 STATUS REPORT (Joint) by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Bailey, Kate) (Entered: 10/06/2017)

10/09/2017

ORDER re docket entry #78 in CV 16-4756 and docket entry #57 in CV 17-5228 STATUS REPORT (Joint) -- The plaintiffs may file a response to the defendants' objections to discovery by 2:00 p.m. on October 10, 2017. Ordered by Magistrate Judge James Orenstein on 10/9/2017. (Guy, Alicia) (Entered: 10/09/2017)

10/10/2017

58 Letter in Response to Defendants' Objections to Discovery by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Lucas, Diane) (Entered: 10/10/2017)

10/10/2017

59 REPLY in Support re 48 Letter MOTION to Vacate in part Sept. 27, 2017 Case-Management and Scheduling Order filed by All Defendants. (Pezzi, Stephen) (Entered: 10/10/2017)

10/11/2017

60 Minute Entry for proceedings held before Magistrate Judge James Orenstein:Status Conference held on 10/11/2017, ( Status Conference set for 11/30/2017 02:00 PM in Courtroom 11D South before Magistrate Judge James Orenstein.) SCHEDULING: (1) The next status conference will be held on October 25, 2017, at 2:00 p.m. (2) A further status conference will be held on November 8, 2017, at 2:00 p.m. (3) A further status conference will be held on November 30, 2017, at 2:00 p.m. (4) A further status conference will be held on December 13, 2017, at 2:00 p.m. SUMMARY: (1) The conference previously scheduled for November 29, 2017, was adjourned to November 30, 2017, at 2:00 p.m. (2) I provided information to the parties about former colleagues and friends of mine who are involved in the litigation. I see no need to disqualify myself sua sponte, but any party seeking my disqualification on the basis of that information may file a motion by October 18, 2017. (3) As set forth on the record, I overruled the defendants' objections to the depositions of Donald Neufeld and Gene Hamilton. Other discovery disputes were not ripe for resolution today. The plaintiffs shall file a letter motion to compel the defendants to complete their production of the administrative record by October 13, 2017, and the defendants shall respond by October 16,

2017. (Court Reporter Linda Marino.) (Orenstein, James) (Entered: 10/11/2017)

10/11/2017

61 SCHEDULING ORDER: At a conference on October 11, 2017, I made certain discovery rulings as to which the parties may seek review. See Fed. R. Civ. P. 72(a). Because the exigencies of this case make it impractical to allow the parties the full 14 days to file objections that would normally be available, I direct any party seeking review of this or any other ruling I make in this case to file objections no later than two business days after the ruling at issue unless otherwise ordered. See, e.g., Hispanic Counseling Ctr., Inc. v. Inc. Vill. of Hempstead, 237 F. Supp. 2d 284, 290 (E.D.N.Y. 2002). Responses to such objections shall be due two business days after the objections are filed unless otherwise ordered. Ordered by Magistrate Judge James Orenstein on 10/11/2017. (Orenstein, James) (Entered: 10/11/2017)

10/12/2017

62 MOTION for Leave to Appear Pro Hac Vice of Jonathan Scott Goldman Filing fee $ 150, receipt number 0207-9899444. by State of Pennsylvania. (Attachments: # 1 Affidavit in Support) (Goldman, Jonathan) (Entered: 10/12/2017)

10/13/2017

ORDER granting 62 Motion for Leave to Appear Pro Hac Vice -Attorney Jonathan S. Goldman, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By October 20, 2017, Mr. Goldman shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Goldman shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Goldman shall also ensure that the $150 admission fee be submitted to the Clerk's Office.. Ordered by Magistrate Judge James Orenstein on 10/13/2017. (Drake, Shaw) (Entered: 10/13/2017)

10/17/2017

63 MEMORANDUM & ORDER, The Court GRANTS in part, DENIES in part and RESERVES RULING in part on Defendants' motion to vacate the Order (Dkt. 69). So Ordered by Judge Nicholas G. Garaufis on 10/17/2017. (Re: (69) Motion to Vacate in case 1:16-cv-04756-NGG-JO; and, (48) Motion to Vacate in case 1:17-cv-05228-NGG-JO) (Lee, Tiffeny) (Entered: 10/17/2017)

10/18/2017

64 Letter MOTION to Stay by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Attachments: # 1 Supporting Declarations) (Pezzi, Stephen) (Entered: 10/18/2017)

10/19/2017

65 ORDER granting (84) Motion to Produce in case 1:16-cv-04756-NGGJO. For the reasons set forth in the attached document, I grant the motion to compel and respectfully direct the defendants to complete production of the administrative record by 3:00 p.m., Eastern Daylight Time, on

October 27, 2017. Ordered by Magistrate Judge James Orenstein on 10/19/2017. (Orenstein, James) (Entered: 10/19/2017)

10/19/2017

66 ORDER re: Motion to Stay in Case No. 1:16-cv-04756 (Dkt. 87) and Motion to Stay in Case No. 1:17-cv-05228 (Dkt. 64): The motion is denied for the reasons stated in the attached order. Ordered by Judge Nicholas G. Garaufis on 10/19/2017. (Scott, Conrad) (Entered: 10/19/2017)

10/20/2017 67 NOTICE of Appearance by Brian Alexander De Haan on behalf of State of Oregon (aty to be noticed) (De Haan, Brian) (Entered: 10/20/2017)

10/20/2017

68 USCA ORDER - The Government's emergency motion for a stay of discovery and record supplementation in the proceedings before the District Court is GRANTED pending its consideration by a regular threejudge panel of the Court, it being understood that during the pendency of this emergency motion and the stay hereby granted no rights or claims of rights of any of the parties shall have been waived or forfeited. The stay is contingent upon the Government filing the "full petition for a writ of mandamus", as described in its papers, on October 23, 2017 by 3:00 p.m. EST. It is so ordered. Certified Copy Issued: 10/20/17. USCA #17-3345. See also 16-cv-4756. (McGee, Mary Ann) (Entered: 10/20/2017)

10/23/2017

69 MOTION to Adjourn Conference (Unopposed) by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 10/23/2017)

10/23/2017

ORDER granting 69 Motion to Adjourn Conference -- The motion is granted on consent. The conference previously set for October 25, 2017, will be rescheduled immediately upon any resumption of discovery in this case. All other previously scheduled court appearance remain in effect. Ordered by Magistrate Judge James Orenstein on 10/23/2017. (Drake, Shaw) (Entered: 10/23/2017)

10/23/2017

ORDER: In light of the stay issued on October 20, 2017, by the U.S. Court of Appeals for the Second Circuit, the parties' deadline for filing supplemental letter briefs discussing whether the privilege-log requirement should extend to materials considered by second-tier subordinates (Oct. 19, 2017, Order (No. 16-CV-4756, Dkt. 90) at 11) is ADJOURNED, pending further notice. Ordered by Judge Nicholas G. Garaufis on 10/23/2017. (Scott, Conrad) (Entered: 10/23/2017)

10/24/2017

ORDER: In light of the order issued by the U.S. Court of Appeals for the Second Circuit in In re Duke, No. 17-3345, on October 24, 2017 (Dkt. 42), Defendants are DIRECTED to submit, by no later than 12:00 noon on Friday, October 27, 2017, a supplemental brief explaining why the

court lacks jurisdiction to consider the claims raised in Batalla Vidal v. Duke, No. 16-4756, and New York v. Trump, No. 17-CV-5228, or why such claims are otherwise non-justiciable. Plaintiffs in each of these cases are DIRECTED to submit supplemental briefs in opposition by no later than 12:00 noon on Wednesday, November 1, 2017. The parties should include all arguments in support of their positions in their briefs; the court will not consider arguments incorporated by reference to other filings in these or any other cases. Ordered by Judge Nicholas G. Garaufis on 10/24/2017. (Scott, Conrad) (Entered: 10/24/2017)

10/25/2017

70 MOTION for Leave to File Excess Pages for Defendants' Brief (Unopposed) by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Marutollo, Joseph) (Entered: 10/25/2017)

10/26/2017

ORDER re: Defendants' (94) Application for Leave to File Excess Pages in Case No. 16-CV-04756 and (70) Application for Leave to File Excess Pages in Case No. 17-CV-05228: The applications are granted. Ordered by Judge Nicholas G. Garaufis on 10/26/2017. (Scott, Conrad) (Entered: 10/26/2017)

10/27/2017

71 MOTION to Dismiss by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. Responses due by 11/1/2017 (Attachments: # 1 Memorandum in Support) (Pezzi, Stephen). (Entered: 10/27/2017)

10/27/2017

72 Notice of MOTION for Leave to Appear Pro Hac Vice Aaron R. Goldstein Filing fee $ 150, receipt number 0207-9937731. by State of Delaware. (Attachments: # 1 Affidavit in Support) (Goldstein, Aaron) (Entered: 10/27/2017)

10/27/2017

73 Notice of MOTION for Leave to Appear Pro Hac Vice Aleine Cohen Filing fee $ 150, receipt number 0207-9937809. by State of Delaware. (Attachments: # 1 Affidavit in Support) (Cohen, Aleine) (Entered: 10/27/2017)

10/27/2017

74 NOTICE by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America re 71 MOTION to Dismiss - Errata to Memorandum of Law in support of Defendants' Motion to Dismiss (Marutollo, Joseph) (Entered: 10/27/2017)

10/27/2017

75 ORDER re: Plaintiffs' (96) Motion for Clarification or for Leave to File Excess Pages in No. 16-CV-4756. Plaintiffs in Batalla Vidal v. Duke, No. 16-CV-4756, and New York v. Trump, No. 17-CV-5228, need not

address Defendants' arguments, other than those pertaining to issues of jurisdiction and justiciability, in their supplemental briefs due November 1, 2017. See the attached order. Ordered by Judge Nicholas G. Garaufis on 10/27/2017. (Scott, Conrad) (Entered: 10/27/2017)

10/30/2017

ORDER granting 72 Motion for Leave to Appear Pro Hac Vice -Attorney Aaron R. Goldstein, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By November 6, 2017, Mr. Goldstein shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Goldstein shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Goldstein shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 10/30/2017. (Drake, Shaw) (Entered: 10/30/2017)

10/30/2017

ORDER granting 73 Motion for Leave to Appear Pro Hac Vice -Attorney Aleine Cohen, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By November 6, 2017, Ms. Cohen shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Cohen shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Cohen shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 10/30/2017. (Drake, Shaw) (Entered: 10/30/2017)

10/30/2017

76 NOTICE of Appearance by Aaron R. Goldstein on behalf of State of Delaware (notification declined or already on case) (Goldstein, Aaron) (Entered: 10/30/2017)

10/30/2017

77 NOTICE of Appearance by Aleine M. Cohen on behalf of State of Delaware (notification declined or already on case) (Cohen, Aleine) (Entered: 10/30/2017)

10/30/2017

78 USCA ORDER - The stay entered on Friday, October 20, 2017 pending this hearing today by a three-judge panel is hereby extended until determination of the mandamus petition filed Monday, October 23, 2017. Resolution of the mandamus petition is deferred until such time as the District Court has considered and decided expeditiously issues of jurisdiction and justiciability. Response briefs on the mandamus petition may be filed promptly. The filing of any other or further briefs is deferred until further notice. Certified Copy Issued: 10/24/17. USCA #17-3345. See also 16-cv-4756 (McGee, Mary Ann) (Entered: 10/30/2017)

10/30/2017

79 Letter Motion to Set Briefing Schedule by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Pezzi, Stephen) (Entered: 10/30/2017)

10/31/2017

80 Letter Response Opposing Defendants Proposed Schedule by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Attachments: # 1 Certificate of Service) (Khan, Sania) (Entered: 10/31/2017)

11/01/2017

81 MEMORANDUM in Opposition re 71 MOTION to Dismiss Re: FRCP12(b)(1) filed by All Plaintiffs. (Khan, Sania) (Entered: 11/01/2017)

11/01/2017

82 MEMORANDUM in Opposition re 71 MOTION to Dismiss CORRECTED filed by All Plaintiffs. (Khan, Sania) (Entered: 11/01/2017)

11/01/2017

83 CERTIFICATE OF SERVICE by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington re 82 Memorandum in Opposition CORRECTED (Khan, Sania) (Entered: 11/01/2017)

11/06/2017

84 MOTION to Adjourn Conference Currently Scheduled for Nov. 8, 2017 by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 11/06/2017)

11/06/2017

ORDER granting 84 Motion to Adjourn Conference -- The conference previously scheduled for November 8, 2017, is adjourned pending the resumption of discovery. Ordered by Magistrate Judge James Orenstein on 11/6/2017. (Drake, Shaw) (Entered: 11/06/2017)

11/09/2017

85 MEMORANDUM & ORDER, For the reasons stated above. Defendants' motion to dismiss for lack of subject-matter jurisdiction (Dkt. 95 ) is GRANTED IN PART and DENIED IN PART. The following claims are dismissed: Batalla Vidal v. Duke, No. 16-CV-4756: Fourth claim for relief (Due Process Clause--Notice); New York v. Trump, No. 17-CV5228: Second claim for relief (Due Process Clause--Information-Use Policy); Third claim for relief (Equitable Estoppel--Information-Use Policy); Seventh claim for relief (Due Process Clause--Notice). Defendants' motion to dismiss for lack of subject-matter jurisdiction is denied with respect to all other claims. The court RESERVES RULING on Defendants' motion to dismiss for failure to state a claim. So Ordered

by Judge Nicholas G. Garaufis on 11/9/2017. (Lee, Tiffeny) (Entered: 11/09/2017)

11/14/2017 86 MOTION for Refund of Fees Paid Electronically by State of Iowa. (Blake, Nathanael) (Entered: 11/14/2017)

11/15/2017

87 APPLICATION 86 for Refund of Fees Paid Electronically. APPROVED by August Marziliano, Operations Manager on 11/15/2017. (Marziliano, August) (Entered: 11/15/2017)

11/17/2017

88 MOTION for Leave to Appear Pro Hac Vice (Scott Kaplan) Filing fee $ 150, receipt number 0207-9989771. by State of Oregon. (Attachments: # 1 Affidavit in Support, # 2 Exhibit Cert of Goodstanding (OR), # 3 Exhibit Cert of Goodstanding (WA), # 4 Exhibit Cert of Goodstanding (CA) [inactive]) (Kaplan, Scott) (Entered: 11/17/2017)

11/17/2017

89 MOTION for Leave to Appear Pro Hac Vice (Sarah Weston) Filing fee $ 150, receipt number 0207-9989843. by State of Oregon. (Attachments: # 1 Affidavit in Support, # 2 Exhibit Cert of Goodstanding (OR)) (Weston, Sarah) (Entered: 11/17/2017)

11/20/2017

90 ORDER, Defendants' application to accelerate the briefing schedule is therefore DENIED without prejudice to refiling after the Second Circuit has resolved Defendants' petition for a writ of mandamus. So Ordered by Judge Nicholas G. Garaufis on 11/17/2017. (re: (79 in 1:17-cv-05228NGG-JO) Letter filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Elaine C. Duke, U.S. Citizenship and Immigration Services, Donald Trump, United States of America, (100 in 1:16-cv-04756-NGG-JO) Letter filed by Elaine C. Duke, Jefferson Beauregard Sessions, Donald J. Trump ) (Lee, Tiffeny) (Entered: 11/20/2017)

11/20/2017

ORDER granting 88 Motion for Leave to Appear Pro Hac Vice -Attorney Scott Kaplan, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By November 27, 2017, Mr. Kaplan shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Kaplan shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Kaplan shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 11/20/2017. (Drake, Shaw) (Entered: 11/20/2017)

11/20/2017

ORDER granting 89 Motion for Leave to Appear Pro Hac Vice -Attorney Sarah Weston, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By November 27, 2017, Ms. Weston shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Weston shall file a notice of

appearance and ensure that she receives electronic notification of activity in this case. Ms. Weston shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 11/20/2017. (Drake, Shaw) (Entered: 11/20/2017)

11/27/2017

91 MOTION to Adjourn Conference (Unopposed) by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 11/27/2017)

11/28/2017

ORDER granting in part and denying in part 91 Motion to Adjourn Conference -- The conference previously scheduled for November 30, 2017, is cancelled. The motion to adjourn the conference scheduled for December 13, 2017, is denied as premature without prejudice to renewal. Ordered by Magistrate Judge James Orenstein on 11/28/2017. (Drake, Shaw) (Entered: 11/28/2017)

12/07/2017

92 Notice of MOTION for Leave to Appear Pro Hac Vice State of Vermont Filing fee $ 150, receipt number 0207-10032487. by State of Vermont. (Attachments: # 1 Certificate of Good Standing, # 2 Affidavit) (Thompson, Julio) (Entered: 12/07/2017)

12/08/2017

ORDER granting 92 Motion for Leave to Appear Pro Hac Vice -Attorney Julio A. Thompson, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 15, 2017, Mr. Thompson shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Thompson shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Thompson shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/8/2017. (Drake, Shaw) (Entered: 12/08/2017)

12/11/2017

93 Second MOTION to Continue Dec. 13, 2017 Status Conference (Unopposed) by Donald Trump, Elaine C. Duke, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 12/11/2017)

12/11/2017

ORDER granting 93 Motion to Continue -- The motion is granted on consent; The status conference previously scheduled for December 13, 2017, is cancelled. I respectfully direct the Clerk of Court to substitute Elaine C. Duke with Kirstjen M. Nielsen, in her official capacity as the Secretary of Homeland Security. Ordered by Magistrate Judge James Orenstein on 12/11/2017. (Drake, Shaw) (Entered: 12/11/2017)

12/11/2017 94 First MOTION for Leave to File Excess Pages for Plaintiff States' Brief by District of Columbia, State Of New York, State of Colorado,

State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Khan, Sania) (Entered: 12/11/2017)

12/14/2017

95 MOTION for Leave to Appear Pro Hac Vice Robert S. Chang Filing fee $ 150, receipt number 0207-10052321. by Fred T. Korematsu Center for Law and Equality. (Attachments: # 1 Affidavit Affidavit of Robert S. Chang in Support of Motion for Pro Hac Vice, # 2 Exhibit Certificate of Good Standing) (Chang, Robert) (Entered: 12/14/2017)

12/14/2017

ORDER re: Plaintiffs' 94 Application for Leave to File Excess Pages: The application is GRANTED. Plaintiffs' memorandum of law should not exceed 40 pages in length. Ordered by Judge Nicholas G. Garaufis on 12/14/2017. (Scott, Conrad) (Entered: 12/14/2017)

12/15/2017

ORDER granting 95 Motion for Leave to Appear Pro Hac Vice -Attorney Robert S. Chang, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 22, 2017, Mr. Chang shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Chang shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Chang shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/15/2017. (Drake, Shaw) (Entered: 12/15/2017)

12/15/2017

96 First MOTION for Preliminary Injunction by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Attachments: # 1 Memorandum in Support Preliminary Injunction, # 2 Appendix Exhibit List, # 3 Proposed Order for Preliminary Injunction) (Khan, Sania) (Entered: 12/15/2017)

12/15/2017

97 EXHIBIT List to Motion for Preliminary Injunction by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington., Exhibit List by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont,

State of Virginia, State of Washington. Related document: 96 First MOTION for Preliminary Injunction filed by State of Hawaii, State of Virginia, State of Rhode Island, State Of New York, State of Iowa, State of Vermont, State of Connecticut, State of Oregon, State of Illinois, District of Columbia, State of North Carolina, State of Delaware, State of Massachusetts, State of New Mexico, State of Colorado, State of Washington, State of Pennsylvania. (Attachments: # 1 Exhibit 1-35, # 2 Exhibit 36-50, # 3 Exhibit 51-100, # 4 Exhibit 101-112) (Khan, Sania) (Entered: 12/15/2017)

12/16/2017

98 CERTIFICATE OF SERVICE by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington re 96 First MOTION for Preliminary Injunction , 97 Exhibit,,,,,, Exhibit List,,,,, (Khan, Sania) (Entered: 12/16/2017)

12/18/2017

99 Consent MOTION for Leave to File Brief as Amicus Curiae by The Lawyers Committee for Civil Rights Under Law. (McLaughlin, Matthew) (Entered: 12/18/2017)

12/19/2017 100 NOTICE of Appearance by Robert Chang on behalf of Fred T. Korematsu Center for Law and Equality (notification declined or already on case) (Chang, Robert) (Entered: 12/19/2017)

12/19/2017 101 Consent MOTION for Leave to File Amicus Curiae Brief by Fred T. Korematsu Center for Law and Equality. (Chang, Robert) (Entered: 12/19/2017)

12/19/2017 102 NOTICE of Appearance by Michael Anthony Guerra on behalf of Lawyers' Committee for Civil Rights Under Law (aty to be noticed) (Guerra, Michael) (Entered: 12/19/2017)

12/20/2017 103 Consent MOTION to Amend/Correct/Supplement 101 Consent MOTION for Leave to File Amicus Curiae Brief by Fred T. Korematsu Center for Law and Equality. (Chang, Robert) (Entered: 12/20/2017)

12/20/2017

ORDER re: the unopposed Application for Leave to File an Amicus Brief, filed by the Lawyers' Committee for Civil Rights Under Law (Dkt. 127 in 16-CV-4756; Dkt. 99 in 17-CV-5228); and the unopposed Applications for Leave to File an Amicus Brief, filed by the Fred T. Korematsu Center for Law and Equality (Dkts. 129 and 131 in 16-CV4756; Dkts. 101 and 103 in 17-CV-5228): The applications are GRANTED. The anticipated amicus briefs shall be filed by no later than

December 22, 2017. Ordered by Judge Nicholas G. Garaufis on 12/20/2017. (Scott, Conrad) (Entered: 12/20/2017)

12/20/2017

104 DECLARATION re 96 First MOTION for Preliminary Injunction , 97 Exhibit,,,,,, Exhibit List,,,,, Supplemental Document to Wong Declaration (Ex. 10) by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Khan, Sania) (Entered: 12/20/2017)

12/20/2017

105 DECLARATION re 96 First MOTION for Preliminary Injunction , 97 Exhibit,,,,,, Exhibit List,,,,, Supplemental Document to Brannon Declaration (Ex. 96) by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Khan, Sania) (Entered: 12/20/2017)

12/20/2017 106 Consent MOTION for Leave to File Brief as Amicus Curiae by United We Dream. (Karanjia, Peter) (Entered: 12/20/2017)

12/20/2017 107 NOTICE of Appearance by Peter Karanjia on behalf of United We Dream (notification declined or already on case) (Karanjia, Peter) (Entered: 12/20/2017)

12/20/2017

108 ORDER granting (127) Motion for Leave to File Brief as Amicus Curiae by The Lawyers Committee for Civil Rights Under Law in case 1:16-cv04756-NGG-JO; granting (99) Motion for Leave to File in case Brief as Amicus Curiae by The Lawyers Committee for Civil Rights Under Law in case 1:17-cv-05228-NGG-JO. So Ordered by Judge Nicholas G. Garaufis on 12/19/2017. (Lee, Tiffeny) (Entered: 12/20/2017)

12/20/2017 109 Consent MOTION for Leave to File Amicus Brief by Government of the United Mexican States. (Sokol, Howard) (Entered: 12/20/2017)

12/20/2017 110 Consent MOTION for Leave to File Brief Amici Curiae by Current and Former Law Enforcement Leaders. (Lederer, Caryn) (Entered: 12/20/2017)

12/20/2017 111 Consent MOTION for Leave to File Amicus Brief by 114 U.S. - Based Companies. (Pincus, Andrew) (Entered: 12/20/2017)

12/20/2017 112 Letter MOTION for Leave to File an Amicus Brief on or before December 22, 2017 by Partnership for Educational Justice,

DelawareCAN, The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, Virginia Excels. (Schwartz, William) (Entered: 12/20/2017)

12/20/2017

ORDER: the unopposed Applications for Leave to File Amicus Briefs, filed by United We Dream (Dkt. 132 in 16-CV-4756; Dkt. 106 in 17-CV5228); the Government of the United Mexican States (Dkt. 135 in 16-CV4756; Dkt. 109 in 17-CV-5228); Current and Former Law Enforcement Leaders (Dkt. 136 in 16-CV-4756; Dkt. 110 in 17-CV-5228); Partnership for Educational Justice, DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, and Virginia Excels (Dkt. 137 in 16-CV-4756; Dkt. 112 in 17-CV-5228); and 114 U.S.-Based Companies (Dkt. 138 in 16-CV-4756; Dkt. 111 in 17CV-5228): the Applications are GRANTED. The anticipated amicus briefs shall be filed by no later than December 22, 2017. Ordered by Judge Nicholas G. Garaufis on 12/20/2017. (Scott, Conrad) (Entered: 12/20/2017)

12/20/2017 113 First MOTION for Leave to File Amicus by Wendy M Star. (Attachments: # 1 Proposed Brief) (Star, Wendy) (Entered: 12/20/2017)

12/20/2017

114 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10066863. by New York University. (Attachments: # 1 Affidavit in Support, # 2 Exhibit Certificate of Good Standing) (Fiur, Seth) (Entered: 12/20/2017)

12/20/2017

115 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10066939. by 114 U.S. - Based Companies. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Certificate of Good Standing) (Pincus, Andrew) (Entered: 12/20/2017)

12/20/2017

116 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10066946. by 114 U.S. - Based Companies. (Attachments: # 1 Affidavit in Support Affidavit of Karen Lin, # 2 Certificate of Good Standing) (Lin, Karen) (Entered: 12/20/2017)

12/20/2017 117 NOTICE of Appearance by Howard Sokol on behalf of Government of the United Mexican States (notification declined or already on case) (Sokol, Howard) (Entered: 12/20/2017)

12/20/2017

118 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10067079. by 114 U.S. - Based Companies. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Schneider, Rory) (Entered: 12/20/2017)

12/20/2017 119 MOTION for Leave to Appear Pro Hac Vice Shiloh Rainwater Filing fee $ 150, receipt number 0207-10067078. by New York University.

(Attachments: # 1 Affidavit of Shiloh Rainwater in Support of Motion, # 2 Certificate of Good Standing) (Rainwater, Shiloh) (Entered: 12/20/2017)

12/20/2017 120 MEMORANDUM in Support re Order,,, re Application for Leave to File Amicus Brief filed by United We Dream. (Karanjia, Peter) (Entered: 12/20/2017)

12/20/2017

121 Letter MOTION for Leave to File an Amicus Brief on or before December 22, 2017 by Asian Law Alliance, Canal Alliance, Centro Legal de la Raza, Children's Law Center of Massachusetts (CLCM), Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Justice Center of Southeast Massachusetts, Just Neighbors, Legal Aid Justice Center (LAJC), The Legal Aid Society of San Mateo County (LASSMC), Legal Services for Children (LSC), Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group (NYLAG), Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network (RMIAN), Services, Immigrant Rights, and Education Network (SIREN). (Wilson, Kara) (Entered: 12/20/2017)

12/20/2017 122 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10067221. by City of Los Angeles. (Dundas, Michael) (Entered: 12/20/2017)

12/21/2017

123 NOTICE of Appearance by William J. Schwartz on behalf of DelawareCAN, HawaiiKidsCAN, NewMexicoKidsCAN, Partnership for Educational Justice, The Delaware Campaign for Achievement Now, Virginia Excels (notification declined or already on case) (Schwartz, William) (Entered: 12/21/2017)

12/21/2017

124 NOTICE of Appearance by Kaitland McCann Kennelly on behalf of DelawareCAN, HawaiiKidsCAN, NewMexicoKidsCAN, Partnership for Educational Justice, The Delaware Campaign for Achievement Now, Virginia Excels (aty to be noticed) (Kennelly, Kaitland) (Entered: 12/21/2017)

12/21/2017

ORDER granting 115 Motion for Leave to Appear Pro Hac Vice -Attorney Andrew Pincus, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Mr. Pincus shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Pincus shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Pincus shall also ensure that the $150 admission fee be

submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) (Entered: 12/21/2017)

12/21/2017

ORDER granting 116 Motion for Leave to Appear Pro Hac Vice -Attorney Karen Lin, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Ms. Lin shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Lin shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Ms. Lin shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) (Entered: 12/21/2017)

12/21/2017 125 NOTICE of Appearance by Steven E. Obus on behalf of New York University (aty to be noticed) (Obus, Steven) (Entered: 12/21/2017)

12/21/2017

ORDER granting 118 Motion for Leave to Appear Pro Hac Vice -Attorney Rory K. Schneider, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Mr. Schneider shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Schneider shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Schneider shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) (Entered: 12/21/2017)

12/21/2017

ORDER granting 114 Motion for Leave to Appear Pro Hac Vice -Attorney Seth Fiur, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Mr. Fiur shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Fiur shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Fiur shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) (Entered: 12/21/2017)

12/21/2017

ORDER granting 119 Motion for Leave to Appear Pro Hac Vice -Attorney Shiloh Rainwater, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Mr. Rainwater shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Rainwater shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Rainwater shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) (Entered: 12/21/2017)

12/21/2017

126 MOTION for Leave to Appear Pro Hac Vice of Ashley Ferguson Filing fee $ 150, receipt number 0207-10068384. by New York University. (Attachments: # 1 Affidavit of Ashley Ferguson in Support of Motion Pro Hac Vice, # 2 Certificate of Good Standing) (Ferguson, Ashley) (Entered: 12/21/2017)

12/21/2017

ORDER granting 122 Motion for Leave to Appear Pro Hac Vice -Attorney Michael Dundas, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Mr. Dundas shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Dundas shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Dundas shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) (Entered: 12/21/2017)

12/21/2017

ORDER granting 126 Motion for Leave to Appear Pro Hac Vice -Attorney Ashley Ferguson, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By December 28, 2017, Ms. Ferguson shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Ferguson shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Ferguson shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/21/2017. (Drake, Shaw) Modified on 12/21/2017 (Guy, Alicia). (Entered: 12/21/2017)

12/21/2017 127 NOTICE of Appearance by Andrew J. Pincus on behalf of 114 U.S. Based Companies (notification declined or already on case) (Pincus, Andrew) (Entered: 12/21/2017)

12/21/2017 128 NOTICE of Appearance by Karen Lin on behalf of 114 U.S. - Based Companies (notification declined or already on case) (Lin, Karen) (Entered: 12/21/2017)

12/21/2017 129 NOTICE of Appearance by Rory Schneider on behalf of 114 U.S. - Based Companies (notification declined or already on case) (Schneider, Rory) (Entered: 12/21/2017)

12/21/2017 130 NOTICE of Appearance by Tiffany Woo on behalf of New York University (aty to be noticed) (Woo, Tiffany) (Entered: 12/21/2017)

12/21/2017

131 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10068844. by New York University. (Attachments: # 1 Affidavit of Melissa DiGrande in Support of Motion, # 2 Certificate of Good Standing) (DiGrande, Melissa) (Entered: 12/21/2017)

12/21/2017

132 MEMORANDUM in Support AMICUS BRIEF OF 114 COMPANIES IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION filed by 114 U.S. - Based Companies. (Pincus, Andrew) (Entered: 12/21/2017)

12/21/2017

133 TRIAL BRIEF of Amici in Support of Plaintiffs' Motion for a Preliminary Injunction by DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, Partnership for Educational Justice, Virginia Excels (Schwartz, William) (Entered: 12/21/2017)

12/21/2017

134 MOTION for Leave to Appear Pro Hac Vice Leon Fresco Filing fee $ 150, receipt number 0207-10069438. by Government of the United Mexican States. (Attachments: # 1 Affidavit, # 2 Certificates of Good Standing) (Fresco, Leon) (Entered: 12/21/2017)

12/21/2017 135 NOTICE of Appearance by Michael Dundas on behalf of City of Los Angeles (notification declined or already on case) (Dundas, Michael) (Entered: 12/21/2017)

12/21/2017 136 NOTICE of Appearance by John Barney Harris on behalf of the AntiDefamation League (aty to be noticed) (Harris, John) (Entered: 12/21/2017)

12/21/2017 137 Letter MOTION for Leave to File Amicus Brief by City of Los Angeles. (Dundas, Michael) (Entered: 12/21/2017)

12/21/2017 138 Letter MOTION for Leave to File join an amicus brief to be filed by the Lawyers' Committee for Civil Rights Under Law by the Anti-Defamation League. (Harris, John) (Entered: 12/21/2017)

12/21/2017

139 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10070070. by Lawyers' Committee for Civil Rights Under Law. (Attachments: # 1 Affidavit of William D. Coston in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia)) (Coston, William) (Entered: 12/21/2017)

12/21/2017

140 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10070092. by Lawyers' Committee for Civil Rights Under Law. (Attachments: # 1 Affidavit of Martin L. Saad in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia)) (Saad, Martin) (Entered: 12/21/2017)

12/21/2017 141 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10070107. by Lawyers' Committee for Civil Rights Under Law. (Attachments: # 1 Affidavit of Sameer P. Sheikh in Support of

Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia)) (Sheikh, Sameer) (Entered: 12/21/2017)

12/21/2017 142 NOTICE of Appearance by Ashley C. Ferguson on behalf of New York University (notification declined or already on case) (Ferguson, Ashley) (Entered: 12/21/2017)

12/21/2017 143 NOTICE of Appearance by Seth D. Fiur on behalf of New York University (notification declined or already on case) (Fiur, Seth) (Entered: 12/21/2017)

12/21/2017 144 NOTICE of Appearance by Shiloh Rainwater on behalf of New York University (notification declined or already on case) (Rainwater, Shiloh) (Entered: 12/21/2017)

12/21/2017

145 Letter MOTION for Leave to File an Amicus Curiae Brief by LatinoJustice PRLDEF, Inc., Alianza Americas, Arab American Institute, The Asian American Legal Defense and Education Fund, Asian American Bar Association of New York, Asian Americans Advancing Justice, Asian Americans Advancing Justice-Asian Law Caucus, ASPIRA, Council on American-Islamic Relations, CUNY DREAMers, Dream Action Coalition, The Hispanic Association of Colleges and Universities, The Hispanic National Bar Association, Hispanic Federation, Inc., League of United Latin American Citizens, New York State Youth Leadership Council, Presente.org, RU Dreamers, UnidosUS. (Attachments: # 1 Appendix A-List of Amicus Curiae) (Bohorquez, Fernando) (Entered: 12/21/2017)

12/21/2017

146 NOTICE of Appearance by Fernando A. Bohorquez, Jr on behalf of ASPIRA, Alianza Americas, Arab American Institute, Asian American Bar Association of New York, Asian Americans Advancing Justice, Asian Americans Advancing Justice-Asian Law Caucus, CUNY DREAMers, Council on American-Islamic Relations, Dream Action Coalition, Hispanic Federation, Inc., LatinoJustice PRLDEF, Inc., League of United Latin American Citizens, New York State Youth Leadership Council, Presente.org, RU Dreamers, The Asian American Legal Defense and Education Fund, The Hispanic Association of Colleges and Universities, The Hispanic National Bar Association, UnidosUS (notification declined or already on case) (Bohorquez, Fernando) (Entered: 12/21/2017)

12/21/2017

147 Letter MOTION for Leave to File Amici Curiae Brief by The Legal Aid Society, African Services Committee, Immigrant Justice Corps, MinKwon Center for Community Action, South Bronx United, UnLocal, The Door. (Kolodner, Jonathan) (Entered: 12/21/2017)

12/21/2017

ORDER re: the unopposed Applications to File Amicus Briefs, filed by the New York State United Teachers et al. (Dkt. 139 in 16-CV-4756; Dkt. 113 in 17-CV-5228); Asian Law Alliance et al. (Dkt. 148 in 16-CV-4756; Dkt. 121 in 17-CV-5228); and the City of Los Angeles et al. (Dkt. 164 in 16-CV-4756; Dkt. 137 in 17-CV-5228): The applications are GRANTED. The Application of the Anti-Defamation League (Dkt. 166 in 16-CV4756; Dkt. 138 in 17-CV-5228) to join in the amicus brief to be filed by the Lawyers' Committee for Civil Rights Under Law (the "Lawyers' Committee") is GRANTED, provided that the Lawyers Committee does not object to the application by December 22, 2017, at 5:00 P.M. Ordered by Judge Nicholas G. Garaufis on 12/21/2017. (Scott, Conrad) (Entered: 12/21/2017)

12/21/2017 148 Letter MOTION for Leave to File Consent Motion to Add Amici to Forthcoming Amicus Curiae Brief by Lawyers' Committee for Civil Rights Under Law. (Silverstein, Thomas) (Entered: 12/21/2017)

12/21/2017 149 NOTICE by Fred T. Korematsu Center for Law and Equality of Filing of Amicus Curiae Brief pursuant to Dec 20 Order Granting Application to File Amicus Curiae Brief (Chang, Robert) (Entered: 12/21/2017)

12/22/2017

150 NOTICE of Appearance by Stuart M. Sarnoff on behalf of Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (aty to be noticed) (Sarnoff, Stuart) (Entered: 12/22/2017)

12/22/2017

151 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10072307. by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Declaration In Support, # 2 Certificate of Good Standing, # 3 Proposed Order) (Gray, Danielle) (Entered: 12/22/2017)

12/22/2017

152 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10072334. by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington

University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Declaration In Support, # 2 Certificate of Good Standing, # 3 Proposed Order) (Sokoler, Jennifer) (Entered: 12/22/2017)

12/22/2017

153 Letter MOTION for Leave to File Amici Brief by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Exhibit A - Proposed Brief of Amici Curiae) (Sarnoff, Stuart) (Entered: 12/22/2017)

12/22/2017

154 MOTION for Leave to File Brief on Behalf of New York University As Amicus Curiae by New York University. (Attachments: # 1 Brief of New York University as Amicus Curiae in Support of Plaintiff's Motion For A Preliminary Injunction) (Obus, Steven) (Entered: 12/22/2017)

12/22/2017

ORDER re: the unopposed Applications to File Amicus Briefs, filed by LatinoJustice PRLDEF et al. (Dkt. 174 in 16-CV-4756; Dkt. 145 in 17CV-5228); the Legal Aid Society et al. (Dkt. 176 in 16-CV-4756; Dkt. 147 in 17-CV-5228); Brown University et al. (Dkt. 184 in 16-CV-4756; Dkt. 153 in 17-CV-5228); and New York University (Dkt. 185 in 16-CV4756; Dkt. 154 in 17-CV-5228): The Applications are GRANTED. The unopposed Application of Advocates for Youth et al. (Dkt. 178 in 16-CV4756; Dkt. 148 in 17-CV-5228) to Join in the Amicus Brief of the Lawyers Committee for Civil Rights Under Law is GRANTED. Ordered by Judge Nicholas G. Garaufis on 12/22/2017. (Scott, Conrad) (Entered: 12/22/2017)

12/22/2017 155 MEMORANDUM in Support Brief Amici Curiae filed by Current and Former Law Enforcement Leaders. (Lederer, Caryn) (Entered: 12/22/2017)

12/22/2017

156 Letter MOTION for Leave to File Amicus Brief by Service Employees International Union, American Federation of State, County and Municipal Employees, Communications Workers of America, United Farm Workers of America, International Union of Painters and Allied Trades. (Gupta, Deepak) (Entered: 12/22/2017)

12/22/2017 157 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10073374. by American Federation of State, County and Municipal Employees, Communications Workers of America,

International Union of Painters and Allied Trades, Service Employees International Union, United Farm Workers of America. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Gupta, Deepak) (Entered: 12/22/2017)

12/22/2017

158 MEMORANDUM in Support Amicus Brief in Support of Plaintiffs filed by American Federation of State, County and Municipal Employees, Communications Workers of America, International Union of Painters and Allied Trades, Service Employees International Union, United Farm Workers of America. (Gupta, Deepak) (Entered: 12/22/2017)

12/22/2017

159 NOTICE of Appearance by Kara Corinne Wilson on behalf of Asian Law Alliance, Canal Alliance, Centro Legal de la Raza, Children's Law Center of Massachusetts (CLCM), Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Justice Center of Southeast Massachusetts, Legal Aid Justice Center (LAJC), Legal Services for Children (LSC), Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group (NYLAG), Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network (RMIAN), Services, Immigrant Rights, and Education Network (SIREN), The Legal Aid Society of San Mateo County (LASSMC), Brooklyn Defender Services (aty to be noticed) (Wilson, Kara) (Entered: 12/22/2017)

12/22/2017 160 NOTICE of Change of Address by Kara Corinne Wilson (Wilson, Kara) (Entered: 12/22/2017)

12/22/2017

161 Corporate Disclosure Statement by Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children's Law Center of Massachusetts (CLCM), Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Justice Center of Southeast Massachusetts, Legal Aid Justice Center (LAJC), Legal Services for Children (LSC), Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group (NYLAG), Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network (RMIAN), Services, Immigrant Rights, and Education Network (SIREN), The Legal Aid Society of San Mateo County (LASSMC) (Wilson, Kara) (Entered: 12/22/2017)

12/22/2017

162 MEMORANDUM in Support re 96 First MOTION for Preliminary Injunction on behalf of Amici Curiae filed by Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children's Law Center of Massachusetts (CLCM), Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Justice Center of Southeast Massachusetts, Legal Aid Justice Center (LAJC), Legal Services for Children (LSC), Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group (NYLAG), Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network (RMIAN), Services, Immigrant Rights, and Education Network (SIREN), The Legal Aid Society of San Mateo County (LASSMC). (Wilson, Kara) (Entered: 12/22/2017)

12/22/2017 163 NOTICE of Appearance by Steven Alan Zalesin on behalf of Albuquerque Insight Meditation Center et al (aty to be noticed) (Zalesin, Steven) (Entered: 12/22/2017)

12/22/2017

164 MEMORANDUM in Support re 96 First MOTION for Preliminary Injunction As Amicus Curiae In Support of Plaintiffs' Motion For A Preliminary Injunction filed by New York University. (Obus, Steven) (Entered: 12/22/2017)

12/22/2017

165 MOTION for Leave to File Memorandum of Law as Amici Curiae in Support of plaintiffs Motions for Preliminary Injunctions United States District Court Eastern District of New York by Albuquerque Insight Meditation Center et al. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Steven Zalesin, # 3 Exhibit A, Proposed Memorandum of Law) (Zalesin, Steven) (Entered: 12/22/2017)

12/22/2017 166 NOTICE of Appearance by Adeel Abdullah Mangi on behalf of Albuquerque Insight Meditation Center et al (aty to be noticed) (Mangi, Adeel) (Entered: 12/22/2017)

12/22/2017 167 Consent MOTION for Leave to File Amicus Brief by Former Federal Immigration and Homeland Security Officials. (Attachments: # 1 Proposed Amicus Brief) (Harrell, J. Wells) (Entered: 12/22/2017)

12/22/2017

ORDER re: the unopposed Applications to File Amicus Briefs, filed by Service Employees International Union et al. (Dkt. 186 in 16-CV-4756; Dkt. 156 in 17-CV-5228); and 87 Religious Organizations (Dkt. 196 in 16-CV-4756; Dkt. 165 in 17-CV-5228): The Applications are GRANTED. Ordered by Judge Nicholas G. Garaufis on 12/22/2017. (Scott, Conrad) (Entered: 12/22/2017)

12/22/2017

168 TRIAL BRIEF of the Government of The United Mexican States as Amicus Curiae in Support of Plaintiffs' Motions for Preliminary Injunction, by Government of the United Mexican States (Sokol, Howard) (Entered: 12/22/2017)

12/22/2017

169 Letter MOTION for Leave to File an Amicus Brief by Amherst College, Barnard College, Boston University, Bowdoin College, Brandeis University, Bucknell University, Carnegie Mellon University, Case Western University, Northeastern University, Colby College, Colgate University, Emerson College, Los Angeles Community College District, Los Rios Community College District, University of Maryland-College Park, Middlebury College, Mount Holyoke College, Pace University, Rice University, San Mateo Community College District, Tufts University, Vassar College, Washington University in St. Louis, Wellesley College, Williams College. (Attachments: # 1 Proposed Brief of Amici Curiae of Institutions of Higher Education in Support of Plaintiffs Motion for Preliminary Injunction) (Jestin, Katya) (Entered: 12/22/2017)

12/22/2017

170 MEMORANDUM in Support - Memorandum of Law Filed on Behalf of 87 Religious Organizations as Amici Curiae in Support of Plaintiffs' Motions for Preliminary Injunctions filed by Albuquerque Insight Meditation Center et al. (Attachments: # 1 Appendix A) (Zalesin, Steven) (Entered: 12/22/2017)

12/22/2017

171 MEMORANDUM in Support Brief Amici Curiae filed by African Services Committee, Immigrant Justice Corps, MinKwon Center for Community Action, South Bronx United, The Door, The Legal Aid Society, UnLocal, College Confident, Empire Justice Center, The Immigrant and Non-Citizen Rights Clinic at the CUNY School of Law, Northern Manhattan Improvement Corporation, Northwest Immigrant Rights Project, Safe Horizon, Sosa Law, TODEC Legal Center, Volunteers of Legal Service. (Kolodner, Jonathan) (Entered: 12/22/2017)

12/22/2017

172 MEMORANDUM in Support Brief Amici Curiae filed by City of Los Angeles, 27 Additional Cities and Counties, National League of Cities, United States Conference of Mayors (USCM). (Dundas, Michael) (Entered: 12/22/2017)

12/22/2017

173 EXHIBIT APPENDIX A to Brief of Amici by Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children's Law Center of Massachusetts (CLCM), Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors,

Justice Center of Southeast Massachusetts, Legal Aid Justice Center (LAJC), Legal Services for Children (LSC), Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group (NYLAG), Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network (RMIAN), Services, Immigrant Rights, and Education Network (SIREN), The Legal Aid Society of San Mateo County (LASSMC). Related document: 162 Memorandum in Support,,,, filed by Canal Alliance, Children's Law Center of Massachusetts (CLCM), Legal Aid Justice Center (LAJC), Services, Immigrant Rights, and Education Network (SIREN), Massachusetts Law Reform Institute (MLRI), Centro Legal de la Raza, Brooklyn Defender Services, Heartland Alliance's National Immigrant Justice Center (NIJC), The Legal Aid Society of San Mateo County (LASSMC), Just Neighbors, Dolores Street Community Services, Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Legal Services for Children (LSC), OneJustice, East Bay Sanctuary Covenant, Northwest Immigrant Rights Project, New York Legal Assistance Group (NYLAG), Rocky Mountain Immigrant Advocacy Network (RMIAN), Community Legal Services in East Palo Alto (CLSEPA), Asian Law Alliance, Immigrant Legal Resource Center (ILRC), National Justice for Our Neighbors, Justice Center of Southeast Massachusetts. (Wilson, Kara) (Entered: 12/22/2017)

12/22/2017

174 MEMORANDUM in Support re 96 First MOTION for Preliminary Injunction by the Lawyers Committee for Civil Rights Under Law, AntiDefamation League, And Other Civil Rights And Social Justice Organizations As Amici Curiae filed by Lawyers' Committee for Civil Rights Under Law. (McLaughlin, Matthew) (Entered: 12/22/2017)

12/26/2017

ORDER granting 131 Motion for Leave to Appear Pro Hac Vice -Attorney Melissa DiGrande, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 2, 2018, Ms. DiGrande shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. DiGrande shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. DiGrande shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)

12/26/2017

ORDER granting 134 Motion for Leave to Appear Pro Hac Vice -Attorney Leon Fresco, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 2, 2018, Mr. Fresco shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Fresco shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Fresco shall also ensure that the $150 admission fee be submitted to

12/26/2017 12/26/2017 12/26/2017
12/26/2017

the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)
ORDER granting 139 Motion for Leave to Appear Pro Hac Vice -Attorney William Coston, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 2, 2018, Mr. Coston shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Coston shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Coston shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)
ORDER granting 140 Motion for Leave to Appear Pro Hac Vice -Attorney Martin Saad, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 2, 2018, Mr. Saad shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Saad shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Saad shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)
ORDER denying 141 Motion for Leave to Appear Pro Hac Vice -- The motion is denied without prejudice to the movant's right to seek reconsideration in conformity with this court's local rules, which require that an application for admission pro hac vice include a properly sworn and notarized affidavit stating (a) whether the applicant has ever been convicted of a felony, (b) whether the applicant has ever been censured, suspended, disbarred or denied admission or readmission by any court, (c) whether there are any disciplinary proceedings presently against the applicant, and (d) the facts and circumstances surrounding any affirmative responses to (a) through (c). See Loc. Civ. R. 1.3(c). If the applicant seeks reconsideration, he must do so no later than January 9, 2018. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)
ORDER denying 151 Motion for Leave to Appear Pro Hac Vice -- The motion is denied without prejudice to the movant's right to seek reconsideration in conformity with this court's local rules, which require that an application for admission pro hac vice include a properly sworn and notarized affidavit stating (a) whether the applicant has ever been convicted of a felony, (b) whether the applicant has ever been censured, suspended, disbarred or denied admission or readmission by any court, (c) whether there are any disciplinary proceedings presently against the applicant, and (d) the facts and circumstances surrounding any affirmative

responses to (a) through (c). See Loc. Civ. R. 1.3(c). If the applicant seeks reconsideration, she must do so no later than January 9, 2018. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)

12/26/2017

ORDER denying 152 Motion for Leave to Appear Pro Hac Vice -- The motion is denied without prejudice to the movant's right to seek reconsideration in conformity with this court's local rules, which require that an application for admission pro hac vice include a properly sworn and notarized affidavit stating (a) whether the applicant has ever been convicted of a felony, (b) whether the applicant has ever been censured, suspended, disbarred or denied admission or readmission by any court, (c) whether there are any disciplinary proceedings presently against the applicant, and (d) the facts and circumstances surrounding any affirmative responses to (a) through (c). See Loc. Civ. R. 1.3(c). If the applicant seeks reconsideration, she must do so no later than January 9, 2018. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)

12/26/2017

175 NOTICE of Appearance by Jonathan Samuel Kolodner on behalf of African Services Committee, College Confident, Empire Justice Center, Immigrant Justice Corps, MinKwon Center for Community Action, Northern Manhattan Improvement Corporation, Northwest Immigrant Rights Project, Safe Horizon, Sosa Law, South Bronx United, TODEC Legal Center, The Door, The Immigrant and Non-Citizen Rights Clinic at the CUNY School of Law, The Legal Aid Society, UnLocal, Volunteers of Legal Service (aty to be noticed) (Kolodner, Jonathan) (Entered: 12/26/2017)

12/26/2017

ORDER granting 157 Motion for Leave to Appear Pro Hac Vice -Attorney Deepak Gupta, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 2, 2018, Mr. Gupta shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Gupta shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Gupta shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 12/26/2017. (Salvador, Anjali) (Entered: 12/26/2017)

12/27/2017 176 NOTICE of Appearance by Leon Fresco on behalf of Government of the United Mexican States (notification declined or already on case) (Fresco, Leon) (Entered: 12/27/2017)

12/27/2017 177 USCA ORDER - Petitioner Kirstjen M. Nielsen, the Secretary of the Department of Homeland Security, seeks a writ of mandamus to stay discovery orders entered by the District Court that required the

Government (1) to supplement the administrative record it filed with the District Court and (2) to file a privilege log, in litigation challenging the decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. Upon due consideration, it is hereby ORDERED that the mandamus petition is DENIED, and the stay of the District Courts discovery orders is LIFTED. See document for further details. Certified Copy Issued: 12/27/17. USCA #17-3345. See also 16-cv-4756. (McGee, Mary Ann) (Entered: 12/27/2017)

12/27/2017 178 NOTICE of Appearance by William D. Coston on behalf of Lawyers' Committee for Civil Rights Under Law (notification declined or already on case) (Coston, William) (Entered: 12/27/2017)

12/27/2017 179 NOTICE of Appearance by Martin L. Saad on behalf of Lawyers' Committee for Civil Rights Under Law (notification declined or already on case) (Saad, Martin) (Entered: 12/27/2017)

12/28/2017

Order re: the unopposed Applications to File Amicus Briefs, filed by Former Federal Immigration and Homeland Security Officials (No. 198 in 16-CV-4756; No. 167 in 17-CV-5228) and Amherst College et al. (No. 203 in 16-CV-4756; No. 169 in 17-CV-5228): the Applications are GRANTED. The proposed amicus briefs attached to those applications are deemed to have been filed. Ordered by Judge Nicholas G. Garaufis on 12/28/2017. (Scott, Conrad) (Entered: 12/28/2017)

12/28/2017

180 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10079402. by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Proposed Order) (Gray, Danielle) (Entered: 12/28/2017)

12/28/2017

181 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10079443. by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Proposed Order) (Sokoler, Jennifer) (Entered: 12/28/2017)

12/28/2017

182 SCHEDULING ORDER -- A status conference is scheduled for January 8, 2018 at 3:00 p.m. SEE ATTACHED ORDER. Ordered by Magistrate Judge James Orenstein on 12/28/2017. (Salvador, Anjali) (Entered: 12/28/2017)

12/28/2017 183 NOTICE of Appearance by Rachael Westmoreland on behalf of All Defendants (aty to be noticed) (Westmoreland, Rachael) (Entered: 12/28/2017)

12/28/2017

184 MOTION for Certificate of Appealability by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Attachments: # 1 Memorandum in Support) (Westmoreland, Rachael) (Entered: 12/28/2017)

12/29/2017

185 Letter Request for Clarification of Logistics for Oral Argument on January 18, 2018 by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Khan, Sania) (Entered: 12/29/2017)

12/29/2017

ORDER re: Defendants' Motion for Certification of This Court's Order of November 9, 2017, for Interlocutory Appeal and for a Stay of Record Supplementation and Discovery (Dkt. 219 in 16-CV-4756; Dkt. 184 in 17-CV-5228): Plaintiffs are DIRECTED to respond to the Motion by no later than January 3, 2018. Ordered by Judge Nicholas G. Garaufis on 12/29/2017. (Scott, Conrad) (Entered: 12/29/2017)

12/29/2017

186 Letter MOTION to Stay by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Pezzi, Stephen) (Entered: 12/29/2017)

12/30/2017 187 RESPONSE to Motion re 186 Letter MOTION to Stay filed by All Plaintiffs. (Khan, Sania) (Entered: 12/30/2017)

12/30/2017

Order re: Defendants' Motion for an Administrative Stay (Dkts. 219, 220 in 16-CV-4756; Dkts. 184, 186 in 17-CV-5228): The Motion is GRANTED. Record supplementation and discovery are stayed pending consideration of Defendants' motion for certification of the court's November 9, 2017, order for interlocutory appeal. (See USCA Dec. 27, 2017, Order (Dkt. 210 in 16-CV-4756; Dkt. 177 in 17-CV-5228) at 4 ("While we decline to reserve decision on this petition while the Government pursues an interlocutory appeal, it may be prudent for the District Court to stay discovery pending the resolution of such

proceedings.").) Ordered by Judge Nicholas G. Garaufis on 12/30/2017. (Scott, Conrad) (Entered: 12/30/2017)

01/02/2018

ORDER granting 180 Motion for Leave to Appear Pro Hac Vice -Attorney Danielle Gray, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 9, 2018, Ms. Gray shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Gray shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Gray shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 01/02/2018. (Drake, Shaw) (Entered: 01/02/2018)

01/02/2018

ORDER granting 181 Motion for Leave to Appear Pro Hac Vice -Attorney Jennifer Sokoler, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 9, 2018, Ms. Sokoler shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Sokoler shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Sokoler shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 01/02/2018. (Drake, Shaw) (Entered: 01/02/2018)

01/02/2018

188 NOTICE of Appearance by Deepak Gupta on behalf of American Federation of State, County and Municipal Employees, Communications Workers of America, International Union of Painters and Allied Trades, Service Employees International Union, United Farm Workers of America (notification declined or already on case) (Gupta, Deepak) (Entered: 01/02/2018)

01/03/2018

189 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10089761. by Lawyers' Committee for Civil Rights Under Law. (Attachments: # 1 Affidavit of Sameer P. Sheikh in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia)) (Sheikh, Sameer) (Entered: 01/03/2018)

01/03/2018

190 NOTICE of Appearance by Danielle Carim Gray on behalf of Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (notification declined or already on case) (Gray, Danielle) (Entered: 01/03/2018)

01/03/2018

191 NOTICE of Appearance by Jennifer B. Sokoler on behalf of Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (notification declined or already on case) (Sokoler, Jennifer) (Entered: 01/03/2018)

01/03/2018

192 Letter Notifying the Court of Defendants' Intent to File a Reply Brief by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Pezzi, Stephen) (Entered: 01/03/2018)

01/03/2018 193 MEMORANDUM in Opposition re 184 MOTION for Certificate of Appealability And Motion for Stay filed by All Plaintiffs. (Lucas, Diane) (Entered: 01/03/2018)

01/04/2018

ORDER granting 189 Motion for Leave to Appear Pro Hac Vice -Attorney Sameer Sheikh, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By January 11, 2018, Mr. Sheikh shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Sheikh shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Sheikh shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 1/4/2018. (Drake, Shaw) (Entered: 01/04/2018)

01/04/2018 194 NOTICE of Appearance by Sameer Parvez Sheikh on behalf of Lawyers' Committee for Civil Rights Under Law (notification declined or already on case) (Sheikh, Sameer) (Entered: 01/04/2018)

01/05/2018

195 MOTION to Adjourn Conference Currently Scheduled for Jan. 8, 2018 by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 01/05/2018)

01/05/2018

ORDER granting 195 Motion to Adjourn Conference -- The conference previously scheduled for January 8, 2018, is adjourned pending decision on Defendants motion for certification of the courts November 9, 2017 order for interlocutory appeal, Docket Entry 184 . Ordered by Magistrate Judge James Orenstein on 1/5/2018. (Drake, Shaw) (Entered: 01/05/2018)

01/05/2018 196 REPLY in Support re 184 MOTION for Certificate of Appealability filed by All Defendants. (Westmoreland, Rachael) (Entered: 01/05/2018)

01/08/2018

197 Consent MOTION for Leave to File Excess Pages by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 01/08/2018)

01/08/2018

198 MEMORANDUM & ORDER, For the reasons stated above, Defendants' motion for the court to certify its November 9th M&O for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (Dkt. 219 in No. 16-CV-4756; Dkt 184 in No. 17-CV-5228) is GRANTED. Discovery and record supplementation in these cases are stayed pending the Second Circuit's decision on Defendants' anticipated interlocutory appeal. (See Dec. 27, 2017, USCA Order at 4.) So Ordered by Judge Nicholas G. Garaufis on 1/8/2018. (Lee, Tiffeny) (Entered: 01/08/2018)

01/08/2018

199 NOTICE OF INTERLOCUTORY APPEAL as to 85 Order on Motion to Dismiss,,,,,,, by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 01/08/2018)

01/09/2018

Electronic Index to Record on Appeal sent to US Court of Appeals. 199 Notice of Interlocutory Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 01/09/2018)

01/10/2018

ORDER re: Defendants' unopposed Application for Leave to File Excess Pages (Dkt. 232 in 16-CV-4756; Dkt. 197 in 17-CV-5228): The Application is GRANTED. Defendants' anticipated brief in opposition to Plaintiffs' motions for a preliminary injunction shall not exceed 50 pages in length. Ordered by Judge Nicholas G. Garaufis on 1/10/2018. (Scott, Conrad) (Entered: 01/10/2018)

01/11/2018

ORDER. The parties are DIRECTED, by no later than January 12, 2018, to submit letters to the court addressing whether the oral argument currently scheduled for January 18, 2018, should be adjourned in light of Defendants' pending interlocutory appeal from the court's November 9, 2017, Memorandum and Order. Ordered by Judge Nicholas G. Garaufis on 1/11/2018. (Scott, Conrad) (Entered: 01/11/2018)

01/11/2018 200 Letter in Response to the Court's Jan. 11, 2018 Order by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs

Enforcement, United States of America (Pezzi, Stephen) (Entered: 01/11/2018)

01/12/2018

201 Letter in response to ECF 198 by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Saini, Ajay) (Entered: 01/12/2018)

01/12/2018

ORDER. The oral argument previously scheduled for January 18, 2018, at 11 a.m. is ADJOURNED until January 30, 2018, at 11 a.m. At a later date, the court will issue an order regarding the State Plaintiffs' letter requesting clarification of the format and timing of oral argument (Dkt. 185 in No. 17-CV-5228). Ordered by Judge Nicholas G. Garaufis on 1/12/2018. (Scott, Conrad) (Entered: 01/12/2018)

01/12/2018 202 MEMORANDUM in Opposition re 71 MOTION to Dismiss Motion to Dismiss for Failure to State a Claim filed by All Plaintiffs. (Lucas, Diane) (Entered: 01/12/2018)

01/12/2018

203 CERTIFICATE OF SERVICE by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington re 202 Memorandum in Opposition to Defendants' 12(b)(6) Motion to Dismiss (Lucas, Diane) (Entered: 01/12/2018)

01/13/2018 204 MEMORANDUM in Opposition re 96 First MOTION for Preliminary Injunction filed by All Defendants. (Pezzi, Stephen) (Entered: 01/13/2018)

01/25/2018

205 Letter by State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Rosado, Lourdes) (Entered: 01/25/2018)

01/26/2018

ORDER re: the State Plaintiffs' Request for Clarification Regarding Logistics for Oral Argument (Dkt. 185 in No. 17-CV-5228). The court sets the following schedule for oral argument: (1) on Plaintiffs' motions for a preliminary injunction, Plaintiffs shall have 15 minutes, to divide as they see fit, and Defendants shall have 15 minutes; (2) on Defendants' motion to dismiss, Plaintiffs shall have 15 minutes, to divide as they see fit, and Defendants shall have 15 minutes; and (3) on the Batalla

Vidal Plaintiffs' motion for class certification, Plaintiffs shall have five minutes, and Defendants shall have five minutes. Ordered by Judge Nicholas G. Garaufis on 1/26/2018. (Scott, Conrad) (Entered: 01/26/2018)

01/30/2018

Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Argument held on 1/30/2018 on Plaintiffs' motions for preliminary injunction (Dkt. 123 in No. 16-CV-4756; Dkt. 96 in No. 17-CV-5228); Defendants' motion to dismiss (Dkt. 207 in No. 16-CV-4756; Dkt. 71 in No. 17-CV-5228); and the Batalla Vidal Plaintiffs' motion for class certification (Dkt. 124 in No. 16-CV-4756). Counsel for all parties present. The court reserved decision on the motions. (Court Reporter Holly Driscoll) (Scott, Conrad) (Entered: 01/30/2018)

01/31/2018

206 ORDER of USCA as to 199 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America. Petitioners move, pursuant to 28 U.S.C. § 1292(b), for leave to appeal an order of the District Court denying their motion to dismiss these two District Court actions for lack of jurisdiction. The parties request that the petitions for leave to appeal be held in abeyance until the District Court rules on pending motions for injunctive relief and dismissal. It is ORDERED that the petitions for leave to file are held in abeyance pending the District Court's adjudication of the parties' pending motions. Once the District Court has decided the parties' pending motions, the Clerk of Court is directed to place the motion for leave to appeal the District Court's orders on the calendar for the next available panel. Certified Copy Issued: 1/31/18. USCA #18-123. Document also reflects USCA #18-122 (16-cv4756) (McGee, Mary Ann) (McGee, Mary Ann) (Entered: 01/31/2018)

02/01/2018 207 NOTICE of Appearance by Sirine Shebaya on behalf of Albuquerque Insight Meditation Center et al (aty to be noticed) (Shebaya, Sirine) (Entered: 02/01/2018)

02/13/2018

208 MEMORANDUM & ORDER, Plaintiffs' motions for preliminary injunction (Dkt. 123 in No. 16-CV-4756; Dkt. 96 in No. 17-CV-5228) are GRANTED. The Batalla Vidal Plaintiffs' motion for class certification (Dkt. 124) is DENIED as moot. So Ordered by Judge Nicholas G. Garaufis on 2/13/2018. (Lee, Tiffeny) (Entered: 02/13/2018)

02/13/2018

209 AMENDED MEMORANDUM & ORDER AND PRELIMINARY INJUNCTION. The Memorandum & Order filed earlier today is withdrawn. Ordered by Judge Nicholas G. Garaufis on 2/13/2018. (Scott, Conrad) (Entered: 02/13/2018)

02/20/2018

210 NOTICE OF INTERLOCUTORY APPEAL as to 209 Order by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 02/20/2018)

02/20/2018

Electronic Index to Record on Appeal sent to US Court of Appeals. 210 Notice of Interlocutory Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 02/20/2018)

02/21/2018

211 USCA MANDATE - Petitioner Kirstjen M. Nielsen, the Secretary of the Department of Homeland Security, seeks a writ of mandamus to stay discovery orders entered by the District Court that required the Government (1) to supplement the administrative record it filed with the District Court and (2) to file a privilege log, in litigation challenging the decision to rescind the Deferred Action for Childhood Arrivals(DACA) program. We have considered Petitioner's additional arguments and find no basis for the extraordinary remedy of mandamus relief. Accordingly, the petition is DENIED, and the stay of the District Court's discovery orders is LIFTED. SEE DOCUMENT FOR FURTHER DETAILS. Issued as Mandate: 2/21/18. USCA #17-3345. Document also reflects 16cv-4756. (McGee, Mary Ann) (Entered: 02/21/2018)

02/23/2018

212 MOTION for Leave to Appear Pro Hac Vice Valerie M. Nannery Filing fee $ 150, receipt number 0207-10225637. by District of Columbia. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Nannery, Valerie) (Entered: 02/23/2018)

02/26/2018

ORDER granting 212 Motion for Leave to Appear Pro Hac Vice -Attorney Valerie Nannery, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By March 5, 2018, Ms. Nannery shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Nannery shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Nannery shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 2/26/2018. (Drake, Shaw) (Entered: 02/26/2018)

02/26/2018 213 NOTICE of Appearance by Valerie M. Nannery on behalf of District of Columbia (notification declined or already on case) (Nannery, Valerie) (Entered: 02/26/2018)

03/19/2018 214 MOTION to Withdraw as Attorney by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George

Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Declaration of Danielle Gray in Support of Motion for Withdrawal of Appearance, # 2 Proposed Order) (Gray, Danielle) (Entered: 03/19/2018)

03/19/2018

ORDER granting 214 Motion to Withdraw as Attorney. The motion is granted; Attorney Danielle Carim Gray terminated. Ordered by Magistrate Judge James Orenstein on 3/19/2018. (Salvador, Anjali) (Entered: 03/19/2018)

03/29/2018

215 MEMORANDUM & ORDER, For the reasons stated above, Defendants' motions to dismiss the Batalla Vidal Plaintiffs' third amended complaint and the State Plaintiffs' amended complaint (Dkt. 207 in No. 16-CV4756; No. 71 in No. 17-CV-5228) are GRANTED IN PART and DENIED IN PART. The Batalla Vidal Plaintiffs' first, third, and fourth claims for relief are dismissed, and the second claim for relief is dismissed to the extent it alleges that Defendants weakened DHS's information-use policy. The sixth claim for relief is dismissed in part, as stated above. The State Plaintiffs' fifth and sixth claims for relief are dismissed. So Ordered by Judge Nicholas G. Garaufis on 3/29/2018. (Lee, Tiffeny) (Entered: 03/29/2018)

04/10/2018

216 MOTION to Stay Answer Deadline Pending Appeal by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 04/10/2018)

04/10/2018

ORDER re 216 MOTION to Stay Answer Deadline Pending Appeal -Any party seeking to be heard on the instant motion shall submit its response by April 11, 2018. Ordered by Magistrate Judge James Orenstein on 4/10/2018. (Drake, Shaw) (Entered: 04/10/2018)

04/12/2018

ORDER granting in part and denying in part 216 Motion to Stay -- I agree with the Batalla Vidal plaintiffs that the defendants' proposal to stay the deadline for answering pending the resolution of appeals currently before the circuit court is inefficient and unnecessary. In the absence of such relief, the parties will be ready to resume discovery as soon as the appeals are resolved, while granting the motion will cause additional delay. It is reasonable to require the defendants to take the steps necessary to avoid exacerbating the needless delays they have already caused. However, that result can be achieved by granting the alternative relief the defendants propose of a 45-day extension of the time to answer. There is no

reasonable prospect of the appeals being resolved by the deadline the Batalla Vidal plaintiffs suggest (April 20, 2018). Accordingly, I deny the defendants' request for an indefinite stay, but grant their alternative request of a 45-day extension. The defendants' shall file their amended answers by May 29, 2018. Ordered by Magistrate Judge James Orenstein on 4/12/2018. (Drake, Shaw) (Entered: 04/12/2018)

04/13/2018

217 MOTION for Leave to Appeal , Pursuant to 28 U.S.C. 1292(b), the Court's March 29, 2018 Order by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Attachments: # 1 Memorandum in Support) (Pezzi, Stephen) (Entered: 04/13/2018)

04/13/2018

ORDER re: Defendants' Motion for Certification of the Court's March 29, 2018, Memorandum and Order for Interlocutory Appeal (No. 264 in No. 16-CV-4756; No. 217 in No. 17-CV-5228): Plaintiffs shall file their responses to the Motion, if any, by no later than April 18, 2018. Ordered by Judge Nicholas G. Garaufis on 4/13/2018. (Scott, Conrad) (Entered: 04/13/2018)

04/19/2018

218 Letter Regarding Motion for Certification Under 28 U.S.C. 1292(b) by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Pezzi, Stephen) (Entered: 04/19/2018)

04/24/2018 219 NOTICE of Change of Address by Lourdes Maria Rosado (Rosado, Lourdes) (Entered: 04/24/2018)

04/30/2018

220 ORDER, Defendants' motion to certify the court's March 29 M&O for interlocutory appeal (Dkt. 264 in No. 16-CV-4756; Dkt. 217 in No. I7CV-5228) is granted. So Ordered by Judge Nicholas G. Garaufis on 4/30/2018. (Lee, Tiffeny) (Entered: 04/30/2018)

05/04/2018

221 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10407681. by State of Hawaii. (Attachments: # 1 Affidavit of Deirdre-Marie-Iha, # 2 Certificate of Standing) (Marie-Iha, Deirdre) (Entered: 05/04/2018)

05/07/2018

ORDER denying 221 Motion for Leave to Appear Pro Hac Vice -- The motion is denied without prejudice to the movant's right to seek reconsideration in conformity with this court's local rules, which require that an application for admission pro hac vice include a properly sworn and notarized affidavit stating (a) whether the applicant has ever been convicted of a felony, (b) whether the applicant has ever been censured, suspended, disbarred or denied admission or readmission by any court, (c)

whether there are any disciplinary proceedings presently against the applicant, and (d) the facts and circumstances surrounding any affirmative responses to (a) through (c). See Loc. Civ. R. 1.3(c). If the applicant seeks reconsideration, she must do so no later than May 21, 2018. Ordered by Magistrate Judge James Orenstein on 5/7/2018. (Drake, Shaw) (Entered: 05/07/2018)

05/11/2018

222 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10427244. by State of Hawaii. (Attachments: # 1 Affidavit of Deirdre Marie-Iha, # 2 Certificate of Standing) (Marie-Iha, Deirdre) (Entered: 05/11/2018)

05/14/2018

ORDER granting 222 Motion for Leave to Appear Pro Hac Vice -Attorney Deirdre Marie-Iha, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By May 21, 2018, Ms. Marie-Iha shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Marie-Iha shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Marie-Iha shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 5/14/2018. (Salvador, Anjali) (Entered: 05/14/2018)

05/14/2018 223 NOTICE of Appearance by Deirdre Marie-Iha on behalf of State of Hawaii (notification declined or already on case) (Marie-Iha, Deirdre) (Entered: 05/14/2018)

05/18/2018

224 MOTION to Withdraw as Attorney by State of Hawaii. (Attachments: # 1 Declaration of Donna H. Kalama in Support of Motion for Withdrawal of Appearance, # 2 Proposed Order Terminating Appearance) (Marie-Iha, Deirdre) (Entered: 05/18/2018)

05/21/2018

ORDER granting 224 Motion to Withdraw as Attorney -- The application is granted; attorney Donna H. Kalama terminated. Ordered by Magistrate Judge James Orenstein on 5/21/2018. (Drake, Shaw) (Entered: 05/21/2018)

05/21/2018

225 NOTICE OF INTERLOCUTORY APPEAL as to 215 Order on Motion to Dismiss,,, Order on Motion to Dismiss for Failure to State a Claim,, by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Pezzi, Stephen) (Entered: 05/21/2018)

05/21/2018

Electronic Index to Record on Appeal sent to US Court of Appeals. 225 Notice of Interlocutory Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under

seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 05/21/2018)

05/29/2018

226 NOTICE by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Exhibit 1 - Feb. 26, 2018 Order, # 2 Exhibit 2 - Mar. 20, 2018 Order) (Pezzi, Stephen) (Entered: 05/29/2018)

05/29/2018 227 ANSWER to 54 Amended Complaint, by All Defendants. (Pezzi, Stephen) (Entered: 05/29/2018)

06/12/2018

228 MOTION for Leave to Appear Pro Hac Vice for Plaintiff State of Colorado Filing fee $ 150, receipt number 0207-10504709. by State of Colorado. (Attachments: # 1 Affidavit Affidavit, # 2 Admission Information Notice of Motion) (Melmed, Jacqueline) (Entered: 06/12/2018)

06/13/2018

ORDER granting 228 Motion for Leave to Appear Pro Hac Vice -Attorney Jacqueline C. Melmed, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By June 20, 2018, Ms. Melmed shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Melmed shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Melmed shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 6/13/2018. (Drake, Shaw) (Entered: 06/13/2018)

06/13/2018 229 NOTICE of Appearance by Jacqueline C. Melmed on behalf of State of Colorado (notification declined or already on case) (Melmed, Jacqueline) (Entered: 06/13/2018)

07/06/2018

230 ORDER of USCA as to 225 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America, 199 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America, 210 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America. Petitioners move, pursuant to 28 U.S.C. § 1292(b), for leave to appeal November 9, 2017, and March 29, 2018, Orders of the District Court denying their motions to dismiss for lack of jurisdiction and for failure to state a claim. Upon due consideration, it is hereby ORDERED that the petitions are GRANTED.

See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 23-25 (2d Cir. 1990). It is further ORDERED that these appeals, as well as the appeals docketed under 2d Cir. 18-1521 and 18-1525, be heard in tandem with Petitioners appeals of the District Courts February 13, 2018, preliminary injunction, 2d Cir. 18-485 and 18-488. Petitioners are directed to file a scheduling notification within 14 days of the date of entry of this Order pursuant to Second Circuit Local Rule 31.2. Certified Copy Issued: 7/5/18.. USCA #18-123 and #18-1314. (McGee, Mary Ann) (Entered: 07/06/2018)

07/13/2018 231 NOTICE by State Of New York Withdrawal of Diane Lucas as counsel for the State of New York. New York State continues to serve as counsel in this matter. (Lucas, Diane) (Entered: 07/13/2018)

07/13/2018

ORDER re 231 Notice(Other) filed by State Of New York -- The application is granted; attorney Diane O. Lucas terminated. Ordered by Magistrate Judge James Orenstein on 7/13/2018. (Drake, Shaw) (Entered: 07/13/2018)

07/20/2018

232 MANDATE of USCA as to 225 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America, 199 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America, 210 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America. Petitioners move, pursuant to 28 U.S.C. § 1292(b), for leave to appeal November 9, 2017, and March 29, 2018, Orders of the District Court denying their motions to dismiss for lack of jurisdiction and for failure to state a claim. Upon due consideration, it is hereby ORDERED that the petitions are GRANTED. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 23-25 (2d Cir. 1990). It is further ORDERED that these appeals, as well as the appeals docketed under 2d Cir. 18-1521 and 18-1525, be heard in tandem with Petitioners appeals of the District Court's February 13, 2018, preliminary injunction, 2d Cir. 18-485 and 18-488. Petitioners are directed to file a scheduling notification within 14 days of the date of entry of this Order pursuant to Second Circuit Local Rule 31.2. USCA #18-123 and #181314. Mandate also reflects 16-cv-4756 with USCA #18-122 and 181313. Issued as Mandate: 7/19/18. (McGee, Mary Ann) (McGee, Mary Ann). (Entered: 07/20/2018)

08/20/2018 233 Letter MOTION to Withdraw as Attorney by New York University. (Rainwater, Shiloh) (Entered: 08/20/2018)

08/20/2018 234 NOTICE by New York University for Shiloh A. Rainwater to withdraw as attorney. (Rainwater, Shiloh) (Entered: 08/20/2018)

08/20/2018

ORDER granting 233 Motion to Withdraw as Attorney -- The application is granted; attorney Shiloh Rainwater terminated. Ordered by Magistrate Judge James Orenstein on 8/20/2018. (Drake, Shaw) (Entered: 08/20/2018)

08/22/2018 235 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-10676049. by State of Hawaii. (Nakatsuji, Robert) (Entered: 08/22/2018)

08/23/2018

ORDER granting 235 Motion for Leave to Appear Pro Hac Vice -Attorney Robert Nakatsuji, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By August 30, 2018, Mr. Nakatsuji shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Nakatsuji shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Nakatsuji shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 8/23/2018. (Drake, Shaw) (Entered: 08/23/2018)

08/27/2018 236 NOTICE of Appearance by Robert T. Nakatsuji on behalf of State of Hawaii (notification declined or already on case) (Nakatsuji, Robert) (Entered: 08/27/2018)

09/10/2018 237 MOTION to Withdraw as Attorney by State of Hawaii. (Attachments: # 1 Declaration of Marie-Iha, # 2 Proposed Order Terminating Appearance) (Nakatsuji, Robert) (Entered: 09/10/2018)

09/11/2018

ORDER granting 237 Motion to Withdraw as Attorney -- The application is granted; attorney Deirdre Marie-Iha terminated. Ordered by Magistrate Judge James Orenstein on 9/11/2018. (Drake, Shaw) (Entered: 09/11/2018)

12/12/2018 238 Friend of the Court/Amicus Brief submitted by David Andrew Christenson. (Lee, Tiffeny) (Entered: 12/17/2018)

12/27/2018 239 MOTION to Join/Intervene by David Andrew Christenson. (Lee, Tiffeny) (Entered: 12/28/2018)

02/05/2019 240 MOTION to Withdraw as Attorney by State of New Mexico. (Attachments: # 1 Declaration, # 2 Proposed Order) (Biernoff, Ari) (Entered: 02/05/2019)

02/06/2019

ORDER granting 240 Motion to Withdraw as Attorney -- The motion is granted; attorney Ari Biernoff terminated. Ordered by Magistrate Judge James Orenstein on 2/6/2019. (Roantree, Bronwyn) Modified on 2/7/2019 (Guy, Alicia). (Entered: 02/06/2019)

02/11/2019 241 NOTICE by State Of New York of Motion to Withdraw Appearance (Attachments: # 1 Declaration, # 2 Proposed Order) (Rosado, Lourdes) Modified on 2/12/2019 (Guy, Alicia). (Entered: 02/11/2019)

02/11/2019 242 NOTICE of Appearance by Matthew B Colangelo on behalf of State Of New York (aty to be noticed) (Colangelo, Matthew) (Entered: 02/11/2019)

02/12/2019

ORDER granting 241 Motion to Withdraw as Attorney - The motion is granted; attorney Lourdes Maria Rosado terminated. Ordered by Magistrate Judge James Orenstein on 2/12/2019. (Roantree, Bronwyn) (Entered: 02/12/2019)

02/25/2019 243 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11229005. by State of Illinois. (Attachments: # 1 Affidavit, # 2 Admission Information) (VanDam, Jeffrey) (Entered: 02/25/2019)

02/26/2019

244 ORDER granting 243 Motion for Leave to Appear Pro Hac Vice -Attorney Jeffrey VanDam, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By March 5, 2019, Mr. VanDam shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. VanDam shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. VanDam shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 2/26/2019. (Roantree, Bronwyn) (Entered: 02/26/2019)

02/26/2019 245 Notice of MOTION to Withdraw as Attorney of Anna Crane by State of Illinois. (Attachments: # 1 Declaration of Anna Crane, # 2 Proposed Order) (VanDam, Jeffrey) (Entered: 02/26/2019)

02/27/2019

ORDER granting 245 Motion to Withdraw as Attorney -- The motion is granted; attorney Anna P. Crane terminated. Ordered by Magistrate Judge James Orenstein on 2/27/2019. (Roantree, Bronwyn) (Entered: 02/27/2019)

03/05/2019 246 MOTION to Withdraw as Attorney by State of Massachusetts. (Attachments: # 1 Declaration, # 2 Proposed Order) (Nadeau, Genevieve) (Entered: 03/05/2019)

03/05/2019

ORDER granting 246 Motion to Withdraw as Attorney -- The motion is granted; attorney Genevieve C. Nadeau terminated. Ordered by

Magistrate Judge James Orenstein on 3/5/2019. (Roantree, Bronwyn) (Entered: 03/05/2019)

03/21/2019 247 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11308647. by State of Colorado. (Attachments: # 1 Affidavit, # 2 Certificates of Good Standing) (Olson, Eric) (Entered: 03/21/2019)

03/22/2019

ORDER granting 247 Motion for Leave to Appear Pro Hac Vice -Attorney Eric R. Olson, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By March 29, 2019, Mr. Olson shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Olson shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Olson shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 3/22/2019. (Gustafson, Kaelyn) (Entered: 03/22/2019)

03/22/2019 248 NOTICE of Appearance by Eric Olson on behalf of State of Colorado (notification declined or already on case) (Olson, Eric) (Entered: 03/22/2019)

04/11/2019

249 MOTION to Withdraw as Attorney Brett A. Shumate by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Shumate, Brett) (Entered: 04/11/2019)

04/11/2019

ORDER granting 249 Motion to Withdraw as Attorney -- The motion is granted; attorney Brett Shumate terminated. Ordered by Magistrate Judge James Orenstein on 4/11/2019. (Roantree, Bronwyn) (Entered: 04/11/2019)

07/30/2019

250 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-11712787. by State of Virginia. (Attachments: # 1 Affidavit of Movant, Michelle S. Kallen, # 2 Certificate of Good Standing from California dated July 12, 2019, # 3 Certificate of Good Standing from the District of Columbia dated July 25, 2019, # 4 Certificate of Good Standing from Virginia dated July 10, 2019) (Kallen, Michelle) (Entered: 07/30/2019)

07/31/2019

ORDER granting 250 Motion for Leave to Appear Pro Hac Vice -Attorney Michelle S. Kallen, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By August 7, 2019, Ms. Kallen shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Ms. Kallen shall file a notice of appearance and ensure that she receives electronic notification of activity in this case. Ms. Kallen shall also ensure that the $150 admission fee be submitted to

the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 7/31/2019. (Roantree, Bronwyn) (Entered: 07/31/2019)

07/31/2019 251 NOTICE of Appearance by Michelle Kallen on behalf of State of Virginia (notification declined or already on case) (Kallen, Michelle) (Entered: 07/31/2019)

10/10/2019 252 NOTICE of Appearance by Kathleen Marie Konopka on behalf of District of Columbia (aty to be noticed) (Konopka, Kathleen) (Entered: 10/10/2019)

10/11/2019 253 MOTION to Withdraw as Attorney by District of Columbia. (Attachments: # 1 Declaration, # 2 Proposed Order) (Nannery, Valerie) (Entered: 10/11/2019)

10/11/2019

ORDER granting 253 Motion to Withdraw as Attorney -- The motion is granted; attorney Valerie M. Nannery is terminated. Ordered by Magistrate Judge James Orenstein on 10/11/2019. (Gutmann, Joseph) (Entered: 10/11/2019)

01/02/2020 254 MOTION to Withdraw as Attorney by State of Massachusetts. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Miller, Jonathan) (Entered: 01/02/2020)

01/02/2020

ORDER granting 254 Motion to Withdraw as Attorney -- The motion is granted; attorney Jonathan B. Miller is terminated. Ordered by Magistrate Judge James Orenstein on 1/2/2020. (Gutmann, Joseph) (Entered: 01/02/2020)

01/17/2020 255 MOTION to Withdraw as Attorney by State Of New York. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Saini, Ajay) (Entered: 01/17/2020)

01/17/2020

ORDER granting 255 Motion to Withdraw as Attorney -- The motion is granted; attorney Ajay Saini is terminated. Ordered by Magistrate Judge James Orenstein on 1/17/2020. (Walker, Anna) (Entered: 01/17/2020)

02/27/2020 256 MOTION to Withdraw as Attorney Karen Lin by 114 U.S. - Based Companies. (Attachments: # 1 Declaration of Karen Lin, # 2 Proposed Order) (Lin, Karen) (Entered: 02/27/2020)

02/27/2020

ORDER granting 256 Motion to Withdraw as Attorney -- The motion is granted; attorney Karen W. Lin is terminated. Ordered by Magistrate Judge James Orenstein on 2/27/2020. (Gutmann, Joseph) (Entered: 02/27/2020)

02/28/2020 257 MOTION to Withdraw as Attorney by Brown University, California Institute of Technology, Columbia University, Cornell University,

Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (Attachments: # 1 Declaration of Jennifer B. Sokoler, # 2 Proposed Order) (Sokoler, Jennifer) (Entered: 02/28/2020)

03/01/2020

ORDER granting 257 Motion to Withdraw as Attorney -- The motion is granted; attorney Jennifer B. Sokoler is terminated. Ordered by Magistrate Judge James Orenstein on 3/1/2020. (Gutmann, Joseph) (Entered: 03/01/2020)

07/28/2020

258 NOTICE by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Ex. 1 - Wolf Memorandum) (Pezzi, Stephen) (Entered: 07/28/2020)

07/29/2020

259 ORDER of USCA as to 225 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America, 210 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America. The appeal in the above captioned case from an Order of the United States District Court for the Eastern District of New York was argued on the District Court's record and the parties' briefs. While the appeal was pending, the Supreme Court granted Defendants-Appellants' petition for certiorari before judgment. The Supreme Court issued its Opinion on June 18, 2020, and its judgment was transmitted to this Court on July 20, 2020.Upon consideration thereof, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the District Court's February 13, 2018 order granting a preliminary injunction is VACATED, the District Court's November 9, 2017 Order partially denying Defendants-Appellants' motion to dismiss is AFFIRMED IN PART, and the District Court's March 29, 2018 Order partially denying the balance of Defendants-Appellants' motion to dismiss is REVERSED IN PART. The case is REMANDED to the District Court for further proceedings consistent with the Supreme Court's Opinion. Certified Copy Issued: 7/29/20. USCA #18-488, 18-1525, 18-1987, 18-1988. Order also pertains to case: 16-cv-4756. The USCA #s 18-485, 18-1521, 18-1985, 18-1986. Please Note that the USCA Mandate has not yet been issued. (McGee, Mary Ann) Modified on 7/29/2020 to reflect additional USCA Numbers.(McGee, Mary Ann). (Entered: 07/29/2020)

07/29/2020

260 MANDATE of USCA as to 225 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump, United States of America, 210 Notice of Interlocutory Appeal, filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen M. Nielsen, Donald Trump,United States of America. See document 259 USCA Order certified 7/29/20. This Mandate is issued: 7/29/20. (McGee, Mary Ann) (Main Document 260 replaced on 7/29/2020) (McGee, Mary Ann). (Entered: 07/29/2020)

07/30/2020

261 MOTION to Appear Pro Hac Vice of Christian Douglas Wright Filing fee $ 150, receipt number ANYEDC-13137623. by State of Delaware. (Attachments: # 1 Affidavit Affidavit of Christian Douglas Wright in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Good Standing Certificate of Christian Douglas Wright) (Wright, Christian) (Entered: 07/30/2020)

07/30/2020

ORDER granting 261 Motion for Leave to Appear Pro Hac Vice -Attorney Christian D. Wright, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By August 6, 2020, Mr. Wright shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Wright shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Wright shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 7/30/2020. (Gutmann, Joseph) (Entered: 07/30/2020)

07/30/2020 262 NOTICE of Appearance by Christian Douglas Wright on behalf of State of Delaware (notification declined or already on case) (Wright, Christian) (Entered: 07/30/2020)

08/04/2020 263 NOTICE of Appearance by Galen Thorp on behalf of All Defendants (aty to be noticed) (Thorp, Galen) (Entered: 08/04/2020)

08/11/2020 264 Letter requesting pre-motion conference by State Of New York (Colangelo, Matthew) (Entered: 08/11/2020)

08/12/2020

265 Letter in Response to Plaintiffs' Letters in Advance of August 13 Conference by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Pezzi, Stephen) (Entered: 08/12/2020)

08/12/2020 266 Letter in further support of Plaintiffs' request for coordinated status conference in 17-CV-5228 and 16-CV-4756 by State Of New York (Colangelo, Matthew) (Entered: 08/12/2020)

08/13/2020

ORDER granting 264 request to treat the August 13, 2020 status conference as a pre-motion conference. Each party is DIRECTED to designate one representative to speak on its behalf and, before the conference, to advise the court's Deputy of its representative via email at joseph_reccoppa@nyed.uscourts.gov. Ordered by Judge Nicholas G. Garaufis on 8/13/2020. (Lazarus, Benjamin) (Entered: 08/13/2020)

08/13/2020

Minute Entry for proceedings held by videoconference before Hon. Nicholas G. Garaufis. Counsel for all parties present. The court held a Pre-Motion Conference on August 13, 2020. The court GRANTED leave for Plaintiffs to file amended complaints. The court DIRECTED the parties to meet and confer and to submit, by August 19, 2020, either a joint proposed briefing schedule and schedule for the production of administrative materials, or separate proposed schedules for the same. A status conference is scheduled for August 20, 2020, at 2 pm, at which the court will consider any unresolved scheduling issues. (Court Reporter Rivka Teich.) (Lazarus, Benjamin) (Entered: 08/13/2020)

08/17/2020

ORDER: The parties are DIRECTED to submit their joint or individual briefing schedules by noon on August 19, 2020. Ordered by Judge Nicholas G. Garaufis on 8/17/2020. (Lazarus, Benjamin) (Entered: 08/17/2020)

08/19/2020 267 Letter regarding Plaintiffs' joint proposed briefing schedule by State Of New York (Attachments: # 1 Exhibit 1 (In re Nielsen)) (Colangelo, Matthew) (Entered: 08/19/2020)

08/19/2020

268 Letter Regarding Proposed Schedule by Donald Trump, Kirstjen M. Nielsen, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Ex. 1 - Pls.' Original Scheduling Proposal, # 2 Ex. 2 - Meet and Confer Email Chain) (Pezzi, Stephen) (Entered: 08/19/2020)

08/19/2020

ORDER: Plaintiffs are DIRECTED to file their amended complaints by Friday, August 28, 2020 at 12:00 pm. The Government is DIRECTED to produce and file the administrative record, along with a privilege log, by Friday, September 4, 2020 at 12:00 pm. The court will consider all other unresolved scheduling questions during the status conference on Thursday, August 20, 2020 at 2:00 pm. Before the conference, each party is DIRECTED to designate one representative to speak on its behalf and to advise the court's Deputy of its representative via email at joseph_reccoppa@nyed.uscourts.gov. Ordered by Judge Nicholas G. Garaufis on 8/19/2020. (Lazarus, Benjamin) (Entered: 08/19/2020)

08/20/2020 269 NOTICE of Appearance by Joseph John Wardenski on behalf of State Of New York (aty to be noticed) (Wardenski, Joseph) (Entered: 08/20/2020)

08/24/2020

270 SCHEDULING ORDER re: briefing and the production of administrative materials in two related cases: Batalla Vidal, et al. v. Wolf, et al., No. 16cv-4756 (NGG) (JO), and State of NewYork, etal. v. Trump, etal., No.17cv-5228 (NGG) (JO). So Ordered by Judge Nicholas G. Garaufis on 8/24/2020. (Lee, Tiffeny) (Entered: 08/24/2020)

08/28/2020

271 AMENDED COMPLAINT Plaintiffs' Second Amended Supplemental Complaint against Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf, filed by State of Virginia, State of North Carolina, State of Vermont, State of Colorado, State of Massachusetts, State of Rhode Island, State of Illinois, State of Delaware, State of Hawaii, State of New Mexico, State of Oregon, State Of New York, State of Pennsylvania, District of Columbia, State of Washington, State of Iowa, State of Connecticut. (Attachments: # 1 Exhibit 180, # 2 Exhibit 181, # 3 Exhibit Redline showing changes from First Amended Complaint to Second Amended Supplemental Complaint) (Colangelo, Matthew) (Entered: 08/28/2020)

08/28/2020

272 MOTION for Summary Judgment by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 08/28/2020)

08/28/2020

273 DECLARATION re 272 MOTION for Summary Judgment Declaration of Matthew Colangelo in support of Plaintiffs' Motion for Partial Summary Judgment by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15) (Colangelo, Matthew) (Entered: 08/28/2020)

08/28/2020

274 RULE 56.1 STATEMENT re 272 MOTION for Summary Judgment filed by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 08/28/2020)

08/28/2020

275 MEMORANDUM in Support re 272 MOTION for Summary Judgment filed by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 08/28/2020)

08/31/2020

276 MOTION to Appear Pro Hac Vice of Daniel R. Suvor Filing fee $ 150, receipt number ANYEDC-13290403. by County of Los Angeles. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 2 California Certificate of Good Standing, # 3 Proposed Order for Admission Pro Hac Vice of Daniel R. Suvor) (Suvor, Daniel) (Entered: 08/31/2020)

08/31/2020

277 MOTION to Appear Pro Hac Vice of Margaret L. Carter Filing fee $ 150, receipt number ANYEDC-13290688. by County of Los Angeles. (Attachments: # 1 Affidavit in Support of Motion to Admit Counsel Pro Hac Vice, # 2 California Certificate of Good Standing, # 3 Proposed Order for Admission Pro Hac Vice of Margaret L. Carter) (Carter, Margaret) (Entered: 08/31/2020)

08/31/2020

ORDER granting 276 Motion for Leave to Appear Pro Hac Vice; granting 277 Motion for Leave to Appear Pro Hac Vice -- Attorneys Daniel R. Suvor, Esq. and Margaret L. Carter, Esq. are permitted to argue or try this case in whole or in part as counsel or advocate. By September 8, 2020, Mr. Suvor and Ms. Carter shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Suvor and Ms. Carter shall each file a notice of appearance and ensure that they receive electronic notification of activity in this case. Mr. Suvor and Ms. Carter shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 8/31/2020. (Gutmann, Joseph) (Entered: 08/31/2020)

09/01/2020 278 Consent MOTION for Leave to File Document Amicus Brief by Constitutional Accountability Center. (Attachments: # 1 Proposed Brief of Amicus Curiae) (Gans, David) (Entered: 09/01/2020)

09/03/2020

279 MOTION to Appear Pro Hac Vice Filing fee $ 150, receipt number ANYEDC-13311101. by Morton Rosenberg. (Attachments: # 1 Declaration of Mark S. Davies, # 2 Certificate of Good Standing DC) (Davies, Mark) (Entered: 09/03/2020)

09/03/2020

280 Letter MOTION for Leave to File Document on Consent (Proposed Amicus Brief of Morton Rosenberg) by Morton Rosenberg. (Attachments: # 1 Proposed Amicus Brief of Morton Rosenberg) (Bhatti, Upnit) (Entered: 09/03/2020)

09/04/2020

ORDER granting 279 Motion for Leave to Appear Pro Hac Vice -Attorney Mark S. Davies, Esq. is permitted to argue or try this case in whole or in part as counsel or advocate. By September 11, 2020, Mr. Davies shall register for ECF. Registration is available online at the EDNY's homepage. Once registered, Mr. Davies shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Mr. Davies shall also ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge James Orenstein on 9/4/2020. (Gutmann, Joseph) (Entered: 09/04/2020)

09/04/2020

281 Letter MOTION for Leave to File Document the Brief of Amici Curiae 55 Local Governments and the U.S. Conference of Mayors in Support of Plaintiffs' Motions for Partial Summary Judgment by County of Los Angeles. (Attachments: # 1 Brief of Amici Curiae 55 Local Governments and the U.S. Conference of Mayors in Support of Plaintiffs' Motions for Partial Summary Judgment) (Carter, Margaret) (Entered: 09/04/2020)

09/04/2020

282 NOTICE by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf of Filing of Administrative Record (Attachments: # 1 Certification of Administrative Record, # 2 Administrative Record Nos. 1-8, # 3 Administrative Record Nos. 9-10, # 4 Administrative Record Nos. 11-22, # 5 Administrative Record No. 23 (part 1), # 6 Administrative Record No. 23 (part 2), # 7 Administrative Record No. 23 (part 3), # 8 Administrative Record No. 24, # 9 Administrative Record Nos. 25-49, # 10 Administrative Record Nos. 50-100) (Thorp, Galen) (Entered: 09/04/2020)

09/04/2020 283 NOTICE of Appearance by Margaret Carter on behalf of County of Los Angeles (notification declined or already on case) (Carter, Margaret) (Entered: 09/04/2020)

09/04/2020 284 NOTICE of Appearance by Daniel Suvor on behalf of County of Los Angeles (notification declined or already on case) (Suvor, Daniel) (Entered: 09/04/2020)

09/04/2020

ORDER: 278 Request of Constitutional Accountability Center for leave to file an amicus brief is GRANTED. Ordered by Judge Nicholas G. Garaufis on 9/4/2020. (Lazarus, Benjamin) (Entered: 09/04/2020)

09/04/2020

ORDER: 280 Request of Morton Rosenberg for leave to file an amicus brief is GRANTED. Ordered by Judge Nicholas G. Garaufis on 9/4/2020. (Lazarus, Benjamin) (Entered: 09/04/2020)

09/04/2020

ORDER: 281 Request of local governments and the U.S. Conference of Mayors for leave to file an amicus brief is GRANTED. Ordered by Judge

Nicholas G. Garaufis on 9/4/2020. (Lazarus, Benjamin) (Entered: 09/04/2020)

09/10/2020 285 NOTICE of Appearance by Aimee D. Thomson on behalf of State of Pennsylvania (aty to be noticed) (Thomson, Aimee) (Entered: 09/10/2020)

09/11/2020

286 MOTION for Summary Judgment (Partial) by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Pezzi, Stephen) (Entered: 09/11/2020)

09/11/2020

287 MEMORANDUM in Support re 286 MOTION for Summary Judgment (Partial) filed by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Pezzi, Stephen) (Entered: 09/11/2020)

09/11/2020

288 RULE 56.1 STATEMENT re 286 MOTION for Summary Judgment (Partial) - Responses to Plaintiffs' Local Civil Rule 56.1 Statement and Defendants' Statement of Undisputed Facts filed by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Attachments: # 1 Defs.' Summary Judgment Exhibits) (Pezzi, Stephen) (Entered: 09/11/2020)

09/17/2020

289 STATUS REPORT (Joint Status Report Regarding Administrative Record) by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Pezzi, Stephen) (Entered: 09/17/2020)

09/18/2020

290 NOTICE by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Attachments: # 1 Ex. 1 - Wolf Ratification (Sept. 17, 2020)) (Pezzi, Stephen) (Entered: 09/18/2020)

09/25/2020

291 MEMORANDUM in Opposition re 286 MOTION for Summary Judgment (Partial) Plaintiffs' opposition to Defendants' motion for partial summary judgment, and reply in support of Plaintiffs' motion for partial summary judgment filed by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of

Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 09/25/2020)

09/25/2020

292 NOTICE by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf of Filing of Revised Privilege Log (Attachments: # 1 Exhibit 1) (Thorp, Galen) (Entered: 09/25/2020)

09/28/2020

293 Letter MOTION for Extension of Time to File Summary-Judgment Reply, and to Re-Align the Schedule in the State of New York Matter with the Schedule in the Batalla Vidal Matter by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Pezzi, Stephen) (Entered: 09/28/2020)

09/28/2020

294 NOTICE by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington Notice of Supplemental Authority (Attachments: # 1 Exhibit 1 (Order in Bullock v. U.S. Bureau of Land Management)) (Colangelo, Matthew) (Entered: 09/28/2020)

09/28/2020

295 ORDER granting 293 Motion for Extension of Time to File SummaryJudgment Reply, and to Re-Align the Schedule in the State of New York Matter with the Schedule in the Batalla Vidal Matter. So Ordered by Judge Nicholas G. Garaufis on 9/28/2020. (Lee, Tiffeny) (Entered: 09/28/2020)

09/30/2020 296 NOTICE by State Of New York re 291 Memorandum in Opposition,, Plaintiffs' Notice of Correction (Colangelo, Matthew) (Entered: 09/30/2020)

10/02/2020

297 Letter MOTION for Leave to File Excess Pages (Unopposed) by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Pezzi, Stephen) (Entered: 10/02/2020)

10/05/2020

298 ORDER granting 297 Motion for Leave to File Excess Pages. Defendants respectfully request that they be permitted to file one combined summaryjudgment reply brief, not to exceed 25 pages. Ordered by Judge Nicholas G. Garaufis on 10/5/2020. (Brown, Marc) (Entered: 10/05/2020)

10/07/2020 299 REPLY in Support re 286 MOTION for Summary Judgment (Partial) filed by Donald Trump, U.S. Citizenship and

Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Pezzi, Stephen) (Entered: 10/07/2020)

10/08/2020

300 NOTICE by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Attachments: # 1 Ex. 1 - Second Wolf Ratification) (Pezzi, Stephen) (Entered: 10/08/2020)

10/15/2020 301 NOTICE of Appearance by Christopher D. Dodge on behalf of All Defendants (aty to be noticed) (Dodge, Christopher) (Entered: 10/15/2020)

10/18/2020

302 NOTICE of Appearance by Anisha S Dasgupta on behalf of State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (aty to be noticed) (Dasgupta, Anisha) (Entered: 10/18/2020)

10/19/2020

ORDER: Oral argument, currently scheduled for October 21, 2020, is ADJOURNED sine die. The court will advise the parties whether oral argument is needed after examination of the motion papers submitted. Ordered by Judge Nicholas G. Garaufis on 10/19/2020. (Lazarus, Benjamin) (Entered: 10/19/2020)

11/10/2020

Case Reassigned to Magistrate Judge Ramon E. Reyes, Jr. Magistrate Judge James Orenstein no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Mahoney, Brenna) (Entered: 11/10/2020)

11/12/2020

Case Reassigned to Magistrate Judge Vera M. Scanlon. Magistrate Judge Ramon E. Reyes, Jr no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Mahoney, Brenna) (Entered: 11/12/2020)

11/13/2020

303 Letter by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Pezzi, Stephen) (Entered: 11/13/2020)

11/14/2020

304 MEMORANDUM & ORDER: For the foregoing reasons, Plaintiffs' motion for summary judgment, insofar as it alleges that Defendant Mr. Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA when he issued the Wolf Memorandum, is GRANTED and the Government's cross-motion is DENIED. Plaintiffs' motion for class certification in the Batalla Vidal matter is GRANTED. The parties are DIRECTED to immediately contact the court's Deputy to schedule a conference to advise of any forthcoming motions for relief in light of the court's decision. Ordered by Judge Nicholas G. Garaufis on 11/14/2020. (Marziliano, August) (Marziliano, August) (Entered: 11/14/2020)

11/18/2020

Minute Entry for proceedings held before Judge Nicholas G. Garaufis: On November 18, 2020, the court held a status conference via videoconference. Counsel for all parties present. The court ORDERED a briefing schedule as follows: Plaintiffs shall file their motions by Tuesday, November 24, 2020. The Government shall file its opposition by Tuesday, December 1, 2020. The Government's obligation to respond to Plaintiffs' complaints is STAYED pending resolution of motion practice. (Court Reporter Michelle Lucchese.) (Lazarus, Benjamin) (Entered: 11/18/2020)

11/23/2020

305 MOTION for Leave to File Document Plaintiffs' joint letter requesting leave to forego compliance with Local Rule 56.1 in connection with their forthcoming motion for partial summary judgment by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 11/23/2020)

11/23/2020

306 ORDER granting 305 Motion for Motion for leave to forego compliance with Local Rule 56.1 in connection with their forthcoming motion for partial summary judgment. So Ordered by Judge Nicholas G. Garaufis on 11/23/2020. (Lee, Tiffeny) (Entered: 11/23/2020)

11/24/2020

307 MOTION for Partial Summary Judgment by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Attachments: # 1 Proposed Order) (Colangelo, Matthew) (Entered: 11/24/2020)

11/24/2020 308 DECLARATION re 307 MOTION for Partial Summary Judgment by District of Columbia, State Of New York, State of Colorado, State of

Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Colangelo, Matthew) (Entered: 11/24/2020)

11/24/2020

309 MEMORANDUM in Support re 307 MOTION for Partial Summary Judgment filed by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 11/24/2020)

12/01/2020

310 RESPONSE to Motion re 307 MOTION for Partial Summary Judgment filed by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf. (Attachments: # 1 Ex. 1 - Edlow Declaration) (Pezzi, Stephen) (Entered: 12/01/2020)

12/02/2020

311 MOTION for Leave to File Document Plaintiffs' joint letter requesting leave to file a reply in support of their motion for partial summary judgment by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Attachments: # 1 Exhibit 1) (Colangelo, Matthew) (Entered: 12/02/2020)

12/03/2020

Plaintiffs' motion for leave to file a reply is GRANTED. Plaintiffs are DIRECTED to file their reply and to update the court on the status of discussions with the Government by Friday, December 4, 2020 at 12:00 pm. Ordered by Judge Nicholas G. Garaufis on 12/3/2020. (Lazarus, Benjamin) (Entered: 12/03/2020)

12/04/2020

312 REPLY in Support re 307 MOTION for Partial Summary Judgment and update on status of discussions between the parties filed by District of Columbia, State Of New York, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, State of Massachusetts, State of New Mexico, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia, State of Washington. (Colangelo, Matthew) (Entered: 12/04/2020)

12/04/2020

313 Letter with Further Update Regarding the Status of the Parties' Discussions by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Attachments: # 1 Ex. 1 - Meet and Confer Email Chain) (Pezzi, Stephen) (Entered: 12/04/2020)

12/04/2020 314 MEMORANDUM & ORDER granting 307 Motion for Partial Summary Judgment and directing further relief. So Ordered by Judge Nicholas G. Garaufis on 12/4/2020. (Lee, Tiffeny) (Entered: 12/04/2020)

12/07/2020

315 Letter re: Notice on Agency Websites Pursuant to the Court's Dec. 4, 2020 Order by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Pezzi, Stephen) (Entered: 12/07/2020)

12/09/2020

316 ORDER, Defendants are DIRECTED to replace the current notices with the following amended notice language by 5:00 pm on December 9, 2020. (See Order) So Ordered by Judge Nicholas G. Garaufis on 12/9/2020. (Lee, Tiffeny) (Entered: 12/09/2020)

12/09/2020

317 STATUS REPORT (Joint) by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Ex. 1 - Meet and Confer Email Chain) (Pezzi, Stephen) (Entered: 12/09/2020)

12/09/2020

318 Letter re: Notice on Agency Websites Pursuant to the Court's Dec. 9, 2020 Order by Donald Trump, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, Chad Wolf (Pezzi, Stephen) (Entered: 12/09/2020)

12/10/2020

319 ORDER, The court held a status conference on December 10, 2020 to consider outstanding issues addressed by the parties in their Joint Status Report (Dkt. 357). Having considered the positions of the parties, the court ordered the following. (See Order) So Ordered by Judge Nicholas G. Garaufis on 12/10/2020. (Lee, Tiffeny) (Entered: 12/10/2020)

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 Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 1 of 79 PageID #: 1620

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,
Defendants.

CIVIL ACTION NO. 1:17-cv-05228 (NGG) (JO)
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. The States of New York, Massachusetts, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia (the “States”) bring this action to protect the States—including their residents, employers, small governmental jurisdictions, regulatory systems, and educational institutions—against the unlawful actions of the President of the United States and the federal government.
1

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 2 of 79 PageID #: 1621
2. Since 2012, the Deferred Action for Childhood Arrivals (“DACA”) program has protected from deportation and extended work authorization to approximately 800,000 young people who grew up in this country, most of whom have known no home other than the United States.
3. DACA has allowed these young people to live, study, and work in the States (and throughout the country) as contributors and leaders in their communities. DACA grantees attend public and private universities, and are employed by companies, nonprofit organizations, and governmental agencies and institutions, all of which benefit from their skills and productivity. DACA grantees also provide financial support to their families, help to grow the economy, and contribute significantly to State and local revenues and tax bases.
4. On September 5, 2017, the Defendants definitively and categorically terminated the DACA program, as detailed in a U.S. Department of Homeland Security (“DHS”) Memorandum (“DHS Memorandum”). See Ex. 74 (Memorandum from Acting Secretary Elaine Kelly to James McCament, Acting Director of U.S. Citizenship and Immigration Services, Rescission of Deferred Action for Childhood Arrivals, September 5, 2017).
5. Pursuant to the DHS Memorandum, the federal government will only issue renewals for grantees whose benefits expire before March 5, 2018, provided they apply for renewal by October 5, 2018. DHS immediately ceased accepting all new applications under DACA.
6. Ending DACA is a culmination of President’s Trump’s oft-stated commitments— whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage immigrants, especially those with Mexican roots, who make up more than 78 percent of DACA grantees. See Ex. 1 (Updated USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017, June 8, 2017).
2

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 3 of 79 PageID #: 1622
7. The consequence of the President’s decision is that hundreds of thousands of young people who have availed themselves of the program will ultimately lose its protections, and will be exposed to removal when their authorizations expire.
8. Individuals who have relied on DACA are now even more vulnerable to removal than before the program was initiated, as they turned over sensitive information to the federal government in their applications. Despite the federal government’s repeated promises that it would not use such information to conduct enforcement measures, the DHS Memorandum does not explain how the government will keep that information secure, nor does it provide any assurances that immigration enforcement agents will not use such information to find and remove those who applied for DACA.
9. Terminating DACA will harm hundreds of thousands of the States’ residents, injure State-run colleges and universities, upset the States’ workplaces, damage the States’ economies, hurt State-based businesses and nonprofits, negatively affect the States’ small governmental jurisdictions, and disrupt the States’ statutory and regulatory interests.
10. The States respectfully request that the Court invalidate the portions of the DHS Memorandum challenged here. Further, the States ask that the Court enjoin the federal government from using personal information gathered for the DACA program in immigration enforcement.
JURISDICTION AND VENUE 11. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 12. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1). Defendants are United States agencies or officers sued in their official capacities. The State of New York is a resident of this judicial district, and a substantial part of the events or omissions giving rise to this Complaint occurred within the Eastern District of New York.
3

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 4 of 79 PageID #: 1623
13. The States bring this action to redress harms to their proprietary and sovereign interests and their interests as parens patriae.
PARTIES PLAINTIFFS 14. The Plaintiff States of New York,1 Massachusetts, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia, represented by and through their Attorneys General,2 are sovereign states3 of the United States of America. 15. The States are aggrieved and have standing to bring this action because of the injuries to the States caused by the termination of DACA, including immediate and irreparable injuries to their sovereign, quasi-sovereign, and proprietary interests. DEFENDANTS 16. Defendant Donald Trump is the President of the United States, and authorized the issuance of the DHS Memorandum that purports to terminate DACA. He is sued in his official capacity. 17. Defendant DHS is a federal cabinet agency responsible for implementing the DACA program. DHS is a Department of the Executive Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 552(f).
1 The State of New York is represented by and through its Attorney General, Eric T. Schneiderman. Governor Andrew M. Cuomo is the chief executive officer of the State of New York and is responsible for overseeing the operations of the State of New York and ensuring that its laws are faithfully executed.
2 Colorado is represented by and through Governor John W. Hickenlooper’s Chief Legal Counsel, who has been designated a Special Assistant Attorney General for purposes of representing Colorado in this matter.
3 The District of Columbia, which is a municipal corporation empowered to sue and be sued, and is the local government for the territory constituting the permanent seat of the federal government of the United States, shall be included herein as a “State” for ease of reference.
4

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 5 of 79 PageID #: 1624
18. Defendant United States Citizenship and Immigration Services (“USCIS”) is an Operational and Support Component agency within DHS. USCIS is the sub-agency responsible for administering the DACA program.
19. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an Operational and Support Component agency within DHS. ICE is responsible for enforcing federal immigration law, including identifying, apprehending, detaining, and removing non-citizens.
20. Defendant Elaine C. Duke is the Acting Secretary of the DHS. She is responsible for implementing and enforcing the Immigration and Nationality Act, and oversees USCIS and ICE. She is sued in her official capacity.
21. Defendant the United States of America includes all government agencies and departments responsible for the implementation and termination of the DACA program.
GENERAL ALLEGATIONS Establishment of the DACA Program.
22. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program (the “2012 DACA Memorandum”). See Ex. 13 (2012 DACA Memorandum). Under DACA, “certain young people who were brought to this country as children and know only this country as home” could request deferred action for a period of two years, subject to renewal. Id. at 1-2. DACA grantees also were eligible for work authorizations so that they could work legally in the United States during the deferred action period, pursuant to long-standing federal regulation. See id.; 8 C.F.R. § 274a.12(c)(14) (providing that “an alien who has been granted deferred action” may obtain work authorization upon demonstrating economic necessity).
5

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 6 of 79 PageID #: 1625
23. Deferred action is a well-established form of prosecutorial discretion under which the federal government forbears from taking removal action against an individual for a designated period of time. According to the 2012 DACA memorandum, it was appropriate for the government to exercise such discretion for DACA grantees because immigration laws are not “designed to remove productive young people to countries where they may not have lived or even speak the language.” See Ex. 13 at 1.
24. The 2012 DACA Memorandum provided that an applicant could be considered for an exercise of prosecutorial discretion only if he or she:
a. came to the United States before the age of sixteen; b. continuously resided in the United States for at least five years preceding
June 15, 2012, and was present in the United States on that date; c. was in enrolled in school on the date of his/her application, had graduated from
high school, had obtained a general education development certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; d. had not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and did not otherwise pose a threat to national security or public safety; and e. was not over the age of thirty on June 15, 2012. Id. at 1. 25. USCIS described DACA as follows: “Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has
6

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 7 of 79 PageID #: 1626
been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.” See Ex. 14, Question 1 (USCIS Help Center, DACA FAQs). The DACA Application Process.
26. Under DACA, “[a]ll individuals who believe[d] they [met] the guidelines” could “affirmatively request consideration of DACA from USCIS” through an established process. After receiving the applicant’s forms, evidence, supporting documents and application fee, USCIS “review[ed] them for completeness,” considered complete applications “on an individual, case-bycase basis,” and notified applicants of its determination in writing. See Ex. 16 (USCIS Help Center, How do I request consideration of DACA?).
27. In order to apply for the DACA program, applicants had to submit extensive documentation establishing that they met the eligibility criteria. Applicants also had to submit a Form I-765 Application for Employment Authorization, and pay a $495 fee. See Ex. 14 at Questions 28-41; see also Ex. 17 (USCIS, I-821D, Consideration of Deferred Action for Childhood Arrivals) (explaining that the filing fee for a DACA application could not be waived).
28. DACA applicants were required to undergo biometric and biographic background checks. When conducting these checks, DHS reviewed the applicant’s biometric and biographic information “against a variety of databases maintained by DHS and other federal government agencies.” See Ex. 14 at Question 23. If any information “indicate[d] that [the applicant’s] presence
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in the United States threaten[ed] public safety or national security,” the applicant was ineligible for DACA absent “exceptional circumstances.” Id. at Question 65.
29. Once individuals were admitted into the DACA program, internal USCIS “Standard Operating Procedures” dictated that, absent an “Egregious Public Safety” issue, DACA grantees were not to be terminated from the program until the government provided a “Notice of Intent to Terminate” which “thoroughly explain[ed]” the grounds for the termination.” See Ex. 18 at 132, Appendix I (DHS, National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals, Apr. 4, 2013). DHS policy further provided that recipients of such notice should be afforded 33 days to “file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate” prior to termination of participation in the DACA program. Id.
30. At the expiration of their two-year DACA term, grantees could seek renewal, and were considered for renewal if they met the guidelines for consideration as well as other specified criteria. See Ex. 19 (USCIS Help Center, How will USCIS evaluate my request for renewal of DACA?). Benefits Provided Under the DACA Program.
31. DACA confers numerous benefits on its grantees. 32. Notably, DACA grantees are granted the right not to be arrested or detained based solely on their immigration status during the time period during which their deferred action is in effect. See Ex. 14 at Question 9. 33. DACA grantees also are granted eligibility for work authorization. As USCIS has explained, “an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action . . . .’” Id. at Question 1.
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34. DACA grantees are eligible to receive certain public benefits. These include Social Security, retirement, and disability benefits. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d).
35. DACA enables grantees to open bank accounts, obtain credit cards, start businesses, purchase homes and cars, and conduct other aspects of daily life that are otherwise often unavailable for undocumented immigrants. See Ex. 5 ¶ ¶ 12, 16, 22 (Decl. Wong).
36. DACA has enabled hundreds of thousands of young people “to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs— all on the books.” See Ex. 15 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu, Dec. 30, 2016).
37. These positive effects have rippled throughout the States’ economies. As DHS recognized more than four years after the implementation of DACA, our nation “continue[s] to benefit . . . from the contributions of those young people who have come forward and want nothing more than to contribute to our country and our shared future.” Id.
38. Terminating DACA would not only rip away the life-changing benefits to individual DACA grantees, but would also reverse the benefits to the community at large, including to innumerable small businesses, non-profits, and governments.4
4 See e.g., Ex. 20 (Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, the Cato Institute, Jan. 18, 2017) (“The deportation of DACA participants would cost the American economy billions of dollars, as well as billions of tax dollars foregone, while doing little to address the true concerns that Americans may have about unauthorized immigrants.”); Ex. 21 (Tom Wong, et al., DACA Grantees’ Economic and Educational Gains Continue to Grow, Center for American Progress, Aug. 28, 2017) (quoting multiple DACA grantees whose small businesses will suffer or even close if DACA is terminated); Ex. 22 (Tom Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress, Oct. 18, 2016) (study showing that 9 percent of DACA grantees work at non-profits, a significant percentage work in education, and 6 percent started their own business, including one owner who employs nine people and hopes to continue to grow and “hire even more people from the community” [internal brackets and quotation marks omitted]).
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The Government’s Assurances That the Information Provided by DACA Applicants Would be Kept Confidential and Not Used for Enforcement.
39. When the DACA program was first implemented, many eligible young people were reluctant to voluntarily disclose information that could help facilitate their removal from the United States. To encourage applications, DHS repeatedly promised applicants that information they provided as part of the DACA application process would “not later be used for immigration enforcement purposes.” See Ex. 15 (Letter from Sec’y Johnson).
40. USCIS affirmatively represented to DACA applicants that, except in limited circumstances, “[i]nformation provided in [a DACA request] is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings.” See Ex. 25 (USCIS Help Center, Will the information I share in my request for DACA be used for immigration enforcement purposes?).
41. USCIS affirmatively represented to DACA applicants that, except in limited circumstances, their case would not be “referred to ICE for purposes of removal proceedings” even if UCSIS decided not to defer action on a case. See Ex. 26 (USCIS Help Center, If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?).
42. In the exceptional circumstance in which USCIS referred a DACA applicant to ICE, USCIS affirmatively represented to DACA applicants that “information related to [their] family members or guardians that is contained in [their] request [would] not be referred to ICE for purposes of immigration enforcement against family members or guardians.” See Ex. 27 (USCIS Help Center, If my DACA case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?).
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43. USCIS affirmatively represented to employers of DACA applicants that, except in limited circumstances, if they provided an employee "with information regarding his or her employment to support a request for consideration of DACA,” the information would not be “shared with ICE for civil immigration enforcement purposes.” See Ex. 28 (USCIS Help Center, If I provide my employee with information regarding his or her employment to support a request for consideration of DACA, will that information be used for immigration enforcement purposes against me and/or my company?).
44. The government’s representations that, absent exceptional circumstances, information provided by a DACA grantee would not be used against him or her for later immigration enforcement proceedings were unequivocal and atypical. For example, the federal government does not make the same representations for participants in other similar programs, such as Temporary Protected Status. These assurances were key to the success of the DACA program. By making repeated, unique, and strong representations, the federal government induced persons to rely on those representations and apply to become DACA grantees despite the potential risks. The Government’s Commitment to Continuity and Fair Treatment for DACA Grantees.
45. Numerous public officials from both political parties have reinforced the federal government’s promise to provide continuity and fair treatment to DACA grantees, and have recognized that DACA grantees have relied on the government’s representations in applying for DACA. For example, in December 2016, then-Secretary of Homeland Security Jeh Charles Johnson acknowledged that there are hundreds of thousands of DACA grantees who have “relied on the U.S. government’s representations” about DACA, and asserted that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be
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honored.” See Ex. 15. 46. On December 19, 2016, then-President-elect Trump stated in an interview with
TIME magazine that he would find an accommodation for DACA grantees, stating, “We’re going to work something out that’s going to make people happy and proud.” See Ex. 29 (Michael Scherer, Person of the Year 2016, TIME Magazine, Dec. 19, 2016). He further recognized, “[DACA grantees] got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.” Id.
47. Again, on January 18, 2017, then President-elect Trump promised in an interview with Fox & Friends that he was working on a plan to make DACA grantees “very happy.” See Ex. 30 (Francesca Chambers, Trump signals he’s softening on immigration as he says he’s ‘working on a plan’ that will make DREAMers ‘very happy,’ Daily Mail, Jan. 18, 2017). He further stated, “We’re working on a plan right now. And that plan, over the next two to three months, is going to come out. And it’s a plan that’s going to be very firm, but it’s going to have a lot of heart.” Id.
48. In January 2017, Speaker of the House Paul Ryan stated that the government must ensure that “the rug doesn’t get pulled out from under” DACA grantees, who have “organize[d] [their] li[ves] around” the DACA program. See Ex. 31 (CNN, Transcript of CNN Town Hall with Speaker Paul Ryan, Jan. 12, 2017).
49. On January 25, 2017, President Trump again stated in an interview with David Muir that “[DACA grantees] shouldn’t be very worried. I do have a big heart.” See Ex. 32 (ABC News, Transcript of ABC News anchor David Muir interview with Donald Trump, Jan. 25, 2017).
50. In February 2017, then-Secretary of DHS John Kelly issued a memorandum relating to enforcement priorities. This memorandum terminated “all existing conflicting
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directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal,” including prior enforcement priorities, but left DACA unchanged. See Ex. 2 (Memorandum from Secretary John Kelly to Keven McAleenan, Acting CBP Commissioner, Enforcement of the Immigration Laws to Serve the National Interest, Feb. 20, 2017); see also Ex. 10 (Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States, Feb. 21, 2017) (“Q22: Do these memoranda affect recipients of Deferred Action for Childhood Arrivals (DACA)? A22: No.”).
51. On March 29, 2017, Secretary Kelly reaffirmed that “DACA status” is a “commitment . . . by the government towards the DACA person, or the so-called Dreamer.” See Ex. 33 (Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration, Politico, Mar. 29, 2017).
52. On April 21, 2017, President Trump represented that his Administration’s policy was not to deport DACA grantees, and suggested that they “should rest easy.” See Ex. 34 (The Associated Press, Interview Transcript, Apr. 21, 2017).
53. On June 15, 2017, Secretary Kelly issued a memo terminating the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program created in 2014, but keeping DACA in place. See Ex. 23 (Memorandum from Secretary John Kelly to Keven McAleenan, Acting CBP Commissioner, Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents, June 15, 2017).
54. The government’s commitment to the DACA program was further communicated to young people through DHS’s publication entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA)” (the “DACA SOP”). See Ex. 18. This
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document includes more than 150 pages of specific instructions for granting or denying deferred action.
55. Moreover, the approval notice granting deferred action under DACA listed only “fraud or misrepresentation” in the application process or “[s]ubsequent criminal activity” as grounds for revoking DACA. See Ex. 24 (USCIS, DACA Approval Notice).
56. In reliance on these representations, hundreds of thousands of young people applied to participate in the DACA program, or sought renewal of their benefits since 2017. See Ex. 1. President Trump’s Statements about Mexicans.
57. Despite these various and repeated promises to DACA grantees made by the federal government and by President Trump, including a recognition of DACA’s continued legal viability, value, and successes, President Trump has a long history of disparaging Mexicans, who comprise the vast majority of DACA grantees.
58. In announcing his presidential campaign, then-candidate Trump compared Mexican immigrants to rapists, stating: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” See Ex. 35 (Washington Post, Transcript of Donald Trump’s Presidential Bid Announcement, June 16, 2015).
59. During the first Republican presidential debate, then-candidate Trump again stated his distaste for immigrants from Mexico: “The Mexican government is much smarter, much sharper, much more cunning. And they send the bad ones over because they don’t want to pay for them. They don’t want to take care of them.” See Ex. 36 (Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News, Aug. 6, 2015).
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60. Soon after, on August 25, 2015, then-candidate Trump refused to answer questions about immigration posed by Jorge Ramos, a Mexican-American and the top news anchor at Univision, a Spanish-language news network. After sending his bodyguard to physically remove Mr. Ramos, then-candidate Trump derisively told Mr. Ramos to “Go back to Univision.” See Ex. 37 (Phillip Rucker, First, Trump booted Univision anchor Jorge Ramos out of his news conference. Then things got interesting, The Washington Post, Aug. 25, 2015).
61. In May 2016, then-candidate Trump referred to anti-Trump protestors who carried the Mexican flag as “criminals” and “thugs.” See Ex. 38 (Donald Trump, “The protestors in New Mexico were thugs who were flying the Mexican Flag,” Twitter, May 25, 2016); See Ex. 39 (Donald Trump, “Many of the thugs that attacked peaceful Trump supporters in San Jose were illegals,” Twitter, June 4, 2016).
62. In June 2016, then-candidate Trump impugned the integrity of a federal judge presiding over a lawsuit against one of his businesses because the judge is Hispanic. Trump commented that Judge Gonzalo Curiel’s rulings against him “[H]as to do with perhaps that I’m very, very strong on the border. . . Now, he is Hispanic, I believe. He is a very hostile judge to me.” See Ex. 40 (Jose A. DelReal and Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts, The Washington Post, June 1, 2016).
63. In an interview with CBS News on June 5, 2016, then-candidate Trump again reiterated his anti-Mexican views, noting that “[Judge Curiel]’s a member of a club or society very strongly, pro-Mexican, which is all fine. But I say he’s got bias.” See Ex. 41 (CBS News, Transcript of Face the Nation, June 5, 2016). Judge Curiel is a member of the San Diego Chapter of the La Raza Lawyers Association. See Ex. 42 (Michelle Ye Hee Lee, Trump supporters’ false
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claim that Trump U judge is a member of a pro-immigrant group, The Washington Post, June 7, 2016).
64. On August 21, 2015, two men urinated on a sleeping Latino man and then beat him with a metal pole. They later told police that “Donald Trump was right; all these illegals need to be deported.” When asked about the incident, then-candidate Trump failed to condemn the men, instead describing them as “passionate.” See Ex. 43 (Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, The Boston Globe, Aug. 21, 2015). Specifically, Trump stated, “[i]t would be a shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate. Id.
65. In October 2016, during a presidential debate, then-candidate Trump responded to a question about immigration by stating: “We have some bad hombres here and we’re going to get them out.” See Ex. 44 (Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, The Washington Post, Aug. 30, 2017).
66. On January 27, 2017, newly-inaugurated President Trump and Mexico’s President Peña Nieto discussed President Trump’s proposal for a border wall over the phone. During that transcribed conversation, President Trump again referred to “hombres” stating: “You have some pretty tough hombres in Mexico that you may need help with, and we are willing to help you with that big-league. But they have to be knocked out and you have not done a good job of knocking them out.” See Ex. 45 (Greg Miller et. al., Full Transcripts of Trump’s Calls with Mexico and Australia, The Washington Post, Aug. 3, 2017).
67. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge’s order to stop racially profiling Latinos. See Ex. 46 (Julie Hirschfield Davis and Maggie
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Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, The N.Y. Times, Aug. 25, 2017).
68. Sheriff Arpaio had been detaining people ostensibly because they had violated the law. But in practice, his office detained huge numbers of individuals solely because they looked Latino, without any reasonable suspicion of illegal conduct. See generally Melendres v. Arpaio, Findings of Fact & Conclusions of Law, 2:07-cv-02513-GMS, ECF Doc. No.579 (D. Az. May 24, 2013). After a federal court enjoined that practice in 2011, Arpaio continued his unlawful and discriminatory practices unabated, “announc[ing] to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” United States v. Arpaio, Findings of Fact & Conclusions of Law, 2:16-cr-01012-SRB, ECF Doc. No. 210 at 13 (D. Az. July 31, 2017). On July 31, 2017, a federal court held Arpaio in criminal contempt, holding that he had willfully acted in “flagrant disregard” of the injunction. Id.
69. Before issuing the pardon, President Trump asked, “Was Sheriff Joe convicted for doing his job?” See Ex. 46. (Davis and Haberman, Trump Pardons Joe Arpaio). After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio “an American patriot.” Id.
70. As President Trump’s statements about Mexico and those with Mexican origins demonstrate, the President is willing to disparage Mexicans in a misguided attempt to secure support from his constituency. Trump Administration’s Threatening Statements about Deporting Immigrants.
71. On June 13, 2017, Acting ICE Director Thomas Homan testified in front of the House Appropriations Committee's Subcommittee on Homeland Security, stating as to “every immigrant in the country without papers,” that they “should be uncomfortable. You should look over your shoulder. And you need to be worried.” Hearing on the ICE and CBP F.Y. 2018 Budget
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Before the Subcomm. on Homeland Security of the H. Comm. on Appropriations, 115th Cong. (2017) 2017 WLNR 18737622.
72. On April 19, 2017, United States Attorney General Jefferson B. Sessions stated in an interview on Fox News’ “Happening Now,” program—in response to a question regarding the deportation of a DACA recipient—that “[e]verybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully that they aren’t going to be deported.” Ex. 49 (Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News, Apr. 19, 2017). President Trump Terminates DACA in Response to the Litigation Threats of a State Found To Have Discriminated Against Latinos/Hispanics Nine Times Since 2012.
73. On June 29, 2017, the Attorneys General of ten states, led by the State of Texas, sent U.S. Attorney General Sessions a letter threatening to add claims to litigation currently pending in the Southern District of Texas “to challenge both the DACA program and the remaining expanded DACA permits,” if the Executive Branch did not agree to end the DACA program by September 5, 2017. Ex. 177 (Letter from Ken Paxton et.al. to Attorney General Jeff Sessions, June 29, 2017).
74. The demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas.
75. Over the preceding decade, federal courts have repeatedly found the State of Texas liable for engaging in unlawful discrimination based on race and/or national origin.
76. For example, in Texas v. United States, 887 F. Supp. 2d 133, 161 (D.D.C. 2012), three federal judges blocked a Congressional and State House redistricting plan after finding that it “was enacted with discriminatory purpose.”
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77. The litigation eventually culminated in a ruling by a three-judge panel on August 15, 2017 finding, again, that the 2010 congressional districts had been created with “racially discriminatory intent” against Latinos and African American voters. Perez v. Abbott, SA-11-CV360, 2017 U.S. Dist. LEXIS 129982, at *55 (W.D. Tex. Aug. 15, 2017).
78. On October 9, 2014, in separate litigation challenging a state voter photo identification (“ID”) law, a Texas federal district court judge found that the provision had been “imposed with an unconstitutional discriminatory purpose” and “constitute[d] an unconstitutional poll tax.” Veasey v. Perry, 71 F. Supp. 3d 627, 633 (S.D. Tex. 2014).
79. On remand from the Fifth Circuit, a federal district court concluded that the 2011 Legislature intentionally discriminated against minority voters by requiring presentation of a photo ID when casting their ballots. Veasey v. Abbott, 2017 U.S. Dist. LEXIS 54253, at *14-18 (S.D. Tex. Apr. 10, 2017).
80. DHS issued the DHS Memorandum terminating DACA on September 5, 2017, in direct response to the threats of the State of Texas and the other ten states, fulfilling the demand of a State marked with a history of racial and national origin discrimination. President Trump Backtracks on His Promise and Terminates DACA.
81. Attorney General Sessions announced the termination of DACA via a live press conference. He explained, without evidence, “The effect of this unilateral executive amnesty, among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.” See Ex. 75 (DOJ, Attorney General Sessions Delivers Remarks on DACA, Prepared Remarks, Sept. 5, 2017).
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82. Under the DHS Memorandum, which accompanied this announcement, the government’s new policy provides no discretion to approve new applications on a case-by-case basis. Instead, the DHS Memorandum is a final decision that an entire class of people is no longer eligible for deferred action, employment authorization, and other benefits. Per the DHS Memorandum, DHS “[w]ill reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.” DHS will also reject all renewal applications it receives after October 5, 2017, and all renewal applications for authorizations that expire after March 5, 2018. See Ex. 74 (DHS Memorandum).
83. In issuing the DHS Memorandum, the federal government misleadingly claimed that DACA was unconstitutional, see Ex. 74, despite the fact that no court has made that determination, and despite previous determinations by DOJ and DHS, including under the Trump administration, that DACA is lawful and should be left in place. In fact, as recently as June 15, 2017, then-Secretary of Homeland Security John Kelly chose to allow DACA to continue (while terminating the DAPA program) “after consulting with the Attorney General.” See Ex. 23
84. Even after the announcement, the government’s position on the reasoning for the termination has been unclear and inconsistent. On the day of the termination, President Trump retweeted a statement that “We are a nation of laws. No longer will we incentivize illegal immigration.” See Ex. 47 (Josh Saul, Jeff Sessions Always Wanted to Deport Undocumented Immigrant Youth. Now He Can, Newsweek, Sept. 5, 2017). The President appears to have deleted this tweet. Later on September 5, the President tweeted, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” See Ex. 48 (Donald J. Trump, Twitter, Sept. 5, 2017). On September 14, 2017, he tweeted, “Does anybody really want to throw out good, educated and accomplished young people who have
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jobs, some serving in the military? Really! .....” See Ex. 50 (Donald J. Trump, Twitter, Sept. 14, 2017).
85. As a result of the DHS Memorandum, DACA grantees whose benefits expire after March 5, 2018 will immediately lose their employment authorization, as well as other vital benefits, such as social security cards, driver’s licenses, financial aid, disability and health benefits, among others.
86. They also may lose their homes and communities if the program is allowed to expire. An internal White House memo reported on by CNN stated that DHS now is urging DACA grantees “to prepare for and arrange their departure from the United States” when their DACA terms end. See Ex. 88 (Tal Kopan & Jim Acosta, Admin Memo: DACA recipients should prepare for departure from the United States, CNN, Sept. 5, 2017). This threat of deportation is consistent with past references to deportation of DACA grantees, such as a statement by Attorney General Sessions in response to a question regarding the deportation of a DACA grantee that “[e]verybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully that they aren’t going to be deported.” See Ex. 49 (Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News, Apr. 19, 2017).
87. President Trump also has taken affirmative steps to reduce the privacy protections applicable to DACA grantee information. In January 2017, President Trump issued an Executive Order directing all agencies, including DHS, to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” See Ex. 76 (Executive Order 13768,
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“Enhancing Public Safety in the Interior of the United States,” Jan. 25, 2017). In response to the Executive Order, DHS adopted a privacy policy that “permits the sharing of information about immigrants and non-immigrants with federal, state, and local law enforcement.” See Ex. 51 (DHS, Privacy Policy 2017-01 Questions & Answers, Apr. 27, 2017).
88. The DHS Memorandum provides no assurance to DACA grantees, or direction to USCIS and ICE, that information contained in DACA applications cannot be used for the purpose of future immigration enforcement proceedings.
89. To the contrary, on the same day that the DHS Memorandum was issued, DHS changed its public guidance about the use of DACA application data for immigration enforcement. DHS removed the webpage containing the assurance that, absent exceptional circumstances, DACA application data “is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings.” Cf. Ex. 25 (containing link to USCIS webpage that now contains an error alert and a message stating, “The page you are looking for may not exist or is temporarily unavailable.”). The same day, DHS posted a new policy governing the use of information provided by DACA applicants. DHS now states that USCIS “[g]enerally” will not “proactively provid[e] information obtained through DACA to ICE and CBP. See Ex. 89 (DHS, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals, Sept. 5, 2017). The new policy imposes no restrictions on USCIS providing DACA data at the request of ICE, CBP, or any other law enforcement entity. Id. DHS also reserves the right to change its new policy “at any time without notice” and states that the policy “may not be relied upon” by any party. Id.
90. DACA grantees thus immediately face the risk that information they provided to the federal government could be used against them at any time, without notice, for purposes of immigration enforcement, including detention or removal.
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The Defendants’ Failure to Notify Certain DACA Grantees of the October 5, 2017 Renewal Deadline.
91. Before the termination of DACA, Defendants had a written policy and practice allowing DACA grantees to submit their renewal application up to one year after the date of expiration of their participation in DACA. If DACA grantees failed to renew within one year of the expiration date, they had the option to re-apply as initial applicants. See Ex. 14 (USCIS FAQs – Q50).
92. In addition, USCIS and DHS had a long-standing practice of using the address information they maintain for DACA grantees to send individualized notices to those grantees regarding their renewal expiration dates. See Ex. 178 (DACA Renewal Notice).
93. On information and belief, no standard renewal notices have been provided to DACA grantees whose participation in DACA expires between February 6, 2018 and March 5, 2018. Prior to termination of DACA, a DACA grantee whose renewal status expires in February 2018 would have received an individualized renewal notice informing the grantee that he or she had to file a renewal 120-150 days prior to expiration, i.e., by November 2017, in order to avoid a lapse in deferred action and employment authorization. See, e.g., id. However, since the termination, Defendants have not yet sent this group of DACA grantees any notices regarding when and how they can renew.
94. On information and belief, the government sent standard renewal notices up until August 1, 2017 for DACA grantees whose participation in DACA expires by January 2018, informing the grantees they had the standard 120-150 days prior to the expiration date to renew if they wished to “avoid a lapse in [their] period of deferred action and employment authorization”. See, e.g., id. However, in light of DHS’s decision to impose an absolute cut-off date of October 5, 2017 for all renewal applications, the information conveyed in these notices is now incorrect. The
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notices misleadingly suggest to DACA grantees that they have several additional months beyond October 5 to renew their DACA status without a gap in employment authorization. Moreover, the faulty renewal notices were not followed with individualized corrected notices informing this group of grantees that there is a new, absolute October 5 deadline for renewal, and that DACA grantees will no longer have up to one year after the date of expiration of their DACA to submit a renewal application.
95. As a result of Defendants’ failure to provide individualized notice regarding the new October 5, 2017 renewal deadline to DACA grantees whose participation expires before March 5, 2018, individuals who received no notice or incorrect notice of the new deadline may be forever ineligible to renew their participation in DACA. These DACA grantees will no longer be protected from deportation and will lose work authorization that they may have otherwise had. They may also lose health insurance, social security cards, driver’s licenses and other benefits.
96. On October 3, 2017, DHS issued a press release stating that “[o]f the approximately 154,200 individuals whose DACA is set to expire between Sept. 5, 2017, and March 5, 2018, just over 106,000 either have renewal requests currently pending with USCIS, or have already had USCIS adjudicate their renewal request.” See Ex. 82 (DHS Press Release Department of Homeland Security Acting Secretary Elaine Duke Reminds Eligible DACA Recipients to File Renewal Requests, October 3, 2017). Therefore, up to one third of DACA grantees who are eligible for renewal had not applied as of two days before the October 5, 2017 deadline. The Government’s Failure to Notify DACA Grantees of their Inability to Renew Their DACA Status If It Expires After March 5, 2018.
97. On information and belief, Defendants’ termination of DACA was solely communicated to DACA grantees through the publication of DHS’s memorandum on September 5, 2017 on the DHS website and by a concurrent television announcement from Attorney General
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Sessions. See Ex. 74 (DHS Memo); See Ex. 75 (Attorney General Sessions Delivers Remarks on DACA).
98. On information and belief, the government did not and does not plan to issue individualized notices to any DACA grantees informing them of the termination of DACA and their inability to renew if their DACA status expires after March 5, 2018.
99. Many DACA grantees relied upon their ability to apply to renew DACA in making important decisions related to their employment, education and families, among other things.
HARM TO PLAINTIFF STATES 100. The States will suffer harm as a result of the termination of the DACA program, including immediate and irreparable injuries to their sovereign, quasi-sovereign, and proprietary interests.
PLAINTIFF STATE OF NEW YORK 101. The State of New York is home to an estimated 76,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 102. As of June 30, 2017, USCIS had approved 42,503 initial DACA applications and 62,850 renewals for residents of New York. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 63 (Decl. Wong). 103. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of New York, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 104. An estimated 38,848 New York DACA grantees are employed. See Ex. 5 ¶ 64 (Decl. Wong). An estimated 2,295 are business owners. Id. An estimated 19,084 are in school, and 13,645 are currently pursuing a bachelor’s degree or higher. Id. ¶ 65.
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105. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the New York economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $140 million annually in state and local taxes in New York—a contribution that may drop by $55 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the New York economy with $10.7 billion in budgetary costs and $38.6 billion economic costs. See Ex. 4, Table 1 (Decl. Brannon).
PLAINTIFF COMMONWEALTH OF MASSACHUSETTS 106. The Commonwealth of Massachusetts is home to an estimated 19,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 107. As of June 30, 2017, USCIS had approved 8,053 initial DACA applications and 12,857 renewals for residents of Massachusetts. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 55 (Decl. Wong). 108. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Massachusetts, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 109. An estimated 7,360 Massachusetts DACA grantees are employed. See Ex. 5 ¶ 56 (Decl. Wong). An estimated 435 are business owners. Id. An estimated 3,616 are in school, and 2,585 currently are pursuing a bachelor’s degree or higher. Id. ¶ 57. 110. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Massachusetts economy generally. Stripping DACA grantees of the ability to work
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legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $24.2 million annually in state and local taxes in Massachusetts—a contribution that may drop by $9.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Massachusetts economy with $258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
PLAINTIFF STATE OF WASHINGTON 111. The State of Washington is home to an estimated 27,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 112. As of June 30, 2017, USCIS had approved 17,937 initial DACA applications and 17,906 renewals for residents of Washington. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 87 (Decl. Wong). 113. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Washington, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 114. An estimated 16,394 Washington DACA grantees are employed. See Ex. 5 ¶ 88 (Decl. Wong). An estimated 969 are business owners. Id. An estimated 8,054 are in school, and 5,758 currently are pursuing a bachelor’s degree or higher. Id. ¶ 89. 115. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Washington economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the
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State. According to one estimate, DACA-eligible residents contribute approximately $51 million annually in state and local taxes in Washington—a contribution that may drop by $19 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Washington economy with $1.8 billion in budgetary costs and $6.4 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
PLAINTIFF STATE OF COLORADO 116. The State of Colorado is home to an estimated 23,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 117. As of June 30, 2017, USCIS had approved 17,310 initial DACA applications and 15,322 renewals for residents of Colorado. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 27 (Decl. Wong). 118. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Colorado, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 119. An estimated 15,281 Colorado DACA grantees are employed. See Ex. 5 ¶ 28 (Decl. Wong). An estimated 935 are business owners. Id. An estimated 7,772 are in school, and 5,557 currently are pursuing a bachelor’s degree or higher. Id. ¶ 29. 120. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Colorado economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $33.9 million annually in state and local taxes in Colorado—a contribution that may drop by $16.4 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that
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terminating DACA would, over a ten-year period, impact the Colorado economy with $768 million in budgetary costs and $2.7 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
PLAINTIFF STATE OF CONNECTICUT 121. The State of Connecticut is home to an estimated 11,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 122. As of June 30, 2017, USCIS had approved 4,989 initial DACA applications and 6,764 renewals for residents of Connecticut. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 31 (Decl. Wong). 123. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Connecticut, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 124. An estimated 4,560 Connecticut DACA grantees are employed. See Ex. 5 ¶ 32 (Decl. Wong). An estimated 269 are business owners. Id. An estimated 2,240 are in school, and 1,602 currently are pursuing a bachelor’s degree or higher. Id. ¶ 33. 125. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Connecticut economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $17 million annually in state and local taxes in Connecticut—a contribution that may drop by $5 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Connecticut economy with $642 million in budgetary costs and $2.3 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF DELAWARE 126. The State of Delaware is home to an estimated 3,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 127. As of June 30, 2017, USCIS had approved 1,451 initial DACA applications and 1,583 renewals for residents of Delaware. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 35 (Decl. Wong). 128. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Delaware, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 129. An estimated 1,326 Delaware DACA grantees are employed. See Ex. 5 ¶ 36 (Decl. Wong). An estimated 651 are in school, and 466 currently are pursuing a bachelor’s degree or higher. Id. ¶ 37. 130. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Delaware economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $2.4 million annually in state and local taxes in Delaware—a contribution that may drop by $1 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Delaware economy with $258 million in budgetary costs and $924 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF THE DISTRICT OF COLUMBIA 131. The District of Columbia (“District”) is home to an estimated 2,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 132. As of June 30, 2017, USCIS had approved 773 initial DACA applications and 1,299 renewals for residents of the District. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 39 (Decl. Wong). 133. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of the District, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 134. An estimated 707 District DACA grantees are employed. See Ex. 5 ¶ 40 (Decl. Wong). An estimated 347 are in school, and 248 currently are pursuing a bachelor’s degree or higher. Id. ¶ 41. 135. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the District’s economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $2.7 million annually in state and local taxes in the District—a contribution that may drop by $946,000 without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the District’s economy $900 million in budgetary costs and $3.2 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF HAWAII 136. The State of Hawaii is home to an estimated 2,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 137. As of June 30, 2017, USCIS had approved 582 initial DACA applications and 2,179 renewals for residents of Hawaii. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 43 (Decl. Wong). 138. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Hawaii, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 139. An estimated 532 Hawaii DACA grantees are employed. See Ex. 5 ¶ 44 (Decl. Wong). An estimated 261 are in school, and 187 currently are pursuing a bachelor’s degree or higher. Id. ¶ 45. 140. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Hawaii economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in a loss of tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $3.2 million annually in state and local taxes in Hawaii—a contribution that may drop by $870,000 without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Hawaii economy $126 million in budgetary costs and $451.5 million economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF ILLINOIS 141. The State of Illinois is home to an estimated 68,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 142. As of June 30, 2017, USCIS had approved 42,537 initial DACA applications and 39,702 renewals for residents of Illinois. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 47 (Decl. Wong). 143. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Illinois, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 144. An estimated 38,879 Illinois DACA grantees are employed. See Ex. 5 ¶ 48 (Decl. Wong). An estimated 2,297 are business owners. Id. An estimated 19,099 are in school, and 13,656 currently are pursuing a bachelor’s degree or higher. Id. ¶ 49. 145. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Illinois economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $131 million annually in state and local taxes in Illinois—a contribution that may drop by $54.7 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, cost the Illinois economy $1.9 billion in lost tax revenue and $6.9 billion overall. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF IOWA 146. The State of Iowa is home to an estimated 4,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 147. As of June 30, 2017, USCIS had approved 2,812 initial DACA applications and 3,120 renewals for residents of Iowa. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 51 (Decl. Wong). 148. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Iowa, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 149. An estimated 2,570 Iowa DACA grantees are employed. See Ex. 5 ¶ 52 (Decl. Wong). An estimated 152 are business owners. Id. An estimated 1,263 are in school, and 903 currently are pursuing a bachelor’s degree or higher. Id. ¶ 53. 150. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Iowa economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $6.8 million annually in state and local taxes in Iowa—a contribution that may drop by $3.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Iowa economy with $258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon). Yet another estimate predicts that the state’s GDP would contract by $55.83 million if DACA is terminated. See Ex. 85 ¶ 9 (Decl. Swenson, Iowa St. University).
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PLAINTIFF STATE OF NEW MEXICO 151. The State of New Mexico is home to an estimated 10,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 152. As of June 30, 2017, USCIS had approved 6,838 initial DACA applications and 5,622 renewals for residents of New Mexico. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 59 (Decl. Wong). 153. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of New Mexico, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. An estimated 6,250 New Mexico DACA grantees are employed. See Ex. 5 ¶ 60 (Decl. Wong). An estimated 369 are business owners. Id. An estimated 3,070 are in school, and 2,195 currently are pursuing a bachelor’s degree or higher. Id. ¶ 61.In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the New Mexico economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $18.8 million annually in state and local taxes in New Mexico—a contribution that may drop by $7.5 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the New Mexico economy with $258 million in budget costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF NORTH CAROLINA 154. The State of North Carolina is home to an estimated 41,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 155. As of June 30, 2017, USCIS had approved 27,455 initial DACA applications and 23,619 renewals for residents of North Carolina. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 67 (Decl. Wong). 156. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of North Carolina, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 157. An estimated 24,094 North Carolina DACA grantees are employed. See Ex. 5 ¶ 68 (Decl. Wong). An estimated 1,483 are business owners. Id. An estimated 12,327 are in school, and 8,814 currently are pursuing a bachelor’s degree or higher. Id. ¶ 69. 158. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the North Carolina economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $63.6 million annually in state and local taxes in North Carolina—a contribution that may drop by $29 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the North Carolina economy with $2.1 billion in budgetary costs and $7.8 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF OREGON 159. The State of Oregon is home to an estimated 15,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 160. As of June 30, 2017, USCIS had approved 11,321 initial DACA applications and 10,275 renewals for residents of Oregon. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 71 (Decl. Wong). 161. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Oregon, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, have more ready access to in-state tuition, and obtain employer-based health insurance, among other benefits. 162. An estimated 10,347 Oregon DACA grantees are employed. See Ex. 5 ¶ 72 (Decl. Wong). An estimated 611 are business owners. Id. An estimated 5,083 are in school, and 3,634 currently are pursuing a bachelor’s degree or higher. Id. ¶ 73. 163. The State of Oregon’s revenue structure relies heavily on income taxes, including capital gains for investors, wages paid to workers, and corporate taxes that are directly linked to profitability. See Ex. 126 ¶ 9 (Decl. Read). 164. Eliminating DACA grantee Oregonians’ ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the state and impairment of the state’s economic health. See, e.g., Ex. 100 ¶ 6 (Decl. Nicolas). According to one estimate, DACA-eligible residents contribute approximately $20 million annually in state and local taxes in Oregon—a contribution that may drop by $11 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period,
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impact the Oregon economy with $384 million in budgetary costs and $1.3 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
165. In addition, the inability to work legally and enjoy the other benefits of legal status such as better access to credit and the banking system will make it more difficult, if not impossible, for DACA grantee Oregonians to start businesses that contribute to the State’s economy and overall financial health. See Ex. 126 ¶ 12 (Decl. Read).
166. In addition to the direct benefits to state programs of increased state revenues, the State is also an investor and a borrower. See Ex. 126 ¶¶ 5-9 (Decl. Read). The State’s credit rating, cost of borrowing, and the performance of the State’s investments are all tied to the overall economic health of the State. See Ex. 126 ¶ 9 (Decl. Read). A reduced state tax base, and potential downward pressure on corporate performance, has the potential to adversely affect these interests as well. Many of the companies in which Oregon and Oregonians have holdings have expressed concern that the rescission of the DACA program is a threat and will be disruptive to their employees, their productivity, and their competitiveness. Any such disruption or downward pressure on corporate profits also potentially affects Oregon as a taxing entity and a shareholder.
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PLAINTIFF COMMONWEALTH OF PENNSYLVANIA 167. The Commonwealth of Pennsylvania is home to an estimated 15,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 168. As of June 30, 2017, USCIS had approved 5,982 initial DACA applications and 9,875 renewals for residents of Pennsylvania. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 75 (Decl. Wong). 169. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Pennsylvania, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 170. An estimated 5,468 Pennsylvania DACA grantees are employed. See Ex. 5 ¶ 76 (Decl. Wong). An estimated 323 are business owners. Id. An estimated 2,686 are in school, and 1,920 currently are pursuing a bachelor’s degree or higher. Id. ¶ 77. 171. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Pennsylvania economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $20.7 million annually in state and local taxes in Pennsylvania—a contribution that may drop by $7.5 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Pennsylvania economy with $258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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PLAINTIFF STATE OF RHODE ISLAND 172. The State of Rhode Island is home to an estimated 3,000 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 173. As of June 30, 2017, USCIS had approved 1,248 initial DACA applications and 2,019 renewals for residents of Rhode Island. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 79 (Decl. Wong). 174. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Rhode Island, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 175. An estimated 1,141 Rhode Island DACA grantees are employed. See Ex. 5 ¶ 80 (Decl. Wong). An estimated 560 are in school, and 401 currently are pursuing a bachelor’s degree or higher. Id. ¶ 81. 176. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Rhode Island economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. The Rhode Island Office of Management and Budget (“RIOMB”) estimates that the termination of DACA could lead to over $1 million in lost state and local income, real estate and vehicle taxes. See Ex. 128 ¶ 3 (Decl. Womer, RIOMB). According to one estimate, DACA-eligible residents contribute approximately $3.8 million annually in state and local taxes in Rhode Island— a contribution that may drop by $1.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). According to the Institute on Taxation and Economic Policy (“ITEP”), the State of Rhode Island alone will lose $2.6 million in state and local taxes if DACA protections are lost. See Ex. 54. (Misha Hill and Meg Wiehe, State and Local Contributions of Young Undocumented
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Immigrants, Institute on Taxation and Economic Policy, April 25, 2017). According to the Center for American Progress, Rhode Island will lose over $61 million in annual GDP loss from removing DACA workers. See id.
PLAINTIFF STATE OF VERMONT 177. The State of Vermont is home to an estimated 100 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 178. As of June 30, 2017, USCIS had approved 44 initial DACA applications and 199 renewals for residents of Vermont. See Ex. 1 (Updated USCIS Data). 179. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Vermont, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 180. An estimated 37 DACA grantees are employed in Vermont. See Ex. 53 (Nicole Prchal Svajlenka, et. al., A New Threat to DACA Could Cost States Billions of Dollars, Center for American Progress, July, 21, 2017). 181. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Vermont economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $140,000 annually in state and local taxes in Vermont—a contribution that may drop by $48,000 without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, cost the Vermont economy $2.4 million in Gross Domestic Product. See Ex. 53 (Prchal Svajlenka, et. al., A New Threat to DACA).
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PLAINTIFF COMMONWEALTH OF VIRGINIA 182. The Commonwealth of Virginia is home to an estimated 30,000 or more DACAeligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). 183. As of June 30, 2017, USCIS had approved 12,248 initial DACA applications and 15,296 renewals for residents of Virginia. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 83 (Decl. Wong). 184. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Virginia, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 185. An estimated 11,195 Virginia DACA grantees are employed. See Ex. 5 ¶ 84 (Decl. Wong). An estimated 661 are business owners. Id. An estimated 5,499 are in school, and 3,932 currently are pursuing a bachelor’s degree or higher. Id. ¶ 85. 186. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA will hurt the Virginia economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, DACA-eligible residents contribute approximately $34.7 million annually in state and local taxes in Virginia—a contribution that may drop by $12.7 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Virginia economy with $1 billion in budgetary costs and $3.6 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).
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HARM TO PLAINTIFF STATES BY CATEGORY Diversity, Inclusion, and Constitutional Values.
187. The States have an interest in prohibiting the deprivation of life, liberty or property without due process, and in preventing any practice that denies equal protection of the laws or otherwise discriminates on the basis of race, color, or national origin. For example:
a. New York’s Constitution guarantees all persons the right to equal treatment under the law and forbids discrimination based on race, color, creed or religion. N.Y. Const. art. I, § 11. And New York’s statutes reiterate the State’s strong interest in combatting discrimination and prejudice. See N.Y. Exec. Law § 290.
b. Washington has declared that practices that discriminate against any of its inhabitants because of race, color, or national origin are matters of public concern that threaten the rights and proper privileges of the State and harm the public welfare, health, and peace of the people. See Wash. Rev. Code 49.60.010.
c. Colorado welcomes people of all backgrounds. Colorado law prohibits unlawful discrimination against people based on, among other things, race, national origin, and ancestry. See C.R.S. § 24-34-601; C.R.S. § 24-34-402; C.R.S. § 24-34-502.
d. The Illinois Human Rights Act, 775 ILCS 5/1 et seq., establishes a public policy “to secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her … national origin.” See 775 ILCS 5/1-102(A). It further establishes a public policy “to prevent discrimination based on citizenship status in employment.” See 775 ILCS 5/1-102(C).
e. The Council of the District of Columbia enacted the District’s Human Rights Act “to secure an end in the District of Columbia to discrimination for any reason other
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than that of individual merit,” including discrimination based on national origin. See D.C. Code Ann. § 2-1401.01. The District’s Human Rights Act prohibits discrimination in a broad range of areas including employment, education, places of public accommodation, public services, housing and commercial space accommodations, the sale of motor vehicle insurance and the rental of motor vehicles. f. Through a long tradition of including and incorporating foreign-born persons into its institutions, businesses, and governments, New Mexico has become one of the most socially and politically diverse states. New Mexico enshrined in its state constitution three provisions protecting the Spanish language and those who speak it. See N.M. Const. art. VII, § 3 (stating that “[t]he right of any citizen of the state to vote, hold office or sit upon juries shall never be restricted, abridged or impaired on account of . . . language . . . or inability to speak, read or write the English or Spanish languages except as otherwise provided in this constitution”); N.M. Const. art. XII, § 8 (requiring teachers to become proficient in English and Spanish); and N.M. Const. art. XII. § 10 (guaranteeing that “[c]hildren of Spanish descent in the state of New Mexico shall never be denied the right and privilege of admission and attendance in the public schools or other public educational institutions of the state, and they shall never be classed in separate schools, but shall forever enjoy perfect equality with other children in all public schools and educational institutions of the state”). g. Oregon has codified its state policy that practices of unlawful discrimination against any of its inhabitants because of religion or national origin are “a matter of state
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concern,” and that such discrimination “menaces the institutions and foundation of a free democratic state.” See ORS § 659A.006. h. Pennsylvania’s laws reflect its commitment to values of diversity, multiculturalism and openness to others of different races and nationalities. For example, Pennsylvania’s Human Relations Act recognizes that an individual’s opportunity to obtain employment, public accommodation, housing accommodation and commercial property without discrimination on the basis of “race, color, familial status … ancestry [and] national origin” is a “civil right” that is “enforceable” under Pennsylvania law. See 43 P.S. § 953. See also 43 P.S. § 955. i. In keeping with its history of freedom of conscience, equality and tolerance, Rhode Island has prohibited practices that discriminate against any of its inhabitants because of race, color, or national origin. See R.I. Constitution Article 1, section 2; R.I. Gen. Laws 12-19-38 (Hate Crimes Sentencing Act); R.I. Gen. Laws § 42-1121 (The Civil Rights Act of 1990); R.I. Gen. Laws 28-5-1 (Fair Employment Practices Act); R.I. Gen. Laws 34-37-1 (Fair Housing Practices Act). 188. The States also have an interest in ensuring that their residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
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Harm to States as Employers. 189. The States have an interest in maintaining qualified, trained workforces. 190. Terminating DACA will cause the States to lose qualified State employees. Many
DACA recipients work in government or at state-run institutions, and they were hired because of their specialized skills and qualifications. The States expended time and funds to hire, train, and manage DACA recipients. If these individuals become ineligible to work, the States will lose the value of their investment and the services of employees who perform important functions for the States. They will also incur the costs associated with the need to recruit, hire, and train replacements. See, e.g., Ex. 52 ¶ 8 (Decl. Mostofi, NYC Mayor’s Office of Immigrant Affairs); Ex. 56 ¶¶ 2-4 (Decl. Quinonez); Ex. 70 ¶ 6 (Decl. I.V.); Ex. 61 ¶ 10 (Decl. Heatwole, UMass); Ex. 62 ¶ 3 (Decl. Monroe, Wash. Dept. of Ecology); Ex. 65 ¶ 3 (Decl. Kaplan, WA Dept. of Social and Health Svcs.); Ex. 92 ¶ 3 (Decl. Jones, Wash. Treasury); Ex. 91 ¶ 3 (Decl. Garza, Big Bend Community College); Ex. 64 ¶ 3 (Decl. Glatt, Columbia Basin College); Ex. 58 ¶ 4 (Decl. Loera, Wash. State Univ.); Ex. 130 ¶ 3 (Decl. Conly, WA Dept. of Veterans Affairs); Ex. 113 ¶ 3 (Decl. Schuh, City of Anacortes, WA); Ex. 157 ¶ 9-10 (Decl. Ridder, Portland State Univ.); Ex. 154 ¶ 11 (Decl. Cuprill-Comas, Oregon Health and Science Univ.); Ex. 153 ¶¶ 6, 9 (Decl. Karpilo, Eastern Oregon Univ.); Ex. 156 ¶¶ 9-10 (Decl. Mitsui, Portland Community College); Ex. 167 ¶¶ 3-6 (Decl. Reveley, College of William & Mary); Ex. 134 ¶¶ 31, 37 (Decl. Herbst, Univ. of Conn.); Ex. 124 ¶¶ 4, 11 (Decl. Salaveria, Hawaii Dept. of Business, Economic Development and Tourism); Ex. 168 ¶¶ 3-7 (Decl. Cabrera, George Mason Univ.).
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Harm to State Colleges and Universities. 191. The States have an interest in the special contributions that DACA grantees make
to State colleges and universities as students, employees, and alumni. 192. Terminating DACA will harm the ability of the States’ colleges and universities,
including public universities, to satisfy their educational missions and prepare the States’ residents for the workforce. See Ex. 61 ¶¶ 5-7 (Decl. Heatwole); Ex. 146 ¶¶ 12-13 (Decl. Clark et al., Mass. State Univ. Pres.); Ex. 134 ¶¶ 15-38 (Decl. Herbst); Ex. 133 ¶¶ 15-24 (Decl. Pachis, Eastern Conn. State Univ.); Ex. 136 ¶¶ 1, 4 (Decl. Hardwick, Univ. of the District of Columbia); Ex. 166 ¶¶ 4-7 (Decl. Sullivan, Univ. of Vermont); Ex. 167 ¶¶ 5-6 (Decl. Reveley); Ex. 137 ¶¶ 4-10 (Decl. Straney, Univ. of Hawaii); Ex. 131 ¶¶ 4-9 (Decl. Miranda, Colorado State Univ.); Ex. 132 ¶¶ 3-10 (Decl. Allen, Univ. of Colorado); Ex. 135 ¶¶ 3-14 (Decl. Rakes, Delaware Tech. Community College); Ex. 152 ¶¶ 10-11, 21 (Decl. Mathewson & Pareja, Univ. of New Mexico School of Law); Ex. 149 (New Mexico Council of Univ. Presidents Letter); Ex. 157 ¶ 6 (Decl. Ridder); Ex 159 ¶ 5 (Decl. Galvan, Univ. of Oregon); Ex. 155 ¶ 5 (Decl. Alexander, Oregon State Univ.); Ex. 154 ¶¶ 7, 10 (Decl. Cuprill-Comas); Ex. 153 ¶ 7 (Decl. Karpilo); Ex. 160 ¶¶ 7-8 (Decl. Hagemann, Western Oregon Univ.); Ex. 158 ¶ 6 (Decl. Trueblood-Gamble, Southern Oregon Univ.); Ex. 168 ¶¶ 3-7 (Decl. Cabrera); Ex. 86 ¶¶ 7-9 (Decl. Wadhia, Penn. St. University); Ex. 142 ¶¶ 4-5 (Decl. Edgehill-Walden, Northern Illinois Univ.); Ex. 145 ¶ 15 (Decl. Kennedy, Mass. Community Colleges’ Presidents’ Council).
193. DACA has made it possible for many young people to attend colleges and universities in the States, as work authorization allows DACA grantees to work both while they pursue their education and after graduation. More than 90% of DACA grantees report that DACA
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allowed them to pursue educational opportunities previously unavailable to them. See Ex. 5 ¶ 18 (Decl. Wong). For example:
a. The University of Colorado estimates that there are over 200 DACA grantees enrolled across the University. Ex. 132 ¶ 5 (Decl. Allen). Colorado State University has approximately 189 DACA grantees. Ex. 131 ¶ 8 (Decl. Miranda).
b. Delaware Technical and Community College (“DTCC”) has at least 148 DACA students and at least another 242 graduates who are DACA grantees. See Ex. 135 ¶ 5 (Decl. Rakes). Many of DTCC’s DACA students are nontraditional learners who support their families in addition to pursuing their education. Id. ¶ 8. Another approximate 75 DACA grantees currently attend Delaware State University (“DSU”). See Ex. 66 (Scott Gross, DSU immigrant students fear Trump’s DACA decision, Delawareonline, Sept. 2, 2017).
c. Presently, there are 16 students who have reported their DACA status to the University of Hawaii and who are pursuing various degrees at multiple University campuses. Ex. 137 ¶ 6 (Decl. Straney).
d. In the University of Illinois System, approximately 350 of its students and 100 of its employees would be affected by the termination of DACA. Ex. 143 ¶ 8 (Decl. Wilson, Univ. of Illinois System).
e. In New York, both the State University of New York (“SUNY”) and the City University of New York (“CUNY”) have encouraged DACA grantees to apply as part of their strong commitment to diversity, equity, and inclusion. See Ex. 12 ¶ 10 (Decl. Milliken, CUNY); Ex. 99 (Decl. Johnson, SUNY). At CUNY, hundreds of
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DACA grantees have enrolled in the university, many with the benefit of full scholarships. See Ex. 12 ¶ 6 (Decl. Milliken); Ex. 171 ¶8 (Decl. Park). f. Many of Oregon’s public colleges and universities, including Portland State University, the University of Oregon, Oregon State University, Oregon Health and Science University, Eastern Oregon University, Western Oregon University, Southern Oregon University and Portland Community College enroll, and in some cases employ, DACA grantees. See Ex. 157 ¶ 4 (Decl. Ridder); Ex. 159 ¶ 5 (Decl. Galvan); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 154 ¶ 5 (Decl. Cuprill-Comas); Ex. 153 ¶¶ 5-6 (Decl. Karpilo); Ex. 160 ¶¶ 6-7 (Decl. Hagemann); Ex. 158 ¶¶ 4-5 (Decl. Trueblood-Gamble); Ex. 156 ¶¶ 6, 9 (Decl. Mitsui); Ex. 94 ¶¶ 5-8 8 (Decl. Ramirez Cuevas); Ex. 101 ¶¶ 1, 3 (Decl. Preciado). g. Many institutions of higher education in Virginia have students presently enrolled in their educational programs who are DACA grantees. According to the State Council of Higher Education for Virginia (“SCHEV”), the Commonwealth's coordinating body for higher education, there are more than 1,300 DACA students in Virginia attending institutions of higher education. See Ex. 127 ¶¶ 4 (Decl. Blake, SCHEV). h. According to the Washington Student Achievement Council (“WSAC”), the state agency that advances educational opportunities in Washington, there are more than 1,400 DACA students in Washington attending institutions of higher education. See Ex. 59 ¶ 9 (Decl. Thompson, WSAC). More than one hundred DACA grantees attend the University of Washington, based in Seattle. See Ex. 57 ¶ 4 (Decl.
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Ballinger, Univ. of Wash.). More than 150 DACA grantees attend Washington State University, based in Pullman. See Ex. 58 ¶ 4 (Decl. Loera, Wash. State Univ.). i. Many public colleges and universities in the States have diverse student populations, including a high percentage of Latino/Hispanic students and students who are first generation Americans and first in their families to attend college, as well as undocumented students. See, e.g., Ex. 162 (Letter from Meghan Hughes, Community College of Rhode Island); Ex. 150 ¶ 7 (Decl. Abdallah, University of New Mexico). Although many such schools do not keep data on immigration status, they know that they have DACA grantees as alumni and current students. See Ex. 163 (Letter from Frank Sánchez, Rhode Island College President); Ex. 164 ¶ 6 (Decl. Farish, Roger Williams University); Ex. 161 (Letter from Richard M. Locke, Brown University Provost); Ex. 86 ¶ 6 (Decl. Wadhia); Ex. 146 ¶ 9 (Decl. Clark et al.). 194. DACA grantees who are residents of Connecticut, Delaware, District of Columbia, Hawaii, Illinois, New Mexico, Massachusetts, Virginia, or Washington receive in-state tuition at public universities and/or are eligible for other financial assistance. See C.R.S. § 23-7-110; Ex. 132 ¶ 4 (Decl. Allen); Ex. 131 ¶ 7 (Decl. Miranda); Ex. 134 ¶ 8 (Decl. Herbst); Ex. 7 (Mass. Dept. of Higher Education Memorandum, Residency Status for Tuition Classification Purposes – Deferred Action for Childhood Arrivals, Nov. 21, 2012); Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 146 ¶ 7 (Decl. Clark et al.); Ex. 133 ¶¶ 8-12 (Decl. Pachis); Conn. Gen. Stat. § 10a-29; Ex. 135 ¶¶ 11-12 (Decl. Rakes); Ex. 136 ¶ 6 (Decl. Hardwick); Ex. 150 ¶ 12 (Decl. Abdallah); Or. Rev. Stat. § 352.287; Ex. 167 ¶ 4 (Decl. Reveley); Ex. 106 ¶ 5 (Decl. Suria); Ex. 137 ¶ 5 (Decl. Straney); Ex. 157 ¶ 4 (Decl. Ridder); Ex. 94 ¶ 7 (Decl. Ramirez Cuevas).
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195. Without the DACA program, talented young immigrants will be less likely to apply to and attend State schools because they will not be able to afford tuition given the loss of available financial assistance (in some of the States) and the likelihood that they will not be able to work legally upon graduation (in all the States). Those already enrolled will be less likely to finish their education at State schools due to the loss of current and future earning potential. See Ex. 12 ¶ 7-8 (Decl. Milliken); Ex. 56 ¶ 7 (Decl. Quinonez); Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 146 ¶¶ 8, 12 (Decl. Clark et al.); Ex. 72 ¶ 5 (Decl. Teodoro); Ex. 132 ¶ 7 (Decl. Allen); Ex. 131 ¶ 8 (Decl. Miranda); Ex. 136 ¶ 6 (Decl. Hardwick); Ex. 69 ¶¶ 8, 10 (Decl. Mendes); Ex. 60 ¶¶ 6, 9 (Decl. Guevara); Ex. 145 ¶ 8 (Decl. Kennedy); Ex. 135 ¶¶ 7-10 (Decl. Rakes); Ex. 139 ¶ 6 (Decl. Dietz, Illinois State Univ.); Ex. 143 ¶ 8 (Decl. Wilson); Ex. 106 ¶ 7 (Decl. Suria); Ex. 105 ¶ 5 (Decl. Oduyoye); Ex. 134 ¶¶ 16-17 (Decl. Herbst); Ex. 137 ¶ 7 (Decl. Straney); Ex. 152 ¶¶ 18-20 (Decl. Mathewson & Pareja); Ex. 101 ¶ 4 (Decl. Preciado); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 168 ¶ 6 (Decl. Cabrera); Ex. 160 ¶¶ 7-8 (Decl. Hagemann); Ex. 153 ¶¶ 7-8 (Decl. Karpilo); Ex. 95 ¶ 8 (Decl. Solano); Ex. 157 ¶¶ 6-7 (Decl. Ridder); Ex. 159 ¶¶ 5-6 (Decl. Galvan); Ex. 158 ¶¶ 6, 8, 11 (Decl. TruebloodGamble); Ex. 154 ¶¶ 7-10 (Decl. Cuprill-Comas); Ex. 133 ¶ 13 (Decl. Pachis); Ex. 57 ¶ 4 (Decl. Ballinger); Ex. 58 ¶ 5 (Decl. Loera); Ex. 163 (Sánchez Letter, Rhode Island College); Ex. 165 ¶ 4 (Decl. Linde, Rhode Island College); Ex. 166 ¶ 6 (Decl. Sullivan); Ex. 167 ¶¶ 4-5 (Decl. Reveley); Ex. 164 ¶ 7 (Decl. Farish); Ex. 171 ¶¶7-9 (Decl. Park).
196. Additionally, DACA students enrolled in programs that require employment authorization or entail licensing requirements to complete elements of the program—such as paid internships, clinical placement, residency training, or programs that require significant lab or field work—will be severely and adversely impacted if DACA is terminated. Indeed, these students may not be able to complete the academic requirements of their degrees. See, e.g., Ex. 12 ¶ 8 (Decl.
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Milliken); Ex. 61 ¶ 6 (Decl. Heatwole); Ex. 135 ¶ 9 (Decl. Rakes); Ex. 136 ¶ 7 (Decl. Hardwick); Ex. 166 ¶¶ 6-7 (Decl. Sullivan); Ex. 134 ¶ 33 (Decl. Herbst); Ex. 132 ¶ 7 (Decl. Allen); Ex. 131 ¶ 8 (Decl. Miranda); Ex. 152 ¶ 19 (Decl. Mathewson & Pareja); Ex. 145 ¶ 9 (Decl. Kennedy); Ex 6 ¶¶ 13-15 (Decl. C. Andrade).
197. DACA students in graduate programs at public universities in the States will be significantly affected because the loss of employment authorization needed for graduate assistantship (research or teaching) will likely mean the loss of tuition waivers and other benefits such as subsidized health, dental, and vision insurance for the students and their families. The loss of graduate assistants also is a significant harm to the States because of the services they provide in assisting faculty and instructing students. See Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 134 ¶¶ 31-32 (Decl. Herbst).
198. Losing these talented young immigrants will deprive the States’ schools of the special and unique contributions and perspectives they bring to campus communities, both as students and alumni. See, e.g., Ex. 57 ¶¶ 4-6 (Decl. Ballinger); Ex. 58 ¶¶ 4-8 (Decl. Loera); Ex. 61 ¶ 7 (Decl. Heatwole); Ex. 132 ¶¶ 6-7 (Decl. Allen); Ex. 131 ¶ 9 (Decl. Miranda); Ex. 134 ¶¶ 1926, 36-38 (Decl. Herbst); Ex. 133 ¶¶ 23-24 (Decl. Pachis); Ex. 135 ¶¶ 3, 13 (Decl. Rakes); Ex. 137 ¶¶ 7-8, 10 (Decl. Straney); Ex. 139 ¶¶ 3, 4, 7 (Decl. Dietz); Ex. 152 ¶¶ 10, 18, 21 (Decl. Mathewson & Pareja); Ex. 157 ¶ 11 (Decl. Ridder); Ex. 159 ¶¶ 8-9 (Decl. Galvan); Ex. 155 ¶¶ 6, 8 (Decl. Alexander); Ex. 154 ¶ 7 (Decl. Cuprill-Comas); Ex. 153 ¶ 10 (Decl. Karpilo); Ex. 160 ¶ 5 (Decl. Hagemann); Ex. 158 ¶ 9 (Decl. Trueblood-Gamble); Ex. 163 (Sánchez Letter); Ex. 165 ¶ 4 (Decl. Linde); Ex. 166 ¶¶ 6-7 (Decl. Sullivan); Ex. 167 ¶¶ 4-5 (Decl. Reveley); Ex. 136 ¶ 8 (Decl. Hardwick); Ex. 145 ¶¶ 10-11 (Decl. Kennedy).
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199. The States’ public universities and colleges will also suffer direct financial harm, including lost tuition revenue and scholarship funds, if DACA students are forced to withdraw or are unable to enroll. See, e.g., Ex. 57 ¶¶ 4-6 (Decl. Ballinger); Ex. 58 ¶¶ 4-8 (Decl. Loera,); Ex. 61 ¶ 7 (Decl. Heatwole); Ex. 134 ¶¶ 27-28 (Decl. Herbst); Ex. 133 ¶¶ 17-18 (Decl. Pachis); Ex. 136 ¶ 8 (Decl. Hardwick); Ex. 137 ¶ 9 (Decl. Straney); Ex. 157 ¶¶ 6-7 (Decl. Ridder); Ex. 159 ¶ 5 (Decl. Galvan); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 154 ¶ 8 (Decl. Cuprill-Comas); Ex. 153 ¶¶ 78 (Decl. Karpilo); Ex. 160 ¶¶ 6-8 (Decl. Hagemann); Ex. 158 ¶ 6 (Decl. Trueblood-Gamble); Ex. 163 (Sánchez Letter); Ex. 164 ¶ 9 (Decl. Farish); Ex. 132 ¶ 10 (Decl. Allen); Ex. 131 ¶ 9 (Decl. Miranda); Ex. 145 ¶¶ 10-14 (Decl. Kennedy). In at least one state (Oregon), current demographic and enrollment trends and other factors suggest that this lost revenue will not be replaced by other students for many universities, and will represent an absolute loss of revenue. See Ex. 160 ¶ 8 (Decl. Hagemann); Ex. 158 ¶ 7 (Decl. Trueblood-Gamble); Ex. 157 ¶ 7 (Decl. Ridder).
200. Terminating DACA also will impose additional tangible costs on our public colleges and universities, which already have begun to experience disruption as a result of uncertainty over the future of the program and are preparing for the likelihood of expending additional resources to address the detrimental effects of DACA termination. See, e.g., Ex. 61 ¶¶ 8-9 (Decl. Heatwole); Ex. 134 ¶¶ 35, 38 (Decl. Herbst); Ex. 136 ¶¶ 8-9 (Decl. Hardwick); Ex. 157 ¶ 12 (Decl. Ridder); Ex. 155 ¶ 7 (Decl. Alexander); Ex. 153 ¶ 11 (Decl. Karpilo); Ex. 160 ¶ 9 (Decl. Hagemann); Ex. 158 ¶¶ 10, 12 (Decl. Trueblood-Gamble); Ex. 132 ¶ 9 (Decl. Allen); Ex. 167 ¶ 6 (Decl. Reveley).
201. Terminating DACA will further deprive the States of the earning potential of graduates from public colleges and universities who are most likely to stay in-State and join the States’ workforces. See, e.g., Ex. 132 ¶ 9 (Decl. Allen). For example:
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a. Nine out of ten Massachusetts public higher education graduates remain in the State, working or pursuing further education. See Ex. 93 (Mass. Dept. of Higher Education, Time to Lead, The Need for Excellence in Public Higher Education, Sept. 2012).
b. The majority of Iowa public higher education graduates remain in Iowa, working or pursuing further education. See Ex. 67 at 26 (The University of Iowa Pomerantz Career Center, 2015-2016 Annual Report); Ex. 68 (Iowa State University 6-Month Post Graduation Status, 2014-2015; Ex. 73 at 2 (Career Ready, University of Northern Iowa Career Services, 2016).
c. Nearly 90% of Community College of Rhode Island graduates stay in Rhode Island after graduation to live and raise their families. Ex. 162 (Hughes Letter).
d. Approximately 85 to 87 percent of Eastern Connecticut State University graduates stay in Connecticut after graduation to “contribute[] to the growth and vitality of Connecticut’s economy.” Ex. 133 ¶ 16 (Decl. Pachis).
202. Terminating DACA will also undermine the investment in and efforts to develop a well-educated workforce that can contribute to the States’ overall economies and competitiveness, and the States’ ability to meet certain critical workforce needs such as healthcare in rural areas. See, e.g., Ex. 159 ¶ 6 (Decl. Galvan); Ex. 154 ¶¶ 6, 10 (Decl. Cuprill-Comas); Ex. 156 ¶ 11 (Decl. Mitsui). Currently, 100 DACA grantees are medical students and medical resident physicians at schools that are members of the Association of American Medical Colleges, and approximately two-thirds of these DACA grantees are pursuing their medical education in one of the States. See Ex. 114 ¶ 4 (Decl. Prescott, Association of American Medical Colleges). Aspiring DACA-grantee physicians contribute to a diverse and culturally responsive workforce to meet the needs of
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underserved populations. See id. ¶¶ 5-6. Terminating DACA will cause the States to lose specific investments that they have made in this workforce and will leave significant gaps in the States’ healthcare workforce. See id. ¶ 7; Ex. 85 ¶¶ 5-6 (Decl. Swenson). For example:
a. In Illinois, DACA grantees have participated in a loan program, through the Illinois Finance Authority, in which students receive interest-free loans so long as they agree to repay the principal and commit to four years of work in an underserved Illinois community following their graduation. Ex. 141 ¶ 6 (Decl. Pelissero & Callahan, Loyola Univ. of Chicago). Without DACA, underserved Illinois communities will lose access to these committed medical professionals. Id. ¶ 8.
b. Oregon’s legislature has established a program to provide scholarships to health professional students who commit to practicing in rural and underserved areas of the state for a period of time following graduation. See ORS 348.303. At least one dental student participant in this program is a DACA recipient who will likely not be able to complete his commitment to practice dentistry in an underserved area of Oregon. See Ex. 94 ¶¶ 4, 9-18 (Decl. Ramirez Cuevas).
203. The nation’s leading private universities will suffer harms if DACA is terminated. Harvard University, for example, has more than 50 DACA students currently enrolled. See Ex. 96 ¶ 6 (Decl. Madsen, Harvard Univ.). Tufts University has more than 25 DACA students. See Ex. 97 ¶ 8 (Decl. Jeka, Tufts Univ.). Brown University has approximately 12 DACA students. See Ex. 161 (Locke Letter). Roger Williams University, home to Rhode Island’s only law school, has at least six DACA students. See Ex. 164 ¶ 6 (Decl. Farish). These students often have had to overcome significant challenges in order to gain acceptance and bring critical perspectives, insights, and experiences to their universities. They make important and lasting contributions,
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including through their classroom participation, their extracurricular engagements, and their commitment to independent study and research. See, e.g., Ex. 97 ¶ 5 (Decl. Jeka); Ex. 96 ¶¶ 5, 7, 12 (Decl. Madsen); Ex. 144 ¶¶ 4-5 (Decl. Martin, Amherst College); Ex. 147 ¶ 7 (Decl. Stephens, Mount Holyoke College); Ex. 140 ¶¶ 4, 6, 9 (Decl. Jensen, Illinois Wesleyan Univ.); Ex. 141 ¶¶ 4, 5, 6, 7,8 (Decl. Pelissero & Callahan); Ex. 138 ¶¶ 6, 11 (Decl. Salgado, City Colleges of Chicago); Ex. 164 ¶¶ 8-9 (Decl. Farish); Ex. 161 (Locke Letter).
204. Employment authorization gives these students and their universities an assurance that they may put their talents to use in the United States job market after graduation, benefitting the States and the nation as a whole. See, e.g., Ex. 96 ¶¶ 12-15 (Decl. Madsen); Ex. 161 (Locke Letter); Ex. 144 ¶ 9 (Decl. Martin, Amherst); Ex. 147 ¶¶ 8-9 (Decl. Stephens).
205. DACA has allowed these students to step outside the shadow of their immigration status and to participate fully as members of academic and campus communities in ways that likely would not be possible otherwise. See, e.g., Ex. 140 ¶¶ 7, 8 (Decl. Jensen); Ex. 97 ¶ 7 (Decl. Jeka); Ex. 96 ¶ 12 (Decl. Madsen); Ex. ¶ 7 (Decl. Martin, Amherst). Terminating DACA will take important opportunities away from DACA students and reintroduce fear and uncertainty into their lives, with significant adverse effects on these students, their universities, and the broader community. See Ex. 140 ¶¶ 7, 8 (Decl. Jensen); Ex. 97 ¶¶ 8-10 (Decl. Jeka); Ex. 96 ¶ 13 (Decl. Madsen); Ex. 144 ¶ 10 (Decl. Martin, Amherst); Ex. 148 ¶ 6 (Decl. Martin, Northeastern Univ.); Ex. 147 ¶ 10 (Decl. Stephens); Ex. 161 (Locke Letter); Ex. 103 ¶ 8 (Decl. Perla); Ex. 106 ¶ 7 (Decl. Suria); Ex. 105 ¶ 5 (Decl. Oduyoye); Ex. 104 ¶ 7 (Decl. G.L.); Ex. 102 ¶¶ 12-14 (Decl. Juarez); Ex. 152 ¶ 19 (Decl. Mathewson & Pareja); Ex. 151 ¶¶ 14, 16 (Decl. Roth, UNMHSC); Ex. 107 ¶¶ 7-8 (Decl. Torrez).
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Harm to State Law, Regulation, and Policy. 206. The States have an interest in preserving their legal, regulatory, and policy
frameworks that take the DACA program into account. 207. Many of the States have enacted laws, promulgated regulations, and/or established
policies that contemplate and rely on the DACA program. If DACA is terminated, these legal, regulatory, and policy regimes will be harmed. For example:
a. Since 2012, Connecticut has granted driver’s licenses to approximately 5,000 DACA grantees who are Connecticut residents, many of whom have also purchased and registered vehicles in Connecticut. See Ex. 121 ¶¶ 6-7 (Decl. Bzdyra). DACA grantees who have purchased and registered vehicles will have paid Connecticut sales tax and local property taxes for such vehicles. Id. ¶¶ 8-9.
b. Illinois has enacted laws to enable DACA grantees to participate in the economy professionally. These include providing that no person in Illinois shall be prohibited from receiving a law license solely because he or she is not a citizen and explicitly allowing DACA grantees to apply for a license to practice law. See 705 Ill. Comp. Stat. 205/2. DACA grantees are also eligible to receive state-issued identification cards and drivers’ licenses; own motor vehicles which are registered, titled and licensed in the state of Illinois; and own businesses and property in Illinois. See Ex. 125 ¶ 6 (Decl. White, Illinois Secretary of State). The Office of the Illinois Secretary of State will be adversely impacted if DACA is terminated by the loss of revenue from licensing fees and taxes, as well as costs and system disruptions related to eligibility determinations of license renewals for DACA recipients. Id. ¶
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7. Illinois administrative rules, regulations and laws will also need to be amended to conform to the changes in the DACA program. Id. c. Under DACA, thousands of young Massachusetts and Oregon residents are able to receive social security cards and thereby have access to driver’s licenses, which they depend on to attend heath care appointments, to commute to work and school, and to attend to other necessities for themselves and their family members. See Ex. 9 (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements); ORS 807.021 (proof of legal presence required to issue, renew or replace driver license); Ex. 175 (Attorney General Advisory Letter to Acting Commissioner J. Eric Boyette, Jan.17, 2013); Ex. 101 ¶ 3 (Decl. Preciado); Ex. 71 ¶¶ 5-7, 9 (Decl. I.T.); Ex. 69 ¶¶ 7-8 (Decl. Mendes); Ex. 70 ¶¶ 5, 8 (Decl. I.V.). Terminating DACA will make it impossible for these individuals to apply for new licenses or renew the licenses they have, leading to a number of adverse outcomes, including a decrease in licensing fees paid to the States, a decrease in productivity of these residents, and an increase in unlicensed drivers on the road.
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Harm to Public Health and Health Care Costs. 208. The States have an interest in protecting the public health and in minimizing health
care costs expended by the States. 209. Terminating DACA will harm public health and impose additional health care costs
on the States. Work authorization allows DACA grantees to access employer-sponsored health benefits. See, e.g., Ex. 72 ¶ 4 (Decl. Teodoro); Ex. 69 ¶¶ 6, 10 (Decl. Mendes); Ex. 171 ¶18 (Decl. Park); Ex. 172 ¶8 (Decl. Morales); Ex. 110 ¶ 8 (Decl. Schlosberg, District of Columbia Department of Health Care Finance). In fact, more than 50% of DACA grantees have obtained employerprovided insurance. See Ex. 5 ¶ 12 (Decl. Wong). Without these benefits, more of the States’ residents are likely to forgo needed health care, including preventive care, which will create more costly health problems in the long run. It also will cause more people to rely on state-funded and/or state-administered public health care and other benefits and thus impose additional costs on the States. For example:
a. Colorado provides emergency Medicaid regardless of immigration status, which covers the hospital delivery of children for qualified undocumented immigrants. See Ex. 78 at 1-2 (Colorado Department of Health Care Policy and Financing letter dated June 28, 2005).
b. Delaware provides limited emergency and labor/delivery services to residents whose immigration status otherwise keeps them from accessing health care benefits and services. See Ex. 122 ¶¶ 6-7 (Decl. Groff).
c. The D.C. HealthCare Alliance is the District of Columbia’s state-sponsored insurance program of last resort. See Ex. 110 ¶¶ 6, 9 (Decl. Schlosberg); see also D.C. Code § 7-771.07(2). The placement of all of the individuals in the District
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participating in the DACA program in 2017 onto the D.C. HealthCare Alliance would require the District to spend additional money on that program, harm District finances, and prevent the District from spending that money on other public health priorities. See Ex. 110 ¶ 10 (Decl. Schlosberg). In fact, the placement of these individuals onto the D.C. HealthCare Alliance could cost the District an additional $283,000 per month in District of Columbia Fiscal Year 2018. See id. ¶ 12. d. Under Hawaii’s Prepaid Health Care Act, Haw. Rev. Stat. ch. 393, Hawaii employers are required to provide regular employees who meet wage requirements with coverage under a qualifying prepaid group health care plan. See Haw. Rev. Stat. § 393-11. The termination of DACA will likely cause more people to rely on Hawaii’s state-administered Medicaid One-Time Emergency services. Hawaii reimburses hospitals for emergency and urgent services provided to qualifying uninsured Hawaii patients, including undocumented immigrants. Ex. 123 ¶¶ 5-6 (Decl. Peterson, Med-QUEST Division, Hawaii Department of Human Services). e. In Massachusetts, DACA grantees who lose employer-based coverage may be eligible for MassHealth, a state-funded health insurance program. See Ex. 83 ¶¶ 57 (Decl. Caplan, Mass. Executive Office of Health and Human Services). In addition, Massachusetts will very likely have to cover some, if not all, of the costs of health care visits for these individuals through its state-administered Health Safety Net program or other programs. Id. ¶¶ 8-9. Finally, some DACA grantees who lose employer-based coverage will likely use providers, like community based health centers, that are funded in part by grants and other funding streams available through the state. Id. ¶¶ 10-14.
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210. New York State currently funds Medicaid coverage for low-income undocumented immigrants who have received deferred action, including DACA-eligible immigrants. See Ex. 77 (Office of Health Insurance Program, Children’s Health Insurance Program Reauthorization Act (CHIPRA) Expanded Coverage for Certain Qualified and PRUCOL Aliens, May 7, 2013). Terminating DACA may reduce access to Medicaid for current DACA grantees. New York State currently funds Medicaid coverage for low-income undocumented immigrants who have received deferred action, including DACA-eligible immigrants. See Id. Individuals in New York w h o a r e n o t D A C A g r a n t e e s m a y only qualify for Medicaid coverage of care and services necessary to treat an emergency condition. Terminating DACA will require New York to either seek a State legislative change to maintain current Medicaid coverage formerly DACA-eligible immigrants with state dollars only or limit Medicaid coverage to treatment of emergency conditions for some or all of these individuals. Harm to Small Cities, Counties, and Towns.
211. The States have an interest in preventing economic and other harm to their small cities, towns, counties, and other small governmental jurisdictions.
212. Terminating DACA will harm small governmental jurisdictions in the States. If DACA is terminated, small governmental jurisdictions will lose talented and trained employees, adversely affecting operations and costing time, money, and effort to replace and retrain these employees. See, e.g., Ex. 111 ¶¶ 10-11 (Decl. Ambrosino & Bourque, City of Chelsea, MA and Chelsea Public Schools); Ex. 113 ¶¶ 4-6 (Decl. Schuh). Many of these employees are highly skilled workers, including in critical fields such as nursing. See, e.g., Ex. 135 ¶¶ 10, 13 (Decl. Rakes); Ex. 98 ¶ 7, 10-11 (Naveed).
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213. Terminating DACA will have a direct, adverse effect on economies and sales tax revenues of small cities and towns, as DACA grantees will lose their jobs and refrain from buying goods and services from local vendors. See, e.g., Ex. 111 ¶ 16 (Decl. Ambrosino & Bourque); Ex. 176 ¶¶ 8-10, 13 (Decl. Kennedy, City of Newburgh).
214. DACA grantees average higher earning capacities than their undocumented peers and are able to better participate in the States’ economies, for example by purchasing homes and cars that are taxed by our state and local authorities. See Ex. 5 ¶ 16 (Decl. Wong). If DACA is terminated, cities and towns will lose other local tax revenue, including real estate taxes and motor vehicle excise taxes, from DACA grantees who can no longer access lines of credit or afford to buy cars or homes.
215. If DACA is terminated, small governmental jurisdictions will lose the benefits that full access by and participation of a diverse community fosters through community activities, including, for example, activities in libraries and local government-sponsored recreational camps or sports leagues. See, e.g, Ex. 109 ¶¶ 5-6 (Decl. Meyer, New Castle County, Del.). The termination of DACA will also have a destructive effect on local industries of small governmental jurisdictions that rely on the work of highly qualified and trained DACA recipients. Ex. 176 ¶¶ 4, 8-10, 13 (Decl. Kennedy, City of Newburgh).
216. Terminating DACA will also adversely affect public safety, health, and wellbeing in the States’ cities, towns, and schools. Without DACA status, DACA grantees afraid of deportation will be less likely to report violence, abuse, crimes or other harms to the community. If DACA is terminated, 53% of current DACA grantees may be less likely to report a crime they witnessed; 47% may be less likely to report a crime even if they were the victim; 48% may be less likely to go to the hospital if they suffered an injury, and 60% may be less likely to report wage
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theft by their employer. See Ex. 5 ¶ 24 (Decl. Wong). This will make it harder for local police and other officials to provide for the public safety and welfare. See, e.g., Ex. 111 ¶ 15 (Decl. Ambrosino & Bourque); Ex. 108 ¶¶ 7-10 (Decl. Hughes); Ex. 109 ¶ 6 (Decl. Meyer); Ex. 116 ¶¶ 10-13 (Decl. Graham, Delaware Community Legal Aid Society, Inc.). For example, since the Trump Administration announced plans to end DACA, Delaware law enforcement and legal aid have recognized an increased reluctance among Delaware immigrants to engage with aspects of the criminal justice system—even when that interaction would have been to protect their own victim rights. See, e.g., Ex. 108 ¶¶ 7-10 (Decl. Hughes); Ex. 116 ¶¶ 10-13 (Decl. Graham). Harm to School Districts, Including Small School Districts.
217. The States have an interest in effectively educating elementary and secondary students and in preventing economic harm to small and large school districts.
218. If DACA is terminated, public school districts will suffer financial harm as well as harm to their educational missions.
219. The termination of DACA will cause school districts to lose talented and experienced teachers and other staff members who are DACA grantees, adversely affecting student education and costing time, money, and effort to replace and retrain these employees. See Ex. 111 ¶ 11 (Decl. Ambrosino & Bourque); Ex. 79 (Whaley, Denver Public Schools say ending DACA would have “catastrophic” effect, Denver Post, Aug. 31, 2017).
220. In Connecticut, Colorado, Illinois, Massachusetts, New Mexico, and New York, Teach for America has placed teachers who are DACA grantees in shortage-area subjects and hardto-staff schools in low-income communities. See Ex. 11 ¶¶ 3, 11 (Decl. Carrizales, Teach For America). Terminating DACA will not only deprive schools of their employees, but also deprive students of teachers whose live experiences may mirror their own lives. Id. ¶¶ 10, 11.
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221. Public elementary and secondary schools have a constitutional obligation to educate students irrespective of immigration status. See Plyler v. Doe, 457 U.S. 202 (1982). The termination of DACA will harm the States’ ability to educate DACA-eligible students as required by federal law. See Ex. 111 ¶¶ 12,14 (Decl. Ambrosino & Bourque); Ex. 112 ¶ 3-4 (Decl. Kanninen, Arlington, VA Public Schools).
222. If DACA-eligible students are no longer able to work legally after high school or cannot afford to go to college, these students will be less motivated to achieve in school. See Ex. 111 ¶ 12 (Decl. Ambrosino & Bourque); Ex. 112 ¶ 3 (Decl. Kanninen). This will result in lower scores and higher dropout rates for these students. See Ex. 111 ¶ 12 (Decl. Ambrosino & Bourque).
223. Poorer performance will impact school districts’ accountability ratings and could require removal of administrators and teachers as well as increased state funding to flow to these school districts. See, e.g., Ex. 179 (Mass. Dep’t of Early and Secondary Educ., School Leader’s Guide to the 2017 Accountability Determinations, Sept. 2017). Decreased school performance will also negatively impact the community, with families not wanting to buy homes in a lowerperforming district. See Ex. 111 ¶ 13 (Decl. Ambrosino & Bourque).
224. Finally, DACA-eligible students will experience higher levels of anxiety about their futures and their families’ futures, and will require additional counseling and support from guidance counselors and other school personnel, costing school districts time and money. See Ex. 111 ¶ 14 (Decl. Ambrosino & Bourque).
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Harm to Businesses and Nonprofits. 225. The States have an interest in their tax revenues, economies, and the financial well-
being of their businesses and nonprofits. 226. Immigration is an important economic driver in the States. Many of the States’
workers are immigrants, and many of those immigrant workers are DACA grantees. See, e.g., Ex. 5 ¶ ¶ 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84, 88 (Decl. Wong); Ex. 126 ¶ 11 (Decl. Read, Oregon State Treasurer); Ex. 95 ¶ 7 (Decl. Solano); Ex. 101 ¶ 4 (Decl. Preciado); Ex. 100 ¶ 6 (Decl. Nicolas); Ex. 124 ¶¶ 4, 10-11 (Decl. Salaveria); Ex. 168 ¶ 3 (Decl. Cabrera); Ex. 120 ¶ 4 (Decl. Romero, Barrera Legal Group, PLLC); Ex. 174 ¶¶ 4,6,8 (Decl. Wylde, Partnership for NYC); Ex. 81 ¶¶ 2-3, 5-6 (Decl. Pinsky, ABNY). Many companies in the States are dependent on DACA grantees to operate and grow their businesses. The market for highly skilled workers and employees is extremely competitive. Terminating DACA grantees’ work authorization will inhibit the States’ companies’ ability to adequately staff their organizations, develop their workforces, recruit talent, and maintain trained employees. The Center for American Progress estimates that it costs businesses roughly one-fifth of a worker’s salary to replace a worker due to productivity loss, the cost of hiring and training a new employee, and ramp-up periods for new employees. See Ex. 80 (Heather Boushey and Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Center for American Progress, November 16, 2012).
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227. If companies lose employees and recruiting efforts are less successful, their ability to develop and deliver successful products and services may be adversely affected. See e.g., Ex. 63 ¶¶ 4-5 (Decl. Blackwell-Hawkins, Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex. 8 ¶¶ 7-8 (Decl. Mutty, Starbucks); Ex. 84 ¶¶ 4-11 (Decl. Kalvert, TripAdvisor); Ex. 119 ¶¶ 5-6 (Decl. Tingen, Tingen & Williams, PLLC); Ex. 174 ¶¶ 5-8 (Decl. Wylde, Partnership for NYC). For example:
a. Colorado’s talented workforce has attracted major industries to the State, including aerospace, high-tech, start-ups, and STEM-based employers. Many companies in Colorado rely heavily on immigrants to operate their business. Terminating DACA will disrupt these companies with DACA employees that are forced to terminate qualified and talented employees.
b. In Hawaii, businesses rely heavily on immigrants who bring their talent, knowledge, and expertise to Hawaii’s labor force. See Ex. 124 ¶ 4 (Decl. Salaveria). Because of Hawaii’s low unemployment rate, the state’s businesses have had difficulty filling their vacant positions. Id. ¶ 8. The departure of the DACA population from Hawaii’s workforce will cause even greater difficulty for Hawaii employers, and have a negative impact on Hawaii’s economy. Id. ¶ 11.Agriculture and forestry are two of Virginia’s largest private industries. The Virginia Department of Agriculture and Consumer Services estimates that approximately 1,944 of Virginia’s DACA grantees employed in primary agricultural production. See Ex. 129 ¶ 3 (Decl. Gooden, Virginia Sec’y of Agriculture and Forestry). Further, a percentage of DACA recipients are also likely to be regulated pesticide applicators. The loss of DACA status for these individuals would harm agricultural
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production and reduce income to Virginia from pesticide applicator licensing fees. See id. ¶ 7. c. In Washington, DACA grantees work for the largest companies as software engineers, finance professionals, and retail and sales associates, including for Amazon, Microsoft and Starbucks. See Ex. 63 ¶¶ 4-5 (Decl. Blackwell-Hawkins, Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex. 8 ¶¶ 7-8 (Decl. Mutty, Starbucks). d. In New York, businesses depend on the work of DACA grantees. See Ex. 170 ¶¶ 3, 7-8, 10 (Decl. Schwartz, Univision); Ex. 169 ¶ 7 (Decl. Greenberg, Warby Parker); Ex. 172 ¶¶ 4-5 (Decl. Morales); Ex. 174 ¶¶ 4-8 (Decl. Wylde, Partnership for NYC). DACA recipients are the consumer base for many New York businesses. Ex. 170 ¶¶ 5-6 (Decl. Schwartz, Univision); Ex. 169 ¶¶ 6-7 (Decl. Greenberg, Warby Parker). DACA grantees also provide diverse perspectives, and promote inclusiveness. Ex. 170 ¶¶ 3-9 (Decl. Schwartz, Univision); Ex. 169 ¶¶ 8-11 (Decl. Greenberg, Warby Parker); Ex. 174 ¶¶ 5,8 (Decl. Wylde, Partnership for NYC); ; Ex. 81 ¶¶ 2-8 (Decl. Pinsky, ABNY). 228. The impact on small businesses and nonprofit organizations will be especially stark. For entities with limited staff and operating budgets, losing even one skilled and trained DACA grantee employee will place an economic strain on operations, hiring, and training. See, e.g, Ex. 118 ¶¶ 9-11 (Decl. Igneri); Ex. 117 ¶¶ 5-8 (Decl. Tracy); Ex. 120 ¶ 4 (Decl. Romero); Ex. 119 ¶¶ 5-6 (Decl. Tingen). Further, many DACA grantees contribute their talents to nonprofits in a range of fields, including education and civic engagement. See, e.g, Ex. 55 ¶¶ 8-9 (Decl. Perez); Ex 98 ¶ 12 (Decl. 98 Naveed).
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229. The mission of nonprofit organizations in the States will also be adversely affected. Ex. 174 ¶¶ 3-8 (Decl. Wylde, Partnership for NYC). Many nonprofit organizations in the States serve immigrant communities, including by providing legal services and advocacy. Termination of DACA will throw families into crisis, creating higher demand for services from organizations with limited resources. See Ex. 117 ¶¶ 12-14 (Decl. Tracy, Brazilian Worker Center); Ex. 115 ¶¶ 2-7 (Decl. Tack-Hooper, Am. Civil Liberties Union of Delaware); Ex. 116 ¶¶ 2-8 (Decl. Graham). Harm to Families.
230. The States have an interest in protecting the welfare of all of their residents, including the families of DACA grantees.
231. Terminating DACA will harm the general welfare of the States’ DACA grantees and their families in profound ways. Most DACA grantees live in households with family members who are American citizens. One expert survey estimates that 73% percent of DACA grantees in the country live with a citizen sibling, spouse, or child. See Ex. 5 ¶ 34 (Decl. Wong). Terminating DACA will lead to increased uncertainty in these mixed-status families, and it will increase the likelihood of splitting DACA grantees from their citizen family members. See e.g., Ex. 176 ¶ 12 (Decl. Kennedy, City of Newburgh). Moreover, many of these families rely on the income of a DACA grantee, and DACA termination will threaten their financial and housing security. See, e.g., Ex. 87 ¶ 8 (Decl. Rubin); Ex. 135 ¶ 8 (Decl. Rakes); Ex. 157 ¶¶ 12-13 (Decl. Ridder); Ex. 172 ¶¶ 4-5, 7-8 (Decl. Morales); Ex. 173 ¶¶ 3, 5-6 (Decl. Hidalgo Hernandez).
232. Many DACA grantees also have families overseas, including parents and siblings. DACA had made it possible for these grantees to visit family members, often for the first time in years. See, e.g., Ex. 72 ¶ 7 (Decl. Teodoro); Ex. 70 ¶ 5 (Decl. I.V.). Terminating DACA will cause DACA grantees to lose touch with these family members and become further estranged
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from their countries of origin, making the prospect of deportation even more injurious to DACA grantees and their families.
FIRST CAUSE OF ACTION (Fifth Amendment – Equal Protection) 233. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint. 234. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 235. The DHS Memorandum target individuals for discriminatory treatment, without lawful justification. 236. The DHS Memorandum was motivated, at least in part, by a discriminatory motive and/or a desire to harm a particular group. 237. The discriminatory terms and application of the DHS Memorandum cannot be sufficiently justified by federal interests, under any standard of review. 238. Through their actions above, Defendants have violated the equal protection guarantee of the Fifth Amendment. 239. Defendants’ violation causes ongoing harm to the States and their residents.
SECOND CAUSE OF ACTION (Fifth Amendment – Due Process – Information Use) 240. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint. 241. The Due Process Clause of the Fifth Amendment requires that actions taken by the federal government be fundamentally fair.
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242. Given the federal government’s prior representations about the allowable uses of information provided by DACA applicants, the change to DHS’s policy of protecting against the disclosure of information in DACA applications and renewal requests is fundamentally unfair.
243. Also given the federal government’s prior representations about the allowable uses of information provided by DACA applicants, the new policy’s refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement—including identifying, apprehending, detaining, or deporting non-citizens—is fundamentally unfair.
244. Through their actions above, Defendants have violated the due process guarantee of the Fifth Amendment.
245. Defendants’ violation causes ongoing harm to the States and their residents.
THIRD CAUSE OF ACTION (Equitable Estoppel)
246. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint.
247. The doctrine of equitable estoppel prevents injustice where the government has made representations on which individuals have reasonably and detrimentally relied.
248. In order to encourage DACA applications, Defendants made repeated, affirmative statements about the protections that would be given to the personal information provided by DACA applicants. Defendants also placed affirmative restrictions on the use of such information for purposes of immigration enforcement.
249. In submitting DACA applications and renewal requests, DACA applicants reasonably and detrimentally relied on Defendants’ affirmative representations and conduct.
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250. Defendants should be equitably estopped from revoking DHS’s longstanding, affirmative policy of protecting against the disclosure of information in DACA applications and renewal requests.
251. Equitable estoppel should also bar Defendants from implementing DHS’s new policy of refusing to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including to identify, apprehend, detain, or deport non-citizens.
252. Failure to estop Defendants from revoking DHS’s previous policy and imposing the new policy will harm the States and their residents.
FOURTH CAUSE OF ACTION (Administrative Procedure Act – Substantively Arbitrary and Capricious,
Abuse of Discretion, Contrary to Constitution or Statute) 253. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint. 254. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. In implementing the DHS Memorandum and terminating DACA with minimal formal guidance, federal agencies have taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative Procedure Act. 255. In promulgating and implementing the DHS Memorandum, federal agencies have abused their discretion, and acted arbitrarily and capriciously and otherwise not in accordance with law, in violation of the APA. 256. Defendants’ violation causes ongoing harm to the States and their residents.
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FIFTH CAUSE OF ACTION (Administrative Procedure Act – Procedurally Arbitrary and Capricious,
Notice and Comment) 257. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint. 258. The APA, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 259. DHS is an “agency” under the APA. 5 U.S.C. § 551(1). 260. The actions that DHS has taken to implement the DHS Memorandum are “rules” under the APA. 5 U.S.C. § 551(4). 261. In promulgating and implementing the DHS Memorandum, federal agencies have categorically and definitively changed the substantive criteria by which individual DACA grantees work, live, attend school, obtain credit, and travel in the United States. Federal agencies did not follow the procedures required by the APA before taking action impacting these substantive rights. 262. With exceptions that are not applicable here, agency rules must go through noticeand-comment rulemaking. 5 U.S.C. § 553. 263. The Defendants promulgated and relied upon the rules established by the DHS Memorandum without authority and without notice-and-comment rulemaking in violation of the APA. 264. The States will be impacted because they have not had the opportunity to comment on the termination of DACA. 265. Defendants’ violation causes ongoing harm to the States and their residents.
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SIXTH CAUSE OF ACTION (Regulatory Flexibility Act – Failure to Issue Regulatory Flexibility Analyses) 266. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint. 267. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal agencies to analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for public comment. 5 U.S.C. §§ 603-604. 268. “Small entities” for purposes of the RFA includes small businesses, small nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6). 269. The promulgation and implementation of the DHS Memorandum established “rules” under the RFA. 5 U.S.C. § 601(2). 270. Implementation of the DHS Memorandum is likely to have a significant economic impact on a substantial number of small entities. 5 U.S.C. § 602(a)(1). 271. Defendants have not issued the required analyses of DHS’s new rules. 272. Defendants’ failure to issue the initial and final Regulatory Flexibility Analyses violates the RFA and is unlawful. 273. Defendants’ violation causes ongoing harm to the States, their small governmental jurisdictions, nonprofits, and businesses, and their residents.
SEVENTH CAUSE OF ACTION (Fifth Amendment-Procedural Due Process) 274. The Plaintiff States re-allege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Amended Complaint.
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275. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests or property interests without due process of law.
276. Defendants have failed to provide DACA grantees with the due process to which they are entitled, by failing to provide them with adequate notice about the procedures and timeline for renewing their DACA status.
277. Defendants have failed to provide DACA grantees with the due process to which they are entitled, by failing to give them adequate notice about the general termination of the DACA program after March 5, 2018 and by failing to provide DACA grantees adequate notice of their inability to apply for renewal of their DACA status after March 5, 2018.
278. Defendants are thus depriving Plaintiff States’ residents of their liberty and property interests in living and working in the United States without providing them adequate notice or opportunity to be heard.
279. Defendants’ conduct violates the Due Process Clause of the Fifth Amendment. 280. Defendants’ violations cause ongoing harm to the States and their residents.
PRAYER FOR RELIEF 281. Wherefore, the States pray that the Court:
a. Declare that the DHS Memorandum terminating the DACA program is unauthorized by and contrary to the Constitution and laws of the United States;
b. Declare that the actions that DHS has taken to implement the DHS Memorandum terminating the DACA program are procedurally unlawful under the APA;
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c. Declare that the actions that DHS has taken to implement the DHS Memorandum terminating the DACA program are substantively unlawful under the APA;
d. Declare that the actions that DHS has taken to implement the DHS Memorandum terminating the DACA program are unlawful under the RFA;
e. Enjoin Defendants from terminating the DACA program, including enjoining the Defendants from limiting rights to submit applications to renew DACA benefits, pending further orders from this Court;
f. Enjoin Defendants from revoking the DHS policy protecting DACA application and renewal data from disclosure to ICE, CBP, or any other agency for purposes of immigration enforcement;
g. Enjoin Defendants from using information obtained in any DACA application or renewal request to identify, apprehend, detain, or deport any DACA applicant or member of any DACA applicant’s family, or take any action against a DACA applicant’s current or former employer; and
h. Award such additional relief as the interests of justice may require.
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DATED: October 4, 2017

ERIC T. SCHNEIDERMAN Attorney General of the State of New York
By: /s Lourdes M. Rosado Lourdes M. Rosado, Bureau Chief Sania Khan, Assistant Attorney General Diane Lucas, Assistant Attorney General Ajay Saini, Assistant Attorney General Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 23rd Floor New York, NY 10271 Lourdes.Rosado@ag.ny.gov Sania.Khan@ag.ny.gov Diane.Lucas@ag.ny.gov Ajay.Saini@ag.ny.gov Tel. (212) 416-6348 Fax (212) 416-8074

MAURA HEALEY Attorney General for the Commonwealth of Massachusetts
By: /s Abigail B. Taylor Jonathan B. Miller Genevieve C. Nadeau (pro hac vice) Abigail B. Taylor (pro hac vice) Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Genevieve.Nadeau@state.ma.us Abigail.Taylor@state.ma.us Tel. (617) 727-2200

BOB FERGUSON Attorney General of the State Washington
By: /s/ Robert W Ferguson Robert W. Ferguson (pro hac vice) Attorney General Colleen M. Melody (pro hac vice) Civil Rights Unit Chief Marsha Chien (pro hac vice) Assistant Attorney General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 ColleenM1@atg.wa.gov MarshaC@atg.wa.gov Tel. (206) 464-7744

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GEORGE JEPSEN Attorney General of the State of Connecticut
By: /s Mark K. Kohler Mark F. Kohler (pro hac vice) Assistant Attorney General Connecticut Office of the Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06106 Mark.Kohler@ct.gov Tel. (860) 808-5020

KARL A. RACINE Attorney General for the District of Columbia
By: /s Robyn R. Bender Robyn R. Bender* Deputy Attorney General Public Advocacy Division 441 4th Street, NW Suite 650 North Washington, DC 20001 Robyn.Bender@dc.gov Tel. (202) 724-6610 Fax (202) 730-0650

DOUGLAS S. CHIN Attorney General of the State of Hawaii
By: /s Donna H. Kalama Donna H. Kalama (pro hac vice) Deputy Attorney General State of Hawaii, Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Donna.H.Kalama@hawaii.gov Tel. (808) 586-1224

LISA MADIGAN Attorney General of the State of Illinois
By: /s Anna P. Crane Anna P. Crane, Assistant Attorney General (pro hac vice) Karyn L. Bass Ehler, Chief, Civil Rights Bureau Harpreet Khera, Deputy Bureau Chief, Special Litigation Bureau Caitlyn McEllis, Assistant Attorney General Jeff VanDam, Assistant Attorney Genera Civil Rights Bureau Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Anna.Crane@atg.state.il.us Tel. (312) 814-3400 Fax (312) 814-3212

THOMAS J. MILLER Attorney General of the State of Iowa
By: /s Nathan Blake Nathan Blake (pro hac vice) Deputy Attorney General Office of the Attorney General of Iowa 1305 E. Walnut Street Des Moines, IA 50319 Nathan.Blake@iowa.gov Tel. (515) 281-4325 Fax (515) 281-4209

HECTOR H. BALDERAS Attorney General of the State of New Mexico
By: /s Tania Maestas Tania Maestas, (pro hac vice) Deputy Attorney General Ari Biernoff, Assistant Attorney General Jennie Lusk, Assistant Attorney General New Mexico Office of the Attorney General 408 Galisteo St. Santa Fe, NM 87501 ABiernoff@nmag.gov Tel. (505) 490-4060 Fax (505) 490-4883

77

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 78 of 79 PageID #: 1697

MATTHEW DENN Attorney General of the State of Delaware
By: s/ Aaron Goldstein Aaron Goldstein* State Solicitor Aleine Cohen* Deputy Attorney General Delaware Department of Justice 820 N. French St. Wilmington, DE 19801 Aaron.Goldstein@state.de.us Aleine.Cohen@state.de.us Tel. (302) 577-8400

PETER KILMARTIN Attorney General of the State of Rhode Island
By: /s Rebecca T. Partington Rebecca T. Partington (pro hac vice) Chief, Civil Division Michael W. Field (pro hac vice) Assistant Attorney General Adam D. Roach (pro hac vice) Special Assistant Attorney General RI Office of the Attorney General 150 South Main Street Providence, RI 02903 RPartington@riag.ri.gov MField@riag.ri.gov ARoach@riag.ri.gov Tel. (401) 274-4400

JOSH STEIN Attorney General of the State of North Carolina
By: /s Sripriya Narasimhan Sripriya Narasimhan* North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 SNarasimhan@ncdoj.gov Tel. (919) 716-6400

ELLEN F. ROSENBLUM Attorney General of the State of Oregon
By: /s Brian De Haan Brian De Haan* Assistant Attorney General Trial Attorney Brian.A.DeHaan@doj.state.or.us Tel. (971) 673-1880 Fax (971) 673-5000

JOSH SHAPIRO Attorney General of the Commonwealth of Pennsylvania
By: /s Jonathan Scott Goldman Jonathan Scott Goldman* Executive Deputy Attorney General, Civil Law Division Michael J. Fischer, (pro hac vice) Chief Deputy Attorney General, Impact Litigation Section Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA 17120 MFischer@attorneygeneral.gov Tel. (717) 787-3391

THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont
By: /s Benjamin D. Battles Benjamin D. Battles, (pro hac vice) Solicitor General Julio A. Thompson*, Assistant Attorney General, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, VT 05609 Benjamin.Battles@vermont.gov Tel. (802) 828-5500 Fax (802) 828-3187

78

Case 1:17-cv-05228-NGG-JO Document 54 Filed 10/04/17 Page 79 of 79 PageID #: 1698

MARK R. HERRING Attorney General of the Commonwealth of Virginia
By: /s Matthew R. McGuire Matthew R. McGuire (pro hac vice) Acting Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219 MMcguire@oag.state.va.us Tel. (804) 786-7773

JOHN W. HICKENLOOPER Governor of the State of Colorado
By: /s Jacki Cooper Melmed Jacki Cooper Melmed Special Assistant Attorney General* Chief Legal Counsel 136 State Capitol Building Denver, Colorado 80203 Jackic.Melmed@state.co.us Tel. (303) 866-3788 (* Limited Appointment)

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 Case 1:17-cv-05228-NGG-JO Document 71 Filed 10/27/17 Page 1 of 3 PageID #: 3647

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MARTÍN JONATHAN BATALLA VIDAL, et al.,
Plaintiffs,
v.
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security, et al.,
Defendants.

No. 16-cv-4756 (NGG) (JO)

STATE OF NEW YORK, et al., Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

No. 17-cv-5228 (NGG) (JO)

NOTICE OF MOTION TO DISMISS
PLEASE TAKE NOTICE that, upon the Memorandum of Law, dated October 27, 2017, Defendants in the above-captioned actions will move this Court before the Honorable Nicholas G. Garaufis, United States District Judge, at the United States District Court for the Eastern District of New York, located at 225 Cadman Plaza East, Brooklyn, New York 11201, at a date and time to be determined by the Court, to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

Case 1:17-cv-05228-NGG-JO Document 71 Filed 10/27/17 Page 2 of 3 PageID #: 3648

PLEASE TAKE FURTHER NOTICE that, pursuant to the schedule endorsed by the Court on October 24, 2017, Plaintiffs’ opposition papers shall be served no later than 12:00 noon on November 1, 2017.

Dated: October 27, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
BRIDGET M. ROHDE Acting United States Attorney
BRETT A. SHUMATE Deputy Assistant Attorney General
JENNIFER D. RICKETTS Director, Federal Programs Branch
JOHN R. TYLER Assistant Branch Director
BRAD P. ROSENBERG Senior Trial Counsel
/s/ Stephen M. Pezzi STEPHEN M. PEZZI (D.C. Bar #995500) KATE BAILEY Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel.: (202) 305-8576 Fax: (202) 616-8470 Email: stephen.pezzi@usdoj.gov
JOSEPH A. MARUTOLLO Assistant U.S. Attorney United States Attorney’s Office Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, NY 11201

Case 1:17-cv-05228-NGG-JO Document 71 Filed 10/27/17 Page 3 of 3 PageID #: 3649

CC: All Counsel of Record (by ECF)

Tel: (718) 254-6288 Fax: (718) 254-7489 Email: joseph.marutollo@usdoj.gov
Counsel for Defendants

 
 Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 1 of 48 PageID #: 3795

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-X

MARTIN JONATHAN BATALLA VIDAL et al,

-against-

Plaintiffs,

MEMORANDUM & ORDER
16-CV-4756(NGG)(JO)

ELAINE C.DUKE,Acting Secretary,Department of Homeland Security, et al.,

Defendants. -X

STATE OF NEW YORK et al..

-against-

Plaintiffs,

MEMORANDUM & ORDER
17-CV-5228(NGG)(JO)

DONALD TRUMP,President ofthe United States, et al..

Defendants. X

NICHOLAS G.GARAUFIS,United States District Judge. Plaintiffs in the above-captioned cases challenge the rescission ofthe Deferred Action for

Childhood Arrivals("DACA")program,as well as other actions that Defendants are alleged to

have taken in connection with the rescission ofthat program. Defendants have moved to dismiss these cases for lack ofsubject-matterjurisdiction and for failure to state a claim. (See Defs. Mot.

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 2 of 48 PageID #: 3796

to Dismiss(Dkt.95)^; Defs. Mem.ofLaw in Supp.ofMot.to Dismiss("Defs. Mem.")(Dkt.95-
1).) For the reasons that follow,the court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss for lack ofsubject-matterjurisdiction and RESERVES RULING

on Defendants' motion to dismiss for failure to state a claim.

1.

BACKGROUND

The court begins by providing some background on the DACA program,the steps

Defendants have taken to end it, and the increasingly complicated procedural history ofthese

cases.
A. Factual Background
1. Deferred Action
The DACA program originates in a mismatch between the number ofindividuals unlawfully present in the United States and DHS's ability to remove these individuals from the country. As of2014,for example,approximately 11.3 million removable individuals were
present in the United States.^ (The Department ofHomeland Security's Authority to Prioritize
Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others,38 Op. O.L.C.at 1 (2014)("OLC Op.")(Admin.R.("AR")(Dkt.77-1)at 4).) DHS has the resources to remove only a small percentage ofthese individuals—specifically,about 400,000 per year,or less than four percent ofthe total, as of2014. (Id. at 1;DHS,2015

'Except as noted,all docket citations refer to the docket in Batalla Vidal v. Duke.No. 16-CV-4756(E.D.N.Y.). For convenience,the court refers to the Plaintiffs in Batalla Vidal v. Duke as the "Batalla Vidal Plaintiffs"; Plaintiff Make the Road New York as"MRNY";the Plaintiffs in New York v. Trump.No. 17-CV-5228(E.D.N.Y.),as the "State Plaintiffs";the U.S.Department ofHomeland Security as"DHS";U.S. Customs and Border Protection as "GBP"; U.S. Citizenship and Immigration Services as "USCIS"; U.S. Immigration and Customs Enforcement as "ICE"; and the U.S. Department ofJustice as"DOJ."
^ "Aliens may be removed ifthey were inadmissible at the time ofentry, have been convicted ofcertain crimes,or meet other criteria set by federal law." Arizona v. United States.567 U.S.387,396(2012)(citing 8 U.S.C.§ 1227).

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Yearbook ofImmigration Statistics tbl. 39(2016)(listing 333,341 removals and 129,122 "returns"for the year 2015).) Because ofthe "practical fact"that it cannot deport all these individuals,the Executive Branch has significant discretion to prioritize the removal ofsome and to deprioritize the removal ofothers. Arpaio v. Obama.797 F.3d 11,16(D.C. Cir. 2015).
"One form ofdiscretion the Secretary ofHomeland Security exercises is'deferred action,' which entails temporarily postponing the removal ofindividuals unlawfully present in the United States." Id "Deferred action,"sometimes referred to as"nonpriority status," is"in effect,an informal administrative stay ofdeportation," Lennon v.INS,527 F.2d 187,191 n.7 (2d Cir. 1975), by which immigration authorities decide not to initiate, or decide to halt, removal proceedings"for humanitarian reasons or simply for.,.convenience," Reno v. Am.-Arab AntiDiscrimination Comm.,525 U.S.471,484(1999)("AAADC"). Immigration authorities have used deferred action and similar policies on numerous occasions since at least the early 1960s. Arpaio.797 F.3d at 16(citing OLC Op.at 7-8,12-13). Although deferred action was initially "developed without express statutory authorization," AAADC,525 U.S.at484(quoting 6 C. Gordon et al.. Immigration Law and Procedure § 72.03(2)(h)(1998)),it has since been referenced in the Immigration and Nationality Act("INA")and in DHS regulations,^8 U.S.C. § 1154(a)(l)(D)(i)(ll),(IV)(making certain individuals "eligible for deferred action and work authorization");8 C.F.R.§ 274a.l2(c)(14)(authorizing certain recipients ofdeferred action to apply for work authorization).
2. DACA and DAPA
In 2012,the Obama Administration created the DACA program by issuing a memorandum stating that DHS would consider according deferred action to certain undocumented immigrants who entered the United States as children. (Mem.from Janet Napolitano,Sec'y ofDHS,to David V.Aguilar,Acting Comm'r,CBP,et al., Exercising

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 4 of 48 PageID #: 3798
Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15,2012)(the"2012 DACA Memo")(AR 1).) The 2012 DACA Memo directed CBP, USCIS,and ICE to consider exercising prosecutorial discretion with respect to individuals without lawful immigration status who(1)were under the age ofsixteen when they entered the United States;(2)had been continuously present in the United States for at least the five years leading up to June 15,2012;(3)were currently in school,had graduated from high school or obtained GEDs,or were honorably discharged veterans;(4)had not been convicted offelonies, significant misdemeanors,or multiple misdemeanors,and did not"otherwise pose[]a threat to national security or public safety"; and(5)were not above the age ofthirty. (Id.) Individuals who met these criteria, passed a background check,and were granted relief"on a case by case basis" were shielded from removal and eligible to apply for work authorization, subject to renewal every two years. (Id at 2-3.) The 2012 DACA Memo made clear, however,that it "confer[red] no substantive right, immigration status or pathway to citizenship," but only "set forth policy for the exercise ofdiscretion within the framework ofthe existing law." (Id at 3.) Following the issuance ofthe 2012 DACA Memo,approximately 800,000 individuals have been granted deferred action and work authorization under the program. (Second Am.Compl. ("SAC")(Dkt.60)^73; USCIS,Number ofForm 1-821D,Consideration ofDeferred Action for Childhood Arrivals,by Fiscal Year, Quarter,Intake, Biometrics and Case Status,Fiscal Year 2012-2017(June 30,2017)(Am.Compl.("State Pis. Am.Compl."),Ex. 1(No. 17-CV-5228, Dkt. 55-1)).)
In 2014,the Obama Administration announced a new deferred action program for the parents ofU.S. citizens and lawful permanent residents, Deferred Action for Parents of Americans and Lawful Permanent Residents("DAPA").(Mem.from Jeh Charles Johnson,

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 5 of 48 PageID #: 3799
Sec'y ofDHS,to Leon Rodriguez,Dir., USCIS.,et al. Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents ofU.S. Citizens or Permanent Residents(Nov.20,2014)(the "2014 DAPA Memo")(AR 37).) The 2014 DAPA Memo also expanded the DACA program by (1)permitting individuals bom before June 15, 1981,to apply for deferred action;(2)extending the term ofthe benefits obtained under the DACA program from two to three years; and (3)adjusting the date-of-entry requirement so that individuals who entered the United States before January 1,2010,could obtain deferred action and work authorization. (Id at 3-4.) The court refers to these changes to the DACA program as the"DACA Expansion."
Following the issuance ofthe 2014 DAPA Memo,twenty-six states,led by Texas,filed suit in the U.S. District Court for the Southem District ofTexas,claiming that the DAPA program violated the Administrative Procedure Act("APA"),5 U.S.C.§ 550 et sea.,and the Take Care Clause ofthe U.S. Constitution,U.S. Const, art. II,§ 3. S^Texas v. United States. 86 F.Supp.3d 591,598(S.D.Tex.2015). On Febmary 16,2015,the district court concluded that those states had standing to sue and were likely to succeed on the merits oftheir procedural
APA claim that the 2014 DAPA Memo was invalid because it constituted a "substantive mle,"
not a"general statement ofpolicy," and thus should have been promulgated through notice-andcomment mlemaking. Id at 671-72. The court issued a nationwide injunction against the implementation ofthe DAPA program,id at 677-78,and the DACA Expansion,id at678 n.l11. The Fifth Circuit affirmed that decision,finding that the plaintiffstates were likely to succeed both on their claim that the 2014 DAPA Memo should have been made through notice-andcomment procedures and on their claim that the memo was substantively Contrary to the INA. Texas v. United States. 809 F.3d 134, 178,186(5th Cir. 2015)(as revised). The Fifth Circuit

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 6 of 48 PageID #: 3800
declined to reach the plaintiffstates' Take Care Clause claim. Id at 146 n.3. The decision was affirmed by an equally divided Supreme Court. 136 S. Ct. 2271 (Mem.).
3. PAPA Rescission
The Executive Branch's immigration-enforcement priorities shifted with the election of President Donald Trump. Shortly after his Inauguration,President Trump issued an executive order that cast doubt on the exemption of"classes or categories ofremovable aliens from potential enforcement." Exec. Order 13,768,Enhancing Public Safety in the Interior ofthe United States,82 Fed. Reg.8799(Jan.25,2017). The following month,then-Secretary ofDHS John Kelly implemented that order by issuing a memorandum rescinding "all existing conflicting directives, memoranda,or field guidance regarding enforcement ofour immigration laws and priorities for removal," except for the DACA and PAPA programs, which he left in place. (Mem.from John Kelly, Sec'y,PHS,to Kevin McAleenan,Acting Comm'r,CBP,et al.. Enforcement ofthe Immigration Laws to Serve the National Interest at 2(Feb.20,2017)(AR 230).) Four months later. Secretary Kelly issued another memorandum, which rescinded the PAPA program and the PACA Expansion based on "the preliminary injunction in this matter, the ongoing litigation, the fact that PAPA never took effect, and our new immigration enforcement priorities." (Mem.from John F. Kelly, Sec'y,PHS,to Kevin K.McAleenan, Acting Comm'r,CBP,et al.. Rescission ofNovember 20,2014,Memorandum Providing for Deferred Action for Parents ofAmericans and Lawful Permanent Residents("PAPA")at 3(June 15,2017)(AR 235).) That memorandum did not, however,rescind the original PACA program or revoke the three-year-long deferred action and work authorization issued between the announcement ofthe PACA Expansion and the Southern District ofTexas's issuance ofa preliminary injunction against that program. (Id. at 2& n.3).

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 7 of 48 PageID #: 3801
4. DACA Rescission
Following the rescission ofthe 2014 DAPA Memo,Texas Attorney General Ken Paxton
wrote on behalfofeleven states to Attorney General JeffSessions to demand that the"Executive
Branch"rescind the 2012 DACA Memo. (Ltr.from Ken Paxton,Att'y Gen.ofTexas,to Hon.
JeffSessions, Att'y Gen.ofthe U.S.(June 29,2017)at 2(AR 239).) Paxton warned that,ifDHS
did not act to end the DACA program,the plaintiffstates would amend their complaint in Texas
V. United States to challenge the DACA program and the remaining work permits issued under
the DACA Expansion. (Id at 2.)
Thereafter, Attorney General Sessions wrote to Acting DHS Secretary Elaine Duke to
"advise that[DHS]should rescind"the 2012 DACA Memo.^ (Letter from Jefferson B.Sessions,
III, Att'y Gen.ofthe U.S.,to Elaine C.Duke,Acting Sec'y,DHS(the "Sessions Letter")(AR
251).) The Attorney General opined that DACA was unconstitutional and that the Texas
plaintiffs would likely prevail in their anticipated challenge to the program:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date,after Congress'repeated rejection ofproposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise ofauthority by the Executive Branch. The
related Deferred Action for Parents of Americans and Lawful
Permanent Residents(DAPA)policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. Then-Secretary of Homeland Security John Kelly rescinded the DAPA policy in June. Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA,it is likely that potentially imminent litigation would yield similar results with respect to DACA. (Id.(citation omitted).)
While the letter is not dated,the PDF ofthe AR dates the letter September 4,2017. (See also Defs. Mem.at 9.)

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 8 of 48 PageID #: 3802
On September 5,2017,Defendants rescinded the DACA program."^ The Attomey
General announced the decision at a press conference, and Acting Secretary Duke implemented
the decision by issuing a memorandum (the"DACA Rescission Memo")to her subordinates.
(DOJ,Press Release,Attomey General Sessions Delivers Remarks on DACA(Sept. 5,2017),
https://www.justice.gov/opa/speech/attomey-general-sessions-delivers-remarks-daca; Mem.
from Elaine C.Duke,Acting Sec'y,DHS,to James W.McCament,Acting Dir.,USCIS,et al..
Rescission ofthe June 15,2012 Memorandum Entitled "Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Children"(Sept.5,2017)(AR 252).)
Duke pointed to the mlings ofthe Fifth Circuit and the Supreme Court in the Texas litigation, as
well as to the Attomey General's"legal determination"that DACA was"'an open-ended
circumvention ofimmigration laws'"and'"an xmconstitutional exercise ofauthority'":
Taking into consideration the Supreme Court's and the Fifth Circuit's mlingsinthe ongoing litigation,and the September4,2017 letter from the Attomey General,it is clear that the June 15,2012[,] DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15,2012 memorandum.
(Id. at 3-4(quoting Sessions Letter).)
Rather than terminating the DACA program outright,the DACA Rescission Memo
provided for a phased"wind down"ofthe program. First,DHS would consider initial
Defendants maintain that, as a legal matter, Acting Secretary Duke is solely responsible for the decision to rescind the DACA program. (Defs. Oct. 10,2017,Reply in Supp.ofMot.to Vacate(Dkt.80)at 3-4.) As the court has noted, however. Defendants previously represented to Ae court that the Attomey General and Acting Secretary Dukejointly decided to end the DACA program. (Tr.ofSept. 14,2017,Hr'g(Docket Number Pending)13:1714:06,24:21-24,26:1-6; Oct. 17,2017,Mem.& Order(Dkt.86)at 9-10.) Defendants had not then,and still have not, presented this court with any reason why it should disregard their earlier representations as to who decided to end the DACA program. (See Oct. 17,2017, Mem.& Order at 10;Oct. 19,2017,Mem.& Order at 10-11.) For purposes ofthis motion, however,nothing turns on the question ofwhether Acting Secretary Duke acted alone or with the Attomey General and the President when terminating the DACA program,so the court simply refers to the actions of"Defendants" in this regard.

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 9 of 48 PageID #: 3803
applications for deferred action and work authorization that it had received as ofSeptember 5, 2017.(DACA Rescission Memo at 4.) Second,DHS would "adjudicate—on an individual,case by case basis" requests for renewal ofdeferred action and work authorization"from current beneficiaries whose benefits will expire between[September 5,2017,]and March 5,2018 that have been accepted by[DHS]as ofOctober 5,2017." (Id) DHS would not consider other applications for deferred action or work authorization under the DACA program. (Id.) Existing grants ofdeferred action and work authorization would remain in effect"for the remaining duration oftheir validity periods,"though DHS would retain the authority to terminate or deny deferred action when it deemed appropriate. (Id) Under the DACA Rescission Memo,the benefits granted as part ofthe DACA program will therefore expire gradually over the next two
years.
B. Procedural Background
1. Prior to the DACA Rescission
The first ofthe above-captioned cases, Batalla Vidal v. Duke.No. 16-CV-4756 (E.D.N.Y.), predates the Trump Administration's decision to rescind the DACA program. In that case. Plaintiff Martin Batalla Vidal initially challenged DHS's compliance with the nationwide injunction issued by the Southern District ofTexas in Texas v. United States. Batalla Vidal applied for deferred action and work authorization in November 2014 and,in February 2015, was notified that he had received deferred action and work authorization for the next three years under the terms ofthe DACA Expansion. (Compl.(Dkt. 1)H 32.) On May 14,2015, however,DHS revoked his three-year work authorization,citing the Texas injunction,and replaced it with a two-year permit. (Id tH 34-36.) Batalla Vidal challenged that decision, contending that the Texas plaintiffs lacked standing to seek,and the Southern District ofTexas lackedjurisdiction to issue,a nationwide injunction. (Id^43-47.) Batalla Vidal subsequently
9

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amended his complaint to add the nonprofit organization MRNY as a plaintiffand name thenDirector ofUSCIS Leon Rodriguez as a defendant. (Am.Compl.(Dkt.29).) In November 2016,the Batalla Vidal Plaintiffs moved with Defendants' consent to stay briefing in the case "[d]ue to uncertainty regarding the future ofthe[DACA]program." (Pis. Nov.21,2016,Mot.to Stay(Dkt.35); Apr.4,2017,Joint Mot.to Stay(Dkt.40).)
2. Following the DACA Rescission
Following Defendants' announcement ofthe decision to rescind the DACA program. Plaintiffs brought these actions challenging that decision and certain other actions that Defendants have taken relating to that decision. On September 6,2017,fifteen states and the
District ofColumbia^ filed suit challenging both the rescission ofthe DACA program and DHS's alleged changes in its policy regarding the use ofDACA applicants' information for immigration-enforcement purposes. (State Pis. Compl.(No. 17-CV-5228,Dkt. 1) 269-301.)
The State Plaintiffs asserted claims under the Due Process Clause ofthe Fifth Amendment to the
U.S. Constitution,the APA,and the Regulatory Flexibility Act,5 U.S.C.§§ 601-12(the"RFA"). (Id.) Two weeks later, the Batalla Vidal Plaintiffs again amended their complaint to assert certain claims similar to those brought by the State Plaintiffs, as well as a claim that Defendants violated the Due Process Clause by failing to notify DACA recipients that they needed to renew their deferred action and work authorization by October 5,2017. (SAC 160-66.) Finally,the State Plaintiffs amended their complaint to add claims(1)challenging the notice provided to DACA recipients ofthe rescission ofthe DACA program;and(2)further challenging the change
'The State Plaintiffs were initially comprised ofthe States ofNorth Carolina, Hawaii,New York, Washington, Iowa,Oregon,Rhode Island, Vermont,Illinois, Connecticut,New Mexico,and Delaware;the Commonwealths of Massachusetts,Pennsylvania,and Virginia; and the District ofColumbia. (State Pis. Compl.(No. 17-CV-5228,Dkt. 1).) Colorado has sincejoined the case. (State Pis. Am.Compl.(No. 17-CV-5228,Dkt.54).)
10

Case 1:17-cv-05228-NGG-JO Document 85 Filed 11/09/17 Page 11 of 48 PageID #: 3805
in DHS's information-use policy. (State Pis. Am.Compl.(No.17-CV-5228,Dkt.54) 246-52, 274-80.) Together,Plaintiffs now assert the following claims:
Equal Protection. Both sets ofPlaintiffs allege that the decision to rescind the DACA program violated the equal-protection principles incorporated in the Due Process Clause ofthe Fifth Amendment to the U.S. Constitution,^Boiling v. Shame,347 U.S.497,498-500(1954), because that decision was motivated by improper considerations. (SAC 167-70; State Pis. Am.Compl.fl 233-39.) The State Plaintiffs allege that the DACA Rescission Memo"target[s] individuals for discriminatory treatment, without lawfuljustification" and that it was"motivated, at least in part, by a discriminatory motive and/or a desire to harm a particular group." (State Pis. Am.Compl. 235-36.) The Batalla Vidal Plaintiffs allege that President Trump,Attorney General Sessions, and Acting Secretary Duke violated the Due Process Clause in deciding to rescind the DACA program because that decision "targets Latinos and,in particular, Mexicans, and will have a disparate impact on these groups," and "was substantially motivated by animus toward Latinos and,in particular, Mexicans."(SAC 169-70.)
Due Process—^Individualized Notice. Both sets ofPlaintiffs also contend that
Defendants violated the Fifth Amendment's Due Process Clause by failing to provide DACA recipients with adequate notice ofthe decision to rescind the DACA program. (SAC 160-66; State Pis. Am.Compl. 274-80.) In particular,the Batalla Vidal Plaintiffs allege that,prior to the DACA Rescission Memo,DHS advised DACA recipients to submit applications to renew their deferred action and work authorization "as soon as possible" and,in particular, 120-150 days before expiration,to ensure that those benefits did not expire before DHS could process the renewal applications. (SAC 1164.) Following the issuance ofthe DACA Rescission Memo, Defendants did not send individual revised notices to alert DACA recipients who were eligible to
11

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renew their deferred action and work authorization (i.e., individuals whose benefits expired before March 5,2018)that they only had until October 5,2017,to do so. (Id H 165.) The State Plaintiffs allege that Defendants violated the Due Process Clause ofthe Fifth Amendment by failing to provide DACA recipients with "adequate notice" about"the procedures and timeline for renewing their DACA status,""the general termination ofthe DACA program after March 5, 2018,"or"their inability to apply for renewal oftheir DACA status after March 5,2018." (State Pis. Am.Compl.tH 276-77.)
Due Process—^Information-Use Policy. Both sets ofPlaintiffs assert that DHS
impermissibly backtracked on its representations that it would use information gleaned fi-om DACA applications for immigration-enforcement purposes only in limited circumstances. (SAC UK 151,153; State Pis. Am.Compl.KK 240-45.) While,as discussed below,the Batalla Vidal Plaintiffs fold this challenge into their substantive APA claim,the State Plaintiffs challenge this decision as"fundamentally unfair,"in violation ofthe Due Process Clause ofthe Fifth Amendment. (State Pis. Am.Compl.K 243.)
Equitable Estoppel—^Information-Use Policy. The State Plaintiffs argue that the doctrine ofequitable estoppel bars DHS from changing its policy regarding the use ofDACA
applicants' information. (Id KK 246-52.) The State Plaintiffs allege that Defendants, having "made repeated affirmative statements about the protections that would be given to the personal information provided by DACA applicants" and "placed affirmative restrictions on the use of such information for purposes ofimmigration enforcement"(id K 248),are now estopped from using that information for immigration-enforcement purposes(id KK 250-51). The court refers to this claim,together with Plaintiffs' constitutional information-use policy claims,as Plaintiffs'
"information-use policy claims."
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APA—^Arbitrary and Capricious. Both sets ofPlaintiffs challenge the decision to end the DACA program under the APA as substantively "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). (SAC 149-54; State Pis. Am.Compl. 253-56.) The Batalla Vidal Plaintiffs contend that Attorney General Sessions and Acting Secretary Duke acted arbitrarily and capriciously by deciding to end the DACA program and by changing DHS's policy regarding the confidentiality ofDACA applicants'information because those decisions"(a)lack a rational explanation for the change in policy on which persons had reasonably relied,(b)are based on a legal error,and(c)failed to consider all relevant factors." (SAC ^ 151.) The State Plaintiffs argue that the implementation ofthe DACA Rescission Memo and termination ofthe DACA program "with minimal formal guidance"constituted arbitrary,capricious,and unlawful action in violation ofSection 706 ofthe APA. (State Pis. Am.Compl.^254-55.) The court refers to these claims together as Plaintiffs'
"substantive APA claims." APA—^Notice and Comment. Both sets ofPlaintiffs also contend that DHS's
implementation ofthe DACA Rescission Memo constitutes a substantive or legislative "rule"for purposes ofthe APA,and thus needed to be made through notice-and-comment rulemaking procedures. See 5 U.S.C.§ 553. (SAC 144-48; State Pis. Am.Compl. 257-65.) In particular,the Batalla Vidal Plaintiffs argue that the DACA Rescission Memo is a substantive rule,"as it binds DHS to categorically deny applications for deferred action to individuals who fit the original DACA eligibility criteria." (SACf 146.) The State Plaintiffs,on the other hand, argue that the promulgation and implementation ofthe DACA Rescission Memo "categorically and definitively changed the substantive criteria by which individual DACA grantees work,live, attend school, obtain credit, and travel in the United States," impacting those beneficiaries'
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"substantive rights." (State Pis. Am.Compl.H 261.) The court refers to these claims together as

Plaintiffs' "procedural APA claims."

RFA. Finally, both sets ofPlaintiffs assert claims under the RPA. Plaintiffs claim that

Defendants violated the RFA by issuing the DACA Rescission Memo without conducting an

analysis ofthe rescission's impact on "small entities." (SAC 155-59; State Pis. Am.Compl.

266-73.) MRNY alleges that it is a "small organization" that is directly affected by the

DACA Rescission Memo and thus has a cause ofaction under the RFA.(SAC T| 156.) The State

Plaintiffs assert that they and their"small governmentaljurisdictions, nonprofits,and businesses,

and their residents" are harmed by Defendants' failure to conduct such a regulatory impact

analysis. (State Pis. Am.Compl. 273.) The court refers to these claims as Plaintiffs"RFA

claims."

The following chart summarizes these claims:

a. Table: Claims Presented

Challenged Action
Termination ofthe DACA program

Cause of Action Due Process Clause
APA (substantive) APA (procedural)
RFA

Notification ofDACA
recipients of(1)the
termination ofthe DACA
program and(2)revised
renewal deadlines
Changes to DHS policy regarding the use of DACA applicants'
information for
immigration-enforcement
purposes

Due Process Clause
Due Process Clause
APA (substantive) Equitable estoppel

Batalla Vidal v. Duke® Fifth claim,Iffl 167-70 Second claim, 149-54 First claim, 144-48 Third claim, 155-59 (MRNY only) Fourth claim, 160-66 (notice ofrevised renewal
deadlines only)

New York v. Trump' First claim, 233-39 Fourth claim,tH 253-56 Fifth claim,til 257-65 Sixth claim, 266-73
Seventh claim, 274-80

Second claim,
153-54

149-51,

Second claim, 240-45 Third claim, 246-52

^ All citations refer to the SAC.
^ All citations refer to the State Plaintiffs' Amended Complaint.
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3. District Court Proceedings
The parties have vigorously litigated these actions before this court. Although the full procedural history can be discerned from the relevant dockets,the court provides the following limited summary ofthe proceedings to date.
Consistent with the regular practice ofcourts in this district in civil cases,discovery matters were referred to the magistrate judge assigned to the case, Magistrate Judge James Orenstein,to decide in the first instance. 28 U.S.C.§ 636(b)(1)(A); Local Civ. R.72.2. After soliciting the views ofthe parties as to whether discovery should proceed(Sept. 15,2017, Order(Dkt.58)),Judge Orenstein authorized discovery to proceed over Defendants' objections (Tr.ofSept.26,2017,Hr'g(Docket Number Pending)26:21-27:22). Judge Orenstein then issued a case management and scheduling order(the "Case Management Order"), which confirmed the previously announced discovery schedule. (Sept.27,2017,Order(Dkt.67).) Of particular relevance to these proceedings,the Case Management and Scheduling Order required Defendants to produce,by October 6,2017,an administrative record as well as a privilege log describing"every document considered within any component ofthe executive branch as part of the process ofdetermining the policy and actions at issue in these actions that are not being produced and as to which the defendants would assert a claim ofprivilege,regardless ofwhether the defendants deem such...record to be part ofthe official administrative record." (Id. UK 11(c) (the "Privilege Log Requirement").)
Defendants promptly challenged the Case Management Order. On September 29,2017, Defendants filed a motion before this court"seek[ing]relieffrom"the Privilege Log Requirement, which,they argued,"raise[d]substantial separation-of-powers concems,"to the extent it could be read as applying to White House communications,and required Defendants to assert privilege with respect to documents that were not properly included in the administrative
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record. (Sept.29,2017,Defs. Mot.to Vacate(Dkt.69)("Defs. Sept.29 Mot.")at 2-5.) Defendants also argued that it would be impossible to comply with the Privilege Log Requirement within the deadline set by the Case Management Order(id at 5),and that the court should consider threshold arguments for dismissal ofthese cases before allowing discovery to proceed(id at 5-6). Defendants did not specifically argue that discovery was inappropriate, although they reincorporated arguments against discovery by reference to a letter they had filed with Judge Orenstein a week earlier and briefly outlined three "threshold dismissal arguments." (Id. at 1,5-6;see also Defs. Sept.22,2017,Ltr. Regarding Discovery(Dkt.65).)
The court issued two orders in response to Defendants' objections. The first order extended the deadline for complying with the Privilege Log Requirement by two weeks,so that the court could consider whether the as-yet-unproduced administrative record was adequate and whether Defendants retained the presumption that they had correctly compiled the record. (Oct. 3,2017,Order(Dkt.72).) Defendants subsequently asked the court to narrow the Privilege Log Requirement or vacate it entirely. (Defs. Oct. 10,2017,Reply in Supp.ofMot.to Vacate (Dkt.80)at 2.) Atthe same time.Defendants also asked the court to stay discovery pending resolution ofDefendants' anticipated dispositive motions, which Defendants averred would "raise arguments that are strong,purely legal, and completely dispositive ofPlaintiffs' claims." (Id. at 4.) Defendants did not, however,specifically identify what those arguments were(instead cross-referencing their September 29 Motion and string-citing to authority discussed below)or address any ofthe factors that courts in this district consider in analyzing whether a party has demonstrated "good cause" to stay discovery. Fed. R. Civ. P. 26(c); Richards v. N. Shore Long Island Jewish Health Svs..No. lO-CV-4544(LDW)(ETB),2011 WL 4407518,at *1 (E.D.N.Y. Sept. 21,2011).
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The court then issued its second order, which narrowed the scope ofthe Privilege Log Requirement but denied Defendants' request to stay discovery. (Oct. 17,2017 Mem.& Order (the"Oct. 17 M&O")(Dkt. 86).) With respect to Defendants' arguments that discovery outside the administrative record was inappropriate,the court noted that Defendants had not identified any reason why its review ofPlaintiffs' information-use policy and notice claims should be limited to an administrative record that only purported to document the decision to rescind the DACA program. (Id at 3-5.) The court declined to vacate the Privilege Log Requirement before Judge Orenstein decided whether the administrative record was complete. (Oct. 17 M&O at 5-6.) The court agreed,however,that the Privilege Log Requirement should be narrowed to exclude materials other than DHS and DOJ communications. (Id at 7-9.) Finally,the court declined to exempt DOJ from the Privilege Log Requirement, as Defendants had failed to explain their apparent reversal in position regarding whether Attorney General Sessions was responsible for the decision to rescind the DACA program. (Id at 9-10.)
The following evening. Defendants renewed their motion to stay discovery, this time threatening to seek mandamus review ifthe court did not address their objections by 2 p.m.the following day. (Defs. Oct. 18,2017,Mot.to Stay(Dkt. 87).) The court ruled expeditiously on these requests. On October 19,2017,Judge Orenstein issued an order granting Plaintiffs' motion to compel Defendants to produce a complete administrative record. (Oct. 19,2017,Order Granting Motion to Produce(Dkt. 89).) The same day,this court issued another memorandum and order, granting in part and denying in part Defendants' motion for a stay. (Oct. 19,2017, Mem.& Order(the"Oct. 19 M&O")at 9-11.) In light ofDefendants'ongoing(and,this time, factually substantiated)concerns about the burdens ofcomplying with the Privilege Log Requirement,the court agreed to stay the Privilege Log Requirement except with respect to
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documents directly considered by the Attorney General, Acting Secretary Duke,and their subordinates who directly advised them on the decision to end the DACA program. (Id.) The court concluded, however,that Defendants had not demonstrated "good cause" warranting a stay ofdiscovery(id at 4-9),nor that they were entitled to a stay pending mandamus review(id at 11-12).
On October 20,2017,the U.S. Court ofAppeals for the Second Circuit issued an emergency stay ofdiscovery and record supplementation in proceedings before this court, contingent on Defendants' filing a full petition for a writ of mandamus by 3 p.m. on October 23, 2017. (Oct.20,2017,USCA Order(Dkt.91).) Four days later,the Second Circuit issued a second order, which extended the stay pending determination ofthe mandamus petition but deferred ruling on that petition "until such time as the district court has considered and decided expeditiously issues ofjurisdiction andjusticiability." (Oct.24,2017,USCA Order(Dkt.99).) In light ofthat order,the court directed the parties to file supplemental briefs as to whether the court"lacksjurisdiction to consider the claims raised in [these cases] or why such claims are otherwise non-justiciable." (Oct.24,2017,Order.) In response to that order. Defendants filed the motion to dismiss currently before the court. That motion not only argues that the court lacks jurisdiction to hear these cases, but also contends that Plaintiffs fail to state a claim upon which reliefshould be granted and that the court should not grant a nationwide injunction,should it decide that Plaintiffs are entitled to relief.^
® Prior to filing their Motion to Dismiss,Defendants requested and received leave to file an overlong brief"in order ...to fully present their dismissal arguments in these cases." (Defs. Oct.25,2017,Appl.for Leave to File Excess Pages(DlU.94); Oct.26,2017,Order Granting Defendants' Application for Leave to File Excess Pages.) That application did not expressly indicate that Defendants intended to present arguments for dismissal for failure to state a claim under Rule 12(b)(6), as opposed tojust the "jurisdiction andjusticiability" arguments specifically referenced by the Second Circuit's and this court's October 24,2017,orders. Defendants would not have required these excess pages had they confined their briefing to those issues. (See Oct.27,2017,Order(Dkt.98).)
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II. LEGAL STANDARDS
Pursuant to the Second Circuit's direction,the court addresses only "issues ofjurisdiction andjusticiability" at this point in the proceedings. (Oct.24,2017,USCA Order; Oct.27,2017, Order(Dkt.98).) Accordingly,the court will consider only those portions ofDefendants' motion to dismiss that challenge the court's subject-matterjurisdiction pursuant to Rule 12(b)(1)
ofthe Federal Rules ofCivil Procedure.
Under Rule 12(b)(1),the court must dismiss a claim "for lack ofsubject matter jurisdiction... when the...court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States. 201 F.3d 110,113(2d Cir. 2000). When considering a Rule 12(b)(1) motion,the court"musttake all uncontroverted facts in the complaint...as true,and draw all reasonable inferences in favor ofthe party assertingjurisdiction." Tandon v. Captain's Cove Marina ofBridgeport.Inc..752 F.3d 239,243(2d Cir. 2014). Nevertheless,"the party asserting subject matterjurisdiction'has the burden ofproving by a preponderance ofthe evidence that it exists.'" Id (quoting Makarova.201 F.3d at 113). "[Wjherejurisdictional facts are placed in dispute,the court has the power and obligation to decide issues offact by reference to evidence outside the pleadings,such as affidavits." Id (quoting APWU v. Potter.343 F.3d 619,627 (2d Cir. 2003)).
III. DISCUSSION
Defendants raise four challenges to the court's authority to hear the above-captioned cases. First, Defendants argue,these cases are notjusticiable under the APA because the decision to rescind the DACA program was"committed to agency discretion by law." 5 U.S.C.§ 701(a)(2). (Defs. Mem.at 12-17.) Second,Defendants contend that the decision to terminate the DACA program constitutes a denial ofdeferred action,judicial review ofwhich is barred by Section 1252(g)ofthe INA.^8 U.S.C.§ 1252(g). (Id at 17-19.) Third,they
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maintain,the Batalla Vidal Plaintiffs lack standing to bring certain claims Qd at 28-29,34-35, 37),and the State Plaintiffs lack Article III standing to bring any claims(id at 19-21). Fourth, Defendants assert, the State Plaintiffs and MRNY cannot bring claims under the APA because they assert interests that fall outside the"zone ofinterests" protected by the INA. (Id at 19-20.) The court addresses each argument in turn.
A. Committed to Agency Discretion by Law Defendants first argue that these cases are non-justiciable because the decision to end the DAGA program was committed to DHS's exclusive discretion by law. The court disagrees. Certain agency decisions,including decisions not to institute enforcement action,are presumptively immune from judicial review under the APA because they are "committed to agency discretion by law." 5 U.S.C.§ 701(a)(2);Heckler v. Chanev,470 U.S. 821 (1985). But the rescission ofthe DACA program was not such a decision,nor have Defendants explained why Section 701(a)(2)precludes review ofPlaintiffs' constitutional claims or other claims
challenging actions other than the decision to rescind the DACA program.^
1. Statutorv and Equitable Claims Section 701(a)(2)ofthe APA does not precludejudicial review ofPlaintiffs' statutory and equitable claims. "Under the APA,a party aggrieved by agency action is generally 'entitled tojudicial review thereof.'" Westchester v. U.S. Dep't ofHous.and Urban Dev..778 F.3d 412, 418(2d Cir.2015)(quoting 5 U.S.C.§ 702). "There is a strong presumption favoringjudicial review ofadministrative action." Salazar v. King.822 F.3d 61,75(2d Cir. 2016). Judicial review is not available, however,"to the extent that...statutes precludejudicial review,"
'It is not clear whether Section 701(a)(2)limits the court'sjurisdiction or instead forms an "essential element" ofa claim for reliefunder the APA. Sharkev v. Quarantillo. 541 F.3d 75,87-88(2d Cir.2008);accord Convers v. Rossides.558 F.3d 137, 143 n.8(2d Cir.2009). Nothing turns on this distinction here, however,because Section 701(a)(2)does not shield Defendants' actions from Judicial review.
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5 U.S.C.§ 701(a)(1),or"agency action is committed to agency discretion by law,"§ 701(a)(2). The latter is"a very narrow exception"to the presumption ofreviewability ofagency action under the APA,and it applies"in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Pres. Overton Park. Inc. v. Volne.401 U.S.402,410(1971)(quoting S.Rep.No.752,79th Cong., 1st Sess.,26(1945)), abrogated on other grounds bv Califano v. Sanders,430 U.S.99(1977);see also Chanev.470 U.S. at 830(agency action is unreviewable "ifa statute is drawn so that a court would have no meaningful standard against which tojudge the agency's exercise ofdiscretion"). "To determine whether there is'law to apply'that provides 'judicially manageable standards'forjudging an agency's exercise ofdiscretion,the courts look to the statutory text,the agency's regulations,and informal agency guidance that govern the agency's challenged action." Salazar. 822 F.3d at 76 (quoting Chanev.470 U.S.at 830). These enactments supply"law to apply" because they may
govern the agency's exercise ofits own discretion. See id. at 76-77(citing INS v. Yueh-Shaoi Yang.519 U.S.26,32(1996));Sec'v ofLabor v. Twentvmile Coal Co..456 F.3d 151,158-59
(D.C. Cir. 2006). a. "Law to Apply"
Here,there is"law to apply," permitting meaningfuljudicial review ofPlaintiffs' statutory claims. Plaintiffs assert statutory claims under the APA and RFA. With respect to Plaintiffs' procedural APA and RFA claims,the relevant"law to apply"is found in the APA and RFA themselves, both of which specify procedures that agencies must follow when engaging in "substantive"or"legislative"rulemaking. See 5 U.S.C.§§ 553,604. The process by which an agency makes a rule may be reviewed for compliance with applicable procedural requirements regardless of whether the substance ofthe rule is itselfreviewable. See Lincoln v. Vigil.508
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U.S. 182,195-98 09931: Am.Med. Ass'n v. Reno.57 F.3d 1129,1134(D.C. Cir. 1995): N.Y.C. Employees' Ret. Svs. v. SEC.45 F.3d 7,11 (2d Cir. 1995).
There is also"law to apply" permitting meaningfuljudicial review ofPlaintiffs' substantive APA claims. In order to satisfy Section 706(2)(a), Plaintiffs must identify some source oflaw,other than the APA's"arbitrary and capricious" standard,against which the court can review their claims:"Ifagency actions could be challenged as 'arbitrary and capricious,' without reference to any other standard,then § 701(a)(2)'s limitation on APA review would amount to no limitation at all, and nothing would ever be 'committed to agency discretion by law.'" Lunnev v. United States,319 F.3d 550,559 n.5(2d Cir. 2003). The court agrees that Plaintiffs have identified "law to apply" to these claims. In deciding to rescind the DACA
program,Defendants expressly and exclusively relied on a legal determination that the program
was unlawful and could not be sustained in court. (Sessions Letter, AR 251;DACA Rescission Memo,AR 253-55.) The court may review that rationale in light of,among other sources,the text ofthe INA and other statutes,the history ofthe use ofdeferred action by immigration
authorities,and the OLC Opinion.'® While Defendants attempt to recast the decision to rescind the DACA program as the product ofa discretionary "balancing ofthe costs and benefits of keeping the policy in place,on one hand, with the risk of'potentially imminent litigation'that
could throw DACA into immediate turmoil"(Defs. Mem.at 15),that argument is unsupported by the text ofthe Sessions Letter and the DACA Rescission Memo.
The State Plaintiffs also assert a claim for equitable estoppel. (State Pis. Am.Compl. 246-52.) With respect to the State Plaintiffs' equitable estoppel claim,the court assumes for the sake ofargumentthat the relevant"law to apply" may be found in DHS's past statements and practices regarding the use ofDACA applicants' information. See Salazar.822 F.3d at 76-77.(S^ State Pis. Am.Compl. 39-44.) The court need not decide this question, however,because,as discussed below,the State Plaintiffs lack standing to assert this claim. (See infra Section
III.C.2.b.)
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Defendants' argument that the decision to rescind the DACA program is unreviewable, notwithstanding the "substantive legal"rationale given for that decision(Defs. Mem.at 15),is unpersuasive. Defendants correctly note that unreviewable agency action does not become reviewable simply because "the agency gives a reviewable reason for otherwise unreviewable action." (Defs. Mem.at 13(quoting ICC v.Bhd.ofLocomotive Eng'rs,482 U.S.270,283 (1987)("BLE")).) See BLE,482 U.S.at 283("[A]common reason for failure to prosecute an alleged criminal violation is the prosecutor's belief...that the law will not sustain a conviction. That is surely an eminently 'reviewable' proposition,in the sense that courts are well qualified to consider the point; yet it is entirely clear that the refusal to prosecute cannot be the subject of judicial review."). That argument simply begs the question,however,ofwhether the decision to rescind DACA is actually unreviewable. While it may be true that a presumptively unreviewable decision does not become subject to judicial review simply because the decisionmaker expresses a "reviewable" rationale," see id., the decision to rescind the DACA program was not inherently such a decision, as the following section discusses in detail.
b. Prosecutorial Discretion
Nor does the decision to end the DACA program fall within a class ofdecisions traditionally regarded as presumptively immune fromjudicial review under Section 701(a)(2)of the APA. (Defs. Mem.at 12-14.) Defendants assert that the decision to rescind the DACA program constitutes"an exercise ofenforcement discretion"that is"entrusted to the agency alone"and immune from judicial review. (Id. at 15.) The court concludes,however,that the decision to eliminate the DACA program—a program by which certain undocumented immigrants could request immigration authorities to exercise prosecutorial discretion with respect to them—^was not itselfa presumptively unreviewable exercise ofenforcement
discretion. 23

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Defendants rely in particular on Chanev, which held that decisions n^ to take enforcement action were presumptively not subject to judicial review under the APA. In Chanev.the Court rejected an attempt by a group ofprisoners awaiting execution by lethal injunction to force the Food and Drug Administration to take enforcement action to prevent the use ofcertain drugs for capital punishment. Chanev.470 U.S. at 823-25,830-33. The Court held that a regulator's refusal to take enforcement action was presumptively unreviewable, because decisions not to take enforcement action typically "involve[]a complicated balancing of a number offactors which are peculiarly within [the agency's]expertise,"id at 831,and do not implicate the agency's exercise of"coercive power over an individual's liberty or property rights, and thus do[] not infnnge upon areas that courts often are called to protect," id. at 832.
The decision to rescind DACA is unlike the non-enforcement decision at issue in Chanev.
First, Plaintiffs do not challenge an agency's failure or refusal to prosecute or take enforcement actions with respect to certain violations oflaw. Instead,they challenge Defendants' affirmative decision to eliminate a program by which DHS exercised prosecutorial discretion with respect to a large number ofundocumented immigrants. The DACA Rescission Memo curtails(ifit does not eliminate outright)DHS's ability to exercise prosecutorial discretion with respect to individuals previously eligible to request deferred action. Although the DACA Rescission Memo notes that it does not limit DHS's"otherwise lawful enforcement or litigation prerogatives," it makes clear that DHS "[wjill reject all DACA initial requests and associated applications for Employment Authorization Documents filed after[September 5,2017]"and "[w]ill reject all DACA renewal requests and associated applications for Employment
Authorization Documents"inconsistent with the terms ofthe Memo. This affirmative decision
to constrain DHS's prosecutorial discretion cannot be analogized to an exercise ofprosecutorial
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discretion, which would be presumptively immune fromjudicial review. C£ Texas,809 F.3d at 165-69(creation ofthe DAPA program was reviewable because it was a"affirmative agency action," not an exercise ofenforcement discretion). Second,Plaintiffs do not challenge nonenforcement decisions, which do not subject individuals to the "coercive power"ofthe state. Chanev.470 U.S. at 831. To the contrary,the rescission ofthe DACA program subjects individuals who previously enjoyed some protection from removal to coercive state authority. Third,Defendants' decision to rescind the DACA program does not appear to have been motivated by a"complicated balancing ofa number offactors which are peculiarly within[the agency's] expertise." S^ id. Instead, Defendants stated that they were required to rescind the DACA program because it was unlawful, which suggests both that Defendants did not believe that they were exercising discretion when rescinding the program and that their reasons for doing so are within the competence ofthis court to review. (Sessions Letter; DACA Rescission Memo at 4.) The decision to rescind the DACA program is thus manifestly unlike the non-enforcement decision at issue in Chanev. While courts have also held that agency decisions to take(as opposed to refrain from taking)enforcement action are also unreviewable under the APA when there are nojudicially manageable standards for reviewing the agency's discretion in choosing to bring an enforcement action,^Speed Mining.Inc. v. Fed. Mine Safetv & Health Rev. Comm'n.528 F.3d 310,316-19(4th Cir.2008); Twentvmile Coal.456 F.3d at 155-59,those cases are inapposite because there is"law to apply"to review the decision to rescind DACA.
Finally, Defendants' arguments that Section 701(a)(2)precludesjudicial review of Plaintiffs' suits focus on the decision to rescind the DACA program. Defendants do not explain why the alleged decision to change DHS's policy regarding the use ofDACA applicants' information should be immune from judicial review. To the contrary,there is"law to apply" in
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reviewing that decision(namely,DHS's prior statements about the uses ofDACA applicants' information), and the court does not understand how the change in that policy can be analogized
to the sorts ofdecisions,such as enforcement and non-enforcement decisions,that courts have
recognized as presumptively exemptfromjudicial review. Accordingly,to the extent the Batalla Vidal Plaintiffs also challenge DHS's alleged change in information-use policy as part oftheir substantive APA claim,that claim is reviewable. (SAC Iffl 151,153-54.)
2. Constitutional Claims
Nor does Section 701(a)(2)precludejudicial review ofPlaintiffs' constitutional claims. It is well-established that"even where agency action is'committed to agency discretion by law,'
review is still available to determine ifthe Constitution has been violated." Padula v. Webster.
822 F.2d 97, 101(D.C. Cir. 19871:accord Inova Alexandria Hosp.v. Shalala,244 F.3d 342,347 (4th Cir.2001); Woodward v. United States.871 F.2d 1068, 1072-73(Fed.Cir. 1989).
In Webster v. Doe.486 U.S.592(1988),the Court rejected the Government's argument that Section 701(a)(2)barred a former CIA employee from bringing constitutional claims challenging his termination from the agency. Because the National Security Act of 1947 vested the CIA Director with authority over firing decisions,the decision to fire the plaintiffbecause of his sexual orientation had been "committed to agency discretion by law," and he could not challenge that decision under the APA. Id. at 594-95,599-601. The National Security Act did not expressly preclude review ofconstitutional claims,however,so the Court would not presume that such claims were unreviewable. Id at603-04(noting that the Court has held that"where Congress intends to precludejudicial review ofconstitutional claims its intent to do so must be clear," in order to "avoid the 'serious constitutional question' that would arise ifa federal statute were construed to deny anyjudicial forum for a colorable constitutional claim"(quoting Bowen V. Mich. Acad.ofFamilv Phvsicians,476 U.S.667,681 n.12(1986))). Similarly,Defendants
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identify no express indication that Congress intended to precludejudicial review ofthe actions at issue in these cases. While DHS undoubtedly exercises"wide discretion...in the enforcement ofthe immigration laws"(Defs.Mem.at 16),that is insufficient to preclude review ofPlaintiffs'
constitutional claims. 3. Deference to the Executive Branch on Immigration Matters Does Not Counsel a Different Result
Lastly,Defendants contend that the court should read Section 701(a)(2)broadly in light ofthe Executive Branch's wide discretion to enforce the immigration laws. (Id at 16-17.) The Supreme Court,however,has applied the "strong presumption in favor ofjudicial review of administrative action"in the immigration context. See INS v. St. Cvr.533 U.S.289,299(2001). Defendants'specific arguments for a broad reading ofSection 701(a)(2)likewise unavailing. While Defendants argue thatjudicial review ofthese cases is inappropriate because review could slow down the Executive Branch's removal ofundocumented immigrants from this country,8 U.S.C.§ 1252(g)already precludes individuals in removal proceedings from delaying those proceedings by claiming that they were improperly denied deferred action. S^ AAADC,525 U.S.at 485. In any event,those concerns do not apply to these cases,as the court discusses in Section III.B below. Defendants also argue thatjudicial review ofimmigration decisions is inappropriate becausejudicial review"may involve'not merely the disclosure ofnormal domestic law enforcement priorities and techniques,but often the disclosure offoreign-policy objectives' or other sensitive matters." (Defs. Mem.at 16(quoting AAADC.525 U.S. at 490).) Defendants' stated rationale for rescinding the DAGA program,however,turns wholly on questions ofU.S.constitutional and administrative law,not sensitive law-enforcement, intelligence,or foreign-policy issues. In any event,vague speculation thatjudicial review might somehow implicate foreign-policy concerns is insufficient to justify a presumption that
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immigration cases are not subject tojudicial review. Washington v. Trump.847 F.3d 1151, 1161 (9th Cir.2017)("[T]he Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration "), reconsid. en banc denied.853 F.3d 933(9th Cir. 2017),superseded bv 858 F.3d 1168(9th Cir. 2017). While the court is sensitive to the deference warranted to the Executive Branch in this sphere. Defendants' claims for deference cannot substitute for the"clear and convincing evidence"that Congress intended to restrictjudicial review ofadministrative action. Sharkev v. Ouarantillo.541 F.3d 75, 84(2d Cir.2008)(internal quotation marks and citation omitted).
B. INA Jurisdictional Bar
Nor does the INA divest the court ofjurisdiction to hear this case. That Act contains a provision,8 U.S.C.§ 1252(g),that limitsjudicial review ofcertain actions"by or behalfofany alien arising from"certain deportation proceedings. 8 U.S.C.§ 1252(g);^AAADC.525 U.S. at 472. As explained below,that provision has no bearing on these cases, which do not arise from one ofthe three specifically enumerated actions by immigration authorities that trigger application ofthe statute. Moreover,by its terms. Section 1252(g)does not apply to claims brought by MRNY or the State Plaintiffs.
1. Programmatic Challenges to DACA-Related Decisions
First,the court considers whether Section 1252(g)strips the court ofjurisdiction to hear Plaintiffs' challenges to the decision to rescind the DACA program. The court begins, as usual, with the text ofthe statute. In relevant part, Section 1252(g)provides as follows:
Except as provided in this section and notwithstanding any other provision oflaw (statutory or nonstatutory)...no court shall have jurisdiction to hear any cause or claim by or on behalfofany alien arising from the decision or action by the Attorney General to
commence proceedings,adjudicate cases,or execute removal orders against anv alien under this chapter.
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(emphasis added). As the Court has stated, this "provision applies only to three discrete actions that the Attorney General make take: her'decision or action'to'commence proceedings, adjudicate cases,or execute removal orders.'" AAADC.525 U.S. at 482. Accordingly,the court
must consider whether Plaintiffs' suits"arise from [a]decision or action by[DHS^^]to
commence proceedings, adjudicate cases, or execute removal orders against any alien." 8 U.S.C.
§ 1252(g). They do not. Defendants'termination ofthe DACA program does not, by itself,
"commence proceedings,adjudicate cases,or execute removal orders against any alien." Id. By rescinding the DACA program. Defendants eliminated a set of guidelines identifying a discrete class ofundocumented immigrants who were eligible to apply for deferred action. (See 2012
DACA Memo.) That decision, by itself, did not trigger any specific enforcement proceedings.^^
Nor do the individual Batalla Vidal Plaintiffs attack decisions by DHS to "commence
proceedings, adjudicate cases, or execute removal orders" against them or any other specific individuals. Each ofthose Plaintiffs has received deferred action(see SAC T|1[ 3-42),and the record does not suggest that any are currently in removal proceedings and seek to challenge the end ofthe DACA program as a means ofobstructing those proceedings. Instead,Plaintiffs bring broad,programmatic challenges to Defendants' decisions(1)to end the DACA program;(2)to provide limited notice ofthat decision to DACA recipients; and(3)to change DHS's
'' As part oftransferring many immigration-related responsibilities from the Attorney General to the Secretary of DHS,the Homeland Security Act of2002 provides that statutory references"to any department,commission,or agency or any officer or office the functions ofwhich are so transferred shall be deemed to refer to the Secretary[of DHS],other official, or component of[DHS]to which such function is so transferred." 6 U.S.C.§ 557;Shabai v.
Holder.718 F.3d48,51 n.3(2dCir.2013). Defendants have represented publicly that no action will be taken against DACA recipients prior to March 5,
2018. (See,e.g.. Donald J. Trump(@realDonaldTrump),Twitter.com(Sept.7,2017,6:42 a.m.), https://twitter.eom/realdonaldtrump/status/905788459301908480("For all ofthose(DACA)that are concerned about your status during the 6 month period, you have nothing to worry about - No action!").)
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information-use policy. None ofthose constitutes a"decision or action...to commence proceedings,adjudicate cases,or execute removal orders against any alien." 8 U.S.C.§ 1252(g); cf. Texas,809 F.3d at 164(creation ofDAPA reviewable because "decision to grant lawful presence to millions of[undocumented immigrants]on a class-wide basis" was not enumerated in the text ofSection 1252(g)). Accordingly,Section 1252(g)does not barjudicial review of challenges to those decisions.
This conclusion comports with both the plain meaning ofthe statute and with the Supreme Court's decision in AAADC. First, AAADC makes clear that Section 1252(g)only limitsjudicial review with respect to suits arising from certain enumerated decisions by immigration authorities. Writing for the Court,Justice Scalia specifically rejected the notion that Section 1252(g)was"a sort of'zipper' clause that says'nojudicial review in deportation cases unless this section providesjudicial review." 525 U.S.at 482. Instead,"[t]he provision applies only to [the]three discrete actions"referenced above. Id. While "[t]here are ofcourse many other decisions or actions that may be part ofthe deportation process,"the Court stated,"[i]t is implausible that the mention ofthree discrete events along the road to deportation was a shorthand way ofreferring to all claims arising from deportation proceedings." Id Defendants' argumentthat Section 1252(g)encompasses challenges to the decision to end the DACA program because "[t]he denial ofcontinued deferred action is a necessary step in commencing enforcement proceedings at some later date"(Defs. Mem.at 18),is thus at odds with AAADC.
Second,the reasoning ofAAADC does not support extending Section 1252(g)to encompass challenges to the decision to rescind DACA. In AAADC,the Court reasoned that Section 1252(g)must have been intended to limitjudicial review ofdenials ofdeferred action:
Section 1252(g) seems clearly designed to give some measure of protection to "no deferred action" decisions and similar
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discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases ofseparate rounds of judicial intervention outside the streamlined process that Congress has designed [(i.e..forjudicial review offinal orders ofremoval)]. 525 U.S.at 485. These limits were "entirely understandable"in order to prevent"the deconstruction,fragmentation,and hence prolongation ofremoval proceedings"that could result ifimmigrants were allowed to attack in-process removal proceedings by claiming that they were singled out by immigration authorities for adverse treatment. Id. at 487;^id. at 487-92. Because the Batalla Vidal Plaintiffs challenge the programmatic decision to rescind DACA, rather than attempting to obstruct their specific removal proceedings by claiming that they were
improperly denied deferred action,these cases do not implicate the concern raised in AAADC. Accordingly,Section 1252(g)does not preclude review ofthese actions.
2. Claims bv MRNY and the State Plaintiffs
Moreover,Section 1252(g)does not precludejudicial review ofthe claims brought by MRNY or the State Plaintiffs in particular. Again,the court begins with the text ofthe statute. Section 1252(g)only bars suits"bv or on behalfofanv alien arising from the decision or action. .. to commence proceedings, adjudicate cases, or execute removal orders against any alien." (emphasis added). But neither MRNY nor the State Plaintiffs are suing"on behalfofany alien" in removal proceedings or subject to an order ofremoval. Instead, MRNY sues in its own right, because it claims that the rescission ofDACA has interfered with its operations. (SAC 5457.) Likewise,the State Plaintiffs sue not"on behalfofany alien," but instead to vindicate their
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own proprietary and quasi-sovereign interests. (State Pis. Opp'n to Mot.to Dismiss("State Pis. Opp'n")(No. 17-CV-5228,Dkt.82)at 19-22.) MRNY and the State Plaintiffs seek to assert their own rights and the rights ofthe general public,not those ofindividual immigrants in
removal proceedings or subject to orders ofremoval. There is no reason why Section 1252(g)
would deprive the court ofjurisdiction over their claims, brought on their own behalf.
C. Standing The court next considers whether Plaintiffs have established that they have standing to sue. Defendants only cursorily raise Article III standing defenses. (Defs. Mem.at 19-20,34, 37.) "Because the standing issue goes to this [cjourt's subject matterjurisdiction," however,"it
can be raised sua sponte." Cent. States Se.& Sw. Areas Health & Welfare Fund v. Merck-
Medco Managed Care. L.L.C..433 F.3d 181,198(2d Cir. 2005). Under the U.S. Constitution,federal courts may hear only certain"cases"or
"controversies." U.S. Const, art. Ill, § 2. This "case-or-controversy requirement" means that a plaintiffmust have"standing," or a sufficient interest in a live dispute,to sue in federal court. See Snokeo.Inc. v. Robins. 136 S.Ct. 1540, 1546-47(2016). At its "irreducible constitutional minimum,"Luian v.Defenders ofWildlife.504 U.S.555,560(1992),standing consists ofthree
elements:
To establish Article III standing,[Plaintiffs] must demonstrate:"(1) iniurv-in-fact. which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a fairly
While a parens patriae suit is in some sense brought by a state"on behalfof its citizens,"[t]he asserted quasisovereign interests will be deemed sufficiently implicated to support parens patriae standing only if'the injury alleged affects the general population ofa State in a substantial way.'" Puerto Rico ex rel. Ouiros v. Bramkamp. 654 F.2d 212,215(2d Cir. 1981)(emphasis added)(quoting Maryland v. Louisiana.451 U.S.725,738(1981)). A state cannot sue parens patriae simply to assert its citizens' personal claims. See Pennsylvania v. New Jersey.426 U.S.660,665-66(1976)(per curiam)(collecting cases). To the extent the State Plaintiffs attempt to bring parens patriae claims based on harm to their quasi-sovereign interests,those claims are not"on behalfof specific immigrants,but instead seek to protectthe general welfare oftheir residents. In any event,as the court discusses below,the State Plaintiffs lack parens patriae standing to bring these claims.
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traceable connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressabilitv. or a nonspeculative likelihood that the injury can be remedied by the requested relief" Allco Fin. Ltd. v. Klee.861 F.3d 82,95(2d Cir.2017)(quoting W.R.HuffAsset Memt.Co., LLC V. Deloitte & Touche LLP.549 F.3d 100,106-07(2d Cir.2008)); accord Luian,504 U.S. at 560-61. The "first and foremost" ofthese three requirements,"injury-in-fact" requires a plaintiff to"show that he or she suffered an invasion ofa legally protected interest that is'concrete and particularized' and 'actual or imminent,not conjectural or hypothetical.'" Snokeo.Inc. v. Robins. 136 S. Ct. 1540,1548(2016)(internal quotation marks and citation omitted)(quoting Luian.504 U.S.at 560). To be"imminent,"the injury must be "certainly impending"; "allegations ofpossible future injury are not sufficient." Clapper v. Amnesty Int'l USA.568 U.S.398,409(2013)(internal quotation marks,alteration,and citation omitted). The second and
third requirements,"causation"and "redressability,"require a plaintiffto demonstrate that the "injury-in-fact" he or she suffers is"fairly traceable to the challenged action ofthe defendant and likely to be redressed by a favorable decision." Lexmark Int'l. Inc. v. Static Control Components.Inc.. 134 S. Ct. 1377,1386(2014)(citing Luian.504 U.S.at 560). A plaintiffneed not,however,demonstrate that the defendant was the proximate or"but-for"cause ofthe injuryin-fact. Id at 1391 n.6; Rothstein v. UBS AG.708 F.3d 82,91-92(2d Cir. 2013).
The court considers standing separately with respect to each claim raised in each case. DaimlerChrvsler Corp. v. Cuno.547 U.S.332,352(2006). "[T]he presence ofone party with standing is sufficient to satisfy Article Ill's case-or-controversy requirement" with respect to each claim and form ofreliefsought. Rumsfeld v. Forum for Acad.& Inst. Rights.Inc..547 U.S.47,53 n.3(2006)("FAIR"). The court therefore considers whether,for each claim raised in each ofthese two actions,at least one plaintiffhas standing to sue.
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1. Batalla Vidal Plaintiffs a. DACA Rescission Claims
Defendants unsurprisingly do not contest that the Batalla Vidal Plaintiffs have standing to challenge the decision to rescind the DACA program. Ifthe DACA program ends,the individual Batalla Vidal Plaintiffs almost certainly will lose their work authorization,the availability of which tums on their status as recipients ofdeferred action. 8 C.F.R.§ 274a.l2(c)(14). Loss oftheir ability to work in the United States is clearly an "injury-in-fact"fairly traceable to the rescission ofthe DACA program. Additionally,ifthey were to lose their deferred action,the individual Batalla Vidal Plaintiffs would be subject to removal from the United States. There is nothing "speculative" about the possibility that they would actually be removed. S^Hedges v. Obama,724 F.3d 170, 195-97(2d Cir.2013)(to establish standing,a plaintiffwho is clearly in violation ofa"recent and not moribund"statute need not affirmatively demonstrate the government's intent to enforce the statute,absent"a disavowal by the government or another reason to conclude that no such intent exist[s]"(quoting Doe v. Bolton,410 U.S. 179,188 (1973))): cf. Amnestv IntT.568 U.S.at 410-16(no standing where alleged injury-in-fact rested on a"speculative""chain ofcontingencies"). Those harms are "fairly traceable"to the termination ofthe DACA program and would be redressed by the vacatur ofthat decision. The Batalla Vidal Plaintiffs thus have Article 111 standing to challenge the decision to rescind the DACA program.
The Batalla Vidal Plaintiffs also have standing to challenge the process by which Defendants decided to end the DACA program. Plaintiffs have standing to assert procedural rights"so long as the procedures in question are designed to protect some threatened concrete interest...that is the ultimate basis of[their] standing." Luian,504 U.S. at 573 n.8. "When a litigant is vested with a procedural right,that litigant has standing ifthere is some possibility that
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the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." Massachusetts v. EPA.549 U.S.497,518(2007). Here,there is"some possibility" that ifDefendants had subjected the decision to rescind the DACA program to notice and comment and analyzed the impact ofthat decision on small entities,they would have reached a different outcome. Accordingly,the Batalla Vidal Plaintiffs also have Article III standing to assert their procedural APA claim, and MRNY has Article III standing to assert its
RFA claim.
Defendants contend that Plaintiffs cannot assert procedural APA claims because,ifthe decision to rescind the DACA program was a "substantive" or "legislative" rule requiring noticeand-comment rulemaking,then,"a fortiori so was enacting the policy in the first place," and the DACA program itself was thus"void ab initio—leaving Plaintiffs without a remedy." (Defs. Mem.at 28-29.) It does not follow,however,that ifthe rescission ofthe DACA program required notice and comment,the program's creation necessarily required notice and comment as well. (See Defs. Mem.at 29 n.7.) While Defendants might be correct on the merits(an issue that the court does not consider or resolve at this time), all that Article III requires is that Plaintiffs show that their alleged injury would be redressed by the ruling they seek—i^,that the decision to rescind DACA should be vacated because it was procedurally defective.
b. Information-Use Policy Claim The Batalla Vidal Plaintiffs also have standing to challenge the alleged changes to DHS's
information-use policy. To obtain deferred action and work authorization under DACA,an applicant was required to provide USCIS with extensive personal information,including his or her home address,height, weight,hair and eye color,fingerprints, photograph,and signature,and submit to a background check. (See USCIS,Form 1-82ID: Consideration ofDeferred Action for Childhood Arrivals(SAC,Ex.B(Dkt.60-1))at ECF pp.6-8; USCIS,Instructions for
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Consideration ofDeferred Action for Childhood Arrivals(SAC,Ex.B(Dkt.60-1))at ECF p.3.) The Batalla Vidal Plaintiffs also allege that DACA applicants "routinely provided" other personal information,"including copies ofschool records,pay stubs,bank statements, passports, birth certificates, and similar records,"in support oftheir applications. (SAC H 70.) They contend that this information will enable DHS to deport them more easily once their deferred action expires. (Id.^ 127.) The court agrees. It is not difficult to infer that this information would facilitate DHS's ability to remove these individuals from the country. This increased likelihood ofremoval is sufficiently concrete,imminent,and traceable to Defendants' alleged conduct to establish standing.
Defendants argue that Plaintiffs lack standing to pursue their information-use policy claims because "[n]o Plaintiff plausibly alleges that the agency has in fact used his DACA information for any enforcement purpose, much less initiated enforcement proceedings against him as a result,or that there is any imminent threat ofthis occurring." (Defs. Mem.at 37.) The individual Batalla Vidal Plaintiffs need not wait, however, until they are deported to have standing to press this claim. Once their deferred action expires,they will be subject to removal from the United States,and the court will presume that Defendants will enforce the immigration laws against them. Hedges.724 F.3d at 197. Nor will the court ignore the obvious reality that many DACA recipients will be removed from the country when their deferred action expires. (See,e.g.. State Pis. Am.Compl.H 71 (quoting a statement by Acting Director ofICE Thomas Homan that undocumented immigrants"should be uncomfortable"and "should look over[their] shoulder[s]"and"be worried").) The threat ofremoval based on information provided to DHS is sufficiently imminent as to constitute injury-in-fact.
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c. Notice Claim
The Batalla Vidal Plaintiffs lack standing,however,to assert their notice claim. In their Second Amended Complaint,the Batalla Vidal Plaintiffs allege that,following the enactment of the DACA Rescission Memo,Defendants failed to send DACA recipients whose status expired by March 5,2018,individualized notices"advising them that they must apply to renew DACA by October 5,2017 or be forever ineligible to renew their status." (SAC 1165;^id at 3,
48,103-05,160-66.) As Defendants correctly note, however,the Batalla Vidal Plaintiffs have not alleged that any ofthem missed the October 5,2017,deadline or suffered other adverse effects from not receiving such individualized notice. (Defs. Mem.at 34-35.) Nor,even drawing all reasonable inferences in Plaintiffs' favor,does the Second Amended Complaint show that MRNY was injured by Defendants' failure to provide DACA recipients with individualized notice ofthe renewal deadline.'^ While the Second Amended Complaint alleges that"MRNY has not been able to reach four DACA recipients to inform them that they need to renew now"(SAC H 48),that does not support the reasonable inferences either that those individuals failed to apply for renewal or that such failure was "fairly traceable" to Defendants' actions. In the absence ofa showing that anyone has been harmed by a failure to receive notice
The court also notes that the renewal deadline provided by the DACA Rescission Memo was not significantly different than that provided by existing DHS policy. The State Plaintiffs allege that "[p]rior to termination of DACA,a DACA grantee whose renewal status expires in February 2018 would have received an individualized renewal notice informing the grantee that he or she had to file a renewal 120-150 days prior to expiration ... in order to avoid a lapse in deferred action and employment authorization." (State Pis. Am.Compl.^93.) Under the DACA Rescission Memo,a DACA recipient whose deferred action and work authorization was set to expire on March 4,2018,was required to file an application for renewal by October 5,2018— 150 days before those benefits were set to expire.
Even ifthose conditions were met,it is not clear that MRNY would have organizational standing to bring this claim. S^ Summers v. Earth Island Inst.. 555 U.S.488,498(2009)("[0]ur prior cases...have required plaintifforganizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.")
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ofthe change to the application deadline,the Batalla Vidal Plaintiffs have not demonstrated that they have Article III standing to bring this claim.
2. State Plaintiffs
The court next considers whether the State Plaintiffs have Article III standing. As the Court has noted,the ordinary rules ofstanding are somewhat different when a state is a plaintiff. States are"not normal litigants for the purposes ofinvoking federaljurisdiction," and they are entitled to "special solicitude" when they seek to vindicate their"proprietary" or"quasi-
sovereign"interests.'^ Massachusetts v.EPA.549 U.S.at 518. This does not mean,however,
that states have unbridled license to sue.
a. The State Plaintiffs Have Standing to Challenge the DACA Rescission The State Plaintiffs have Article III standing to challenge Defendants' decision to rescind
the DACA program,as well as the procedures by which that decision was made and implemented,based on that decision's impacts to the State Plaintiffs' proprietary interests. States,"like other associations and private parties," may have a"variety ofproprietary interests" that they may vindicate in court. Alfred L.Snapp & Son.Inc. v.Puerto Rico,ex rel.. Barez,458 U.S.592,601-02(1982)("Snapp"). A state has proprietary interests,for example,in its ownership ofland,id at 601,and in its relationships with its employees,see Indiana v.IRS.38 F. Supp.3d 1003,1009(S.D.Ind.2014)("The Defendants recognize,as they must,that a State
The Court has categorized a state's litigation interests using the trichotomy of"sovereign,""quasi-sovereign," and "proprietary" interests. See Alfred L.Snapp & Son.Inc. v.Puerto Rico,ex re!.. Barez.458 U.S.592,601 (1982)("Snapp"). Proprietary interests are those that a state may have akin to a private party,such as ownership of land or participation in a business venture. Id at 601. Sovereign interests are interests the state has in its capacity as a state,such as"the exercise ofsovereign power over individuals and entities within the relevantjurisdiction" and "the demand for recognition from other sovereigns." Id "Quasi-sovereign" interests are harder to define but "consist ofa set ofinterests that the State has in the well-being ofits populace." Id at 602;see also id. at607 ("[T]he articulation of[quasi-sovereign]interests is a matter for case-by-case development—neither an exhaustive formal definition nor a definitive list ofqualifying interests can be presented in the abstract ").
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and its political subdivisions may sue in their capacity as employers."). A state also has proprietary interests in its"participat[ion]in a business venture," Snapp.458 U.S. at601,and in the operation ofstate-run institutions,such as state colleges and universities, Washington.847 F.3d at 1159-61; Aziz v. Trump.231 F. Supp.3d 23,32-33(E.D. Va.2017).
Here,the State Plaintiffs have amply alleged and documented that the rescission of DACA would harm the states' proprietary interests as employers and in the operation ofstate-run colleges and universities. (State Pis. Am.Compl.H 190(states employ"[m]any DACA recipients").). For example,the State ofWashington represents that it employs DACA recipients within state government(e.g.. Decl. ofPaul Quinonez 1-6(State Pis. Am.Compl.,Ex.56 (Dkt.55-56)); Decl.ofE. Alexandra Monroe^ 3-4(State Pis. Am.Compl.,Ex.62(Dkt.55-62))) and at state-run colleges and universities(e.g.. Decl.ofLucila Loera K 4(State Pis. Am.Compl., Ex.58(Dkt.55-58))). IfDACA were rescinded,these employees would lose their work authorization, and the State of Washington would incur expenses in identifying, hiring, and training their replacements. (State Pis. Am.Compl.^ 190.) Accordingly,the State of Washington has standing to assert equal protection and substantive APA claims challenging the decision to end the DACA program. Moreover, Washington has standing to challenge the procedures by which Defendants decided to end the DACA program, because "there is some
possibility"that,ifDHS complied with notice-and-comment and RFA rulemaking procedures,it might"reconsider the decision." See Massachusetts v.EPA.549 U.S.at 518. Because Washington has established its standing to assert substantive and procedural APA and RFA
claims,the State Plaintiffs therefore have Article III standing to bring these claims. FAIR,
547 U.S. at 53 n.3.
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Defendants' arguments that State Plaintiffs lack Article III standing because they would
be only "incidentally" harmed by the rescission ofthe DACA program are without merit. (See
Defs. Mem.at 19.) Defendants protest that"[i]t would be extraordinary to find Article III
standing" based on a state's assertions of"alleged harms to their residents,employees,tax bases,
health expenditures, and educational experiences at their universities," as "virtually any
administration offederal law by a federal agency could have such effects." (Id.) That a federal
policy may have sweeping,adverse effects on states and state-run institutions is not, however,a
convincing argument that states should not have standing to challenge that policy. Moreover,
Defendants' position is irreconcilable with their own stated rationale for rescinding the DACA
program. Defendants have stated that they rescinded the DACA program because it suffered
from the same legal flaws as the DAPA program and could not be defended in court against the
threatened challenge by Texas and other state plaintiffs. That necessarily assumes that at least
one ofthe plaintiffstates in the Texas litigation has standing to challenge the existence ofthe
DACA program. Cf.Texas.809 F.3d at 150-62(finding standing based on the likely costs of
having to issue drivers licenses to DAPA beneficiaries). Defendants offer no convincing reason
why states should have standing to challenge the DACA program but not to challenge the decision to end that program.'^
Defendants' arguments to the contrary are unpersuasive. (Defs. Mem.at 21.) First, Defendants argue that neither the Acting Secretary nor the Attorney General"expressly relied upon or gave any indication that they agreed with the Fifth Circuit's justiciability rulings." (Id) Jurisdiction is, however, a prerequisite to a ruling on the merits, so the plaintiffstates could prevail in their threatened challenge to the DACA program only ifthey had standing. Second, Defendants argue that "it was far from arbitrary and capricious for the Acting Secretary to weigh litigation risk based onjudicial decisions without regard to whether those courts had been correct to assertJurisdiction in the fu-st place," and that the Executive Branch has "an independent duty to consider the legality of... policies regardless of whether they are judicially reviewable." (Id.) The DACA Rescission Memo does not indicate, however,that Defendants actually considered these issues when deciding to rescind the DACA program. Finally, Defendants argue that the adoption ofthe DACA program could have been reviewed as an abdication ofDHS's statutory responsibilities—a.grounds forjusticiability that would not apply to the decision to rescind the program. (Id. at21-22.) The Fifth Circuit expressly did not rely on that theory ofstanding,809 F.3d at 150,nor is there any indication that the Attorney General or Acting Secretary considered it in rescinding the DACA program.
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b. The State Plaintiffs Lack Standing to Bring Notice andInformation-Use Policy Claims Whether the State Plaintiffs can assert their notice or information-use policy claims,

however,is a close question. In order to assert these claims,the State Plaintiffs must identify

some cognizable proprietary or quasi-sovereign interest that was harmed by Defendants'

challenged conduct— (1)with respect to the notice claim.Defendants'communication ofits

decision to rescind the DACA program and impose an October 5,2017,renewal deadline; and

(2)with respect to the information-use policy claims,the alleged change in DHS policy

regarding the use ofDACA applicants' information. In the court's view,the State Plaintiffs have

not identified any interests harmed by these actions that they can sue the federal government to

redress, and so they lack standing to bring these claims.

i.

Proprietary Interests

While the State Plaintiffs allege that their proprietary interests will be harmed by the

termination ofDACA(State Pis. Am.Compl.Kt 15, ICQ),they do not identify any proprietary

interests that have been or will be harmed by Defendants' alleged failure to provide DACA

recipients with "adequate notice" ofthe "procedures and timeline for renewing their DACA

status,""about the general termination ofthe DACA program after March 5,2018,"or"of

[DACA recipients'] inability to apply for renewal oftheir DACA status after March 5,2018"

(id. 276-78;cL State Pis. Mem.at 19-21). It is certainly conceivable that many DACA

recipients who were eligible to renew their deferred action and work authorization under the

DACA Rescission Memo failed to do so before the October 5,2017 deadline. (State Pis. Am.

Compl.K 96(noting that"up to one third ofDACA grantees who are eligible for renewal had not

applied as oftwo days before the...deadline").) The State Plaintiffs' Amended Complaint does

not provide a sufficient basis for the court to conclude,however,that(1)such failures to renew

were "fairly traceable" to Defendants' decision not to provide each DACA recipient with

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individualized notice ofthe change in application procedures and timelines; or(2)that these failures to renew harmed any State Plaintiffs proprietary interests(for example,by depriving a state employee ofwork authorization). Amnesty InfL 568 U.S. at 410-16. Accordingly,the State Plaintiffs fail to assert a proprietary interest that would give them standing to bring their
notice claim.
Nor do the State Plaintiffs identify a cognizable proprietary interest harmed by the alleged change to DHS's information-use policy. The State Plaintiffs' information-use policy claims challenge not the decision to rescind DACA itself, but the alleged changes in DHS's information-use policy, which.Plaintiffs allege, will facilitate the deportation ofDACA applicants. As discussed above,the court accepts that these changes(iftrue)will likely result in more undocumented immigrants'removal from the United States. (See State Pis. Am.Compl. H 86.) The State Plaintiffs have not,however,identified any cognizable harm to their proprietary
interests that would result from the removal oftheir undocumented residents. The State
Plaintiffs have proffered evidence that the removal ofDACA beneficiaries would grievously affect state economies. (See Deck ofDr.Ike Brannon 12, 14(State Pis. Am.Compl.,Ex.4 (Dkt.55-4))(estimating that the removal ofDACA recipients from the United States"would cost ...the economy as a whole $215 billion in lost GDP," with impacts falling hardest on states with the largest number ofDACA recipients).) Despite the scale ofthese impacts,the State Plaintiffs' own authority makes clear that states lack standing to bring a"claim...that actions taken by United States Government agencies had injured a State's economy and thereby caused a
In this circuit, the State Plaintiffs need not demonstrate, however,that the individuals they seek to protect must themselves meet the injury-in-fact, causation,and redressability requirements ofArticle III. See Connecticut v. Am. Elec.Power Co..582 F.3d 309,338-39(2d Cir.2009),affd in relevant part bv an eouallv divided court.564 U.S. 410,420(2011).
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decline in general tax revenues." Wyoming v. Oklahoma.502 U.S.437,448(1992). Absent

some showing ofinjury to their own proprietary interests(for example,"direct injury in the form

ofa loss ofspecific tax revenues,"id),the State Plaintiffs cannot maintain their information-use

policy claims based on alleged harms to their proprietary interests.

ii.

Quasi-Sovereign Interests

Accordingly,the court will consider whether the State Plaintiffs can assert these claims

parens patriae to vindicate their quasi-sovereign interests. States may bring parens patriae

(literally,"parent ofthe country")suits to vindicate what the Court has characterized as"quasi-

sovereign"interests. S^ Snapp.458 U.S.at 600-02. There are no bright-line rules for which

interests qualify as"quasi-sovereign." See id. at 600,607; 13B Charles A.Wright et al.. Federal

Practice and Procedure § 3531.11.1,at 117(3d ed.2008)("Wright& Miller"). In general,

however,the Court has recognized that a state has quasi-sovereign interests in the"health and

well-being—^both physical and economic—ofits residents in general," in protecting state

"residents from the harmful effects ofdiscrimination," and in challenging the discriminatory

denial ofa state's "rightful status within the federal system." Id at 607,609. There are,

however, at least two notable limitations on states' parens patriae standing.

First,to be "quasi-sovereign,"the state's interests must be sufficiently generalized that

the state is seeking to vindicate its citizens' welfare,rather than simply pressing suit on behalfof

its individual residents. id at 607("[M]ore must be alleged than injury to an identifiable

group ofindividual residents...."). A state cannot sue parens patriae when it is"merely

litigating as a volunteer the personal claims ofits citizens." Pennsylvania v.New Jersey.426

U.S.660,665(1976).

Second,special considerations are present when a state brings a parens patriae suit

against the federal government. S^ 13B Wright& Miller § 3531.11.1,at 96. In Massachusetts
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V. Mellon.262 U.S.447(1923),the Court rejected Massachusetts's attempt to bring a parens patriae suit challenging a federal statute as unconstitutional. id. at 485-86. "While the state, under some circumstances, may sue in[a parens patriael capacity for the protection ofits citizens, it is no part ofits duty or power to enforce their rights in respect oftheir relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae...." Id (emphasis added);see also Snapp,458 U.S.at609 n.l6("A State does not have standing as parens patriae to bring an action against the Federal Government."). The Court has rejected the argument,however,that Massachusetts v. Mellon bars all state parens patriae claims against the federal government. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n,135 S. Ct.2652,2664 n.lO(2015)(observing that"[t]he cases on the standing ofstates to sue the federal government seem to depend on the kind ofclaim that the state advances"(quoting Richard Fallon et al.. Hart and Wechsler's The Federal Courts and the Federal Svstem 263-66(6th ed.2009))). Compare Massachusetts v.EPA,549 U.S.at 520 n.l7, with id. at 538-39(Roberts,C.J.,dissenting). Instead,states may sue the federal government parens patriae to enforce rights guaranteed by a federal statute. S^ Massachusetts V. EPA,549 U.S. at 520 n.l7:see also New York v. Sebelius.No. 1:07-CV-1003(GLS)(DRH), 2009 WL 1834599,at *12(N.D.N.Y.June 22,2009)(collecting cases). Massachusetts v.EPA
expressly did not disturb the settled rule, however,that a state may not sue parens patriae to "protect her citizens from the operation offederal statutes." Massachusetts v. EPA.549 U.S. at
520 n.l7(quoting Georgia v.Penn.R.Co..324 U.S.439,447(1945)). The court concludes that the State Plaintiffs lack standing to bring either their notice and
information-use policy claims. With respect to their notice claim,the State Plaintiffs have not argued or demonstrated that Defendants' alleged failure to provide DACA applicants with
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adequate notice ofchanges in the DACA program and renewal deadline has actually harmed "the health and well-being"ofstate residents or any other cognizable quasi-sovereign interest. See Snapp.458 U.S. at 607. (Cf State Pis. Am.Compl. 15, 100; State Pis. Opp'n at 21-22.) Even ifthey had done so,they would be challenging federal enforcement offederal immigration laws as unconstitutional, which Massachusetts v. Mellon prohibits. S^ Massachusetts v.EPA.549 U.S. at 520 n.l7("[T]here is a critical difference between allowing a State 'to protect her citizens from the operation offederal statutes'(which is what Mellon prohibits)and allowing a State to assert its rights under federal law(which it has standing to do)."). For the same reason,the State Plaintiffs also lack standing to assert their information-use policy claims. Even assuming, as discussed above,that the change in information-use policy will facilitate the removal of undocumented immigrants from these states, and that this removal will harm the "health and well-being—^both physical and economic"ofstate residents,^Snapp,458 U.S. at 607,the thrust ofthe State Plaintiffs' information-use policy claims is to challenge as fundamentally unfair a change in federal policy that will facilitate the federal government's enforcement ofthe immigration laws.
The State Plaintiffs' argument that they merely seek to "enforce—as opposed to overturn or avoid—application ofa federal statute" is unpersuasive. (State Pis. Opp'n at 21 n.l1) Plaintiffs plainly seek to invalidate federal action as unconstitutional. Such claims more closely resemble constitutional challenges to application offederal statutes, which Massachusetts v. Mellon prohibits states from asserting parens patriae. than suits to enforce compliance with federal statutory law,which Massachusetts v.EPA permits states to bring parens patriae. When challenging federal action on constitutional grounds,"it is no part of[the state's] duty or power to enforce [its citizens'] rights in respect oftheir relations with the federal government."
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Massachusetts v. Mellon.262 U.S. at 485-86. But see Aziz.231 F. Supp.3d at 31-32 (concluding that"a state is not be barred by the Mellon doctrine from a narens patriae challenge to executive action when the state has grounds to argue that the executive action is contrary to federal statutory or constitutional law"(emphasis added)).
The court concludes,therefore,that the State Plaintiffs lack standing to assert their notice and information-use policy claims.
D. Whether State Plaintiffs Have Cause of Action under the APA
Lastly, Defendants assert that neither MRNY's nor the State Plaintiffs' claims are justiciable because those Plaintiffs do not assert interests that are "arguably within the zone of interests... protected or regulated by the statute...in question." (Defs. Mem.at 21 (quoting Clarke v. Sees.Indus. Ass'n.479 U.S.388,395(1987)(first alteration added)).) To bring suit under the APA,a plaintiff"must satisfy not only Article Ill's standing requirements,but an additional test:[t]he interest he asserts must be 'arguably within the zone ofinterests to be protected or regulated by the statute' that he says was violated." Match-E-Be-Nash-She-Wish Band ofPottawatomi Indians v.Patchak.567 U.S.209,224(2012)(''Match-E-Be-Nash") (quoting Ass'n ofData Processing Serv. Ores..Inc. v.Camp,397 U.S. 150,153(1970)). This test"is not meantto be especially demanding'"and "forecloses suit only when a plaintiffs 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.'" Id.(quoting Sees.
Indus. Ass'n.479 U.S. at 399).
Critically,for the court's current purposes,whether MRNY and the State Plaintiffs assert interests falling within the"zone ofinterests" protected by the APA is not a question of "jurisdiction" or"justiciability." As the Supreme Court has explained,the question ofwhether a plaintifffalls within the zone ofinterests protected by a statute is not properly classed as an issue
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of"prudential standing," but is instead an issue of"whether a legislatively conferred cause of action encompasses a particular plaintiffs claim." Lexmark InfL 134 S. Ct. at 1387. That issue "goes not to the court'sjurisdiction—^that is,'power'—^to adjudicate a case, but instead to whether the plaintiffhas adequately pled a claim." Chabad Lubavitch ofLitchfield Cntv.,Inc. v. Litchfield Historic Dist. Comm'n.768 F.3d 183,201(2d Cir. 2014)Cciting Lexmark Int'L 134 S. Ct. at 1387 n.4, 1389 n.5); see also Casper Sleep.Inc. v. Mitcham.204 F. Supp.3d 632,63738(S.D.N.Y.2016)(arguments for dismissal for lack of"prudential standing" were
appropriately addressed under Rule 12(b)(6), not Rule 12(b)(1),ofthe Federal Rules ofCivil Procedure). Because this argument does not raise an issue of"jurisdiction orjusticiability,"the
court does not address it here. IV. CONCLUSION
For the reasons stated above.Defendants' motion to dismiss for lack ofsubject-matter
jurisdiction(Dkt.95)is GRANTED IN PART and DENIED IN PART. The following claims
are dismissed: • Batalla Vidal v. Duke. No. 16-CV-4756:
o Fourth claim for relief(Due Process Clause—^Notice)
• New York v. Trump.No. 17-CV-5228:
o Second claim for relief(Due Process Clause—Information-Use Policy) o Third claim for relief(Equitable Estoppel—^Information-Use Policy) o Seventh claim for relief(Due Process Clause—^Notice)
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Defendants' motion to dismiss for lack ofsubject-matterjurisdiction is denied with respect to all

other claims. The court RESERVES RULING on Defendants' motion to dismiss for failure to

state a claim.

SO ORDERED.
Dated: Brooklyn,New York
November 2017

s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS
United States District Judge

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 Case 1:17-cv-05228-NGG-JO Document 96 Filed 12/15/17 Page 1 of 7 PageID #: 3878

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,
Defendants.

CIVIL ACTION NO. 1:17-cv-05228 (NGG) (JO)
PLAINTIFF STATES’ NOTICE OF MOTION FOR A PRELIMINARY INJUNCTION

TO DEFENDANTS DONALD TRUMP, in his official capacity as President of the United States, U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA, COLLECTIVELY “DEFENDANTS,” AND THEIR COUNSEL OF RECORD:

Case 1:17-cv-05228-NGG-JO Document 96 Filed 12/15/17 Page 2 of 7 PageID #: 3879
PLEASE TAKE NOTICE THAT, based upon the attached Memorandum of Law in Support of Plaintiff States’ Motion for a Preliminary Injunction, Plaintiff States move to preliminarily enjoin Defendants from executing the September 5, 2017 memorandum which terminates the Deferred Action for Childhood Arrivals (“DACA”) program (“the termination”). Plaintiff States will demonstrate, both in the attached Memorandum of Law and on January 18, 2018—the hearing date set for this motion—that (1) they are likely to succeed on the merits of their claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), the Regulatory Flexibility Act (“RFA”), 5 U.S.C. §§ 601-612, and the equal protection guarantee of the United States Constitution; (2) the termination will cause irreparable harm to Plaintiff States; and (3) the public interest and the balance of the equities weigh in favor of preliminary relief in the form of a return to the status quo which existed prior to the Termination.
Plaintiff States note that the Court ordered Defendants to complete the administrative record (ECF. NO. 65). Defendants’ compliance with that ruling has been stayed by the Second Circuit,1 and Defendants’ petition for mandamus relief is also pending before the Second Circuit. Nevertheless, as provided in this Court’s scheduling order (ECF. NO. 46) and due to the immediacy caused by Defendants’ arbitrary and capricious decision to terminate DACA by March 5, 2018, Plaintiff States currently move for preliminary relief on an incomplete administrative record, the discovery obtained prior to the Second Circuit’s stay, and the exhibits and declarations submitted in connection with this motion. Plaintiff States will supplement this motion upon completion of the administrative record or if further discovery uncovers relevant information.
1 Discovery has also been stayed by the United States Supreme Court in other cases challenging DACA before the U.S. district court in the Northern District of California. See Regents of Univ. of California v. DHS, No. 17-cv-05211 (N.D. Cal. filed Sept. 8, 2017); State of California v. DHS, No. 17-cv-05235 (N.D. Cal. filed Sept. 11, 2017); City of San Jose v. Trump, No. 17-cv-05329 (N.D. Cal. filed Sept. 14, 2017); Garcia v. United States of America, No 17-cv05380 (N.D. Cal. filed Sept. 18, 2017); County of Santa Clara v. Trump, No. 17-cv-05813 (N.D. Cal. filed Oct. 10, 2017).
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Plaintiff States’ Memorandum of Law, based on the current record, demonstrates that Plaintiff States are likely to succeed on the merits of their claims that the termination was arbitrary and capricious and an abuse of discretion, in violation of the APA, the RFA, and the equal protection guarantee of the United States Constitution. Plaintiff States seek preliminary injunctive relief at this time.

DATED: New York, New York December 15, 2017

ERIC T. SCHNEIDERMAN Attorney General of the State of New York
By: /s Lourdes M. Rosado Lourdes M. Rosado, Bureau Chief Brooke Tucker, Assistant Attorney General* Sania Khan, Assistant Attorney General Diane Lucas, Assistant Attorney General Ajay Saini, Assistant Attorney General Alex Finkelstein, Volunteer Assistant Attorney General Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 23rd Floor New York, NY 10271 Lourdes.Rosado@ag.ny.gov Sania.Khan@ag.ny.gov Diane.Lucas@ag.ny.gov Ajay.Saini@ag.ny.gov Tel. (212) 416-6348 Fax (212) 416-8074

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Case 1:17-cv-05228-NGG-JO Document 96 Filed 12/15/17 Page 4 of 7 PageID #: 3881

MAURA HEALEY Attorney General for the Commonwealth of Massachusetts
By: /s Abigail B. Taylor Jonathan B. Miller Genevieve C. Nadeau (pro hac vice) Abigail B. Taylor (pro hac vice) Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Genevieve.Nadeau@state.ma.us Abigail.Taylor@state.ma.us Tel. (617) 727-2200

BOB FERGUSON Attorney General of the State Washington
By: /s Robert W Ferguson Robert W. Ferguson (pro hac vice) Attorney General Colleen M. Melody (pro hac vice) Civil Rights Unit Chief Marsha Chien (pro hac vice) Assistant Attorney General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 ColleenM1@atg.wa.gov MarshaC@atg.wa.gov Tel. (206) 464-7744

GEORGE JEPSEN Attorney General of the State of Connecticut
By: /s Mark K. Kohler Mark F. Kohler (pro hac vice) Assistant Attorney General Connecticut Office of the Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06106 Mark.Kohler@ct.gov Tel. (860) 808-5020

KARL A. RACINE Attorney General for the District of Columbia
By: /s Robyn R. Bender Robyn R. Bender* Deputy Attorney General Public Advocacy Division 441 4th Street, NW Suite 650 North Washington, DC 20001 Robyn.Bender@dc.gov Tel. (202) 724-6610 Fax (202) 730-0650

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Case 1:17-cv-05228-NGG-JO Document 96 Filed 12/15/17 Page 5 of 7 PageID #: 3882

DOUGLAS S. CHIN Attorney General of the State of Hawaii
By: /s Donna H. Kalama Donna H. Kalama (pro hac vice) Deputy Attorney General State of Hawaii, Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Donna.H.Kalama@hawaii.gov Tel. (808) 586-1224

LISA MADIGAN Attorney General of the State of Illinois
By: /s Anna P. Crane Anna P. Crane, Assistant Attorney General (pro hac vice) Karyn L. Bass Ehler, Chief, Civil Rights Bureau Harpreet Khera, Deputy Bureau Chief, Special Litigation Bureau Caitlyn McEllis, Assistant Attorney General Jeff VanDam, Assistant Attorney Genera Civil Rights Bureau Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Anna.Crane@atg.state.il.us Tel. (312) 814-3400 Fax (312) 814-3212

THOMAS J. MILLER Attorney General of the State of Iowa

HECTOR H. BALDERAS Attorney General of the State of New Mexico

By: /s Nathan Blake Nathan Blake (pro hac vice) Deputy Attorney General Office of the Attorney General of Iowa 1305 E. Walnut Street Des Moines, IA 50319 Nathan.Blake@iowa.gov Tel. (515) 281-4325 Fax (515) 281-4209

By: /s Tania Maestas Tania Maestas, (pro hac vice) Deputy Attorney General Ari Biernoff, Assistant Attorney General Jennie Lusk, Assistant Attorney General New Mexico Office of the Attorney General 408 Galisteo St. Santa Fe, NM 87501 ABiernoff@nmag.gov Tel. (505) 490-4060 Fax (505) 490-4883

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Case 1:17-cv-05228-NGG-JO Document 96 Filed 12/15/17 Page 6 of 7 PageID #: 3883

MATTHEW DENN Attorney General of the State of Delaware
By: /s Aleine Cohen Aaron Goldstein* State Solicitor Aleine Cohen* Deputy Attorney General Delaware Department of Justice 820 N. French St. Wilmington, DE 19801 Aaron.Goldstein@state.de.us Aleine.Cohen@state.de.us Tel. (302) 577-8400

PETER KILMARTIN Attorney General of the State of Rhode Island
By: /s Rebecca T. Partington Rebecca T. Partington (pro hac vice) Chief, Civil Division Michael W. Field (pro hac vice) Assistant Attorney General Adam D. Roach (pro hac vice) Special Assistant Attorney General RI Office of the Attorney General 150 South Main Street Providence, RI 02903 RPartington@riag.ri.gov MField@riag.ri.gov ARoach@riag.ri.gov Tel. (401) 274-4400

JOSH STEIN Attorney General of the State of North Carolina
By: /s Sripriya Narasimhan Sripriya Narasimhan* North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 SNarasimhan@ncdoj.gov Tel. (919) 716-6400

ELLEN F. ROSENBLUM Attorney General of the State of Oregon
By: /s Brian De Haan Brian De Haan* Assistant Attorney General Trial Attorney Brian.A.DeHaan@doj.state.or.us Tel. (971) 673-1880 Fax (971) 673-5000

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Case 1:17-cv-05228-NGG-JO Document 96 Filed 12/15/17 Page 7 of 7 PageID #: 3884

JOSH SHAPIRO Attorney General of the Commonwealth of Pennsylvania
By: /s Jonathan Scott Goldman Jonathan Scott Goldman* Executive Deputy Attorney General, Civil Law Division Michael J. Fischer, (pro hac vice) Chief Deputy Attorney General, Impact Litigation Section Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA 17120 MFischer@attorneygeneral.gov Tel. (717) 787-3391

THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont
By: /s Benjamin D. Battles Benjamin D. Battles, (pro hac vice) Solicitor General Julio A. Thompson*, Assistant Attorney General, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, VT 05609 Benjamin.Battles@vermont.gov Tel. (802) 828-5500 Fax (802) 828-3187

MARK R. HERRING Attorney General of the Commonwealth of Virginia
By: /s Matthew R. McGuire Matthew R. McGuire (pro hac vice) Acting Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219 MMcguire@oag.state.va.us Tel. (804) 786-7773

JOHN W. HICKENLOOPER Governor of the State of Colorado
By: /s Jacki Cooper Melmed Jacki Cooper Melmed Special Assistant Attorney General* Chief Legal Counsel 136 State Capitol Building Denver, Colorado 80203 Jackic.Melmed@state.co.us Tel. (303) 866-3788 (* Limited Appointment)

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Case 1:17-cv-05228-NGG-JO Document 96-1 Filed 12/15/17 Page 1 of 48 PageID #: 3885

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,
Defendants.

CIVIL ACTION NO. 1:17-cv-05228 (NGG) (JO)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF STATES’ MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
ARGUMENT ...................................................................................................................................4 PLAINTIFF STATES ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS .......................... 4
I. Defendants’ Termination of DACA was Arbitrary and Capricious in Violation of the APA..................................................................................................................................... 4 A. Defendants’ Termination of DACA Was Arbitrary and Capricious as Defendants Failed to Offer a Reasoned Explanation for Reversal of Policy. ............................ 5 1. Defendants did not offer reasoned, evidence-based rationales for reversing their prior position..........................................................................................5 2. Defendants’ termination failed to acknowledge inconsistencies with their prior position. .................................................................................................7 B. Defendants’ Termination Did Not Account for the Significant Reliance Interests Created by DACA, or Consider Any Steps to Mitigate the Harm of Termination. 9 C. Defendants’ Explanations for Termination Are Pretextual and Their True Basis for Termination Is Impermissible. ........................................................................ 12
II. Defendants’ Termination of DACA Violated Equal Protection. ...................................... 15 III. Defendants’ Termination of DACA Violates the Procedural Requirements of the APA
and RFA. ........................................................................................................................... 20 A. The Termination Changed Existing Rights and Interests. .................................... 22 B. The Termination Binds the Discretion of DHS and Its Officials.......................... 23 C. A Strong Public Interest in the Treatment of DACA Grantees Weighs in Favor
of Notice and Comment. ....................................................................................... 26 PLAINTIFF STATES SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF ................ 27
I. Absent an Injunction, the States Will Suffer Irreparable Harm........................................ 27 A. Harm to the States’ Regulatory and Licensing Schemes. ..................................... 29 B. Harm to State Employers. ..................................................................................... 29 C. Harm to State Educational Institutions. ................................................................ 30 D. Harm to State Healthcare Systems........................................................................ 31 E. Harm to State and Local Economies..................................................................... 33
II. The Public Interest and the Balance of the Equities Weigh in Favor of a Preliminary Injunction. ......................................................................................................................... 34
CONCLUSION ..............................................................................................................................36
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TABLE OF AUTHORITIES

CASES

Page(s)

Aeronautical Repair Station Ass’n v. F.A.A., 494 F.3d 161 (D.C. Cir. 2007) .................................................................................................21

Amerijet Int’l v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014) .................................................................................................7

Ariz. Dream Act Coal. v. Brewer, 757 F.3d (9th Cir. 2014) ..........................................................................................................33

Ariz. Dream Act Coal. v. Brewer, No. 15-15307 (9th Cir. Aug. 28, 2015)....................................................................................18

Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) ...................................................................................................34

Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993) .....................................................................................................4

Bellarno Intern. Ltd. v. Food & Drug Admin., 678 F.Supp. 410 (E.D.N.Y. 1988) ...........................................................................................24

Bertrand v. Sava, 684 F2d 204 (2d. Cir. 1982).....................................................................................................13

Bolling v. Sharpe, 347 U.S. 497 (1954).................................................................................................................15

Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281 (1974)...................................................................................................................9

Camp v. Pitts, 411 U.S. 138 (1973)...................................................................................................................4

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).................................................................................................................20

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)...................................................................................................................4

Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) .................................................................................................24

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Case 1:17-cv-05228-NGG-JO Document 96-1 Filed 12/15/17 Page 4 of 48 PageID #: 3888
Dimaren v. Immigration and Naturalization Serv., 398 F.Supp. 556 (S.D.N.Y. 1974) ...........................................................................................24
Donovan v. Red Star Marine Servs., Inc., 739 F.2d 774 (2d Cir. 1984).....................................................................................................22
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011) ...............................................................................................22, 26
Encino Motorcars LLC v. Navarro, 136 S.Ct. 2117 (2016) ..........................................................................................................5, 12
FCC v. Fox Television Stations, 556 U.S. 502 (2009).........................................................................................................5, 9, 10
Fishman v. Paolucci, 628 F. App’x 797 (2d Cir. 2015) .............................................................................................32
Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144 (2d Cir.1999)......................................................................................................27
Gen. Elec. Co. v. E.P.A., 290 F.3d 377 (D.C. Cir. 2002) .................................................................................................23
Haitian Ctrs. Council, Inc. v. Sale, 823 F.Supp. 1028 (E.D.N.Y. 1993) .........................................................................................13
Heller v. Doe, 509 U.S. 312 (1993).................................................................................................................17
Hoctor v. U.S. Dept. of Agric., 82 F.3d 165 (7th Cir. 1996) .....................................................................................................26
Hoffman ex rel. Nat’l Labor Relations Bd. v. Inn Credible Caterers, Ltd., 247 F.3d 360 (2d Cir. 2001).....................................................................................................35
Int’l Refugee Assistance Project v. Trump, 2017 WL 4674314 (D. Md. Oct. 17, 2017), appeal docketed, 17-2231 (4th Cir. Oct 20, 2017), 17-2240 (4th Cir. Oct 23, 2017), stay pending appeal.....................................28
Int’l Union of Mine Workers v. U.S. Dep’t of Labor, 358 F.3d 40 (D.C. Cir. 2004) .....................................................................................................6
Jolly v. Coughlin, 76 F.3d 468 (2d Cir.1996)........................................................................................................27
Kandamar v. Gonzalez, 464 F.3d 65 (1st Cir. 2006) ......................................................................................................17
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Kadrmas v. Dickinson Pub. Schools, 108 S.Ct. 2481 (1988) ..............................................................................................................19
Lewis v. Grinker, 1987 WL 8412 (E.D.N.Y. Mar. 6, 1987) .................................................................................32
Lewis v. Thompson, 252 F.3d 567 (2d Circ. 2001)...................................................................................................19
Lewis-Mota v. Sec’y of Labor, 469 F.2d 478 (2d Cir.1972)......................................................................................................22
Long Island Head Start Child Dev. Servs. v. N.L.R.B., 460 F.3d 254 (2d Cir. 2006).................................................................................................4, 12
Mada–Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir.1987) ..................................................................................................23
Melendres v. Arpaio, 695 F.3d 990 (9th Cir.2012) ....................................................................................................34
Mhany Mgmt v. Cty. of Nassau, 819 F.3d 581 (2d Cir. 2016).....................................................................................................16
Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983)........................................................................................................... passim
Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992) .................................................................................................23
N. Mariana Islands v. United States, 686 F.Supp.2d 7 (D.D.C. 2009) .........................................................................................27, 34
N. Y. Council v. Fed. Labor Relations Auth., 757 F.2d 502 (2d Cir. 1985).....................................................................................................11
N. Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015), cert. dismissed sub nom, Allergan PLC v. N. Y. ex. rel. Schneiderman, 136 S. Ct. 581 (2015) ....................................................................27, 34
N.Y. State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128 (2d Cir. 2001).....................................................................................................22
Nat’l Nutritional. Foods Ass’n v. Mathews, 557 F.2d 325 (2d. Cir. 1977)......................................................................................................4
Nat’l Law Center on Homelessness and Poverty v. N.Y., 224 FRD 314 (EDNY 2004) ....................................................................................................19
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Natural Resources Defense Council v. EPA, 808 F.3d 556 (2d Cir. 2015).......................................................................................................9
New England Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984) ...............................................................................................12
Nguyen v. INS, 533 U.S. 53 (2001)...................................................................................................................17
Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975)...................................................................................................25
Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) (en banc) .....................................................................................6
Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977) ............................................................................................25
Perales v. Sullivan, 948 F.2d 1348 (2d Cir. 1991)...................................................................................................21
Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015) ................................................................................................................4
Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................18
Public Citizen v. Heckler, 653 F. Supp. 1229 (D.D.C. 1986) ........................................................................................4, 12
Romer v. Evans, 517 U.S. 620 (1996)....................................................................................................... 2, 16-17
State v. Trump, 2017 WL 4639560 (D. Haw. Oct. 17, 2017), aff’d in part, State of Hawaii ...........................28
Statharos v. N.Y. City Taxi & Limousine Comm’n, 198 F.3d 317 (2d Cir.1999)......................................................................................................27
Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002) ...................................................................................................27
Sweet v. Sheahan, 235 F.3d 80 (2d Cir. 2000).......................................................................................................22
Texas v. United States, 2015 WL 1611821 (5th Cir. 2015) ............................................................................................7
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Case 1:17-cv-05228-NGG-JO Document 96-1 Filed 12/15/17 Page 7 of 48 PageID #: 3891
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .....................................................................................................6
Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013).....................................................................................................22
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)........................................................................................................... 16-17
U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) ...................................................................................................21
United States v. Lott, 750 F.3d 214 (2d Cir. 2014).....................................................................................................20
United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989) .................................................................................................21
United States v. Texas, 2016 WL 836758 (U.S. 2016).......................................................................................... 6-7, 18
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).................................................................................................................15
White v. Shalala, 7 F.3d 296 (2d Cir. 1993)............................................................................................. 20-21, 22
Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7 (2008).................................................................................................................3, 27
Wong Wing Hang v. I.N.S., 360 F.2d 715 (2d. Cir. 1966)....................................................................................................13
Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71 (2d. Cir. 2006).............................................................................................. 4-5, 11
CONSTITUTION U.S. Const. Fifth Amendment........................................................................................................15 U.S. Const. Fourteenth Amendment ..............................................................................................15
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FEDERAL STATUTES 5 U.S.C.
§ 553................................................................................................................................... 20-21 §§ 601(2), 603(a) 604(a), 605(b) .............................................................................................21 § 605(b) ....................................................................................................................................21 § 706(2) ...................................................................................................................................2,4 8 U.S.C. § 1182(d)(5) .............................................................................................................................21 Immigration Reform and Control Act of 1986 ..............................................................................23 Regulatory Flexibility Act (RFA) ............................................................................ 3, 20-22, 26, 33 STATE STATUTES Ill. Comp. Stat. 205/2 ...............................................................................................................10, 29 Oregon Revised Statutes (ORS) 807.021.................................................................................10, 29 N.Y. Fin. Law § 3.....................................................................................................................................29
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PRELIMINARY STATEMENT On September 5, 2017, the Departments of Homeland Security (“DHS”) and Justice (“DOJ”) announced the termination of Deferred Action for Childhood Arrivals (“DACA”). DACA is a nationwide program that permits undocumented individuals who were brought to the United States as young children to live and work in the only country they know as home. Through this highly successful program, nearly 800,000 DACA grantees—the majority of whom are of Latino descent—contribute to our communities and economies daily. DACA grantees work in state and local government agencies, universities and hospitals, and in a diverse array of businesses and non-profit institutions. DACA grantees are integrated into our communities and both the public and private sectors rely on their significant contributions. Yet when DHS and DOJ decided to end DACA, they disregarded the harm the termination will inflict on DACA grantees as well as on the state and local institutions and private companies that count on them. Instead, DHS and DOJ cited two unsubstantiated reasons for the termination—the likelihood of successful litigation against the United States if Defendants continued the program, and that DACA itself was unconstitutional and unlawful. Evidence in the record reveals the stated bases to be pretextual. Specifically, statements and actions demonstrate that Defendants’ termination of DACA was motivated, at least in part, by animus against Latinos. Defendants have repeatedly asserted to this Court and others that they have unfettered authority to terminate DACA—whenever they want, however they want, and for whatever reason they want.1 This assertion is simply not true. While Congress has delegated wide discretion to the Executive Branch in the area of immigration enforcement, the U.S. Constitution
1 See Mem. of Law in Supp. of Defs.’ Mtn. to Dismiss at 12-19, ECF. 71-1; Defs’ Mtn. to Vacate at 5-6, ECF. 48.
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places important limits on the exercise of such discretion. Similarly, Congress has enacted laws to ensure that the Executive does not exercise its discretion in an arbitrary and capricious manner, and that the Executive hears from diverse interests and considers potential consequences before it takes action. Plaintiff States (herein, “Plaintiff States” or “States”) accordingly filed this suit to prevent Defendants from sidestepping these key restraints on their authority and from causing great harm to the States and their residents.
Now Plaintiff States bring this motion requesting that the Court preliminarily enjoin the termination of DACA. Plaintiff States are likely to succeed on the merits of their claim that the termination was arbitrary and capricious and an abuse of discretion, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2). Defendants did not offer reasoned, evidence-based rationales for the termination; failed to analyze all relevant issues and factors, including the significant reliance interests created by DACA; and Defendants’ stated reasons for the termination were pretextual as the decision to terminate DACA was animus-driven.
That animus towards Latinos motivated the decision to terminate DACA, and the stated irrational reasons for the action, demonstrate that Defendants also violated the equal protection guarantee of the U.S. Constitution. Animus-driven decisionmaking cannot withstand even the most deferential form of Equal Protection. Indeed, given the breadth and abruptness of the termination, its lack of evidentiary support, and its unprecedented departure from deferred action norms, the termination decision “seems inexplicable by anything but animus toward the class it affects.” Romer v. Evans, 517 U.S. 620, 632 (1996). Thus, Plaintiff States are likely to succeed on their equal protection claim.
Plaintiff States are also likely to succeed on their claim that Defendants violated the procedural requirements of the APA and Regulatory Flexibility Act (“RFA”), because
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Defendants failed to provide for notice and comment on the termination and failed to consider the impact on numerous local governments and small businesses throughout the country. The termination is a legislative rule that affects substantial rights and interests and binds discretion of DHS officials. Moreover, the strong public interest in the termination makes it just the type of rule for which notice and comment is meant to apply.
In terminating DACA—when they did, in the manner they did, and for the reasons they did—Defendants have attempted to evade critical safeguards against the unconstitutional and unlawful exercise of their power. Left unchecked, Defendants actions will cause irreparable and grave harm to Plaintiff States and their residents. By contrast, Defendants will not be harmed by a preliminary injunction. The balance of the equities therefore supports such preliminary relief. Preliminary relief will ensure that Defendants are not allowed to elude legal provisions designed to prevent abuses of power and to protect the well-being of the American public.
STANDARD OF REVIEW A party “seeking a preliminary injunction must establish that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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ARGUMENT PLAINTIFF STATES ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIMS Defendants’ Termination of DACA was Arbitrary and Capricious in Violation of the APA. Under the APA, agency action is unlawful if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §706(2).2 To determine whether an agency action is arbitrary and capricious, a reviewing court must conduct a “thorough, probing, in-depth review” of the agencies’ actions and a “searching and careful” inquiry into the underlying facts.3 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971). Actions are arbitrary and capricious where, among other things, an agency fails to offer a reasoned explanation for reversing a prior policy, Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 41-42 (1983), fails to consider and analyze “all relevant issues and factors,” including the serious reliance interests engendered by the prior policy, Long Island Head Start Child Dev. Servs. v. N.L.R.B., 460 F.3d 254, 258-260 (2d Cir. 2006); Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199, 1209 (2015), or adopts a pretextual rationale for its action, Public Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C. 1986). Although Defendants violated all of these prohibitions, a finding by this Court that they simply violated one of them is sufficient to sustain a ruling that Defendants acted in an arbitrary and capricious manner.
2 The arbitrary and capricious standard applies to agency actions other than rulemaking, including policy statements. See, e.g., Bechtel v. FCC, 10 F.3d 875, 878, 887 (D.C. Cir. 1993) (holding that a policy statement exempt from notice and comment was arbitrary and capricious). 3 In addition, review of agency action may include information outside the Administrative Record where an agency’s failure to explain an action frustrates effective judicial review, Camp v. Pitts, 411 U.S. 138, 143 (1973), Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 82 (2d. Cir. 2006), or where an agency has engaged in bad faith or improper behavior, such as discrimination. Nat’l Nutritional Foods Ass’n v. Mathews, 557 F.2d 325 (2d. Cir. 1977). Here, Defendants have both failed to adequately explain their actions, see infra Part I.A., and acted on an improper basis, see infra Part I.B. Therefore, the Court may consider information outside the Administrative Record.
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Defendants’ Termination of DACA Was Arbitrary and Capricious as Defendants Failed to Offer a Reasoned Explanation for Reversal of Policy. When an agency reverses course on a policy it must provide “a reasoned analysis” for its reversal. Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 41-42 (1983); Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 79 (2d Cir. 2006) (“[R]eview is particularly searching” when the agency changes “[a] settled course of behavior.”). Under certain circumstances, the agency must provide “a more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). This includes circumstances in which an agency’s action is inconsistent with facts and circumstances that underlay the prior policy. Encino Motorcars LLC v. Navarro, 136 S.Ct. 2117, 2126 (2016). An agency’s failure to explain these inconsistencies is reason for holding its policy reversal arbitrary and capricious. Id. 1. Defendants did not offer reasoned, evidence-based rationales for reversing their
prior position. In the memo terminating DACA (the “Termination Memo”), Defendants’ cite only two reasons for terminating DACA: the risk that continuing the program would result in litigation, and the program’s purported unlawfulness.4 In drawing these conclusions, Defendants provide no assessment of the litigation risk or explanation of their legal reasoning. This lack of reasoned analysis is particularly striking since Defendants’ newfound position is squarely inconsistent with their prior position, namely that DACA is a deeply rooted, lawful exercise of prosecutorial discretion.
4 See Memorandum from Acting Secretary Elaine Kelly to James McCament, Acting Director of U.S. Citizenship and Immigration Services, Rescission of Deferred Action for Childhood Arrivals, September 5, 2017 (“Termination Memo”), AR 252-55.
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Defendants failed to provide a reasoned assessment of the litigation risk resulting from continuing the DACA program. When seeking to reverse policy based on a purported risk of litigation, an agency must explain why it determined that case law was “fatal” to the prior policy. Int’l Union of Mine Workers v. U.S. Dep’t of Labor, 358 F.3d 40, 44 (D.C. Cir. 2004) (finding arbitrary an agency’s reversal of a rule based on a court decision to reverse a separate rule). While Defendants reference decisions by the Fifth Circuit and Supreme Court in their Termination Memo, the Memo and Administrative Record includes no assessment explaining why these cases were “fatal” to DACA.5 Moreover, a valid consideration of litigation risk would entail weighing the comparative costs and burdens of taking different actions, an analysis also absent from the Termination Memo and Administrative Record. Defendants’ failure to assess or analyze the potential risk of litigation undermines their subsequent reliance on that risk to terminate DACA.
Further, Defendants were aware that their desire to avoid litigation could not be achieved by their decision to terminate DACA, as that decision was also subject to the virtual certainty of litigation. Defendants’ attempt to avoid a lawsuit initiated by the State of Texas merely “traded” that lawsuit for this suit by Plaintiff States. Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015) (en banc) (rejecting litigation risk rationale as “implausible” where agency “deliberately traded one lawsuit for another”).
5 DACA Termination Memo, AR 252-55. In fact, the decisions arising out of Texas v. United States do not support the conclusion that DACA is unlawful as: (1) the Texas court did not find constitutional defects in DAPA. 809 F.3d 134, 154 (5th Cir. 2015) (“We decide this appeal, however, without resolving the Constitutional claim.”); (2) the legality of the original DACA policy was never at issue in Texas and no court has held DACA itself unlawful. Id. at 173; (3) the Fifth Circuit found legally significant differences between DAPA and DACA. Id. at 173-74 (finding that “for a number of reasons, any extrapolation [of DAPA] from DACA must be done carefully”); and (4) the Fifth Circuit decision regarding DAPA’s legal defects is not persuasive in light of the flaws in that reasoning discussed in Br. Of U.S., United States v. Texas, 2016 WL 836758 (U.S. 2016).
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Defendants also failed to provide any legal analysis in support of their conclusions regarding the lawfulness of the DACA program. The Termination Memo relies entirely on a oneline assertion in a letter from the Attorney General that DACA “has the same legal and constitutional defects” that the Fifth Circuit and a divided Supreme Court recognized as to the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program.6
Agencies are obligated to provide reasons, not bare conclusions, to support an action. Amerijet Int’l v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (“conclusory statements will not do; an agency’s statement must be one of reasoning”)(internal quotations omitted). Defendants’ reliance on cursory and erroneous conclusions renders its decision arbitrary and capricious.
2. Defendants’ termination failed to acknowledge inconsistencies with their prior position.
Defendants failed to explain the inconsistencies between their stated reasons for terminating DACA, and their prior well-reasoned and in-depth analysis supporting the program. In substantial analyses provided in an Office of Legal Counsel opinion in 2014, and in briefs in support of the DAPA program filed with the Fifth Circuit and the U.S. Supreme Court,7 Defendants explained that the DACA program was lawful. Although Defendants now claim that
6 Ltr from Att’y Gen. Jefferson Sessions to Sec’y of the Dep’t of Homeland Security Elaine Duke, AR 251; DACA Termination Memo (“Sessions Letter”), AR 252-55. DAPA offered deferred action to the parents of U.S. Citizens and Lawful Permanent Residents. 7 See United States Office of Legal Counsel, “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Other,” (Nov. 19, 2014), AR 4-36; Appellant’s Br., Texas v. United States, 2015 WL 1611821 (5th Cir. 2015); Br. Of U.S., United States v. Texas, 2016 WL 836758 (U.S. 2016).
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the program is unlawful, they failed to consider any reasoned analysis or evidence to rebut their prior analysis, as evidenced by the lack of any such materials in the Administrative Record.8
Likewise, Defendants’ argument that DACA was an extra-statutory and “unconstitutional”9 exercise of Executive power fails to acknowledge that DACA is rooted in an established tradition of Executive action dating back to the New Deal.10 DHS and its predecessor agencies have regularly developed prosecutorial discretion programs, like DACA, which have offered temporary relief from deportation to millions of immigrants across a variety of circumstances.11 Deferred action has been offered to many different classes of people to respond to an array of global events and domestic policy objectives, and often, as with DACA, out of concern for immigrants’ age, and their long-term presence and ties to the United States.12 The Termination Memo and Administrative Record lack any explanation of why Defendants now, in a reversal of Defendants’ prior policy, believe the DACA program is an illegal exercise of Executive power. Based on the complete failure to explain these inconsistencies, Defendants’ termination decision is arbitrary and capricious.
8 Prior to termination, Defendants received a letter from prominent law professors who presented substantial, reasoned analysis supporting the lawfulness of the DACA program. See Ex. 87 (Ltr from Shobha Wadhia et al. to President Donald Trump, Aug. 14, 2017). Defendants ignored this letter. 9 Sessions Letter, AR 251. 10 See Ex. 1, ¶ 24 (Wadhia Decl.). 11 See Id. at, ¶¶ 31-44, 60-65. 12 See Id. at, ¶¶ 40-41, 61, 71; For example, President Reagan’s “Family Fairness” program shares several similarities to DACA. It provided deferred action for children under 18 whose parents were eligible for permanent residency legalizing under the Immigration Reform and Control Act of 1986. Three years later, the Family Fairness program was expanded under President George H.W. Bush. That Executive program made 1.5 million people eligible for relief out of a total undocumented population of 3.5 million. Just like DACA grantees, Family Fairness grantees were also allowed to apply for employment authorization. Eventually, Congress acted to provide a permanent solution for many of these individuals.
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Defendants’ Termination Did Not Account for the Significant Reliance Interests Created by DACA, or Consider Any Steps to Mitigate the Harm of Termination. When reversing a prior policy that “engendered serious reliance interests,” agencies must provide a reasoned explanation for disregarding facts and circumstances that underlay that policy. FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). In addition, agencies must consider all “relevant factors” during the decision-making process. State Farm, 463 U.S. at 43(1983) (citing to Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 285-86 (1974)). Those factors include “the costs as well as the benefits” of the action. State Farm, 463 U.S. at 54. Failing to consider an “important aspect of the problem” is grounds for finding an action arbitrary and capricious. Natural Resources Defense Council v. EPA, 808 F.3d 556, 569, 576–77 (2d Cir. 2015). Defendants violated the APA by disregarding the serious reliance interests engendered by DACA, and utterly failing to consider any of the costs triggered by terminating DACA. While Defendants single-mindedly focused on their unfounded legal conclusions, they ignored the serious reliance interests engendered by DACA. Since 2012, nearly 800,000 grantees have relied on DACA to “come out of the shadows” and integrate into their communities.13 Grantees have relied on the promises of the DACA program to make long-term decisions inconsistent with a sudden end to the program. For instance, many grantees have enrolled in multi-year degree programs that will now be disrupted.14 One in twenty grantees has relied on
13 Ex. 2 (Updated USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017, Sept. 30, 2017); Ex. 3, McCament Dep. 158: 3 –159:1. 14 See Ex. 4, ¶ 13 (Andrade Decl.) (rely on DACA to pursue a medical degree); Ex. 5, ¶ 10, 13 (Naveed Decl.) (rely on DACA to pursue degrees in nursing and law); Ex. 6, ¶ 7-9, 12-13 (Cuevas Decl.) (rely on DACA to pursue a Dental degree); Ex. 7, ¶ 6 (Mendes Decl.); Ex. 8, ¶ 4 (Teodoro Decl.); Ex. 9, ¶ 7, 9-10 (Juarez Decl.).
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the program to start a business, a rate higher than native-born Americans.15 Public and private
employers have also counted on DACA to invest time and resources in hiring and training
grantees; losing these employees will disrupt their businesses and agencies.16 In addition, public
and private colleges and universities have relied on the program to enroll and integrate DACA
grantees into their educational programs.17 Finally, the States have relied on DACA to integrate
grantees into their licensing schemes and economies generally, including into sectors in which
professional licenses are necessary.18
As described in detail in Part IV, the termination of DACA will impose substantial costs
on grantees and their communities. Yet Defendants considered none of this before terminating
DACA. The Termination Memo and Administrative Record contain no references to reliance
interests and no cost evaluation. Defendants ignored any readily obtainable data regarding the
potential impact of termination. See State Farm, 463 U.S. at 43; Fox Television, 556 U.S. at 519
(2009) (holding that agencies must “adduce empirical data that can readily be obtained”).19 The
15 See Ex. 10, ¶ 10(g) (Wong Decl.); Ex. 11 (Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, The Cato Institute, Jan. 18, 2017). 16 See Ex. 12, ¶ 4 (Blackwell-Hawkins Decl., Amazon); Ex. 13, ¶¶ 7-11 (Kalvert Decl., TripAdvisor); Ex. 14, ¶ 8-11 (Igneri Decl., Local Burger); Ex. 15, ¶¶ 4-7 (Tingen Decl., Tingen & Williams); Ex. 16, ¶¶ 7-11 (Schwartz Decl., Univision); Ex. 17, ¶ 7 (Loera Decl., Wash. St. Univ.); Ex. 18, ¶¶ 5-10 (Heatwole Decl., Univ. of Mass.); Ex. 19, ¶¶ 3-6 (Monroe Decl., Wash. Dept. of Ecology); Ex. 20, ¶¶ 3-6 (Kaplan Decl., Wash. Dept. of Social and Health Serv.); Ex. 21, ¶¶ 3-6 (Jones Decl., Wash. Office of Treasurer); Ex. 22, ¶¶ 3-6 (Conly Decl., Wash. Dep’t of Veterans Affairs). 17 See, Ex. 18, ¶¶ 5-7 (Heatwole Decl., U. Mass); Ex. 24, ¶¶ 12-13 (Clark et al. Decl., Mass. State Univ.); Ex. 25, ¶¶ 15-38 (Herbst Decl., Univ. of Conn.); Ex. 26 ¶¶ 6-13 (Pachis Decl., Eastern Conn. St. Univ.); Ex. 27, ¶¶ 4-7 (Hardwick Decl., Univ. of the District of Columbia). 18 See Ex. 59, ¶ 12 (Rosado Decl., New York Secretary of State); see also 705 Ill. Comp. Stat. 205/2 (Illinois statute allowing DACA grantees to apply for a license to practice law); Ex. 55, ¶¶ 6-7 (Bzdyra Decl., CT DMV); Ex. 56, ¶¶ 6-10 (White Decl., IL SOS); Ex. 57, (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements); Ex. 58, (Attorney General Advisory Letter to Acting Commissioner K. Eric Boyette, Jan. 17, 2013); ORS 807.021 (Oregon Revised Statutes requiring proof of legal presence to issue, renew, or replace driver license). 19 Several studies were available at the time of Termination discussing in detail the potential impact including: Ex. 28 (Tom Wong, et al., DACA Grantees’ Economic and Educational Gains Continue to Grow, Center for American Progress, Aug. 28, 2017); Ex. 29 (Tom Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress, Oct. 18, 2016); Ex. 11 (Ike Brannon, The Economic and
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testimony of senior DHS officials confirms that Defendants did not analyze the potential costs of termination. According to DHS officials, the decision to terminate DACA resulted from two and a half hours of meetings and a few follow-up conversations.20 Defendants did not consult key senior officials at U.S. Citizenship and Immigration Services (“USCIS”) or Immigration and Customs Enforcement (“ICE”) on important aspects of the termination during the decisionmaking process.21 Moreover, Defendants failed to consult many key stakeholders, including states and localities (other than Texas), DACA grantees and their employers, colleges and universities, students, patients, military unit commanders, and family members.22 Defendants did not confer with any economists about the potential impact on the economy and even failed to consider readily-available data from other agencies.23 With regard to the most obvious outcomes, such as loss of employment by grantees, at least one DHS official agreed that the policy was “not wise.”24
Finally, Defendants failed to consider any alternatives to mitigate damage to the hundreds of thousands of people relying on the program. When reversing a prior policy, agencies have an obligation to consider “reasonably obvious alternatives,” and when rejecting those alternatives, they “must give reasons for rejection.” Yale-New Haven Hosp., 470 F.3d at 80 (quoting N. Y. Council v. Fed. Labor Relations Auth., 757 F.2d 502, 508 (2d Cir. 1985)). The Termination
Fiscal Impact of Repealing DACA, the Cato Institute, Jan. 18, 2017); Ex. 30 (Nicole Prchal Svajlenka, et. al., A New Threat to DACA Could Cost States Billions of Dollar, Center for American Progress, July 21, 2017); and Ex. 31 (Misha Hill and Meg Wiehe, State & Local Contributions of Young Undocumented Immigrants, Institute on Taxation & Economic Policy, April 25, 2017). 20 See Ex. 3, McCament Dep. 72:22-75:17, 124:22-128:16, 130:2-132:7; Ex. 32, Hamilton Dep. 98:6-113:15. 21 See, e.g., Ex. 34, Miller Dep. 99:12-19, 100:3-7, 204:1-21, 207:13-20; Ex. 35, Neufeld Dep. 138:13-139:6. 22 See Ex. 33, Nealon Dep. 165:3-168:18; Ex. 3, McCament Dep. 240:20-242:5; Ex. 35, Neufeld Dep. 187:6-188:8; Oct 3 Sen. Jud. Oversight Hearing Transcript at 39. 23 See Ex. 33, Nealon Dep. 168:3-168:18; Ex. 32, Hamilton Dep. 213:14-215:15; Ex. 34, Miller Dep. 102:24-108:8. 24 Ex. 3, McCament Dep. 15:18-24.
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Memo and Administrative Record contain no evidence that Defendants considered different alternatives for winding down the DACA program, or for changing the operation of the program to address its alleged legal flaws. Defendants even ignored the obvious alternative of allowing current grantees to continue receiving deferred action. Defendants’ actions are arbitrary and capricious because they did not consider any reasonably available alternatives to mitigate the harm to hundreds of thousands of grantees—as well state and local governments, employers, and universities—who rely on the program.
An Executive action that has the potential to disrupt millions of lives calls for “extensive study and analysis.” United States. v. U.S. Dist. Court for the N. Dist. of Cal., No. 17-72917, N.4 (9th Cir. 2017) (Watford, J. dissenting). However, Defendants failed to conduct “even [a] minimal level of analysis,” and altogether failed to acknowledge the vast and profound impacts of their action. Encino Motorcars, 136 S. Ct. at 2120. Defendants’ failure to “examine the relevant data” during the decision-making process renders their decision to terminate DACA arbitrary and capricious. Long Island Head Start, 460 F.3d at 257-258 (citing State Farm, 463 U.S. at 43).
Defendants’ Explanations for Termination Are Pretextual and Their True Basis for Termination Is Impermissible. As stated above, an agency must “cogently explain” the “true basis” for its actions. State Farm, 463 U.S. at 48-49; Public Citizen, 653 F.Supp. at 1237 (citing New England Coal. on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984). An agency’s reasoning is pretextual where the agency makes statements contradicting its purported rationale. Here, administration officials made statements that conflict with and undermine Defendants’ proposed justifications for terminating DACA. While the Termination Memo cites the risk of litigation as a reason for terminating the DACA program, an administration official
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involved in the decision-making process noted that an agency acting on the basis of litigation risk was the “craziest policy you could ever have in a Department.”25 In addition, on September 5, 2017, the same day DHS issued the Termination Memo, President Trump tweeted, “Congress now has 6 months to legalize DACA . . . If they can’t, I will revisit the issue.”26 The President’s promise to “revisit the issue” implies that the Executive has the authority to extend DACA, an implication inconsistent with Defendants’ statement that DACA was “effectuated…without proper statutory authority” and that the program was “an unconstitutional exercise of authority.”27
In fact, Defendants’ contradictory rationales for terminating DACA masked the “true basis” for their decision—animus toward Latinos, who make up 93% of DACA grantees. Where an agency rests its action on an “impermissible basis,” including invidious discrimination against a particular race or group, it abuses its discretion. Wong Wing Hang v. I.N.S., 360 F.2d 715, 71819 (2d. Cir. 1966); Bertrand v. Sava, 684 F. 2d 204, 212-213 (2d. Cir. 1982); Haitian Ctrs. Council, Inc. v. Sale, 823 F.Supp. 1028, 1048-1049 (E.D.N.Y. 1993) (holding that Attorney General abused her discretion by detaining Haitians “solely because they are Haitian and have tested HIV-positive.”).
Statements by senior officials leading up to the termination of DACA demonstrate that their action rested on invidious discrimination towards Latinos. First, in announcing his presidential campaign, candidate Trump promised to eliminate DACA and compared Mexican
25 Ex. 32, Hamilton Dep. 207:20-208:11. Indeed, a senior cabinet official has made similar statements when discussing the risk of litigation in response to a recommendation to reduce the size of certain public lands, stating, “I don’t yield to public pressure. Sound policy is not based on threats of a lawsuit. It’s doing what’s right.” Ex. 36 (Juliet Elperin, Zinke backs shrinking more national monuments and shifting management of 10, THE WASHINGTON POST, Dec. 5, 2017). 26 Ex. 37 (Donald J. Trump (@realDonaldTrump), Twitter, Sept. 5, 2017, 5:38 PM). 27 Sessions Letter, AR 251; DACA Termination Memo, AR 252-55.
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immigrants to criminals and rapists, stating: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.”28 Subsequently, in announcing the termination of DACA, President Trump’s appointed Attorney General used the same rhetoric and falsely associated DACA and its grantees with “crime, violence, and even terrorism.”29
Defendants’ use of racial code words to discuss issues related to immigration and the continuation of DACA provide additional evidence of their discriminatory animus towards Latinos. The campaign of then-candidate Trump and President Trump’s Administration once installed have repeatedly invoked this strategy and used code words such as “criminals,” “drug dealer,” “thugs,” and “cartel,” in reference to Latino immigrants.30 For example, less than four weeks before the termination of DACA, President Trump made a speech featuring racially coded language about undocumented individuals who cross the Mexican border. President Trump lumped together all such individuals, including DACA grantees, and characterized the entire collective as involved in “gangs,” “cartels” and “trafficking.”31 He further referred to these individuals as “animals” and stated that America needed to be “liberat[ed]” from them.32 On a
28 Ex. 38, ¶ 68 (Pitti Decl.); See also Id. at ¶ 66 (Candidate Trump’s description of men who used anti-immigrant language, and beat a sleeping Latino man, as “passionate” people who “love their country”), and ¶¶ 110, 128, 134 (Candidate Trump referred to Latinos as “bad hombres,” swore he would construct a border wall to keep Mexicans out of the United States, and falsely attributed American public health crises to Mexican immigration). These promises and false accusations were consistent staples in the rhetoric that Latinos engage in fraud and pose a threat to national security and public safety. See Id. at ¶¶ 13, 97, 145. 29 Ex. 39 (DOJ, Attorney General Sessions Delivers Remarks on DACA, Prepared Remarks, Sept. 5, 2017); see also Ex. 38, ¶¶ 22, 134 (Pitti Decl.) (noting Sessions previously associated Mexicans immigrants with “filth”). 30 Ex. 38, ¶¶ 14, 63 (Pitti Decl.). 31 Id. at ¶ 120 (Pitti Decl.). 32 Id. at ¶¶ 63, 120. Further, President Trump, during both his candidacy and presidency, has repeatedly equated Latino immigrants as terrorists, enemies of the United States, and un-American. This negative language describing
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separate occasion, President Trump grouped Mexican individuals with inanimate objects such as cars coming across the borders, and referred to both collectively as “vomit.”33 Attorney General Sessions has similarly described Mexicans as “filth.”34
In short, Defendants’ claim that they terminated DACA based on litigation risk or the program’s unlawfulness is implausible given that Defendants previously concluded that DACA is legal and knew that litigation was certain to result from the abrupt cancellation of the program. Ample evidence of Defendants’ animus towards Latinos demonstrates that their stated reasons for terminating DACA are not only implausible, but also pretextual. Because rendering decisions based on invidious discrimination is ipso facto an abuse of discretion, Defendants acts’ violated the APA.
Defendants’ Termination of DACA Violated Equal Protection. The Fifth Amendment to the United States Constitution requires the United States to provide equal protection of the laws to all persons. Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n. 2 (1975) (“[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. This Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” (citations and internal quotation marks omitted; alteration in original)); Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) (holding that the Fifth Amendment’s Due Process Clause contains an equal protection safeguard). Pursuant to
Latinos is contrasted with positive language Defendant Trump has used for Whites, such as “‘good Americans,’ ‘tax payers,’ ‘hard-working citizens, ‘members of our communities,’ and the like.” 33 Id. at ¶ 133 (Pitti Decl.). 34 Id. at ¶¶ 22, 134 (Pitti Decl.). In addition, President Trump terminated DACA less than two weeks after pardoning former Maricopa County Sheriff Joe Arpaio, a man convicted for racially profiling Latinos in defiance of court orders.
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that guarantee, government action that is motivated by animus toward individuals—whether such animus is based on race, ethnicity, national origin or any other ground—is unconstitutional. See Romer v. Evans, 517 U.S. 620, 632 (1996); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Defendants’ termination of DACA violates Equal Protection because it was motivated by animus toward Latinos and Defendants’ stated reasons for their action are baseless and illogical.
It is axiomatic that governmental action borne out of “a bare . . . desire to harm a politically unpopular group” cannot constitute equal protection of the laws. Moreno, 413 U.S. at 534. Although “discriminatory intent is rarely susceptible to direct proof,” Mhany Mgmt v. Cty. of Nassau, 819 F.3d 581, 606 (2d Cir. 2016), occasionally the record contains unambiguous evidence of the decisionmaker’s animus. For example, in Moreno, the federal government amended the Food Stamp Act in order to render unrelated individuals who live together ineligible for food stamps. Id. at 530. The Supreme Court determined the law unconstitutional because the scant legislative record demonstrated that the amendment was intended to target “hippies” and “hippie communes” to ensure they could not obtain food stamps. Id. at 534. Similarly, in Romer, the Court analyzed a state constitutional amendment that stripped homosexual individuals, but no other group, of the ability to obtain legal protections against discrimination. When invalidating the amendment, the Court found its “sheer breadth is so discontinuous with the reasons offered for it that [it] seems inexplicable by anything but animus toward the class it affects.” Romer, 517 U.S at 632.
As in Moreno, this case is one of those rare instances in which the record reflects unambiguous evidence of Defendants’ animus towards Latinos. See supra Part I.C. (describing evidence of Defendants’ animus toward Latino individuals). Further, similar to Romer, the “sheer breadth” of Defendants’ termination of DACA—a wholesale stripping of eligibility for
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employment and imposition of substantial obstacles to obtaining higher education for nearly
800,000 individuals, without exception—despite the significant reliance interests for those
individuals, their U.S. citizen children, and Plaintiff States and their residents, “seems
inexplicable by anything but animus towards the class it affects.” See Romer, 517 U.S. at 632.
Because animus can never constitute a legitimate state interest, see id. at 634-35, Defendants’
termination of DACA is unconstitutional.
Even if the record did not contain ample evidence of Defendants’ animus, the termination
of DACA would still violate equal protection principles. “In the ordinary case, a [challenged
policy] will be sustained if it can be said to advance a legitimate government interest,” meaning
the policy is “narrow enough in scope and grounded in a sufficient factual context for [a court] to
ascertain some relation between the classification and the purpose it served.” Romer, 517 U.S. at
632-33; see also Heller v. Doe, 509 U.S. 312, 324 (1993) (a policy “fails rational-basis review”
when it “rests on grounds wholly irrelevant to achievement of the [stated] objective”) (citation and internal quotations omitted). Thus, even under the most deferential form of scrutiny,35 courts
must analyze government action to ensure it is rationally related to a legitimate governmental
interest. Romer, 517 U.S. at 632-33; Moreno, 413 U.S. at 533. Defendants’ stated bases for
35 The Supreme Court has not directly addressed the level of scrutiny that applies to an equal protection claim based on discrimination against a suspect class in the immigration context. See, e.g., Kandamar v. Gonzalez, 464 F.3d 65, 72 (1st Cir. 2006) (citing Nguyen v. INS, 533 U.S. 53, 60-61 (2001)). In Nguyen, the Court upheld a statute that made it more difficult for a child to claim U.S. citizenship if the child was born abroad and out of wedlock to a U.S. citizen father as compared to a U.S. citizen mother. 533 U.S. at 60-61. The Court concluded that the gender-based classification served an important government objective and the discriminatory classification was substantially related to the achievement of that objective. Id. at 60. Although the Nguyen Court applied heightened scrutiny to assess the law, it stated that “[g]iven [the Court’s] determination [about the statute at issue], we need not decide whether some lesser degree of scrutiny pertains because the statute implicates Congress’ immigration and naturalization power.” Id. at 61 (citations omitted). Here, Plaintiff States do not concede that Congress’ immigration and naturalization power is only subject to the most deferential form of scrutiny in all circumstances. This is especially so given that courts have acknowledged that Latinos are a suspect class for equal protection analysis, and thus entitled to heightened scrutiny. Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983). Rather, Plaintiff States only argue that Defendants’ animus toward Latinos—as evidenced in the record—fails even the most deferential Equal Protection test.
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terminating DACA fail even this highly deferential standard because there exists no rational
relationship between means and ends. Specifically, Defendants have asserted that they
terminated DACA to avoid “the prospect of continued litigation”36 because DACA is unlawful
and unconstitutional.37 But no court has held that DACA is illegal, and prior to its recent about-
face, the government consistently affirmed DACA’s legality.38 Further, Defendants were on
notice that abruptly terminating DACA would trigger this very lawsuit, thus destroying any
argument that ending DACA would somehow avert litigation.39 In addition, government officials
involved in the termination of DACA acknowledge that litigation risk is not a reasonable basis
for directing a sea change in government policy.40 The irrationality of the decision to terminate is
particularly stark given the stakes for the Plaintiff States and their residents. See infra Part IV
(describing irreparable harm).
Moreover, the Supreme Court’s reasoning in Plyler v. Doe, 457 U.S. 202 (1982) cautions
that this Court should be especially skeptical of Defendants’ actions because they are harming a
group of individuals who “are present in this country through no fault of their own,” Id. at 226.41
Indeed, a “special constitutional sensitivity” attaches where, as here, a government action
36 Mem. Of Law in Supp. Of Defs.’ Mtn. to Dismiss at 18, ECF 71-1. See also Termination Memo, AR 252-55 (citing litigation risk to support decision). 37 Termination Memo, AR 252-55. 38 See, e.g., U.S. DOJ, Office of Legal Counsel, “Department of Homeland Security’s Authorization to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others” (Nov. 19, 2014), 2014 WL 10788677; Br. Of U.S. at 31-37, Ariz. Dream Act Coal. V. Brewer, No. 15-15307 (9th Cir. Aug. 28, 2015), ECF. 62; Br. Of U.S., United States v. Texas, No. 15-674 (U.S. Mar. 1, 2016), 2016 WL 836758 at *2-9, 4264. 39 See Ex. 40 (Ltr. from Att’y Gen. Xavier Becerra et al. to President Donald Trump, at 3, July 21, 2017). 40 See Ex. 32, Hamilton Dep. At 207:20-208:11 (Oct. 20, 2017) (responding to whether “DHS ha[s] a policy to deal with litigation risk” including “threats to sue by state or local officials” by stating, “No. And that sounds like the craziest policy you could ever have in a department. You could never do anything if you were always worried about being sued.”); accord Ex. 33, Nealon Dep. At 28:5-7, 154:23-155:11 (Oct. 13, 2017) (unaware, in 33 years of federal government service, of any policy besides DACA that was rescinded due to litigation risk). 41 See also Ex. 10, ¶ 5 & n.6 (Wong Decl.) (“The average age that [a DACA recipient] first arrived in the U.S. is 6.5,” during “kindergarten or first grade.”).
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punishes individuals for the illegal actions of their parents and will have life-altering consequences. Id. at 226; see also Kadrmas v. Dickinson Pub. Schools, 487 U.S. 450, 459 (1988) (affirming that denying a public education to the children of illegal aliens penalized them because of their parents’ illegal conduct and they would suffer adverse, life-long consequences). Thus, in Lewis v. Thompson, 252 F.3d 567, 591 (2d Cir. 2001), the Second Circuit held that a federal statute that denied automatic Medicaid coverage to children born in the U.S. to undocumented aliens violated Equal Protection. Key to the holding was the Second Circuit’s finding that the Medicaid provision penalized children for their mother’s conduct and triggered significant and enduring consequences to the children themselves. Id.; see also Nat’l Law Ctr. on Homelessness and Poverty v. N.Y., 224 F.R.D. 314, 321-22 (E.D.N.Y. 2004) (denying state’s motion to dismiss equal protection claim asserted by homeless children that they were not receiving the same educational benefits as children with homes; “[d]efendants appear to be penalizing these homeless children because of the misfortunes or misdeeds of their parents” and “the penalty [risks] significant and ensuring consequences” to the homeless children.)
All DACA grantees were brought to this country as children, through no choice or fault of their own, and thus have the same blameless quality identified by the Supreme Court and Second Circuit.42 As in Lewis, depriving these young adults of the ability to obtain any employment or imposing substantial burdens on their ability to attend school both penalizes them for the actions of their parents and exposes them to “significant and enduring adverse consequences.” Lewis, 252 F.3d at 591.
42 See Memorandum from Janet Napolitano, Sec’y of Homeland Security, to Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Servs., Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children, June 15, 2012, AR 1-3.
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In sum, Defendants’ decision to terminate DACA was motivated by animus towards Latinos and is therefore unconstitutional. Defendants’ termination of DACA is also unconstitutional because there exists no rational relationship between that policy and their stated objectives. This irrationality is especially problematic given the blameless nature of the class affected. Thus, Plaintiff States have shown a likelihood of success on their claim that Defendants’ termination of DACA violates Equal Protection.
Defendants’ Termination of DACA Violates the Procedural Requirements of the APA and RFA. In addition to its substantive defects, the termination of DACA is procedurally invalid. By terminating DACA without allowing for notice and comment or conducting a regulatory flexibility analysis, Defendants violated the APA and RFA. Rules created by federal agencies are generally subject to notice and comment. APA requirements “are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.” United States v. Lott, 750 F.3d 214, 219 (2d Cir. 2014) (internal quotation and citation omitted). The APA requires notice of proposed agency rules and an opportunity to comment for all “legislative” or “substantive” rules,43 exempting only “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A); Chrysler Corp. v. Brown, 441 U.S. 281, 302–303 (1979); White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993). In other words, notice and comment rulemaking applies to all rules other than those that describe “an agency’s intended course of
43 While the terms “legislative” and “substantive” are used interchangeably in this context, Plaintiff States use the term “legislative” consistent with the preference identified by the Second Circuit. White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993).
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action” (general statements of policy), “its tentative view of the meaning of a particular statutory term” (interpretative rules), or “internal house-keeping measures organizing agency activities” (procedural rules). Perales v. Sullivan, 948 F.2d 1348, 1354 (2d Cir. 1991) (internal citation and quotations omitted). Notice and comment is required whenever agency action does not fall within these specific exemptions, which “must be narrowly construed.” United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989).
When the APA’s notice and comment requirements apply, the RFA further requires a regulatory flexibility analysis to assess a prospective rule’s impact on small businesses, nonprofits, and small governmental jurisdictions, unless the head of the agency certifies that the rule will not affect small entities.44 5 U.S.C. §§ 601(2), 603(a) 604(a), 605(b); see also U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 42 (D.C. Cir. 2005) (FCC should have provided notice of a rule under 5 U.S.C. § 553 (Rulemaking), so the RFA’s requirements were applicable).
In this case, the termination does not fall under the APA’s exemptions for interpretive or procedural rules, because it affects existing rights and interests in profound ways. The termination is not exempt as a general statement of policy because it binds the discretion of DHS and its officials. Moreover, the substantial impact of the rule has engendered significant public interest, which weighs in favor of public input through notice and comment. Yet Defendants terminated DACA after a few brief meetings and without the benefit of input and analysis from
44 The termination directly affects small entities, in that it prohibits them from continuing to employ DACA grantees. See Aeronautical Repair Station Ass’n v. F.A.A., 494 F.3d 161, 177–78 (D.C. Cir. 2007) (a rule that required employees to undergo drug and alcohol testing “directly affected” contractors and subcontractors, not just primary employers). But absent this direct effect, the DHS Secretary would have been required to certify, by publication in the Federal Register, that the rule would not have a significant economic impact on a substantial number of small entities, along with a factual basis for such certification. See 5 U.S.C. § 605(b). The DHS Secretary issued no such certification here.
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numerous stakeholders. Under the APA and the RFA, a more deliberative and public process was required.
The Termination Changed Existing Rights and Interests. Whether a rule is “legislative” rather than “interpretive” or “procedural” turns on whether the rule “creates new law, rights, or duties in what amounts to a legislative act.” Sweet v. Sheahan, 235 F.3d 80, 91 (2d Cir. 2000) (quoting White, 7 F.3d at 303). Thus, where a rule “change[s] existing rights and obligations,” it is a legislative rule. Donovan v. Red Star Marine Servs., Inc., 739 F.2d 774, 783 (2d Cir. 1984) (citing Lewis-Mota v. Sec’y of Labor, 469 F.2d 478, 482 (2d Cir.1972) (internal citations omitted). “A procedural rule, by contrast, ‘does not alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.’” Time Warner Cable Inc. v. F.C.C., 729 F.3d 137, 168 (2d Cir. 2013) (quoting Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 5-6 (D.C. Cir. 2011)). And an “interpretive” rule “merely ‘clarif[ies] an existing statute or regulation.’” N.Y. State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128, 131 (2d Cir. 2001) (internal citations omitted). Here, the rule terminating DACA significantly altered the rights and interests of hundreds of thousands of DACA grantees and DACA-eligible individuals. Current grantees will lose deferred status and work authorization benefits when their terms expire and they are precluded from the opportunity to renew. DACA grantees were repeatedly assured that their requests for renewal of their lawful presence would be considered if they followed the rules of the DACA program.45 As Former Secretary of Homeland Security John Kelly affirmed, once an individual
45 See Napolitano Memo, June 15, 2012, AR 1; Ex. 41 (USCIS Help Center, DACA FAQs); Ex. 42 (USCIS Help Center, How will USCIS evaluate my request for renewal of DACA); Ex. 43 (USCIS DACA Approval Notice).
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was granted deferred prosecution under DACA, he or she was granted a “commitment … by the government.”46 Walking away from that “commitment” curtails DACA grantees’ existing rights and deeply affects their interests. The termination also categorically disallows all applications for deferred action for all those who satisfy DACA’s established criteria. Prospective grantees have lost not only the ability to apply for deferred action based on that criteria, but also access to work authorization, social security cards, advance parole (under 8 U.S.C. § 1182(d)(5)), and numerous collateral benefits. Thus, the rule does not fall under the interpretive or procedural exemptions of the APA.
The Termination Binds the Discretion of DHS and Its Officials. The termination is more than a “general statement of policy” because it binds DHS discretion. To determine whether the exemption to notice and comment applies, courts look to whether a rule binds the discretion of the agency and its officials. See Gen. Elec. Co. v. E.P.A., 290 F.3d 377, 382–83 (D.C. Cir. 2002) (notice and comment is required when a rule “expresses a change in substantive law or policy (that is not an interpretation) which the agency intends to make binding, or administers with binding effect.”) (internal quotation and citation omitted). The “critical factor” in distinguishing a legislative rule from a general statement of policy is “the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” Municipality of Anchorage v. United States, 980 F.2d 1320, 1324 (9th Cir. 1992) (quoting Mada–Luna v. Fitzpatrick, 813 F.2d 1006, 1013-14 (9th Cir.1987)). Thus, “cabining of an agency’s prosecutorial discretion” rises to the level of a legislative rule where it requires agency
46 Ex. 44 (Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration, Politico, Mar. 29, 2017).
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officials to take a particular approach. Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987); see also Bellarno Intern. Ltd. v. Food & Drug Admin., 678 F.Supp. 410, 414 (E.D.N.Y. 1988) (an alert that automatically required detention of certain pharmaceuticals imported into the U.S. was binding on both the government and importers and thus subject to notice and comment).
The Termination Memo eliminates DHS’s discretion to grant new DACA applications, to renew existing benefits, or to authorize advance parole. From now on, DHS “[w]ill reject all DACA initial requests … filed after the date of this memorandum,” “[w]ill reject all DACA renewal requests” outside of a strict wind-down period which has already ended, “[w]ill not approve any new Form I-131 applications for advance parole,” and “[w]ill administratively close all pending Form I-131 applications for advance parole” by DACA grantees (emphasis added).47 This type of “mandatory, definitive language is a powerful, even potentially dispositive, factor” in determining whether a rule is substantive. Young, 818 F.2d at 947. In fact, DHS officials currently retain no discretion to fulfill any DACA-related requests, whether for initial or renewal applications or for advance parole. Cf. Dimaren v. Immigr. and Naturalization Serv., 398 F.Supp. 556, 559 (S.D.N.Y. 1974) (rule was exempt from notice and comment because agency officials were free to give an immigration policy memorandum “whatever weight [they] deemed appropriate,” so it did not bind their discretion). Moreover, DACA grantees and DACA-eligible individuals are bound in that they cannot meaningfully request deferred action or advance parole under the framework that they could under DACA.
47 DACA Termination Memo, AR 252-255.
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Unlike the DACA termination, deferred action programs usually end when circumstances render them no longer necessary (such as new statutory protections coming from Congress).48 In one circumstance in which the government attempted to eliminate a prosecutorial discretion program for a class of non-citizens, however, a federal court determined that notice and comment rulemaking was required under the APA. See Parco v. Morris, 426 F. Supp. 976, 984-985 (E.D. Pa. 1977). In Parco, the federal government attempted to terminate a policy that granted extended stay in the U.S. for individuals awaiting a certain type of visa. Because this decision stripped agency officials of discretion to offer relief, the court found that it was a “flat rule of eligibility” rather than a “general statement of policy.” Id. The DACA termination allows for even less discretion than that in Parco, as the Parco termination explicitly left in place discretion to grant relief in “compelling” cases, id. at 981, while the DACA termination flatly states that DACA requests will be rejected. Parco distinguished the Second Circuit’s decision in Noel v. Chapman, 508 F.2d 1023, 1029 (2d Cir. 1975), which upheld a different aspect of the same termination decision against an APA challenge. In Noel, the challenged aspect of the policy served as only a “guideline” for agency discretion, left relevant determinations in the “sole discretion” of agency officials, and contained an explicit “hardship” exception.” Id. at 1030. The difference between Noel and Parco is analogous to the difference between the creation of deferred action policies (such as DACA) and the DACA termination. Deferred action policies for groups of people provide guidance to agency officials in the field to inform their exercise of discretion in individual cases.49 The DACA termination, on the other hand, mandates that agency
48 See Ex. 1, ¶ 76 (Wadhia Decl.). 49 See Ex. 1, ¶ 51, 53 (Wadhia Decl.).
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officials reject all requests of a certain type. Thus, the termination cannot be characterized as a statement of policy exempt from notice and comment.
A Strong Public Interest in the Treatment of DACA Grantees Weighs in Favor of Notice and Comment. Courts also recognize that the question of whether the impact of a rule is substantial enough to trigger notice and comment is ‘“one of degree’ depending upon ‘whether the substantive effect is sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA.’” Elec. Privacy Info. Ctr., 653 F.3d at 5-6 (internal citations omitted). A strong public interest in a rule thus weighs in favor of a finding that the rule is legislative in nature, and therefore subject to notice-and-comment rulemaking. Hoctor v. U.S. Dept. of Agric., 82 F.3d 165, 171 (7th Cir. 1996) (“The greater the public interest in a rule, the greater reason to allow the public to participate in its formation.”). There is a strong public interest in the protection of the DACA program, not only from hundreds of thousands of DACA grantees themselves, but also from states, colleges, universities, businesses, non-profits, cities and towns, school districts, family members, and taxpayers who have invested significant resources and benefitted from the DACA program. All of these individuals and entities will be significantly harmed when hundreds of thousands of young people lose the opportunities and security that DACA has provided. Accord infra Part IV (cataloguing the irreparable harm that Plaintiff States and their residents will suffer if the termination is not enjoined). This substantial impact merits the opportunity for notice and comment by those affected. Thus, Plaintiff States are likely to succeed on their claim that Defendants violated the APA and RFA by foregoing notice and comment procedures and a regulatory flexibility analysis.
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PLAINTIFF STATES SATISFY THE REMAINING REQUIREMENTS FOR INJUNCTIVE RELIEF
Plaintiff States also satisfy the remaining requirements of the preliminary injunction standard, as the States will suffer irreparable harm without preliminary relief, preliminary relief is in the public interest, and the balance of equities weigh in favor of the States.
Absent an Injunction, the States Will Suffer Irreparable Harm. Plaintiff States and their residents will suffer irreparable harm absent injunctive relief. Winter, 555 U.S. at 22.50 Plaintiff States’ demonstration that they are likely to succeed on the merits of their equal protection claim establishes that they will incur irreparable harm. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“the alleged violation of a constitutional right [] triggers a finding of irreparable harm”); see also Statharos v. N.Y. City Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”) (citation omitted). Further, whether a party has been “depriv[e]d of a procedural protection to which they are entitled” under the APA, as Plaintiff States were here, can be significant when finding irreparable harm; if this were not the case, “section 553 [rulemaking] would be a dead letter.” N. Mariana Islands v. United States, 686 F.Supp.2d 7, 17-18 (D.D.C. 2009) (citing Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002)). The threat of harm to Plaintiff States is imminent. See N. Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 660 (2d Cir. 2015), cert. dismissed sub nom, Allergan PLC v. N. Y. ex. rel. Schneiderman, 136 S. Ct. 581 (2015) (quoting Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 153 (2d Cir.1999)) (internal quotation marks omitted) (irreparable
50 As detailed for this Court in Batalla Vidal Plaintiffs’ Memorandum of Law in support of their Motion for Preliminary Injunction, the termination of DACA will also cause irreparable harm to DACA grantees and organizations that serve them.
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harm is “injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages”). Between September 5, 2017 and March 4, 2018, 122 people per day have lost, or will lose, their DACA benefits; and “beginning on March 5th, 2018, every work day for the following two years…approximately 1,400 dreamers will lose their work permits and be subject to deportation.”51 This imminent loss of work and potential deportation of DACA grantees will cause irreparable injury to the States. The termination will negatively impact the States’ child welfare systems as the U.S. citizen children of DACA grantees may be placed in the States’ care as a result of their parents inability to remain legally in the United States.52 Increased fear of deportation will also harm public safety, since without DACA status, DACA grantees will be less likely to report violence, abuse, crimes or other harms to the community.53 The States will also suffer concrete and irreparable injury, as regulators and licensors, employers, and providers of education and health care systems.54 State and local economies will also be harmed. These harms will be irreversible absent the granting of preliminary relief during the pendency of this litigation.
51 See Ex. 45 (Tom Jawetz and Nichole Prchal Svajlenka, Thousands of DACA Recipients Are Already Losing Their Protection From Deportation, Nov. 9 2017); Oct. 3 S. Jud. Transcript 2017 WL 4410019 at 12. 52 See Ex. 10, ¶¶ 26-27 (Wong Decl.); Ex. 46, ¶ 20 (Zayas Decl.); Ex. 47, ¶¶ 9-11 (Rubin Decl.); Ex. 48, ¶¶ 3, 8 (Morales Decl.); Ex. 6, ¶ 20 (Cuevas Decl.); Ex. 111, ¶ 9 (Mendez Decl.); Ex. 49, ¶ 7 (Nicolas Decl.); Ex. 50, ¶ 4 (G.L. Decl.); See State v. Trump, 2017 WL 4639560, at *36 (D. Haw. Oct. 17, 2017), stayed pending appeal---S.Ct.--, 2017 WL 5987435 (Mem)(“Plaintiffs identify a multitude of harms that are not compensable with monetary damages and that are irreparable—among them, prolonged separation from family members.”); Int’l Refugee Assistance Project v. Trump, 2017 WL 4674314, at *37 (D. Md. Oct. 17, 2017), stayed pending appeal—S.Ct.—, 2017 WL 5987435 (Mem)(“Without an injunction, Plaintiffs will be subjected to imminent and irreparable harm as a result of the prolonged separation from their family members caused by the Proclamation”). 53 See Ex. 10, ¶ 30 (Wong Decl.); Ex. 51, ¶ 10 (Graham Decl., DE Comm. Legal Aid Soc.); Ex. 52, ¶ 15 (Ambrosino Decl., City of Chelsea, MA); Ex. 53, ¶ 16 (Suarez-Orozco Decl.). 54 See Ex. 10, ¶¶ 37-100 (Wong Decl.); Ex. 54, ¶¶ 22-41, 43-44, 46 (Ku Decl.).
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Harm to the States’ Regulatory and Licensing Schemes.
The termination will require a shift in the States’ regulatory and licensing schemes, as many
States will have to devise alternate regulations to address the thousands of DACA grantees who
have obtained licenses, social security cards, and insurance because of their status under DACA.55 For example, the Board of Regents in New York, which permanently adopted
regulations to allow DACA grantees to apply for teacher certification and professional licenses,
including nursing licenses, will likely have to adjust or revoke these regulations due to the termination.56 These shifts will create budgetary uncertainty,57 and impair the States, along with their towns and counties, from making informed decisions going forward.58
Harm to State Employers.
As DACA benefits expire, the States will lose the services of highly qualified employees
in government who provide a diverse range of services to the States’ residents, including faculty at State universities, nurses, information technology specialists, and public safety officers.59 The
States will lose the substantial investment that they have made in training these individuals, an
investment they will never recoup if DACA is terminated. For example, there is substantial fear
55 See Ex. 55, ¶¶ 6-7 (Bzdyra Decl., CT DMV.); Ex. 56, ¶¶ 6-7 (White Decl., IL SOS); Ex. 57 (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements); Ex. 58 (Attorney General Advisory Letter to Acting Commissioner K. Eric Boyette, Jan. 17, 2013); ORS 807.021 (Oregon Revised Statutes requiring proof of legal presence to issue, renew, or replace driver license). 56 See Ex. 59, ¶5 (Rosado Decl., New York Secretary of State); Ex. 5, ¶ 10 (Naveed Decl.); See also 705 Ill. Comp. Stat. 205/2 (Illinois statute allowing DACA grantees to apply for a license to practice law). 57 For example, in New York State, the March 5, 2018 deadline is just a few weeks before the fiscal year, which runs from April 1 to March 31. See N.Y. Fin. Law § 3. 58 See Ex. 56, ¶ 7 (Decl. White, IL SOS); Ex. 57 (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements); Ex. 60, ¶¶ 5-7 (Decl. Perez); Ex. 7, ¶¶ 7,9 (Decl. Mendes); Ex. 9, ¶ 8 (Decl. Juarez); Ex. 61, ¶ 4 (Decl. Oduyoye); Ex. 62, ¶ 8 (Decl. I.V.); Ex. 63, ¶ 9 (Decl. I.T.). 59 See Ex. 64, ¶¶ 8. 10-14 (Johnson Decl., SUNY); Ex. 59, ¶¶ 8-9 (Rosado Decl., New York Secretary of State); Ex. 19, ¶¶ 4-6 (Monroe Decl., WA DOE); Ex. 18, ¶ 10 (Heatwole Decl., UMass); Ex. 65, ¶¶ 3-6 (Glatt Decl., Columbia Basin College); Ex. 20, ¶¶ 3-6 (Kaplan Decl., WA DSHS); Ex. 21, ¶¶ 3-6 (Jones Decl., WA Office of Treasurer); Ex. 66, ¶¶ 3-6 (Schuh Decl., Anacortes); Ex. 22, ¶¶ 3-6 (Conly Decl., WA DVA); Ex. 67, ¶¶ 3-6 (Garza Decl., Big Ben Community College).
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that the termination will result in Washington State University losing many valuable employees, including research and teaching assistants.60 School districts employ DACA grantees as teachers, and public and community-based healthcare institutions hire DACA grantees who are doctors to work in underserved or high-demand communities.61 In addition to losing the critical skills of these employees, States will incur additional costs to recruit, hire, and train replacements for the DACA grantees, resulting in concrete and irreparable injury. State and local government agencies also will be hampered in their efforts to recruit strong candidates for open positions.62
Harm to State Educational Institutions. In addition to the loss of employees, the States’ educational institutions will lose students and experience a loss of revenue, thus hindering their ability to promote critical programming necessary to fulfill their educational missions.63 DACA grantees who are students—one half of all DACA grantees—may stop attending school in the upcoming semesters due to a loss of funding, fear of deportation, and the inability to work following graduation.64 Without relief from the Court, students will lose scholarships and default on educational loans, impacting both
60 See Ex. 17, ¶ 7 (Loera Decl., WSU). 61 See Ex. 68, ¶ 11 (Carrizales Decl., Teach For America), Ex. 6, ¶¶ 8-11 (Cuevas, Decl., Oregon dentist); Ex. 69, ¶¶ 8,15 (Mostafi Decl., MOIA); see also Ex. 54, ¶¶ 44, 46 (Ku Decl.); Ex. 70, ¶ 10 (Kennedy Decl., City of Newburgh). 62 See Ex. 70, ¶¶ 7-14,17 (Kennedy Decl., Newburgh, NY); Ex. 52, ¶¶ 4-16 (Ambrosino & Bourke Decl., City of Chelsea); Ex. 66, ¶¶ 3-6 (Schuh Decl., Anacortes); Ex. 68, ¶¶ 7-12 (Carrizales Decl., Teach for America). 63 See Ex. 18, ¶¶ 5-7 (Heatwole Decl., UMass); Ex. 24, ¶¶ 12-13 (Clark et al. Decl., MA St. U.); Ex. 25, ¶¶ 15-38 (Herbst Decl., UConn); Ex. 26, ¶¶ 15-24 (Pachis Decl., E. CT St. U.); Ex. 27, ¶¶ 1, 4 (Hardwick Decl., U. DC). 64 For DACA grantees with a spring expiration date an injunction could be the difference between completing their education or dropping out mid-semester. See Oct. 3 S. Jud. Transcript 2017 WL 4410019 at 39. See also Ex. 17, ¶¶ 4-6, 9-11 (Loera Decl., WSU); Ex. 71, ¶ 7 (Milliken Decl. CUNY); Ex. 72, ¶¶ 4-5 (Ballinger Decl., UW); Ex. 18, ¶ 5 (Heatwole Decl., UMass); Ex. 73, ¶ 8 (Jeka Decl., Tufts University); Ex. 25, ¶ 17 (Herbst Decl., UConn); Ex. 74, ¶ 10 (Salgado Decl., CCC); Ex. 75, ¶¶ 8-9 (Wilson Decl., U of I).
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the educational institutions and financial providers in the States.65 For example, Eastern
Connecticut State University stands to lose almost $2 million in payments for the 2017-2018 academic year if DACA students are forced to withdraw as a result of the termination.66 Those
DACA grantees who continue to attend school post-termination will not be able to fully
participate in a variety of activities—including travel sports teams, study-abroad programs,
research projects, scholarly work, and travel opportunities—because they will lack the necessary work and travel authorizations.67 These factors may shrink the capacity of state and private
educational institutions to offer such programming to their entire student body. Public and private universities will be forced to alter recruitment of both students and faculty.68 Finally,
termination will hinder the ability of colleges and universities to advance their commitment to inclusion and diversity.69
Harm to State Healthcare Systems.
Absent an injunction, the termination will also cause immediate and far-reaching consequences to the States’ health care systems.70 The termination will force DACA grantees,
57% of whom obtain their health insurance through their employers, off employer-based
65 See Ex. 4, ¶ 13 (Andrade Decl.); Ex. 76, ¶ 6 (Guevara Decl.); Ex. 7, ¶ 8 (Mendes, Decl.); Ex. 71 ¶ 7 (I.T. Decl.); Ex. 8, ¶¶ 4-5 (Teodoro Decl.); Ex. 6, ¶¶ 7-9, 12-13 (Cuevas Decl.); Ex. 5, ¶¶ 10, 13 (Naveed Decl.); Ex. 77, ¶ 4 (Preciado Decl.); Ex. 61, ¶ 4 (Oduyoye Decl.); Ex. 78, ¶ 6 (Suria Decl.); Ex. 79, ¶ 5 (Torrez Decl.). 66 See Ex. 26, ¶ 18 (Pachis Decl., E. CT St. U.); see also Ex. 80, ¶ 8 (Miranda Decl., CSU); Ex. 81, ¶ 6 (Hagemann Decl.,WOU); Ex. 82, ¶ 6 (Trueblood-Gamble Decl., SOU); Ex. 27, ¶ 6 (Hardwick Decl., U. DC); Ex. 83, ¶ 5 (Alexander Decl., OSU); Ex. 84, ¶ 6 (Ridder Decl., PSU); Ex. 85, ¶ 5 (Galvan Decl., U of O). 67 See Ex. 86, ¶ 6 (Dietz Decl., ISU); Ex. 88, ¶ 7 (Martin Decl., Amherst); Ex. 89, ¶ 8 (Stephens Decl., Mount Holyoke). 68 See Ex. 90, (Locke Decl., Brown); Ex. 64, ¶ 6 (Johnson Decl., SUNY); Ex. 17, ¶¶ 4-6, 9-11 (Loera Decl., WSU). 69 See Ex. 71, ¶ 10 (Milliken Decl., CUNY); Ex. 72 ¶6 (Ballinger Decl, U. of Washington); Ex. 18, ¶ 7 (Heatwole Decl., UMass); Ex. 80, ¶ 9 (Miranda Decl., Colorado State U.); Ex. 25, ¶¶ 19-26, 36-38 (Herbst Decl., UConn.); Ex. 27, ¶ 8 (Hardwick Decl., U. DC); Ex. 91, ¶¶ 7-8, 10 (Straney Decl., U. of Hawaii); Ex. 86, ¶¶ 3, 4, 7, Dietz Decl., Illinois State U.); Ex. 23, ¶¶ 10, 18, 21 (Mathewson & Pareja Decl., Univ. of NM School of Law ); Ex. 83, ¶¶ 6, 8 (Alexander Decl., Oregon State. U.); Ex. 92, ¶¶ 4-5 (Reveley Decl., College of William and Mary). 70 See Ex. 54, ¶¶ 22-42 (Ku Decl.).
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coverage and on to emergency Medicaid or other uncompensated care that is administered or funded by the States.71 Termination will thus place a heavier burden on state public health systems to serve the uninsured.72 For example, Illinois and New York—the two Plaintiff States that will be most impacted—will incur an estimated $20 million and $18 million, respectively, in additional public health costs due to the termination; nationwide the estimate climbs to an increase of more than $343 million in public health costs.73
Moreover, States will have to adjust their healthcare systems to increase access for former DACA grantees.74 For example, both New York and the District of Columbia have Statefunded health care coverage for low-income undocumented immigrants who have received deferred action. However, due to the termination, both States may have to amend their rules to include former DACA grantees in that coverage, which will drain State resources.75 Access to care will also be limited for dependents of DACA grantees, including U.S. citizen children, once DACA grantees lose their work authorizations and private insurance coverage.76 An increased strain on State-funded healthcare programs and a subsequent lack of access to care for the States’ residents is irreparable and imminent harm.
71 See Ex. 10, ¶ 10(e) (Wong. Decl); Ex. 54, ¶ 12 (Ku Decl.). 72 See Ex. 54, ¶ 22 (Ku Decl.) (finding that DACA grantees’ loss of private health insurance will result in higher demand on state-funded emergency Medicaid). 73 See Ex. 54 ¶¶ 29, 33, 42 (Ku Decl.). 74 Ex. 93, ¶¶ 5-6 (Peterson Decl.); Ex. 94, ¶¶ 4-7 (Groff Decl.). See also Fishman v. Paolucci, 628 F. App’x 797, 800 (2d Cir. 2015) (District Court did not abuse its discretion in finding that “the wrongful denial of Medicaid benefits . . . is the type of non-monetary, imminent harm that is properly characterized as irreparable.” (internal citation omitted)); Lewis v. Grinker, 1987 WL 8412, at *5 (E.D.N.Y. Mar. 6, 1987) (finding denial of nonemergency Medicaid coverage to aliens residing in New York State to be irreparable harm). 75 See Ex. 54 ¶¶ 27, 33 (Ku Decl.); Ex. 95, ¶¶ 9-12 (Schlosberg Decl.). 76 See Ex. 54. ¶¶ 11-12,15, 22 (Ku Decl.); Ex. 10, ¶ 26 (Wong Decl.); Ex. 46, ¶ 27 (Zayas Decl.); Ex. 47, ¶¶ 9-11 (Rubin Decl.); Ex. 48, ¶¶ 3, 8 (Morales Decl.); Ex. 6, ¶ 20 (Cuevas Decl.).
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Harm to State and Local Economies. The negative economic impact of the termination will be staggering. The country as a
whole will lose approximately $215 billion over the next ten years in economic contributions by DACA grantees,77 and states and localities will lose an estimated $797 million in tax revenues.78
States also will be deprived of DACA grantees’ critical contribution to vulnerable communities
and key sectors in their states. For example, many DACA grantee students have expressed
interest in—and have in fact obtained—scholarships that require them to work in rural or under-
served communities as physicians, lawyers, and healthcare professionals once they finish their studies.79 They will no longer be able to do so.
More than 90% of DACA grantees are employed, and the program has allowed many
grantees to obtain better paying employment that more closely matches their education and training.80 Moreover, one in twenty grantees has relied on the program to start a business, a rate higher than that of native-born Americans.81 Termination will translate into smaller consumer and legal workforce bases within the States,82 harming the private sector and especially small
77 See Ex. 96, ¶ 14 (Brannon Decl.). 78 See Ex. 97, ¶ 6 (Decl. Essig et al.). 79 See Ex. 98, ¶ 8 (Callahan Decl., Loyola); Ex. 4 ¶ 15 (Andrade Decl.); Ex. 99, ¶ 14 (Roth Decl., UNMHSC); Ex. 100, ¶ 6 (Cuprill-Comas Decl., OHSU); Ex. 101, ¶ 7 (Sullivan Decl., U of V); Ex. 5, ¶ 14 (Decl. Naveed); Ex. 102, ¶ 8 (Perla Decl.); Ex. 9, ¶¶ 12-13 (Juarez Decl.); Ex. 54, ¶ 45 (Ku Decl.). 80 See Ex. 10, ¶ 10-12 (Wong Decl.). 81 See Ex. 10, ¶ 10(g) (Wong Decl.). 82 See Ex. 103, ¶ 7 (Mutty Decl., Starbucks); Ex. 12, ¶ 4 (Blackwell-Hawkins Decl., Amazon); Ex. 13, ¶ 7-11 (Kalvert Decl., TripAdvisor); Ex. 104, ¶ 7-12 (Shively Decl., Microsoft); Ex. 105, ¶ 6-14 (Tracy Decl., Brazilian Workers Center); Ex. 14, ¶ 7-11 (Igneri Decl., Local Burger); Ex. 15, ¶ 4-7 (Tingen Decl., Tingen and Williams); Ex. 106, ¶ 4-6 (Romero Decl., Barrera Legal Group); Ex. 107, ¶ 7 (Greenberg Decl., WP); Ex. 16, ¶ 7 (Schwartz Decl., Univision); Ex. 108, ¶ 5 (Pinsky Decl., ABNY); Ex. 109, ¶ 3-7 (Gooden Decl., VA DAF). The entrepreneurial sector in the States will also suffer, as the data shows that immigrants start their own businesses and file patents at greater rates than native-born Americans. Ex. 11, ¶ 18 (Brannon Decl.)); Ex. 10, ¶¶ 37-100 (Wong Decl.).
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businesses and nonprofits for which the loss of even one qualified and trained employee can cause significant disruption.83
*** Each day during the pendency of this litigation, hundreds of thousands of DACA grantees experience fear and uncertainty in their lives, with significant adverse effects to them and their families, and also to the State employers, universities, hospitals, and communities in which they work and reside. The only way to head off the imminent and irreparable harms that termination on March 5, 2018 will cause is for the Court to grant preliminary relief until this lawsuit is fully resolved. The Public Interest and the Balance of the Equities Weigh in Favor of a Preliminary Injunction. The public interest and the balance of the equities weigh in favor of granting a preliminary injunction.84 Both favor “preventing the violation of a party’s constitutional rights.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d at 1069 (9th Cir. 2014) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.2012)) (brackets omitted). The public interest also favors compliance by agencies with their obligations under the APA and RFA. See N. Mariana Islands, 686 F.Supp.2d at 21 (“the public interest is served when administrative agencies comply with their obligations under the APA”). Here, Plaintiff States have shown that Defendants have violated the constitutional guarantee of Equal Protection, as well as the APA and RFA. In fact,
83 See Ex. 10, ¶¶ 6, 11-12, 18, 23 (Wong Decl.); See also Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017) (“Plaintiffs' inability to obtain drivers' licenses hinders them in pursuing new jobs, attending work, advancing their careers, and developing business opportunities. They thus suffer financial harm and significant opportunity costs. And as we have previously found, the irreparable nature of this injury is exacerbated by Plaintiffs' young age and fragile socioeconomic status”). 84 Plaintiffs choose to address these prongs although this showing may not be necessary. See Actavis at 662, n 38. (“We need not consider the balance of the hardships given that New York has demonstrated a substantial likelihood of success on the merits.”).
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all parties agree that DACA has brought great benefit to DACA grantees, their families, their schools, their employers, their states, and the nation at large.85 Absent an injunction, DACA grantees, the States and their residents will face grave costs. Provisional relief benefits the public interest.
In contrast to the harm faced by the public if DACA is terminated, Defendants will suffer minimal to no harm if the court grants an injunction. A grant of preliminary relief here would require DHS to review additional DACA applications—a mere continuation of current practice as DHS already anticipates that it will be processing applications up to and after March 5, 2018.86 The small cost of processing additional applications pales in comparison to the irreparable harm that will befall Plaintiff States absent an injunction.87 Any delay caused by a preliminary injunction pending adjudication on the merits will not significantly change this calculation nor impede the orderly functioning of the immigration system as a whole. Accordingly, both the balance of the equities and the public interest favor relief.
Indeed, provisional relief preserves the status quo. “In this Circuit, the appropriate status quo in need of preservation is that which was in existence before the [challenged conduct] occurred.” Hoffman ex rel. Nat’l Labor Relations Bd. v. Inn Credible Caterers, Ltd., 247 F.3d 360, 369 (2d Cir. 2001). Plaintiff States allege that the termination is unlawful, and an injunction would preserve the status quo during the pendency of this suit by allowing DACA grantees to
85 See ECF. 54 at ¶¶ 198, 205; Ex. 10, ¶¶ 6, 11-12, 13-14, 18, 22-23 (Wong Decl.); Ex. 110 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu, Dec. 30, 2016); Ex. 53, ¶¶ 4,7-11 (Suarez-Orozco Decl.); Ex. 46, ¶¶ 32, 3435 (Zayas Decl.); See Oct.3 S. Jud. Transcript, 2017 WL 4410019 at 12, 25. (Dreamers are “a benefit to the country” and are “a valuable contribution”); Ex. 112, Donald J. Trump (@realDonaldTrump), Twitter, Sept. 14, 2017, 3:28 AM) (Dreamers serve in the military); Ex. 3, McCament Dep. 12:13-14:7 (DACA holders contribute to educational, business, and economic sectors), and 13:3-14:7 (regularization of status helps “administer the system more effectively”); Ex. 33, Nealon Dep. 152:12-23 (DACA provides “human” and economic benefits). 86 See Ex. 35, Neufeld Dep. 208:3-9. 87 DHS has testified that the administrative burdens and costs in terminating DACA are minimal. Ex. 35, Neufeld Dep. 203:18-204:4.
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keep their jobs and continue attending schools, while allowing the States to continue to employ them to serve the States’ residents.
CONCLUSION For the reasons set forth above, Plaintiff States respectfully request that the Court grant the instant Motion for a Preliminary Injunction.

DATED: December 15, 2017

ERIC T. SCHNEIDERMAN Attorney General of the State of New York
By: /s Lourdes M. Rosado Lourdes M. Rosado, Bureau Chief Brooke Tucker, Assistant Attorney General* Sania Khan, Assistant Attorney General Diane Lucas, Assistant Attorney General Ajay Saini, Assistant Attorney General Alex Finkelstein, Volunteer Assistant Attorney General Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 23rd Floor New York, NY 10271 Lourdes.Rosado@ag.ny.gov Sania.Khan@ag.ny.gov Diane.Lucas@ag.ny.gov Ajay.Saini@ag.ny.gov Tel. (212) 416-6348 Fax (212) 416-8074

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MAURA HEALEY Attorney General for the Commonwealth of Massachusetts
By: /s Abigail B. Taylor Jonathan B. Miller Genevieve C. Nadeau (pro hac vice) Abigail B. Taylor (pro hac vice) Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 Jonathan.Miller@state.ma.us Genevieve.Nadeau@state.ma.us Abigail.Taylor@state.ma.us Tel. (617) 727-2200

BOB FERGUSON Attorney General of the State Washington
By: /s/ Robert W Ferguson Robert W. Ferguson (pro hac vice) Attorney General Colleen M. Melody (pro hac vice) Civil Rights Unit Chief Marsha Chien (pro hac vice) Assistant Attorney General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 ColleenM1@atg.wa.gov MarshaC@atg.wa.gov Tel. (206) 464-7744

GEORGE JEPSEN Attorney General of the State of Connecticut
By: /s Mark K. Kohler Mark F. Kohler (pro hac vice) Assistant Attorney General Connecticut Office of the Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06106 Mark.Kohler@ct.gov Tel. (860) 808-5020

KARL A. RACINE Attorney General for the District of Columbia
By: /s Robyn R. Bender Robyn R. Bender* Deputy Attorney General Public Advocacy Division 441 4th Street, NW Suite 650 North Washington, DC 20001 Robyn.Bender@dc.gov Tel. (202) 724-6610 Fax (202) 730-0650

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DOUGLAS S. CHIN Attorney General of the State of Hawaii
By: /s Donna H. Kalama Donna H. Kalama (pro hac vice) Deputy Attorney General State of Hawaii, Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Donna.H.Kalama@hawaii.gov Tel. (808) 586-1224

LISA MADIGAN Attorney General of the State of Illinois
By: /s Anna P. Crane Anna P. Crane, Assistant Attorney General (pro hac vice) Karyn L. Bass Ehler, Chief, Civil Rights Bureau Harpreet Khera, Deputy Bureau Chief, Special Litigation Bureau Caitlyn McEllis, Assistant Attorney General Jeff VanDam, Assistant Attorney Genera Civil Rights Bureau Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Anna.Crane@atg.state.il.us Tel. (312) 814-3400 Fax (312) 814-3212

THOMAS J. MILLER Attorney General of the State of Iowa

HECTOR H. BALDERAS Attorney General of the State of New Mexico

By: /s Nathan Blake Nathan Blake (pro hac vice) Deputy Attorney General Office of the Attorney General of Iowa 1305 E. Walnut Street Des Moines, IA 50319 Nathan.Blake@iowa.gov Tel. (515) 281-4325 Fax (515) 281-4209

By: /s Tania Maestas Tania Maestas, (pro hac vice) Deputy Attorney General Ari Biernoff, Assistant Attorney General Jennie Lusk, Assistant Attorney General New Mexico Office of the Attorney General 408 Galisteo St. Santa Fe, NM 87501 ABiernoff@nmag.gov Tel. (505) 490-4060 Fax (505) 490-4883

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MATTHEW DENN Attorney General of the State of Delaware
By: s/ Aleine Cohen Aaron Goldstein* State Solicitor Aleine Cohen* Deputy Attorney General Delaware Department of Justice 820 N. French St. Wilmington, DE 19801 Aaron.Goldstein@state.de.us Aleine.Cohen@state.de.us Tel. (302) 577-8400

PETER KILMARTIN Attorney General of the State of Rhode Island
By: /s Rebecca T. Partington Rebecca T. Partington (pro hac vice) Chief, Civil Division Michael W. Field (pro hac vice) Assistant Attorney General Adam D. Roach (pro hac vice) Special Assistant Attorney General RI Office of the Attorney General 150 South Main Street Providence, RI 02903 RPartington@riag.ri.gov MField@riag.ri.gov ARoach@riag.ri.gov Tel. (401) 274-4400

JOSH STEIN Attorney General of the State of North Carolina
By: /s Sripriya Narasimhan Sripriya Narasimhan* North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 SNarasimhan@ncdoj.gov Tel. (919) 716-6400

ELLEN F. ROSENBLUM Attorney General of the State of Oregon
By: /s Brian De Haan Brian De Haan* Assistant Attorney General Trial Attorney Brian.A.DeHaan@doj.state.or.us Tel. (971) 673-1880 Fax (971) 673-5000

39

Case 1:17-cv-05228-NGG-JO Document 96-1 Filed 12/15/17 Page 48 of 48 PageID #: 3932

JOSH SHAPIRO Attorney General of the Commonwealth of Pennsylvania
By: /s Jonathan Scott Goldman Jonathan Scott Goldman* Executive Deputy Attorney General, Civil Law Division Michael J. Fischer, (pro hac vice) Chief Deputy Attorney General, Impact Litigation Section Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA 17120 MFischer@attorneygeneral.gov Tel. (717) 787-3391

THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont
By: /s Benjamin D. Battles Benjamin D. Battles, (pro hac vice) Solicitor General Julio A. Thompson*, Assistant Attorney General, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, VT 05609 Benjamin.Battles@vermont.gov Tel. (802) 828-5500 Fax (802) 828-3187

MARK R. HERRING Attorney General of the Commonwealth of Virginia
By: /s Matthew R. McGuire Matthew R. McGuire (pro hac vice) Acting Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219 MMcguire@oag.state.va.us Tel. (804) 786-7773

JOHN W. HICKENLOOPER Governor of the State of Colorado
By: /s Jacki Cooper Melmed Jacki Cooper Melmed Special Assistant Attorney General* Chief Legal Counsel 136 State Capitol Building Denver, Colorado 80203 Jackic.Melmed@state.co.us Tel. (303) 866-3788 (* Limited Appointment)

40

Case 1:17-cv-05228-NGG-JO Document 96-2 Filed 12/15/17 Page 1 of 5 PageID #: 3933

DECLARATIONS AND EXHIBIT LIST CITED IN PLAINTIFF STATES’ MOTION FOR PRELIMINARY INJUNCTION

Exhibit Number

Exhibit Name

1

Decl. Shobha Wadhia (Expert: Clinical Professor of Law Penn. State Univ.)

2

Updated USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017, June 8, 2017

3

Transcript of Depostion of James McCament, Deputy Director of USCIS, Oct. 17, 2017

4

Decl. Cesar Andrade (DACA Grantee; NY)

5

Decl. Hina Naveed (DACA Grantee; NY)

6

Decl. Milton Eduardo Ramirez Cuevas (DACA Grantee; OR)

7

Decl. Cairo Mendes (DACA Grantee; MA)

8

Decl. Renata Teodoro (DACA Grantee; MA)

9

Decl. Javier Juarez (DACA Grantee; RI)

10

Decl. Tom Wong (Expert; Associate Professor UCSD)

11

Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, The Cato Institute, Jan. 18, 2017

12

Decl. Ayesha-Blackwell Hawkins (Amazon)

13

Decl. Seth Kalvert (TripAdvisor)

14

Decl. Jeffrey Igneri (Local Burger)

15

Decl Jacob Tingen (Tingen & Williams, PLLC)

16

Decl. Jonathan Schwartz (Univision)

17

Decl. Lucila Loera (Washington State University)

18

Decl. Heatwole (University of Massachusetts)

19

Decl. Alexandra Monroe (Washington State Department of Ecology)

20

Decl. Kaplan (Washington State Department of Social and Health Services)

21

Decl. Rich Jones (Washington State Office of the Treasurer)

22

Decl. Sarah Conly (Washington Department of Veterans Affairs)

23

Decl. Alfred Mathewson and Sergio Pareja (University of New Mexico School of Law)

24

Decl. Clark, et al. (Massachusetts State University Presidents)

25

Decl. Susan Herbst (University of Connecticut)

26

Decl. Dimitrios Pachis (Eastern Connecticut State University)

27

Decl. Karen Hardwick (University of the District of Columbia)

1

Case 1:17-cv-05228-NGG-JO Document 96-2 Filed 12/15/17 Page 2 of 5 PageID #: 3934

28

Tom Wong, et al., DACA Grantees’ Economic and Educational Gains Continue to Grow, Center for American Progress, Aug. 28, 2017;

29

Tom Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress, Oct. 18, 2016;

30

Nicole Prchal Svajlenka, et. al., A New Threat to DACA Could Cost States Billions of Dollar, Center for American Progress, July 21, 2017

Misha Hill and Meg Wiehe, State & Local Contributions of Young

31

Undocumented Immigrants, Institute on Taxation & Economic Policy, April 25,

2017

32

Transcript of Depostion of Gene Hamilton, Deputy Chief of Staff for Policy, DHS, Oct. 20, 2017

33

Transcript of Deposition of James Nealon, Under Secretary Office of Strategy, Policy, and Plans, DHS, Oct. 13, 2017

34

Transcript of Deposition of Phillip Miller, Assistant Director of Field Operations for Enforcment and Removal Operations, ICE, Oct. 18, 2017

35

Transcript of Deposition of Donald Neufeld, Associate Director, Service Center Operations Directorate, Oct. 18, 2017

36

Juliet Eilperin, Zinke backs shrinking more national monuments and shifting management of 10, Washington Post (Dec. 5, 2017)

37

Donald J. Trump, "Congress now has 6 months to legalize DACA," Twitter, Sept. 5, 2017

38

Decl. Dr. Stephen Pitti (Expert: Professor of History and American Studies, Yale University)

39

(DOJ, Attorney General Sessions Delivers Remarks on DACA, Prepared Remarks, Sept. 5, 2017

40

Ltr. from Att’y Gen. Xavier Becerra et al. to President Donald Trump, at 3, July 21, 2017

41

USCIS Help Center, DACA FAQs

42

USCIS Help Center, How will USCIS evaluate my request for renewal of DACA?

43

USCIS, DACA Approval Notice

44

Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration, Politico, Mar. 29, 2017

2

Case 1:17-cv-05228-NGG-JO Document 96-2 Filed 12/15/17 Page 3 of 5 PageID #: 3935

45

Tom Jawetz and Nichole Prchal Svajlenka, Thousands of DACA Recipients Are Already Losing Their Protection From Deportation, Nov. 9 2017

46

Decl. Luis Zayas (Expert: Professor of Psychiatry, Dell Medical School Univ. of Texas)

47

Decl. Dana Rubin (DACA Grantee; MA)

48

Decl. Anarelly Morales (DACA Grantee, NY)

49

Decl. Hugo Nicolas (DACA Grantee; OR)

50

Decl. G.L. (DACA Grantee; VA)

51

Decl. Laura Carothers Graham (Delaware Community Legal Aid Society, Inc.)

52

Decl. Thomas Ambrosino and Mary Bourque (City of Chelsea, MA)

53

Decl. of Marcelo Suarez-Orozco (Expert: Wasserman Dean of the Graduate School of Education and Information Studies, UCLA)

54

Decl. Ku (Expert: Professor of Health Policy and Management, George Washington Univ)

55

Decl. Michael Bzdyra (Connecticut Department of Motor Vehicles)

56

Decl. Jesse White (Secretary of State of the State of Illinois)

57

Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements)

58

Attorney General Advisory Letter to Acting Commissioner K. Eric Boyette, Jan. 17, 2013)

59

Decl. of Rossana Rosado (NY Secretary of State)

60

Decl. Alejandra Perez (DACA Grantee; WA)

61

Decl. Gloria Oduyoye (DACA Grantee; VA)

62

Decl. I.V. (DACA Grantee; MA)

63

Decl. I.T. (DACA Grantee; MA)

64

Decl. Kristin M. Johnson (SUNY)

65

Decl. Camilla Glatt (Columbia Basin College)

66

Decl. Emily Schuh (City of Anacortes, WA)

67

Decl. Kim Ann Garza (Big Bend Community College)

68

Decl. Viridiana Carrizales (Teach for America)

69

Decl. Mostofi (NYC Mayor’s Office of Immigrant Affairs)

70

Decl. Judy Kennedy (City of Newburgh, NY)

71

Decl. James B. Milliken (CUNY)

72

Decl. Phil Ballinger (University of Washington)

73

Decl. Mary R. Jeka (Tufts)

74

Decl. Juan Salgado (City Colleges of Chicago)

75

Decl. Barbara Wilson (University of Illinois System)

76

Decl. Reina Guevara (DACA Grantee; MA)

3

Case 1:17-cv-05228-NGG-JO Document 96-2 Filed 12/15/17 Page 4 of 5 PageID #: 3936

77

Decl. Fatima Preciado (DACA Grantee; OR)

78

Decl. Allyson Suria (DACA Grantee; VA)

79

Decl. Danielis Andrea Dos Santos Torrez (DACA Grantee; VA)

80

Decl. Rick Miranda (Colorado State University)

81

Decl. Ryan James Hagemann (Western Oregon University)

82

Decl. Marjorie Trueblood-Gamble (Southern Oregon University)

83

Decl. Charlene Alexander (Oregon State University)

84

Decl. Christina Ridder (Portland State University)

85

Decl. Dennis Galvan (University of Oregon)

86

Decl. Larry Dietz (Illinois State University)

87

Ltr from Shobha Wadhia et al. to President Donald Trump, Aug. 14, 2017

88

Decl. Biddy Martin (Amherst College)

89

Decl. Sonya Stephens (Mount Holyoke College)

90

Decl. Richard M. Locke (Brown University)

91

Decl. Donald Straney (University of Hawaii)

92

Decl. Taylor Reveley III (College of William and Mary)

93

Decl. Judy Mohr Peterson (Hawaii Department of Human Services)

94

Decl. Stephen Groff (Delaware Division of Medicaid and Medical Assistance)

95

Decl. Claudia Schlosberg (D.C. Dept of Health Care Finance)

96

Decl. Ike Brannon (Expert; CATO Institute)

97

Decl. Essig, Wiehe and Hill (Expert; Institute on Taxation and Economic Policy)

98

Decl. Margaret Callahan (Loyola University of Chicago)

99

Decl. Paul Roth (University of New Mexico Health Sciences Center)

100 Decl. Alice Cuprill-Comas (Oregon Health and Science University)

101 Decl. Thomas Sullivan (University of Vermont)

102 Decl. Krissia Perla (DACA Grantee; RI)

103 Decl. Paul Mutty (Starbucks)

104 Decl. Martin Shively, Microsoft

105 Decl. Natalicia Tracy (Brazilian Workers Center)

106 Decl. Luis Cortes Romero (Barrera Legal Group, PLLC)

107 Decl. Adam Greenberg (Warby Parker)

108 Decl. Pinsky (Association for a Better New York)

109

Decl. Basil I. Gooden (Secretary of Agriculture and Forestry for the Commonwealth of Virginia)

110 Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu, Dec. 30, 2016

111 Decl. Aldo Alan Solano Mendez (DACA Grantee; OR)

4

Case 1:17-cv-05228-NGG-JO Document 96-2 Filed 12/15/17 Page 5 of 5 PageID #: 3937

112

Donald J. Trump, "Does anybody really want to throw out good educated and accomplished young people," Twitter, Sept. 14, 2017

5

 
 Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 1 of 12 PageID #: 6360

UNITED STATES DISTRICT COURT EASTERN DISTRICT NEW YORK

X

MARTIN JONATHAN BATALLA VIDAL, :

et al.,

:

:

Plaintiffs,

: :

:

- against -

:

:

ELAINE C. DUKE, Acting Secretary,

:

Department of Homeland Security, et al.,

:

:

Defendants.

: :

X

16 Civ. 4756 (NGG) (JO)

X

STATE OF NEW YORK, et al.,

:

:

Plaintiffs,

: :

:

- against -

:

:

DONALD TRUMP, President of the United :

States, et al.,

:

:

Defendants.

: :

X

17 Civ. 5228 (NGG) (JO)

AMICUS BRIEF FOR UNITED WE DREAM IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR A PRELIMINARY INJUNCTION
AND IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

Peter Karanjia Geoffrey S. Brounell DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Suite 800 Washington, D.C. 20006 Tel: (202) 973-4256 peterkaranjia@dwt.com geoffreybrounell@dwt.com
Counsel for Amicus Curiae United We Dream

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 2 of 12 PageID #: 6361 TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .......................................................................................................... ii STATEMENT OF INTEREST....................................................................................................... 1 INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2
A. DACA Recipients Are Integral to The Lives and Livelihood of Their Families................................................................................................................... 3
B. DACA Recipients Contribute to Their Local Communities................................... 4 C. DACA Recipients Are Deeply Ingrained in the American Fabric ......................... 7 CONCLUSION............................................................................................................................... 9
i

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 3 of 12 PageID #: 6362
TABLE OF AUTHORITIES Page(s)
Statutes Ala. Code § 31-13-8.........................................................................................................................8 S.C. Code Ann. § 59-101-430, and ..................................................................................................8 Other Authorities Memorandum from Janet Napolitano, Secretary of Homeland Security, Exercising
Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children (June 15, 2012) ............................................................................................1 Tom K. Wong et al., Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey, at 2 (Oct. 2016) ..........................................................................................................................3 U.S. Citizenship and Immigration Services (“USCIS”), Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016 (Sept. 30, 2016) ..............................7 Zenen Jaimes Pérez, How DACA Has Improved the Lives of Undocumented Young People, Center for American Progress, at 4 (Nov. 19, 2014), available at http://ampr.gs/1O7iTHA........................................................................................................8
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STATEMENT OF INTEREST1 United We Dream (“UWD”) is a national nonprofit, nonpartisan, membership-based organization comprising more than 300,000 immigrant youth and their allies, with 52 affiliate organizations in 25 states. UWD’s primary purpose is to advocate for the dignity and fair treatment of immigrant youth and their families, regardless of their immigration status. Many UWD members are beneficiaries of the Deferred Action for Childhood Arrivals initiative announced on June 15, 2012. Because the government action in this case seeks to undo the Deferred Action for Childhood Arrivals’ protections — protections that have formed the basis for the most consequential life decisions of hundreds of thousands of immigrant youth — UWD has a substantial interest in the proper resolution of the issues presented in this case.
INTRODUCTION When the United States government established the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, it made a promise to more than a million undocumented young people: if they applied for and met the program’s eligibility criteria, they could rest assured that they would not be subject to governmental efforts to upend their lives by uprooting them from the United States. The government promised these immigrants they would not face removal proceedings for a renewable two-year period. But in practice, the program — which reflected the “low priority” associated with the removal of “certain young people who were brought to this country as children and know only this country as home” — did more than guarantee enrollees deferred action. Memorandum from Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children (June 15, 2012). DACA allowed its recipients to obtain work
1 Counsel for all parties have consented to the filing of this brief.

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 5 of 12 PageID #: 6364
authorization, a Social Security number and, in many states, driver’s licenses and in-state tuition at public universities. DACA enabled recipients to open bank accounts, apply for credit cards, buy homes and cars, and conduct other aspects of daily life that are often impossible for undocumented immigrants. DACA thus enabled its recipients to fully participate in their communities and local economies.
United We Dream submits this amicus brief in support of the Plaintiffs in the abovecaptioned actions, who challenge the government’s unlawful efforts to rescind the DACA program. Our goal is not to reiterate Plaintiffs’ legal arguments, but rather to highlight the enormous stakes of these related cases for hundreds of thousands of individuals across the United States. In particular, this brief provides a glimpse into the lives of the countless young men and women who placed their trust in, and organized their lives around, DACA. With the sample of stories below, UWD hopes to illustrate how, from their diverse origins spanning the globe — including India, the Philippines, China, and Mexico — the DACA recipients discussed are now fully part of the fabric of America. As a result, the government’s rescission of this program that has given hope to so many threatens to cause massive disruption to these individuals, their families, and their local communities — communities that extend well beyond recipients of the DACA program. Against this backdrop, UWD respectfully requests that the Court grant the Plaintiffs’ motions to enjoin the government’s rescission and deny the governments’ motions to dismiss these cases.
ARGUMENT Through DACA, thousands of young immigrant adults can give back to their communities. DACA recipients become teachers, community leaders, and small business owners. They provide for themselves and their families, support their friends, and are closely knit into the fabric of the lives of those around them. The government’s attempt to arbitrarily
2

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 6 of 12 PageID #: 6365
and abruptly undo DACA protections for these individuals causes grave harm not only to DACA recipients, but also to their families and communities at large. A. DACA Recipients Are Integral to The Lives and Livelihood of Their Families
With the greater job opportunities that come with work authorizations, DACA recipients are better able to shoulder the financial burden for themselves and their families. Indeed, over 60 percent of surveyed DACA recipients reported that, as a result of obtaining work authorization through DACA, they could make enough money to financially support their family. Tom K. Wong et al., Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey, at 2 (Oct. 2016).2
But work authorization is not the only benefit that makes DACA so important to family life. A driver’s license — which most Americans take for granted — is a prized commodity to an undocumented household. In the case of V.D., for example, the driver’s license he obtained as a result of DACA allowed him to drive his father to and from the hospital for doctor appointments after a serious heart attack, as well as to take care of his disabled younger sister. DACA has also provided V.D. the financial means to take care of his family. V.D., who studies computer science at the University of Illinois, uses the savings from his summer technology jobs to both pay for his tuition and help support his family.
Like V.D., P.Z. is also deeply committed to taking care of his family — and DACA provided him with the initial opportunity to do so. With undocumented parents suffering from an array of health problems, P.Z.’s responsibility was a heavy one, especially as an undocumented immigrant. But thanks to DACA, P.Z. got a job at Twitter, which allows him to provide his parents health insurance so they can receive the care they need. And, to be able to
2 Available at https://cdn.americanprogressaction.org/content/uploads/2016/10/.
3

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 7 of 12 PageID #: 6366
help his parents even more, P.Z. is saving money to help them move close to him in San Francisco.
The benefits DACA provides to families are not limited to the families of V.D., P.Z., or the other young immigrants identified in this brief. Hundreds of thousands of DACA recipients benefit from DACA, from having work authorization to accessing employer-provided health insurance to providing financially for their families every day. DACA recipients help relieve their families from the stress of ordinary daily tasks that most U.S. citizens and other authorized immigrants need not think twice about. From picking up children at school to taking relatives to the doctor to paying the cable bill, young immigrants who receive DACA status can provide constant, stable support for their families. The government now threatens to undermine the foundations of thousands of families across the United States. B. DACA Recipients Contribute to Their Local Communities
DACA offers thousands of immigrants the chance to succeed in their chosen careers and contribute to their communities. Young entrepreneurs like D.A., for example, rely on DACA to create and innovate. After the government granted D.A. DACA status, she was able to obtain higher-paying jobs, which allowed her to save money and eventually start her own business. With a business partner, D.A. bought a landscaping company and hired two employees to help her meet demand. In addition, to maximize the potential of the new venture, D.A. also enrolled in classes on small business management at the local community college. As D.A.’s company continues to grow and prosper, its success and impact on the community will be closely entwined with the continuation of DACA.
For R.P., DACA provided the opportunity and confidence to become a leader in his local community. A Filipino immigrant who came to the United States when he was one year old,
4

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 8 of 12 PageID #: 6367
R.P. has lived in the United States almost his entire life. But only after receiving DACA status could he truly contribute to his larger community in Georgia. Because of DACA, R.P. was offered and accepted a job with a non-profit group assisting Asian immigrants and refugees. And with the driver’s license R.P. was able to obtain as a result of DACA, he is finally able to travel freely and board a plane, a simple privilege otherwise reserved for those with valid government identification. The trips R.P. takes are not just for vacation. R.P. recently travelled to a Christian leadership conference where he could further develop skills necessary to growing as a leader in his local community. Without DACA, R.P.’s ability to openly and deeply involve himself in his community would be dramatically limited.
In the Arkansas hospital where he works, the people who meet L.A. do not know him as a formerly undocumented Mexican immigrant who now enjoys the benefits of DACA; they know him as their nurse. But L.A.’s story, and the integral role he plays in the lives of his patients in the hospital’s cardiovascular Intensive Care Unit, would not have been possible without DACA. In 2010, while L.A. was still a nursing student, the State of Arkansas passed a law making it impossible for any individual to obtain a nursing license without a Social Security card. For L.A., who came to the United States at age seven and lacked formal authorization or lawful status, that requirement was an insurmountable obstacle. Everything changed in 2013, when the government granted L.A. deferred action under DACA. As a result, L.A. obtained a Social Security number, received his nursing license, and soon thereafter, was offered a position as a nurse in the cardiovascular Intensive Care Unit. Because of DACA, L.A. was able to fulfill his dream of being able to provide medical care to his community.
D.R., a medical student at the Icahn School of Medicine at Mount Sinai in New York, has a similar dream. As an undergraduate at the University of California, Berkeley, D.R. worked 30
5

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 9 of 12 PageID #: 6368
hours per week as a waitress to support herself through school. A talented student, D.R. was a double major in Integrative Biology and Sociology who graduated from Berkeley with a 3.6 GPA and until DACA, she was undocumented. D.R.’s ability to complete a medical residency and be employed as a doctor depends on the work authorization she has because of DACA. The program has allowed D.R. to pursue a goal that would otherwise have been unattainable.
DACA recipients have served their communities in a wide range of endeavors. J.S. arrived in the United States as an 11-year-old to pick grapes in the Central Valley of California. Although he arrived in California with only a third-grade education and spoke no English (and limited Spanish), J.S. applied himself scholastically, successfully taking English Language Development classes by the time he was a high school junior. Because he lacked a Social Security number, J.S. was unable to apply to many colleges and for many scholarships. Nevertheless, J.S. worked three jobs to pay his way through community college, and eventually completed his Bachelor’s degree. Immediately after being granted DACA status and work authorization, J.S. — who comes from a family of indigenous Mexican origin that speaks Zapotec — used his work authorization to serve in state and federal courts as the nation’s only court interpreter in the Zapotec dialect. In this capacity, he has traveled across California and New Mexico to ensure that Zapotec-speaking defendants are able to understand the legal proceedings in which they are involved. Without J.S.’s unique language skills to overcome linguistic obstacles, courts would face further delays — and immigration detainees longer detentions.
Just as DACA enabled Zapotec-speaking defendants access to a fluent court interpreter, the program has also given students at an Austin, Texas high school the guidance of a valuable teacher and mentor. A.Z. — a high-school salutatorian who graduated from the University of
6

Case 1:17-cv-05228-NGG-JO Document 120 Filed 12/20/17 Page 10 of 12 PageID #: 6369
Texas on a full scholarship — teaches Spanish in the Austin Independent School District. And for A.Z., teaching is a family affair. When she is not in her classroom, she works with her older brothers, also DACA recipients, as they finish their teaching degrees at the University of Texas. Because of DACA, both A.Z. and her brothers are able to play an important part in the lives of hundreds of students.
Like the young immigrants described above, DACA has enabled hundreds of thousands of previously undocumented individuals to improve their lives and also become integral parts of their communities. According to one survey, after receiving DACA status, 42.5 percent of DACA recipients got their first job. Wong et al., supra at 7. About 61 percent pursued educational opportunities previously unavailable to them. Id. at 3. Indeed, 55 percent of DACA recipients surveyed are pursuing undergraduate degrees. Id. at 8. And 12 percent bought a home, 54 percent bought a car, and 14 percent paid off some or all their student loans. Id. at 2. For these individuals, DACA has opened a world of financial independence and opportunity that was previously unavailable. C. DACA Recipients Are Deeply Ingrained in the American Fabric
The individuals described above are representative of DACA recipients across the country. Indeed, as of 2016, all fifty states, as well as the District of Columbia and several territories, were home to at least one of the nearly 800,000 DACA recipients. See infra note 3. Because of DACA, these individuals — who were brought to the United States at a young age from countries across the world3 — have access to better jobs, better education, and more stable financial positions.
3 To date, DACA recipients are originally from over 20 countries, including Mexico, Poland, South Korea, and India. U.S. Citizenship and Immigration Services (“USCIS”), Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016 (Sept. 30, 2016).
7

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According to one survey, more than two-thirds of DACA recipients were able to find a first job, or a job with better pay, after receiving DACA. Wong et al., supra at 7. They have increased their hourly wages by an average of nearly one-third, and pay taxes. Five percent of DACA recipients surveyed had started their own business. Id. at 2, 3. Over 50 percent applied for and received their first credit card, and nearly 50 percent opened a bank account. Id. at 3.
Without a doubt, DACA offers greater access to higher education. For example, DACA enables students to enroll in public colleges and universities in states like Alabama and South Carolina, which undocumented students are otherwise barred from attending, see Ala. Code § 31-13-8; S.C. Code Ann. § 59-101-430, and to apply for in-state tuition in Virginia, see Zenen Jaimes Pérez, How DACA Has Improved the Lives of Undocumented Young People, Center for American Progress, at 4 (Nov. 19, 2014), available at http://ampr.gs/1O7iTHA. In addition, several states — including Texas, California, and New York — allow undocumented immigrants and DACA recipients to attend public colleges and universities at in-state or reduced tuition rates and to receive state and institutional financial assistance so long as they meet certain criteria. Id. Although they remain ineligible for financial aid in many states and under federal programs, DACA recipients can fill out the Free Application for Federal Student Aid, which schools use to determine financial need and eligibility for scholarships and institutional financial aid.
8

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CONCLUSION

As these stories demonstrate, the elimination of DACA would disrupt the lives of

individuals, families, and whole communities, all of whom have grown to rely on that program in

organizing their daily lives. The rescission of DACA would remove shopkeepers from their

businesses; doctors and nurses from their hospitals; teachers from their classrooms; children

from their parents’ homes; and young men and women who have done nothing wrong from the

only country they have ever known. Understanding and even expecting that DACA recipients

would assume these roles in their families and their communities, the government created the

DACA program and made basic commitments of procedural fairness to its recipients. For the

government to break its promise now would tear apart the lives of these young individuals — as

well as the fabric of families and entire communities that have been built upon the government’s

promise.

Taking these considerations into account, UWD respectfully requests that the Court grant

the Plaintiffs’ motions for a preliminary injunction and deny the government’s motions to

dismiss in these related cases.

Dated: December 20, 2017

Respectfully submitted,

By /s/ Peter Karanjia

Peter Karanjia Geoffrey S. Brounell DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Suite 800 Washington, D.C. 20006 Tel: (202) 973-4256 peterkaranjia@dwt.com geoffreybrounell@dwt.com

Attorneys for Amicus Curiae United We Dream

9

 
 Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 1 of 29 PageID #: 6402

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MARTIN JONATHAN BATALLA VIDAL et al.,
Plaintiffs,
v.
ELAINE C. DUKE, Acting Secretary, Department of Homeland Security, et al.
Defendants.

Case No. 16-CV-4756 (NGG) (JO)

STATE OF NEW YORK et al., Plaintiffs,
v. DONALD TRUMP, President of the United States, et al.,
Defendants.

Case No. 17-CV-5228 (NGG) (JO)

AMICUS BRIEF OF 114 COMPANIES IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 2 of 29 PageID #: 6403
TABLE OF CONTENTS INTEREST OF AMICI CURIAE .................................................................................................... 1 INTRODUCTION .......................................................................................................................... 1 ARGUMENT.................................................................................................................................. 2 I. DACA’S RESCISSION WILL INFLICT SIGNIFICANT HARM ON U.S.
COMPANIES AND THE ENTIRE ECONOMY............................................................... 2 A. Dreamers Contribute Directly To Our Nation’s Economic Growth....................... 3 B. Dreamers Help Grow The Economy By Filling Jobs For Which
There Otherwise Would Not Be A Sufficient Supply Of Workers ........................ 4 1. Permitting Dreamers to participate in the workforce expands,
rather than reduces, the number of jobs ...................................................... 5 2. Dreamers fill critical labor shortages .......................................................... 6 C. Rescinding DACA Will Inflict Enormous Harm On Individuals, Companies, And The Economy .............................................................................. 8 II. THE DECISION TO RESCIND DACA IS INVALID, BECAUSE IT IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW................................ 11 CONCLUSION............................................................................................................................. 14
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TABLE OF AUTHORITIES Cases Arizona v. United States,
567 U.S. 387 (2012).................................................................................................................12 Johns v. DOJ,
653 F.2d 884 (5th Cir. 1981) ...................................................................................................12 Reno v. American Arab Anti-Discrimination Committee,
525 U.S. 471 (1999)...........................................................................................................12, 13 Safe Air For Everyone v. EPA,
488 F.3d 1088 (9th Cir. 2007) .................................................................................................12 Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ...................................................................................................14
Constitution, Statutes, and Regulations U.S. Const. art. II, § 3 ....................................................................................................................12 5 U.S.C. § 706................................................................................................................................12 6 U.S.C. § 202................................................................................................................................13 8 U.S.C. § 1103..............................................................................................................................13 8 U.S.C. § 1154..............................................................................................................................13 8 U.S.C. § 1252..............................................................................................................................13 8 U.S.C. § 1324..............................................................................................................................13 49 U.S.C. § 30301..........................................................................................................................13 National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,
117 Stat. 1392, 1694-1695 (2003) ...........................................................................................13 USA PATRIOT Act, Pub. L. No. 7 107-56, 115 Stat. 272, 361 (2001) ........................................13 H.R. Rep. No. 11-157 (2009).........................................................................................................13 8 C.F.R. § 274a ..............................................................................................................................13
ii

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 4 of 29 PageID #: 6405
Other Authorities
Am. Farm Bureau Federation, Agricultural Labor – Immigration Reform (Oct. 2016), https://goo.gl/WUAz3e...................................................................................................8
Ben Gitis & Jacqueline Varas, The Labor and Output Declines From Removing All Undocumented Immigrants, Am. Action Forum, May 5, 2016, https://goo.gl/UAt3dJ...............................................................................................................11
Bob Davis, The Thorny Economics of Illegal Immigration, Wall St. J., Feb. 9, 2010, https://goo.gl/j4dd7J.......................................................................................................10
Brad Smith, President and Chief Legal Officer, Microsoft, DREAMers Make our Country and Communities Stronger, Aug. 31, 2017, https://goo.gl/kJYDT3 ...........................7
Buttonwood, Keep on Trucking, The Economist, Feb. 11, 2012.................................................5, 6
CHARLES GORDON ET AL., 6-72 IMMIGRATION LAW & PROC. rev. ed. (1981) ...............................12
Ctr. for Am. Progress, Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey (2016), https://goo.gl/pe2i17......................................................................................................7
Ctr. for Am. Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program (2017), https://goo.gl/P3DgPz......................................9
David Bier, Ending DACA Will Impose Billions in Employer Compliance Costs, Cato Institute, Sept. 1, 2017, https://goo.gl/1FMidk..................................................................9
David Bier, Five Myths About DACA, Cato Institue, Sept. 7, 2017, https://goo.gl/y1e8gb .................................................................................................................5
Economics A-Z Terms Beginning With L, The Economist, https://goo.gl/BvRwKU .............................................................................................................5
Giovanni Peri, The Effect of Immigrants on U.S. Employment and Productivity, Fed. Reserve Bank of San Francisco Economic Letter, Aug. 30, 2010, https://goo.gl/jK17fc ..............................................................................................................5, 8
Heather Boushey & Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Ctr. for Am. Progress, Nov. 16, 2012, https://goo.gl/ZSmRLq ............................................................................................................10
I Felt Like a Normal American Kid . . . Then Everything Changed, THINKPolicy Blog, Oct. 9, 2017, https://goo.gl/oV9P7h.................................................................................8
Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute, Jan. 18, 2017, https://goo.gl/jFXw4g.................................................4, 9
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Jacqueline Varas, How Immigration Helps U.S. Workers and the Economy, American Action Forum, Mar. 20, 2017, https://goo.gl/ovHQEh .............................................6
Jose Magana-Salgado, Immigrant Legal Resources Center, Money on the Table: The Economic Cost of Ending DACA (2016), https://goo.gl/3ZwGVJ ............................. 8-9, 9
Julia Boorstin, Illegal Entrepreneurs: Maria Has No U.S. Visa, and Jose’s Expires Soon. Yet They Own a Profitable California Factory, Pay Taxes, and Create Jobs, CNNMoney, July 1, 2005, https://goo.gl/jq2Y1C................................................4
Kenneth Megan, Immigration and the Labor Force, Bipartisan Policy Ctr., Aug. 25, 2015, https://goo.gl/8p3SP8.................................................................................................5
ManpowerGroup, 2016/2017 Talent Shortage Survey: The United States Results, https://goo.gl/rJTKs6 .................................................................................................................6
Mem. Op. for the Sec’y of Homeland Security and the Counsel to the President, 38 Op. Off. Legal Counsel 1 (Nov. 19, 2014), https://www.justice.gov/file/179206/download .......................................................................12
Memorandum from Elaine C. Duke, Acting Secretary, Dep’t of Homeland Security, on Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017) ....................................................................11
Memorandum from Janet Napolitano to David V. Aguilar Regarding Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).............................................................................................1
Michael A. Clemens & Lant Pritchett, Temporary Work Visas: A Four-Way Win for the Middle Class, Low-Skill Workers, Border Security, and Migrants, Ctr. for Global Dev. Brief, Apr. 2013, https://goo.gl/p9NLuc .....................................................5, 8
Michael A. Clemens, Does Kicking Out Mexicans Create Jobs?, Politico Magazine, Feb. 15, 2017, https://goo.gl/XwLj1x ..............................................................10, 11
Michael Greenstone & Adam Looney, What Immigration Means for U.S. Employment and Wages 1-2, The Hamilton Project (2012), https://goo.gl/bvC7AE ...............................................................................................................5
Mitra Toossi, Consumer Spending: An Engine for U.S. Job Growth, Monthly Labor Review (Nov. 2002) ........................................................................................................4
My American Dream, Minus the Paperwork, THINKPolicy Blog, Oct. 3, 2017, https://goo.gl/876JDm............................................................................................................ 7-8
Nat’l Conference of State Legislatures, National Employment Monthly Update, https://goo.gl/wZBJh8 (last accessed Oct. 31, 2017).................................................................6
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Natalie Kitroeff & Geoffrey Mohan, Wages Rise on California Farms. Americans Still Don’t Want the Job, Los Angeles Times, Mar. 17, 2017...................................................8
Nicole Prchal Svajlenka et al., A New Threat to DACA Could Cost States Billions of Dollars, Ctr. for Am. Progress, July 21, 2017, https://goo.gl/7udtFu ...................................8
Octavio Blanco, The Worker Shortage Facing America’s Farmers, CNN Money, Sept. 29, 2016, https://goo.gl/ZF2Tdx .......................................................................................8
P’ship for a New Am. Economy, Open for Business: How Immigrants Are Driving Business Creation in the United States 12 (Aug. 2012), https://goo.gl/3mFkVz ...............................................................................................................2
Paul Krugman, Opinion, Lumps of Labor, N.Y. Times, Oct. 7, 2003 .............................................5
President’s Council of Advisors on Science and Technology, Report to the President: Engage to Excel: Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering, and Mathematics (Feb. 2012), https://goo.gl/v2YRVD....................................................................7
Rachel Unruh & Amanda Bergson-Shilcock, Nat’l Skills Coalition, Missing in Action (2015), https://goo.gl/gokfJW ........................................................................................6
Sarah Bohn et al., Do E-Verify Mandates Improve Labor Market Outcomes of Low-Skilled Native and Legal Immigrant Workers? 17-18 (2014), https://goo.gl/7UihSE...............................................................................................................10
Sarah Elizabeth Richards, How Fear of Deportation Puts Stress on Families, The Atlantic, Mar. 22, 2017, https://goo.gl/qDgeRf .........................................................................9
Silva Mathema, Assessing the Economic Impacts of Granting Deferred Action Through DACA and DAPA, Ctr. for Am. Progress, Apr. 2, 2015, https://goo.gl/wxxek1.................................................................................................................4
Tiziana Rinaldi & Angilee Shah, Immigration Limbo Is a ‘Tug of Emotions.’ It’s Also a Mental Health Issue, PRI’s The World, Aug. 22, 2017, https://goo.gl/WLXMZ4 ............................................................................................................9
Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow Ctr. for Am. Progress, Aug. 28, 2017, https://goo.gl/dYJV1s ................................................................................................................4
Tom K. Wong et al., Results from 2017 National DACA Study, https://goo.gl/eyZ3VT........................................................................................................3, 4, 7
Tony Romm, IBM CEO Ginni Rometty Is in D.C. Urging Congress to Save DACA, Recode.net, Sept. 19, 2017, https://goo.gl/NQeJUc .................................................. 7-8
v

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 7 of 29 PageID #: 6408 U.S. Dep’t of Labor, Bureau of Labor Statistics, Economic News Release Table A-14 (Oct. 6, 2017), https://goo.gl/o8t39g; ...............................................................................7 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey Highlights August 2017 (Oct. 11, 2017), https://goo.gl/H28XkL ...............................................................................................................7 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey, https://goo.gl/g4n9Ag (last accessed Oct. 31, 2017) ....................................6 The UndocuScholars Project, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform (2015), https://goo.gl/sEpx1K ................................................................................................................7 World Health Org. & Int’l Labour Org., Mental Health And Work: Impact, Issues and Good Practices 1 (2000), https://goo.gl/ecH1Ut ................................................................9
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INTEREST OF AMICI CURIAE Amici are 114 U.S. companies and associations that collectively contribute trillions of dollars in annual revenue to the American economy. Many amici employ Dreamers—the young people who, under the Deferred Action for Childhood Arrivals (DACA) program, are able to live and work in the country that has been their home for most of their young lives. In addition, amici’s customers and end users are Dreamers; and amici’s businesses benefit from Dreamers’ contributions to the overall economy through their tax payments, spending, and investments. Accordingly, amici have a strong interest in Dreamers’ continued ability to work and participate in our country’s economy and in society generally. A list of the amici is set forth in Appendix A.
INTRODUCTION The intangible benefits of the DACA program are undeniable and substantial: nearly 800,000 young people (Dreamers) who “were brought to this country as children and know only this country as home” may for the first time live in America and participate fully in all aspects of our society without the constant and crippling fear of deportation. Memorandum from Janet Napolitano to David V. Aguilar Regarding Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012). DACA is a concrete and essential example of America fulfilling its centuries-old promise to welcome people from around the world seeking a better and a freer life. And no group is more deserving of that welcome than the Dreamers. In addition to these invaluable intangible benefits, DACA has produced—and is continuing to produce—important benefits for America’s companies and for our economy as a whole. Most notably, DACA permits Dreamers to obtain work authorization, thereby enabling them to obtain jobs. Employment of Dreamers expands work opportunities for everyone, because employment is not a zero-sum game. Dreamers are filling vacancies at companies that
1

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cannot find enough workers to fill their needs. And Dreamers’ wages lead to higher tax revenues and expansion of our national GDP—producing new jobs for all Americans.
DACA’s rescission will inflict serious harm on U.S. companies, all workers, and the American economy as a whole. Indeed, our national GDP will lose $460.3 billion, and Social Security and Medicare tax contributions will be reduced by $24.6 billion, over the next decade. But those dire consequence should never come to fruition because DACA’s rescission cannot be permitted stand. The Department of Homeland Security (DHS) rescinded DACA based entirely on its legal conclusion that it exceeds the agency’s statutory authority. That legal conclusion is wrong: DACA closely resembles deferred action programs adopted in the past, and complies fully with the applicable statute.
ARGUMENT I. DACA’S RESCISSION WILL INFLICT SIGNIFICANT HARM ON U.S.
COMPANIES AND THE ENTIRE ECONOMY. Since the nation’s founding, immigrants have been an integral part of the fabric of our country, enhancing the lives and prosperity of all Americans. Immigrants’ contributions to the U.S. economy are well-recognized: For example, the businesses they own generate over $775 billion in revenue and employ one out of every 10 workers.1 DACA enabled Dreamers—immigrants who were brought to the U.S. as children—to come out of the shadows, participate in the economy, and contribute to U.S. companies, which benefits all of us. Rescinding DACA harms not only individual Dreamers and their families, friends, and co-workers; but also the many U.S. businesses that count on them to help fuel continued innovation and economic growth.

1

P’ship for a New Am. Economy, Open for Business: How Immigrants Are Driving

Business Creation in the United States 12, 14 (Aug. 2012), https://goo.gl/3mFkVz.

2

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A. Dreamers Contribute Directly To Our Nation’s Economic Growth. In the five years since DACA was implemented, Dreamers have become essential contributors to American companies and the American economy. Prior to the DACA program, these young people—who have obtained at least a high school degree and, in many cases have finished college and obtained graduate degrees—would have been unable to obtain work authorization, and therefore unable to put their education and skills to use. DACA changed that, and as a result over 91 percent of the almost 800,000 Dreamers are employed and earn wages commensurate with their skill levels.2 Permitting Dreamers to stay and work in the country in which they grew up not only benefits those individuals, but also benefits American companies and the American economy as a whole. First, Dreamers directly contribute to the success of numerous U.S. companies. At least 72 percent of the top 25 Fortune 500 companies employ Dreamers—including IBM, Walmart, Apple, General Motors, Amazon, JPMorgan Chase, Home Depot, Wells Fargo, among others. Those companies alone generate almost $3 trillion in annual revenue.3 Many Dreamers are entrepreneurs who have created their own businesses: According to one survey, five percent of Dreamers started their own businesses after receiving DACA status. Among those respondents 25 years and older, the figure is eight percent—well above the 3.1

2

Tom K. Wong et al., Results from 2017 National DACA Study 3-4 (“Wong 2017

Results”), https://goo.gl/eyZ3VT.

3

Id.

3

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percent for all Americans.4 These businesses create new jobs and provide goods and services that expand the economy.5
Second, Dreamers pay taxes to federal, state, and local governments.6 The Cato Institute estimated that over 10 years, DACA recipients will increase tax revenues by $60 billion.7
Third, Dreamers have used their earnings—and the increased stability and security resulting from their DACA status—to make purchases and investments that grow our nation’s economy. Nearly two-thirds of Dreamers reported purchasing their first car in 2017, and 16 percent reported purchasing a first home.8 These and other types of personal consumption expenditures are important drivers of the economy: they “account[] for the largest share of GDP [and] are the main generator of employment in the economy.”9
B. Dreamers Help Grow The Economy By Filling Jobs For Which There Otherwise Would Not Be A Sufficient Supply Of Workers.
Studies have consistently found that immigrants do not displace U.S.-born workers. They instead help grow the economy and create more opportunities for U.S.-born workers by

4

Wong 2017 Results, supra n.2, at 3; Tom K. Wong et al., DACA Recipients’ Economic

and Educational Gains Continue to Grow, Ctr. for Am. Progress, Aug. 28, 2017,

https://goo.gl/dYJV1s.

5

See Julia Boorstin, Illegal Entrepreneurs: Maria Has No U.S. Visa, and Jose’s Expires

Soon. Yet They Own a Profitable California Factory, Pay Taxes, and Create Jobs, CNNMoney,

July 1, 2005, https://goo.gl/jq2Y1C.

6

See Silva Mathema, Assessing the Economic Impacts of Granting Deferred Action

Through DACA and DAPA, Ctr. for Am. Progress, Apr. 2, 2015, https://goo.gl/wxxek1.

7

Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA,

Cato Institute, Jan. 18, 2017, https://goo.gl/jFXw4g.

8

Wong 2017 Results, supra n.2, at 3.

9

Mitra Toossi, Consumer Spending: An Engine for U.S. Job Growth, Monthly Labor

Review 12 (Nov. 2002), https://goo.gl/iyTkdR.

4

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filling positions that otherwise would remain vacant because of a shortage of qualified workers.10 1. Permitting Dreamers to participate in the workforce expands, rather than reduces, the number of jobs.
“[O]ne of the best-known fallacies in economics” is the “lump of labour fallacy.”11 Economists from across the policy and political spectrum have discredited the notion that “there is a fixed amount of work to be done—a lump of labour”—such that an increase in the number of workers reduces the number of available jobs.12 Rather, the clear reality is that jobs beget more jobs. “[W]hen people work for a living they earn money. They spend that money on goods and services that are produced by other people, young and old, male and female.”13 The greater demand for goods and services creates new jobs.
The facts are indisputable. “From 1970 to 2017, the U.S. labor force doubled. Rather than ending up with a 50 percent unemployment rate, U.S. employment doubled.”14 Another study showed that countries with high employment levels of older workers also had high employment levels of young workers; in other words, high employment levels in one group

10 See Michael Greenstone & Adam Looney, What Immigration Means for U.S. Employment and Wages 1-2, The Hamilton Project (2012), https://goo.gl/bvC7AE; Kenneth Megan, Immigration and the Labor Force, Bipartisan Policy Ctr., Aug. 25, 2015, https://goo.gl/8p3SP8; Michael A. Clemens & Lant Pritchett, Temporary Work Visas: A FourWay Win for the Middle Class, Low-Skill Workers, Border Security, and Migrants 4, Ctr. for Global Dev. Brief, Apr. 2013, https://goo.gl/p9NLuc.

11

Economics A-Z Terms Beginning With L, The Economist, https://goo.gl/BvRwKU.

12 Id.; see also Paul Krugman, Opinion, Lumps of Labor, N.Y. Times, Oct. 7, 2003, https://goo.gl/GyYTG5.

13 Buttonwood, Keep on Trucking, The Economist, Feb. 11, 2012, https://goo.gl/x8vqaL; see also Megan, supra n.10 (“[A] breadth of research indicates that immigration can be complementary to native born employment, as it spurs demand for goods and services”); Giovanni Peri, The Effect of Immigrants on U.S. Employment and Productivity, Fed. Reserve Bank of San Francisco Economic Letter, Aug. 30, 2010, https://goo.gl/jK17fc.

14 David Bier, Five Myths About DACA, Cato Inst., Sept. 7, 2017, https://goo.gl/y1e8gb.

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benefited the other group, rather than depriving the other of employment opportunities.15 And
yet other studies have shown that increased immigration levels in the U.S. in the past have had largely positive impacts on the employment levels and income of U.S.-born workers.16
These findings hold true today. The unemployment rate has been cut almost in half since 2012, when DACA was created.17 The number of total job openings has increased.18 And
Dreamers are spending money and starting businesses—which help grow the economy and
create more jobs.
2. Dreamers fill critical labor shortages. The jobs being filled by Dreamers post-DACA are largely jobs for which there is a
shortage of qualified workers—not the jobs that are or could be filled by U.S.-born workers. In a
recent survey of U.S. employers, 46 percent of respondents reported difficulty filling jobs—
particularly in skilled labor positions, such as teachers, accounting and finance staff, nurses, and engineers.19 Almost a quarter of employers reported a lack of available applicants; another 34 percent cited a shortage of applicants with necessary skills.20 In 2012, the President’s Council of
Advisors on Science and Technology warned that within ten years, the U.S. could face a shortfall
15 Buttonwood, supra n.13. 16 See Jacqueline Varas, How Immigration Helps U.S. Workers and the Economy, American Action Forum, Mar. 20, 2017, https://goo.gl/ovHQEh. 17 See Nat’l Conference of State Legislatures, National Employment Monthly Update, https://goo.gl/wZBJh8 (last accessed Oct. 31, 2017). 18 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey, https://goo.gl/g4n9Ag (last accessed Oct. 31, 2017). 19 See ManpowerGroup, 2016/2017 Talent Shortage Survey: The United States Results (“ManpowerGroup 2016/2017”), https://goo.gl/rJTKs6; see also Rachel Unruh & Amanda Bergson-Shilcock, Nat’l Skills Coalition, Missing in Action 3-4 (2015), https://goo.gl/gokfJW (“In 2012, middle-skill jobs accounted for 54 percent of the U.S. labor market, but only 44 percent of the country’s workers were trained to the middle-skill level.”). 20 ManpowerGroup 2016/2017, supra n.19.
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of nearly one million professionals in the science, technology, engineering, and mathematics (STEM) fields.21 Even putting aside the skills mismatch, it is unlikely that there are enough available workers to fill the openings: The U.S. unemployment rate is currently quite low, and the number of job openings is high.22
Dreamers help fill this gap. They all have a high school degree or equivalent—and a large percentage of Dreamers are pursuing or have received college or post-college degrees and therefore qualify for highly-skilled jobs.23 In 2016, almost a quarter of Dreamers were employed in the educational or health services industry.24 Many others work in technology, science, and finance,25 and more still are majoring in STEM fields.26 Amici’s experiences confirm this: For example, Microsoft employs 27 Dreamers as “software engineers with top technical skills; finance professionals driving [its] business ambitions forward; and retail and sales associates connecting customers to [its] technologies.”27 IBM has identified at least 31 Dreamers within the company who work in areas such as software development and client support.28 One IBM

21 President’s Council of Advisors on Science and Technology, Report to the President: Engage to Excel: Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering, and Mathematics 1 (Feb. 2012), https://goo.gl/v2YRVD.

22 See U.S. Dep’t of Labor, Bureau of Labor Statistics, Economic News Release Table A-14 (Oct. 6, 2017), https://goo.gl/o8t39g; U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey Highlights August 2017 charts 1 & 2 (Oct. 11, 2017), https://goo.gl/H28XkL. 23 Wong 2017 Results, supra n.2, at 7-8.

24 Ctr. for Am. Progress, Results of Tom K. Wong, United We Dream, National Immigration

Law Center, and Center for American Progress National Survey 4 (2016), https://goo.gl/pe2i17.

25

Id.

26 The UndocuScholars Project, In the Shadows of the Ivory Tower: Undocumented

Undergraduates and the Liminal State of Immigration Reform 8 (2015), https://goo.gl/sEpx1K.

27 Brad Smith, President and Chief Legal Officer, Microsoft, DREAMers Make our Country

and Communities Stronger, Aug. 31, 2017, https://goo.gl/kJYDT3.

28 See Tony Romm, IBM CEO Ginni Rometty Is in D.C. Urging Congress to Save DACA,

Recode.net, Sept. 19, 2017, https://goo.gl/NQeJUc; My American Dream, Minus the Paperwork,

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Dreamer provided critical remote technical support to ensure continuity of IBM’s Cloud services
when Hurricane Harvey flooded Houston. Lyft employs at least one Dreamer as a software
engineer, who serves as one of the tech leads of the team driving critical data projects.
Even Dreamers with lesser-skilled jobs are filling positions for which there is an
insufficient labor supply. “Among less-educated workers, those born in the United States tend to
have jobs in manufacturing or mining, while immigrants tend to have jobs in personal services and agriculture.”29 The latter industries in particular “face[] a critical shortage of workers every year, as citizens are largely unwilling to engage in these physically demanding activities”30— even when companies increase wages the maximum amount financially feasible.31
In sum, Dreamers are filling jobs that otherwise would remain vacant and are increasing
demand for goods and services, which helps to grow the entire economy.
C. Rescinding DACA Will Inflict Enormous Harm On Individuals, Companies, And The Economy.
All of the above benefits—and more—will be lost if DACA’s rescission is permitted to
stand. Over the next decade, our country’s GDP will lose $460.3 billion; and Social Security and Medicare tax receipts will drop $24.6 billion.32
THINKPolicy Blog, Oct. 3, 2017, https://goo.gl/876JDm; I Felt Like a Normal American Kid . . . Then Everything Changed, THINKPolicy Blog, Oct. 9, 2017, https://goo.gl/oV9P7h. 29 Peri, supra n.13. 30 Am. Farm Bureau Federation, Agricultural Labor – Immigration Reform (Oct. 2016), https://goo.gl/WUAz3e; see also Clemens & Pritchett, supra n.10, at 3, (predicting that increase in low-skill jobs in the care industry will be more than the total increase in the 25-54 labor force). 31 See, e.g., Natalie Kitroeff & Geoffrey Mohan, Wages Rise on California Farms. Americans Still Don’t Want the Job, Los Angeles Times, Mar. 17, 2017, https://goo.gl/r1cH9Z; Octavio Blanco, The Worker Shortage Facing America’s Farmers, CNN Money, Sept. 29, 2016, https://goo.gl/ZF2Tdx. 32 See Nicole Prchal Svajlenka et al., A New Threat to DACA Could Cost States Billions of Dollars, Ctr. for Am. Progress, July 21, 2017, https://goo.gl/7udtFu; Jose Magana-Salgado,
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This economic contraction results directly from Dreamers’ loss of work authorization.
The approximately 700,000 employed Dreamers would all lose their jobs over the next two years—an average of 1,400 people losing jobs every single business day.33 In addition to the
obvious harm to Dreamers themselves, the loss of so many workers will have severe
repercussions for U.S. companies and workers.
The impending March 2018 deadline—and threat of job loss and being forced into a life
in the shadows, unable to participate in society, and facing forced removal from the only country
they have ever known—is already impacting Dreamers and, by extension, the companies for
which they work. The fear for the future that is now a daily part of life for Dreamers and their families affects both physical and mental health.34 That, in turn, negatively affects employee productivity and performance, illness and absenteeism, accidents, and turnover.35
Once Dreamers’ work authorizations begin expiring in March 2018, companies will face
an estimated $6.3 billion in costs to replace Dreamers—if they can even find new employees to fill the empty positions.36 Companies will forfeit the money they invested in training Dreamers,
Immigrant Legal Resources Center, Money on the Table: The Economic Cost of Ending DACA 4, 6-7 (2016), https://goo.gl/3ZwGVJ; see also Brannon & Albright, supra n.8 (estimating cost of “immediately eliminating the DACA program and deporting its participants” to be $283 billion reduction in economic growth and over $60 billion reduction to tax revenues over 10 years). 33 Ctr. for Am. Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program 3 (2017), https://goo.gl/P3DgPz. 34 See Tiziana Rinaldi & Angilee Shah, Immigration Limbo Is a ‘Tug of Emotions.’ It’s Also a Mental Health Issue, PRI’s The World, Aug. 22, 2017, https://goo.gl/WLXMZ4; Sarah Elizabeth Richards, How Fear of Deportation Puts Stress on Families, The Atlantic, Mar. 22, 2017, https://goo.gl/qDgeRf. 35 See World Health Org. & Int’l Labour Org., Mental Health And Work: Impact, Issues and Good Practices 1 (2000), https://goo.gl/ecH1Ut. 36 See David Bier, Ending DACA Will Impose Billions in Employer Compliance Costs, Cato Institute, Sept. 1, 2017, https://goo.gl/1FMidk; see also Magana-Salgado, supra n.32, at 4, (estimating turnover costs due to DACA termination to be $3.4 billion).
9

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 17 of 29 PageID #: 6418
and will incur costs recruiting and training new employees, who will be less experienced and therefore less productive.37 These costs are particularly burdensome for small businesses.
The numbers are relevant, but numbers alone do not come close to capturing Dreamers’ contributions and the tremendous harm that will result from their loss. People are the heart of every business; and every company’s goal is to create teams that work seamlessly together— teams in which colleagues support each other both within and outside the workplace. Ripping Dreamers out of their jobs hurts not only Dreamers, but other employees who lose friends and colleagues, and companies that lose trusted members of their teams.
History shows that forcing Dreamers out of the workforce and into the shadows will also reduce job growth and harm the U.S. economy. After Arizona passed the Legal Arizona Workers Act in 2007, which targeted the use of unauthorized workers, its population of undocumented workers dropped by 40 percent. Economic growth fell, reducing job opportunities: The state’s total employment was 2.5 percent less than what it would have been without the laws, and its GDP was reduced by an average of 2 percent a year between 2008 and 2015.38
Similarly, in 1964, the U.S. expelled Mexican braceros, who were previously permitted to work temporarily in the U.S., mostly on farms. A recent study revealed that excluding the Mexican braceros “did not affect the wages or employment of U.S. farmworkers.”39 Instead,
37 Heather Boushey & Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Ctr. for Am. Progress, Nov. 16, 2012, https://goo.gl/ZSmRLq. 38 See Bob Davis, The Thorny Economics of Illegal Immigration, Wall St. J., Feb. 9, 2010, https://goo.gl/j4dd7J; see also Sarah Bohn et al., Do E-Verify Mandates Improve Labor Market Outcomes of Low-Skilled Native and Legal Immigrant Workers? 17-18, 21, 24-25 (2014), https://goo.gl/7UihSE (finding that employment rates of U.S.-born men—both Hispanic and nonHispanic white men—dropped post-LAWA). 39 Michael A. Clemens, Does Kicking Out Mexicans Create Jobs?, Politico Magazine, Feb. 15, 2017, https://goo.gl/XwLj1x.
10

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 18 of 29 PageID #: 6419

farms responded by eliminating the jobs—often by moving production abroad or going out of business.40
Removing Dreamers from the workforce is likely to have the very same negative effect on U.S. employment levels as companies are unable to fill critical jobs. That effect will be exacerbated as Dreamers are forced to shutter businesses that employ other workers and other companies lose the income that has helped drive demand and production of goods and services provided by U.S.-born workers.41
And the harm will be much more far-reaching: Just as DACA sent a powerful message of inclusion, its rescission tells the immigrants who have been integral to the growth and development of our society and economy for decades that they are no longer welcome here. As a result, DACA’s rescission will reduce the future ability of U.S. companies to attract individuals from around the world to support America’s continued economic growth and prosperity. II. THE DECISION TO RESCIND DACA IS INVALID, BECAUSE IT IS
ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW. DHS rescinded DACA based entirely on its legal conclusion that DACA “was effectuated . . . without proper statutory authority” and therefore “was an unconstitutional exercise of authority by the Executive Branch.” Memorandum from Elaine C. Duke, Acting Secretary, Dep’t of Homeland Security, on Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017). DHS’s decision stands or falls on the correctness of that legal

40

Id.

41 Cf. Ben Gitis & Jacqueline Varas, The Labor and Output Declines From Removing All

Undocumented Immigrants, Am. Action Forum, May 5, 2016, https://goo.gl/UAt3dJ (concluding

that removing undocumented immigrants from the workforce would cause private sector

employment to decline by 4 to 6.8 million workers, would reduce real private sector output by

$381.5 to $623.2 billion, and would have further negative economic impacts through the loss of

consumption, investments, and entrepreneurship).

11

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 19 of 29 PageID #: 6420
determination: If DHS got the law wrong, its action is not supported by a valid justification and therefore is arbitrary and capricious in violation of the APA. See 5 U.S.C. § 706(2)(A); Safe Air For Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (“Because [EPA’s flawed legal interpretation] is fundamental to EPA’s determination that [the State] did not contravene [the Clean Air Act], EPA’s outcome on those statutory interpretation questions is ‘arbitrary, capricious, or otherwise not in accordance with law’ for the purposes of our review.”).
DHS’s legal interpretation was plainly erroneous, and its decision to rescind DACA therefore cannot stand. DACA confers two related benefits: deferral of government action to remove the individual from the United States (known as “deferred action”) and eligibility for work authorization. Both elements have long been recognized in U.S. immigration law.
First, granting “deferred action” is a long-established practice engaged in by Administrations of both parties and expressly recognized by the Supreme Court. See Reno v. American Arab Anti-Discrimination Committee (“AAADC”), 525 U.S. 471, 483-85 (1999) (describing “regular practice” of “deferred action”).42 The decision to defer removal proceedings is an exercise of prosecutorial discretion that falls squarely within the Executive Branch’s constitutional authority to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
In the immigration context, moreover, Congress has codified that discretion. Until 1940, “the deportation statute unyieldingly demanded that an alien illegally in the United States be deported.” Johns v. DOJ, 653 F.2d 884, 890 n.12 (5th Cir. 1981). Now, however, the
42 See also Arizona v. United States, 567 U.S. 387, 396 (2012) (“A principal feature of the removal system is the broad discretion exercised by immigration officials.”); CHARLES GORDON ET AL., 6-72 IMMIGRATION LAW AND PROC. § 72.03 (Matthew Bender, rev. ed.); Mem. Op. for the Sec’y of Homeland Security and the Counsel to the President, 38 Op. Off. Legal Counsel 1, 13-18 (Nov. 19, 2014), https://www.justice.gov/file/179206/download.
12

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immigration laws specifically charge the secretary of Homeland Security with “establishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and to carry out the “administration and enforcement of th[e INA] and all other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a); see also H.R. Rep. No. 11-157, at 8 (2009) (“[R]ather than simply rounding up as many illegal immigrants as possible, which is sometimes achieved by targeting the easiest and least threatening among the undocumented population, DHS must ensure that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”).
Congress has on several occasions expanded deferred action to certain categories of individuals.43 And it enacted 8 U.S.C. § 1252(g), which the Supreme Court explained was intended to preserve the INS’s exercise of discretion in granting deferred action while “giv[ing] some measure of protection to ‘no deferred action’ decisions.” AAADC, 525 U.S. at 484-85.
Second, conferring eligibility for work authorization has a similarly lengthy pedigree. A regulation promulgated in the 1980s provides that individuals who receive deferred action are eligible to apply for work authorization. See 8 C.F.R. § 274a.12(c)(14) (providing eligibility to apply for work authorization to “[a]n alien who has been granted deferred action”). Congress has legislated on the basis of this regulation, enacting a law prohibiting employers from hiring unauthorized aliens, but expressly excluding from that category individuals “authorized to be so employed by . . . the Attorney General.” 8 U.S.C. § 1324a(h)(3); cf. 49 U.S.C. § 30301 note
43 See, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain aliens who selfpetition for relief under the Violence Against Women Act of 1994, Pub. L. No. 103-322, Tit. V, 108 Stat. 1092, are eligible to request “deferred action”); USA PATRIOT Act, Pub. L. No. 10756, § 423(b), 115 Stat. 272, 361 (2001) (providing that certain family members of lawful permanent residents killed on September 11, 2001, or of citizens killed in combat, are “eligible for deferred action”); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108136, § 1703(c)-(d), 117 Stat. 1392, 1694-1695 (2003) (same).
13

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 21 of 29 PageID #: 6422
(providing that certain states may issue driver’s licenses to aliens with “approved deferred action status”).
In concluding that DACA was an unconstitutional exercise of authority, DHS claimed that DACA suffered from the defect identified by the Fifth Circuit in a case challenging a separate deferred action program, DAPA. But the plaintiffs in that earlier case did not challenge the authority of the Executive Branch to exercise its discretion to defer removal with respect to certain undocumented immigrants, even on a categorical basis. Instead, the dispute centered on a statement in the memorandum implementing DAPA that “for a specified period of time, an individual [covered by DAPA] is permitted to be lawfully present in the United States.” See Texas v. United States, 809 F.3d 134, 147-49, 166, 179-84 (5th Cir. 2015). The claim was that DHS lacked the authority to confer “lawful[] presen[ce]” and the Fifth Circuit agreed. The memorandum establishing DACA contains no such language, and the Fifth Circuit’s rationale is therefore inapplicable.
In short, ample constitutional and statutory authority exists for DACA. DHS’s rescission of DACA based on a contrary legal conclusion is accordingly unfounded and should be vacated.
CONCLUSION For the foregoing reasons, amici urge the Court to grant Plaintiffs’ motions for preliminary injunction.
14

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 22 of 29 PageID #: 6423

Of Counsel:
Seth P. Waxman Patrick J. Carome Ari Holtzblatt WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 seth.waxman@wilmerhale.com patrick.carome@wilmerhale.com ari.holtzblatt@wilmerhale.com
Janine M. Lopez WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 janine.lopez@wilmerhale.com
Counsel for Amici Curiae Airbnb, Inc., Square, Inc., Twitter, Inc., and Yelp Inc.

/s/ Andrew J. Pincus
Andrew J. Pincus (pro hac vice) MAYER BROWN LLP 1999 K Street NW Washington, DC 20006 (202) 263-3000 apincus@mayerbrown.com
Lauren R. Goldman Karen W. Lin (pro hac vice) Rory K. Schneider (pro hac vice) MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020-1001 (212) 506-2500 lrgoldman @mayerbrown.com klin@mayerbrown.com rschneider@mayerbrown.com
Counsel for Amici Curiae

15

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 23 of 29 PageID #: 6424

APPENDIX A

LIST OF AMICI CURIAE

1.

6Sense Insights, Inc.

2.

A Medium Corporation

3.

Adobe Systems Incorporated

4.

AdRoll, Inc.

5.

Affirm, Inc.

6.

Airbnb, Inc.

7.

Alation, Inc.

8.

Ampush LLC

9.

Andela, Inc.

10. Appboy, Inc.

11. AppNexus Inc.

12. Asana, Inc.

13. Atlassian Corp. Plc

14. Azavea Inc.

15. Ben & Jerry’s Homemade, Inc.

16. Bigtooth Ventures

17. Box, Inc.

18. Brightcove Inc.

19. BSA | The Software Alliance

20. CareZone Inc.

21. CartoDB Inc.

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 24 of 29 PageID #: 6425
22. Casper Sleep Inc. 23. Castlight Health, Inc. 24. Cavium, Inc. 25. Chegg, Inc. 26. Chobani, LLC 27. Civis Analytics, Inc. 28. Citrix Systems, Inc. 29. ClassPass Inc. 30. Cloudera, Inc. 31. Cloudflare Inc. 32. Codecademy 33. Color Genomics, Inc. 34. The Copia Institute 35. Credit Karma, Inc. 36. DocuSign, Inc. 37. DoorDash, Inc. 38. Dropbox, Inc. 39. eBay Inc. 40. Edmodo, Inc. 41. Electronic Arts Inc. 42. EquityZen Inc. 43. Facebook, Inc. 44. General Assembly Space, Inc.

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 25 of 29 PageID #: 6426
45. Glassdoor, Inc. 46. Google Inc. 47. Gusto 48. Greenhouse Software, Inc. 49. Hewlett Packard Enterprise 50. Homer Logistics, Inc. 51. IBM Corporation 52. IDEO LP 53. Imgur Inc. 54. Indiegogo, Inc. 55. Kargo 56. Knotel 57. Lam Research Corporation 58. Levi Strauss & Co. 59. Linden Research, Inc. 60. LinkedIn Corporation 61. Lithium Technologies, LLC 62. Lyft, Inc. 63. Lytro, Inc. 64. Mapbox 65. Marin Software Incorporated 66. Medidata Solutions, Inc. 67. Microsoft Corporation

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 26 of 29 PageID #: 6427
68. Molecule Software, Inc. 69. MongoDB, Inc. 70. Motivate International Inc. 71. Mozilla 72. NETGEAR, Inc. 73. NewsCred, Inc. 74. NIO U.S. 75. Oath Inc. 76. Patreon, Inc. 77. PayPal Holdings, Inc. 78. Pinterest, Inc. 79. Pixability, Inc. 80. Postmates Inc. 81. Quantcast Corp. 82. RealNetworks, Inc. 83. Reddit, Inc. 84. Redfin Corporation 85. salesforce.com inc. 86. Scopely, Inc. 87. Shutterstock, Inc. 88. Singularity University 89. Sizmek, Inc. 90. SpaceX

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 27 of 29 PageID #: 6428
91. Spokeo, Inc. 92. Spotify USA Inc. 93. Square, Inc. 94. Squarespace, Inc. 95. Strava, Inc. 96. SurveyMonkey Inc. 97. Tesla, Inc. 98. The Software and Information Industry Association 99. Thumbtack 100. TripAdvisor, Inc. 101. Tumblr, Inc. 102. Turo Inc. 103. Twilio Inc. 104. Twitter Inc. 105. Uber Technologies, Inc. 106. Udacity Inc. 107. Upwork Inc. 108. Verizon Communications Inc. 109. Via 110. Warby Parker 111. Work & Co. 112. Workday, Inc. 113. Yelp Inc.

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 28 of 29 PageID #: 6429 114. Zendesk, Inc.

Case 1:17-cv-05228-NGG-JO Document 132 Filed 12/21/17 Page 29 of 29 PageID #: 6430
CERTIFICATE OF SERVICE I hereby certify that on December 21, 2017, a copy of the foregoing pleading was filed electronically with the Clerk of Court to be served by operation of the Court’s electronic filing system.
/s/ Andrew J. Pincus Andrew J. Pincus

 
 Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 1 of 25 PageID #: 6431

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al., Plaintiffs,
v. DONALD TRUMP, et al.,
Defendants.
MARTIN JONATHAN BATALLA VIDAL, et al., Plaintiffs,
v. KIRSTJEN M. NIELSEN, et al.,
Defendants.

Case No. 1:17-cv-05228 (NGG) (JO) Case No. 1:16-cv-04756 (NGG) (JO)

AMICUS BRIEF OF PARTNERSHIP FOR EDUCATIONAL JUSTICE, DELAWARECAN: THE DELAWARE CAMPAIGN FOR ACHIEVEMENT NOW, HAWAIIKIDSCAN, NEWMEXICOHIDSCAN, AND VIRGINIA EXCELS IN SUPPORT
OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 2 of 25 PageID #: 6432
TABLE OF CONTENTS
I'a;;c
TABLE OF AUTHORITIES ......................................................................................................... ii STATEMENT OF INTEREST...................................................................................................... l PRELIMINARY STATEMENT ................................................................................................... l ARGUMENT................................................................................................................................. 3
I. ENDING DACA WILL CAUSE IRREPARABLE EDUCATIONAL INJURY TO K-12 STUDENTS WHO HAVE ALREADY RECEIVED DACA OR WHO WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA.............................................. 3
A. If the Rescission Memorandum Is Not Enjoined, Barriers to Higher Education and Legal Employment Will Decrease Motivation and Academic Engagement Among K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA............. 4
B. If the Rescission Memorandum is Not Enjoined, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Be Forced Out of Mainstream American Society, Irreparably Impairing Their Educational Opportunities........................................................... 8
C. If the Rescission Memorandum is Not Enjoined, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Suffer from Mental and Physical Health Issues That Negatively Affect Academic Performance .......................................................... 10
II. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS WHOSE PARENTS ARE DACA RECIPIENTS OR WHOSE PARENTS WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA........................................................................ 14
A. If the Rescission Meinoranduin is Not Enjoined, Adult DACA Recipients Will Have Greater Difficulty Providing for Their U.S.-Born Children, Leading to Poorer Academic Perfonnance .......................................................... 15
B. If the Rescission Memorandum is Not Enjoined, U.S.-Born Children of Adult DACA Recipients Will Experience Health Issues That Negatively Affect Academic Performance............................................................................. 17
III. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS WHOSE TEACHERS ARE DACA RECIPIENTS........................................................................ 18
CONCLUSION............................................................................................................................ 20

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 3 of 25 PageID #: 6433

TABLE OF AUTHORITIES

Pages)

Cases

Brown v. Board ofEducation, 347 U. S. 483 (1954)........

.......................................................................................2, 3

Plyler v. Doe, 457 U.S. 202 (1982)

.......................................................................................1, 3

Other Authorities

Caitlin Patler &Whitney Laster Pirtle, From Undocumented to Lawfully Present: Do Changes to Legal Status Impact Psychological Wellbeing AmongLatino Immigrant Young Adults? Social Science &Medicine (2017)...........................

.............11

DACA —FederalPolicy andExamples ofState Actions, National Conference of State Legislatures (Sept. 5, 2017) ....................................................................

.............10

Emily Greenman &Matthew Hall, Legal Status andEducational Ti-ansitionsfor Mexican and Central American Immigrant Youth, 91 Social Forces (2013). ..

...........5, 6

Ginette Magana, DACAmented Teachers: Educating andEnriching Their Communities, The Obama White House (Aug. 4, 2015) ............................

.............19

Grace Chen, ParentalInvolvement is Key to Student Success, Public School Review (July 2, 2017) ..............................................................................................................17

Hedy N. Change and Mariajose Romero, Present, Engaged, and Accounted For: The Criticallmportcznce ofAddressing Chronic Absence in the Early Grades, National Center for Children in Poverty (Sept. 2008). ............................................................15

Hirokazu Yoshikawa, et al., Unauthorized Status and Youth Development in the United States, 27 Journal of Research on Adolescence (20l 6). ................................................5

Hirokazu Yoshiwaka, Immigrants Raising Citizens: Undoczrmented Parents and Their Young Children (2011) .......................................................................................15, 16, 17

Jens Hainmueller et al., Protecting UnauthorizedImmigrant Mothe~~s Improves Their Children's MentalHealth, 357 Science, 1042 (2017) ...................................................11

Jie Zong, et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, MPI Fact Sheet, 4 (Nov. 2017). .....................................................................3

Joanna Dreby, Everyday Illegal.• When Policies Undermine Inzmigra~zt Families (2015) ...............................................................................................................................passim

m

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 4 of 25 PageID #: 6434
Jonathan Blitzer, After an Immigration Rcrid, a City's Students Vanish, The New Yorker (March 23, 2017) ...........................................................................................................8
Jonathan Blitzer, UndocumentedImmigrants Bracefor.the Trump Administration, The New Yorker (Dec. 19, 2016) ............................................................................................14
Laura Bornfreund, Study Finds Drop in Preschool Enrollment for Latino Children, New America (April 14, 2011)................................................................................16
Maggie Fox, Pediatricians Speak Out Against President Trump's Immigration Orders, NBC News (Jan. 26, 2017) .........................................................................................11
Matthew Ronfeldt et al., How Tec~cher Turnover Harms Student Achievement, Am. Educ. Res. J. 4 (2011) ......................................................................................................20
Moriah Balingit, As DACA Winds Down, 20,000 Educators are in Limbo, The Washington Post (Oct. 25, 2017).............................................................................................19
Olga Khazan, The Toxic Health Effects ofDeportation Threat, The Atlantic (Jan. 27, 2017)............................................................................................................................11, 17
Randy Capps, et al., The Education and Work Profiles of the DACA Population, MPI Issue Brief (Aug. 2017) .....................................................................................................3
Robert Balfanz, et al., Preventing Student Disengagement andKeeping Students on the Graduation Path in Urban Middle-Grades Schools, 42 Educational Psychologist 224 (2007) ............................................................................................................6
Robert Samuels, With Hispanic Students on the Rise, Hispanic Teachers in Short SuPPIY~ The Washington Post (Nov. 15, 2011)........................................................................19
Roberto G. Gonzales & Kristina Brant, Anezlysis: DACA Boosts Young Immigrants' Well-Being, MentalHealth, NBC News (Jun. 15, 2017) ......................................7
Roberto G. Gonzales &Sarah A. Rendon-Garcia, Understanding the Deferred Actionfor Childhood Arrivals (DACA) Impact on Young Adults' Well-Being, APA (Nov. 2016) .......................................................................................................................8
Roberto G. Gonzales, DACA's Beneficiaries Landed Good Jobs, Enrolled in College, and Contributed to Society, Vox (Sept. 5, 2017) ......................................................10
Roberto G. Gonzales, et al. BecomingDACAmented: Assessii2g the ShoYt-Term Benefits ofDeferred Actionfor Childhood Arrivals, 58 American Behavioral Scientist (2014). .....................................................................................................................4, 9
Roberto G. Gonzales, et al., DACA at Year Three: Challenges cancl Opportunities in Accessing Higher Education andEmployment, American Immigration Council, 2 (Feb. 1, 2016). ....................................................................................................7, 12
iii

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 5 of 25 PageID #: 6435
Roberto G. Gonzales, Lives in Limbo: Undocumented crud Coming ofAge in America (2016) ................................................................................................................passim
Samantha Michaels, 1in 4 Dreamers are Parents of US Citizens, Mother Jones (Sept. 7, 2017)........................................................................................................... ..........14
Stephanie Potochnick and Krista Perreira, Depression and Anxiety among FirstGeneration ImmigYant Latino Youth, 198 Journal of Nervous and Mental Disease (2010). ........................................................................................................................1 1
Teachers Matter: Understanding Teachers' Impact on Student Achievement, Rand Education ................................................................................................................................. 1 K
~~~

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 6 of 25 PageID #: 6436
STATEMENT OF INTEREST Amici are Partnership for Educational Justice, DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, and Virginia Excels, each of which is a member of the education nonprofit SOCAN: 50-State Campaign for Achievement Now.l Amici advocate for ahigh-quality education for all children, regardless of their immigration status, home address, or economic background. Amici work to empower families and improve the quality of public schools by conducting research, surveying students, teachers, and school administrators, engaging in legal action, fostering grassroots organizing efforts, and advocating for policies and practices at the state and local level. Through their research and advocacy efforts, amici are uniquely situated to articulate the irreparable harm that will be experienced by kindergarten through twelfth grade ("K-12") students if the September 5, 2017 DACA Rescission Memorandum2 is enforced. Moreover, the work performed by amici will be impeded if the Rescission Memorandum is not enjoined, because undocumented students and their parents will be less willing to openly engage with nonprofit organizations if they are vulnerable to deportation.
PRELIMINARY STATEMENT In Plyler v. Doe, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment guarantees all children in the United States the right to a public elementary and secondary education, regardless of immigration status. 457 U.S. 202 (1982). Because it is "doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education . . . [s]uch an opportunity. . . is a right which must be
~ The Court has granted amici's motion for leave to file this brief. See Mot. for Leave to File Amicus Br., Dkt. 137 in 16-CV-4756; Dkt. 112 in 17-CV-5228; Order dated Dec. 20, 2017. 2 Memorandum on Rescission Of Deferred Action For Childhood Arrivals from Acting Secretary Elaine C. Duke (Sept. 5, 2017) ("Rescission Memorandum").

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 7 of 25 PageID #: 6437
made available to all on equal teems." Id. at 222-223 (citingBrown v. Board ofEducation, 347 U. S. 483, 493 (1954)) (emphasis added). If the Rescission Memorandum is enforced, hundreds of thousands of undocumented K-12 students will suffer irreparable educational injury and will be deprived of the ability to obtain a K-12 public education on equal terins with their U.S.-born peers.
Prior to the enactment of the "Deferred Action for Childhood Arrivals" ("DACA") program, the educational prospects of undocumented children were significantly curtailed by their immigration status, which often prevented them from gaining access to many of the academic resources available to their U.S.-born peers. The implementation of DACA in 2012, however, rapidly expanded undocumented young people's future opportunities, incentivizing them to work harder, complete high school, and gain admission to colleges and universities. DACA has also allowed undocumented adolescents to take part in many rites of passage, such working legally and securing an internship, which position students to pursue long term educational and career goals. Critically, DACA has eliminated the daily fear of arrest and deportation among recipients. As a result, undocumented K-12 students have enjoyed better mental health, allowing them to focus on their studies rather than their worries and anxiety. If the Rescission Memorandum is not enjoined, undocumented students will be stripped of many resources that supported their academic success in recent years, and schools across the nation will face significant obstacles in educating and mentoring these students.
DACA has also provided significant educational benefits to U.S.-born children. DACA's work authorization allows parents who are DACA recipients to better provide for their families, helping their children gain access to valuable educational resources. Additionally, parents who are not threatened with deportation are more likely than their undocumented counterparts to take

Case 1:17-cv-05228-NGG-JO Document 133 Filed 12/21/17 Page 8 of 25 PageID #: 6438
advantage of public benefits that help children thrive and succeed academically. DACA provides psychological relief to children who previously lived in constant fear that their parents would be deported, thereby improving their performance at school. Furthermore, thousands of K-12 students are currently taught by DACA-recipient teachers who bring unique skills to the classroom. If the Rescission Memorandum is not enjoined, U.S.-born children of DACA recipients will be snore likely to live in poverty and to suffer from mental health problems, impairing their ability to succeed in school, and students who are taught by DACA-recipient teachers will be deprived of highly effective educators.
A preliminary injunction prohibiting the Government from enforcing the Rescission Memorandum is necessary to prevent irreparable harm to K-12 students and is in the public interest.
ARGUMENT I. ENDING DACA WILL CAUSE IRREPARABLE EDUCATIONAL INJURY TO
K-12 STUDENTS WHO HAVE ALREADY RECEIVED DACA OR WHO WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA In Plyler v. Doe, the Court recognized that educating the next generation of adults is "perhaps the most important function of state and local goverrunents." 457 U.S. at 222-223 (citing Brown, 347 U.S. at 493). The Migration Policy Institute ("MPI") estimates that at least 130,000 DACA recipients are currently in high school,3 and hundreds of thousands of elementary and middle school students will become eligible to receive DACA in coming years.4 If the Rescission Memorandum is not enjoined, these students will lose their motivation to succeed academically, be ostracized from mainstream society, and will experience increased
3 Jie Zong, et al., A ProTle of Current DACA Recipients by Education, Industry, and Occupation, MPI Fact Sheet, 4 (Nov. 2017). 4 Randy Capps, et al., The Education and Worlc Profiles of the DACA Population, MPI Issue Brief, 3 (Aug. 2017).
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mental health problems. As a result, public schools across the country will encounter significant challenges in fulfilling their duty to educate hundreds of thousands of K-12 students.
A. If the Rescission Memorandum Is Not Enjoined, Barriers to Higher Education and Legal Employment Will Decrease Motivation and Academic Engagement Among K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA
In the pre-DACA era, undocumented young people were discouraged from excelling academically because they faced substantial obstacles that foreclosed many of their post-high school opportunities. For example, federal law prohibits undocumented students from receiving federal financial aid, and state laws governing access to in-state tuition and state financial aid vary wildly.s Forced to work at low-paying jobs, and ineligible for much of the financial aid and scholarship money available to their peers, undocumented college students often found it impossible to afford tuition.6 These students were also barred from participating in work-study progams that offset college costs and provide entry-level professional experience, and they were excluded from any college major or career that required "hands on" training in the form of
internships or other progra~ns.~ Even those undocumented students who did manage to obtain some form of higher
education were often relegated to "low-end service sector work," such as "light manufacturing, construction, and private businesses, such as landscaping, housekeeping, and cleaning."8 These jobs, which rarely matched the education or skill level of undocumented high school graduates, seldom provided benefits, opportunities for advancement, or job security.9 As a result,
5Ihave DACA andIec~n Use the FAFSA? Say What?!, United We Dream, 4-5 (20] 6). 6 ROBERTO G. GONZALES, Lives in Limbo: Undocumented and Coming ofAge in America, 89, l24 (2016). ~ Roberto G. Gonzales, et al. Becoming DACAmented.~ Assessing the Short-Term Benefits of Deferred Action,for Childhood A~~r~ivals, 58 American Behavioral Scientist, 1854 (2014). 8 GONZALES, supra note 6, at 125. ~ Id.

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undocumented high school and college graduates frequently expressed frustration with the "very narrow range of opportunities" available to thein.10 As one young woman put it, "I graduated from high school and have taken some college credits. . . . Neither of my parents made it past fourth grade. . . . But I'in right where they are. . . . Why didIeven go to school?"~ ~
Predictably, undocumented high school students in the pre-DACA era often became umnotivated as they confronted a severely limited set of educational and professional prospects.~ Z Before DACA, undocumented high school students dropped out of school more and enrolled in college less than their peers. ~ 3 A 2013 study found that almost 84 percent of U.S.born Hispanic high school students completed high school, whereas only 67 percent of undocumented immigrant high school students born in Mexico and Central America did so.la Documented high school students were four times as likely as their undocumented peers to enroll in college.15 Undocumented students often found it difficult to believe that investing in their education would provide any significant long-term gains—one researcher who examined the daily lives of undocumented children prior to the enactment of DACA reported that her subjects spoke of legal status as "the most important factor in decisions related to future college attendance."~ 6
io Id. 1 ~ Id. at 124. 1z Hirokazu Yoshikawa, et al., Unauthorized Status and Youth Development in the United States, 27 Journal of Research on Adolescence, 10 (2016). 13 Emily Greenman &Matthew Hall, Legal Status andEducational Transitionsfor Mexican and Central American Immigrant Yout/z, 91 Social Forces, 1479 (2013). 14 Id. at 1486. ~ S ld. at 1490. 16 JOANNA DREBY, Everyc~tty Illegnl.• When Policies Undermine Immigrant Families, 178-179 (2015); GONZALES, sups^a note 6, at 125.
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The threat of deportation deprived undocumented students of key educational resources in the pre-DACA era. Undocumented students were often barred from participating in college preparation programs that required applicants to provide Social Security numbers.~~ Undocumented students were less willing than their U.S.-born peers to seek support from teachers and guidance counselors because the "risks of disclosure [of their immigration status] were judged too great."~ g Lacking mentors to help them navigate the college application process, many undocumented young people did not learn about the limited opportunities for scholarships and financial aid that were available to them.~~ These students missed out on educational and cultural experiences due to fear of deportation. One young man recalled telling his classmates that his parents would not let him take part in a senior class trip, when in reality he could "not risk going through the freeway immigration checkpoints."20
Students who are vulnerable to deportation are more likely to be chronically absent from school, especially during periods of increased enforcement efforts.21 Poor attendance jeopardizes students' academic performance, with one study finding that ninth-graders who experienced prolonged absences dropped out of high school at higher rates.22 An 18 year-old student in Delaware23 described feeling extremely anxious whenever family members picked her
~ ~ GONZALES, supra note 6, at 98. ~ g Id. at l09. t ~ Id. 20 Id. at 113. 21 DREBY, supra note 16, at 103. 22 Robert Balfanz, et al., Preventing Student Disengagement andKeeping Students on the Graduation Path i» Urban Middle-Grades Schools, 42 Educational Psychologist 224 (2007). z3 To provide the Court with a better understanding of how the DACA rescission will affect the educational prospects of K-12 students, DelawareCAN has shared the perspectives of a number of DACA-recipient students with whom the organization has worked. The names of these students have been withheld to protect their anonymity.
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up or dropped her off at school before she received DACA because she worried that she or her relatives might be detained outside of the school entrance.24
Almost overnight, DACA provided undocumented K-12 students with a remarkably
expanded set of options. Encouraged by the prospect of working toward real careers, high
school-aged DACA recipients reported "an immediate change in their motivation."25 Attending college and working in their "dream fields" suddenly became attainable goals.26 As one young
woman explained, "My freshman year and my sophomore year,Idid really bad, mostly because
Iwas just not motivated because . . .all of this is going to be worthless in the end. But then
when DACA came out,Istarted doing a lot better. . . .Iwas super motivated."27 DACA has also
allowed these students to come out of the shadows and take full advantage of the academic
resources many U.S.-born students take for granted. The release of the Rescission Memorandum has already led to decreased motivation and
increased absenteeism among immigrant students. Dr. Marguerite Getting, a pediatrician whose
practice focuses on immigrant and low-income patients,28 described treating a 17 year-old DACA recipient who had intended to enroll in a nursing program, but is now reconsidering her
plan because she does not know whether she will be able to obtain a job after graduating.z~ Dr.
24 Interview of 18 Year-Old Female DACA Recipient from Delaware, Dec. 19, 2017. ZS Roberto G. Gonzales, et al., DACA at Year Three: Challenges and Opportunities in Accessing Highe~~ Ediccc~tion crud Employment, American Immigration Council, 2 (Feb. l, 2016).
26 Id.
27 Roberto G. Gonzales & Kristina Brant, Analysis: DACA Boosts YoungImmigrants' WellBeing, Mental Health, NBC News (Jun. 15, 2017), https://www.nbcnews.com/news/latino /analysi s-daca-boosts-young-immigrants-well-being-mental-health-n772431. 28 To provide the Court with a better understanding of how the DACA rescission will affect the health of K-12 students, we interviewed a number of medical professionals who treat immigrant youth. These doctors were interviewed in their individual capacities and did not speak on behalf of any organization with which they are affiliated. We did not solicit or receive any information that could be used to identify their patients. 29 Interview of Dr. Marguerite Getting, Dec. 18, 2017.
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Getting also reported that the aunt of one of her patients, a 15 year-old DACA recipient, refused to allow her nephew to go to school for weeks because the worried that the police would be called—and he would ultimately be deported—if he happened~to get into a fight with another student.30 Recently, after Immigration and Enforcement officers conducted a raid in Las Cruces, New Mexico, the town's public schools experienced a 60% increase in absences compared to the
previous week.3 ~ When students are afraid of being detained or deported, they are less likely to go to class,
seek support from school officials, and apply for scholarships.32 If the Rescission Memorandum is enforced, the academic opportunities available to current DACA recipients, as well as those of children who planned to apply for DACA, will again be curtailed by their immigation status.
B. If the Rescission Memorandum is Not Enjoined, K-12 Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Be Forced Out of Mainstream American Society, Irreparably Impairing Their Educational Opportunities
A guaranteed K-12 public school education ensures that undocumented children develop "identities, values, and aspirations that parallel their American born citizens and peers."33 Before the enactment of DACA, however, undocumented young people began to experience what Harvard professor Roberto Gonzales describes as a "transition to illegality" upon reaching adolescence. Undocumented teenagers found themselves left behind as their U.S.-born peers reached many of the milestones that mark growing up in the United States.34
3o Id. 3 1 Jonathan Blitzer, After an Immigration Raid, a City's Students Vanish, The New Yorker (March 23, 2017). 32 GONZALES, supra note 6, at 109; DxESY, supra note 16, at 103. 33 Roberto G. Gonzales &Sarah A. Rendon-Garcia, Understanding the Deferred Actionfor Childhood Arrivals (DACA) Impact on Young Adults' Well-Being, APA (Nov. 2016), http://www.apa.org/pi/families/resources/newsletter/2016/11/deferred-action.aspx. 3a Id.

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Prohibited from obtaining driver's licenses in many states, these adolescents were forced to rely on public transit long after their friends had started driving. In areas lacking reliable public transportation, this could be tremendously isolating, making daily commutes to school difficult and time consuining.35 Obtaining any official form of identification, in fact, posed a significant challenge for undocumented young people in the pre-DACA era, meaning visits to libraries and other educational institutions could be hampered by their immigration status.36
As their friends strengthened their resumes and started saving for college through summer jobs and internships, undocumented young people in the pre-DACA era were frequently forced to perform unskilled labor for low wages.37 Furthermore, because many financial institutions require customers to provide identification documents, young people without Social Security numbers were often prevented from opening bank accounts, making saving for higher education, and paying for college applications far more challenging.38
DACA's work authorization allows undocumented young people to obtain jobs and internships that provide entry level work experience, build resumes, and strengthen college applications.39 An 18-year old DACA recipient who is currently a freshman at her "dream" university described how DACA's work authorization allowed her to obtain an internship with a college preparation leadership program. Through this program, she was able to educate over 200
3s BecomingDACAnzented, suprn note 7, at 1855. 36 GONZALES, supra note 6, at 113. 37 GONZALES, supra note 6, at 125. 3x BecomingDACAmented, supra note 7, at 1855. 3`' Roberto G. Gonzales &Angie M. Bautista-Chavez, Two Years and Counting.• Assessing the GirowingPower ofDACA, American Immigration Council (June 16, 2014), https://www.a~nericanimmigrationcouncil.org/research/two-years-and-counting-assessinggrowing-power-daca.
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students, including a number of other DACA recipients, about the college application process, which she had successfully navigated herself despite her family's economic hardships.ao
DACA recipients' increased wages can now be deposited into interest-bearing bank accounts, and they can build credit by obtaining credit cards.41 Although 38 states, including New York and Virginia, currently bar undocumented individuals from acquiring driver's licenses, all 50 states allow DACA recipients to do so.42 DACA recipients have seized on the opportunity to join mainstream society—a 2015 survey of 2,700 DACA recipients found that approximately 60% of respondents had found a new job, 20%had gotten a paid internship, 50% had opened their first bank account, 33%had obtained a credit card, and 60% had gotten a driver's license.a3
If the Rescission Memorandum is not enjoined, current DACA recipients, along with children who planned to apply for DACA, will lose their ability to gain educational and professional experience through legal employment. Moreover, they will be forced to live in the shadows without access to driver's licenses, bank accounts, or credit cards, making the process of applying to, enrolling in, and paying for college far less manageable.
C. If the Rescission Memorandum is Not Enjoined, K-12.Students Who Have Already Received DACA or Who Would Have Been Eligible to Receive DACA Will Suffer from Mental and Physical Health Issues That Negatively Affect Academic Performance
Iimnigration status has a significant effect on children's mental health, with undocumented children experiencing higher rates of anxiety and depression than their U.S.-born
4o Interview of 18 Year-Old Female DACA Recipient from Delaware, Dec. 19, 2017. 41 Gonzales &Bautista-Chavez, supra note 39. 42 DACA —Federal Policy c~ndExamples ofState Actions, National Conference of State Legislatures (Sept. 5, 2017), http://www.ncsl.org/research/immigration/deferred-action.aspx. 43 Roberto G. Gonzales, DACA's Beneficiaries Landed Good Jobs, enrolled in College, ctnd Contributed to Society, Vox (Sept. 5, 2017), https://www.vox.co~n/2017/9/2/16244380/dacabenefits-trump-undocumented-immigrants-jobs.
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peers,44 These conditions impair children's performance in school by interfering with their ability to focus on course work and exacerbating behavioral probleins.45 Furthermore, children who are exposed to "unrelenting turmoil" over a prolonged period of tune can experience significant cognitive delays.46 The President of the American Academy of Pediatrics, Dr. Fernando Stein, has explained that, "[Fear] can impact [children's] health and development. . . . [P]rolonged exposure to serious stress—known as toxic stress—can harm the developing brain and negatively impact short- and long-term health."47
In the pre-DACA era, the daily lives of undocumented young people were often defined by their perpetual fear of deportation, which in turn led to increased rates ofanxiety-related disorders among undocumented youth. As these young people entered adolescence and began to face "disadvantage due to their . . .legal status," they experienced "worries about blocked mobility. . . anxiety, and fear of deportation."48 For many undocumented adolescents, "fear of getting caught motivated decisions not to participate." One young woman explained, "Nothing, nowhere felt safe. . . . [I was] afraid of walking. . . or [being] outside [iny] house"49
4a Stephanie Potochnick and Krista Perreira, Depression and Anxiety amongFirst-Generation Immigrccnt Latino Youth, 198 Journal of Nervous and Menta] Disease, 470 (2010). 4s Jens Haimnueller et al., Protecting Unauthorizecllmmigrant Mothers Irr~cproves Their Children's Mental Health, 357 Science, 1042 (2017). 46 Olga Khazan, The Toxic Health Effects ofDeportation Threat, The Atlantic (Jan. 27, 2017). 47 Maggie Fox, Pediatricians Speak Out Against President Trump's Immigration Orders, NBC News (Jan. 26, 2017), https:/1www.nbcnews.com/storyline/immigration-bordercri si s/pedi atricians-speak-out-against-president-trump-s-immigration-orders-n712296. ax Caitlin Patler &Whitney Laster Pirtle, From Undocumented to Lawfully Present: Do Changes to Legnl Status Impact Psychological Wellbeing Arnong Latino Immigrant Young Adults? Social Science &Medicine, 2 (2017). 4~ GONZALES, supra note 6, at 102.
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The "destabilizing" experience of being undocumented can also lead to depression and suicidal thoughts in undocumented youth.50 Feelings of hopelessness were common in undocumented students who encountered barriers to educational and career goals in the pre-
DACA era. One student explained: When that whole college process started, it definitely hit me hard. It was just really frustrating. I felt like Ihad put so much work into school, into studying, into making good grades. I went into depression . . . .Istarted thinking I'm never going to go anywhere and it's all because of some paperIdon't have. It was really rough. Iwas angry all the time.sl
Another young man described feeling despondent about his future after learning that he was undocumented, stating, "College and law school were definitely in my plans. But when my mom told meIwasn't legal, everything turned upside down.Ididn't know what to do.Icouldn't see my future anymore."52 Even middle school students experienced the psychological effects of being undocumented. An 18-year old young man recalled feeling discouraged in middle school because he worried that his immigration status would prevent him from attending college or having a career that interested him. Receiving DACA gave hi~n renewed his hope for the future and inspired hiin to work harder in school. 53 Similarly, aseventh-grade boy who dreamed of being a chef told one researcher that he felt "[a] lot of stress, a lot of sadness" because of the educational and professional roadblocks he expected to encounter.54 After this boy received DACA a few years later, his mother reported that he was acting like a "new person."ss
so Rachel Siemons et al., Coming ofAge on the Mnrgins: MentalHealth and Wellbeing Among Latino Immigrant Young Adults Eligible.for Deferred Action.for Childhood Arrivals (DACA), 19 Journal of Immigrant and Minority Health, 543-544 (2016). s ~ DACA at Year Three, supra note 25, at 8. 52 GONZALES, supra note 6, at 102. s3 Interview of 18 year-old Male DACA Recipient from Delaware, Dec. 20, 2017. 54 DREBY, supra note 16, at 104. ss Id at 187.
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The Rescission Memorandum has already had a substantial detrimental impact on the psychological well-being of DACA recipients and children who planned to apply for DACA. Dr. Getting described treating a 16 year-old DACA recipient who attempted suicide after the Trump administration announced its plans to end DACA. She consistently earned good grades and had been excited to apply to colleges, but she became terrified of what was going happen to her if DACA ended. She told Dr. Getting that she tried to end her own life she had listened to her mother cry herself to sleep every night for weeks, and she "did not know what else to do."s~ Dr. Julie Linton, Co-Chair of the American Academy of Pediatrics Immigrant Health Special Interest Group, described treating a 13-year-old boy shortly after the DACA rescission was announced. The boy, who planned to apply for DACA when he turned 15, tearfully described his anxiety to Dr. Linton and told her that he "had no hope for the future."57 Dr. Janine Young, a pediatrician whose practice focuses on recent immigrants and refugees, described treating a 17year-old female DACA recipient experiencing severe organ failure. In need of alife-saving surgery and extensive follow up care, the patient became terrified that she would lose her medical coverage when she turned 18 if DACA was rescinded. She stopped eating, and her already reduced weight plummeted. She became withdrawn in school and failed many of her classes. Dr. Young diagnosed her with severe anxiety and depression and ultimately prescribed anti-depressants.s$
The anxiety, stress, and depression associated with undocumented status can lead to physical health problems, such as stomach ailments, headaches, and sleeping issues, which
sb Interview of Dr. Marguerite Getting, Dec. 18, 2017. 57 Interview of Dr. Julie Linton, Oct. 31, 2017. 58 Interview of Dr. Janine Young, Nov. 30, 2017.
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negatively affect academic performance and school attendance.s~ Since the DACA rescission was announced, doctors who treat immigant children have reported increased complaints of such symptoms. Dr. Linton described treating a 16 year-old female DACA recipient who had planned to attend college and medical school. The patient explained that she was distressed because the end of DACA meant that she would no longer be able to "pursue her dreams." She reported that she could not sleep and that she was having trouble concentrating in school.60
DACA has provided significant psychological relief to current DACA recipients, along with children who planned to apply for DACA, by alleviating their daily fear of deportation and expanding their future opportunities. If the Rescission Memorandum is not enjoined, these students will experience significant health problems that will impair their academic performance. II. ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS WHOSE
PARENTS ARE DACA RECIPIENTS OR WHOSE PARENTS WOULD HAVE BEEN ELIGIBLE TO RECEIVE DACA A quarter of DACA recipients are parents of U.S.-born children.61 If these parents lose their work authorization, they will be worse off financially and less equipped to provide their U.S.-born children with critical educational resources. Moreover, if DACA recipients lose their protection from deportation, their children will experience increased stress and anxiety due to fears that their parents will be detained or deported. Because poverty and psychological stress are significant causes of poor academic performance and behavioral issues in children, the educational prospects of U.S.-born children of DACA recipients will be irreparably harmed if the Rescission Memorandum is not enjoined.
s9 Jonathan Blitzer, UndocurnenteclI~ninigrants Bracefor the Trump Administration, The New Yorker (Dec. 19, 2016). bo Interview of Dr. Julie Linton, Oct. 31, 2017. 61 Samantha Michaels, 1in 4 Dreamers are Parents of US Citizens, Mother Jones (Sept. 7, 2017).
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A. If the Rescission Memorandum is Not Enjoined, Adult DACA Recipients Will Have Greater Difficulty Providing for Their U.S.-Born Children, Leading to Poorer Academic Performance
No longer relegated to low wage, unskilled labor, DACA recipients have significantly increased their earnings since the policy was enacted, and many have obtained jobs that provide benefits such as health insurance and paid leave.62 If they lose their work authorization, these individuals will once again be consigned to low paying jobs that require them to work long hours away from their children.63 As a result, these parents will be less capable of providing their children with critical resources that accelerate learning, such as educational toys and books, prekindergarten programs, technology, and tutors. Furthermore, being undocumented exacerbates the "economic stressors associated with parenting.'.'64 One-third of children born to undocumented parents live in poverty, compared with 18 percent of children with U.S. citizen parents,65 and the average income for families with at least one undocumented parent in 2007 was about 40%lower than that of U.S. citizen families.bb
Living in poverty puts children at a severe academic disadvantage. One study found that children who live in impoverished communities are four times more likely than their peers to be chronically absent from school.b~ As discussed above in Section II.A, erratic attendance is directly linked to poor academic performance. Additionally, low wages and a lack of identification documents snake it incredibly difficult for undocumented parents to obtain
62 Gonzales &Bautista-Chavez, supra note 39. 63 HIROKAZU YOSHIWAKA, IrrZ~zigrcznts Raising Citizens: UndocumentedParents and Their Young Children, 17-18 (201 ] ). ~ DREBY, supra note 16, at 105. bs Id. 66 GoNZALEs, supra note 6, at 64. 67 Hedy N. Change and Mariajose Romero, Present, Engaged, and AccountedFor: The Critical Importance ofAddressing Chronic Absence in the Early Grades, National Center for Children in Poverty, 13 (Sept. 2008).
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adequate, safe housing for their fainilies.68 As a result, housing instability is coimnon among undocumented families—one researcher reported that almost 90% of the mixed-status families (i.e. U.S.-born children with undocumented parents) she interviewed lived in rented homes.b~ Frequent relocation is "most consequential for children" and can negatively affect their behavioral patterns and academic performance.70
Many undocumented parents are unwilling to take advantage of public benefits that are available to their U.S.-born children due to fears of govermnent institutions.~~ This avoidance results in "low rates of enrollment of citizen children in programs that could help foster their early learning"72 such as publicly funded pre-kindergarten programs.73 Moreover, when children do not receive food benefits that they urgently need, they become vulnerable to hunger and nutritional deficiencies that can impair "thinking skills, behavior, and health, all factors that impact academic performance."74 Dr. Sarah Stelzner, a pediatrician whose practice focuses in large part on Latin American immigrants, reports that she has already witnessed a drop in the number of WIC and Medicaid renewals among her patients—even for children who are
citizens75 Furthermore, undocumented parents frequently have to work longer hours to snake ends
meet, leaving little time to help children with their schoolwork.76 Forced to hide their status and
68 GONZALES, supra note 6, at 64. 6~ DREBY, supra note l 6, at 105. ~~ GONZALES, supra note 6, at 64. ~~ Id. at 63. 72 YOSHIWAKA, supra note 63, at 22. 73 Laura Bornfreund, Study Finds Drop in Preschool Enrollment_for Latino Children, New America (April 14, 2011) https://www.newainerica.org/education-policy/early-elementaryeducation-policy/earl y-ed-watch/study-finds-drop-in-preschool-enrollment-for-Latino-children/. 74 Nutrition and Students' Academic Performance, Wilder Research (Jan. 2014). 75 Interview of Dr. Sarah Stelzner, Dec. 1, 2017. 76 GONZALES, supra note 6, at 63.
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relegated to the fringes of society, these parents often lack the confidence to navigate the bureaucracy of their children's educational systems, leading many undocumented parents to minimize their involvement in their children's schooling.~~ The academic prospects of children suffer when their parents disengage from their education—lack of parental involvement is a key factor in poor attendance and performance in school.78
If the Rescission Memorandum is not enjoined, the U.S.-born children of DACArecipient parents will suffer significant educational harms due to their families' economic struggles and the looming threat of deportation.
B. If the Rescission Memorandum is Not Enjoined, U.S.-Born Children of Adult DACA Recipients Will Experience Health Issues That Negatively Affect Academic Performance
Growing up poor has serious consequences for children's mental health and cognitive abilities—low-income children have less brain surface area on average than their more affluent peers, and "young adults who [grow] up in poverty have more activity in the brain's negative emotion centers and less in the self-regulation portions."79 A recent study found that children of undocumented Mexican parents are at a higher risk of developmental delays than children of U.S.-born Caucasian parents.80 Furthermore, when children fear that their parents will be deported, they experience increased stress and anxiety, which, as discussed above in Section II.C, can lead to poor academic performance, erratic attendance, and behavioral issues.$'
Because undocumented parents must prepare their children for the possibility that one or both of their parents might be detained without warning, children often learn about their family's
~~ DREBY, sz~pra note 16, at 84. ~g Grace Chen, Pnrental Involvement is Key to Student Success, Public School Review (July 2, 2017), https://www.publicschoolreview.com/blog/parental-involvement-is-key-to-tudentsuccess. ~~ Khazan, supra note 46. g~ YOSHIWAKA, supra note 63, at 17. g ~ DREBY, supra note 16, at 39.
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immigration status at a young age.82 Kay Holland, a Licensed Clinical Social Worker whose

practice focuses on low-income and immigrant children, reports that a number of her patients'

parents have submitted letters to school administrators instructing theirs to allow Ms. Holland to

collect their children from school if they are unexpectedly detained. Predictably, Ms. Holland

has noticed a significant uptick in anxiety-related disorders among her patients since the DACA

rescission was announced. In particular, children and teenagers in mixed-status families are

experiencing increased rates of anxiety and insomnia, impairing their performance in schoo1.83

Dr. Stelzner described treating aU.S.-born five year-old girl with Downs Syndrome whose older

sisters are DACA recipients. Her family became extremely distressed after the Trump

administration announced its plan to end DACA, and the five year-old picked up on the stress

that was permeating her home life and began to have behavioral problems at schoo1.84

If the Rescission Memorandum is enforced, the U.S.-born children of DACA recipients

will be more likely to experience poverty-related cognitive delays, and they will suffer from

heightened stress and anxiety due to fears that their parents will be taken away, irreparably

harming their educational opportunities.

III.

ENDING DACA WILL IRREPARABLY HARM K-12 STUDENTS WHOSE TEACHERS ARE DACA RECIPIENTS
Access to quality teachers is the most important in-school factor affecting student

achievement. Effective teachers lead to higher standardized test scores and unproved graduation

and college enrollment rates.85 The MPI estimates that 20,000 DACA recipients are currently

82 1d. at 46. 83 Interview of Kay Holland, LCSW, Dec. 1, 2017. 84 Interview of Dr. Sarah Stelzner, Dec. 1, 2017. 85 Teachers Matter: Understc~ncling Teachers'Impact on Student Achievement, Rand Education, https://www.rand.oi•g/education/prof ects/measuring-teacher-effectiveness/teachers-inatter.html
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working as teachers in public K-12 schools, including 2,000 in New York.x~ If these educators lose their work authorization, their classes will be disrupted and their students will be deprived of qualified educators and role models, irreparably harming these students' educational prospects.
DACA-recipient teachers bring a unique set of skills to the classroom. Many are bilingual, allowing them to effectively communicate with both U.S.-born and immigrant students. See Dkt. 55-11 (17-CV-5228) (Decl. of Viridiana Carrizales) at ¶ 11. Moreover, DACA-recipient teachers "serve as role models and navigators for students who face the intersecting challenges of poverty and undocumented status." Id. While all children benefit when schools employ teachers from diverse backgrounds, children of color consistently perform better when taught by teachers of color, leading to "better attendance, fewer suspensions and higher test scores."87 One DACA-recipient teacher in New Mexico explained his approach to teaching:
Iwork to inspire my students to see themselves as agents of change, and to be proud of who they are. In my classroom,Iwork to create a welcoming space where my students can discuss their cultural heritage, feel valued and set goals for the impact they can make within their own communities.$$ Moreover, if DACA-recipient teachers lose their work authorization, the classroom environments of K-12 students will be destabilized as teachers abruptly leave at random points in the school year. Sudden teacher departures can impair students' academic performance while
g~ Moriah Balingit, As DACA Winds Down, 20,000 Educators are in Limbo, The Washington Post (Oct. 25, 2017). 87 Robert Samuels, With Hispanic Students on the Rise, Hispanic Teachers in Short Supply, The Washington Post (Nov. 15, 2011). x~ Ginette Magana, DACAmented Teachers: Educating andEnriching Their Communities, The Obaina White House (Aug. 4, 2015), https://obamawhitehouse.archives.gov/blog/2015/08/04/ dacainented-teachers-educating-and-enriching-their-communities.
19

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increasing the workload on remaining teachers, impairing school-wide achievement.89 If the

Rescission Memorandum is not enjoined, K-12 students across the country will be deprived of

stable learning enviromnents and access to uniquely qualified educators, irreparably harming

their educational opportunities.

CONCLUSION For the foregoing reasons, the Rescission Memorandum should be enjoined to ensure that

public schools throughout the country fulfill their.Constitutional obligation to provide a full and

equal education to.all K-12 students. A preliminary injunction prohibiting the Government from

enforcing the Memorandum is in the public interest and is necessary to prevent irreparable

educational injury to the K-12 population.

Dated: December 21, 2017

COC

1114 - - • ------ --- ---- - --------_.. New York, New York 10036 Phone: (212) 479-6000

g~ Matthew Ronfeldt et al., How Teacher Turnover Harms Student Achievement, Am. Educ. Res. J. 4, 31 (2011).
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 Case 1:17-cv-05228-NGG-JO Document 149 Filed 12/21/17 Page 1 of 30 PageID #: 6500

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs, v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,
Defendants.

Civil Action No. 1:17-cv-05228 (Garaufis, J.)

BRIEF OF 40 HISTORIANS AND THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY
Robert S. Chang (admitted pro hac vice) Ronald A. Peterson Law Clinic Seattle University School of Law 1215 E. Columbia Seattle, WA 98122 Telephone: (206) 398-4025 Facsimile: (206) 398-4036 changro@seattleu.edu
Attorney for Amici Curiae

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES........................................................................................................ ii
INTEREST OF AMICI CURIAE .................................................................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................... 2
ARGUMENT................................................................................................................................ 5
I. History is Replete with Instances in Which Racially Coded Expressions Have Strongly Evidenced Animus, Such As "Wetback," Used During the Mass Repatriation and Deportation of Persons of Mexican Ancestry in 1954 .......................... 8
II. Code Word Analysis Is a Widely Accepted Methodology that Historians Employ to Discern Racial Animus and Give Context to Government Action ............... 11
III. Courts Routinely Recognize the Evidentiary Value of Coded Language in Discerning Racial Animus.............................................................................................. 12
IV. A Sensitive Inquiry into the Historical Background of the Decision to Rescind DACA, with Particular Attention Paid to Contemporaneous Statements Made by Decisionmakers, Reveals the Use of Code Words Reflecting Animus Against Persons of Mexican Ancestry and Latinos ..................................................................... 17
CONCLUSION .......................................................................................................................... 19
APPENDIX - List of Individual Amici..................................................................................... A-1

Case 1:17-cv-05228-NGG-JO Document 149 Filed 12/21/17 Page 3 of 30 PageID #: 6502
TABLE OF AUTHORITIES Page(s)
Cases Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074 (3d Cir. 1996) ........................................................................................... 12, 14
Arnold v. U.S. Postal Serv., 863 F.2d 994 (D.C. Cir. 1988).............................................................................................. 15
Avenue 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493 (9th Cir. 2016) ................................................................................................ 15
Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010) ..................................................................................................... 6
City of Memphis v. Greene, 451 U.S. 100 (1981) ............................................................................................................. 14
E.E.O.C. v. Bd. of Regents of U. of Wisc. Sys., 288 F.3d 296 (7th Cir. 2002) ................................................................................................ 15
González v. Douglas, No. CV 10-623 TUC AWT, 2017 WL 3611658 (D. Ariz. Aug. 22, 2017)................ 2, 13, 14
Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255 (5th Cir. 2007) ................................................................................................ 14
Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189 (1973) ............................................................................................................. 14
MHANY Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581 (2d Cir. 2016) ................................................................................. 7, 12, 13, 14
Plyler v. Doe, 457 U.S. 202 (1982) ............................................................................................................. 10
Smith v. Fairview Ridges Hosp., 625 F.3d 1076 (8th Cir. 2010), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) .......................................................... 12, 15
Smith v. Town of Clarkton, N.C., 682 F.2d 1055 (4th Cir. 1982) .............................................................................................. 14
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Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997)............................................................................................... 14
Star Sci., Inc. v. R.J. Reynolds Tobacco, Co., 537 F.3d 1357 (Fed. Cir. 2008) ............................................................................................ 14
Underwood v. Hunter, 730 F.2d 614 (11th Cir. 1984), aff’d, Hunter v. Underwood, 471 U.S. 222 (1985)............. 15
United States v. City of Birmingham, Mich., 727 F.2d 560 (6th Cir. 1984) ................................................................................................ 14
Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016), cert. denied, 137 S. Ct. 612 (2017)................................. 16, 17
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ............................................................................................................... 7
Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996) ................................................................................................ 15
Other Authorities 150,000 “Wetbacks” Taken in Round-Up, N.Y. TIMES, July 30, 1954, at 7,
https://timesmachine.nytimes.com/timesmachine/1954/07/30/84128756. html?pageNumber=7 .............................................................................................................. 8
FRANCISCO E. BALDERRAMA & RAYMOND RODRÍGUEZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S (1995) ................................................................................... 3, 4
William J. Brennan, Conference Notes, Plyler v. Doe (Nos. 80-1538, 80-1934) (Dec. 8 1981) (on file with the Library of Congress, Manuscript Division, William J. Brennan Papers, Part I: Box 572) ....................................................................... 10
Brownell Maps Trip for “Wetback” Study, N.Y. TIMES, Aug. 8, 1953, at 13, https://timesmachine.nytimes.com/timesmachine/1953/08/08/84417640.html?page Number=13 ........................................................................................................................... 10
Statement of Honorable Herbert Brownell, Jr., Attorney General of the United States, Testimony before Subcommittee on Immigration of the Committee on the Judiciary, April 13, 1956, https://www.justice.gov/sites/default/files/ag/legacy/2011/09/12/04 -13-1956%20pro.pdf............................................................................................................. 10
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Philip Bump, Donald Trump Endorsed “Operation Wetback” – But Not by Name, WASH. POST, Nov. 11, 2015, https://www.washingtonpost.com/news/the-fix/wp/ 2015/11/11/donald-trump-endorsed-operation-wetback-but-notbyname/?utm_ term=.eb2b0a6f2955............................................................................................................... 4
KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S. (1992) .................................................................................................................. 10
Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 FORDHAM L. REV. 1545 (2011) ............................................... 10
John Dillin, How Eisenhower Solved Illegal Border Crossings from Mexico, CHRISTIAN SCI. MONITOR, July 6, 2006, https://www.csmonitor.com/2006/0706/p09s01-coop.html ..... 9
Drive on Wetbacks Termed a Success, N.Y. TIMES, Mar. 10, 1955, at 28, https://timesmachine.nytimes.com/timesmachine/1955/03/10/93729836.html?page Number=28 ........................................................................................................................... 10
Dwight D. Eisenhower, DDE Personal Diary Jan.-Nov. 1954 (1)(2) (“notes on Bricker Amendment; school construction; wetbacks; Brazilian coffee”), Eisenhower, Dwight D.: Papers as President; DDE Diary Series, at 5, https://www.eisenhower. archives.gov/research/finding_aids/pdf/Eisenhower_Dwight_Papers_as_President/ DDE_Diary_Series.pdf........................................................................................................... 9
Fifteen News Questions, N.Y. TIMES, Apr. 2, 1950, at E2 and E9, https://timesmachine. nytimes.com/timesmachine/1950/04/02/96214886.html?pageNumber=142 and https://timesmachine.nytimes.com/timesmachine/1950/04/02/96214988.html?page Number=149 ........................................................................................................................... 9
JUAN RAMÓN GARCÍA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954 (1980) .......................................................................... 8
Celeste Gómez et al., The President’s Intent: Preliminary Findings of a Critical Discourse Analysis of Trump’s Speeches and Tweets from the Date of his Candidacy to Mid-September 2017, https://www.thepresidentsintent.com/full-report/... 5, 17
JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (rev. ed. 2002)......................................................................................................................... 3
Kate Linthicum, The Dark, Complex History of Trump’s Model for His Mass Deportation Plan, L.A. TIMES, Nov. 13, 2015, http://www.latimes.com/nation/la-na-trumpdeportation-20151113-story.html ........................................................................................... 4
MAI NGAI, IMPOSSIBLE SUBJECTS, ILLEGAL ALIENS AND ALIEN CITIZENS (2004) ....................... 4
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Rick Perlstein, Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy, THE NATION, Nov. 13, 2012, https://www.thenation.com/article/exclusivelee-atwaters-infamous-1981-interview-southern-strategy/................................................... 11
LUCY SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW (1995) ...................................................................................... 4
ALEXANDER SAXTON, THE INDISPENSABLE ENEMY: LABOR AND THE ANTI-CHINESE MOVEMENT IN CALIFORNIA (1975) ......................................................................................... 3
Sunshine Summit, “Thank You,” http://www.sunshinesummit.gop/thank-you…..........………….18
The President’s News Conference, July 14, 1954, http://www.presidency.ucsb.edu/ws/index.php?pid=9947&st=wetback&st1= ..................... 9
The President’s News Conference, July 21, 1954, http://www.presidency.ucsb.edu/ws/index.php?pid=9950&st=wetback&st1= ..................... 9
Transcript: Republican Presidential Debate, N.Y. TIMES, Nov. 11, 2015, https://www.nytimes.com/2015/11/11/ us/politics/transcript-republican-presidential-debate.html. .................................................. 18
Harry S. Truman, Special Message to the Congress on the Employment of Agricultural Workers from Mexico, July 13, 1951, https://www.trumanlibrary.org/publicpapers/ index.php?pid=368 ................................................................................................................. 9
Statement from President Donald J. Trump (Sept. 5, 2017), https://www.whitehouse.gov/briefings-statements/statement-president-donaldj-trump-7/.............................................................................................................................. 19
Donald J. Trump, Remarks at 2015 Sunshine Summit (Nov. 13, 2015), https://www.c-span.org/video/?400325-10/donald-trump-remarks-2015sunshine-summit ................................................................................................................... 18
Donald J. Trump, Remarks at the Charlotte Convention Center in Charlotte, North Carolina (Aug. 18, 2016), http://www.presidency.ucsb.edu/ws/index.php? pid=119175 ........................................................................................................................... 18
Donald J. Trump, Remarks at the Mississippi Coliseum in Jackson, Mississippi (Aug. 24, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=123198.................................................18
Donald J. Trump, Remarks on Signing a Proclamation on the National Day of Prayer for the Victims of Hurricane Harvey and for Our National Response and Recovery Efforts and an Exchange with Reporters (Sept. 1, 2017), http://www.presidency.ucsb.edu/ws/index.php?pid=128160&st=dreamers&st1................. 19
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Case 1:17-cv-05228-NGG-JO Document 149 Filed 12/21/17 Page 7 of 30 PageID #: 6506 U.S. Citizenship and Immigration Servs., Approximate Active DACA Recipients: Country of Birth (As of Sept. 4, 2017), https://www.uscis.gov/sites/default/files/ USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/ All%20Form%20Types/DACA/daca_population_data.pdf ................................................... 7
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INTEREST OF AMICI CURIAE1 The 40 individual amici are academics trained in the field of history who study, teach, and write about United States history.2 Collectively, amici have written or edited 178 books and nearly 700 book chapters and peer-reviewed journal articles. Amici are keenly aware of the role that discrimination on the basis of race, ethnicity, and nationality has played in this nation’s history. Amici have a special interest in ensuring that the Court has the benefit of their expertise when it draws its conclusions with regard to the role that animus may have played in the decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. Amici have reviewed the Declaration of Dr. Stephen Pitti submitted in support of the instant legal challenge brought by New York and fourteen other states and the District of Columbia, No. 1:17-cv-5229, Dkt. 97-2, Ex. 38 (Pitti Decl.). After reviewing his Declaration, amici agree that Dr. Pitti used research methods that are widely accepted as valid in the field of history. These methods include a specific interpretive methodology that looks at public discourse to discern the use of racially coded expressions or code words by government officials, politicians, and members of the public to advance discriminatory political objectives. Amici agree with Dr. Pitti’s summative opinion: When properly understood within the context of the history and contemporary discrimination directed against Mexicans, Mexican Americans, and Latinos, . . . President Trump and others who worked for his campaign and in his Administration have long expressed animus towards ethnic Mexicans and other Latinos. President Trump and others associated with his presidential campaign and Administration have drawn upon and used racial code words, and have benefitted from racism against Latinos. Racial animus against ethnic Mexicans shaped their decision to terminate DACA. Pitti Decl. ¶ 17, Dkt. 97-2 at 14. The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to
1 Amici curiae file this brief pursuant to the Court’s Order entered on Dec. 20, 2017, granting their motion for leave to file. 2 Their names, titles, and institutional affiliations are appended, infra Appendix at A-1.
1

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advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 120,000 Japanese Americans, the Korematsu Center works to advance social justice for all. The Korematsu Center has a special interest in addressing government action targeted at classes of persons based on race, nationality, or religion. The Korematsu Center has developed an expertise with regard to the use of racial code words in its role as co-counsel to high school students who successfully challenged a facially neutral Arizona statute that was enacted and enforced to terminate the Mexican American Studies Program in the Tucson Unified School District. González v. Douglas, No. CV 10-623 TUC AWT, 2017 WL 3611658 (D. Ariz., Aug. 22, 2017). In addition, the Korematsu Center is keenly aware of the use of direct and racially coded language used to justify the discriminatory treatment of Japanese Americans before, during, and after World War II. Drawing on its experience and expertise, the Korematsu Center seeks to ensure that courts understand the way that racially coded language is used to achieve discriminatory outcomes.3
INTRODUCTION AND SUMMARY OF ARGUMENT History teaches us that the institution of slavery, the dispossession and removal of Native Americans, the exclusion of Asian immigrants, the incarceration of Japanese Americans during World War II, and the mass repatriation and deportation of persons of Mexican ancestry were not accidents but instead were the product of deliberate decisions made by government officials. The historical record demonstrates that these decisions were informed by an explicit racial ideology that defined groups along racial lines; that justified discriminatory treatment based on notions of group superiority/inferiority and group desirability/undesirability; and that often posed the
3 The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University.
2

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discriminatory treatment as necessary for the security of the nation and for the prosperity of its citizenry.
During earlier periods, government officials, politicians, and members of the public expressed, much more nakedly, this racial ideology used to justify and advance discrimination. As social norms changed and it became, increasingly, less acceptable to express publicly these same sentiments, racially coded language was used by politicians to garner public support and gain elected office and by government officials to justify and advance discriminatory political objectives. Historians and other academics have observed and documented this phenomenon, the shift from explicit racial language to coded racial expressions. Examination of public discourse for the use of code words has become a widely accepted interpretive methodology used by historians and other academics to discern the role that discrimination may have played with regard to particular events, as well as for the broader course of United States history.
History is replete with examples in which explicit and coded language has been used to justify and advance discrimination against a particular group. During severe economic downturns, populist leaders and politicians exploited racial nativism to scapegoat outsider immigrant groups who were blamed for taking away the rightful opportunities of an anxious citizenry.4 During the 1880s, the Chinese were blamed; during the 1920s, racialized white ethnic groups from southern and eastern Europe as well as immigrants from Asia were blamed; and during the height of the Great Depression in the 1930s, migrants from Mexico were blamed.5 In each instance, targeted anti-immigrant sentiment led to the various Chinese Exclusion Acts, the
4 See generally JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (rev. ed. 2002). 5 See generally ALEXANDER SAXTON, THE INDISPENSABLE ENEMY: LABOR AND THE ANTI-CHINESE MOVEMENT IN CALIFORNIA (1975); HIGHAM, supra note 4; FRANCISCO E. BALDERRAMA & RAYMOND RODRÍGUEZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S (1995).
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1924 Immigration and Nationality Act, which barred Asian immigration and put into place per country quotas for immigration based on the national origin composition of this country as reflected in the 1890 Census, and the 1930s mass deportation of Mexican migrants and U.S. citizens of Mexican ancestry.6 Of the nearly 1.5 million deported during this period, upwards of 60% were U.S. citizens.7 These various immigration measures were fostered by both explicit and coded racial nativist expressions that relied on themes of invasion and labeling Americans as victims with certain immigrant groups as undeserving and as threats to this nation’s security and prosperity.
This amicus brief will focus on the use of code words in one historic example—the 1954 mass deportation program called Operation Wetback—before turning to the use of code words associated with the rescission of DACA. Understanding how government officials, politicians, and members of the public used the word “wetback,” along with notions of threat to national security and national prosperity, in the period leading up to Operation Wetback provides an instructive example for understanding how various code words operate today with regard to immigration enforcement, including the decision to rescind DACA.
Further, Operation Wetback is particularly relevant because in November 2015 thencandidate Donald Trump invoked the 1954 deportation program, without using its name, as a successful model that he would seek to emulate.8 Though the rescission of DACA does not, at
6 See LUCY SALYER, LAWS HARSH AS TIGERS: CHINESE IMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW 6-23 (1995) (discussing anti-Chinese sentiment and the various Chinese Exclusion Acts); MAI NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND ALIEN CITIZENS 18-54 (discussing the impetus of the Immigration Act of 1924) and 71-75 (discussing anti-Mexican hostility and the 1930s mass deportations). 7 BALDERRAMA & RODRÍGUEZ, supra note 5, at 216; NGAI, supra note 6, at 72. 8 Philip Bump, Donald Trump Endorsed “Operation Wetback” – But Not by Name, WASH. POST, Nov. 11, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/11/11/donald-trump-endorsed-operation-wetback-but-notby-name/?utm_term=.eb2b0a6f2955; Kate Linthicum, The Dark, Complex History of Trump’s Model for His Mass Deportation Plan, L.A. TIMES, Nov. 13, 2015, http://www.latimes.com/nation/la-na-trump-deportation-20151113story.html (discussing Trump’s endorsement during the Nov. 11, 2015, Republican primary debate in which Trump described the “deportation force” he would deploy to emulate Operation Wetback).
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present, involve a mass deportation plan, the rescission of DACA is best understood as part of a set of immigration measures that is intended to accomplish then-candidate Trump’s promises to his electorate. Promising to emulate this mass deportation program while omitting its name is itself an example of a camouflaged expression—an example of how, during the campaign and after the election, President Trump employed racially coded expressions or “code words,” language that evinces and appeals to racial animus and is intended to invoke racial fear but which permits plausible deniability that the speech is about race. His use of these code words while seeking elected office and after assuming the presidency presents strong evidence of animus.9
To assist the court in analyzing whether Plaintiffs’ Equal Protection and Administrative Procedure Act claims merit preliminary injunctive relief, and more specifically in assessing the weight to be given to the Declaration of Dr. Stephen Pitti, Amici historians and the Fred T. Korematsu Center for Law and Equality submit this amicus brief to demonstrate that racial animus can be discerned by a code word analysis, and that such an analysis is a widely accepted methodology in the field of history. Further, a survey of federal circuit courts demonstrates that code word analysis has been adopted into legal frameworks as providing important direct and circumstantial evidence supporting a showing of animus or discriminatory intent.
ARGUMENT Plaintiffs’ claims in this litigation have alleged that President Trump’s decision to rescind DACA was motivated by animus toward Mexicans, and more generally towards Latinos, in violation of the Fifth Amendment and the Administrative Procedures Act (“APA”). See Third Am. Compl., Batalla Vidal, et al. v. Nielsen, et al., No: 1:16-cv-04756, Dkt. 113 at 40-41, 43;
9 In addition to the examples provided in the Pitti Declaration passim, No. 1:17-cv-05228, Dkt. 97-2 at 10-56, the case for discriminatory intent is made forcefully in a recently issued report. See Celeste Gómez et al., The President’s Intent: Preliminary Findings of a Critical Discourse Analysis of Trump’s Speeches and Tweets from the Date of his Candidacy to Mid-September 2017, https://www.thepresidentsintent.com/full-report/ (analyzing over 300 speeches and 5000 tweets) [hereinafter The President’s Intent].
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First Am. Compl., State of New York, et al., v. Trump, et al., No. 1:17-cv-05228, Dkt. 54 at 69, 71-72. Plaintiffs have moved for a preliminary injunction on their equal protection claim, arguing that “Defendants’ termination of DACA violates Equal Protection because it was motivated by animus toward Latinos and Defendants’ stated reasons for their action are baseless and illogical.” Dkt. 96-1 at 16. Plaintiffs have also moved for a preliminary injunction on their APA claims, arguing that the true basis for terminating DACA is animus toward Latinos, who make up 93% of DACA grantees. Id. at 13. To support the animus arguments, Plaintiffs have cited Defendants’ use of racial code words. Id. at 14-15.
To obtain a preliminary injunction, Plaintiffs must demonstrate that they will suffer irreparable harm absent injunctive relief and either (1) that they are likely to succeed on the merits of the action, or (2) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, provided that the balance of hardships tips decidedly in favor of the moving party. Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 34–35 (2d Cir. 2010). In support of Plaintiffs’ equal protection and true basis APA claims, Amici demonstrate that code word analysis is an accepted historical methodology for discerning racial animus and an accepted category of evidence that both the Second Circuit and other circuits have used to discern animus in equal protection claims and in other contexts in which discriminatory intent must be shown.
Of special note is the Second Circuit’s recent observation and admonition that “[b]ecause discriminatory intent is rarely susceptible to direct proof, a district court facing a question of discriminatory intent must make ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’” MHANY Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 606 (2d Cir. 2016) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266
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(1977)). This sensitive inquiry examines the following non-exhaustive factors: • whether “[t]he impact of the official action . . . bears more heavily on one race than another”; • “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; • “[d]epartures from the normal procedural sequence”; • “[s]ubstantive departures”; and • “[t]he legislative or administrative history . . . especially where there are contemporary statements made by members of the decisionmaking body, minutes of its meetings, or reports.”
MHANY, 819 F.3d at 606 (quoting Arlington Heights, 429 U.S. at 266-68). It is indisputable that the rescission of DACA falls most heavily on persons of Mexican
ancestry, who make up 79.4% of DACA recipients.10 Further, as Plaintiffs demonstrate in their respective APA claims, the decision to rescind DACA was plagued by a host of procedural and substantive departures. See Memorandum of Law in Support of Plaintiffs’ [Batalla Vidal et al.] Motion for Preliminary Injunction, 1:16-cv-04756, Dkt. 123-1, at 26-28; State of New York et al. Memorandum of Law in Support of Plaintiff States’ Motion for Preliminary Injunction, 1:17-cv05228, Dkt. 96-1, at 12-20. Added to this, a sensitive inquiry into the historical background of the decision to rescind DACA, especially the contemporaneous statements made by decisionmakers, makes code word analysis especially important when examining facially neutral governmental action under an Arlington Heights analysis to determine discriminatory intent. See Arlington Heights, 429 U.S. at 266-68. The existence of discriminatory intent is pertinent to both the equal protection and APA claims, including that the existence of animus strongly supports a finding of pretext or bad faith.
10 U.S. Citizenship and Immigration Servs., Approximate Active DACA Recipients: Country of Birth (As of Sept. 4, 2017) 1, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20 Forms%20Data/All%20Form%20Types/DACA/daca_population_data.pdf.
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I. History Is Replete with Instances In Which Racially Coded Expressions Have Strongly Evidenced Animus, Such As “Wetback,” Used During the Mass Repatriation and Deportation of Persons of Mexican Ancestry in 1954.
Operation Wetback. That was the official name given by the program undertaken in 1954 to forcibly repatriate hundreds of thousands of Mexican migrants.11 The massive scope of the program and lack of procedural safeguards resulted in many Americans citizens of Mexican ancestry being swept up in its dragnet and removed to remote areas of Mexico.12 In addition to those detained and deported, hundreds of thousands of Mexican migrants left voluntarily in order to avoid brutal conditions endured by those detained and forcibly removed. The decision to institute this mass deportation program was informed by the use of the racially coded expression, “wetback.”
Viewed from today’s perspective, many might say that “wetback” is not racially coded language, but rather an explicit expression of animus. While “wetback” may today be recognized as an epithet or slur, that was certainly not the case in the 1950s. The original mundaneness of the term “wetback” is evidenced in a 1950 Sunday edition of the New York Times, which included in its “Fifteen News Questions,” the following question: “’Wetbacks’ were reported last week to be entering California at a rate of 10,000 a month. What are ‘wetbacks’?” The answer is supplied several pages later: “Mexican immigrants who cross the border by stealth to seek work. The term ‘wetback’ was originally applied to Mexicans who entered the U.S. farther east by swimming the Rio Grande.”13 It is of note that the New York Times did not ask “Who are
11 See JUAN RAMÓN GARCÍA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954, at 228 (1980); see also 150,000 “Wetbacks” Taken in Round-Up, N.Y. TIMES, 1954, at 7 (reporting numbers apprehended approximately two months after the beginning of Operation Wetback), https://timesmachine.nytimes.com/timesmachine/1954/07/30/84128756.html?pageNumber=7. 12 GARCÍA, supra note 11, at 228. 13 Fifteen News Questions, N.Y. TIMES, Apr. 2, 1950, at E2 and E9, https://timesmachine.nytimes.com/times machine/1950/04/02/96214886.html?pageNumber=142 and https://timesmachine.nytimes.com/timesmachine/ 1950/04/02/96214988.html?pageNumber=149.
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‘wetbacks’?” but instead, “What are ‘wetbacks’?” Further, “wetback,” originally a term used to describe those who swam across the Rio
Grande River, becomes a metonym for all unauthorized Mexican migrants. President Harry Truman used the term in precisely this way in his July 13, 1951, address to Congress that called for a more comprehensive solution to address “the steady stream of illegal immigrants from Mexico, the so-called ‘wetbacks,’ who cross the Rio Grande or the western stretches of our long border.”14 Likewise, General Dwight D. Eisenhower, getting ready to run for president in 1951, in private correspondence with Senator William Fulbright “quoted a report in the New York Times,” and highlighted a paragraph that discussed “[t]he rise in illegal border-crossing by Mexican ‘wetbacks.’”15
Though there is no record of President Eisenhower using the term in public, he responded to questions from reporters who used the term and affirmed his support of legislation intended to address what the press characterized as the “wetback problem.”16 Further, he did use the term at least once in his personal diaries.17 And members of his administration, including the two primary architects of Operation Wetback, General Joseph Swing who became the Commissioner of Immigration and Naturalization in 1954 and Attorney General Herbert Brownell, Jr., both
14 President Harry S. Truman, Special Message to the Congress on the Employment of Agricultural Workers from Mexico, July 13, 1951, https://www.trumanlibrary.org/publicpapers/index.php?pid=368. 15 John Dillin, How Eisenhower Solved Illegal Border Crossings from Mexico, CHRISTIAN SCI. MONITOR, July 6, 2006, https://www.csmonitor.com/2006/0706/p09s01-coop.html. 16 See The President’s News Conference, July 14, 1954, http://www.presidency.ucsb.edu/ws/index.php?pid=9947 &st=wetback&st1= (question by Sarah McClendon, El Paso Times, about two Senate bills “designed to curb the hundreds of thousands of wetbacks coming into this country”); The President’s News Conference, July 21, 1954, http://www.presidency.ucsb.edu/ws/index.php?pid=9950&st=wetback&st1= (question by John Herling, Editors Syndicate, asking about “the wetback legislation prepared by Attorney General Brownell”). President Eisenhower’s response to these questions expressed support for the legislation and other efforts to address the issue. 17 DDE Personal Diary Jan.-Nov. 1954 (1)(2) (“notes on Bricker Amendment; school construction; wetbacks; Brazilian coffee”), Eisenhower, Dwight D.: Papers as President; DDE Diary Series, at 5, https://www.eisenhower. archives.gov/research/finding_aids/pdf/Eisenhower_Dwight_Papers_as_President/DDE_Diary_Series.pdf.
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used the term openly, including in statements to Congress.18 Before Operation Wetback,
Brownell announced that he “would go to California next week to study the ‘wetback’
problem.”19 General Swing, upon taking charge as Commissioner, announced that he would
“stop this horde of invaders.”20
Though it may not have been apparent at the time to government officials, members of the
mainstream press, or the public, “wetback” was a racially coded expression that has since come
to be recognized as an epithet or slur.21 Facially descriptive, it is pejorative and diminishing,
reducing a person to a characteristic associated with a part of the body. Further, this term does
not accurately describe those whose backs did not literally get wet from crossing the border, yet
it stands in as a metonym for all unauthorized border crossers from Mexico, and eventually
became a term that is used by some for all Mexican migrants and Mexican Americans. Historians
today, employing code word analysis, would draw the conclusion that the direct use of the term
by President Truman, the private use and public acquiescence to the term by President
Eisenhower, and the repeated use by members of Eisenhower’s administration is strong evidence
of animus that may have affected government policies and immigration enforcement.
18 See, e.g., Drive on Wetbacks Termed a Success, N.Y. TIMES, Mar. 10, 1955, at 28, https://timesmachine.nytimes. com/timesmachine/1955/03/10/93729836.html?pageNumber=28 (reporting on Swing’s testimony to a House Government Operations subcommittee); Statement of Honorable Herbert Brownell, Jr., Attorney General of the United States, Testimony before Subcommittee on Immigration of the Committee on the Judiciary, April 13, 1956, https://www.justice.gov/sites/default/files/ag/legacy/2011/09/12/04-13-1956%20pro.pdf (discussing the “Mexican wetback problem” and Operation Wetback). 19 Brownell Maps Trip for “Wetback” Study, N.Y. TIMES, Aug. 8, 1953, at 13, https://timesmachine.nytimes.com/ timesmachine/1953/08/08/84417640.html?pageNumber=13. 20 KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION, AND THE I.N.S. 51 (1992). 21 Whether it was a slur expressing animus was contested among Supreme Court justices as late as 1981. Justice William Rehnquist used the term during the justices’ private weekly conference when they were discussing Plyler v. Doe. Justice William Rehnquist referred to schoolchildren of Mexican ancestry as “wetbacks.” When Justice Thurgood Marshall protested, likening the word to the n-word, Justice Rehnquist defended his use of the term, saying that the term still had “currency” in his part of the country. Keith Cunningham-Parmeter, Alien Language: Immigration Metaphors and the Jurisprudence of Otherness, 79 FORDHAM L. REV. 1545, 1547 (2011) (citing Justice William J. Brennan, Conference Notes, Plyler v. Doe (Nos. 80-1538, 80-1934) (Dec. 8 1981) (on file with the Library of Congress, Manuscript Division, William J. Brennan Papers, Part I: Box 572)). It is of note that Justice Rehnquist joined Chief Justice Burger’s dissent in Plyler v. Doe, 457 U.S. 202, 242 (1982) (Burger, C.J., dissenting).
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II. Code Word Analysis Is a Widely Accepted Methodology that Historians Employ to Discern Racial Animus and Give Context to Government Action.
While the use of “wetback” in the 1950s presents an easier case of discerning racially coded expressions, code word analysis becomes increasingly important when political strategists recognize the need to develop code words whose racial character is less obvious. The most explicit description is provided in a surprisingly candid confession by Republican political strategist Lee Atwater in 1981:
You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger” – that hurts you. Backfires. So you say stuff like . . . forced busing, states’ rights, and all that stuff, and you’re getting abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites . . . “We want to cut this,” is much more abstract than even the busing thing . . . and a hell of a lot more abstract than “Nigger, nigger.”22
As Dr. Stephen Pitti sets forth in his Declaration: Historians and other academic experts recognize that animus does not require explicit, public declarations of racial ideology that racism has persisted across the centuries. An attention to history and careful analysis of the use of coded racial appeals in contemporary political discourse provide the keys to understanding the links between racial animus and politics in the twenty-first century.
Pitti Decl. ¶ 20, No. 1:17-cv-05228, Dkt. 97-2 at 15. This understanding and appreciation of the operation of code words by historians is
precisely the reason the analysis and expert opinions expressed by historians examining current events can be helpful to the Court, especially when they are able to demonstrate how careful study of certain past events may inform our understanding of current events.
22 Rick Perlstein, Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy, THE NATION, Nov. 13, 2012, https://www.thenation.com/article/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy/.
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III. Courts Routinely Recognize the Evidentiary Value of Coded Language in Discerning Racial Animus.
Courts have come to rely on code words as evidence in determining whether alleged discriminatory acts are racially motivated. Unlike times past, today people are rarely explicit about their intent or motivation in expressing or acting on racial bias. The Second Circuit has recognized this evolution:
“Anti-discrimination laws and lawsuits have ‘educated’ would-be violators such that extreme manifestations of discrimination are thankfully rare… Regrettably, however, this in no way suggests that discrimination based upon an individual’s race, gender or age is near an end. Discrimination continues to pollute the social and economic mainstream of American life, and is often simply masked in more subtle forms.” . . . “[R]acially charged code words may provide evidence of discriminatory intent by sending a clear message and carrying the distinct tone of racial motivations and implications.” MHANY, 819 F.3d at 609 (quoting, respectively, Aman v. Cort. Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3d Cir. 1996) and Smith v. Fairview Ridges Hosp. 625 F.3d 1076, 1085 (8th Cir. 2010), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)) (citations omitted). In MHANY, plaintiffs alleged disparate treatment under the Fair Housing Act and Equal Protection Clause based, in part, on code word evidence. In that case, the local government reversed course on a plan to build multifamily housing in a predominately white community after community members complained at a series of public meetings. MHANY, 819 F.3d at 596. The complaints began in earnest after one official suggested that the development might include some percentage of affordable housing. Id. at 592-95. Knowing that this was likely to increase the number of people of color in the community, the residents raised concerns about how the development would impact the “character” and “flavor” of the community. Id. at 593. Other neighbors wanted assurances that the development would be “upscale.” Id. at 592. They were also vocal about potential negative impacts on traffic and schools, despite studies showing that
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traffic would decrease from current levels and that multi-family housing was likely to result in fewer children than the single family housing the dissenters were advocating for. Id. at 590-95. Residents worried that this community would become similar to other nearby majority-minority communities, id. at 594, and one urged the officials to “just keep Garden City what it is,” id. at 596. After the barrage of complaints, the officials abruptly changed course, capitulating to the demands of community members that the site be zoned for single family housing only. Id. at 596-97. The court upheld the trial court’s finding that “citizen opposition to [multi-family] zoning utilized code words to communicate their race-based animus to Garden City officials” and that “Garden City’s abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race-based animus.” Id. at 610-11.
The District Court in Arizona recently held that public officials used code words with regard to Mexican Americans, and that this constituted evidence of discriminatory intent in violation of the Equal Protection Clause. Gonzalez, 2017 WL 3611658, at *16. In that case, plaintiffs successfully claimed that a facially neutral Arizona statute used to eliminate a highly successful Mexican American Studies program was the product of racial animus. The court noted that the officials involved in the enactment and enforcement of the statute frequently used certain terms to stand in for Mexican Americans, such as “‘Raza,’ ‘un-American,’ ‘radical,’ ‘communist,’ ‘Aztlán,’ and ‘M.E.Ch.A.’” Id. The court found these to be derogatory code words because they “[drew] on negative mischaracterizations that had little to no basis in fact,” and found that “[t]hese particular words were effective codewords with Arizona voters because they drew on people‘s … concerns about illegal immigration’ and the ‘Mexicanization’ of Arizona that were prominent” at the time. Id. (internal quotations omitted).
Nearly every circuit court has recognized that code words or camouflaged expressions can be
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considered as evidence of discriminatory intent:23

First Circuit:

Soto v. Flores, 103 F.3d 1056, 1067 n.12 (1st Cir. 1997) (“It is rare that discrimination wears its garb openly and it more often comes ‘masked in subtle forms.’ Triers of fact may recognize those more subtle forms for what they are and coded comments may raise inferences of discrimination.”) (quoting Aman, 85 F.3d at 1082));

Second Circuit: MHANY, 819 F.3d at 608-12 (upholding district court’s finding that opponents used racially charged code words to communicate animus and that city officials acquiesced to this animus in its shift in zoning);

Third Circuit:

Aman, 85 F.3d at 1082-83 (holding that use of “inherently racist” code words can constitute evidence of a hostile work environment and an intent to discriminate);

Fourth Circuit:

Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1066 (4th Cir. 1982) (concern evinced about the influx of “undesirables” and dilution of public schools and threat to public safety constituted “evidence … which in a different context might not illustrate racial bigotry, but, against the background of the housing project in Clarkton and the considerable opposition to it, were interpreted by the trial court as ‘camouflaged’ racial expressions”);

Fifth Circuit:

Jenkins v. Methodist Hosps. of Dallas, Inc., 478 F.3d 255, 265 (5th Cir. 2007) (recognizing that code words may provide basis of discriminatory intent);

Sixth Circuit:

United States v. City of Birmingham, Mich., 727 F.2d 560, 563 (6th Cir. 1984) (affirming injunctive relief on a Fair Housing Act claim based in part on statements that proposed housing would introduce “harmful elements” and bring “those people” to Birmingham, which led trial court to specifically conclude the language was in reference to “[B]lack people”);

Seventh Circuit: E.E.O.C. v. Bd. of Regents of U. of Wis. Sys., 288 F.3d 296, 303 (7th Cir. 2002) (finding that a reasonable jury could find use of code words such as

23 The only circuit that appears not to have directly addressed this issue is the Federal Circuit, though that court does recognize that “because direct evidence of deceptive intent is rarely available, such intent can be inferred from indirect and circumstantial evidence.” Star Sci., Inc. v. R.J. Reynolds Tobacco, Co., 537 F.3d 1357, 1366 (Fed. Cir. 2008) (citation omitted). At least two Supreme Court justices have referenced the concept of code words as a mask for racial discrimination. See City of Memphis v. Greene, 451 U.S. 100, 135 (1981) (Marshall, J., dissenting) (recognizing the use of “code phrases” for racial discrimination in city’s explanation for closure of road from predominately white area of the city to predominately black area); Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 243 n.23 (1973) (Powell, J. concurring in part, dissenting in part) (noting argument that “neighborhood education is now but a code word for racial segregation”).

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“’pre-electronic’ era and that he would have to be brought ‘up to speed’ on ‘new trends of advertising via electronic means’” a reflection of age bias in ADEA case);

Eighth Circuit:

Smith, 625 F.3d at 1085-86 (finding that “[t]he picture of Buckwheat, the comment about fried chicken, and the reference to the ghetto … carry some inferences that they were racially motivated” and discussing variety of instances in which code words may serve as evidence of racial animus);

Ninth Circuit:

Avenue 6E Invs., LLC v. City of Yuma, Ariz., 818 F.3d 493, 506-07 (9th Cir. 2016) (finding that use of code words consisting of stereotypes of Latinos, along with other evidence, “provide plausible circumstantial evidence that community opposition to Developers’ proposed development was motivated in part by animus, and that the City Council was fully aware of these concerns” when it voted against the zoning commission’s recommendations);

Tenth Circuit:

Villanueva v. Carere, 85 F.3d 481, 488 (10th Cir. 1996) (sharing concern over use of “culture” in response to argument that use of term is a code word for “ethnic minority”);

Eleventh Circuit: Underwood v. Hunter, 730 F.2d 614, 621 (11th Cir. 1984), aff’d, Hunter v. Underwood, 471 U.S. 222 (1985) (holding that a provision of the Alabama constitution disenfranchised voters in violation of the Fourteenth Amendment, noting that “the avowed objective of the suffrage committee was to deny the vote to the corrupt and the ignorant,” which the defendant’s expert admitted “referred specifically to blacks and lowerclass whites”) (emphasis added); and

D.C. Circuit

Arnold v. U.S. Postal Serv., 863 F.2d 994, 1000 (D.C. Cir. 1988) (recognizing that “[t]here may well be cases in which seniority is simply a code word or age discrimination” in an ADEA case).

A recent case under the Voting Rights Act is particularly instructive, especially with regard

to the role that an expert can play in assisting a court to discern “that neutral reasons can and do

mask racial intent, a fact we have recognized in other contexts that allow for circumstantial

evidence.” Veasey v. Abbott, 830 F.3d 216, 236 (5th Cir. 2016), cert. denied, 137 S. Ct. 612

(2017). As the court reviewed the evidence “that could support a finding of discriminatory

intent,” 830 F.3d at 235, it contrasted the stated purpose of SB 14—deterring “voter fraud”—

with evidence that the drafters and proponents likely knew of the law’s disproportionate effect on

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minorities, id. at 236. The Deputy General Counsel to the Lieutenant Governor testified that he sent an email “urg[ing] senators to emphasize the detection and deterrence of fraud and protect[ing] public confidence in elections” as “the goal” of SB 14, “to remind people what the point of the bill was” for their speeches on the floor of the Texas Senate. Id. at 236 n.19; see also id. at 288 n.17 (Jones, J., dissenting) (cataloguing statements of proponents of SB 14 about the purpose of the bill being to deter “voter fraud” and “protect the integrity of the ballot box”).
In examining the stated purpose of deterring “voter fraud,” the court gave special attention to the testimony from plaintiffs’ expert on race relations, a history professor, which placed the “voter fraud” language in historical context. Id. at 237 (noting the record showed that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity). The court quoted directly from the expert’s testimony about the stated rationale for devices Texas had used to deny minorities the vote, including the all-White primary, the secret ballot, and the use of illiteracy, poll tax, reregistration, and purging. Id.
Q What, in your opinion, was the stated rationale for the enactment of all [-]White primaries in Texas?
A The stated rationale was voter fraud. Q What was the stated rationale, in your opinion, for the use of secret ballot provisions in
Texas? A The stated rationale was to prevent voter fraud. Q And what was the stated rationale, in your opinion, for the use of the poll tax in Texas? A The stated rationale by the State was to prevent voter fraud. Q And how about the stated rationale for the use in Texas of re-registration requirements
and voter purges? A The stated rationale was voter fraud. Q Dr. Burton, in your expert opinion, did these devices actually respond to sincere concerns
or incidents—incidences of voter fraud? A No.
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Id. The court remanded the discriminatory intent issue, instructing the trial court to reweigh the Arlington Heights factors, noting “there is evidence that could support a finding that the Legislature’s race-neutral reason of ballot integrity offered by the State is pretextual,” id., and that “there remains evidence to support a finding that the cloak of ballot integrity could be hiding a more invidious purpose,” id. at 241; id. at 242 (remand).
IV. A Sensitive Inquiry into the Historical Background of the Decision to Rescind DACA, with Particular Attention Paid to Contemporaneous Statements Made by Decisionmakers, Reveals the Use of Code Words Reflecting Animus Against Persons of Mexican Ancestry and Latinos.
The 96-page Expert Report of Stephen J. Pitti, No. 1:17-cv-05228, Dkt. 97-2 at 76-174 (“Pitti Report”), provides comprehensive documentation and analysis of contemporaneous statements made by Donald Trump as candidate and as President as well as statements made by key advisers and administration officials, including Senator and later Attorney General Jefferson Beauregard Sessions III and policy adviser Stephen Miller. Id. at 113-63. A comprehensive discourse analysis issued Dec. 21, 2017, reviews 300 speeches and 5000 tweets of Donald Trump as candidate and President. See The President’s Intent, supra note 9. Each finds numerous, consistent, and persistent statements that are racially coded expressions and code words that provide strong evidence of animus. Pitti Report, No. 1:17-cv-05228, Dkt. 97-2 at 113-63; The President’s Intent, supra note 9 at passim.
Of special note is the manner in which Trump talks about DACA recipients and the way he contests and subverts the name by which they are commonly referred: “Dreamers.” On November 13, 2015, in a forum called the Sunshine Summit hosted by the Republican Party of Florida intended to “electrify the Republican grassroots movement,”24 then-candidate Donald
24 Sunshine Summit, “Thank You,” http://www.sunshinesummit.gop/thank-you (stating mission).
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Trump stated: “We are going to hire Americans first. We’re going to take care of our workers. Did you ever hear of the Dream Act? It is not for our children. The Dream Act is for other children that come into the country. I want the Dream Act to be for our children.”25 Two days earlier at the fourth Republican presidential primary debate, Trump had promised a “deportation force” based on President Eisenhower’s enforcement of the border that included deportation efforts such as the 1954 Operation Wetback. In particular, he lauded Eisenhower’s program of deporting people deep into Mexico, saying, “Moved them way south. They never came back.”26 Rescinding DACA exposes DACA recipients to this “deportation force.”
These relatively early primary campaign statements are repeated during the general election campaign after Trump garners the Republican Party nomination. In a speech on August 24, 2016, Trump juxtaposes truly deserving American children against DACA recipients: “Where is the sanctuary city for American children? Where is that sanctuary? The dreamers we never talk about are the young Americans. Why aren’t young Americans dreamers also? I want my dreamers to be young Americans.”27 In another general campaign speech, he implores, “Let our children be dreamers too.”28
On September 1, 2017, when asked by reporters whether Dreamers should be worried, he responded, “We love the DREAMers . . . We think the DREAMers are terrific.”29 Mere days later, on September 5, the Trump administration ended DACA. In doing so, President Trump
25 Donald J. Trump, Remarks at 2015 Sunshine Summit (Nov. 13, 2015), https://www.c-span.org/video/?40032510/donald-trump-remarks-2015-sunshine-summit. 26 Transcript: Republican Presidential Debate, N.Y. TIMES, Nov. 11, 2015, https://www.nytimes.com/2015/11/11/ us/politics/transcript-republican-presidential-debate.html. 27 Donald J. Trump, Remarks at the Mississippi Coliseum in Jackson, Mississippi (Aug. 24, 2016), http://www. presidency.ucsb.edu/ws/index.php?pid=123198. 28 Donald J. Trump, Remarks at the Charlotte Convention Center in Charlotte, North Carolina (Aug. 18, 2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119175. 29 Donald J. Trump, Remarks on Signing a Proclamation on the National Day of Prayer for the Victims of Hurricane Harvey and for Our National Response and Recovery Efforts and an Exchange with Reporters (Sept. 1, 2017), http://www.presidency.ucsb.edu/ws/index.php?pid=128160&st=dreamers&st1=.
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repeated, “Above all else, we must remember that young Americans have dreams too. . . . Our first and highest priority must be to improve jobs, wages and security for American workers and their families.”30
In this usage, Trump has co-opted “dreamer” and uses it instead to paint DACA recipients as interlopers whose unlawful presence threatens the rightful economic opportunities of “American” children. “Dreamer” itself becomes a code word that is intended to inflame and exploit negative sentiment based on people’s economic anxieties.
The code word analysis provided in the Pitti Report, as well as the discourse analysis in The President’s Intent, shows that Plaintiffs have a strong likelihood of proving animus and prevailing on their equal protection and APA claims.
CONCLUSION For the foregoing reasons, this Court should grant the relief sought by Plaintiffs.

Dated: December 21, 2017

Respectfully submitted,
FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY
/s Robert S. Chang
Robert S. Chang (admitted pro hac vice) Seattle University School of Law 901 12th Avenue Seattle, WA 98122 Telephone: (206) 398-4025 Facsimile: (206) 398-4036 changro@seattleu.edu
Attorney for Amici Curiae

30 Statement from President Donald J. Trump (Sept. 5, 2017), https://www.whitehouse.gov/briefings-statements/ statement-president-donald-j-trump-7/.
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APPENDIX List of Individual Amici Curiae with Title and Institutional Affiliation Listed for Identification Purposes31

Name Lauren Araiza Rick Baldoz Carlos Kevin Blanton
Laura Briggs
Geraldo L. Cadava Maria Raquel Casas Lori Flores Glenda E. Gilmore Ariela Gross Thomas Guglielmo Matthew Pratt Guterl Leslie M. Harris

Title

Institutional affiliation

Associate Professor and Chair, Department of History

Denison University

Associate Professor and Chair of Sociology

Oberlin College

Professor of History

Texas A & M University, College Station

Chair and Professor, Women, Gender, Sexuality Studies; Affiliate Professor, Department of History

University of Massachusetts Amherst

Associate Professor of History and Latina/o Studies

Northwestern University

Associate Professor, Department University of Nevada, Las

of History

Vegas

Associate Professor, Department Stony Brook University

of History

(SUNY)

Peter V. and C. Vann Woodward Professor of History

Yale University

John B. & Alice R. Sharp Professor of Law & History

University of Southern California

Associate Professor of American George Washington

Studies

University

Professor of Africana Studies and American Studies

Brown University

Professor, History and African American Studies

Northwestern University

31 None of the individual amici speak for or represent the official views of their respective institutions or departments.
A-1

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Kelly Lytle Hernandez
Daniel HoSang
Madeline Y. Hsu Michael D. InnisJiménez Matthew Frye Jacobson Karl Jacoby Ari Kelman
Erika Lee
Shelley S. Lee Mary Ting Yi Lui Joseph Lowndes Nancy MacLean Kate Masur John MckiernanGonzalez

Professor, Departments of History and African-American Studies and Interim Director, Ralphe Bunche Center for African American Studies

University of California, Los Angeles

Associate Professor of Ethnicity, Race & Migration and American Studies

Yale University

Professor, Department of History and Center for Asian American Studies

The University of Texas at Austin

Associate Professor of American Studies and Director of Graduate Studies

University of Alabama

William Robertson Coe Professor of American Studies and History

Yale University

Professor of History

Columbia University

Chancellor’s Leadership Professor The University of

of History

California, Davis

Director, Immigration History Research Center, and Distinguished McKnight University Professor, Department of History

University of Minnesota

Associate Professor of History and Director of Comparative American Oberlin College Studies

Professor of American Studies and History

Yale University

Associate Professor, Political Science Department

University of Oregon

William H. Chafe Professor of History and Public Policy

Duke University

Associate Professor of History

Northwestern University

Associate Professor of History

Texas State University

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Ronald L. Mize

Associate Professor of Language, Culture and Society

Oregon State University

Natalia Molina

Professor of History

University of California, San Diego

Gary Y. Okihiro

Visiting Professor, American Studies

Yale University

Leigh Raiford

Associate Professor, African American Studies

University of California, Berkeley

David Roediger

Foundation Professor of American Studies

University of Kansas

Renee C. Romano

Robert S. Danforth Professor of Humanities; Chair, Department of History; and Professor of Comparative American Studies and Africana Studies

Oberlin College

Vicki L. Ruiz

Distinguished Professor Emerita, History and Chicano/Latino Studies

University of California, Irvine

Rachel St. John

Associate Professor, Department University of California,

of History

Davis

Virginia J. Scharff

Distinguished Professor of History

and Director, Center for the

University of New Mexico

Southwest

Alexandra Minna Stern

Chair and Professor, Department of American Culture and History

University of Michigan

Timothy Stewart-Winter Associate Professor of History

Rutgers University – Newark

Penny Von Eschen

L. Sanford and Jo Mills Reis Professor of Humanities, Department of History

Cornell University

Julie M. Weise

Associate Professor of History

University of Oregon

Judy Tzu-Chun Wu

Professor and Chair, Asian American Studies Department

University of California, Irvine

A-3

Case 1:17-cv-05228-NGG-JO Document 149 Filed 12/21/17 Page 30 of 30 PageID #: 6529

CERTIFICATE OF SERVICE I hereby certify that, on December 21, 2017, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: December 21, 2017

/s/ Robert S. Chang
Robert S. Chang (admitted pro hac vice) Seattle University School of Law 901 12th Avenue Seattle, WA 98122 Telephone: (206) 398-4025 Facsimile: (206) 398-4036 changro@seattleu.edu
Attorney for Amici Curiae

 
 Case 1:17-cv-05228-NGG-JO Document 155 Filed 12/22/17 Page 1 of 22 PageID #: 6599

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

)

)

)

MARTIN JONATHAN BATALLA VIDAL, et al., )

)

Plaintiffs,

) ) Case No. 16-cv-4756 (NGG) (JO)

v.

)

)

KIRSTJEN NIELSEN, Secretary,

)

Department of Homeland Security, et al.,

)

)

Defendants.

)

)

)

STATE OF NEW YORK, et al., Plaintiffs,
v. DONALD TRUMP, President of the United States, et al.,
Defendants.

) ) ) ) ) ) ) Case No. 17-cv-5228 (NGG) (JO) ) ) ) ) ) ) ) )

BRIEF AMICI CURIAE OF CURRENT AND FORMER LAW ENFORCEMENT LEADERS IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR A PRELIMINARY INJUNCTION AND
IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

Case 1:17-cv-05228-NGG-JO Document 155 Filed 12/22/17 Page 2 of 22 PageID #: 6600 TABLE OF CONTENTS
INTEREST OF AMICI CURIAE................................................................................................... 1 INTRODUCTION .......................................................................................................................... 2 ARGUMENT .................................................................................................................................. 3
I. DACA Fosters Effective Law Enforcement. ...................................................................... 3 A. “Community Policing” Is Essential to Effective Law Enforcement. ............................... 3 B. DACA Promotes Cooperation with Law Enforcement.................................................... 4 C. DACA Aids Law Enforcement by Facilitating Access to Identification. ........................ 8
II. DACA Helps Law Enforcement Protect Vulnerable Individuals from Crime and Exploitation....................................................................................................................... 10
CONCLUSION............................................................................................................................. 14
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Table of Authorities
Statutes
8 U.S.C. § 1324a(h)(3)...................................................................................................................10
8 C.F.R. § 274a.12(c)(14) ..............................................................................................................10
Pub. L. No. 106-386, 114 Stat. 1491 (2000)....................................................................................7
Executive and Congressional Materials
Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n) ...................................4, 6, 11
Soc. Security Admin., SSA Publ’n No. 05-10096, Social Security Numbers for Noncitizens (June 2015), available at http://www.ssa.gov/pubs/EN-05-10096.pdf ...................................10
U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., OMB No. 1615-0040, Instructions for I-765 Application for Employment Authorization (Nov. 2015), available at https://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf .........................................10
U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-humantrafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminalactivity-u-nonimmigrant-status (last updated Aug. 25, 2017) ...................................................7
U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs., Enhancing Community Policing with Immigrant Populations (Apr. 2010), available at https://ric-zaiinc.com/Publications/cops-w0747-pub.pdf .............................................................................10
Other Authorities
Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593 (2013)..................................................................................13
Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (2009), https://www.policefoundation.org/wpcontent/uploads/2015/06/The-Role-of-Local-Police-Narrative.pdf...............................4, 12, 13
Elizabeth Fussell, The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery, 52 Soc. Q. 593 (2011) ..................................................................11, 12, 13
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Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159 (2010) ......12
Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328 (2015) ...............13
Leslye Orloff, Levi Wolberg & Benish Anver, Nat’l Ctr. on Domestic & Sexual Violence, UVisa Victims and Lawful Permanent Residency (Sept. 6, 2012), http://www.ncdsv.org/ images/NIWAP_U-VisaVictimsAndLawfulPermanentResidency_9-6-12.pdf.........................8
Nat’l Immigration Law Ctr., Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement (Aug. 2013), https://www.nilc.org/wp-content/uploads/2017/02/ Law-Enforcement-Opposition-to-Mandates-2013-08-30.pdf ....................................................6
Mark Hugo Lopez & Susan Minushkin, Pew Hispanic Center, 2008 National Survey of Latinos: Hispanics See Their Situation in U.S. Deteriorating; Oppose Key Immigration Enforcement Measures (Sept. 18, 2008), http://pewhispanic.org/reports/report.php?ReportID=93 ..............4
Michael Corkery & Jessica Silver-Greenberg, Banks Reject New York City IDs, Leaving ‘Unbanked’ on Sidelines, N.Y. Times, Dec. 23, 2015...............................................................9
Natalia Lee et al., Nat’l Immigrant Women’s Advocacy Project, National Survey of Service Providers on Police Response to Immigrant Crime Victims, U Visa Certification and Language Access (Apr. 16, 2013), http://www.niwap.org/reports/Police-Response-U-VisasLanguage-Access-Report-4.6.13.pdf .........................................................................................8
Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230 (2005) ...............................................13
Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_ FINAL.PDF ...............................................................................................................................5
New York City Dep’t of Investigation, Office of the Inspector General for the New York Police Dep’t, When Undocumented Immigrants are Crime Victims: An Assessment of NYPD’s Handling of U Visa Certification Requests at 1 (July 2017), https://www.1.nyc.gov/assets/ doi/reports/pdf/2017/07-28-2017-U-Visa-Rpt-Release.pdf ......................................................6
Police Exec. Research Forum, Voices from Across the Country: Local Law Enforcement Officials Discuss the Challenges of Immigration Enforcement (2012), http://www.policeforum.org/ assets/docs/Free_Online_Documents/Immigration/voices%20from%20across%20the%20cou ntry%20-%20local%20law%20enforcement%20officials%20discuss%20the%20challenges %20of%20immigration%20enforcement%202012.pdf.........................................................5, 9
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Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183 (2001) .........................................................................................................................................6
Roberto G. Gonzales, DACA’s beneficiaries landed good jobs, enrolled in college, and contributed to society, Vox Media, Sept. 5, 2017, https://www.vox.com/2017/9/2/16244380/ daca-benefits-trump-undocumented-immigrants-jobs...........................................................7, 8
Roberto G. Gonzales & Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA (June 2014), http://www.immigrationpolicy.org/special-reports/two-years-and-counting-assessinggrowing-power-daca ..............................................................................................................7, 8
S. Poverty Law Ctr., Under Siege: Life for Low-Income Latinos in the South (Apr. 2009), http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf ..........................11, 12
Zenén Jaimes Pérez, United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three-Years Later (June 2015), http://unitedwedream.org/wp-content/uploads/2015/10/DACA-report-final-1.pdf ............7, 10
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INTEREST OF AMICI CURIAE Amici Current and Former Law Enforcement Leaders file this brief as amici curiae in support of Plaintiffs. Amici are a leading national association of local law enforcement executives and current and former individual police chiefs, sheriffs, and law enforcement leaders. Amici have deep and wide-ranging expertise in local law enforcement and in cooperative federal-state law enforcement activities. They are intimately familiar with the difficulties of performing critical law enforcement functions in communities where immigrants fear the police and therefore are especially vulnerable to exploitation and crime. Amici’s experience in keeping their communities safe has taught them the critical importance of bringing immigrants and their families “out of the shadows” and into their broader communities. Trust and cooperation are essential to public safety, and sound police work is undermined when undocumented immigrants fear interacting with law enforcement. This fear, moreover, leaves undocumented immigrants more vulnerable to crime and exploitation, leading to more violence in the communities that amici are charged with protecting. The Deferred Action for Childhood Arrivals (“DACA”) program protects from deportation nearly 800,000 individuals brought to this country as children. Under DACA, these individuals, who have undergone background checks and lived continuously in the United States since 2007, have been permitted to live, work, and study in this country without fear of deportation. Amici have witnessed firsthand how the DACA program has helped law enforcement officers to keep their communities safe by taking away the fear of removal from these nearly 800,000 individuals who are active members of their communities. A full list of amici is attached as Exhibit A.
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INTRODUCTION The lessons that amici have learned in protecting their communities shed important light on the issues raised in this case. Community policing, a philosophy that calls for trust and engagement between law enforcement and those whom they protect, is vital to effective police work and, in turn, to public safety. That trust is undermined when undocumented individuals fear interaction with the police, and law enforcement suffers as a result. Extensive evidence shows that, especially without programs such as DACA in place, undocumented immigrants—and their lawfully present family and neighbors—fear that turning to the police to report crimes or engaging with the police as they investigate crimes will bring adverse immigration consequences. As a result, immigrant communities are less willing to report crimes or cooperate with police investigations. This fundamental breakdown in trust poses a major challenge for police not only as they seek to protect communities but also as they attempt to allocate resources sensibly in the interest of public safety. DACA ameliorates these problems by addressing an important reason that many individuals fear cooperating with law enforcement. As experience with DACA has shown, when immigrants are permitted to step out of the shadows, they are much more willing to work cooperatively with police. As explained below, nearly two-thirds of DACA recipients reported being less afraid of law enforcement, and 59 percent indicated that they would report a crime now in a situation in which they would not have reported it before entering the program. DACA further aids law enforcement by facilitating access to identification, such as federal employment authorization documents. Lack of identification in immigrant communities often leads to undue burdens on police, potentially turning a simple traffic stop into an hours-long detour to fingerprint
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someone at the police station. When police are able to identify victims, witnesses, and potential suspects without those sorts of delays, valuable law enforcement resources are spared.
DACA also benefits public safety by helping law enforcement to protect a population uniquely vulnerable to exploitation and violent crime. Numerous studies show that undocumented individuals’ fear of interactions with law enforcement makes them attractive targets for many forms of crime and abuse. Undocumented immigrants, for instance, face increased wage theft and other forms of exploitation in the workplace. With limited access to bank accounts (in substantial part because of their lack of identification), they have been dubbed by some as “walking ATMs” and are frequently targeted for robbery. Undocumented individuals are also especially vulnerable to domestic abuse because they are often afraid to turn to law enforcement for help against abusive partners.
By eliminating an important reason to fear law enforcement, by providing work authorization and access to identification, and by building trust between police and immigrants with longstanding ties to the United States, DACA aids community policing and makes recipients less vulnerable to crime and exploitation. In doing so, DACA provides vital support to police charged with protecting everyone in their communities.
ARGUMENT I. DACA Fosters Effective Law Enforcement.
A. “Community Policing” Is Essential to Effective Law Enforcement. As one major city police chief has explained, the experience of policing cities across the country has taught law enforcement officers that, “[t]o do our job, we must have the trust and
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respect of the communities we serve.”1 In order to stop crime, police officers “need the full cooperation of victims and witnesses.”2
This common-sense philosophy has come to be called “community policing.” Community
policing is an approach to policing whereby police officers engage communities in a working partnership to reduce crime and promote public safety.3 It thus requires police to interact with
neighborhood residents in a manner that will build trust and improve the level of cooperation with the police department.4 When that relationship of trust is missing—as it is when people believe
that contacting police could lead to deportation for themselves or others—community policing
breaks down and the entire community is left at greater risk of exploitation and violence.
B. DACA Promotes Cooperation with Law Enforcement.
The reality of millions of undocumented immigrants living in the United States poses
significant challenges to effective community policing.
According to a Pew survey, 57 percent of Latinos in the United States indicate that they
worry about deportation—of themselves, family members, or close friends—and 40 percent worry about it “a lot.”5 This fear necessarily affects cooperation and communication with the police.
1 Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), available at http://www.judiciary.senate. gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. 2 Id. 3 See Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (Apr. 2009) (citing Mark H. Moore, ProblemSolving and Community Policing, Modern Policing (Michael Tonry & Norval Morris eds., 1992)), available at https://www.policefoundation.org/wp-content/uploads/2015/06/The-Role-of-LocalPolice-Narrative.pdf. 4 Id. 5 Mark Hugo Lopez & Susan Minushkin, Pew Hispanic Ctr., 2008 National Survey of Latinos: Hispanics See Their Situation in U.S. Deteriorating; Oppose Key Immigration Enforcement
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Immigrants and their family members and neighbors who may be U.S. citizens or lawfully present
often assume that interaction with police could have adverse consequences for themselves or a
loved one. Even when local authorities play no role in immigration enforcement, many immigrants
still associate police with immigration authorities, or expect police to inquire about immigration
status.6
As a result, immigrant communities in general, and undocumented immigrants in
particular, are less likely to trust and cooperate with local police. In one survey of Latinos in four
major cities designed to assess the impact of police involvement in immigration enforcement on
public safety and police-community relations, 70 percent of undocumented immigrants and 44
percent of all Latinos said they would be less likely to contact law enforcement authorities if they
were victims of a crime for fear that the police would ask them or people they know about their
immigration status; and 67 percent of undocumented immigrants and 45 percent of all Latinos said
they would be less likely to voluntarily offer information about, or report, crimes because of the
same fear.7
Measures at ii (Sept. 18, 2008), http://pewhispanic.org/reports/report.php ?ReportID=93. 6 See, e.g., Police Exec. Research Forum, Voices from Across the Country: Local Law Enforcement Officials Discuss the Challenges of Immigration Enforcement 2 (2012), http://www.policeforum.org/ assets/docs/Free_Online_Documents/Immigration/voices%20from %20across%20the%20country%20-%20local%20law%20enforcement%20officials%20discuss% 20the%20challenges %20of%20immigration%20enforcement%202012.pdf (“[S]ome members of the public . . . may have a misperception that because immigration is governed by laws, all law enforcement agencies have responsibility for enforcing those laws. . . . Police chiefs note that immigrants often have this misperception, which often makes them reluctant to contact local police . . . .”). 7 Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5-6 (May 2013), www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF; see also id. at 1 (“Survey results indicate that the greater involvement of police in immigration enforcement has significantly heightened the fears many Latinos have of the police, . . . exacerbating their mistrust of law enforcement authorities.”).
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This problematic atmosphere of mistrust is felt by police as well. In one study, two-thirds
of the law enforcement officers polled held the view that recent immigrants reported crimes less frequently than others.8 Those surveyed also indicated that the crimes underreported by
immigrants most often are serious ones, with domestic violence and gang violence at the top of the list.9 The widely recognized fear among immigrants of interacting with law enforcement poses
a fundamental challenge for community policing. Police cannot prevent or solve crimes if victims
or witnesses are unwilling to talk to them because of concerns that they or their loved ones or
neighbors will face adverse immigration consequences. As the president of the Major Cities Chiefs
Association has explained to Congress, “[c]ooperation is not forthcoming from persons who see their police as immigration agents.”10 Moreover, as cautioned by one official, “immigrants will never help their local police to fight crime once they fear we have become immigration officers.”11
The underreporting of crimes by recent immigrants is a problem for the criminal justice system.12 The most immediate consequence, of course, is that serious crimes go unreported and
unpunished. At a broader level, undercounting the incidence of crime in areas where immigrant
communities live leads to the under-allocation of law enforcement resources to those
8 Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (2001). 9 Id. at 188-9. See also New York City Dep’t of Investigation, Office of the Inspector General for the New York Police Dep’t, When Undocumented Immigrants are Crime Victims: An Assessment of NYPD’s Handling of U Visa Certification Requests at 1 (July 2017), available at https://www.1.nyc.gov/assets/doi/reports/pdf/2017/07-28-2017-U-Visa-Rpt-Release.pdf (“For undocumented people who are victims of crimes . . . fear of deportation can stand in the way of cooperation – a fact their abusers readily exploit.”) 10 Statement of Tom Manger, supra note 1, at 2. 11 National Immigration Law Center, Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement 2 (Aug. 2013) (statement of Chief Acevedo), https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Opposition-to-Mandates2013-08-30.pdf. 12 Davis et al., supra note 8, at 188.
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communities.13 As one official explained, when criminal behavior goes unreported, “[c]rime
multiplies” and “[u]nresolved resentments grow in the community.”14 Another added that the
underreporting of crime “keeps fear at very high levels and diminishes quality of life.”15
DACA has helped to ameliorate these problems and improve public safety more broadly.
Nearly eight in ten recipients of DACA relief reported that they are now less afraid of
deportation,16 two-thirds reported being less afraid of law enforcement, and 59 percent of DACA
recipients surveyed said that they would report a crime now in a situation in which they would not
have reported it before.17 If DACA were to remain in place, those who qualify for the program
would not revert to old reasons to fear ordinary encounters with law enforcement. Instead, they
would retain greater freedom to cooperate in the protection of their communities without worrying
about how their good deed might be punished—for example, by causing them to be separated from
their family members, siblings, or loved ones.
Lessons learned from implementation of the Violence Against Women Act of 200018 are
instructive. With that Act, congress created the U visa to provide immigration relief to
undocumented victims of certain crimes.19 Like DACA qualification, a U visa allows recipients
13 Id. 14 Id. 15 Id. 16 Zenén Jaimes Pérez, United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three-Years Later 23 (June 2015), http://unitedwedream.org/wp-content/uploads/2015/10/DACA-report-final-1.pdf. 17 Roberto G. Gonzales & Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA 9 (June 2014), http://www.immigrationpolicy.org/special-reports/two-years-and-counting-assessing-growingpower-daca; Roberto G. Gonzales, DACA’s beneficiaries landed good jobs, enrolled in college, and contributed to society, Vox Media, Sept. 5, 2017, https://www.vox.com/2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs. 18 Pub. L. No. 106-386, 114 Stat. 1491 (2000). 19 See U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human-
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to identify themselves, receive temporary relief from removal, and obtain verified government identification.20 The benefits for law enforcement have been striking. A recent study indicated
that U visa applicants and recipients, freed of the need to remain in the shadows, became far more
likely to cooperate with law enforcement in the detection, investigation, and prosecution of crimes.21 Indeed, more than 99 percent stated that they were willing to cooperate with the police,
and 70 percent were in fact asked to—and did—provide assistance related to crimes committed against them.22 That U-visa holders who seek lawful permanent residency are expected to provide
“reasonably requested information and assistance” to law enforcement in connection with the
crimes that qualify them for immigration relief undoubtedly helps explain the especially high level of cooperation, but the protections offered by the U-visa are what enable that cooperation.23
Another study revealed that three-quarters of law enforcement officers view U visas as beneficial in encouraging victims to come forward and report crimes.24
C. DACA Aids Law Enforcement by Facilitating Access to Identification.
A further benefit of DACA for effective policing follows from the greater availability of
identification. Because most states do not issue driver’s licenses or other identification to
undocumented immigrants, law enforcement often face serious difficulties reliably identifying
trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminalactivity-u-nonimmigrant-status (last updated Aug. 25, 2017). 20 See id. 21 See Leslye Orloff, Levi Wolberg & Benish Anver, Nat’l Ctr. on Domestic & Sexual Violence, U-Visa Victims and Lawful Permanent Residency 5-6 (Sept. 6, 2012), http://www.ncdsv.org/ images/NIWAP_U-VisaVictimsAndLawfulPermanentResidency_9-6-12.pdf. 22 Id. 23 See id. at 5 (internal quotation marks omitted). As set forth supra, note 17, there is a similar result from the DACA program, which involves no expectation of law enforcement cooperation. 24 Natalia Lee et al., Nat’l Immigrant Women’s Advocacy Project, National Survey of Service Providers on Police Response to Immigrant Crime Victims, U Visa Certification and Language Access 21 (Apr. 16, 2013), available at http://www.niwap.org/reports/Police-Response-U-VisasLanguage-Access-Report-4.6.13.pdf.
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undocumented community members. Ready access to identification aids law enforcement in the most basic of ways: if the police cannot verify who someone is, it becomes much harder to identify witnesses and victims, investigate potential suspects, and perform critical tasks like searching for a criminal history, investigating outstanding warrants, and determining whether someone poses a threat.25
Even the simplest traffic stop can lead to an unnecessary waste of valuable law enforcement resources if an individual cannot be identified. If an officer stops a motorist who does not have a license or other verifiable identification, the officer may have no other option than to arrest the individual, bring him to the station, and obtain fingerprint information in order to identify the individual. As one police chief has explained, “[w]hen we stop cars and the driver doesn’t have a driver’s license, there are very few options for the officers and troopers.”26 The only way to reliably identify the individual may be through fingerprints, requiring a detour to “jail so we can find out who they are.”27 Another former police chief lamented the “manpower” required and time lost—“up to two to three hours to determine who an arrestee is”—which could be devoted to more pressing law enforcement concerns.28
Recipients of DACA are eligible to apply for a federal employment authorization document (“EAD”). The EAD comes in the form of a card issued by U.S. Citizenship and Immigration
25 Police Exec. Research Forum, supra note 6, at 15; see also Michael Corkery & Jessica SilverGreenberg, Banks Reject New York City IDs, Leaving ‘Unbanked’ on Sidelines, N.Y. Times, Dec. 23, 2015 (describing municipal identification and stating, “[t]he mayor emphasized that the cards were developed with input from the New York City Police Department and said the department had been one of the biggest backers of the program. ‘They want every New Yorker on the street to have an ID card; it greatly improves the work of the NYPD,’ Mr. de Blasio said.”). 26 See id. at 15-16. 27 Id. at 16. 28 Id. at 15.
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Services, and includes the recipient’s photograph.29 Individuals who receive employment authorization also are eligible to obtain a Social Security number and card.30 Because DACA has expanded availability of identification, it has assisted law enforcement officers’ ability to identify those whom they encounter.31 Instead of time-consuming, wasteful, and potentially antagonistic encounters with individuals who pose no public safety concern, police have more time to focus on higher priorities in keeping their communities safe.
II. DACA Helps Law Enforcement Protect Vulnerable Individuals from Crime and Exploitation.
DACA has yielded another vital public safety benefit: protecting individuals who are attractive targets for criminals.
As discussed above, undocumented immigrants as well as their families fear interactions with police and are reluctant to report crimes when doing so is accompanied by the fear of removal. No one knows this better than the predators who seek to take advantage of immigrant communities’ vulnerabilities. These communities face a range of misconduct, from abuse by unscrupulous employers to domestic and gang violence.32 “When immigrants come to view their local police
29 See 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14); see also U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., OMB No. 1615-0040, Instructions for I-765 Application for Employment Authorization (Nov. 2015) (describing EAD as a “card” and requiring two passport-style photos), available at https://www.uscis.gov/sites/default/files/files/form/i765instr.pdf. 30 See Soc. Sec. Admin., SSA Publ’n No. 05-10096, Social Security Numbers for Noncitizens (June 2015), available at http://www.ssa.gov/pubs/EN-05-10096.pdf. 31 More than 90 percent of recipients of relief under DACA report that they have acquired a driver’s license or other identification. Pérez, supra note 16, at 20. 32 See U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs., Enhancing Community Policing with Immigrant Populations 16 (Apr. 2010), available at https://ric-zaiinc.com/Publications/cops-w0747-pub.pdf.
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and sheriffs with distrust because they fear deportation, it creates conditions that encourage criminals to prey upon victims and witnesses alike.”33
This phenomenon has been termed the “deportation threat dynamic.”34 The logic is straightforward: “(1) an unauthorized migrant seeks, and finds, employment; (2) a person, such as an employer or criminal, identifies the migrant as unauthorized; (3) that person commits a crime against the migrant, such as wage theft, another workplace violation, or robbery; and (4) the migrant does not report the crime to law enforcement,” fearing immigration consequences.35
This phenomenon is widespread in the workplace. In a number of studies, between 40 and 80 percent of mostly undocumented immigrants reported being victims of wage theft.36 Many immigrants also reported other types of worksite abuse.37 In one study, 32 percent of respondents said that they had suffered on-the-job injuries—and most of these individuals, after being injured, were fired, not paid lost wages, or denied medical care by their employers.38
The deportation threat dynamic fuels not only exploitation but also outright violence. An advocate reported that, when one worker attempted to collect wages his employer owed him, “[t]he contractor raised his shirt and showed he had a gun—and that was enough. . . . He didn’t have to
33 Statement of Tom Manger, supra note 1, at 2. 34 Elizabeth Fussell, The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery, 52 Soc. Q. 593 (2011). 35 Id. at 610. 36 See id. (finding that 2 of 5 respondents reported wage theft since arriving in New Orleans, and citing Nik Theodore, Abel Valenzuela, Jr. & Edwin Meléndez, La Esquina (The Corner): Day Laborers on the Margins of New York’s Formal Economy, 9 WorkingUSA: J. Labor & Soc. 407 (Dec. 2006), finding a wage theft rate of approximately 50% in New York); S. Poverty Law Ctr., Under Siege: Life for Low-Income Latinos in the South 6 (Apr. 2009) (finding that 41% of those surveyed across the South had experienced wage theft, and 80% had in New Orleans), http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf. 37 Fussell, supra note 34, at 604. 38 S. Poverty Law Ctr., supra note 36, at 6.
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say any more. The worker left.”39 DACA recipients are currently eligible to receive work authorization, and many are currently working or pursuing higher educational opportunities. Revocation of their work authorization will leave them more vulnerable to exploitation and even violent crime.
This same lawlessness plaguing undocumented communities extends well beyond the workplace. Nearly two-thirds of undocumented migrant workers participating in a Memphis study reported being the victim of at least one crime, most commonly theft or robbery.40 Respondents indicated that fewer than a quarter of these crimes were reported to the police, and only one was reported by the victim himself.41
As this study suggests, robbery and similar crimes pose a particular threat to undocumented individuals, who typically do not have bank accounts, in part because of their inability to obtain government-issued identification.42 Moreover, many of these immigrants live in group apartments and are unable to store valuables in a safe place at home.43 As a result, undocumented immigrants are known to carry large amounts of cash, making robbing them an especially lucrative proposition. The risk to the perpetrators, meanwhile, is minimal because the victims are too afraid to report the crime to the police.
39 Id. at 7 (internal quotation marks omitted). 40 Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 (2010). 41 Id. at 165. 42 Fussell, supra note 34, at 604; S. Poverty Law Ctr., supra note 36, at 6, 25. 43 Khashu, supra note 3, at 25; see also Bucher, Manasse & Tarasawa, supra note 40, at 164, 16768 (finding that a large majority of surveyed undocumented migrants workers lived with at least three others and identifying a strong relationship between number of cohabitants and crime).
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The targeting of undocumented immigrants for robbery has become so widespread that these individuals have been labeled “walking ATMs”—or the subjects of “amigo shopping.”44 In
a study of largely undocumented immigrants helping to rebuild New Orleans in the wake of
Hurricane Katrina, the immigrants reported robbery and physical assault at more than ten times the rate experienced by the general population.45 In another survey, 53 percent of law enforcement
officers held the view that undocumented immigrants were especially likely to be victims of robbery and theft.46
There is also evidence that undocumented immigrants are especially vulnerable to domestic
violence. Studies have shown that abusive partners may utilize the threat of deportation in order to maintain power and control over their victims.47 When the abusing partner has lawful status, financial dependence on that partner may similarly allow for the perpetuation of violence.48
Seventy percent of participants in one study of domestic abuse victims said that
immigration status was a major impediment to their seeking help or reporting their abuse to the authorities and thereby permitting the violence to continue.49 In another study, the single largest
44 See Fussell, supra note 34, at 604-05; S. Poverty Law Ctr., supra note 36, at 25; Khashu, supra note 3, at 25. 45 See Fussell, supra note 34, at 604. 46 Id. 47 See, e.g., Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 330 (2015) (citing several studies); Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, ‘‘He Said They’d Deport Me’’: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 601 (2013). The latter study cited a participant who explained that a partner “beat me up and I could have called the police because that was what I thought to do . . . but he threatened me . . . he told me that if I called the police I was going to lose out . . . because they [police officers] . . . would . . . take me, because I didn’t have legal documents.” Id. 48 See, e.g., Messing, supra note 47, at 330. 49 Reina, Lohman & Maldonado, supra note 47, at 600.
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factor independently affecting the rate at which battered immigrant Latina women called the police

was identified as immigration status.50

In short, should DACA recipients lose their work authorizations and once again fear

removal from the United States, their lack of status will embolden exploitative employers and

criminals alike and thus diminish the safety of entire communities. By permitting these young

individuals to live and work openly, DACA eliminates a significant barrier to an open and trusting

relationship with law enforcement. Continuing DACA will enable police to better fight crime and

serve all those whom they are charged with protecting.

CONCLUSION

For the foregoing reasons, as well as the reasons set forth in Plaintiffs’ Motion, this Court

should grant the relief sought by the Plaintiffs.

December 22, 2017

Respectfully Submitted,

/s/ Caryn C. Lederer

Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100 Counsel for Amici Curiae

Joshua A. Geltzer (D.C. Bar No. 1018768) Institute for Constitutional Advocacy and Protection Georgetown University Law Center 600 New Jersey Avenue NW Washington, D.C. 20001 Phone: (202) 662-9042 Email: jg1861@georgetown.edu

50 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005).
14

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Exhibit A
15

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EXHIBIT A: LIST OF AMICI* • The National Organization of Black Law Enforcement Executives (NOBLE),
serves as the conscience of law enforcement by being committed to Justice by Action, with nearly 60 chapters and representing over 3,000 members worldwide, including chief executive officers and command level law enforcement officials from federal, state, county, and municipal law enforcement agencies, and other criminal justice practitioners; • Chief Art Acevedo, Houston, Texas, Police Department • Deputy Chief Carmen Best, Seattle, Washington, Police Department • Chief Richard Biehl, Dayton, Ohio, Police Department • Chief Chris Burbank, Salt Lake City, Utah, Police Department (retired) • Sheriff Jerry Clayton, Washtenaw County, Michigan, Sheriff’s Office • Ronald Davis, Former Director, United States Department of Justice, Office of Community Oriented Policing Services (COPS Office); Chief (Ret.), East Palo Alto, California, Police Department • Commissioner William Evans, Boston, Massachusetts, Police Department • Chief Kenneth Ferguson, Framingham, Massachusetts, Police Department • Asst. Chief Randy Gaber, Madison, Wisconsin, Police Department • Sheriff Edward Gonzalez, Harris County, Texas, Sheriff’s Office • Chief Ronald Haddad, Dearborn, Michigan, Police Department • Sheriff Mike Haley, Washoe County, Nevada, Sheriff’s Office (retired) • Chief Chris Magnus, Tucson, Arizona, Police Department • Sheriff Bill McCarthy, Polk County, Iowa, Sheriff’s Office • Lieutenant Andy Norris, Tuscaloosa County, Alabama, Sheriff’s Office • Sheriff Joe Pelle, Boulder County, Colorado, Sheriff’s Office
* Affiliations of individual amici are provided for identification purposes only.
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Case 1:17-cv-05228-NGG-JO Document 155 Filed 12/22/17 Page 22 of 22 PageID #: 6620 • Director Mark Prosser, Storm Lake, Iowa, Department of Public Safety • Commissioner Charles Ramsey, Philadelphia, Pennsylvania Police Department (retired) • Chief Celestino Rivera, Lorain, Ohio, Police Department • Chief Michael Tupper, Marshalltown, Iowa, Police Department • Sheriff John Urquhart King County, Washington, Sheriff’s Office • Sheriff Lupe Valdez, Dallas County, Texas, Sheriff’s Department • Chief Roberto Villasenor, Tucson, Arizona, Police Department (retired) • Sheriff Richard Wiles, El Paso County, Texas, Sheriff’s Office • Chief Jeri Williams, Phoenix, Arizona, Police Department
17

 
 Case 1:17-cv-05228-NGG-JO Document 158 Filed 12/22/17 Page 1 of 24 PageID #: 6627

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al., Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Case No. 1:17-cv-5228-NGG-JO

BRIEF OF SERVICE EMPLOYEES INTERNATIONAL UNION, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,
COMMUNICATIONS WORKERS OF AMERICA, UNITED FARM WORKERS OF AMERICA, AND INTERNATIONAL UNION OF PAINTERS
AND ALLIED TRADES AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Nicole G. Berner Deborah L. Smith Leo Gertner SERVICE EMPLOYEES INTERNATIONAL UNION 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 730-7466 nicole.berner@seiu.org debbie.smith@seiu.org leo.gertner@seiu.org
Attorneys for Amicus Curiae SEIU
Judith Rivlin AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES 1101 17th Street, N.W., Suite 900 Washington, D.C. 20036 (202) 775-5900 jrivlin@afscme.org
Attorney for Amicus Curiae AFSCME

Deepak Gupta GUPTA WESSLER PLLC 1900 L Street, N.W., Suite 312 Washington, D.C. 20036 (202) 888-1741 (202) 888-7792 (fax) deepak@guptawessler.com
Counsel for Amici Curiae
Jody Calemine COMMUNICATIONS WORKERS OF AMERICA 501 3rd Street, N.W. Washington, D.C. 20001 (202) 434-1234 jcalemine@cwa-union.org
Attorney for Amicus Curiae CWA

December 22, 2017

(Additional counsel listed on inside cover)

Case 1:17-cv-05228-NGG-JO Document 158 Filed 12/22/17 Page 2 of 24 PageID #: 6628
Mario Martínez MARTÍNEZ AGUILASOCHO & LYNCH, APLC 1527 19th Street, Suite 332 Bakersfield, CA 93301 (661) 859-1174 mmartinez@farmworkerlaw.com Attorney for Amicus Curiae UFW
Joseph E. Kolick, Jr. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO 7234 Parkway Drive Hanover, MD 21076 Attorney for Amicus Curiae IUPAT

Case 1:17-cv-05228-NGG-JO Document 158 Filed 12/22/17 Page 3 of 24 PageID #: 6629
TABLE OF CONTENTS Table of citations............................................................................................................................. ii Interests of amici curiae...................................................................................................................... 1 Introduction and summary of argument ........................................................................................ 3 Argument ........................................................................................................................................ 4
I. Rescinding DACA will adversely impact employers and the U.S. economy. ................ 4 II. Terminating the DACA program inflicts irreparable harm on DACA
recipients and their families, including American-citizen children. ............................... 5 III. Union members and their family members have become vital parts of
American society as a direct result of the opportunities provided to them by the DACA program................................................................................................... 7 T.W.: From NFL athlete to Harvard orthopedic surgeon. .......................................................... 8 P.V.: A dedicated public servant prosecuting crime for Travis County, Texas. ............................... 9 K.R.: A sister-turned-guardian putting food on the table. ........................................................ 10 E.M.: The father supporting his family and planning for college. .............................................. 11 O.S.: 21 and “able to do normal things” like attend college. .................................................... 13 F.G.: Living without fear of being deported from his American wife. .......................................... 14 M.R.: Homecare worker for the elderly by day, tutor to his American siblings by night. ................ 15 C.F.: Living the American dream until 17, regaining it through DACA. .................................... 16 V.S.: A+ student, psychology graduate, and caretaker of her American siblings............................ 17 Conclusion .................................................................................................................................... 19
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TABLE OF CITATIONS
Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic, Oct. 21, 2017, https://perma.cc/XD7H-282Q. ....................................................................... 2
Catalina Amuedo-Durantes & Francisca Antman, Can authorization reduce poverty among undocumented immigrants? Evidence from the Deferred Action for Childhood Arrivals program, Elsevier, 147 Econ. Lett. 1 (2016). ................................................. 4
Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute (Jan. 18, 2017), https://perma.cc/ZH57-8D98. ............................................................................................. 2, 4
Roberto G. Gonzales, et al., Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA), 58 Am. Behav. Sci. 1852 (2014).................................................................................... 5
Edward Graham, Trump’s DACA Move Comes as Most Voters Back Citizenship for ‘Dreamers’, Morning Consult (Sept. 5, 2017), https://perma.cc/6BX9-J6K5. ......................................................................... 4
Jens Manuel Krogstad, DACA has shielded nearly 790,000 young unauthorized immigrants from deportation, Pew Research Center (Sept. 1, 2017), https://perma.cc/A5NW-HKYD. ....................................................... 6
Jens Manuel Krogstad, Jeffrey S. Passel & D’vera Cohn, 5 facts about illegal immigration in the U.S., Pew Research Center (Apr. 27, 2017), https://perma.cc/FYM8-GAEA................................................................................................ 4
Jose Magaña-Salgado, Money on the Table: The Economic Cost of Ending DACA, Immigrant Legal Resource Center (Dec. 2016), https://perma.cc/S4NY-V33Z. ............................................................................ 2
Milenko Martinovich, Rescinding DACA protections on immigrant mothers could have negative health impacts on their children, Stanford study finds, Stanford News (Sept. 7, 2017), https://perma.cc/ZMT5-K2MB. ............... 7
Center for American Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program Repeal on Jobs, FWD.us (Aug. 23, 2017), https://perma.cc/3X8Q-ZJSM. ................................................... 3, 4
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INTERESTS OF AMICI CURIAE Amici curiae are the Service Employees International Union, American Federation of State, County and Municipal Employees, the Communications Workers of America, United Farm Workers of America, and the International Union of Painters and Allied Trades. Service Employees International Union (SEIU) is a labor organization of approximately two million working men and women in the United States and Canada. SEIU’s members include foreign-born U.S. citizens, lawful permanent residents, and undocumented immigrants authorized to work in the United States. Many of SEIU’s members have mixedstatus families. As described below, SEIU members will be directly affected by the termination of DACA. American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME), is a union of 1.6 million members in the United States and Puerto Rico, both in the public and private sectors, who share a commitment to service. AFSCME is participating in this case to advance its mission of helping all working people, including immigrants and people of color, achieve the American dream regardless of their identity. AFSCME is proud to represent members who came to the United States as children and who are contributing to our communities, states and country. The public servants of AFSCME, and indeed all Americans, deserve better. The Communications Workers of America, AFL-CIO (CWA), is an international labor union representing more than 700,000 workers in the telecommunications, media, manufacturing, airlines, and health care industries and in a wide variety of public sector positions in the United States, Canada, and Puerto Rico. CWA represents and advocates on behalf of workers with respect to workplace rights and broader political and civil rights. As part of this mission, CWA has supported fair, humane, comprehensive immigration reform, as programs like
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Deferred Action for Childhood Arrival affect CWA members’ communities and the lives and welfare of fellow workers.
United Farm Workers of America (UFW) represents thousands of migrant and seasonal farmworkers in various agricultural occupations throughout the country and has members of diverse racial, ethnic, and immigration backgrounds throughout the United States. UFW seeks to improve the lives, wages, and working conditions of agricultural workers and their families through collective bargaining, worker education, state and federal legislation, and through public campaigns. UFW’s members include foreign-born U.S. citizens, lawful permanent residents, immigrants authorized to work in the United States, and undocumented immigrants. Many of UFW’s members have mixed-status families, and many farmworkers have children who qualify and would qualify as DREAMers under DACA. As described below, UFW’s members will be directly affected by the termination of DACA.
The International Union of Painters and Allied Trades (IUPAT) is a labor organization comprised of approximately 140,000 members. Our members work as commercial and industrial painters, glaziers, drywall finishers, floor coverers, trade show workers and in many other occupations. IUPAT welcomes any person who does the work we do. Our members are of many races, practice many religions, were born in many countries, speak many languages and have different political views. They include beneficiaries of DACA and citizens or lawful permanent residents whose family members benefit from DACA. They, and many other members, will be directly affected by the termination of DACA.
2

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INTRODUCTION AND SUMMARY OF ARGUMENT Through the Deferred Action for Childhood Arrivals program, law-abiding undocumented young people in the United States have been able to achieve a longstanding dream: to become productive members of the society in which they were raised. In just five years, DACA recipients have made invaluable contributions to the American labor force as doctors, lawyers, community health workers, janitors, homecare providers, and more. They are the working parents and siblings of 200,000 adolescent American citizens,1 providing what is often their family’s sole source of income. The question before this Court is whether the defendants’ abrupt termination of this program violates the U.S. Constitution and federal statutes. Amici submit this brief to demonstrate how rescinding DACA jeopardizes its employed recipients, their families, and the country in general, while doing little to address the need to reform our broken immigration system. It is conservatively estimated that DACA recipients would increase the gross domestic product by $215 billion and tax revenues by $60 billion over the next decade.2 Terminating DACA eliminates these gains. It also denies the recipients the security and confidence in knowing that they will return home safely to their families every day— a fear only amplified now that the government has gained their sensitive information through the program—and severely limits their educational and employment opportunities. Multiple studies establish the obvious and acute negative consequences of living in such uncertain conditions and how DACA has already provided observable relief from those consequences. The experiences of individual union members shared below illustrate that research, demonstrating the real human
1 Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic, Oct. 21, 2017, https://perma.cc/XD7H-282Q.
2 Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute (Jan. 18, 2017), https://perma.cc/ZH57-8D98.
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toll that rescinding DACA will have on undocumented young adults, their families, their communities, their workplaces, and the nation.
ARGUMENT I. Rescinding DACA will adversely impact employers and the U.S. economy.
Rescinding DACA subjects 800,000 young people to deportation while reducing local, state, and federal revenues and forcing employers to expend significant resources to hire and train new employees.
The most immediate costs are those imposed on the American workplace. One study estimates that for “every business day DACA renewals are halted, over 1,400 jobs [will be] lost” in the next two years.3 This places a substantial burden on employers and employees, considering how even a short-term loss of DACA work authorization can seriously hinder a workplace. Take, for example, the story of Dr. T.W. in Part III of this brief. As explained in greater detail below, Dr. T.W. is a retired NFL athlete and fifth-year medical resident in Harvard’s orthopedic surgery department. During his intern year, he was forced to abruptly stop working for a period of six weeks while waiting for the extension of his DACA authorization. This created a critical void that threw his surgery team into disarray because his role could not be temporarily filled. In this way, rescinding DACA will cause employers to grapple with the loss of staff in which they have invested while also forcing them to absorb unnecessary turnover expenses—a cost that is projected to total $3.4 billion for the wholesale replacement of employed DACA recipients.4
Terminating DACA will also mean that $24.6 billion worth of Medicare and Social Security contributions will be lost over the next ten years, as well as most of the federal and tax
3 Center for American Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program Repeal on Jobs, FWD.us, 4 (Aug. 23, 2017), https://perma.cc/3X8Q-ZJSM.
4 Jose Magaña-Salgado, Money on the Table: The Economic Cost of Ending DACA, Immigrant Legal Resource Center (Dec. 2016), https://perma.cc/S4NY-V33Z.
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revenues generated from the 91% gainfully employed DACA recipients.5 These effects will be particularly burdensome for the six states that are home to 59% of the U.S. undocumented immigrant population: California, Texas, Florida, New York, New Jersey, and Illinois.6 By contrast, DACA implementation has entailed almost no direct cost to taxpayers because the program’s overhead is covered by the $495 fee paid by the applicants.
In addition, the federal government’s threat to deport DACA beneficiaries would lead to a staggering result: a burden of $7.5 billion7 on taxpayers. The public-opinion evidence suggests that the American people may at some level understand this stark cost-benefit calculus: 84% of Democrats, 74% of Independents, and 69% of Republicans think that DACA recipients should be able to stay in the country in some way, whether through citizenship or other means.8 Costly, ineffective, and unpopular, the deportation of these American-raised young adults would not repair our broken immigration system in any real way. II. Terminating the DACA program inflicts irreparable harm on DACA
recipients and their families, including American-citizen children. Undocumented immigrants face a mountain of hardships. They suffer poverty rates nearly twice that of American citizens and have a harder time escaping those conditions because of their status.9 Employment opportunities are generally limited to low-wage jobs, but even that can be difficult to access without a driver’s license. Most undocumented immigrants also lack a bank account and carry cash, since “financial institutions often request U.S. identification and a
5 Id. 6 Jens Manuel Krogstad, Jeffrey S. Passel & D’vera Cohn, 5 facts about illegal immigration in the U.S., Pew Research Center (Apr. 27, 2017), https://perma.cc/FYM8-GAEA. 7 Brannon & Albright, The Economic and Fiscal Impact of Repealing DACA. 8 Edward Graham, Trump’s DACA Move Comes as Most Voters Back Citizenship for ‘Dreamers’, Morning Consult (Sept. 5, 2017), https://perma.cc/6BX9-J6K5. 9 Catalina Amuedo-Durantes & Francisca Antman, Can authorization reduce poverty among undocumented immigrants? Evidence from the Deferred Action for Childhood Arrivals program, Elsevier, 147 Econ. Lett. 1, 1 (2016).
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Social Security number,” making them targets for robbery.10 Undocumented youth encounter additional hurdles in their education because of their ineligibility for federal and state financial aid, paid internships, and study opportunities that require identification. Added to all these stressors is the constant fear of being deported that wreaks havoc on mental health, causing many undocumented immigrants to suffer from anxiety, depression, and suicidal thoughts.
What makes DACA so significant is that, in just five years, it has led to improved socioeconomic and health outcomes—including for American-citizen children. Researchers have found that the odds of life in poverty in households headed by DACA recipients fell by 38 percent.11 The stories of K.R. and M.R., presented in Part III below, confirm this research. K.R. is a 30-year-old community-health worker who is the sole caretaker of her three American-citizen siblings. Because of DACA, she is able to pay rent for her family, attend parent-teacher conferences for her younger siblings, and support her brother’s university tuition. M.R. also has three U.S.-citizen siblings. DACA helped him obtain a driver’s license and secure employment as a homecare worker so that he can help his parents financially support their family and also pick up his siblings from school. DACA has produced these kinds of tangible gains for the majority of its recipients. According to one survey, the program has led to new employment for 59 percent of beneficiaries, 45% of whom also experienced salary growth.12 55% of recipients were also able to purchase a vehicle while more than 10% purchased their first home.13
Looking at improved health outcomes, a study from Stanford University found that since 2012, the diagnoses of adjustment and anxiety disorders for the American children of DACA-
10 Roberto G. Gonzales, et al., Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for Childhood Arrivals (DACA), 58 Am. Behav. Sci. 1852, 1855 (2014).
11 Amuedo-Durantes & Antman, Can authorization reduce poverty, at 1. 12 Gonzales et al., Becoming DACAmented, at 1863. 13 Center for American Progress & FWD.us, Study: The Impact of DACA Program Repeal on Jobs, at 5.
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eligible parents fell by an astounding 50 percent.14 Such “immediate and sizable improvements in the mental health of their US citizen children . . . suggests that parents’ unauthorized status is a substantial stressor that stymies normal child development and . . . transfer[s] parental [health] disadvantages to children.”15 These improvements are likely only preliminary, due to DACA’s short existence, and can reasonably be expected to create more observable gains in the long term if the program continues. As Stanford researcher Jens Hainmueller noted, “It’s not every day that public policy has such an immediate effect.”16
But nothing more clearly illustrates the value of DACA to its recipients than the fact that 78% of the law-abiding, American-raised young people eligible for the program have applied17— in spite of its hefty $495 fee and two-year limit. Ending DACA threatens all these advances, the improvements to come, and the hopes of young people like the union members and affiliates described below. III. Union members and their family members have become vital parts of
American society as a direct result of the opportunities provided to them by the DACA program. Millions of employees nationwide are united in the amici unions, and many union members and their families will be harmed by a repeal of DACA. The experiences of individual union members and their family members confirm and illustrate the social science data cited above.18
14 Jens Hainmueller et al., Protecting unauthorized immigrant mothers improves their children’s mental health, 357 Science 1041, 1043 (2017).
15 Id. 16 Milenko Martinovich, Rescinding DACA protections on immigrant mothers could have negative health impacts on their children, Stanford study finds, Stanford News (Sept. 7, 2017), https://perma.cc/ZMT5-K2MB. 17 Jens Manuel Krogstad, DACA has shielded nearly 790,000 young unauthorized immigrants from deportation, Pew Research Center (Sept. 1, 2017), https://perma.cc/A5NW-HKYD. 18 The individuals whose stories are told here all consented to having their experiences recounted in this brief. Participants chose to maintain a measure of anonymity by using initials only.
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T.W.: From NFL athlete to Harvard orthopedic surgeon. Dr. T.W. is a fifth-year medical resident in Harvard’s program in orthopedic surgery, a
former National Football League (NFL) athlete, and a beneficiary of DACA status for about four years. His wife, a U.S. citizen, is an alumni member of SEIU’s Committee of Interns and Residents (CIR).
Born in Nigeria, Dr. T.W. came to the United States at age three with his family. The family fled political unrest in Nigeria and settled in California. Dr. T.W’s only memories are of life in the United States, and he grew up believing that with hard work and commitment, he could do anything. “I saw only the American Dream and truly believed if I put forth effort and determination, there was nothing I could not do.” A brilliant student and a track, wrestling and football star in high school and at Stanford University, he graduated and spent several years playing football on NFL teams.
Throughout his childhood and early adult years, Dr. T.W. believed he was American. It was only when he needed his passport to travel to Canada for a position with the Canadian Football League that he learned that he was not a U.S. citizen. “In some ways, the fact that I didn’t know my true immigration status freed me from the stress and obstacles imposed by undocumented status and allowed me to imagine limitless possibilities in my life.”
As Dr. T.W.’s football career ended, he turned to his other passion: medicine. He excelled in his studies at Northwestern University Feinberg School of Medicine, but recognized that his undocumented status would prevent his acceptance to a medical residency program in the United States. “DACA saved me, it rescued me, and allowed me to pursue my medical residency at the Harvard Combined Orthopaedic Residency Program at Massachusetts General Hospital. Thank God for DACA.”
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A six-week lapse of his DACA status served as a reminder to Dr. T.W. of the critical importance of DACA to his medical career. Dr. T.W. had to stop working for 6 weeks during his intern year while he waited for the extension of his DACA work authorization card. “The orthopedic surgery intern functions as a crucial member of a team, and when I wasn’t able to work, I let my team down, my program could not fill the void, and I was sleepless with anxiety. All of a sudden it didn’t matter that I was a doctor. Without DACA I was thrust back into the status of an unwelcome, alien intruder.”
Dr. T.W. will continue his training in orthopedic surgery, joining a fellowship program next year, and working in an orthopedic surgery practice. He intends to continue serving the community and treating muscular injuries, broken bones and a wide range of conditions.
In June of 2017, Dr. T.W’s application for legal residency was approved. Although he no longer relies on DACA, he values the program that was vital to his medical career and his life. P.V.: A dedicated public servant prosecuting crime for Travis County, Texas.
P.V. is an Assistant County Attorney for Travis County, Texas, where Austin is located. As a dedicated public servant and an AFSCME Local 1624 member, he spends his workdays as a criminal prosecutor protecting public safety by handling all sorts of criminal cases from running red lights to DUI’s.
P.V. came to the United States with his family from Mexico when he was three years old. He and his family settled in the Houston area, but his living situation was difficult when he first arrived. His father found work as a bartender and his mother as a massage therapist, and the family lived with various aunts and uncles while they got their footing.
P.V. knew from a young age that he wanted to create a path to success in the United States and he studied hard to make that dream a reality. He graduated from high school in 2010 and went on to study sport management at the University of Texas, where he graduated with
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high honors. At first, P.V. thought he wanted to pursue a career as a sports agent, “like Jerry Maguire”, he said, but then decided he enjoyed public service and instead went to law school at University of Texas. He graduated from law school in 2016 and soon after passed the Texas bar.
P.V. is a DACA recipient and that status is what allows him to be a dedicated public servant and prosecuting attorney today. Without DACA, he would not be eligible to do the work he does every day for Travis County. P.V. is the first member of his family to go to college and graduate school; the first member of his family to work as a professional. Without DACA, he would be “unemployable” in most workplaces, and forced to work in the underground economy instead. However, because of DACA, P.V. can do the job he loves, and contribute to the economy by supporting himself, paying taxes, making contributions to the county retirement plan.
He also knows that without DACA his community would suffer dire consequences. As a prosecutor, P.V.’s experience has taught him that without legal status, many immigrants refuse to report crimes or avoid testifying when they are victims of assaults and other crimes for fear of deportation enforcement. As an immigrant himself, he knows that many immigrant families’ conduit to law enforcement and the community at large is through their DACA recipient children who serve as their “ambassadors”.
P.V. wants to continue to be a “positive agent of change in the criminal justice system”, but he knows he cannot do so without DACA. The ability to achieve documented status through DACA is what gave him the confidence to go to law school in the first place, and make his family and community so proud. K.R.: A sister-turned-guardian putting food on the table.
K.R. is a 30 year-old SEIU 521 member and shop steward who was brought to the United States from Mexico when she was five years old. During her 25 years of residence in
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California, she has attended school and college, worked in a community health center, and cared for her three U.S. citizen siblings.
DACA changed K.R.’s life. She was granted DACA status in 2013, and it came at a crucial time in her life. K.R’s father had just passed away leaving her responsible for her three younger siblings. Since K.R.’s mother had left the family many years earlier, K.R. assumed sole responsibility for her siblings upon her father’s death.
“All of my siblings were in high school or middle school at the time of my father’s passing. I had to pay the rent and make certain there was food on the table. I had to attend parentteacher conferences and make sure my teenage brothers were staying school and being good kids. Having DACA made my life better in so many ways. It meant that I could get a job to pay for my siblings’ needs. It also allowed me to have a job that paid for my brother’s tuition at Sacramento State University. I’m so grateful to have DACA.”
K.R.’s career goal was to become a lawyer and she attended college for two years, majoring in criminal justice. Unable to afford tuition, she now works as a patient appointment coordinator at a community health clinic. She assists low-income patients and helps them manage the appointments they need for complex heart, diabetes and other health conditions. Some of the patients K.R. works with have never seen a doctor before, and K.R. helps them arrange services including medical and dental referrals and taxi vouchers. “I’m a good listener and I reassure patients so they will feel safe.”
K.R. is committed to working for the benefit of others. “It’s important to me to care for others and make sure that we all work together.” E.M.: The father supporting his family and planning for college.
E.M. is a 31-year-old member of SEIU 32BJ who has lived in Washington, D.C. since he came to the United States from Mexico in 1999. He is a husband, a father of two U.S. citizen
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children, aged seven and four, an active member of his community, and a DACA beneficiary. E.M has been in DACA status for about four years.
E.M. attended Francis Junior High School and graduated from Roosevelt Senior High School in Washington, D.C. He wanted to go to college but without immigration status, it didn’t seem possible.
A grant of DACA gave him hope. With DACA he has been able to “step out of the shadows,” participate in the community, and not be afraid of arrest and deportation. “I can’t stand the thought of being deported and leaving my kids alone.”
DACA also inspired E.M. to consider once again taking college courses so that he could move into a better job and then afford better housing. “I want to be able to afford a house so that my kids can play in our own backyard.” E.M’s kids are the world to him. “I want my kids to grow up to be someone—I want them to go to college, have a good future and be better than I am. My seven-year-old son says he wants to be a doctor and he wants to buy me a big house. My kids are my motivation, they are my anchor, and they keep me fighting for a better future.”
The growth of gangs and cartels has increased dramatically since E.M. left his hometown of Puebla, Mexico in 1999. E.M.’s sister, his only close family member still in Mexico, warned him “don’t you ever come back here, it’s too dangerous.”
After 18 years of living in the U.S. and contributing to his community through his work and union activities, E.M. believes that everything valuable to his life is in the U.S. “I’m not here to hurt anyone—I’m here to work hard and make a better life for me and my family—I don’t want to go back to living in the shadows.”
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O.S.: 21 and “able to do normal things” like attend college. O.S. is a 21-year old citizen of Colombia, the nephew of a SEIU 1199 member, and a
former DACA beneficiary who is now a legal resident of the United States. He resides in Queens, New York with his U.S. citizen wife, his brother, mother and grandmother.
O.S. has lived in New York City since he arrived in the United States with his family at age 8, more than 13 years ago. He always knew that he was undocumented, and as soon as the DACA program was created, O.S. applied and was granted DACA status. “Having DACA meant that I was able to do normal things that other people my age were doing. I was a sophomore in high school and with DACA, I qualified to get my first job through the city Summer Youth Employment Program. DACA allowed me to feel more confident and more comfortable. I didn’t feel ashamed and alien.”
In 2015, after O.S. graduated from high school in Queens, he enrolled in a bachelor’s degree program at a campus of the City College of New York. In addition to his studies, O.S. works part-time at a New York City museum and part-time at a pharmacy. He hopes to complete his bachelor’s degree in 2 years and work in his field.
O.S. renewed DACA twice and remained in DACA status until he obtained legal residency last year through his marriage to a U.S. citizen. O.S.’s wife works with him at the museum and also attends a campus of the City College of New York.
“Although I have a green card now, I’ll never forget how much it meant to me to receive DACA. It came at just the right time in my life and helped put me on the path to college and a better future.”
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F.G.: Living without fear of being deported from his American wife. F.G., a citizen of Mexico who came to the United States 22 years ago at age four,
received DACA status in 2014. He is a member of SEIU 32BJ and resides in New York City with his U.S. citizen wife.
DACA allowed F.G. to live, work, and participate in civic life without worrying that he would be deported. Fear of deportation shaped F.G’s life for two decades. F.G. learned that he was undocumented when he was in high school and did everything he could to keep his undocumented status hidden. “It’s hard to describe the level of fear that affects immigrant communities. My own loving parents were so frightened that they might be deported leaving my brother alone, that they gave up their parental rights in order to allow my U.S. citizen aunt to adopt us. That is level of fear I lived with until 2014 when I was granted DACA status. With DACA I could breathe freely for the first time.”
F.G. spent his childhood and teenage years in Fayetteville, a small college town in northwest Arkansas. He attended Catholic school and excelled at literature, art and football. He worked on the art magazine in high school and acted as a stage manager for high school productions. “Despite my fear of deportation, I was resolved to continue my education. After I graduated from high school in 2010, I attended the University of Arkansas for several years with the goal of becoming an architect. But without work authorization, I felt that I could never get a good job. I left the University discouraged and without a degree.”
F.G. met his wife at the University of Arkansas and lived in Fayetteville until his wife graduated from the University. “We moved to Atlanta for a short time while my wife worked for CNN, and then to New York City where my wife found a job working as a photo editor for a national magazine. By the time we moved to New York, I had DACA and was able to get a good job.”
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F.G. applied for legal residency in the United States and anticipates the final processing of his application in the near future. “I won’t need DACA after I receive my green card. Now my wife and I are making plans to open a business, and for my return to college. We are able to take advantage of the benefits of living in New York and often go to New York’s museums. We’re also expecting our first child in December 2017. But I’ll always be grateful to DACA for giving me a sense of confidence, allowing me to work, and giving me the belief that I could live my life fully without the trauma of possible deportation. After receiving DACA I felt that I could finally relax.” M.R.: Homecare worker for the elderly by day, tutor to his American siblings by night.
M.R. is a 22-year-old member of SEIU 2015 who came to the United States from El Salvador at age eight. He lives in San Jose, California with his family, including his three U.S.citizen siblings, aged seventeen, eleven and seven.
M.R. was granted DACA status in 2013. “With DACA I was able to work at a job that allowed me to make a difference in the life of a very ill, elderly patient. I’m a homecare worker and I care for an elderly man who is blind, diabetic, has kidney failure, a pacemaker, and is on dialysis. DACA made this meaningful job possible for me.”
M.R. attended school in California, graduating high school from Gunderson High School in 2014. During his high school years, received an honor roll award and played soccer on the varsity team. Active in school clubs and sports, he participated in the multicultural club, the boxing club, and volleyball.
“My parents raised me with the idea that I should make something of myself and contribute to the community. After graduation, I studied at DeAnza College for several quarters, but when my dad was laid off from his job, I knew I had to find full-time work.”
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M.R. is a conscientious and responsible member of his family, his workplace and his community. He picks up his siblings from school, helps them with their homework, and does chores around his house. He attends church regularly and is involved in a in leadership development program with his millennial co-workers. “I believe that I am responsible for more than myself alone. I think that in a democratic society we must care for the needs of our neighbors, friends and coworkers—not just ourselves and our families. These are the values that I learned from my parents—you have to hard for work for what you want, but you must respect others and treat them the way that you want to be treated.”
As a child in El Salvador, M.R. faced danger and uncertainty. His earliest memories are of warnings to avoid the gang members who moved freely through his neighborhood. M.R.’s family rushed him out of the country before the gangs could recruit him. “The gangs search for young boys to become members at an early age. I was lucky to escape before I was forcibly recruited. DACA has allowed me to live in safety and security in the U.S.” C.F.: Living the American dream until 17, regaining it through DACA.
C.F. is a member of SEIU 32BJ who was brought to the United States from Mexico 22years ago when he was a one-year-old child. He works as a custodian and lives in Baltimore with his parents and his three U.S.-citizen brothers, aged 20, 18, and 13.
C.F. attended school in Baltimore, completing his studies and graduating from Lansdowne High School. His favorite subject was math and he participated in the chess team in high school. At age 17, C.F. learned for the first time that he was undocumented when he sought to apply for a Social Security card.
“I felt like I was as American as anyone else and finding out that I was undocumented was terrible for me. It changed my outlook and undermined my confidence.” C.S. felt that he didn’t belong, that he was different, even in his own family. “I’m really close to my three U.S.
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citizen brothers. But finding out about my immigration situation made me feel like an outsider, different and alone.”
C.F. also worried that he couldn’t invest in his future, because as a person without documents, his future was uncertain. He feared he could be deported without warning. “My hopes for living the American dream—going to college, studying marketing, buying a home some day—the belief that I could succeed and a build a good life suddenly seemed impossible.”
But shortly after C.F. graduated high school, he heard about and applied for the DACA program. “DACA gave me permission to work, and with that permission I was able to get a steady job and join the union. DACA gave me a chance and the hope for a better future.” With DACA, C.F.’s self-assurance returned and he began participating in activities to help his community and in activities supporting his co-workers. “There are many people like me who just want a chance to work hard and be part of the American dream. DACA gave me that chance.” V.S.: A+ student, psychology graduate, and caretaker of her American siblings.
V.S. was born in Mexico City and has resided in the United States since infancy. She is the 23-year-old daughter of a SEIU 1021 member. Educated entirely in the United States, from elementary school through the university, she was granted DACA status in 2012.
“DACA was a game changer for me. It gave me hope and allowed me to believe that I always could be a little more. That I could graduate from the University of California, Santa Cruz and be on the dean’s list, go to graduate school, and prepare for a career as an occupational therapist. When my parents were forced to depart the U.S. a few months ago and I became the head of my family, DACA kept my spirits up and helped me to trust that I would be able to support and care for my three younger U.S. citizen brother and sisters.”
V.S. grew up with faith in the power of education and the value of community service. In high school she maintained a 4.0 average, organized a schoolwide activities committee, worked
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on the yearbook and volunteered at her at a nursing home, running activities, music lessons, exercise sessions and movie events for the elderly and fragile seniors. During her years at U.C. Santa Cruz, she studied psychology at the same time that she worked as a research assistant in a child development lab, tutored over 40 students, and interned in a special program to advance and support diversity at the University. V.S. graduated in 2016 with a B.A. in psychology.
V.S. plans to enter a master’s program and pursue a career in occupational therapy. “My mother is a nurse and I watched her care for her patients with compassion and diligence. She inspired me to become an occupational therapist and help patients overcome trauma. But until my parents complete their immigration processing and are allowed to return to the U.S., I carry the responsibility for my 12-year-old brother and my two U.S. citizen sisters, ages 16 and 21, on my shoulders. I have to make sure everything goes smoothly.”
V.S. attends her brother and sister’s parent-teacher conferences and open house nights, oversees their homework, and makes sure they get to school on time. She takes her brother and sister to the doctor, does the family grocery shopping and cooking, and handles the financial issues for her siblings and her parents. “We’re a close-knit family, and I can sense if my brother and sisters are upset. I know they’re going through a lot and I want to be there for them. Our community, my mother’s union, and our church have been great to us.”
V.S.’s 21-year-old sister is a senior at U.C. Santa Cruz but she comes home on the weekends. “I’m really close to my sister and I want to support her and help her as she faces her last year of college. She’s a human bio major and plans to go to med school and be a pediatrician.”
“I’ve always felt that I was an American,” she says. “But DACA has made me feel like my dreams could come true and I could have a career that will allow me to give something back to my community and my country.”
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CONCLUSION

The plaintiffs’ request for declaratory and injunctive relief should be granted.

Respectfully submitted,

Nicole G. Berner Deborah L. Smith Leo Gertner SERVICE EMPLOYEES INTERNATIONAL UNION 1800 Massachusetts Avenue, N.W. Washington, D.C. 20036 (202) 730-7466 nicole.berner@seiu.org debbie.smith@seiu.org leo.gertner@seiu.org
Attorneys for Amicus Curiae SEIU
Jody Calemine COMMUNICATIONS WORKERS OF AMERICA 501 3rd Street, N.W. Washington, D.C. 20001 (202) 434-1234 jcalemine@cwa-union.org
Attorney for Amicus Curiae CWA
Joseph E. Kolick, Jr. INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO 7234 Parkway Drive Hanover, MD 21076
Attorney for Amicus Curiae IUPAT

/s/ Deepak Gupta Deepak Gupta GUPTA WESSLER PLLC 1900 L Street, N.W., Suite 312 Washington, D.C. 20036 (202) 888-1741 (202) 888-7792 (fax) deepak@guptawessler.com
Counsel for Amici Curiae
Judith Rivlin AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES 1101 17th Street, N.W., Suite 900 Washington, D.C. 20036 (202) 775-5900 jrivlin@afscme.org
Attorney for Amicus Curiae AFSCME
Mario Martínez MARTÍNEZ AGUILASOCHO & LYNCH, APLC 1527 19th Street, Suite 332 Bakersfield, CA 93301 (661) 859-1174 mmartinez@farmworkerlaw.com
Attorney for Amicus Curiae UFW

December 22, 2017

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CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, I electronically filed this amicus brief through this Court’s CM/ECF system. I understand that notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.
/s/ Deepak Gupta Deepak Gupta

 
 Case 1:17-cv-05228-NGG-JO Document 162 Filed 12/22/17 Page 1 of 25 PageID #: 6657

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
MARTÍN JONATHAN BATALLA VIDAL, et al.,

Plaintiffs,

v.
KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security, et al.,

No. 16-cv-4756 (NGG) (JO)

Defendants.

STATE OF NEW YORK, et al.,

Plaintiffs,

v.

No. 17-cv-5228 (NGG) (JO)

DONALD TRUMP, in his official capacity as President of the United States, et al.,

Defendants.

BRIEF OF LEGAL SERVICES ORGANIZATIONS AS AMICI CURIAE REGARDING HARM TO THEIR CLIENTS AND THE PUBLIC INTEREST IN
SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:17-cv-05228-NGG-JO Document 162 Filed 12/22/17 Page 2 of 25 PageID #: 6658

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE........................................................................................................ 1
SUMMARY OF ARGUMENT ........................................................................................................... 2
I. THE RESCISSION OF DACA CAUSES SIGNIFICANT HARM TO AMICI’S DACA CLIENTS, MOST OF WHOM HAVE NO VIABLE OPTION TO OBTAIN LEGAL IMMIGRATION STATUS AND AVOID DEPORTATION. .................................. 3
A. Most DACA Recipients Are Not Eligible for Humanitarian or Family-Based Forms of Immigration Relief ....................................................................................... 5
B. DACA Recipients Are Not Eligible for Relief Based on Their Length of Time in the U.S., No Matter How Well-Spent. ..................................................................... 8
C. Without DACA, Most DACA Recipients Will Become Undocumented and Suffer Significant Related Harms. ............................................................................... 9
II. THE RESCISSION OF DACA CAUSES FEAR IN THE COMMUNITY ABOUT ACCESSING PUBLIC SERVICES, WHICH HARMS THE PUBLIC INTEREST. .......... 12
A. DACA Recipients and Other Immigrants Are Afraid to Access Health and Other Social Services, and to Attend School, Out of Fear of Deportation. ............... 12
B. When Immigrants Are Afraid to Access Services, Public Health, Safety, and Community Economic Interests Are Negatively Impacted. ...................................... 17
CONCLUSION.................................................................................................................................. 19

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TABLE OF AUTHORITIES Page(s)
Cases Ayeni v. Holder,
617 F.3d 67 (1st Cir. 2010) ..............................................................................................................8 Gomez-Perez v. Holder,
569 F.3d 370 (8th Cir. 2009) .......................................................................................................8, 9 Hernandez v. Gonzalez,
437 F.3d 341 (3d Cir. 2006).........................................................................................................8, 9 Tejado v. Holder,
776 F.3d 965 (8th Cir. 2015) ...........................................................................................................8 Statutes and Regulations 8 U.S.C. § 1101(a)(42)...........................................................................................................................5 8 C.F.R. § 204.11 ...................................................................................................................................5 INA § 101 ..........................................................................................................................................5, 6 INA § 201 ..............................................................................................................................................5 INA § 203 ..............................................................................................................................................5 INA § 212 ..........................................................................................................................................6, 7 INA § 240A............................................................................................................................................8 INA § 241 ..............................................................................................................................................5 INA § 244(a) (1994) (repealed 1996) ....................................................................................................8 INA § 245 ..............................................................................................................................................6 Legislative Materials H.R. 1918, 107th Cong. (2001) ..............................................................................................................3 H.R. 5131, 109th Cong. (2006)..............................................................................................................3 H.R. 1275, 110th Cong. (2007)..............................................................................................................3 H.R. 1842, 112th Cong. (2011)..............................................................................................................3
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H.R. 1468, 115th Cong. (2017) .............................................................................................................3 H.R. 3591, 115th Cong. (2017)..............................................................................................................3 S. 1291, 107th Cong. (2001) ..................................................................................................................3 S. 1545, 108th Cong. (2003) ..................................................................................................................3 S. 2075, 109th Cong. (2005) ..................................................................................................................3 S. 2205, 110th Cong. (2007) ..................................................................................................................3 S. 729, 111th Cong. (2010) ....................................................................................................................3 S. 3992, 111th Cong. (2010) ..................................................................................................................3 S. 952, 112th Cong. (2011) ....................................................................................................................3 S. 1615, 115th Cong. (2017) ..................................................................................................................3 Report and analysis of immigration and nationality law, 2. Senate Judiciary
Subcommittee Holds Hearing on the DREAM Act, 88 No. 25 Interpreter Releases 1594 (July 4, 2011) ..........................................................................................................................3 Administrative & Executive Materials Letter from Secretary Jeh Johnson, U.S. Dep’t of Homeland Sec., to Honorable Judy Chu, U.S. House of Rep. (Dec. 30, 2016)......................................................................................10 Memorandum from Acting Secretary Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017) ........................................ passim Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) ................................................................................................................................................4 Supplemental Nutrition Assistance Program (SNAP), United States Department of Agriculture: Food and Nutrition Service (Jan. 30, 2017) .............................................................16 United States Citizenship and Immigration Services, DACA Frequently Asked Questions....................................................................................................................................7, 12 Visa Bulletin for October 2017, U.S. Dep’t of State, Bureau of Consular Affairs (Sept. 11, 2017)................................................................................................................................6 Women, Infants, and Children (WIC), United States Department of Agriculture: Food and Nutrition Service (Aug. 15, 2017) .................................................................................16
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Other Authorities
Annie Lowrey, Trump’s anti-immigrant policies are scaring families away from the safety net, The Atlantic (Mar. 24, 2017) ...........................................................................15, 16, 17
Anna North, DACA helped some immigrants finally get health care. Now they could lose it, Vox (Sept. 28, 2017) ....................................................................................................13, 17
Bill Ong Hing, Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy, 2 IRVINE L. REV. 247 (2012) .........................................18
Caitlin Dickerson, For DACA Recipients, Losing Protection and Work Permits Is Just the Start, The New York Times (Sept. 7, 2017) ..................................................................9, 10, 11
Carolyn Jones, Immigration crackdown taking heavy toll on California students, San Jose Mercury News (Oct. 5, 2017) ................................................................................................15
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 United Nations Treaty Series (Dec. 10, 1984) ...................................................5
Dara Lind, What happens to a family when they have equal rights, and then lose them? Vox (Dec. 14, 2017)............................................................................................................15
David Becerra, et al., Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S., 39 J. SOC. & SOC. WELFARE 111 (2012) .........................18
Debra J. Robbin, When Undocumented Immigrants Don’t Report Crime, We All Suffer, WBUR (Sept. 22, 2017) .....................................................................................................18
Deferred Action for Childhood Arrivals (DACA): Funding Opportunities for Philanthropy, Grantmakers Concerned with Immigrants and Refugees (Oct. 29, 2017) ................................................................................................................................................4
Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, The New York Times (Apr. 30, 2017) ..................................................................................................14
Jessica Ferger, Rescinding DACA Could Spur a Public Health Crisis, from Lost Services to Higher Rates of Depression, Substance Abuse, Newsweek (Sept. 6, 2017) ..............................................................................................................................................10
Jose Magaña-Salgado, et al., Draining the Trust Funds: Ending DACA and the Consequences to Social Security and Medicare, Immigrant Legal Resource Center (Oct. 2017) .....................................................................................................................................10
Julia Carrie Wong, Fear and uncertainty for Dreamers as DACA ends: “Where am I going to go?, The Guardian (Sept. 5, 2017) ..................................................................................11
Julianne Zuber, Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S., 28 J. CONTEMP. HEALTH L. & POLICY 350 (2012) ....................................................17, 18
iv.

Case 1:17-cv-05228-NGG-JO Document 162 Filed 12/22/17 Page 6 of 25 PageID #: 6662
Leisy J. Abrego, Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims-Making for First- and 1.5-Generation Immigrants, 45 LAW & SOC’Y REV. 337 (2011) ..................................................................................................................18
Madeline Kenney, Berwyn grandmother of 10 facing deportation sues DHS over visa delay, Chicago Sun Times (Sept. 18, 2017).....................................................................................6
Mark Keierleber, Trump’s immigration crackdown is traumatizing a generation of children, The Guardian (Aug. 23, 2017)........................................................................................15
Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic (Oct. 21, 2017) ...........................................................................11
Results from Tom K. Wong, et al., 2017 National DACA Study, CENTER FOR AMERICAN PROGRESS (Aug. 28, 2017) ..................................................................................2, 7, 10
Richard Gonzales, DACA Recipients Worry What The Government Will Do With Their Private Information, NPR (Sept. 9, 2017) ...........................................................................12
Stephanie Kuo, Undocumented Immigrants Putting ‘Health On Hold’ Out Of Fear, Anxiety In Uncertain Times, Houston Public Media (Sept. 15, 2017)...........................................13
Susana Martinez and Sheila Neville, Help for Undocumented Victims of Crime, 44 CLEARINGHOUSE REV. 129 (2010) .................................................................................................18
Tom K. Wong et al., Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey, 2 J. OF MIGRATION AND HUMAN SECURITY 4 (2014) ........................5, 9
Virginia Fay, Back Into the Shadows: Immigrants Retreat From Needed Services as Deportation Fears Loom, KQED News (June 15, 2017) ..................................................13, 14, 15
v.

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INTEREST OF AMICI CURIAE1 Amici are legal services organizations that provide immigration legal services.2 Amici include the following twenty-three organizations: Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children’s Law Center of Massachusetts, Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance’s National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Legal Aid Justice Center, Legal Aid Society of San Mateo County, Legal Services for Children (LSC), Justice Center of Southeast Massachusetts, Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group, Northwest Immigrant Rights Project, OneJustice, Rocky Mountain Immigrant Advocacy Network, and Services, Immigrant Rights, and Education Network (SIREN). Many of amici’s clients are youth who were eligible for the recently rescinded Deferred Action for Childhood Arrivals (“DACA”) program. Amici provide legal counseling to these youth to guide them through the intricacies of the immigration system. As a result of their interaction with undocumented immigrants generally and DACA-eligible individuals in particular, amici understand the complex legal challenges now facing DACA grantees in light of the rescission of DACA and have observed the negative effects on their clients.3 They are well-positioned to articulate the nature of the irreparable harm at issue and the reasons an injunction serves the public interest.4
1 The Court has granted amici’s motion for leave to file this brief. See Mot. for Leave to File Amicus Br., Dkt. 148 in 16-CV-4756; Dkt. 121 in 17-CV-5228; Order dated Dec. 21, 2017. 2 Descriptions of each amicus organization are provided in Appendix A. 3 Some legal services organizations and related public interest organizations experience harm themselves, as institutions. This issue is addressed in an amicus brief to be filed by another set of amici. See Mot. for Leave to File Amicus Br., Dkt. 176 in 16-CV-4756 and Dkt. 147in 17-CV-5228. 4 Counsel for amici have interviewed and received information from the legal services organizations that are filing
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SUMMARY OF ARGUMENT The rescission of the DACA program announced by the Department of Homeland Security (“DHS”) on September 5, 20175 causes real and imminent harm to young people who were eligible for protection from deportation under DACA. More than half of these DACAeligible individuals were six years old or younger when they first came to the United States; all were younger than sixteen years old. Results from Tom K. Wong et al., 2017 National DACA Study, CENTER FOR AMERICAN PROGRESS at 9 (Aug. 28, 2017) (“2017 National DACA Study”).6 These young people now face a frightening and uncertain future in the United States, despite prior assurances by the government that by coming forward and applying for DACA, they would be protected from negative immigration enforcement action. The vast majority of DACA grantees will be left without any protection from deportation when their current status expires. DACA grantees will also lose work authorization, leading them to lose their jobs, health insurance, and countless other benefits. Losing DACA will force many of them into a life of hiding and constant fear of removal from the only country they have ever known. The decision to rescind DACA has intensified fear of accessing vital services in the immigrant community. As their DACA status expires, DACA recipients will join the ranks of immigrants who have no protection against deportation and are afraid that if they go to school or work, access medical services, or report a crime, they will become targets for deportation. This fear is not only harmful to those directly affected but also dangerous for public health and safety.
this brief. Information throughout the brief that relates to these organizations’ clients was obtained through these interviews and related requests for information. 5 Memorandum from Acting Secretary Elaine C. Duke, Memorandum on Rescission of Deferred Action For Childhood Arrivals (DACA) (Sept. 5, 2017) (“Rescission Memorandum”), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. 6 Available at https://cdn.americanprogress.org/content/uploads/2017/08/27164928/Wong-Et-Al-New-DACASurvey-2017-Codebook.pdf.
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A preliminary injunction prohibiting the government from enforcing the Rescission

Memorandum and from using information obtained in any DACA application, except as

previously provided under the DACA program, is necessary in order to prevent irreparable harm

to this community of young immigrants and is in the public interest.

ARGUMENT

I.

THE RESCISSION OF DACA CAUSES SIGNIFICANT HARM TO AMICI’S DACA CLIENTS,

MOST OF WHOM HAVE NO VIABLE OPTION TO OBTAIN LEGAL IMMIGRATION STATUS

AND AVOID DEPORTATION.

The rescission of DACA will put DACA recipients at risk for deportation and strip them

of their eligibility for work permits. Without DACA, most DACA recipients are ineligible for

any protection from deportation under current law. Indeed, DACA was only necessary because

Congress failed to pass the Development, Relief, and Education for Alien Minors Act (“DREAM

Act”),7 which would have created a path to citizenship for many DACA-eligible individuals,

commonly referred to as “Dreamers.” The DREAM Act’s proponents sought to provide a much-

needed legal solution for undocumented young people who had been present in the United States

from childhood, and, in some cases were not aware until adulthood of their lack of status.

Proponents recognized that Dreamers grew up in the U.S. but had no other option for staying

legally in the United States. Report and analysis of immigration and nationality law, 2. Senate

Judiciary Subcommittee Holds Hearing on the DREAM Act, 88 No. 25 Interpreter Releases

1594 (July 4, 2011). Congress attempted (but failed) to pass legislation (including the DREAM

Act) protecting this class of young immigrants approximately fourteen times since 2001, both as

stand-alone legislation and as part of comprehensive immigration reform.8

7 H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011). 8 See, e.g., H.R. 1918, 107th Cong. (2001); S. 1291, 107th Cong. (2001); S. 1545, 108th Cong. (2003); S. 2075, 109th Cong. (2005); H.R. 5131, 109th Cong. (2006); S. 2205, 110th Cong. (2007); H.R. 1275, 110th Cong. (2007); S. 729, 111th Cong. (2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); H.R. 1468, 115th Cong. (2017); H.R. 3591, 115th Cong. (2017); S. 1615, 115th Cong. (2017).
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In response to Congress’s failed attempts to provide relief to these young immigrants, President Obama issued an Executive Order in June 2012 enacting DACA. See Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).9 DACA granted a renewable two-year period of deferred action (protection from deportation) and work authorization. Id. Although DACA does not offer a path to legal status or citizenship, “it provides tangible opportunities for young immigrants to participate more fully in our society and economy.” Deferred Action for Childhood Arrivals (DACA): Funding Opportunities for Philanthropy, Grantmakers Concerned with Immigrants and Refugees (Oct. 29, 2017).10 The DACA program allowed recipients to live without fear of deportation and to overcome many of the hardships associated with undocumented status.
When their current period of deferred action expires, DACA recipients will be cast back into legal uncertainty, without any protection from deportation. Their loss is substantial and the consequences are dire: they will lose the ability to remain legally in the U.S. and will have no means of earning a living. Most DACA recipients do not qualify for any form of immigration relief, such as humanitarian-based forms of relief or family-based visas. And for the few who may qualify for other relief, successfully obtaining relief is nearly impossible under current immigration law. Thus, for the vast majority of DACA grantees, there is no other option and they will become undocumented when their deferred status expires.
9 Available at https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-tous-as-children.pdf. 10 Available at https://www.gcir.org/sites/default/files/resources/GCIR%20DACA%20Funding%20Opportunities_1.pdf.
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A. Most DACA Recipients Are Not Eligible for Humanitarian or Family-Based Forms of Immigration Relief.
Very few DACA recipients are eligible for immigration relief under current law. Amici
routinely screened DACA-eligible individuals for humanitarian and family-based forms of relief before providing assistance applying for DACA,11 but most DACA recipients had not suffered
the requisite trauma to qualify for humanitarian forms of relief, and did not qualify for familybased relief.12 The majority of DACA recipients do not qualify for other immigration options,
such as student or work visas, either. Indeed, a 2014 study found that only 14.3% of DACA-
eligible young people potentially qualified for any other form of relief. Tom K. Wong, et al.,
Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey, 2 J. OF
MIGRATION AND HUMAN SECURITY 4, 287-304 (2014). The rescission of DACA therefore leaves
the vast majority of DACA recipients without any protection from deportation.
Humanitarian-based options are narrowly tailored forms of relief that typically require
that applicants suffered significant trauma in their country of origin or in the U.S. For example,
asylum and its related forms of relief require that applicants suffered or will suffer extreme harm in their countries of origin.13 8 U.S.C. § 1101(a)(42); INA § 101(a)(42)(A).14 Similarly, Special
Immigrant Juvenile Status (“SIJS”) confers status on young immigrants who have been abused,
abandoned or neglected. INA § 101(a)(27); 8 C.F.R. § 204.11. “U” and “T” visas provide relief
11 Ruling out other forms of relief was a crucial part of the DACA application process, as many other forms of relief, unlike DACA, confer a path to legal permanent residence and citizenship. 12 To qualify for family-based relief, applicants must be an immediate relative, defined as a spouse, unmarried child under 21, or a parent (if the child is 21 years or older) of a U.S. citizen. INA § 201(b)(2)(A)(i). Older and married children of U.S. citizens and spouses and unmarried children of lawful permanent residents are also eligible for visas, but are subject to numerical limitations each year. INA § 203. 13 Asylum applicants often seek withholding of removal and relief under the Convention Against Torture as well. INA § 241(b)(3); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 United Nations Treaty Series at 85 (Dec. 10, 1984), https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&lang=en. 14 The Immigration and Nationality Act (“INA”) is comprised of a series of sections of Title 8 of the United States Code (“USC”). Hereinafter, federal immigration statutes are only referenced to their INA classification.
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for victims of certain qualifying crimes and human trafficking, respectively, while the Violence
Against Women Act (“VAWA”) allows certain battered spouses, children, and parents to petition
for legal status without the involvement of their abusive spouse, parent, or child. INA § 101(a)(15)(U) (U Visas); INA § 101(a)(15)(T) (T visas); INA § 245 (VAWA).15 But individuals
who spent most of their lives in the United States and have not experienced significant harm or
violence in their lives simply do not qualify for these forms of relief.
Most DACA grantees are not eligible for family-based immigration relief because they
do not have a qualifying relative. Among the few DACA recipients who do have a qualifying
relative, many are not eligible to apply to adjust status from within the country because they last entered the country without permission.16 As a result, these DACA recipients would have to
leave the country to apply for a family-based visa, and then would face strict bars to re-entry, due to their previous “unlawful presence” in the United States.17 INA § 212(a)(9)(B)-(C).
Undocumented immigrants who have accrued unlawful presence are barred from re-entry for
three years, ten years, or permanently, depending on their length of unlawful presence and
number of entries. INA §§ 212(a)(9)(B)(i)(I)-(II) and 212(a)(9)(C). Those who entered the
15 Even in the rare situation that a DACA-eligible individual qualifies for an alternative form of relief, the waiting time for that relief can be many years. For example, the current waiting time for a U visa is approximately five to ten years. Even an interim work permit through a U visa application currently takes about three years to process, and individuals waiting for U visa approval have been subjected to enforcement by Immigration and Customs Enforcement (“ICE”) during this waiting period. Amici and others report that U visa applicants have been detained in recent months despite having a pending U visa applications. See also Madeline Kenney, Berwyn grandmother of 10 facing deportation sues DHS over visa delay, Chicago Sun Times (Sept. 18, 2017), https://chicago.suntimes.com/chicago-politics/berwyn-grandmother-of-10-facing-deportation-sues-dhs-over-visadelay/. 16 Family-based petitions also take years to process. Seventy-eight percent of DACA recipients are from Mexico. The government is currently processing visa petitions filed in March 1996 for unmarried Mexican sons and daughters of U.S. citizens. Visa Bulletin for October 2017, U.S. Dep’t of State, Bureau of Consular Affairs (Sept. 11, 2017), https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2018/visa-bulletin-for-october-2017.html. 17 “Unlawful presence” is when an undocumented immigrant “is present in the United States after the expiration of the period of stay authorized . . . or is present within the United States without being admitted or paroled.” INA § 212(a)(9)(B)(ii).
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country more than once without inspection and have been unlawfully present for a total of more than one year are permanently barred. INA § 212(a)(9)(C).
DACA recipients do not continue to accrue “unlawful presence” once their DACA application is approved—but, once their DACA status expires, they will again accrue unlawful presence. See United States Citizenship and Immigration Services, DACA Frequently Asked Questions (“USCIS DACA FAQs”), Question 1. Most DACA recipients have already accrued some unlawful presence and are subject to time bars. Accrual of “unlawful presence” for the purpose of the three and ten year bars begins once an undocumented immigrant turns 18. INA §§ 212(a)(9)(B)(iii)(I). Therefore, DACA recipients would have accrued “unlawful presence” between the time they turned 18 and the date they received protection from deportation, i.e., the date their DACA application was approved. Because the average age of a DACA grantee in 2017 is 25 years old, and DACA was implemented in 2012, an average DACA grantee who applied for DACA as soon as it was available was 20 years old at the time of application and thus would have accrued two years of unlawful presence (from the time they were 18 in 2010 until they received the DACA grant in 2012). See 2017 National DACA Study at 13. This would result in a ten-year bar to re-entering the United States. INA §§ 212(a)(9)(B)(iii)(II). Even the three and ten year bars, in practice, are complete barriers to relief, because applicants would need to leave their families, jobs, schools, and for most, the only country they have ever known, in order to wait out the time-bar. The standards for obtaining a waiver of unlawful presence are so difficult to meet that even for the very few DACA recipients who might qualify for family-based adjustment of status, it is an illusory form of relief at best.
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B. DACA Recipients Are Not Eligible for Relief Based on Their Length of Time in the U.S., No Matter How Well-Spent.
Contrary to popular perception, there is no form of relief available to young immigrants
on the basis that they have lived in the United States for most of their lives, even if they have
been exemplary members of the community and excelled academically. DACA also did not
create a “loophole” by which eligible young people could “cut in line” for relief for which they
would have had to wait longer if they had stayed in their home countries. Rather, DACA
provided young people who were already here and had no viable recourse for immigration relief
with temporary work permits and protection from deportation.
Prior to immigration reform in 1996, immigrants in deportation proceedings could ask an
immigration judge to grant “suspension of deportation,” which took the “good moral character” of an immigrant into account.18 This form of relief was only available if an immigrant was in
removal proceedings and would either endure extreme hardship if deported or had a U.S. citizen
or a lawful permanent resident (“LPR”) family member who would endure extreme hardship if
the applicant were deported. In 1996, Congress eliminated “suspension of deportation,” and
replaced it with a form of cancellation of removal that removed consideration of hardship to the
applicant and imposed a higher burden on the applicant to show hardship to a U.S. citizen or LPR family member.19 INA § 240A(b); see Hernandez v. Gonzalez, 437 F.3d 341, 346-47 (3d
18 “Suspension of deportation” required: (1) continuous physical presence in the U.S. for at least seven years; (2) good moral character during those seven years; and (3) that deportation would result in extreme hardship to the applicant or the applicant’s citizen or lawful permanent resident spouse, parent, or child. INA § 244(a) (1994) (repealed 1996). 19 Most applicants are unable to avoid deportation through cancellation of removal unless they can show that deportation would result in “exceptional and extremely unusual hardship” to a U.S. citizen or LPR spouse, parent or child. INA § 240A. This standard is a very demanding one that generally requires a showing that a U.S. citizen or LPR family member suffers from a severe chronic medical condition and requires special medical attention and financial support. See Ayeni v. Holder, 617 F.3d 67, 67, 73 (1st Cir. 2010) (upholding lower court decision that even evidence of petitioner’s inability to provide medical care for his children’s chronic and serious health issues, which included severe asthma, migraine headaches, and attention deficit hyperactivity disorder, did not meet hardship standard). Demonstrating that emotional harm will be caused by the separation of family members or financial hardship is insufficient. Tejado v. Holder, 776 F.3d 965, 969 (8th Cir. 2015) (emotional harm); Gomez-Perez v.
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Cir. 2006) (noting the “practical effect . . . [is] that a far larger number of immigrants are now removable under the new law, while a much smaller number are eligible for any form of relief from removal”). As with “suspension of deportation,” only immigrants in removal proceedings and with a qualifying relative (hardship to the applicant is no longer sufficient) are able to seek cancellation of removal. Given that most DACA recipients do not have a qualifying relative at all (Wong, Paths to Lawful Immigration Status), no less a qualifying relative who would endure extreme hardship, this option is inapplicable to most DACA recipients.
As a result, for the vast majority of DACA recipients who do not qualify for humanitarian or family-based immigration relief, there is no procedure, other than DACA, to protect them from deportation.
C. Without DACA, Most DACA Recipients Will Become Undocumented and Suffer Significant Related Harms.
Given the small number of DACA recipients who actually qualify for immigration relief and the legal hurdles faced by the small minority of those that do qualify, the reality is that most DACA recipients will become undocumented as a result of the Rescission Memorandum. They will not be able to work legally and will not have any protection from deportation—and will suffer numerous harms as a result. The elimination of DACA “reverberate[s] far beyond th[e] privileges” of legally living and working in the United States. Caitlin Dickerson, For DACA Recipients, Losing Protection and Work Permits Is Just the Start, The New York Times (Sept. 7, 2017) (“Losing Protection”).20
The positive impact of the DACA program—both to its recipients and to American society more generally—should not be underestimated. “Since DACA began, thousands of
Holder, 569 F.3d 370, 373 (8th Cir. 2009) (financial hardship). 20 Available at https://www.nytimes.com/2017/09/07/us/daca-losses-immigration.html.
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Dreamers have been able to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—all on the books.” Letter from Secretary Jeh Johnson, U.S. Dep’t of Homeland Sec., to Honorable Judy Chu, U.S. House of Rep. (Dec. 30, 2016).21 After the implementation of DACA, approximately 80% of DACA grantees obtained driver’s licenses for the first time. 2017 National DACA Study at 9. Many also obtained financial aid for higher education. See Dickerson, Losing Protection. Further, after receiving DACA, approximately 65% of DACA grantees age 25 and under and approximately 54% of DACA grantees over age 25 pursued educational opportunities they previously could not pursue. 2017 National DACA Study at 7. Approximately 70% of DACA recipients “earn[ed] more money, which . . . helped [them] become financially independent.” Id. at 3. As the result of their employment, many DACA recipients also obtained employer-based health insurance.22 See Jessica Ferger, Rescinding DACA Could Spur a Public Health Crisis, from Lost Services to Higher Rates of Depression, Substance Abuse, Newsweek (Sept. 6, 2017).23 These benefits that DACA recipients have relied on, benefits that many U.S. citizens “take for granted and cannot even imagine living without,” will disappear with the rescission of DACA. Dickerson, Losing Protection. For DACA recipients, this will result in undeniable harm as it will mean an inability

21 Available at

https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response%20to%20Chu%2012.30.16.p

df.

22 Rescinding DACA will also have a significant economic effect, as employers will have to terminate the employment

of DACA grantees once their deferred status expires. This will result in a reduction in contributions made to Social

Security and Medicare, both by the employee and employer, of approximately $39.3 billion over 10 years. Jose

Magaña-Salgado, et al., Draining the Trust Funds: Ending DACA and the Consequences to Social Security and

Medicare,

Immigrant

Legal

Resource

Center

at

2,

9

(Oct.

2017),

https://www.ilrc.org/sites/default/files/resources/2017-09-29_draining_the_trust_funds_final.pdf.

23 Available at http://www.newsweek.com/daca-immigration-heath-care-access-mental-health-660539.

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to continue their education, support themselves and their families financially, and “keep a roof over their heads.” Id.
Many DACA recipients will also be forced to make heart-breaking decisions about the future of their families, and in particular of their U.S. citizen children. DACA recipients who are parents must choose whether to take their U.S. citizen children with them if they are deported, or face long-term and possibly permanent separation. Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic (Oct. 21, 2017) (because of the rescission of DACA, an estimated 200,000 children are now at risk of losing their DACA recipient parents).24 If they decide to leave their U.S. citizen children in the U.S., they need to make legal, practical, and financial arrangements for the care of their children. DACA recipients who may be subject to deportation must also spend time and resources to protect their property, assets, and finances in case they are deported. These harms are not speculative. A recent study profiled a DACA recipient who “was born in Mexico, but came to the U.S. at the age of nine. She received DACA when she was studying for a master’s degree at Stanford. She bought a house, married another DACA recipient, and has two children who are U.S. citizens.” Julia Carrie Wong, Fear and uncertainty for Dreamers as DACA ends: “Where am I going to go?,” The Guardian (Sept. 5, 2017).25 This DACA recipient is not eligible for immigration relief, so she and her partner are having to consider options “to protect [their] daughters in case [they] are deported.” Id. at 2. Amici are aware of countless similar situations among their clients, which cause a significant amount of stress and anxiety.
24 Available at https://www.theatlantic.com/politics/archive/2017/10/donald-trump-daca/543519/. 25 Available at https://www.theguardian.com/us-news/2017/sep/05/dreamers-daca-trump-ends-program-fears-forfuture
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The rescission of DACA creates significant turmoil for DACA recipients and their families, who have planned their futures around the promises of DACA. Now, most will once again become undocumented immigrants, with all the uncertainty and anxiety that entails, and without the ability to work legally, obtain health insurance, legally drive in many states, pay for college, purchase homes, and make plans for their lives.26 II. THE RESCISSION OF DACA CAUSES FEAR IN THE COMMUNITY ABOUT ACCESSING
PUBLIC SERVICES, WHICH HARMS THE PUBLIC INTEREST. In light of a political climate increasingly hostile to immigrants, intensified by the rescission of DACA, many in the immigrant community are understandably fearful of deportation and afraid to access services. When DACA protections expire, amici’s DACA clients will no longer be protected from deportation and, like other undocumented immigrants, may be afraid to access services. This situation endangers public health and safety. A. DACA Recipients and Other Immigrants Are Afraid to Access Health and
Other Social Services, and to Attend School, Out of Fear of Deportation. In the wake of recent increasing immigration enforcement activity and the Rescission Memorandum, there is evidence that anxiety is causing undocumented immigrants, including DACA recipients, to avoid utilizing health services and refrain from reporting crimes. Some members of the immigrant community are even avoiding school and work. For example, amicus organization Centro Legal de la Raza has a client whose family members stopped working
26 DACA recipients are at even more risk than other undocumented immigrants because they provided personal and sensitive information to the government as part of the DACA application process, including addresses, employers, photos, and fingerprints. Now, the government has stated that although the personal information will not be “proactively provided” to other law enforcement entities and ICE, that may change and be “rescinded at any time without notice.” See USCIS DACA FAQs at Question 8; Richard Gonzales, DACA Recipients Worry What The Government Will Do With Their Private Information, NPR (Sept. 9, 2017), http://www.npr.org/2017/09/09/549678003/daca-recipients-worry-what-the-government-will-do-with-their-privateinformation.
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because of fear of workplace raids. Several amici organizations have been providing “Know Your Rights” presentations in order to alleviate these concerns in the community.
Many undocumented immigrants avoid visiting hospitals or clinics for fear of deportation. See Anna North, DACA helped some immigrants finally get health care. Now they could lose it, Vox (Sept. 28, 2017) (“DACA helped get health care”).27 For example, undocumented immigrant women may not access necessary prenatal health care, which can lead to a wide range of detrimental health outcomes. North, DACA helped get health care. Anecdotal evidence demonstrates that avoidance behavior, motivated by fear, abounds. As one non-profit organization observed, “[w]hat we’re finding and hearing from all over the country is a huge concern about whether or not seeking routine care and preventative care as well as care for their children, who may be documented, is going to put those families in jeopardy of deportation . . . . What we heard was a real significant uptick in no-show rates.” Stephanie Kuo, Undocumented Immigrants Putting ‘Health On Hold’ Out Of Fear, Anxiety In Uncertain Times, Houston Public Media (Sept. 15, 2017).28 Indeed, fear of deportation is so strong that one undocumented immigrant woman stopped accessing and receiving cancer treatments because she was terrified of being identified and detained if she continued using health services given reports of increased immigration enforcement. Virginia Fay, Back Into the Shadows: Immigrants Retreat From Needed Services as Deportation Fears Loom, KQED News (June 15, 2017) (“Back Into the Shadows”).29 Amici have observed this phenomenon, as well. Medical professionals have informed amicus organization ILRC that undocumented immigrants treated in emergency
27 Available at https://www.vox.com/identities/2017/9/28/16351866/daca-health-care-reproductive-healthundocumented-immigrants. 28 Available at https://www.houstonpublicmedia.org/articles/news/2017/09/15/237573/undocumented-immigrantsputting-health-on-hold-out-of-fear-anxiety-in-uncertain-times/. 29 Available at https://ww2.kqed.org/news/2017/06/15/back-into-the-shadows-immigrants-retreat-from-neededservices-as-deportation-fears-loom/.
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rooms have failed to return to the hospital for critical follow-up treatment out of fear of deportation.
Undocumented immigrants are also increasingly afraid to report crimes to law enforcement, fearing that any interaction with a governmental entity could lead to deportation. Police departments across the nation worry about how the increasingly fearful climate will affect their relationships with immigrant communities and their ability to solve crimes. As one police captain explained, undocumented immigrants “will see law enforcement and the justice system as something that is now less accessible . . . and potentially threatening . . . because they’re concerned that the federal government will somehow get that information and use it to deport them.” Id. Police in many major cities have observed significantly decreased reporting of sexual and domestic violence by Latina women during the first few months of 2017, compared to the same time period in 2016. Id. (sharp downturn in Houston, Los Angeles, and San Francisco); see also Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, The New York Times (Apr. 30, 2017) (sharp downturn in cities in Colorado and Maryland).30 Advocates report that many domestic violence survivors who are undocumented are too afraid of contact with police to seek life-saving restraining orders, report abuse, or seek U visas. Fay, Back Into the Shadows. They further note that undocumented survivors are even afraid to stay at shelters. Id. When “survivors do come in for help, they are often so scared that they won’t stay more than a few days or a week.” Id. Amicus organizations report experiences with multiple clients who have endured horrific domestic violence but are too afraid to report the abuse due to their immigration status. Some immigrants are even afraid to come to amici’s offices to be screened for immigration relief, for fear of encountering ICE.
30 Available at https://www.nytimes.com/2017/04/30/us/immigrants-deportation-sexual-abuse.html.
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Fear in the community has led to increased absenteeism among immigrant students in schools across the nation. See Carolyn Jones, Immigration crackdown taking heavy toll on California students, San Jose Mercury News (Oct. 5, 2017) (“Immigration crackdown taking heavy toll”);31 Mark Keierleber, Trump’s immigration crackdown is traumatizing a generation of children, The Guardian (Aug. 23, 2017)32 (noting that school officials from New York to New Mexico are preparing for “increased anxiety and absenteeism among students of immigrant families” and that more and more students are dropping out of school). Educators have also observed that some students are having increased difficulty concentrating in the classroom as a result of recent anti-immigration policies. Jones, Immigration crackdown taking heavy toll; see also Dara Lind, What happens to a family when they have equal rights, and then lose them? Vox (Dec. 14, 2017) (reporting incidences of elementary school students coming to the office administrator “wracked with sudden anxiety that their parents won’t be there when they come home”). Some immigrant parents have even expressed fear of sending their children to school, in case “they’re taken in an ICE raid during the day and their children have no one to return home to.” Fay, Back Into the Shadows.
Immigrant families are also reluctant to access social services due to fear of deportation. Social scientists have pointed out that “anti-immigrant sentiment and increased deportation activity has had a long history of causing eligible families to drop out and shy away” from safety net programs. Annie Lowrey, Trump’s anti-immigrant policies are scaring families away from the safety net, The Atlantic (Mar. 24, 2017) (“Trump’s anti-immigrant policies”).33 In many
31 Available at http://www.mercurynews.com/2017/10/05/immigration-crackdown-taking-heavy-toll-on-californiastudents/?platform=hootsuite. 32 Available at https://www.theguardian.com/us-news/2017/aug/23/us-immigration-children-schools-trump. 33 Available at https://www.theatlantic.com/business/archive/2017/03/trump-safety-net-latinofamilies/520779/?utm_source=nl-atlantic-weekly-032417.
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cases, families eligible for these vital programs have mixed immigration status—for example, “undocumented parents with children with birthright citizenship.”34 Id. Eligible mixed-status families are declining to enroll in, or even un-enrolling from programs such as the Supplemental Nutrition Assistance Program (“SNAP”)35 and Women, Infants, and Children (“WIC”), out of fear that enrollment will put undocumented family members at risk of deportation.36 Lowrey, Trump’s anti-immigrant policies. Eligible families are withdrawing from other anti-poverty programs as well. Id. For instance, Eisner Health, a health care provider, compared monthly enrollment averages from December 2016 through February 2017 with data from 2016, and reported a 20% drop in food stamp enrollment, a 54% drop in Medicaid enrollment among children, and an 82% drop in enrollment in a local health program. Id. Re-enrollment in these programs has declined by 40%. Id. The community’s avoidance of these crucial services will likely result in “long-term consequences on the health, nutrition, and school performance of the youngest members of these families,” many of whom are U.S. citizens. Id.
Even immigrants who have already received a form of relief from deportation, such as asylum, are experiencing an uptick in anxiety. Several amici have received calls from asylees concerned that the DACA rescission might result in the revocation of their asylum status or mean that they should take further steps to protect themselves from deportation. Other clients are afraid to apply affirmatively for any form of relief because they worry about what will happen if relief is denied or later rescinded, like DACA.
34 Such mixed immigration family status families are increasingly common—nearly six million citizen children live in such households. Id. 35 Supplemental Nutrition Assistance Program (SNAP), United States Department of Agriculture: Food and Nutrition Service (Jan. 30, 2017), https://www.fns.usda.gov/snap/supplemental-nutrition-assistance-program-snap. 36 Women, Infants, and Children (WIC), United States Department of Agriculture: Food and Nutrition Service (Aug. 15, 2017), https://www.fns.usda.gov/wic/women-infants-and-children-wic.
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Due to the rescission of DACA, many young people are now thrust into the precarious position of considering whether accessing medical care, reporting crimes, going to school, or enrolling in social services could negatively affect their ability to remain in the United States. And for the immigrant community at large, the rescission of DACA has only worsened anxiety, in an era already fraught with uncertainty and fear.
B. When Immigrants Are Afraid to Access Services, Public Health, Safety, and Community Economic Interests Are Negatively Impacted.
When individuals are too scared to seek essential services for fear of deportation, the risks for individual and public health safety increase significantly. Indeed, the “administration’s actions and directives ostensibly target the 11 million unauthorized immigrants who live in the United States, but they will also harm millions of American citizens all across the country who live and work beside these immigrants every day.” Lowrey, Trump’s anti-immigrant policies (emphasis added).
Considerable risks to individual and public health are associated with the community’s anxiety about accessing healthcare. When individuals do not seek preventive care (including vaccines), fill vital prescriptions, or care for acute conditions until they experience an emergency, both the risk of public health crises and the price of health care can rise. “Ultimately, keeping undocumented immigrants from getting necessary health care is bad for everyone. . . . Health care is more expensive when people can’t get it until they’re very sick. And lack of health care increases the risk of chronic illness, which can make people unable to work or be active in their communities.” North, DACA helped get health care; see also Julianne Zuber, Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S., 28 J. CONTEMP. HEALTH L. & POLICY 350, 370 (2012) (“Placing barriers to accessing regular health care for undocumented immigrants threaten[s] community resilience because those with pre-
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existing health conditions are more vulnerable to . . . severe effects from a disease outbreak or public health emergency.”). Moreover, anxiety and fear of the consequences of being undocumented, including deportation and lack of future access to health care, could lead to acute mental health concerns. See David Becerra, et al., Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S., 39 J. SOC. & SOC. WELFARE 111, 118 (2012); Leisy J. Abrego, Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims-Making for First- and 1.5-Generation Immigrants, 45 LAW & SOC'Y REV. 337, 370 (2011) (risk of permanent anxiety for undocumented immigrants).
The public’s safety is also put at risk. When victims of and witnesses to crime are afraid to approach law enforcement, crime goes underreported. See Susana Martinez and Sheila Neville, Help for Undocumented Victims of Crime, 44 CLEARINGHOUSE REV. 129, 141 (2010). The reluctance to report crime is dangerous not only to undocumented immigrant victims, but to society as a whole. See Bill Ong Hing, Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy, 2 UC IRVINE L. REV. 247, 303 (2012) (noting that the entire community is safer when the immigrant community trusts law enforcement). “When the community and law enforcement are not engaged, we miss opportunities to interrupt current and future violence. As a result, everyone’s public safety is put at risk.” Debra J. Robbin, When Undocumented Immigrants Don’t Report Crime, We All Suffer, WBUR (Sept. 22, 2017).37
The decision to rescind DACA has increased fear in the immigrant community and added thousands of young people to the group of people afraid of deportation. The resulting reduction in use of public health, safety, educational, and social services is harmful to the public interest.
37 Available at http://www.wbur.org/cognoscenti/2017/09/22/undocumented-immigrants-report-crimes-debra-jrobbin.
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CONCLUSION The rescission of DACA irreparably harms DACA recipients by depriving them of their only real opportunity to pursue the American Dream. It also instills a fear among DACA recipients and all immigrants alike that is harmful to American society as a whole. On behalf of their clients and the communities they serve, amici curiae urge this Court to issue a declaratory judgment that the Rescission Memorandum is unlawful and unconstitutional and to grant a nationwide injunction in order to prevent further harm and damage to the public interest.

Dated: December 22, 2017

By: /s/ Kara C. Wilson Kara C. Wilson
Maureen P. Alger Monique R. Sherman Kara C. Wilson Joan R. Li COOLEY LLP 3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5000
Attorneys for Amici Curiae

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 Case 1:17-cv-05228-NGG-JO Document 164 Filed 12/22/17 Page 1 of 27 PageID #: 6684

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs,
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,
Defendants.

CIVIL ACTION NO. 1:17-cv05228-NGG-JO

MARTÍN JONATHAN BATALLA VIDAL, ANTONIO ALARCON, ELIANA FERNANDEZ, CARLOS VARGAS, MARIANO MONDRAGON, and CAROLINA FUNG FENG, on behalf of themselves and all other similarly situated individuals; and MAKE THE ROAD NEW YORK, on behalf of itself, its members, its clients, and all similarly situated individuals
Plaintiffs,
v.
KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security; JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States; and DONALD J. TRUMP, President of the United States,
Defendants.

CIVIL ACTION NO. 1:16-cv04756-NGG-JO

BRIEF OF NEW YORK UNIVERSITY AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:17-cv-05228-NGG-JO Document 164 Filed 12/22/17 Page 2 of 27 PageID #: 6685

OF COUNSEL:
Terrance Nolan General Counsel and Secretary New York University 70 Washington Square South, 11th floor New York, New York 10012

PROSKAUER ROSE LLP Steven E. Obus Seth D. Fiur (pro hac vice) Tiffany M. Woo Melissa D. DiGrande (pro hac vice pending) Ashley Ferguson (pro hac vice) Shiloh A. Rainwater (pro hac vice) Eleven Times Square New York, New York 10036 (212) 969-3000 SObus@proskauer.com SFiur@proskauer.com TWoo@proskauer.com MDigrande@proskauer.com AFerguson@proskauer.com SRainwater@proskauer.com
Counsel for Amicus Curiae New York University

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TABLE OF CONTENTS Page
INTEREST OF AMICUS .................................................................................................................1 INTRODUCTION AND SUMMARY OF THE ARGUMENT .....................................................2 ARGUMENT ...................................................................................................................................4 I. A Diverse Community is Critical to NYU’s Identity and Mission......................................4 II. Implementation of The DHS Memorandum Would Significantly Harm NYU and
Its Constituents.....................................................................................................................8 A. Harm to the NYU Community.................................................................................9 B. Harm to Educational Interests of DACA Beneficiaries at NYU ...........................11 III. DACA Is A Constitutional Program ..................................................................................14 IV. The Termination of DACA Violated the Administrative Procedure Act ..........................16 A. DHS’s Decision to Terminate DACA Was Arbitrary and Capricious
Under the APA.......................................................................................................17 B. DHS’s DACA Termination Failed to Comply with the APA’s Notice-and-
Comment Procedures .............................................................................................19 V. The Failure to Issue An Analysis of the DACA Termination’s Impact On Small
Entities Violates the Regulatory Flexibility Act ................................................................20 CONCLUSION ............................................................................................................................211
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TABLE OF AUTHORITIES
Page(s)
CASES Arce v. Douglas,
793 F.3d 968 (9th Cir. 2015) .....................................................................................................9
Arizona v. United States, 567 U.S. 387 (2012).................................................................................................................14
Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997) ....................................................................................................21
Bery v. City of N.Y., 97 F.3d 689 (2d Cir. 1996).......................................................................................................10
Central Florida Enterprises, Inc. v. FCC, 598 F.2d 37 (D.C. Cir. 1978) ...................................................................................................19
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).................................................................................................................17
Donovan v. Red Star Marine Servs., Inc., 739 F.2d 774 (2d Cir. 1984).....................................................................................................19
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)...........................................................................................................18, 19
Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) .........................................................................................................9, 10
General Chemical Corp. v. United States, 817 F.2d 844 (D.C. Cir. 1987) .................................................................................................19
Grutter v. Bollinger, 539 U.S. 306 (2003).............................................................................................................9, 10
Heckler v. Chaney, 470 U.S. 821 ............................................................................................................................15
Jana-Rock Const., Inc., v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195 (2d Cir. 2006).......................................................................................................8
Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967)...................................................................................................................9
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Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)...................................................................................................................17
N.Y. State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128 (2d Cir. 2001).....................................................................................................19
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).............................................................................................................9, 10
Reno v. Flores, 507 U.S. 292 (1993).................................................................................................................16
Texas v. United States, 809 F.3d 134 (2015)...........................................................................................................14, 20
Time Warner Cable Inc. v. FCC, 729 F.3d 137 (2d Cir. 2013).....................................................................................................19
Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252 (1977)...................................................................................................................8
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................9
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).................................................................................................................14
STATUTES 5 U.S.C. § 551................................................................................................................................19 5 U.S.C. § 553..........................................................................................................................19, 20 6 U.S.C. § 202(5) .....................................................................................................................14, 17 5 U.S.C. § 706(2)(A) .....................................................................................................................17 Administrative Procedure Act................................................................................................ passim Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 ................................................................. passim
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INTEREST OF AMICUS Amicus New York University (“NYU” or the “University”) is an institution of higher learning headquartered in New York City, one of the most diverse cities in the world. A critical component of NYU’s global mission is to create an intellectually rich educational environment encompassing a wide range of perspectives. By welcoming and engaging students and scholars from a broad range of backgrounds, NYU is able to advance that mission. As a global university centered in New York City, NYU has a vital interest in the proper administration of the immigration laws of the United States. NYU is deeply concerned that the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program, as contemplated in the Memorandum from Elaine C. Duke, Acting Secretary of the Department of Homeland Security, to James W. McCament, Acting Director of U.S. Citizenship and Immigration Services et al., Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (September 5, 2017), available at https://www.dhs.gov/news/2017/09/05/memorandumrescission-daca (the “DHS Memorandum”), would, in addition to imposing grievous harm on DACA beneficiaries, compromise NYU’s mission by impairing the educational opportunities NYU provides to all of its constituents and undermine the values that NYU champions. Because the DHS Memorandum was promulgated without any of the reasoned consideration and review that is statutorily required, even for far less intrusive and detrimental government actions, NYU respectfully submits that implementation of the DHS Memorandum should be enjoined.
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INTRODUCTION AND SUMMARY OF THE ARGUMENT Every year, thousands of prospective students apply to NYU, seeking the opportunity to study at one of the world’s most internationally diverse universities. At the core of NYU’s institutional mission are the twin aims of providing an exceptional academic experience and fostering world-class international scholarship. To support these goals, NYU has invested significant resources in developing an environment in which students and faculty from all backgrounds have the opportunity not only to take advantage of its unique educational environment, but also to contribute to a University community that enriches all of its members. There is no question that enrolling DACA beneficiaries provides significant benefits to the University as well. NYU’s DACA students, both former and present, have succeeded academically and meaningfully contributed to campus life through participation in numerous student organizations. By rescinding DACA, DHS does more than expose hundreds of thousands of people to potential removal from the United States. It interferes with the ability of those individuals to obtain an education and positively contribute to society, and it weakens NYU and institutions like it, because they lose hard-working students and unique voices on campus. If allowed to go into effect, the DHS Memorandum will make NYU less diverse and obstruct its ability to provide all of its students with the educational benefits that flow from a fully diverse student body and faculty. The DHS Memorandum also suffers from significant legal defects. While DACA constitutes a constitutional and permissible exercise of DHS’s authority, the same cannot be said for its rescission. In addition to significant constitutional issues, the DHS Memorandum failed to comply with the Administrative Procedure Act, because it provided none of the required reasoned analysis or justification for rescinding the DACA program, and because it provided no
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Case 1:17-cv-05228-NGG-JO Document 164 Filed 12/22/17 Page 8 of 27 PageID #: 6691 public notice and opportunity for comment on the rescission. The lack of reasoned analysis and opportunity for public comment similarly violates the Regulatory Flexibility Act. Because DACA’s rescission is unlawful, would cause harm to institutions like NYU, and would upend hundreds of thousands of lives nationwide, this Court should enjoin the DHS Memorandum.
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ARGUMENT I. A Diverse Community is Critical to NYU’s Identity and Mission
Diversity, inclusion and equity are “indispensable elements of an NYU education,” “vital for advancing knowledge, sparking innovation, and creating sustainable communities.”1 More than just stated values, these ideals are a part of everything the University does, as it strives to be a place where people gather from all over the world “to teach, perform, create, and study in a place where everyone belongs.”2 NYU accomplishes these goals by creating an intellectually rich environment for its students and scholars—taking academic and cultural advantage of its location, and embracing diversity among faculty, staff and students to ensure a wide range of perspectives in the educational experience. See id.
As part of its pledge to further the values of diversity, inclusion and equity on its campuses, NYU has committed to:
 fostering intellectual inquiry, research, and artistic practices that respectfully and rigorously take account of a wide range of opinions, perspectives, and experiences;
 promoting an inclusive community in which diversity is valued and every member feels they have a rightful place, is welcome and respected, and is supported in their endeavors;
 developing and supporting programs and policies that measurably improve NYU’s record of attracting and retaining students, as well as hiring and promoting faculty, administrators, and staff from historically underrepresented communities; and
 building structures that promote inclusiveness and equity for all members of the NYU community, especially our colleagues from marginalized groups.3
1 NYU Diversity Statement, available at www.nyu.edu/life/diversity-nyu.html. 2 https://www.nyu.edu/about/leadership-university-administration/office-of-the-president/presidentmessage.html. 3 See NYU Diversity Statement, supra n.1.
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NYU’s commitment to diversity, inclusion and equity is also manifested in the actions of its administration. Recognizing that sustaining NYU’s values means more than having “as diverse a student body, a faculty, and a staff as possible,” in September 2016, NYU’s provost Katherine Fleming observed that, although each of those goals individually is important, the true reflection of NYU’s values comes from creating a community where everyone seeks to have “the broadest possible understanding that we can have about what humankind is,” an understanding that comes only when people feel comfortable in the community itself.4
NYU has consistently supported programs like DACA, recognizing that they further values that are paramount to the NYU community. In 2014, in recognition of the distinct challenges and circumstances that undocumented immigrants face, NYU became the first university to offer financial aid applications specifically tailored to undocumented immigrants.5 As NYU’s then-president noted, “[w]hether the next Einstein is documented or not shouldn’t matter when it comes to access to college.” Id.
More recently, when the Attorney General of Texas threatened to bring litigation unless DACA was rescinded by September 5, 2017,6 NYU’s President, Andrew Hamilton, wrote to President Trump urging that DACA be kept in place.7 In his letter, President Hamilton described his own history as an immigrant, and the great extent to which immigrants love their adopted country, embrace its values and contribute to its society. Id. “As an educator,” President
4 See NYU Diversity Statement, supra n.1. 5 See Mike Vilensky, NYU Will Offer Financial Aid to Illegal Immigrants, THE WALL STREET JOURNAL (Nov. 20, 2014), https://www.wsj.com/articles/nyu-will-offer-financial-aid-to-illegal-immigrants-1416536236. 6 See Letter from K. Paxton, Attorney General of Texas, to J. Sessions, Attorney General of the United States, dated June 29, 2017, available at https://www.texasattorneygeneral.gov/files/epress/DACA_letter_6_29_2017.pdf. 7 Available at https://www.nyu.edu/content/dam/nyu/president/documents/09-01-17-daca-letter.pdf; see also https://www.nyu.edu/about/leadership-university-administration/office-of-the-president/communications/letterto-president-trump-urging-him-to-preserve-daca.html.
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Hamilton wrote, “I can attest to the vibrancy, talent, and ambition that the Dreamers bring to the
classroom, the laboratory, and the campus. . . . Few things would be more at odds with our
national ideals than punishing the innocent. And compassion is a particularly potent and noble
American quality.” Id. Emphasizing the status of DACA beneficiaries as important members of
the NYU family—and the broader American family—President Hamilton sounded the themes of
NYU’s mission for diversity, inclusion and equity: to provide for a richer educational
environment by inviting, welcoming and accepting a wide range of diverse perspectives; and to do what is fair and just.8
To help every student, faculty member and employee at NYU feel like they are an
integral part of the University community, NYU provides a variety of programs, services and
centers to support its diversity efforts. Among these programs is the University’s Center for
Multicultural Education and Programs (“CMEP”), which hosts diversity education and training, cultural events and social justice events.9 CMEP publishes a weekly newsletter and has a large
staff, including nine senior and professional staff members, six graduate staff members and eight undergraduate and design student staff members.10 CMEP “enhances the NYU experience by
fostering a more inclusive, aware, and socially just community,” through dialogue that explores
“issues of identity, diversity, and social justice”; support for the diverse NYU community in their
8 President Hamilton also joined over 700 other college and university presidents in signing onto a statement in support of DACA, highlighting its “highly positive impacts” on educational institutions. See Statement in Support of the Deferred Action for Childhood Arrivals (DACA) Program and our Undocumented Immigrant Students, https://www.pomona.edu/news/2016/11/21-college-university-presidents-call-us-uphold-and-continuedaca. The statement further touted the accomplishments of DACA beneficiaries, who “have been exemplary student scholars and student leaders, working across campus and in the community,” allowing them to “pursue opportunities in business, education, high tech, and the non-profit sector,” and “actively contributing to their local communities and economies.” Id.
9 See NYU CMEP website, http://www.nyu.edu/students/communities-and-groups/studentdiversity/multicultural-education-and-programs.html.
10 NYU CMEP, Who We Are, http://www.nyu.edu/students/communities-and-groups/studentdiversity/multicultural-education-and-programs/who-we-are.html; see also NYU CMEP Events Calendar, https://www.eventbrite.com/o/nyu-cmep-1875770117.
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personal, professional and academic lives; educational initiatives and campus-wide programming that engages the NYU community; and the cultivation of allies and advocates to create and promote positive change. Id.
NYU also offers a variety of academic programs and student groups focused on exploring and celebrating the culture and heritage of the Latino community—the group that would be most impacted by DACA’s rescission.11 For example, NYU’s School of Arts and Science offers a Latino Studies Program, “dedicated to the study of the historical, social and cultural experience of Latino communities, with a strong interest in the transnational dimensions of U.S. Latino life.”12 The Latino Studies program explores “early colonialism and pre-colonial times” in combination “with the study of contemporary developments such as recent Mexican and South American immigration to New York City.”13 NYU is also home to “Latinos Unidos Con Honor y Amistad,” or “LUCHA,” a student-run group that was originally founded in 1971 to give a voice to NYU’s growing Latino population.14 In addition, the Latino Law Students Association (“LALSA”) at NYU Law School offers a support system within the law school for Latino students; LALSA also provides “public service to the large and diverse Latino community, from mentoring Latino children in lower income neighborhoods to providing bilingual assistance to adults.”15 This list reflects just a small sample of programs and groups that support NYU’s Latino students and foster an appreciation for the unique contributions of the Latino community
11 See USCIS, Number of I-821D Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics, and Case Status: 2012-2016 (June 30), https://www.uscis.gov/sites/default/files/ USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/dac a_performancedata_fy2016_qtr3.pdf.
12 NYU Arts & Science website, Latino Studies, http://as.nyu.edu/latinostudies/about.html. 13 Id. 14 NYU LUCHA, www.facebook.com/nyulucha/. 15 NYU Law website, Latino Law Students Association, http://www.law.nyu.edu/studentorganizations/ latinolawstudentsassociation.
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to NYU and New York City. 16 These programs, among countless others, support the elements
of diversity, inclusion and equity that are “indispensable” to an NYU education.17 Fostering
these values is critical not simply because it is the right thing to do, but because an educational
environment that encompasses a wealth of varying perspectives gives rise to a campus
community that sees further and more clearly, as such a community is far more than the sum of
its parts.
II. Implementation of The DHS Memorandum Would Significantly Harm NYU and Its Constituents
By rescinding DACA without a legislative or other replacement in place, the DHS
Memorandum threatens a foundational piece of the puzzle that makes diverse educational
institutions such as NYU and its peers beacons of worldwide academic excellence. Rescission
threatens not only to tear individual members of the NYU community away from their families,
the NYU family and the country they call home, but to deprive NYU’s community—and the
country as a whole—of DACA beneficiaries’ unique voices, and the significant contributions
that they make.18
16 Similarly, NYU’s Office of Global Spiritual Life offers a vibrant and diverse community at the “forefront of international conversations on religion and spirituality.” See NYU Office of Global Spiritual Life website, https://www.nyu.edu/students/communities-and-groups/student-diversity/spiritual-life.html.
17 Id.; supra notes 8 and 9; see also, e.g., NYU Diverse & Inclusive Virtual Environment, http://www.nyu.edu/life/diversity-nyu/dive.html.
18 While it is not the focus of this brief, NYU is also deeply concerned about the constitutional implications of terminating DACA, particularly because the rescission of the program appears to have been motivated in substantial part by animus towards Latinos and Mexicans. The most fundamental abuse of government authority prohibited by the equal protection doctrine is discrimination against a protected class, especially when that discrimination is overt. See Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977) (“When there is a proof that a discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no longer justified.”); Jana-Rock Const., Inc., v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006) (“Government action . . . violates principles of equal protection if it was motivated by discriminatory animus and its application results in a discriminatory effect.”) (internal quotation marks and citations omitted). A law may fail to withstand scrutiny even if discrimination is not “the sole purpose of the challenged action, but only that it was a ‘motivating factor.’” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (internal citation omitted). Here, while the class impacted by the DHS Memorandum—i.e., DACA recipients—may be neutral on its face, there is little question that terminating DACA will have a disproportionate impact on Latinos and Mexicans, who make up the majority of DACA beneficiaries. Moreover, it is clear that the DHS Memorandum was motivated at least in part
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A. Harm to the NYU Community Courts have long emphasized the importance of promoting diversity and freedom in educational environments, recognizing that, due to the classroom’s vital role as a “marketplace of ideas,” constitutional protections are “nowhere more vital than in the community of American schools.” Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967). “The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” Id. (internal citation and quotation marks omitted). Diversity similarly “helps to break down racial stereotypes, and enables [students] to better understand” those with different backgrounds. Grutter v. Bollinger, 539 U.S. 306, 330 (2003). As a result, diversity in education fosters the “skills needed in today’s increasingly global marketplace” by “expos[ing] [students] to widely diverse people, cultures, ideas, and viewpoints.” Id. at 330; see also Keyishian, 385 U.S. at 603. Recognizing these benefits, the Supreme Court has held that the Constitution protects a school’s “right to select those students who will contribute the most to the ‘robust exchange of ideas . . . .’” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2417 (2013) (recognizing compelling governmental interest in “the educational benefits that flow from a diverse student body”); Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (recognizing a school’s ability to assert harm on behalf of its students, including harm to the university’s ability to accomplish its global mission). Universities around the country have recognized the benefits that come with the unique perspective offered by DACA students. These students are passionate and driven to excel. As
by animus towards individuals who are of Mexican national origin, as reflected in President Trump’s own statements about Latinos and Mexicans.
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NYU President Hamilton and 700 other college and university presidents wrote, since DACA began, “we have seen the critical benefits of this program for our students, and the highly positive impacts on our institutions and communities. DACA beneficiaries on our campuses have been exemplary student scholars and student leaders, working across campus and in the community.”19 The DHS Memorandum threatens the constitutionally-protected benefits of diversity that have been realized through DACA. See Fisher, 133 S. Ct. at 2417; Grutter, 539 U.S. at 328 (observing that a school’s “educational judgment that such diversity is essential to its educational mission is one to which we defer”); Bakke, 438 U.S. at 313; see also Bery v. City of N.Y., 97 F.3d 689, 694 (2d Cir. 1996) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”) (quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2948, at 440 (1973)). The DHS Memorandum would deprive NYU’s campuses of DACA beneficiaries’ unique perspectives; all students suffer when the diversity of ideas and backgrounds to which they are exposed is diminished. See Fisher, 133 S. Ct. at 2417. Forcing NYU’s undocumented students to retreat into the shadows will harm the University and the community it serves.
If allowed to stand, the DHS Memorandum would also have the detrimental effect of deterring young, undocumented immigrants from pursuing higher education opportunities, including at NYU. An integral part of “the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation.” Bakke, 438 U.S. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in judgment)). To protect NYU’s ability to provide its students and scholars with the
19 See Statement, supra n.8.
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constitutionally-protected benefits of diversity and the free exchange of ideas, the DHS Memorandum’s rescission of DACA should be enjoined.
B. Harm to Educational Interests of DACA Beneficiaries at NYU Apart from the harm to NYU, implementing the DHS Memorandum would of course strip away the educational opportunities that DACA provides at NYU and elsewhere—of which DACA beneficiaries have taken full advantage. One of DACA’s overarching objectives was to foster educational opportunities for young immigrants. As President Obama noted in remarks given contemporaneously with its implementation, DACA beneficiaries are “young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag.”20 Often, DACA beneficiaries had “no idea that [they were] undocumented until they appl[ied] for a job or a driver’s license, or a college scholarship.” Id. DACA was put in place to improve the allocation of immigration enforcement resources, in recognition of the fact that “students who are earning their education,” and who pose no risk to national security or public safety, deserve to have the chance to pursue their intellectual goals in this country. Id. The importance of education to DACA recipients is underscored by the fact that the pursuit of education is one of the threshold requirements for DACA eligibility. Among the requirements to be eligible for DACA is that the individual “currently [be] in school, ha[ve] graduated from high school, ha[ve] obtained a general education development certificate, or [be] an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.”21
20 See Office of the Press Secretary, Remarks by the President on Immigration, The White House (Archives), June 15, 2012, https://obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-presidentimmigration.
21 See Memorandum from Janet Napolitano, Sec’y of DHS, to David Y. Aguilar, Acting Comm’r, CBP, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012).
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Indeed, a recent national survey of DACA recipients found that a staggering 94% of survey respondents who were currently in school stated that they “pursued educational opportunities that [they] previously could not” because of DACA.22 One study showed that 45% of survey respondents overall were currently in school. Id. Among those in school, 72% were pursuing a bachelor’s degree or higher. Id. Approximately 241,000 DACA-eligible students had enrolled in college as of 2014.23 The number has surely increased since. Thus, in addition to meaningfully contributing to the institutions they attend and to the education of their fellow students, DACA directly leads to hundreds of thousands of educated young men and women entering the workforce where they make positive contributions to society.
These results stand in stark contrast to the circumstances of most undocumented immigrants, who end their schooling before entering college.24 “Due to a combination of scarce family resources, exclusion from financial aid at the state and federal levels, and depressed motivations, the majority of unauthorized students pursuing higher education attend community colleges and struggle to persist and graduate.” Id. But with DACA, which allows for legal employment and diminished fear of deportation, many DACA beneficiaries report newfound motivation and much greater success. Id.
22 See Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue To Grow, Center for American Progress (Aug. 28, 2017), available at https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/daca-recipients-economiceducational-gains-continue-grow/.
23 See Isabel Fatta, What DACA’s End Could Mean For Colleges, The Atlantic (Sep. 18, 2017), https://www.theatlantc.com/education/archive/2017/09/what-dacas-end-could-mean-for-colleges/540024 (citing Randy Capps et al., Issue Brief: The Education and Work Profiles of the DACA Population, Migration Policy Institute, August 2017, available at https://www.migrationpolicy.org/research/education-and-work-profiles-dacapopulation, at 4 (Table 1)).
24 See Roberto G. Gonzales, Taking Giant Leaps Forward: Experiences of a Range of DACA Beneficiaries at the 5-Year Mark, Center for American Progress (June 22, 2017), available at https://www.americanprogress.org/issues/immigration/reports/2017/06/22/434822/taking-giant-leaps-forward/.
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While this has salutary effects for educational institutions nationwide, its effect is especially pronounced at NYU. DACA works in tandem with NYU’s own core values, allowing NYU to support undocumented immigrant students who were brought to the United States as children and who wish to pursue their education in a safe and welcoming environment.25 The passion for learning and desire to contribute to society that DACA students exhibit makes NYU a stronger institution, and makes the entire NYU community a better place.
While it is no surprise that educators recognize the benefits of enrolling DACA beneficiaries, they are far from the only ones who see the positive impact the program has had on education in the United States and on DACA beneficiaries in particular. Numerous members of Congress—from both parties—have spoken out against DHS’s decision to rescind DACA without a legislative or regulatory replacement in place, and have highlighted the educational benefits that DACA, or a path to citizenship for undocumented children, would provide. Senator Jeff Flake recognized the need “to lawfully ensure that children who were brought here . . . by their parents, through no fault of their own, are able to stay and finish their education and continue to contribute to society.”26 Senator Thom Tillis described his vision for legislation that provided a “path . . . to earn legal status” tied to a requirement to “pursue higher education.”27 And U.S. Representative Ileana Ros-Lehtinen wrote that the administration’s decision to end DACA was “heartbreaking, reckless and wrong. For too long, Dreamers have been living with fear and unable to plan their futures. DACA was necessary to provide a migratory safe harbor
25 See Elizabeth A. Harris, Financial Aid for Undocumented Students Is Losing Its Stigma, NYTimes (Feb. 26, 2015), available at https://www.nytimes.com/2015/02/27/nyregion/financial-aid-for-undocumented-students-nolonger-discussed-in-hushed-tones.html (describing and interviewing an undocumented then-freshman at NYU).
26 Press Release: Flake Statement on DACA, https://www.flake.senate.gov/public/index.cfm/pressreleases?ID=7EE60ADE-5BBF-43CF-A3A1-BC0F0311CEA1 (Sept. 5, 2017).
27 Press Release: Tillis to Introduce Legislation Addressing Legal Status of Undocumented Children, https://www.tillis.senate.gov/public/index.cfm/press-releases?ID=675243B8-B3A1-434D-9359-9130E3CA77AD (Sept. 5, 2017).
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and it is cruel to take away the opportunities to work and go to school currently afforded to them.”28 III. DACA Is A Constitutional Program
While DACA has been politically controversial since its inception, its creation was well within the bounds of both the Constitution and DHS’s authority. Since its creation in 2002, DHS has had the express authority to “[e]stablish[] national immigration enforcement policies and priorities.” See 6 U.S.C. § 202(5). As part of the Executive Branch, it has significant discretion in exercising its authority, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), including in exercising its removal powers, see Arizona v. United States, 567 U.S. 387, 396 (2012) (discussing the “broad discretion” possessed by immigration officials).
At its heart, DACA is a program of resource allocation. More than 11 million undocumented immigrants currently live in the United States, yet Congress only provides resources for the removal of approximately 400,000 undocumented immigrants each year.29 As a result, DHS has historically prioritized the removal of “those who represent threats to national security, public safety, and border security.” See Texas v. United States, 809 F.3d 134, 188 (2015).
The United States Citizenship and Immigration Services (“USCIS”) defines “deferred action” as “a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion.”30 It is “an act of administrative convenience to the government which
28 Press Release: Ros-Lehtinen Statement on Elimination of DACA, https://ros-lehtinen.house.gov/pressrelease/ros-lehtinen-statement-elimination-daca (Sept. 5, 2017).
29 See Ian Millhiser, DACA is Not Unconstitutional (Sep. 5, 2017), https://thinkprogress.org/trump-adminconstitutional-case-daca-a3134e0059e3/.
30 See Frequently Asked Questions – DHS DACA FAQs, https://www.uscis.gov/archive/frequently-askedquestions.
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gives some cases lower priority.”31 Thus, DHS’s election to enforce removal laws against some undocumented immigrants but not against others is well within its discretion, and is merely a form of “deferred action.” See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (holding that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion”). Deferred action is not unique to DACA, but has been applied in a number of other immigration contexts, including with respect to survivors of domestic violence, victims of human trafficking, and surviving spouses of U.S. citizens.32
Because deportation takes place through removal proceedings, DHS’s determination whether to bring proceedings against an individual is effectively an exercise in prosecutorial discretion.33 In the case of DACA, DHS determined that, for individuals who met specified prerequisites, including the lack of a significant criminal history34 and the requisite educational or military status, it would favorably exercise its discretion to de-prioritize removal of those individuals.
The Obama administration’s decision to extend certain benefits to DACA beneficiaries, such as the ability to obtain a social security card, was similarly lawful. Immigration statutes and rules have long included carveouts to make those subject to deferred action eligible for such benefits. For example, regulations promulgated in 1981 outlining the “classes of aliens
31 8 C.F.R. § 274a.12(c)(14). 32 See Michael Tan, DACA Is And Always Will Be Constitutional (Aug. 15, 2017), https://www.aclu.org/blog/immigrants-rights/road-citizenship/daca-and-will-always-be-constitutional 33 See Understanding Prosecutorial Discretion in Immigration Law (May 26, 2011), https://www.americanimmigrationcouncil.org/research/understanding-prosecutorial-discretion-immigration-law 34 Undocumented individuals who have been convicted of a felony, a significant misdemeanor, or three or more other misdemeanors are prohibited from receiving benefits under DACA. See Memorandum, supra n.21, at 1.
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authorized to accept employment” include “an alien who has been granted deferred action.”35 In 1986, Congress also enacted a comprehensive scheme that prohibits the employment of “illegal aliens,” but includes an exception for non-citizens who are “authorized to be employed . . . by the Attorney General”—authority that was thereafter transferred to the Secretary of Homeland Security.36 The Supreme Court has applied similar standards when assessing an agency’s discretionary authority in the immigration context. In Reno v. Flores, 507 U.S. 292 (1993), the Court considered an Immigration and Naturalization Service policy that “juvenile aliens” detained without their parents could not be released to other “responsible adults.” It held that applying additional rules to a seemingly “blanket” policy provided sufficient “particularization” to allow for the constitutional exercise of discretion. Id. at 314-15. DACA’s benefits, which include the ability to get a driver’s license, to obtain employment and have access to health benefits, and ultimately to live without fear of removal, are all similarly lawful benefits conferred upon individuals who have attained deferred-action status. IV. The Termination of DACA Violated the Administrative Procedure Act
The Administrative Procedure Act (“APA”) outlines the procedures that federal agencies must follow when promulgating, amending or repealing a rule. DHS’s termination of DACA failed to comply with these requirements in two ways. First, DHS failed to demonstrate that its decision to repeal DACA was the product of reasoned decision-making, rendering it arbitrary and capricious under the APA. Second, despite significantly altering DACA beneficiaries’ existing legal rights, the DACA repeal failed to comply with the notice and comment procedures that the APA prescribes for substantive rules.
35 8 C.F.R. § 274a.12(c)(14). 36 See Millhiser, supra n.29.
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A. DHS’s Decision to Terminate DACA Was Arbitrary and Capricious Under the APA
Governmental agencies are accorded significant latitude in administering the programs for which they are responsible, but they do not have unfettered discretion to rescind their own rules. Rather, “[i]n all cases” a rule rescission—like a rule promulgation—is invalid under the APA if it is “arbitrary” or “capricious.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (citing 5 U.S.C. § 706(2)(A)); see Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41 (1983) (noting that the APA’s arbitrary-andcapricious test applies equally to rule promulgations and to rule rescissions). Such an action is only valid if the agency supplies a “reasoned analysis for the change,” State Farm, 463 U.S. at 42, including a consideration of all “relevant factors,” Overton Park, 401 U.S. at 416. Thus, a rule rescission is “arbitrary and capricious if the agency has . . . entirely failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43.
In terminating DACA, DHS failed to supply even a cursory analysis of several important considerations. For example, the DHS Memorandum failed to address the basic rationale underlying the DACA program: the use of prosecutorial discretion to focus limited agency resources on high-priority cases. Nor did DHS address the legal justification for the exercise of such discretion, i.e., the Secretary of Homeland Security’s express statutory authority to “[e]stablish[] national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). Finally—and of particular importance to amicus curiae—DHS entirely ignored its earlier policy determinations regarding the promotion of education and of DACA recipients’ contributions to society. The 2012 memorandum creating DACA specifically noted that U.S. immigration law is not designed to remove such “productive young people,” many of whom “have already
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contributed to our country in significant ways.”37 That the DHS Memorandum failed to mention, let alone substantively address these goals when it terminated DACA and upended the lives of nearly a million people, many of whom are students, demonstrates the arbitrary and capricious nature of DHS’s action.
If anything, DHS was obligated in this context to supply a “more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). When an agency’s policy has created “serious reliance interests,” the agency must provide a “reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Id. at 516 (citing Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996)). There are few reliance interests more substantial than those of DACA beneficiaries, who have built their entire lives upon the premise that they can live openly and legally within the United States, and attend school, work and travel, due to their DACA status. In eradicating that premise and throwing the lives of DACA beneficiaries into utter disarray, DHS was, at a minimum, obligated to explain in detail— certainly beyond expressing the mere desire to avoid a lawsuit—its justification for ignoring the facts and circumstances that led to DACA’s implementation in the first place. See Fox, 556 U.S. at 516.
Finally, to the limited extent DHS supplied any explanation for its decision to repeal DACA, that explanation is both legally flawed and incoherent. According to the DHS Memorandum, DHS cannot grant deferred-action status to immigrants who arrive in the U.S. before age 16 because Congress supposedly has not authorized the practice.38 At the same time, the Memorandum provides that DHS will continue renewing applications for deferrals over the
37 Memorandum, supra n.21, at 2. 38 See DHS Memorandum, supra.
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next month, allowing eligible immigrants to remain in the country for another two years. Id. In short, DHS asserts that it can keep doing what it erroneously claims it lacks statutory authority to do. This “internally inconsistent and inadequately explained” analysis, General Chemical Corp. v. United States, 817 F.2d 844, 857 (D.C. Cir. 1987), falls “somewhere on the distant side of arbitrary.” Central Florida Enterprises, Inc. v. FCC, 598 F.2d 37, 50 (D.C. Cir. 1978).
B. DHS’s DACA Termination Failed to Comply with the APA’s Notice-andComment Procedures
With certain narrow exceptions, the APA requires that agencies engaged in rulemaking— which includes repealing an existing rule—provide notice and an opportunity for public comment. See 5 U.S.C. § 553(b), (c); see also id. § 551(5) (defining “rulemaking” to include both promulgating and repealing a rule). Section 553’s notice-and-comment provisions apply to “substantive” or “legislative” rules, Time Warner Cable Inc. v. FCC, 729 F.3d 137, 168 (2d Cir. 2013) (citation omitted), not to “interpretive rules” or “general statements of policy,” 5 U.S.C. § 553(b)(3)(A). Whether a rule is substantive turns not on its label, but on whether it in fact “create[s] new law, right[s], or duties.” N.Y. State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128, 131 (2d Cir. 2001); see Donovan v. Red Star Marine Servs., Inc., 739 F.2d 774, 783 (2d Cir. 1984) (stating that substantive rules “changed existing rights and obligations”).
Here, the revocation of deferred-action status unquestionably significantly alters DACA beneficiaries’ legal rights. See Saranac Power, 267 F.3d at 131. For example, DACA recipients may obtain social security numbers and photo identification cards, which in turn enables them to apply for financial aid and to secure credit to fund education-related expenses. DACA recipients also are eligible for work authorization, which enables them to work their way through school and to secure legitimate jobs following graduation. Further in the future, DACA recipients are
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eligible for Social Security and Medicare benefits. DHS’s termination of DACA revokes recipients’ eligibility for these and other benefits on a non-discretionary, categorical basis. Accordingly, DHS’ decision to rescind DACA was a substantive rule to which § 553’s noticeand-comment requirements apply. By rendering its decision in the DHS Memorandum with no public notice or comment, DHS failed to adhere to these basic requirements and thus violated the APA. Cf. Texas, 809 F.3d at 170 (holding that states should have an opportunity to be heard, via notice and comment, on DAPA’s substantive grant of lawful presence and eligibility for benefits).39 V. The Failure to Issue An Analysis of the DACA Termination’s Impact On Small
Entities Violates the Regulatory Flexibility Act Under the Regulatory Flexibility Act of 1980, 5 U.S.C. §§ 601-612 (“RFA”), all federal agencies, as part of the rulemaking process, must conduct a “regulatory flexibility analysis” for any rule that has “a significant economic impact on a substantial number of small entities.” 5 U.S.C. § 605(b). In an initial analysis, an agency must, among other things, describe the effects of a proposed rule on small businesses, discuss “significant alternatives” that would “minimize any significant economic impact of the rule” on small businesses, and explain “why each one of such alternatives was rejected.” Id. § 604(a)(3); see id. § 603 (describing the “initial regulatory flexibility analysis”). When promulgating a final rule, the agency must publish a final analysis for public comment. See id. § 4. An agency must, at a minimum, make a “reasonable, goodfaith effort” to comply with these requirements. Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 114 (1st Cir. 1997).
39 “DAPA” stands for “Deferred Actions for Parents of Americans,” a program created in 2014 to provide a path to citizenship for certain immigrants whose children are American citizens or Lawful Permanent Residents. See Texas, 809 F.3d at 146-47. On June 15, 2017, then-Secretary Kelly rescinded the DAPA program in its entirety. See John Kelly, Rescission of Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (June 15, 2017), available at https://www.dhs.gov/news/2017/06/15/rescission-memorandumproviding-deferred-action-parents-americans-and-lawful.
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As an initial matter, the DACA repeal is certain to have a significant impact on small businesses. DACA recipients who have obtained work authorization are not only employed at thousands of small businesses, but they are entrepreneurs who start small businesses. Indeed, immigrants such as DACA beneficiaries are twice as likely to start a business as the average person,40 making them significant drivers of job creation and contributors to the country’s economic vitality. Repealing DACA, therefore, will cause a significant reduction in the country’s workforce as well as shutter small business entities whose owners require deferredaction status to stay in business. DHS, however, did not even mention these impacts, much less discuss “significant alternatives” to repealing DACA, as the RFA requires. See 5 U.S.C. § 604(a)(3). In short, DHS failed to make a “good-faith effort” to comply with the RFA’s requirements. See Associated Fisheries, 127 F.3d at 114. Accordingly, the DACA repeal violates the RFA.
CONCLUSION For the foregoing reasons, DHS’s decision to terminate DACA via the DHS Memorandum is unlawful, and will impair important interests of DACA beneficiaries as well as educational institutions, including NYU. Implementation of the DHS Memorandum should therefore be enjoined and the DACA program reinstated in full.
40 See Tom K. Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress (Oct. 18, 2017), available at https://www.americanimmigrationcouncil. org/research/value-added-immigrants-create-jobs-and-businesses-boost-wages-native-born-workers.
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Dated: December 22, 2017
OF COUNSEL:
Terrance Nolan General Counsel and Secretary New York University 70 Washington Square South, 11th floor New York, New York 10012

Respectfully submitted,
PROSKAUER ROSE LLP
By: /s/ Steven E. Obus Steven E. Obus Seth D. Fiur (pro hac vice) Tiffany M. Woo Melissa D. DiGrande (pro hac vice pending) Ashley Ferguson (pro hac vice) Shiloh A. Rainwater (pro hac vice) Eleven Times Square New York, New York 10036 (212) 969-3000 SObus@proskauer.com SFiur@proskauer.com TWoo@proskauer.com MDigrande@proskauer.com AFerguson@proskauer.com SRainwater@proskauer.com
Counsel for Amicus Curiae New York University

22

 
 Case 1:17-cv-05228-NGG-JO Document 168 Filed 12/22/17 Page 1 of 29 PageID #: 6804

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

MARTIN JONATHAN BATALLA VIDAL et al.,

Plaintiffs,

-against-

16-CV-4756 (NGG) (JO)

KIRSTJEN NIELSEN, Secretary, Department of Homeland Security, et al.,

Defendants.

STATE OF NEW YORK et al.,

-against-

Plaintiffs

17-CV-5228 (NGG) (JO)

DONALD TRUMP, President of the United States, et al.,

Defendants.

TRIAL BRIEF OF THE GOVERNMENT OF THE UNITED MEXICAN STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

HOWARD SOKOL HOLLAND & KNIGHT LLP 31 West 52nd Street, 12th Floor New York, NY 10019 Telephone: (212)513-3347 Email: howard.sokol@hklaw.com
Date of Service: December 22, 2017

LEON FRESCO HOLLAND & KNIGHT LLP 801 17th Street, NW, Suite 110 Washington, DC 20006 Telephone: (202)469-5129 Email: leon.fresco@hklaw.com Counsel for Amicus Curiae Government of the United Mexican States

Case 1:17-cv-05228-NGG-JO Document 168 Filed 12/22/17 Page 2 of 29 PageID #: 6805
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
ARGUMENT ...................................................................................................................................1
I. INTRODUCTION .....................................................................................................................1
II. THE RESCISSION OF DACA WOULD CAUSE IRREPARABLE HARM TO MEXICAN NATIONALS THAT WAS NOT CONSIDERED BY DEFENDANTS WHEN RESCINDING DACA..............................................................................................................2
A. Javier Alejandro Noris Guerrero .......................................................................................2
B. Cesar Adrian Vargas..........................................................................................................4
C. Julio Ramos .......................................................................................................................6
D. Defendants’ DACA Rescission Memo Irreparably Harms all DACA Recipients by Exposing them to the Risk of Imminent Removal Regardless of the Length of their Remaining DACA Approval Period..................................................................................7
II. THE PUBLIC INTEREST WEIGHS STRONGLY IN FAVOR OF GRANTING PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION INSOFAR AS DACA IS CRITICAL TO ACHIEVING CONGRESS’S INTENT IN ENACTING NAFTA AND MAINTAINING OPTIMAL FOREIGN RELATIONS BETWEEN MEXICO AND THE UNITED STATES....................................................................................................................9
A. Congress has Clearly Spoken and Expressed its Unambiguous Intent to Allow Mexican Nationals with the Exact Same Education and Skills as DACA Recipients to Live, Study, and Work in the United States ...............................................................................9
B. Defendants’ DACA Rescission Memo Harms the Public Interest by Generating Fear and Uncertainty Amongst DACA Recipients and their Families, both in the United States and Mexico, and by Straining Mexico’s Available Consular Resources..............13
C. Defendants’ DACA Rescission Memo Harms the Public Interest by Undermining the Credibility of U.S. Promises to Foreign Nationals Regarding Immigration which Incentivizes Undocumented Immigration and Unnecessarily Overwhelms all Available Mexican Immigration Enforcement Resources ...............................................................16
D. Defendants’ DACA Rescission Memo Harms the Public Interest by Undermining U.S. International Law Commitments and Thwarting the Positive Cross-Border Cultural Exchanges that were Previously Occurring Prior to the Termination of DACA ...........17
CONCLUSION ..............................................................................................................................20
CERTIFICATE OF SERVICE ......................................................................................................21
i

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TABLE OF AUTHORITIES

Page(s)

Cases

Hines v. Davidowitz, 312 U.S. 52 (1941).....................................................................................................................1

Matter of Vargas, 131 A.D.3d 4 (2015) ..................................................................................................................5

Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................12

Red Earth LLC v. United States, 657 F.3d 138 (2d Cir. 2011).......................................................................................................1

United States v. Brignoni-Ponce, 422 U.S. 873 (1975)...................................................................................................................8

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972).................................................................................................................12

Statutes

8 U.S.C. § 1101(a)(15)(H)(i)(b).....................................................................................................10

8 U.S.C. § 1101(a)(15)(H)(L) ........................................................................................................10

8 U.S.C. § 1182(a)(9)(B)(II) ..........................................................................................................11

8 U.S.C. § 1184(e) .........................................................................................................................10

Tex. Gov’t Code § 752.052 (2017) ..................................................................................................8

Tex. Gov’t Code § 752.053 (2017) ..................................................................................................8

Tex. Gov’t Code § 752.055 (2017) ..................................................................................................8

Tex. Gov’t Code § 752.056 (2017) ..................................................................................................8

Tex. Gov’t Code § 752.0565 (2017) ................................................................................................8

Regulations

8 C.F.R. § 214.2(f)(10) ..................................................................................................................10

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Foreign Authorities
Consulate General of Mexico in New York, Statement by the Consulate General of Mexico in New York regarding the impact of DACA´s rescission among the Mexican community in the United States, (Dec. 2017) https://consulmex2.sre.gob.mx/nuevayork/index.php/espanol/avisos-a-lacomunidad/1086-comunicado (last visited Dec. 22, 2017) .....................................................15
Government of Mexico, Here is What Your Consulate Does for You https://www.gob.mx/cms/uploads/attachment/file/211586/Here_is_what_you r_Consulate_does_for_you.pdf (last visited Dec. 22, 2017) ..................................................13
Inter-American Commission on Human Rights, Press Release: IACHR Expresses Deep Concern for the Decision to End the Deferred Action for Childhood Arrivals (DACA) and Other Legal Avenues for Migrants and Refugees in the United States, (Oct. 11, 2017) http://www.oas.org/en/iachr/media_center/PReleases/2017/155.asp (last visited Dec. 22, 2017) ......................................................................................................17
Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948, available at: http://www.refworld.org/docid/3ae6b3710.html (last visited Dec. 22, 2017) ......................................................................................................17
Mexican Embassy in Washington, Press Release Related to the announcement of the decision of rescinding DACA, (Sept. 5, 2017) https://embamex.sre.gob.mx/eua/index.php/en/press-releases/press-releases-
2017/1386-the-government-of-mexico-deeply-regrets-the-cancellation-of-thedeferred-action-for-childhood-arrivals-program-daca?platform=hootsuite (last visited Dec. 22, 2017 ...............................................................................................................14
North American Free Trade Agreement, 32 I.L.M. 289 (1993), Appendix 1603. D.1 to Annex 1603 .............................................................................................................10, 12
Press Release, 5th State of the Union Address: Mexico with Global Responsibility (Sept. 2, 2017) https://www.gob.mx/presidencia/articulos/5thstate-of-theunion-address-mexico-with-global-responsibility?idiom=en (last visited Dec. 22, 2017....................................................................................................................................13
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Art. 23(1), http://www.refworld.org/docid/3ae6b3aa0.html (last visited Dec. 22, 2017..........................18
The U.S.- Mexico Foundation’s Dreamers Without Borders (DWB) program, https://www.usmexicofound.org/programs/daca-dreamers-delegations-to-mexico/ (last visited Dec. 22, 2017........................................................................................................19
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Other Authorities
Julian Aguilar, Congressman raises questions after DACA recipients were detained at checkpoint, Texas Tribune (Sept. 13, 2017) https://www.texastribune.org/2017/09/13/us-rep-gonzalez-wants-answersafter-daca-recipients-were-detained-chec/ (last visited Dec. 22, 2017).....................................8
Rob Arthur, Latinos In Three Cities Are Reporting Fewer Crimes Since Trump Took Office, FiveThirtyEight (May 18, 2017) https://fivethirtyeight.com/features/latinos-report-fewer-crimes-in-three-citiesamid-fears-of-deportation/ (last visited Dec. 22, 2017)...........................................................17
Anna Maria Barry-Jester, The End Of DACA Will Ripple Through Families And Communities, Fivethirtyeight.com (Sept. 6, 2017) https://fivethirtyeight.com/features/the-end-of-daca-will-ripple-throughfamilies-and-communities/ (last visited Dec. 22, 2017) ..........................................................18
Randy Capps, Michael Fix, and Jie Zong, The Education and Work Profiles of the DACA Population, Migration Policy Institute (Aug. 2017) at p. 6. http://www.aacrao.org/docs/default-source/TrendTopic/Immigration/download.pdf?sfvrsn=0 (last visited Dec. 22, 2017) ....................................................................................................4, 9
FWD.US, Glimpses of DACA: In their Own Words, (Dec. 17, 2017) https://www.fwd.us/dacastories# (last visited Dec. 22, 2017)...................................................3
Suzanne Gamboa, 'Dreamers' Fear Trump Immigration Crackdown As DACA Hits 5th Anniversary, NNC News (Jun. 15, 2017) https://www.nbcnews.com/news/latino/dreamers-fear-trump-crackdown-dacahits-5th-anniversary-n772451 (last visited Dec. 22, 2017)........................................................3
Jonathan Inoa, He is an Executive, but His Future Depends Upon DACA, NY1 News (Mar. 8, 2017) http://www.ny1noticias.com/nyc/noticias/noticias/2017/03/8/es-un-altoejecutivo-pero-su-futuro-depende-de-daca- (last visited Dec. 22, 2017) ..................................3
Mallika Kallingal and Michelle Krupa, She's undocumented and in med school. Now what?, CNN (Mar. 16, 2017) http://www.cnn.com/2017/03/15/health/undocumented-medical-studentstrump-trnd/index.html (last visited Dec. 22, 2017)....................................................................7
Rebecca Klein, An Undocumented Teen Gains Asylum With The Help Of His Undocumented Lawyer, Huffington Post (July 22, 2017), https://www.huffingtonpost.com/entry/cesar-vargas-undocumented-lawyerclient_us_59727244e4b09e5f6ccf6cf6 (last visited Dec. 22, 2017) ..........................................5
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Case 1:17-cv-05228-NGG-JO Document 168 Filed 12/22/17 Page 6 of 29 PageID #: 6809
Reynaldo Leanos Jr., Halfway through med school, undocumented students worry Trump will derail their progress, Public Radio International (Dec. 27, 2016) https://www.pri.org/stories/2016-12-27/halfway-through-med-schoolundocumented-students-worry-trump-will-derail-their (last visited Dec. 22, 2017) ........................................................................................................6
Reynaldo Leanos Jr., In the age of Trump, fewer lenders want to provide this med student with student loans, Public Radio International (May 17, 2017) https://www.pri.org/stories/2017-05-17/age-trump-fewer-lenders-wantprovide-med-student-student-loans (last visited Dec. 22, 2017) ...............................................6
Jennifer Medina, A Defender of the Constitution, With No Legal Right to Live Here, New York Times (July 17, 2017), https://www.nytimes.com/2017/07/17/us/undocumented-immigrants-illegalcitizenship.html?mtrref=www.google.com (last visited Dec. 22, 2017) ...................................5
Mem. from Janet Napolitano, Sec’y of Homeland Security, to Alejandro Mayorkas, Dir., U.S. Citizenship and Immigration Servs., Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children, June 15, 2012……………...…11, 12
National Public Radio, Discrimination in America: Experiences and Views of Latinos, (Oct. 2017) https://www.npr.org/documents/2017/oct/discrimination-latinos-final.pdf (last visited Dec. 22, 2017) ......................................................................................................14
New York Times Editorial Board, American Dreamers, New York Times (Jan. 3, 2017) https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/julio-ramos (last visited Dec. 22, 2017) .....................................................6, 7
Maryalice Parks, Geneva Sands, and Serena Marshall, Homeland security does little to ease nervous DACA recipients, ABC News (Sept. 28, 2017). http://abcnews.go.com/US/homeland-security-ease-nervous-dacarecipients/story?id=50153287 (last visited Dec. 22, 2017) .....................................................16
Alicia Parlapiano and Karen Yourish, A Typical ‘Dreamer’ Lives in Los Angeles, Is From Mexico and Came to the U.S. at 6 Years Old, New York Times (Sept. 5, 2017) https://www.nytimes.com/interactive/2017/09/05/us/politics/whoare-the-dreamers.html (last visited Dec. 22, 2017)....................................................................2
Nicole Rodriguez, Trump Administration has Illegally Attempted to Deport DACA Recipients, Advocates Say, Newsweek (Dec. 2, 2017) http://www.newsweek.com/trump-administration-has-made-illegal-attemptsdeport-daca-recipients-724842 (last visited Dec. 22, 2017) ......................................................8
Liz Robins, An Immigrant’s Four-Year Fight to Become a Lawyer Ends in Celebrations, New York Times (Feb. 3, 2016), https://www.nytimes.com/2016/02/04/nyregion/immigrants-4-year-legalfight-to-become-a-lawyer-ends-in-celebration.htm (last visited Dec. 22, 2017).......................4
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Safe Passage Project, Cesar Vargas, Safe Passage Attorney of the Month (Sept. 6, 2017) https://www.safepassageproject.org/2017/09/cesar-vargas-safe-passage-attorney-of-the-month/
(last visited Dec. 22, 2017) .......................................................................................................5
ScienceVest website, http://www.sciencevest.com/ (last visited Dec. 22, 2017)............................3
Clare Ribando Seelke and Kristin Finklea, Cong. Research Serv., U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond, (Jun. 29, 2017) https://fas.org/sgp/crs/row/R41349.pdf ...............................................................................2, 16
Angilee Shah, Reynaldo Leanos Jr., et al., DACA recipients won’t go back into the shadows quietly, Public Radio International (Sep. 5, 2017) https://www.pri.org/stories/2017-0830/daca-recipients-won-t-go-back-shadows-quietly (last visited Dec. 22, 2017) .......................................................................................................7
U.S. Census Bureau,, 2015 American Community Surveys (ACS) https://www2.census.gov/programs-surveys/demo/tables/foreignborn/2014/cps2014/2014-year-of-entry-table2.17.xlsx (last visited Dec. 22, 2017) ..........................................................................................................................................1
U.S. Citizenship and Immigration Services, Data Set: Form I-821D Deferred Action for Childhood Arrivals, (Dec. 7, 2017) https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%2 0Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/dac a_performancedata_fy2017_qtr4.pdf (last visited Dec. 22, 2017) ............................................1
U.S. Citizenship and Immigration Services, DACA Terminations Related to Criminal and Gang Activity by Fiscal Year, (Dec. 7, 2017) https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and% 20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/D ACA_Terminations_Related_to_Criminal_and_Gang_Activity_by_Fiscal_Ye ar.pdf (last visited Dec. 22, 2017)..............................................................................................8
U.S. Citizenship and Immigration Services, NAFTA Professional Workers from Canada or Mexico, https://www.uscis.gov/archive/archive-news/naftaprofessional-workers-canada-or-mexico (last visited Dec. 22, 2017) .....................................10
U.S. Customs and Border Protection, Southwest Border Migration FY2018. https://www.cbp.gov/newsroom/stats/sw-border-migration (last visited Dec. 22, 2017) ..................................................................................................................................17
U.S. Dep’t of Homeland Security, U.S. Nonimmigrant Admissions, https://www.dhs.gov/sites/default/files/publications/YRBK%202015%20NI% 20Excel%20Supp%20Final_0.zip (last visited Dec. 22, 2017) ...............................................10
Will Weissert, Homeland Security chief lauds Texas 'sanctuary cities' ban, Associated Press (Dec. 14, 2017) http://www.chicagotribune.com/sns-bc-us-sanctuary-cities-texas-20171213-story.html (last visited Dec. 22, 2017)..................................8
vi

Case 1:17-cv-05228-NGG-JO Document 168 Filed 12/22/17 Page 8 of 29 PageID #: 6811 Daniel Wiessner, N.Y. court grants law license to undocumented immigrant, Reuters, (June 4, 2015), https://www.nytimes.com/2016/02/04/nyregion/immigrants-4-year-legalfight-to-become-a-lawyer-ends-in-celebration.htm (last visited Dec. 22, 2017).......................4
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ARGUMENT I. INTRODUCTION
The Government of the United Mexican States (“Mexico”) herein expresses significant
concern over the irreparable harm to its nationals, and the possible disruption that will occur to the
extensive diplomatic and law enforcement collaborative relationship between the United States
and Mexico, as a result of the rescission of Deferred Action for Childhood Arrivals (“DACA”).1
Mexico files the instant brief to underscore how the public interest and the U.S. Congress’s intent
is best served by granting Plaintiffs’ motions for preliminary injunction.2
As a sovereign and independent State, Mexico has a legitimate interest in promoting the
well-being of its nationals who are residing in the U.S.—with over 11 million Mexican nationals,
both documented and undocumented, currently living in the United States.3 Nearly 79 percent of
all DACA recipients—627,666 of the 798,980 individuals who have had initial DACA
applications approved—are Mexican nationals.4 Given these numbers, DACA´s rescission
disproportionately affects Mexican beneficiaries and Mexico is compelled to act on their behalf
within all its means. Mexico and the United States also engage in significant cooperation on issues
1 See Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (setting forth the requirement of demonstrating “irreparable harm absent injunctive relief” as a precondition to obtaining a preliminary injunction against government action). 2 See id. (establishing the requirement of demonstrating that “that the public’s interest weighs in favor of granting an injunction.”). 3 U.S. Census Bureau, 2015 American Community Surveys (ACS), https://www2.census.gov/programs-surveys/demo/tables/foreign-born/2014/cps2014/2014-yearof-entry-table2.17.xlsx (last visited Dec. 22, 2017); see also Hines v. Davidowitz, 312 U.S. 52, 64 (1941) (declaring that “[o]ne of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country.”). 4 See U.S. Citizenship and Immigration Services, Data Set: Form I-821D Deferred Action for Childhood Arrivals, (Dec. 7, 2017) https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigrati on%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2017_qtr4.pdf (last visited Dec. 22, 2017).
1

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of immigration, drug trafficking, human trafficking, and organized crime that will be adversely affected by DACA’s termination.5
Each nation, therefore, is strongly engaged in, and has a legitimate concern regarding, the policies of the other in connection with immigration enforcement. Mexico expressly and publicly acknowledges the sovereign right of every country to decide on the policies that should apply in their territory. It also, however, respectfully asserts its legitimate, substantial, and compelling interests to protect the rights of its nationals and to ensure that its diplomatic relations with the U.S. are not impacted by actions that may not comport with either U.S. law or international law. II. THE RESCISSION OF DACA WOULD CAUSE IRREPARABLE HARM TO
MEXICAN NATIONALS THAT WAS NOT CONSIDERED BY DEFENDANTS WHEN RESCINDING DACA Every DACA beneficiary has a compelling personal story and has become an important part of his/her community who is performing beneficial work for the U.S. while, at the same time, enhancing the development of commercial, economic, cultural, and scientific ties between Mexico and the United States. As the New York Times recently explained, “a typical ‘Dreamer’ lives in Los Angeles, is from Mexico and came to the U.S. at 6 years old.”6 This brief begins by highlighting the contributions of three DACA recipients to illustrate the type of irreparable harm that will occur, and that Defendants failed to consider, when rescinding DACA. A. Javier Alejandro Noris Guerrero Javier Alejandro Noris Guerrero is a Mexican national who came with his parents to the United States through the southwest border without lawful immigration status when he was only
5 Clare Ribando Seelke and Kristin Finklea, Cong. Research Serv., U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond, (Jun. 29, 2017) https://fas.org/sgp/crs/row/R41349.pdf 6 Alicia Parlapiano and Karen Yourish, A Typical ‘Dreamer’ Lives in Los Angeles, Is From Mexico and Came to the U.S. at 6 Years Old, New York Times (Sept. 5, 2017) https://www.nytimes.com/interactive/2017/09/05/us/politics/who-are-the-dreamers.html
2

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five years old.7 Prior to DACA, he was not able to legally work, and was exploited for below minimum wage.8 According to Javier “[w]hen I was working at a convenience store, I always had big aspirations, even though I wasn’t sure how they would ever come to fruition.”9
He had to pay his own studies, and did not receive any financial aid due to his undocumented status.10 After receiving DACA, Javier was able to receive financial aid and went to school at Cal State University, Northridge, where he studied economics and biotechnology.11
According to Javier, “the moment DACA was passed, it really put everything into perspective, and
I really made a conscious effort to focus on my career. So I ended up pursuing a career as a software engineer.”12 After working as a software engineer in Silicon Valley, Javier moved to Brooklyn,
New York, where he works in venture capital, running a venture fund called ScienceVest that invests in early-stage life science and frontier technology startups.13 These companies are working
on treatments for cancer and Alzheimer’s, as well as creating technologies such as artificial intelligence, robotics, and drones that could change these industries completely.14
As a CEO of an investment fund, the repeal of DACA does not only affect Javier, it also
affects the startups with which Javier works, as well as his ability to invest in them, and their ability
7 Jonathan Inoa, He is an Executive, but His Future Depends Upon DACA, NY1 News (Mar. 8, 2017), http://www.ny1noticias.com/nyc/noticias/noticias/2017/03/8/es-un-alto-ejecutivo-pero-sufuturo-depende-de-daca- (last visited Dec. 22, 2017) 8 Suzanne Gamboa, 'Dreamers' Fear Trump Immigration Crackdown As DACA Hits 5th Anniversary, NNC News (Jun. 15, 2017) https://www.nbcnews.com/news/latino/dreamers-feartrump-crackdown-daca-hits-5th-anniversary-n772451(last visited Dec. 22, 2017) 9 FWD.US, Glimpses of DACA: In their Own Words, (Dec. 17, 2017) https://www.fwd.us/dacastories# (last visited Dec. 22, 2017) 10 See Inoa, supra note 7. 11 See FWD.US, supra note 9. 12 Id. 13 Id. See also http://www.sciencevest.com/ (last visited Dec. 22, 2017) 14 See Inoa, supra note 7.
3

Case 1:17-cv-05228-NGG-JO Document 168 Filed 12/22/17 Page 12 of 29 PageID #: 6815
to continue to grow and employ Americans.15 Javier lives in fear and uncertainty as to what will
happen to him without DACA.16 If he loses his DACA status, may be deported and investors in
his company would not reap the fruits of their investments.17
Javier is one of tens of thousands of DACA recipients with STEM degrees who will be
forced back into the shadows, and whose human capital and potential will be squandered, if a
preliminary injunction is not granted.18
B. Cesar Adrian Vargas
Cesar Vargas is a Mexican national who came with his mother to the United States through
the southwest border without lawful immigration status when he was five years old.19 Cesar grew
up in Staten Island, New York and graduated from James Madison High School in Brooklyn.20 He
then attended St. Francis College in Brooklyn, where he received a Bachelor’s degree.21 After law
school, Mr. Vargas passed the New York State Bar Exam in 2011.22 He applied for admission to
15 See FWD.US, supra note 9. 16 See Inoa, supra note 7. 17 Id. 18 See Randy Capps, Michael fix, and Jie Zong, The Education and Work Profiles of the DACA Population, Migration Policy Institute (Aug. 2017) at p. 6. http://www.aacrao.org/docs/defaultsource/TrendTopic/Immigration/download.pdf?sfvrsn=0 (last visited Dec. 22, 2017). 19 Cesar Vargas and Dan Donovan, We didn’t think we agreed on undocumented immigration. We were wrong, Washington Post (Mar. 13, 2017), https://www.washingtonpost.com/posteverything/wp/2017/03/13/we-didnt-think-we-agreed-onundocumented-immigration-we-were-wrong/?utm_term=.8ddea50b22d4 (last visited Dec. 22, 2017. 20 Liz Robins, An Immigrant’s Four-Year Fight to Become a Lawyer Ends in Celebrations, New York Times (Feb. 3, 2016), https://www.nytimes.com/2016/02/04/nyregion/immigrants-4-yearlegal-fight-to-become-a-lawyer-ends-in-celebration.html (last visited Dec. 22, 2017). 21 Daniel Wiessner, N.Y. court grants law license to undocumented immigrant, Reuters (June 4, 2015), https://www.reuters.com/article/us-new-york-immigrant/n-y-court-grants-law-license-toundocumented-immigrant-idUSKBN0OK1YY20150604 (last visited Dec. 22, 2017). 22 See Robins, supra note 19.
4

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the bar in 2012, but was denied because of his undocumented status.23 His application was then referred to the Appellate Division of State Supreme Court. 24
In February 2013, Cesar was able to obtain lawful employment authorization through DACA.25 His law license was ultimately granted on the ground that concerns about his undocumented status had been “ameliorated by the implementation of the DACA policy and, as to Mr. Vargas individually, by DHS’s USCIS grant of his DACA application and the renewal thereof.”26 In his short time as an attorney, Cesar has already been able to help undocumented teens to obtain pro bono representation and, ultimately, relief from removal.27 His unique background as a DACA recipient has made it easier for his clients to share their difficult stories with him in the process of obtaining legal assistance.28
Termination of DACA will irreparably harm Cesar, his clients who might not be able to receive any other legal assistance, and the many other attorneys with DACA relief whose immigration status, livelihood, and client interests will suffer unless Plaintiffs’ motion for preliminary injunction is granted.29
23 Id. 24 Id. 25 Matter of Vargas, 131 A.D.3d 4, 10 N.Y.S.3d 579 (2015). 26 Id. at 15. 27 Rebecca Klein, An Undocumented Teen Gains Asylum With The Help Of His Undocumented Lawyer, Huffignton Post (July 22, 2017), https://www.huffingtonpost.com/entry/cesar-vargasundocumented-lawyer-client_us_59727244e4b09e5f6ccf6cf6. (last visited Dec. 22, 2017). 28 See Safe Passage Project, Cesar Vargas, Safe Passage Attorney of the Month (Sept. 6, 2017) available at https://www.safepassageproject.org/2017/09/cesar-vargas-safe-passage-attorney-ofthe-month/ (last visited Dec. 22, 2017). 29 See Jennifer Medina, A Defender of the Constitution, With No Legal Right to Live Here, New York Times (July 17, 2017) https://www.nytimes.com/2017/07/17/us/undocumented-immigrantsillegal-citizenship.html?mtrref=www.google.com (last visited Dec. 22, 2017).
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C. Julio Ramos Julio Ramos is a Mexican national who came to the U.S. with his family and grew up in south Texas without lawful immigration status.30 At the age of 12, his mother was diagnosed with stage 3 breast cancer, and this experience motivated him to pursue a career as a doctor.31 For several years, he worked as a middle school biology teacher in Brownsville, Texas.32 Julio applied to medical schools in 2014 and 2016, and was accepted, but was unable to matriculate due to his undocumented status.33 Finally, in 2016, Julio was admitted into both the Stritch School of Medicine at Loyola University in Chicago and the Icahn School of Medicine at Mount Sinai in New York City, two of the few medical schools in the nation that allow undocumented students with DACA relief to attend.34 Julio now attends the Icahn School of Medicine, which awarded him a combination of loans and scholarships to pay for his medical education.35 Like many DACA recipients, Julio’s unique background has allowed him to serve as a cultural bridge to improve relations between the United States and Mexico. As Julio describes it, “[d]ue to my experiences, I am empathetic to the obstacles people face in accessing healthcare,
30 New York Times Editorial Board, American Dreamers, New York Times (Jan. 3, 2017) https://www.nytimes.com/interactive/projects/storywall/american-dreamers/stories/julio-ramos (last visited Dec. 22, 2017). 31 Id. 32 Reynaldo Leanos Jr., In the age of Trump, fewer lenders want to provide this med student with student loans, Public Radio International (May 17, 2017) https://www.pri.org/stories/2017-0517/age-trump-fewer-lenders-want-provide-med-student-student-loans (last visited Dec. 22, 2017). 33 See New York Times Editorial Board, supra note 29. 34 See Leanos Jr., supra note 28; Reynaldo Leanos Jr., Halfway through med school, undocumented students worry Trump will derail their progress, Public Radio International (Dec. 27, 2016) https://www.pri.org/stories/2016-12-27/halfway-through-med-school-undocumented-studentsworry-trump-will-derail-their (last visited Dec. 22, 2017). 35 Id.
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and this fuels my goal of providing care to those that are uninsured. I believe I can transform communities through medicine, but only if DACA continues.”36
Defendants’ rescission of DACA will irreparably harm Julio Ramos. In addition to placing him at imminent risk of removal, if Julio loses his employment authorization, it will become incredibly difficult, if not impossible, for him pay back the student loans he was already given to attend medical school.37 In addition, if Julio is not able to have work authorization by the time medical school ends, it is unclear whether he would be allowed to join a residency program to complete his training. Julio’s situation is not unique. He is actually one of an estimated 70 DACA recipients currently studying at medical schools in the United States.38 The rescission of DACA would represent a significant loss of the educational resources that the United States has already expended to train these talented future physicians to serve the American public.
D. Defendants’ DACA Rescission Memo Irreparably Harms all DACA Recipients by Exposing them to the Risk of Imminent Removal Regardless of the Length of their Remaining DACA Approval Period
Even if a substantial number of DACA recipients may not officially lose their DACA benefits for several months or even longer, Defendants’ actions to terminate DACA have caused a de facto instantaneous termination of DACA’s protections for all of its beneficiaries. The protections offered by DACA have now become illusory in a world where the overall program has been terminated and an increasing number of DACA beneficiaries are seeing their benefits revoked without due process based solely upon arrests that might occur for any reason whatsoever,
36 See New York Times Editorial Board, supra note 29. 37 Angilee Shah, Reynaldo Leanos Jr., et al., DACA recipients won’t go back into the shadows quietly, Public Radio International (Sep. 5, 2017) https://www.pri.org/stories/2017-08-30/dacarecipients-won-t-go-back-shadows-quietly (last visited Dec. 22, 2017). 38 Mallika Kallingal and Michelle Krupa, She's undocumented and in med school. Now what?, CNN (Mar. 16, 2017) http://www.cnn.com/2017/03/15/health/undocumented-medical-studentstrump-trnd/index.html (last visited Dec. 22, 2017).
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including unlawful reasons such as racial profiling.39 States and localities are passing laws such
as Texas’s SB 4 law40 that promote the removal of individuals who are arrested by local law
enforcement for any reason. And Defendants are actively promoting and encouraging more states
and localities to pass laws such as SB 4.41 Defendants´ recent decisions and memoranda on
immigration enforcement indicate that all undocumented individuals are now a priority for
removal. With DACA’s rescission, the undocumented population has become a target for arrests
and likely removal. Mexico is therefore concerned that its nationals and individuals of Latino
appearance will experience an enhanced risk of state-sanctioned acts of bias, discrimination, and
detention that did not exist prior to DACA’s rescission. Arrests and detentions will likely arise
based on the mere appearance of the person that fits the typical profile of a DACA beneficiary42
who encounters police, constituting a clear form of discrimination. The Supreme Court has stated
that race, ethnic appearance, and language are not reliable indicators of alienage.43 Plaintiffs’
39 See U.S. Citizenship and Immigration Services, DACA Terminations Related to Criminal and Gang Activity by Fiscal Year, (Dec. 7, 2017) https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigrat ion%20Forms%20Data/All%20Form%20Types/DACA/DACA_Terminations_Related_to_Crimi nal_and_Gang_Activity_by_Fiscal_Year.pdf (last visited Dec. 22, 2017); see also Nicole Rodriguez, Trump Administration has Illegally Attempted to Deport DACA Recipients, Advocates Say, Newsweek (Dec. 2, 2017) http://www.newsweek.com/trump-administration-has-madeillegal-attempts-deport-daca-recipients-724842 (last visited Dec. 22, 2017). 40 See Tex. Gov’t Code §§ 752.051, 752.052, 752.053, 752.056, 752.0565, 772.0073 (2017). 41 Will Weissert, Homeland Security chief lauds Texas 'sanctuary cities' ban, Associated Press (Dec. 14, 2017) http://www.chicagotribune.com/sns-bc-us--sanctuary-cities-texas-20171213story.html (last visited Dec. 22, 2017). 42 Julian Aguilar, Congressman raises questions after DACA recipients were detained at checkpoint, Texas Tribune (Sept. 13, 2017) https://www.texastribune.org/2017/09/13/us-repgonzalez-wants-answers-after-daca-recipients-were-detained-chec/ (last visited Dec. 22, 2017). 43 See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975) (“Large numbers of nativeborn and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small portion of them are aliens”).
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motions for preliminary injunction should be granted to prevent the irreparable harm that will likely by caused by the increased racial profiling of current DACA recipients. III. THE PUBLIC INTEREST WEIGHS STRONGLY IN FAVOR OF GRANTING
PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION INSOFAR AS DACA IS CRITICAL TO ACHIEVING CONGRESS’S INTENT IN ENACTING NAFTA AND MAINTAINING OPTIMAL FOREIGN RELATIONS BETWEEN MEXICO AND THE UNITED STATES A. Congress has Clearly Spoken and Expressed its Unambiguous Intent to Allow
Mexican Nationals with the Exact Same Education and Skills as DACA Recipients to Live, Study, and Work in the United States As indicated above, many DACA recipients (including all of the individuals discussed in this brief) have received degrees from U.S. universities and are performing critical highly-skilled tasks as part of their employment.44 DACA has been enormously successful in encouraging what was once the most vulnerable group of undocumented immigrants to fully participate and express themselves within American society. A critical point that is often overlooked in the DACA discussion is that, prior to the creation of DACA, Congress had already clearly and explicitly given its approval to providing any and all qualified Mexican nationals the ability to study at U.S. universities and to obtain highly-skilled employment in the U.S. without any caps or limitations on the number of Mexican nationals studying or working in the United States. As an initial matter, Congress has explicitly stated in INA Section 101(a)(15)(F) that Mexican nationals who are accepted at U.S. colleges and universities can obtain student visas to attend these schools. Indeed, in FY 2015, 237,248 Mexican nationals were admitted into the U.S. on student visas, and 96,401 Mexican nationals were admitted into the U.S. on F-3 nonimmigrant
44 See Randy Capps, Michael fix, and Jie Zong, The Education and Work Profiles of the DACA Population, Migration Policy Institute (August 2017) at p. 6. http://www.aacrao.org/docs/defaultsource/TrendTopic/Immigration/download.pdf?sfvrsn=0
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status, which allows Mexican nationals to continue to reside in Mexico while commuting to the U.S. to attend school. 45
Moreover, after a Mexican national successfully graduates from a U.S. university (or even a university in Mexico), they are able to engage in highly skilled employment in the United States using several visa categories, including the H-1B visa, the L-1 visa, and the optional practical training component of the student visa.46 And in addition to these visas that are available to foreign nationals from all over the world, Mexican nationals are given an additional visa that allows them to work in the U.S. under what is known as the TN nonimmigrant classification, which was created following Congressional approval of the North American Free Trade Agreement (NAFTA) on December 8, 1993.47 There are no caps on the number of TN visas that can be issued,48 and Mexican nationals can work on TN visas in three year increments and bring their spouses and children with them as well.49 There are currently sixty-three permissible occupations for TN visas that are listed in Appendix 1603.D.1 to Annex 1603 of NAFTA.50 Consequently, for the large percentage of DACA recipients that are Mexican nationals, Congress has already clearly envisioned a scenario whereby those individuals could study, live, and work in the United States.
45 See U.S. Dep’t of Homeland Security, U.S. Nonimmigrant Admissions, https://www.dhs.gov/sites/default/files/publications/YRBK%202015%20NI%20Excel%20Supp %20Final_0.zip. 46 See 8 U.S.C. § 1101(a)(15)(H)(i)(b); 8 U.S.C. § 1101(a)(15)(L); and 8 C.F.R. § 214.2(f)(10) 47 INA Section 214(e); 8 U.S.C. § 1184(e); see also U.S. Citizenship and Immigration Services, NAFTA Professional Workers from Canada or Mexico, https://www.uscis.gov/archive/archivenews/nafta-professional-workers-canada-or-mexico 48 See id. (stating that “There is no annual limit on the number of TN admissions to the United States.”) 49 Id. 50 See North American Free Trade Agreement, 32 I.L.M. 289 (1993), Appendix 1603. D.1 to Annex 1603
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Defendants’ actions, however, seek to arbitrarily and capriciously target DACA beneficiaries for punishment based solely on the actions of their parents. As stated above, Mexican nationals who are accepted at any U.S. college or university can readily obtain student visas to attend school in the United States. A DACA recipient, however, is senselessly unable to fix their unauthorized status by obtaining a student visa to study at a U.S. university because the student visa statute explicitly requires foreign nationals to have “a residence in a foreign country which he has no intention of abandoning.”51 By definition, a DACA recipient cannot meet that statutory criteria because the DACA memo stated that recipients must have “continuously resided in the United States” since June 15, 2007.52 Therefore, even though the Congress placed no cap on the number of Mexican nationals who can obtain student visas to attend U.S. universities, DACA recipients are being punished and prevented from obtaining student visas solely because they were brought to live in the United States through no fault of their own at a very young age.
Similarly, any Mexican national with a college degree from either Mexico or the United States can work in the United States on a TN-visa in one of sixty-three skilled occupations. But again, a DACA recipient, cannot obtain a TN-visa because they will be deemed inadmissible under Section 212(a)(9)(B) of the Immigration and Nationality Act as an alien who “has been unlawfully present in the United States for one year or more.”53 By definition, any DACA recipient has to have been physically present in the United States on June 15, 2012 and have had no lawful status at the time (hence making the universe of individuals with DACA status almost entirely populated
51 See INA Section 101(a)(15)(F); 8 U.S.C. § 1101(a)(15)(F). 52 Mem. from Janet Napolitano, Sec’y of Homeland Security, to Alejandro Mayorkas, Dir., U.S. Citizenship and Immigration Servs., Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children, June 15, 2012 53 See INA Section 212(a)(9)(B)(II); 8 U.S.C. § 1182(a)(9)(B)(II).
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by people who are affected by what is known as the “10-year-bar” of inadmissibility).54 Therefore, the only way a DACA recipient could ever obtain a TN-visa is to return to Mexico for 10 years and then apply for a TN-visa after the 10 years have elapsed (meaning that the individual would have to voluntarily submit to a 10-year banishment to atone for the actions of their parents).55
The purpose for creating the TN visa as part of NAFTA was to “reflect[] the preferential trading relationship between the Parties.”56 NAFTA itself was designed to “strengthen the special bonds of friendship and cooperation,” between Mexico, the United States, and Canada.57 Similarly, the DACA program allows young and talented Mexican nationals to serve as spokespersons and ambassadors for mutual understanding between the U.S. and Mexico. Consequently, preventing DACA recipients from engaging in the exact conduct that Congress specifically authorized in the student visa, work visa, and TN visa statutes solely serves to unfairly penalize DACA recipients for the actions of their parents.
Even though Congress explicitly created programs for skilled Mexican nationals to be able to study at U.S. universities and work in the United States, Defendants’ actions are arbitrarily and capriciously precluding DACA recipients from fulfilling Congress’s intentions. This is contrary to the Supreme Court’s repeated pronouncement that “[V]isiting ... condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the ... child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual
54 See Mem. from Janet Napolitano, supra note 60. 55 The “10-year-bar” contained in Section 212(a)(9)(B)(II) of the INA is also another reason DACA recipients cannot obtain a student visa. 56 North American Free Trade Agreement, Article 1601, available at https://www.nafta-secalena.org/Home/Texts-of-the-Agreement/North-American-Free-TradeAgreement?mvid=1&secid=8fd98e3e-4495-43a8-ba47-4a6955d6b5db#A1601 57 North American Free Trade Agreement, Preamble, available at https://www.nafta-secalena.org/Home/Texts-of-the-Agreement/North-American-Free-TradeAgreement?mvid=1&secid=b5b817ee-c48a-4dda-b8d9-c4564e34ac4b
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responsibility or wrongdoing.”58 The rescission of DACA also violates the Fifth Amendment’s
equal protection clause because there is no rational basis for excluding DACA recipients from the immigration outcomes available to similarly situated Mexican nationals. And it is also a violation of DACA beneficiaries’ substantive due process rights to place their liberty at risk on the basis of their parents’ conduct. Therefore, to the extent that most DACA recipients are Mexican nationals and that many DACA recipients are simply seeking to engage in occupations that are already covered by the TN visa or other visa programs, the public interest favors granting Plaintiffs’
motions for preliminary injunction because it simply places Plaintiffs in the same position that Congress had already contemplated they would be in but for their parents’ actions.
B. Defendants’ DACA Rescission Memo Harms the Public Interest by Generating Fear and Uncertainty Amongst DACA Recipients and their Families, both in the United States and Mexico, and by Straining Mexico’s Available Consular Resources
The Government of Mexico has fifty consulates in the United States59 all charged with performing duties such as helping Mexican citizens living or traveling in the U.S. who need
assistance when dealing with U.S. laws and legal issues, or who need vital documents such as passports, identifications and birth certificates.60 Consular services include the following functions contained in Article 5 of the Vienna Convention: (a) protecting the interests of Mexican nationals; (b) furthering the development of commercial, economic, cultural and scientific relations between Mexico and the United States; (c) issuing passports and travel documents to Mexican nationals (d)
58 Plyler v. Doe, 457 U.S. 202, 220 (1982) (quoting Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)) 59 See Press Release, 5th State of the Union Address: Mexico with Global Responsibility (Sept. 2, 2017) https://www.gob.mx/presidencia/articulos/5thstate-of-the-union-address-mexico-withglobal-responsibility?idiom=en (last visited Dec. 22, 2017). 60See Government of Mexico, Here is What Your Consulate Does for You https://www.gob.mx/cms/uploads/attachment/file/211586/Here_is_what_your_Consulate_does_f or_you.pdf (last visited Dec. 22, 2017).
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assisting Mexican nationals; (e) acting as notary and civil registrar and in capacities of a similar
kind, and performing certain functions of an administrative nature; (f) safeguarding the interests
of Mexican minors and other persons lacking full capacity; and (g) representing or arranging
appropriate representation for Mexican nationals before state and local tribunals and other
authorities, for the purpose of obtaining, in accordance with the laws and regulations, provisional
measures for the preservation of the rights and interests of these nationals, where, because of
absence or any other reason, such nationals are unable at the proper time to assume the defense of
their rights and interests. Consular officials also strengthen relations with local authorities, as well
as business and community organizations in the region, and serve to promote Mexico as a country
of economic, touristic, gastronomic, scientific, academic, cultural and artistic interest.
Based on Mexico’s consultations with its consular officials stationed across the United
States and in New York, it is undeniable that Defendants’ DACA rescission memo is creating fear, panic, and uncertainty61 among Mexican nationals both nationwide and in New York regardless of
immigration status, as well as among Mexicans visiting the U.S. for both business and leisure travel.62 This widespread concern is causing a disproportionate share of the time and resources of
Mexican consular officials to be focused on addressing the immigration enforcement concerns of
61 See Mexican Embassy in Washington, Press Release Related to the announcement of the decision of rescinding DACA, (Sept. 5, 2017) https://embamex.sre.gob.mx/eua/index.php/en/press-releases/press-releases-2017/1386-thegovernment-of-mexico-deeply-regrets-the-cancellation-of-the-deferred-action-for-childhoodarrivals-program-daca?platform=hootsuite (last visited Dec. 22, 2017). 62 National Public Radio, Discrimination in America: Experiences and Views of Latinos, (Oct. 2017) “In contrast, the share of Mexicans who say they would work and live in the U.S. without authorization has decreased from 20% two years ago to 13% now. At the start of his presidential campaign in June 2015, Trump announced his plans to build a wall on the U.S.-Mexico border, and he has continued to push for stricter immigration policies since then.” https://www.npr.org/documents/2017/oct/discrimination-latinos-final.pdf http://www.latinodecisions.com/blog/2017/03/07/perceptions-of-anti-immigrant-policy-andhealth-outcomes/
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Mexican nationals as opposed to the focus in prior years on promoting commercial, economic, cultural, and scientific relations between Mexico and the United States.63 The Government of Mexico keeps statistics of the consular services it provides, including the number of travel and other documents issued to Mexican nationals and the number of people seeking assistance from the consulates. In addition, the Government of Mexico also operates the call center “Centro de Información y Asistencia a Mexicanos” (hereinafter CIAM) to inform Mexican nationals about the protection services provided by the Consulates along with other topics of interest concerning their rights in the United States.64 Beginning on September 5, 2017, the date of Defendants’ DACA rescission memo, CIAM has registered almost a 3000% increase in the number of calls from Mexican nationals per month when compared to past months.65 This increase in calls is caused, among other issues, by the fear and uncertainty that Mexican nationals with DACA status have of being apprehended and removed.
Because Mexico must expend significant consular resources to respond to the widespread fear and anxiety created by the rescission of DACA, the diplomatic relationship between Mexico and the U.S. is being improperly strained. In weighing the public interest factors as required under Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008), Mexico respectfully submits that the likely strain caused to Mexican-U.S. relations by the rescission of DACA outweighs any harm that Defendants would suffer if the preliminary injunction is granted. Granting a preliminary injunction would simply preserve the status quo that has been in place for years. The federal government would
63 See Id. 64. See Consulate General of Mexico in New York, Statement by the Consulate General of Mexico in New York regarding the impact of DACA´s rescission among the Mexican community in the United States, (Dec. 2017) https://consulmex2.sre.gob.mx/nuevayork/index.php/espanol/avisos-ala-comunidad/1086-comunicado (last visited Dec. 22, 2017). 65 See Id.
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maintain the ability to enforce federal immigration law and remove any DACA recipient that engages in a criminal act or otherwise violates the terms and conditions of DACA.
C. Defendants’ DACA Rescission Memo Harms the Public Interest by Undermining the Credibility of U.S. Promises to Foreign Nationals Regarding Immigration which Incentivizes Undocumented Immigration and Unnecessarily Overwhelms all Available Mexican Immigration Enforcement Resources
When nearly 800,000 young adults applied for relief under DACA, they did so based on the commitment given to them by the U.S. government that their personal information would not be used for immigration enforcement purposes.66 Now, the Trump Administration has stated that it cannot guarantee that DACA application information will not be used for immigration enforcement purposes.67 When the United States does not live up to its immigration commitments, this undermines the credibility of the entire U.S. legal immigration system and encourages foreign nationals to enter the United States without authorization and remain in the shadows for fear that disclosing their presence to immigration officials will only lead to imminent removal. As a result of the U.S.’s failure to live up to its immigration commitments, Mexico is compelled to use its immigration enforcement resources to manage transit flows of migrants who would otherwise have waited at home and attempted to immigrate legally68, at the same time more Mexican nationals could be removed after losing their deferred action. This undermines the public interest by making it more difficult to combat undocumented immigration than would otherwise have been the case had the DACA memo not been rescinded. Therefore, even though it may initially seem
66 See (Doc. 113-1) at pp. 28-33. 67 Maryalice Parks, Geneva Sands, and Serena Marshall, Homeland security does little to ease nervous DACA recipients, ABC News (Sept. 28, 2017). http://abcnews.go.com/US/homelandsecurity-ease-nervous-daca-recipients/story?id=50153287 (last visited Dec. 22, 2017). 68 See Seelke and Finklea, supra note 4.
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counterintuitive, it should actually come as no surprise that unauthorized immigration has
significantly increased since the date of Defendants’ DACA rescission announcement.69
D. Defendants’ DACA Rescission Memo Harms the Public Interest by Undermining U.S. International Law Commitments and Thwarting the Positive Cross-Border Cultural Exchanges that were Previously Occurring Prior to the Termination of DACA
The final area in which Defendants’ rescission of DACA has harmed the public interest
has been in the undermining of U.S. obligations under international law. On October 11, 2017, the
Inter-American Commission on Human Rights (IACHR) expressed its deep concern regarding the
termination of DACA based on the fact it will “jeopardize [DACA recipients’] ability in practice
to ensure equal access to economic and social rights—including education, labor protections, and
healthcare—and legal guarantees, such as access to the courts.”70 The specific rights that the
IACHR is most concerned about involve Articles II, XVII, and XXV of the American Declaration
of the Rights and Duties of Man,71 as immigrant communities are reporting far fewer crimes due
to fear that contact with police will lead to deportation.72
69 See U.S. Customs and Border Protection, Southwest Border Migration FY2018. https://www.cbp.gov/newsroom/stats/sw-border-migration (stating that “CBP has seen an uptick in individuals month-to-month apprehended while trying to enter the country illegally in between the established ports of entry . . . [with] the largest percentage increases com[ing] from family units and unaccompanied children who increased 45 percent and 26 percent respectively compared with the previous month.”) 70 Inter-American Commission on Human Rights, Press Release: IACHR Expresses Deep Concern for the Decision to End the Deferred Action for Childhood Arrivals (DACA) and Other Legal Avenues for Migrants and Refugees in the United States, (Oct. 11, 2017) http://www.oas.org/en/iachr/media_center/PReleases/2017/155.asp 71 Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948, available at: http://www.refworld.org/docid/3ae6b3710.html [accessed 22 December 2017] 72 Rob Arthur, Latinos In Three Cities Are Reporting Fewer Crimes Since Trump Took Office, FiveThirtyEight (May 18, 2017) https://fivethirtyeight.com/features/latinos-report-fewer-crimesin-three-cities-amid-fears-of-deportation/ (last visited Dec. 22, 2017).
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Moreover, the termination of DACA undermines U.S. commitments under Article 23 of the International Covenant on Civil and Political Rights (“ICCPR”), which states that the family “is entitled to protection by society and the State.” 73 DACA’s rescission threatens this principle as beneficiaries will be prevented from living with U.S. citizen immediate relatives. In many families, the DACA recipient is the main breadwinner and ending DACA causes entire families to suffer, including mixed-status families that contain U.S. citizens in the household.74
The ending of DACA is also in tension with Article 12 of the ICCPR, which declares that “no one shall be arbitrarily deprived of the right to enter his own country,” and Article 24 of the ICCPR which states that “[e]very child has the right to acquire a nationality.”75 Many DACA recipients pledge allegiance to the United States on a daily basis, are unable to recall any other country that they ever lived in, and are even unfamiliar with the language, culture, and institutions of their country of birth. Many of these individuals lack a safety net in their country of birth because their presence was not registered there prior to their departure. DACA allowed the most vulnerable group of undocumented immigrants to fully exercise various fundamental rights that they previously could not fully exercise (education, work, security, etc.). The cancellation of the
73 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Art. 23(1), available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 21 December 2017] (“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”) 74 Anna Maria Barry-Jester, The End Of DACA Will Ripple Through Families And Communities, Fivethirtyeight.com (Sept. 6, 2017) https://fivethirtyeight.com/features/the-end-of-daca-willripple-through-families-and-communities/ (last visited Dec. 22, 2017). (“Because of the parameters of who is allowed into the program, DACA participants often are in the early stages of their careers and are frequently breadwinners for families that can include young children as well as older parents and grandparents.”) 75 See supra note 73 at Art. 12(4), 24(3).
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program places beneficiaries in a situation that prevents them from fully enjoying these human rights. This regression of rights is a per se violation of their fundamental rights.
When the United States does not act as the moral leader of the world in terms of living up to the highest ideals and spirit of its international commitments, it undermines its moral authority to persuade other countries to live up to their commitments. Consequently, granting Plaintiffs’ motions for preliminary injunction would serve the public interest by enabling the United States to restore its moral clarity regarding its treatment of its most vulnerable noncitizen population.
Granting Plaintiffs’ motions for preliminary injunction would also enhance the public interest by enabling the Government of Mexico to promote cultural and educational ties with DACA recipients that enhance the relationship between Mexico and the United States. Mexico actively engages in substantial cultural programming both in the U.S. and Mexico to promote positive dialogue between Mexicans and Americans.76 The rescission of DACA will frustrate the efforts of the Mexican Government to re-encounter and link with the young Mexican diaspora and to contribute to their full development for the benefit of both Mexican and American societies given that DACA recipients will no longer be able to freely live and work in the United States. Restoring the DACA program will allow these young persons of Mexican heritage to serve as cultural ambassadors and to promote the values of diversity, tolerance, and cultural understanding throughout the United States as Americans begin to see successful people in all fields and occupations from Mexico and other Latin American countries.
76 See The U.S.- Mexico Foundation’s Dreamers Without Borders (DWB) program is the most prestigious binational educational and service program specially designed for young DACA dreamers https://www.usmexicofound.org/programs/daca-dreamers-delegations-to-mexico/
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CONCLUSION Due to irreparable harm that will be inflicted upon current DACA recipients and the possible disruption that might occur to the diplomatic relationship between the United States and Mexico if DACA is rescinded, the Government of Mexico respectfully asks the Court to grant Plaintiffs’ motions for preliminary injunction and enjoin the termination of DACA pending further proceedings.

Dated: December 22, 2017

Respectfully submitted,

/s/ Howard Sokol____________ HOWARD SOKOL HOLLAND & KNIGHT LLP 31 West 52nd Street, 12th Floor New York, NY 10019 Telephone: (212)513-3347 Email: howard.sokol@hklaw.com

/s/ Leon Fresco_____________ LEON FRESCO HOLLAND & KNIGHT LLP 801 17th Street, NW, Suite 110 Washington, DC 20006 Telephone: (202)469-5129 Email: leon.fresco@hklaw.com Counsel for Amicus Curiae Government of the United Mexican States

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CERTIFICATE OF SERVICE I hereby certify that, on December 22, 2017, I electronically filed a copy of the foregoing Brief Amici Curiae using the CM/ECF System for the United States District Court of Appeals for the Eastern District of New York, which will send notification of that filing to all counsel of record in this litigation.

Dated: December 22, 2017

/s/Howard Sokol Howard Sokol
Attorney of Record for Amicus Curiae the Government of the United Mexican States

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 Case 1:17-cv-05228-NGG-JO Document 170 Filed 12/22/17 Page 1 of 26 PageID #: 6858

Steven A. Zalesin Adeel A. Mangi Michael N. Fresco Zachary Kolodin PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2000 Facsimile: (212) 336-2222

Johnathan Smith Sirine Shebaya Juvaria Khan MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622

Attorneys for Amici Curiae 87 Religious Organizations

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

MARTIN JONATHAN BATALLA VIDAL, et al.,

Plaintiffs, v.

No. 16-cv-4756 (NGG) (JO)

ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security, et al.,

Defendants.

STATE OF NEW YORK, et al.,

Plaintiffs,

v.
DONALD TRUMP, in his official capacity as President of the United States, et al.,

No. 17-cv-5228 (NGG) (JO)

Defendants.

MEMORANDUM OF LAW FILED ON BEHALF OF 87 RELIGIOUS ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ MOTIONS
FOR PRELIMINARY INJUNCTIONS

Case 1:17-cv-05228-NGG-JO DoTcuAmBeLnEt 1O7F0COFiNleTdE1N2T/2S2/17 Page 2 of 26 PageID #: 6859 Page
INTERESTS OF AMICI ..................................................................................................................1 INTRODUCTION ...........................................................................................................................4 ARGUMENT ...................................................................................................................................5 I. RELIGIOUS ORGANIZATIONS SUPPORT DACA AS A JUST RESPONSE
TO A HUMANITARIAN CRISIS ......................................................................................6 II. TERMINATION OF DACA WILL CAUSE AMICI, THEIR
CONGREGATIONS, AND THEIR COMMUNITIES IRREPARABLE HARM AND POSES A GRAVE THREAT TO PUBLIC WELFARE ...........................................9 A. Direct Harm to Amici and their Congregants.........................................................10 B. Impairment of Amici’s Ability To Carry Out Their Missions ...............................14 C. As Sensitive Locations for Immigration Enforcement Purposes, Some
Amici Will be Called Upon to Provide Sanctuary While at the Same Time Risking Being Targeted for Immigration Raids.....................................................15 III. THIS COURT SHOULD ENJOIN THE TERMINATION MEMO IN FULL AND NATIONWIDE UNDER THE ADMINISTRATIVE PROCEDURES ACT .........19 CONCLUSION..............................................................................................................................20
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TABLE OF AUTHORITIES
Page(s)
Cases
First Step, Inc. v. City of New London, 247 F. Supp. 2d 135 (D. Conn. 2003)......................................................................................15
Harmon v. Thornburgh, 878 F.2d 484 ( D.C. Cir. 1989) ................................................................................................20
Immigration Assistance Project of Los Angeles Cty Fed’n of Labor (AFL-CIO) v. INS, 717 F. Supp. 1444 (W.D. Wash. 1989)....................................................................................20
Kalaw v. Ferro, 651 F. Supp. 1163 (W.D.N.Y. 1987) .......................................................................................13
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................19
Nat’l. Min. Ass’n. v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) .........................................................................................19, 20
New York v. Schweiker, 557 F. Supp. 354 (S.D.N.Y. 1983) ............................................................................................9
Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex. 1982) ..........................................................................................13
Pretty Girl, Inc. v. Pretty Girl Fashions, Inc., 778 F. Supp. 2d 261 (E.D.N.Y. 2011) .......................................................................................5
Residents & Families United to Save Our Adult Homes v. Zucker, No. 16-CV-1683 (NGG) (RER), 2017 U.S. Dist. LEXIS 127152 (E.D.N.Y. Aug. 9, 2017) .............................................................................................................................9
Step by Step, Inc. v. City of Ogdensburg, 176 F. Supp. 3d 112, 135 (N.D.N.Y. 2016).............................................................................14
Other Authorities
Alex Emmons, The Intercept, Targeting a Sanctuary: After ICE Stakes Out a Church Homeless Shelter, Charities Worry Immigrants Will Fear Getting Help, https://theintercept.com/2017/02/27/after-ice-stakes-out-a-churchhomeless-shelter-charities-worry-immigrants-will-fear-getting-help/ (Feb. 27, 2017) ........................................................................................................................................17
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Page(s)
Council on American-Islamic Relations, CAIR Condemns Trump’s Termination of DACA Program as ‘Pandering to Anti-Immigrant Extremists’, https://www.cair.com/press-center/press-releases/14582-cair-condemnstrump-s-termination-of-daca-program-as-pandering-to-anti-immigrantextremists.html (Sept. 5, 2017) ..................................................................................................7
Julie Carey, NBC Washington, ICE Agents Arrest Men Leaving Fairfax County Church Shelter, https://www.nbcwashington.com/news/local/ICE-AgentsArrest-Men-Leaving-Alexandria-Church-Shelter-413889013.html (Feb. 15, 2017) ........................................................................................................................................17
ABC-7 KVIA, Which places are considered ‘sensitive locations’?, http://www.kvia.com/crime/which-places-are-considered-sensitivelocations/338319025 (Feb. 16, 2017) ......................................................................................18
Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement to Field Office Directors, Special Agents in Charge, and Chief Counsel (Oct. 24, 2011), https://www.ice.gov/doclib/erooutreach/pdf/10029.2-policy.pdf..............................................................................................15
Odette Yousef, WBEZ 95.1 Chicago, Amid Deportation Push, Suburban Church Grapples with Loss, https://www.wbez.org/shows/wbez-news/amiddeportation-push-suburban-church-grapples-with-loss/3d269fc3-04e7-4604bae4-a376a37410c9 (Feb. 15, 2016)........................................................................................17
Qué Pasa Mi Gente, Arrestos de ICE cerca de escuela elemental de mayoría hispana, https://charlotte.quepasanoticias.com/noticias/ciudad/local/arrestosde-ice-cerca-de-escuela-elemental-de-mayoria-hispana (Feb. 9, 2017) ..................................18
Religious Action Center of Reform Judaism, Reform Jewish Movement Assails White House Targeting of Immigrant Youth, https://rac.org/reform-jewishmovement-assails-white-house-targeting-immigrant-youth (Sept. 5, 2017) .............................7
Sanctuary Movement, http://www.sanctuarynotdeportation.org/ ....................................................8
Tina Vasquez, Rewire, Have Trump’s Mass Deportations Begun? Immigration Arrests Reported Around the Country, https://rewire.news/article/2017/02/10/trumps-mass-deportations-beginimmigration-arrests-reported-around-country/ (Feb. 10, 2017)...............................................18
U.S. Dep’t of Homeland Security, Statement by Secretary Jeh C. Johnson on Southwest Border Security, https://www.dhs.gov/news/2016/02/02/statementsecretary-jeh-c-johnson-southwest-border-security (Feb. 2, 2016) .........................................16
U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests: Does ICE’s policy sensitive locations policy remain in effect?, https://www.ice.gov/ero/enforcement/sensitive-loc....................................................16
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United States Conference of Catholic Bishops, USCCB President, Vice President and Committee Chairmen Denounce Administration’s Decision to End DACA and Strongly Urge Congress to Find Legislative Solution, http://www.usccb.org/news/2017/17-157.cfm (Sept. 5, 2017) ..................................................7
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INTERESTS OF AMICI Led by the Muslim Bar Association of New York, amici are American religious or religiously-affiliated organizations who represent a wide array of faiths and denominations. Amici include congregations and houses of worship as well as professional, civil liberties, and immigrant rights groups who work with or represent faith communities (“Religious Organizations”). Amici have long supported Deferred Action for Childhood Arrivals (“DACA”) as a compassionate and appropriate response to the humanitarian crisis posed by the hundreds of thousands of undocumented people brought to this country as children, before they could make choices of their own. Amici believe that the arbitrary rescission of DACA will indelibly harm the vitality of their spiritual communities by forcing committed members of their congregations and organizations to leave the country or return to the shadows. Indeed, certain amici have committed to providing sanctuary to those targeted for deportation. Amici are identified here by name, with a fuller description of their identities and interests attached to this memorandum at Appendix A. Amici are: Albuquerque Insight Meditation Center; Albuquerque Monthly Meeting of the Religious Society of Friends (Quakers); The American Association of Jewish Lawyers and Jurists; American Friends Service Committee; Ansche Chesed, New York City; Arch Street United Methodist Church; Capital Area Muslim Bar Association; Catholic Charities Community Services of the Archdiocese of New York; Central Conference of American Rabbis; Central Pacific Conference of the United Church of Christ; Church Council of Greater Seattle; Church of Our Redeemer in Lexington, Massachusetts; Congregation B’nai Jeshurun (New York City); Congregation Beit Simchat Torah; Council of Churches of the City of New York; Council on American-Islamic Relations – Michigan Chapter; Council of American-Islamic Relations – New Jersey Chapter; Council of American-Islamic Relations – New York Chapter; Cuba Presbyterian
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Church (Presbyterian Church, USA), Cuba, New Mexico; Degrees of Change; DMV Sanctuary Congregation Network; Dominican Development Center; East End Temple (New York City); Emgage Foundation; Episcopal City Mission; Episcopal Dioceses of Massachusetts; Episcopal Diocese of New York; Episcopal Dioceses of Western Massachusetts; Episcopal Society of Christ Church/The Christ Church Cathedral, Cincinnati, Ohio; Faith Action Network; First Christian Church (Disciples of Christ), Santa Fe, New Mexico; First Congregational United Church of Christ (Albuquerque, New Mexico); First Presbyterian Church of Santa Fe, New Mexico; First Presbyterian Church of Taos, New Mexico; First Unitarian Congregational Society in Brooklyn; First United Presbyterian Church of Las Vegas, New Mexico; Global Justice Institute; Immanuel Presbyterian Church (Albuquerque, New Mexico); Interfaith Alliance of Iowa; Iowa Conference of the United Church of Christ; Islamic Society of Basking Ridge; Islamic Society of Central Jersey; Lab/Shul; Legal Advocacy Project of Unitarian Universalist FaithAction of New Jersey; Lutheran Social Services of New York (LSSNY); Maryknoll Office for Global Concerns; Metropolitan New York Synod of the Evangelical Lutheran Church in America; Muslim Advocates; Muslim Bar Association of New York; Muslim Public Affairs Council; Muslim Urban Professionals (Muppies); Muslims for Peace, Inc.; Muslims for Progressive Values; National Council of Jewish Women; NETWORK Lobby for Catholic Social Justice; New Jersey Interfaith Coalition; New Mexico Conference of Churches; New Mexico Faith Coalition for Immigrant Justice; New Sanctuary Coalition of New York; New Sanctuary Movement of Philadelphia; New York Board of Rabbis; New York Conference United Church of Christ; Pacific Northwest Conference of the United Church of Christ; Presbytery of New York City; Queens Federation of Churches; Religious Institute; Romemu; Santa Fe Monthly Meeting of the Religious Society of Friends (Quakers); Second Presbyterian Church, Albuquerque, New
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Case 1:17-cv-05228-NGG-JO Document 170 Filed 12/22/17 Page 8 of 26 PageID #: 6865 Mexico; Sikh Coalition; Sisterhood of Salaam Shalom; Society for the Advancement of Judaism; St. Andrew Presbyterian Church in Albuquerque, New Mexico; St. Luke’s Episcopal Church in Long Beach; St. Mark’s Episcopal Church (Albuquerque, New Mexico); St. Stephens’ Episcopal Church in Boston; T’ruah: The Rabbinic Call for Human Rights; Temple Israel of the City of New York; Temple Sinai (Washington, DC); Town and Village Synagogue, New York, New York; Trinity Church Wall Street; Union for Reform Judaism, including Reform Jewish Voice of New York State; Unitarian Universalist Mass Action Network; Visitation BVM Church in Philadelphia, Pennsylvania; West End Synagogue (New York City); Westminster Presbyterian Church of Santa Fe; and Women of Reform Judaism.
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INTRODUCTION Since DACA’s inception in 2012, American religious communities of many faiths have supported the program as a just and compassionate response to a moral and humanitarian crisis. The children and young adults eligible for and currently receiving the benefits of DACA status (often referred to as “Dreamers”) were, in most cases, brought to this country as children by their parents. They have lived most of their lives in the United States, typically with no memory of any other home. Only young people who have pursued education or served in our military, and have no significant criminal record, are eligible for DACA status. Yet they now face deportation to often dangerous and unfamiliar places, or a life in the undocumented shadows. Amici believe, on the basis of faith and morality, that these children and young adults must be protected. Amici therefore offer this brief in support of the plaintiffs’ motions for preliminary injunctions in order to address how, in their view, the Government’s proposed termination of DACA (the “Termination Memo”) would cause irreparable harm and constitute a severe detriment to the public. Amici have firsthand knowledge of the valuable contributions to faith and community made by DACA recipients and understand all too well the harm that the termination of DACA would cause. For example, ending DACA would put Nancy, an Associate Pastor at amicus St. Luke’s Episcopal Church in Long Beach, California, who came to the United States from Mexico at age seven, at risk of deportation. Amici detail the stories of Nancy and others like her in Section II(A) below to provide the Court with a sample of the lives that are at risk of being upended. Amici also know, because of their religious and charitable work in Latin America and other regions, the challenges and dangers these young people face if they are deported. Amici also have a direct stake in these issues beyond their religious concerns and the protection of their congregants. First, amici stand to lose the substantial benefits they currently
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enjoy as a result of the varied contributions that DACA recipients make to their congregations and institutions.
Second, if the Termination Memo is carried out and DACA recipients and DACAeligible individuals are forced into hiding, amici will suffer an impairment of their ability to carry out their core mission to provide spiritual guidance and general assistance to people of all backgrounds and faiths.
Third, many amici have and will continue to offer sanctuary to those facing deportation. Amici’s churches, mosques, and synagogues are ostensibly designated by U.S. Immigration and Customs Enforcement (“ICE”) as sensitive locations to be avoided by enforcement officials, but ICE has shown a growing willingness to target and exploit, rather than avoid, sensitive locations. Amici will be on the front line of this conflict if DACA is rescinded: honoring their convictions to protect DACA recipients will risk ICE raids on or around their houses of worship.
For the reasons set forth herein and in Plaintiffs’ and other amici’s briefs, amici urge the Court to grant the preliminary injunctions restraining the Termination Memo in its entirety, rather than allowing any aspect of the Termination Memo to go into effect. This is the appropriate remedy pursuant to the Administrative Procedures Act, as described in Section III below, and is necessary to prevent irreparable harm.
ARGUMENT Plaintiffs have filed motions asking the Court to enter a preliminary injunction suspending the Government’s planned termination of DACA. (See Dkt. 123 in Case No. 16-cv4756 and Dkt. 96 in Case No. 17-cv-5228). As set forth therein, to succeed on their applications, Plaintiffs must show, inter alia, that the Government’s proposed actions would cause irreparable harm and constitute a severe detriment to the public. See, e.g., Pretty Girl, Inc. v. Pretty Girl Fashions, Inc., 778 F. Supp. 2d 261, 264-65 (E.D.N.Y. 2011) (Garaufis, J.). Amici endorse the
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arguments set forth by Plaintiffs, and submit this brief to further illustrate the irreparable harm

that implementation of the Termination Memo would cause, and to set forth the parameters of

the appropriate relief this Court should grant.

I.

RELIGIOUS ORGANIZATIONS SUPPORT DACA AS A JUST

RESPONSE TO A HUMANITARIAN CRISIS

Amici object to the Government’s arbitrary and ill-reasoned decision to rescind DACA on

moral, spiritual, and religious grounds. Although they represent different faiths and

denominations, amici are in unequivocal agreement that DACA is a force for good in our society

that should be protected. As amicus Roman Catholic Archdiocese of New York explains,

“DACA is an important first step to acknowledging and growing the human and social contributions and needs of young immigrants and of our own communities.”1 Those who are

eligible for DACA or who already benefit from it “were brought to the United States” by their

parents, “now have established roots, have built families, have contributed to their communities

of faith, work, and family,” and their “energy, spirit, life, and heart are part of this nation, which

can only benefit from their continued participation.”

For many amici, these convictions are deeply rooted in their faith and moral principles.

Temple Sinai of Washington D.C., for example, believes that “as a Jewish institution, Biblical

texts and our Jewish history inform our position on modern day immigration policy. Leviticus

19 explicitly says, ‘When a stranger sojourns with you in your land, you shall do him no

wrong.’” St. Luke’s Cathedral in Long Beach, California, similarly states that “for us, this is a

biblical rather than a political issue.” And as the Catholic mission Maryknoll attests,

“recognizing the hardships and struggles of immigrant families, and the tremendous economic

1 Quotes from amici or individual congregants herein are drawn from interviews conducted by counsel to provide the Court with a fuller understanding of how DACA has impacted American religious communities.
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and social contributions Dreamers make to the United States, we feel it is unethical to send Dreamers back to countries they hardly know, as well as a senseless loss to our nation.”
For others still, supporting DACA is part of their social justice mission. Christ Church Cathedral in Cincinnati has, in light of the Government’s immigration policy priorities, “focused its social justice concerns on matters of immigration and the impact that deportations or the repeal of DACA will have on God’s children.”
Amici and groups like them have, accordingly, objected vocally to the arbitrary repeal of the DACA program. On September 5, 2017, when the Government announced its decision to terminate DACA, countless religious groups and leaders released statements of condemnation. The United States Conference of Catholic Bishops publicly called the decision “reprehensible,” “unacceptable,” and “a heartbreaking moment in our history that shows the absence of mercy and good will.”2 The Council on American-Islamic Relations described the move as a “heartless action [that] will only serve to create fear and anxiety for the Dreamers and their loved ones, and will force them back to living in the shadows, rendering them unable to contribute to our nation’s economy.”3 And amici Union for Reform Judaism and Central Conference of American Rabbis declared it “morally misguided and poor public policy,” noting that “Judaism demands that we welcome the stranger and compels us to work for a just immigration system.”4
2 United States Conference of Catholic Bishops, USCCB President, Vice President and Committee Chairmen Denounce Administration’s Decision to End DACA and Strongly Urge Congress to Find Legislative Solution, http://www.usccb.org/news/2017/17-157.cfm (Sept. 5, 2017). 3 Council on American-Islamic Relations, CAIR Condemns Trump’s Termination of DACA Program as ‘Pandering to Anti-Immigrant Extremists’, https://www.cair.com/press-center/press-releases/14582-cair-condemns-trump-stermination-of-daca-program-as-pandering-to-anti-immigrant-extremists.html (Sept. 5, 2017). 4 Religious Action Center of Reform Judaism, Reform Jewish Movement Assails White House Targeting of Immigrant Youth, https://rac.org/reform-jewish-movement-assails-white-house-targeting-immigrant-youth (Sept. 5, 2017).
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Amici agree wholeheartedly with these statements. Rev. Robin Hynicka of amicus Arch Street United Methodist Church (“UMC”) in Philadelphia, for example, describes the “mythology surrounding why people migrate” as a campaign to “criminalize immigration” and to paint all immigrants as “bad,” when in fact the “the real reasons for these migrations are not listened to, considered, or understood.” He explains: “From a faith perspective, we take a baptismal vow that states we will resist evil, injustice, and oppression in any form in which it presents itself. The current immigration system and the move to end DACA create unjust circumstances, made manifest in human suffering. The attempt to crack down on Dreamers is a serious, cynical, evil action that has nothing to do with safety or justice. We have a theological and moral obligation to oppose these forces.”
Amici include entities that have taken active steps to protect Dreamers. A nation-wide, interfaith network of communities and congregations known as the New Sanctuary Movement, of which many amici are a part, have pledged to stand in solidarity with immigrants facing deportation.5 These groups provide preparedness training and legal counseling and referrals; accompany individuals to immigration hearings; run awareness programs and panel discussions; and conduct advocacy aimed at supporting immigrant communities through the lens of faith. Amicus New Mexico Faith Coalition for Immigrant Justice, for example, provides these services “in order to create better immigration laws and a more just system that supports the well-being of all,” and employs two DACA recipients in their three-person office. Similarly, amicus New Sanctuary Movement of Philadelphia is a network of diverse ministries that participate in trainings, workshops, campaigns and events, and accompany families facing deportation. They believe that the Government’s actions “violate the fundamental teachings of the Judeo-Christian traditions—to welcome the stranger and love your neighbor as yourself.” And amicus New
5 See Sanctuary Movement, http://www.sanctuarynotdeportation.org/.
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Sanctuary Coalition of NYC is an interfaith network working “to reform immigration

enforcement practices and policies, both locally and nationally, with a special focus on

preserving family unity.” As explained below, many amici and congregations like them have

offered themselves as places of sanctuary, providing shelter to those targeted for deportation

actions.

Amici thus oppose with deep conviction the Government’s arbitrary decision to terminate

DACA. As institutions of faith with a special interest in servicing vulnerable immigrant

populations, amici have direct knowledge of the harm that the Government’s actions will cause

to them and the people with whom they live, work, and worship.

II.

TERMINATION OF DACA WILL CAUSE AMICI, THEIR

CONGREGATIONS, AND THEIR COMMUNITIES IRREPARABLE

HARM AND POSES A GRAVE THREAT TO PUBLIC WELFARE

The early and arbitrary termination of DACA will not only imperil Plaintiffs, it will

directly harm amici and their congregants, clergy members, staff, clients, and communities.6 In

the words of amicus Church Council of Greater Seattle, “DACA-recipients are our brothers and

sisters, relatives, service-providers, congregational members, initiators of small business, and

protectors of our communities and nation,” and the Government’s actions would “deprive

hopeful and patriotic men and women of the opportunity to exercise their hopes and dreams, to

the detriment of the common good.” Like our society at large, faith communities, according to

the Albuquerque Monthly Meeting of the Religious Society of Friends (Quakers), “stand to lose

6 Ordinarily, a party seeking a preliminary injunction must show that it—not a third party— will directly suffer harm if the injunction is not granted. See Residents & Families United to Save Our Adult Homes v. Zucker, No. 16-CV1683 (NGG) (RER), 2017 U.S. Dist. LEXIS 127152, at *4-6 (E.D.N.Y. Aug. 9, 2017) (denying motion for preliminary injunction in part because plaintiff only alleged harm to non-parties). With regard to the States’ case, however, harm to amici equates to harm to the Plaintiffs who, as parens patriae, are “the protectors of the health and welfare of [their] citizens” and who therefore sue on amici’s behalf. See New York v. Schweiker, 557 F. Supp. 354, 359 (S.D.N.Y. 1983) (granting State of New York’s motion for preliminary injunction in part because of harm posed to New York residents). In the Batalla Vidal Plaintiffs’ case, harm to amici is relevant to whether an injunction is in the public interest.
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the tremendous investment made over many years to bring DACA recipients into adulthood with skills and multicultural perspectives that are sorely needed by the larger community and the nation.”
The Government’s planned actions would cause harm on various levels. First, DACA recipients are vital members of amici’s congregations and workforces whose loss of status will not only disrupt their lives, but harm amici who benefit from their participation. Second, termination of the DACA program will impair the ability of amici and other religiously-affiliated organizations to carry out their missions to help people of all backgrounds and faiths. Third, as institutions of faith and sensitive locations for immigration enforcement purposes, many amici face the grim prospect that following their spiritual calling to provide sanctuary for targeted Dreamers will result in the religious entities themselves being targeted by immigration enforcement authorities, a concern that would increase dramatically with the termination of DACA.
A. Direct Harm to Amici and their Congregants To illustrate the irreparable harm at issue on this motion, amici provide the Court with the following examples of individual DACA recipients brought to this country as children who have enriched their communities, organizations and congregations. Nancy.7 Nancy, Associate Rector at amicus St. Luke’s Episcopal Church in Long Beach, California, came to the United States from Mexico at age seven. Like many Dreamers, Nancy did not know she was undocumented until her junior year of high school, when she applied to college and learned what a social security number was—and that she did not have one. Nancy describes her life after learning her immigration status as “in the shadows”; she could not get a
7 The last names of the individual DACA recipients discussed herein have been withheld to protect their privacy.
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driver’s license, and could not drive a car for fear of getting pulled over and risking deportation. For a teenager in Los Angeles, this was no idle fear.
Nonetheless, Nancy was active in her community. The Episcopal Church served as an extended family during her childhood, and by the time she turned 17 Nancy led the largest youth group in the Episcopal Diocese of Los Angeles. So great was her dedication that the Church paid for her tuition to college and seminary school, where she obtained a Master’s of Divinity degree. After obtaining DACA status, Nancy was able to fulfill her dream of becoming an ordained Episcopal minister. Today, Nancy is the associate rector at amicus St. Luke’s Episcopal Church, and the Diocese of Los Angeles’s first Latina leader to have grown up in a Spanish-speaking Episcopal Church and gone on to pursue ordination. At St. Luke’s, she is actively involved in immigrants’ rights activism and education initiatives.
For Nancy, the Government’s announcement on September 5, 2017 was “a moment of complete fear and hopelessness.” She and others like her have “made a life here, trusted the system and tried to do things the right way,” but now “run the risk that we will be hunted down and sent to a country that we do not know.”
Rafael. Brought to Los Angeles at three years old, Rafael, an office assistant with amicus New Mexico Faith Coalition for Immigrant Justice, was born in Guanajuato, Mexico. Rafael’s parents, having risked everything to bring him to the United States, sought to instill in him the values of hard work and education. They succeeded. Rafael completed a Bachelor’s Degree with a double major in History and Chicano Studies from California State University Dominguez Hills while working full time to pay his tuition and support himself. After obtaining DACA status, Rafael went on to obtain a Master’s Degree in American Studies at the University of New Mexico, where he is now a Ph.D. candidate and an instructor.
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Rafael’s parents also instilled in him the values of Catholicism. He believes that faithbased organizations “fill the gaps of social justice and service that many times nation-states do not offer.” As such, he works for amicus New Mexico Faith Coalition for Immigrant Justice as an office assistant. Rafael is proud to contribute to their work, which he sees as fulfilling community needs and a natural expression of his Catholic faith.
For Rafael, the end of DACA represents drastic and dangerous change. It spells the end of access to the work that he loves and a halt to his career after graduation. Moreover, it means “going back to living in the reality of survival mode,” forever uncertain of his place and permanence in his own home, and without opportunity to flourish and grow.
Andrea. Andrea is a legal assistant at amicus American Friends Service Committee. Andrea was born and baptized in Ecuador, but brought to New Jersey by her parents when she was a year and a half old. Andrea grew up in the Catholic Church. She went to Sunday school, took First Communion, and received Confirmation at her church in the Newark area, where she continues to volunteer in youth groups and for fundraising activities.
Andrea’s parents, like many parents of Dreamers, prioritized her education. Knowing she could not obtain financial aid, Andrea’s parents, both union members, carefully saved. After Andrea earned a paralegal degree from community college, her parents put her through Rutgers University’s undergraduate program. Nonetheless, until DACA, Andrea’s life was one of fear and constraint. She kept her undocumented status secret, and had to refrain from the normal dayto-day activities and jobs that her friends freely engaged in.
Andrea graduated from Rutgers summa cum laude. After she obtained DACA status, she was hired as a paralegal at a law firm, and was proud to have a job and a salary. Andrea’s dream is to go to law school in the United States. For her, the end of DACA puts her dream to a halt
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and threatens to send her to Ecuador, a place she has never set foot since she was an infant. In the face of this peril, Andrea maintains, “I love this country and I can’t imagine living elsewhere.”
*** The harm that these individuals would suffer as a result of their loss of DACA status is readily apparent. See Nunez v. Boldin, 537 F. Supp. 578, 587 (S.D. Tex. 1982) (“Deportation to a country where one’s life would be threatened obviously would result in irreparable injury.”); Kalaw v. Ferro, 651 F. Supp. 1163, 1167 (W.D.N.Y. 1987) (enjoining deportation proceeding and finding irreparable harm because “petitioner’s deportation would make her ineligible for any subsequent application for legalization”). Amici would be harmed as well; not only do people like Nancy, Rafael and Andrea contribute richly to religious and faith-based organizations through their own individual efforts, they serve as mentors and inspire others to give back to institutions from which they have benefitted. If the Termination Memo goes into effect, nearly 800,000 Dreamers—many with stories similar to the three detailed above—will be forced out of the country or into hiding. Amici will suffer incalculable harm if they are deprived of the contributions and talents of these young congregants and community members. Moreover, as amici know from their work in other parts of the world, Dreamers deported would face tremendous challenges and even physical danger. For example, Gerry Lee and others from amicus Maryknoll Office for Global Concerns have lived and worked with impoverished families in Mexico, El Salvador, Guatemala, and other countries to which DACA recipients face deportation. In Haiti, for example, “Maryknoll Sisters have witnessed the bare struggle for post-disaster survival in the massive slums of Cite Soleil, where they help residents subsist from gardens grown in discarded tires on turf fought over by rival gangs.” In El
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Salvador, a Maryknoll Lay Missioner witnessed “the anger and pain that pervades communities preyed upon by powerful gangs, where immediate survival forces youth to face grim choices between lives of drugs and guns—or escape.” In Guatemala, a Maryknoll Father reports on the “rising rates of femicide” and sums up what motivates millions of rural migrants in a single word: “desperation.” And along the U.S.-Mexico border, Maryknoll Missioners hear daily the “stories of desperation from the countries to which many Dreamers might be returned,” namely, that “poverty, starvation, extortion, sexual assault, gang violence, and political oppression are among the conditions cited as triggers to leave.” In one such encounter in Nogales, Sonora, “a man travelling north with his son from Honduras merely pointed south and said, “There is no life there anymore.” Children raised in America knowing no other country should not have to face deportation into such conditions.
B. Impairment of Amici’s Ability To Carry Out Their Missions It goes without saying that religious and faith-affiliated organizations such as amici play a vital role in society. Countless lives have been uplifted and enriched by the spiritual guidance as well as the material and legal assistance these institutions provide. Immigrants and their families—including children brought to this country at a young age—are among the groups that have benefitted most from the support furnished by amici and similar organizations. By aiding such vulnerable individuals, faith-based organizations including amici have helped to make their entire communities more prosperous, united and civically engaged than they otherwise would be. Implementation of the Termination Memo would undermine these efforts by making it virtually impossible for amici to continue their outreach to Dreamers and their families, causing amici irreparable harm. See Step by Step, Inc. v. City of Ogdensburg, 176 F. Supp. 3d 112, 135 (N.D.N.Y. 2016) (finding irreparable harm to not-for-profit provider of mental health support services because defendant city’s denial of zoning approval of housing for the mentally ill
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deprived plaintiff of its ability to pursue its mission); First Step, Inc. v. City of New London, 247 F. Supp. 2d 135, 156-57 (D. Conn. 2003) (finding irreparable harm to not-for-profit group dedicated to assisting individuals with disabilities because “[b]y hindering First Step’s attempts to relocate to a building that is handicapped accessible and that would better accommodate the programs First Step sought to offer, the defendants are preventing First Step from serving some clients and diminishing the quality and variety of First Step’s programs, undermining First Step’s purpose of ‘educating and assisting individuals with disabilities to achieve independence and integrate into the larger community,’ thus denying it “the ability to pursue its mission”).
Amici cannot reach people in need if those people are hiding in the shadows or have been deported. If the Termination Memo is implemented, amici and similarly-situated organizations will lose their ability carry out their core mission to assist those in the greatest need of help. This will result in the needless suffering not only of at-risk individuals, but of their communities as a whole.
C. As Sensitive Locations for Immigration Enforcement Purposes, Some Amici Will be Called Upon to Provide Sanctuary While at the Same Time Risking Being Targeted for Immigration Raids
Finally, religiously-affiliated organizations like amici occupy a unique position in matters of immigration enforcement, particularly with respect to DACA. Pursuant to an October 2011 memorandum by then-ICE Director John Morton, ICE is not to engage in immigration enforcement actions such as arrests, interviews, searches, or surveillance at churches, synagogues, mosques, or other houses of worship, unless exigent circumstances or other law enforcement purposes exist, or if prior approval is obtained (the “ICE sensitive locations policy”).8 In 2016, while the prior administration was still in office, then-Secretary of Homeland
8 Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement to Field Office Directors, Special Agents in Charge, and Chief Counsel (Oct. 24, 2011), https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-
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Security Jeh C. Johnson publicly reiterated that “when enforcing the immigration laws, our personnel will not, except in emergency circumstances, apprehend an individual at a place of worship, a school, a hospital or doctor’s office or other sensitive location.”9 The ICE sensitive locations policy remains in effect today, at least as an official matter.10
The ICE sensitive locations policy recognizes that houses of worship are sacred spaces of sanctuary and peace, where community members can go and be without fear of harassment or arrest. Many amici and others like them proudly fulfill that role and have pledged to offer their churches, synagogues, and mosques as sanctuaries to those at risk of deportation. Temple Sinai DC, Christ Church Cathedral in Cincinnati, St. Luke’s in Long Beach, Arch Street UMC in Philadelphia, Albuquerque Friends Meeting, the many members of amici New Sanctuary Movement of Philadelphia, New Mexico Faith Coalition for Immigrant Justice, and New Sanctuary NYC, and others have publicly declared their status as sanctuary congregations. These organizations maintain dedicated, furnished space for visitors who need protection, and rely on their congregants for support in doing so.
In each case, the decision to become a sanctuary congregation is made after careful discussion among congregations and communities, and reflects broad religious consensus on this issue. The Albuquerque Friends Meeting, for example, when called upon to respond to an urgent need for sanctuary by a community member, convened their members and attenders. “Through a process of deep discernment together—and in commitment to our Quaker values of Equality and Community—we were led to a profound sense of Spiritual Unity, meaning we were ‘One in the
policy.pdf. The sensitive locations policy puts the same restrictions on raids at schools, hospitals, and other public settings. 9 U.S. Dep’t of Homeland Security, Statement by Secretary Jeh C. Johnson on Southwest Border Security, https://www.dhs.gov/news/2016/02/02/statement-secretary-jeh-c-johnson-southwest-border-security (Feb. 2, 2016). 10 See U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests: Does ICE’s policy sensitive locations policy remain in effect?, https://www.ice.gov/ero/enforcement/sensitive-loc.
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Spirit,’” and the Meeting collectively committed to providing sanctuary. Many amici reported that these decisions, while weighty, were not difficult to make. When Arch Street UMC was called upon to house a man in danger of immigration detention, “the conversation among the congregation wasn’t ‘will we do this,’ but how?” They provided sanctuary to the man in question for 11 months.
Under the current administration, however, the parameters and application of the ICE sensitive locations policy is increasingly in doubt. ICE has already begun to target areas adjacent to places of worship for enforcement actions, to worrisome effect. For example, earlier this year on a freezing cold morning in Alexandria, Virginia, a dozen ICE agents surrounded a group of Latino men as they emerged from a church hypothermia shelter where they had spent the night. Six men were arrested and taken away in vans.11 After church leaders demanded and were refused the names and locations of the men taken, Governor Terry McAuliffe and Senator Tim Kaine both sent letters to ICE inquiring about the raid and their enforcement policies near churches. ICE responded to neither.12 In suburban Illinois, ICE agents tricked a worshiper into leaving a church service—by texting him from his cousin’s cell phone about a fictional car accident—and arrested him at a neighboring McDonald’s. They arrived in unmarked cars and wore vests that said “Police.” A retired ICE supervisor, interviewed after-the-fact, praised this strategy as “actually . . . quite creative.”13
11 Julie Carey, NBC Washington, ICE Agents Arrest Men Leaving Fairfax County Church Shelter, https://www.nbcwashington.com/news/local/ICE-Agents-Arrest-Men-Leaving-Alexandria-Church-Shelter413889013.html (Feb. 15, 2017). 12 Alex Emmons, The Intercept, Targeting a Sanctuary: After ICE Stakes Out a Church Homeless Shelter, Charities Worry Immigrants Will Fear Getting Help, https://theintercept.com/2017/02/27/after-ice-stakes-out-a-churchhomeless-shelter-charities-worry-immigrants-will-fear-getting-help/ (Feb. 27, 2017). 13 Odette Yousef, WBEZ 95.1 Chicago, Amid Deportation Push, Suburban Church Grapples with Loss, https://www.wbez.org/shows/wbez-news/amid-deportation-push-suburban-church-grapples-with-loss/3d269fc304e7-4604-bae4-a376a37410c9 (Feb. 15, 2016).
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ICE has shown a propensity to target sensitive or controversial locations other than religious institutions as well. In Charlotte, North Carolina, ICE conducted raids and arrests within two miles of a predominantly Latino elementary school.14 Students witnessed the arrests as they passed by in school busses.15 In El Paso, Texas, a Latina woman was taken into custody by ICE agents dressed in plain clothes after she left a courtroom in a county courthouse. The criminal complaint filed against her indicates that ICE knew she was living at a domestic and sexual abuse resource center.16
These incidents indicate that instead of abiding by the spirit of the sensitive locations memorandum—that is, to avoid immigration enforcement at sensitive locations—ICE is using houses of worship and other locations as lures for easy, unsuspected surveillance and arrest. This puts amici in the untenable and unacceptable position of at once heeding their faith-based calling to provide sanctuary while at the same time attracting the attention of those who would do harm to the people amici seek to protect. This crisis of conscience has sewn fear and anxiety among amici and their congregants and supporters. These concerns will be greatly exacerbated if the Termination Memo goes into effect and the DACA program is terminated.
14 Tina Vasquez, Rewire, Have Trump’s Mass Deportations Begun? Immigration Arrests Reported Around the Country, https://rewire.news/article/2017/02/10/trumps-mass-deportations-begin-immigration-arrests-reportedaround-country/ (Feb. 10, 2017). 15 Qué Pasa Mi Gente, Arrestos de ICE cerca de escuela elemental de mayoría hispana, https://charlotte.quepasanoticias.com/noticias/ciudad/local/arrestos-de-ice-cerca-de-escuela-elemental-de-mayoriahispana (Feb. 9, 2017), translation available at https://translate.google.com/translate?hl=en&sl=es&tl=en&u=https%3A%2F%2Fcharlotte.quepasanoticias.com%2F noticias%2Fciudad%2Flocal%2Farrestos-de-ice-cerca-de-escuela-elemental-de-mayoria-hispana. 16 ABC-7 KVIA, Which places are considered ‘sensitive locations’?, http://www.kvia.com/crime/which-places-areconsidered-sensitive-locations/338319025 (Feb. 16, 2017).
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III.

THIS COURT SHOULD ENJOIN THE TERMINATION MEMO IN

FULL AND NATIONWIDE UNDER THE ADMINISTRATIVE

PROCEDURES ACT

As illustrated by the stories detailed in the preceding sections, the Termination Memo

will cause irreparable harm to individuals from all walks of life and across the entire United

States. The Termination Memo will affect nearly 800,000 DACA grantees along with their

family members, communities, and faith groups. In order to address fully the scope of the harm

the Termination Memo has inflicted and will continue to cause, this Court should enjoin

implementation of the Memo nationwide and in its entirety.

Contrary to the Government’s assertion, injunctive relief should not be limited to “particular individual Plaintiffs found to have cognizable claims.”17 The “systemwide impact”

the Termination Memo will have warrants a “systemwide remedy.” Lewis v. Casey, 518 U.S.

343, 359 (1996) (internal quotation marks omitted). When a court determines that an executive

action facially violates statutory constraints, a comprehensive injunction that sets aside the entire

action is the “ordinary result.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399,

1409 (D.C. Cir. 1998) (the “result is that [the action is] vacated—not that [its] application to the

individual petitioners is proscribed”) (internal quotation marks omitted). This is especially

appropriate where, as here, Plaintiffs challenge not only the application of an action “in an illegal

manner on a particular occasion” but instead generally challenge the validity of a policy “of

broad applicability.” Id. (quoting Lujan v. Nat’l Wildlife Fed’n., 497 U.S. 871, 913 (1990)

(Blackmun, J., dissenting on other grounds)). Any other outcome would lead to the unjust result

of halting the Termination Memo’s effects for only a fraction of persons impacted by it.

17 Memorandum of Law in Support of Defendants’ Motion to Dismiss, (Case No. 16-cv-4756 Dkt. 95-1; Case No. No. 17-cv-5228 Dkt. 71-1), at 40.
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In fact, a limited injunction of this nature would “merely . . . generate a flood of duplicative litigation.” Id.; see also Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”). The Termination Memo is precisely the type of agency action of “broad applicability” that should be enjoined in total, not least in order to avoid unnecessary and repetitive litigation and promote judicial economy. See National Mining Ass’n, 145 F.3d at 1409 (refusal to sustain broad injunction where adversely impacted individuals can each challenge the agency action “is likely merely to generate a flood of duplicative litigation”). In the Batalla Vidal case, a broad injunction would also eliminate the need to certify a class in order to grant comprehensive relief. See Immigration Assistance Project of Los Angeles Cty Fed’n of Labor (AFL-CIO) v. INS, 717 F. Supp. 1444, 1447 (W.D. Wash. 1989), aff'd in part and rev’d in part, 976 F.2d 1198 (9th Cir. 1992). By enjoining the implementation of the Termination Memo in its entirety, this Court would ensure, in the most efficient manner possible, that all who are harmed by this unlawful Government action are able to obtain the relief they deserve.
Accordingly, this Court should find that the Termination Memo is unlawful on its face and enjoin implementation of the Memo in full, not merely in its application to particular petitioners represented in this litigation.
CONCLUSION For the foregoing reasons, amici respectfully urge the Court to grant plaintiffs’ motions for preliminary injunctions. Dated: December 22, 2017 New York, New York
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Respectfully submitted, PATTERSON BELKNAP WEBB & TYLER LLP
By: /s/ Steven A. Zalesin Steven A. Zalesin
Adeel A. Mangi Michael N. Fresco* Zachary Kolodin* 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2000 Facsimile: (212) 336-2222 sazalesin@pbwt.com aamangi@pbwt.com mfresco@pbwt.com zkoldin@pbwt.com Johnathan Smith Sirine Shebaya* Juvaria Khan* MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622 johnathan@muslimadvocates.org sirine@muslimadvocates.org juvaria@muslimadvocates.org * EDNY Admission Pending Attorneys for Plaintiffs Amici Curiae 87 Religious Organizations
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APPENDIX A
IDENTITY AND INTERESTS OF AMICI
1. Albuquerque Insight Meditation Center
Albuquerque Insight Meditation Center (AIMC) is a community that aspires to end suffering through the realization of the Buddha’s teachings. AIMC extends refuge to all who seek the liberating teachings of the Buddha and offers non-fear, protection and compassion to all living beings. Immigrants covered by DACA fear the loss of its protection. Even though the USA is their home, they face the risk of being deported to the countries where they were born and where their lives may be in danger. DACA recipients are part of our community, they are our neighbors, our friends, our colleagues and our members. We stand with them, for their safety, protection and the end of suffering.
2. Albuquerque Monthly Meeting of the Religious Society of Friends (Quakers)
Albuquerque Monthly Meeting of the Religious Society of Friends is a Quaker Meeting for Worship in Albuquerque, New Mexico, affiliated with Intermountain Yearly Meeting, a community of Quaker Meetings and individual Friends situated within the Intermountain West. In unity with the shared testimonies of Friends within IMYM, we affirm that “Our witness to the world comes from our perception of the Divine Spirit moving through us (IMYM Faith and Practice, Advice 1 on Integrity, p. 130).” “Recognizing the oneness of humanity in God, we affirm fellowship with all people (Id., Advice 2 on Integrity,, p. 131).” “We affirm that our first allegiance is to our experience of the Divine. If this conflicts with any compulsion of the state, our country is served best when we remain true to our higher loyalty (Id., Advice 1 on Peace, p. 132.).” Indeed, “We [must] refuse to join in actions that denigrate others or lead to their victimization (Id., Advice 4 on Peace, p. 133.).” Albuquerque Meeting has long been troubled by the treatment of refugees and migrants within the US and in the borderlands. In 2014, we committed ourselves “. . . to assure that the humanity of every migrant to our borders is honored and that all are treated with compassion and dignity, regardless of what their legal status may ultimately be determined to be.” (AMM minute 2014.8.3). We care about DACA recipients because they are threatened with an assault on their humanity. We cannot be faithful to the Light that Spirit has granted us and ignore what is being done in our name to these brothers and sisters.
3. American Association of Jewish Lawyers and Jurists (AALJ)
The AAJLJ is a membership association of lawyers and jurists open to all members of the professions regardless of religion. It is an affiliate of the International Association of Jewish Lawyers and Jurists, which is based in Israel and was founded by the late Justice Arthur Goldberg of the United States Supreme Court and the late Justice Haim Cohen of the Supreme Court of Israel. The mission of the AAJLJ includes representation of the American Jewish Community in regard to legal issues and controversies that implicate the interests of that community. The Association carries out that mission through advocacy in the public arena and in the courts, educational programs, and representation of individuals whose religious and other human rights have been threatened or abridged. As a minority that has historically faced exclusion from the United States and other countries during times of dire peril, the Jewish
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community strongly supports the role of the United States as a refuge from tyranny, war and oppression.
4. American Friends Service Committee
The American Friends Service Committee (“AFSC”) is a Quaker organization whose work is shaped by its spiritual framework and based on the belief in the worth of every person, and faith in the power of love to overcome violence and injustice. Founded in 1917, AFSC has programs throughout the United States that work with immigrants, including many DACA grantees, through legal representation, leadership training, community organizing, and policy advocacy. AFSC's offices in Florida, Iowa and New Jersey represent and provide a voice for many vulnerable immigrant populations, including immigrant detainees, survivors of domestic violence and other crimes, asylum seekers, individuals who have faced long struggles to obtain legal status, and immigrant children and youth. These three programs have represented hundreds of DACA grantees since the DACA program was introduced in 2012. In addition, AFSC programs across the United States have engaged in organizing and advocacy with and on behalf of young immigrants in their quest for a path to a permanent and secure immigration status for themselves, their families and their communities.
5. Ansche Chesed, New York City
We are a Conservative synagogue on Manhattan’s Upper West Side, ritually traditional, intellectually vibrant and socially progressive. We believe in protecting all the vulnerable of society, those who need emotional, spiritual and economic sustenance in the face of those who would exploit them. And we believe that society needs Dreamers.
6. Arch Street United Methodist Church
Arch Street United Methodist Church (ASUMC) is an historic congregation located in the Center Square neighborhood of Philadelphia. Established in 1862 – before Philadelphia’s City Hall was built, ASUMC is located at the crossroads of center city and, as such, has one of the most diverse congregations in Philadelphia. ASUMC’s vision is to be a welcoming Christian community that inspires openness, understanding and reconciliation both within the congregation and in the community-at-large. Our mission is to love God and neighbor by nurturing individuals on their spiritual journeys, encouraging creativity in faithful service, strengthening relationships and promoting justice. ASUMC is a multi-racial, multi-ethnic, multi-class, LGBTQIA and immigrant welcoming faith community. As a founding member of POWER (Philadelphians Organized to Witness Empower and Rebuild) an interfaith network of 60 congregations, ASUMC is in constant contact and community with Muslims, Jews, Roman Catholics, other Protestants, Quakers and Ethical Humanists. Through the New Sanctuary Movement and the Nationalities Service Center of Philadelphia, ASUMC further expands its connections with persons from all over the world, representing a wide variety of cultural and religious expressions. ASUMC is a seasoned interfaith and cross-cultural partner and finds great joy in building and sustaining compassionate connections across all borders.
Arch Street United Methodist Church is pleased to sign on to the DACA Amicus Brief on Behalf of Religious Organizations. We do so an act of faith in following the teaching of our
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sacred texts to welcome the stranger and to love our neighbor. In addition, we hold the strong opinion that the termination of DACA and the deportation of all those under the provisions of DACA would be inhumane, unjust and in direct violations of basic human rights.
7. Capital Area Muslim Bar Association
The Capital Area Muslim Bar Association (CAMBA) is a voluntary bar association in the Washington , DC metro area with a diverse membership. CAMBA’s mission includes fostering a sense of fellowship amongst diverse Muslim legal professionals and amplifying our collective voice to impact legal issues affecting the Muslim community. CAMBA’s objectives include addressing legal issues affecting the community at large and their related impact on the Muslim American community, and educating and advocating for constitutional, civil, and human rights for all persons.
8. Catholic Charities Community Services of the Archdiocese of New York
Since 1949, Catholic Charities Community Services of the Archdiocese of New York (CCCS) has provided direct human and legal services to over 170,000 people each year from all parts of New York City and the Lower Hudson Valley. These services are offered to all New Yorkers in need, regardless of their religious beliefs, because our work is grounded in the dignity of each person and in the building of a just and compassionate society, especially for the most vulnerable among us. CCCS is a leading provider of immigration legal, resettlement, and integration assistance in its service area, providing direct legal services to individuals, families, workers, and children seeking stability and reunification, including application assistance, clinical consultation, and direct court representation, hotline and referral information to over 70,000 callers each year, case management assistance, reception, reunification integration, employment and ESL assistance to refugees, asylees and other documented and undocumented newcomers, and to all those seeking protection, including over 3,000 unaccompanied minors each year.
9. Central Pacific Conference of the United Church of Christ
The Central Pacific Conference (CPC) is a community of United Church of Christ congregations in Oregon, southern Idaho and southern Washington. In this family of 45 congregations, our shared commitment is to ministry and mission. The CPC provides spiritual and material resources and encouragement to all our 7,600 members. We put purposes and programs into action by drawing on the experience and talents of all the conference members, both lay people and clergy. The CPC assists and encourages local congregations and their members in working together to explore, communicate, support and pursue the ministry and mission of the church, and provides a channel for effective relationships with the UCC and with other faith communities.
At its Annual Meeting in September 2016, the Central Pacific Conference of the United Church of Christ declared itself to be an "Immigrant Welcoming Conference" which encourages the development of policies dedicated to facilitating the respectful welcome and inclusion of all immigrants into Oregon, Idaho, and Washington. The Central Pacific Conference was a cosponsor of the United Church of Christ General Synod Resolution calling upon the United
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Church of Christ to declare itself an Immigrant Welcoming Denomination; the resolution passed with an overwhelming vote with 97% of delegates in favor.
10. Church Council of Greater Seattle
The Church Council of Greater Seattle is a membership organization of 320 congregations from 16 Christian denominations in Martin Luther King Jr. County and South Snohomish County in the State of Washington. Founded in 1919, we have worked for nearly a century to forge ecumenical and interreligious relationships and to serve vulnerable and marginalized populations in our midst. We believe in the inherent dignity and worth of every human being as a child of God. We believe that God’s love has no exclusions. We are proud to have opposed the internment of Japanese-Americans during World War II and to have continued to minister to them during and after the war. We played an important role in ending redlining in the City of Seattle as part of our legacy of seeking a society built upon equity and social justice.
DACA is a win-win that has allowed families to stay intact, while creating a pathway forward for many in order to strengthen our economy and build up our community fabric. Removing DACA will tear apart grantees from loved ones. It is our ministry and responsibility to not allow the marginalization of this community and to affirm their voices and selfdetermination for an inclusive, viable future, which will be beneficial for the integrity of the United States. The moral and humane solution is to allow those who have benefitted from DACA to become United States citizens toward the end of Comprehensive Immigration Reform.
11. Church of Our Redeemer in Lexington, Massachusetts
The Church of Our Redeemer in Lexington, Massachusetts serves a parish community made up of people from many nations and ethnicities. We seek to foster a thriving community in Lexington and beyond by building relationships across differences and forming ministers of the Gospel. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that we seek as people of faith. We are committed, as people of faith, to working together with other responsible leaders to justly address the immediate needs of the people affected by this action and ensure long-term solutions for communities impacted by exclusionary policies. We stand with Dreamers in Massachusetts and across America and implore the courts to represent those most impacted by refusing to put the termination memo into effect.
12. Congregation B’nai Jeshurun (New York City)
For nearly two centuries, Congregation B’nai Jeshurun (NYC) has been at the forefront of American Jewish life. As we move into our third century, our vision is focused on the spiritual work of transformation: of ourselves, our community of nearly 1700 member households, and of the larger world. We believe that as a faith community we are called upon to hold ourselves, each other, and our elected leaders accountable for sustaining the core values of our nation, and to bring to bear the moral values of our Jewish tradition and teachings for the benefit of all. For many years, these beliefs have manifest through engagement in the growing global refugee crisis, and efforts to assist immigrants and refugees in New York City. As such,
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we strongly support the goals of the DACA program, and we are proud to join this brief to help ensure that the rights of all immigrants and refugees, regardless of race, religion, gender identity, sexual orientation, financial status, or country of origin, are treated fairly and equally, and with respect and dignity, by the American government.
13. Congregation Beit Simchat Torah
Congregation Beit Simchat Torah (CBST) is a bold spiritual community of love and resistance that embodies a progressive voice within Judaism. Founded in 1973, CBST attracts and welcomes gay men, lesbians, bisexuals, transgender, queer and straight individuals and families who share common values. Passionate, provocative, and deeply Jewish, CBST champions a Judaism that rejoices in diversity, denounces social injustice wherever it exists, and strives for human rights for all people.
CBST is a community of immigrants and refugees and descendants of immigrants and refugees. We see those being targeted as part of our community and our neighbors, not our enemies. We are reminded of the words from the book of Leviticus that command us to welcome the stranger because we, too, were once strangers in a strange land. As LGBTQ people and Jews, we know the dangers of demonization, and we embrace resistance and love as our response. We cannot be silent. CBST stands committed to furthering social justice and equality for all people. We work within the congregation, take public action and lend our names and voices to a variety of social and humanitarian causes.
After the 2016 presidential election, CBST made a commitment to amplify its social justice initiatives and as part of that promise, we joined the New Sanctuary Coalition of New York City. We are partnering with them on education, training and support for the immigrant community in the tri-state area. CBST members regularly support immigrants facing ICE hearings and check-ins by attending meetings with DHS officials. We are committed to fighting for justice and for the humane treatment of all people.
14. Council of Churches of the City of New York
The Council of Churches of the City of New York was organized in 1895 and serves through the Christian denominations having ministry in the five boroughs of New York City. Its Board of Directors is composed of the bishops and chief executives of the member denominational judicatories which, collectively, are related to thousands of Christian congregations in the City. The Council, like its member denominations and affiliated congregations, are vitally concerned for the well-being of all persons created by God and residing in God’s Household, the inhabited earth. In particular, we are concerned for the protection and legal status of immigrants, especially those who arrived in this nation as children without documentation.
15. Council on American-Islamic Relations – Michigan Chapter
CAIR-MI’s mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims and build coalitions that promote justice and mutual understanding through education, mediation, media and the law. CAIR-MI has been
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serving the entire state of Michigan since 2000 with an emphasis on Metro Detroit, Flint/Saginaw, Ann Arbor/Jackson, Lansing, Kalamazoo/Battle Creek, and Grand Rapids/Muskegon.
In addition to legal services CAIR-MI Safe Spaces program aims to proactively produce and implement legal policies and best practices with a variety of institutions to prevent incidents of bias and discrimination before they occur. Through the Safe Spaces Program, CAIR-MI has successfully drafted and implemented legal policies and best practices at a variety of institutions including law enforcement, universities, schools, correctional facilities, government agencies and several corporations throughout Michigan. Our Safe Spaces program also engages in youth outreach and engagement and anti-bullying programs.
CAIR-MI opposes the DACA termination memo based on its intent to deport individuals who have spent the majority of their lives in the US many of whom know no other home. These individuals directly benefit our programs by engaging in outreach and providing diverse voices in various programs and internships with our legal and safe spaces programs. The loss of the individual and collective voices, ideas and actions provided by DACA recipients would result in harm to our mission and programming.
16. Council on American-Islamic Relations – New Jersey Chapter
The Council on American-Islamic Relations (CAIR) is the largest Islamic civil liberties and advocacy group in the United States. Its mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. The demand for our services has grown tremendously. From restrictions placed on Muslims to practice their religion, to profiling and discrimination stemming from a lack of understanding of Islam, CAIR-NJ aims to provide that relief to the Muslim population in New Jersey. Protecting the rights of New Jersey's Muslims is at the core of CAIR-NJ's mission. CAIR-NJ also provides know your rights workshops for our constituents to teach them about their fundamental rights guaranteed to them under the Constitution. We work vigorously to educate on behalf of community members experiencing discrimination and remedy cases through in-person negotiations, from filing charges of discrimination, letter writing, and actively litigating in court. Cases range from employment, public accommodation and school discrimination, to hate crimes and governmental religious/racial profiling. CAIR-NJ’s civil rights department counsels, mediates and advocates on behalf of Muslims and others who have experienced religious discrimination, defamation or hate crimes. The department works to protect and defend the constitutional rights of American Muslims, thereby supporting the rights of all Americans.
CAIR-NJ opposes the DACA termination memo based on its intended mission of potentially deporting 800,000 young undocumented individuals who have spent their entire lives in the United States.
17. Council on American-Islamic Relations – New York Chapter
The Council on American-Islamic Relations, New York Inc. (“CAIR-NY”) is a leading Muslim civil rights organization, defending, representing, and educating nearly one million
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Muslims in the New York area. CAIR-NY's mission is to protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding. Through legal representation, education, media relations, and advocacy, CAIR–NY empowers the American Muslim community and encourages their participation in political and social activism. CAIR–NY counsels, mediates, and advocates on behalf of Muslims and others who have experienced discrimination, harassment, or hate crimes. Our lawyers work to protect and defend the constitutional rights of American Muslims, thus supporting the rights of all Americans.
18. Cuba Presbyterian Church (Presbyterian Church, USA), Cuba, New Mexico
Cuba Presbyterian Church (Presbyterian Church, USA), Cuba, NM is a small, traditional congregation in a northern New Mexico village. It was established in 1889 in a multi-cultural community made up of Spanish and Mexican settlers among the diverse Native American tribal communities – Navajo, Jicarilla Apache, and the nineteen Pueblos; along with the Anglo American presence which came into the area in the 1870s. We are keenly aware that we are all immigrants, and feel called to assure others the opportunities our families have had. Our mission as a church is to spread God’s loving message to all regardless of race or national origin. Ending the DACA program has spread fear among some in the area, which overshadows and impairs the Christian message we are living in this community.
19. Degrees of Change
Degrees of Change is a faith-based organization located in Tacoma, Washington that helps communities and colleges equip students to learn together through college and lead together back home. Degrees of Change partners with six Christian community-based organizations and twelve Christian colleges, serving more than 700 students across five states (WA, OR, MN, IL and IN). The curriculum that our community partners deliver to students integrates Christian perspectives and teaching on leadership, diversity and community development. The Executive Order to end DACA has led more than 60 of our scholars and alumni to question their worth and their safety in this country. Deportation has ripped apart several of our scholars’ families. Our college partners are struggling to provide financial aid to these scholars, and several scholars have dropped out of college because they can no longer afford it. Degrees of Change has made efforts to support immigrants facing deportation through our public messaging and national conversations with our scholars and community partners.
20. DMV Sanctuary Congregation Network
DMV Sanctuary Congregation Network (the network) is a network of 70 congregations of 17 religious traditions from DC, Maryland, and Northern Virginia. The network works and provides support to immigrant community in the DMV area and works with local allies to advance sanctuary policies. Our congregations have DACA-holders congregants who will be impacted by the ending of DACA. In the face of hate and discrimination we are committed to showing love, compassion and hospitality.
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21. Dominican Development Center
Dominican Development Center is a non-profit organization affiliated with Saint Lourdes Church/Second Community in Boston, Massachusetts. We seek to develop and empower Dominican immigrants and immigrants representing all Latin American and Caribbean communities to take full participation on the civic life of this society. We strive to improve the quality of life of our members by promoting and organizing around issues that might impact our community, including but not limited to current laws, legal procedure, civic engagement, education, immigration reform, and human rights among others. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that we see as people of faith. We add our voice to those asking the court to protect DREAMERs by not to allowing the termination order to go into effect.
22. East End Temple (New York City)
East End Temple is a Reform Jewish congregation located in lower Manhattan in New York City that is dedicated to issues regarding immigration and immigrants’ rights. With members of the congregation who are immigrants themselves or are descendants of recent immigrants, the congregation is particularly committed to the principle and commandment to welcome the stranger.
23. Emgage Foundation
Emgage Foundation is one of the nation's largest civic education and mobilization organizations for Muslim American voters. We provide learning opportunities and events, including direct engagement with lawmakers, to increase the civic engagement of Muslim Americans and advance values that are important to us as Americans and as Muslims. One of our core programs is Get Out The Vote in five electorally important states, including Florida, Virginia, Pennsylvania, Texas, and Michigan. Our issue advocacy focuses on combating Islamophobia and hate crimes, social justice reform, improving our healthcare system, protecting immigrant and refugee communities, and advancing human rights globally.
24. Episcopal City Mission
Episcopal City Mission (ECM) fights for racial, economic and immigrant justice through building relationships of shared power with faith rooted communities, grass-roots organizations and community organizing movements in Massachusetts. Our Episcopal/Anglican lens invites us to see all life as sacred and worthy of dignity and justice. This understanding guides us as we face into the dynamics of power and enable access and liberation for all communities. As the termination of DACA would deny access to those who are protected under the DREAM act we ardently ask that the court would not allow the termination order to go into effect
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25. Episcopal Diocese of Massachusetts 26. Episcopal Diocese of Western Massachusetts
The Episcopal Dioceses of Massachusetts and the Diocese of Western Massachusetts serve 235 parishes across the state of Massachusetts. We seek to be Christ’s presence of mercy, compassion, and hope in the communities we serve. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that bind us together. We add our voice to those asking the court to protect our brother and sister DREAMERs by not allowing the termination order to go into effect.
27. Episcopal Diocese of New York
The Episcopal Diocese of New York includes 199 local congregations (parishes) with about 66,000 members, 72 deacons, 600 priests and three bishops—including the diocesan bishop, currently the Rt. Rev. Andrew M.L. Dietsche, who is our chief pastor. To Episcopalians it seems pretty clear what Christians are supposed to do. Jesus said “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. “And the second is like unto it, Thou shalt love thy neighbor as thyself. On these two commandments hang all the law and the prophets.” The first thing, then, after love of God—indeed the only thing— is to love our neighbors as ourselves. Not just some of them; not just the ones we feel comfortable with; not just the ones who have the same colored skin as us, or the same sexual preferences, or who don’t smell; but every single one of them. In fact as Episcopalians, we believe that no Christian life can be complete if the person living it does obey this command and act on it.
To end the Deferred Action for Childhood Arrivals would endanger the lives of thousands of young people and their families and run contrary to the faith and moral traditions of our country. It is unfair to threaten the well-being of young people who arrived in our country as children through no choice of their own. Ending DACA without a similar replacement program will force these young people to face the future in this country with little access to education and employment, and ultimately, could very well lead to sending them to countries where they did not grow up, have few support structures, may not even speak the language and may be vulnerable to violence and persecution. Any of these scenarios, we believe, is cruel.
28. Episcopal Society of Christ Church/The Christ Church Cathedral, Cincinnati, Ohio
The Episcopal Society of Christ Church is a congregation of the Episcopal Church and is the Cathedral for the Episcopal Diocese of Southern Ohio. For 200 years, the Cathedral has worked in the Cincinnati community to combat poverty and has been involved, since its founding, in issues of social justice. The Cathedral carries out its missions through community grants, educational opportunities and direct mission work. For example, the Cathedral hosts “community forums” to educate the public on issues of social justice and also sponsors a 200 + person dinner every Tuesday for our friends who make their homes on the streets, offering not only food but also social services. Because of its tradition and continuing programs, the Cathedral is interested in helping those who face the prospect of deportation without just cause. The Cathedral is keenly aware of the perils faced by those who would be subject to such
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deportation, including the breakup of families, the impact on economic well-being and the dangers faced in home countries. For these reasons, the Cathedral has become involved in the sanctuary movement in Cincinnati.
29. Faith Action Network
Faith Action Network (FAN) is a statewide (Washington State) interfaith advocacy organization that educates, organizes, and mobilizes people of all faith traditions to take action on the critical social issues of our day. One of those very current social issues regards the Deferred Action for Childhood Arrivals (DACA) program of the federal government. FAN is deeply concerned about President Trump’s decision to terminate this important protection program for those who came to this country as children by their parent(s) or family member many years ago. It is morally reprehensible to think that these young people who know no other country than the USA will be deported by next March and sooner. We all know that deportation means imprisonment, separation from family, loss of employment and income, and will put their lives at risk as they are forcibly displaced to another country. FAN has advocated for those in this program (Dreamers) for many years at the state and congressional level to receive equal tuition/scholarship opportunities for college and other government benefits. The Dreamers – as they are known – love this country, contribute to our economy with their skills and talents, and have – and we hope will continue to make our nation better, stronger, and more equitable.
30. First Christian Church (Disciples of Christ), Santa Fe, New Mexico
First Christian Church (Disciples of Christ), Santa Fe, is a small, friendly church community in the heart of Santa Fe. Established over 75 years ago, First Christian Church continues the witness of the Disciples of Christ that stresses that EVERYONE is welcome. Our vision is to provide a place and opportunity for those seeking a deeper spiritual life. We are passionate about being ecumenical, affirming, forgiving, cooperating, and allowing the freedom for each person to develop their own understanding and relationship with God. Our vision is to be a faithful, growing church that demonstrates true community, deep Christian spirituality and a passion for justice. (Micah 6:8). The Disciples of Christ movement nationally and internationally seeks to be a "movement for wholeness in a fragmented world." As we strive to live into our mission and vision for wholeness and welcome in a fragmented world, the termination of the DACA program challenges our ability to welcome and unite our community. Our community has included many immigrants over the years, including DACA beneficiaries whose lives have been stabilized by receiving legal recognition. The termination of the DACA program is an impediment to our free practice of religion as a welcoming congregation seeking to bridge divides and create wholeness. The lives of the young people who will not receive DACA will be profoundly hurt by this decision, which will hurt all of us.
31. First Congregational United Church of Christ (Albuquerque, New Mexico)
We are strong supporters of DACA. Our mission is to live God’s love, justice, and inclusion and we believe that should be for all. We are currently offering sanctuary to a refugee at our church as a part of our faith commitment to the principle that “God’s doors are open to all.” It is a privilege to walk with one together in this journey toward a just immigration system.
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32. First Presbyterian Church of Santa Fe, New Mexico
The congregation of FPC Santa Fe is inclusive and open to all regarding nationality, immigration status, ethnicity, social status or gender and sexual orientation. We are a member of the Presbytery of Santa Fe and the Presbyterian Church (USA). Our denomination has consistently and historically expressed support for the values, safety, gifts and perspectives for immigrants of all nations, and has also called for the ongoing support and protection of DACA recipients.
33. First Presbyterian Church of Taos, New Mexico
Our congregation’s call to love God and our neighbors extend to all members of the Taos community, regardless of immigration status. We know and love immigrants and DACA recipients in our community, and we know that our church and our community is enhanced by their presence. We believe that DACA is a humanitarian issue for our community and for all God’s people. Additionally, our denomination has consistently and historically expressed support for the values, safety, gifts, and perspectives of immigrants of all nations, and has called for the ongoing support and protection of all DACA recipients. We sign onto this Amicus Brief in the spirit of Leviticus 19, which calls us not to oppress immigrants but to love each immigrant as ourselves, and in the Spirit of Matthew 25, in which Jesus reminds his disciples that when we welcome a stranger, we welcome Jesus Christ himself.
34. First Unitarian Congregational Society in Brooklyn
As a member congregation in the Unitarian Universalist Association, the First Unitarian Congregational Society in Brooklyn (First U Brooklyn) is committed to: the inherent worth and dignity of every person; justice, equity and compassion in human relations; and the goal of a world community with peace, liberty and justice and for all. Consistent with these principles, First U Brooklyn has declared ourselves a sanctuary congregation, invoking the millennia-old tradition of a house of worship offering a safe space and time for individuals in need. First U Brooklyn specifically offers safe space and time for immigrants and refugees to examine their options and make the soundest decisions when faced with possible deportation.
But Dreamers protected by DACA should have no need for sanctuary. Our country has already recognized that it is just and appropriate to allow these young men and women, who came to this country at an early age and in good conscience, to make a life for themselves in the United States, just as so many of our ancestors did. Terminating DACA now would unconscionably disrupt and threaten their lives and those of their families and loved ones. The righteous path is for our country to maintain the commitments we have made to these young people under DACA. While First U Brooklyn is proud to offer sanctuary to those in need, Dreamers should continue to be protected under DACA, and have no need of sanctuary.
35. First United Presbyterian Church of Las Vegas, New Mexico
Our inclusive congregation is a member of the Presbytery of Santa Fe and the Presbyterian Church (USA). This denomination has historically supported the valuable gifts and perspectives of immigrants. The church has called for support of DACA recipients. Our church
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community stands for justice and, from that standpoint, we wish to protect the rights of all people—especially those most vulnerable. For this reason, we express our support of the Amicus Brief.
36. Global Justice Institute
The Global Justice Institute serves as the social justice arm of Metropolitan Community Churches, and works with LGBTQI activists and allies around the world to support projects for social change. One of our programs, ASAP (Asylum Seekers Assistance Program) has enabled LGBTQI people fleeing persecution to resettle in safer environments. We have consistently lobbied on behalf of DACA and those it supports.
37. Immanuel Presbyterian Church (Albuquerque, New Mexico)
The Immanuel Presbyterian Church is a community of ordinary people experiencing and actively sharing God’s extraordinary love. Our inspiration for life is Jesus Christ. From that inspiration, we are committed to be spiritually alive and relevant to today’s world, providing an atmosphere where both faith and doubts can be voiced. We are grounded in a transformational theology that calls us to equip Christians to carry their faith into the wider community. Our church is inclusive to all.
38. Interfaith Alliance of Iowa
Interfaith Alliance of Iowa is a progressive voice for people of faith and no religious affiliation in Iowa protecting religious freedom, ensuring religion is not misused to discriminate, championing individual rights, and uniting diverse voices to challenge extremism. We educate and advocate on many issues of social justice, but always leading through a lens of civility.
DACA is important to the fabric of our state because it has allowed Iowans – Dreamers to come out of the shadows, live without fear, and contribute more fully to the communities in which they live. Dreamers only want to work, go to school, and be family in a secure community. They want to worship in safety. They want their children to get an education. They want to be good neighbors. As an organization, we believe in the American Dream and we believe that ensuring Dreamers can participate in our communities not only helps them but helps the communities in which they live.
39. Iowa Conference of the United Church of Christ
The Iowa Conference of the United Church of Christ is a regional association of 168 UCC congregations. In supporting this brief we are represented by our staff and Board of Directors. Our rationale for this support is theological and practical: Hospitality and welcome for neighbors – both long-time and newly arrived – is fundamental to our values and our identity. Our congregations were mostly formed 140 to 175 years ago – many by immigrants. We are convinced that the fabric of our communities is stronger today for the inclusion of those who came here as “outsiders” over a century ago; similarly we believe that our communities will be strengthened by the inclusion of immigrants newly in our midst, and are consequently strongly supportive of DACA.
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40. Islamic Society of Basking Ridge
The Islamic Society of Basking Ridge is dedicated to providing Islamic religious, educational, cultural and social services to Muslims living or working in Somerset Hills, New Jersey, and the surrounding areas; providing these services in an open, diverse, inclusive and moderate environment, consistent with the Qur’an and Sunnah; and promoting interfaith and intra-faith dialogue in order to improve relations between Muslims and people of other faiths. We strongly believe as part of our religious outreach that our laws must be applied fairly and justly to all communities. We feel that the children and young adults eligible for DACA and currently receiving its benefits are entitled to the equal protection of the law.
41. Islamic Society of Central Jersey
The ISCJ is an organization of Muslim Americans that was formed in 1975 that provides religious, educational and social services to its members, as well as to the community at large. The ISCJ established a place of worship in South Brunswick, NJ in the early 1980s. The ISCJ aspires to be the anchor of a model community of practicing Muslims of diverse backgrounds, democratically governed, efficiently served, relating to one another with inclusiveness and tolerance, and interacting with neighbors and the community at large in an Islamic exemplary fashion.
The ISCJ is very concerned about the issues raised in this matter as it believes that the arbitrary rescission of DACA will certainly harm our diverse congregation and community by forcing members of organizations to leave the country or to live in fear. This action is contrary to the ISCJ’s moral, spiritual and religious beliefs and practices.
42. Lab/Shul
Lab/Shul is an everybody friendly, artist-driven, God-optional, experimental community for sacred Jewish gatherings based in NYC and reaching the world. The Lab/Shul community is dedicated to exploring, creating and celebrating innovative opportunities for contemplation, life cycle rituals, the arts, life-long learning and social justice. We oppose the termination of the DACA program for three reasons:
1. Terminating DACA would prevent us from fully fulfilling our mission as a spiritual community that is “everybody friendly,” including to immigrants and specifically DACA recipients.
2. Many of us are friends with or have worked with DACA recipients and we know them to be upstanding members of society that add to the cultural and economic fabric of the United States.
3. Most of our community identifies as Jewish. It is commonly known that JewishAmerican narratives are often stories of seeking refuge from tyranny in the freedom of the United States. Just as the lives of our ancestors were at stake, the very lives of many of these DACA recipients are at stake. Some of our ancestors arrived here documented, and some arrived undocumented, some were turned away - and later
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murdered during the Holocaust. Experience and the Torah teach us that the United States can and should welcome those who immigrate here because we were “once strangers in the land of Egypt” - that is, because we are also immigrants.
43. Legal Advocacy Project of Unitarian Universalist FaithAction of New Jersey
The Legal Advocacy Project of Unitarian Universalist FaithAction of New Jersey (“UU FaithAction NJ”) is a New Jersey not-for-profit membership organization representing most of the Unitarian Universalist congregations of New Jersey. Founded in 2009, UU FaithAction NJ gives voice to Unitarian Universalist humanitarian values in matters of public policy and justice advocacy in New Jersey. Rooted in 250 years of free church tradition, Unitarian Universalists share a belief in right action, as opposed to right doctrine, as the basis of their core humanitarian values. Its shared Principles and Purposes include a commitment to the inherent worth and dignity of every person; to justice, equity and compassion in human relations; and to the right of conscience and the use of the democratic process within its congregations and in society at large.
44. Lutheran Social Services of New York (LSSNY)
Lutheran Social Services of New York (LSSNY) has provided comprehensive social service programs to children and families for more than 130 years. LSSNY serves families in need across the New York metropolitan area and Long Island, offering a variety of programs, including foster care, family treatment rehabilitation, early childhood education and special education, immigration legal services, shelter and supportive services to unaccompanied minors, supportive housing and hunger prevention. LSSNY began in 1886 when 11 Lutheran congregations in the New York metropolitan area created an orphanage for children affected by a severe outbreak of influenza within the German communities of New York City. The agency was among a group of Lutheran mission societies that served Lutherans who had immigrated to New York. Over the years, LSSNY formed alliances with other Lutheran organizations and church bodies, and in the years since 1990 has expanded its programming to include community services (immigration legal, refugee services, hunger prevention), supportive housing for formerly homeless individuals, and education services. Throughout this expansion, LSSNY’s mission has remained the same: “Called by God, we encourage people to reach their full potential.” LSSNY works with local community partners to understand the needs of our neighbors, and to bridge the gap between what any one individual can accomplish on their own, and what they can achieve with the supportive care of our services. LSSNY employs some 650 employees who work as counselors, teachers, caregivers and legal counsel, to strengthen the lives of those we serve.
45. Maryknoll Office for Global Concerns
Maryknoll Office for Global Concerns is the justice and peace advocacy office representing Maryknoll Missioners – Catholic priests, brothers, sisters and lay missioners- who work with the poor and marginalized in 40 countries around the world. From their headquarters in Ossining, NY, Maryknoll Missioners have lived and worked with families in extreme poverty for many years in countries where DACA recipients originate. Maryknoll Fathers and Brothers, Sisters, and Lay Missioners have acquired a deep understanding of the dire social, economic and environmental conditions that Dreamers would face if they were deported, as well as intimate
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witness to the fragility and insecurity of living in the shadows without documents in the US. Deporting Dreamers to their countries of origin, where most have only weak or distant ties, would subject them to the same forces of poverty, violence, and instability their families originally fled and from which millions more still flee. For these reasons we oppose the termination of DACA and seek a resolution of Dreamers’ status that allows them a path to citizenship.
46. Metropolitan New York Synod of the Evangelical Lutheran Church in America
The Metropolitan New York Synod is the regional expression of the Evangelical Lutheran Church in America, a member church of the Lutheran World Federation—A Communion of Churches. Lutherans are a diverse group of people, convinced that the Holy Spirit is leading us toward unity in the household of God. As Lutherans, we are worshipping God, helping friends and neighbors, celebrating diversity, feeding the hungry, working for justice, and advocating for peace. When we serve others and address social issues that affect the common good, we live out our Christian faith. There are nearly 200 congregations across New York City, Long Island, and in the counties of Westchester, Putnam, Orange, Rockland, Sullivan and Dutchess. The Rev. Dr. Robert Alan Rimbo serves as the Lutheran Bishop of the Metro New York area.
The Metropolitan New York Synod and, specifically, Bishop Robert Alan Rimbo, have been consistent supporters of Dreamers. The termination of the DACA program is, to say the least, troubling. These people whom some now wish to deport from the only homeland they know because of what can only be called the accidents of history and for no other reason – they just happened to be brought to our communities as their families searched for new hope – are model citizens. They are the kinds of people we want to have as neighbors: health care professionals, artists, teachers, friends, mechanics, the list seems endless, and now, for reasons beyond our grasp they are being threatened with deportation. We stand united against this and in support of DACA and the people it protects. We, as people of faith, are prompted to pray for godly wisdom to prevail among the powers that be in our country, itself built on the hopes and dreams of immigrants.
47. Muslim Advocates
Muslim Advocates is a national legal advocacy and educational organization that works on the front lines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education. Muslim Advocates also serves as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. The issues at stake in this case directly relate to Muslim Advocates’ work fighting for civil-rights protections for American Muslim communities, which includes immigrants and persons who have benefited from the Deferred Action for Childhood Arrivals Program.
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48. Muslim Bar Association of New York
Muslim Bar Association of New York (“MuBANY”) is one of the nation’s largest and most active professional associations for Muslim lawyers. MuBANY provides a range of services for the legal community and for the larger Muslim community. One of MuBANY’s missions is to improve the position of the Muslim community at large which is comprised of significant number immigrants and, in particular DACA recipients. MuBANY seeks to support the Muslim community and its significant immigrant contingent through community education, advancing and protecting the rights of Muslims in America, and creating an environment that helps guarantee the full, fair and equal representation of Muslims in American society.
49. Muslim Public Affairs Council
The Muslim Public Affairs Council (MPAC) is a community-based public affairs nonprofit working to promote and strengthen American pluralism by increasing understanding and improving policies that impact American Muslims. MPAC’s vision is an America enriched by the vital contributions of American Muslims. MPAC participated as amicus curiae in cases concerning civil liberties (Boumediene v. Bush and al-Odah v. U.S. (U.S. 2007)); immigration (Donald Trump v. IRAP (U.S. 2017) and Arizona v. U.S. (U.S. 2012)); and religious liberties (Masterpiece Cakeshop v. Colorado Civil Rights Commission (U.S. 2017) and Holt v. Arkansas Dept. of Correction (U.S. 2014)).
50. Muslim Urban Professionals (Muppies)
Muslim Urban Professionals, (Muppies), is a nonprofit, charitable organization dedicated to empowering and advancing Muslim business professionals to be leaders in their careers and communities. Its mission is to create a global community of diverse individuals who will support, challenge, and inspire one another by providing a platform for networking, mentorship, and career development.
Muppies represents an engaged group of Muslim professionals that believe immigrants and refugees are an integral part of the U.S. economy, adding over $1 trillion to the USA's GDP. Muslims contribute to the fabric of the US in diverse ways, such as driving innovation, creating new opportunities for employment, and promoting excellence through diversity and inclusion. We oppose any policy that results in a reduction of opportunity and inclusion for any individuals or groups.
51. Muslims for Peace, Inc.
Muslims for Peace, Inc. ("MFP") is a New Jersey based non-profit that aims to bridge people from different religious and ethnic backgrounds through interfaith activities, such as presentations, seminars and discussions. We also provide charitable support in the form of organizing food drives and organizing relief for disaster victims. Through our work, we aim to assist people of all faiths and ethnic backgrounds. We stress tolerance, education and humane solutions to problems facing our communities. We support DACA as a just and proper response to a humanitarian issue that otherwise has and will continue to divide and disrupt families and communities.
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52. Muslims for Progressive Values
Muslims for Progressive Values is the oldest and only progressive and Muslim faithbased human rights organization in the U.S. founded in 2007. We embody and advocate for the traditional Quranic values of social justice, an understanding that informs our positions on women’s rights, LGBT inclusion, freedom of expression and freedom of and from belief. As an organization that promotes diversity and inclusivity, we find the termination of DACA cruel to families and the antithesis to America's founding values.
53. National Council of Jewish Women
The National Council of Jewish Women (NCJW) is a grassroots organization of 90,000 volunteers and advocates who turn progressive ideals into action. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individual rights and freedoms. NCJW's Resolutions state that NCJW resolves to work for “Comprehensive, humane, and equitable immigration, refugee, asylum, and naturalization laws, policies, and practices that facilitate and expedite legal status and a path to citizenship for more individuals.” Consistent with our Principles and Resolutions, NCJW joins this brief.
54. NETWORK Lobby for Catholic Social Justice
NETWORK Lobby for Catholic Social Justice is a national organization founded by Catholic Sisters in 1972. For 45 years we have worked at the intersection of faith and politics. Our staff and extensive national membership include Dreamers all of whom have been effective and enthusiastic in their engagement with faith in the quest for justice. If the administrative order is implemented our work in democratic education will be seriously impaired both in our central office in Washington, DC and around the nation.
55. New Jersey Interfaith Coalition
New Jersey Interfaith Coalition is non-partisan network of houses of worship, organizations, and individuals with the following mission: Promote houses of worship, nonpolitical organizations and individuals to work together to honor and enrich diverse faiths and ethical practices. Oppose intolerance and hate. Foster a climate of positive mutual acceptance and appreciation for all, regardless of their faith, race, or sexual orientation. Our guiding principles are to promote the adoption of the “Stand Up for the Other” pledge, especially among our own communities; encourage interfaith dialogue and collaboration; respond to acts of intolerance, bigotry, terrorism, and hate; sponsor and participate in events consistent with our mission and promote each other’s events within our communities; and to promote other common actions consistent with our mission.
Our “Stand Up for the Other” pledge leads us to support DACA and oppose its termination just the same as we oppose bigotry, racism, anti-Semitism, and Islamophobia: “While interacting with members of my own faith, or ethnic, or gender community, or with others, if I hear hateful comments from anyone about members of any other community, I pledge to stand up for the other and speak up to challenge bigotry in any form.”
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56. New Mexico Conference of Churches
The New Mexico Conference of Churches is a statewide network of churches working for the wellbeing of New Mexico’s peoples and environment. Our congregations welcome the gifts of all people in the name of Christ no matter their immigration status. Our member congregations, and the communities in which they serve, include DACA recipients and their families. We call for ongoing support and protection of DACA recipients.
By our baptism, we are united in Christ and called to care for the least of these (Matthew 25:40) and to love our neighbors as ourselves (Matthew 22:39). DACA recipients, immigrants, and refugees are our neighbors and we are compelled by our faith to seek and serve Christ in each person. We believe that justice and peace are served when the rights of all people— especially vulnerable young people, immigrants and refugees--are protected.
57. New Mexico Faith Coalition for Immigrant Justice
The New Mexico Faith Coalition for Immigrant Justice is a faith based group that was formed over eight years ago as a response to attacks on our immigrant communities during the last administration. Since its formation, the Coalition has been deeply committed to supporting the immigrant families in New Mexico through the hardships of deportation and detention and has been outspoken against unjust and inhumane immigration laws, advocating for laws that reflect the higher values of the dignity of the person, unity of the family, richness in diversity, and the freedom of the pursuit of purpose. Among the many services we provide to the immigrant community are direct service: connecting families to legal and social resources, faithbased community education of immigrant issues, border awareness programs, micro-loans for immigration form submittals, court accompaniment for families, and refugee hospitality program: picking up and finding a place to stay for asylum seekers and asylees released from the Cibola detention center.
As a small organization with 3 part-time staff, two who are DACAmented, our efforts to work for immigrant justice and support the direct service needs of our migrant communities are inextricably tied to having a continuation of DACA or implementation of a Clean DREAM Act. While many of us who are allies have worked in this field for years or decades, it is only with the participation and leadership of the affected communities, particularly those who are undocumented or under threat of immigration enforcement, that we can strive to create better immigration laws and a more just system that supports the well-being of all.
58. New Sanctuary Coalition of New York
The New Sanctuary Coalition of New York is an interreligious grass roots organization in solidarity with families and communities who are striving to keep their loved ones together as we reimagine and implement ways to prevent and stop the detention and deportation of our loved ones.
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59. New Sanctuary Movement of Philadelphia
New Sanctuary Movement of Philadelphia (NSM) is an interfaith, multi-cultural organization that works to build community across faith, ethnicity and class in our work to end injustices against immigrants regardless of immigration status, express radical welcome for all, and ensure that values of dignity, justice, and hospitality are lived out in practice and upheld in policy. Working with 28 congregations, NSM has three programs: Education and Leadership Development, Accompaniment, and Grassroots Organizing.
NSM opposes the termination of DACA because it will have a disastrous effect on many people in our member congregations and is a violation of our faith teachings. Terminating DACA not only impacts the 800,000 youth, but their parents and relatives. For example, we have a member from Honduras who has lived in the US for 30 years. She left Honduras and her family because of the poverty in her country. She slowly brought her family here, where they now have made a home. They are leaders in their church, have built families, and are all dedicated to improving their community. Two of her daughters have DACA, and the news of its termination was a crushing blow for her. All that she has sacrificed, all the 16 hour days at a sewing factory were for her children to have a better life. With the termination of DACA, it pulls away those dreams.
We work with the Latino and Indonesian community and have many DACA recipients who are leaders in their congregations and their community. In the Indonesian congregations, DACA is important because almost all of the young adults in some of the churches are DACA recipients. These recipients were brought here from Indonesia as children, many escaping antiChristian persecution. They are college students, with a GPA of 3.5 or higher. They have jobs like working as a bank teller, and lawyer's assistant. One of them even enlisted in the army and without DACA he wouldn't have that opportunity. Without DACA they would be stripped of their work permit and these bright minds aren't able to contribute to our society and economy. Their future and ability to provide for their families would be taken away. Finally, NSM believes terminating DACA is immoral and violates the religious teachings to welcome the stranger and love our neighbor.
60. New York Board of Rabbis
The New York Board of Rabbis (“NYBR”) is the largest and oldest interdenominational rabbinic organization in the world, representing the different streams of Jewish life in America. Our members serve communities in the Greater New York area and around the country. Established in 1881, the NYBR is the primary address for rabbis serving congregations, organizations, chaplaincies, communal service agencies, and schools. The Board seeks to enhance and expand the role of the Rabbinate for the betterment of the Jewish people and the world at large by providing its members with a spiritual environment and opportunities to grow professionally, promoting religious pluralism, and building bridges across denominations with other faiths. We are a central convener of multi-faith dialogues to promote increased understanding of one another and pursue avenues of common concern.
The Jewish community is an immigrant community spanning the history of America. From the first Jewish settlers who arrived in New Amsterdam in Lower Manhattan to the Jews
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who have come to this great nation in recent years. We believe that America is a great nation because of its diversity and its robust immigrant history. The NYBR proudly collaborates with legal and advocacy groups to support Dreamers and to keep our Nation's doors open to those who seek refuge on our shores. Recently we partnered with UNICEF USA to help Syrian refugees who are living in the United States. Our tradition teaches us to "welcome the stranger," created in the image of God and a respected member of the human family.
61. New York Conference United Church of Christ
The New York Conference United Church of Christ consists of over 270 local churches and 30,000 members, encompassing the entirety of New York State. The Conference is one of thirty-eight regional bodies of the United Church of Christ. We are committed to being led by the Spirit to faithful witness, compassionate justice, and bold Christian leadership. Guided by this mission, the ministries of the New York Conference, in all its settings, respond to the Still Speaking God and the gospel call for peace and justice. Embracing the United Church of Christ’s vision of “A Just World For All,” we believe that the elimination of the Deferred Action for Childhood Arrivals Program is contrary to our faith, which affirms the dignity and worth of all people regardless of country of origin or extent of documentation. The gospel of Jesus Christ compels us to extend an extravagant welcome to all, so that all may experience a “more and better life than they ever dreamed of” (John 10:10 The Message). The New York Conference signs on to this brief in support of all the Dreamers who are not only members of our congregations but our neighbors and friends.
62. Pacific Northwest Conference of the United Church of Christ
The Pacific Northwest Conference of the United Church of Christ (PNCUCC) is an organization of approximately 80 churches in Washington State, North Idaho and Alaska. Our Constitution and Bylaws open with this scriptural guidance; “The Lord has told us what is good. What God requires of us is this: to do what is just, to show constant love, and to live in humble fellowship with our God.” Out of this call from God, PNCUCC recently passed a resolution titled “A Call to Become Immigrant and Refugee Welcoming as a Conference and in Congregations.” This resolution is based on the belief that every immigrant and refugee has inherent dignity and human rights; that every immigrant and refugee should be able to live in safety, to live without fear, and have access to basic necessities and opportunities. Our churches live this out through works of direct service, worship, and advocacy. The repeal of DACA would mean the government would stand between us and those we are called to serve. It would make it much more difficult, and in some cases impossible, for us to fulfill the mission we’ve discerned God is calling us to.
63. Presbytery of New York City
The Presbytery of New York City began with immigrants who came to America more than 350 years ago and remains the most diverse presbytery in the United States. The Presbytery continues to aid and build up, and give hope to past and present immigrants and their children in our 100 congregations in the City of New York. The call to end DACA is unjust to people we know in our congregations who have played by the rules previously asked and expected a more welcoming path to American citizenship. Bible studies have dwindled; businesses have closed;
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DACA young adults have grown fearful and heard expulsive and assuming statements made to them with no basis in fact. It feels to us as a people of faith like ethnic cleansing and a return to white nationalist rule that belies and interferes with our calling by God to minister to the sojourner, the immigrant, the refugee, the destitute, and to love all our neighbors as we love ourselves.
64. Queens Federation of Churches
The Queens Federation of Churches was organized in 1931 and is an ecumenical association of Christian churches located in the Borough of Queens, City of New York. It is governed by a Board of Directors composed of equal number of clergy and lay members elected by the delegates of member congregations at an annual assembly meeting. Over 390 local churches representing every major Christian denomination and many independent congregations participate in the Federation’s ministry. Our ecumenical ministry in the nation’s most diverse county finds many congregations ministering to immigrants. Our concern to protect their Godgiven right to be in our part of the global household of God is paramount. Therefore, especially, we strongly support legal status for those who came to this country as children.
65. Religious Institute
Founded in 2001, the Religious Institute is a multi-faith organization dedicated to advocating for sexual, gender, and reproductive health, education, and justice in faith communities and society. With a network of more than 8,500 religious leaders and people of faith, the Religious Institute has a record of creating campaigns that mobilize thousands of religious leaders and hundreds of faith communities. The Religious Institute also has longstanding partnerships with graduate theological schools, denominations, religious organizations, and sexual, gender, and reproductive justice organizations . In all our work, we offer prophetic, moral leadership at the intersection of religion and sexuality, gender, and reproductive health. As part of that prophetic leadership, we oppose the termination of the DACA program. We hold that all people should be able to live and create families with dignity and respect, free from fear and state-based violence. The sacred worth of all people is inherent and in no way dependent on performance, productivity, or so-called ‘economic value.’
66. Romemu
Romemu is a Jewish community that seeks to integrate body, mind, and soul in a progressive, fully egalitarian community committed to tikkun olam, or social action, and to service that flows from an identification with the sacredness of all life. As a spiritual community grounded in the twin values of tikkun olam (social action) and a Divine connection meant to inspire us to live more holy and engaged lives, we feel that it is our duty and responsibility to speak out against injustice. As a Jewish community engaged with our historical narratives, we know that a large part of our own story has been shaped by being refugees and foreigners in strange lands. It is for this reason that the most repeated injunction in the Torah is the commandment to take care of and love the stranger. We know from our own families and historical stories what it is like to be strangers, and we are grateful and loyal to this country for the opportunities and blessings that it has provided. We have an obligation as religious, moral,
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and compassionate individuals to make sure that America continues to be a place where those marginalized can find economic security, freedom, and hope.
For all of these reasons and many more, we object to the repeal of the DACA program. As a faith community, we must advocate for our at-risk brothers and sisters regardless of their religion, ethnicity, or country of origin. We believe in equality of opportunity for all.
67. Santa Fe Monthly Meeting of the Religious Society of Friends (Quakers)
DACA is important to our Meeting because as Quakers we are guided by the values of Equality and Community not only within our Meeting but also in the world around us. We care about DACA recipients because they are threatened with an assault on their humanity—tearing them away from their homes, often the only homes they know, uprooting them from their families, jeopardizing their education and employment and denying them their fundamental human dignity. We cannot be faithful to the Light that Spirit has granted us and ignore what is being done in our name to these brothers and sisters.
68. Second Presbyterian Church, Albuquerque, New Mexico
We support the principles of universal human rights and believe there is an onus of society to support the most vulnerable members of society. We find this consistent with biblical ethics and with ideals our country is founded on. Ending DACA would be an assault on vulnerable, contributing members of society and the consequences would be damaging to individuals, families, and our country.
69. Sikh Coalition
The Sikh Coalition is a community-based civil rights organization that defends civil liberties, including religious freedom, for all Americans. Our mission is to promote educational awareness and advocacy, and provide legal representation in moving towards a world where Sikhs and other religious minorities may freely practice their faith without bias and discrimination. We are the largest community-based Sikh civil rights organization in the United States. Since its inception on September 11, 2001, the Sikh Coalition has worked to defend civil rights and liberties for all people, empower the Sikh community, create an environment where Sikhs can lead a dignified life unhindered by bias or discrimination, and educate the broader community about Sikhism in order to promote cultural understanding and diversity. The Sikh Coalition has vindicated the rights of numerous Sikh Americans subjected to bias and discrimination because of their faith. Ensuring the rights of religious and other minorities is a cornerstone of the Sikh Coalition’s work, including the individuals who would be affected by the rescission of DACA.
70. Sisterhood of Salaam Shalom
We are the only national grassroots organization dedicated to building trust, respect and relationships between Muslim and Jewish women. Based on those relationships, we commit to putting an end to hate of one another. It is not only an honor but the responsibility of the Sisterhood of Salaam Shalom to do whatever we can to make every child living in the US secure
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and to make every parent, grandparent, sibling and other relative worry-free regarding the safety of their children and their whole family being able to live in what is supposed to be the greatest country in the world.
71. Society for the Advancement of Judaism
The Society for the Advancement of Judaism (SAJ) is a synagogue located on the Upper West Side, with about 400 individual members. Within our community we have a standing SOJAC (Social Action Justice Committee) and an Immigrant Rights Action Team that seek to organize our members in support of fair and just immigration policies and to stand up for immigrant rights. We are active members of the Synagogue Coalition for Refugees and Immigrants, a coalition of New York synagogues fighting for the rights and dignity of refugees and immigrants. We believe that Dreamers contribute greatly to our society and believe they should be given a pathway to citizenship.
72. St. Andrew Presbyterian Church in Albuquerque, New Mexico
Our congregation, founded in 1959, is part of the Presbytery of Santa Fe, Presbyterian Church (U.S.A.). Our mission is to proclaim and live the Good News of Jesus Christ by: listening to a loving God; celebrating our faith together; nurturing each other in Christian love and spiritual growth; working for social justice and peace; reaching out in compassionate service; and being stewards of all God’s gifts.
In March 2017, St. Andrew Presbyterian Church declared itself to be an ally church to the Sanctuary Movement. Since then we have provided financial support and volunteers to the movement, offered educational forums about immigration and participated in acts of public witness in support of undocumented immigrants and immigration policy reform. We do so because as Christians we are called to love our neighbor as ourselves, and Jesus puts no limitation on our love of neighbor. The undocumented young people who are covered under DACA are our neighbors. The repeal of DACA would tear apart their families and our communities, causing irreparable harm.
73. St. Luke’s Episcopal Church in Long Beach
St. Luke’s Episcopal Church in Long Beach was the first parish to declare itself a sanctuary parish in the Episcopal Diocese of Los Angeles. St. Luke’s sees our commitment of standing with the oppressed and fighting against systems of oppression as part of our baptismal covenant. We welcome everyone equally and enthusiastically. Whatever religious background, age, race, gender, sexual orientation, or economic status, we welcome all. Scripture is clear that we should welcome the stranger in our midst and love one another as ourselves. St. Luke’s strives to be a beacon of hope to all immigrants and people who are marginalized by an unjust society.
74. St. Mark’s Episcopal Church (Albuquerque, New Mexico)
St. Mark’s Episcopal Church is committed to pursuing human rights and social justice for all people residing in our country and for this reason we call for the ongoing support of DACA
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recipients. It seems a cruel policy change to rescind protections and pathways to participation in our country for those who registered in good faith with our government. We believe that our defining story and scriptures teach us to welcome the stranger and the sojourner in our land. We value the lives of immigrants and know that their contributions to our economy, culture and national life are invaluable. We desire the continuation of DACA to ensure that these young people will be given the opportunity to thrive in safety so that they may offer their perspectives, ingenuity and creativity to our national life. Our baptismal covenant includes the vow to "seek and serve Christ in all people, loving our neighbors as ourselves." DACA recipients, immigrants, and refugees are our neighbors and we are compelled by our faith to seek and serve Christ in each one of them. Our baptismal covenant also includes the vow to "strive for justice and peace and respect the dignity of every human person." We believe that justice and peace are served when the rights of all people--especially vulnerable people, including immigrants and refugees, are protected.
75. St. Stephens’ Episcopal Church in Boston
St. Stephens’ Episcopal Church of Boston, MA serves the South End/Lower Roxbury Community. We seek to meet the out-of-school time needs of young people and families in Boston and Chelsea. The decision to end DACA would impact individuals and families who reside in our parishes and broader communities. Ending residency for those currently protected by the DREAM Act would move our country further away from the principles of justice that we seek as people of faith. In addition, supporting those impacted by the ending of the DREAM act would add to our already demanding program load—thereby negatively affecting the entire community. We add our voice to those asking the court to protect Dreamers by not to allowing the termination order to go into effect.
76. T’ruah: The Rabbinic Call for Human Rights
T’ruah: The Rabbinic Call for Human Rights is a network of 1,800 rabbis and cantors from all streams of Judaism that, together with the Jewish community, act on the Jewish imperative to respect and advance the human rights of all people. Grounded in Torah and our Jewish historical experience and guided by the Universal Declaration of Human Rights, we call upon Jews to assert Jewish values by raising our voices and taking concrete steps to protect and expand human rights in North America, Israel, and the occupied Palestinian territories. T'ruah's support of DACA is based in Jewish tradition and history. The Torah teaches the obligation to love the immigrant, just as God loves and cares for the immigrant: “The ger (immigrant) who sojourns with you shall be like a citizen unto you, and you shall love this person as yourself, for you were gerim in the land of Egypt. I am Adonai, your God.” (Leviticus 19:34) The ancient rabbis taught that the city of Sodom was considered the epitome of evil because the residents made laws prohibiting kindness to strangers. In addition, within the Jewish community, many families are alive today because of the relatively open immigration policies of the late 19th and early 20th centuries. And too many Jews died after being trapped in Europe when the borders closed in 1924. We understand the cruelty of forcing Dreamers back to the countries where they were born, but in many cases have never lived, and where — in some cases — their lives will be in danger.
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77. Temple Israel of the City of New York
Temple Israel of the City of New York, founded in 1870, is a Reform Jewish synagogue that welcomes all who choose to worship, study and celebrate within the Jewish community. Located on the Upper East Side on 75th street between Park and Lexington Avenues, we are a dynamic, inclusive neighborhood community. As a family of families, we are committed to building a diverse and inclusive congregation united by humanitarian values as expressed in our Jewish religious, educational, justice and social activities, and through these activities to create a rich, vibrant Judaism that enriches the lives of our congregants and responds to the demands of modern life.
Temple Israel of the City of New York stands on core Jewish values that affirm life and freedoms. Our people have been immigrants and refugees in need of aid from our ancestral days to now, and across our world history one of the greatest homes we have ever found is the United States of America. It is important to us that we keep America open as a land of opportunity for immigrants and refugees as it has been a promised land for so many. With that, to take away this great land of freedom from someone who has grown up in this country, is at home in this country, would be shameful and un-American; it goes against what makes America great, and to go back on this promise already made makes it even worse. The Torah tells us 36 times to aid the plight of the immigrant. Taking away the hand DACA has already extended is detrimental to our neighborhood, our New York City, our state, and country. We would see it reinstated immediately.
78. Temple Sinai (Washington, DC)
Temple Sinai is one of the largest Reform Jewish congregations in the Washington, DC area. Organized in 1951, the congregation has over 1,200 member families. The Temple Sinai community offers a great breadth of opportunities for participating in worship, programs, and services for all ages, as well as a remarkable Religious education program and NAEYCaccredited Nursery School. The temple’s mission statement and core values incorporate the primary reasons members belong to Temple Sinai – ritual observance, Jewish education, tikkun olam (repairing the world), belonging to a Jewish community and concern for Israel as a Jewish homeland. Temple Sinai has a distinguished tradition in each of these areas, with our particular focus through the lens of Reform Judaism.
Temple Sinai is committed to working on immigration issues in our country. Our own Jewish history of displacement as well as the Biblical injunction to “welcome the stranger” guide us in our work to welcome refugees, support those facing deportation, and strongly oppose the suspension of DACA.
79. Town and Village Synagogue, New York, New York
Town and Village Synagogue is an egalitarian, traditional synagogue, affiliated with the Conservative Movement. Located in lower Manhattan, NYC, T&V welcomes all people to share in its activities irrespective of gender, sexual orientation, race, ethnicity or religion. In its strategic plan T&V identifies as one of its "Core Values" Gemilut Hasadim (loving kindness) "caring for one another; committed to social justice and Tikkun Olam (social responsibility);
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engaged with our local and global communities for the betterment of all." It is joining in this Amicus to fulfill the Biblical precept that there be "one law for the citizen and for the stranger who dwells among you" (Exodus 12:49).
T&V oppose changes to the DACA program that will affect those brought here as children, some of whom are still attending school or higher education, or currently work here and who have known no other home than the United States. If DACA were to be terminated, these young people -- Americans in every respect but citizenship -- could be deported to dangerous countries they have never known, separated from their families, and forced to survive alone, many without even knowing the language. Members of the synagogue have attended workshops to help immigrants get their affairs in order should they face sudden arrest or deportation orders, as immigration policies are summarily changed.
80. Trinity Church Wall Street
Trinity Church Wall Street is a vibrant and growing Episcopal parish in Lower Manhattan. Guided by our core values of faith, integrity, inclusiveness, compassion, social justice and stewardship, Trinity’s mission is to build our neighborhood, train leaders of Christian communities for the future, and help our partners become financially sustainable to support their ministries. Trinity is committed to serving the most vulnerable in our neighborhood and to advocating for justice on behalf of those whose voices are not heard, including immigrants and “Dreamers.” We support fairness and safety for immigrants, whose contributions are essential to our city and our nation, and in that spirit, we oppose the termination of DACA.
We are concerned that ending DACA will mean that vulnerable people in our communities will be deported to countries they have little experience of, leaving dependent family members here; will lead them to live outside of the legal protections of New York City out of fear for their own safety; and will cause them to avoid the police, hospitals, schools, and other services designed for individual and public safety. Furthermore, the repeal of DACA is a turning back of policy that asked undocumented people to register with the government in return for a protected status. The fact that such registration is being used to target and deport them is a profound betrayal of trust by the U.S. government that should give pause to any immigrant to this country of immigrants.
81. Union for Reform Judaism, including the Reform Jewish Voice of New York State 82. Central Conference of American Rabbis 83. Women of Reform Judaism
The Union for Reform Judaism, whose 900 congregations across North America includes 1.5 million Reform Jews (including those that participate in Reform Jewish Voice of New York State), the Central Conference of American Rabbis (CCAR), whose membership includes more than 2000 Reform rabbis, and Women of Reform Judaism that represents more than 65,000 women in nearly 500 women's groups in North America and around the world, come to this issue rooted in both our Jewish tradition and our historical experience. Together, they lead us to support immigration policy that is compassionate and fair.
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84. Unitarian Universalist Mass Action Network
Unitarian Universalist Mass Action Network is a state action network that works in coalition with interfaith partners and organizations led by those who are directly affected by injustice. Our mission is to organize and mobilize Unitarian Universalists to confront oppression. It is through our social justice work that we live our values and principles that define our faith. One manifestation of oppression in which we deeply engage is immigrant rights. The level of cruelty, ignorance and hateful attacks perpetrated on immigrant communities is an offensive affront to human values. We are dedicated to confronting these attacks on families and the safety of our communities through building resistance networks. We support the DACA program and DACA recipients as part of our overall support for all immigrants. All families deserve the right remain together. Young people who have grown up in the US, were educated in our school systems and are integral members of our communities deserve to have a pathway to a legal status that allows them to work and obtain a post-secondary education. UU Mass Action works closely with many young leaders who have DACA status. Their families and friends are here and the only country they know is the US. Deporting these young people to a country where they typically know no one puts their lives in danger. Tearing families apart and endangering lives is immoral. We will not remain silent and allow this to occur.
85. Visitation BVM Church in Philadelphia, Pennsylvania
Visitation BVM is a multicultural Catholic parish located in the Kensington section of North Philadelphia. The majority of our parishioners come from Puerto Rico, the Dominican Republic, México, Honduras, Ecuador and Vietnam. Our mission is to preach Good News to an immigrant community who often struggle in their day to day living situations. These challenges have only increased over the past year as some of our members have been detained or deported.
Many of our young adults are protected by DACA, including our Pastoral Outreach Assistant. These young people call the United States their home. Some have little to no memory of the countries where they were born. They are in college or working as they strive to become productive members of society. These Dreamers are nervous about their future and want to make their families and their lives here in the U.S. - the country they call home.
Our church is a member of the New Sanctuary Movement and we were very involved in the sanctuary effort of Angela Navarro two years ago. We provided spiritual and material support to her and her family over the months she was in sanctuary. The Archdiocese of Philadelphia does not allow Catholic Churches to offer sanctuary so we collaborated with a neighboring Presbyterian Church. Our institution has not directly been the target of ICE raids but they have taken place in the neighborhood.
86. West End Synagogue (New York City)
West End Synagogue is a Reconstructionist congregation, affiliated with the Reconstructionist Movement. Located on the Upper West Side of Manhattan, NYC, West End Synagogue is a diverse group of individuals and families committed to exploring Jewish life and creating an intellectually challenging, spiritually vibrant, and mutually supportive community. Utilizing the principles of Reconstructionist Judaism, we celebrate the richness and diversity of
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Case 1:17-cv-05228-NGG-JO Document 170-1 Filed 12/22/17 Page 28 of 28 PageID #: 6911
Jewish tradition through study, prayer, meditation, music and tikkun olam, or acts of repairing the world.
West End Synagogue opposes changes to the DACA program that will affect those brought here as children. Many of these children are attending school, pursuing higher education, or working here and have known no other home than the United States. If DACA were to be terminated, these young people—Americans in every respect but citizenship -- could be deported to dangerous countries they have never known. They would be separated from their families, and forced to survive alone, many without even knowing the language. As immigrants, or children and grandchildren of immigrants who fled oppression, we are particularly sensitive to the situation of these young people who call the United States home. According to the Torah, “You shall treat the stranger as your own.” Maintaining the DACA program is a critical step in this direction. 87. Westminster Presbyterian Church of Santa Fé
Our congregation is fully inclusive and affirming of all people regardless of nationality, immigration status, ethnicity, social status or gender and sexual orientation, and a member of the Presbytery of Santa Fé and the Presbyterian Church (USA). Our denomination has consistently and historically expressed support for the values, safety, gifts, and perspective for immigrants of all nations, and has also called for the ongoing support and protection of DACA recipients. By signing on to the Amicus Brief, we reiterate our belief that justice and peace are served when the rights of all people—especially vulnerable people, including immigrants and refugees, are protected.
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 Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 1 of 26 PageID #: 6912

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MARTÍN JONATHAN BATALLA VIDAL, et al.,
Plaintiffs,
-against-
KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security, et al.,
Defendants.

Case No. 1:16-cv-4756 (NGG) (JO)

STATE OF NEW YORK, et al., Plaintiffs,
-againstDONALD TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Case No. 1:17-cv-5228 (NGG) (JO)

MEMORANDUM OF LAW OF AMICI CURIAE PUBLIC INTEREST ORGANIZATIONS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 2 of 26 PageID #: 6913

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............................................................................................

ii

PRELIMINARY STATEMENT ........................................................................................

1

INTEREST OF AMICI CURIAE ........................................................................................

2

BACKGROUND ................................................................................................................

2

I. The Role of PIOs Regarding DACA Applicants ...........................................

3

II. The Response of PIOs to the Rescission of DACA .......................................

5

III. Recent Problems Renewing DACA Confronted by the Clients of PIOs .......

7

ARGUMENT ......................................................................................................................

9

I. The Rescission of DACA Has Caused and Will Continue to Cause

Irreparable Harm to Clients Served by Amici PIOs .......................................

9

A. Dreamer Clients of Amici PIOs Have Limited Alternatives to DACA

9

B. By the Time the Duke Memo Was Released, It Was Too Late for

Many Dreamers to Apply for or Renew Their DACA .........................

9

C. Given the Arbitrary Rescission of DACA, Dreamers Are

Forced to Live in Fear and Can Be Offered No Meaningful

Assurances from PIOs...........................................................................

10

II. The Rescission of DACA Has Caused and Will Continue to Cause

Irreparable Harm to PIOs Themselves...........................................................

12

A. The Duke Memo Required PIOs to Devote Much More Time and

Attention to Addressing the Needs of DACA Clients at the

Expense of Other Clients ......................................................................

12

B. Even Clients Who Met the October 5, 2017 Deadline Were Wrongly

or Otherwise Improperly Denied Relief, Putting an Extraordinary

Burden on PIOs.....................................................................................

14

C. PIOs Now Have to Help Dreamers Who Lost Their DACA Meet

Basic Needs...........................................................................................

16

D. PIOs Will Lose Valuable Staff .............................................................

16

CONCLUSION ...................................................................................................................

17

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 3 of 26 PageID #: 6914

TABLE OF AUTHORITIES

Page(s)

Other Authorities

Alert: USCIS Guidance on DACA Renewal Requests Affected by Mail Service Issues,

USCIS, https://www.uscis.gov/news/alerts/uscis-guidance-daca-

renewal-requests-affected-mail-service-issues (last updated Nov. 30, 2017) ....................

15

Designation of Nepal for Temporary Protected Status, 80 Fed. Reg. 36,346

(June 24, 2015)....................................................................................................................

13

Extension and Redesignation of the Republic of Yemen for Temporary Protected Status,

82 Fed. Reg. 859 (Jan. 4, 2017) ..........................................................................................

13

Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg.

23,830 (May 24, 2017)........................................................................................................

13

Find Legal Services, USCIS, https://www.uscis.gov/avoid-scams/find-legal-services

(last visited Dec. 22, 2017) .................................................................................................

3

Guidance for an Exemption from the Fee for a Form I-765 Filed with a Request for

Consideration of Deferred Action for Childhood Arrivals, USCIS,

https://www.uscis.gov/forms/forms-and-fees/guidance-exemption-fee-form-i-765-

filed-request-consideration-deferred-action-childhood-arrivals

(last visited Dec. 22, 2017) .................................................................................................

7

Guidance on Rejected DACA Requests, USCIS,

https://www.uscis.gov/daca2017/guidance-rejected-daca2017

(last updated Dec. 14, 2017) ...............................................................................................

8

INS Issues Final Regulations for HRIFA, Immigration & Naturalization Servs.

(Mar. 21, 2000), https://www.uscis.gov/sites/default/files/files/pressrelease/

FinalRegsHRIFA_032100.pdf ............................................................................................

14

Letter from Martin Heinrich, U.S. Sen. for N.M., et al. to Elaine C. Duke, Acting Sec’y

of Homeland Sec. (Nov. 15, 2017), https://www.heinrich.senate.gov/download/letter-

to-dhs-on-daca-application-delays ......................................................................................

15

Letter from Members of Congress to Elaine C. Duke, Acting Sec’y, Dep’t Homeland

Sec. (Sept. 26, 2017), https://newhouse.house.gov/sites/newhouse.house.gov/files/

DACA%20Deadline%20Extension%20Letter_0.pdf .........................................................

7

ii

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 4 of 26 PageID #: 6915

Page(s)

Memorandum from Elaine C. Duke, Acting Sec’y, U.S. Dep’t of Homeland Sec.,

to James W. McCament, Acting Dir., USCIS, et al., https://www.dhs.gov/news/

2017/09/05/memorandum-rescission-daca .........................................................................

5

Memorandum from Janet Napolitano, Sec’y of Homeland Sec., U.S. Dep’t of

Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Prot.,

et al. (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-

discretion-individuals-who-came-to-us-as-children.pdf .....................................................

1

Press Release, Kamala D. Harris, In HSGAC Hearing, Sen Harris Presses Acting

DHS Sec Duke on Puerto Rico Response and DACA (Sept. 27, 2017),

https://www.harris.senate.gov/news/ press-releases/in-hsgac-hearing-sen-harris-presses-

acting-dhs-sec-duke-on-puerto-rico-response-and-dac.......................................................

7

Press Release, USCIS, Frequently Asked Questions: Rescission Of Deferred Action For

Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/

frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca ...............

10

Press Release, USCIS, Frequently Asked Questions - #2: Employment-Based Adjustment

Applications (July 27, 2007), https://www.uscis.gov/sites/default/files/files/

pressrelease/FAQ2.pdf ........................................................................................................

14

Liz Robbins, In Reversal, Immigration Agency Will Consider Delayed DACA Requests,

N.Y. Times (Nov. 15, 2017) ...............................................................................................

15

Liz Robbins, Number of DACA Applications Stuck in the Mail Tops 900, N.Y. Times

(Nov. 30, 2017), https://www.nytimes.com/2017/11/30/nyregion/daca-applications-

immigrants.html ..................................................................................................................

15

Liz Robbins, Post Office Fails to Deliver on Time, and DACA Applications

Get Rejected, N.Y. Times (Nov. 10, 2017).........................................................................

15

Termination of the Designation of Sudan for Temporary Protected Status,

82 Fed. Reg. 47,228 (Oct. 11, 2017)...................................................................................

13

Undocumented immigrants line up for relief from deportation, CNN.com

(Aug. 17, 2012) ...................................................................................................................

4

USCIS Reminds Syrians to Register for Temporary Protected Status, USCIS

(Sept. 25, 2012), https://www.uscis.gov/archive/archive-news/uscis-reminds-syrians-

register-temporary-protected-status ....................................................................................

14

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Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 5 of 26 PageID #: 6916

PRELIMINARY STATEMENT The undersigned organizations, as amici curiae, submit this brief in order to illustrate to the Court the widespread harm caused by the rescission of Deferred Action for Childhood Arrivals (“DACA”) from the perspective of a particular segment of the legal community— organizations that provide free or low-cost legal services to DACA recipients.1 These organizations (referred to herein generally as “public interest organizations” or “PIOs”) provide these services in a range of contexts, from large non-profit law firms, such as The Legal Aid Society, to small legal services and community-based organizations. The rescission of DACA has not only caused harm to immigrants themselves, but also to their families and communities, including the many organizations (such as PIOs) that serve those communities, and thus underscores the need to grant Plaintiffs’ motion for a preliminary injunction and restore DACA pending a final decision on the merits. When DACA was adopted in 2012, young undocumented immigrants brought to the United States as children through no choice of their own (known as “Dreamers”), could apply to remain and work lawfully in the United States. See Memorandum from Janet Napolitano, Sec’y of Homeland Sec., U.S. Dep’t of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al., at 2–3 (June 15, 2012) (“2012 DACA Memo”), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf. They gained the opportunities—previously denied to them as undocumented immigrants—to live, attend U.S. colleges and universities, work for living wages

1

The Legal Aid Society, African Services Committee, College Confident, The Door—A Center for

Alternatives, Empire Justice Center, The Immigrant and Non-Citizen Rights Clinic at the CUNY School of Law,

Immigrant Justice Corps, MinKwon Center for Community Action, Northern Manhattan Improvement Corporation,

Northwest Immigrant Rights Project, Safe Horizon, Sosa Law, South Bronx United, TODEC Legal Center, UnLocal

and Volunteers of Legal Service.

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 6 of 26 PageID #: 6917
and otherwise fully participate in their communities without fear of removal. PIOs saw it as their role to help unlock these opportunities for Dreamers and their families, and from the start dedicated many of their resources to assisting as many young people as possible to obtain and maintain DACA.
The termination of DACA five years later, on September 5, 2017, has upended the lives of Dreamers. It has stripped them of deferred action and with it the ability to remain and work in the United States. It has undermined the fabric of the communities in which they had been contributing so greatly. With no certainty about their futures in the only country they know as home, Dreamers are deeply fearful and concerned about their ability to support themselves and those who rely on them, including their parents, spouses and U.S.-citizen children.
Because there is so much at stake for so many, PIOs have likewise dedicated themselves to assisting as many Dreamers as possible to renew and maintain their status. The capacity of PIOs to manage the enormous impact of the rescission of DACA, however, is limited, and further illustrates the irreparable harm caused by the termination of DACA and the need for a preliminary injunction to prevent it.
INTEREST OF AMICI CURIAE The arbitrary rescission of DACA is detrimental to PIOs and their clients. It has not only burdened PIOs and unduly taxed their scarce resources but will also force these organizations, many of which employ individuals with DACA, to lay off valuable staff. Each of the amici therefore has a direct interest in challenging the unjustified rescission of DACA. See Addendum.
BACKGROUND On any typical day, there are simply not enough legal resources available to meet the legal needs of low-income non-citizens generally. That shortage has been exacerbated by the
2

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 7 of 26 PageID #: 6918
arbitrary and abrupt rescission of DACA on September 5, 2017. The impact was felt not only by
PIOs (and of course their Dreamer clients), but also by the partners of PIOs in the private bar, bar
associations and law schools. Moreover, as described below, the rescission also impacted the
unrelated clients of PIOs with other immigration needs who depend on PIOs for assistance.
Finally, it affects the advocates who work around the clock to improve the lives of all
immigrants.
I. The Role of PIOs Regarding DACA Applicants
Since DACA’s inception in 2012, PIOs have played a critical role in ensuring that
information on DACA reaches its intended beneficiaries. Relying on multilingual staff, PIOs
have provided young immigrants with accessible and reliable information about DACA by, for
example, creating know-your-rights pamphlets, hosting clinics and information sessions,
promoting information through social media and counseling members of their communities.
For many clients, PIOs also provide step-by-step assistance to candidates applying for
DACA, including:
1. Screening: PIOs screen interested candidates to ensure that they meet eligibility criteria, including age, entry, residency and criminal history requirements. They also provide legal advice on immigration law and United States Citizenship and Immigration Services (“USCIS”) policies and practices tailored to each applicant’s unique circumstances in order to confirm his or her eligibility for DACA.
2. Application: PIOs assist eligible candidates with completing and filing DACA applications, which is not a simple process. The DACA application instructions alone are fourteen pages, and, at a minimum, applicants must complete three separate forms—Form I-821D, Form I-765 and Form I-765WS—and provide supporting documents. It is therefore unsurprising that many applicants need legal assistance in preparing a DACA application, as USCIS itself has recognized. See Find Legal Services, USCIS, https://www.uscis.gov/avoid-scams/findlegal-services (last visited Dec. 22, 2017) (“If [applicants] are not sure . . . which USCIS forms to submit, then [they] may need immigration legal advice from an authorized service provider.”).
3

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 8 of 26 PageID #: 6919
3. Monitoring and Follow-up: PIOs continue to provide DACA-related services even after their clients’ applications have been submitted by monitoring the status of applications, reaching out to clients regarding updates and answering clients’ questions about USCIS follow-up, such as biometric appointments to obtain fingerprints and facial scans, which are required each time DACA is granted or renewed. If USCIS sends a request for evidence in order to further evaluate DACA eligibility or a rejection notice, PIOs generally assist clients in re-submitting an application and gathering any additional supporting documents or seeking alternative forms of immigration relief.
4. Anticipating and Handling Renewals: PIOs reach out to clients prior to the expiration of their two-year work authorizations and provide assistance with renewal applications. While the process is simpler than an initial application because all of the documentation needed to establish initial eligibility for DACA need not be re-submitted, each renewal application still requires applicants to refile Form I-821D, Form I-765 and Form I-765WS; pay the $495 filing fee; and submit supporting documents. PIOs work with clients to file their renewal applications, ensure that they are consistent with previous submissions and gather any necessary supporting documentation. Because an applicant’s circumstances may have changed since initially applying for DACA (due to, for example, travel outside of the country or an arrest since their initial application), applicants may need additional legal advice regarding renewal, which PIOs provide.
Thus, PIOs serve a critical function in helping potential candidates navigate DACA.
Consequently, the demand for their legal services following the issuance of the 2012 DACA
Memo was overwhelming: prospective applicants slept on sidewalks outside of PIOs in order to
be among the first to seek legal assistance in obtaining relief. See Undocumented immigrants
line up for relief from deportation, CNN.com (Aug. 17, 2012), http://www.cnn.com/2012/08/15/
us/immigration-deferred-deportation/index.html. For example, approximately 150 interested
candidates waited outside of The Legal Aid Society’s offices on each DACA clinic day in 2012.
The Legal Aid Society met with approximately seventy-five eligible candidates per day after the
announcement of DACA, and, even then, the need for services outstripped capacity. PIOs
worked to meet the demand. Indeed, amici have collectively handled over 10,000 DACA cases.
In addition, many PIOs provide immigration services beyond assisting with DACA
applications and often identify individuals eligible for permanent forms of immigration relief 4

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 9 of 26 PageID #: 6920
through their DACA outreach efforts. For example, The Legal Aid Society performs comprehensive eligibility screening for DACA applicants in an effort to select the most advantageous form of immigration relief available for each client, DACA or otherwise, such as Adjustment of Status, U Nonimmigrant Status (for victims of domestic violence who have cooperated with law enforcement) or asylum or other relief under the Convention Against Torture, and assists clients with applying for that selected form of relief. See also Brief of Legal Services Organizations 3–12, New York v. Trump, No. 1:17-cv-5228 (E.D.N.Y. Dec. 22, 2017) (“LSO Br.”). II. The Response of PIOs to the Rescission of DACA
As explained in Plaintiffs’ brief, in a sudden and unexpected change in policy, DACA was rescinded in its entirety in a memorandum issued by Acting Department of Homeland Security Secretary Elaine C. Duke on September 5, 2017 (“Duke Memo”). Memorandum from Elaine C. Duke, Acting Sec’y, U.S. Dep’t of Homeland Sec., to James W. McCament, Acting Dir., USCIS, et al., https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca. The Duke Memo provided an exception to this total withdrawal of DACA only for those people whose DACA would expire between September 5, 2017 and March 5, 2018. Individuals eligible for this exception could renew their work authorization for an additional two years. However, USCIS set an unprecedented and arbitrary one-month window (from September 5, 2017 to October 5, 2017) for those individuals to renew their DACA. Id. USCIS also required that renewal applications be physically received by USCIS on or before October 5, 2017. Id.
The termination of DACA and the arbitrary one-month window for renewal applications caused PIOs—which serve as a critical bridge in communicating information from USCIS to thousands of intended beneficiaries—to have to scramble. Following the release of the Duke
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Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 10 of 26 PageID #: 6921
Memo, PIOs had less than one month to develop and implement a comprehensive response. PIOs engaged in extensive community outreach and counseled candidates who were immediately and adversely impacted by the rescission, including those who had been eligible for DACA but had not yet applied as of September 5, 2017; who had let their status expire in reliance upon USCIS’s past practice of allowing a one-year renewal grace period (which in many cases was because candidates were unable to afford the $495 filing fee); whose DACA would expire after March 5, 2018; and who were not eligible for DACA at the time but would have been in the future. Absent other circumstances that would qualify clients for alternative forms of immigration relief, PIOs could do nothing to reassure these individuals of their ability to remain, live and work in the United States.
As to candidates whose DACA was set to expire between September 5, 2017 and March 5, 2018, and thus were eligible for renewal, there was simply not enough time to reach all of the individuals affected by this abrupt policy change. Some PIOs attempted to meet demand by working more than twelve-hour days, including every weekend from September 5, 2017 through October 4, 2017, and putting many new and less time-sensitive cases on hold. For example, The Legal Aid Society typically partners with thirteen community-based organizations to conduct monthly immigration outreach clinics to provide advice and representation to eligible individuals, reaching over 140 new individuals each month. However, the Duke Memo’s pronouncements substantially limited The Legal Aid Society’s ability to conduct business as usual. Although The Legal Aid Society continued its outreach through partner organizations during that period, it held in abeyance all but the most urgent new and pending matters in order to meet the staffing needs associated with DACA renewal. In the short timeframe provided under the Duke Memo, The Legal Aid Society focused on reaching out individually to its prior
6

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 11 of 26 PageID #: 6922

DACA clients to advise them of the renewal eligibility criteria and time period; meeting with DACA renewal clients in the office; conducting DACA renewal clinics; participating in the New York statewide DACA Day of Action sponsored by the Immigrant Active Response Collaborative; and operating an immigration hotline. PIOs with fewer resources than The Legal Aid Society could only conduct limited outreach. While some PIOs reviewed their client databases and contacted all individuals eligible to renew their DACA during this limited window, others did not have time to do so or simply could not reach all affected individuals.
Regarding eligible candidates whom they could reach, PIOs also recognized that many of their clients could not raise the $495 renewal application fee during the one-month renewal period.2 PIOs therefore sought to raise funds or drew on emergency funds in order to cover the application and other fees, such as mailing fees.3 III. Recent Problems Renewing DACA Confronted by the Clients of PIOs
Aside from depriving qualified candidates of the ability to obtain and maintain DACA relief going forward, USCIS’s conduct to date regarding renewal applications has prevented otherwise eligible candidates from successfully renewing and maintaining DACA in the short

2

Letter from Members of Congress to Elaine C. Duke, Acting Sec’y, Dep’t Homeland Sec. (Sept. 26, 2017),

https://www.uscis.gov/daca2017/guidance-rejected-daca2017 (“[T]he decision to require all DACA recipients

whose permits expire in the next six months to have their renewal submitted by October 5th is a deadline that is

arbitrary and puts an undue financial burden on many law abiding people within the program.”); see also Press

Release, Kamala D. Harris, In HSGAC Hearing, Sen Harris Presses Acting DHS Sec Duke on Puerto Rico Response

and DACA (Sept. 27, 2017), https://www.harris.senate.gov/news/press-releases/in-hsgac-hearing-sen-harris-presses-

acting-dhs-sec-duke-on-puerto-rico-response-and-daca (Senator Kamala Harris stated that the deadline requires

applicants to “provide a $495 application fee within one month,” and “supply two passport photographs, [which]

cost between about 15–20 dollars” and observed that the “last time I looked federal minimum wage is about $7.25

an hour.”).

3

Other PIOs advised clients regarding the process for obtaining a fee exemption. However, applying for a

fee exemption was risky because the exemption must be approved prior to filing a DACA renewal application, and

as such there is no guarantee that applicants seeking a fee exemption would be able to renew before October 5,

2017. See Guidance for an Exemption from the Fee for a Form I-765 Filed with a Request for Consideration of

Deferred Action for Childhood Arrivals, USCIS, https://www.uscis.gov/forms/forms-and-fees/guidance-exemption-

fee-form-i-765-filed-request-consideration-deferred-action-childhood-arrivals (last visited Dec. 22, 2017).

7

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 12 of 26 PageID #: 6923
term. USCIS has rejected many DACA renewal applications as a result of mail delays and minor clerical errors. For example, USCIS rejected as untimely numerous renewal applications that had arrived at the proper USCIS post office boxes on October 5, 2017, the filing deadline, and were marked ready for pick-up on that day but that USCIS, with no credible justification, did not appear to have collected until the following day, after the deadline had passed.
Other clients’ applications, which were mailed well in advance of the October 5, 2017 deadline, were inexplicably delayed by the United States Postal Service (“USPS”) for weeks and in some cases over a month, as discussed below. As a result of this admitted error by USPS, and through no fault of the applicants, these applications were not received by USCIS by the October 5, 2017 deadline and were subsequently rejected by USCIS as untimely. See Guidance on Rejected DACA Requests, USCIS (“Q&A”), https://www.uscis.gov/daca2017/guidancerejected-daca2017 (last updated Dec. 14, 2017). For example, an Immigrant Justice Corps client mailed an application via USPS on September 15, 2017, but it was not received at USCIS’s Chicago lockbox until October 18, 2017 and was rejected as untimely. Although USCIS has stated that it will invite applicants affected by USPS mail delays to reapply, it will only do so where USPS can identify the individual or where the individual can otherwise prove to USCIS’s Lockbox Support that there was a USPS error. See id.
In addition, other applications appear to have been rejected by USCIS for alleged clerical errors, with no possibility for relief. For example, a South Bronx United client mailed an application on September 18, 2017, which USCIS marked as received on October 11, 2017. It was rejected not for untimely filing but erroneously for lacking the current DACA expiration date (even though proof of expiration was included in the materials). When South Bronx United followed up on October 31, 2017, USCIS claimed that there was no record of receipt of the
8

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 13 of 26 PageID #: 6924
application, despite having issued a rejection letter dated October 29, 2017, and reiterated its position that USCIS was no longer accepting DACA renewals.
As PIOs have become aware of the erroneous or arbitrary conduct of USCIS in relation to mail delays and clerical errors, PIOs have devoted significant time and attention to advocate on behalf of clients, who made every effort to comply with USCIS instructions and deadlines but whose applications were rejected through no fault of their own. PIOs’ advocacy has resulted in relief for certain applications rejected as a result of USPS’s delays, but USCIS’s refusal to reconsider other, equally compelling cases further justifies preliminary injunctive relief.
ARGUMENT I. The Rescission of DACA Has Caused and Will Continue to Cause Irreparable
Harm to Clients Served by Amici PIOs A. Dreamer Clients of Amici PIOs Have Limited Alternatives to DACA As set forth in Plaintiffs’ brief, Dreamers have suffered and will continue to suffer grave harm each day until action is taken to rescind the Duke Memo. As professionals with a wealth of experience screening and representing DACA applicants, PIOs nevertheless have few alternatives to offer most of their clients, who have lost or are at risk of losing their abilities to continue working, learning and caring for and supporting themselves and their families. See LSO Br. 3–12. The services that PIOs are able to provide under these circumstances are much more limited, and primarily relate to counseling, referrals and advocacy. However, injunctive relief will allow Dreamers to return to school and/or work and will restore the ability of many PIOs to deliver the legal services to Dreamers required to access these opportunities. B. By the Time the Duke Memo Was Released, It Was Too Late for Many
Dreamers to Apply for or Renew Their DACA Although PIOs attempted to counsel their clients in person, via email and through
9

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 14 of 26 PageID #: 6925
emergency hotlines once the Duke Memo was released, they could not provide meaningful answers and assurances to many clients. For example, they could not help those who were ineligible for other forms of immigration relief and who were in the process of preparing initial DACA applications prior to September 5, 2017 but who suddenly became ineligible to apply as a result of the Duke Memo. Nor could they assist clients who had been granted DACA but who had not yet renewed their status, acting in reliance upon the one-year filing grace period offered by USCIS until the issuance of the Duke Memo. Without preliminary injunctive relief, these clients may never be eligible for a status that would enable them to obtain work authorization, enroll in and obtain financial aid for higher education and otherwise live outside of the shadow of the threat of removal. Without preliminary relief, PIOs will likewise be unable to use legal resources to improve the lives of Dreamers and their families and better serve immigrant communities in pursuit of their missions.
C. Given the Arbitrary Rescission of DACA, Dreamers Are Forced to Live in Fear and Can Be Offered No Meaningful Assurances from PIOs
Based on USCIS’s recent guidance, PIOs are no longer able to assure their clients that information they had already provided to the federal government in order to obtain DACA would not be used in removal proceedings against them or their family members. See Press Release, USCIS, Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/frequently-asked-questionsrescission-deferred-action-childhood-arrivals-daca. See also LSO Br. at 12 n.26 (DACA recipients are at higher risk of deportation because they provided personal information to the government as part of the DACA application process).
Many PIOs believe that their inability to give such assurances also caused a reduction in the number of DACA clients willing to take advantage of the legal services offered by PIOs. As
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noted above, the Duke Memo provided one month for those with DACA expiring between September 5, 2017 through March 5, 2018 to submit renewal applications, so PIOs attempted to meet demand by holding all-day legal clinics, where individuals interested and/or eligible to renew their DACA could receive in-person assistance completing and filing their applications. In the experiences of many of the amici, some of these legal clinics were not filled, much less over-subscribed, and stood in stark contrast to the experiences of PIOs after the release of the 2012 DACA Memo, where PIOs could not meet the overwhelming demand for assistance. Based on conversations with community members, PIOs believe that this lack of demand is partly attributable to the very short timeframe available for outreach but also to fears surrounding the rescission of DACA and hostility toward immigrants under the Trump administration. See Third Am. Compl. ¶¶ 89-100, Batalla Vidal, ECF No. 113. See also LSO Br. at 12–17 (recognizing that the current political climate has led to fear in immigrant communities, as well as a corresponding reluctance to access public services such as medical care and law enforcement). As a result of well-founded fears in immigrant communities, DACA clients otherwise eligible to renew their status likely did not take advantage of services that could have resulted in at least a short-term extension of their DACA. The only remedy for such clients is preliminary injunctive relief, which will, in turn, allow PIOs to dispel any unreasonable fears in immigrant communities, lead to an increase in the uptake of free- or low-cost legal services and allow PIOs once again to provide the services that lead to material improvements for Dreamers and their families.
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II. The Rescission of DACA Has Caused and Will Continue to Cause Irreparable Harm to PIOs Themselves A. The Duke Memo Required PIOs to Devote Much More Time and Attention to Addressing the Needs of DACA Clients at the Expense of Other Clients PIOs are accustomed to adapting to changing legal landscapes, but the changes
introduced by the Duke Memo were unprecedented and continue to cause ongoing harm. When DACA was first announced, PIOs shifted resources to assisting as many qualifying immigrants as possible to obtain DACA. The private bar, bar associations and law schools likewise worked to get the word out and assist Dreamers. As those same clients became eligible for renewal of their DACA or work authorization, PIOs in the ordinary course of business engaged in outreach efforts to ensure that Dreamers were aware of upcoming deadlines and would be in a position to renew their DACA, including assembling the necessary paperwork and fees, on time. This also allowed PIOs to organize their outreach efforts for DACA clients and balance the needs of DACA clients against other matters. In contrast, the arbitrary nature of the policies announced in the Duke Memo—the extraordinarily short renewal period, combined with the failure to notify affected individuals of all of the processes that would guide the adjudication of renewal submissions—have meant that PIOs are struggling to pursue their work in an orderly and efficient fashion and efforts to pursue their mission of serving their communities to the fullest extent possible are being limited for reasons beyond their control.
PIOs were forced to make difficult choices in allocating their scarce resources upon the issuance of the Duke Memo. Many PIOs have limited staff with a wide range of responsibilities, including but not limited to immigration services, and therefore PIOs had to triage among DACA clients and other matters. The only option for many PIOs was to put on hold non-DACA cases that did not need immediate attention and return to those matters after October 5, 2017. For
12

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example, PIOs postponed client appointments or scheduled them for later dates, and attorneys and paralegals deferred drafting, research and advocacy on other issues until after October 5, 2017.
Smaller and less well-resourced organizations struggled under existing caseloads, including cases that could not be delayed. Some PIOs coped with the demand for assistance with DACA by referring non-DACA clients elsewhere at the expense of those client relationships. PIOs are also concerned that their inability to help all individuals, precisely at the time when those individuals turned to PIOs for assistance, has eroded the trust and confidence of their communities and undermined PIOs’ ability to serve them in the future.
Moreover, large and small PIOs alike were pressed to conduct outreach and thoroughly counsel clients in an unprecedented, short timeframe,4 and had to engage in time-consuming counseling sessions in order to screen former DACA candidates for alternative forms of affirmative immigration status. For example, attorneys for The Legal Aid Society spent approximately thirty minutes to an hour screening each DACA client for eligibility for other forms of relief.
Fear and distrust generated by the Duke Memo compounded these challenges, as

4

Moreover, the arbitrary, 30-day renewal timetable contrasts with deadlines for other forms of immigration

relief. See, e.g., Extension and Redesignation of the Republic of Yemen for Temporary Protected Status, 82 Fed.

Reg. 859, 859 (Jan. 4, 2017); Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg.

23,830, 23,830 (May 24, 2017). For example, temporary protected status (“TPS”) temporarily defers removal and

grants work authorization to citizens of countries where repatriation is unsafe or unworkable. When USCIS has

rescinded TPS status for certain countries, it has provided twelve months’ notice from the current designation, plus a

60-day re-registration period, in order “[t]o provide for an orderly transition.” Termination of the Designation of

Sudan for Temporary Protected Status, 82 Fed. Reg. 47,228, 47,228 (Oct. 11, 2017). DACA, on the other hand, was

rescinded with only six months’ notice following the end of the current designation, plus a 30-day renewal period.

In addition, USCIS typically permits TPS applicants to re-submit applications that were submitted before the

deadline and rejected for technical reasons, which contrasts with USCIS’s refusal to allow the resubmission of

DACA applications rejected for technical reasons, except for selected applicants affected by USPS error. See, e.g.,

Designation of Nepal for Temporary Protected Status, 80 Fed. Reg. 36,346, 36,348 (June 24, 2015) (permitting

applicants who filed application forms before the deadline and were denied a fee waiver by USCIS fewer than 45

days before the filing deadline to re-file the application within the 45-day period after the date of USCIS’s fee

waiver denial notice).

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otherwise eligible individuals became reluctant to access legal services or provide information to USCIS. For example, college counselors and social workers called The Legal Society with questions on behalf of DACA applicants too afraid to meet with staff and volunteers from a legal services organization. Accordingly, PIOs in some cases had to liaise with intermediaries before they could even reach affected individuals by the rescission of DACA.
B. Even Clients Who Met the October 5, 2017 Deadline Were Wrongly or Otherwise Improperly Denied Relief, Putting an Extraordinary Burden on PIOs
Despite the difficult circumstances following the arbitrary rescission of DACA and the fears it generated among clients, PIOs were able to submit many applications for renewed DACA by the October 5, 2017 deadline. However, some of these applications were nevertheless wrongly rejected or rejected without any credible or justifiable basis. For example, the Duke Memo did not specify a cutoff time for receipt of applications on the date of the renewal deadline (itself a departure from past USCIS practice, which only required applications to be postmarked by the published deadline, not physically received by that deadline). See, e.g., USCIS Reminds Syrians to Register for Temporary Protected Status, USCIS (Sept. 25, 2012), https://www.uscis.gov/archive/archive-news/uscis-reminds-syrians-register-temporary-protectedstatus; see also Press Release, USCIS, Frequently Asked Questions - #2: Employment-Based Adjustment Applications (July 27, 2007), https://www.uscis.gov/sites/default/files/files/ pressrelease/FAQ2.pdf. In the absence of a specified cutoff time, it is common sense—and consistent with past practice—for USCIS to accept applications until 11:59 p.m. on the day of any deadline. See, e.g., INS Issues Final Regulations for HRIFA, Immigration & Naturalization Servs. (Mar. 21, 2000), https://www.uscis.gov/sites/default/files/files/pressrelease/ FinalRegsHRIFA_032100.pdf. Indeed, the government has admitted in this case that “USCIS
14

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applied a deadline of 11:59 PM on October 5, 2017.” Letter from Defendants to Judge Garaufis Ex. 4 at 1, Batalla Vidal, ECF No. 106. However, some applications received at designated USCIS post office boxes after 6:00 p.m. but before 11:59 p.m. were rejected as untimely with no justification by USCIS.
Moreover, USCIS’s post hoc attempts to remedy certain rejections—a response to advocacy efforts by PIOs5—were wholly inadequate. First, USCIS’s attempts to date cast too narrow of a net. For instance, they do not necessarily allow all applications that were received on October 5, 2017 before 11:59 p.m. and were nevertheless rejected by USCIS to be re-filed,6 meaning that PIOs need to continue devoting resources to challenging USCIS’s arbitrary and unreasonable conduct.

5

Even after learning that USPS error affected over seventy applicants, USCIS initially took the position that

applicants were responsible for the method of delivery selected by them. See Liz Robbins, Post Office Fails to

Deliver on Time, and DACA Applications Get Rejected, N.Y. Times (Nov. 10, 2017),

https://www.nytimes.com/2017/11/10/nyregion/post-office-mail-delays-daca-applications.html. It was only after

significant advocacy by PIOs and congressional intervention that USCIS altered its position. See, e.g., Letter from

Martin Heinrich, U.S. Sen. for N.M., et al. to Elaine C. Duke, Acting Sec’y of Homeland Sec. (Nov. 15, 2017),

https://www.heinrich.senate.gov/download/letter-to-dhs-on-daca-application-delays; Liz Robbins, In Reversal,

Immigration Agency Will Consider Delayed DACA Requests, N.Y. Times (Nov. 15, 2017),

https://www.nytimes.com/2017/11/15/nyregion/uscis-immigration-daca-requests.html.

On November 15, 2017, USCIS acknowledged USPS error and asked applicants to await further guidance. Alert: USCIS Guidance on DACA Renewal Requests Affected by Mail Service Issues, USCIS, https://www.uscis.gov/news/alerts/uscis-guidance-daca-renewal-requests-affected-mail-service-issues (last updated Nov. 30, 2017). Despite promising to publish detailed guidance on November 20, 2017, USCIS did not post additional details until November 30, 2017. See Q&A. When it posted the Q&A, USCIS acknowledged that over 900 applications had been affected by USPS error. Liz Robbins, Number of DACA Applications Stuck in the Mail Tops 900, N.Y. Times (Nov. 30, 2017), https://www.nytimes.com/2017/11/30/nyregion/daca-applicationsimmigrants.html.

Under this guidance, USCIS will individually reach out to applicants whom they unilaterally have deemed to be affected by USPS error. See Q&A. Those lucky enough to receive an invitation to apply for reconsideration will have thirty-three days to respond. Id. Meanwhile, the DACA of many of these same individuals has expired, and USCIS has refused to make retroactive the limited number of renewals it grants. Id. Once their DACA expires, individuals accrue “unlawful presence,” which can result in strict time-bars to reentering the United States. See LSO Br. at 8–9. Additionally, lack of retroactivity forces employers to terminate these individuals, even while they await renewal decisions.

6

See Q&A (“If you identify a clear error by USCIS in the processing of your renewal request, USCIS may

exercise its discretion to review your request again.”).

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Second, the guidance that USCIS has provided on wrongly rejected applicants whom it will invite to reapply is vague. Without clear information from USCIS regarding the criteria it will apply in reconsidering rejected applications, the legal community does not know which cases will be automatically resolved by USCIS based on any applicable criteria and which cases will require individual advocacy (for matters that, for example, do not clearly fall under applicable criteria but may nevertheless still qualify for reconsideration). Unable to rely on published agency protocols to advise their clients, PIOs have been forced to advocate on their clients’ behalves using inefficient means and must dedicate outsize resources for every single case.
C. PIOs Now Have to Help Dreamers Who Lost Their DACA Meet Basic Needs Because former DACA recipients have in many cases lost gainful employment, PIOs now must spend time and resources providing or referring former DACA candidates to community-based organizations for help, such as food pantries, free clinics and organizations that offer cash grants, which in turn strains limited charitable resources and diverts them to people who—but for USCIS’s arbitrary conduct—did not previously need such support. D. PIOs Will Lose Valuable Staff Many amici PIOs are leanly staffed, have invested considerable time and resources in training their employees and stand to lose valuable team members solely as a result of the arbitrary rescission of DACA. Because their Dreamer employees will lose their work authorization, many of the amici will be forced to lay off valuable employees. For example, thirty percent of the staff of South Bronx United are DACA recipients. The loss of DACA staff undermines the ability of the amici to fully serve their communities. The Dreamer staff of amici PIOs have the desirable language skills and cultural
16

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 21 of 26 PageID #: 6932
competency to work with immigrant communities and are therefore uniquely suited to leverage their experiences, knowledge, existing networks and trust of their communities to reach and meet the needs of immigrants, including vulnerable and marginalized people. For example, Immigrant Justice Corps regularly grants fellowships to DACA recipients, who are then trained to work as immigrant specialists in PIOs and other community based organizations and become future leaders in immigration and other legal services. Without DACA, such Dreamer fellows and graduates of the program will be unable to put their skills, training and experience to use in their communities. Thus, the rescission of DACA forces the amici to lay off their DACA staff, reduces the already limited amount of free and low-cost legal services available and undermines the ability of the amici to carry out their missions.
CONCLUSION For the foregoing reasons, the Duke Memo impedes the ability of the undersigned amici to serve their communities, overburdens the scarce resources of PIOs to provide no- or low-cost legal aid and imposes a direct harm on their clients and employees, many of whom are DACA recipients. Accordingly, the Court should grant Plaintiffs’ request for provisional relief.
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Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 22 of 26 PageID #: 6933
Dated: December 22, 2017 New York, New York Respectfully submitted,
nathan S. Kolodner jkolodner@cgsh.com) Erica Klipper (eklipper@cgsh.com) Rikki S. Stern (Of Counsel) Jessa DeGroote (Of Counsel) CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999
Attorneys.for Amici Curiae The Legal Aid Society, African Services Committee, College Confident, The Door-A Center for Alternatives, Empire Justice Center, The Immigrant and Non-Citizen Rights Clinic at the CUNY School of Law, Immigrant Justice Corps, MinKwon Center for Community Action, Northern Manhattan Improvement Corporation, Northwest Immigrant Rights Project, Safe Horizon, Sosa Law, South Bronx United, TODEC Legal Center, UnLocal and Volunteers of Legal Service
nour Mmes, t orney-in-Chief Adriene Holder, Attorney-in-Charge, Civil Practice (Of Counsel) Hasan Shafiqullah, Attorney-in-Charge, Immigration Law Unit Leena Khandawala, Supervising Attorney, Immigration Law Unit (Of Counsel) Judith Goldiner, Attorney-in-Charge, Law Reform Unit Jennifer Levy, Supervising Attorney, Law Reform Unit Susan Welber, Staff Attorney, Law Reform Unit (Of Counsel) THE LEGAL AID SOCIETY 199 Water Street New York, New York 10038 T: 212-577-3300
In Pro Se as Amicus Curiae
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Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 24 of 26 PageID #: 6935
Addendum
1. The Legal Aid Society in New York City is the nation’s oldest and largest not-for-profit provider of legal services to low-income clients. Through three major practice areas— Civil, Criminal and Juvenile Rights—The Legal Aid Society handles approximately 300,000 cases a year in city, state and federal courts and uses administrative, legislative and affirmative litigation to impact millions more. The Legal Aid Society’s Civil Practice addresses the diverse legal needs of New Yorkers and includes an Immigration Law Unit consisting of over sixty staff who provide comprehensive immigration representation, including challenging removal proceedings and detention to prevent the separation of immigrant families, and assisting clients with affirmative applications for assistance, including DACA. In particular, The Legal Aid Society has advised and represented over 2,000 Dreamers since the inception of the DACA program.
2. African Services Committee (“ASC”) provides health, housing, legal, educational and social services to 6,500 immigrants, refugees and asylees from across the African Diaspora each year. ASC’s legal department provides a broad range of immigration and naturalization services, both for free and at a low cost, and historically handles approximately thirty DACA cases each year.
3. College Confident is an innovative college access program servicing 3,000 young people through public high schools in all five boroughs of New York City. College Confident increases application and matriculation rates for partnering high schools and fosters confidence and leadership skills in college-bound students. College Confident’s staff, including two staff members with DACA, assist immigrant families in navigating the college application and college enrollment process.
4. The Door—A Center for Alternatives, Inc. (“The Door”) empowers young people by providing comprehensive youth development services. The Door’s Legal Services Center represents young people in immigration matters and has historically handled fifty DACA cases per year.
5. Empire Justice Center is a statewide, not-for-profit public interest law firm in New York with offices in Rochester, Albany, White Plains, Yonkers and Central Islip. Established in 1973, Empire Justice Center’s mission is to protect and strengthen the legal rights of people in New York State who are poor, disabled or disenfranchised through systems change advocacy, direct representation, as well as training and support to other advocates and organizations, in a range of substantive law areas, including immigration. Empire Justice Center’s immigration practice provides direct representation to low-income and indigent immigrants in the Hudson Valley and on Long Island. Empire Justice Center provides representation to about 200 immigrants each year, in removal proceedings, family-based immigration, asylum, VAWA and other applications for humanitarian relief. In addition, Empire Justice Center has historically represented fifty to 100 DACA applicants per year.
6. The Immigrant and Non-Citizen Rights Clinic at the CUNY School of Law provides direct services, advocacy and educational resources for immigrants seeking either to be
2

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 25 of 26 PageID #: 6936
free from U.S. custody or to live in the United States without fear, exploitation and subordination. The CUNY School of Law represents and provides resources for undocumented students throughout and beyond the CUNY system, including those with DACA and Temporary Protected Status. The CUNY School of Law also provides resources to immigrant students about deportation defense, work authorization and professional licensing, healthcare and other public benefits and advanced parental planning.
7. Immigrant Justice Corps was the country’s first immigration legal fellowship program and trains over seventy law school and college graduates as fellows, including Dreamers, to provide direct legal services in community-based organizations nationwide. Immigrant Justice Corps’ fellows handled approximately 500 DACA cases last year alone.
8. MinKwon Center for Community Action (“MinKwon Center”) has empowered the Korean American community and partnered with the wider Asian American and immigrant communities to provide a range of free social and legal services to more than 8,000 low-income individuals. It has helped nearly 300 individuals file for DACA every year. The MinKwon Center also employs two DACA recipients to run the Asian American Dreamers Collective, an immigrant rights advocacy group affiliated with the Center.
9. Northern Manhattan Improvement Corporation (“NMIC”) provides legal, social, educational and career services, as well as weatherization support, in order to deliver comprehensive assistance to New Yorkers. NMIC provides full-service immigration representation and has historically handled thirty DACA cases each year.
10. Northwest Immigrant Rights Project (“NWIRP”) promotes justice by defending and advancing the rights of immigrants through direct legal services, systemic advocacy and community education. NWIRP has provided direct representation and pro se assistance to hundreds of DACA applicants, including those in removal proceedings. In collaboration with its community partners and volunteers, NWIRP has hosted monthly DACA clinics since 2012.
11. Safe Horizon through its Immigration Law Project has provided legal services to immigrants who are victims of crime, abuse, domestic violence, trafficking and torture in immigration court and administrative applications. Safe Horizon has handled over 160 DACA applications and has two Dreamers on its staff.
12. Sosa Law is an immigration and litigation law practice based in New York City and is dedicated to providing high-quality and affordable immigration representation. Sosa Law offers compassionate and culturally sensitive immigration representation in English and Spanish and has assisted DACA recipients on a pro bono basis.
13. South Bronx United helps youth build character, teamwork and leadership skills and serves over 1,000 boys and girls each year through soccer programming and other social services, including immigration-related services. South Bronx United employs three
3

Case 1:17-cv-05228-NGG-JO Document 171 Filed 12/22/17 Page 26 of 26 PageID #: 6937
individuals with DACA as leaders of its recreational soccer programming, and its sole staff attorney handles approximately ten DACA cases per year. 14. TODEC Legal Center (“TODEC”) empowers disenfranchised immigrant communities by providing community education, information and immigration legal services to limitedand non-English speaking people, including immigrants and migrant workers in Southern California, and serves over 20,000 participants each year. TODEC employs three individuals with DACA and handles between 200 and 500 DACA applications, including renewals, per year. 15. UnLocal serves the unmet legal needs of immigrant New Yorkers, with a focus on complex cases and low- to middle-income immigrants who do not qualify for free legal services but cannot afford an attorney. UnLocal’s immigration staff, including one DACA recipient, provide services ranging from removal defense to family-based petitions and last year handled nearly fifty DACA cases. 16. Volunteers of Legal Service (“VLS”) provide pro bono legal assistance to New Yorkers in partnership with New York City law firms. VLS’s three-person Immigration Project staff provide direct immigration assistance to students in nineteen public high schools across New York City and have historically provided full representation to over fifty DACA clients each year.
4

 
 Case 1:17-cv-05228-NGG-JO Document 172 Filed 12/22/17 Page 1 of 36 PageID #: 6938

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BATALLA VIDAL, et al., Plaintiffs,
v. KIRSTJEN M. NIELSEN, et al.,
Defendants.

CASE No. 1:16-cv- 04756-NGG-JO

STATE OF NEW YORK, et al., Plaintiffs,
v. DONALD TRUMP, et al.,
Defendants.

CASE No. 1:17-cv-05228-NGG-JO

AMICUS BRIEF OF THE CITY OF LOS ANGELES, 27 ADDITIONAL CITIES AND COUNTIES, THE NATIONAL LEAGUE OF CITIES AND
THE UNITED STATES CONFERENCE OF MAYORS IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION

Case 1:17-cv-05228-NGG-JO Document 172 Filed 12/22/17 Page 2 of 36 PageID #: 6939
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii STATEMENT OF INTEREST OF AMICI CURIAE ...................................................................... 1 ARGUMENT .................................................................................................................................. 8 I. This Court should grant a preliminary injunction prohibiting Defendants’ from
rescinding the DACA program because DHS acted arbitrarily and capriciously and failed to follow the notice and comment procedures in violation of the APA. ...................... 9 A. The Plaintiffs will prevail on the merits of their substantive APA claim because
DHS’s sole stated reason for ending the DACA program was conclusory and relies upon flawed legal analysis. ................................................................................. 9 B. The Attorney General’s stated policy reasons for ending DACA have no basis in fact and are easily disproven by numerous research studies. ................................. 12 C. DHS failed to follow the APA’s notice and comment requirements prior to moving to rescind DACA, which is why the Plaintiffs will prevail on the merits of their procedural APA claim. ................................................................................... 17 II. Defendants’ should be preliminarily enjoined from using DACA applicants’ information for immigration-enforcement purposes............................................................ 18 A. The Plaintiffs will prevail on the merits of their APA claim against DHS’s change to its confidential information policy because Defendants’ failed to provide any explanation whatsoever for the policy change, let alone a basis that was not “arbitrary and capricious.”............................................................................. 18 B. DHS’s change in its policy regarding the permissible uses of sensitive DACA information infringes upon Plaintiffs’ due process rights and, therefore, violates the APA prohibition of federal agency action that is “contrary to constitutional right, power, privilege, or immunity.” ........................................................................ 22 CONCLUSION............................................................................................................................. 25
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TABLE OF AUTHORITIES

CASES

Page(s)

Am. Forest Resource Coun. v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013) .............................................................................................18

Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) ...............................................................................................21

Arizona v. United States, 567 U.S. 387 (2012).................................................................................................................11

Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800 (1973).................................................................................................................20

Bd. of Regents v. Roth, 408 U.S. 564 (1972).................................................................................................................23

Community for Creative Non-Violence v. Pierce, 786 F.2d 1199 (D.C. Cir. 1986) ...............................................................................................12

Communs. & Control, Inc. v. FCC, 374 F.3d 1329 (D.C. Cir. 2004) ...............................................................................................20

Connell v. Higginbotham, 403 U.S. 207 (1971).................................................................................................................23

Goldberg v. Kelly, 397 U.S. 254 (1970).................................................................................................................23

Goldsmith v. Board of Tax Appeals, 270 U.S. 117 (1926).................................................................................................................24

Heckler v. Community Health Servs., 467 U.S. 51 (1984)...................................................................................................................21

Illinois v. Interstate Commerce Com., 722 F.2d 1341 (7th Cir. 1983) .................................................................................................20

Michigan v. EPA, 135 S. Ct. 2699 (2015).............................................................................................................13

Morrissey v. Brewer, 408 U.S. 471 (1972).................................................................................................................22

Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).........................................................................................................9, 17, 18
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Case 1:17-cv-05228-NGG-JO Document 172 Filed 12/22/17 Page 4 of 36 PageID #: 6941
National Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949) ................................................................................................................22
National Treasury Employees Union v. Cornelius, 617 F. Supp. 365 (D.D.C. 1985) ..............................................................................................18
Natural Resources Defense Council, Inc. v. Rauch, 244 F. Supp. 3d 66 (D.D.C. 2017) ...........................................................................................12
Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 (1970).....................................................................................................................9
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).................................................................................................................11
Simons v. Bellinger, 643 F.2d 774 (1980) ................................................................................................................11
Sorenson Communs. v. FCC, 567 F.3d 1215 (10th Cir. 2009) ...............................................................................................21
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................................................................11, 12
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) .......................................................................................10
Zadvydas v. Davis, 533 U.S. 678 (2001).................................................................................................................22
STATUTES & REGULATIONS U.S. Code: Title 5 section 551 ...............................................................................................................................9, 17 section 553 ...................................................................................................................................17 section 704 .....................................................................................................................................9 section 706 ...........................................................................................................10, 17, 18, 21, 22
Title 8: Code of Federal Regulations 274a.12(a)(11) ..............................................................................................................................11
iii

Case 1:17-cv-05228-NGG-JO Document 172 Filed 12/22/17 Page 5 of 36 PageID #: 6942
OTHER AUTHORITIES
Baker, Scott R., Effects of Immigrant Legalization on Crime: The 1986 Immigration Reform and Control Act, Stanford Law and Econ. Olin Working Paper (July 28, 2014) available at https://goo.gl/MyX2oN .............................................................6
Burnett, John, New Immigration Crackdowns Creating ‘Chilling Effect’ on Crime Reporting, National Public Radio (May 25, 2017), available at https://goo.gl/62P1mN .....................................................................................................................6
Carroll, Susan and Kriel, Lomi Lost in Cypress Creek HOUSTON CHRONICLE (September 9, 2017), available at: http://tinyurl.com/lost-in-cypress-creek....................................7
CATO Institute, The DREAMer Incarceration Rate (2017), Washington, D.C. available at: https://www.cato.org/publications/immigration-research-policybrief/dreamer-incarceration-rate ......................................................................................................6
CATO Institute, The Economic and Fiscal Impact of Repealing DACA (2017) http://tinyurl.com/CATODACAstudy ...........................................................................................15
Center for American Progress, A New Threat to DACA Could Cost States Billions of Dollars (2017) Washington, D.C., available at http://tinyurl.com/CAPStatesGDP .................................................................................................15
Center for American Progress, DACA Recipients’ Economic and Educational Gains Continue to Grow (2017) Washington, D.C., available at: http://tinyurl.com/BLSforeignborn.................................................................................................................................5, 14
DHS Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA), available at: http://tinyurl.com/DHS-DACA-FAQ...........................................20
DHS Memorandum titled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) available at: http://tinyurl.com/2012Memo; .......................................................................................................23
DHS Memorandum titled Memorandum on Rescission of Deferred Action For Childhood Arrivals (September 5, 2017), available at: http://tinyurl.com/2017Memo ........................................................................................................10
FEMA Declaration and Release form at: https://www.fema.gov/pdf/assistance/process/00903.pdf ..............................................................17
Flores, Adolfo, This Paramedic Who Rescued Harvey Victims May Be Deported If Trump Ends DACA, BUZZFEED (September 1, 2017) available at: http://tinyurl.com/paramedicstory....................................................................................................7
iv

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Institute on Taxation and Economic Policy, State & Local Tax Contributions of Young Undocumented Immigrants (2017) available at: http://tinyurl.com/ITEPDACAstudy ................................................................................................4
Johnson, Kirk, A DACA Recipient with an American Life Considers the Future, THE NEW YORKER (September 13, 2017), available at: http://tinyurl.com/crimereporting...................................................................................................16
Letter by Secretary Jeh Johnson dated December 30, 2016, to U.S. Rep. Judy Chu, available at: http://tinyurl.com/JehJohnsonLetter ...........................................................19, 24
Letter from Attorney General Sessions to DHS Acting Secretary Elaine Duke on the Rescission of DACA (September 4, 2017) available at: http://tinyurl.com/AGDuke-Letter; ...................................................................................................................................10
Moreno, Barry, Children of Ellis Island ARCADIA PUBLISHING (2005) ....................................3
New American Economy, Immigrants and the economy in: California District 12 (2017) available at: http://www.newamericaneconomy.org/locations/california/california-district-12/.......................14
New American Economy, Immigrants and the economy in: Philadelphia Metro Area (2017) available at: http://www.newamericaneconomy.org/city/philadelphia/ ....................14
New American Economy, New Americans in Los Angeles (2017) available at: http://www.newamericaneconomy.org/wpcontent/uploads/2017/02/LA_Brief_V8.pdf ..................................................................................13
NYC Comptroller Report, Our Immigrant Population Helps Power NYC Economy (January 11, 2017), available at: http://tinyurl.com/NYC-ComptrollerReport .............................................................................................................................................13
Remarks by Attorney General Sessions on DACA (Sessions Speech) (September 5, 2017), available at: http://tinyurl.com/Sessions-speech .................................................................13
Remarks by President Obama. June 15, 2012. http://tinyurl.com/Obama-6-15-12.....................8, 9
The Sentencing Project, Immigration and Public Safety (2017) Washington, D.C., available at http://www.sentencingproject.org/wpcontent/uploads/2017/03/Immigration-and-Public-Safety.pdf ..................................................5, 6, 15
Shaban, Hamza, CEO Tim Cook says he stands by Apple’s 250 DACA-status employees, THE WASHINGTON POST (September 3, 2017), available at: http://tinyurl.com/DACAFortune500...............................................................................................8
Special Correspondence, Tots at Ellis Island, THE WASHINGTON POST (June 5, 1904), available at: https://secure.pqarchiver.com/washingtonpost_historical/doc/144543811.html .............................3
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Theodore, Nik, University of Chicago, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), available at: http://tinyurl.com/ChicagoPoliceStudy..........................................................................................15 Ulloa, Jazmine, L.A. Police Chief Charlie Beck endorses 'sanctuary state' bill that Eric Holder hails as 'constitutional', THE LOS ANGELES TIMES (June 19, 2017), available at: http://tinyurl.com/Beckstory ..........................................................................16 United States v. Texas, 2015 U.S. Briefs 674 (Initial Brief of Appellant-Petitioner at 5) (Mar. 1, 2016)..............................................................................................................................12 U.S. Bureau of Labor Statistics 2016 foreign-born labor force statistics, available at: http://tinyurl.com/BLS-foreignborn .................................................................................................14 U.S. Citizenship and Immigration Services (USCIS) DACA Data dated “As of September 4, 2017” available at: http://tinyurl.com/USCIS-data ...............................................2, 14 USCIS DACA Frequently Asked Questions, available at: https://www.uscis.gov/archive/frequently-asked-questions ............................................................4 USCIS Instructions for Consideration of Deferred Action for Childhood Arrivals, available at: http://tinyurl.com/USCISInstructions........................................................................19
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STATEMENT OF INTEREST OF AMICI CURIAE Amici Curiae1 are located across the United States and include the City of Los Angeles, California; the City of Austin, Texas; the City of Boston, Massachusetts; the City of Cambridge, Massachusetts; the City of Chelsea, Massachusetts; the City of Chicago, Illinois; Cook County, Illinois; the City and County of Denver, Colorado; the City of Holyoke, Massachusetts; the City of Iowa City, Iowa; the City of Las Cruces, New Mexico; Los Angeles County, California; King County, Washington; the City of Minneapolis, Minnesota; the City of New York, New York; the City of Oakland, California; the City of Philadelphia, Pennsylvania; the City of Portland, Oregon; the City of Rochester, New York; the City of Sacramento, California; the City of San Diego, California; the City and County of San Francisco, California; the City of Santa Fe, New Mexico; the City of Santa Monica, California; the City of Seattle, Washington; the City of Somerville, Massachusetts; the City of Tucson, Arizona; the City of West Hollywood, California; the National League of Cities and the United States Conference of Mayors. The National League of Cities (NLC) is dedicated to helping city leaders build better communities. NLC is a resource and advocate for 19,000 cities, towns and villages, representing more than 218 million Americans. The United States Conference of Mayors is the official nonpartisan organization of cities with populations of 30,000 or more. There are 1,408 such cities in the country today. Each city is represented in the Conference by its chief elected official, the mayor. This litigation is of significant interest to Amici, since 251,000, or more than 1 in 3, of all currently active recipients of the Deferred Action for Childhood Arrivals (DACA) program live in
1 Counsel for Amici authored this brief in whole, and no party, no party’s counsel, nor any other person has contributed money intended to fund preparation of this brief. See Fed. R. App. P. 29(a)(4).
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the metropolitan areas of the Amici cities and counties.2 Of equal importance is the fact that many Amici cities and counties are the primary population centers of many of the State Plaintiffs in this action, including the States of New York, Massachusetts, Washington, Iowa, Illinois, New Mexico, Oregon, and Pennsylvania.
The Los Angeles, New York, and Chicago metro regions have three of the largest DACA populations in the United States. According to the United States Citizen and Immigration Service (USCIS), as of September 4, 2017, approximately 13% of all active DACA recipients reside in the Los Angeles metro area. Another 6.8% and 5% of all active recipients reside in the New York and Chicago metro regions, respectively. Austin, Denver, San Diego, the San Francisco Bay Area, and Seattle together account for another 9% of the active DACA population. Collectively, more active DACA recipients reside in Amici’s metro areas than the combined active DACA populations of 43 states.3
Since obtaining deferred action, these DACA recipients – our residents – have made substantial contributions to our respective communities as business owners, educators, researchers, artists, journalists and civic leaders. Tens of thousands more DACA enrollees are attending our local schools, studying to become our newest doctors and nurses, lawyers, and entrepreneurs. Many DACA recipients work directly for Amici, and play critical roles in our daily government operations. No matter how DACA recipients choose to contribute, all of Amici are stronger and safer because of the DACA program. Therefore, Amici profoundly object to Defendants’ actions
2 United States Citizen and Immigration Service data show that approximately 800,000 applicants have qualified for DACA since the start of the program. Approximately 690,000 DACA recipients currently have active DACA status. For purposes of this brief, residency in a “metropolitan area” is defined as residency in a Core Based Statistical Area (CBSA) at the time of the DACA recipient’s most recent application. CBSAs are defined by the United States Office of Management and Budget. See U.S. Citizenship and Immigration Services DACA Data dated “As of September 4, 2017” (USCIS DATA). Available at: http://tinyurl.com/USCIS-data 3 Id.
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to eliminate DACA and weaken the protections for sensitive information obtained from DACA applicants. Both of these actions are harmful and unlawful.
Since its inception more than two centuries ago, our nation has served as an adopted home for generations of migrant children. Welcoming and protecting young immigrants is part and parcel of our DNA. Over a century ago, in 1904, the Washington Post profiled eleven “matrons” whose job was to care for minor children arriving in the United States through New York Harbor and Ellis Island. The head matron, Regina Stucklen, noted that the children under her care were “the sweetest things that grow.”4
More than one million children passed through Ellis Island in its 62 years as an immigration station. Some of those “sweetest things” grew to become laborers in our factories, warehouses and mills, driving our engines of economic growth. Others chose lives in public service, becoming members of our military, teachers, social workers, firefighters, and police officers. Many more were homeowners, parents, and taxpayers. Included among those children who entered the United States via Ellis Island were renowned artists, athletes, musicians, and authors, like Irving Berlin, Bob Hope, Claudette Colbert, Knute Rockne, and Frank Capra and institutional leaders, like Los Angeles Archbishop Timothy Manning, San Francisco Mayor George Christopher, and Supreme Court Justice Felix Frankfurter.5
However these immigrants came to our country, those who arrived here as children helped to build the foundation of Amici’s economic prosperity, military security, cultural artistry and civic society. Amici are looking to a new generation of child migrants, especially those eligible for the DACA program, to help guide our financial and cultural success into the future.
4 Special Correspondence, Tots at Ellis Island, THE WASHINGTON POST (June 5, 1904), available at: https://secure.pqarchiver.com/washingtonpost_historical/doc/144543811.html. 5 Moreno, Barry, Children of Ellis Island, ARCADIA PUBLISHING (2005).
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Stated in more detail, the DACA program is important to Amici for several reasons. First, the DACA program promotes economic prosperity and benefits taxpayers, which means that Amici will suffer direct economic harm if DACA is rescinded. Amici rely heavily upon the economic contributions of foreign-born residents and DACA recipients make up a statistically significant portion of Amici’s foreign-born labor force. Collectively, the DACA recipients living in Amici cities and counties openly earn billions of dollars in taxable income because of the work authorization benefit provided by the DACA program.6 A 2017 study by The Institute on Taxation and Economic Policy found DACA recipients pay an estimated $1.6 billion in state and local taxes annually, giving them a higher effective tax rate than the average state and local tax rate paid by the top 1% of U.S. taxpayers.7 Because USCIS data show that DACA recipients are concentrated in Amici’s metro areas, those with deferred action are an important subset of the foreign-born populations critical to the economy of Amici cities. This arbitrary and capricious action by Defendants to eliminate DACA will negatively impact Amici by removing hundreds of thousands of workers, business owners and taxpayers from our respective economies. On a micro-economic level, the benefits gained through the DACA program have given recipients of deferred action the encouragement and comfort they needed to openly enter the work force, take on student loans, sign mortgages, and start businesses. Studies show that DACA recipients have in fact made profound economic gains because of receiving deferred action. In a representative survey, the Center for American Progress found that 69% of employed recipients
6 USCIS DACA Frequently Asked Questions (USCIS DACA FAQ), at Question 1, available at: https://www.uscis.gov/archive/frequently-asked-questions (stating that “an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate ‘an economic necessity for employment.’”) 7 Available on the ITEP website at: http://tinyurl.com/ITEPDACAstudy
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moved to a higher-paying job after receiving deferred action and 5% of recipients started a new business after receiving deferred action, which is a rate of business creation greater than among the general public.8 The Center’s study also found that the hourly wages of surveyed DACA recipients increased by an average of 42%; that 60% of those with increased earnings have become financially independent; and that 61% have started to contribute to their family’s finances. At least half of all DACA recipients surveyed by the Center reported that they have bought a car since receiving deferred action, 12% have bought their first home and 25% have a child who is an American citizen.
Terminating this program will not only roll back these financial and familial gains earned by DACA recipients, it will harm Amici, in that cities and counties operate – and our taxpayers fund – the social safety net that will be required to catch these families if the DACA recipients’ work authorization is taken away and families are forced apart by ICE removals.
Second, DACA promotes public safety and public welfare. A study by The Sentencing Project demonstrates that communities with larger immigrant populations, including Amici, have outpaced the public safety gains of their peers. In 1990, the reported violent crime rate was 730 offenses per 100,000 residents. That same year the number of foreign-born individuals living in the United States was roughly 19.8 million. The violent crime rate began to fall in the mid-1990s and by 2014 it was half of its 1990 level, at 362 offenses per 100,000 residents. By that year, the foreign-born population had more than doubled, reaching 42.2 million people.9
8 Center for American Progress, DACA Recipients’ Economic and Educational Gains Continue to Grow (2017) (CAP Study) Washington, D.C. The CAP Study is available at: http://tinyurl.com/CAPDACAstudy. 9 Immigration and Public Safety (2017), The Sentencing Project, Washington, D.C., available at http://www.sentencingproject.org/wp-content/uploads/2017/03/Immigration-and-Public-Safety.pdf
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While The Sentencing Project report notes that these statistics are not definitive in proving causation, the trends establish “a critical fact about immigrants and public safety: crime rates have fallen to historic lows amidst the growth of the foreign-born population.” 10
Moreover, law enforcement agencies report that, as immigration enforcement and the threat of deportation increase, undocumented immigrants are substantially less likely to report crimes by others, including violent crimes.11 And studies estimate that granting legal status—such as the deferred action conferred by DACA—to only 1% of undocumented immigrants in a country can lower crime rates by 2 to 6%.12
Nevertheless, Attorney General Sessions, in announcing the elimination of the DACA program, stated without offer of proof that such action was needed to “save lives” and protect communities from a “risk of crime.” But DACA recipients are not criminals. A study from the CATO Institute concluded that native-born Americans are 14% more likely than DACA-eligible immigrants with the same age and education to be incarcerated.13 To even qualify for deferred action, applicants must submit detailed personal histories and pass a rigorous background check. And, if they are arrested after obtaining deferred action, they can lose their DACA status. Indeed, very few DACA recipients – only 0.25% – have been expelled from the program for criminal activity or other public safety concerns, which is a rate substantially lower than the general rate of criminality in American society.14
10 Id. 11 Burnett, John, New Immigration Crackdowns Creating ‘Chilling Effect’ on Crime Reporting, National Public Radio (May 25, 2017), available at https://goo.gl/62P1mN. 12 Baker, Scott R., Effects of Immigrant Legalization on Crime: The 1986 Immigration Reform and Control Act, Stanford Law and Econ. Olin Working Paper, at 25 (July 28, 2014) available at https://goo.gl/MyX2oN. 13 The DREAMer Incarceration Rate (2017), CATO Institute, Washington, D.C. available at: https://www.cato.org/publications/immigration-research-policy-brief/dreamer-incarceration-rate 14 Id.
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What’s more, DACA recipients – free to contribute openly to their communities – are being hailed as heroes. Houston-area paramedic Jesus Contreras is a DACA recipient. He worked six straight days after Hurricane Harvey hit southeast Texas, rescuing people from floodwaters and putting his own life in danger. News reports show that had DACA been rescinded during those six days, Contreras could have immediately been pulled from his ambulance, reducing the number of available first responders.15 Similarly, many have praised the efforts of the countless volunteers who used their own boats, at their own peril, to rescue their neighbors during Hurricane Harvey. One such Good Samaritan, Alonso Guillen, was a 31-year-old DACA recipient who, according to reports, drowned while trying to save others from the deadly floodwaters that inundated the Houston area.16
In addition, applicants who pass DACA’s strict vetting process were allowed to sign up for U.S. military service as part of a Pentagon program called Military Accessions Vital to the National Interest, or MAVNI. The day after Defendants moved to terminate DACA, the Pentagon announced that 900 DACA recipients are actively serving or have signed recruitment contracts to serve in the military. This service to our country and our communities, along with others whose service stories have yet to be told, makes Amici safer.
Thus, and thirdly, DACA recipients bring many tangible and intangible benefits to Amici cities; benefits that improve upon, to quote Attorney General Sessions, “the well-being of our Republic.” Much like those children who passed through Ellis Island decades ago went on to become acclaimed actors, athletes, artists and leaders, today’s DACA recipients are helping to
15 Flores, Adolfo, This Paramedic Who Rescued Harvey Victims May Be Deported If Trump Ends DACA, BUZZFEED (September 1, 2017) available at: http://tinyurl.com/paramedicstory 16 Carroll, Susan and Kriel, Lomi Lost in Cypress Creek HOUSTON CHRONICLE (September 9, 2017), available at: http://tinyurl.com/lost-in-cypress-creek
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weave our modern-day social fabric. Active DACA recipients are employed by at least 72% of the top 25 Fortune 500 companies, many of which are headquartered in Amici. There are 250 DACA beneficiaries alone working at Apple Inc., the world’s most valuable company.17
Among the individual recipients of deferred action are a public school teacher in Austin, Texas with a master’s degree in education focusing on hearing-impaired students; a Los Angelesbased graphic designer who has worked on marketing campaigns for Star Wars: Rogue One and Game of Thrones; a political organizer based in Washington D.C., who recently served as a press secretary for a 2016 presidential candidate; a producer for MSNBC’s Morning Joe who helps shape the network’s morning programming and, separately, a licensed attorney and the first member of the New York State Bar with DACA status, both of whom live in New York City. Turning our back on DACA recipients is turning our back on the future.
ARGUMENT This litigation is about protecting young people who were brought here by their parents, often as infants. These children typically know no country besides the United States and may speak no language besides English. They study in our schools, work in our economy and pledge allegiance to our flag. As President Obama stated the day the program was created, they “are Americans in their hearts, in their minds, in every single way but one: on paper.”18 In terminating DACA, Defendants acted in an arbitrary and capricious manner, failing to comply with the Administrative Procedure Act (APA). Neither the Department of Homeland Security (DHS) nor the Attorney General exhibited reasoned decision-making in taking this action. To the contrary, Defendants provided no supportable rationale for their decision, which would
17 Shaban, Hamza, CEO Tim Cook says he stands by Apple’s 250 DACA-status employees, THE WASHINGTON POST (September 3, 2017), available at: http://tinyurl.com/DACAFortune500 18 Remarks by President Obama. June 15, 2012. http://tinyurl.com/Obama-6-15-12
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have been exposed but for Defendants failure to follow the APA’s required notice and comment process. To the extent Defendants did cite reasons for ending DACA, those are disproven by compelling evidence.
Moreover, in creating the DACA program, DHS announced that it would defer action against those eligible because it could find no reason to expel innocent young people, at the expense of other departmental enforcement priorities. President Obama emphasized DACA would “lift the shadow of deportation.”19 In other words, DHS made a promise – i.e. sign up for DACA and turn over sensitive information to authorities in return for protection from deportation – upon which each and every DACA recipient relied. The principles of Due Process and require Defendants to honor that promise and favor the Plaintiffs’ prayer for relief. I. This Court should grant a preliminary injunction prohibiting Defendants’ from
rescinding the DACA program because DHS acted arbitrarily and capriciously and failed to follow the notice and comment procedures in violation of the APA. A. The Plaintiffs will prevail on the merits of their substantive APA claim because
DHS’s sole stated reason for ending the DACA program was conclusory and relies upon flawed legal analysis.
DHS is an “agency” under the APA, 5 U.S.C. § 551(1), and the September 5, 2017 memorandum from Acting DHS Secretary Elaine Duke rescinding DACA is an “agency action” subject to judicial review. 5 U.S.C. §§ 551(13), 704. Accordingly, DHS must employ “reasoned decisionmaking” when taking a final agency action. Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983). An agency action is final when “rights or obligations have been determined or legal consequences will flow from the agency action.” Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). Any action taken “without observance of procedure required by law” or that is “arbitrary” or “capricious” is
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“unlawful” and must be “set aside” by the court. 5 U.S.C. § 706(2)(A)-(D). In the DHS memo rescinding DACA, Defendants state in a conclusory manner that it was
“clear” DACA “should be terminated.”20 The memo presumes that because a Texas district court preliminarily enjoined a separate DHS program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2015, DACA must suffer from “the same legal and constitutional defects.”21 In justifying this legal conclusion, the Rescission Memo leans entirely on a 362-word letter from Attorney General Sessions.
In this short letter, the Attorney General asserts – by fiat – that: (1) DACA is just like DAPA; (2) DAPA was preliminarily enjoined on “multiple legal grounds,” and that injunction was affirmed by the Fifth Circuit; therefore, (3) DACA is “likely” to be similarly enjoined, so DHS should rescind the program immediately.22
DHS’s sudden retreat from DACA was arbitrary and capricious and violates the APA.As a threshold issue, Defendants’ embrace of the Fifth Circuit’s opinion declaring DAPA subject to judicial review is wholly inconsistent with the position they have presented to this Court in their Motion to Dismiss – i.e. a court may, under no circumstances, review the agency’s exercise of prosecutorial discretion.23 If Defendants believe that no court may review DHS’s purported exercise of prosecutorial discretion, or that no one has standing to challenge such a decision, they should not have advanced the Fifth Circuit’s opinion as the basis for terminating DACA.
20 DHS Memorandum titled Memorandum on Rescission of Deferred Action For Childhood Arrivals (Rescission Memo)(September 5, 2017), available at: http://tinyurl.com/2017Memo. 21 Id., quoting Letter from Attorney General Sessions to DHS Acting Secretary Elaine Duke on the Rescission of DACA (September 4, 2017) (Sessions Letter), available at: http://tinyurl.com/AG-Duke-Letter; see also Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). 22 Sessions Letter, supra, note 21. 23 See Memorandum Of Law In Support Of Defendants’ Motion To Dismiss, Case No. 1:17-cv05228-NGG-JO, Document 71-1, at pg. 12.
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Next, the Fifth Circuit was mistaken when it suggested, in dictum, that DAPA is contrary to the INA. Texas v. United States, 809 F.3d 134, 186, 214-215 (5th Cir. 2015).24 The dissent's reasoning should instead guide this Court’s analysis. Id. at 214-218 (King, J., dissenting).
Despite DHS’s current position, all three branches of the Federal government have long embraced deferred action as a part of the immigration landscape. In fact, “deferred action” is one of the well-established ways in which DHS prioritizes enforcement.25 The Supreme Court has recognized that deferred action is “a regular practice” in which DHS exercises “discretion for humanitarian reasons or simply for its own convenience.” Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 483-84 (1999); see also Arizona v. United States, 567 U.S. 387, 396 (2012) (stating “a principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”).
Congress, meanwhile, has enacted legislation explicitly recognizing the DHS practice of granting deferred action. For example, the REAL ID Act of 2005, Pub. L. No. 109-13, allows states to issue driver’s licenses to those undocumented immigrants with “approved deferred action status.” Similarly, since 1981, federal regulations – created by notice and comment rulemaking allow those “granted deferred action” to “apply for employment authorization.” 8 C.F.R. § 274a.12(a)(11). And Congress has yet to disturb this regulation in three-plus decades.
More practically, Congress has never appropriated funding sufficient to remove all undocumented immigrants. This is why DHS, and its predecessors, have implemented more than
24 See also Simons v. Bellinger, 643 F.2d 774, 809, n.48 (1980) (Wilkey, J., dissenting) (a “determination was an alternative basis for dismissal, and to that extent the language may be regarded as dictum”). 25 See also Plaintiffs’ Memorandum in Support, 1:17-cv-05228-NGG-JO, Document 96-1, at 8.
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20 deferred action policies over the last 50 years.26 Programs like DAPA and DACA enable DHS to focus limited resources on removing serious criminals by deferring action on low priority immigrants. As the D.C. Circuit Court wrote in Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986), “[t]he power to decide when to investigate, and when to prosecute, lies at the core of the Executive’s duty to see to the faithful execution of the laws.” Moreover, “Congress has never prohibited or limited ad hoc deferred action, which is no different than DAPA other than scale.” Texas, 809 F.3d at 216 (King, J., dissenting).
Finally, even if DAPA were, as the Fifth Circuit concluded, “contrary” to the INA, Texas, 809 F.3d at 179, that rationale is inapplicable to DACA. Despite the Attorney General’s assertion, DACA is not just like DAPA. The Fifth Circuit’s opinion itself specifically notes “DACA and DAPA are not identical.” Id. at 174 (finding “eligibility for DACA was restricted to a younger and less numerous population,” and DAPA had different “discretionary criteria”).
In sum, the only reason DHS gave for rescinding DACA was that the program was “likely” to be unlawful. But DACA is lawful,27 which means that Defendants’ actions are in violation of the APA given there is no other proffered agency justification for the rescission by DHS. See Natural Resources Defense Council, Inc. v. Rauch, 244 F. Supp. 3d 66, 96 (D.D.C. 2017) (stating “suffice it to say, it is arbitrary and capricious for an agency to base its decision on a factual premise that the record plainly showed to be wrong.”).
B. The Attorney General’s stated policy reasons for ending DACA have no basis in fact and are easily disproven by numerous research studies.
Outside of the Rescission Memo, the only other basis Defendants offer to justify the DACA termination are remarks Attorney General Sessions in a speech delivered the same day DHS took
26 United States v. Texas, 2015 U.S. Briefs 674 (Initial Brief of Appellant-Petitioner at 5) (Mar. 1, 2016). 27 See also Plaintiffs’ Memorandum in Support, 1:17-cv-05228-NGG-JO, Document 96-1, at 5.
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action.28 In that speech, the Attorney General asserted that eliminating DACA was necessary to
“protect the overall health and well-being of our Republic” and to “save lives, protect communities
and taxpayers, and prevent human suffering.”
Not only do the Attorney General’s misstatements undermine the core values of Amici
cities and counties, the true facts contradict his own stated purposes for this action. For example,
foreign-born residents make up almost half of Los Angeles’ workforce; they contribute over $3
billion in state and local taxes yearly; they own businesses that generate $3.5 billion in annual income for city residents; and, they have local spending power of almost $30 billion a year.29
Ending DACA will negatively impact all American citizens living in Los Angeles by removing
tens of thousands of foreign-born workers, business owners and taxpayers from the city’s
economy.
The same economic harm would befall other Amici. More than 51% of all of New York
City’s business owners are foreign-born and foreign-born residents are responsible for 32% ($100
billion) of all income earned by New York City residents. New York City families that include
immigrant members pay an estimated $8 billion in city and state personal income taxes and approximately $2 billion in city property taxes.30 Similarly, 35% of business owners in San
28 It is unclear whether the Attorney General was speaking for DHS and Amici do not concede he was or that Defendants may rely on his remarks to defend their actions. In stating “[w]e at Department of Justice are proud and honored to work to advance this vision for America,” it appears his comments were on behalf of the Department of Justice only. Remarks by Attorney General Sessions on DACA (Sessions Speech) (September 5, 2017), available at: http://tinyurl.com/Sessions-speech. And while the Rescission Memo adopted the Sessions Letter’s legal analysis of the DAPA litigation, neither the Rescission Memo nor the Sessions Letter made any mention of Mr. Session’s fiscal and public safety policy rationale from his speech. “A court may uphold agency action only on the grounds that the agency invoked when it took the action.” Michigan v. EPA, 135 S. Ct. 2699, 2710 (2015). 29 New American Economy, New Americans in Los Angeles (2017) available at: http://www.newamericaneconomy.org/wp-content/uploads/2017/02/LA_Brief_V8.pdf 30 NYC Comptroller Report, Our Immigrant Population Helps Power NYC Economy (January 11, 2017), available at: http://tinyurl.com/NYC-Comptroller-Report
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Francisco are immigrants, including 12,756 foreign-born entrepreneurs.31 Entrepreneurs in the
Philadelphia metro region, of which 40,171 are foreign-born, are 43.1% more likely to be immigrants than native-born.32 This entrepreneurship creates jobs and increases the tax base.
Comparable statistics can be shown for other Amici and these statistics cannot be
discounted as generalizations. DACA recipients are a vital and thriving subset of the large foreign-
born populations, critical to the economy of Amici cities and counties. The DACA program has
provided deferred action to some 800,000 applicants, 91% of whom are employed, which equates to 1 in 33 (3%) of all foreign-born persons in the United States labor force.33
Studies show that DACA recipients across the board obtain higher earnings and have a
higher employment rate, and higher tax compliance rate than similarly-situated undocumented immigrants.34 Therefore, it is clear that the best way to “protect taxpayers” – a stated purpose of
the Attorney General – is to maintain DACA. Eliminating the program will result in decreased tax
contributions, reduced employment rates and lower effective tax rates for our resident populations.
There is a sociological term for this type of economic retrenchment by high achieving young
immigrant populations; the “transition to illegality.”
According to Harvard Assistant Professor Roberto Gonzales, author of the book “Lives in
Limbo: Undocumented and Coming of Age in America,” terminating the DACA program and
31 United States Census Bureau. Survey of Business Owners 2007-2012; New American Economy, Immigrants and the economy in: California District 12 (2017) available at: http://www.newamericaneconomy.org/locations/california/california-district-12/ 32 New American Economy, Immigrants and the economy in: Philadelphia Metro Area (2017) available at: http://www.newamericaneconomy.org/city/philadelphia/ 33 See U.S. Citizenship and Immigration Services DACA Data dated “As of September 4, 2017” (USCIS DATA), available at: http://tinyurl.com/USCIS-data; Center for American Progress. DACA Recipients’ Economic and Educational Gains Continue to Grow (2017) (CAP Study) Washington, D.C., available at: http://tinyurl.com/CAPDACAstudy; US Bureau of Labor Statistics 2016 foreignborn labor force statistics, available at: http://tinyurl.com/BLS-foreignborn 34 CAP Study, supra, note 33.
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returning people to undocumented status, will force DACA recipients to negatively adjust their expectations of what they can achieve in life. Gonzales’ own studies show that most will regress (i.e. move backward) in their schooling and careers, in part because they will have been disavowed by the only government they have ever known. Put in economic terms, ending DACA will sow an economic slowdown, as estimates show DACA recipients would otherwise contribute $460 billion to the United States gross domestic product over the next ten years (a contribution of $114 billion to State Respondents’ cumulative GDP alone).35 In fiscal terms, this equates to $60 billion in lost federal, state and local tax revenues over the next decade.36 These figures directly contradict the Attorney General’s claims and herald a negative impact on Amici.
Moreover, despite the Attorney General’s assertion that terminating DACA will “save lives,” ending the program will make communities less safe by pushing recipients underground. Further, numerous academic studies examining the impact of immigrants on their adopted communities reveal that communities with large immigrant populations, like Amici, have, at a bare minimum, shared in and, often, outpaced the nationwide crime drop over the past 30 years.37
Also, because DACA applicants had to provide personal and biometric data to DHS to qualify for DACA, recipients will fear deportation at any moment, making them statistically less likely to identify themselves to law enforcement, including Amici’s sheriffs and police departments, to report crimes or assist in criminal investigations.38 The same fear can result in
35 Center for American Progress, A New Threat to DACA Could Cost States Billions of Dollars (2017) Washington, D.C., available at: http://tinyurl.com/CAPStatesGDP. 36 CATO Institute, The Economic and Fiscal Impact of Repealing DACA (2017) Washington, D.C, available at: http://tinyurl.com/CATODACAstudy 37 Immigration and Public Safety (2017), The Sentencing Project, Washington, D.C., available at http://www.sentencingproject.org/wp-content/uploads/2017/03/Immigration-and-Public-Safety.pdf 38 See, e.g., Theodore, Nik, University of Chicago, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), available at: http://tinyurl.com/ChicagoPoliceStudy
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unreported code enforcement and wage theft violations, crimes which are enforced by Amici. Slum landlords and sweatshop owners are likely to prey upon former DACA recipients if the program is terminated, resulting in unsafe and unhealthy conditions in the workplace and at home. And there is the added risk of human trafficking as well.
Amici’s law enforcement leadership consistently reminds us that all communities are safer when victims and witnesses of crime, irrespective of immigration status, cooperate with law enforcement. For example, Los Angeles Police Department (LAPD) Chief Charlie Beck has routinely stated that his department depends on “immigrant communities, not only to keep them safe but to keep [the public] safe. Without that cooperation we all suffer.”39
In fact, DACA recipients have consistently demonstrated important contributions to public safety. In May 2014, a DACA recipient residing in Los Angeles confronted an armed intruder in her apartment complex, who struck her in the head with a steel baton.40 Afterwards, the DACA recipient helped LAPD identify and arrest the intruder. LAPD then learned that associates of the intruder were looking for the victim, which resulted in her being placed in witness protection. Id. Without the protection of DACA, the intruder’s associates could have silenced the victim by simply reporting her to Immigration and Customs Enforcement (ICE) for removal.
Likewise, the removal of DACA’s protections endangers already vulnerable immigrant communities in the wake of natural disasters. After this year’s devastating California wildfires, many immigrants avoided applying for aid to which they and their families were entitled because FEMA’s form states that application information “may be subject to sharing within the Department
39 Ulloa, Jazmine, L.A. Police Chief Charlie Beck endorses 'sanctuary state' bill that Eric Holder hails as 'constitutional', THE LOS ANGELES TIMES (June 19, 2017), available at: http://tinyurl.com/Beckstory 40 Johnson, Kirk, A DACA Recipient with an American Life Considers the Future, THE NEW YORKER (September 13, 2017), available at: http://tinyurl.com/crimereporting
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of Homeland Security, including but not limited to, the Bureau of Immigration and Customs Enforcement.”41 The Government’s arbitrary repeal of DACA has therefore only exacerbated fears that those who ask for help to save property or lives will expose themselves, family members, or neighbors to immigration enforcement, or worse, forgo necessary assistance in order to avoid deportation.
Ending DACA will make recipients much less likely to report criminal activity to law enforcement for fear they could place themselves at risk of deportation. That will cause crimes to go unreported and limit the success of police investigations, thereby greatly undermining public safety for all of our residents in each our communities. An agency rule is arbitrary and capricious “if the agency … offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43. The explanations offered by Defendants in seeking to end DACA are just “so implausible.”
C. DHS failed to follow the APA’s notice and comment requirements prior to moving to rescind DACA, which is why the Plaintiffs will prevail on the merits of their procedural APA claim.
The APA requires that federal agencies conduct a rulemaking process before engaging in action that impacts substantive rights. See 5 U.S.C. §§ 553 and 706(2)(D). The Rescission Memo and the resulting actions taken to implement the Rescission Memorandum are “rules” under the APA. See 5 U.S.C. § 551(1), (4). And defendants are not absolved of their responsibility to use the rulemaking process simply because DACA was enacted without notice and comment rulemaking in 2012. Because, even if creating DACA required notice and comment rulemaking prior to implementation, DHS would, at the very least, be required to engage in a similar notice
41 FEMA Declaration and Release form (emphasis added), available at: https://www.fema.gov/pdf/assistance/process/00903.pdf
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and comment process to rescind the program. See, e.g., Am. Forest Resource Coun. v. Ashe, 946 F. Supp. 2d 1, 26 (D.D.C. 2013) (“[O]rdinarily an agency rule may not be repealed unless certain procedures, including public notice and comment, are followed, and that this is true even where the rule at issue may be defective.”); National Treasury Employees Union v. Cornelius, 617 F. Supp. 365, 371 (D.D.C. 1985) (“There is some superficial appeal to the government’s argument that a provision which was promulgated in error is void ab initio and can be deleted without more ado. . . . Such a holding would ignore the fact that the question whether the regulations are indeed defective is one worthy of notice and an opportunity to comment.” (citation omitted)). II. Defendants’ should be preliminarily enjoined from using DACA applicants’
information for immigration-enforcement purposes. A. The Plaintiffs will prevail on the merits of their APA claim against DHS’s
change to its confidential information policy because Defendants’ failed to provide any explanation whatsoever for the policy change, let alone a basis that was not “arbitrary and capricious.” Any final agency action taken that is “arbitrary” or “capricious” is “unlawful” and must be “set aside” by the court. 5 U.S.C. § 706(2)(A). The United States Supreme Court, in interpreting this section of the APA, holds that an agency action is arbitrary and capricious if the agency entirely fails to consider an important aspect of the problem, or offers an explanation for its decision that runs counter to evidence before agency, or offers an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n., 463 US at 43. In creating the DACA program, Defendants made promises that information provided by DACA applicants about themselves or their family members would not, absent special circumstances, be used for immigration enforcement purposes. This promise was written into USCIS’s official instructions regarding the application process. Those instructions provide:
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Information provided in this request is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request itself, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing clause covers family members and guardians, in addition to the requestor.42
This confidentiality promise was not something Defendants created from whole cloth just
for the DACA program. In promoting DACA, numerous government officials highlighted DHS’s
practice of protecting confidential information obtained through other deferred action programs
over the years. As then-Secretary of Homeland Security Jeh Johnson explained in a letter to
Congresswoman Judy Chu, protecting information “submitted by people seeking deferred action”
was the “long-standing and consistent practice of DHS (and its predecessor INS)” for many “decades.”43
Yet, in terminating the DACA program, the Rescission Memo provides no rationale for the
change to the confidential information policy in DACA. In fact, the Rescission Memo is
completely silent on whether information provided in connection with DACA applications will
now be used for immigration enforcement purposes.
The only reference to the change in information sharing practices appears in DHS guidance
posted on its website on the same day that the Rescission Memo was issued. The prior language
promising that information provided by a DACA applicant will be “protected from disclosure to
42 USCIS Instructions for Consideration of Deferred Action for Childhood Arrivals (USCIS Instructions), at pg. 13 (emphasis added), available at: http://tinyurl.com/USCISInstructions 43 Letter by Secretary Jeh Johnson dated December 30, 2016, to U.S. Rep. Judy Chu, available at: http://tinyurl.com/JehJohnsonLetter
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ICE and [CBP]” 44 is gone. Instead, Defendants now assert that “[g]enerally, information will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings.”45 The use of the qualifiers “generally” and “not be proactively provided” are substantial shifts in policy. And the very next sentence in the guidance indicates that further watering down of the confidential information policy should be expected in the near future or, frankly, may have already occurred without notice. It reads: “This [confidential information] policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”46
When an agency gives no explanation for its action, as is the case here with DHS’s change to the confidential information policy, a reviewing court’s decision is made easy and it must be made in the Plaintiffs’ favor. Put simply, failure to give a reason for a change of course renders administrative behavior arbitrary and capricious and in violation of the APA. See Illinois v. Interstate Commerce Com., 722 F.2d 1341, 1348 (7th Cir. 1983) (citing Atchison, Topeka & Santa Fe Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807-08 (1973)) (finding that an agency “may not make major policy changes by pure fiat, with no explanation” of why the change is being made.); Communs. & Control, Inc. v. FCC, 374 F.3d 1329, 1336-37 (D.C. Cir. 2004) (finding that because the FCC offered “no explanation” for deciding that a broadcaster’s typographical error rendered its license being void ab initio, the action was “arbitrary and capricious,” especially in light of the FCC’s past practice of correcting, “without much ado, typographical errors such as the one at
44 USCIS Instructions, supra note 42. 45 DHS Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA) (DHS Rescission FAQs), at Question 8, available at: http://tinyurl.com/DHS-DACA-FAQ 46 Id.
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issue.”); Sorenson Communs. v. FCC, 567 F.3d 1215, 1222 (10th Cir. 2009) (finding that, because the FCC “failed to provide any reason why” federal funds given to a provider of telephone transmission services enabling disabled individuals to communicate could not be used for lobbying expenses, the FCC’s prohibition on the use of the funds was arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A).)
To be sure, the original DACA memorandum included a statement that applicants had no right to rely on statements made therein, but such boilerplate disclaimers do not always carry the day when they clash with guidance’s broader substance and purpose. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022-23 (D.C. Cir. 2000). Here, the recipients were highly vulnerable parties whose substantial reliance on the Memorandum’s assurances was all but certain – and indeed intended – as a practical matter. The federal government persuaded them to “come out of the shadows” and hand over sensitive information – including biometic data – to ICE in exchange for DACA status.
DACA applicants responded by irrevocably rearranging their lives, funding college educations, enrolling in the military, having American citizen children, buying homes and cars. These acts were not the just the foreseeable effects of the federal government program inducement but rather what the program was at its core designed to induce. Under these exceptional circumstances, the government must have some reasonable purpose for changing a policy to allow the government to use recipients’ confidential information. Thus, an injunction is necessary to ensure “some minimum standard of decency, honor and reliability in … dealing with the Government.” Heckler v. Community Health Servs., 467 U.S. 51, 59-61 (1984).
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B. DHS’s change in its policy regarding the permissible uses of sensitive DACA information infringes upon Plaintiffs’ due process rights and, therefore, violates the APA prohibition of federal agency action that is “contrary to constitutional right, power, privilege, or immunity.”
The APA prohibits federal agency action that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Here, the DHS Rescission FAQs issued alongside the Rescission Memo drastically and substantially changes DHS’s confidential information policy without providing DACA applicants with any form of due process.
To quote Justice Frankfurter, “due process of law” and “liberty” are among the “great [constitutional] concepts . . . purposely left to gather meaning from experience. . . . They relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting).
DHS’s alteration of its DACA confidential information policy sends a message to our immigrant residents that their government, including Amici, is not to be trusted – when in reality Amici are fighting to protect these basic rights, because any person present in the United States, including every DACA recipient living in our respective cities and counties, is guaranteed due process before he or she may be deprived of a liberty interest. U.S. Const. amend. V; Zadvydas v. Davis, 533 U.S. 678, 693-94 (2001); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (noting that liberty includes the ability to form the “enduring attachments of normal life”).
The operational success of the entire DACA program flows from a core promise, i.e., the prohibition on use of personal information for immigration enforcement. But for this promise, the risks to a DACA-eligible person of identifying oneself to the nation’s immigration enforcement agency would have far outweighed any short-term benefit earned, which is why the official USCIS form application instructions state that “information provided” is “protected from disclosure to
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ICE and U.S Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance.”47
DHS’s detailed DACA policies, together with the Napolitano Memo and remarks of the President of the United States – delivered with the purpose of “lifting the shadow of deportation” – gave DACA recipients a liberty interest in the promise of the DACA program (i.e., confidentiality). Consistently, Supreme Court cases have found liberty interests in the continued receipt of welfare payments or of a public school teaching position despite lack of tenure protections or employment contract because of an “implied promised of continued employment.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (citing Goldberg v. Kelly, 397 U.S. 254, 262 (1970) and Connell v. Higginbotham, 403 U.S. 207, 208 (1971)).
In Bd. of Regents v. Roth, the Supreme Court wrote that to have a protected interest in a benefit, a person clearly must have “more than an abstract need.” The person “must, instead, have a legitimate claim of entitlement to it.” Id. DACA recipients have earned their “claim of entitlement” to confidentiality. Put plainly, DACA recipients’ self-identification to DHS was likely an irreversible action taken at the encouragement of the federal government. DACA applicants would not have taken the risk of sharing intimate details and biometric data about themselves and their families – serving up removal of themselves and their families on a platter – without the promises made by Defendants. Former Secretary of Homeland Security Jeh Johnson confirmed as much in a letter to Congresswoman Judy Chu when he wrote, “DACA applicants
47 DHS Memorandum titled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) (Napolitano Memo), available at: http://tinyurl.com/2012Memo; see also USCIS Instructions, supra note 42.
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most assuredly relied” upon the “representations made by the U.S. government.”48 Defendants may choose to highlight the fact that USCIS retained “discretion” in acting on
the DACA program.”49 But the fact that DHS retained “discretion” in reviewing applications and granting DACA status cannot cure Defendants’ unconstitutional actions. The Supreme Court has held that having discretion over the issuance of benefits does not eliminate the need to provide Due Process. See Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 123 (1926).
In Goldsmith, the petitioner was a lawyer who had been refused admission to practice before the United States Board of Tax Appeals. The Board had published rules for admission of persons entitled to practice before it, which provided “that the Board may in its discretion deny admission to any applicant, or suspend or disbar any person after admission.” Id. at 119. Under its discretionary power, the Board denied admission to the petitioner without a hearing or stating a reason for the denial. The Supreme Court stated that the posted rules gave the petitioner an interest and claim to practice before the Board to which procedural due process requirements applied. Specifically, the Board’s discretionary power “must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process.” Id., at 123.
Even assuming arguendo that Defendants are correct in stating that the Napolitano Memo did not grant any substantive rights (i.e., the memo simply set forth the criteria under which DHS had the discretion to grant deferred action on a case-by-case basis) this does not justify Defendants’ attempt to casually rewrite DHS confidentiality rules protecting some 900,000 DACA applicants in blanket fashion.. If the Napolitano Memo did not grant substantive rights, the information-
48 Letter by Secretary Jeh Johnson dated December 30, 2016, to U.S. Rep. Judy Chu, available at: http://tinyurl.com/JehJohnsonLetter 49 USCIS DACA FAQ, at Question 51, supra note 6.
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sharing policy created by action separate from the Napolitano Memo certainly did, and DHS’s across-the-board change to that policy violates basic principles of fairness. Therefore, Defendants’ actions in opening recipients’ personal information to use by ICE and CBP in removal proceedings, violates the Due Process rights of Plaintiffs in this action. Because the actions violate Due Process, they are also unlawful under the APA and should be enjoined.
CONCLUSION Amici respectfully urge the Court to issue a nationwide injunction preventing Defendants from terminating DACA or using information obtained from DACA recipients for removal proceedings. If the federal government is allowed to renege on a promise it made to 800,000 recipients and their family members, a damaging message would be delivered that the United States government cannot be trusted to act in a decent, honorable or reliable manner, and it would impose significant adverse consequences on Amici.

Dated: December 22, 2017

Respectfully submitted,
By: Michael J. Dundas
Michael N. Feuer City Attorney
James P. Clark Leela Kapur Valerie Flores Michael Dundas Matthew Scherb Alexander Freedman 200 North Main Street, City Hall East Suite 800 Los Angeles, California 90012 Telephone: (213) 978-8130
Attorneys for Amicus Curiae City of Los Angeles, California
Additional Counsel for Amici Curiae Listed in Appendix

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APPENDIX Additional Counsel for Amici Curiae

ANNE L. MORGAN City Attorney, City of Austin MICHAEL SIEGEL Assistant City Attorney, City of Austin PO Box 1546 Austin, TX 78767 Attorneys for the City of Austin
NANCY E. GLOWA City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Attorney for the City of Cambridge
EDWARD N. SISKEL Corporation Counsel of the City of Chicago 30 N. LaSalle Street, Suite 800 Chicago, IL 60602 Attorney for the City of Chicago
KRISTIN M. BRONSON City Attorney of the City and County of Denver 1437 Bannock St., Room 353 Denver, CO 80202 Attorney for the City and County of Denver
ELEANOR M. DILKES City Attorney 410 East Washington Street Iowa City, IA 52240 Attorney for the City of Iowa City
MARGARET L. CARTER O’Melveny & Myers LLP 400 S. Hope Street Los Angeles, CA 90071 Attorney for the County of Los Angeles

EUGENE O’FLAHERTY Corporation Counsel for the City of Boston One City Hall Square, Room 615 Boston, MA 02201 Attorney for the City of Boston
CHERYL WATSON FISHER City Solicitor of the City of Chelsea 500 Broadway, Room 307 Chelsea, MA 02150 Attorney for the City of Chelsea
KIMBERLY M. FOXX States Attorney for Cook County 69 W. Washington, 32nd Floor Chicago, IL 60602 Attorney for Cook County
PAUL PAYER City Solicitor, City of Holyoke, MA 20 Korean Veterans Plaza, #204 Holyoke, MA 01040 Attorney for the City of Holyoke
JENNIFER VEGA-BROWN City Attorney of the City of Las Cruces 700 North Main Las Cruces, NM 88001 Attorney for the City of Las Cruces
DANIEL T. SATTERBERG King County Prosecuting Attorney 516 Fourth Avenue, W400 Seattle, WA 98104 Attorney for King County

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SUSAN SEGAL Minneapolis City Attorney 350 S. Fifth St. - Room #210 Minneapolis, MN 55415 Attorney for the City of Minneapolis

ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Attorney for the City of New York

BARBARA J. PARKER City Attorney, City of Oakland One Frank H. Ogawa Plaza, Sixth Floor Oakland, CA 94612 Attorney for the City of Oakland

SOZI PEDRO TULANTE City Solicitor of the City of Philadelphia 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Attorney for the City of Philadelphia

TRACY P. REEVE City Attorney of the City of Portland 1221 SW Fourth Avenue, Suite 430 Portland, OR 97240 Attorney for the City of Portland

BRIAN F. CURRAN Corporation Counsel of the City of Rochester 30 Church Street, Room 400A Rochester, NY 14614 Attorney for the City of Rochester

MATTHEW D. RUYAK Interim City Attorney of the City of Sacramento 915 I Street, Fourth Floor Sacramento, CA 95814 Attorney for the City of Sacramento
DENNIS J. HERRERA City Attorney for the City and County of San Francisco City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, CA 94102 Attorney for the City and County of San Francisco

MARA W. ELLIOTT San Diego City Attorney 1200 Third Avenue, Suite 1620 San Diego, CA 92101 Attorney for the City of San Diego
KELLEY A. BRENNAN City Attorney of the City of Santa Fe 200 Lincoln Avenue Santa Fe, NM 98501 Attorney for the City of Santa Fe

LANE DILG City Attorney of the City of Santa Monica 1685 Main Street Santa Monica, CA 90401 Attorney for the City of Santa Monica

PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Attorney for the City of Seattle

FRANCIS X. WRIGHT, JR. City Solicitor of the City of Somerville 93 Highland Avenue Somerville, MA 02143 Attorney for the City of Somerville

MIKE RANKIN City Attorney of the City of Tucson P.O. Box 27210 Tucson, AZ 85726 Attorney for the City of Tucson

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MICHAEL JENKINS City Attorney of the City of West Hollywood Jenkins & Hogin LLP 1230 Rosecrans Avenue, Ste 110 Manhattan Beach, CA 90266 Attorney for the City of West Hollywood

JOHN DANIEL REAVES General Counsel The U.S. Conference of Mayors 1200 New Hampshire Avenue NW, Suite 800 Washington, DC 20036 Attorney for the U.S. Conference of Mayors

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CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, a copy of the foregoing Amicus Brief of the City Of Los Angeles, 27 Additional Cities and Counties, the National League Of Cities and the United States Conference of Mayors In Support of Plaintiffs’ Motions for Preliminary Injunction was filed electronically with the Clerk of Court to be served by operation of the Court’s electronic filing system.
/s/ Michael J. Dundas Michael J. Dundas
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 Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 1 of 27 PageID #: 6977

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs, v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,
Defendants.
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Thomas Silverstein The Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue NW Washington, DC 20008 (202) 662-8600 tsilverstein@lawyerscommittee.org
Counsel for Additional Amici Curiae, Other Civil Rights and Social Justice Organizations

CIVIL ACTION NO. 1:17-cv-05228 (NGG) (JO)
BRIEF OF THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, THE ANTIDEFAMATION LEAGUE, AND OTHER CIVIL RIGHTS AND SOCIAL JUSTICE ORGANIZATIONS, AS AMICI CURIAE IN SUPPORT OF THE PLAINTIFF STATES’ MOTION FOR PRELIMINARY INJUNCTION
VENABLE LLP
Matthew T. McLaughlin Rockefeller Center 1270 Avenue of the Americas 24th Floor New York, NY 10020 (212) 983-8312 mtmclaughlin@Venable.com
Counsel for Amicus Curiae, the Lawyers’ Committee for Civil Rights Under Law

Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 2 of 27 PageID #: 6978
TABLE OF CONTENTS
IDENTITY AND INTEREST OF AMICUS CURIAE .................................................................. 1 INTRODUCTION .......................................................................................................................... 3 I. RESCISSION OF DACA WILL DESTABILIZE THE ECONOMIC HEALTH OF
IMMIGRANT COMMUNITIES.............................................................................................. 5 A. Diminished Dreams of Entrepreneurship and the Loss of Small Business Owners ........... 6 B. The Decline in Homeownership and Corresponding Increase in Housing Vacancies in
Immigrant Communities ..................................................................................................... 7 II. DACA TERMINATION WILL IMPAIR OUR COUNTRY’S DIVERSITY AND
LEADERSHIP .......................................................................................................................... 9 A. DACA Serves as a Necessary Pathway to Leadership in Immigrant Communities........... 9 B. DACA Promotes Increased Exposure to Diversity, Which is Critical to Societal Progress
and the Country’s Ability to Foster Culturally Competent Leaders ................................. 10 III. DACA REVOCATION WILL HAVE A DEVASTATING IMPACT ON OUR TEACHERS
AND THE EDUCATION SYSTEM AS A WHOLE............................................................. 12 IV. ELIMINATION OF DACA STATUS WILL ALSO HARM OUR MILITARY AND
RECIPIENTS PROUDLY SERVING IN OUR ARMED FORCES ..................................... 14 CONCLUSION............................................................................................................................. 15
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TABLE OF AUTHORITIES
Page(s)
Cases
Grutter v. Bollinger, 539 U.S. 306 (2003)...............................................................................................................5, 6
Regents of University of California v. Bakke, 438 U.S. 265 (1978)...................................................................................................................7
Other Authorities
Alexander Casey, An Estimated 123,000 ‘Dreamers’ Own Homes and Pay $380M in Property Taxes, Zillow (Sept. 20, 2017), https://www.zillow.com/research/daca-homeowners-380m-taxes-16629/ ................................8
Alice Yin, Education by the Numbers, N.Y. Times (Sept. 8, 2017), https://www.nytimes.com/2017/09/08/magazine/education-by-thenumbers.html ...........................................................................................................................12
C. Emily Feistritzer, Profile of Teachers in the U.S. 2011, Nat. Ctr. For Educ. Info. (July 2011), https://www.edweek.org/media/pot2011final-blog.pdf. ............................................................9
Caitlin Patler and Jorge A. Cabrera, From Undocumented to DACAmented: Impacts of the Deferred Action for Childhood Arrivals (DACA) Program, Inst. for Research on Labor and Emp’t. (June 2015), http://www.chicano.ucla.edu/files/Patler_DACA_Report_061515.pdf ..................................12
Ctr. for Am. Progress, Dollars, (July 21, 2017), https://www.americanprogress.org/issues/immigration/news/2017/07/21/4364 19/new-threat-daca-cost-states-billions-dollars/ ........................................................................4
Ctr. for Am. Progress, The Fierce Urgency of Protecting Dreamers Now, https://cdn.americanprogress.org/content/uploads/2017/12/12034644/Protectin gDreamersUrgentOnePager.pdf (last visited Dec. 22, 2017) ....................................................3
David Dyssegaard Kallick with Silva Mathema, Refugee Integration in the United States, Ctr. for Am. Progress (June 16, 2016), https://www.americanprogress.org/issues/immigration/reports/2016/06/16/139 551/refugee-integration-in-the-united-states/ ..........................................................................12
Douglas Laycock, The Broader Case for Affirmative Action: Desegregation, Academic Excellence, and Future Leadership, 78 TUL. L. REV. 1767, 176976 (2004) ....................................................................................................................................6
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Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 4 of 27 PageID #: 6980
Elise Gould, Local public education employment may have weathered recent storms, but schools are still short 327,000 public educators, Econ. Pol’y. Inst. (Oct. 6, 2017), http://www.epi.org/publication/teacher-employment-may-have-weatheredstorms-but-schools-are still short 327,000-public-educators .....................................................8
Faye Hispman et al., DACA at Four: Participation in the Deferred Action Program and Impacts on Recipients, Migration Pol’y Inst. (Aug. 2016), https://www.migrationpolicy.org/research/daca-four-participation-deferredaction-program-and-impacts-recipients ...................................................................................11
Greg Toppo, 20,000 DACA teachers at risk — and your kids could feel the fallout, too, USA Today (Oct. 11, 2017, 7:00 AM), https://www.usatoday.com/story/news/2017/10/11/thousands-daca-teachersrisk/752082001/ .................................................................................................................12, 13
Gustavo López and Jens Manuel Krogstad, Key Facts About Unauthorized Immigrants Enrolled in DACA, Pew Research Center: Fact Tank (Sept. 25, 2017), http://www.pewresearch.org/fact-tank/2017/09/25/key-facts-aboutunauthorized-immigrants-enrolled-in-daca/ ..............................................................................3
Immigrant Legal Resource Centre, Draining the Trust Funds: Ending DACA and the Consequences to Social Security and Medicare, https://www.ilrc.org/report-daca-economic-cost .....................................................................11
Isabel Fattal, What DACA’s End Could Mean for Colleges, The Atlantic (Sep. 18, 2017), https://www.theatlantic.com/education/archive/2017/09/what-dacas-endcould-mean-for-colleges/540024/ ..............................................................................................6
Jessica Rubio et al., As DACA Recipients, We Want To Share Our Stories, The Hill (Sept. 2, 2017, 11:40 AM), http://thehill.com/blogs/pundits-blog/immigration/348972-as-daca-recipientswe-want-to-share-our-stories ...................................................................................................13
Lawyers’ Committee For Civil Rights Under Law, Lawyers’ Committee for Civil Rights Under Law Applauds Fourth Circuit Injunction Of Unlawful Travel Ban (May 25, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rightslaw-applauds-fourth-circuit-injunction-unlawful-travel-ban/; ...................................................2
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Lawyers’ Committee For Civil Rights Under Law, Press Release, Lawyers’ Committee For Civil Rights Under Law Files Amicus Brief In SCOTUS Case Regarding Trump’s Discriminatory Travel Ban Executive Order (Sept. 19, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rightslaw-files-amicus-brief-scotus-case-regarding-trumps-discriminatory-travelban-executive-order/ ..................................................................................................................2
Lawyers’ Committee For Civil Rights Under Law, Press Release, Lawyers’ Committee For Civil Rights Under Law Files Federal Lawsuit Against Trump’s Discriminatory Travel Ban Executive Order (Feb. 9, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rightslaw-files-federal-lawsuit-trumps-discriminatory-travel-ban-executive-order/ ..........................2
Lawyers’ Committee for Civil Rights Under Law, Press Release, Lawyers’ Committee for Civil Rights Under Law and Partners Secure Settlement In Discrimination Lawsuit Against the City of Escondido (May 25, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rightslaw-partners-secure-settlement-discrimination-lawsuit-city-escondido/ ...................................2
Liz Robbins, For Teachers Working Through DACA, a Bittersweet Start to the School Year, N.Y. Times (Sept. 7, 2017), https://www.nytimes.com/2017/09/07/nyregion/daca-teachers.html ......................................10
Maria Gutierrez, American Dreamers, NY Times (2017), https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/maria-gutierrez ..............................................................................................10
Miriam Santamaria, American Dreamers, NY Times (2017), https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/miriam-santamaria. .......................................................................................13
Misha E. Hill and Meg Wiehe, State & Local Tax Contributions of Young Undocumented Immigrants, Inst. on Tax. and Econ. Pol’y (Apr. 2017), https://itep.org/wp-content/uploads/2017DACA.pdf ................................................................4
Moriah Balingit, As DACA winds down, 20,000 educations are in limbo, Wash. Post (Oct. 25, 2017), https://www.washingtonpost.com/local/education/as-daca-winds-down20000-educators-are-in-limbo/2017/10/25/4cd36de4-b9b3-11e7-a908a3470754bbb9_story.html .........................................................................................................8
Nancy E. Weaver, Beyond the Defense Language Transformation Roadmap: Bearing the Burden for Today’s Educational Shortcomings: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Armed Servs., 111th Cong, http://prhome.defense.gov/Portals/52/Documents/RFM/Readiness/DLNSEO/d ocs/Weaver%20Testimony%20062910.pdf.............................................................................14
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Nat. Immigration Law Ctr., Stories in Defense of Deferred Action for Childhood Arrivals, (last accessed Dec. 22, 2017), https://www.nilc.org/issues/daca/daca-fifth-anniversary-stories/ ............................................13
Nicole Prchal Svajlenka, Tom Jawetz, and Angie Bautista-Chavez, A New Threat to DACA Could Cost States Billions of Dollars, Ctr. for Am. Progress (July 21, 2017), https://www.americanprogress.org/issues/immigration/news/2017/07/21/4364 19/new-threat-daca-cost-states-billions-dollars ........................................................................4
Pomona College, College & University Presidents Call for U.S. to Uphold and Continue DACA (Nov. 21, 2016), https://www.Pomona.edu/news/2016/11/21college-university-presidents-call-us-uphold-and-contine-DACA ............................................7
Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic (Oct. 21, 2017), https://www.theatlantic.com/politics/archive/2017/10/donald-trumpdaca/543519 .............................................................................................................................14
Randy Capps, Michael Fix, and Jie Zong, The Education and Work Profiles of the DACA Population, Migration Pol’y Inst. (Aug. 2017), https://www.migrationpolicy.org/research/education-and-work-profiles-dacapopulation ..................................................................................................................................5
Tom Jawetz and Nicole Prchal Svajlenka, Thousands of DACA Recipients Are Already Losing Their Protection From Deportation, Ctr. for Am. Progress (Nov. 9, 2017, 6:00 AM), https://www.americanprogress.org/issues/immigration/news/2017/11/09/4425 02/thousands-daca-recipients-already-losing-protection-deportation/ ......................................3
Tom K. Wong et al., 2017 National DACA Study, Ctr. for Am. Progress (Oct. 7, 2017), https://cdn.americanprogress.org/content/uploads/2017/11/02125251/2017_D ACA_study_economic_report_updated.pdf ............................................................................14
Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Ctr. for Am. Progress (Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/4379 56/daca-recipients-economic-educational-gains-continue-grow/ ......................................11, 12
Tom K. Wong et al., Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA (Sept. 2013), https://www.americanprogress.org/wpcontent/uploads/2013/09/DACAReportCC-2-1.pdf ..................................................................3
U.S. Department of Defense, Military Accessions Vital to National Interest (MAVNI): Recruitment Pilot Program, U.S. Dept. of Def., https://www.defense.gov/news/MAVNI-Fact-Sheet.pdf; ........................................................14
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Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 7 of 27 PageID #: 6983 Vera Bergengruen and Franco Ordoñez, These are the military recruits who might be deported under Trump, McClatchy DC Bureau (July 17, 2017, 7:34 PM), http://www.mcclatchydc.com/news/nationworld/national/article161872568.html .....................................................................................15 Vera Bergengruen, Don’t Tell These DREAMers to Join The Military. They’re Trying., BuzzFeed News (Sept. 6, 2017, 6:20 PM), https://www.buzzfeed.com/verabergengruen/join-the-military-to-avoiddeportation-turns-out-its-not ....................................................................................................15
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IDENTITY AND INTERESTS OF AMICI CURIAE Amici are the Lawyers’ Committee for Civil Rights Under Law, Anti-Defamation League, Advocates for Youth, Lawyers’ Committee for Civil Rights and Economic Justice, Mississippi Center for Justice, National Urban League, Public Counsel, Southern Poverty Law Center, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs. Amici understand that DACA has improved the lives of undocumented young people and that Dreamers’ significant contributions in every aspect of American life have made our country greater. Amici further understand that policies promoting economic security, diversity and inclusion are integral to the health and well-being of minority communities and the nation, and that ending DACA is not in the public interest as it will result in irreversible harms to DACA recipients and their families, institutions of higher education and workplaces, our nation’s public schools, immigrant business and residential communities, our military, and beyond. Amicus Curiae the Lawyers’ Committee for Civil Rights Under Law (the “Lawyers’ Committee”) is a nonpartisan, nonprofit civil rights organization formed in 1963, at the request of President John F. Kennedy, to enlist the American bar’s leadership and resources in defending the civil rights of racial and ethnic minorities. Through the Lawyers’ Committee, attorneys have represented thousands of clients in civil rights cases across the country challenging discrimination in virtually all aspects of American life. In furtherance of its commitment to challenge policies that discriminate against immigrants and refugees, the Lawyers’ Committee has filed numerous lawsuits and submitted amicus briefs in cases involving issues similar to this one. Indeed, just this year, the Lawyers’ Committee filed a lawsuit and multiple amicus briefs challenging the travel ban and settled an exclusionary zoning lawsuit on behalf a California group home for refugee children fleeing
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violence and persecution in Central America.1 Beyond litigation, the Lawyers’ Committee, through its Education Project, launched its Let Us Learn initiative this year to ensure all students, regardless of immigration status, can enroll in public school. Finally, as part of its Stop Hate Project, the Lawyers’ Committee has worked with individuals and organizations representing undocumented communities to provide them with resources and support if they are targeted for a hate incident or hate crime. This work has included working with immigration legal services organizations to develop resources for undocumented individuals about how to access immigration relief available to victims of hate crimes, to provide undocumented youth with know your rights information for protests, and to support organizations working to ensure that immigrants targeted for hate can report hate crimes to law enforcement with less fear about adverse immigration repercussions.
List of individual amici with statements of interest is set forth in Appendix.
1 Press Release, Lawyers’ Committee For Civil Rights Under Law, Lawyers’ Committee For Civil Rights Under Law Files Federal Lawsuit Against Trump’s Discriminatory Travel Ban Executive Order (Feb. 9, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rights-law-files-federal-lawsuit-trumpsdiscriminatory-travel-ban-executive-order/; Press Release, Lawyers’ Committee For Civil Rights Under Law, Lawyers’ Committee For Civil Rights Under Law Files Amicus Brief In SCOTUS Case Regarding Trump’s Discriminatory Travel Ban Executive Order (Sept. 19, 2017), https://lawyerscommittee.org/press-release/lawyerscommittee-civil-rights-law-files-amicus-brief-scotus-case-regarding-trumps-discriminatory-travel-ban-executiveorder/; Press Release, Lawyers’ Committee For Civil Rights Under Law, Lawyers’ Committee for Civil Rights Under Law Applauds Fourth Circuit Injunction Of Unlawful Travel Ban (May 25, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rights-law-applauds-fourth-circuit-injunctionunlawful-travel-ban/; Press Release, Lawyers’ Committee for Civil Rights Under Law, Lawyers’ Committee for Civil Rights Under Law and Partners Secure Settlement In Discrimination Lawsuit Against the City of Escondido (May 25, 2017), https://lawyerscommittee.org/press-release/lawyers-committee-civil-rights-law-partners-securesettlement-discrimination-lawsuit-city-escondido/.
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INTRODUCTION
The Deferred Action for Childhood Arrivals (DACA) program, announced on June 15,
2012, provided eligible, undocumented immigrants temporary relief from deportation and granted them work authorization subject to renewal every two years.2 While the vast majority
are from Mexico, Central and South America, DACA recipients hail from a variety of countries, including Nigeria, South Korea and Jamaica.3 Since 2012, approximately 800,000 unauthorized
immigrants were approved for DACA status and of these, nearly 690,000 individuals still participated in the program as of September 4, 2017.4 On September 5, 2017, the Trump
administration announced its decision to end the DACA program, stopped accepting applications
from new applicants and restricted renewal to participants whose DACA eligibility would expire by March 5, 2018.5 Immigrants whose work permits were set to expire between September 5
and March 5, 2018 were given only a month to reapply, and it is estimated that 22,000 of the 154,000 individuals eligible to renew their status missed the deadline.6
2 Tom K. Wong et al., Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA (Sept. 2013), available at https://www.americanprogress.org/wpcontent/uploads/2013/09/DACAReportCC-2-1.pdf. 3 Gustavo López and Jens Manuel Krogstad, Key Facts About Unauthorized Immigrants Enrolled in DACA, Pew Research Center: Fact Tank (Sept. 25, 2017), http://www.pewresearch.org/fact-tank/2017/09/25/key-facts-aboutunauthorized-immigrants-enrolled-in-daca/; See also USCIS Report on Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, (2012-2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20 Data/All%20Form%20Types/DACA/daca_performancedata_fy2017_qtr4.pdf 4 A profile of current DACA recipients by education, industry and occupation is available at Jie Zong et al., A Profile of Current DACA Recipients by Education, Industry, and Occupation, Migration Pol’y Inst. (Nov. 2017), https://www.migrationpolicy.org/research/profile-current-DACA-recipients-education-industry-and-occupation. 5 Tom Jawetz and Nicole Prchal Svajlenka, Thousands of DACA Recipients Are Already Losing Their Protection From Deportation, Ctr. for Am. Progress (Nov. 9, 2017, 6:00 AM), https://www.americanprogress.org/issues/immigration/news/2017/11/09/442502/thousands-daca-recipients-alreadylosing-protection-deportation/. 6 Id.
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It is estimated that by December 25, 2017, an estimated 13,500 DACA recipients will have lost protection.7 But for the administration’s decision to end DACA, 23,000 children would have become eligible between September 5, 2017 and March 5, 2018.8 Unless action is taken by Congress, the administration or federal courts, DACA participants will begin to lose their status beginning March 5, 2018.9
DACA has improved the lives of undocumented young people and Dreamers’ significant contributions in every aspect of American life have made our country greater. Despite their significant contributions, DACA recipients now face the prospect of losing their jobs, homes, businesses, access to in-state tuition and scholarship assistance, and worse, they fear being detained, deported and being separated from their families and children (at least 200,000 U.S. children have a parent that is a DACA recipient).
Amici understand that policies promoting economic security, diversity and inclusion are integral to the health and well-being of minority communities and the nation. Ending DACA is not in the public interest as it will result in irreversible harms to DACA recipients and their families, institutions of higher education and workplaces, our nation’s public schools, immigrant business and residential communities, our military, and beyond. These irreparable harms to the public interest are relevant to this Court’s review of the plaintiffs’ motion pending before it.
7 The Fierce Urgency of Protecting Dreamers Now, Ctr. for Am. Progress, https://cdn.americanprogress.org/content/uploads/2017/12/12034644/ProtectingDreamersUrgentOnePager.pdf (last visited Dec. 22, 2017). 8 The Fierce Urgency of Protecting Dreamers Now, Ctr. for Am. Progress, https://cdn.americanprogress.org/content/uploads/2017/12/12034644/ProtectingDreamersUrgentOnePager.pdf (last visited Dec. 22, 2017). 9 Tom Jawetz and Nicole Prchal Svajlenka, Thousands of DACA Recipients Are Already Losing Their Protection From Deportation, Ctr. for Am. Progress (Nov. 9, 2017, 6:00 AM), https://www.americanprogress.org/issues/immigration/news/2017/11/09/442502/thousands-daca-recipients-alreadylosing-protection-deportation/.
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Amici believe this Court will find that the harms and public interest considerations, as fully set forth herein, necessitate the grant of preliminary and injunctive relief. Accordingly, we urge this Court to grant Plaintiffs’ motion for a preliminary injunction.
ARGUMENT I. RESCISSION OF DACA WILL DESTABILIZE THE ECONOMIC HEALTH
OF IMMIGRANT COMMUNITIES Amici are gravely concerned that the end of DACA will have a destabilizing impact on the economy. DACA has shown that this country’s economy prospers when undocumented immigrants can integrate into its social fiber. DACA beneficiaries have become more financially stable because the program enabled them to engage in the economic marketplace and their communities in ways often inaccessible to undocumented immigrants by attending college, entering the workforce, starting businesses, and buying homes. Sixty-nine percent of respondents to a recent study conducted by the Center for American Progress (CAP) who were enrolled in DACA reported moving to a job with better pay and fifty-four percent moved to a job that “better fits [their] education and training.”10 In a 2015 survey of 1,750 DACA recipients, over three quarters had obtained a new job after receiving protections.11 In a 2014 study conducted by the Institute for Research on Labor and Employment (IRLE) at the University of California in Los Angeles, 66 percent of respondents enrolled in DACA went from being unemployed to employed. Cumulatively, CAP estimates that ending DACA would result in the loss of $460 billion
10 Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Ctr. for Am. Progress (Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/dacarecipients-economic-educational-gains-continue-grow/. 11 Faye Hispman et al., DACA at Four: Participation in the Deferred Action Program and Impacts on Recipients, Migration Pol’y Inst. (Aug. 2016), https://www.migrationpolicy.org/research/daca-four-participation-deferredaction-program-and-impacts-recipients.
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from the national GDP over the next decade.12 A study by the Immigrant Legal Resource Center found that ending DACA would result in losses of $39.3 billion to Social Security and Medicare over the next 10 years, and would result in the removal of an estimated 685,000 workers from the nation’s economy.13 The harm may be felt even more acutely in local immigrant communities, where DACA recipients have started their own small businesses and bought homes.
A. Diminished Dreams of Entrepreneurship and the Loss of Small Business Owners Our nation has greatly benefitted from entrepreneurial DACA recipients who have stimulated economic growth by starting businesses, creating jobs and employing people from their communities. In recent years, DACA recipients have outpaced Americans in the creation of startups. A survey from the National Immigration Law Center and CAP estimates that 5 percent of DACA recipients overall, including 8 percent of adults over the age of 25, started their own small business after enrollment in the program. By contrast, only 3.1 percent of U.S.-born residents are business owners.14 These immigrant-run businesses serve and bind together diverse communities and help them participate more fully in civic life. For example, one respondent to the NILC and CAP survey reported, “I started a bookkeeping business which gives me the opportunity to help our Hispanic community be in compliance with tax law […] If DACA ended, I will not be able to
12 Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Ctr. for Am. Progress (Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/dacarecipients-economic-educational-gains-continue-grow/. 13 Draining the Trust Funds: Ending DACA and the Consequences to Social Security and Medicare, available at: https://www.ilrc.org/report-daca-economic-cost 14 David Dyssegaard Kallick with Silva Mathema, Refugee Integration in the United States, Center for American Progress (June 16, 2016) available at: https://www.americanprogress.org/issues/immigration/reports/2016/06/16/139551/refugee-integration-in-the-unitedstates/.
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keep my small business and help my community.” Another respondent stated, “Because of DACA, I opened a restaurant. We are contributing to the economic growth of our local community. We pay our fair share of taxes and hire employees […] It will be hard to maintain my business if DACA ended. I depend on my [social security number] for a lot of my business, such as when getting licenses, permits, leases, and credit.” 15
DACA business owners have made innumerable contributions to their communities beyond the services and job opportunities provided by their businesses, and these contributions are now jeopardized because of DACA’s termination. Maria from Phoenix, AZ, told the NILC, “Now, 22 years since my arrival and almost 6 years after DACA, I have become a homeowner, a business owner of a small boutique, and a regional office manager for a national company. And in my spare time I teach English to fellow immigrants like me who only want to contribute. I sit in my office thinking about a promotion that I am unwilling to take because I have the uncertainty of what will happen tomorrow. It saddens me to think that tomorrow I may not be able grow my business or even live in my own home.”16
B. The Decline in Homeownership and Resulting Harm to Communities For many recipients, DACA provided an opportunity to achieve financial security for themselves and their families and contribute to the economic stability of their communities through homeownership. The online real-estate database company Zillow estimates that 123,000 DACA recipients are homeowners and, indeed, purchased their homes after their DACA
15 Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Ctr. for Am. Progress (Aug. 28, 2017), https://www.americanprogress.org/issues/immigration/news/2017/08/28/437956/dacarecipients-economic-educational-gains-continue-grow/. 16 Stories in Defense of Deferred Action for Childhood Arrivals, Nat. Immigration Law Ctr., https://www.nilc.org/issues/daca/daca-fifth-anniversary-stories/ (last accessed Dec. 22, 2017).
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applications had been approved.17 According to a survey of DACA recipients conducted by the CAP, nearly 24 percent of respondents over the age of 25 purchased a home after their DACA application was approved. 18 Through homeownership, DACA recipients “pay an estimated $380 million a year in property taxes to their communities.” Communities that benefit, even depend, on the property tax revenues from these DACA recipient homeowners will be negatively impacted by the uncertainty caused by DACA rescission.
Creating a pathway to homeownership is particularly important for communities of color who continue to suffer as a result of the widening racial and ethnic wealth gap in this country. Owning a home is oftentimes the largest investment families make. Yet, only 46 percent of Hispanics and 42 percent of African Americans own a home compared to 73.5 percent of whites.19 DACA allowed undocumented immigrants who had previously faced barriers to homeownership because of their status to accumulate long-term wealth and security. Due to the termination of DACA, recipients who are homeowners face an uncertain future, as property options are not immediately clear. As stated by homeowner and DACA recipient, Eliana Fernandez, said “I, thankfully to DACA, was able to graduate [from] college, work in the line of work like I always wanted to do. I became a homeowner...What’s going to happen with my life, with my work, with my children? I’ve been trying to process everything.”20
17 Alexander Casey, An Estimated 123,000 ‘Dreamers’ Own Homes and Pay $380M in Property Taxes, Zillow (Sept. 20, 2017), https://www.zillow.com/research/daca-homeowners-380m-taxes-16629/. 18Tom K. Wong, Results from Tom K. Wong et al., 2017 National DACA Study, Ctr. for Am. Progress (Oct. 7, 2017), https://cdn.americanprogress.org/content/uploads/2017/11/02125251/2017_DACA_study_economic_report_updated .pdf. 19 U.S. Census Homeownership Rates by Race and Ethnicity of Householder, 2013-2017. Available at https://www.census.gov/housing/hvs/files/currenthvspress.pdf. 20 Priscilla Alvarez, Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?, The Atlantic (Oct. 21, 2017), https://www.theatlantic.com/politics/archive/2017/10/donald-trump-daca/543519/.
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II. DACA TERMINATION WILL IMPAIR OUR COUNTRY’S DIVERSITY AND LEADERSHIP
Terminating DACA would exclude the talents, ideas, work ethic and experiences of immigrants who seek only to help build and protect our nation and contribute to this nation’s rich cultural tapestry and economic strength. Protections afforded under DACA have enabled members of immigrant communities to attend educational institutions, pursue training opportunities and aspire to positions of leadership. Twenty percent, or 241,000, of the immediately eligible DACA population has enrolled in college.21 Approximately 57,000 DACA recipients have earned their bachelor’s degree and many more are on track to do the same. 22
A. DACA Serves as a Necessary Pathway to Leadership in Immigrant Communities It is a well-accepted precept that “universities . . . represent the training ground for a large number of our Nation’s leaders,” and thus “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Grutter v. Bollinger, 539 U.S. 306, 332 (2003). Terminating DACA will sever this pathway to leadership and prevent upward mobility within immigrant communities. Leaders like DACA recipients Cesar Vargas, Jessica Rubio and Juventino Meza have made indelible marks in their communities. Mr. Vargas came to the United States from Mexico at the age of five. He is a national immigration reform advocate who “made history when a New York court paved the way for him to become the first undocumented immigrant to practice law in the state,” with the support of the New York State Attorney General.23 Ms. Rubio came to the
21 Randy Capps, Michael Fix, and Jie Zong, The Education and Work Profiles of the DACA Population, Migration Pol’y Inst. (Aug. 2017), https://www.migrationpolicy.org/research/education-and-work-profiles-daca-population. 22 Id. 23 See Press Release, NYS Board of Regents Proposal Removes Obstacles to Licenses for Non-Citizens Board’s decision includes DACA students and opens the door for licensure for a range of professions, (February 25, 2017), http://aaldef.org/2.26Regentslicensing.pdf.
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United States when she was fourteen years old. She graduated college and founded a nonprofit organization that prepares low-income high school students for college in Arizona. Mr. Meza came to the United States when he was fifteen years old, became the first in his family to go to college, and while in college co-founded a non-profit organization that works on behalf of undocumented youth. The progress and stability of not just immigrant communities, but all communities, are dependent on the existence of community leaders like Mr. Vargas.
B. DACA Promotes Increased Exposure to Diversity in Workplaces and Educational Institutions, Which is Critical to Societal Progress and the Country’s Ability to Foster Culturally Competent Leaders
In addition to serving as a pathway to better opportunities for recipients, DACA has exposed U.S born residents in workplaces and educational institutions to diverse individuals, perspectives and ideas. Racial and ethnic diversity are not just necessary and beneficial to immigrant communities, but of critical importance to our society as a whole. As the Supreme Court has explained, “[t]hese benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Grutter v. Bollinger, 539 U.S. 306, 330 (2003); see also Douglas Laycock, The Broader Case for Affirmative Action: Desegregation, Academic Excellence, and Future Leadership, 78 TUL. L. REV. 1767, 1769-76 (2004) (explaining how Grutter extended the importance of diversity in education to the development of leaders). Indeed, “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Regents of University of California v. Bakke, 438 U.S. 265 (1978) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).
Our nation benefits greatly from residents who are better equipped to handle 21st century problems in a world that is increasingly technologically and economically interconnected. As our
10

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society grows more diverse and our economy more internationally focused, the states that wish
to remain competitive will increasingly require not only racially and culturally diverse leaders,
but leaders who have been exposed to a diverse community. In late 2016, a group of more than
700 college and university presidents issued a statement in support of DACA, noting among
other comments “the critical benefits of this program for our students, and the highly positive impacts on our institutions and communities.”24 The presidents’ joint statement noted:
DACA beneficiaries on our campuses have been exemplary student scholars and student leaders, working across campus and in the community. With DACA our students and alumni have been able to pursue opportunities in business, education, high tech, and the non-profit sector; they have gone to medical school, law school, and graduate schools in numerous disciplines. They are actively contributing to their local communities and economies.25
Major corporations, such as Starbucks and Microsoft, have stressed the importance of
diversity within their workforce. Starbucks interim general counsel, Paul F. Mutty, noted that
employing DACA recipients
supports the kind of diverse and creative workplace we seek to create and sustain…Dreamers who have gained employment under DACA represent so many of our customers—customers who are either immigrants themselves or the children, grandchildren or friends of immigrants…In addition to working… our DACA partners are going back to school, taking care of their families, and working toward realizing their own American dream.26
Mr. Mutty punctuates the sentiment shared not only by major corporations, but by
schools, universities and communities, by stating, “We are a better company because of their contributions.”27 Not allowing DACA recipients to continue their employment or their education
will create a void in diversity that will harm our country’s ability to remain competitive.
24 Pomona College, College & University Presidents Call for U.S. to Uphold and Continue DACA (Nov. 21, 2016), https://www.Pomona.edu/news/2016/11/21-college-university-presidents-call-us-uphold-and-contine-DACA. 25 Id. 26 Affidavit of Paul M. Mutty, ¶¶8-9 27 Id.
11

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III. DACA REVOCATION WILL HAVE A DEVASTATING IMPACT ON OUR TEACHERS AND THE EDUCATION SYSTEM AS A WHOLE
DACA teachers are a significant asset to our nation’s public schools, especially in cities
with large, immigrant student populations. An estimated 20,000 DACA recipients are employed
as educators throughout the U.S., and many of them possess in-demand bilingual language skills.28 In certain states, the numbers of DACA recipient educators are substantial: 5,000 in California, and 2,000 each in New York and Texas.29 There is currently a severe shortage
nationally of teachers in the public education sector, estimated to be as high as 327,000 public educators.30 The consequences of a shortage in public education employment are well known:
larger class sizes, fewer teacher aides, fewer guidance counselors, fewer extra-curricular activities.31 Furthermore, in the past few decades, the racial makeup of the country’s student
population has drastically shifted, but the overwhelming majority of public school teachers continue to be white.32 Public schools have seen increased enrollment by students of color, especially by Latinos.33 By 2025, it is expected that a majority of high school graduates will be
28 Moriah Balingit, As DACA winds down, 20,000 educations are in limbo, Wash. Post (Oct. 25, 2017), https://www.washingtonpost.com/local/education/as-daca-winds-down-20000-educators-are-inlimbo/2017/10/25/4cd36de4-b9b3-11e7-a908-a3470754bbb9_story.html (citing data provided by the Migration Policy Institute); see also Greg Toppo, 20,000 DACA teachers at risk — and your kids could feel the fallout, too (Oct. 11, 2017, 7:00 AM), https://www.usatoday.com/story/news/2017/10/11/thousands-daca-teachersrisk/752082001/. 29 Id. 30 Elise Gould, Local public education employment may have weathered recent storms, but schools are still short 327,000 public educators, Econ. Pol’y. Inst. (Oct. 6, 2017), http://www.epi.org/publication/teacher-employmentmay-have-weathered-storms-but-schools-are still short 327,000-public-educators/. 31 Id. 32 The latest data shows that about 84 percent of public school teachers are white. C. Emily Feistritzer, Profile of Teachers in the U.S. 2011, Nat. Ctr. for Educ. Info. (July 2011), https://www.edweek.org/media/pot2011finalblog.pdf. 33 Alice Yin, Education by the Numbers, N.Y. Times (Sept. 8, 2017), https://www.nytimes.com/2017/09/08/magazine/education-by-the-numbers.html.
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students of color.34 DACA has allowed schools to recruit qualified teachers with whom their students can identify.
In already resource-strapped school districts, DACA teachers do much more than just fill available positions, they also serve as mentors and role models to minority students. For many communities, DACA teachers mirror the experiences of their immigrant students, which informs their teaching with cultural competence, helps develop positive relationships with students and creates more welcoming school environments. 35 Recent research has demonstrated that when students of color have teachers from similar backgrounds, they are more likely to succeed. A recent study published by the Institute of Labor Economics found that “low-income black male students in North Carolina who have just one black teacher in third, fourth, or fifth grade are less likely to drop out of high school and more likely to consider attending college.”36 Viridiana Carrizales of Teach For America aptly noted that “[w]e cannot afford to lose so many teachers and impact so many students…[e]very time a student loses a teacher, that is a disruption in the student’s learning.” 37
As Vanessa Lina, a DACA recipient who taught as a Teach for America teacher and now serves as a recruiter, told The New York Times: “We’re going to lose leaders and lose teachers – it’s not only their presence, but having a teacher that can share the same experiences that you
34 Id. 35 Lisette Partelow, America Needs More Teachers of Color, (September 14, 2017, 9:00 am), https://www.americanprogress.org/issues/education-k-12/reports/2017/09/14/437667/america-needs-teachers-colorselective-teaching-profession/ 36 Seth Gershenson and others, The Long-Run Impacts of Same-Race Teachers, (Bonn, Germany: Institute of Labor Economics, 2017), available at http://ftp.iza.org/dp10630.pdf 37 Greg Toppo, 20,000 DACA teachers at risk — and your kids could feel the fallout, too (Oct. 11, 2017, 7:00 AM), https://www.usatoday.com/story/news/2017/10/11/thousands-daca-teachers-risk/752082001/.
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possibly had growing up … Their advocacy, their leadership, their resilience is extraordinary because of their own personal journey.”38
Diversity in teaching is a critical to educational equity, and students of all racial and
ethnic backgrounds, especially immigrant students benefit from having DACA educators.
School environments that reflect the diversity of communities, the country, and the world help open students’ minds to new perspectives and actively engage them in learning. Prejudice and
bias is countered in schools and communities when respect for diversity is taught, modeled, and experienced firsthand by children.39 The loss of 20,000 DACA teachers will cause severe and
lasting harm to students and their educational trajectories, and more broadly our country which
depends on the great talent of future generations.
IV. ELIMINATION OF DACA STATUS WILL ALSO HARM OUR MILITARY AND RECIPIENTS PROUDLY SERVING IN OUR ARMED FORCES
Diversity is also critically important to the military. Beginning in 2014, the Pentagon
allowed DACA recipients to enroll in a program known as Military Accessions Vital to the National Interest (“MAVNI”). As the Defense Department has explained, MAVNI allows fasttracked citizenship for enrollees “whose skills are considered to be vital to the national interest,” including “physicians, nurses, and certain experts in language with associated cultural backgrounds.”40 The policy behind MAVNI is to “ensure[] that the sacrifice of non-citizens
38 Liz Robbins, For Teachers Working Through DACA, a Bittersweet Start to the School Year, N.Y. Times (Sept. 7, 2017), https://www.nytimes.com/2017/09/07/nyregion/daca-teachers.html. 39 ADL, Creating an Anti-Bias Learning Environment, https://www.adl.org/education/resources/tools-andstrategies/creating-an-anti-bias-learning-environment 40 See Military Accessions Vital to National Interest (MAVNI): Recruitment Pilot Program, U.S. Dept. of Def., available at https://www.defense.gov/news/MAVNI-Fact-Sheet.pdf; see also Beyond the Defense Language Transformation Roadmap: Bearing the Burden for Today’s Educational Shortcomings: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Armed Servs., 111th Cong. (statement of Ms. Nancy E. Weaver, Dept. of Def., Senior Language Auth.), as written, http://prhome.defense.gov/Portals/52/Documents/RFM/Readiness/DLNSEO/docs/Weaver%20Testimony%2006291 0.pdf (“[The MAVNI] program recruits legal non-citizens with critical foreign language and cultural skills, as well
14

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during a time of national need is met with an opportunity for early citizenship, to recognize their contribution and sacrifice.”41
The approximately 900 DACA recipients enlisted in the MAVNI program are now left in limbo, not knowing whether they will be permitted to carry out their service or be deported. 42 Multiple news sources have related the story of 24-year-old Army recruit and DACA recipient William Medeiros, who enlisted in MAVNI in August 2016.43 Medeiros was born in Brazil and came with his family to the United States when he was 6.44 “All we want to do is serve," said Medeiros. “We enlisted and had our whole lives planned, and now we’re just waiting. They’re using us, our lives, as a bargaining chip.” 45 DACA rescission harms not only military recruits like Medeiros, who have chosen military careers to benefit their families and the country, but also our armed forces in general which is in great need of the type of highly valuable and diverse skills that many like Medeiros can offer.
CONCLUSION For the foregoing reasons, as well as to maintain the status quo until the merits are resolved, amici urge this Court to grant the Plaintiffs’ Motion for Preliminary Injunction.
as licensed healthcare professionals, and as an additional incentive, they receive expedited U.S. citizenship processing in return for their service.”). 41 Id. 42 Vera Bergengruen and Franco Ordoñez, These are the military recruits who might be deported under Trump, McClatchy DC Bureau (July 17, 2017, 7:34 PM), http://www.mcclatchydc.com/news/nationworld/national/article161872568.html. 43 See, e.g., Vera Bergengruen, BuzzFeed News (Sept. 6, 2017, 6:20 PM), https://www.buzzfeed.com/verabergengruen/join-the-military-to-avoid-deportation-turns-out-its-not; Vera Bergengruen and Franco Ordoñez, These are the military recruits who might be deported under Trump, McClatchy DC Bureau (July 17, 2017, 7:34 PM), http://www.mcclatchydc.com/news/nationworld/national/article161872568.html. 44 Id. 45 Id.
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Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 23 of 27 PageID #: 6999

Dated: December 22, 2017
Of Counsel:
Dariely Rodriguez Dorian Spence Phylicia H. Hill The Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue NW Washington, DC 20008 Telephone: (202) 662-8600 Facsimile: (202)-783-0857 DRodriguez@lawyerscommittee.org

Respectfully Submitted,
_____________________ Matthew T. McLaughlin (MM 6241) Venable LLP 1270 Avenue of the Americas New York, NY 10020 (212) 983-8312 mtmclaughlin@Venable.com
William D. Coston (pro hac vice pending) Martin L. Saad (pro hac vice pending) Sameer P. Sheikh (pro hac vice pending) Venable LLP 600 Massachusetts Avenue NW Washington, DC 20001 (202) 344-4183 wdcoston@Venable.com
Counsel for Amicus Curiae, the Lawyers’ Committee for Civil Rights Under Law
Thomas Silverstein The Lawyers’ Committee for Civil Rights Under Law 1401 New York Avenue NW Washington, DC 20008 (202) 662-8600 tsilverstein@lawyerscommittee.org
Counsel for Amici Curiae, Advocates for Youth, Lawyers’ Committee for Civil Rights and Economic Justice, Mississippi Center for Justice, National Urban League, Public Counsel, Southern Poverty Law Center, and Washington Lawyers’ Committee for Civil Rights and Urban Affairs
John B. Harris Frankfurt Kurnit Klein & Selz PC 488 Madison Avenue New York, NY 10022 (212) 705 4823 jharris@fkks.com
Counsel for Amicus Curiae, the Anti-Defamation League
16

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APPENDIX List of Additional Amici Curiae with Individual Statements of Interest

AntiDefamation League

The Anti-Defamation League (“ADL”) was founded in 1913 “to stop the defamation of the Jewish people, and to secure justice and fair treatment to all.” Today, ADL is one of the world’s leading civil rights organizations. As an organization founded by immigrants and sworn to protect the interests of religious and ethnic minorities, ADL believes that when our nation’s values are threatened, we are duty-bound to return to the founding principles that propelled this nation of immigrants. As such, ADL has advocated for fair and just immigration policies for more than a century, including a pathway to citizenship for young undocumented immigrants brought to this country as children. As part of its commitment to create an ever-more just and inclusive society, ADL has filed amicus briefs in numerous cases challenging policies that undermine the ideal of America as a nation of immigrants. At stake in this case are the lives of 800,000 undocumented immigrants who were brought to the United States as children, their families, communities, and all of us who depend on a future that embraces diversity as a strength.

Advocates for Youth

Advocates for Youth is a national reproductive and sexual health/rights organization that centers the needs and voices of young people. The President’s decision to end DACA is an attack on immigrant youth and families living in our communities, as well as on our values of fairness, equality, and opportunity. At Advocates for Youth, we center young people, people of color, LGBTQ communities, and children of immigrants—all of who would be disproportionately impacted if DACA was rescinded. We are committed to the health and safety of all young people, and the President should be as well. This shameful decision will not deter us from working to ensure the reproductive and sexual health and rights of all young people are realized regardless of citizenship status. As a nation, we must find the moral clarity to end attacks on immigrants.

The Lawyers' Committee for Civil Rights and Economic Justice

The Lawyers' Committee for Civil Rights and Economic Justice (“LCCR”) fosters equal opportunity and fights discrimination on behalf of people of color and immigrants. LCCR engages in creative and courageous legal action, education, and advocacy, in collaboration with law firms and community partners. As part of this work, LCCR has long sought to further immigrant justice through impact litigation. Immigrant entrepreneurs also are assisted through LCCR’s Economic Justice Project. LCCR thus has a strong interest in ensuring that DACA recipients and DACA-eligible immigrants are not unlawfully deprived of economic, educational, and other opportunities through rescission of the DACA program.

Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 25 of 27 PageID #: 7001

Mississippi Center for Justice

The Mississippi Center for Justice, the Deep South Affiliate of the Lawyers Committee for Civil Rights Under Law, is a 501(c)(3) nonprofit public interest law organization founded in 2003 in Jackson, Mississippi and committed to advancing racial and economic justice. Supported and staffed by attorneys and other professionals, the Center develops and pursues strategies to combat discrimination and poverty statewide. One of amicus’ original areas of interest involved predatory loan practices directed at migrant poultry workers, and MCJ has remained concerned about the plight of Mississippi’s growing immigrant population for the last decade, particularly in the areas of access to healthcare, education, housing and fair lending. MCJ has signed on as Amicus for several cases challenging President Trump’s travel ban, and it has the same concerns regarding the termination of DACA.

National Urban League

National Urban League is the nation's oldest and largest community-based movement, established in 1910 to empower African Americans to enter the economic and social mainstream. The mission of the Urban League movement is to enable African Americans to secure economic self-reliance, parity, power and civil rights. Today, it has 90 affiliates in 35 states and the District of Columbia providing direct services to more than 2 million people nationwide. The work of the Urban League and its Affiliates includes advocacy, research and social services programs including job training, job placement, homeownership, STEMS education, entrepreneurship and financial literacy. The National Urban League advances the guarantee of civil rights for the underserved in America by actively working to eradicate all barriers to equal participation in all aspects of American society, whether political, economic, social, educational or cultural. This is embodied in one of the organization's key "Empowerment Goals" for 2025: Every American has an equal right and responsibility to fully participate in our democracy and civic processes, and ALL people have a right to justice and fairness. The National Urban League believes that fairness, compassion, and common sense should be used when addressing the problems of undocumented immigrants in America, 15% of whom are from Africa and the Caribbean.

Public Counsel

Public Counsel’s Immigrants’ Rights Project (“IRP”), founded in 1970, provides pro bono legal representation to low-income immigrants whose claims are pending before the Department of Homeland Security, the Executive Office for Immigration Review and the federal courts. IRP attorneys have trained hundreds of attorneys nationwide on legal issues relevant to DACA, and have assisted over 1,000 young people apply for Deferred Action for Child Arrivals (“DACA”) and DACA renewals. We helped over 200 DACA recipients file renewal requests prior to the October 5, 2017 deadline established by the current administration. We currently represent hundreds of other immigrants who have family members who are DACA recipients.

Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 26 of 27 PageID #: 7002

Southern Poverty Law Center

Southern Poverty Law Center (“SPLC”) has provided pro bono civil-rights representation to low-income persons in the Southeast since 1971. SPLC has litigated numerous cases to enforce the civil rights of immigrants and refugees to ensure that they are treated with dignity and fairness. SPLC also monitors and exposes extremists who attack or malign groups of people based on their immutable characteristics. SPLC is dedicated to reducing prejudice and improving intergroup relations. SPLC has a strong interest in opposing discriminatory governmental action that undermines the promise of civil rights for all.

The Washington Lawyers’ Committee for Civil Rights and Urban Affairs

The Washington Lawyers’ Committee for Civil Rights and Urban Affairs is a non-profit civil rights organization established to eradicate discrimination and poverty by enforcing civil rights laws through litigation and public policy advocacy. In furtherance of this mission, the Washington Lawyers’ Committee represents some of the most vulnerable populations in Washington, D.C., Maryland and Virginia, including immigrants and non-English speakers, who are often discriminated against on the basis of their national origin, and who are often unaware of their legal rights and protections. We are counsel in CASA de Maryland v. Department of Homeland Security, C.A. RWT – 17 2942 (D. Md.) (A challenge to the President’s rescission of the Deferred Action for Childhood Arrivals program.)

Case 1:17-cv-05228-NGG-JO Document 174 Filed 12/22/17 Page 27 of 27 PageID #: 7003
CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, a copy of the foregoing pleading was filed electronically with the Clerk of Court to be served by operation of the Court’s electronic filing system.
_____________________ Matthew T. McLaughlin

 
 Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 1 of 55 PageID #: 7296

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------)(

MARTiN JONATHAN BATALLA VIDAL et al.,

Plaintiffs,

-against-
KIRSTJEN M. NIELSEN, Secretary, Department of Homeland Security, et al.,

AMENDED MEMORANDUM & ORDER & PRELIMINARY INJUNCTION
16-CV-4756 (NGG) (JO)

Defendants.
---------------------------------------------------------------------)(

STATE OF NEW YORK et al., Plaintiffs,
-against-

AMENDED MEMORANDUM & ORDER & PRELIMINARY INJUNCTION
17-CV-5228 (NGG) (JO)

DONALD TRUMP, President of the United States, et al.,

Defendants.
---------------------------------------------------------------------)(

NICHOLAS G. GARAUFIS, United States District Judge. In 2012, the Department of Homeland Security created the Deferred Action for

Childhood Arrivals ("DACA") program. That program permitted certain individuals without

lawful immigration status who entered the United States as children to obtain "deferred

action"- contingent, discretionary relief from deportation-and authorization to work legally in

this country. Since 2012, nearly 800,000 DACA recipients have relied on this program to work,

study, and keep building lives in this country.

1

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 2 of 55 PageID #: 7297
On September 5, 2017, Defendants announced that they would gradually end the DACA program. 1 (Letter from Jefferson B. Sessions III to Elaine C. Duke (Admin. R. (Dkt. 77-1)2 251) ("Sessions Ltr."); Mem. from Elaine C. Duke, Acting Sec'y, DHS, Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals
Who Came to the United States as Children" (Sept. 5, 20 17) (Admin. R 252) ("DACA
Rescission Memo").) The Department of Homeland Security ("DHS") would consider pending DACA applications and renewal requests, as well as promptly filed renewal requests by DACA beneficiaries whose benefits were set to expire within six months, but would reject all other applications and renewal requests. (DACA Rescission Memo at 4.) Plaintiffs in the abovecaptioned cases promptly challenged Defendants' decision on a number of grounds, including, most relevant for purposes of this Memorandum and Order, that the decision violated the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "APA"). (2d Am. Compl. (Dkt. 60)); Compl. (Dkt. 1, No. 17-CV-5228).) Plaintiffs now seek a preliminary injunction barring Defendants from ending the DACA program pending a final adjudication of these cases on the merits. (Mem. in Supp. of Mot. for Prelim. Inj. (Dkt. 123-1) ("BV Pis. Mot."); Mem. in Supp. of Mot. for Prelim. Inj. (Diet. 96-1, No. 17-CV-5228) ("State P1s. Mot.").)
"Congress passed the [APAJ to ensure that agencies follow constraints even as they
exercise their powers. One of these constraints is the duty of agencies to find and fmmulate
Stt1Fd1ehe7errPeacf-mleCnuUanirkVin.idnlStai-ayt.nti5nefKC2tfvdss2.orti8whnMhs)asteijtavt~eihDst~enusrAant5Neica7osChimp-neAu7e.le0sscdepe,t(tn3r2ttao,osds3g,a3PAdr5n-ael0m3damf59ie.An.nbU)Cttdiet.ofoaBcSfmnras.entu'cps7essal8yPeu.u8br(sGo,eDsefs8etkaitu0ndhtnn0e.eetlr-in1aa0vAt1wl1eP3DJfA,(eAuo1NflPn9fdodeAa9or.il2ssdec)1ocs,lJr6na.ino-imBmCTontl.irVsynupS,a-mtewe4throsp7emhsr,5yiiAio6cStahn)tedtns~coaiir~rIrmmeeIe8Itcuea.t9tyshr-r,yPe1eGilv0onfaeoi0finevnc,tweihut1oiresfa9lofalo5Dsfta-fiaPe9ontlpr8hndleae;isosgrSAitefdemomtceptherhni.eennatCtititFaaooatrlinhymffd.teHhNepP(cioAi3.iremsdem(liDssoeAieelnkdnnammtend.an.dam5rtCke4eia,nnmNgt ,tpooi.. (Dkt. 113, No. 16-CV-4756) at ECF p.40.) 2 All record citations refer to the docket in Batalla Vidal v. Nielsen, No. 16-CV-4756, except as otherwise noted.
2

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 3 of 55 PageID #: 7298

policies that can be justified by neutral principles." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 537 (2009) (Kennedy, J., concurring in part and in the judgment). To that end, the APA authorizes parties harmed by federal agencies to obtain judicial review of agency decisions. 5 U.S.C. § 702. The reviewing court must set aside "action, findings, [or] conclusions" that are, among other things, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2)(A).3 Review under this "arbitrary and capricious" standard is "narrow," and the court may not "substitute its judgment for that of the agency"; instead, the court considers only whether the agency's decision "was the product of reasoned decisionmaking." Motor Vehicle Mfts. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 52 (1983) ("State Farm"). If the agency decision "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made,"' the court will uphold the agency's decision. Id. at 43 (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)). If, however, the agency's decision "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise," that decision must be set aside. Id.
Review under the arbitrary-and-capricious standard is generally limited to the agency's stated rationale for its decision, State Farm, 463 U.S. at 43; Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam), and to the "full administrative record that was before the [agency] at the time [it] made [its] decision," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

3 On November 9, 2017, the court rejected unavailable because the decision to rescind

DtheefeDnAdCanAtsp' raorggruammenwtsasth"actojmudmicititaeldretoviaegwenucnydedristchreetAioPnAbwy alasw."

(Nov. 9, 2017, Mem. & Order (Dkt. 104) at 20-28.)

3

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 4 of 55 PageID #: 7299
420 (1971) ("Overton Park"). The court "may not supply a reasoned basis for the agency's action that the agency itself has not given." State Farm, 463 U.S. at 43 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) ("Chenery II")); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) ("Chenery I"). Nor may the court uphold agency action based on "post hoc rationalizations of agency actioiL" State Farm, 463 U.S. at 50; see also Williams Gas Processing- Gulf Coast Co., L.P. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (Roberts, J.) ("It is axiomatic that [the court] may uphold agency orders based only on reasoning that is fairly stated by the agency in the order under review; post hoc rationalizations by agency counsel will not suffice." (intemal quotation marks and citation omitted)).
The APA thus sometimes places courts in the formalistic, even perverse, position of setting aside action that was clearly within the responsible agency's authority, simply because the agency gave the wrong reasons for, or failed to adequately explain, its decision. Ihg,, State Farm, 463 U.S. at 42-43, 48-56; Overton Park, 401 U.S. at 416,420. Based on the present record, these appears to be just such cases.
Defendants indisputably can end the DACA program. Nothing in the Constitution or the Immigration and Nationality Act, 8 U.S. C. § 1101 et seq. (the "INA"), requires immigration authorities to grant deferred action or work authorization to individuals without lawful immigration status. The DACA program, like prior deferred-action and similar discretionary relief programs, simply reflected the Obama Administration's determination that DRS's limited enforcement resources generally should not be used to depott individuals who were brought to the United States as children, met educational or military-service requirements, and lacked meaningful criminal records. (Mem. from Janet Napolitano, Sec'y, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children
4

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 5 of 55 PageID #: 7300
at 1-2 (June 15, 2012) (Admin. R. 1-2) (the "2012 DACA Memo").) New Administrations may, however, alter or abandon their predecessors' policies, even if these policy shifts may impose staggering personal, social, and economic costs.4
The question before the court is thus not whether Defendants could end the DACA program, but whether they offered legally adequate reasons for doing so. Based on its review of the record before it, the court concludes that Defendants have not done so. First, the decision to end the DACA program appears to rest exclusively on a legal conclusion that the program was unconstitutional and violated the APA and INA. Because that conclusion was erroneous, the decision to end the DACA program carmot stand. Second, this erroneous conclusion appears to have relied in part on the plainly incorrect factual premise that courts have recognized "constitutional defects" in the somewhat analogous Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") program. Third, Defendants' decision appears to be internally contradictory, as the means by which Defendants chose to "wind down" the program (namely, by continuing to adjudicate certain DACA renewal applications) cannot be reconciled with their stated rationale for ending the program (namely, that DACA was unconstitutional).
Any of these flaws would support invalidating the DACA rescission as arbitrary and capricious. Before this court, Defendants have attempted to reframe their decision as motivated by
"litigation risk." They contend that the decision to end the DACA program was reasonable in light ofthe prospect that Texas and several other states would seek to amend their complaint in Texas v. United States, No. 14-CV-254 (S.D. Tex.), to challenge the DACA program; that the
4t(heeTsthmimeasanetyicnohgsettlshpefaurcelobdsrtesiteaofisfletfdhileeindDbgAryeCaaAmterircelisecninigsttshhioeinsneothcveaesreextsh.hei(bnSietesxett,ode.ePgcl.aa,idBnetriaifeftSf$o'4mf6A0o.tm3ioibnciisllCfioournripainreell1oim1s4tinGCaDorymPipananjnudine$cs2ti4(oD.n6k, bta.inl1ldi6oi0nn) in lost Social Security and Medicare tax contributions).)
5

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 6 of 55 PageID #: 7301
U.S. District Court for the Southem District of Texas would issue a nationwide injunction ending the program; and that the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Comt would affirm that injunction. (Defs. Opp'n to Pis. Mots. for Prelim. Inj. (Dkt. 239) at I, 10-11, 21-24.) The Administrative Record does not support Defendants' contention that they decided to end the DACA program for this reason. Even if it did, reliance on this "litigation risk" rationale would have been arbitrary and capricious, in light of Defendants' failure to explain their decision or to consider any factors that might have weighed against ending the DACA program. And even if this "litigation risk" rationale were both suppotted by the Administrative Record and a reasonable basis for rescinding the DACA program, the comt would neve1theless likely set Defendants' decision aside, as the court cannot say that any ofthe aforementioned errors were
harmless, for purposes of review under the APA. Accordingly, the comt concludes that Plaintiffs are likely to succeed on the merits of
their substantive APA claims. Because Plaintiffs also satisfy the remaining requirements for the court to issue a preliminary injunction, the court ENJOINS Defendants from rescinding the DACA program, pending a decision on the merits of these cases. Defendants thus must continue processing DACA renewal requests under the same terms and conditions that applied before September 5, 2017, subject to the limitations described below. The scope of this preliminary injunction conforms to that previously issued by the U.S. District Court of the Northem District of Califomia. See Order Denying Defendants' Motion to Dismiss for Lack of Subject-Matter Jurisdiction and Granting Provisional Relief(Dkt. 234), Regents of the Univ. of Calif. v. U.S. Dep't of Homeland Sec., No. 3:17-CV-5211 (N.D. Cal. Jan. 9, 2018) ("Regents") (Alsup, J.), pet. for cert. before judgment filed, No. 17-1003.
6

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 7 of 55 PageID #: 7302

The court makes clear, however, what this order is not.

•

TqHp("urha[oeAimvss]tiiiosloptiroonrdenneilasiWrlmf,doaiaorntdceashsirunymnCteioomnrt.ijamuhvrn.o,ycBlidjtmuieotdpmnhgeuarm.mst.e.Wtanhnitseae,,tnnrbcteohy,stmcCimtisousos.tv,aitoeib2ornl0nye6so,nfFnfaoDo.tr2utAdrafeiC7,xp3eriAned8tlw,eio7mrarl4iosfn2icunau(ran2tyloldaroiynwCr,jicfutruoen. lnnc1.ctt9ailTou5tinhs3v.ia)evt,eC,f.

characterized by its for-the-time-beingness.").

•

Tpeacrenotrhadou9icsigr4nhtr-ogt9atorh5mtdhe.re.eesrOmaDEdmnavAonreeedeCnsrmtAeinhsafeoupntthlrddtoeh,efgcooDcrirloasHduiamoSrtdnthw"iuaftmalofttesiiDDrmgleeehHnagfttteSaelrnallelfytdyoaearfrsdi,norneinetdfnsc.is"cotmihtnehFeasnaEiytetd,CxDenterhovearet.cftieiorAosnerenkdds.iocainninfSsnmti,edsteys5' t2slCrhat4eahewmtUeeDfenu.dSdeAlrr.ydaCy1tiiissAI1o,c,fnr3o2ea1r5tli8etohUnfeo,.rS.

(1998).

•

TaqriiDaMbcctgFSenpu.ghaoaqrAdeAoepasaisnurTismeiinCQlvvtaensihsitsoics"soAnss.de.aar"t"t,uoasulsdt)DMaeFlnfati,r@enoarsdleAScEreyetnunioeem.wxqCsdsce,indp.uanhwooocAstoet4tdeeoiuhraana1dm2ispnlplavtterd-rstlpntboi3reo1oyidnDlieod.nf.gin))uoArScteheHrgatar4atwrisPIlaeStsD",mteksirtdapoq2eeoedAwwlrnfis0duiroPdordeChos1ihveleQrrrou7snAaevqnie.alu,dnromitudnMDneieaddtdefsegpeoiereesartoetxepexteiffnttdoqtseleehsqe.yhi.rnunrreuc"n(ecrcsiadDaceeoRsirsistsrsaeeadsttkiseietaetontsutmsicate.np.Qmuttrorcroseasr9isfti6mto(rnaia7petaSiqosnco-(nrrin[ueenA2egiotgtdacegoh,rhsapt;uaratNheUranmrhttttaec.tao]odio.ennoeutS2er.stewatniDtvr.5hha1owneea,oCeoolA7rlsran2rfiiudiy-cleCafkoyt0ClioiiflrdsDn1czAanVepwcdlie7ubqAtyarai-nr)ipteesul5lrahtCssrtcl(ehtr2sihoo"rsityboAaa2eiAgorct,npettist8urizript,dDas)"go&hlearfemnaorncae.etifraoieitn.fIe2o2p"ntdetmEDr5onai0tntebCeahmn(A1dtDwnd2echaF2aiitCf0tiAtenginilowD1pnltodArtCrsh2.asnrehiAta1eveaAtoml8iyactCiloud6neumnAsu.is)vautelst

•

TrMDwehiAectiimhsCpoooiAer,rndFDwteAsiHr'tQhSddoseomufeateastaryQnrNteo2eod7trtm.pia)cricenMetiavootaefeninlnnatottarDDeinwneAiftonCetrngoAkdtTharaeeenurctmstisthpa'ionitfeurarnsitozetmq'a,sutadiortoee[ndfive.toosre]Urksedindnnidsogacetchirrtneiitntodhignoeivnt"2io.da0"tau1la(2atAnelDyrpDrtAthA.imaC2Ct5e.AA,

Because the court issues the preliminary injunction requested by Plaintiffs, the Batalla

Vidal Plaintiffs' Motion for Class Certification (Dkt. 124) is DENIED as moot. The court will

address by separate order Defendants' motions to dismiss Plaintiffs' operative complaints.

7

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 8 of 55 PageID #: 7303
(Defs. Mot. to Dismiss Third Am. Compl. (Dkt. 207); Defs. Mot. to Dismiss (Dkt. 71, No. 17-
CV-5228).)
I. BACKGROUND The court provides a brief history of immigration authorities' use of"defelTed action"
and similar discretionary-relief programs, the DACA and DAPA programs, and this litigation to offer context for the discussion that follows. For further background, the reader may consult this comt's prior orders (see Oct. 3, 2017, Order (Dkt. 72); Oct. 17, 2017, Mem. & Order (Dkt. 86); Oct. 19,2017, Mem. & Order (Dkt. 90); Nov. 9, 2017, Mem. & Order (Dkt. 104); Nov. 20,2017, Order (Dkt. 109); Dec. 15,2017, Order (Dkt. 122); Jan. 8, 2018, Mem. & Order (Dkt. 233)), the Northern District of California's opinion in Regents, 2018 WL 339144, at* 1-8, and the opinion of the Office of Legal Counsel regarding DAPA (see The Depattment of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. at 1 (2014) (Admin. R. 4) ("OLC Op.")).
A. History of Deferred Action "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States, 567 U.S. 387, 394 (2012). That power derives from the Constitution, which authorizes Congress "[t]o establish a uniform Rule of Naturalization," U.S. Const. att. I., § 8, cl. 4, and from the Government's "inherent power as sovereign to control and conduct relations with foreign nations." Arizona, 567 U.S. at 395. Acting under this authority, the Government has created an "extensive and complex" statutory and regulatory regime governing, among other things, who may be admitted to the United States, who may work here, and who may be removed from the country. Id.; see id. at 395-97. Not all "removable" aliens are, in fact, deported from this country. Immigration officials "cannot act against each technical violation of the statute[s they are] charged with enforcing,"
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but must determine which enforcement actions are worthwhile. Heckler v. Chaney, 470 U.S. 821,831 (1985); Arpaio v. Obama, 797 F.3d 11,15-16 (D.C. Cir. 2015). "A principal feature of the removal system is the broad discretion exercised by immigration officials," who "as an initial matter, must decide whether it makes sense to pursue removal at all," and, "[i]f removal proceedings commence," may decide whether removable aliens wanant asylum or "other discretionary relief allowing them to remain in the country or at least to leave without fmmal removal." Arizona, 567 U.S. at 396; see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,483 (1999) ("AAADC") (observing that throughout the removal process, immigration officials have "discretion to abandon the endeavor"). Immigration officials' enforcement discretion is a practical necessity as well as a legal reality: By one recent estimate, there are approximately 11.3 million undocumented aliens present in the United States, of whom DHS has the resources to remove fewer than 400,000 per year-about 3.5 percent of the total. (OLC Op. at 1.)
Over the years, Congress and the Executive Branch have developed a number of means by which immigration officials may exercise their discretion not to deport removable aliens. "Some of these discretionary powers have flowed from statute," such as "parole," see 8 U.S.C. § 1182(d)(5)(A), and "temporary protected status," see id. § 1254a. Regents, 2018 WL 339144, at *2; see also, e.g., 8 U.S.C. § 1229b (cancellation of removal); id. § 1229c (voluntary departure). Others, such as "defened enforced departure" or "extended voluntary departure," have been ad hoc exercises of executive authority, grounded in the Executive Branch's responsibility for conducting foreign relations and enforcing immigration laws, rather than in express congressional authorization. Regents, 2018 WL 339144, at *2; OLC Op. at 12 & n.5.
9

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The cases before this court concern one such form of discretionary relief. "Deferred action" is a longstanding practice by which the Executive Branch exercises its discretion to abandon, or to decline to undertake, deportation proceedings "for humanitarian reasons or simply for its own convenience." AAADC, 525 U.S. at 484; see also Arpaio, 797 F.3d at 16 ("' [D]eferred action' ... entails temporarily postponing the removal of individuals unlawfully present in the United States."). By granting a removable alien deferred action, immigration officials convey that they do not currently intend to remove that individual from the country. As such, deferred action offers the recipient some assurance-however non-binding, unenforceable, and contingent on the recipient's continued good behavior-that he or she may remain, at least for now, in the United States. Additionally, recipients of deferred action may apply for
authorization to work legally in the United States, provided that they "establish[] an economic necessity for employment." 8 C.F.R. § 274a.12(c)(14); see also 8 U.S.C. § 1324a(h)(3) (excluding from the definition of "unauthorized aliens," who may not be knowingly employed in the United States, aliens "authorized to be ... employed ... by the Attorney General"). Deferred action does not, however, confer lawful immigration status, a pathway to citizenship, or a defense to removal, and is revocable by immigration authorities. United States v. Anieta, 862 F.3d 512,514 (5th Cir. 2017); Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1058 (9th Cir.
2014). (2012 DACA Memo at 3.) "Although the practice of granting deferred action 'developed without express statutory
authorization,' it has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court." (OLC Op. at 13 (quoting AAADC, 525 U.S. at 484).) DHS and its predecessor, the Immigration and Naturalization Service, have employed deferred action and similar discretionary-relief programs, such as "nonpriority status"
10

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and "extended voluntary departure," since at least the 1960s. Arpaio, 797 F.3d at 16 (citing OLC Op. at 7-8, 12-13). (Br. of Amicus Curiae Former Federal Immigration and Homeland Security Officials (Dkt. 198-1) ("Former Fed. Officials Amicus Br.") at 6-11; Andorra Bruno et al., Cong. Res. Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, at 20-23 (July 13, 2012), https://edsource.org/wp-content/uploads/old/Deferred-Action-Congressional-ResearchService-Reportl.pdf ("CRS Rep.").) These programs were used to provide reliefto, among dozens of examples, refugees from war-torn and communist countries; spouses and children of aliens granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; aliens eligible for relief under the Violence Against Women Act
("VAWA") or the Victims of Trafficking and Violence Protection Act of 2000; foreign students affected by Hurricane Katrina; and certain widows and widowers ofU.S. citizens. (OLC Op. at 14-17; Former Fed. Officials Amicus Br. at 8-10.)
Congress has repeatedly ratified immigration officials' practice of according deferred action to certain aliens without lawful immigration status. See, e.g., 8 U.S.C. § 1151 note (certain immediate family members of certain alien U.S. combat veterans are "eligible for deferred action, advance parole, and work authorization"); id. § 1154(a)(l)(D)(i)(II) (VAWA petitioners "eligible for deferred action and work authorization"); id. § 1227(d)(2) (denial of administrative stay of removal "shall not preclude the alien from applying for ... defeiTed action"); USA PATRIOT Act of200l, Pub. L. No. 107-56, § 423(b), 115 Stat. 272,361 (certain immediate family members of lawful permanent residents killed in the tetTorist attacks of September 11, 2001, "may be eligible for deferred action and work authorization").
11

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B. DACA and DAPA On June 15,2012, then-DRS Secretary Janet Napolitano issued the 2012 DACA Memo, which stated that DRS would consider granting deferred action to certain individuals without lawful immigration status who entered the United States as children. (2012 DACA Memo at 1.) Secretary Napolitano stated that DRS was implementing this program as an "exercise of prosecutorial discretion" in the enforcement of immigration laws, to "ensure that ... enforcement resources are not expended on ... low priority cases." (Id.) Under the 2012 DACA Memo, individuals were eligible for consideration for deferred action ifthey (1) "came to the United States under the age of sixteen"; (2) had "continuously resided in the United States for a[t]least five years preceding the date of this memorandum and [were] present in the United States" on that date; (3) were "in school," had "graduated from high school," had obtained GEDs, or were honorably discharged veterans of the Armed Forces or Coast Guard; (4) had not been convicted of felonies, significant misdemeanors, or multiple misdemeanors, or been deemed to "otherwise pose[] a threat to national security or public safety"; and (5) were not above the age of thirty. (Id.) DACA applications from individuals meeting these criteria would be evaluated "on an individual" or "case-by-case" basis and would not necessarily be "granted in all cases." (Id. at 2.) The 2012 DACA Memo "confer[red] no substantive right, immigration status or pathway to citizenship." (IQ, at 2-3.) In late 2014, DRS announced the DAPA program, which would have granted deferred action to certain parents of U.S. citizens and lawful permanent residents. (Mem. from Jeh Charles Johnson, Sec'y of DRS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents ofU.S. Citizens or Permanent Residents (Nov. 20, 2014) (the "2014 DAPA Memo") (Admin R. 40).) As part of that program, then-DRS Secretary Jeh Johnson directed U.S.
12

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 13 of 55 PageID #: 7308
Citizenship and Immigration Services ("USCIS") "to establish a process, simi!aT to DACA, for exercising prosecutorial discretion through the use of defened action, on a case-by-case basis," to certain individuals who, among other things, lacked formal immigration status and had a son or daughter who was a U.S. citizen or lawful permanent resident. (Id. at 1.) Secretary Johnson also announced that the DACA program would be expanded by (I) removing tbe requirement that DACA applicants be under the age of 30 as of June 2012; (2) extending tbe duration of the deferred action and work authorization obtained through the program from two to three years; and (3) adjusting the date-of-entry requirement to open DACA to individuals brought to the
United States between June 15,2007, and January 1, 2010. Q<h at 3-4 (the "DACA
Expansion").)
C. The Texas Litigation Following DRS's issuance of the 2014 DAPA Memo, Texas and 25 other states filed suit in the U.S. District Court for the Southern District of Texas, alleging tbat the DAPA program violated the APA and the Take Care Clause of the U.S. Constitution, U.S. Canst. art. II,§ 3. See Texas v. United States, 86 F. Supp. 3d 591, 598 (S.D. Tex. 2015). On February 16,2015, after concluding that Texas and its fellow plaintiffs had standing to sue, Judge Andrew Hanen determined that tbey were likely to succeed on the merits of their claim that DAPA constituted a "legislative" or "substantive" rule that, under tbe APA, should have been made through noticeand-comment rulemaking procedures. Id. at 664-72. In particular, Judge Harren found that the 2014 DAPA Memo, "[a]t a minimum, ... 'severely restrict[ed]' any discretion that Defendants argue exists" in the adjudication ofDAPA applications, and that DHS had not genuinely exercised discretion in reviewing DACA applications. Id. at 669 & n.l 01. The court issued a nationwide injunction against the implementation of both the DAPA program and the DACA
Expansion. Id. at 677-78. 13

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The Fifth Circuit denied a stay of the preliminary injunction, 787 F. 3d 733, 743 (5th Cir. 2015), and affirmed the district court on two independent, alternative grounds, 809 F.3d 134, 178 (5th Cir. 2015) (revised). First, the Fifth Circuit upheld the district court's ruling that the plaintiff states were likely to prevail on the merits of their claim that the DAPA program was invalid because it was not developed through notice-and-conunent rulemaking. See id. at 17078. In particular, the Fifth Circuit found that Judge Hanen did not clearly err in finding that "[n]othing about DAPA genuinely leaves the agency and its [employees] free to exercise discretion," based partly on evidence that supposedly showed that USCIS exercised little caseby-case discretion in adjudicating DACA applications. Id. at 172 (quoting 86 F. Supp. 3d at 670
(alterations in original)); see id. at 172-78. Second, the Fifth Circuit concluded that the plaintiff states were likely to prevail on the
merits of their claim that the DAPA program was substantively arbitrary and capricious because, in that court's view, the program was contrary to the INA. See id. at 178-86. The Fifth Circuit observed that "Congress has enacted an intricate process for illegal aliens to derive a lawful inunigration classification from their children's immigration status," in the f01m of familypreference visas, id. at 179, and cancellation of removal and adjustment of status, id. at 180. While admitting that DAPA did not "confer the full panoply of benefits that a visa gives," the Fifth Circuit held that DAPA nevertheless conflicted with these statutory forms of relief by pe1mitting "illegal aliens to receive the benefits of lawful presence" without meeting the stringent requirements applicable to these provisions. See id. at 180. Similarly, the Fifth Circuit
held that DAPA conflicted with the INA by providing an easier path to "lawful presence" and work authorization for approximately four million undocumented inunigrants-a question of great national importance that Congress could not have intended to delegate implicitly to DRS.
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See id. at 180-81. The Fifth Circuit acknowledged that there was a long history of discretionaryrelief programs but held that past practice was not dispositive of DAPA's legality and distinguished DAPA from past programs on the grounds that such programs were '"done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,"' id. at 184 (quoting CRS Rep. at 9); used as a "bridge[] from one legal status to another," id.; or "interstitial to a statutory legalization scheme," such as the Family Fairness program enacted by the Reagan and George H.W. Bush Administrations, id. at 185. Accordingly, "DAPA [wa]s foreclosed by Congress's careful plan ... and therefore was properly enjoined." Id. at 186.
The Supreme Court granted the Government's petition for a writ of certiorari, 136 S. Ct. 906 (2016), and affirmed the decision of the Fifth Circuit by an equally divided court, 136 S. Ct.
2271 (Mem.).
D. The DACA Rescission On January 25, 2017, the newly inaugurated President Donald Trump issued an executive order stating that "[i]t is the policy of the executive branch to ... [e]nsure the faithful execution of the immigration laws of the United States," and that "[w]e cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement." Exec. Order 13,768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), 82 Fed. Reg. 8799. Shortly thereafter, then-DHS Secretary John F. Kelly issued a memorandmn implementing this executive order by rescinding "all existing conflicting directives, memoranda, or field guidance regarding enforcement of our immigration laws and priorities for removal," except for the DACA and DAPA programs, which he left in place. (Mem. from John F. Kelly, Sec'y, DHS, Enforcement of the Immigration Laws to Serve the National Interest at 2 (Feb. 20, 2017) (Admin. R. 230).)
15

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Four months later, Secretary Kelly issued another memorandum rescinding DAPA and the DACA Expansion in light of "the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities." (Mem. from John F. Kelly, Sec'y, DHS, Rescission of November 20,2014, Memorandum Providing for Deferred Action for Parents of Americans and Lawful Petmanent Residents ("DAPA") at 3 (June 15, 2017) (Admin. R. 237).) This memo left the original DACA program in place and did not affect the remaining tln·ee-year grants of deferred action that were issued under the DACA Expansion prior to Judge Hanen's issuance of a preliminary injunction in Texas. (kl at 2 & n.3).
Following the rescission of the 2014 DAPA Memo, Texas Attorney General Ken Paxton, joined by the attorneys-general often other states, wrote to Attorney General Jefferson B. Sessions to insist that the Executive Branch rescind the 2012 DACA Memo. (Ltr. fi·om Ken Paxton, Att'y Gen. ofTex., to Hon. Jeff Sessions, Att'y Gen. ofthe U.S. (June 29, 2017) (Admin. R. 238).) Paxton threatened that ifDHS did not stop issuing or renewing deferred action and work authorization under DACA or the DACA Expansion, the plaintiff states would amend their complaint in the Texas litigation "to challenge both the DACA program and the remaining Expanded DACA permits." Mat 2.) If, however, Defendants agreed to rescind the 2012 DACA Memo and to cease "renew[ing] or issu[ing] any new DACA or Expanded DACA permits in the future," the plaintiffs would voluntarily dismiss their complaint. (Id.)
On September 5, 2017, Defendants announced that the DACA program would be brought to a gradual end. In an undated letter (the "Sessions Letter"), the Attorney General wrote to then-Acting DHS Secretary Elaine C. Duke to "advise that [DHS] should rescind" the 2012
16

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DACA Memo.5 (Sessions Ltr.) The Attorney General opined that DACA was unlawful, unconstitutional, and likely to be invalidated in court:
DeelouPrbmrtdeaxsehpneaAegsitelusevecasraicCcltmniosibtotussdiel-nilAnaaateepidsDisimtdnndvltniheeioedwAeDetednvnueladaPeeoltdattsetgifhtAecdRhogeeanete,a.neraeildcortsclafDigei-nfitliwsaddrdeTAr,iieoncaceosohxPudwuttnunAeeuelnAmtlii,ncarsdcdktacotavhtspee(fiiShfneosDfloodtaayesineeunlrnAtcvtirmtiobditcrtePohCeuyffypetonaAtatahodraiirtcoutoenn)rhcppytbnngPphJoeeooyarubooamroetflnyerlrpstfiedpiesnhscrttnt.elHety'ehyaiiitfvmsraetsbBoewehuFilcmyomSlpeteiyatooufeucdstesitfrhsaagpihlytameetuarhrAenaaensCsaEmaddtmjedmitiuoixmmroirttteieeenhhcShnniircjenlCeenoeeeiauncicidrcoDrtctstiautilutotironvaAyolrroeruiiwnsaenttstnCrtiyaubBtsagiasAotnolyahrtnnJdnf.rateoadpaiepnwonhtocwSrtcibnhnooaloLehuaiirsgpnqtc.awscoKhnoywuiwhuTsoisaezhignfaeuahlldueoalholdnnleeyydlsdf yield similar results with respect to DACA. (Id. (citation omitted).) Thereafter, Acting Secretary Duke issued a memorandum (the "DACA Rescission Memo") instmcting her subordinates to "execute a wind-down ofthe program." (DACA Rescission Memo at 1.) Acting Secretary Duke briefly summarized the creation of the DACA and DAPA programs and stated that, although the DACA program "purported to use deferred action-an act of prosecutorial discretion meant to be applied only on an individualized case-bycase basis," "USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the [2012 DACA Memo] but still had his or her application denied based solely upon discretion." (Id. at 2 & n.l.) Acting Secretary Duke then described the history of the Texas litigation, noting that the Fifth Circuit had affirmed the injunction against the implementation of the DAPA program based on the finding
5 While the Sessions Letter is not dated, the bookmarks in the electronic PDF file of the Administrative Record ascribe a date of September 4, 2017, to this letter.
17

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"that DACA decisions were not truly discretionary," and observed that Secretary Kelly had acted to end categorical or class-based exemptions of aliens from potential enforcement of the immigration laws and to rescind the DAPA program while leaving the DACA program
"temporarily ... in place." iliL at 2; see id. at 2-3.)
The Acting Secretary then noted that Texas and several other states had threatened to challenge the DACA program, and she briefly summarized the Attorney General's opinion that DACA was unconstitutional, unlawful, and likely to be stluck down because it shared "the same
legal and constitutional defects that the courts recognized as to DAPA." iliL at 3 (quoting
Sessions Ltr.).) "Taking into consideration the Supreme Court's and the Fifth Circuit's mlings in the ongoing litigation, and the September 4, 2017letter from the Attorney General," she
concluded, "it is clear that the June 15,2012, DACA program should be terminated." iliL at 4.)
In light of "the complexities associated with winding down the program," however, Acting Secretary Duke directed that the program should be wound down gradually. (Id.) Initial applications, renewal requests, and associated applications for work authorization that had been "accepted" by DHS by September 5, 2017, would be adjudicated "on an individual, case-by-case basis." ilil) Likewise, all DACA renewal requests and associated applications for work authorization submitted by "current beneficiaries whose benefits will expire between [September 5, 2017] and March 5, 2018," would be adjudicated, provided that these requests were "accepted by [DHS] as of October 5, 2017." ilil) DHS would, however, "reject all DACA initial requests and associated applications for [work authorization] filed after the date of this memorandum" and "all DACA renewal requests and associated applications for [work authorization] filed outside ofthe[se] parameters." ilil) Existing DACA benefits would not be terminated
18

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 19 of 55 PageID #: 7314
immediately but would not be renewed, and DHS would no longer approve further applications
for advance parole." @.)
E. Procedural History The court will not restate the procedural history of these cases prior to November 2017, which is set forth in the comt's November 9 Memorandum and Order. The court will, however, provide the following timeline of recent developments in these cases. On December 11,2017, the Batalla Vidal Plaintiffs filed their Third Amended Complaint (Dkt. 113), which largely tracked their Second Amended Complaint but added a claim that Defendants Nielsen and Sessions violated the Due Process Clause of the Fifth Amendment by rejecting DACA renewal applications that (l) were promptly mailed but received by USCIS after October 5, 2017, due to U.S. Postal Service delays; (2) were delivered to USCIS by October 5, 2017, but rejected because they arrived too late in the day; or (3) contained "minor perceived or actual clerical enors." (Third Am. Compl. (Dkt. 113) ~ 203; see id. ~~ 199-205.) On December 20, 2017, the Supreme Court vacated the decision of the U.S. Comt of Appeals for the Ninth Circuit denying Defendants' petition for a writ of mandamus to the Northem District of Califomia in similar litigation challenging Defendants' decision to end the DACA program. In reUnited States, No. 17-801 (U.S. Dec. 20, 2017) (per curiam). The Supreme Court held that the "Govermnent [has made] serious argmnents that at least pottions of the District Court's order are overly broad" and that, "[u]nder the specific facts of [that] case," the district court should have resolved the Govermnent' s arguments that the decision to rescind the DACA program was not subject to judicial review before ordering the Govemment to produce a complete administrative record. Id. (slip op. at 3). The Court suggested that the district court "may consider cettifying that ruling for interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate." Id. (slip op. at 4).
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Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 20 of 55 PageID #: 7315
One week later, the U.S. Court of Appeals for the Second Circuit denied Defendants' petition for a writ of mandamus to this court and lifted its stay of record-related orders entered by this court and by Magistrate Judge James Orenstein. (Dec. 27,2017, USCA Order (Dkt. 210).) The Second Circuit rejected Defendants' position that they could unilaterally determine which portions of the administrative record the court could consider, and determined that, in light of the "strong suggestion that the record before the [District Court] was not complete," plaintiffs were entitled to discovery as to whether Defendants had produced a full administrative record. ([d, at 2 (quoting Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982)) (alteration in original).) Rejecting Defendants' contention that compliance with this court's and Judge Orenstein's
record-related orders would burden the Executive Branch, the Second Circuit noted that this court had repeatedly limited the scope of those orders, such that, as the Government conceded, "the number of documents, covered by the order, as modified, is approximately 20,000, a far smaller number than the Government's papers led this court to believe." (Id. at 3-4.) The Second Circuit distinguished In re United States on the grounds that this court had already considered and rejected Defendants' jurisdictional arguments, clarified that the orders in question did not apply to White House documents, and limited the orders to apply to dramatically fewer documents than were at issue in the cases before the Northern District of California. ([d, at 4-5.)
Defendants then moved for the court to certify its November 9 Memorandum and Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Mot. to Cettify Order for Appeal (Dkt. 219).) They argued that certification would "materially advance the disposition of the litigation" by either "terminat[ing] the litigation" or "clarify[ing] the rights of the parties" and "limiting the claims going forward in this litigation." (Mem. in Supp. of Mot. to Certify Order for Appeal (Dkt. 219-1) at 14.) On January 8, 2018, the court granted Defendants' motion to
20

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 21 of 55 PageID #: 7316
certify the November 9 Memorandum and Order for interlocutory appeal because, among other things, there was "substantial ground for difference of opinion" on the question ofwhether the DACA rescission was committed to agency discretion by law. (Jan. 8, 2018, Mem. & Order (Dkt. 233) at 4-6.) Defendants then argued that the court should delay an oral argument scheduled for January 18, 2018, pending the Second Circuit's consideration of the interlocutory appeal, as "all (or at least most) of [the] district-court proceedings [regarding Defendants' motions to dismiss, PlaintiffS' motions for a preliminary injunction, and the Batalla Vidal Plaintiffs' motion for class certification] will be uunecessary if the Second Circuit accepts some or all of the government's arguments on jurisdiction and justiciability." (Defs. Jan. 11,2018,
Ltr. (Dkt. 236) at 1.) Before the Second Circuit, however, Defendants abruptly changed tack, agreeing with Plaintiffs "that holding the petition [for interlocutory appeal] in abeyance would be the most efficient course of action," pending this court's consideration of Defendants' motion to dismiss and Plaintiffs' motions for preliminary relief and class certification. (Reply in Supp. of Pet. for Permission to Appeal (Dkt. 28, Nielsen v. Vidal, No. 18-122 (2d Cir.)) at 2.)6
On January 9, 2018, the Northern District of California denied Defendants' motion to dismiss Regents and its companion cases and granted the plaintiffs a preliminary injunction. (Nov. 9, 2018, Order Denying FRCP 12(b)(l) Dismissal and Granting Provisional Relief(Dkt. 234, Regents).) Like this court, Judge William Alsup rejected Defendants' contentions that the decision to end the DACA program was committed to agency discretion by law and that 8 U.S.C. § 1252(g) barred judicial review of that decision. (Id. at 18-23.) Judge Alsup further concluded
6NsAphlopDeovpaueeeslfmledeldanbbtdteeeharaasn9ttstacsDMf'rfien,befeoemewdrnoditrlnoaiastnnitlgteadachaudktamivotooenafnrpacedoodqsoOeuirltirdiisdboiinetenirrao.aitsnitoeTethndhauetbjtsueecdtdmowiicurpeiertaetctlntioslryteduhsaeneotlcuaDoeyrdrecttepdahsasienrtwtormweitdsehhoenelcittutihsdoteieoafrrnJatguhuomsemtfoiticnhetienceo'otssnsenFffsocoeisardrtsereweernsahlc.ilyyePIftnirhtnohiagsaDnrtcyeatofmheeuevsnryetdBnsasrthen,aoettnsmuhc'lehdpncoaocosnteuitdttrtoiitoCfhinyisavtvnihleoet actually wanted.
21

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 22 of 55 PageID #: 7317
that the plaintiffs were entitled to a preliminary injunction because they were likely to prevail on the merits of their claim that the decision to rescind the DACA program was substantively "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," because that decision "was based on a flawed legal premise" that the DACA program was illegal. (Id. at 29; see id. at 29-38.) Judge Alsup rejected Defendants' argument that "DHS acted within its discretion in managing its litigation exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the program so as to avoid a potentially disastrous injunction in the Fifth Circuit" as a "classic post hoc rationalization" and, in any event, insufficient to support the decision to rescind the DACA program because Defendants had neither considered defenses to Texas's potentially imminent suit nor weighed supposed litigation risks against "DACA's programmatic objectives as well as the reliance interests ofDACA recipients." (Id. at 38-43.)
II. LEGALSTANDARD
"[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting l1A Charles A. Wright eta!., Federal Practice and Procedure§ 2948, at 130 (2d ed. 1995)) (emphasis omitted). A party "seeking a preliminary injunction must establish that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) 7 To establish a likelihood of success on the merits, the
7tiCrniijTatuilhgn, ercwotSiiuotephncoGamnbldaoayblCaadnilrecMcmeukoiottnsfhs.hat,rasIa,rntdacest.httvhii.pmesVeetxsCi,ipGsfptoeiSrnnmpgceeudcloeiaacftle"iddOaetpdshpeliyrsmiiostnuutans[niitqdtsiua]eresfdsaMtvdiooianfrsf,te"gerorerianFntthgulyent.rdotFhLthoatednr.me,ax5ela9rimki8tespFlilt.heo3,odmao3dap0kao,erft3tys5husec(em2ceedkasiCsnfiagori.nra2tgp0hrr1eoe0ulmi)nm;edsriienftoesar.ry
22

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 23 of 55 PageID #: 7318
party seeking an injunction "need only make a showing that the probability of his prevailing is better than fifty percent." Eng v. Smith, 849 F.2d 80, 82 (2d Cir. 1988); see also Nken v. Holder, 556 U.S. 418,434 (2009) ("It is not enough that the chance of success on the merits be 'better than negligible.'" (quoting Sofinet v. INS, 188 F.3d 703,707 (7th Cir. 1999))). When an injunction is "mandatory," however-that is, when the injunction "alter[s] the status quo by commanding some positive act"-the movant must demonstrate a "clear" or "substantial" showing oflikelihood of success. Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995). To obtain a mandatory injunction, a movant must also "make a strong showing of irreparable harm." State of New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638,650 (2d Cir. 2015) (internal quotation marks and citations omitted). III. DISCUSSION
For the reasons that follow, Plaintiffs have demonstrated that they are entitled to a preliminary injunction against implementation of the DACA Rescission Memo.
A. Likelihood of Success on the Merits First, Plaintiffs are substantially likely to succeed on the merits oftheir claim that Defendants' decision to end the DACA program was substantively arbitrary and capricious.8
panat8ss1hlptuop4s3ae1rpteo2nscmla6duyFiipdfa,iao.pn1i.3rnrcldg3edatya3tl,taapo1l83phye3"-5poar33la-lmiw,93usiket18teeiash(s4vl2tsi(ohu3ehidhrvetrooie(,erCzo2le"edod"id[rdiarsw.nonCerbg1rde]fiyh9irgsto.h9heuusua22natlcsava0)tc.tteq1etu(o.h6u"stm.rises)eysaeeso(orts"tipniircsnootrehhrttneueehreilssirgsiem"onmuqsuamelstuilsaa.tnee"atnqqarisndouirutFdtiyanoseorar")tsiinrda,etndsi.tsncjoi"tueodaanSrnsnnpsstetc.dp"aoemtanlgifsiorgaderttdanreashak)nnnre.hwsdtedeeEriaTardaalranelhlpdas,ldaepytnasflcHfSdusiHieeertPascjavacumtlitoiwatdivgniopigahenodntnmseovtnioCnWefeCmfrncistAnrtithi·ncmscitvar.uttoelepaeiCnldtrcone'c)oarstnae.ttunag,ed"ndcTdeesIctndehioiatrcolehgtsi,.nhoaocImveutvnto.rastoceuhTkS.roqreenouttvun,mwnp."eSresliMeninetaeknimlodoctetehNnaflenivelsEhao"C.aproatcHyouossdt,uttbdiaeaor9Hilcnttino6iicdacda9fimaainsesrnsFupdneCwt.cetos2otchdrrtdeneesoss,.tesths"er Council, Inc., 509 U.S. 918 (1993). 8tDohreaT"fthesienut dbwcasootnuautnrslttdtinoaoel"ntealdlkyieknpoearltefihfsdieoerrmcovidaedteotihvfweeshusaetcctacthtseuestsrostqhoaunedojitunhadsjeuicomnafctetSerieoiDtpns,AtestComhueAbgyeharatpr4bep,yle2icnP0atl1itat7ilioe.nndtsiBftfaoesncadaisupr"sreemenlPeiamwlnadiainnalattrrioefyrqfysui,neh"jsauitvnsne,cthotdiaroetnmniotronewn-gsmoaturraadlndtlededcsasotaomor"yfpc,telhelienar" standard that applies.
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Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 24 of 55 PageID #: 7319
Plaintiffs contend that this decision violated APA § 706(2)(A) because, among other things, it was based on an erroneous legal conclusion that DACA was unlawful, failed to consider important aspects of the problem, and was internally contradictory. (BV Pls. Mot. at 11-20,2327; State Pls. Mot. at 5-13.) Defendants aver, however, that the decision reflects a reasonable assessment oflitigation risk. (Defs. Opp'n at 1, 10-13, 15-24.) Based on the record before it, the court concludes that Plaintiffs, not Defendants, are substantially likely to be correct.
1. The Stated Rationale for Rescinding DACA Appears To Be Arbitrary and Capricious
Plaintiffs have identified at least three respects in which Defendants' decision to rescind the DACA program appears to be arbitrary, capricious, and an abuse of discretion. First, the decision rests on the erroneous legal conclusion that the DACA program is unlawful and unconstitutional. Second, the decision rests on the enoneous factual premise that courts have determined that the DACA program violates the Constitution. Third, the stated rationale for that decision is internally contradictory, as Defendants have continued to grant DACA renewal requests despite ending the DACA program on the grounds that it is, by their lights, unconstitutional. The court addresses each ofthese reasons in turn.
a. The Decision Relies on the Legally Erroneous Premise that DACA Is Illegal
An agency decision that is based on an erroneous legal premise cannot withstand arbitrary-and-capricious review. See 5 U.S.C. § 706(2)(A). It is well-established that when "[agency] action is based upon a determination oflaw as to which the reviewing authority of the courts does come into play, an order may not stand ifthe agency has misconceived the law." Chenery I, 318 U.S. at 94. Accordingly, numerous courts have recognized that agency action based on a misconception of the applicable law is arbitrary and capricious in substance. See, M,., Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 86-87 (2d Cir. 2006); Transitional Hosps.
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Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 25 of 55 PageID #: 7320
Corp. of La., Inc. v. Shalal~ 222 F.3d 1019, 1029 (D.C. Cir. 2000) (Garland, J.); see also Planned Parenthood Fed. of Am., Inc. v. Heckler, 712 F.2d 650,666 (D.C. Cir. 1983) (Bork, J., concurring in part and dissenting in part) ("If a regulation is based on an incorrect view of applicable law, the regulation cannot stand as promulgated ...."(internal quotation marks and citation omitted)). That is no less true when an agency takes some action based on an erroneous view that the action is compelled by law, notwithstanding that the agency could have taken the same action on policy grounds. "An agency action, however permissible as an exercise of discretion, cannot be sustained 'where it is based not on the agency's own judgment but on an erroneous view of the law."' Sea-Land Serv., Inc. v. Dep't ofTransp., 137 F.3d 640, 646 (D.C.
Cir. 1998) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)). This rule is consistent with cases from outside the administrative-law context, which make clear that a decision based on "an erroneous view of the law" is "by definition" or "necessarily" an abuse of discretion. Koon v. United States, 518 U.S. 81, 100 (1996); Cooter & Gell v. Hartmarx Com., 496 U.S. 384, 405 (1990). This rule also ensures that agencies are accountable for their decisions: If an agency makes a decision on policy grounds, it must say so, not act as if courts have tied its hands. The court therefore considers whether Defendants' decision to rescind the DACA program relied on
25

Case 1:17-cv-05228-NGG-JO Document 209 Filed 02/13/18 Page 26 of 55 PageID #: 7321
an erroneous view of the law. This review is de novo. 5 U.S.C. § 706; J. Andrew Lange, Inc. v. FAA, 208 F.3d 389, 391 (2d Cir. 2000).9
Fairly read, the Sessions Letter and DACA Rescission Memo indicate only that Defendants decided to end the DACA program because they believed that it was illegal. (While Defendants now argue that the decision was based on "litigation risk," the record does not supp01t this contention, as the court explains below.) The DACA Rescission Memo offers no independent legal reasoning as to why Defendants believed the DACA program to be unlawful, so the court turns to the Sessions Letter. In that letter, the Attorney General offered two discernible bases for his opinion that the DACA program violated the law and should end: first, that it was unconstitutional, and second, that it "has the same legal and constitutional defects that the courts recognized as to DAPA." (Sessions Ltr.) Neither conclusion is sustainable.
9daTMlUcDbBdareoheeWgw.eafoSneateubfre,s.nterh"eebrieni4idosmiistnltdtm1hvetectifa5,eehnnoepin,y2rnae,rtl,t34tedswCdgoD82mtotohtahi4hehterFoeeh-nfeaeniv2d.eotrr3ttrn5nhetrtdoicohdednewno(tae6at1,ntIesan2ch9DNtUorrh2ter9prsnAAoa,x.a9'rS.rut6ne)Cvsg.()gt2tAB,ite,aAhe7hCdate.bwie,nncho(puwiIs5aoernrtanutivotaagichtiosnrghcbl.eeosfCtreonveoniat-nium.crhmarpewtdy.Nenpiret'2tdhweslahlhfe0e-etteeeaiamc.gt0rnsrhtoleaR1iteeenmtoelu)enghirrc.nntsatempyetsi.clhFrn.ioSeoeoDatginnyetnUtffeassttatpwfothtnshml.iirileofitehooyCtulnteingA,ehDtcodisrmoiePhouaAtSLfnnADmaaaCtaackelr,aAmlietAicstl,ttne,tCehooetagsprhenInsAtnriuvtsnaatrocit.trtogptie.gevltM,rdoreurioinee4teadttehgtsoe6wmeiaetrdst7worsdameDicmaUisadnCthiAb"het.enaotSisfoonuCatreum.luutgtrerAbiint8tee.tods,l3wndsnetnRt7a5cadowhoy,3edneet,3tisiotd8ontticoeseh4vhUginesff2eseeoela.tsr-nySrrrd4ihtIeomuo.mha3Nontln~2eaencSi(w1ln"Me1Dtwo8i.aov9usAer,.hr8tnt2rSmeheA4Cacd2erten)ooeihge6A,ntnreeu-cDgSCtxr2tiparhrhteo7mhtnrreehefoel·eneyll(aag-Avli2tnAytnrtrO0dDPahpoggb0ameArfneuedn1off."isde)tegsershf.fehrnrnBoeoefahodtrre,reimaueacetrc5vlnneleaed2Iewcntnudos6echnacsf.teas.eoo.vvt e. DjSteCDatdbuohronaeesorAeRmycftensrieadCeefeseen-istvxAbscdiaacit-apyrcaeiu'cngts,lanwtaiaduidoatCnnoesmmencDadn'am-etenodrAosulneicnelurcnaCtsecgypsdctlicAiplsibeobooanior,utentomdhrifrtL-not-ehodimedansrertedw-aoeetnIwochnhsftearwiarthindnsaWori(igitdsenatdnohsrrgcet(aro,ghJscorrn(ufaeeyiuagahinssrrniD,aia.plg~ogvirTeAu1nnb,eaca6igibCrnttkto,ogragtteAf2aoousfrr0teeiCeyhpicn1drtc-aaoresg8oaorotdn,ernmgin"sen8dir[Bivmnsaaid:-]et0tclnmeeneeora0rasrns".gpAeadohadrsl(SofdiMttJeacmhwimeanrniae)noudgi,at,t.tu,hsistheanste1ei.tDrgfdg2btsgApt.l,etAt,uhyash2tmmJe:nCte0c/ooid/e1hAirwsmDnan8ahdriwtArew)mdesBi,ytwcCahaaoalisGal.sbstAfl"tcilsapAeto)ekiowp.nsnm"mP:refw/oDrAipa/rasegtahlrneaayeirl§yfk,nd'abseaeUdm7iclnnncoieo0ndn)aggeu6e;dadrd.xr(oenZcee2tebosrtsfpa)srslum(etccsothAbtnhahigh/esjnduao).eee.crdenSumcyonoidlet(ndmstesDPftgeosrdrer/elsiebiunSvojftcvultasfeneeoyio.dnsss,egridtsOwWhc/coLiiweoianpeaddhmvnhgptleetyesy-'eerffns'-erensEenee,vnraotsnJnteitdtsdhujejnio1opiwastotsih0tiitrnnci,naee-fRrisli1siienlnstcsey1tg-geasig.o)dth-einoon,untsld
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i. The Attorney General Erred in Concluding that DACA Is Unconstitutional
As noted above, the Attorney General concluded that DACA was unconstitutional because it "was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result" and "an open-ended circumvention of inunigration laws." (Sessions Ltr.) This conclusory statement does not support the proposition that DACA is unconstitutional.
DACA is not unconstitutional simply because it was implemented by unilateral, executive action without express congressional authorization. The Executive Branch has wide discretion not to initiate or pursue specific enforcement actions. Chaney, 470 U.S. at 831-32. Inunigration officials have particularly "broad discretion" in deciding whom to deport, deriving both from the considerations specific to the Executive Branch in the foreign-policy arena, Arizona, 567 U.S. at 396, and from the fact that far more removable aliens reside in this country than DHS has resources to deport, OLC Op. at 1; see also Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458,510-19 (2009). Every modem presidential administration has relied on extra-statutory discretionary-relief programs to shield certain removable aliens from deportation. Far from cabining this authority, Congress has amended the INA in ways that expressly acknowledge the Executive Branch's power to decline to initiate removal proceedings against certain removable aliens. It thus cannot be the case that,
by recognizing that certain removable aliens represented lower enforcement priorities than others, the DACA program violates the Constitution.
Nor is DACA unconstitutional because it identified a certain category of removable aliens-individuals who were brought to the United States as children, lacked meaningful
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criminal histories, and had met educational or military-service requirements-as eligible for favorable treatment. The comt is aware of no principled reason why the Executive Branch may grant deferred action to particular immigrants but may not create a program by which individual immigrants who meet certain prescribed criteria are eligible to request deferred action. It is surely within DHS's discretion to determine that certain categories of removable alien-felons and gang members, for example--are better uses of the agency's limited enforcement resources than law-abiding individuals who entered the United States as children. Indeed, unless deferredaction decisions are to be entirely random, they necessarily must be based at least in part on "categorical" or "class-based" distinctions. See Arpaio v. Obama, 27 F. Supp. 3d 185, 210 (D.D.C. 2014) (DACA "helps to ensure that the exercise of deferred action is not arbitrary and
capricious, as might be the case if the executive branch offered no guidance to enforcement officials. It would make little sense for a Comt to strike down as arbitrary and capricious guidelines that help ensure that the Nation's immigration enforcement is not arbitrary but rather reflective of congressionally-directed priorities."). The coutt cannot see how the use of such distinctions to define eligibility for a deferred-action program transforms such a program from discretionaty agency action into substantive lawmaking and (somehow) an encroachment on the
separation of powers. Lastly, DACA is not unconstitutional because, as the Attorney General put it, that
program was implemented "after Congress' repeated rejection of proposed legislation that would have accomplished a similar result." (Sessions Ltr.) The "proposed legislation" to which the Attorney General referred would not have "accomplished a similar result" to DACA. The DREAM Act, in its many variations, would have offered its beneficiaries a formal immigration status and a pathway to lawful pe1manent residency. See, e.g., Development, Relief, and
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Education for Alien Minors Act of2011, S. 952 (112th Cong.); Regents, 2018 WL 339144, at 20 n.l5 (collecting proposed legislation). DACA, on the other hand, offers only forbearance from deportation, along with work authorization, and does not provide an immigration status or a pathway to citizenship. (2012 DACA Memo at 4.)
Even if the DREAM Act had offered benefits similar to those conveyed by DACA, it does not follow that Congress's failure to enact a DREAM Act precluded the Executive Branch from enacting the DACA program. The court does not see how executive action, taken either "pursuant to an express or implied authorization of Congress" or "in the absence of either a congressional grant or denial of authority," becomes unconstitutional simply because Congress has considered and failed to enact legislation that would accomplish similar ends. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring). Fruitless congressional consideration of legislation is not itself law, see U.S. Const. art. I,§ 7, cl. 2, and is an unconvincing basis for ascertaining the "implied will of Congress" to oust the President from acting in the space contemplated by the proposed but un-enacted legislation, see Youngstown Sheet & Tube, 343 U.S. at 637 (Jackson, J., concurring). It strikes the court as improbable that, if the President has some authority, any Member of Congress can divest the President of that authority by introducing unsuccessful legislation on the same subject.
To the extent the decision to end the DACA program was based on the Attorney General's determination that the program is unconstitutional, that detennination was legally erroneous, and the decision was therefore arbitrary and capricious. The court does not address whether the DACA program might be unconstitutional on grounds other than those identified by the Attorney General, as any such grounds are not fairly before the court.
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ii.

The Attomey "Same Legal

General Erred in Concluding that DACA Has and Constitutional Defects that the Courts

the

Recognized as to DAPA"

Nor can the Attomey General's determination that DACA is unlawful rest on the ground

that "the DACA policy has the same legal and constitutional defects that the courts recognized as

to DAPA." (Sessions Ltr.) That rationale is arbitrary and capricious not only because it is premised on an obvious factual mistake that courts had recognized "constitutional defects" in DAPA, as the court explains in the next subsection, but also because it is legally erroneous. The Southern District of Texas enjoined the implementation of the DAPAprogram on the grounds that DAPA was not promulgated through notice-and-comment rulemaking, and the Fifth Circuit affirmed, adding the additional ground for affirmance that DAPA was substantively arbitrary and

capricious because it conflicted with the INA. The court is unpersuaded that either ground

applies to DACA.
(I) DACA Was Not a Legislative Rule.
DACA does not appear to have been a "legislative" rule that was subject to notice-andcomment rulemaking. The APA generally requires agencies to make "rules" through notice-andcomment procedures, but provides an exception for "interpretative mles, general statements of policy, or rules of agency organization, procedure, or practice." 5 U.S.C. § 553. The line between legislative rules (which are subject to notice and comment) and non-legislative rules (which are not) is not always clear. See Chrysler Corp. v. Brown, 441 U.S. 281,301-03 (1979); Noel v. Chapman, 508 F.2d 1013, 1029-30 (2d Cir. 1975) (characterizing this distinction as "enshrouded in considerable smog"). In general, however, "legislative rules are those that
'create new law, rights, or duties, in what amounts to a legislative act.'" Sweet v. Sheahan, 235 F.3d 80, 91 (2d Cir. 2000) (quoting White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993)). A rule is

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legislative if it creates a "binding norm." Bellamo Int'l Ltd. v. FDA, 678 F. Supp. 410, 412 (E.D.N.Y. 1988) (quoting Am. Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980)). General statements of policy, on the other hand, do not "change 'existing rights and obligations'" of those regulated, but instead state the agency's "general policy" or "are rules directed primarily at the staff of an agency describing how it will conduct agency discretionary functions." Noel, 508 F.2d at 1030 (quoting Lewis-Mota v. Sec'y of Labor, 469 F.2d 478, 482 (2d Cir. 1972)) (internal quotation marks and additional citation omitted); see also Chrysler, 441 U.S. at 302 n.31 ("General statements of policy are statements issued by an agency to advise the public prospectively ofthe manner in which the agency proposes to exercise a discretionary power." (internal quotation marks and citation omitted)).
On its face, the 2012 DACA Memo is plainly a "general statement of policy," not a substantive rule. That memo described how, as a matter of agency policy, DHS would exercise its prosecutorial discretion with respect to a discrete class of individuals without lawful immigration status, and directed DHS staff to implement procedures to facilitate that exercise of discretion. Most importantly, the memo stated that it created no substantive right, that all DACA applications would be adjudicated on an individualized basis, and that the agency retained discretion to deny or revoke deferred action or work authorization. Based on the text of the 2012 DACA Memo, the court cannot say that the creation of the DACA program either "imposed any rights and obligations" on DHS or the public, or did not "genuinely [leave] the agency and its decisionmakers free to exercise discretion." Clarian Health W., LLC v. Hargan, 878 F.3d 346,
357 (D.C. Cir. 2017) (internal quotation marks and citation omitted). To determine whether a rule is properly classed as "legislative" or as a "general statement
of policy," some courts have also considered whether the agency has characterized or treated the
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rule as binding. Id. In determining that the DAPA program constituted a legislative rule, the Southem District of Texas focused on the purportedly binding effect that DAPA would have on the agency. Texas, 86 F. Supp. 3d at 668-72. Judge Hanen reached that conclusion by determining that DACA had been implemented in such a way as to deprive agency employees of true discretion to evaluate DACA applications on a case-by-case basis, including that (l) the "operating procedures" for implementing DACA were quite long; (2) DACA applications were adjudicated by service-center staff, not field-office employees, using a check-the-box form; (3) certain DACA denials were subject to review by a supervisor; (4) "there is no option for granting
DAPA to an individual who does not meet each criterion"; and (5) nearly all DACA applications were granted, and those that were denied were uniformly denied for mechanical reasons or fraud.
Id. at 669 & nn.98-l01. The comt respectfully finds the Southem District of Texas's analysis unpersuasive. First,
that court appears to have conflated the discretion of the agency with that of individual users
employees. (See Br. for the United States at 68-71, Texas v. United States, 136 S. Ct. 2271 (2016) (No. 15-674).) The 2012 DACA Memo indicated how DHS would exercise its discretion by treating certain individuals as lower priorities for removal. Because the 2012 DACA Memo created no substantive rights, it in no way constrained the agency's discretion in the enforcement
of immigration laws, even if it might have affected how rank-and-file users employees
reviewed specific requests for deferred action. (See id.) Second, even accepting that the relevant focus of this inquiry is the discretion of rank-and-file employees, the comt views the first four factors on which the Southem District of Texas relied as insufficient to support an inference that DHS did not exercise discretion in adjudicating DACA applications. As for the fifth factor-that DHS supposedly granted too many DACA applications-the court finds persuasive the
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observation by the dissenting judge in the Fifth Circuit that the district court appears to have erroneously conflated rejections ofDACA applications, which were made on intake for mechanical reasons, and denials, which were made "when a USCIS adjudicator, on a case-bycase basis, determines that the requestor has not demonstrated that they satisfy the guidelines for DACA or when an adjudicator determines that deferred action should be denied even though the threshold guidelines are met." Texas, 809 F.3d at 210 (King, J., dissenting). To the contrary, as of December 2014, DHS had denied nearly 40,000 DACA applications out of the more than 700,000 applications accepted for processing at USCIS service centers, and rejected more than 40,000 applications for administrative reasons. Id. at 210 n.44. This rejection rate hardly
"suggests an agency on autopilot" and is "unsurprising given the self-selecting nature of the program." Id. at 210 & n.44; see also Arpaio, 27 F. Supp. 3d at 209 n.l3 (noting that similar statistics "reflect that ... case-by-case review is in operation"). To the extent Defendants rely on Texas for the proposition that the DACA program (which was not challenged in that litigation) was illegal because it was not made through notice-and-comment mlemaking, such reliance is
arbitrary and capricious. (II) DACA Does Not Conflict with the INA
Nor may Defendants rely on Texas for the proposition that the DACA program conflicts with the INA. As noted above, the Fifth Circuit held that the DAPA program was not only procedurally invalid, but also substantively arbitrary and capricious because it conflicted with the INA. Texas, 809 F.3d at 178-86. That is because, in the view ofthe Fifth Circuit, the INA prescribes the exclusive means by which aliens may obtain "lawful immigration classification from their children's immigration status," and because Congress could not have intended to delegate to DHS the authority to designate approximately four million undocumented
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immigrants as lawfully present and able to work in this country. See id. To the extent Defendants relied, without additional explanation, on this decision as grounds for ending the DACA program, they acted arbitrarily and capriciously, for two reasons.
First, not all the grounds on which the Fifth Circuit decided that DAPA was substantively arbitrary and capricious apply to the DACA program. For example, the Fifth Circuit inferred that by creating procedures by which alien parents of U.S. citizens may obtain lawful status, Congress implicitly prohibited the Executive Branch from granting deferred action and work authorization to such individuals based on more permissive criteria. Even if the court were to accept that dubious logic, it would not apply to DACA, because there is no analogous procedure by which aliens brought to the United States as children may seek to obtain lawful status on that basis. (BV Pls. Mot. at 25; Br. of Amicus Curiae Legal Services Organizations (Dkt. 193) at 6.) The Fifth Circuit also relied extensively on the magnitude of the DAPA program, reasoning that
Congress could not have intended the Executive Branch to decide whether more than four million undocumented immigrants could obtain defell'ed action and work authorization. Texas, 809 F.3d at 179, 181-82, 184 & n.197. Again, even accepting that proposition, it is not clear why it would apply to the DACA program, which is open to far fewer individuals than DAPA would have been, and which is roughly the same scale as the Family Fairness program enacted by the Reagan and George H.W. Bush Administrations in the 1980s.
Second, to the extent that the Fifth Circuit's rationale applies to the DACA program, the court finds it unpersuasive. It does not follow that by prescribing procedures by which some aliens may obtain lawful status, Congress implicitly barred the Executive Branch from granting those or other aliens deferred action and work authorization, a relatively meager and unstable set of benefits (if, indeed, they can even be described as such). Nor is the court convinced that by
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expressly recognizing that certain discrete populations of aliens are eligible for defened action, Congress implicitly precluded the Executive Branch from according defen·ed action to other aliens; to the contrary, the court views these enactments as ratifying the Executive Branch's longstanding historical practice, rooted in the INA, of forbearing from pursuing deportation proceedings against particular aliens and categories of alien. The court respectfully finds the Fifth Circuit's attempts to distinguish DAPA from prior discretionary-relief programs unpersuasive, as this coutt does not see what in the INA permits immigration officials to accord discretionary relief"on a country-specific basis," as a "bridge[] from one legal status to another," or as an adjunct to "a statutory legalization scheme," id. at 184, but not to generally law-abiding
parents of U.S. citizens or lawful petmanent residents--or, for that matter, individuals who were
brought to the United States as children. For these reasons, and for the reasons stated by the Office of Legal Counsel, the dissent
in Texas, and by the Office of the Solicitor General in its brief to the U.S. Supreme Court in Texas, the court concludes that DACA is lawful and not arbitrary, capricious, or contrary to the INA. See Texas, 809 F.3d at 214-18 (King, J., dissenting); OLC Op.; Br. for the United States at 61-65, Texas v. United States, 136 S. Ct. 2271 (2016) (No. 15-674). Defendants acted arbitrarily and capriciously by ending the DACA program based on the enoneous legal conclusion that DACA is either unconstitutional or "has the same legal and constitutional defects that the courts

recognized as to DAPA." b.

THhaeveDDeceitseiormn iRneeldietshaotnDaAFCaActIusalUlyncEornrsotniteuotuiosnParlemise that Courts

This conclusion was also arbitrary and capricious because it is based on an obvious factual mistake. In concluding that the Southem District of Texas and Fifth Circuit would enjoin the continued operation of the DACA program, Defendants appear to have relied on the premise

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that those comts have recognized "constitutional defects ... as to DAPA." (Sessions Ltr.; DACA Rescission Memo at 3.) This premise is flatly incorrect. The Southem District of Texas enjoined the implementation of DAPA, and the Fifth Circuit affirmed that injunction, on the grounds that DAPA violated the APA. 809 F.3d at 170-86; 86 F. Supp. 3d at 665-72. Both courts expressly declined to reach the plaintiffs' constitutional claim that DAPA violated the Take Care Clause of the U.S. Constitution, see U.S. Const. art. II,§ 3, or the separation of powers. 809 F.3d at 154; 86 F. Supp. 3d at 677. Defendants do not attempt to defend this factual premise as correct. (Cf. Defs. Opp'n at 26-27.)
This error alone is grounds for setting aside Defendants' decision. "[A]n agency decision is arbitrary and must be set aside when it rests on a cmcial factual premise shown by the agency's records to be indisputably incorrect." Mizerak v. Adams, 682 F.2d 374, 376 (2d Cir. 1982); see also State Farm, 463 U.S. at 43 (agency acts arbitrarily and capriciously by "offer[ing] an explanation for its decision that runs counter to the evidence before the agency"); City of Kansas City, Mo. v. Dep't ofHous. & Urban Dev., 923 F.2d 188, 194 (D.C. Cir. 1991) ("Agency action based on a factual premise that is flatly contradicted by the agency's own record does not constitute reasoned administrative decisionmaking, and cannot survive review under the arbitrary and capricious standard."). Because neither the Southem District of Texas nor the Fifth Circuit "recognized" any "constitutional defects" in the DAPA policy, Defendants' reliance on this erroneous factual premise was arbitrary and capricious.
Nor was this error harmless. Although judicial review under the APA takes "due account ... of the rule of prejudicial error," 5 U.S. C. § 706, "the standard for demonstrating lack of prejudicial error is strict. 'Agency mistakes constitute harmless error [under APA § 706] only where they clearly had no bearing on the procedure used or the substance of decision reached."'
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N.Y. Pub. Interest Research Gm. v. Whitman, 321 F.3d 316,334 n.l3 (2d Cir. 2003) (alteration in original) (quoting Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434,444 (5th Cir. 2001)). That cannot be said here, as the Attorney General's opinion that DACA was unlawful appears to have been based in significant part on his judgment that the program was unconstitutional and on the Texas courts' decision to enjoin implementation of DAPA. The current record furnishes no basis for this court to conclude that the Attorney General would have reached the same conclusion had he correctly understood the holdings of the Texas courts.
c. The Decision's Rationale Is Internally Contradictory Finally, Defendants' decision to rescind the DACA program was arbitrary and capricious because it appears to be internally inconsistent. See, e.g., Nat'l Res. Def. Council v. U.S. Nuclear Regulatory Conun'n,- F.3d - , 2018 WL 472547, at *9 (D.C. Cir. 2018) ("Of course, it would be arbitrary and capricious for the agency's decision making to be 'internally inconsistent."' (citation omitted)); Gen. Chern. Corp. v. United States, 817 F.2d 844, 846 (D.C. Cir. 1978) (per curiam) (vacating decision based on "internally inconsistent and inadequately explained" analysis). Defendants clearly ended the DACA program at least partly because the Attomey General viewed the program as unconstitutional. 10 (Sessions Ltr.; DACA Rescission
PA1TctTSd0llhrleewdeaeeeeggIemcmasitiaAtairsJtiildp-elsnohitdaetetrisoynote.nsrhicwotcrtvHatonit·BTensameticidhslrtyaoialnecoeM(ndcmGtSnakP-eiroadeepfmrwplenneteehtnatafeswv.iaansisreodnta5ie,subledl,teT-enihnah2tlnereeaitla0uctxldbwsy-1Aemplnt7,esorothoptet,Futaarfos'o7omlstttrsdeh:rne"3dDsdeee"Cd/o8i,.rAyg)Doe[".PnhCDnGavAMingiIPAseesCfr]o)fnuiet,teADlienhs"innhrscceettpdatyoyehctnlarpnnie'o(csnossstSwiaid:ttgvoo/esine/tirn'pnht'cueatwctaiw,tD.tmosisoiIoi7stneot6n-,rwfteaneieia2rmreifvn.le0ltscCoiltoe1soitrAnxoohi7rmetteenno,lvhlAsr/gsit1scrcNeshrde:iieit2snaaomotose6tdlrtsfdimhltoPntehtodihhgissfMenisee:daaatiP)lruTsADlin,asdrtzhoehthudAteierstotemoutCiD!rtPnpdm"iiiAntm:rAepy/epni/(oCsepsf/tDbtlolsirArisydytorocaiaeemgitnatt(ieinhucragsosptaestolnn'"ldm/somypE9hn(IJo0xeD"nie.l5cetefciTehsh2ccmtofeihryui2snmurlpe.t8.dvgcmihp6DOvehoate6speomhAspt.7,oeeiBp/z3C@dn2O'rOe3ncA0aadr6nebne1ra4tpacrSaC7th9mirhle/3evo9do0.p3a"n2oga9nt)t0nrel/ei0sa(im0aneSs-m7l.dundb)e/uetsetfownrsmosIrutstietrmoum5toirh,snpeppe,s2pns,0oa-oLs1rttt7re.,d) by the text of the President's tweet.
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Memo at 3.)11 Rather than terminating the program forthwith, however, Acting Secretary Duke directed her subordinates to begin a phased "wind-down of the program," under which DHS would continue to renew DACA applications that were set to expire in the next six months and would honor existing DACA benefits until they expired. The means by which Defendants ended the DACA program thus appear to conflict with their stated rationale for doing so. If the DACA program was, in fact, unconstitutional, the court does not understand (nor have Defendants explained) why Defendants would have the authority to continue to violate the Constitution,
albeit at a reduced scale and only for a limited time. It is true but inunaterial that the DACA Rescission memo provided that DRS would
adjudicate all remaining DACA applications and renewal requests "on an individual, case-bycase basis." (DACA Rescission Memo at 4.) The 2012 DACA Memo also stated that all DACA applications and renewal requests would be considered on an individual, case-by-case basis (2012 DACA Memo at 1-3), but, in Defendants' view, that was insufficient to render the program lawful. More importantly, ifDHS could render the DACA program constitutional by adjudicating the remaining DACA applications and renewal requests on an "individual, case-bycase" basis, then there was nothing inherently unconstitutional about the DACA program~nly how rank-and-file USCIS employees were implementing that program-and a key reason for
ending that program would disappear. Defendants attempt to sidestep this problem by arguing that there was nothing inherently
contradictory about Acting Secretary Duke's decision to allow the DACA program "to gradually sunset" despite having "concem[s] about [the program]'s legality." (Defs. Opp'n at 30.) The

ll Defendants' justification for

atrhgeu[mdeecnitssiothnatto"PrelsacinintidfftsheidDenAtiCfyAnporthoignrgamco]n"t(r£ad[ iDcteofrsy.

about the Acting Secretary's stated Opp'n at 29-30) are thus once again

belied

by the record.

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record makes clear, however, that Defendants ended the program because they believed it to be unconstitutional and unlawful, not because they had "concern[s]" about its legality. (Sessions Ltr.; DACA Rescission Memo at 3-4.) Defendants' post hoc rationalization is thus unavailing. At the very least, Defendants' failure to acknowledge and explain the apparent conflict between their determination that the DACA program was unconstitutional and their plan to continue adjudicating a subset ofDACA renewal requests renders their decision arbitrary and capricious.
2. Defendants' Alternative Grounds for Upholding the DACA Rescission Are Unpersuasive
Defendants offer two reasons why the court should uphold the decision to end the DACA program. First, they argue, that decision was reasonable in light of the risk that the plaintiffs in the Texas litigation would amend their complaint to challenge the DACA program and that the Southern District of Texas would strike down the DACA program. (E.g., Defs. Opp'n at 11.) Second, they argue that the court should construe the Attorney General's legal judgment that the DACA program was unlawful as an "independent policy judgment ... that immigration decisions of this magnitude should be left to Congress." (Defs. Opp'n at 25.) Neither argument
is persuasive. a. The DACA Rescission Cannot Be Sustained on the Basis of Defendants' "Litigation Risk" Argument
Defendants frame the decision to end the DACA program as motivated primarily by "litigation risk." (Id. at 1,10-13, 15-24.) In their view, Acting Secretary Duke considered the Government's losses in the Texas v. United States litigation and the threat by some ofthe plaintiffs in that litigation to challenge the DACA program and ultimately "concluded that maintaining the DACA [program] would, in all likelihood, result in another nationwide injunction plunging the policy, and its nearly 800,000 recipients, into immediate uncertainty."
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(Id. at 11.) That decision, they argue, was reasonable, not arbitrary or capricious, "particularly in view of the near-certain litigation loss in the pending Texas lawsuit." Q.d.)
The record does not suppmt Defendants' contention that they based their decision on a reasonable assessment of litigation risk. As the court has previously noted, the record, fairly read, indicates that Defendants ended the DACA program because they believed it to be illegal. The only basis for Defendants' "litigation risk" argument is the Attorney General's statement that, because DACA shared the flaws of the DAPA program, "it is likely that potentially imminent litigation would yield similar results with respect to DACA." (Sessions Ltr.) This is too thin a reed to bear the weight of Defendants' "litigation risk" argument. While the court must uphold an agency decision "ofless than ideal clarity ... if the agency's path may
reasonably be discerned," Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974), the court cannot discern a reasoned assessment of "litigation risk" in this conclusory statement. See also Chenery II, 332 U.S. at 196-97 (stating that the grounds on which an agency reaches its decision "must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive."). The Administrative Record does not indicate, for example, that the Attorney
General made any reasoned assessment of the likelihood that DACA would be struck down in light of its similarities to, or differences from DAPA; that he considered any potential defenses to the "potentially imminent litigation"; that he acknowledged contrary rulings by other courts; or that he assessed whether Department of Justice resources would be better spent elsewhere. The comt thus cannot conclude that the Attorney General actually considered "litigation risk" in any
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meaningful sense. Absent Defendants' post hoc explanations, the court would not have guessed that Defendants made their decision for this reason.
The court views this "litigation risk" rationale as a mere post hoc rationalization, which is insufficient to withstand arbitrary-and-capricious review. State Fmm, 463 U.S. at 50; Burlington Truck Lines, 371 U.S. at 168-69. Indeed, it is telling that, to substantiate their argument that the DACA rescission was motivated by concem for DACA recipients and a desire to avoid a disorderly shut-down of the progrmn, Defendants resort to a press release, issued by Acting Secretary Duke, that fleshes out her reasons for ending the DACA program. (Defs. Opp'n at 12 (quoting Press Release, DRS, Statement from Acting Secretary Duke on the Rescission of DACA (Sept. 5, 2017), https://www,dhs.gov/news/2017/09/05/statement-acting-secretary-dukerescission-deferred-action-childhood-arrivals-daca).) That press release is not in the record,
however, so the court may not consider it. See Overton Park, 401 U.S. at 419-20. While Defendants assert that this rationale is reasonably discernible because Plaintiffs addressed it in their briefs (Defs. Opp'n at 12), Plaintiffs cannot be faulted for responding to an argument that Defendants have made throughout this litigation. 12
Even if the record indicated that Defendants made their decision based on "litigation risk," they acted arbitrarily and capriciously in doing so. The Attomey General's conclusory statement that it was "likely that potentially imminent litigation would yield similar results with respect to DACA" falls well short of the APA's "requirement that an agency provide reasoned explanation for its action." Fox Television Stations, 556 U.S. at 516. For example, the record
1c"W2oanLlJosun3idde3ge9iers1wA4d4hilss,eputaophtse*firto2iduv3ene.fdeoAnifnsdthisRneuegcnghteeh,wne"t[sp'tl]rtihothiegagrtana"temi[wonn]insorpwicisnohkue'brrryteawgitniooovnuthealderlena(.m"odrmeInwditn.oicusotlurdantnsiovetle)irsbeeacowcrlodarsdtshiidcthptheoeslitAtihgtotaoctrinroaentyiroiGnskael.ni"zearRatileoogner,n"[tDws,Rh2Si0c]h18
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before the court offers no indication that Defendants considered why the Southern District of Texas would strike down the DACA program (which was not initially challenged in Texas and which lacked certain attributes ofthe DAPA program that were critical to the Fifth Circuit's decision that that program was contrary to the INA). Nor does the record indicate that Defendants considered~independent of their opinion that DACA was illegal~why litigating the rescission of DACA was preferable to litigating the decision to maintain the program. See Organized Viii. ofKake v. U.S. Dep't of Agric., 795 F.3d 956,970 (9th Cir. 2015) (en bane)
(litigation-risk rationale was arbitrary and capricious where agency's decision "predictably led to ... lawsuit" and "[a]t most ... deliberately traded one lawsuit for another"). To the extent that Defendants now argue that their decision was based on a desire to avoid the harms that could result to DACA beneficiaries from a disorderly end to the program, the record offers absolutely no indication that Defendants considered these impacts. While Defendants ask the court to infer a persuasive rationale from their conclusory statements and from the Southern District of Texas's and Fifth Circuit's opinions in Texas, it is not the court's job to "supply a reasoned basis for the agency's action that the agency itselfhas not given." State Farm, 463 U.S. at 43. Even
accepting for the sake of argument that the record provides some suppmt for Defendants' "litigation risk" rationale, that rationale is so inscrutable and unexplained that reliance upon it
was arbitrary and capricious. Even accepting for the sake of argument that "litigation risk" furnished a discernible,
reasoned basis for Defendants' decision to end the DACA program, Defendants nevertheless acted arbitrarily and capriciously by ending that program without taking any account of reliance interests that program has engendered. To withstand review under the APA's arbitrary-andcapricious standard, an agency that is changing its policy need not explain why the reasons for
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the new policy are better than the reasons for the old policy. Fox Television Stations, 556 U.S. at 514-15. The agency must nevertheless engage in reasoned decisionmaking, which, among other things, means that the agency must consider "serious reliance interests" engendered by the previous policy. Id. at 515; see also Encino Motorcars, LLC v. Navano, 136 S. Ct. 2117, 2125-
27 (2016). Plaintiffs identify a number of reliance interests engendered by the DACA program,
including that, in reliance on the continued existence of the program, DACA recipients have "raised families, invested in their education, purchased homes and cars, and started careers" (BV Pis. Mot. at 16; State Pls. Mot. at 9-10); employers have hired, trained, and invested time in their DACA-recipient employees (BV Pis. Mot. at 17; State Pis. Mot. at 10); educational institutions have emolled DACA recipients who, if they lose their DACA benefits, may be forced to leave the United States or may see little need to continue pursuing educational opportunities (BV Pis. Mot. at 17; State Pis. Mot. at 10); and states have expended resources modifying their motorvehicle and occupational licensing regimes to accommodate DACA recipients (State Pis. Mot. at 10 & n.18). The record does not indicate that Defendants acknowledged, let alone considered,
these or any other reliance interests engendered by the DACA program. That alone is sufficient to render their supposedly discretionary decision to end the DACA program arbitrary and
capricious. Defendants' arguments to the contrary are unpersuasive. First, Defendants appear to
argue that they did not need to discuss reliance interests because "controlling legal precedent" had changed. (Defs. Opp'n at 15.) That argument confuses the requirement that the agency show "that there are good reasons for the new policy" with the requirement that it not ignore "serious reliance interests that must be taken into account" when amending or rescinding an
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existing policy. Fox Television Stations, 556 U.S. at 515. In any event, it is hard to reconcile this argument-in effect, that Defendants were compelled to terminate the DACA programwith their insistence elsewhere that the decision to end the DACA program was discretionary and the product of reasoned deliberation.
Next, Defendants appear to contend that they did not need to consider reliance interests engendered by the DACA policy because those interests were not "longstanding" or serious, to the extent they existed. (Defs. Opp'n at 16-17.) It is true that DACA recipients received deferred action and work authorization for only two years at a time, that DHS retained discretion to revoke those benefits at any time, and that the 2012 DACA Memo "confer[red] no substantive right." (2012 DACA Memo at 3; Defs. Opp'n at 17.) As a practical matter, however, it is obvious that hundreds of thousands ofDACA recipients and those close to them planned their lives around the program. It is unrealistic to suggest that these reliance interests were not "serious" or "substantial" simply because DHS retained the ability to terminate DACA recipients' deferred action at its discretion.
Moreover, the cou1i does not see why the contingent, discretionary nature ofDACA benefits means that, as Defendants argue, DACA recipients had no "legally cognizable reliance interests-and certainly not beyond the stated duration" in the continued existence of the DACA program. (Defs. Opp'n at 17.) In so contending, Defendants cross-reference their argument, made in their October 27 Motion to Dismiss, that DACA beneficiaries had no "'protected entitlement' for due process pmposes" because '"government officials may grant or deny [DACA benefits] in their discretion."' (Defs. Oct. 27,2017, Mot. to Dismiss (Dkt. 95) ("Defs. Oct. 27 MTD") at 35 (quoting Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)) (emphasis added).) Even accepting for the sake of argument that DACA recipients had no
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constitutionally protected liberty or property interests in the continued existence of the DACA program and the renewal of their particular DACA applications, it does not follow that they had no reliance interests therein, such that Defendants were free to end the DACA program without considering such interests. Encino Motorcars is instructive: A car dealer may have not have a Fifth Amendment entitlement to the Department of Labor's hewing to a particular interpretation of the Fair Labor Standards Act, but that does not mean that the Department is free to disregard reliance interests engendered by the longstanding interpretation ofthe Act when it alters its regulations. See 136 S. Ct. at 2124-26.
Finally, Defendants argue that Acting Secretary Duke effectively considered the relevant reliance interests by adopting a policy that resulted in an orderly wind-down, rather than an immediate shut-down of the DACA program. (Defs. Opp'n at 17-18.) This is sleight-of-hand and further post hoc rationalization. The record does not indicate that the Acting Secretary actually considered how the end of the DACA program would affect DACA recipients. That her chosen policy may, in practice, ameliorate the impact of the DACA rescission on DACA recipients, as compared to an immediate and disorderly shut-down of the program following a hypothetical injunction in the Texas litigation, does not mean that she actually considered this possibility. While the Acting Secretary stated that she "[r]ecogniz[ed] the complexities associated with winding down the program," the Sessions Letter makes clear that these
complexities referred to the burdens on DHS of winding down the DACA program. (Compare DACA Rescission Memo at 4, with Sessions Ltr. ("In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process." (emphasis added)).)
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Accordingly, even ifthe record were to support Defendants' "litigation risk" rationale, that rationale would be arbitrary and capricious. Finally, even if this rationale were not arbitrary and capricious, the court would nevertheless likely vacate Defendants' decision because it is tainted by the errors discussed in Section III.A.l above. "When an agency relies on multiple grounds for its decision, some of which are invalid, we may nonetheless sustain the decision as long as one is valid and 'the agency would clearly have acted on that ground even if the other were unavailable."' Mail Order Ass'n of Am. v. U.S. Postal Serv., 2 F.3d 408, 434 (D.C. Cir. 1993) (quoting Syracuse Peace Council v. FCC, 867 F.2d 654, 657 (D.C. Cir. 1989)). To the extent that Defendants' "litigation risk" rationale can be discemed from the Administrative Record and the parties' submissions in these cases, that rationale appears to be intertwined with Defendants' enoneous legal conclusion that the DACA program was unlawful. Because the
court cannot say that Defendants clearly would have made the same decision even had they correctly understood the law and the holdings of the Texas courts, that decision is nevertheless likely arbitrary and capricious. See also N.Y. Pub. Interest Research Gm., 321 F.3d at 334 n.l3.
b. The Court Cannot Construe This Decision as an "Independent Policy Judgment"
Defendants also contend that, even if the comt disagrees with the Attomey General's conclusion that DACA is unconstitutional, the comt may nevettheless uphold the decision to end the DACA program because the same facts that led the Attomey General to conclude that the DACA program is unconstitutional "equally support a policy judgment by the Acting Secretary that deferred action should be applied only on an individualized case-by-case basis rather than used as a tool to confer certain benefits that Congress had not otherwise acted to provide by law." (Defs. Opp'n at 25 (internal quotation marks and citation omitted).) The record, however, offers no support for the notion that Defendants based their decision on any "policy judgment
46

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that immigration decisions of this magnitude should be left to Congress." iliD Defendants'
argument therefore conflicts with fundamental principles ofjudicial review of agency actionnamely that the court reviews the agency's stated reasons for its decision and "may not supply a reasoned basis for the agency's action that the agency itself has not given." State Farm, 463 U.S. at 43; see also Chenery II, 332 U.S. at 196; Chenery I, 318 U.S. at 87.
Defendants' only authority for this novel argument, Syracuse Peace Council, 867 F.2d at 654, is inapposite. In that case, the D.C. Circuit held that when an agency bases its decision on both a judgment about constitutionality and policy reasons, the reviewing court may uphold the decision if the agency clearly would have reached the same decision for policy reasons alone, even if the agency stated that its constitutional and policy rationales were "intertwined." Id. at 655-57. Syracuse Peace Council does not stand for the proposition that, when an agency bases its decision on constitutional grounds, a reviewing court may, in the first instance, construe that decision as having been based on a "policy judgment" found nowhere in the administrative
record.
* * *
For the reasons stated above, the court concludes that Plaintiffs are substantially likely to prevail on the merits of their claim that the decision to rescind the DACA program was arbitrary,
capricious, and an abuse of discretion.
B. Irreparable Harm Plaintiffs have also demonstrated that they are likely to suffer ilTeparable harm if the court does not enjoin Defendants from fully implementing the DACA rescission. "To satisfy the ineparable harm requirement, Plaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve
47

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the harm." Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60,66 (2d Cir. 2007) (quoting Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)). Irreparable harm "cannot be remedied by an award of monetary damages." State of New York ex rel.
Schneiderman, 787 F.3d at 660. Plaintiffs have extensively documented the irreparable harms they will suffer if the
DACA program ends. Each day, approximately 122 DACA recipients who failed (or were unable) to renew their DACA status before October 5, 2017, lose their deferred action and work authorization. (BV Pls. Mot at 1-2, 35; State Pls. Mot. at 28.) Ifthe implementation of the DACA Rescission Memo is not enjoined, approximately 1,400 DACA recipients will lose deferred action each work day, beginning on March 5, 2018. (State Pls. Mot. at 28.) As a result, these individuals will face the possibility of deportation from the country. While this possibility of deportation is clearly extremely worrisome to DACA recipients, the court declines to grant a preliminary injunction on this basis. See Winter, 555 U.S. at 21-22; see also Carlsson v. U.S. Citizenship & Immigration Servs., No. 12-CV-7893 (CAS), 2012 WL 4758118, at *9 (C.D. Cal.
Oct. 3, 2012) (risk of deportation speculative, not imminent, when there were no pending removal proceedings against the plaintiffs). 13 Nor may the court grant a preliminary injunction on the grounds that DACA recipients may, for fear of deportation, suffer from anxiety or depression, lose the "abilit[y] to plan for the future and make commitments, whether familial, career-based, academic, or otherwise" (BV Pls. Mot. at 37-38), or be required to tum their U.S. citizen children over to the care of the State Plaintiffs' child welfare systems, or that public
p1hD3rteitoTpprsohi:rte/it/ziwcneowguthwDret.rnperoeoamtmleitoseicvrtsoha.alWctooSofmDen/c'sAtrteoBCtraeyAr/ya2r0NPe1criii8eopl/ris0eietInvn/t1sfr6oew/crdehIhnCost-ElhdyarIdseftaTanmtoaeeltdkrcsstoh-Fdmaaetm,ipleo,ivtrPtteeaondtliiioctfirncit-omhneoe(JDsta-.pnA.rSCieo1Aer6i,Ltp2yor0-ou31gi48sr0,aN6m88e:1l3es.0noAdne,MdD,)HD, SHCShwieofu: ld not
48

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safety will be hanned because former DACA recipients will be less likely to report crimes and other harms to the community (State Pis. Mot. at 28). Because deportation is, at this point, not sufficiently "likely" for purposes of establishing irreparable hatm, harms accruing from the fear of deportation are also too speculative to support the grant of a preliminary injunctioiL
Concomitant with the loss of deferred action, however, DACA recipients will also lose their work authorization. As a result, they will be legally unemployable in this country. Some DACA recipients will lose their employer-sponsored healthcare coverage, which will endanger DACA recipients and their families (BV Pis. Mot. at 36-37) and impose tremendous burdens on the State Plaintiffs' public health systems (State Pis. Mot. at 31-32). Other DACA recipients, due to the imminent loss of their employment, may lose their homes or need to drop out of school. (BV Pis. Mot. at 37.) Employers will suffer due to the inability to hire or retain erstwhile DACA recipients, affecting their operations on an ongoing basis and causing them to incur unrecoverable economic losses. (!d, at 38; State Pis. Mot. at 29-30.) Finally, the DACA rescission will result in "staggering" adverse economic impacts, including, by the State
Plaintiffs' best lights, $215 billion in lost GDP over the next decade, and $797 million in lost state and local tax revenue. (State Pis. Mot. at 33 & nn.77-78.) Thus, while it may be true that "[l]oss of employment does not in and of itself constitute irreparable injury," Savage v. Gorski, 850 F.2d 64, 67 (2d Cir. 1988), these cases present a "genuinely extraordinary situation" warranting injunctive relief, Sampson v. Murray, 415 U.S. 61,92 n.68 (1974).
While the above is sufficient to demonstrate irrepm·able harm, the court also notes the obvious fact that the decision to rescind DACA, if carried into effect, will have profound and irreversible economic and social implications. That decision "will profoundly disrupt the lives of hundreds of thousands of people." In reUnited States, 875 F.3d 1200, 1210 (9th Cir. 2017)
49

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(Watford, J., dissenting). It may force one out of every four hundred U.S. workers out ofthe lawful workforce. See Jie Zong et al., "A Profile of Current DACA Recipients by Education, Industry, and Occupation," Migration Policy Institute (Nov. 2017), https://www.migrationpolicy.org/researchlprofile-current-daca-recipients-education-industryand-occupation. Former DACA recipients will be separated from their families and communities. It is impossible to understand the full consequences of a decision of this magnitude. If the decision is allowed to go into effect prior to a full adjudication on the merits, there is no way the court can "unscramble the egg" and undo the damage caused by what, on the record before it, appears to have been a patently arbitrary and capricious decision.
Moreover, it is also impossible for the court to adjudicate this dispute on the merits before March 5, 2018, when these harms will begin to materialize in earnest. Defendants set an aggressive timetable for ending the DACA program and have pursued various dilatory tactics throughout this litigation. Notably, they have yet to produce a plausible administrative record in these cases, without which the court cannot render a merits decision. Overton Park, 401 U.S. at 420. For these reasons, it is clear that Plaintiffs will suffer substantial and imminent irreparable hatm ifthe court does not preliminarily enjoin the DACA rescission.
Defendants argue that Plaintiffs have not shown that irreparable harm is "imminent, or even likely, given the preliminaty injunction recently issued" in Regents. (Defs. Opp'n at 48.) Defendants are, however, vigorously contesting that injunction before both the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme CoUlt. If Judge Alsup or the Ninth Circuit were to lift the injunction in Regents, then Plaintiffs would no doubt suffer irreparable harm. Defendants cite no authority for the proposition that Plaintiffs cannot establish irreparable harm simply because another court has already enjoined the same challenged action.
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C. Balancing the Equities and the Public Interest Finally, the court must consider whether "the balance of equities tips in [Plaintiffs'] favor" and if"an injunction is in the public interest." Winter, 555 U.S. at 20. To make this
decision, the court "balance[sJthe competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested relief," as well as "the public consequences of employing the extraordinary remedy of injunction." Id. at 24 (internal quotation marks and citation omitted). "These factors merge when the Government is the opposing party." Nken, 556 U.S. at 435. The court concludes that these factors weigh firmly in Plaintiffs' favor.
The court need not restate at length the consequences of the DACA rescission for Plaintiffs, other DACA recipients, those close to them, and the public at large. Allowing the DACA rescission to take immediate effect would quickly cost many DACA recipients the opportunity to work legally in this country, and hence to support themselves and their families. Enjoining the implementation of the DACA Rescission Memo would also preserve the status quo, enabling a full resolution of this matter on the merits, rather than allowing severe social dislocations to unfold based on an agency decision that, as noted above, strongly appears to have been arbitrary and capricious. The public interest is not served by allowing Defendants to proceed with arbitrary and capricious action.
Against these considerations, the court weighs the effect on Defendants of initiating a wind-down of the DACA program on their predetermined timetable. The court does not step in this area lightly. Defendants have broad discretion to set immigration-enforcement priorities. Arizona, 567 U.S. at 394. Moreover, the DACA program was originally created by the Executive Branch, and the Trump Administration should be able to alter the policies and priorities set by its predecessor.
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There are, however, several factors that lead the court to conclude that the balance of the equities favors granting an injunction. Defendants do not appear to have rescinded the DACA program as an exercise of their discretion, or because of a reasoned policy judgment, but instead, at least in significant part, because they erroneously concluded that the program was unconstitutional and unlawful. Enjoining Defendants from rescinding the DACA program on erroneous legal grounds therefore does not intrude on their discretion or well-established authority to set immigration-enforcement policies. Moreover, although the Government generally has a substantial interest in the speedy deportation of removable aliens because their presence here "pennit[s] and prolong[s] a continuing violation of United States law," Nken, 556 U.S. at 436 (quoting AAADC, 525 U.S. at 490), the court finds that the Government's interest in ending the DACA program is not so compelling. For one thing, the President has stated his
suppmt for keeping DACA recipients in the country (albeit preferably pursuant to legislation rather than executive action). Donald J. Trnmp, @realdonaldtrump, Twitter.com (Sept. 14, 2017 3:28AM), https://twitter.com/realdonaldtrump/status/908276308265795585 ("Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!. .... "). The current DHS Secretmy has also stated that the erstwhile DACA recipients would not be a priority for immigration enforcement. Louis Nelson, DHS Chief: Deporting Dreamers Won't Be a Priority for ICE If Talks Fail, Politico (Jan. 16, 20 18), https://www.politico.com/stmy/20 18/01/16/dhs-dreamers-depmtation-not-priority340681. Even if deporting DACA recipients were a priority of the Administration, an injunction against the end of the DACA program would not impede this policy, as, under the 2012 DACA
52

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Memo, DHS retains discretion to revoke specific DACA recipients' deferred action and work authorization. 14
Accordingly, the court finds that the balance of the equities tip decidedly in Plaintiffs' favor, and that the public interest would be well-served by an injunction.
D. Scope of Relief For the foregoing reasons, the court finds that Plaintiffs have demonstrated that they are entitled to a preliminary injunction. Defendants are therefore ORDERED to maintain the DACA program on the same terms and conditions that existed prior to the promulgation of the DACA Rescission Memo, subject to the following limitations. Defendants need not consider new applications by individuals who have never before obtained DACA benefits; need not continue granting "advanced parole" to DACA beneficiaries; and, of course, may adjudicate DACA renewal requests on a case-by-case, individualized basis. See Regents, 2018 WL 339144, at *28. Plaintiffs contend that the court should require Defendants to restore the DACA program as it existed on September 4, 2017, in pmticular by requiring Defendants to adjudicate initial DACA applications submitted by individuals who only became eligible for DACA after that date. (Jan. 30,2018, Hr'g Tr. (Dkt. Number Pending) 8:24-25.) As in Regents, however, the court finds that the irreparable harms identified by Plaintiffs largely result from Defendants' expected failure to renew existing grants of deferred action and especially work authorization, not from Defendants' refusal to adjudicate new initial DACA applications. While the court is sympathetic to the plight of individuals who were unable to apply for DACA before September 5, 2017, it cannot say that Plaintiffs have demonstrated either that these individuals would be
14 The court expresses no view as to whether the revocation of existing DACA benefits would be consistent with the Due Process Clause or other potentially applicable protections.
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irreparably harmed without injunctive relief or that the balance of equities favors these individuals to the same extent it favors existing DACA beneficiaries.
The court enjoins rescission of the DACA program on a universal or "nationwide" basis. Again, it does not do so lightly. As Defendants correctly note, equitable principles provide that the court should not enter an injunction that is broader than "necessary to provide complete relief to the plaintiffs." (Defs. Opp'n at 50 (quoting Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765 (1994)).) See also Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 72 (2d Cir. 2016) ("[I]njunctive relief should be no broader than necessary to cure the effects of the hann caused by the violation ...." (intemal quotation marks and citations omitted)). Moreover, several academic commentators have insightfully observed various problems with the practice of granting nationwide injunctions against the Govenunent, including that such injunctions thwart the development of law in different courts, encourage forumshopping, and create the possibility that different courts will issue conflicting nationwide injunctions. See Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017); Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 611 (2017); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017); Getzel Berger, Note, Nationwide Injunctions Against the Federal Govenunent: A Structural Approach, 92 N.Y.U. L. Rev. 1068 (2017).
Nevertheless, the court finds that a nationwide injunction is warranted in these cases. First, it is hard to conceive of how the court would craft a narrower injunction that would adequately protect Plaintiffs' interests. Plaintiffs include not only several individuals and a nonprofit organization, but also sixteen states and the District of Columbia. To protect the State Plaintiffs' interests, the court would presumably need to enjoin Defendants from rescinding the
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DACA program with respect to the State Plaintiffs' residents and employees, including the

employees of any instrumentalities of the state, such as public hospitals, schools, and

universities. Such an injunction would be unworkable, partly in light of the simple fact that

people move from state to state and job to job, and would likely create administrative problems

for Defendants. Furthetmore, there is a strong federal interest in the uniformity of federal

immigration law. See U.S. Const. art. I,§ 8, cl. 4 (empowering Congress to "establish a uniform

Rule ofNaturalization"); Texas, 809 F.3d at 187-88. Because the decision to rescind the DACA

program had a "systemwide impact," the court will preliminarily impose a "systemwide

remedy." Lewis v. Casey, 518 U.S. 343,359 (1996) (quoting Dayton Bd. ofEduc. v. Brinkman,
433 u.s. 406,420 (1977)).

IV. CONCLUSION Plaintiffs' motions for a preliminary injunction (Dkt. 123 in No. 16-CV-4756; Dkt. 96 in

No. 17-CV-5228) are GRANTED. The Batalla Vidal Plaintiffs' motion for class certification

(Dkt. 124) is DENIED as moot.

SO ORDERED.
Dated: Brooklyn, New York
February /3 , 2018

/s Nicholas G. Garaufis
NICHOLAS G. GARAUFIS United States District Judge

55

 
 Case 1:17-cv-05228-NGG-JO Document 215 Filed 03/29/18 Page 1 of 33 PageID #: 7368

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-X

MARTIN JONATHAN BATALLA VIDAL et al,

Plaintiffs,

-against-

MEMORANDUM & ORDER

KIRSTJEN M.NIELSEN,Secretary,Department of Homeland Security,et al..

16-CV-4756 (NGG) (JO)

Defendants. ■X

STATE OF NEW YORK et al.

-against-

Plaintiffs,

DONALD TRUMP, President of the United States, et al.

MEMORANDUM & ORDER
17-CV-5228 (NGG) (JO)

Defendants. -X

NICHOLAS G. GARAUFIS, United States District Judge. Plaintiffs in the above-captioned cases challenge Defendants' decisions to end the
Deferred Action for Childhood Arrivals ("DACA") program and. Plaintiffs allege, to relax the

restrictions on federal authorities' use of DACA applicants' personal information for

immigration-enforcement purposes. The court assumes familiarity with the factual and procedural history of these cases and in particular with its November 9, 2017, Memorandum and

Case 1:17-cv-05228-NGG-JO Document 215 Filed 03/29/18 Page 2 of 33 PageID #: 7369
Order(the"November9 M&O")(Dkt. 104),^ which granted in part and denied in part Defendants' motion to dismiss these cases for lack ofsubject-matterjurisdiction,^ and its February 13,2018,Amended Memorandum and Order(the "February 13 M&O")(Dkt.254), which granted Plaintiffs' motions for a preliminary injunction barring Defendants from terminating the DACA program in its entirety. Before the court are Defendants' motions to dismiss the Batalla Vidal Plaintiffs' third amended complaint pursuant to Rules 12(b)(1)and 12(b)(6)ofthe Federal Rules ofCivil Procedure and to dismiss the State Plaintiffs' amended complaint pursuant to Rule 12(b)(6). (3d Am.Compl.("BV TAG")(Dkt. 113); Am.Compl.
("State Pis. AC")(Dkt.71,No.17-CV-5228);Defs. Mem.in Supp. ofMot.to Dismiss the BV TAG("BV MTD")(Dkt.207-1); Defs. Mem.in Supp.ofMot.to Dismiss the State Pis. AC ("State MTD")(Dkt.71-1);see also Pis. Mem.in Opp'n to Mot.to Dismiss the BV TAG("BV Pis. Opp'n")(Dkt.240);Pis. Mem.in Opp'n to Mot.to Dismiss the State Pis. AC("State Pis. Opp'n)(Dkt.202,No. 17-CV-5228).) For the reasons that follow.Defendants' motions are
GRANTED IN PART and DENIED IN PART.
'All record citations refer to the docket in Batalla Vidal v. Nielsen. No. 16-CV-4756(E.D.N.Y.),except as otherwise noted. For ease ofreference,the court refers to the Department ofHomeland Security as"DHS,"the Department ofJustice as"DOJ,"and U.S. Citizenship and Immigration Services as"USCIS." ^ In the November 9 M&O,the court dismissed for lack ofstanding the fourth claim asserted in the Batalla Vidal Plaintiffs' second amended complaint, which alleged that Defendants violated the Due Process Clause ofthe Fifth Amendment by failing to provide individualized written notice to certain DACA recipients that they needed to renew their DACA benefits by October 5,2017. (2d Am.Compl.(Dkt.60) 160-65;Nov.9 M&O at 37-38.) The court also dismissed for lack ofstanding the State Plaintiffs' notice and information-use-policy claims. (Nov.9 M&O at 38-46.) While the Batalla Vidal Plaintiffs reassert a notice claim in their third amended complaint(3d Am. Compl.("BV TAC")(Dkt. 113) 188-94),they concede that they do so only to preserve the claim for appeal and that, under the reasoning ofthe November9 M&O,this claim should be dismissed(Pis. Mem.in Opp'n to Mot.to Dismiss the BV TAC("BV Pis. Opp'n")(Dkt.240)at4 n.5). Accordingly,the Batalla Vidal Plaintiffs' fourth claim
for reliefis DISMISSED.

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I.

LEGAL STANDARDS

A. Rule 12(b)(1)

A Rule 12(b)(1)motion tests the court's subject-matterjurisdiction to hear a claim or

case. Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1),the court must dismiss a claim"when

the...court lacks the statutory or constitutional power to adjudicate it." Makarova v. United

States. 201 F.3d 110,113(2d Cir. 2000). When considering a Rule 12(b)(1)motion,the court

"must take all uncontroverted facts in the complaint... as true, and draw all reasonable

inferences in favor ofthe party assertingjurisdiction." Tandon v. Captain's Cove Marina of

Bridgeport.Inc.. 752 F.3d 239,243(2d Cir. 2014). Nevertheless,"the party asserting subject

matterjurisdiction'has the burden ofproving by a preponderance ofthe evidence that it exists.'"

Id.(quoting Makarova.201 F.3d at 113).

B. Rule 12(b)(6)

A Rule 12(b)(6)motion tests the legal adequacy ofthe plaintiffs complaint. To survive a

Rule 12(b)(6)motion,the complaint must"contain sufficient factual matter,accepted as true,to

'state a claim to reliefthat is plausible on its face.'" Ashcroft v. Jqbal.556 U.S.662,678(2009)

(quoting Bell Atl. Corp. v. Twomblv.550 U.S.544,570(2007)). In considering the sufficiency

ofthe complaint,the court"accept[s]all[well-pleaded]factual allegations in the complaint as

true, and draw[s] all reasonable inferences in the plaintiffs favor," Chambers v. Time Warner.

Inc..28 2F.3d 147,152(2d Cir. 2002),but does need not to credit"[tjhreadbare recitals ofthe

elements ofa cause ofaction,supported by mere conclusory statements,"Iqbal.556 U.S. at 678.

Determining "plausibility" is a "context-specific task," id. at 679, which "depends on a host of

considerations: the full factual picture presented by the complaint,the particular cause ofaction

and its elements,and the existence ofalternative explanations so obvious that they render

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plaintiffs inferences unreasonable," L-7 Designs.Inc. v. Old Navy,LLC.647 F.3d 419,430(2d Cir. 2011).
The court's review ofa Rule 12(b)(6)motion is generally limited to "the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint," as well as documents "integral" to the complaint. DiFolco v. MSNBC Cable LLC.622 F.3d 104, 111(2d Cir. 2010).
II. DISCUSSION
The court first analyzes Plaintiffs' claims challenging the decision to end the DACA program,then turns to the Batalla Vidal Plaintiffs' claims challenging Defendants'(1) alleged changes to the policy regarding the protection ofDACA applicants' personal information(the "information-use policy")(BV TAC 177-82);and(2)rejections ofDACA renewal requests that were delayed due to postal errors, received late in the day on October 5,2017,or contained "real or perceived clerical errors"(id fl 199-205).
A. DACA Rescission
Plaintiffs have stated a claim that the decision to end the DACA program was substantively arbitrary and capricious,in violation ofSection 706(2)(A)ofthe Administrative Procedure Act("APA"),5 U.S.C.§ 706(2),and substantially motivated by discriminatory animus,in violation ofthe equal-protection principle inherent in the Fifth Amendment's Due Process Clause. Plaintiffs have not,however,stated a claim that the rescission ofthe DACA program was invalid because it was not implemented through notice-and-comment rulemaking, nor have they stated a claim that Defendants violated the Regulatory Flexibility Act,5 U.S.C. §601 et seq.("RFA"),by failing to consider the rescission's impact on small entities.

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1.

Substantive APA

Plaintiffs challenge the decision to end the DACA program as substantively "arbitrary,

capricious,an abuse ofdiscretion,or otherwise not in accordance with law." 5 U.S.C.

§ 706(2)(A). (BV TAG IK 177-82; State Pis. Am.Compl.UK 253-56.) In its February 13 M&O,

the court found that Plaintiffs were likely to succeed on the merits ofthis claim. For the reasons

stated in that opinion,Defendants' motion to dismiss these claims is DENIED.^ Additionally,

the court notes that it would be inappropriate to dismiss Plaintiffs' substantive APA claims at

this stage ofthe litigation,as"there is a strong suggestion"that the administrative record

previously produced by Defendants is incomplete,"entitling [Plaintiffs]to discovery regarding

the completeness ofthe record." (Dec.27,2017,USCA Order(Dkt.210)at 2-3(quoting Dopico

V. Goldschmidt 687 F.2d 644,654(2d Cir. 1982)).)^

^ Defendants have also contested whether Make the Road New York("MRNY")and the State Plaintiffs fall within the APA's"zone ofinterests." (BV MTD at 12; State MTD at 20-21.) These Plaintiffs fall within the zone of interests ofthe Immigration and Nationality Act such that they may bring suit under the APA. DACA recipients are members,clients, and employees ofMRNY,an organization that advocates for immigrants' rights. (BV TAG 46, 49-50;BV Pis. Opp'n at 6-7.) At the very least,the State Plaintiffs employ a number ofDACA recipients. (Nov.9 M&O at 38-40; State Pis. Opp'n at 3-6.) Plaintiffs' interests in the decision to end the DACA program are thus not '"so marginally related to or inconsistent with the purposes implicit in the[Immigration and Nationality Act]that it cannot reasonably be assumed that' Congress authorized [those] plaintiff[s] to sue." Lexmark Int'l. Inc. v. Static Control Components.Inc.. 134 S. Ct. 1377, 1389(2014)(quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak.567 U.S.209,225(2012)1:see also Clarke v. Sec.Indus. Ass'n.479 U.S.388,399 (1987). Defendants rely on Federation for American Immigration Reform.Inc. v. Reno.93 F.3d 897(D.C. Cir. 1996)("FAIR"),but that case held only that members ofan anti-immigration group lacked statutory standing, based on their generalized objections to immigration,to challenge a decision to accord reliefto Cuban immigrants. S^jd at 900-04. Unlike in FAIR.Plaintiffs in the above-captioned cases are directly affected by Defendants' actions. See Regents ofthe Univ.ofCalif, v. DHS.279 F. Supp.3d 1011, 1036 n.l2(N.D.Cal.2018).
Record-related discovery remains stayed pending the Second Circuit's ruling on Defendants' interlocutory appeal from the November 9 M&O. (See Jan. 8,2017,Mem.& Order(Dkt.233)at 9-10.) The court reiterates that Defendants vigorously sought that interlocutory appeal before reversing course and conceding that the Second Circuit should hold Defendants' petitions for leave to appeal in abeyance pending this court's ruling on Plaintiffs' motions for a preliminary injunction and Defendants' motions to dismiss. (Reply in Supp. ofPet.for Permission to Appeal(Dkt.28,Nielsen v. Vidal,No. 18-122(2d Cir.))at 2;see also Feb. 13 M&O at 21 & n.6.) The Second Circuit thereafter agreed to hold these petitions for leave to file in abeyance pending this court's ruling on the pending motions. (USCA Jan. 31,2018,Order(Dkt.249).)

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2.

Procedural APA

Plaintiffs next claim that the decision to end the DACA program was procedurally

defective,in violation ofSection 706(2)(D)ofthe APA,because the Department ofHomeland

Security("DHS")did not use notice-and-comment rulemaking to rescind the program. These

claims raise challenging questions but are ultimately unavailing.

Under the APA,an agency generally must use notice-and-comment procedures to make

any "rule." 5 U.S.C.§ 553.^ The APA exempts from this requirement,however,"general

statements ofpolicy," among other types ofrule. Id.§ 553(b)(A). The parties dispute whether

the memorandum announcing the rescission ofthe DACA program (the"DACA Rescission

Memo")(Mem.from Elaine C.Duke,Acting Sec'y,DHS,Rescission ofthe June 15,2012

Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who

Came to the United States as Children"(Dkt.77-1 at ECF p.252))is a"general statement of

policy" exempt from notice-and-comment rulemaking requirements or instead a "legislative

rule" subject to these requirements. (Compare BV MTD at 18-20, and State MTD at 28-31, with

BV Pis. Opp'n at 12-16, and State Pis. Opp'n at 15-19.) The DACA Rescission Memo was not

formulated through notice-and-comment rulemaking,so ifit is a legislative rule, it is invalid.

See 5 U.S.C.§§ 553,706(2)(D).

As the court has already noted,the line between legislative rules and non-legislative rules

"is enshrouded in considerable smog." (Feb. 13 M&O at 30(quoting Noel v. Chapman.508

F.2d 1023,1030(2d Cir. 1975)).) See also NatT Mining Ass^n v. McCarthv.758 F.3d 243,251

(D.C. Cir.2014)(characterizing the inquiry for determining whether an agency action is a

^ The APA defines"rule"as"the whole or part ofan agency statement ofgeneral or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements ofan agency." 5 U.S.C.§ 551(4).

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legislative rule,an interpretive rule,or a general statement ofpolicy as"quite difficult and confused"). There are,however,general principles to guide the court's inquiry. Ifthe rule alters the rights or obligations ofregulated parties"or produces other significant effects on private interests," it is legislative. White v. Shalala.7 F.3d 296,303(2d Cir. 1993)(citation omitted); see also Chrvsler Corp. v.Brown.441 U.S.281,302(1979)(legislative rules"affect[]individual rights and obligations"(citation omitted));Lewis-Mota v. Sec'v ofLabor.469 F.2d 478,482(2d Cir. 1972). The D.C. Circuit has summarized what makes a "legislative" rule:
An agency action that purports to impose legally binding obligations or prohibitions on regulated parties—and that would be the basis for an enforcement action for violations of those obligations or requirements—is a legislative rule. An agency action that sets forth legally binding requirements for a private party to obtain a permit or license is a legislative rule.
Nat'l Mining Ass'n.758 F,3d at 251-52.
If,however,the rule does not alter regulated parties' rights and obligations but instead "educat[es].,. agency members in the agency's work,"or is"directed primarily at the staffof an agency describing how it will conduct agency discretionary functions," the rule is a general policy statement. Noel.508 F.2d at 1030(first quoting Henry Friendly,The Federal Administrative Agencies 145-46(1962),and then quoting Arthur E. Bonfield,Some Tentative
Thoughts on Public Participation in the Making ofInterpretative Rules and General Statements
ofPolicv Under the APA.23 Admin.L.Rev. 101,115(1971));see also Lincoln v. Vigil.508 U.S. 182,197(1993)(general statements ofpolicy are "issued by an agency to advise the public prospectively ofthe manner in which the agency proposed to exercise a discretionary power" (quoting Chrvsler.441 U.S. at 302 n.31));Nat'l Mining Ass'n.758 F.3d at 252("An agency action that merely explains how the agency will enforce a statute or regulation—^in other words.

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how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—^is a general statement ofpolicy.")-
The Second Circuit's decision in Noel helps reveal the uncertain boundary between legislative rules and general statements ofpolicy. In NoeL two Haitian nationals unlawfully present in the United States and subject to orders ofdeportation married U.S.lawful permanent residents and sought"extended voluntary departure,"a form ofdiscretionary relieffrom deportation that would have enabled them to remain in this country for up to two years while waiting for visas. 508 F.2d at 1024. Between 1968 and 1972,it was the practice ofthe New York District Director for Immigration and Naturalization Services("INS")routinely to grant extended voluntary departure to such Western Hemisphere aliens who were present in this country and married to permanent resident aliens. Id at 1025. In 1972,however,INS issued a directive stating that such aliens"should not routinely be granted extended departure time,but rather should be offered that privilege only in those cases where compelling circumstances warranted the relief." Id at 1025-26. The plaintiffs argued,among other things,that this directive was a legislative rule that was invalid because it was not made through notice-andcommentrulemaking. Id at 1029. The Second Circuit rejected this argument,concluding that the directive was a"general statement ofpolicy"exemptfrom notice-and-comment requirements. Id First, the Second Circuit noted that the directive did not purport to amend an existing regulation vesting the district director v^th sole discretion to extend deportable aliens'
time in the United States or otherwise to oust him ofthis discretion. Id at 1030. Instead,the directive only offered "a statement by the agency ofits general policy as a guideline for the District Directors" in their exercise ofthis discretion. Id Second,the directive did not
"change[]the existing right ofthe [aliens]to have their applications for extensions oftime to
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depart authorized in the sole discretion ofthe district director," because those aliens remained eligible to seek deferred voluntary departure,albeit only on the more limited basis ofhardship.
Like the directive at issue in Nod,the DACA Rescission Memo appears to be a general statement ofpolicy,not a legislative rule. The DACA Rescission Memo does not deprive individuals ofa substantive right to receive deferred action or work authorization,or to have
these benefits renewed for additional terms. As the memorandum that launched the DACA
program(the"2012 DACA Memo")states clearly, no such rights exist. (Mem.from Janet Napolitano, Sec'y» DHS,"Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children"("2012 DACA Memo")(Dkt.77-1 at ECF p.l).) Instead, the decision to grant or deny an individual deferred action and work authorization continues to lie within immigration authorities' discretion. Like the 2012 DACA Memo,the DACA Rescission Memo offers guidance to DHS employees as to how the agency intends to exercise this discretion prospectively: Whereas the 2012 DACA Memo advises DHS staffto consider exercising prosecutorial discretion with respect to individuals meeting certain identified criteria (such as age ofentry into the United States and absence ofa meaningful criminal record),the DACA Rescission Memo directs those staffnot to consider those criteria when exercising their prosecutorial discretion. The DACA Rescission Memo is thus"directed primarily at the staffof [DHS]describing how it will conduct agency discretionary functions." Noel.508 F.2d at 1030 (internal quotation marks and citation omitted).
It is true that,ifthe DACA Rescission Memo were to take effect, hundreds ofthousands ofindividuals would no longer have the opportunity to seek deferred action and work authorization through the DACA program. As Defendants note,however,the DACA Rescission

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Memo does not purport to strip immigration authorities ofthe ability to grant deferred action and work authorization, but only provides that they should not do based on the criteria identified in the 2012 DACA Memo,or on the submission ofDACA application materials. (BV MTD at 7 ("[A]s was true before implementation ofthe DACA Policy in 2012,deferred action remains available on an individualized basis.").) At least in theory,individuals who would have been eligible for deferred action and work authorization under the DACA program may still qualify for those benefits based on their individual circumstances. As a practical matter,the DACA Rescission Memo almost certainly means that fewer individuals will receive for deferred action and work authorization. But the directive at issue in Noel surely reduced the number ofaliens eligible for discretionary relief,too,and that did not render the directive a legislative rule. See
Noel. 508 F.2d at 1025-26.
Plaintiffs contend that the DACA Rescission Memo nevertheless is a legislative rule because it binds DHS's discretion and requires the agency to reject all DACA applications and renewal requests not meeting certain criteria. (BV Pis. Opp'n at 12-14; State Pis. Opp'n at 1519.) As Plaintiffs point out,a number ofcourts outside this circuit—^most notably the D.C. Circuit—^have determined whether a rule is legislative at least partly by looking to whether the rule constrains the agency's own discretion. See,e.g.. Clarian Health W..LLC v. Hargan.878 F.3d 346,357(D.C.Cir. 2017). In this view,a rule"'cabining...an agency's prosecutorial discretion can in fact rise to the level ofa substantive,legislative rule' when it 'is in purpose or likely effect one that narrowlv limits administrative discretion.'" Ass'n ofIrritated Residents v. EPA.494 F.3d 1027, 1034(D.C. Cir.2007)fauoting Cmtv.Nutrition Inst. v. Young.818 F.2d 943,948(D.C. Cir. 1987)(per curiam)). Plaintiffs note that the DACA Rescission Memo
10

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mandates the rejection ofcertain DACA applications,and therefore contend that the memo eliminates DHS's discretion to consider those applications and thus constitutes a legislative rule.
While there is some force to Plaintiffs' arguments,they are unavailing. As an initial matter,it is not clear to this court that an agency's compliance with its stated policy is reason to deem that policy a legislative rule. Because one might expect functional organizations generally to abide by their own policies, treating general compliance with internal policies as evidence that those policies were in fact legislative rules risks writing the "general statements ofpolicy"
exception to notice-and-comment rulemaking out ofthe APA.^ Moreover,it is important to
remember that the DACA Rescission Memo purports to end a program that was itselfcreated by a policy statement. Plaintiffs' view that Defendants must use notice and comment to stop what started without notice and comment is not only counterintuitive, but also at odds with the general principle that the procedures needed to repeal or amend a rule as the same ones that were used to make the rule in the first place. Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199,1206 (2015)("Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.") To whatever extent the DACA Rescission Memo is in fact"binding"on DHS,the court cannot agree that this prospective limitation on the agency's exercise ofits discretion renders the memo a legislative rule.
Accordingly, Defendants' motion to dismiss Plaintiffs' notice-and-comment claims is
GRANTED.
^ For an insightful argument why the "practically binding" standard is inconsistent with the Supreme Court's
decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council.435 U.S.519(1978),see Cass R. Sunstein,"Practically Binding": General Policy Statements and Notice-and-Comment Rulemaking.68 Admin. L. Rey.491 (2016).
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3.

RFA

Plaintiffs also assert claims under the RPA.(BV TAC 183-87; State Pis. Am.Compl.

266-73.) Among other things,that statute provides that when an agency engages in

rulemaking,it must consider the impact ofthe rule on "small entities." 5 U.S.C.§§ 603(a),

604(a). The Batalla Vidal Plaintiffs claim that the DACA Rescission Memo violated the RFA

because it failed to consider the impact ofthe rescission on PlaintiffMake the Road New York

("MRNY")and similar small entities(BV TAC 184-85), while the State Plaintiffs contend

that DHS failed to consider the impact on"small businesses,small nonprofits,and small

governmentaljurisdictions." (State Pis. Am.Compl. 266-73).

These claims are also unavailing. The RFA only requires an agency to publish an initial

or final regulatory flexibility analysis when the agency is required to use notice-and-comment rulemaking procedures. 5 U.S.C.§§ 603(a),604(a); U.S.Telecom Ass'n v. FCC.400 F.3d 29, 42(D.C. Cir. 2005). Because DHS was not required to use notice and comment to rescind the DACA program,it was not required to conduct a regulatory flexibility analysis in connection

with that decision.
Accordingly, Defendants' motion to dismiss Plaintiffs' RFA claims is GRANTED.

4.

Equal Protection

The court next turns to Plaintiffs' claims that the decision to end the DACA program

violated the U.S. Constitution because it was substantially motivated by racial animus against Latinos and,in particular, Mexicans. (BV TAC 195-98; State Pis. Am.Compl. 233-39.)

Defendants move to dismiss these claims on the grounds that Plaintiffs have failed to plausibly allege that the DACA rescission was motivated by unlawful animus. (E.g.. State MTD at 31-34.)

The court concludes,however,that Plaintiffs have alleged sufficient facts to raise a plausible

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inference that the DACA rescission was substantially motivated by unlawful discriminatory
purpose.
The Equal Protection Clause ofthe Fourteenth Amendmentto the U.S. Constitution
generally prohibits government officials from discriminating on the basis ofrace. U.S.Const, amend.XIV,§ 1. Although the Equal Protection Clause by its terms applies to states,the Supreme Court has long recognized that the Due Process Clause ofthe Fifth Amendment generally prohibits racial discrimination by the federal government as well. Boiling v. Shame. 347 U.S.497,498-500(1954). In order to state an equal-protection claim based on racial discrimination. Plaintiffs must allege "that a government actor intentionally discriminated
againstthem on the basis ofrace." Havden v. Countv ofNassau. 180 F.Sd 42,48(2d Cir. 1999). Where,as here.Plaintiffs challenge facially neutral official action,they may supportthis claim by alleging either that the facially neutral action "is applied in a discriminatory fashion," or that "it was motivated by discriminatory animus and its application results in a discriminatory effect." 14(first citing Yick Wo v. Hopkins. 118 U.S.356,373-74(1886),and then citing Vill. of Arlington Heights v. Metro.Hons.Dev.Corp..429 U.S.252,264-65(1977)(^"Arlington
Heights")). Only the latter theory is at issue here, as Plaintiffs argue that the DACA Rescission
Memo both disadvantages and wasintended to disadvantage certain racial groups.(BY TACf 197;State Pis. Am.Compl.H235-36.) The court discusses each elementofan equal-protection
claim in turn.
a) Effect
Plaintiffs allege thatthe rescission ofthe DACA program would have a disparate impact on Latinos and especially Mexicans. (BY TAC If 197.) The State Plaintiffs allege that 78 percent ofDACA recipients are Mexican nationals. (State Pis.Am.Compl.If 6.) Indeed,
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according to USCIS data attached to the State Plaintiffs' amended complaint,ofthe 793,026 individuals whose initial DACA applications were approved between 2012 and June 30,2017, more than 78 percent originated in Mexico,and at least 93 percent originated in Latin America as a whole. (USCIS,Number ofForm 1-82ID,Consideration ofDeferred Action for Childhood Arrivals(Dkt.55-1 at ECF p.2).)^ These allegations are sufficient to raise a plausible inference that the end ofthe DACA program would have a disproportionally adverse effect on Latinos and especially Mexicans.
Relying heavily on United States v. Armstrong.517 U.S.456(1996),Defendants argue that Plaintiffs bear a"rigorous" or especially"heavy burden"to survive a motion to dismiss,and thus that allegations ofthe outsized impact ofthe DACA rescission on Latino/a individuals and especially Mexicans are insufficient to plead discriminatory effect. (BV MTD at 20-21; State MTD at 32(characterizing the prevalence ofMexican nationals among DACA recipients as"an unsurprising accident ofgeography,not evidence ofdiscrimination").) Armstrong is, however, inapposite. In that case,the Court considered the initial showing that a criminal defendant asserting a "selective prosecution" claim under the Equal Protection Clause must make before obtaining discovery pursuant to Rule 16 ofthe Federal Rules ofCriminal Procedure. This is, however,a civil case,the pleading standards for which are set forth in Twomblv and Iqbal. Moreover,as the court has previously explained. Plaintiffs are not asserting a"selectivedeportation" claim, which might be analogized to the selective-prosecution claim at issue in Armstrong. (Nov.9 M&O at 28-31.) Rather than alleging that they in particular are being targeted for removal because oftheir race—in which casejudicial review oftheir suit would
'This file lists the number ofDACA applications approved for the top 25 countries oforigin for DACA recipients, not for all countries from which DACA recipients originate. (Id.)
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presumably be limited by 8 U.S.C.§ 1252(g), Reno v. Am.-Arab Anti-Discrimination Comm..525 U.S.471 (1999)—^Plaintiffs allege that the categorical decision to end the DACA program, which provided them with some limited assurance that they would not be deported, was motivated by unlav^l animus. Regents ofthe Univ.ofCalif, v.DHS.No. 17-CV-5211 (WHA),2018 WL 401177,at *6 n.3(N.D.Cal. Jan. 12,2018)("Regents 12(by6^ Order") (rejecting Defendants' attempt to characterize similar challenges as selective-prosecution claims).
Defendants also argue that the court should dismiss the Batalla Vidal Plaintiffs' equalprotection claim because,among other things,it fails to offer particularized allegations ofthe discriminatory impact ofthe DACA rescission on Latino/a and especially Mexican individuals. Ifthe court were considering Batalla Vidal Plaintiffs' third amended complaint on its own,the court might agree. The Batalla Vidal Plaintiffs' allegation that "[t]he DACA Termination targets Latinos and,in particular, Mexicans,and will have a disparate impact on these groups"(BV TAC^ 197)appears to be a fairly conclusory "recital[] ofthe elements ofa cause ofaction," which the court need not accept as true. Iqbal.556 U.S. at 678. Their fellow Plaintiffs have, however,alleged particularized facts in support ofthis allegation. More importantly,the court takesjudicial notice ofthe USCIS data referenced above,which may be considered on a Rule 12(b)(6)motion. Kramer v. Time Warner Inc..937 F.2d 767,773(2d Cir. 1991). The court declines to dismiss the Batalla Vidal Plaintiffs' equal-protection claim simply because they did not append the same data to their third amended complaint. Both sets ofPlaintiffs have adequately alleged that the rescission ofthe DACA program has a disproportionate impact on Latino/a and especially Mexican individuals.
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b) Purpose To establish discriminatory motivation.Plaintiffs must ultimately show that"invidious discriminatory purpose was a motivating factor"in the decision. Arlington Heights.429 U.S. at 266. In other words,they must show that Defendants"selected or reaffirmed a particular course ofaction at least in part'because of,' not merely'in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r v. Feenev,442 U.S.256,279(1979). But they"need not prove that the 'challenged action rested solely on racially discriminatory purposes.'" Havden v. Paterson.594 F.3d 150, 163(2d Cir.2010)(quoting Arlington Heights,429 U.S. at 265). "Because discriminatory intent is rarely susceptible to direct proof,litigants may make'a sensitive inquiry into such circumstantial and direct evidence ofintent as may be available.'" Id. (quoting Arlington Heights.429 U.S.at 266). In"extreme"cases,a facially neutral law may have such a"clear" disparate impact,"unexplainable on grounds other than race,"that evidence ofdisparate impact alone may suffice to show discriminatory purpose. Arlington Heights.429 U.S. at 266(citing, e.g., Yick Wo,118 U.S.at 356,and Gomillion v. Lightfoot,364 U.S.339 (I960)). In the absence ofsuch a pattern,however,"impact alone is not determinative,and the [c]ourt must look to other evidence"to determine ifthe challenged action was motivated by discriminatory purpose. Id This evidence may include,for example,(1)"[t]he historical background ofthe decision...particularly ifit reveals a series ofofficial actions taken for invidious purposes";(2)"[t]he specific sequence ofevents leading up to the challenged decision";(3)"[d]epartures from the normal procedural sequence," which"might afford evidence that improper purposes are playing a role";(4)"[s]ubstantive departures... particularly ifthe factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached";(5)"[t]he legislative or administrative history...
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especially where there are contemporary statements by members ofthe decisionmaking body, minutes ofits meetings,or reports"; and(6)"[i]n some extraordinary circumstances,"testimony ofofficial decisionmakers. Id. at 266-68;see also Havden v.Paterson. 594 F.3d at 163.
To establish discriminatory purpose. Plaintiffs identify a disheartening number of statements made by President Donald Trump that allegedly suggest that he is prejudiced against Latinos and,in particular, Mexicans. (BV TAC 89-99; State Pis. Am.Compl.Iff 57-77.) These comments include(1)then-candidate Trump's assertions that Mexican immigrants are not Mexico's"best," but are "people that have lots ofproblems,""the bad ones,""criminals,drug dealers,[and]rapists"(BV TAC 91-93; State Pis. Am.Compl.TIK 58-59);(2)Trump's characterization ofindividuals who protested outside a campaign rally as "thugs who were flying the Mexican flag"(State Pis. Am.Compl.^61);(3)Trump's statements that a U.S.-bom federal judge ofMexican descent could not fairly preside over a lawsuit against Trump's for-profit educational company because thejudge was"Mexican"and Trump intended to build a wall along the Mexican border(BV TAC ^96; State Pis. Am.Compl. 62);and(4)pre- and postInauguration characterizations ofLatino/a immigrants as criminals,"animals," and "bad hombres"(BV TAC HI97,99;State Pis. Am.Compl.HH 65-66,70).
Accepting Plaintiffs' non-conclusory allegations as true and reading all reasonable inferences in their favor,the court concludes that these allegations are sufficiently racially charged,recurring,and troubling as to raise a plausible inference that the decision to end the DACA program was substantially motivated by discriminatory animus. Although the use of racial slurs, epithets, or other racially charged language does not violate equal protection per se. it can be evidence that official action was motivated by unlawful discriminatory purposes. See, e.g.. Williams v. Bramer. 180 F.3d 699,706(5th Cir. 1999); Smith v. Thomburg. 136 F.3d 1070,
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1089-90(6th Cir. 1998);Freeman v. Arpaio. 125 F.3d 732,738 n.6(9th Cir. 1997),overruled in part on other grounds bv Shakur v. Schriro,514 F.3d 878,884-85(9th Cir.2008);All v. Connick. 136 F.Supp.3d 270,279-80(E.D.N.Y.2015)(collecting cases). The court is aware of no authority holding that this rule does not apply simply because the speaker is, or is running to be,the President ofthe United States. The court expresses no view as to whether these statements(which as Defendants note,are not directly connected to the DACA rescission)would ultimately suffice to provide that the rescission was motivated by discriminatory animus;that is a question for summaryjudgment or trial. The court concludes only that Plaintiffs have alleged sufficient facts to raise a plausible inference that the DACA rescission violated equal protection,
and thus to withstand a motion to dismiss.^
Defendants do not defend the President's comments but argue instead that the court should simply ignore them. First, Defendants suggest that because the President's statements were"almost all made before he took the oath ofoffice and[were not] made in connection with the[DACA rescission],"these comments"do not tend to show the existence ofboth discriminatory intent and discriminatory effect." (State MTD at 33.) Defendants cite no authority for the proposition that,to state an equal-protection claim,a plaintiff must point to some evidence that simultaneously demonstrates both discriminatory intent and discriminatory effect, or that evinces discriminatory bias directly in connection with the challenged official action. To the contrary, Arlington Heights states that courts may consider the background of
® Because the comments identified above are sufficient to raise a plausible inference ofdiscriminatory purpose,the court need not decide whether Plaintiffs' remaining allegations support an inference ofdiscriminatory purpose. For example, Plaintiffs allege or argue in their briefs that the President decided to pardon former Maricopa County, Arizona,SheriffJoe Arpaio(BV TAG ^98;State Pis. Am.Compl. 67-69),that he has made offensive statements about Muslims,Native Americans,transgender individuals,and "shithole countries"(BV Pis. Opp'n at 19-20),and that, during the campaign,then candidate Trump retweeted a post apparently criticizing former Florida governor Jeb Bush for speaking"Mexican"(BV TAG If 95). The court observes, however,that these allegations would seem to offer only weak support,at best,for the notion that the President's alleged decision to end the DAGA program was motivated by desire to harm Latinos and especially Mexicans.
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facially neutral decisions to smoke out whether they were covertly motivated by discriminatory purposes. 429 U.S. at 267.
The court recognizes that searching for evidence ofdiscriminatory motivation in campaign-trail statements is potentially fraught. Old statements may say little about what lay behind a later decision. Statements made in the throes ofa heated race may be "contradictory or inflammatory," and considering them may indeed incentivize litigants in future cases to embark on an "evidentiary snark hunt"in search ofpast comments indicative ofsome sort ofbias. Washington v. Trump,858 F.3d 1168, 1173-74(9th Cir.2017)(Kozinski,J., dissenting from denial ofreh'g en banc);^Regents nrbUb")Order.2018 WL 401177,at *7(recognizing that consideration ofcampaign statements"can readily lead to mischiefin challenging the policies of a new administration"). Moreover,an equal-protection claim brought against the President raises difficult questions ofwhether—and,ifso,for how long—^any Executive action disproportionately affecting a group the President has slandered may be considered constitutionally suspect.
While these are all good reasons to tread lightly, the court does not see why it must or should bury its head in the sand when faced with overt expressions ofprejudice. Arlington Heights calls for a"sensitive inquiry into such circumstantial and direct evidence ofintent as may be available," and campaign-trail statements by the official allegedly responsible for a challenged policy would seem to fall squarely within this inquiry. Ct IntT Refugee Assistance Project V. Trump.883 F.3d 233,266(4th Cir.2018)(en banc)(declining to consider pre-election statements while noting that they "certainly provide relevant context when examining the purpose"ofa challenged Presidential proclamation suspending entry ofindividuals from specified countries), pet, for cert, docketed. No. 17-1270. At the very least, one might
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reasonably infer that a candidate who makes overtly bigoted statements on the campaign trail might be more likely to engage in similarly bigoted action once in office.
Defendants' attempts to pass the buck to Acting Secretary Duke are no more persuasive. Defendants argue that the President's statements are legally irrelevant because Acting Secretary Duke"was the only official vested with authority...to make the decision at issue," and Plaintiffs do not point to similarly objectionable statements by her. (BV MTD at 22; State MTD at 34.) To the extent Defendants argue that Plaintiffs have insufficiently alleged racial animus on the part ofActing Secretary Duke or the Attorney General,the court is inclined to agree: Plaintiffs have not identified statements by Acting Secretary Duke or the Attorney General that would give rise to an inference ofdiscriminatory motive. Although the Batalla Vidal Plaintiffs insinuate that the Attorney General referred to immigrants as"filth"(BV TAG H 100;BV Pis. Opp'n at 20), his prepared remarks make clear that this term was used only to refer to international drug-trafficking cartels and the gang MS-13(Dep't ofJustice,Press Release, Attorney General JeffSessions Delivers Remarks Announcing the Department ofJustice's Renewed Commitment to Criminal Immigration Enforcement(Apr. 11,2017), https://www.justice.gov/opa/speech/attomey-general-jeff-sessions-delivers-remarks-announcingdepartment-justice-s-renewed). This comment therefore does not support a plausible inference that the Attomey General was motivated by racial discrimination when he advised that Acting Secretary Duke end the DACA program.
The court rejects, however.Defendants'remarkable argument that the President apparently cannot be liable for rescinding the DACA program because only Acting Secretary Duke had the legal authority to end that program. (State MTD at 34.) Our Constitution vests "executive Power"in the President,not in the Secretary ofDHS,who reports to the President
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and is removable by him at will. U.S. Const.,art. II,§ 1,cl. 1. This position appears to be at odds with the stated position ofthe President himself,who tweeted that ifCongress were unable to "legalize DACA,"he would "revisit this issue,"implying that he(correctly)understands that he has ultimate authority over the program. (Donald J. Trump(@realDonaldTrump),
Twitter.com (Sept. 5,2017 7:38 PM), https://twitter.eom/realdonaldtrump/status/905228667336499200.) If, as Plaintiffs allege. President Trump himselfdirected the end ofthe DACA program (e.g.. State Pis. Am.Compl.
16),it would be surprising ifhis"discriminatory intent[could]effectively be laundered by being implemented by an agency under his control"(BV Pis. Opp'n at 18). As courts have recognized in far more mundane contexts, liability for discrimination will lie when a biased individual manipulates a non-biased decision-maker into taking discriminatory action. Cf. Vasquez v. Empress Ambulance Serv.. Inc..835 F.3d 267,272-73(2d Cir.2016)(discussing "cat's paw"liability, under which an organization may be held liable for employment discrimination when a prejudiced subordinate manipulates an unbiased superior into taking adverse employment action); Back v. Hastings on Hudson Union Free Sch. Dist.,365 F.3d 107, 126 & n.18(2d Cir. 2004)(applying cat's-paw theory to equal-protection claim).
Accordingly,Defendants' motion to dismiss Plaintiffs' equal-protection claims is
DENIED.
B. Information-Use Policy Next,the court considers whether the Batalla Vidal Plaintiffs state a claim regarding
Defendants' alleged changes to DHS's information-use policy.^ The court concludes that they
'Although the State Plaintiffs also asserted similar claims under the Fifth Amendment and principles ofequitable estoppel(State Pis. Am.Compl. 240-52),the court previously dismissed these claims for lack ofstanding(Nov.9
M&O at 41-46). 21

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have not done so, because materials attached to their third amended complaint refute their
allegation that Defendants have changed that policy to make it easier to use DACA applicants'
information for immigration-enforcement purposes.
The Batalla Vidal Plaintiffs contend that Defendants essentially tricked them into
exposing themselves and theirfamily members to a heightened risk ofdeportation. To apply for
DACA,individuals disclosed "extensive sensitive and personal information" about themselves
and,often,their family members,to immigration authorities. (BV TAG KK 77-79.) They did so,
the third amended complaint alleges, because"Defendants consistently represented...that the
information they provided would be protected from disclosure to U.S.Immigrations and
Customs Enforcement("ICE")and Customers and Border Protection("CBP")for immigration
enforcement proceedings against them and their family members or guardians,except in limited,
delineated circumstances." (Id.^ 80.)'*^ Plaintiffs contend that,as part ofthe DACA rescission,
however,"DHS has changed its policy...to remove the limitations on using [this]information
for immigration-enforcement purposes." (Id. K 156.) In particular. Plaintiffs attach to the third
In particular,the DACA application form provided as follows: Information provided in this request is protected from disclosure to ICE and rCBPl for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance ofa Notice to Appear or a referral to
ICE under the criteria set forth in USCIS' Notice to Appear guidance.... The
information may be shared with national security and law enforcement agencies, including ICE and CBP,for purposes other than removal,including for assistance in the consideration ofdeferred action for childhood arrivals request itself[sic], to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution ofa criminal offense. The above information sharing clause covers familv members and guardians,in addition to the requestor. This policy,which may be modified,superseded,or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. (Form 1-82ID,Consideration ofDeferred Action for Childhood Arrivals(Dkt. 113-1 at ECF p.6)at ECF p.25 (emphasis added).)
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amended complaint a document offrequently asked questions published by USCIS on November 30,2017(the"November 30 FAQs"),which states that"[information provided to USCIS for the DACA process will not make you an immigration priority for that reason alone. That information will only be proactivelv provided to ICE or CBP ifthe requestor meets the criteria for the issuance ofa Notice To Appear or a referral to ICE under the criteria set forth in USCIS' Notice to Appear guidance." (USCIS,Frequently Asked Questions: Rejected DACA Requests (Last Reviewed/Updated 11/30/2017)C'Nov.30 FAQs")(Dkt. 113-1 at ECF p.65)at Q5 (emphasis added).) The Batalla Vidal Plaintiffs contend that this alleged change violated Section 706(2)(A)ofthe APA. (Id 179, 181.)
Defendants argue that this claim should be dismissed because they have not,in fact, changed the information-use policy. (BV MTD at 2,5, 17-18.) Ordinarily,the court would not resolve such a factual dispute on a motion to dismiss. But"where a conclusory allegation in the complaint is contradicted by a document attached to the complaint,the document controls and the allegation is not accepted as true." Amidax Trading Grp. v. S.W.I.F.T. SCRL.671 F.3d 140, 147(2d Cir.2011)(per curiam)(discussing Rule 12(b)(1)motions); Kardovich v.Pfizer. Inc.,97 F. Supp.3d 131,140-41 (E.D.N.Y.2015). Here,the November 30 FAQs,which are attached to Plaintiffs' complaint, state expressly that the DACA "information-sharing policy has not changed in any way since it was first announced,including as a result ofthe Sept.5,2017 memo starting a wind-down ofthe DACA policy." (Nov.30 FAQs at Q5;see also USCIS,Frequently Asked Questions: Rejected DACA Requests(Last Reviewed/Updated 12/07/2017)("Dec.7 FAQs")(Dkt. 113-1 at ECF p.68)at Q5.) While the Batalla Vidal Plaintiffs argue that the court should not credit Defendants' unsworn representation that there has been no change to the information-sharing policy,they do not answer Defendants' argument that they have effectively
23

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pleaded themselves out ofcourt by relying on a documentthat contradicts their otherwiseunsupported allegation ofa change to DHS's information-use policy, (Compare BV MTD at 17-
18, vMl BV Pis. Opp'n at 10 n.l 1.)
Accordingly, Defendants' motion to dismiss the Batalla Vidal Plaintiffs' substantive APA claim,to the extent that claim alleges that Defendants arbitrarily and capriciously changed DHS's information-use policy,is GRANTED.*'
To be clear,the court holds only that the Batalla Vidal Plaintiffs have not plausibly alleged that DHS actually changed its information-sharing policy. Ifthese Plaintiffs were to allege additional facts giving the lie to Defendants' assertion that there has been no change to this policy,they may have a compelling claim to relief. Two other district courts have already
denied Defendants' motions to dismiss similar claims. CASA de Maryland v. U.S.DHS.—
F.Supp.3d—,2018 WL 1156769,at *14-15(D. Md.2018)(estoppel); Resents 12rb¥61 Order. 2018 WL 401177,at *4-5(substantive due process). The U.S.District Court for the District of Maryland has specifically enjoined Defendants from using DACA applicants' personal information for immigration-enforcement purposes except as authorized by established DHS policy or in camera review, Am.Order(Dkt.49),CASA de Marvland v. U.S.DHS.No. 8:17-CV-2942(RWT)(D.Md.Mar. 15,2018).
C. Procedural Due Process
Finally,the court tums to the newly asserted claim in the Batalla Vidal Plaintiffs' third amended complaint,in which MRNY challenges Defendants' processing ofrenewal requests submitted pursuant to the DACA Rescission Memo. MRNY states a claim with respect to some
" The court notes, however,that two other district courts have denied Defendants' motions to dismiss similar claims. See CASA de Marvland v. U.S.DHS.— F. Supp.3d—,2018 WL 1156769,at *14-15(D.Md.2018) (estoppel); Regents nrbYdl Order.2018 WL 401177,at *4-5(substantive due process).
24

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categories ofDACA recipients whose renewal requests were allegedly unfairly denied in September or October 2017,but not others.
In the DACA Rescission Memo,Acting Secretary Duke stated that DACA recipients whose deferred action and work authorization were set to expire before March 5,2018,could request a final two-year extension oftheir benefits,(DACA Rescission Memo at 4,) In particular,DHS would "adjudicate—on an individual,case by case basis—^properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as ofthe date ofthis memorandum,and fi*om current beneficiaries whose benefits will expire between [September 5,2017]and March 5,2018 that have been accepted by[DHS]as ofOctober 5, 2017," (Id)
According to MRNY,Defendants implemented this directive in a series ofunfair ways. First, MRNY alleges, Defendants rejected applications that were delivered to USCIS P.O, boxes late in the day on October 5 but not retrieved by USCIS staffand taken to separate USCIS "lockboxes" until the following day, (BV TAC 115-20,) Second, Defendants allegedly rejected as untimely certain renewal requests that were delivered after October 5 due to unusual U,S,Postal Service delays, (Id 121-22;see also Liz Robbins,Post Office Fails to Deliver on Time,and DACA Applications Get Rejected.N,Y,Times(Nov, 10,2017)(Dkt, 113-1 at ECF p,49),) Third, Defendants allegedly rejected renewal requests that were received before October 5"but had been returned to the applicant due to real or perceived clerical errors," (BV TAC ^ 123,) For example,USCIS allegedly rejected one MRNY member's DACA renewal request because a USCIS employee misread the date on her application-fee check as"2012,"rather than "2017," (Id H 124,) DHS invited some ofthese applicants to refile corrected applications,but
25

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when they did so,DHS rejected the refiled requests as untimely. (Id 123,127) According to

MRNY,this deviated from DHS's prior practice ofallowing individuals whose DACA

applications were rejected for minor clerical errors to correct those errors or submit further

evidence in support oftheir applications within a given period oftime. (Id K 123)

On November 15,2017,Defendants indicated that USCIS would reconsider certain

applications that were delayed in the mail or improperly rejected. (Id 1129(citing Defs.Nov.

15,2017,Letter Regarding USCIS Guidance(Dkt. 108).) USCIS allegedly stated that it would

reach out to individuals whose applications were rejected as untimely due to mail delays and

provide them instructions on how to resubmit their applications. (BV TAC 130.) USCIS

allegedly has not,however,created an equivalent process for individuals whose applications

were rejected due to real or perceived minor clerical errors. (Id 132-34.) MRNY contends

that this "arbitrary and unfair implementation ofthe October 5,2017[DACA renewal request]

deadline violates the Due Process Clause ofthe Fifth Amendment"by depriving DACA

recipients ofa liberty or property interest without the process to which they are entitled. (Id

Kl 199-205.)

1.

Standing

Defendants first move to dismiss this claim for lack ofstanding,arguing that MRNY has

not alleged that its clients or members suffered an injury-in-fact because "the injuries on which

[it]...relies have been remedied." (Id at 10.)^^ This argument is meritless.

Defendants do not contest that MRNY has organizational standing to assert this claim. "[A]n association has standing to bring suit on behalfofits members when:(a)its members would otherwise have standing to sue in thenown right;(b)the interests it seeks to protect are germane to the organization's purpose;and(c)neither the claim asserted nor the reliefrequested requires the participation ofindividual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n.432 U.S.333,343(1977). MRNY specifically alleges in the third amended complaint that a number of its members' and clients' DACA renewal requests were denied due to the alleged processing errors discussed above. (BV TAC 54-56, 118-24, 127-29, 134.) Ensuring that DACA renewal requests are adjudicated in a fair and orderly manner is clearly consistent with MRNY's purpose of"empowering immigrant. Latino/a, and working-class communities in New York." (Id If 45.) The court is not aware ofany
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As their submissions make clear, Defendants have not,in fact,remedied all injuries incurred by DACA recipients whose renewal requests were allegedly improperly rejected. For MRNY clients and members whose applications arrived late on October 5,"the agency will identify those individuals affected and invite them to resubmit their DACA requests," and "those not yet contacted..,may affirmatively reach out to the agency,explain their situation,and resubmit their request for reconsideration." (Id.(citing Dec.7FAQs at Q3).) For individuals whose requests were delayed due to postal-service errors and subsequently rejected as imtimely, "USPS is working with USCIS to identify DACA requests that were received after the deadline due to USPS mail-service delays." (Id at 11 (quoting Dec.7FAQs at Q8).) Once such requests are identified,"USCIS will send affected DACA requestors a letter inviting them to resubmit their DACA request." (Id (quoting Dec.7FAQs at Q8).) And individuals whose requests were rejected due to perceived clerical errors"may contact the agency and explain the error believed to have been made";"[ijdentification of'clear error in the processing ofa renewal request' mav result in the agency 'exercising its discretion to review the request again.'" (Id (quoting Dec.7 FAQs at Q7(emphasis added and alterations adopted)).) Thus,with respect to each category of allegedly wronged MRNY client or member.Defendants'supposed"remedy"is either that USCIS intends to address the injury in the future or that it will allow the injured party to ask it to reconsider its decision. The court commends Defendants for taking steps to redress the allegedly wrongful denials ofthese DACA renewal requests. But Defendants err to the extent they contend that, because they have stated that they may reconsider these denials, MRNY members and clients whose applications were denied have not suffered injuries-in-fact. Wong v.
reason why this claim or the reliefrequested by MRNY requires the participation ofindividual DACA requestors. Accordingly,the court concludes that MRNY has associational standing to assert this claim.
27

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Daines.582 F.Supp,2d 475,479(S.D.N.Y.2008)(failure to exhaust administrative remedies

does not implicate Article III injury-in-fact).^^ MRNY has standing to assert this claim on behalf

ofits members and clients who were adversely affected by Defendants' allegedly wrongful

adjudication oftheir DACA renewal requests.

Nor is this claim moot. Although Defendants have reconsidered their denial ofat least

one MRNY member's DACA renewal request(e.g.. BV TAG ^ 120;BV MTD at 10 n.3),

MRNY appears that many ofits members and clients still await relief(BV Pis. Opp'n at 17-18).

Even ifDefendants had taken action to right all these alleged wrongs,"[a] defendant's voluntary

cessation ofallegedly unlawful conduct ordinarily does not suffice to moot a case" unless it is

"'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

recur.'" Friends ofthe Earth.Inc. v. Laidlaw Bnvtl. Servs.(TOO.Inc.. 528 U.S. 167,174, 189

(2000)(quoting United States v. Concentrated Phosphate Export Ass'n.393 U.S. 199,203

(1968)). Defendants offer no such assurances here.

Accordingly,Defendants' motion to dismiss the Batalla Vidal Plaintiffs' sixth claim for

reliefis DENIED,to the extent it seeks to dismiss this claim for lack ofsubject-matter

jurisdiction.

2.

Merits

Next,Defendants contend that MRNY has failed to state a procedural-due-process claim

based on the allegedly wrongful denials ofcertain DACA recipients' renewal requests. (BV

MTD at 22-25.) The court agrees in part and disagrees in part.

Defendants also contend that the court should require MRNY to exhaust administrative remedies before filing suit in federal court. (BV MTD at 11-12.) As the Batalla Vidal Plaintiffs note,however(BV Pis. Opp'n at 3,5), Defendants identify no statute that would require them to exhaust administrative remedies before filing suit. See Darbv v. Cisneros.509 U.S. 137, 153-54(1993).
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"A procedural due process claim is composed oftwo elements:(1)the existence ofa property or liberty interest that was deprived and(2)deprivation ofthat interest without due process." Bryant v. N.Y. State Educ.Dep't.692 F.3d 202,218(2d Cir. 2012).
Defendants focus on the first element,contending that MRNY has not identified a constitutionally protected liberty or property interest "for the simple reason that DACA recipients have no...interest in deferred action." (BV MTD at 23.) They correctly argue that only benefits to which a person has a"legitimate claim ofentitlement"can support a constitutionally protected liberty or property interest. (Id.(quoting Town ofCastle Rock v. Gonzales.545 U.S.748,756(2005)).) Because the decision to grant deferred action and work authorization is ultimately discretionary,they say,there can be no constitutionally protected liberty or property interest in receiving DACA benefits. (Id. at 23-24;see also 2012 DACA Memo at 4.)
This argument is partly true. "In determining whether a given benefits regime creates a 'legitimate claim ofentitlement' to such benefits, we ask whether the statutes and regulations governing the distribution of benefits 'meaningfully channel[] official discretion by mandating a defined administrative outcome.'" Barrows v. Burwell.Ill F.3d 106, 113(2d Cir.2015) (quoting Kapps v. Wing,404 F.3d 105, 113(2d Cir. 2005)). The 2012 DACA Memo only sets out criteria for DHS staffs consideration,and there is no guarantee that fulfillment ofthese criteria will result in a grant ofdeferred action or work authorization. Under the memo,the decision to grant or deny those benefits is entirely as a matter ofDHS's discretion. Because DHS is not effectively required to grant any particular DACA renewal requests, MRNY cannot state a procedural-due-process claim challenging the denial ofits members'and clients' requests. Cf. Yuen Jin v. Mukasev.538 F.3d 143, 156-57(2d Cir.2008)(petitioners for asylum lack
29

Case 1:17-cv-05228-NGG-JO Document 215 Filed 03/29/18 Page 30 of 33 PageID #: 7397
liberty or property interest in discretionary relief). While the denial ofthose requests may affect some DACA recipients' liberty interests(a question the court need not decide),any such liberty interests are ultimately contingent on DACA beneficiaries' receipt ofrenewed deferred action,to
which they have no "legitimate entitlement." Defendants' argument is also something ofa red herring. MRNY contends not only that
Defendants improperly denied its members' and clients' renewal requests, but that Defendants' implementation ofthe October 5 deadline improperly denied MRNY's members and clients of the opportunity to be considered for renewal. (BV Pis. Opp'n at 23.) As MRNY points out,the DACA Rescission Memo clearly stated that USCIS "will adjudicate...properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents ...from current beneficiaries whose benefits will expire between[September 5,2017]and March 5,2018 that have been accepted by[DHS]as ofOctober 5,2017."(DACA Rescission Memo at4(emphasis added);^BV Pis. Opp'n at 23.) While the ultimate decision to grant or deny a renewal request is discretionary,this language makes clear that USCIS would at least consider every "properly filed" and timely "accepted" renewal request. MRNY has therefore sufficiently alleged that its affected members and clients had a legitimate entitlement to submit their renewal requests.^Yuen Jin.538 F.3d at 161 n.l (Sack,J., concurring in part and in the judgment)("Although asylum is a discretionary form ofrelief, and the Due Process Clause does not protect benefits that government officials may grant or deny in their discretion, every asylum applicant is nonetheless entitled to due process in establishing her eligibility for that form of relief."(internal quotation marks and citations omitted and alteration adopted)).
MRNY has also sufficiently alleged that at least some ofits members and clients were deprived ofcognizable interests in the consideration oftheir DACA renewal requests without
30

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due process oflaw. With respect to individuals whose requests were rejected because they were delivered to USCIS P.O. boxes on October 5 but not transferred to the appropriate "lockbox" until the following day,the DACA Rescission Memo was at least ambiguous as to which applications would be deemed "accepted...as ofOctober 5,2017."(DACA Rescission Memo at 4.) The DACA Rescission Memo did not state that applications had to be received at a USCIS P.O. box by mid- to late aftemoon to be "accepted," or that only those applications redelivered to a designated USCIS "lockbox" by October 5 would be deemed "accepted," raising the possibility that MRNY may be able to show that the denial ofthese requests violated due process. See Mever v. Jinkosolar Holdings Co..761 F.3d 245,249(2d Cir. 2014)(stating that,on a Rule 12(b)(6)motion,"dismissal is appropriate only where [plaintiffs] can prove no set offacts consistent with the complaint that would entitle them to relief). Likewise, MRNY has stated a claim on behalfofindividuals whose requests were rejected because USCIS staffincorrectly deemed them to be marred by clerical errors. Such applications were,in fact,"properly filed," as the DACA Rescission Memo required, but were only rejected due to errors by USCIS staff. It is hard to see how such denials comport with due process.
MRNY has not stated a claim, however, with respect to DACA recipients whose requests were rejected as untimely after being delayed by the U.S. Postal Service. The court sympathizes with the plight ofthese individuals and commends Defendants for voluntarily taking steps to address this unfortunate situation. The DACA Rescission Memo states, however,that only "properly filed" and "accepted" requests would be considered. It is common for mailing deadlines to be calculated based on when something is postmarked,not when it is actually delivered to the recipient. But USCIS's stated decision to use a"delivery rule,"rather than a
31

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"mailbox rule," to determine which requests were timely does not violate the Due Process
Clause.
Likewise, MRNY has not stated a claim with respect to individuals whose renewal requests were rejected due to actual(as opposed to incorrectly perceived)clerical errors. In light ofthe human consequences ofthe decision to grant or deny an individual a renewal ofDAGA benefits, it may seem overparticular to deny a renewal request because someone "forg[ot] to check a box,forg[ot]to sign or sign[ed]in the wrong place,or submitt[ed]a check for what applicants previously had to pay for DACA renewal." (BV TAG H 141.) The court hopes that USGIS will review these applications sympathetically,understanding the gravity oftaking away someone's livelihood and tentative protection against deportation simply because he or she forgot to check a box on a multi-page form. The court cannot,however,require USGIS to do so, because due process oflaw does not require the agency to accept incomplete or incorrect renewal
requests. Accordingly,Defendants' motion to dismiss the Batalla Vidal Plaintiffs' sixth claim for
relieffor failure to state a claim is GRANTED IN PART and DENIED IN PART. MRNY has
adequately alleged that the rejection ofDAGA renewal requests that arrived late in the day on October 5,2017,or that were erroneously deemed to contain minor clerical errors, violated procedural due process. MRNY has not,however,stated a procedural-due-process claim on behalfofrequestors whose applications arrived after October 5 due to postal delays or actually
contained minor clerical errors.
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III. CONCLUSION

For the reasons stated above, Defendants' motions to dismiss the Batalla Vidal Plaintiffs'

third amended complaint and the State Plaintiffs' amended complaint(Dkt.207 in No. 16-CV-

4756;No.71 in No. 17-CV-5228)are GRANTED IN PART and DENIED IN PART. The

Batalla Vidal Plaintiffs' first, third, and fourth claims for relief are dismissed, and the second

claim for reliefis dismissed to the extent it alleges that Defendants weakened DHS's

information-use policy. The sixth claim for reliefis dismissed in part,as stated above. The State

Plaintiffs' fifth and sixth claims for relief are dismissed.

SO ORDERED.
Dated: Brooklyn,New York
March 2018

s/Nicholas G. Garaufis
:holas g.garauf^
United States District Judi

33

 
 Department of Homeland Security v. Regents of the..., 140 S.Ct. 1891 (2020) 2020 WL 3271746, 207 L.Ed.2d 353, 20 Cal. Daily Op. Serv. 5524...

140 S.Ct. 1891 Supreme Court of the United States.
DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.;
Donald J. Trump, President of the United States, et al., Petitioners
National Association for the Advancement of Colored People, et al.; and
Chad Wolf, Acting Secretary of Homeland Security, et al., Petitioners v.
Martin Jonathan Batalla Vidal, et al.
No. 18-587, No. 18-588, No. 18-589 |
Argued November 12, 2019 |
Decided June 18, 2020
Synopsis Background: In first case, states, state university, county, city, union, and individuals brought action for declaratory and injunctive relief against Department of Homeland Security (DHS) and federal officials, challenging on constitutional grounds, and under the Administrative Procedure Act (APA), the rescission of Deferred Action for Childhood Arrivals (DACA) program, which provided work authorization and eligibility for various federal benefits, as well as protections from removal, for certain unauthorized aliens who had entered the United States as children. The United States District Court for the Northern District of California, William H. Alsup, J., 279 F.Supp.3d 1011, entered preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients and, 298 F.Supp.3d 1304, partially granted government’s motion to dismiss for failure to state a claim. Parties appealed. The United States Court of Appeals for the Ninth Circuit, Wardlaw, Circuit Judge, 908 F.3d 476, affirmed. In second case, similar claims were brought by a civil rights organization and individuals. The United States District Court for the District of Columbia, John D. Bates, J., 298 F.Supp.3d 209, granted in part and denied in part plaintiffs’ motion for partial summary judgment and defendants’ motion to dismiss, and vacated the rescission, and later denied reconsideration, 315 F.Supp.3d 457, but granted in part a stay of the vacatur pending appeal, 321 F.Supp.3d 143. In
1

third case, similar claims were brought by states, individuals, and nonprofit organization. The United States District Court for the Eastern District of New York, Nicholas G. Garaufis, J., 279 F.Supp.3d 401, granted preliminary injunction, and granted in part and denied in part defendants’ motions to dismiss, 291 F.Supp.3d 260 and 295 F.Supp.3d 127. Certiorari was granted in first case, and certiorari before judgment was granted in second and third cases.
Holdings: The Supreme Court, Chief Justice Roberts, held that:
rescission of DACA program was arbitrary and capricious, and
plaintiffs failed to state a claim for an equal protection violation.
Judgment in first case vacated in part and reversed in part; judgment in second case affirmed; orders in third case affirmed in part, reversed in part, and vacated in part; all cases remanded.
Justice Sotomayor filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.
Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Alito and Gorsuch joined.
Justice Alito filed an opinion concurring in the judgment in part and dissenting in part.
Justice Kavanaugh filed an opinion concurring in the judgment in part and dissenting in part.
Procedural Posture(s): Petition for Writ of Certiorari; On Appeal; Motion to Dismiss; Motion to Dismiss for Failure to State a Claim; Motion for Summary Judgment; Motion for Preliminary Injunction.
*1896 Syllabus*
**1 In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to

Department of Homeland Security v. Regents of the..., 140 S.Ct. 1891 (2020) 2020 WL 3271746, 207 L.Ed.2d 353, 20 Cal. Daily Op. Serv. 5524...

apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.
Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and the litigation then continued in the District Court.
In June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal.
Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in

NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale.
**2 The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari before judgment. Following the Ninth Circuit affirmance in Regents, this Court granted certiorari.
Held: The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affirmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affirmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded.
908 F. 3d 476, vacated in part and reversed in part; No. 18–588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded.
THE CHIEF JUSTICE delivered the opinion of the Court, except as to Part IV, concluding:
1. DHS’s rescission decision is reviewable under the APA and is within this Court’s jurisdiction. Pp. 1905 – 1908.
(a) The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U.S. 821, 831–832, 105 S.Ct. 1649, 84 L.Ed.2d 714. The Government contends that

2

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DACA is a general non-enforcement policy equivalent to the individual non-enforcement decision in Chaney. But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA’s creation—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832, 105 S.Ct. 1649. In addition, by virtue of receiving deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest “courts often are called upon to protect.” Ibid. DACA’s rescission is thus subject to review under the APA. Pp. 1905 – 1907.
(b) The two jurisdictional provisions of the INA invoked by the Government do not apply. Title 8 U.S.C. § 1252(b)(9), which bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien,” is inapplicable where, as here, the parties do not challenge any removal proceedings. And the rescission is not a decision “to commence proceedings, adjudicate cases, or execute removal orders” within the meaning of § 1252(g). Pp. 1906 – 1908.
2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 1907 – 1915.
(a) In assessing the rescission, the Government urges the Court to consider not just the contemporaneous explanation offered by Acting Secretary Duke but also the additional reasons supplied by Secretary Nielsen nine months later. Judicial review of agency action, however, is limited to “the grounds that the agency invoked when it took the action.” Michigan v. EPA, 576 U.S. 743, 758, 135 S.Ct. 2699, 192 L.Ed.2d 674. If those grounds are inadequate, a court may remand for the agency to offer “a fuller explanation of the agency’s reasoning at the time of the agency action,” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 654, 110 S.Ct. 2668, 110 L.Ed.2d 579 (emphasis added), or to “deal with the problem afresh” by taking new agency action, SEC v. Chenery Corp., 332 U.S. 194, 201, 67 S.Ct. 1760, 91 L.Ed. 1995. Because Secretary Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible “post hoc rationalization.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136. The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply

convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation. Pp. 1907 – 1910.
**3 (b) Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although Duke was bound by the Attorney General’s determination that DACA is illegal, see 8 U.S.C. § 1103(a)(1), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. 463 U.S. 29, 51, 103 S.Ct. 2856, 77 L.Ed.2d 443. While DHS was not required to “consider all policy alternatives,” ibid., deferred action was “within the ambit of the existing” policy, ibid.; indeed, it was the centerpiece of the policy. In failing to consider the option to retain deferred action, Duke “failed to supply the requisite ‘reasoned analysis.’ ” Id., at 57, 103 S.Ct. 2856.
That omission alone renders Duke’s decision arbitrary and capricious, but it was not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25. Certain features of the DACA policy may affect the strength of any reliance interests, but those features are for the agency to consider in the first instance. DHS has flexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not required to

3

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pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious. Pp. 1909 – 1915.
THE CHIEF JUSTICE, joined by Justice GINSBURG, Justice Breyer, and Justice KAGAN, concluded in Part IV that respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. Pp. 1915 – 1916.
ROBERTS, C.J., delivered the opinion of the Court, except as to Part IV. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SOTOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Attorneys and Law Firms
Noel J. Francisco, Solicitor General, Department of Justice, Washington, DC, for Petitioners.
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney, General, Jeffrey B. Wall, Deputy Solicitor General, Hashim M. Mooppan, Deputy Assistant Attorney, General, Jonathan Y. Ellis, Assistant to the Solicitor General, Mark B. Stern, Abby C. Wright, Thomas Pulham, Attorneys, Department of Justice, Washington, DC, for Petitioners.
Benjamin M. Eidelson, Cambridge, MA, Lindsay C. Harrison, Ian Heath Gershengorn, Thomas J. Perrelli, Matthew E. Price, Ishan K. Bhabha, Jenner & Block LLP, Washington, DC, for Respondents The Trustees of Princeton University, Microsoft Corporation, and Maria
4

De La Cruz Perales Sanchez.
Joseph M. Sellers, Julie S. Selesnick, Cohen Milstein Sellers, & Toll PLLC, Washington, DC, for Respondents NAACP; American Federation of Teachers, AFL-CIO; and United Food and Commercial Workers International Union, AFL-CIO, CLC.
Bradford M. Berry, NAACP, Baltimore, MD, for Respondent NAACP.
Ramona E. Romero, Wesley Markham, Princeton, NJ, for Respondent The Trustees of Princeton University.
Cynthia L. Randall, Microsoft Corporation, Redmond, WA, for Respondent Microsoft Corporation.
David J. Strom, American Federation, of Teachers, Washington, DC, for Respondent American Federation of Teachers, AFL-CIO.
Peter J. Ford, United Food &, Commercial Workers, International Union, AFL-CIO, CLC, Washington, DC, for Respondent United Food & Commercial Workers International Union, AFL-CIO, CLC.
Xavier Becerra, Attorney General of California, Michael J. Mongan, Solicitor General, Michael L. Newman, Senior Assistant Attorney General, Samuel P. Siegel, Joshua Patashnik, Deputy Solicitors General, Shubhra Shivpuri, James F. Zahradka II, Deputy Attorneys General, San Francisco, CA, Aaron M. Frey, Attorney General of Maine, Susan P. Herman, Deputy Attorney General, Augusta, ME, Brian E. Frosh, Attorney General of Maryland, Steven M. Sullivan, Solicitor General, Leah J. Tulin, Assistant Attorney General, Baltimore, MD, Keith Ellison, Attorney General of Minnesota, Liz Kramer, Solicitor General, Jacob Campion, Assistant Attorney General, St. Paul, MN, for Respondents.
Theodore J. Boutrous, Jr., Ethan D. Dettmer, Jonathan N. Soleimani, Gibson, Dunn & Crutcher LLP, Mark D. Rosenbaum, Judy London, Public Counsel, Los Angeles, CA, Theodore B. Olson, Stuart F. Delery, Matthew S. Rozen, Andrew J. Wilhelm, Suria M. Bahadue, Gibson, Dunn & Crutcher LLP, Washington, DC, for DACA Recipient Respondents in No. 18-587.
Erwin Chemerinsky, University of California, Berkeley School of Law, Berkeley, CA, Laurence H. Tribe, Harvard Law School, Cambridge, MA, Luis Cortes Romero, Immigrant Advocacy & Litigation, Center, PLLC, Kent, WA, Leah M. Litman, University of Michigan, Law School, Ann Arbor, MI, Michael J. Wishnie, Muneer I. Ahmad, Marisol Orihuela, Karen C. Tumlin, Cooperating Attorney, Jerome N. Frank, Legal

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Services Organization, New Haven, CT, Amy S. Taylor, Paige Austin, Brooklyn, NY, Trudy S. Rebert, National Immigration Law Center, Jackson Heights, NY, Araceli Martínez-Olguín, Mayra B. Joachin, National Immigration Law Center, Los Angeles, CA, Scott Foletta, Jackson Heights, NY, for DACA Recipient Respondents and, Make the Road New York in No. 18-589.
Stacey M. Leyton, Altshuler Berzon LLP, San Francisco, CA, for Respondents County of, Santa Clara and Service Employees, International Union Local 521 in, No. 18-587.
James R. Williams, Greta S. Hansen, Laura S. Trice, Marcelo Quiñones, Office Of The County Counsel, County of Santa Clara, San Jose, CA, for Respondent County of, Santa Clara in No. 18-587.
Jeffrey M. Davidson, David Watnick, Covington & Burling LLP, San Francisco, CA, Charles F. Robinson, Margaret Wu, Sonya Sanchez, University of California, Office of the General Counsel, Oakland, CA, Robert A. Long, Lanny A. Breuer, Mark H. Lynch, Alexander A. Berengaut, Megan A. Crowley, Ivano M. Ventresca, Covington & Burling LLP, Washington, DC, for The Regents of the University of California, and Janet Napolitano.
Justin T. Berger, Brian Danitz, Tamarah Prevost, Cotchett, Pitre & McCarthy, LLP, Burlingame, CA, for City of San José.
Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Andrew W. Amend, Assistant Deputy Solicitor General, David S. Frankel, Assistant Solicitor General, New York, NY, for Respondents.
Opinion
Chief Justice ROBERTS delivered the opinion of the Court, except as to Part IV.
*1901 In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.
Five years later, the Attorney General advised DHS to 5

rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.
I
A
**4 In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for “certain young people who were brought to this country as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they “lacked the intent to violate the law,” are “productive” contributors to our society, and “know only this country as home.” Id., at 98a–99a.
“[T]o prevent [these] low priority individuals from being removed from the *1902 United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion[ ] on an individual basis ... by deferring action for a period of two years, subject to renewal.” Id., at 100a. In addition, it directs U.S. Citizenship and Immigration Services (USCIS) to “accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,” id., at 101a, as permitted under regulations long predating DACA’s creation, see 8 CFR § 274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish “economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred action

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recipients are considered “lawfully present” for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR § 1.3(a)(4)(vi); 42 CFR § 417.422(h) (2012).
In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U.S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA recipients.
Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA expansion violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the Executive’s duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States, 86 F.Supp.3d 591, 677–678 (2015).
A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United States, 809 F.3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum reflected an unreviewable exercise of the Government’s enforcement discretion. The Fifth Circuit majority disagreed. It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Id., at 166. From this, the majority concluded that the creation of the DAPA program was not an unreviewable action “committed to agency discretion by law.” Id., at 169 (quoting 5 U.S.C. § 701(a)(2)).
**5 The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA

required DAPA to be set aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designations allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work authorization, 809 F.3d at 179–181, 186 (internal *1903 quotation marks omitted). Judge King dissented.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas, 579 U.S. ––––, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (per curiam). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined.
Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities.
Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should rescind” DACA as well. App. 877. Citing the Fifth Circuit’s opinion and this Court’s equally divided affirmance, the Attorney General concluded that DACA shared the “same legal ... defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id., at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on DHS,” the Attorney General urged DHS to “consider an orderly and efficient wind-down process.” Ibid.
The next day, Duke acted on the Attorney General’s advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter. App. to Pet. for Cert. 111a–117a. “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.” Id., at 117a.
Duke then detailed how the program would be wound down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within six months. For all other DACA recipients, previously issued grants of deferred action and work authorization would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a–118a.

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B
Within days of Acting Secretary Duke’s rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U.S. District Courts for the Northern District of California (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.1
**6 All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.2 In doing so, each court rejected *1904 the Government’s threshold arguments that the claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F.Supp.3d 209, 223–224, 234–235 (DDC 2018); 279 F.Supp.3d 1011, 1029–1033 (ND Cal. 2018); 295 F.Supp.3d 127, 150, 153–154 (EDNY 2017).
In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F.Supp.3d 1304, 1315 (ND Cal. 2018); 291 F.Supp.3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to “renew their enrollments.” 279 F.Supp.3d at 1048; see 279 F.Supp.3d 401, 437 (EDNY 2018).
In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.” 298 F.Supp.3d at 243. The District Court stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.”
7

Id., at 245.
Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, “[h]aving considered the Duke memorandum,” she “decline[d] to disturb” the rescission. Id., at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke’s memorandum, identifying three reasons why, in Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” Ibid. First, she reiterated that, “as the Attorney General concluded, the DACA policy was contrary to law.” Id., at 122a. Second, she added that, regardless, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questionable” policies. Id., at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on “a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws would be enforced against all classes and categories of aliens. Id., at 123a–124a. In her final paragraph, Secretary Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the other reasons” for the rescission discussed in her memorandum. Id., at 125a.
**7 The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court’s view, the new memorandum, which *1905 “fail[ed] to elaborate meaningfully” on the agency’s illegality rationale, still did not provide an adequate explanation for the September 2017 rescission. 315 F.Supp.3d 457, 460, 473–474 (2018).
The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pending, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F.3d 476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for argument. 588 U.S. ––––, 139 S.Ct. 2779, 204 L.Ed.2d 1156 (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim.

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II
The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.
The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U.S. 743, 750, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U.S.C. § 706(2)(A). Under this “narrow standard of review, ... a court is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction.
A
The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’ ” Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (quoting § 702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review, § 701(a)(1), or that the “agency action is committed to agency discretion by law,” § 701(a)(2). The latter exception is at issue here.
To “honor the presumption of review, we have read the 8

exception in § 701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U.S. ––––, ––––, 139 S.Ct. 361, 370, 202 L.Ed.2d 269 (2018), confining it to those rare “administrative decision[s] traditionally left to agency discretion,” Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993). This limited category of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v. Chaney, 470 U.S. 821, 831–832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and it is on that exception that the Government primarily relies.
**8 *1906 In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA’s denial of that petition was presumptively unreviewable in light of the well-established “tradition” that “an agency’s decision not to prosecute or enforce” is “generally committed to an agency’s absolute discretion.” Id., at 831, 105 S.Ct. 1649. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision “often involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” such as “whether the particular enforcement action requested best fits the agency’s overall policies.” Ibid. The decision also mirrors, “to some extent,” a prosecutor’s decision not to indict, which has “long been regarded as the special province of the Executive Branch.” Id., at 832, 105 S.Ct. 1649. And, as a practical matter, “when an agency refuses to act” there is no action to “provide[ ] a focus for judicial review.” Ibid.
The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable.
But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid. Instead, it directed

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USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” Id., at 117a. And the result of these adjudications—DHS’s decision to “grant deferred action,” Brief for Petitioners 45—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” Chaney, 470 U.S. at 831–832, 105 S.Ct. 1649. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832, 105 S.Ct. 1649.
The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra, at 1901. Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” Chaney, 470 U.S. at 832, 105 S.Ct. 1649. See also Barnhart v. Thomas, 540 U.S. 20, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (reviewing *1907 eligibility determination for Social Security benefits).
Because the DACA program is more than a non-enforcement policy, its rescission is subject to review under the APA.
B
The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies.
Section 1252(b)(9) bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien.” 66 Stat. 209, as amended, 8 U.S.C. § 1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, § 1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision
9

... to seek removal,” or “the process by which ... removability will be determined.” Jennings v. Rodriguez, 583 U.S. ––––, –––– – ––––, 138 S.Ct. 830, 841, 200 L.Ed.2d 122 (2018) (plurality opinion); id., at ––––, 138 S.Ct., at 875–876 (BREYER, J., dissenting). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.
**9 Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders.” § 1252(g). We have previously rejected as “implausible” the Government’s suggestion that § 1252(g) covers “all claims arising from deportation proceedings” or imposes “a general jurisdictional limitation.” Reno v. American-Arab Anti–Discrimination Comm., 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a removal order.
With these preliminary arguments out of the way, we proceed to the merits.
III
A
Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” 298 F.Supp.3d at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security—the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine

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months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke.
It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan, 576 U.S. at 758, 135 S.Ct. 2699. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of the agency action.” *1908 Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 654, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (emphasis added). See also Alpharma, Inc. v. Leavitt, 460 F.3d 1, 5–6 (CADC 2006) (Garland, J.) (permitting an agency to provide an “amplified articulation” of a prior “conclusory” observation (internal quotation marks omitted)). This route has important limitations. When an agency’s initial explanation “indicate[s] the determinative reason for the final action taken,” the agency may elaborate later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam). Alternatively, the agency can “deal with the problem afresh” by taking new agency action. SEC v. Chenery Corp., 332 U.S. 194, 201, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (Chenery II). An agency taking this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action.
The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new decision, she “decline[d] to disturb the Duke memorandum’s rescission” and instead “provide[d] further explanation” for that action. App. to Pet. for Cert. 121a. Indeed, the Government’s subsequent request for reconsideration described the Nielsen Memorandum as “additional explanation for [Duke’s] decision” and asked the District Court to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” Motion to Revise Order in No. 17–cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of Justice KAVANAUGH in dissent, post, at 1933 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing a new policy.
**10 Because Secretary Nielsen chose to elaborate on the reasons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to ensure that the rescission is not upheld on

the basis of impermissible “post hoc rationalization.” Overton Park, 401 U.S. at 420, 91 S.Ct. 814. But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal.
Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort.
The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-by-case decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points *1909 included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.
The Government, echoed by Justice KAVANAUGH, protests that requiring a new decision before considering Nielsen’s new justifications would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766, n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (plurality opinion). See also post, at 1934. Procedural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes “agency accountability,” Bowen v. American Hospital Assn., 476 U.S. 610, 643, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986), by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confidence that the reasons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (internal quotation marks omitted). Permitting agencies to invoke

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belated justifications, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation.
Justice KAVANAUGH asserts that this “foundational principle of administrative law,” Michigan, 576 U.S. at 758, 135 S.Ct. 2699, actually limits only what lawyers may argue, not what agencies may do. Post, at 1934. While it is true that the Court has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc rationalizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 539, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (“[T]he post hoc rationalizations of the agency ... cannot serve as a sufficient predicate for agency action.”); Overton Park, 401 U.S. at 419, 91 S.Ct. 814 (rejecting “litigation affidavits” from agency officials as “merely ‘post hoc’ rationalizations”).3
**11 Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This *1910 is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.
B
We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission
11

was succinct: “Taking into consideration” the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” App. to Pet. for Cert. 117a.4
Respondents maintain that this explanation is deficient for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful, and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority—she was bound by the Attorney General’s legal determination.
The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8 U.S.C. § 1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewability sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they discuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking the Attorney General’s legal conclusion.
Because of these gaps in respondents’ briefing, we do not evaluate the claims challenging the explanation and correctness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Secretary Duke “failed to consider ... important aspect[s] of the problem” before her. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.

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**12 Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions on eight transition issues). *1911 Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid.
But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. The Attorney General concluded that “the DACA policy has the same legal ... defects that the courts recognized as to DAPA.” App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secretary’s decision” to grant “eligibility for benefits”—including work authorization, Social Security, and Medicare—to unauthorized aliens on “a class-wide basis.” Texas, 809 F.3d at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of § 1252(g)); id., at 166 (reviewability); id., at 176–177 (notice and comment); id., at 184 (substantive APA). And the Court ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work authorization and public benefits. Id., at 181–182 (internal quotation marks omitted).5
But there is more to DAPA (and DACA) than such benefits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the “challenged portion of DAPA’s deferred-action program” was the decision to make DAPA recipients eligible for benefits. See Texas, 809 F.3d at 168, and n. 108. The other “[p]art of DAPA,” the court noted, “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deem[ed] to be low-priority illegal aliens.” Id., at 166. Borrowing from this Court’s prior description of deferred action, the Fifth Circuit observed that “the states do not challenge the Secretary’s decision to ‘decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.’ ” Id., at 168 (quoting Reno, 525 U.S. at 484, 119 S.Ct. 936). And the Fifth Circuit underscored that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary’s class-based “enforcement priorities.” Texas,

809 F.3d at 166, 169. In other words, the Secretary’s forbearance authority was unimpaired.
**13 Acting Secretary Duke recognized that the Fifth Circuit’s holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit concluded that DAPA “conflicted with the discretion authorized by Congress” because the INA “ ‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby *1912 make them newly eligible for a host of federal and state benefits, including work authorization.’ ” App. to Pet. for Cert. 114a (quoting Texas, 809 F.3d at 184). Duke did not characterize the opinion as one about forbearance.
In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U.S.C. § 202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.
That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U.S. at 37–38, 46, 103 S.Ct. 2856. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38, 103 S.Ct. 2856.
We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only “disallow[ing] compliance by means of ” automatic seatbelts. Id., at 47, 103 S.Ct. 2856. It did “not cast doubt” on the “efficacy of airbag technology” or upon “the need for a passive restraint standard.” Ibid. Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory passive restraint rule [could] not be abandoned without any consideration whatsoever of an

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airbags-only requirement.” Id., at 51, 103 S.Ct. 2856.
While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. Id., at 47, 103 S.Ct. 2856. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm, 463 U.S. at 51, 103 S.Ct. 2856.6
**14 *1913 The Government acknowledges that “[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists, however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.
The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post, at 1929 – 1930, n. 14 (opinion of THOMAS, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 1929. The dissent instead rests on the Attorney General’s legal determination—which considered only benefits—“to supply the ‘reasoned analysis’ ” to support rescission of both benefits and forbearance. Post, at 1930 (quoting State Farm, 463 U.S. at 42, 103 S.Ct. 2856 ). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].” Id., at 51, 103 S.Ct. 2856. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856.

That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’ ” Encino Motorcars, LLC v. Navarro, 579 U.S. ––––, ––––, 136 S.Ct. 2117, 2126, 195 L.Ed.2d 382 (2016) (quoting Fox Television, 556 U.S. at 515, 129 S.Ct. 1800). “It would be arbitrary and capricious to ignore such matters.” Id., at 515, 129 S.Ct. 1800. Yet that is what the Duke Memorandum did.
For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and provided benefits only in two-year increments. Reply Brief 16–17; App. to Pet. for Cert. 125a. See also post, at 1930 – 1931 (opinion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to *1914 normal APA review. There was no such consideration in the Duke Memorandum.
Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The consequences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at 41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143 Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion). In addition, excluding DACA recipients from the lawful

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labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid.
**15 These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.
DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” App. to Pet. for Cert. 116a–118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be “another exercise of unlawful power,” post, at 1930 (opinion of THOMAS, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a.
Had Duke considered reliance interests, she might, for example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommodating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say, graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.
To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its]

decision.” *1915 State Farm, 463 U.S. at 51, 103 S.Ct. 2856. Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). But, because DHS was “not writing on a blank slate,” post, at 1929, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.
The lead dissent sees all the foregoing differently. In its view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that result. See post, at 1928 – 1930 (opinion of THOMAS, J.).
The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination. See post, at 1928. But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.
IV
Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment.
**16 The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab Anti-Discrimination Committee. See 525 U.S. at 488, 119 S.Ct. 936 (holding that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation”). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient.

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To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268, 97 S.Ct. 555. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec. 2018), https://www.dhs.gov/sites/default/files/publications/18_12 14_PLCY_pops-est-report.pdf. *1916 Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as recently as three months before the rescission,” 908 F.3d at 519 (quoting 298 F.Supp.3d at 1315), referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F.3d at 519. It was a natural response to a newly identified problem.
Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F.Supp.3d at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory

intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights, 429 U.S. at 268, 97 S.Ct. 555. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.
* * *
**17 We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U.S. at 207, 67 S.Ct. 1760. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.
The judgment in NAACP, No. 18–588, is affirmed.7 The judgment in Regents, No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice SOTOMAYOR, concurring in part, concurring in the judgment in part, and dissenting in part.
The majority rightly holds that the Department of Homeland Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood *1917 Arrivals (DACA) program. But the Court forecloses any challenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand.

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Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. 908 F.3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F.Supp.3d 260, 274 (EDNY 2018).
I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either singly or in concert, establishes a plausible equal protection claim.” Ante, at 1915. But it reaches that conclusion by discounting some allegations altogether and by narrowly viewing the rest.
First, the plurality dismisses the statements that President Trump made both before and after he assumed office. The Batalla Vidal complaints catalog then-candidate Trump’s declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, [and] rapists.” 291 F.Supp.3d at 276 (internal quotation marks omitted). The Regents complaints additionally quote President Trump’s 2017 statement comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” 298 F.Supp.3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted). The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.” Ante, at 1916.
**18 But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, 585 U.S. ––––, ––––, n. 3, 138 S.Ct. 2392, 2438, n.3, 201 L.Ed.2d 775 (2018) (SOTOMAYOR, J., dissenting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017), which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President’s campaign statements about Muslims). Taken together, “the words of the President”

help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” 585 U.S., at ––––, 138 S.Ct., at 2440 (opinion of SOTOMAYOR, J.). This perception provides respondents with grounds to litigate their equal protection claims further.
Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. Ante, at 1916 (“Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection *1918 grounds”). But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.
Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision ... made and the rationale ... provided.” Department of Commerce v. New York, 588 U.S. ––––, ––––, 139 S.Ct. 2551, 2575, 204 L.Ed.2d 978 (2019). Only by bypassing context does the plurality conclude otherwise.
* * *
The facts in respondents’ complaints create more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Whether they ultimately amount to actionable discrimination should be determined only after factual development on remand. Because the Court prematurely disposes of respondents’ equal protection claims by overlooking the strength of their complaints, I join all but Part IV of the opinion and do not concur in the corresponding part of the judgment.

16

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Justice THOMAS, with whom Justice ALITO and Justice GORSUCH join, concurring in the judgment in part and dissenting in part.
Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as Deferred Action for Childhood Arrivals (DACA). The three-page DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Acting Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.
**19 Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case.
DHS created DACA during the Obama administration without any statutory authorization and without going through the *1919 requisite rulemaking process. As a result, the program was unlawful from its inception. The majority does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capricious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s determination of illegality is sound, our review should be at an end.
Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than
17

where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.
Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part.1
I
A
In 2012, after more than two dozen attempts by Congress to grant lawful status to aliens who were brought to this country as children,2 the then-Secretary of Homeland Security Janet Napolitano announced, by memorandum, a new “prosecutorial discretion” policy known as DACA. App. to Pet. for Cert. in No. 18–587, p. 97a. The memorandum directed immigration enforcement officers not to remove “certain *1920 young people who were brought to this country as children” that met delineated criteria. Id., at 97a–98a. In the Secretary’s view, the program was consistent with “the framework of the existing law.” Id., at 101a.
**20 DACA granted a renewable 2-year period of “deferred action” that made approximately 1.7 million otherwise removable aliens eligible to remain in this country temporarily.3 By granting deferred action, the memorandum also made recipients eligible for certain state and federal benefits, including Medicare and Social Security. See 8 U.S.C. §§ 1611(b)(2)–(4); 8 CFR §

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1.3(a)(4)(vi) (2020); 45 CFR § 152.2(4)(vi) (2019). In addition, deferred action enabled the recipients to seek work authorization. 8 U.S.C. § 1324a(h)(3)(B); 8 CFR § 274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101a.
In 2014, then-Secretary of Homeland Security Jeh Johnson broadened the deferred-action program in yet another brief memorandum. This 2014 memorandum expanded DACA eligibility by extending the deferred-action period to three years and by relaxing other criteria. It also implemented a related program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA allowed unlawfully present parents to obtain deferred action derivatively through their children who were either citizens or lawful permanent residents. Approximately 4.3 million aliens qualified for DAPA and, as with DACA, these individuals would have become eligible for certain federal and state benefits upon the approval of their DAPA applications. See Texas v. United States, 809 F.3d 134, 181 (CA5 2015). Nevertheless, the 2014 memorandum repeated the incongruous assertion that these programs “d[id] not confer any form of legal status in this country” and added that deferred action “may be terminated at any time at the agency’s discretion.” App. to Pet. for Cert. in No. 18–587, at 104a.
B
Twenty-six States filed suit to enjoin the implementation of these new programs, DAPA and “expanded DACA,” maintaining that they violated the Constitution, the Administrative Procedure Act (APA), and the Immigration and Naturalization Act (INA). The States contended that, because the 2014 memorandum allowed aliens to receive deferred action and other benefits, it amounted to a legislative rule that had to comply with the APA’s notice and comment procedures. The States also argued that DHS’ decision to recategorize an entire class of aliens from “unlawfully present” to “lawfully present” exceeded its statutory authority under the federal immigration laws. According to the States, these defects rendered the 2014 memorandum arbitrary, capricious, or otherwise not in accordance with law.
18

The District Court preliminarily enjoined DAPA and expanded DACA. The Fifth Circuit affirmed, rejecting DHS’ claim that the programs were an exercise of prosecutorial discretion. Texas, 809 F.3d at 167, 188. The court concluded that the States were likely to succeed on their claim that the 2014 memorandum was a legislative rule that had to be adopted through notice and comment rulemaking. *1921 Id., at 171–178. The court further concluded that the 2014 memorandum was “substantively contrary to law” because the INA did not grant DHS the statutory authority to implement either program. Id., at 170, 178–186.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote. United States v. Texas, 579 U.S. ––––, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016) (per curiam).
C
The 2014 memorandum was rescinded on June 15, 2017, before taking effect. Shortly after that rescission, several of the plaintiff States sent a letter to then-Attorney General Jefferson Sessions III. They contended that the 2012 DACA memorandum was also legally defective because, “just like DAPA, DACA unilaterally confers eligibility for ... lawful presence without any statutory authorization from Congress.” App. 873. The States wrote that they would amend their complaint to challenge DACA if the administration did not rescind the 2012 memorandum creating DACA by September 5, 2017.
**21 On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine Duke, advising her to rescind DACA. Sessions stated that, in his legal opinion, DACA took effect “through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id., at 877. The letter also stated that DACA was infected with the “same legal ... defects that the courts recognized as to DAPA,” id., at 878, and thus DACA would likely be enjoined as well.
Then-Acting Secretary Duke rescinded DACA the next

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day, also through a memorandum. Her memorandum began by noting that DACA “purported to use deferred action ... to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conflicted with the discretion authorized by Congress” because “the [INA] flatly does not permit the reclassification of millions of illegal aliens as lawfully present.” Id., at 114a (internal quotation marks omitted). Finally, the memorandum accepted then-Attorney General Sessions’ legal determination that DACA was unlawful for the same reasons as DAPA. See § 1103(a)(1). In light of the legal conclusions reached by the Fifth Circuit and the Attorney General, then-Acting Secretary Duke set forth the procedures for winding down DACA.
These three cases soon followed. In each, respondents claimed, among other things, that DACA’s rescission was arbitrary and capricious under the APA. Two District Courts granted a preliminary nationwide injunction, while the third vacated the rescission.
II

Anti-Discrimination Comm., 525 U.S. 471, 484, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (internal quotation marks omitted). Under other regulations, recipients of deferred action are deemed lawfully present for purposes of certain federal benefits. See supra, at 1919. Thus, DACA in effect created a new exception to the statutory provisions governing removability and, in the process, conferred lawful presence on an entire class of aliens.
To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify removable DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures. No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful.
**22 This conclusion should begin and end our review. The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.

“ ‘[A]n agency literally has no power to act ... unless and until Congress confers power upon it.’ ” Arlington v. FCC, 569 U.S. 290, 317, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013) (ROBERTS, C.J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986)). When an agency exercises power beyond the bounds of its authority, it acts unlawfully. See, e.g., SAS Institute Inc. v. Iancu, 584 U.S. ––––, ––––, n., 138 S.Ct. 1348, 1358, n., 200 L.Ed.2d 695 (2018). The 2012 memorandum *1922 creating DACA provides a poignant illustration of ultra vires agency action.
DACA alters how the immigration laws apply to a certain class of aliens. “DACA [recipients] primarily entered the country either by overstaying a visa or by entering without inspection, and the INA instructs that aliens in both classes are removable.” Texas v. United States, 328 F.Supp.3d 662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its recipients deferred action, i.e., a decision to “decline to institute [removal] proceedings, terminate [removal] proceedings, or decline to institute a final order of [removal].” Reno v. American-Arab
19

A
Congress has not authorized DHS to reclassify an entire class of removable aliens as lawfully present or to categorically exempt aliens from statutory removal provisions.
1
I begin with lawful presence. As just stated, nothing in the federal immigration laws expressly delegates to DHS the unfettered discretion to create new categories of lawfully present aliens. And, there is no basis for concluding that Congress implicitly delegated to DHS the power to

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reclassify categories of aliens as lawfully present. The immigration statutes provide numerous ways to obtain lawful presence, both temporary and permanent. The highly detailed nature of these provisions indicates that Congress has exhaustively provided for all of the ways that it thought lawful presence should be obtainable, leaving no discretion to DHS to add new pathways.
For example, federal immigration laws provide over 60 temporary nonimmigrant visa options, including visas for ambassadors, full-time students and their spouses and children, those engaged to marry a United States citizen within 90 days of arrival, athletes and performers, and aliens with specialized knowledge related to their employers. See §§ 1101(a)(15)(A)–(V), 1184; 8 CFR § 214.1; see also Congressional Research Service, J. Wilson, Nonimmigrant and Immigrant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” into the United States “for urgent humanitarian reasons or [a] significant public benefit,” *1923 8 U.S.C. § 1182(d)(5)(A); provide for temporary protected status when the Attorney General finds that removal to a country with an ongoing armed conflict “would pose a serious threat to [an alien’s] personal safety,” § 1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consultation with the Secretary of State) to waive visa requirements for certain aliens for up to 90 days, §§ 1187(a)–(d).
The immigration laws are equally complex and detailed when it comes to obtaining lawful permanent residence. Congress has expressly specified numerous avenues for obtaining an immigrant visa, which aliens may then use to become lawful permanent residents. §§ 1201, 1255(a). Among other categories, immigrant visas are available to specified family-sponsored aliens, aliens with advanced degrees or exceptional abilities, certain types of skilled and unskilled workers, “special immigrants,” and those entering the country to “engag[e] in a new commercial enterprise.” §§ 1153(a)–(b), 1154; see also Congressional Research Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful permanent residence under certain conditions, § 1159; 8 CFR §§ 209.1, 209.2.4 As with temporary lawful presence, each avenue to lawful permanent residence status has its own set of rules and exceptions.5
**23 As the Fifth Circuit held in the DAPA litigation, a conclusion with which then-Attorney General Sessions agreed, “specific and detailed provisions[ of] the INA expressly and carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.”
20

Texas, 809 F.3d at 179. In light of this elaborate statutory scheme, the lack of any similar provision for DACA recipients convincingly establishes that Congress left DHS with no discretion to create an additional class of aliens eligible for lawful presence. Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful presence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the agency to fill in the lion’s share of the details, Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), Congress put in place intricate specifications governing eligibility for lawful presence. This comprehensive scheme indicates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memorandum. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (An agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted” (internal quotation marks omitted)); see also ETSI Pipeline Project v. Missouri, 484 U.S. 495, 509–510, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988).
2
The relief that Congress has extended to removable aliens likewise confirms that DACA exceeds DHS’ delegated authority. *1924 Through deferred action, DACA grants temporary relief to removable aliens on a programmatic scale. See Texas, 328 F.Supp.3d at 714. But as with lawful presence, Congress did not expressly grant DHS the authority to create categorical exceptions to the statute’s removal requirements. And again, as with lawful presence, the intricate level of detail in the federal immigration laws regarding relief from removal indicates that DHS has no discretionary authority to supplement that relief with an entirely new programmatic exemption.
At the outset, Congress clearly knows how to provide for classwide deferred action when it wishes to do so. On multiple occasions, Congress has used express language to make certain classes of individuals eligible for deferred action. See 8 U.S.C. §§ 1154(a)(1)(D)(i)(II), (IV) (certain individuals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1522 (“ ‘Any individual described in subclause (I) is

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eligible for deferred action’ ”); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, § 423(b), 115 Stat. 361 (“Such spouse, child, son, or daughter may be eligible for deferred action”); National Defense Authorization Act for Fiscal Year 2004, §§ 1703(c)(1)(A), (2), 117 Stat. 1694–1695 (“Such spouse or child shall be eligible for deferred action”).6 Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws contain no indication that DHS can, at will, create its own categorical policies for deferred action.
Other provisions pertaining to relief from removal further demonstrate that DHS lacked the delegated authority to create DACA. As with lawful presence, Congress has provided a plethora of methods by which aliens may seek relief from removal. For instance, both permanent and temporary residents can seek cancellation of removal if they meet certain residency requirements and have not committed certain crimes. §§ 1229b(a)–(b). And certain nonpermanent residents may have their status adjusted to permanent residence during these proceedings. § 1229b(b)(2). Aliens can apply for asylum or withholding of removal during removal proceedings unless they have committed certain crimes. §§ 1158, 1231(b)(3). Applicants for certain nonimmigrant visas may be granted a stay of removal until the visa application is adjudicated. § 1227(d). And, aliens may voluntarily depart rather than be subject to an order of removal. § 1229c.
**24 In sum, like lawful presence, Congress has provided for relief from removal in specific and complex ways. This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discretion *1925 to DHS to provide additional programmatic forms of relief.7
3
Finally, DHS could not appeal to general grants of authority, such as the Secretary’s ability to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” § 1103(a)(3), or to “[e]stablis[h] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5). See also 8 U.S.C. § 1103(g)(2). Because we must interpret the statutes “as a symmetrical and coherent
21

regulatory scheme,” Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), these grants of authority must be read alongside the express limits contained within the statute. Basing the Secretary’s ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory scheme by “allow[ing the Secretary of DHS] to grant lawful presence ... to any illegal alien in the United States.” Texas, 809 F.3d at 184. Not only is this “an untenable position in light of the INA’s intricate system,” ibid., but it would also render many of those provisions wholly superfluous due to DHS’ authority to disregard them at will, Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). And in addition to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of the presumption that “Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). And it would also conflict with the major questions doctrine, which is based on the expectation that Congress speaks clearly when it delegates the power to make “decisions of vast economic and political significance.” Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) (UARG) (internal quotation marks omitted); see also Texas, 787 F.3d at 760–761.
Read together, the detailed statutory provisions governing temporary and lawful permanent resident status, relief from removal, and classwide deferred-action programs lead ineluctably to the conclusion that DACA is “inconsisten[t] with the design and structure of the statute as a whole.” University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338, 353, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). As the District Court stated in the DAPA litigation and as then-Attorney General Sessions agreed, “[i]nstead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence ... to individuals Congress has deemed deportable or removable.” Texas v. United States, 86 F.Supp.3d 591, 654 (SD Tex. 2015). The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as “alien entrepreneurs,” § 1186b, is simultaneously capacious enough for DHS to *1926 grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary’s pen.

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B
**25 Then-Attorney General Sessions concluded that the initial DACA program suffered from the “same legal ... defects” as DAPA and expanded DACA, finding that, like those programs, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but it is also dispositive for purposes of our review. “It is axiomatic that an administrative agency’s power ... is limited to the authority granted by Congress.” Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its rescission.
The majority opts for a different path, all but ignoring DACA’s substantive legal defect. See ante, at 1910 – 1911. On the majority’s understanding of APA review, DHS was required to provide additional policy justifications in order to rescind an action that it had no authority to take. This rule “has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court’s opinion.” Massachusetts v. EPA, 549 U.S. 497, 536, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (ROBERTS, C.J., dissenting).
The lack of support for the majority’s position is hardly surprising in light of our Constitution’s separation of powers. No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio. Cf. Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998); INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); see also EPA v. EME Homer City Generation, L. P., 572 U.S. 489, 542, n. 5, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U.S. 440, 487, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (Kennedy, J., concurring in judgment). In reviewing agency action, our role is to ensure that Executive Branch officials do not transgress the proper bounds of their authority, Arlington, 569 U.S. at 327, 133 S.Ct. 1863 (ROBERTS, C.J., dissenting), not to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute’s clear limits, see UARG, 573 U.S. at 327–328, 134 S.Ct. 2427; Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002).
22

Under our precedents, DHS can only exercise the authority that Congress has chosen to delegate to it. See UARG, 573 U.S. at 327, 134 S.Ct. 2427. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward.
III
The majority’s demanding review of DHS’ decisionmaking process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decisionmaking. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely provides an independent basis for rescinding DACA. But at the very least, this *1927 procedural defect compounds the absurdity of the majority’s position in these cases.
As described above, DACA fundamentally altered the immigration laws. It created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence. Both changes contravened statutory limits. DACA is thus what is commonly called a substantive or legislative rule.8 As the name implies, our precedents state that legislative rules are those that “have the force and effect of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (internal quotation marks omitted).
**26 Our precedents allow the vast majority of legislative rules to proceed through so-called “informal” notice and comment rulemaking. See United States v. Florida East Coast R. Co., 410 U.S. 224, 237–238, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973).9 But under our precedents, an agency must engage in certain procedures mandated by the APA before its rule carries legal force. Kisor v. Wilkie, 588 U.S. ––––, ––––, 139 S.Ct. 2400, 2420, 204 L.Ed.2d 841 (2019) (plurality opinion) (“[A] legislative rule, ... to be valid[,] must go through notice and comment”); id., at ––––, 139 S.Ct., at 2434 (GORSUCH, J., concurring in

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judgment) (same); Perez v. Mortgage Bankers Assn., 575 U.S. 92, 96, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015); cf. Azar v. Allina Health Services, 587 U.S. ––––, ––––, 139 S.Ct. 1804, 1808, 204 L.Ed.2d 139 (2019) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in the Federal Register, justify the rule by reference to legal authority, describe “the subjects and issues involved” in the rule, and allow interested parties to submit comments. 5 U.S.C. §§ 553(b)–(c); see also Kisor, 588 U.S., at ––––, 139 S.Ct., at 2434 (opinion of GORSUCH, J.). As we have recognized recently, use of the word “shall” indicates that these procedures impose mandatory obligations on the agency before it can adopt a valid binding regulation. See Maine Community Health Options v. United States, 590 U.S. ––––, ––––, 140 S.Ct. 1308, 1320, ––– L.Ed.2d –––– (2020). After undergoing notice and comment, the agency then publishes the final rule, which must “articulate a satisfactory explanation for [the] action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor, 588 U.S., at ––––, 139 S.Ct., at 2434 (opinion of GORSUCH, J.).10
Because DACA has the force and effect of law, DHS was required to observe the *1928 procedures set out in the APA if it wanted to promulgate a legislative rule. It is undisputed, however, that DHS did not do so. It provided no opportunity for interested parties to submit comments regarding the effect that the program’s dramatic and very significant change in immigration law would have on various aspects of society. It provided no discussion of economic considerations or national security interests. Nor did it provide any substantial policy justifications for treating young people brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable assertion that DACA was consistent with existing law. Because DHS failed to engage in the statutorily mandated process, DACA never gained status as a legally binding regulation that could impose duties or obligations on third parties. See id., at ––––, 139 S.Ct., at 2420 (plurality opinion); id., at ––––, 139 S.Ct., at 2434 (opinion of GORSUCH, J.).
Given this state of affairs, it is unclear to me why DHS needed to provide any explanation whatsoever when it decided to rescind DACA. Nothing in the APA suggests

that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifications beyond acknowledging that the program was simply unlawful from the beginning. And, it is well established that we do not remand for an agency to correct its reasoning when it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527, 544–545, 128 S.Ct. 2733, 171 L.Ed.2d 607 (2008). Here, remand would be futile, because no amount of policy explanation could cure the fact that DHS lacked statutory authority to enact DACA in the first place.
**27 Instead of recognizing this, the majority now requires the rescinding Department to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA.11 It is also absurd, as evidenced by its application to DACA in these cases. The majority insists that DHS was obligated to discuss its choices regarding benefits and forbearance in great detail, even though no such detailed discussion accompanied DACA’s issuance. And, the majority also requires DHS to discuss reliance interests at length, even though deferred action traditionally does not take reliance interests into account and DHS was not forced to explain its treatment of reliance interests in the first instance by going through notice and comment. See infra, at 1930 – 1931. The majority’s demand for such an explanation here simply makes little sense.
At bottom, of course, none of this matters, because DHS did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than sufficient to justify its rescission.12 By requiring more, the majority has distorted the APA review process beyond recognition, further burdening all future attempts to rescind unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has impermissibly dressed up a legislative rule as a policy statement and must comply *1929 with the relevant procedures before functionally binding regulated parties. See, e.g., Mendoza v. Perez, 754 F.3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA, 643 F.3d 311 (CADC 2011); National Family Planning & Reproductive Health Assn., Inc. v. Sullivan, 979 F.2d 227 (CADC 1992). But going forward, when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be compelled to treat an invalid legislative rule as though it were legitimate.13

23

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IV Even if I were to accept the majority’s premise that DACA’s rescission required additional policy justifications, the majority’s reasons for setting aside the agency’s decision still fail.
A

DHS to restore the rule of law. DHS followed the then-Attorney General’s legal analysis and rescinded the program. This legal conclusion more than suffices to supply the “reasoned analysis” necessary to rescind an unlawful program. State Farm, 463 U.S. at 42, 103 S.Ct. 2856.
The majority has no answer except to suggest that this approach is inconsistent with State Farm. See ante, at 1911 – 1913. But in doing so, the majority ignores the fact that, unlike the typical “prior policy” contemplated by the Court in State Farm, DACA is unlawful. Neither State Farm nor any other decision cited by the majority addresses what an agency must do when it has inherited an unlawful program. It is perhaps for this reason that, rather than responding with authority of its own, the majority simply opts to excise the “unlawful policy” aspect from its discussion.

First, the majority claims that the Fifth Circuit discussed only the legality of the 2014 memorandum’s conferral of benefits, not its “forbearance component”—i.e., the decision not to place DACA recipients into removal proceedings. Ante, at 1911. The majority, therefore, claims that, notwithstanding the then-Attorney General’s legal conclusion, then-Acting Secretary Duke was required to consider revoking DACA recipients’ lawful presence and other attendant benefits while continuing to defer their removal. Ante, at 1912 – 1913. Even assuming the majority correctly characterizes the Fifth Circuit’s opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program.14
**28 *1930 The then-Attorney General reviewed the thorough decisions of the District Court and the Fifth Circuit. Those courts exhaustively examined the INA’s text and structure, the relevant provisions of other federal immigration statutes, the historical practice of deferred action, and the general grants of statutory authority to set immigration policy. Both decisions concluded that DAPA and expanded DACA violated the carefully crafted federal immigration scheme, that such violations could not be justified through reference to past exercises of deferred action, and that the general grants of statutory authority did not give DHS the power to enact such a sweeping nonenforcement program. Based on the reasoning of those decisions, then-Attorney General Sessions concluded that DACA was likewise implemented without statutory authority. He directed
24

B
Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante, at 1913 – 1915. But reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it. Any such decision would be “not in accordance with law” or “in excess of statutory ... authority.” 5 U.S.C. §§ 706(2)(A), (C). Accordingly, DHS would simply be engaging in yet another exercise of unlawful power if it used reliance interests to justify continuing the initially unlawful program, and a court would be obligated to set aside that action.15
Even if reliance interests were sometimes relevant when rescinding an ultra vires action, the rescission still would not be arbitrary and capricious here. Rather, as the majority does not dispute, the rescission is consistent with how deferred action has always worked. As a general matter, deferred action creates no rights—it exists at the Government’s discretion and can be revoked at any time. See App. to Pet. for Cert. in No. 18–587, at 104a (DACA and expanded DACA); 8 CFR § 214.11(j)(3) (T visas); § 214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec. Order No. 12711 for certain citizens of the People’s Republic of China). The Government has

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made clear time and again that, because “deferred action is not an immigration status, no alien has the right to deferred action. It is *1931 used solely in the discretion of the [Government] and confers no protection or benefit upon an alien.” DHS Immigration and Customs Enforcement Office of Detention and Removal, Detention and Deportation Officers’ Field Manual § 20.8 (Mar. 27, 2006); see also Memorandum from D. Meissner, Comm’r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memorandum from W. Yates, Assoc. Director of Operations, DHS, Citizenship and Immigration Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary to the majority’s unsupported assertion, ante, at 1913, this longstanding administrative treatment of deferred action provides strong evidence and authority for the proposition that an agency need not consider reliance interests in this context.16
**29 Finally, it is inconceivable to require DHS to study reliance interests before rescinding DACA considering how the program was previously defended. DHS has made clear since DACA’s inception that it would not consider such reliance interests. Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred action at any time at the agency’s discretion.” Consideration of Deferred Action for Childhood Arrivals Process, 89 Interpreter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact, DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part because deferred action created no rights on which recipients could rely. Before the Fifth Circuit, DHS stated that “DHS may revoke or terminate deferred action and begin removal proceedings at any time at its discretion.” Brief for Appellants in Texas v. United States, No. 1540238, p. 7; see also id., at 45–46. And before this Court, in that same litigation, DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Brief for United States in United States v. Texas, O.T. 2015, No. 15–674, p. 5; see also id., at 37. If that treatment of reliance interests was incorrect, it provides yet one more example of a deficiency in DACA’s issuance, not its rescission.
* * *
President Trump’s Acting Secretary of Homeland Security inherited a program created by President Obama’s Secretary that was implemented without statutory authority and without following the APA’s required procedures. Then-Attorney General Sessions correctly concluded that this ultra vires program should be rescinded. These cases could—and should—have ended
25

with a determination that his legal conclusion was correct.
Instead, the majority today concludes that DHS was required to do far more. Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.
Justice ALITO, concurring in the judgment in part and dissenting in part.
*1932 Anyone interested in the role that the Federal Judiciary now plays in our constitutional system should consider what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.
I join Justice THOMAS’s opinion. DACA presents a delicate political issue, but that is not our business. As Justice THOMAS explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination. But even if DACA were lawful, we would still have no basis for overturning its rescission. First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its rescission represented an exercise of that same discretion, and it would therefore be unreviewable under the Administrative Procedure Act. 5 U.S.C. § 701(a)(2); see Heckler v. Chaney, 470 U.S. 821, 831–832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Second, to the extent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by Justice KAVANAUGH. See post, at 1933 – 1936 (opinion concurring in the judgment in part and dissenting in part).

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Justice KAVANAUGH, concurring in the judgment in part and dissenting in part.
**30 For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.
In 2012, exercising its view of the Executive’s prosecutorial discretion under Article II and the immigration laws, President Obama’s administration unilaterally instituted a program known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, eligible young immigrants may apply for and receive deferred action. They must renew their DACA status every two years. Under the program, the Executive Branch broadly forbears from enforcing certain immigration removal laws against DACA recipients. And by virtue of the forbearance, DACA recipients also become eligible for work authorization and other benefits.
Since 2017, President Trump’s administration has sought to rescind DACA based on its different and narrower understanding of the Executive’s prosecutorial discretion under Article II and the immigration laws. In its view, the Executive Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws against such a large class of individuals. The current *1933 administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would address the legal status of those immigrants together with other significant immigration issues.
The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a
26

policy and resume enforcing the law enacted by Congress. The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint—namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA.
The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that standard is deferential to the agency. The Court may not substitute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard.
**31 But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA’s deferential arbitrary-and-capricious standard is not whether we agree with the Department’s decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch’s action.
The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Procedure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general ...

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applicability and future effect designed to implement ... policy.” 5 U.S.C. § 551(4). Because it is a rule, the Nielsen Memorandum constitutes “agency action.” § 551(13). As the Secretary of Homeland *1934 Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke’s decision to rescind DACA, or to make a different decision. Like Secretary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Courts often consider an agency’s additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency’s bottom-line decision itself does not change.
Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding DACA. Ante, at 1908 – 1909. Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). See, e.g., State Farm, 463 U.S. at 50, 103 S.Ct. 2856 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443–444, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) (same); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168–169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) (same). As the D. C. Circuit has explained, the post hoc justification doctrine “is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule directed at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (2006) (Garland, J.) (internal quotation marks omitted).
Indeed, the ordinary judicial remedy for an agency’s insufficient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc, and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court’s application of the post hoc

justification doctrine today. The Court’s refusal to look at the Nielsen Memorandum seems particularly mistaken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy issues that the Court today says the Department did not consider. Ante, at 1911 – 1915.
**32 To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications may in some circumstances decline to examine an after-the-fact agency explanation. See Camp v. Pitts, 411 U.S. 138, 142–143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419–421, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). But agency adjudications are “concerned with the determination of past and present rights and liabilities,” Attorney General’s Manual on the Administrative Procedure Act 14 (1947), and implicate the due process interests of the individual parties to the adjudication. Judicial review of an adjudication therefore ordinarily focuses on what happened during the agency’s adjudication *1935 process of deciding that individual case.
Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudication,” ibid., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Nielsen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justification doctrine to exclude an agency’s official explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest official explanation was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should consider the Nielsen Memorandum in deciding whether the Department’s rescission of DACA satisfies the APA’s arbitrary-and-capricious standard.
Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. Ante, at 1913 – 1915.1

27

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to the narrow APA question presented here, I appreciate

* * *

the Court’s careful analysis, *1936 but I ultimately

disagree with its treatment of the Nielsen Memorandum. I

**33 The Court’s resolution of this narrow APA issue of

therefore respectfully dissent from the Court’s judgment

course cannot eliminate the broader uncertainty over the

on plaintiffs’ APA claim, and I concur in the judgment

status of the DACA recipients. That uncertainty is a result

insofar as the Court rejects plaintiffs’ equal protection

of Congress’s inability thus far to agree on legislation,

claim.

which in turn has forced successive administrations to

improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come. In

All Citations

contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty

140 S.Ct. 1891, 2020 WL 3271746, 207 L.Ed.2d 353, 20 Cal. Daily Op. Serv. 5524, 2020 Daily Journal D.A.R. 5909, 28 Fla. L. Weekly Fed. S 345

that has persisted for years for these young immigrants

and the Nation’s immigration system. In the meantime, as

Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50

L.Ed. 499.

1

Plaintiffs also raised notice and comment claims, which uniformly failed below, and assorted due process challenges,

some of which survived motions to dismiss. Those claims are not before us.

2

In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary

judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Security, 284 F.Supp.3d

758 (2018). After the Government filed petitions for certiorari in the instant cases, the Fourth Circuit reversed that

decision and vacated Acting Secretary Duke’s rescission as arbitrary and capricious. Casa de Maryland v. United

States Dept. of Homeland Security, 924 F.3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has since

stayed its mandate.

3

Justice KAVANAUGH further argues that the contemporaneous explanation requirement applies only to agency

adjudications, not rulemakings. Post, at 1934 – 1936 (opinion concurring in judgment in part and dissenting in part).

But he cites no authority limiting this basic principle—which the Court regularly articulates in the context of

rulemakings—to adjudications. The Government does not even raise this unheralded argument.

4

The Government contends that Acting Secretary Duke also focused on litigation risk. Although the background

section of her memo references a letter from the Texas Attorney General threatening to challenge DACA, the memo

never asserts that the rescission was intended to avert litigation. And, given the Attorney General’s conclusion that

the policy was unlawful—and thus presumably could not be maintained or defended in its current form—it is

difficult to see how the risk of litigation carried any independent weight.

5

As the Fifth Circuit noted, DAPA recipients were eligible for Social Security and Medicare benefits because they had

been designated “lawfully present.” Texas, 809 F.3d at 168. Lawful presence is a statutory prerequisite for receipt of

certain benefits. See id., at 148 (citing 8 U.S.C. § 1611). It is not the same as forbearance nor does it flow inexorably

from forbearance. Thus, while deferred action recipients have been designated lawfully present for purposes of

Social Security and Medicare eligibility, see 8 CFR § 1.3; 42 CFR § 417.422(h), agencies can also exclude them from

this designation, see 45 CFR § 152.2(8) (2019) (specifying that DACA recipients are not considered lawfully present

for purposes of coverage under the Affordable Care Act).

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6

The three-page memorandum that established DACA is devoted entirely to forbearance, save for one sentence

directing USCIS to “determine whether [DACA recipients] qualify for work authorization.” App. to Pet. for Cert. 101a.

The benefits associated with DACA flow from a separate regulation. See 8 CFR § 1.3(a)(4)(vi); see also 42 CFR §

417.422(h) (cross-referencing 8 CFR § 1.3). Thus, DHS could have addressed the Attorney General’s determination

that such benefits were impermissible under the INA by amending 8 CFR § 1.3 to exclude DACA recipients from

those benefits without rescinding the DACA Memorandum and the forbearance policy it established. But Duke’s

rescission memo shows no cognizance of this possibility.

7

Our affirmance of the NAACP order vacating the rescission makes it unnecessary to examine the propriety of the

nationwide scope of the injunctions issued by the District Courts in Regents and Batalla Vidal.

1

I concur in the judgment insofar as the majority rejects respondents’ equal protection claim.

2

See Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001, H. R. 1582, 107th Cong.,

1st Sess.; Student Adjustment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th Cong., 1st

Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th

Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th

Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C;

American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.;

DREAM Act of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st Sess., Tit. VI,

Subtitle B; Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C;

DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.;

Comprehensive Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V, Subtitle D; DREAM Act of

2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S.

3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497,

111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess.

3

See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From

New Deportation Rules (Aug. 14, 2012).

4

The immigration statutes also provide for conditional lawful permanent residence status. See § 1186a(b)(1)(A)(i)

(two years for spouses to demonstrate that the marriage “was [not] entered into for the purpose of procuring an

alien’s admission as an immigrant”); § 1186b (qualifying business entrepreneurs).

5

For instance, Congress has carved out rules for aliens who served in the Armed Forces, §§ 1438–1440, and alien

spouses who have been subject to domestic abuse, §§ 1186a(c)(4)(C)–(D).

6

In the DAPA litigation, DHS noted that some deferred-action programs have been implemented by the Executive

Branch without explicit legislation. But “ ‘past practice does not, by itself, create [executive] power.’ ” Medellín v.

Texas, 552 U.S. 491, 532, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654,

686, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)). If any of these programs had been challenged, it would seem that they

would be legally infirm for the same reasons as DACA. Moreover, if DHS had the authority to create new categories

of aliens eligible for deferred action, then all of Congress’ deferred-action legislation was but a superfluous exercise.

Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Finally, whereas some deferred-action

programs were followed by legislation, DACA has existed for eight years, and Congress is no closer to a legislative

solution than it was in 2012. See, e.g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong., 1st Sess.

7

It is uncontested that deferred action frequently occurs on a case-by-case basis, often justified on the grounds that

the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exercises of discretion

are permissible, however, we have stated that “[a]n agency confronting resource constraints may change its own

29

Department of Homeland Security v. Regents of the..., 140 S.Ct. 1891 (2020) 2020 WL 3271746, 207 L.Ed.2d 353, 20 Cal. Daily Op. Serv. 5524...

conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U.S. 302, 327, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014).

8

The majority tacitly acknowledges as much, as it must. See ante, at 1906 – 1907. Otherwise, the majority would

have to accept that DACA was nothing more than a policy of prosecutorial discretion, which would make its

rescission unreviewable. See Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

9

As I have previously pointed out, “the APA actually contemplated a much more formal process for most

rulemaking.” Perez v. Mortgage Bankers Assn., 575 U.S. 92, 128, n. 5, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015)

(opinion concurring in judgment).

10 The APA also provides certain exceptions from notice and comment rulemaking. For example, an agency may promulgate a legally binding rule without notice and comment if good cause exists to do so. 5 U.S.C. § 553(b)(B). This text would become a nullity if the agency could achieve the same effect by simply dispensing with notice and comment procedures altogether.

11 Thus, it is not that the APA “should not” be construed to support the majority’s result, ante, at 1914 (emphasis added), it is that the APA does not and cannot support that result.

12 I express no view on what other reasons would justify an agency’s decision to rescind a procedurally unlawful action. I merely point out that correctly concluding that the program was illegal is sufficient.

13 In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See Department of Transportation v. Association of American Railroads, 575 U.S. 43, 77, 135 S.Ct. 1225, 191 L.Ed.2d 153 (2015) (THOMAS, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 708 (1999).

14 The majority’s interpretation of the Fifth Circuit’s opinion is highly questionable. Because a grant of deferred action renders DACA recipients eligible for certain benefits and work authorization, it is far from clear that the Department could separate DACA’s “forbearance component” from the major benefits it conferred without running into yet another APA problem. The majority points to the fact that, under the Patient Protection and Affordable Care Act of 2010, relevant regulations exclude those receiving deferred action through DACA from coverage. Ante, at 1911, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and have received Medicare, Social Security, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority’s rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefits may no longer receive them. Alternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority’s proposed course of action would be subject to serious arbitrary and capricious challenges.

15 The majority contends that this argument does not carry force because the rescission implemented a winddown period during which recipients would continue to receive benefits. But whether DHS’ decision to wind down DACA was lawful is a separate question from whether DHS was required to consider reliance interests before discontinuing an unlawful program.

16 The majority’s approach will make it far more difficult to change deferred-action programs going forward, which is hardly in keeping with this Court’s own understanding that deferred action is an “exercise in administrative

30

Department of Homeland Security v. Regents of the..., 140 S.Ct. 1891 (2020) 2020 WL 3271746, 207 L.Ed.2d 353, 20 Cal. Daily Op. Serv. 5524...

discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). Agencies will likely be less willing to grant deferred action knowing that any attempts to undo it will require years of litigation and time-consuming rulemakings.

1

Because I conclude that the Executive Branch satisfied the APA’s arbitrary-and-capricious standard, I need not

consider whether its prosecutorial enforcement policy was “committed to agency discretion by law” and therefore

not subject to APA arbitrary-and-capricious review in the first place. 5 U.S.C. § 701(a)(2). Several judges have

advanced arguments suggesting that DACA—at least to the extent it was simply an exercise of forbearance

authority—and the repeal of DACA are decisions about whether and to what extent to exercise prosecutorial

discretion against a class of offenses or individuals, and are therefore unreviewable under the APA as “committed to

agency discretion by law.” Ibid.; see Casa De Maryland v. United States Dept. of Homeland Security, 924 F.3d 684,

709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting in part); Regents of Univ. Cal. v. United States

Dept. of Homeland Security, 908 F.3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judgment); see also Texas v.

United States, 809 F.3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States, 787 F.3d 733, 770–776

(CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U.S. 821, 831–835, 105 S.Ct. 1649, 84 L.Ed.2d 714

(1985); ICC v. Locomotive Engineers, 482 U.S. 270, 277–284, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987); United States v.

Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (“the Executive Branch has exclusive authority and

absolute discretion to decide whether to prosecute a case”); In re Aiken County, 725 F.3d 255, 262–264 (CADC

2013).

End of Document

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 Case 1:17-cv-05228-NGG-JO Document 271 Filed 08/28/20 Page 1 of 99 PageID #: 7732

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VERMONT, and VIRGINIA,
Plaintiffs,

CIVIL ACTION NO. 1:17-cv-05228 (NGG) (JO)

v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,

SECOND AMENDED SUPPLEMENTAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants.

INTRODUCTION 1. The States of New York, Massachusetts, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia (the “States”) bring this action to protect the States—including their residents, employers, small governmental jurisdictions, regulatory systems, and educational institutions—against the unlawful actions of the President of the United States and the federal government.

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2. Since 2012, the Deferred Action for Childhood Arrivals (“DACA”) program has protected from deportation and extended work authorization to over 825,000 young people who grew up in this country, most of whom have known no home other than the United States.
3. DACA has allowed these young people to live, study, and work in the States (and throughout the country) as contributors and leaders in their communities. DACA grantees attend public and private universities, and are employed by companies, nonprofit organizations, and governmental agencies and institutions, all of which benefit from their skills and productivity. DACA grantees also provide financial support to their families, help to grow the economy, and contribute significantly to State and local revenues and tax bases.
4. On September 5, 2017, the Defendants definitively and categorically terminated the DACA program, as detailed in a U.S. Department of Homeland Security (“DHS”) Memorandum by former Acting Secretary of Homeland Security Elaine Duke (“2017 DHS Memorandum”). See Ex. 741 (Memorandum from Acting Secretary Elaine Duke to James McCament, Acting Director of U.S. Citizenship and Immigration Services, Rescission of Deferred Action for Childhood Arrivals, September 5, 2017).
5. Ending DACA is a culmination of President’s Trump’s oft-stated commitments— whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage immigrants, especially those with Mexican roots, who make up more than 78 percent of DACA grantees. See Ex. 1 (Updated USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017, June 8, 2017).
1 References to Exs. 1 to 179 in this Second Amended Supplemental Complaint are to the Exhibits docketed on October 4, 2017, at ECF No. 55. References to Exs. 180 and 181 are to the Exhibits appended to this Second Amended Supplemental Complaint and filed on August 27, 2020.
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6. Pursuant to the 2017 DHS Memorandum, the federal government began only to issue renewals for grantees whose benefits expire before March 5, 2018, provided they apply for renewal by October 5, 2018. DHS immediately ceased accepting all new applications under DACA.
7. In 2018, this Court entered a preliminary injunction requiring DHS to continue processing renewal applications. See Batalla Vidal v. Duke, 279 F. Supp. 3d 401 (E.D.N.Y. 2018). The federal government petitioned for certiorari while its appeal was pending before the Second Circuit, and the Supreme Court granted that petition along with the federal government’s petitions for certiorari in parallel litigation in the Ninth Circuit and the U.S. District Court for the District of Columbia.
8. On June 18, 2020, the Supreme Court held that Duke’s 2017 rescission of DACA was arbitrary and capricious under the APA. See Department of Homeland Security v. Regents of Univ. of California (“Regents”), 140 S. Ct. 1891, 1915 (2020). Among other things, the Supreme Court expressly affirmed in full a summary judgment ruling “that DACA’s rescission was unlawful and must be set aside.” NAACP v. Trump, 315 F. Supp. 3d 457, 473 (D.D.C. 2018); see Regents, 140 S. Ct. at 1916 & n.7. Shortly thereafter, the Supreme Court denied the federal government’s petition for certiorari from a Fourth Circuit summary judgment ruling vacating the 2017 rescission of DACA as arbitrary and capricious under the APA. Casa de Md. v. U.S. Dep’t
of Homeland Security, 924 F.3d 684, 706 (4th Cir. 2019), cert. denied, — S.Ct. —, 2020 WL
3492650 (Mem.) (U.S. June 29, 2010) (No. 18-1469). 9. On June 30, 2020, the Fourth Circuit issued the mandate associated with its
summary judgment ruling. Mandate, Casa de Maryland, 18-1521, ECF No. 71 (4th Cir. June 30, 2020). The issuance of that mandate had the effect of vacating the 2017 DACA rescission
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nationwide. See, e.g., New York v. U.S. Dep't of Homeland Sec., No. 19-3591, 2020 WL 4457951, at *31 (2d Cir. Aug. 4, 2020) (describing the effect of a final judgment vacating agency action under the APA).
10. Notwithstanding Regents and the Fourth Circuit’s mandate, DHS did not recommence processing DACA applications but instead “generally held” applications “in anticipation of potential policy changes.” Ex. 180 (Chad F. Wolf, Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” July 28, 2020 (Wolf Memo)).
11. On July 28, 2020, Defendant Chad Wolf—in his capacity as purported Acting Secretary of Homeland Security—issued a memorandum directing DHS to make interim changes to DACA while Wolf considered whether to fully rescind DACA. Id. In particular, the Wolf Memo orders DHS to reject all new initial DACA applications, to change the renewal period for current beneficiaries from two years to one year, and to reject all advance parole applications absent exceptional circumstances. Id. at 7-8.
12. The Wolf Memo purports to apply these changes retroactively to all applications submitted after the June 18, 2020 Regents decision. Ex. 180 at 7 (Wolf Memo).
13. Because Defendant Wolf was improperly serving in the role of Acting Secretary of Homeland Security in violation of the Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3341 et seq., and the Homeland Security Act of 2002, 6 U.S.C. § 111 et seq. (“HSA”), he lacked the authority to issue the memorandum or to direct the changes to DACA pursuant to it. Accordingly, the Wolf Memo is an ultra vires agency action that was void ab initio.
4

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14. The consequence of Defendants’ decisions is that hundreds of thousands of young people who have availed themselves of the program will ultimately lose some or all of its protections, and will be exposed to removal when their authorizations expire.
15. Individuals who have relied on DACA are now even more vulnerable to removal than before the program was initiated, as they turned over sensitive information to the federal government in their applications. Despite the federal government’s repeated promises that it would not use such information to conduct enforcement measures, the 2017 DHS Memorandum and Wolf Memo do not explain how the government will keep that information secure, nor does it provide any assurances that immigration enforcement agents will not use such information to find and remove those who applied for DACA.
16. Terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will harm hundreds of thousands of the States’ residents, injure State-run colleges and universities, upset the States’ workplaces, damage the States’ economies, hurt State-based businesses and nonprofits, negatively affect the States’ small governmental jurisdictions, and disrupt the States’ statutory and regulatory interests.
17. The States respectfully request that the Court invalidate the Wolf Memo and the portions of the 2017 DHS Memorandum challenged here, and vacate any changes effected to the DACA program by the Wolf Memo. Further, the States ask that the Court enjoin the federal government from using personal information gathered for the DACA program in immigration enforcement.
5

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JURISDICTION AND VENUE 18. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 19. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1). Defendants are United States agencies or officers sued in their official capacities. The State of New York is a resident of this judicial district, and a substantial part of the events or omissions giving rise to this Complaint occurred within the Eastern District of New York. 20. The States bring this action to redress harms to their proprietary and sovereign interests and their interests as parens patriae.
PARTIES PLAINTIFFS 21. The Plaintiff States of New York, Massachusetts, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia, represented by and through their Attorneys General, are sovereign states2 of the United States of America. 22. The States are aggrieved and have standing to bring this action because of the injuries to the States caused by the termination of DACA or failure to restore DACA to its preSeptember 5, 2017 status, including immediate and irreparable injuries to their sovereign, quasisovereign, and proprietary interests.
2 The District of Columbia, which is a municipal corporation empowered to sue and be sued, and is the local government for the territory constituting the permanent seat of the federal government of the United States, shall be included herein as a “State” for ease of reference.
6

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DEFENDANTS 23. Defendant Donald Trump is the President of the United States. He is sued in his official capacity. 24. Defendant DHS is a federal cabinet agency responsible for implementing the DACA program. DHS is a Department of the Executive Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 552(f). 25. Defendant United States Citizenship and Immigration Services (“USCIS”) is an Operational and Support Component agency within DHS. USCIS is the sub-agency responsible for administering the DACA program. 26. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an Operational and Support Component agency within DHS. ICE is responsible for enforcing federal immigration law, including identifying, apprehending, detaining, and removing non-citizens. 27. Defendant Chad Wolf is the Acting Secretary of Homeland Security.3 He is responsible for implementing and enforcing the Immigration and Nationality Act, and oversees USCIS and ICE. He is sued in his official capacity. 28. Defendant the United States of America includes all government agencies and departments responsible for the implementation, modification, and termination of the DACA program.
3 Plaintiffs refer to Defendant Wolf by reference to the title DHS has designated for him, without conceding that he is lawfully exercising the powers of that position, as alleged in Plaintiffs’ Ninth Claim for Relief below.
7

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GENERAL ALLEGATIONS Establishment of the DACA Program.
29. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program (the “2012 DACA Memorandum”). See Ex. 13 (2012 DACA Memorandum). Under DACA, “certain young people who were brought to this country as children and know only this country as home” could request deferred action for a period of two years, subject to renewal. Id. at 1-2. DACA grantees also were eligible for work authorizations so that they could work legally in the United States during the deferred action period, pursuant to long-standing federal regulation. See id.; 8 C.F.R. § 274a.12(c)(14) (providing that “an alien who has been granted deferred action” may obtain work authorization upon demonstrating economic necessity).
30. Deferred action is a well-established form of prosecutorial discretion under which the federal government forbears from taking removal action against an individual for a designated period of time. According to the 2012 DACA memorandum, it was appropriate for the government to exercise such discretion for DACA grantees because immigration laws are not “designed to remove productive young people to countries where they may not have lived or even speak the language.” See Ex. 13 at 1.
31. The 2012 DACA Memorandum provided that an applicant could be considered for an exercise of prosecutorial discretion only if he or she:
a. came to the United States before the age of sixteen; b. continuously resided in the United States for at least five years preceding
June 15, 2012, and was present in the United States on that date;
8

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c. was in enrolled in school on the date of his/her application, had graduated from high school, had obtained a general education development certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
d. had not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and did not otherwise pose a threat to national security or public safety; and
e. was not over the age of thirty on June 15, 2012. Id. at 1.
32. USCIS described DACA as follows: “Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.” See Ex. 14, Question 1 (USCIS Help Center, DACA FAQs). The DACA Application Process.
33. Under DACA, “[a]ll individuals who believe[d] they [met] the guidelines” could “affirmatively request consideration of DACA from USCIS” through an established process. After receiving the applicant’s forms, evidence, supporting documents and application fee, USCIS “review[ed] them for completeness,” considered complete applications “on an individual,
9

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case-by-case basis,” and notified applicants of its determination in writing. See Ex. 16 (USCIS Help Center, How do I request consideration of DACA?).
34. In order to apply for the DACA program, applicants had to submit extensive documentation establishing that they met the eligibility criteria. Applicants also had to submit a Form I-765 Application for Employment Authorization, and pay a $495 fee. See Ex. 14 at Questions 28-41; see also Ex. 17 (USCIS, I-821D, Consideration of Deferred Action for Childhood Arrivals) (explaining that the filing fee for a DACA application could not be waived).
35. DACA applicants were required to undergo biometric and biographic background checks. When conducting these checks, DHS reviewed the applicant’s biometric and biographic information “against a variety of databases maintained by DHS and other federal government agencies.” See Ex. 14 at Question 23. If any information “indicate[d] that [the applicant’s] presence in the United States threaten[ed] public safety or national security,” the applicant was ineligible for DACA absent “exceptional circumstances.” Id. at Question 65.
36. Once individuals were admitted into the DACA program, internal USCIS “Standard Operating Procedures” dictated that, absent an “Egregious Public Safety” issue, DACA grantees were not to be terminated from the program until the government provided a “Notice of Intent to Terminate” which “thoroughly explain[ed]” the grounds for the termination.” See Ex. 18 at 132, Appendix I (DHS, National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals, Apr. 4, 2013). DHS policy further provided that recipients of such notice should be afforded 33 days to “file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate” prior to termination of participation in the DACA program. Id.
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37. At the expiration of their two-year DACA term, grantees could seek renewal, and were considered for renewal if they met the guidelines for consideration as well as other specified criteria. See Ex. 19 (USCIS Help Center, How will USCIS evaluate my request for renewal of DACA?). Benefits Provided Under the DACA Program.
38. DACA confers numerous benefits on its grantees. 39. Notably, DACA grantees are granted the right not to be arrested or detained based solely on their immigration status during the time period during which their deferred action is in effect. See Ex. 14 at Question 9. 40. DACA grantees also are granted eligibility for work authorization. As USCIS has explained, “an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action . . . .’” Id. at Question 1. 41. DACA grantees are eligible to receive certain public benefits. These include Social Security, retirement, and disability benefits. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d). 42. DACA enables grantees to open bank accounts, obtain credit cards, start businesses, purchase homes and cars, and conduct other aspects of daily life that are otherwise often unavailable for undocumented immigrants. See Ex. 5 ¶ ¶ 12, 16, 22 (Decl. Wong). 43. DACA has enabled hundreds of thousands of young people “to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs— all on the books.” See Ex. 15 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu, Dec. 30, 2016).
11

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44. These positive effects have rippled throughout the States’ economies. As DHS recognized more than four years after the implementation of DACA, our nation “continue[s] to benefit . . . from the contributions of those young people who have come forward and want nothing more than to contribute to our country and our shared future.” Id.
45. Terminating DACA or failing to restore DACA to its pre-September 5, 2017 status would not only rip away the life-changing benefits to individual DACA grantees, but would also reverse the benefits to the community at large, including to innumerable small businesses, non-profits, and governments.4 The Government’s Assurances That the Information Provided by DACA Applicants Would be Kept Confidential and Not Used for Enforcement.
46. When the DACA program was first implemented, many eligible young people were reluctant to voluntarily disclose information that could help facilitate their removal from the United States. To encourage applications, DHS repeatedly promised applicants that information they provided as part of the DACA application process would “not later be used for immigration enforcement purposes.” See Ex. 15 (Letter from Sec’y Johnson).
47. USCIS affirmatively represented to DACA applicants that, except in limited circumstances, “[i]nformation provided in [a DACA request] is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings.” See Ex. 25 (USCIS Help
4 See e.g., Ex. 20 (Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, the Cato Institute, Jan. 18, 2017) (“The deportation of DACA participants would cost the American economy billions of dollars, as well as billions of tax dollars foregone, while doing little to address the true concerns that Americans may have about unauthorized immigrants.”); Ex. 21 (Tom Wong, et al., DACA Grantees’ Economic and Educational Gains Continue to Grow, Center for American Progress, Aug. 28, 2017) (quoting multiple DACA grantees whose small businesses will suffer or even close if DACA is terminated); Ex. 22 (Tom Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress, Oct. 18, 2016) (study showing that 9 percent of DACA grantees work at non-profits, a significant percentage work in education, and 6 percent started their own business, including one owner who employs nine people and hopes to continue to grow and “hire even more people from the community” [internal brackets and quotation marks omitted]).
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Center, Will the information I share in my request for DACA be used for immigration enforcement purposes?).
48. USCIS affirmatively represented to DACA applicants that, except in limited circumstances, their case would not be “referred to ICE for purposes of removal proceedings” even if UCSIS decided not to defer action on a case. See Ex. 26 (USCIS Help Center, If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?).
49. In the exceptional circumstance in which USCIS referred a DACA applicant to ICE, USCIS affirmatively represented to DACA applicants that “information related to [their] family members or guardians that is contained in [their] request [would] not be referred to ICE for purposes of immigration enforcement against family members or guardians.” See Ex. 27 (USCIS Help Center, If my DACA case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?).
50. USCIS affirmatively represented to employers of DACA applicants that, except in limited circumstances, if they provided an employee "with information regarding his or her employment to support a request for consideration of DACA,” the information would not be “shared with ICE for civil immigration enforcement purposes.” See Ex. 28 (USCIS Help Center, If I provide my employee with information regarding his or her employment to support a request for consideration of DACA, will that information be used for immigration enforcement purposes against me and/or my company?).
51. The government’s representations that, absent exceptional circumstances, information provided by a DACA grantee would not be used against him or her for later immigration enforcement proceedings were unequivocal and atypical. For example, the federal
13

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government does not make the same representations for participants in other similar programs, such as Temporary Protected Status. These assurances were key to the success of the DACA program. By making repeated, unique, and strong representations, the federal government induced persons to rely on those representations and apply to become DACA grantees despite the potential risks. The Government’s Commitment to Continuity and Fair Treatment for DACA Grantees.
52. Numerous public officials from both political parties have reinforced the federal government’s promise to provide continuity and fair treatment to DACA grantees, and have recognized that DACA grantees have relied on the government’s representations in applying for DACA. For example, in December 2016, then-Secretary of Homeland Security Jeh Charles Johnson acknowledged that there are hundreds of thousands of DACA grantees who have “relied on the U.S. government’s representations” about DACA, and asserted that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.” See Ex. 15.
53. On December 19, 2016, then-President-elect Trump stated in an interview with TIME magazine that he would find an accommodation for DACA grantees, stating, “We’re going to work something out that’s going to make people happy and proud.” See Ex. 29 (Michael Scherer, Person of the Year 2016, TIME Magazine, Dec. 19, 2016). He further recognized, “[DACA grantees] got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.” Id.
54. Again, on January 18, 2017, then President-elect Trump promised in an interview with Fox & Friends that he was working on a plan to make DACA grantees “very happy.” See
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Ex. 30 (Francesca Chambers, Trump signals he’s softening on immigration as he says he’s ‘working on a plan’ that will make DREAMers ‘very happy,’ Daily Mail, Jan. 18, 2017). He further stated, “We’re working on a plan right now. And that plan, over the next two to three months, is going to come out. And it’s a plan that’s going to be very firm, but it’s going to have a lot of heart.” Id.
55. In January 2017, Speaker of the House Paul Ryan stated that the government must ensure that “the rug doesn’t get pulled out from under” DACA grantees, who have “organize[d] [their] li[ves] around” the DACA program. See Ex. 31 (CNN, Transcript of CNN Town Hall with Speaker Paul Ryan, Jan. 12, 2017).
56. On January 25, 2017, President Trump again stated in an interview with David Muir that “[DACA grantees] shouldn’t be very worried. I do have a big heart.” See Ex. 32 (ABC News, Transcript of ABC News anchor David Muir interview with Donald Trump, Jan. 25, 2017).
57. In February 2017, then-Secretary of DHS John Kelly issued a memorandum relating to enforcement priorities. This memorandum terminated “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal,” including prior enforcement priorities, but left DACA unchanged. See Ex. 2 (Memorandum from Secretary John Kelly to Keven McAleenan, Acting CBP Commissioner, Enforcement of the Immigration Laws to Serve the National Interest, Feb. 20, 2017); see also Ex. 10 (Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States, Feb. 21, 2017) (“Q22: Do these memoranda affect recipients of Deferred Action for Childhood Arrivals (DACA)? A22: No.”).
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58. On March 29, 2017, Secretary Kelly reaffirmed that “DACA status” is a “commitment . . . by the government towards the DACA person, or the so-called Dreamer.” See Ex. 33 (Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration, Politico, Mar. 29, 2017).
59. On April 21, 2017, President Trump represented that his Administration’s policy was not to deport DACA grantees, and suggested that they “should rest easy.” See Ex. 34 (The Associated Press, Interview Transcript, Apr. 21, 2017).
60. On June 15, 2017, Secretary Kelly issued a memo terminating the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program created in 2014, but keeping DACA in place. See Ex. 23 (Memorandum from Secretary John Kelly to Keven McAleenan, Acting CBP Commissioner, Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents, June 15, 2017).
61. The government’s commitment to the DACA program was further communicated to young people through DHS’s publication entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA)” (the “DACA SOP”). See Ex. 18. This document includes more than 150 pages of specific instructions for granting or denying deferred action.
62. Moreover, the approval notice granting deferred action under DACA listed only “fraud or misrepresentation” in the application process or “[s]ubsequent criminal activity” as grounds for revoking DACA. See Ex. 24 (USCIS, DACA Approval Notice).
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63. In reliance on these representations, hundreds of thousands of young people applied to participate in the DACA program, or sought renewal of their benefits since 2017. See Ex. 1. President Trump’s Statements about Mexicans.
64. Despite these various and repeated promises to DACA grantees made by the federal government and by President Trump, including a recognition of DACA’s continued legal viability, value, and successes, President Trump has a long history of disparaging Mexicans, who comprise the vast majority of DACA grantees.
65. In announcing his presidential campaign, then-candidate Trump compared Mexican immigrants to rapists, stating: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” See Ex. 35 (Washington Post, Transcript of Donald Trump’s Presidential Bid Announcement, June 16, 2015).
66. During the first Republican presidential debate, then-candidate Trump again stated his distaste for immigrants from Mexico: “The Mexican government is much smarter, much sharper, much more cunning. And they send the bad ones over because they don’t want to pay for them. They don’t want to take care of them.” See Ex. 36 (Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News, Aug. 6, 2015).
67. Soon after, on August 25, 2015, then-candidate Trump refused to answer questions about immigration posed by Jorge Ramos, a Mexican-American and the top news anchor at Univision, a Spanish-language news network. After sending his bodyguard to physically remove Mr. Ramos, then-candidate Trump derisively told Mr. Ramos to “Go back to
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Univision.” See Ex. 37 (Phillip Rucker, First, Trump booted Univision anchor Jorge Ramos out of his news conference. Then things got interesting, The Washington Post, Aug. 25, 2015).
68. In May 2016, then-candidate Trump referred to anti-Trump protestors who carried the Mexican flag as “criminals” and “thugs.” See Ex. 38 (Donald Trump, “The protestors in New Mexico were thugs who were flying the Mexican Flag,” Twitter, May 25, 2016); See Ex. 39 (Donald Trump, “Many of the thugs that attacked peaceful Trump supporters in San Jose were illegals,” Twitter, June 4, 2016).
69. In June 2016, then-candidate Trump impugned the integrity of a federal judge presiding over a lawsuit against one of his businesses because the judge is Hispanic. Trump commented that Judge Gonzalo Curiel’s rulings against him “[H]as to do with perhaps that I’m very, very strong on the border. . . Now, he is Hispanic, I believe. He is a very hostile judge to me.” See Ex. 40 (Jose A. DelReal and Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts, The Washington Post, June 1, 2016).
70. In an interview with CBS News on June 5, 2016, then-candidate Trump again reiterated his anti-Mexican views, noting that “[Judge Curiel]’s a member of a club or society very strongly, pro-Mexican, which is all fine. But I say he’s got bias.” See Ex. 41 (CBS News, Transcript of Face the Nation, June 5, 2016). Judge Curiel is a member of the San Diego Chapter of the La Raza Lawyers Association. See Ex. 42 (Michelle Ye Hee Lee, Trump supporters’ false claim that Trump U judge is a member of a pro-immigrant group, The Washington Post, June 7, 2016).
71. On August 21, 2015, two men urinated on a sleeping Latino man and then beat him with a metal pole. They later told police that “Donald Trump was right; all these illegals need to be deported.” When asked about the incident, then-candidate Trump failed to condemn
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the men, instead describing them as “passionate.” See Ex. 43 (Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, The Boston Globe, Aug. 21, 2015). Specifically, Trump stated, “[i]t would be a shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate. Id.
72. In October 2016, during a presidential debate, then-candidate Trump responded to a question about immigration by stating: “We have some bad hombres here and we’re going to get them out.” See Ex. 44 (Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, The Washington Post, Aug. 30, 2017).
73. On January 27, 2017, newly-inaugurated President Trump and Mexico’s President Peña Nieto discussed President Trump’s proposal for a border wall over the phone. During that transcribed conversation, President Trump again referred to “hombres” stating: “You have some pretty tough hombres in Mexico that you may need help with, and we are willing to help you with that big-league. But they have to be knocked out and you have not done a good job of knocking them out.” See Ex. 45 (Greg Miller et. al., Full Transcripts of Trump’s Calls with Mexico and Australia, The Washington Post, Aug. 3, 2017).
74. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge’s order to stop racially profiling Latinos. See Ex. 46 (Julie Hirschfield Davis and Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, The N.Y. Times, Aug. 25, 2017).
75. Sheriff Arpaio had been detaining people ostensibly because they had violated the law. But in practice, his office detained huge numbers of individuals solely because they looked
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Latino, without any reasonable suspicion of illegal conduct. See generally Melendres v. Arpaio, Findings of Fact & Conclusions of Law, 2:07-cv-02513-GMS, ECF Doc. No.579 (D. Az. May 24, 2013). After a federal court enjoined that practice in 2011, Arpaio continued his unlawful and discriminatory practices unabated, “announc[ing] to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” United States v. Arpaio, Findings of Fact & Conclusions of Law, 2:16-cr-01012-SRB, ECF Doc. No. 210 at 13 (D. Ariz. July 31, 2017). On July 31, 2017, a federal court held Arpaio in criminal contempt, holding that he had willfully acted in “flagrant disregard” of the injunction. Id.
76. Before issuing the pardon, President Trump asked, “Was Sheriff Joe convicted for doing his job?” See Ex. 46. (Davis and Haberman, Trump Pardons Joe Arpaio). After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio “an American patriot.” Id.
77. As President Trump’s statements about Mexico and those with Mexican origins demonstrate, the President is willing to disparage Mexicans in a misguided attempt to secure support from his constituency. Trump Administration’s Threatening Statements about Deporting Immigrants.
78. On June 13, 2017, Acting ICE Director Thomas Homan testified in front of the House Appropriations Committee's Subcommittee on Homeland Security, stating as to “every immigrant in the country without papers,” that they “should be uncomfortable. You should look over your shoulder. And you need to be worried.” Hearing on the ICE and CBP F.Y. 2018 Budget Before the Subcomm. on Homeland Security of the H. Comm. on Appropriations, 115th Cong. (2017) 2017 WLNR 18737622.
79. On April 19, 2017, United States Attorney General Jefferson B. Sessions stated in an interview on Fox News’ “Happening Now,” program—in response to a question regarding the
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deportation of a DACA recipient—that “[e]verybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully that they aren’t going to be deported.” Ex. 49 (Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News, Apr. 19, 2017). President Trump Terminates DACA in Response to the Litigation Threats of a State Found to Have Discriminated Against Latinos/Hispanics Nine Times Since 2012.
80. On June 29, 2017, the Attorneys General of ten states, led by the State of Texas, sent U.S. Attorney General Sessions a letter threatening to add claims to litigation currently pending in the Southern District of Texas “to challenge both the DACA program and the remaining expanded DACA permits,” if the Executive Branch did not agree to end the DACA program by September 5, 2017. Ex. 177 (Letter from Ken Paxton et.al. to Attorney General Jeff Sessions, June 29, 2017).
81. The demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas.
82. Over the preceding decade, federal courts have repeatedly found the State of Texas liable for engaging in unlawful discrimination based on race and/or national origin.
83. For example, in Texas v. United States, 887 F. Supp. 2d 133, 161 (D.D.C. 2012), three federal judges blocked a Congressional and State House redistricting plan after finding that it “was enacted with discriminatory purpose.”
84. The litigation eventually culminated in a ruling by a three-judge panel on August 15, 2017 finding, again, that the 2010 congressional districts had been created with “racially discriminatory intent” against Latinos and African American voters. Perez v. Abbott, SA-11-CV360, 2017 U.S. Dist. LEXIS 129982, at *55 (W.D. Tex. Aug. 15, 2017).
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85. On October 9, 2014, in separate litigation challenging a state voter photo identification (“ID”) law, a Texas federal district court judge found that the provision had been “imposed with an unconstitutional discriminatory purpose” and “constitute[d] an unconstitutional poll tax.” Veasey v. Perry, 71 F. Supp. 3d 627, 633 (S.D. Tex. 2014).
86. On remand from the Fifth Circuit, a federal district court concluded that the 2011 Legislature intentionally discriminated against minority voters by requiring presentation of a photo ID when casting their ballots. Veasey v. Abbott, 2017 U.S. Dist. LEXIS 54253, at *14-18 (S.D. Tex. Apr. 10, 2017).
87. DHS issued the 2017 DHS Memorandum terminating DACA on September 5, 2017, in direct response to the threats of the State of Texas and the other ten states, fulfilling the demand of a State marked with a history of racial and national origin discrimination. President Trump Backtracks on His Promise and Terminates DACA.
88. Attorney General Sessions announced the termination of DACA via a live press conference. He explained, without evidence, “The effect of this unilateral executive amnesty, among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.” See Ex. 75 (DOJ, Attorney General Sessions Delivers Remarks on DACA, Prepared Remarks, Sept. 5, 2017).
89. Under the 2017 DHS Memorandum, which accompanied this announcement, the government’s new policy provides no discretion to approve new applications on a case-by-case basis. Instead, the 2017 DHS Memorandum is a final decision that an entire class of people is no longer eligible for deferred action, employment authorization, and other benefits. Per the 2017 DHS Memorandum, DHS “[w]ill reject all DACA initial requests and associated applications for
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Employment Authorization Documents filed after the date of this memorandum.” DHS will also reject all renewal applications it receives after October 5, 2017, and all renewal applications for authorizations that expire after March 5, 2018. See Ex. 74 (DHS Memorandum).
90. In issuing the 2017 DHS Memorandum, the federal government misleadingly claimed that DACA was unconstitutional, see Ex. 74, despite the fact that no court has made that determination, and despite previous determinations by DOJ and DHS, including under the Trump administration, that DACA is lawful and should be left in place. In fact, as recently as June 15, 2017, then-Secretary of Homeland Security John Kelly chose to allow DACA to continue (while terminating the DAPA program) “after consulting with the Attorney General.” See Ex. 23
91. Even after the announcement, the government’s position on the reasoning for the termination has been unclear and inconsistent. On the day of the termination, President Trump re-tweeted a statement that “We are a nation of laws. No longer will we incentivize illegal immigration.” See Ex. 47 (Josh Saul, Jeff Sessions Always Wanted to Deport Undocumented Immigrant Youth. Now He Can, Newsweek, Sept. 5, 2017). The President appears to have deleted this tweet. Later on September 5, the President tweeted, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” See Ex. 48 (Donald J. Trump, Twitter, Sept. 5, 2017). On September 14, 2017, he tweeted, “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really! .....” See Ex. 50 (Donald J. Trump, Twitter, Sept. 14, 2017).
92. As a result of the 2017 DHS Memorandum, DACA grantees whose benefits expire after March 5, 2018 will immediately lose their employment authorization, as well as
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other vital benefits, such as social security cards, driver’s licenses, financial aid, disability and health benefits, among others.
93. They also may lose their homes and communities if the program is allowed to expire. An internal White House memo reported on by CNN stated that DHS now is urging DACA grantees “to prepare for and arrange their departure from the United States” when their DACA terms end. See Ex. 88 (Tal Kopan & Jim Acosta, Admin Memo: DACA recipients should prepare for departure from the United States, CNN, Sept. 5, 2017). This threat of deportation is consistent with past references to deportation of DACA grantees, such as a statement by Attorney General Sessions in response to a question regarding the deportation of a DACA grantee that “[e]verybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully that they aren’t going to be deported.” See Ex. 49 (Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News, Apr. 19, 2017).
94. President Trump also has taken affirmative steps to reduce the privacy protections applicable to DACA grantee information. In January 2017, President Trump issued an Executive Order directing all agencies, including DHS, to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” See Ex. 76 (Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” Jan. 25, 2017). In response to the Executive Order, DHS adopted a privacy policy that “permits the sharing of information about immigrants and non-immigrants with federal, state, and local law enforcement.” See Ex. 51 (DHS, Privacy Policy 2017-01 Questions & Answers, Apr. 27, 2017).
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95. The 2017 DHS Memorandum provides no assurance to DACA grantees, or direction to USCIS and ICE, that information contained in DACA applications cannot be used for the purpose of future immigration enforcement proceedings.
96. To the contrary, on the same day that the 2017 DHS Memorandum was issued, DHS changed its public guidance about the use of DACA application data for immigration enforcement. DHS removed the webpage containing the assurance that, absent exceptional circumstances, DACA application data “is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings.” Cf. Ex. 25 (containing link to USCIS webpage that now contains an error alert and a message stating, “The page you are looking for may not exist or is temporarily unavailable.”). The same day, DHS posted a new policy governing the use of information provided by DACA applicants. DHS now states that USCIS “[g]enerally” will not “proactively provid[e] information obtained through DACA to ICE and CBP. See Ex. 89 (DHS, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals, Sept. 5, 2017). The new policy imposes no restrictions on USCIS providing DACA data at the request of ICE, CBP, or any other law enforcement entity. Id. DHS also reserves the right to change its new policy “at any time without notice” and states that the policy “may not be relied upon” by any party. Id.
97. DACA grantees thus immediately face the risk that information they provided to the federal government could be used against them at any time, without notice, for purposes of immigration enforcement, including detention or removal. The Defendants’ Failure to Notify Certain DACA Grantees of the October 5, 2017 Renewal Deadline.
98. Before the termination of DACA, Defendants had a written policy and practice allowing DACA grantees to submit their renewal application up to one year after the date of
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expiration of their participation in DACA. If DACA grantees failed to renew within one year of the expiration date, they had the option to re-apply as initial applicants. See Ex. 14 (USCIS FAQs – Q50).
99. In addition, USCIS and DHS had a long-standing practice of using the address information they maintain for DACA grantees to send individualized notices to those grantees regarding their renewal expiration dates. See Ex. 178 (DACA Renewal Notice).
100. On information and belief, no standard renewal notices have been provided to DACA grantees whose participation in DACA expires between February 6, 2018 and March 5, 2018. Prior to termination of DACA, a DACA grantee whose renewal status expires in February 2018 would have received an individualized renewal notice informing the grantee that he or she had to file a renewal 120-150 days prior to expiration, i.e., by November 2017, in order to avoid a lapse in deferred action and employment authorization. See, e.g., id. However, since the termination, Defendants have not yet sent this group of DACA grantees any notices regarding when and how they can renew.
101. On information and belief, the government sent standard renewal notices up until August 1, 2017 for DACA grantees whose participation in DACA expires by January 2018, informing the grantees they had the standard 120-150 days prior to the expiration date to renew if they wished to “avoid a lapse in [their] period of deferred action and employment authorization”. See, e.g., id. However, in light of DHS’s decision to impose an absolute cut-off date of October 5, 2017 for all renewal applications, the information conveyed in these notices is now incorrect. The notices misleadingly suggest to DACA grantees that they have several additional months beyond October 5 to renew their DACA status without a gap in employment authorization. Moreover, the faulty renewal notices were not followed with individualized corrected notices
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informing this group of grantees that there is a new, absolute October 5 deadline for renewal, and that DACA grantees will no longer have up to one year after the date of expiration of their DACA to submit a renewal application.
102. As a result of Defendants’ failure to provide individualized notice regarding the new October 5, 2017 renewal deadline to DACA grantees whose participation expires before March 5, 2018, individuals who received no notice or incorrect notice of the new deadline may be forever ineligible to renew their participation in DACA. These DACA grantees will no longer be protected from deportation and will lose work authorization that they may have otherwise had. They may also lose health insurance, social security cards, driver’s licenses and other benefits.
103. On October 3, 2017, DHS issued a press release stating that “[o]f the approximately 154,200 individuals whose DACA is set to expire between Sept. 5, 2017, and March 5, 2018, just over 106,000 either have renewal requests currently pending with USCIS, or have already had USCIS adjudicate their renewal request.” See Ex. 82 (DHS Press Release Department of Homeland Security Acting Secretary Elaine Duke Reminds Eligible DACA Recipients to File Renewal Requests, October 3, 2017). Therefore, up to one third of DACA grantees who are eligible for renewal had not applied as of two days before the October 5, 2017 deadline. The Government’s Failure to Notify DACA Grantees of their Inability to Renew Their DACA Status If It Expires After March 5, 2018.
104. On information and belief, Defendants’ termination of DACA was solely communicated to DACA grantees through the publication of DHS’s memorandum on September 5, 2017 on the DHS website and by a concurrent television announcement from Attorney
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General Sessions. See Ex. 74 (DHS Memo); See Ex. 75 (Attorney General Sessions Delivers Remarks on DACA).
105. On information and belief, the government did not and does not plan to issue individualized notices to any DACA grantees informing them of the termination of DACA and their inability to renew if their DACA status expires after March 5, 2018.
106. Many DACA grantees relied upon their ability to apply to renew DACA in making important decisions related to their employment, education and families, among other things. The Government’s Failure to Comply with the Supreme Court’s Invalidation of the DACA Rescission and Subsequent Vacatur of that Rescission.
107. Ignoring the Supreme Court’s June 18, 2020 Regents decision holding that Defendants’ 2017 rescission of DACA was arbitrary and capricious, 140 S. Ct. at 1915, and the subsequent vacatur of the rescission by the Fourth Circuit on June 30, 2020, DHS failed to recommence processing DACA applications. Instead, it “generally held” applications “in anticipation of potential policy changes.” Wolf Memo at 7. The Wolf Memo Orders Interim Changes to DACA Pending DHS’s Consideration of Fully Rescinding the DACA Program.
108. In the Wolf Memo, issued on July 28, 2020, Defendant Wolf announced that “I am considering anew the DACA policy,” that “the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission,” and that, “in the exercise of my authority and discretion in establishing national immigration policies and priorities . . . I am rescinding the Nielsen Memorandum and Duke Memorandum, and making certain immediate changes to the DACA policy to mitigate my enforcement policy concerns while I conduct a full and careful consideration of the full rescission.” Wolf Memo at 4.
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109. Specifically, the Wolf Memo orders DHS to reject all new initial applications, to change the renewal period for current beneficiaries from two years to one year, and to reject all advance parole applications absent exceptional circumstances. Id. at 7-8.
110. The Wolf Memo purports to apply these changes retroactively to all applications submitted after the Supreme Court’s June 18, 2020 Regents decision. Id. at 7.
111. On August 21, 2020, DHS Deputy Director of Policy Joseph Edlow issued a memorandum purporting to implement the Wolf Memo, instructing USCIS officials to take the actions directed by the Wolf Memo. Ex. 181. Defendant Wolf Lacked the Authority to Issue the Wolf Memo.
112. The U.S. Government Accountability Office (“GAO”) concluded that Defendant Wolf has never lawfully served in the role of Acting Secretary of Homeland Security because his assumption of that role violated the FVRA and HSA.
113. Article II of the Constitution requires that the President obtain the “Advice and Consent” of the Senate for Cabinet officials.
114. The FVRA established a default framework for authorizing acting officials to fill Senate-confirmed roles, with three options for who may serve as an acting official. 5 U.S.C. § 3345. Under this framework, (1) the “first assistant to the office” of the vacant officer generally becomes the acting official, id. § 3345(a)(1), unless (2) the President appoints someone already serving in a different Senate-confirmed position, id. § 3345(a)(2), or (3) the President authorizes “an officer or employee” of the relevant agency to serve as the acting official if the officer or employee has held a position in the agency above the GS-15 pay rate for 90 days or more within the preceding year, id. § 3345(a)(3). The FVRA further provides that a position may be occupied by an acting official for a maximum of 210 days. Id. § 3346. This framework
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is the “exclusive means” for authorizing acting officials unless a specific statute authorizes “the President, a court, or the head of an Executive department” to designate one. Id. § 3347.
115. DHS has such a statute—the HSA—which establishes an order of succession for the Acting Secretary, expressly superseding the FVRA’s default options. 6 U.S.C. § 113(g). First in line under the HSA is the Deputy Secretary, and then the Under Secretary for Management. Id. §§ 113(a)(1)(A), 113(g)(1). After these two offices, the order of succession is set by the Secretary of Homeland Security. Id. § 113(g)(2).
116. Under the FVRA, official actions taken by unlawfully serving acting officials “shall have no force or effect” and “may not be ratified” after the fact, including acting officials that assume their roles through agency-specific statutes like the HSA. 5 U.S.C. § 3348(d)(1), (2).
117. Secretary Kirstjen Nielsen was the most recent Senate-confirmed Secretary of Homeland Security. On February 15, 2019, she exercised her power under the HSA to set an order of succession for the position of Acting Secretary of DHS should the Deputy Secretary and Under Secretary of Management positions be vacant. She did so by amending the existing order of succession that had been issued by then-Secretary Jeh Johnson in 2016—Delegation 00106.
118. Nielsen’s February Delegation provided two grounds for accession of an Acting Secretary: (1) the Secretary’s death, resignation, or inability to perform the functions of the office; and (2) the Secretary’s unavailability to act during a disaster or catastrophic emergency. Each ground set forth the order of succession that would govern under those circumstances. In the case of the Secretary’s death, resignation, or inability to perform the functions of office, Executive Order 13753—the most recent prior amendment to the order of succession in the Department—would govern the order of succession. If the Secretary were unavailable to act
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during a disaster or catastrophic emergency, the order of succession would be governed by Annex A to the February Delegation.
119. At the time of the February Delegation, the orders of succession found in E.O. 13753 and Annex A were identical; the first four positions in the order of succession for both were as follows: (1) Deputy Secretary; (2) Under Secretary of Management, (3) Administrator of the Federal Emergency Management Agency (FEMA) and (4) Director of the Cybersecurity and Infrastructure Security Agency (CISA). The February Delegation further provided that officials who were only acting in the listed positions (rather than appointed to those positions) were ineligible to serve as Acting DHS Secretary, such that the position of Acting Secretary would pass to the next Senate-confirmed official.
120. Nielsen originally announced her resignation from the Secretary position effective April 7, 2019. Under the order of succession in effect at that time, and in view of the vacancy in the Deputy Secretary position, the Acting Secretary position would have been assumed by Claire Grady, the Deputy Under Secretary for Management. See 6 U.S.C. §§ 113(a)(1)(A), 113(g)(1). But Nielsen then purported to remain in office until April 10, and Grady resigned on April 9.
121. Before leaving office on April 10, 2019, Nielsen made a partial amendment to DHS’s order of succession. In this April Delegation, Nielsen retained the two separate grounds for accession to the role of Acting Secretary: vacancies arising from Secretary’s death, resignation, or inability to perform the functions of office were still governed by E.O. 13753, and vacancies arising from the Secretary’s unavailability to act during a disaster or catastrophic emergency were still governed by Annex A to the Delegation. Nielsen also did not amend E.O. 13753, which continued to govern the order of succession in the event of a vacancy created by the Secretary’s death, resignation or inability to perform the functions of the office. Secretary
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Nielsen did, however, amend Annex A, which set forth the order of succession for when the Secretary is unavailable to act during a disaster or catastrophic emergency; the new order of succession was as follows: (1) Deputy Secretary; (2) Under Secretary of Management; (3) Commissioner of U.S. Customs and Border Protection (CBP), and (4) Administrator of FEMA.
122. Senate-confirmed Commissioner of CBP Kevin McAleenan then assumed the role of Acting Secretary, supposedly pursuant to Annex A. Yet E.O. 13753 rather than Annex A governed the relevant order of succession because the vacancy in the position of Secretary was created by Nielsen’s resignation, not through the Secretary’s unavailability during a disaster or catastrophic emergency.
123. On November 8, 2019, McAleenen substituted Annex A for E.O. 13753 to govern the order of succession when the Secretary dies, resigns, or is unable to perform the functions of office. McAleenan then directed the order of succession in Annex A to be: (1) Deputy Secretary, (2) Under Secretary of Management; (3) Commissioner of CBP; and (4) Under Secretary for Strategy, Policy, and Plans. On November 13, 2019, McAleenan resigned as both Acting Secretary and Commissioner of CBP. Because the first three positions in the line of succession were vacant, the Senate-confirmed Under Secretary of Strategy, Policy, and Plans—Chad Wolf—assumed the role of Acting Secretary.
124. On November 15, 2019, two days after Wolf assumed the Acting Secretary role, the Chairman of the House of Representatives Committee on Homeland Security and the Acting Chairwoman of the House Committee on Oversight and Reform wrote a letter to the head of GAO “to express serious concerns with the legality of the appointment” of Chad Wolf as Acting
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Secretary of DHS and Ken Cuccinelli as Senior Official Performing the Duties of Deputy Secretary.
125. In particular, the Chairman and Acting Chairwoman expressed concern that Wolf was serving in violation of the FVRA and HSA because former Acting Secretary McAleenan did not lawfully assume the Acting Secretary position, and so McAleenan had no authority to make the changes to DHS’s order of succession that formed the basis for Wolf’s accession to Acting Secretary.
126. On August 14, 2020, GAO issued a report responding to the Chairman and Acting Chairwoman’s request, and assessing the legality of the appointment of Chad Wolf as Acting Secretary of DHS and Ken Cuccinelli as Senior Official Performing the Duties of Deputy Secretary. GAO, DHS-Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security, File No. B331650, Aug. 14, 2020.
127. In the report, GAO explained that “[i]n the case of vacancy in the positions of Secretary, Deputy Secretary, and Under Secretary of Management, the HSA provides a means for an official to assume the title of Acting Secretary pursuant to a designation of further order of succession by the Secretary.” Id. at 11. Based on the amendments Secretary Nielsen made to the order of succession in April 2019, GAO concluded that the Senate-confirmed CBP Commissioner (McAleenan) “would have been the appropriate official” to serve as Acting Secretary only if Secretary Nielsen had been “unavailable to act during a disaster or catastrophic emergency.” Id. at 7.
128. GAO concluded that because Secretary Nielsen had resigned, E.O. 13753 controlled under “the plain language of the April Delegation.” Id. GAO explained that after
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Nielsen’s resignation, then-Director of CISA, Christopher Krebs, should have assumed the position Acting Secretary because he was the first Senate-confirmed official in the E.O. 13753 order of succession, which governed following a Secretary’s resignation.5 Id. at 8 & n.11. GAO noted that although “McAleenan assumed the title of Acting Secretary upon the resignation of Secretary Nielsen,” “the express terms of the existing [succession] designation required [Krebs] to assume that title” and so “McAleenan did not have authority to amend the Secretary’s existing designation.” Id. at 11. GAO thus concluded that Wolf and Cuccinelli were improperly serving in their acting roles because they assumed those acting roles under “[the] invalid order of succession” established by McAleenan in November 2019. Id.
129. GAO recognized that Secretary Nielsen’s conduct may have suggested that she intended McAleenan to become Acting Secretary upon her resignation, but GAO concluded that “it would be inappropriate, in light of the clear express directive of the April Delegation”— which provided that McAleenan would only take over if Nielsen was unavailable to act during a disaster or catastrophic emergency—to interpret the order of succession based on post-hoc actions.” Id. at 9. GAO did not assess the consequences of Wolf’s and Cuccinelli’s unlawful appointments and instead referred that question to the DHS Office of Inspector General. Id. at 11.
130. Because Defendant Wolf unlawfully assumed the position of Acting Secretary of Homeland Security in violation of the FVRA and HSA. Under the plain terms of the FVRA, all official actions taken by Wolf as Acting Secretary—including his issuance of the Wolf Memo— are therefore invalid.
5 The FEMA Administrator had resigned a week before Nielsen resigned. (GAO, DHS-Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security, File No. B-331650, Aug. 14, 2020).
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HARM TO PLAINTIFF STATES 131. The States will suffer harm as a result of the termination of the DACA program or failure to restore DACA to its pre-September 5, 2017 status, including immediate and irreparable injuries to their sovereign, quasi-sovereign, and proprietary interests.
PLAINTIFF STATE OF NEW YORK 132. The State of New York is home to an estimated 80,000 or more DACA-eligible residents.6 Approximately 28,180 active DACA recipients live in New York.7 133. As of March 31, 2020, USCIS reported that it had approved 40,807 initial DACA applications and 83,987 renewals for residents of New York.8 134. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of New York, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 135. As of October 4, 2017, an estimated 38,848 New York DACA grantees were employed. See Ex. 5 ¶ 64 (Decl. Wong). An estimated 2,295 were business owners. Id. An estimated 19,084 were in school, and 13,645 were pursuing a bachelor’s degree or higher. Id. ¶ 65.
6 See Migration Policy Institute, National and State Estimates of Immigrant Populations Eligible for the Deferred Action for Childhood Arrivals (DACA) Program, June 2020, available at https://www migrationpolicy.org/sites/default/files/datahub/State%20Estimates%20of%20DACAEligible%20Population_June%202020.xlsx (“June 2020 MPI Estimates”). 7 See USCIS, Approximate Active DACA Receipts – March 31, 2020 (July 22, 2020), available at https://www.uscis.gov/sites/default/files/document/data/Approximate%20Active%20DACA%20Receipts%20%20March%2031%2C%202020.pdf (“USCIS March 2020 Estimates”). 8 See USCIS, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Status, by Fiscal Year, Quarter, and Case Status: Aug. 15, 2012-Mar. 31, 2020 (July 22, 2020), available at https://www.uscis.gov/sites/default/files/document/data/I914t_visastatistics_fy2020_qtr2.pdf (“USCIS March 2020 Quarterly Report”).
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136. An estimated 9,200 DACA recipients in New York are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and foodrelated jobs.9
137. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the New York economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $140 million annually in state and local taxes in New York—a contribution that was estimated to drop by $55 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the New York economy with $10.7 billion in budgetary costs and $38.6 billion economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $238.8 million annually in state and local taxes in New York.10
9 See Nicole Prchal Svajlenka, Center for American Progress, A Demographic Profile of DACA Recipients on the Frontlines of the Coronavirus Response, Center for American Progress (Apr. 6, 2020), https://www.americanprogress.org/issues/immigration/news/2020/04/06/482708/demographic-profile-dacarecipients-frontlines-coronavirus-response/ (“CAP COVID-19 Report”). 10 See Nicole Prchal Svajlenka & Philip E. Wolgin, Center for American Progress, What We Know About the Demographic and Economic Impacts of DACA Recipients: Spring 2020 Edition (Apr. 6, 2020), https://www.americanprogress.org/issues/immigration/news/2020/04/06/482676/know-demographic-economicimpacts-daca-recipients-spring-2020-edition/ (“CAP Demographic and Economic Impacts Report”).
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PLAINTIFF COMMONWEALTH OF MASSACHUSETTS 138. The Commonwealth of Massachusetts is home to an estimated 17,000 or more DACA-eligible residents.11 Approximately 5,480 DACA recipients live in Massachusetts.12 139. As of March 31, 2020, USCIS reported that it had approved 7,654 initial DACA applications and 16,257 renewals for residents of Massachusetts.13 140. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Massachusetts, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 141. As of October 4, 2017, an estimated 7,360 Massachusetts DACA grantees were employed. See Ex. 5 ¶ 56 (Decl. Wong). An estimated 435 were business owners. Id. An estimated 3,616 were in school, and 2,585 currently were pursuing a bachelor’s degree or higher. Id. ¶ 57. 142. An estimated 2,000 DACA recipients in Massachusetts are frontline workers in sectors that are essential for the Commonwealth’s COVID-19 response: health care, education, and food-related jobs.14 143. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Massachusetts economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.
11 See June 2020 MPI Estimates. 12 See USCIS March 2020 Estimates. 13 See USCIS March 2020 Quarterly Report. 14 See CAP COVID-19 Report.
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According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $24.2 million annually in state and local taxes in Massachusetts—a contribution that was estimated to drop by $9.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Massachusetts economy with $258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $32.5 million annually in state and local taxes in Massachusetts.15
PLAINTIFF STATE OF WASHINGTON 144. The State of Washington is home to an estimated 26,000 or more DACA-eligible residents.16 Approximately 16,030 DACA recipients live in Washington.17 145. As of March 31, 2020, USCIS reported that it had approved 19,308 initial DACA applications and 43,442 renewals for residents of Washington.18 146. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Washington, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 147. As of October 4, 2017, an estimated 16,394 Washington DACA grantees were employed. See Ex. 5 ¶ 88 (Decl. Wong). An estimated 969 were business owners. Id. An estimated 8,054 were in school, and 5,758 were pursuing a bachelor’s degree or higher. Id. ¶ 89.
15 See CAP Demographic and Economic Impacts Report. 16 See June 2020 MPI Estimates. 17 See USCIS March 2020 Estimates. 18 See USCIS March 2020 Quarterly Report.
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148. An estimated 6,400 DACA recipients in Washington are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and foodrelated jobs.19
149. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Washington economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $51 million annually in state and local taxes in Washington—a contribution that was estimated to drop by $19 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Washington economy with $1.8 billion in budgetary costs and $6.4 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $90.5 million annually in state and local taxes in Washington.20
PLAINTIFF STATE OF COLORADO 150. The State of Colorado is home to an estimated 23,000 or more DACA-eligible residents.21Approximately 14,520 DACA recipients live in Colorado.22 151. As of March 31, 2020, USCIS reported that it had approved 18,555 initial DACA applications and 41,107 renewals for residents of Colorado.23
19 See CAP COVID-19 Report. 20 See CAP Demographic and Economic Impacts Report. 21 See June 2020 MPI Estimates. 22 See USCIS March 2020 Estimates. 23 See USCIS March 2020 Quarterly Report.
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152. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Colorado, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits.
153. As of October 4, 2017, an estimated 15,281 Colorado DACA grantees were employed. See Ex. 5 ¶ 28 (Decl. Wong). An estimated 935 were business owners. Id. An estimated 7,772 were in school, and 5,557 were pursuing a bachelor’s degree or higher. Id. ¶ 29.
154. An estimated 4,300 DACA recipients in Colorado are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and food-related jobs.24
155. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Colorado economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $33.9 million annually in state and local taxes in Colorado—a contribution that was estimated to drop by $16.4 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Colorado economy with $768 million in budgetary costs and $2.7 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $58.7 million annually in state and local taxes in Colorado.25
24 See CAP COVID-19 Report. 25 See CAP Demographic and Economic Impacts Report.
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PLAINTIFF STATE OF CONNECTICUT 156. The State of Connecticut is home to an estimated 11,000 or more DACA-eligible residents.26 Approximately 3,560 DACA recipients live in Connecticut. 157. As of March 31, 2020, USCIS reported that it had approved 4,886 initial DACA applications and 10,479 renewals for residents of Connecticut.27 158. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Connecticut, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 159. As of October 4, 2017, an estimated 4,560 Connecticut DACA grantees were employed. See Ex. 5 ¶ 32 (Decl. Wong). An estimated 269 were business owners. Id. An estimated 2,240 were in school, and 1,602 were pursuing a bachelor’s degree or higher. Id. ¶ 33. 160. An estimated 1,300 DACA recipients in Connecticut are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and foodrelated jobs.28 161. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Connecticut economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $17 million annually in state and local taxes in Connecticut—a contribution that was estimated to drop by $5
26 See June 2020 MPI Estimates. 27 See USCIS March 2020 Quarterly Report. 28 See CAP COVID-19 Report.
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million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Connecticut economy with $642 million in budgetary costs and $2.3 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $21.8 million annually in state and local taxes in Connecticut.29
PLAINTIFF STATE OF DELAWARE 162. The State of Delaware is home to an estimated 3,000 or more DACA-eligible residents.30 Approximately 1,310 DACA recipients live in Delaware.31 163. As of March 31, 2020, USCIS reported that it had approved 1,532 initial DACA applications and 3,581 renewals for residents of Delaware.32 164. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Delaware, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 165. As of October 4, 2017, an estimated 1,326 Delaware DACA grantees were employed. See Ex. 5 ¶ 36 (Decl. Wong). An estimated 651 were in school, and 466 were pursuing a bachelor’s degree or higher. Id. ¶ 37. 166. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Delaware economy generally. Stripping DACA grantees of the ability to work legally will cause many to
29 See CAP Demographic and Economic Impacts Report. 30 See June 2020 MPI Estimates. 31 See USCIS March 2020 Estimates. 32 See USCIS March 2020 Quarterly Report.
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lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $2.4 million annually in state and local taxes in Delaware—a contribution that was estimated to drop by $1 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Delaware economy with $258 million in budgetary costs and $924 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $4.3 million annually in state and local taxes in Delaware.33
PLAINTIFF THE DISTRICT OF COLUMBIA 167. The District of Columbia (“District”) is home to an estimated 2,000 or more DACA-eligible residents.34 Approximately 600 DACA recipients live in the District.35 168. As of March 31, 2020, USCIS reported that it had approved 738 initial DACA applications and 1,701 renewals for residents of the District.36 169. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of the District, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employerbased health insurance, among other benefits.
33 See CAP Demographic and Economic Impacts Report. 34 See June 2020 MPI Estimates. 35 See USCIS March 2020 Estimates. 36 See USCIS March 2020 Quarterly Report.
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170. As of October 4, 2017, an estimated 707 District DACA grantees were employed. See Ex. 5 ¶ 40 (Decl. Wong). An estimated 347 were in school, and 248 were pursuing a bachelor’s degree or higher. Id. ¶ 41.
171. An estimated 200 DACA recipients in the District are frontline workers in sectors that are essential for the District’s COVID-19 response: health care, education, and food-related jobs.37
172. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the District’s economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $2.7 million annually in state and local taxes in the District—a contribution that was estimated to drop by $946,000 without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the District’s economy $900 million in budgetary costs and $3.2 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $2.9 million annually in local taxes in the District.38
37 See CAP COVID-19 Report. 38 See CAP Demographic and Economic Impacts Report.
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PLAINTIFF STATE OF HAWAII 173. The State of Hawaii is home to an estimated 4,000 or more DACA-eligible residents.39 Approximately 340 DACA recipients live in Hawaii.40 174. As of March 31, 2020, USCIS reported that it had approved 368 initial DACA applications and 935 renewals for residents of Hawaii.41 175. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Hawaii, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 176. As of October 4, 2017, an estimated 532 Hawaii DACA grantees were employed. See Ex. 5 ¶ 44 (Decl. Wong). An estimated 261 were in school, and 187 were pursuing a bachelor’s degree or higher. Id. ¶ 45. 177. An estimated 100 DACA recipients in Hawaii are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and food-related jobs.42 178. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Hawaii economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in a loss of tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $3.2 million annually in state and local taxes in Hawaii—a contribution that was estimated to drop by
39 See June 2020 MPI Estimates. 40 See USCIS March 2020 Estimates. 41 See USCIS March 2020 Quarterly Report. 42 See CAP COVID-19 Report.
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$870,000 without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Hawaii economy $126 million in budgetary costs and $451.5 million economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $3.1 million annually in state and local taxes in Hawaii.43
PLAINTIFF STATE OF ILLINOIS 179. The State of Illinois is home to an estimated 67,000 or more DACA-eligible residents.44 Approximately 33,940 DACA recipients live in Illinois.45 180. As of March 31, 2020, USCIS reported that it had approved 45,002 initial DACA applications and 97,003 renewals for residents of Illinois.46 181. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Illinois, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 182. As of October 4, 2017, an estimated 38,879 Illinois DACA grantees were employed. See Ex. 5 ¶ 48 (Decl. Wong). An estimated 2,297 were business owners. Id. An estimated 19,099 were in school, and 13,656 were pursuing a bachelor’s degree or higher. Id. ¶ 49.
43 See CAP Demographic and Economic Impacts Report. 44 See June 2020 MPI Estimates. 45 See USCIS March 2020 Estimates. 46 See USCIS March 2020 Quarterly Report.
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183. An estimated 11,400 DACA recipients in Illinois are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and food-related jobs.47
184. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Illinois economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $131 million annually in state and local taxes in Illinois—a contribution that was estimated to drop by $54.7 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, cost the Illinois economy $1.9 billion in lost tax revenue and $6.9 billion overall. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $209.5 million annually in state and local taxes in Illinois.48
PLAINTIFF STATE OF IOWA 185. The State of Iowa is home to an estimated 4,000 or more DACA-eligible residents.49 Approximately 2,420 DACA recipients live in Iowa.50 186. As of March 31, 2020, USCIS reported that it had approved 2,920 initial DACA applications and 7,054 renewals for residents of Iowa.51
47 See CAP COVID-19 Report. 48 See CAP Demographic and Economic Impacts Report. 49 See June 2020 MPI Estimates. 50 See USCIS March 2020 Estimates. 51 See USCIS March 2020 Quarterly Report.
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187. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Iowa, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits.
188. As of October 4, 2017, an estimated 2,570 Iowa DACA grantees were employed. See Ex. 5 ¶ 52 (Decl. Wong). An estimated 152 were business owners. Id. An estimated 1,263 were in school, and 903 were pursuing a bachelor’s degree or higher. Id. ¶ 53.
189. An estimated 1,100 DACA recipients in Iowa are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and food-related jobs.52
190. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Iowa economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $6.8 million annually in state and local taxes in Iowa—a contribution that was estimated to drop by $3.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Iowa economy with $258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon). Yet another estimate predicted that the state’s GDP would contract by $55.83 million if DACA is terminated. See Ex. 85 ¶ 9 (Decl. Swenson, Iowa St. University). DACA recipients currently contribute an estimated $11.1 million annually in state and local taxes in Iowa.53
52 See CAP COVID-19 Report. 53 See CAP Demographic and Economic Impacts Report.
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PLAINTIFF STATE OF NEW MEXICO 191. The State of New Mexico is home to an estimated 8,000 or more DACA-eligible residents.54 Approximately 5,690 DACA recipients live in New Mexico.55 192. As of March 31, 2020, USCIS reported that it had approved 7,616 initial DACA applications and 14,994 renewals for residents of New Mexico.56 193. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of New Mexico, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits. 194. As of October 4, 2017, an estimated 6,250 New Mexico DACA grantees were employed. See Ex. 5 ¶ 60 (Decl. Wong). An estimated 369 were business owners. Id. An estimated 3,070 were in school, and 2,195 were pursuing a bachelor’s degree or higher. Id. ¶ 61. 195. An estimated 1,900 DACA recipients in New Mexico are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and foodrelated jobs.57 196. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the New Mexico economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 2017, DACA-eligible residents contributed approximately $18.8 million
54 See June 2020 MPI Estimates. 55 See USCIS March 2020 Estimates. 56 See USCIS March 2020 Quarterly Report. 57 See CAP COVID-19 Report.
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annually in state and local taxes in New Mexico—a contribution that was estimated to drop by $7.5 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the New Mexico economy with $258 million in budget costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $18.6 million annually in state and local taxes in New Mexico.58
PLAINTIFF STATE OF NORTH CAROLINA 197. The State of North Carolina is home to an estimated 38,000 or more DACAeligible residents.59 Approximately 24,050 DACA recipients live in North Carolina.60 198. As of March 31, 2020, USCIS reported that it had approved 29,665 initial DACA applications and 67,232 renewals for residents of North Carolina.61 199. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of North Carolina, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 200. As of October 4, 2017, an estimated 24,094 North Carolina DACA grantees were employed. See Ex. 5 ¶ 68 (Decl. Wong). An estimated 1,483 were business owners. Id. An estimated 12,327 were in school, and 8,814 were pursuing a bachelor’s degree or higher. Id. ¶ 69.
58 See CAP Demographic and Economic Impacts Report. 59 See June 2020 MPI Estimates. 60 See USCIS March 2020 Estimates. 61 See USCIS March 2020 Quarterly Report.
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201. An estimated 7,600 DACA recipients in North Carolina are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and foodrelated jobs.62
202. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the North Carolina economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $63.6 million annually in state and local taxes in North Carolina—a contribution that was estimated to drop by $29 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the North Carolina economy with $2.1 billion in budgetary costs and $7.8 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $80.3 million annually in state and local taxes in North Carolina.63
PLAINTIFF STATE OF OREGON 203. The State of Oregon is home to an estimated 14,000 or more DACA-eligible residents.64 Approximately 9,710 DACA recipients live in Oregon.65 204. As of March 31, 2020, USCIS reported that it had approved 12,060 initial DACA applications and 27,595 renewals for residents of Oregon.66
62 See CAP COVID-19 Report. 63 See CAP Demographic and Economic Impacts Report. 64 See June 2020 MPI Estimates. 65 See USCIS March 2020 Estimates. 66 See USCIS March 2020 Quarterly Report.
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205. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Oregon, to work legally, acquire driver’s licenses, open bank accounts, access lines of credit, purchase homes and cars, have more ready access to in-state tuition, and obtain employer-based health insurance, among other benefits.
206. As of October 4, 2017, an estimated 10,347 Oregon DACA grantees were employed. See Ex. 5 ¶ 72 (Decl. Wong). An estimated 611 were business owners. Id. An estimated 5,083 were in school, and 3,634 were pursuing a bachelor’s degree or higher. Id. ¶ 73.
207. An estimated 4,800 DACA recipients in Oregon are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and food-related jobs.67
208. The State of Oregon’s revenue structure relies heavily on income taxes, including capital gains for investors, wages paid to workers, and corporate taxes that are directly linked to profitability. See Ex. 126 ¶ 9 (Decl. Read).
209. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Oregon economy generally. Eliminating DACA grantee Oregonians’ ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the state and impairment of the state’s economic health. See, e.g., Ex. 100 ¶ 6 (Decl. Nicolas). According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $20 million annually in state and local taxes in Oregon—a contribution that was estimated to drop by $11 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Oregon economy
67 See CAP COVID-19 Report.
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with $384 million in budgetary costs and $1.3 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $39.9 million annually in state and local taxes in Oregon.68
210. In addition, the inability to work legally and enjoy the other benefits of legal status such as better access to credit and the banking system will make it more difficult, if not impossible, for DACA grantee Oregonians to start businesses that contribute to the State’s economy and overall financial health. See Ex. 126 ¶ 12 (Decl. Read).
211. In addition to the direct benefits to state programs of increased state revenues, the State is also an investor and a borrower. See Ex. 126 ¶¶ 5-9 (Decl. Read). The State’s credit rating, cost of borrowing, and the performance of the State’s investments are all tied to the overall economic health of the State. See Ex. 126 ¶ 9 (Decl. Read). A reduced state tax base, and potential downward pressure on corporate performance, has the potential to adversely affect these interests as well. Many of the companies in which Oregon and Oregonians have holdings have expressed concern that the rescission of the DACA program is a threat and will be disruptive to their employees, their productivity, and their competitiveness. Any such disruption or downward pressure on corporate profits also potentially affects Oregon as a taxing entity and a shareholder.
PLAINTIFF COMMONWEALTH OF PENNSYLVANIA 212. The Commonwealth of Pennsylvania is home to an estimated 14,000 or more DACA-eligible residents.69 Approximately 4,480 DACA recipients live in Pennsylvania.70
68 See CAP Demographic and Economic Impacts Report. 69 See June 2020 MPI Estimates. 70 See USCIS March 2020 Estimates.
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213. As of March 31, 2020, USCIS reported that it had approved 5,669 initial DACA applications and 12,703 renewals for residents of Pennsylvania.71
214. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Pennsylvania, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits.
215. As of October 4, 2017, an estimated 5,468 Pennsylvania DACA grantees were employed. See Ex. 5 ¶ 76 (Decl. Wong). An estimated 323 were business owners. Id. An estimated 2,686 were in school, and 1,920 were pursuing a bachelor’s degree or higher. Id. ¶ 77.
216. An estimated 1,700 DACA recipients in Pennsylvania are frontline workers in sectors that are essential for the Commonwealth’s COVID-19 response: health care, education, and food-related jobs.72
217. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Pennsylvania economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $20.7 million annually in state and local taxes in Pennsylvania—a contribution that was estimated to drop by $7.5 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, impact the Pennsylvania economy with $258 million in budgetary costs and $924.5 million in economic
71 See USCIS March 2020 Quarterly Report. 72 See CAP COVID-19 Report.
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costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute an estimated $19.9 million annually in state and local taxes in Pennsylvania.73
PLAINTIFF STATE OF RHODE ISLAND 218. The State of Rhode Island is home to an estimated 3,000 or more DACA-eligible residents.74 Approximately 890 DACA recipients live in Rhode Island.75As of March 31, 2020, USCIS reported that it had approved 1,168 initial DACA applications and 2,630 renewals for residents of Rhode Island.76 219. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Rhode Island, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits. 220. As of October 4, 2017, an estimated 1,141 Rhode Island DACA grantees were employed. See Ex. 5 ¶ 80 (Decl. Wong). An estimated 560 were in school, and 401 were pursuing a bachelor’s degree or higher. Id. ¶ 81. 221. An estimated 200 DACA recipients in Rhode Island are frontline workers in sectors that are essential for the State’s COVID-19 response: health care, education, and foodrelated jobs.77 222. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Rhode Island economy generally. Stripping DACA grantees of the ability to work legally will cause many to
73 See CAP Demographic and Economic Impacts Report. 74 See June 2020 MPI Estimates. 75 See USCIS March 2020 Estimates. 76 See USCIS March 2020 Quarterly Report. 77 See CAP COVID-19 Report.
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lose their jobs, resulting, among other things, in less tax revenue for the State. The Rhode Island Office of Management and Budget (“RIOMB”) estimates that the termination of DACA could lead to over $1 million in lost state and local income, real estate and vehicle taxes. See Ex. 128 ¶ 3 (Decl. Womer, RIOMB). According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $3.8 million annually in state and local taxes in Rhode Island—a contribution that was predicted to drop by $1.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). According to the Institute on Taxation and Economic Policy (“ITEP”), the State of Rhode Island alone will lose $2.6 million in state and local taxes if DACA protections are lost. See Ex. 54. (Misha Hill and Meg Wiehe, State and Local Contributions of Young Undocumented Immigrants, Institute on Taxation and Economic Policy, April 25, 2017). According to the Center for American Progress, Rhode Island will lose over $61 million in annual GDP loss from removing DACA workers. See id. DACA recipients currently contribute an estimated $3.9 million annually in state and local taxes in Rhode Island.78
PLAINTIFF STATE OF VERMONT 223. As of October 4, 2017, the State of Vermont was home to an estimated 100 or more DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Approximately 20 DACA recipients live in Vermont.79 224. As of March 31, 2020, USCIS reported that it had approved 12 initial DACA applications and 55 renewals for residents of Vermont.80
78 See CAP Demographic and Economic Impacts Report. 79 See USCIS March 2020 Estimates. 80 See USCIS March 2020 Quarterly Report.
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225. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Vermont, to work legally, open bank accounts, access lines of credit, purchase homes and cars, and obtain employer-based health insurance, among other benefits.
226. As of October 4, 2017, an estimated 37 DACA grantees were employed in Vermont. See Ex. 53 (Nicole Prchal Svajlenka, et al., A New Threat to DACA Could Cost States Billions of Dollars, Center for American Progress, July, 21, 2017).
227. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Vermont economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. According to one estimate, as of October 4, 2017, DACA-eligible residents contributed approximately $140,000 annually in state and local taxes in Vermont—a contribution that was estimated to drop by $48,000 without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another 2017 estimate predicted that terminating DACA would, over a ten-year period, cost the Vermont economy $2.4 million in Gross Domestic Product. See Ex. 53 (Prchal Svajlenka, et. al., A New Threat to DACA).
PLAINTIFF COMMONWEALTH OF VIRGINIA 228. The Commonwealth of Virginia is home to an estimated 27,000 or more DACAeligible residents.81 Approximately 9,410 DACA recipients live in Virginia.82 229. As of March 31, 2020, USCIS reported that it had approved 12,368 initial DACA applications and 27,411 renewals for residents of Virginia.83
81 See June 2020 MPI Estimates. 82 See USCIS March 2020 Estimates. 83 See USCIS March 2020 Quarterly Report.
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230. Obtaining DACA status has allowed these individuals, many of whom are longterm residents of Virginia, to work legally, open bank accounts, access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain employer-based health insurance, among other benefits.
231. As of October 4, 2017, an estimated 11,195 Virginia DACA grantees were employed. See Ex. 5 ¶ 84 (Decl. Wong). An estimated 661 were business owners. Id. An estimated 5,499 were in school, and 3,932 currently were pursuing a bachelor’s degree or higher. Id. ¶ 85.
232. An estimated 2,700 DACA recipients in Virginia are frontline workers in sectors that are essential for the Commonwealth’s COVID-19 response: health care, education, and food-related jobs.84
233. In addition to the many harms identified below, see ¶¶ 234-279, terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will hurt the Virginia economy generally. Stripping DACA grantees of the ability to work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State. As of October 4, 2017, DACA-eligible residents contributed approximately $34.7 million annually in state and local taxes in Virginia—a contribution that was estimated to drop by $12.7 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period, impact the Virginia economy with $1 billion in budgetary costs and $3.6 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon). DACA recipients currently contribute approximately $48.7 million annually in state and local taxes in Virginia.85
84 See CAP COVID-19 Report. 85 See CAP Demographic and Economic Impacts Report.
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HARM TO PLAINTIFF STATES BY CATEGORY Diversity, Inclusion, and Constitutional Values.
234. The States have an interest in prohibiting the deprivation of life, liberty or property without due process, and in preventing any practice that denies equal protection of the laws or otherwise discriminates on the basis of race, color, or national origin. For example:
a. New York’s Constitution guarantees all persons the right to equal treatment under the law and forbids discrimination based on race, color, creed or religion. N.Y. Const. art. I, § 11. And New York’s statutes reiterate the State’s strong interest in combatting discrimination and prejudice. See N.Y. Exec. Law § 290.
b. Washington has declared that practices that discriminate against any of its inhabitants because of race, color, or national origin are matters of public concern that threaten the rights and proper privileges of the State and harm the public welfare, health, and peace of the people. See Wash. Rev. Code 49.60.010.
c. Colorado welcomes people of all backgrounds. Colorado law prohibits unlawful discrimination against people based on, among other things, race, national origin, and ancestry. See C.R.S. § 24-34-601; C.R.S. § 24-34-402; C.R.S. § 24-34-502.
d. The State of Connecticut has a strong public policy mandating inclusion, and state law forbids discrimination in education, employment, and public accommodations, and other public goods and rights based on race, national origin, and ancestry. See Conn. Gen. Stat. §§ 46a-60 (employment); 46a-64 (public accommodations); 10-15c (public education); 46a-75 (other educational and vocational programs).
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e. The Illinois Human Rights Act, 775 ILCS 5/1 et seq., establishes a public policy “to secure for all individuals within Illinois the freedom from discrimination against any individual because of his or her … national origin.” See 775 ILCS 5/1-102(A). It further establishes a public policy “to prevent discrimination based on citizenship status in employment.” See 775 ILCS 5/1-102(C).
f. Delaware law broadly prohibits discrimination in multiple areas, including public accommodations, insurance, and employment. See Del. Code. Ann. tit. 6, § 45004516; Del. Code. Ann. tit. 18, § 2304(22); Del. Code. Ann. tit. 19, § 711. The Delaware Equal Accommodations Law “is intended to prevent, in places of public accommodations, practices of discrimination against any person” on numerous bases, including race, color, or national origin. See Del. Code. Ann. tit. 6, § 4501. The law is to be “liberally construed to the end that the rights herein provided for all people. . . may be effectively safeguarded.” Id.
g. The Council of the District of Columbia enacted the District’s Human Rights Act “to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit,” including discrimination based on national origin. See D.C. Code Ann. § 2-1401.01. The District’s Human Rights Act prohibits discrimination in a broad range of areas including employment, education, places of public accommodation, public services, housing and commercial space accommodations, the sale of motor vehicle insurance and the rental of motor vehicles.
h. Through a long tradition of including and incorporating foreign-born persons into its institutions, businesses, and governments, New Mexico has become one of the
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most socially and politically diverse states. New Mexico enshrined in its state constitution three provisions protecting the Spanish language and those who speak it. See N.M. Const. art. VII, § 3 (stating that “[t]he right of any citizen of the state to vote, hold office or sit upon juries shall never be restricted, abridged or impaired on account of . . . language . . . or inability to speak, read or write the English or Spanish languages except as otherwise provided in this constitution”); N.M. Const. art. XII, § 8 (requiring teachers to become proficient in English and Spanish); and N.M. Const. art. XII. § 10 (guaranteeing that “[c]hildren of Spanish descent in the state of New Mexico shall never be denied the right and privilege of admission and attendance in the public schools or other public educational institutions of the state, and they shall never be classed in separate schools, but shall forever enjoy perfect equality with other children in all public schools and educational institutions of the state”). i. Oregon has codified its state policy that practices of unlawful discrimination against any of its inhabitants because of religion or national origin are “a matter of state concern,” and that such discrimination “menaces the institutions and foundation of a free democratic state.” See ORS § 659A.006. j. Pennsylvania’s laws reflect its commitment to values of diversity, multiculturalism and openness to others of different races and nationalities. For example, Pennsylvania’s Human Relations Act recognizes that an individual’s opportunity to obtain employment, public accommodation, housing accommodation and commercial property without discrimination on the basis of “race, color, familial status … ancestry [and] national origin” is a “civil right” that
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is “enforceable” under Pennsylvania law. See 43 P.S. § 953. See also 43 P.S. § 955. k. In keeping with its history of freedom of conscience, equality and tolerance, Rhode Island has prohibited practices that discriminate against any of its inhabitants because of race, color, or national origin. See R.I. Constitution Article 1, section 2; R.I. Gen. Laws 12-19-38 (Hate Crimes Sentencing Act); R.I. Gen. Laws § 42-112-1 (The Civil Rights Act of 1990); R.I. Gen. Laws 28-5-1 (Fair Employment Practices Act); R.I. Gen. Laws 34-37-1 (Fair Housing Practices Act). 235. The States also have an interest in ensuring that their residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law. Harm to States as Employers. 236. The States have an interest in maintaining qualified, trained workforces. 237. Terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will cause the States to lose qualified State employees. Many DACA recipients work in government or at state-run institutions, and they were hired because of their specialized skills and qualifications. The States expended time and funds to hire, train, and manage DACA recipients. If these individuals become ineligible to work, the States will lose the value of their investment and the services of employees who perform important functions for the States. They will also incur the costs associated with the need to recruit, hire, and train replacements. See, e.g., Ex. 52 ¶ 8 (Decl. Mostofi, NYC Mayor’s Office of Immigrant Affairs); Ex. 56 ¶¶ 2-4 (Decl. Quinonez); Ex. 70 ¶ 6 (Decl. I.V.); Ex. 61 ¶ 10 (Decl. Heatwole, UMass); Ex. 62 ¶ 3 (Decl.
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Monroe, Wash. Dept. of Ecology); Ex. 65 ¶ 3 (Decl. Kaplan, WA Dept. of Social and Health Svcs.); Ex. 92 ¶ 3 (Decl. Jones, Wash. Treasury); Ex. 91 ¶ 3 (Decl. Garza, Big Bend Community College); Ex. 64 ¶ 3 (Decl. Glatt, Columbia Basin College); Ex. 58 ¶ 4 (Decl. Loera, Wash. State Univ.); Ex. 130 ¶ 3 (Decl. Conly, WA Dept. of Veterans Affairs); Ex. 113 ¶ 3 (Decl. Schuh, City of Anacortes, WA); Ex. 157 ¶ 9-10 (Decl. Ridder, Portland State Univ.); Ex. 154 ¶ 11 (Decl. Cuprill-Comas, Oregon Health and Science Univ.); Ex. 153 ¶¶ 6, 9 (Decl. Karpilo, Eastern Oregon Univ.); Ex. 156 ¶¶ 9-10 (Decl. Mitsui, Portland Community College); Ex. 167 ¶¶ 3-6 (Decl. Reveley, College of William & Mary); Ex. 134 ¶¶ 31, 37 (Decl. Herbst, Univ. of Conn.); Ex. 124 ¶¶ 4, 11 (Decl. Salaveria, Hawaii Dept. of Business, Economic Development and Tourism); Ex. 168 ¶¶ 3-7 (Decl. Cabrera, George Mason Univ.). Harm to State Colleges and Universities.
238. The States have an interest in the special contributions that DACA grantees make to State colleges and universities as students, employees, and alumni.
239. Terminating DACA or failing to restore DACA to its pre-September 5, 2017 status will harm the ability of the States’ colleges and universities, including public universities, to satisfy their educational missions and prepare the States’ residents for the workforce. See Ex. 61 ¶¶ 5-7 (Decl. Heatwole); Ex. 146 ¶¶ 12-13 (Decl. Clark et al., Mass. State Univ. Pres.); Ex. 134 ¶¶ 15-38 (Decl. Herbst); Ex. 133 ¶¶ 15-24 (Decl. Pachis, Eastern Conn. State Univ.); Ex. 136 ¶¶ 1, 4 (Decl. Hardwick, Univ. of the District of Columbia); Ex. 166 ¶¶ 4-7 (Decl. Sullivan, Univ. of Vermont); Ex. 167 ¶¶ 5-6 (Decl. Reveley); Ex. 137 ¶¶ 4-10 (Decl. Straney, Univ. of Hawaii); Ex. 131 ¶¶ 4-9 (Decl. Miranda, Colorado State Univ.); Ex. 132 ¶¶ 3-10 (Decl. Allen, Univ. of Colorado); Ex. 135 ¶¶ 3-14 (Decl. Rakes, Delaware Tech. Community College); Ex. 152 ¶¶ 10-11, 21 (Decl. Mathewson & Pareja, Univ. of New Mexico School of Law); Ex. 149
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(New Mexico Council of Univ. Presidents Letter); Ex. 157 ¶ 6 (Decl. Ridder); Ex 159 ¶ 5 (Decl. Galvan, Univ. of Oregon); Ex. 155 ¶ 5 (Decl. Alexander, Oregon State Univ.); Ex. 154 ¶¶ 7, 10 (Decl. Cuprill-Comas); Ex. 153 ¶ 7 (Decl. Karpilo); Ex. 160 ¶¶ 7-8 (Decl. Hagemann, Western Oregon Univ.); Ex. 158 ¶ 6 (Decl. Trueblood-Gamble, Southern Oregon Univ.); Ex. 168 ¶¶ 3-7 (Decl. Cabrera); Ex. 86 ¶¶ 7-9 (Decl. Wadhia, Penn. St. University); Ex. 142 ¶¶ 4-5 (Decl. Edgehill-Walden, Northern Illinois Univ.); Ex. 145 ¶ 15 (Decl. Kennedy, Mass. Community Colleges’ Presidents’ Council).
240. DACA has made it possible for many young people to attend colleges and universities in the States, as work authorization allows DACA grantees to work both while they pursue their education and after graduation. More than 90 percent of DACA grantees report that DACA allowed them to pursue educational opportunities previously unavailable to them. See Ex. 5 ¶ 18 (Decl. Wong). For example:
a. The University of Colorado estimates that there are over 200 DACA grantees enrolled across the University. Ex. 132 ¶ 5 (Decl. Allen). Colorado State University has approximately 189 DACA grantees. Ex. 131 ¶ 8 (Decl. Miranda).
b. Connecticut’s state and private colleges and universities welcome DACA grantees. To cite just one instances: Eastern Connecticut State University is home to 205 DACA recipient from across the country, as part of a scholarship program that enables undocumented students from “locked out” states, or states that do not allow undocumented students to attend public college, to pursue a college education.86
86See Press Release, Eastern Hosts Press Conference in Support of DACA (Nov. 13, 2019), https://www.easternct.edu/news/_stories-and-releases/2019/11-november/eastern-hosts-press-conference-in-supportof-daca.html.
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c. Delaware Technical and Community College (“DTCC”) has at least 148 DACA students and at least another 242 graduates who are DACA grantees. See Ex. 135 ¶ 5 (Decl. Rakes). Many of DTCC’s DACA students are nontraditional learners who support their families in addition to pursuing their education. Id. ¶ 8. Another approximate 75 DACA grantees currently attend Delaware State University (“DSU”). See Ex. 66 (Scott Gross, DSU immigrant students fear Trump’s DACA decision, Delawareonline, Sept. 2, 2017). During the 2019-2020 school year, there were about 150 DACA grantees enrolled at DSU.87
d. As of September 2017, there were 16 students who had reported their DACA status to the University of Hawaii and who were pursuing various degrees at multiple University campuses. Ex. 137 ¶ 6 (Decl. Straney). As of Spring 2020, the University of Hawaii had 17 DACA students.
e. In the University of Illinois System, approximately 350 of its students and 100 of its employees would be affected by the termination of DACA. Ex. 143 ¶ 8 (Decl. Wilson, Univ. of Illinois System).
f. In New York, both the State University of New York (“SUNY”) and the City University of New York (“CUNY”) have encouraged DACA grantees to apply as part of their strong commitment to diversity, equity, and inclusion. See Ex. 12 ¶ 10 (Decl. Milliken, CUNY); Ex. 99 (Decl. Johnson, SUNY). At CUNY, hundreds of DACA grantees have enrolled in the university, many with the benefit of full scholarships. See Ex. 12 ¶ 6 (Decl. Milliken); Ex. 171 ¶8 (Decl. Park).
87 Delaware State University, 1st Dreamer Class Graduates (May 16, 2020), https://www.desu.edu/news/2020/05/1st-dreamer-class-graduates.
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g. Many of Oregon’s public colleges and universities, including Portland State University, the University of Oregon, Oregon State University, Oregon Health and Science University, Eastern Oregon University, Western Oregon University, Southern Oregon University and Portland Community College enroll, and in some cases employ, DACA grantees. See Ex. 157 ¶ 4 (Decl. Ridder); Ex. 159 ¶ 5 (Decl. Galvan); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 154 ¶ 5 (Decl. Cuprill-Comas); Ex. 153 ¶¶ 5-6 (Decl. Karpilo); Ex. 160 ¶¶ 6-7 (Decl. Hagemann); Ex. 158 ¶¶ 4-5 (Decl. Trueblood-Gamble); Ex. 156 ¶¶ 6, 9 (Decl. Mitsui); Ex. 94 ¶¶ 5-8 8 (Decl. Ramirez Cuevas); Ex. 101 ¶¶ 1, 3 (Decl. Preciado).
h. Many institutions of higher education in Virginia have students presently enrolled in their educational programs who are DACA grantees. According to the State Council of Higher Education for Virginia (“SCHEV”), the Commonwealth's coordinating body for higher education, there are more than 1,300 DACA students in Virginia attending institutions of higher education. See Ex. 127 ¶¶ 4 (Decl. Blake, SCHEV).
i. According to the Washington Student Achievement Council (“WSAC”), the state agency that advances educational opportunities in Washington, there are more than 1,400 DACA students in Washington attending institutions of higher education. See Ex. 59 ¶ 9 (Decl. Thompson, WSAC). More than one hundred DACA grantees attend the University of Washington, based in Seattle. See Ex. 57 ¶ 4 (Decl. Ballinger, Univ. of Wash.). More than 150 DACA grantees attend Washington State University, based in Pullman. See Ex. 58 ¶ 4 (Decl. Loera, Wash. State Univ.).
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j. Many public colleges and universities in the States have diverse student populations, including a high percentage of Latino/Hispanic students and students who are first generation Americans and first in their families to attend college, as well as undocumented students. See, e.g., Ex. 162 (Letter from Meghan Hughes, Community College of Rhode Island); Ex. 150 ¶ 7 (Decl. Abdallah, University of New Mexico). Although many such schools do not keep data on immigration status, they know that they have DACA grantees as alumni and current students. See Ex. 163 (Letter from Frank Sánchez, Rhode Island College President); Ex. 164 ¶ 6 (Decl. Farish, Roger Williams University); Ex. 161 (Letter from Richard M. Locke, Brown University Provost); Ex. 86 ¶ 6 (Decl. Wadhia); Ex. 146 ¶ 9 (Decl. Clark et al.).
241. DACA grantees who are residents of Connecticut, Delaware, District of Columbia, Hawaii, Illinois, New Mexico, Massachusetts, Virginia, or Washington receive instate tuition at public universities within their state of residence and/or are eligible for other financial assistance. See C.R.S. § 23-7-110; Ex. 132 ¶ 4 (Decl. Allen); 110 ILCS 305/7e-5; Ex. 131 ¶ 7 (Decl. Miranda); Ex. 134 ¶ 8 (Decl. Herbst); Ex. 7 (Mass. Dept. of Higher Education Memorandum, Residency Status for Tuition Classification Purposes – Deferred Action for Childhood Arrivals, Nov. 21, 2012); Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 146 ¶ 7 (Decl. Clark et al.); Ex. 133 ¶¶ 8-12 (Decl. Pachis); Conn. Gen. Stat. § 10a-29; Ex. 135 ¶¶ 11-12 (Decl. Rakes); Ex. 136 ¶ 10 (Decl. Hardwick); Ex. 150 ¶ 12 (Decl. Abdallah); Or. Rev. Stat. § 352.287; Ex. 167 ¶ 4 (Decl. Reveley); Ex. 106 ¶ 5 (Decl. Suria); Ex. 137 ¶ 5 (Decl. Straney); Ex. 157 ¶ 4 (Decl. Ridder); Ex. 94 ¶ 7 (Decl. Ramirez Cuevas).
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242. If the DACA program is terminated or not restored to its pre-September 5, 2017 status, talented young immigrants will be less likely to apply to and attend State schools because they will not be able to afford tuition given the loss of available financial assistance (in some of the States) and the likelihood that they will not be able to work legally upon graduation (in all the States). Those already enrolled will be less likely to finish their education at State schools due to the loss of current and future earning potential. See Ex. 12 ¶ 7-8 (Decl. Milliken); Ex. 56 ¶ 7 (Decl. Quinonez); Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 146 ¶¶ 8, 12 (Decl. Clark et al.); Ex. 72 ¶ 5 (Decl. Teodoro); Ex. 132 ¶ 7 (Decl. Allen); Ex. 131 ¶ 8 (Decl. Miranda); Ex. 136 ¶ 6 (Decl. Hardwick); Ex. 69 ¶¶ 8, 10 (Decl. Mendes); Ex. 60 ¶¶ 6, 9 (Decl. Guevara); Ex. 145 ¶ 8 (Decl. Kennedy); Ex. 135 ¶¶ 7-10 (Decl. Rakes); Ex. 139 ¶ 6 (Decl. Dietz, Illinois State Univ.); Ex. 143 ¶ 8 (Decl. Wilson); Ex. 106 ¶ 7 (Decl. Suria); Ex. 105 ¶ 5 (Decl. Oduyoye); Ex. 134 ¶¶ 16-17 (Decl. Herbst); Ex. 137 ¶ 7 (Decl. Straney); Ex. 152 ¶¶ 18-20 (Decl. Mathewson & Pareja); Ex. 101 ¶ 4 (Decl. Preciado); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 168 ¶ 6 (Decl. Cabrera); Ex. 160 ¶¶ 7-8 (Decl. Hagemann); Ex. 153 ¶¶ 7-8 (Decl. Karpilo); Ex. 95 ¶ 8 (Decl. Solano); Ex. 157 ¶¶ 6-7 (Decl. Ridder); Ex. 159 ¶¶ 5-6 (Decl. Galvan); Ex. 158 ¶¶ 6, 8, 11 (Decl. Trueblood-Gamble); Ex. 154 ¶¶ 7-10 (Decl. Cuprill-Comas); Ex. 133 ¶ 13 (Decl. Pachis); Ex. 57 ¶ 4 (Decl. Ballinger); Ex. 58 ¶ 5 (Decl. Loera); Ex. 163 (Sánchez Letter, Rhode Island College); Ex. 165 ¶ 4 (Decl. Linde, Rhode Island College); Ex. 166 ¶ 6 (Decl. Sullivan); Ex. 167 ¶¶ 4-5 (Decl. Reveley); Ex. 164 ¶ 7 (Decl. Farish); Ex. 171 ¶¶7-9 (Decl. Park).
243. Additionally, DACA students enrolled in programs that require employment authorization or entail licensing requirements to complete elements of the program—such as paid internships, clinical placement, residency training, or programs that require significant lab or field work—will be severely and adversely impacted if DACA is terminated or not restored to its
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pre-September 5, 2017 status. Indeed, these students may not be able to complete the academic requirements of their degrees. See, e.g., Ex. 12 ¶ 8 (Decl. Milliken); Ex. 61 ¶ 6 (Decl. Heatwole); Ex. 135 ¶ 9 (Decl. Rakes); Ex. 136 ¶ 7 (Decl. Hardwick); Ex. 166 ¶¶ 6-7 (Decl. Sullivan); Ex. 134 ¶ 33 (Decl. Herbst); Ex. 132 ¶ 7 (Decl. Allen); Ex. 131 ¶ 8 (Decl. Miranda); Ex. 152 ¶ 19 (Decl. Mathewson & Pareja); Ex. 145 ¶ 9 (Decl. Kennedy); Ex 6 ¶¶ 13-15 (Decl. C. Andrade).
244. DACA students in graduate programs at public universities in the States will be significantly affected by the termination of the DACA program or failure to restore it to its preSeptember 5, 2017 status because the loss of employment authorization needed for graduate assistantship (research or teaching) will likely mean the loss of tuition waivers and other benefits such as subsidized health, dental, and vision insurance for the students and their families. The loss of graduate assistants also is a significant harm to the States because of the services they provide in assisting faculty and instructing students. See Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 134 ¶¶ 31-32 (Decl. Herbst).
245. Losing these talented young immigrants will deprive the States’ schools of the special and unique contributions and perspectives they bring to campus communities, both as students and alumni. See, e.g., Ex. 57 ¶¶ 4-6 (Decl. Ballinger); Ex. 58 ¶¶ 4-8 (Decl. Loera); Ex. 61 ¶ 7 (Decl. Heatwole); Ex. 132 ¶¶ 6-7 (Decl. Allen); Ex. 131 ¶ 9 (Decl. Miranda); Ex. 134 ¶¶ 19-26, 36-38 (Decl. Herbst); Ex. 133 ¶¶ 23-24 (Decl. Pachis); Ex. 135 ¶¶ 3, 13 (Decl. Rakes); Ex. 137 ¶¶ 7-8, 10 (Decl. Straney); Ex. 139 ¶¶ 3, 4, 7 (Decl. Dietz); Ex. 152 ¶¶ 10, 18, 21 (Decl. Mathewson & Pareja); Ex. 157 ¶ 11 (Decl. Ridder); Ex. 159 ¶¶ 8-9 (Decl. Galvan); Ex. 155 ¶¶ 6, 8 (Decl. Alexander); Ex. 154 ¶ 7 (Decl. Cuprill-Comas); Ex. 153 ¶ 10 (Decl. Karpilo); Ex. 160 ¶ 5 (Decl. Hagemann); Ex. 158 ¶ 9 (Decl. Trueblood-Gamble); Ex. 163 (Sánchez Letter); Ex. 165
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¶ 4 (Decl. Linde); Ex. 166 ¶¶ 6-7 (Decl. Sullivan); Ex. 167 ¶¶ 4-5 (Decl. Reveley); Ex. 136 ¶ 8 (Decl. Hardwick); Ex. 145 ¶¶ 10-11 (Decl. Kennedy).
246. The States’ public universities and colleges will also suffer direct financial harm, including lost tuition revenue and scholarship funds, if DACA students are forced to withdraw or are unable to enroll. See, e.g., Ex. 57 ¶¶ 4-6 (Decl. Ballinger); Ex. 58 ¶¶ 4-8 (Decl. Loera,); Ex. 61 ¶ 7 (Decl. Heatwole); Ex. 134 ¶¶ 27-28 (Decl. Herbst); Ex. 133 ¶¶ 17-18 (Decl. Pachis); Ex. 136 ¶ 8 (Decl. Hardwick); Ex. 137 ¶ 9 (Decl. Straney); Ex. 157 ¶¶ 6-7 (Decl. Ridder); Ex. 159 ¶ 5 (Decl. Galvan); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 154 ¶ 8 (Decl. Cuprill-Comas); Ex. 153 ¶¶ 7-8 (Decl. Karpilo); Ex. 160 ¶¶ 6-8 (Decl. Hagemann); Ex. 158 ¶ 6 (Decl. Trueblood-Gamble); Ex. 163 (Sánchez Letter); Ex. 164 ¶ 9 (Decl. Farish); Ex. 132 ¶ 10 (Decl. Allen); Ex. 131 ¶ 9 (Decl. Miranda); Ex. 145 ¶¶ 10-14 (Decl. Kennedy). In at least one state (Oregon), current demographic and enrollment trends and other factors suggest that this lost revenue will not be replaced by other students for many universities, and will represent an absolute loss of revenue. See Ex. 160 ¶ 8 (Decl. Hagemann); Ex. 158 ¶ 7 (Decl. Trueblood-Gamble); Ex. 157 ¶ 7 (Decl. Ridder).
247. The termination of DACA or failure to return DACA to its-pre-September 5, 2017 status also will impose additional tangible costs on our public colleges and universities, which already have experienced disruption as a result of uncertainty over the future of the program and are preparing for the likelihood of expending additional resources to address the detrimental effects of DACA termination. See, e.g., Ex. 61 ¶¶ 8-9 (Decl. Heatwole); Ex. 134 ¶¶ 35, 38 (Decl. Herbst); Ex. 136 ¶¶ 8-9 (Decl. Hardwick); Ex. 157 ¶ 12 (Decl. Ridder); Ex. 155 ¶ 7 (Decl. Alexander); Ex. 153 ¶ 11 (Decl. Karpilo); Ex. 160 ¶ 9 (Decl. Hagemann); Ex. 158 ¶¶ 10, 12 (Decl. Trueblood-Gamble); Ex. 132 ¶ 9 (Decl. Allen); Ex. 167 ¶ 6 (Decl. Reveley).
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248. The termination of DACA or failure to return DACA to its-pre-September 5, 2017 status will further deprive the States of the earning potential of graduates from public colleges and universities who are most likely to stay in-State and join the States’ workforces. See, e.g., Ex. 132 ¶ 9 (Decl. Allen). For example:
a. Nine out of ten Massachusetts public higher education graduates remain in the State, working or pursuing further education. See Ex. 93 (Mass. Dept. of Higher Education, Time to Lead, The Need for Excellence in Public Higher Education, Sept. 2012).
b. The majority of Iowa public higher education graduates remain in Iowa, working or pursuing further education. See Ex. 67 at 26 (The University of Iowa Pomerantz Career Center, 2015-2016 Annual Report); Ex. 68 (Iowa State University 6-Month Post Graduation Status, 2014-2015; Ex. 73 at 2 (Career Ready, University of Northern Iowa Career Services, 2016).
c. Nearly 90 percent of Community College of Rhode Island graduates stay in Rhode Island after graduation to live and raise their families. Ex. 162 (Hughes Letter).
d. About 75 percent of Connecticut’s public college and university graduates stay in Connecticut to begin their careers.88 At Eastern Connecticut State University, which hosts a nationwide scholarship program for DACA grantees, the in-state retention rate is even higher: Approximately 85 to 87 percent of Eastern Connecticut State University graduates stay in Connecticut after graduation to
88 See Connecticut Business and Industry Association, Why College Graduates Choose Connecticut (Jan. 29, 2020), https://www.cbia.com/news/economy/why-college-graduates-choose-connecticut/.
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“contribute[] to the growth and vitality of Connecticut’s economy.” Ex. 133 ¶ 16 (Decl. Pachis). 249. Terminating DACA will also undermine the investment in and efforts to develop a well-educated workforce that can contribute to the States’ overall economies and competitiveness, and the States’ ability to meet certain critical workforce needs such as healthcare in rural areas. See, e.g., Ex. 159 ¶ 6 (Decl. Galvan); Ex. 154 ¶¶ 6, 10 (Decl. CuprillComas); Ex. 156 ¶ 11 (Decl. Mitsui). As of October 4, 2017, 100 DACA grantees are medical students and medical resident physicians at schools that are members of the Association of American Medical Colleges, and approximately two-thirds of these DACA grantees are pursuing their medical education in one of the States. See Ex. 114 ¶ 4 (Decl. Prescott, Association of American Medical Colleges). Aspiring DACA-grantee physicians contribute to a diverse and culturally responsive workforce to meet the needs of underserved populations. See id. ¶¶ 5-6. Terminating DACA or failing to to return DACA to its-pre-September 5, 2017 status will cause the States to lose specific investments that they have made in this workforce and will leave significant gaps in the States’ healthcare workforce. See id. ¶ 7; Ex. 85 ¶¶ 5-6 (Decl. Swenson). For example: a. In Illinois, DACA grantees have participated in a loan program, through the Illinois Finance Authority, in which students receive interest-free loans so long as they agree to repay the principal and commit to four years of work in an underserved Illinois community following their graduation. Ex. 141 ¶ 6 (Decl. Pelissero & Callahan, Loyola Univ. of Chicago). Without DACA, underserved Illinois communities will lose access to these committed medical professionals. Id. ¶ 8.
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b. Oregon’s legislature has established a program to provide scholarships to health professional students who commit to practicing in rural and underserved areas of the state for a period of time following graduation. See ORS 348.303.
250. The nation’s leading private universities will suffer harms if DACA is terminated or not restored to its pre-September 5, 2017 status. As of October 4, 2017, for example, Harvard University had more than 50 DACA students enrolled. See Ex. 96 ¶ 6 (Decl. Madsen, Harvard Univ.). Tufts University had more than 25 DACA students as of that date. See Ex. 97 ¶ 8 (Decl. Jeka, Tufts Univ.). Brown University had approximately 12 DACA students as of that date. See Ex. 161 (Locke Letter). Roger Williams University, home to Rhode Island’s only law school, had at least six DACA students as of that date. See Ex. 164 ¶ 6 (Decl. Farish). These students often have had to overcome significant challenges in order to gain acceptance and bring critical perspectives, insights, and experiences to their universities. They make important and lasting contributions, including through their classroom participation, their extracurricular engagements, and their commitment to independent study and research. See, e.g., Ex. 97 ¶ 5 (Decl. Jeka); Ex. 96 ¶¶ 5, 7, 12 (Decl. Madsen); Ex. 144 ¶¶ 4-5 (Decl. Martin, Amherst College); Ex. 147 ¶ 7 (Decl. Stephens, Mount Holyoke College); Ex. 140 ¶¶ 4, 6, 9 (Decl. Jensen, Illinois Wesleyan Univ.); Ex. 141 ¶¶ 4, 5, 6, 7,8 (Decl. Pelissero & Callahan); Ex. 138 ¶¶ 6, 11 (Decl. Salgado, City Colleges of Chicago); Ex. 164 ¶¶ 8-9 (Decl. Farish); Ex. 161 (Locke Letter).
251. Employment authorization gives these students and their universities an assurance that they may put their talents to use in the United States job market after graduation, benefitting the States and the nation as a whole. See, e.g., Ex. 96 ¶¶ 12-15 (Decl. Madsen); Ex. 161 (Locke Letter); Ex. 144 ¶ 9 (Decl. Martin, Amherst); Ex. 147 ¶¶ 8-9 (Decl. Stephens). The New Mexico legislature in January 2020 passed amendments to permit professional licensure eligibility
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without regard to citizenship status or lawful presence, SB 137, signed March 6, 2020, a measure directly benefitting DACA students. Two of the most effective spokeswomen for the amendments to professional licensure laws were then students themselves—one, a law student now graduated and serving immigrants seeking citizenship status; the other, a medical student now in surgical rotations, whose intent is to serve the immigrant community in public health settings.
252. DACA has allowed these students to step outside the shadow of their immigration status and to participate fully as members of academic and campus communities in ways that likely would not be possible otherwise. See, e.g., Ex. 140 ¶¶ 7, 8 (Decl. Jensen); Ex. 97 ¶ 7 (Decl. Jeka); Ex. 96 ¶ 12 (Decl. Madsen); Ex. ¶ 7 (Decl. Martin, Amherst). Terminating DACA or failing to restore it to its pre-September 5, 2017 status will take important opportunities away from DACA students and reintroduce fear and uncertainty into their lives, with significant adverse effects on these students, their universities, and the broader community. See Ex. 140 ¶¶ 7, 8 (Decl. Jensen); Ex. 97 ¶¶ 8-10 (Decl. Jeka); Ex. 96 ¶ 13 (Decl. Madsen); Ex. 144 ¶ 10 (Decl. Martin, Amherst); Ex. 148 ¶ 6 (Decl. Martin, Northeastern Univ.); Ex. 147 ¶ 10 (Decl. Stephens); Ex. 161 (Locke Letter); Ex. 103 ¶ 8 (Decl. Perla); Ex. 106 ¶ 7 (Decl. Suria); Ex. 105 ¶ 5 (Decl. Oduyoye); Ex. 104 ¶ 7 (Decl. G.L.); Ex. 102 ¶¶ 12-14 (Decl. Juarez); Ex. 152 ¶ 19 (Decl. Mathewson & Pareja); Ex. 151 ¶¶ 14, 16 (Decl. Roth, UNMHSC); Ex. 107 ¶¶ 7-8 (Decl. Torrez). Harm to State Law, Regulation, and Policy.
253. The States have an interest in preserving their legal, regulatory, and policy frameworks that take the DACA program into account.
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254. Many of the States have enacted laws, promulgated regulations, and/or established policies that contemplate and rely on the DACA program. If DACA is terminated or not restored to its pre-September 5, 2017 status, these legal, regulatory, and policy regimes will be harmed. For example:
a. Since 2012, Connecticut has granted driver’s licenses to approximately 5,000 DACA grantees who are Connecticut residents, many of whom have also purchased and registered vehicles in Connecticut. See Ex. 121 ¶¶ 6-7 (Decl. Bzdyra). DACA grantees who have purchased and registered vehicles will have paid Connecticut sales tax and local property taxes for such vehicles. Id. ¶¶ 8-9.
b. Illinois has enacted laws to enable DACA grantees to participate in the economy professionally. These include providing that no person in Illinois shall be prohibited from receiving a law license solely because he or she is not a citizen and explicitly allowing DACA grantees to apply for a license to practice law. See 705 Ill. Comp. Stat. 205/2. DACA grantees are also eligible to receive state-issued identification cards and drivers’ licenses; own motor vehicles which are registered, titled and licensed in the state of Illinois; and own businesses and property in Illinois. See Ex. 125 ¶ 6 (Decl. White, Illinois Secretary of State). The Office of the Illinois Secretary of State will be adversely impacted if DACA is terminated by the loss of revenue from licensing fees and taxes, as well as costs and system disruptions related to eligibility determinations of license renewals for DACA recipients. Id. ¶ 7. Illinois administrative rules, regulations and laws will also need to be amended to conform to the changes in the DACA program. Id.
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c. Under DACA, thousands of young Massachusetts and Oregon residents are able to receive social security cards and thereby have access to driver’s licenses, which they depend on to attend heath care appointments, to commute to work and school, and to attend to other necessities for themselves and their family members. See Ex. 9 (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements); ORS 807.021 (proof of legal presence required to issue, renew or replace driver license); Ex. 175 (Attorney General Advisory Letter to Acting Commissioner J. Eric Boyette, Jan.17, 2013); Ex. 101 ¶ 3 (Decl. Preciado); Ex. 71 ¶¶ 5-7, 9 (Decl. I.T.); Ex. 69 ¶¶ 7-8 (Decl. Mendes); Ex. 70 ¶¶ 5, 8 (Decl. I.V.). Terminating DACA will make it impossible for these individuals to apply for new licenses or renew the licenses they have, leading to a number of adverse outcomes, including a decrease in licensing fees paid to the States, a decrease in productivity of these residents, and an increase in unlicensed drivers on the road.
Harm to Public Health and Health Care Costs. 255. The States have an interest in protecting the public health and in minimizing
health care costs expended by the States. 256. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will
harm public health and impose additional health care costs on the States. Work authorization allows DACA grantees to access employer-sponsored health benefits. See, e.g., Ex. 72 ¶ 4 (Decl. Teodoro); Ex. 69 ¶¶ 6, 10 (Decl. Mendes); Ex. 171 ¶18 (Decl. Park); Ex. 172 ¶8 (Decl. Morales); Ex. 110 ¶ 8 (Decl. Schlosberg, District of Columbia Department of Health Care Finance). In fact, more than 50% of DACA grantees have obtained employer-provided insurance. See Ex. 5 ¶ 12
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(Decl. Wong). Without these benefits, more of the States’ residents are likely to forgo needed health care, including preventive care, which will create more costly health problems in the long run. It also will cause more people to rely on state-funded and/or state-administered public health care and other benefits and thus impose additional costs on the States. For example:
a. Colorado provides emergency Medicaid regardless of immigration status, which covers the hospital delivery of children for qualified undocumented immigrants. See Ex. 78 at 1-2 (Colorado Department of Health Care Policy and Financing letter dated June 28, 2005).
b. Delaware provides limited emergency and labor/delivery services to residents whose immigration status otherwise keeps them from accessing health care benefits and services. See Ex. 122 ¶¶ 6-7 (Decl. Groff).
c. The D.C. HealthCare Alliance is the District of Columbia’s state-sponsored insurance program of last resort. See Ex. 110 ¶¶ 6, 9 (Decl. Schlosberg); see also D.C. Code § 7-771.07(2). The placement of all of the individuals in the District participating in the DACA program in 2017 onto the D.C. HealthCare Alliance would require the District to spend additional money on that program, harm District finances, and prevent the District from spending that money on other public health priorities. See Ex. 110 ¶ 10 (Decl. Schlosberg). In fact, the placement of these individuals onto the D.C. HealthCare Alliance could cost the District an additional $283,000 per month in District of Columbia Fiscal Year 2018. See id. ¶ 12.
d. Under Hawaii’s Prepaid Health Care Act, Haw. Rev. Stat. ch. 393, Hawaii employers are required to provide regular employees who meet wage
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requirements with coverage under a qualifying prepaid group health care plan. See Haw. Rev. Stat. § 393-11. The termination of DACA will likely cause more people to rely on Hawaii’s state-administered Medicaid One-Time Emergency services. Hawaii reimburses hospitals for emergency and urgent services provided to qualifying uninsured Hawaii patients, including undocumented immigrants. Ex. 123 ¶¶ 5-6 (Decl. Peterson, Med-QUEST Division, Hawaii Department of Human Services). e. In Massachusetts, DACA grantees who lose employer-based coverage may be eligible for MassHealth, a state-funded health insurance program. See Ex. 83 ¶¶ 57 (Decl. Caplan, Mass. Executive Office of Health and Human Services). In addition, Massachusetts will very likely have to cover some, if not all, of the costs of health care visits for these individuals through its state-administered Health Safety Net program or other programs. Id. ¶¶ 8-9. Finally, some DACA grantees who lose employer-based coverage will likely use providers, like communitybased health centers, that are funded in part by grants and other funding streams available through the state. Id. ¶¶ 10-14. 257. The State of New York currently funds Medicaid coverage for low-income undocumented immigrants who have received deferred action, including DACA-eligible immigrants. See Ex. 77 (Office of Health Insurance Program, Children’s Health Insurance Program Reauthorization Act (CHIPRA) Expanded Coverage for Certain Qualified and PRUCOL Aliens, May 7, 2013). Terminating DACA may reduce access to Medicaid for current DACA grantees. The State of New York currently funds Medicaid coverage for low-income undocumented immigrants who have received deferred action, including DACA-eligible
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immigrants. See Id. Individuals in New York who are not DACA grantees may only qualify for Medicaid coverage of care and services necessary to treat an emergency condition. Terminating DACA will require New York to either seek a State legislative change to maintain current Medicaid coverage formerly DACA-eligible immigrants with state dollars only or limit Medicaid coverage to treatment of emergency conditions for some or all of these individuals. Harm to Small Cities, Counties, and Towns.
258. The States have an interest in preventing economic and other harm to their small cities, towns, counties, and other small governmental jurisdictions.
259. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will harm small governmental jurisdictions in the States. If DACA is terminated, small governmental jurisdictions will lose talented and trained employees, adversely affecting operations and costing time, money, and effort to replace and retrain these employees. See, e.g., Ex. 111 ¶¶ 10-11 (Decl. Ambrosino & Bourque, City of Chelsea, MA and Chelsea Public Schools); Ex. 113 ¶¶ 4-6 (Decl. Schuh). Many of these employees are highly skilled workers, including in critical fields such as nursing. See, e.g., Ex. 135 ¶¶ 10, 13 (Decl. Rakes); Ex. 98 ¶ 7, 10-11 (Naveed).
260. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will have a direct, adverse effect on economies and sales tax revenues of small cities and towns, as DACA grantees will lose their jobs and refrain from buying goods and services from local vendors. See, e.g., Ex. 111 ¶ 16 (Decl. Ambrosino & Bourque); Ex. 176 ¶¶ 8-10, 13 (Decl. Kennedy, City of Newburgh).
261. DACA grantees average higher earning capacities than their undocumented peers and are able to better participate in the States’ economies, for example by purchasing homes and cars that are taxed by our state and local authorities. See Ex. 5 ¶ 16 (Decl. Wong). If DACA is
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terminated or not restored to its pre-September 5, 2017 status, cities and towns will lose other local tax revenue, including real estate taxes and motor vehicle excise taxes, from DACA grantees who can no longer access lines of credit or afford to buy cars or homes.
262. If DACA is terminated or not restored to its pre-September 5, 2017 status, small governmental jurisdictions will lose the benefits that full access by and participation of a diverse community fosters through community activities, including, for example, activities in libraries and local government-sponsored recreational camps or sports leagues. See, e.g, Ex. 109 ¶¶ 5-6 (Decl. Meyer, New Castle County, Del.). The termination of DACA or failure to restore it to its pre-September 5, 2017 status will also have a destructive effect on local industries of small governmental jurisdictions that rely on the work of highly qualified and trained DACA recipients. Ex. 176 ¶¶ 4, 8-10, 13 (Decl. Kennedy, City of Newburgh).
263. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will also adversely affect public safety, health, and wellbeing in the States’ cities, towns, and schools. Without DACA status, DACA grantees afraid of deportation will be less likely to report violence, abuse, crimes or other harms to the community. If DACA is terminated or not restored to its pre-September 5, 2017 status, 53% of current DACA grantees may be less likely to report a crime they witnessed; 47% may be less likely to report a crime even if they were the victim; 48% may be less likely to go to the hospital if they suffered an injury, and 60% may be less likely to report wage theft by their employer. See Ex. 5 ¶ 24 (Decl. Wong). This will make it harder for local police and other officials to provide for the public safety and welfare. See, e.g., Ex. 111 ¶ 15 (Decl. Ambrosino & Bourque); Ex. 108 ¶¶ 7-10 (Decl. Hughes); Ex. 109 ¶ 6 (Decl. Meyer); Ex. 116 ¶¶ 10-13 (Decl. Graham, Delaware Community Legal Aid Society, Inc.). For example, since the Trump Administration announced plans to end DACA, Delaware law enforcement and
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legal aid have recognized an increased reluctance among Delaware immigrants to engage with aspects of the criminal justice system—even when that interaction would have been to protect their own victim rights. See, e.g., Ex. 108 ¶¶ 7-10 (Decl. Hughes); Ex. 116 ¶¶ 10-13 (Decl. Graham). Harm to School Districts, Including Small School Districts.
264. The States have an interest in effectively educating elementary and secondary students and in preventing economic harm to small and large school districts.
265. If DACA is terminated or not restored to its pre-September 5, 2017 status, public school districts will suffer financial harm as well as harm to their educational missions.
266. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will cause school districts to lose talented and experienced teachers and other staff members who are DACA grantees, adversely affecting student education and costing time, money, and effort to replace and retrain these employees. See Ex. 111 ¶ 11 (Decl. Ambrosino & Bourque); Ex. 79 (Whaley, Denver Public Schools say ending DACA would have “catastrophic” effect, Denver Post, Aug. 31, 2017).
267. In Connecticut, Colorado, Illinois, Massachusetts, New Mexico, and New York, Teach for America has placed teachers who are DACA grantees in shortage-area subjects and hard-to-staff schools in low-income communities. See Ex. 11 ¶¶ 3, 11 (Decl. Carrizales, Teach For America). Terminating DACA or failing to restore it to its pre-September 5, 2017 status will not only deprive schools of their employees, but also deprive students of teachers whose live experiences may mirror their own lives. Id. ¶¶ 10, 11.
268. Public elementary and secondary schools have a constitutional obligation to educate students irrespective of immigration status. See Plyler v. Doe, 457 U.S. 202 (1982). The
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termination of DACA or failure to restore it to its pre-September 5, 2017 status will harm the States’ ability to educate DACA-eligible students as required by federal law. See Ex. 111 ¶¶ 12,14 (Decl. Ambrosino & Bourque); Ex. 112 ¶ 3-4 (Decl. Kanninen, Arlington, VA Public Schools).
269. If DACA-eligible students are no longer able to work legally after high school or cannot afford to go to college, these students will be less motivated to achieve in school. See Ex. 111 ¶ 12 (Decl. Ambrosino & Bourque); Ex. 112 ¶ 3 (Decl. Kanninen). This will result in lower scores and higher dropout rates for these students. See Ex. 111 ¶ 12 (Decl. Ambrosino & Bourque).
270. Poorer performance will impact school districts’ accountability ratings and could require removal of administrators and teachers as well as increased state funding to flow to these school districts. See, e.g., Ex. 179 (Mass. Dep’t of Early and Secondary Educ., School Leader’s Guide to the 2017 Accountability Determinations, Sept. 2017). Decreased school performance will also negatively impact the community, with families not wanting to buy homes in a lowerperforming district. See Ex. 111 ¶ 13 (Decl. Ambrosino & Bourque).
271. Finally, DACA-eligible students will experience higher levels of anxiety about their futures and their families’ futures, and will require additional counseling and support from guidance counselors and other school personnel, costing school districts time and money. See Ex. 111 ¶ 14 (Decl. Ambrosino & Bourque). Harm to Businesses and Nonprofits.
272. The States have an interest in their tax revenues, economies, and the financial well-being of their businesses and nonprofits.
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273. Immigration is an important economic driver in the States. Many of the States’ workers are immigrants, and many of those immigrant workers are DACA grantees. See, e.g., Ex. 5 ¶ ¶ 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84, 88 (Decl. Wong); Ex. 126 ¶ 11 (Decl. Read, Oregon State Treasurer); Ex. 95 ¶ 7 (Decl. Solano); Ex. 101 ¶ 4 (Decl. Preciado); Ex. 100 ¶ 6 (Decl. Nicolas); Ex. 124 ¶¶ 4, 10-11 (Decl. Salaveria); Ex. 168 ¶ 3 (Decl. Cabrera); Ex. 120 ¶ 4 (Decl. Romero, Barrera Legal Group, PLLC); Ex. 174 ¶¶ 4,6,8 (Decl. Wylde, Partnership for NYC); Ex. 81 ¶¶ 2-3, 5-6 (Decl. Pinsky, ABNY). Many companies in the States are dependent on DACA grantees to operate and grow their businesses. The market for highly skilled workers and employees is extremely competitive. Terminating DACA grantees’ work authorization will inhibit the States’ companies’ ability to adequately staff their organizations, develop their workforces, recruit talent, and maintain trained employees. The Center for American Progress estimates that it costs businesses roughly one-fifth of a worker’s salary to replace a worker due to productivity loss, the cost of hiring and training a new employee, and ramp-up periods for new employees. See Ex. 80 (Heather Boushey and Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Center for American Progress, November 16, 2012).
274. If companies lose employees and recruiting efforts are less successful, their ability to develop and deliver successful products and services may be adversely affected. See e.g., Ex. 63 ¶¶ 4-5 (Decl. Blackwell-Hawkins, Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex. 8 ¶¶ 7-8 (Decl. Mutty, Starbucks); Ex. 84 ¶¶ 4-11 (Decl. Kalvert, TripAdvisor); Ex. 119 ¶¶ 5-6 (Decl. Tingen, Tingen & Williams, PLLC); Ex. 174 ¶¶ 5-8 (Decl. Wylde, Partnership for NYC). For example:
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a. Colorado’s talented workforce has attracted major industries to the State, including aerospace, high-tech, start-ups, and STEM-based employers. Many companies in Colorado rely heavily on immigrants to operate their business. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will disrupt these companies with DACA employees that are forced to terminate qualified and talented employees.
b. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will kneecap Connecticut’s technology-driven economy, which dependent on immigrant workers: Nearly a quarter of employees in the state’s vital science, technology, engineering, and math sector are immigrants.89
c. In Hawaii, businesses rely heavily on immigrants who bring their talent, knowledge, and expertise to Hawaii’s labor force. See Ex. 124 ¶ 4 (Decl. Salaveria). Prior to the increase in unemployment caused by the COVID-19 crisis, Hawaii had a very low unemployment rate, and the state’s businesses had difficulty filling their vacant positions. Id. ¶ 8. If or when the COVID-19 crisis ends, and Hawaii returns to the low level of unemployment that was previously the trend, the departure of the DACA population from Hawaii’s workforce will eventually cause difficulty for Hawaii employers, and have a negative impact on Hawaii’s economy. Id. ¶ 11.
d. Agriculture and forestry are two of Virginia’s largest private industries. The Virginia Department of Agriculture and Consumer Services estimates that
89 See New American Economy, Immigrants and the Economy in Connecticut, https://www.newamericaneconomy.org/locations/connecticut/.
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approximately 1,944 of Virginia’s DACA grantees employed in primary agricultural production. See Ex. 129 ¶ 3 (Decl. Gooden, Virginia Sec’y of Agriculture and Forestry). Further, a percentage of DACA recipients are also likely to be regulated pesticide applicators. The loss of DACA status for these individuals would harm agricultural production and reduce income to Virginia from pesticide applicator licensing fees. See id. ¶ 7. e. In Washington, DACA grantees work for the largest companies as software engineers, finance professionals, and retail and sales associates, including for Amazon, Microsoft and Starbucks. See Ex. 63 ¶¶ 4-5 (Decl. Blackwell-Hawkins, Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex. 8 ¶¶ 7-8 (Decl. Mutty, Starbucks). f. In New York, businesses depend on the work of DACA grantees. See Ex. 170 ¶¶ 3, 7-8, 10 (Decl. Schwartz, Univision); Ex. 169 ¶ 7 (Decl. Greenberg, Warby Parker); Ex. 172 ¶¶ 4-5 (Decl. Morales); Ex. 174 ¶¶ 4-8 (Decl. Wylde, Partnership for NYC). DACA recipients are the consumer base for many New York businesses. Ex. 170 ¶¶ 5-6 (Decl. Schwartz, Univision); Ex. 169 ¶¶ 6-7 (Decl. Greenberg, Warby Parker). DACA grantees also provide diverse perspectives and promote inclusiveness. Ex. 170 ¶¶ 3-9 (Decl. Schwartz, Univision); Ex. 169 ¶¶ 811 (Decl. Greenberg, Warby Parker); Ex. 174 ¶¶ 5,8 (Decl. Wylde, Partnership for NYC); ; Ex. 81 ¶¶ 2-8 (Decl. Pinsky, ABNY). 275. The impact on small businesses and nonprofit organizations will be especially stark. For entities with limited staff and operating budgets, losing even one skilled and trained DACA grantee employee will place an economic strain on operations, hiring, and training. See,
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e.g, Ex. 118 ¶¶ 9-11 (Decl. Igneri); Ex. 117 ¶¶ 5-8 (Decl. Tracy); Ex. 120 ¶ 4 (Decl. Romero); Ex. 119 ¶¶ 5-6 (Decl. Tingen). Further, many DACA grantees contribute their talents to nonprofits in a range of fields, including education and civic engagement. See, e.g, Ex. 55 ¶¶ 8-9 (Decl. Perez); Ex 98 ¶ 12 (Decl. 98 Naveed).
276. The mission of nonprofit organizations in the States will also be adversely affected by the termination of DACA or failure to restore it to its pre-September 5, 2017 status. Ex. 174 ¶¶ 3-8 (Decl. Wylde, Partnership for NYC). Many nonprofit organizations in the States serve immigrant communities, including by providing legal services and advocacy. Termination of DACA or failure to restore it to its pre-September 5, 2017 status will throw families into crisis, creating higher demand for services from organizations with limited resources. See Ex. 117 ¶¶ 12-14 (Decl. Tracy, Brazilian Worker Center); Ex. 115 ¶¶ 2-7 (Decl. Tack-Hooper, Am. Civil Liberties Union of Delaware); Ex. 116 ¶¶ 2-8 (Decl. Graham). Harm to Families.
277. The States have an interest in protecting the welfare of all of their residents, including the families of DACA grantees.
278. Terminating DACA or failing to restore it to its pre-September 5, 2017 status will harm the general welfare of the States’ DACA grantees and their families in profound ways. Most DACA grantees live in households with family members who are American citizens. One expert survey estimates that 73% percent of DACA grantees in the country live with a citizen sibling, spouse, or child. See Ex. 5 ¶ 34 (Decl. Wong). Terminating DACA or failing to restore it to its pre-September 5, 2017 status will lead to increased uncertainty in these mixed-status families, and it will increase the likelihood of splitting DACA grantees from their citizen family members. See e.g., Ex. 176 ¶ 12 (Decl. Kennedy, City of Newburgh). Moreover, many of these
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families rely on the income of a DACA grantee, and the termination of DACA or failure to return DACA to its pre-September 5, 2017 status will threaten their financial and housing security. See, e.g., Ex. 87 ¶ 8 (Decl. Rubin); Ex. 135 ¶ 8 (Decl. Rakes); Ex. 157 ¶¶ 12-13 (Decl. Ridder); Ex. 172 ¶¶ 4-5, 7-8 (Decl. Morales); Ex. 173 ¶¶ 3, 5-6 (Decl. Hidalgo Hernandez).
279. Many DACA grantees also have families overseas, including parents and siblings. DACA had made it possible for these grantees to visit family members, often for the first time in years. See, e.g., Ex. 72 ¶ 7 (Decl. Teodoro); Ex. 70 ¶ 5 (Decl. I.V.). Terminating DACA or failing to restore it to its pre-September 5, 2017 status will cause DACA grantees to lose touch with these family members and become further estranged from their countries of origin, making the prospect of deportation even more injurious to DACA grantees and their families.
FIRST CAUSE OF ACTION (Fifth Amendment – Equal Protection) 280. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 281. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 282. The 2017 DHS Memorandum and Wolf Memo target individuals for discriminatory treatment, without lawful justification. 283. The 2017 DHS Memorandum and Wolf Memo were motivated, at least in part, by a discriminatory motive and/or a desire to harm a particular group. 284. The discriminatory terms and application of the 2017 DHS Memorandum and Wolf Memo cannot be sufficiently justified by federal interests, under any standard of review.
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285. Through their actions above, Defendants have violated the equal protection guarantee of the Fifth Amendment.
286. Defendants’ violation causes ongoing harm to the States and their residents. SECOND CAUSE OF ACTION
(Fifth Amendment – Due Process – Information Use) 287. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 288. The Due Process Clause of the Fifth Amendment requires that actions taken by the federal government be fundamentally fair. 289. Given the federal government’s prior representations about the allowable uses of information provided by DACA applicants, the change to DHS’s policy of protecting against the disclosure of information in DACA applications and renewal requests is fundamentally unfair. 290. Also given the federal government’s prior representations about the allowable uses of information provided by DACA applicants, the new policy’s refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement—including identifying, apprehending, detaining, or deporting non-citizens—is fundamentally unfair. 291. Through their actions above, Defendants have violated the due process guarantee of the Fifth Amendment. 292. Defendants’ violation causes ongoing harm to the States and their residents.
THIRD CAUSE OF ACTION (Equitable Estoppel)
293. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint.
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294. The doctrine of equitable estoppel prevents injustice where the government has made representations on which individuals have reasonably and detrimentally relied.
295. In order to encourage DACA applications, Defendants made repeated, affirmative statements about the protections that would be given to the personal information provided by DACA applicants. Defendants also placed affirmative restrictions on the use of such information for purposes of immigration enforcement.
296. In submitting DACA applications and renewal requests, DACA applicants reasonably and detrimentally relied on Defendants’ affirmative representations and conduct.
297. Defendants should be equitably estopped from revoking DHS’s longstanding, affirmative policy of protecting against the disclosure of information in DACA applications and renewal requests.
298. Equitable estoppel should also bar Defendants from implementing DHS’s new policy of refusing to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including to identify, apprehend, detain, or deport non-citizens.
299. Failure to estop Defendants from revoking DHS’s previous policy and imposing the new policy will harm the States and their residents.
FOURTH CAUSE OF ACTION (Administrative Procedure Act – Substantively Arbitrary and Capricious,
Abuse of Discretion, Contrary to Constitution or Statute) 300. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 301. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. In implementing the
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2017 DHS Memorandum and terminating DACA with minimal formal guidance, federal agencies have taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative Procedure Act.
302. In promulgating and implementing the 2017 DHS Memorandum, federal agencies have abused their discretion, and acted arbitrarily and capriciously and otherwise not in accordance with law, in violation of the APA.
303. Defendants’ violation causes ongoing harm to the States and their residents. FIFTH CAUSE OF ACTION
(Administrative Procedure Act – Procedurally Arbitrary and Capricious, Notice and Comment)
304. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint.
305. The APA, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights.
306. DHS is an “agency” under the APA. 5 U.S.C. § 551(1). 307. The actions that DHS has taken to implement the 2017 DHS Memorandum are “rules” under the APA. 5 U.S.C. § 551(4). 308. In promulgating and implementing the 2017 DHS Memorandum, federal agencies have categorically and definitively changed the substantive criteria by which individual DACA grantees work, live, attend school, obtain credit, and travel in the United States. Federal agencies did not follow the procedures required by the APA before taking action impacting these substantive rights. 309. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. 5 U.S.C. § 553.
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310. The Defendants promulgated and relied upon the rules established by the 2017 DHS Memorandum without authority and without notice-and-comment rulemaking in violation of the APA.
311. The States will be impacted because they have not had the opportunity to comment on the termination of DACA.
312. Defendants’ violation causes ongoing harm to the States and their residents. SIXTH CAUSE OF ACTION
(Regulatory Flexibility Act – Failure to Issue Regulatory Flexibility Analyses) 313. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 314. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal agencies to analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for public comment. 5 U.S.C. §§ 603-604. 315. “Small entities” for purposes of the RFA includes small businesses, small nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6). 316. The promulgation and implementation of the 2017 DHS Memorandum and Wolf Memo established “rules” under the RFA. 5 U.S.C. § 601(2). 317. Implementation of the 2017 DHS Memorandum and Wolf Memo is likely to have a significant economic impact on a substantial number of small entities. 5 U.S.C. § 602(a)(1). 318. Defendants have not issued the required analyses of DHS’s new rules. 319. Defendants’ failure to issue the initial and final Regulatory Flexibility Analyses violates the RFA and is unlawful.
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320. Defendants’ violation causes ongoing harm to the States, their small governmental jurisdictions, nonprofits, and businesses, and their residents.
SEVENTH CAUSE OF ACTION (Fifth Amendment-Procedural Due Process) 321. The Plaintiff States re-allege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 322. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests or property interests without due process of law. 323. Defendants have failed to provide DACA grantees with the due process to which they are entitled, by failing to provide them with adequate notice about the procedures and timeline for renewing their DACA status. 324. Defendants have failed to provide DACA grantees with the due process to which they are entitled, by failing to give them adequate notice about the general termination of the DACA program after March 5, 2018 and by failing to provide DACA grantees adequate notice of their inability to apply for renewal of their DACA status after March 5, 2018. 325. Defendants are thus depriving Plaintiff States’ residents of their liberty and property interests in living and working in the United States without providing them adequate notice or opportunity to be heard. 326. Defendants’ conduct violates the Due Process Clause of the Fifth Amendment. 327. Defendants’ violations cause ongoing harm to the States and their residents.
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EIGHTH CAUSE OF ACTION (Administrative Procedure Act – Arbitrary and Capricious, Contrary to Law, Excess of
Statutory Authority – July 2020 Wolf Memo) 328. The States reallege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 329. The Administrative Procedure Act (“APA”), prohibits federal agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or that is in excess of statutory authority. 5 U.S.C. § 706(2)(A), (C). 330. Defendants’ implementation of the Wolf Memo to make interim changes to the DACA program are not supported by any reasonable explanation for the agency action, fail to assess the harms of applying the policy retroactively, fail to consider the significant reliance interests at stake, and were ordered by an agency official acting in his position without lawful authority, and are therefore arbitrary, capricious, contrary to law, and in excess of Defendants’ statutory authority, in violation of the APA. 331. Defendants’ violation causes ongoing harm to the States and their residents.
NINTH CAUSE OF ACTION (Federal Vacancies Reform Act and Homeland Security Act) 332. The Plaintiff States re-allege and incorporate by reference the allegations set forth in each of the preceding paragraphs of this Second Amended Supplemental Complaint. 333. Under the FVRA, an agency action taken by an unlawfully serving acting official “shall have no force and effect” and “may not be ratified” after the fact. 5 U.S.C. § 3348(d)(1), (2). 334. The HSA establishes an order of succession for the position of Acting Secretary of Homeland Security. 6 U.S.C. § 113(a)(1)(A), 113(g)(1), 113(g)(2).
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335. Defendant Wolf’s predecessor, Acting Secretary Kevin McAleenan, was not the lawful successor to former Secretary Kirstjen Nielsen, and therefore lacked the authority to amend DHS’s order of succession that made Defendant Wolf next in line for the acting role. Because, under the FVRA, 5 U.S.C. § 3348(d)(1). McAleenan’s amendments to the order of succession were performed without lawful authority, they “shall have no force and effect.” In turn, Defendant Wolf’s assumption of the role of Acting Secretary based on McAleenan’s ultra vires amendment to the succession order is also unlawful under the HSA and FVRA.
336. Because Defendant Wolf is unlawfully serving as Acting Secretary, the official actions he has taken in that role, including making changes to the DACA program through the Wolf Memo, are ultra vires actions that are void ab initio under the plain terms of the FVRA. Under the FVRA, the changes to the DACA program ordered by the Wolf Memo therefore have “no force and effect.” 5 U.S.C. § 3348(d)(1).
337. Defendants’ violation causes ongoing harm to the States and their residents. PRAYER FOR RELIEF
Wherefore, the States pray that the Court: a. Declare that the 2017 DHS Memorandum terminating the DACA program and the Wolf Memo changing the DACA program are unauthorized by and contrary to the Constitution and laws of the United States; b. Declare that the actions that DHS has taken to implement the 2017 DHS Memorandum terminating the DACA program and the Wolf Memo changing the DACA program are procedurally unlawful under the APA;
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c. Declare that the actions that DHS has taken to implement the 2017 DHS Memorandum terminating the DACA program and the Wolf Memo changing the DACA program are substantively unlawful under the APA;
d. Declare that the actions that DHS has taken to implement the 2017 DHS Memorandum terminating the DACA program and the Wolf Memo changing the DACA program are unlawful under the RFA;
e. Declare that Defendant Wolf’s service as Acting Secretary of Homeland Security is unlawful under the FVRA and HSA;
f. Declare that the Wolf Memo is invalid under the Federal Vacancies Reform Act and Homeland Security Act;
g. Vacate the changes the Wolf Memo effected to the DACA program; h. Enjoin Defendants from terminating or amending the DACA program, including
enjoining the Defendants from limiting rights to submit applications to renew DACA benefits, pending further orders from this Court; i. Enjoin Defendants from revoking the DHS policy protecting DACA application and renewal data from disclosure to ICE, CBP, or any other agency for purposes of immigration enforcement; j. Enjoin Defendants from using information obtained in any DACA application or renewal request to identify, apprehend, detain, or deport any DACA applicant or member of any DACA applicant’s family, or take any action against a DACA applicant’s current or former employer;
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k. Hold the Wolf Memo invalid and vacate the changes the Wolf Memo effected to DACA; and
l. Award such additional relief as the interests of justice may require.

DATED: August 28, 2020
MAURA HEALEY Attorney General for the Commonwealth of Massachusetts By: /s/ Abigail B. Taylor
Abigail B. Taylor (pro hac vice) David Ureña Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 Abigail.Taylor@mass.gov David.Urena@mass.gov Tel. (617) 727-2200

LETITIA JAMES Attorney General of the State of New York
By: /s/ Matthew Colangelo Matthew Colangelo, Chief Counsel for Federal Initiatives Sania Khan, Assistant Attorney General Joseph Wardenski, Senior Trial Counsel Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Matthew.Colangelo@ag.ny.gov Tel. (212) 416-6057 Fax (212) 416-6007
BOB FERGUSON Attorney General of the State of Washington
By: /s/ Robert W Ferguson Robert W. Ferguson (pro hac vice) Attorney General Colleen M. Melody (pro hac vice) Civil Rights Unit Chief Marsha Chien (pro hac vice) Assistant Attorney General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 ColleenM1@atg.wa.gov MarshaC@atg.wa.gov Tel. (206) 464-7744

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WILLIAM TONG Attorney General State of Connecticut
By: /s/ Joshua Perry__________________ Joshua Perry* Special Counsel for Civil Rights Office of the Attorney General 165 Capitol Avenue Hartford, CT 06106 Joshua.perry@ct.gov (860) 808-5372
*Pro hac vice motion pending
CLARE E. CONNORS Attorney General of the State of Hawaii
By: /s/ Robert T. Nakatsuji Robert T. Nakatsuji (pro hac vice) Deputy Attorney General State of Hawaii, Department of the Attorney General 425 Queen Street Honolulu, HI 96813 Robert.T.Nakatsuji@hawaii.gov Tel. (808) 586-1360
THOMAS J. MILLER Attorney General of the State of Iowa
By: /s/ Nathan Blake Nathan Blake (pro hac vice) Deputy Attorney General Office of the Attorney General of Iowa 1305 E. Walnut Street Des Moines, IA 50319 nathan.blake@ag.iowa.gov Tel. (515) 281-4325 Fax (515) 281-4209

KARL A. RACINE Attorney General for the District of Columbia
By: /s/ Kathleen Konopka Deputy Attorney General Public Advocacy Division 400 6th Street, NW Washington, DC 20001 Kathleen.Konopka@dc.gov Tel. (202) 724-6610
KWAME RAOUL Attorney General of the State of Illinois
By: /s/ Jeffrey J. VanDam Jeffrey J. VanDam Public Interest Counsel Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 jvandam@atg.state.il.us Tel. (312) 814-3400 Fax (312) 814-3212
HECTOR H. BALDERAS Attorney General of the State of New Mexico
By: /s/ Tania Maestas Tania Maestas (pro hac vice) Chief Deputy Attorney General Jennie Lusk, Assistant Attorney General Civil Rights Bureau Chief New Mexico Office of the Attorney General 408 Galisteo St. Santa Fe, NM 87501 tmaestas@nmag.gov Tel. (505) 490-4060 Fax (505) 490-4883

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KATHLEEN JENNINGS Attorney General of the State of Delaware

PETER NERONHA Attorney General of the State of Rhode Island

By: /s/ Christian Douglas Wright Christian Douglas Wright (pro hac vice) Director of Impact Litigation Vanessa L. Kassab Deputy Attorney General Delaware Department of Justice 820 N. French Street, 5th Floor Wilmington, DE 19801 christian.wright@delaware.gov Phone: (302) 577-8600

By: /s/ Michael W. Field Michael W. Field*
Assistant Attorney General Rhode Island Office of Attorney General 150 South Main Street Providence, RI 02903 (401) 274-4400 x 2380 mfield@riag.ri.gov
*Application for pro hac vice admission forthcoming

JOSHUA H. STEIN Attorney General of the State of North Carolina
By: /s/ Sripriya Narasimhan Sripriya Narasimhan* Deputy General Counsel North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 SNarasimhan@ncdoj.gov Tel. (919) 716-6400

ELLEN F. ROSENBLUM Attorney General of the State of Oregon
By: /s/ Brian de Haan Brian de Haan, Assistant Attorney General Trial Attorney brian.a.dehaan@doj.state.or.us Tel. (971) 673-1880 Fax (971) 673-5000

*Application for pro hac vice admission forthcoming

JOSH SHAPIRO Attorney General of the Commonwealth of Pennsylvania By: /s/ Aimee D. Thomson
Aimee D. Thomson* Deputy Attorney General Impact Litigation Section 1600 Arch St., Suite 300 Philadelphia, PA 19103 athomson@attorneygeneral.gov Tel. (267) 374-2787 * Application for admission forthcoming

THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont
By: /s/ Benjamin D. Battles Benjamin D. Battles Solicitor General Julio A. Thompson, Assistant Attorney General, Director, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, VT 05609 Benjamin.Battles@vermont.gov Tel. (802) 828-5500

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MARK R. HERRING Attorney General of the Commonwealth of Virginia
By: /s/ Michelle S. Kallen Michelle S. Kallen (pro hac vice) Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219 mkallen@oag.state.va.us Tel. (804) 786-7240

PHILIP J. WEISER Attorney General of the State of Colorado By: /s/ Eric R. Olson
Eric R. Olson (pro hac vice) Solicitor General Office of the Attorney General Colorado Department of Law 1300 Broadway, 10th Floor Denver, CO 80203 Phone: (720) 508-6548 Eric.Olson@coag.gov

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prima facie

Excluded

prima facie

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