Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 1 of 20
ADRMOP,APPEAL,REFDIS,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−05235−WHA

State of California et al v. Department of Homeland Security et al Assigned to: Hon. William Alsup Referred to: Magistrate Judge Sallie Kim Relate Case Cases: 3:17−cv−05211−WHA
3:17−cv−05380−WHA
3:17−cv−05813−WHA
3:17−cv−05329−WHA
Case in other court: USCA 9th Circuit, 18−15069
Supreme Court of the United States, 18−00587 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 09/11/2017 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

State of California

represented by Christine Chuang California Department of Justice 1515 Clay Street, Suite 2000 Oakland, CA 94612−1499 510−879−0094 Email: christine.chuang@doj.ca.gov ATTORNEY TO BE NOTICED

Kathleen Vermazen Radez California Attorney General's Office Civil Rights Section 1515 Clay Street, 20th Floor Oakland, CA 94612 (510) 879−0752 Fax: (510) 622−2270 Email: Kathleen.Radez@doj.ca.gov ATTORNEY TO BE NOTICED

Rebekah Fretz California Department of Justice Bureau of Children's Justice 300 S. Spring St. Suite 1702 Los Angeles, CA 90013 213−269−6401 Fax: 213−897−7605 Email: rebekah.fretz@doj.ca.gov ATTORNEY TO BE NOTICED

Ronald Hak King Lee Department of Justice Office of the Attorney General 1515 Clay Street 21st Floor P.O. Box 70550 Oakland, CA 94612−0550 (510) 879−1983 Fax: (510) 622−2270 Email: Ronald.Lee@doj.ca.gov ATTORNEY TO BE NOTICED

Shubhra Shivpuri Department of Justice

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 2 of 20

Plaintiff State of Maine
Plaintiff State of Minnesota
Plaintiff State of Maryland

Office of the Attorney General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612−0550 510−879−0270 Fax: 510−622−2270 Email: Shubhra.Shivpuri@doj.ca.gov ATTORNEY TO BE NOTICED
James F. Zahradka , II California Department of Justice Bureau of Children's Justice 1515 Clay Street, Suite 2000 Oakland, CA 94612 (510) 622−2239 Fax: (510) 622−2121 Email: james.zahradka@doj.ca.gov ATTORNEY TO BE NOTICED
represented by Susan P. Herman Office of the Attorney General Litigation Division 6 State House Station Augusta, ME 04333−0006 207−626−8814 Fax: 207−287−3145 Email: susan.herman@maine.gov PRO HAC VICE ATTORNEY TO BE NOTICED
James F. Zahradka , II (See above for address) ATTORNEY TO BE NOTICED
represented by Julianna Francis Irene Passe Minnesota Attorney General's Office 445 Minnesota Street Suite 1100 St. Paul, MN 55101 651−757−1136 Fax: 651−282−5832 Email: julianna.passe@ag.state.mn.us PRO HAC VICE ATTORNEY TO BE NOTICED
James F. Zahradka , II (See above for address) ATTORNEY TO BE NOTICED
represented by Steven Marshall Sullivan Office of the Attorney General of Maryland 200 Saint Paul Place Baltimore, MD 21202 410−576−6427 Fax: 410−576−6955 Email: ssullivan@oag.state.md.us LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 3 of 20

V. Defendant United States Department of Homeland Security
Defendant Kirstjen Nielson In her official capacity as Acting Secretary of the Department of Homeland Security
Defendant United States of America
Amicus Brown University

James F. Zahradka , II (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−514−3374 Fax: 202−616−8460 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate United States Department of Justice Civil Division 950 Pennsylvania Ave., NW Washington, DC 20530 202−514−2331 Email: brett.a.shumate@usdoj.gov TERMINATED: 04/11/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett A. Shumate (See above for address) TERMINATED: 04/11/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071−2899 (213) 430−6082 Fax: (213) 430−6707 Email: achopra@omm.com

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 4 of 20

Amicus California Institute of Technology
Amicus University of Chicago
Amicus Columbia University

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray O'Melveny and Myers LLP 7 Times Square New York, NY 10036 212−326−2000 Email: dgray@omm.com TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler O'Melveny and Myers LLP 7 Times Square New York, NY 10036 212−326−2000 Email: jsokoler@omm.com ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address)

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 5 of 20

Amicus Cornell University
Amicus Dartmouth College
Amicus Duke University
Amicus Emory University

ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 6 of 20

Amicus Georgetown University
Amicus Harvard University
Amicus Massachusetts Institute of Technology
Amicus Northwestern University
Amicus University of Pennsylvania

represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 7 of 20

Amicus Princeton University
Amicus Stanford University
Amicus Vanderbilt University
Amicus Yale University

Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address)

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 8 of 20

Amicus National Education Association Of The United States
Amicus Association of California School Administrators Amicus Berkeley Unified School District
Amicus Moreno Valley Unified School District
Amicus San Diego Unified School District
Amicus West Contra Costa Unified School District Amicus California Faculty Association
Amicus California Federation of Teachers
Amicus

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny National Education Association 1201 16th Street N.W. Washington, DC 20036 (202) 822−7060 Fax: (202) 822−7033 Email: eleheny@nea.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 9 of 20

California School Boards Association
Amicus California Teachers Association
Amicus Los Angeles County Superintendent of Schools Amicus Los Angeles County Board of Education Amicus Los Angeles Unified School District
Amicus Oakland Unified School District
Amicus Sacramento City Unified School District Amicus George Washington University
Amicus Washington University in St. Louis

represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED
represented by Apalla U. Chopra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle C Gray (See above for address) TERMINATED: 03/19/2018 ATTORNEY TO BE NOTICED

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 10 of 20
Jennifer B Sokoler (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/11/2017
09/11/2017 09/11/2017 09/11/2017
09/11/2017 09/12/2017 09/13/2017 09/13/2017 09/13/2017 09/13/2017 09/14/2017 09/14/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971−11704330.). Filed byState of Minnesota, State of California, State of Maryland, State of Maine. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Zahradka, James) (Filed on 9/11/2017) (Entered: 09/11/2017)
2 Civil Cover Sheet by State of California, State of Maine, State of Maryland, State of Minnesota . (Zahradka, James) (Filed on 9/11/2017) (Entered: 09/11/2017)
3 Proposed Summons. (Zahradka, James) (Filed on 9/11/2017) (Entered: 09/11/2017)
4 Case assigned to Magistrate Judge Maria−Elena James.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 9/25/2017. (haS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 12/7/2017. Initial Case Management Conference set for 12/14/2017 10:00 AM. (hdjS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/12/2017)
6 Summons Issued as to Department of Homeland Security, Elaine C. Duke, United States of America, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 9/12/2017) (Entered: 09/12/2017)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11712273.) filed by State of Minnesota. (Attachments: # 1 Exhibit)(Passe, Julianna) (Filed on 9/13/2017) (Entered: 09/13/2017)
8 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11712322.) filed by State of Maine. (Herman, Susan) (Filed on 9/13/2017) (Entered: 09/13/2017)
9 ORDER by Magistrate Judge Maria−Elena James granting 7 Motion for Pro Hac Vice re: Julianna F. Passe. (rmm2S, COURT STAFF) (Filed on 9/13/2017) (Entered: 09/13/2017)
10 ORDER by Magistrate Judge Maria−Elena James granting 8 Motion for Pro Hac Vice re: Susan P. Herman. (rmm2S, COURT STAFF) (Filed on 9/13/2017) (Entered: 09/13/2017)
11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11715886.) filed by State of Maryland. (Attachments: # 1 Certificate of Good Standing)(Sullivan, Steven) (Filed on 9/14/2017) (Entered: 09/14/2017)
12 ORDER by Magistrate Judge Maria−Elena James granting 11 Motion for Pro Hac Vice re: Steven M. Sullivan.(rmm2S, COURT STAFF) (Filed on 9/14/2017) (Entered: 09/14/2017)

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09/14/2017 09/14/2017 09/14/2017 09/14/2017 09/15/2017 09/18/2017 09/18/2017 09/18/2017 09/18/2017
09/19/2017 09/20/2017 09/20/2017
09/20/2017 09/22/2017
09/22/2017 09/22/2017 09/22/2017

13 NOTICE of Appearance by Christine Chuang (Chuang, Christine) (Filed on 9/14/2017) (Entered: 09/14/2017)
14 NOTICE of Appearance by Ronald Hak King Lee (Lee, Ronald) (Filed on 9/14/2017) (Entered: 09/14/2017)
15 NOTICE of Appearance by Steven Marshall Sullivan (Sullivan, Steven) (Filed on 9/14/2017) (Entered: 09/14/2017)
16 NOTICE of Appearance by Shubhra Shivpuri COUNSEL FOR PLAINTIFF STATE OF CALIFORNIA (Shivpuri, Shubhra) (Filed on 9/14/2017) (Entered: 09/14/2017)
17 NOTICE of Appearance by Brad Prescott Rosenberg (Rosenberg, Brad) (Filed on 9/15/2017) (Entered: 09/15/2017)
18 ORDER RELATING CASE. Signed by Judge Alsup on 9/18/2017. (whalc1, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
19 NOTICE RE SEPTEMBER 21 CASE MANAGEMENT CONFERENCE Signed by Judge Alsup on 9/18/2017. (whalc1, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
Set/Reset Hearing re 19 Order Initial Case Management Conference set for 9/21/2017 10:30 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup. (tlS, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
20 Case Reassigned to Judge Hon. William Alsup. Magistrate Judge Maria−Elena James no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras (as, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)
Related cases: Create association to 3:17−cv−05211−WHA. (sxbS, COURT STAFF) (Filed on 9/19/2017) (Entered: 09/19/2017)
21 NOTICE of Appearance by Brett A. Shumate (Shumate, Brett) (Filed on 9/20/2017) (Entered: 09/20/2017)
22 ORDER RELATING CASES by Hon. William Alsup granting (39) Motion to Relate Case in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA(whalc1, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)
23 ORDER RELATING CASES by Judge Alsup granting (38) Motion to Relate Case; granting (42) Stipulation in case 3:17−cv−05211−WHA (whalc1, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)
24 CASE MANAGEMENT SCHEDULING ORDER FOR ALL DACA ACTIONS IN THIS DISTRICT: Bench Trial set for 2/5/2018 07:30 AM before Hon. William Alsup. Motion Hearing set for 12/20/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Pretrial Conference set for 1/24/2018 02:00 PM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.. Signed by Judge Alsup on 9/22/2017. (whalc1, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
Set/Reset Hearing Tutorial Hearing set for 10/3/2017 08:00 AM in Courtroom 8, 19th Floor, San Francisco. (whasec, COURT STAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
25 Letter from State of California, Office of the Attorney General RE EQUITABLE ESTOPPEL. (Zahradka, James) (Filed on 9/22/2017) (Entered: 09/22/2017)
26 Transcript of Proceedings held on 9/21/17, before Judge William H. Alsup. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5

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09/25/2017 09/25/2017 09/25/2017
09/26/2017 09/27/2017 09/29/2017 09/29/2017 10/03/2017
10/05/2017

business days from date of this filing. (Re (45 in 3:17−cv−05211−WHA) Transcript Order ) Release of Transcript Restriction set for 12/21/2017. (jabS, COURTSTAFF) (Filed on 9/22/2017) (Entered: 09/22/2017)
27 FURTHER NOTICE RE TUTORIAL re (12 in 3:17−cv−05380−WHA) Case Management Scheduling Order, Signed by Judge Alsup on 9/25/2017. (whalc1, COURT STAFF) (Filed on 9/25/2017) (Entered: 09/25/2017)
28 NOTICE OF REFERRAL FOR DISCOVERY. Signed by Magistrate Judge Sallie Kim on 9/25/2017. (Attachments: # 1 Magistrate Judge Kim's Standing Order)(mklS, COURT STAFF) (Filed on 9/25/2017) (Entered: 09/25/2017)
29 Minute Entry for proceedings held before William Alsup: Initial Case Management Conference held on 9/21/2017. Motion(s) hearing set for 12/20/2017 at 8:00 AM. Tutorial set for 10/3/2017 at 8:00 AM. Final Pretrial Conference set for 1/24/2018 at 2:00 PM. Bench Trial set for 2/5/2018 at 7:30 AM. Case referred to Magistrate Sallie Kim for Discovery.Total Time in Court: 1:22. Court Reporter: Jo Ann Bryce. Plaintiff Attorney: Jeffrey Davidson; Alexander Berengaut; Alex Covington; Mark Lynch; James Zahradka; Nancy Fineman; Mark Rosenbaum; Ethan Dettmer. Defendant Attorney: Brad Rosenberg; Sara Winslow; Brett Shumate. Attachment: Civil Minutes. (tlS, COURT STAFF) (Date Filed: 9/25/2017) (Entered: 09/25/2017)
CASE REFERRED to Magistrate Judge Sallie Kim for Discovery (ahm, COURT STAFF) (Filed on 9/26/2017) (Entered: 09/26/2017)
30 NOTICE of Appearance by Kathleen Vermazen Radez (Radez, Kathleen) (Filed on 9/27/2017) (Entered: 09/27/2017)
31 STIPULATION WITH PROPOSED ORDER re 24 Case Management Scheduling Order, filed by Department of Homeland Security, Elaine C. Duke, United States of America. (Rosenberg, Brad) (Filed on 9/29/2017) (Entered: 09/29/2017)
32 ORDER GRANTING STIPULATION REGARDING CASE MANAGEMENT ORDER by Judge William Alsup granting (57) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA(whalc1, COURT STAFF) (Filed on 9/29/2017) (Entered: 09/29/2017)
33 Minute Entry for proceedings held before Judge William Alsup: Tutorial Hearing held on 10/3/2017.
Total Time in Court: 2 Hours, 15 Minutes. Court Reporter: Belle Ball.
Plaintiffs' Attorneys: Regents: Jeffrey Davidson, Mark Lynch, Monica Almadani; Garcia: Mark Rosenbaum, Kelsey Helland, Ethan Dettmer, Luis Romero; City of San Jose: Nancy Fineman; State of CA: James Zahradka, Ronald Lee. Defendant's Attorneys: Brad Rosenberg, Jeffrey Robins. Also Present via Videoconference: District Judge Nicholas Garaufis
(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 10/3/2017) (Entered: 10/03/2017)
34 Transcript of Proceedings held on October 3, 2017, before Judge William H. Alsup. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (62 in 3:17−cv−05211−WHA) Transcript Order, (24 in 3:17−cv−05329−WHA) Transcript Order ) Release of Transcript Restriction set for 1/3/2018. (ballbb15S, COURT STAFF) (Filed on 10/5/2017) (Entered: 10/05/2017)

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10/10/2017 10/16/2017
10/16/2017 10/17/2017
10/17/2017 10/18/2017 10/19/2017 10/19/2017

35 ORDER SHORTENING TIME FOR BRIEFING ON MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup re 66 Motion to Shorten Time in case 3:17−cv−05211−WHA. Motion Hearing set for 10/16/2017 11:00 AM in Courtroom 8, 19th Floor, San Francisco before Judge William Alsup.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA(whalc1, COURT STAFF) (Filed on 10/10/2017) Modified on 10/10/2017 (afmS, COURT STAFF). (Entered: 10/10/2017)
36 Minute Entry for proceedings held before Judge William Alsup:
Motion Hearing held on 10/16/2017 re (65 in 3:17−cv−05211−WHA) MOTION for an Order Directing Defendants to Complete the Administrative Record filed by UC Regents, Janet Napolitano. Written Order to issue.
Total Time in Court: 1:15. Court Reporter: Pamela Batalo.
Plaintiff Attorney: Jeffery Davidson (Regents)Plaintiff Attorney: James Zahradka (State of CA)Plaintiff Attorney: Nancy Fineman (City of San Jose)Plaintiff Attorney: Kevin Yea (Garcia) Defendant Attorney: Brad Rosenberg (all defendants).
(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 10/16/2017) (Entered: 10/16/2017)
37 ORDER RELATING CASE by Judge William Alsup granting (69) Motion to Relate Case in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA(whalc1, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)
38 Transcript of Proceedings held on 10/16/17, before Judge Alsup. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (74 in 3:17−cv−05211−WHA) Transcript Order ) Redaction Request due 11/7/2017. Redacted Transcript Deadline set for 11/17/2017. Release of Transcript Restriction set for 1/16/2018. (Batalo, Pam) (Filed on 10/17/2017) (Entered: 10/17/2017)
39 ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup granting in part and denying in part (65) Motion Complete Administrative Record in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/17/2017) (Entered: 10/17/2017)
40 ORDER TO COMPILE SUPPLEMENT FORTHWITH re (12 in 3:17−cv−05813−WHA) Order on Motion for Miscellaneous Relief, Signed by Judge Alsup on 10/18/2017. (whalc1, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)
41 ORDER ADOPTING STIPULATED BRIEFING SCHEDULE FOR DEFENDANTS' MOTION TO STAY ALL PROCEEDINGS by Judge William Alsup granting (82) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
Terminate Hearing re (15 in 3:17−cv−05813−WHA) Order on Stipulation, (whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 14 of 20

10/19/2017 10/20/2017 10/20/2017 10/20/2017 10/23/2017 10/24/2017 10/24/2017 10/25/2017 10/25/2017
10/26/2017 10/27/2017
10/30/2017
10/31/2017

42 ORDER RE MOTION TO STAY PROCEEDINGS by Judge William Alsup denying (81) Motion to Stay in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
43 NOTICE by Department of Homeland Security, Elaine C. Duke, United States of America of Filing of Petition for Writ of Mandamus (Attachments: # 1 Petition for Writ of Mandamus)(Rosenberg, Brad) (Filed on 10/20/2017) (Entered: 10/20/2017)
47 USCA Case Number 17−72917 USCA 9th Circuit re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
48 ORDER of USCA re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
44 ANSWER BY DISTRICT COURT TO PETITION FOR WRIT OF MANDAMUS Signed by Judge Alsup on 10/23/2017. (whalc1, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
45 ORDER by Magistrate Judge Sallie Kim granting (91) Unopposed Administrative Motion for Additional Pages for Joint Discovery Letter Brief in case 3:17−cv−05211−WHA. (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
46 ORDER RE: DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE by Magistrate Judge Sallie Kim (Re: (88) Discovery Letter Brief in case 3:17−cv−05211−WHA). (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
49 FURTHER CASE MANAGEMENT ORDER RE MOTION SCHEDULE Signed by Judge Alsup on 10/25/2017. (whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
50 ORDER GRANTING STIPULATION REGARDING AMICUS BRIEFING AS MODIFIED by Judge William Alsup granting as modified (101) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
62 ORDER of USCA regarding oral arguments and amicus briefs as to (21 in 3:17−cv−05813−WHA, 38 in 3:17−cv−05329−WHA, 95 in 317−cv−05211−WHA, 47 in 3:17−cv−05235−WHA, 34 in 3:17−cv−05380−WHA) (sxbS, COURT STAFF) (Filed on 10/26/2017) (Entered: 11/03/2017)
51 ORDER GRANTING PLAINTIFFS' UNOPPOSED ADMINISTRATIVE MOTION TO AMEND PAGE LIMITS IN CONNECTION WITH MOTION FOR PROVISIONAL RELIEF by Judge William Alsup granting (103) Administrative Motion to alter page limits in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/27/2017) (Entered: 10/27/2017)
52 NOTICE of Appearance by Apalla U. Chopra for Brown University, California Institute of Technology, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, University of Pennsylvania, Princeton University, Stanford University, Vanderbilt University, and Yale University (Chopra, Apalla) (Filed on 10/30/2017) (Entered: 10/30/2017)
53 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11838829.) filed by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 15 of 20

10/31/2017
10/31/2017 11/01/2017
11/01/2017 11/01/2017
11/01/2017 11/01/2017 11/01/2017 11/01/2017

University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale University. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Gray, Danielle) (Filed on 10/31/2017) (Entered: 10/31/2017)
54 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11838863.) filed by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale University. (Attachments: # 1 Attachment, # 2 Certificate of Good Standing)(Sokoler, Jennifer) (Filed on 10/31/2017) (Entered: 10/31/2017)
63 ORDER of USCA regarding amicus briefs as to (21 in 3:17−cv−05813−WHA, 38 in 3:17−cv−05329−WHA, 95 in 3:17−cv−05211−WHA, 47 in 3:17−cv−05235−WHA, 34 in 3:17−cv−05380−WHA) (sxbS, COURT STAFF) (Filed on 10/31/2017) (Entered: 11/03/2017)
55 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by National Education Association Of The United States, Association of California School Administrators, Berkeley Unified School District, Moreno Valley Unified School District, San Diego Unified School District, West Contra Costa Unified School District, California Faculty Association, California Federation of Teachers, California School Boards Association, California Teachers Association, Los Angeles County Superintendent of Schools, Los Angeles County Board of Education, Los Angeles Unified School District, Oakland Unified School District, Sacramento City Unified School District. Responses due by 11/6/2017. (Attachments: # 1 Exhibit Amicus Curiae Brief)(Leheny, Emma) (Filed on 11/1/2017) (Entered: 11/01/2017)
56 PROTECTIVE ORDER by Judge William Alsup granting (115) Motion for Protective Order in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
57 ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS by Judge William Alsup granting (110) Administrative Motion leave to file amicus curiae brief in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
58 NOTICE of Appearance by Apalla U. Chopra on behalf of Amici Curiae George Washington University and Washington University in St. Louis (Chopra, Apalla) (Filed on 11/1/2017) (Entered: 11/01/2017)
59 NOTICE of Appearance by Danielle C Gray on behalf of Amici Curiae George Washington University and Washington University in St. Louis (Gray, Danielle) (Filed on 11/1/2017) (Entered: 11/01/2017)
60 NOTICE of Appearance by Jennifer B Sokoler on behalf of Amici Curiae George Washington University and Washington University in St. Louis (Sokoler, Jennifer) (Filed on 11/1/2017) (Entered: 11/01/2017)
61 ADMINISTRATIVE MOTION For Leave to File Amicus Brief Of Nineteen Universities In Support Of Plaintiffs' Motion For Provisional Relief filed 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, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. Responses due by 11/6/2017. (Attachments: # 1 Brief of Amici Curiae, # 2 Proposed Order)(Gray, Danielle) (Filed on 11/1/2017) (Entered: 11/01/2017)

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 16 of 20

11/07/2017 11/07/2017
11/07/2017 11/08/2017
11/16/2017 11/20/2017
11/20/2017
11/21/2017 11/21/2017 11/21/2017 11/21/2017 11/22/2017 12/01/2017
12/06/2017 12/20/2017

64 NOTICE of Appearance by Rebekah Amber Fretz (Fretz, Rebekah) (Filed on 11/7/2017) (Entered: 11/07/2017)
65 ORDER GRANTING 53 APPLICATION FOR ADMISSION PRO HAC VICE FOR ATTORNEY DANIELLE C. GRAY. Signed by Judge William Alsup on 11/7/2017.(afmS, COURT STAFF) (Filed on 11/7/2017) Modified on 11/7/2017 (afmS, COURT STAFF). (Entered: 11/07/2017)
66 ORDER GRANTING 54 APPLICATION FOR ADMISSION PRO HAC VICE FOR ATTORNEY JENNIFER SOKOLER. Signed by Judge William Alsup on 11/7/2017.(afmS, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)
67 ORDER RE MOTION TO MAINTAIN ANONYMITY by Judge Alsup granting in part and denying in part (125) Administrative Motion maintain anonymity; granting in part and denying in part (126) Administrative Motion to File Under Seal in case 3:17−cv−05211−WHA. (whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)
68 ORDER TO FILE COMPLETED ADMINISTRATIVE RECORD AND PROPOSE SCHEDULE Signed by Judge Alsup on 11/16/2017. (whalc1, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)
69 TENTATIVE ORDER RE MOTIONS TO STAY DISCOVERY AND COMPLETION OF THE ADMINISTRATIVE RECORD Signed by Judge Alsup on 11/20/2017. (Attachments: # 1 Tentative Order)(whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
70 ONE−MONTH CONTINUANCE OF DUE DATE FOR AUGMENTED ADMINISTRATIVE RECORD AND TEMPORARY STAY OF DISCOVERY by Judge Alsup re (190) Motion to Stay; re (191) Motion to Stay; re (192) Stipulation in case 3:17−cv−05211−WHA. (whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
71 ORDER of USCA denying petition (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
72 ORDER of USCA Dismissing Motion for Stay filed by government. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
73 ORDER of USCA regarding Motion for Stay. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
74 Memorandum of USCA regarding Administrative Record. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
75 ORDER of USCA denying Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
76 NOTICE by Department of Homeland Security, Elaine C. Duke, United States of America of Filing of Petition for Writ of Mandamus and Application for a Stay in the United States Supreme Court (Attachments: # 1 Petition for a Writ of Mandamus, # 2 Application for a Stay)(Rosenberg, Brad) (Filed on 12/1/2017) (Entered: 12/01/2017)
77 NOTICE OF FILING OF STATEMENT OF DISTRICT COURT IN RESPONSE TO APPLICATION FOR A STAY Signed by Judge Alsup on 12/6/2017. (whalc1, COURT STAFF) (Filed on 12/6/2017) (Entered: 12/06/2017)
78 Minute Entry for proceedings held before Judge William Alsup:

Motion Hearing held on 12/20/2017 re 114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support filed by Elaine Duke, United States Department of Homeland Security; 111 MOTION for Preliminary Injunction −− Plaintiffs' Motion for Provisional Relie filed by UC Regents, Janet Napolitano. Motions are submitted.

Total Time in Court: 3 Hours; 40 Minutes. Court Reporter: Lydia Zinn.

Plaintiff Attorneys: Jeffrey Davidson, Megan Crowley, Alexander Berengaut,

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 17 of 20

12/21/2017
12/21/2017 12/21/2017 12/27/2017 01/09/2018 01/10/2018
01/10/2018 01/10/2018 01/11/2018

Mark Lynch, Lanny Breuer, James Zahradka, Brian Danitz, Mark Rosenbaum, Ethan Dettmer, Eric Brown. Defendant Attorneys: Brad Rosenberg, Kate Bailey, Brett Shumate.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 12/20/2017) (Entered: 12/20/2017)
79 Transcript of Proceedings held on 12/20/2017, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (222 in 3:17−cv−05211−WHA) Transcript Order, (220 in 3:17−cv−05211−WHA) Transcript Order ) Redacted Transcript Deadline set for 1/22/2018. Release of Transcript Restriction set for 3/21/2018. (Zinn, Lydia) (Filed on 12/21/2017) (Entered: 12/21/2017)
80 PER CURIAM of Supreme Court of the United States on Petition for Writ of Mandamus vacating judgment of USCA and remanding case. (sxbS, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
81 STAY OF NOVEMBER 20 ORDER 197 . Signed by Judge Alsup on 12/21/2017. (whalc1, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
82 ORDER of USCA regarding Government's threshold arguments and certification for appeal (sxbS, COURT STAFF) (Filed on 12/27/2017) (Entered: 12/27/2017)
83 ORDER DENYING 114 FRCP 12(b)(1) DISMISSAL AND GRANTING 111 PROVISIONAL RELIEF (granting 227 ) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/9/2018) (Entered: 01/09/2018)
84 CLERK'S NOTICE: Discovery Hearing set for 1/10/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Personal appearances are preferred, but given the short notice counsel may appear by telephone. Only one attorney per party to speak if appearing by telephone, although other attorneys for the same party may listen to the hearing. Attorneys wishing to participate by telephone shall contact the Court by email to SKCRD@cand.uscourts.gov to request the dial−in information. In the email, counsel shall identify which party they represent and the name(s) of the attorney(s) that will be appearing. The Court will issue a follow up order with specific topics to be addressed during the hearing. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
85 CLERK'S NOTICE Correcting Date/Time of Discovery Hearing: Discovery Hearing set for 1/11/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) Modified on 1/10/2018 (mklS, COURT STAFF). (Entered: 01/10/2018)
86 ORDER REGARDING DISCOVERY HEARING ON 1/11/2018. Signed by Magistrate Judge Sallie Kim on 1/10/2018. (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
87 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Discovery Hearing held on 1/11/2018. The Court and parties discuss the status of discovery. Further Discovery Hearing set for 1/30/2018 09:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Defense counsel may appear by telephone. (FTR Time: 10:32−10:41.)
Plaintiff Attorney: Jeffrey Davidson; James Zahradka; Eric Brown; Justin Berger; Kelsey Helland. Defendant Attorney: Brad Rosenberg (by telephone).
(This is a text−only entry generated by the court. There is no document associated

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 18 of 20

01/12/2018 01/16/2018 01/22/2018 01/23/2018 01/26/2018
01/29/2018 01/31/2018 01/31/2018 01/31/2018 02/01/2018 02/01/2018 02/01/2018 02/01/2018

with this entry.) (mklS, COURT STAFF) (Date Filed: 1/11/2018) (Entered: 01/11/2018)
88 ORDER GRANTING IN PART 114 DEFENDANTS' MOTION TO DISMISS UNDER FRCP 12(b)(6) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)
89 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Department of Homeland Security, Kirstjen Nielson, United States of America. Appeal of Order on Motion for Preliminary Injunction 83 , Order on Motion to Dismiss 88 (Appeal fee FEE WAIVED.) (Rosenberg, Brad) (Filed on 1/16/2018) (Entered: 01/16/2018)
90 CLERK'S NOTICE: The Discovery Hearing currently set for 1/30/2018 at 9:30 AM before Magistrate Judge Sallie Kim is vacated. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)
91 ORDER GRANTING (246) STIPULATION RE EXTENSION OF TIME TO RESPOND TO COMPLAINTS AND TO SEEK LEAVE TO FILE AMENDED COMPLAINTS by Judge William Alsup.(whalc1, COURT STAFF) (Filed on 1/23/2018) (Entered: 01/23/2018)
92 USCA Acknowledgment of Receipt of Permission to Appeal 18−80004 USCA 9th Circuit for (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump. (sxbS, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)
93 USCA Case Number 18−15069 USCA 9th Circuit for 89 Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security. (sxbS, COURT STAFF) (Filed on 1/29/2018) (Entered: 01/29/2018)
94 Judgment of Supreme Court of United States Washington DC re Writ of Mandamus (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
95 USCA Case Number 18−80007 USCA 9th Circuit for Acknowledgment of Receipt for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
96 USCA Case Number 18−80008 USCA 9th Circuit acknowledgment receipt of Petition for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
97 ORDER of USCA granting petition for permission to appeal as to (92 in 3:17−cv−05235−WHA, 251 in 3:17−cv−05211−WHA, 75 in 3:17−cv−05329−WHA, 69 in 3:17−cv−05380−WHA, 57 in 3:17−cv−05813−WHA) USCA Case Number 18−80004 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
98 ORDER of USCA granting petition for permission to appeal as to (253 in 3:17−cv−05211−WHA, 73 in 3:17−cv−05380−WHA, 60 in 3:17−cv−05813−WHA, 95 in 3:17−cv−05235−WHA, 78 in 3:17−cv−05329−WHA) USCA Case Number 18−80007 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
99 ORDER of USCA granting petition for permission to appeal as to (79 in 3:17−cv−05329−WHA, 96 in 3:17−cv−05235−WHA, 61 in 3:17−cv−05813−WHA, 74 in 3:17−cv−05380−WHA, 254 in 3:17−cv−05211−WHA) USCA Case Number 18−80008 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
100 USCA Case Number 18−15128 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 19 of 20

02/01/2018 02/01/2018 02/01/2018
02/22/2018 03/08/2018 03/19/2018 03/19/2018 03/22/2018 04/04/2018 06/26/2018 11/08/2018
01/16/2019 02/25/2019
04/11/2019

101 USCA Case Number 18−15133 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
102 USCA Case Number 18−15134 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
103 ORDER of Supreme Court of U.S. Washington DC re filing of petition for writ of certiorari as to (92 in 3:17−cv−05235−WHA, 251 in 3:17−cv−05211−WHA, 75 in 3:17−cv−05329−WHA, 69 in 3:17−cv−05380−WHA, 57 in 3:17−cv−05813−WHA) USCA Case Number,,, (62 in 3:17−cv−05813−WHA, 97 in 3:17−cv−05235−WHA, 75 in 3:17−cv−05380−WHA, 255 in 3:17−cv−05211−WHA, 80 in 3:17−cv−05329−WHA) USCA Order, (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
104 U.S. Supreme Court Receipt acknowledging Petition for Writ of Certiorari filed on 1/18/18 as No. 17−1003. (sxbS, COURT STAFF) (Filed on 2/22/2018) (Entered: 02/22/2018)
105 ORDER RE DEADLINE FOR PLAINTIFFS TO MOVE FOR LEAVE TO FILE AMENDED COMPLAINTS. Signed by Judge Alsup on 3/8/2018. (whalc1, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)
106 ORDER of USCA re motion and panel of Ninth Circuit Judges. (sxbS, COURT STAFF) (Filed on 3/19/2018) (Entered: 03/19/2018)
107 NOTICE of Change In Counsel by Danielle C Gray (Gray, Danielle) (Filed on 3/19/2018) (Entered: 03/19/2018)
108 USCA Acknowledgment of Receipt for Permission to Appeal: Case Number 18−80037 USCA 9th Circuit (sxbS, COURT STAFF) (Filed on 3/22/2018) (Entered: 03/22/2018)
109 ORDER OF RECUSAL. Signed by Magistrate Judge Sallie Kim on 4/4/2018. (mklS, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)
110 ORDER REFERRING CASE TO MAGISTRATE JUDGE SALLIE KIM FOR DISCOVERY PURPOSES. Signed by Judge Alsup on 6/26/2018. (whalc1, COURT STAFF) (Filed on 6/26/2018) (Entered: 06/26/2018)
111 USCA JUDGMENT as to (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (ddkS, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/21/2018)
112 Appeal Remark Letter from US Supreme Court (amgS, COURT STAFF) (Filed on 1/16/2019) (Entered: 01/22/2019)
113 MANDATE of USCA as to (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (amgS, COURT STAFF) (Filed on 2/25/2019) (Entered: 02/27/2019)
114 MOTION to Withdraw as Attorney Brett A. Shumate filed by Kirstjen Nielson, United States Department of Homeland Security, United States of America. Responses due by 4/25/2019. Replies due by 5/2/2019. (Attachments: # 1 Proposed Order)(Shumate, Brett) (Filed on 4/11/2019) (Entered: 04/11/2019)

Case: 3:17-cv-05235-WHA As of: 02/17/2020 07:53 PM PST 20 of 20
07/03/2019 115 Supreme Court of the United States Case Number 18−587 re 112 Appeal Remark. (wsnS, COURT STAFF) (Filed on 7/3/2019) (Entered: 07/08/2019)

 
 Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 1 of 37

XAVIER BECERRA Attorney General of Cal ifornia 2 ANGELA SIERRA Senior Assistant Attorney General 3 MICHAEL L. NEWMAN Supervi sing Deputy Attorney Genera l 4 JAMES F. ZAHRADKA II (SBN 196822) CHRISTINE CHUANG 5 REBEKA HA. FRETZ RONA LD 1-1. L EE 6 KATHLEEN YERMAZEN RADEZ SI-IU BHR A SHIYPURI 7 Deputy Attorneys General
1515 Clay Street, 20th Floor 8 Oakland, CA 94612-1499
Telephone: (5 10) 879-1247 9 E-mai l: James.Zahradka@doj .ca.gov

IO [Additional counsel listed on signature page]

11 Attorneysfor Plaint(ffState o.fCalifornia

12 IN THE UN ITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15 STATE OF CALIFORNIA, STATE OF
16 MAINE, STATE OF MARYLAND, and STATE OF MINNESOTA,

Civ il Case No.

17

Plaintiffs,

18

v.

19

COMPLAINT FOR DECLARATORY .AND INJUNCTIVE RELIEF

20 U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her
2 1 offi cial capacity as Acting Secretary of Homeland Security; and UNITED STATES
22 OF AMERICA,

23

24

Defendants.

25

26

27

28

Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 2 of 37

INTRODUCTION

2

I. The State of California is home to, by far, more grantees of DefetTed Action for

3 Childhood Arrivals ("DACA") than any other state, and the States of California, Maine,

4 Maryland , and Minnesota (collectively, "Plaintiff States") combined are home to more than

5 238,000 DACA grantees. Defendants' actions in rescinding DACA are illegal and seriously harm

6 Plaintiff States' interests in ways that have alread y started to materialize and that threaten to last

7 for generations. This program has allowed nearl y 800,000 young people (including over 220,000

8 Californians) who have come of age in the United States- many of whom have known no other

9 home-to come out of the shadows and study and work here without fear of depo1tation,

10 enriching our States and communities. DACA is a humane policy with a proven track record of

11 success, and Defendants' rescission of DACA violates fundamental notions ofjustice.

12

2. On September 5, 2017, Defendant Acting Secretary of the Department of

13 Homeland Security Elaine Duke (" Duke") issued a memorandum rescinding DACA. Ex. A,

14 Memorandum from Elaine C. Duke, Acting Sec'y of Homeland Security to James W. McCament,

15 Acting Dir., U.S. Citizenship and Immigration Services ("USC JS") , et al., Rescission of the June

16 15, 2012 Memorandum Entitled " Exercising Prosecutorial Discretion with Respect to Individuals

17 Who Came to the United States as Children" (Sept. 5, 2017) ("DACA Resci ssion Memorandum").

18 Pursuant to that memorandum, Defendant Department of Homeland Security (" OHS")

19 immediatel y ceased accepting new applicati ons under the DACA program, immediately ceased

20 granting advance parole (i.e., authorization for DACA grantees to leave the country), and

2 1 declared that it wiII only issue renewal s for current grantees whose DACA protection expires on

22 or before March 5, 20 18; these current grantees must apply fo r renewal by October 5, 2017.

23

3. The Trump Administration ' s elimination of DACA was unlawful on a number of

24 grounds. First, the DACA Resciss ion Memorandum violates the due process guarantee of the

25 Fifth Amendment to the United States Constitution by substantially altering DHS 's prior

26 assurances regard ing the use of information contained in DACA applications; Defendants should

27 be equitably estopped from acting contrary to these assurances. Second, OHS promulgated this

28

Compl a int for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 3 of 37

rule without providing notice or the opportunity to comment as required by the Administrative

2 Proced ure Act (" APA"), thereby depriving Plaintiff States of the opportunity to present important

3 ev idence to OHS about the overwhelming success of the DACA program in Plaintiff States as

4 part of the rulemaking process. Third, OH S violated the substantive requirements of the APA by

5 proffering a legally insufficient justification for rescinding DACA, obscuring the true policy

6 rationale for this substantial change, and otherwise violating independent constitutional and

7 statutory provisions. Fourth , federal law does not permit thi s substantive change in OHS policy

8 to be made without an analys is of the negative impact of rescinding DACA on small businesses,

9 non-profits, and local government entities, including those in Plaintiff States. Finally, Defendants

IO have di scriminated against thi s class of young immigrants in violation of the equal protection

11 guarantee of the Fifth Amendment by depriving them of their interests in pursuing a livelihood

12 and furthering their education. These interests are substantial, and Defendants deprived DACA

13 grantees of them without a sufficient justification.

14

4. DACA grantees residing in Plaintiff States are employed by compani es and non-

15 profits, large and small, as we ll as State and municipal agencies, all of which benefit from their

16 skill s and productivity. Through their employment and broader participation in the economy,

17 DACA grantees contribute to the economic activity of Plaintiff States and the United States

18 generally. As residents of Plaintiff States, DACA grantees have also pursued educational

19 opportunities at post-secondary instituti ons, enriching the educational experiences of all students

20 and faculty by contributing their diverse life experiences and perspectives, while building upward

2 1 career mobility for themselves. In addition to substantiall y benefitting from DACA themse lves,

22 DA CA grantees have taken advantage of the opportunities available to them under thi s program

23 in a manner that has significantly enhanced Plaintiff States in a number of ways, helping to

24 advance their sovereign, quasi-sovereign, and proprietary interests.

25

5. As a direct result of the decision to eliminate DACA, DACA grantees will lose

26 their work authorization, requiring their employers to terminate them as employees. As a result

27 of los ing employment, DACA grantees face the loss of employer-based health in surance, whi ch

28 has not on ly benefited them personall y, but has reduced Plaintiff States' expenditures on 2
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 4 of 37

hea lthcare to uninsured people and enhanced public health overa ll. While education laws in

2 Ca li forn ia and other states will permit most DACA grantees who are in school to mai ntain their

3 enrollment in post-secondary educational institutions even if they lose DACA protection, man y

4 are expected to di senroll because their inability to work will create financial obstacles to

5 maintaining enro llment. And others will di senroll si mply because they may no longer be able to

6 achieve career objectives commensurate with their skill s and qualifi cations; still others may be

7 afraid to interact with any government entity, even public schoo ls or hosp itals, once they lose

8 DACA's protecti on from deportation. Those DACA grantees who choose to remain enrolled will

9 be unab le to participate equally in other oppo1tunities generall y avai lable to students, such as paid

I O internships and externships, as well as study abroad programs.

11

6. Under the DACA program, grantees were authorized to apply for advance parole,

12 which allowed many of them to return to the United States after visiting their families outside the

13 country when fami ly emergencies arose. Defendants have abruptly terminated this authorization,

14 even refusing to adjudicate already pending applicati ons submitted by DA CA grantees. As a

15 result of the termination, thousands of residents wi II be unable to visit fami ly members or travel

16 outside the United States for educational or employment purposes. It is also uncertain whether

17 residents whose advance parole requests were prev iously approved and who are currently

18 traveling abroad will face greater difficulty in being permitted to return home to the Un ited

19 States.

20

7. DACA grantees came to the United States through no volition of their own. They

2 1 grew up in thi s country and many have known no other home. Prior to DACA, they faced fear of

22 depottation, hardship, and stigma due to their status. DACA has allowed them the stability and

23 security they need to build their lives in the open. Through their sudden and unlawful acti ons,

24 Defendants are attempting to push DACA grantees back into the shadows of American life.

25

8. Due to Defendants' actions and representations, DACA grantees face risks as a

26 resu lt of their very patticipation in DACA-pa1ticularly if the DACA Rescission Memorandum is

27 fully implemented. When they applied for DACA, app licants were requ ired to provide sensitive

28 information to OHS- including thei r fingerprints, photos, home address, school location, and 3
Complaint fo r Declaratory and Inj uncti ve Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 5 of 37

criminal records, however minor-in reliance on the government's repeated promises that it

2 would not use the information against them to conduct enforcement actions. The DACA

3 Rescission Memorandum and associated Frequently Asked Questions dated September 5, 20 17

4 (" Rescission FAQs"), attached hereto as Ex. 8 , substantively change DHS's policy in a manner

5 that places current and former DACA grantees at risk of deportation based on information

6 previously disclosed to OHS in good faith.

7

9. Further, DH S's prior assurances to employers regarding the employment

8 verification information they provided to employees to aid prospective DACA applicants are not

9 discussed in the DACA Rescission Memorandum or Rescission FAQs, indicating that employers

10 might now be subject to actions for unlawful employment practices despite DHS's earlier

11 assurances that they would not be.

12

I 0. Defendants' resci ssion of DACA will injure Plaintiff States' state-run co lleges and

13 universities, upset the States' workforces, di srupt the States' statutory and regulatory interests,

14 cause harm to hundreds of thousands of their residents, damage their economies, and hurt

15 companies based in Plaintiff States.

16

11. The States of California, Maine, Maryland, and Minnesota respectfully request that

17 this Cow1 enjoin OHS from resc inding DACA and declare that OHS is equitably estopped from

18 using information gathered pursuant to the DACA program in immigration enforcement actions

19 agai nst current and former DACA applicants and grantees, and in actions against their current or

20 former employers except as authorized previous ly under DACA.

21

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT

22

12. Thi s Court has jurisdiction pursuant to 28 U.S.C. §§ 133 1 and 220 I (a).

23

13. Venue is proper in this district pursuant to 28 U.S.C. §§ 139l (b)(2) and

24 139 1(e)( I ). A substantial part of the events or om issions givi ng rise to this action occurred in this

25 district; Plaintiff State of Ca lifornia resides in this district; and no real prope11y is invo lved in the

r

26 action. This is a civiI action in which Defendants are agencies of the United States or officers of

27 such an agency.

28 4
Complaint fo r Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 6 of 37

14. Intradi strict assignment is proper in San Francisco or Oakland pursuant to Local 2 Rules 3-2(c) and (d) because a substantial part of the events or omissions which give rise to the 3 claim occurred in the City and County of San Francisco.

4

PARTIES

5

PLAINTIFF STATE OF CALIFORNIA

6

15 . The State of California, represented by and through its Attorney General, is a

7 sovereign State of the United States of America.

8

16. Governor Edmund G. Brown, Jr. , is the chief executive officer of the State. The

9 Governor is responsible for overseeing the operations of the State and ensuring that its laws are

IO faithfu lly executed. As the leader of the executive branch, the Governor is the chief of

11 California ' s executive branch agencies, including those whose injuries are discussed in this

12 Complaint. Cal. Const. art V, § I.

13

17. Attorney General Xav ier Becerra is the chief law officer of the State. The

14 Attorney General is responsible for protecting California's sovereign interests, including the

15 sovereign interest in enforc ing California laws. Cal. Const. att V, § 13.

16

18. California is aggrieved by the actions of Defendants and has standing to bring this

17 action because of the injury to its state sovereignty caused by Defendants' resciss ion of DACA,

18 including immediate and irreparabl e injuries to its sovereign, quasi-sovereign, and proprietary

19 interests, and its interests as parens patriae.

20

19. California is home to more than 379,000 DACA-eligible residents. As of March

21 2017, USCIS had approved 222,795 DACA applications from immigrants residing in California.

22 Ex. C, USC IS, Number of Form 1-821 D, Consideration of Deferred Action for Childhood

23 Arrivals by Fiscal Year, Quarter, Intake Biometrics and Case Status Fiscal Year 2012-2017 (Mar.

24 31, 2017) ("USC IS Numbers"). More than 30 percent of al l DACA grantees in the entire country

25 reside in Cal ifornia, giv ing California by far the largest population of DACA grantees of any

26 state.

27

20. Indeed, in the first year of DACA, 13 percent of DACA requests nationwide

28 (78,000) came from individual s in the Los Angeles area alone. 5
Complai nt for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 7 of 37

2 1. Ca lifornia has an interest, reflected in its Constitution and state law, in prohibiting

2 discrimination on the basis of race, co lor, national origin, and immigration status. Ca lifornia ' s

3 Constitution prohibits any discriminati on on the basis of race, color, or national origin. See Cal.

4 Const. art. I,§§ 8, 31. California recognizes as civil rights an indi vidual 's opportunity to obtain

5 employment, housing, real estate, full and equal utilization of public accommodations, public

6 serv ices, and educati on institutions without such discriminati on. See, e.g., Cal. Gov. Code

7 §§ 111 35, 12900-12907; Cal. Civ. Code§ 51(b). California has a further interest, as ev idenced

8 by its Constitution, in prohibiting the deprivation of life, liberty, or property without due process,

9 and in preventing any practice that denies equal protect ion of the laws. See Ca l. Const. art. I,§ 7.

10

22. California's interest in protecting the health, safety, and well-being of its res idents,

I I including protecting its residents from harm s to thei r physica l or econom ic health, extends to all

12 residents, regardless of immi gration status. See, e.g., Ca l. Civ. Code§ 3339(a); Ca l. Gov. Code

13 § 7285(a); Cal. Health & Safety Code § 24000(a); Cal. Labor Code § 1I7 I.5(a).

14

23. California has an interest in ensuring public safety within its borders and

15 protecting the rights of its residents by maintaining an effecti ve law enforcement system. Like

16 many local law enforcement agencies in California and throughout the nation, the State has

17 concluded that public safety is best protected when all members of our community-regardless of

18 immigration status- are encouraged to repo11 crimes and participate in policing efforts without

19 fear of immigration consequences. California has fu11her determined that the interests of public

20 safety are best served by promoting trust between law enforcement and California residents,

2 1 including members of the immigrant community. By deferring the possibility of immediate

22 deportation , the DACA program has removed a significant deterrent to immigrants approaching

23 law enforcement for assistance when they have been victimized or have witnessed crimes.

24

24. Ca li fornia has an interest in prom oting and preserving the public health of

25 Ca lifornia residents. Defendants' resc ission of DACA will create seri ous public health problems.

26 . These include worsening the ex isting sho11age of physicians and gutting the home healthcare

27 workforce for seniors and people with disabilities. Fw1her, former DACA grantees will face

28 6
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 8 of 37

increasin g mental health problems like depression, anxiety, and suicide attempts when they

2 suddenl y find themselves once again members of an underclass with an uncertain future.

3

25. The rescission of the DACA program will also harm California's interests in, and

4 expenditures on, its educational pri orities. California's state universities and coll eges have made

5 significant investments in financial aid and in other-programs to support these students, consistent

6 with the interests of those institutions- and those of the State itself- in diversity and

7 nondiscrimination. Californ ia wi ll lose that investment because of the rescission of DACA. The

8 Un iversity of California ("UC") system estimates that it alone has approximately 4,000

9 undocumented students enrol led, of whom a substantial number are DACA recipients. An

IO estimated 60,000 undocumented students attend California's community colleges, and 8,300

11 attend the California State Universities; a significant number of these students are DACA

12 grantees.

13

26. UC also employs many DACA recipients at UC campuses and in UC medical

14 centers as teaching assistants, research assistants, post-doctoral researchers, and hea lth care

15 providers. DACA recipients often possess valuable foreign language skill s. As a resu lt of

16 DACA's termination, UC wi ll lose the ski lls and talents of these employees.

17

27. Similarly, the loss of DACA grantees as professors, teachers, teachers' aides,

I 8 administrators, and nurses from our primary and secondary schools, as well as the California

19 State University and California Community Co llege systems, will frustrate California's interests

20 in the education of al l its residents and harm Californ ians.

21

28. Immigration is an important economic driver in California. California is the sixth

22 largest economy in the world, and it is home to many small bu sinesses, large corporations, non-

23 profit organizations, public and private hospitals, and colleges and universities that will be

24 adversely affected by the termination of DACA.

25

29. The cumulative economic harm to California from the rescission of DACA is

26 signi ficant. According to one estimate, the State of Californ ia alone would suffer $65.8 billion in

27 economic losses over a ten-year window as a result of DACA ' s rescission.

28 7
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 9 of 37

30. DACA grantees contribute sign ificantly to state and local tax revenues. DACA

2 grantees average hi gher earning capacities than their undocumented peers and are able to better

3 contribute to our economy. Studies show that after receiving DA CA, many grantees purchase

4 houses and cars for the first time, boosting the economy and generating state and local tax

5 revenues. According to one estimate, DACA-eligible residents contribute more than $534 million

6 annually in state and local taxes in Ca lifornia alone; those annual state and local tax contributions

7 are projected to decrease by $199 million when Defendants' resc ission of DACA is complete.

8 The State of California stands to lose an estimated $ 18.4 billion in taxes over ten years when the

9 ful l impact of Defendants' resci ssion of DACA has taken effect.

10

3 1. Executives at some of the largest compan ies in Ca lifornia, and indeed, the nation,

11 including Apple, Facebook, and Google, have been vocal in support of DACA grantees and have

12 urged the President to retain DACA . Many have also been voca l about the harm that DACA's

13 repea l wi ll cause to their companies and employees. For example, the Chief Executive Officer of

14 Apple, Tim Cook, noted that "250 of my Apple coworkers are #Dreamers," later adding,

15 ''#Dreamers contribute to our companies and our communities just as much as you and I." Tim

16 Cook, Tw itter (Sept. 3 & 5, 2017). Mark Zuckerberg and Sundar Pichai, the Chief Executive

17 Officers of Facebook and Google, respectively, have expressed similar sentiments. See, e.g.,

18 Mark Zuckerberg, Facebook (Sept. 5, 20 17) ("The young people covered by DACA are our

19 friends and neighbors. They contribute to our communities and to the economy."); Sundar Pi chai ,

20 Twitter (Sept. 5, 20 17) ("Dreamers are our nei ghbors, our friend s and our co-workers.").

21

32. Ca lifo rnia, too, has an interest in securing the best poss ible empl oyees and in

22 managing its workforce. California state agencies and institutions employ at least 48 DACA

23 grantees, man y of whom were hired because of their specialized skills and qualifications and who

24 wi ll be affected by the termination of DACA. DACA grantees he lp further California's pri orities

25 to ensure, inter alia: public safety at the Departments of Corrections, Rehabilitati on, Forestry, and

26 Fire Protecti on; public hea lth at the Departments of State Hospitals and Developmental Services;

27 and in frastructure at the Departments of Transportation and Water Resources. Ca lifornia has

28 expended time and fund s to hire, train, and manage these DACA grantees, and stands to lose the 8
Complaint for Declaratory and Inj unctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 10 of 37

value of that in vestment- and the emp loyees' ongoing labor- due to Defendants' rescission of

2 DACA.

3

33. In sum, Defendants' resc ission of DACA harms the State of Cali forn ia directly as

4 we ll as indirectl y through its effects on California residents, fami li es, businesses, and institutions.

5

PLAINTIFF STATE OF MAINE

6

34. The State of Maine is a sovereign State of the United States of America. The

7 Attorney General of Maine, Janet Mill s, is a constitutional officer with the authority to represent

8 the State in alI matters, and serves as its chief legal officer with general charge, supervi sion, and

9 direction of the State's legal business. The Attorney General' s powers and duties include actin g

IO on beha lf of the State and the people of Maine in the federal courts on matters of public interest.

I I The Attorney Genera l has the authority to file suit to challenge action by the federal government

12 that threatens the pub Iic interest and we lfare of Mai ne residents as a matter of constitutiona l,

I3 statutory, and com mon law authority.

14

35. Maine is aggrieved by Defendants ' actions and has standing to bring thi s action

15 because of the injuries to the State caused by Defendants' rescission of DACA, including

16 im mediate and irreparable injuri es to its sovereign, quasi-sovereign, and proprietary interests.

17

36. At the end of the first quarter of 2017, USC IS had accepted 134 initial applications

18 and 4 IO renewa l applications since 20 12 for the DACA program in Maine, and in that same time

19 had approved 95 in itial applications and 334 renewal applications. Ex. C, USC IS Numbers. The

20 DACA population in Maine makes up 4 percent of Maine's estimated undocumented population.

21

37. An estimated 83 of Maine' s DACA recipients are employed. The estimated

22 annual GDP loss in Maine from removi ng DACA workers is $3.97 million.

23

38. DACA-eligible indi viduals currentl y contribute $330,000 a year in state and local

24 taxes. If I00 percent of eligible indi viduals were enrolled, tax revenues would increase by

25 $74,000. If DACA protections are lost, Maine wou ld lose an estimated $96,000 in state and local

26 taxes.

27

39. Defendants' rescission of DACA will resu lt in Maine' s grantees losing their jobs

28 and ability to attend college and graduate instituti ons. Many businesses will lose va lued workers. 9
Co mplaint for Declaratory and Injuncti ve Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 11 of 37

Rescission of work authorization wi11 threaten DACA grantees' ability to support themselves and

2 their fam ilies, and the forced separation of Maine families that wi II result from DACA 's

3 resciss ion wi ll further jeo pardize the health and well-being of Maine residents.

4

40. Maine's population demographics demonstrate particular benefits that immigrants

5 bring to the State's work force. In 2014, almost one in five Mainers was already older than age

6 65- the third highest share in any state in the country. From 2011 to 20 14, Maine experienced

7 more deaths than births, one of only two states in the country to do so. Many Maine employers-

8 from electronics manufacturers to meat processors-have struggled to find the workers they need

9 in recent years to expand and keep growing in the State. Jessica Lowell, Maine Employers Face

10 a New Challenge: Not Enough Workers, Portland Press Herald, July 23 , 2016,

11 https://ti nyurl.com/v7 gsGIan .

12

41. Maine has a strong public policy interest in prohibiting discrimination on the basis

13 of race, color, or national origin. See Me. Rev. Stat. tit. 5, §§ 4681-468 5.

14

PLAINTIFF STATE OF MARYLAND

15

42. The State of Maryland is a sovereign State of the United States of America.

16

43 . The State is represented by and through the Attorney Genera l of Maryland , Brian

17 Frosh, its chief legal officer with general charge, supervision, and direction of the State's legal

18 business. The Attorney General 's powers and duties include acting on behalf of the State and the

19 people of Maryland in the federal courts on matters of public concern. Under the Constitution of

20 Maryland, and as directed by the Maryland General Assembl y, the Attorney General has the

2 1 authority to file suit to challenge action by the federa l government that threatens the public

22 interest and welfare of Maryland residents. Md . Const. art. V, § 3(a)(2); 20 17 Md. Laws, Joint

23 Resolution I.

24

44. Maryland is aggrieved by Defendants ' actions and has standing to bring thi s action

25 because of the injury to its State sovereignty caused by Defendants' rescission of DACA,

26 including immediate and irreparable injuries to its sovereign, quasi-sovereign, and proprietary

27 interests.

28 10
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45. Maryland is home to more than 20,000 you ng people who are immediate ly eligible

2 for DACA, an addit ional 6,000 who may become eligible through enrollment in school, and an

3 additional 7,000 who may become eligible on their 15th bi1thdays.

4

46. At the end of the first quarter of 2017, 11 ,513 initial app lications and 12,357

5 renewa l applicati ons for the DACA program in Maryland had been accepted by USC IS .

6

47. If DACA is resci nded, Maryland will lose milli ons of dollars in state and local tax

7 revenues. DACA-eligible individuals currentl y contribute $40.8 million a year in state and loca l

8 tax es. If 100 percent of eligible individuals were enrolled, tax revenues wou ld increase by $ 16.1

9 million.

10

48. Maryland has a quasi-sovereign interest in protecting the health and we ll-being,

11 both econom ic and physical, of all its residents.

12

49. Fifty-five percent of DACA-eli gible individuals in Maryland are employed.

13 DACA grantees work for both large and small businesses, which are critical to the State's

14 economic viability. In add ition, DACA grantees in Maryland work in a wide array of fields,

15 including healthcare, education, law, and social services.

16

50. Rescinding DACA will result in di sruptions in each of these fie lds, as companies

17 and non-profits wi ll be forced to termin ate qualified and trained employees without empl oyment

18 authorization. Estimates are that resc inding the DACA program will cost Maryland $509.4

19 million in annual GDP losses.

20

51. Additionally, rescinding DACA wi ll cause many DACA grantees to lose their

21 employer-based health insurance. Without employer-based benefits, more Maryland residents are

22 li kely to refrain from seeking needed med ical care. As a result of forego ing treatment, includ ing

23 for preventative purposes, these residents will impose higher healthcare costs on Maine.

24

52. The resciss ion of DACA also threatens the we lfare of both DACA grantees and

25 their families, including some household s with family members who are Un ited States citizens.

26 Rescissi on of work authori zation will threaten DACA grantees' ability to suppo11 themselves and

27 their famili es, and the forced separation of Maryland fam ili es that resu lts from DACA 's

28 resciss ion w ill further jeopardize the hea lth and we ll-being of Maryland residents . 11
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53. Maryland also has a proprietary interest in hiring and training a qualified

2 workforce. Both the State and local jurisdictions employ DACA grantees, many of whom have

3 specialized ski lls and qualifications. The State and local governments will lose not on ly these

4 employees, but also their significant investments in hiring and training the DACA grantees who

5 work for them.

6

54. Rescinding DACA will adversely impact current DACA grantees enrolled in

7 colleges and universities. Without DACA' s employment authorization, these students'

8 educational and employment plans wiII be disrupted, if not aborted.

9

55. Di senrollment by DACA grantees wi ll also harm Maryland 's public colleges and

IO universities. The University of Maryland has emphasized the importance of its students who are

11 DACA grantees. See Wallace D. Loh, President 's Statement on DA CA Students, Un iversity of

12 Maryland (Sept. 5, 20 17), https://tin yu rl. com/y6u lklrz. In 2011 , Maryland passed a law allowing

13 undocumented students brought to the United States as children, or "dreamers," to pay in-state

14 tuition rates at the State ' s public institutions, and voters later approved the law in a referendum.

15 2011 Md. Laws, Ch. 191. In the 2015 -1 6 academic year, over 500 dreamers were enrol led in

16 Maryland public co lleges at in-state tuition rates. Resc inding DACA wi ll result in many of these

I7 students leaving school, which harms both the individual students as well as the schools.

I8 Maryland 's pub lic institutions will lose the di versity and enrichment thi s population brings to the

19 school community.

20

56. Maryland has a strong public policy interest in prohibiting di scriminat ion on the

2 1 basis of race, color, or national origin. See Md. Code Ann., State Gov ' t §§ 20-302, 20-304, 20-

22 40 I, 20-402, 20-602, 20-702 , 20-705 , 20-707, 20-90 I. The Maryland General Assembly has

23 declared that "assur[ing] all persons equal opportunity" is necessary "for the protection of the

24 public safety, public health, and general welfare, for the maintenance of busi ness and good

25 government, and for the promotion of the State's trade, commerce, and manufacturers." Md.

26 Code Ann ., State Gov't § 20-602.

27

28 12
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PLAINTIFF STATE OF MINNESOTA

2

57. The State of Minnesota, wh ich is a soverei gn State of the United States of America,

3 is aggrieved by Defendants' actions. Minnesota has standing to bring this action because of the

4 injuries caused by Defendants' rescission of the DACA program, including injuries to its

5 sovereign, quasi-soverei gn, and proprietary interests.

6

58. Attorney General Lori Swanson brin gs thi s action on behalf of Minnesota to

7 protect the interests of Minnesota and its residents. The Attorney Genera l' s powers and duties

8 include acting in federal court in matters of State concern. Minn. Stat.§ 8.0 1.

9

59. It is estimated that in 2016 there were 16,000 DACA-eligible individuals living in

10 Minnesota. As of March 3 1, 20 17, USCJS had approved 6,255 initial DACA appl ications and

11 6,236 renewals for residents of Minnesota. Ex. C, USCIS Numbers. In addition to these DACA

12 grantees, Minnesota has many residents who wou ld have become eligible for DACA in the future.

13

60. Minnesota has a quasi-sovereign interest in protecting the health and wel l-being,

14 both econom ic and physical, of all its res idents.

15

61. DACA has allowed grantees to access a number of important benefits, including

16 working legally and obtaining employer-based health insurance.

17

62. Rescinding DACA will cause many DACA grantees to lose their employer-based

18 health insurance. Without employer-based benefits, more Minnesota res idents are like ly to

19 refrain from seeking out needed medical care. As a result of forego ing treatment, including for

20 preventative issues, these residents wi ll impose higher healthcare costs on Minnesota.

21

63. The resc ission of DACA also threatens the welfare of both Minnesota DACA

22 grantees and their fami lies. Many Minnesota DACA grantees live in households with family

23 members who are American citizens. Rescission of work authorizati on wi ll threaten DACA

24 grantees' ability to financi ally support themselves and their fami lies, endangering the financial

25 security of these families. It will a lso force separation of Minnesota fami lies, jeopardizi ng their

26 hea lth and stability.

27

28 13
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64. Resc inding DACA will harm Minnesota's colleges and universities. Minnesota

2 law encourages attendance by DACA grantees at public uni versities within Minnesota. See, e.g.,

3 Mi nn. Stat. § I35A.043 , .044.

4

65. The University of Minnesota has emphasized the importance of its DACA students.

5 Eric W. Ka ler, DACA Decision and the University's Stance, Office of the President, Uni versity of

6 M innesota, (Sept. 5, 20 17), https://ti nyurl.com/y9khzd2w. Similarly, Minnesota State University,

7 a system of 37 colleges and universities within Minnesota, has expressed its support fo r DACA

8 and noted the signifi cant contributions of DACA students to its institutions and the State

9 economy. Macalester Coll ege, a nati onally ranked private liberal arts college in St. Paul,

10 Minnesota, has also issued a statement emphas iz ing the importance of DACA students to the

I I co llege community and the economy at large. President Brian Rosenberg, Message to the

12 Community on the Elimination ofDA CA, Macalester College (Sept. 5, 20 17),

13 https ://tinyurl.com/y79yvhhr.

14

66. Rescinding DACA will impair the ability of Minnesota universities to fulfill their

I 5 educational miss ions and provide Minnesota residents with the skills necessary to become valued

16 members of the Minnesota workfo rce.

17

67. One recent study found that 94 percent of the DA CA grantees surveyed who were

18 in schoo l agreed that, because of DA CA, they pursued educationa l opportunities that they

19 previously could not.

20

68. The resci ss ion of DACA will likely cause some grantees to leave Minnesota

2 1 co ll eges and universities because they will be unable to work to meet their educational expen ses.

22 Furth ermore, DACA students may determine that the cost of a co llege education is not a good

23 in vestment because they will be unable to work after graduation. Those grantees who stay in

24 schoo l may take longer to compl ete their studies because of their inability to work. Future DACA

25 students may be deterred from enrolling at all. As a result, Minnesota's universities w ill lose the

26 di versity, enri chment, and new perspecti ves that this population brings to the school community,

27 undermining the educational missions of the universities. These harms will also negati vely affect

28 the tuiti on revenues of Minnesota uni versities. 14
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69. A large number of Minnesota's postsecondary graduates rema in in Minnesota after

2 graduation. Of Minnesota's 20 13 postsecondary graduati ng class, 72 percent were employed in

3 Minnesota two years afte r graduation. Resc indi ng DACA will deprive Minnesota of the ski lls,

4 earning, and tax-payin g pote ntial of those graduates of Minnesota un iversities who would stay in

5 the State to join the State's workforce.

6

70. The Minnesota economy will also be negatively affected by the rescission of

7 DACA. Approx imately 5,442 DACA grantees are employed in Minnesota. If DACA is

8 eliminated, these grantees will lose their work authori zation and the State economy wil l lose

9 approximate ly $376.7 mi ll ion in annual GDP.

IO

7 1. In add ition, rescindi ng DACA will negatively affect Mi nnesota tax revenue

11 because DACA grantees make significant contributions to Mi nnesota state and loca l taxes. One

12 study estimates that the loss of employment caused by the resc iss ion of DACA wi ll resu lt in

13 Mi nnesota los ing approximately $6.9 mi ll ion annual ly in state and local tax revenue.

14

72. The rescission ofDACA will also adversely impact Minnesota employers.

15 Minnesota businesses and other employers have hired DACA grantees because of the sk ills and

16 other contributions they bri ng to these organ izations. Various Minnesota busi ness leaders,

17 including the Chief Executive Officer of Best Buy and the Senior Vice President of the Minnesota

18 Chamber of Commerce, signed a letter to the Pres ident stressing the impo11ance of DACA to the ir

19 organizations and the economy. Open LetterJi-om Leaders ofAmerican Industry (Aug. 31, 20 17),

20 https://wv,;w.businessleadersdacaletter.corn/.

21

73. Minnesota has a strong publ ic po licy interest in prohibiting discrimination on the

22 bas is of race, color, or national origin. See Minn. Stat. § 363A.02. Minnesota has stated that such

23 discrim ination "threatens the ri ghts and privileges of the inhabitants of this state and menaces the

24 institutions and foundations of democracy." Id. Minnesota recognizes an individ ual's

25 opportunity to obtain employment, housing, real estate, full and equal utilizat ion of publ ic

26 accommodations, public services, and educational inst itutions without such discrimination as a

27 ·'civi l ri ght. " Id.

28 15
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74. In sum, the rescission of DACA substantial ly and adverse ly affects Minnesota 's

2 residents, educational institutions, economy, and families.

3

DEFENDANTS

4

75. Defendant OHS is a federal cabinet agency responsible for implementing the

5 DACA program. DHS is a Department of the Executive Branch of the United States

6 Government, and is an agency within the meaning of 5 U.S .C. § 552(f)(l ).

7

76. Defendant Elaine C. Duke is the Acting Secretary of Homeland Security. She is

8 responsible for implementing and enforc ing immigration laws, and oversees OHS. She is the

9 author of the September 5, 20 17 memorandum rescinding DACA. She is sued in her offic ial

IO capac ity.

11

77. Defendant United States of America includes all government agencies and

12 departments responsible for the implementation and rescission of the DACA program.

13

ALLEGATIONS

14 I. ESTABLISHMENT OF DACA

15

78. Then-Secretary of Homeland Security Janet Napolitano issued a memorandum on

16 June 15, 20 12 establ ishing the DACA program. Ex. D, Memorandum from Janet Napolitano,

17 Sec'y of OHS, to David Y. Aguilar, Acting Comm'r, U.S. Customs and Border Protection

18 ("CBP"), et al. , Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the 19 Un ited States as Ch ildren (June 15, 2012) (" DACA Memorandum"). Under DACA, individuals

20 who were brought to the United States as children and meet specific criteria may request deferred

2 1 action for a period of two years, subject to renewal.

22

79. Defen-ed action is a long-standing mechanism under wh ich the government

23 forbears from taking removal action against an individual for a period of time. The purpose of

24 deferred action, a form of prosecutorial discretion , is to allow DHS to utilize its resources

25 effectively and humanely.

26

80. The DACA Memorandum systematized the application of existing prosecutorial

27 di scretion for any applicant who satisfied each of the fo llowing criteria:

28

a. came to the Un ited States under the age of sixteen ;

16

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b. had continuously res ided in the United States for at least fi ve years

2 preceding the date of the memorandum and was prese nt in the United States on the date of the

3 memorandum ;

4

c. was currentl y in school, had graduated from high school, had obtained a

5 general educati on development certificate, or was an honorably discharged veteran of the Coast

6 Guard or Armed Forces of the United States;

7

d. had not been convicted of a felony offense, a signifi cant misdemeanor

8 offense, multiple misdemeanor offenses, or otherwise posed a threat to national security or public

9 safety; and

10

e. was not above the age of thirty.

11 Id. at I.

12

81. According to the DACA Memorandum, DACA 's purpose was to ensure that

13 DHS 's resources were appropriately all ocated.to individuals who were higher priorities for

14 immigration enforcement, recognizing among other things that young peopl e brought here as

15 children lacked the intent to violate the law. DACA recognizes that there are "certain young

16 peopl e who were brought to thi s country as children and know only this country as home" and

17 that immigration laws are not "designed to remove productive young people to countries where

18 they may not have lived or even speak the language." Id. at 1-2.

19 II. DACA PROVIDES NUMEROUS BENEFITS

20

82. DACA grantees are provided with numerous benefits. Most importantly, they are

21 granted the right not to be arrested or detained based solely on their immigrati on status during the

22 des ignated period of their deferred action. See id. at 2-3.

23

83. DACA grantees are granted eligibility to receive employment authorization.

24

84. DACA also opened the door to allow travel for DACA grantees. For example,

L

25 DA CA grantees were allowed to briefl y depart the U.S. and legall y return under certain

26 circum sta nces, such as to visit an ailing relative, attend funeral services for a family member,

27 seek med ical treatment, or furth er educational or employment purposes. 8 U.S.C .

28 17
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§ 1182(a)(9)(B)(i); see also Ex. E, USC IS, Frequently Asked Questions, OHS DACA FAQs

2 ("DACA FAQs") (Apr. 25, 2017) Q57. Travel for vacation is not permitted.

3

85. Unlike other undocumented immigrants, DACA grantees are not disqualified on

4 the basis of their immigration status from receiving certain public benefits. These includ e federal

5 Social Security, retirement, and disability benefits. See 8 U.S.C. §§ 161 l(b)(2)-(3), 1621(d). As

6 a result, and in reliance on DHS's oft-stated position that DACA and similar programs are a

7 lawful exercise of the agency's authority, Plaintiff States have structured some sc hemes around

8 DACA which allow, for example, applicants to demonstrate eligibility for state programs by

9 producing documentation that they have been approved under DACA. The rescission of DACA

IO undermines such regulatory frameworks.

I I

86. DACA grantees are able to secure equal access to other benefits and opportunities

12 on which Americans depend, including opening bank accounts, obtaining credit cards, starting

13 businesses, purchasing homes and cars, and conducting other aspects of daily life that are

14 otherwise often unavailable for undocumented immigrants.

15

87. DACA fundamentally changed the lives of DACA grantees. By no longer having

16 to hide in the shadows, they obtained employment, sought higher education, pursued career paths,

17 and became fully contributing members of society who paid taxes and participated in civic life.

18

88. These positive personal outcomes have also generated benefits to many sectors of

19 the Plaintiff States' economies. Defendants' decision to rescind DACA both terminates the

20 ability of hundreds of thousands of the States' residents to remain part of the mainstream

21 economy and harms the States and the communities that DACA recipients are part of, including

22 large and small businesses, non-profits, and government entities where they work and do business.

23

89. The federal government has recognized that the United States "continue[s] to

24 benefit ... from the contributions of those yo ung people who have come forward and want

25 nothing more than to contribute to our country and our shared future." Ex. F, Letter from Jeh

26 Charl es Johnson, OHS Sec'y, to Judy Chu, U.S. House of Representatives (CA-27) (Dec. 30,

27 2016) ("Johnson Letter").

28 18
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Ill. DEFENDANTS' PROMISES TO DACA GRANTEES: DACA GRANTEES RELIED ON

REPEATED ASSURANCES THAT INFORMATION WOULD BE KEPT CONFIDENTIAL

2

AND NOT USED FOR ENFORCEMENT

3

90. In an effort to encourage reluctant people to apply for DACA, OHS promised

4 app licants on numerous occasions that information they prov ided as part of the DACA

5 appl ication process would be "protected" from use for immigration enforcement purposes.

6

91. In fact, on ly " fraud or misrepresentation" in the application process or

7 " [s]ubsequent criminal activity" are grounds for revocation of DACA. Ex. G, USC IS Approval

8 Notice, Form 1-821 D, Consideration of Deferred Action for Chi ldhood Arrivals.

9

92. The government' s commitment to DACA grantees was further communicated to

IO young people through its publication entitled "National Standard Operating Procedures (SOP):

11 Deferred Action for Chi ldhood Arrivals (DACA)." Th is document sets forth the standards that

12 OHS applies to DACA appl ications with nearly 150 pages of specific instructions for granting or

13 denying defetTed action.

14

93. USCIS affirmatively represented to DACA applicants that, except in limited

15 circumstances, "[i]nformation provided in [a DACA request] is protected from disclosure to

16 [Immigrati on and Customs Enforcement (" ICE")] and CBP for the purpose of immigration

17 enforcement proceedings.'' Ex. E, DACA FAQs Q19.

18

94. USCIS affirmatively represented to DACA app licants that, except in limited

19 circumstances, "[i]f you have submitted a request for consideration of DACA and USC JS decides

20 not to defer your case ... your case will not be referred to ICE for purposes of removal

2 1 proceedings." Id. at Q26.

22

95. In the exceptional circumstances under wh ich USCIS would refer a DACA

23 appl icant to ICE, USCIS has affirmative ly represented to DACA appl icants that " information

24 related to your family members or guard ians that is contained in your request will not be referred

25 to ICE fo r purposes of immigration enforcement aga inst fami ly members or guard ians ." Id. at

26 Q20.

27

28 19
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96. The government 's representations that information provided by a DACA grantee

2 would not be used against him or her for later immigration enforcement proceedings are

3 unequ ivocal and atypical. For example, the federal government does not make the same

4 representat ions for parti cipants in other si milar programs, such as Temporary Protected Status.

5 See, e.g. , USCJS, Temporary Protected Status, https://www.usci s.go v/hurnanitarian/temporarv-

6 protected-status (last updated May 24, 2017).

7

97. Similarly, USC IS affirmatively represented to employers of DACA applicants that,

8 except in limited circumstances, if they provide their employees " with information regarding his

9 or her employment to support a request for consideration of DACA . .. . This information will

10 not be shared with ICE fo r civil immi gration enfo rcement purposes." Ex. E, DACA FAQs Q76.

11

98. Additionally, in December 2016, then-Secretary of Homeland Security Jeh Charles

12 Johnson sent a letter to U.S. Representative Judy Chu (CA-27) regarding her concerns about the

13 need to protect DACA-related information, acknowledging that there were, at the time, 750,000

14 DACA grantees who had "relied on the U.S. government's representations" about prohibitions on

15 the use of such information for immigration enforcement purposes. Johnson unequi vocally

16 stated: "We believe these representations made by the U.S. government, upon which DACA

17 applicants most assuredl y relied, must continue to be honored." Ex. F, Johnson Letter at 1. OHS

18 cannot now seek to renege on these explicit assurances and promi ses.

19

99. These assurances were key to DACA 's success. By making repeated, unique, and

20 unequi vocal representations, OHS induced individuals to rely on those representations and

2 1 divulge sensiti ve personal information to apply for DACA despite the potential ri sk of deportation

22 and remova l, and induced employers to provide information to their employees to assist the

23 latter's DA CA applications, despite the potential risk of liability fo r the employers. From January

24 to March 20 17 (the most recent period for which stati stics are publicly avai lable), USC IS

25 accepted 132,790 combined initial and renewal requests to grant deferred action under the DACA

26 program.

27

I 00. Ind eed, in February 2017, then-Secretary of Homeland Security John Kelly

28 authored a OHS memora ndum relating to enforcement priorities. Ex. H, Memorandum from John 20
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Kelly, Sec'y of Homel and Security to Kevin McAleenan, Acting Comm ' r, CPB, Enforcement of

2 the Immigration Laws to Serve the National Interest (Feb. 20, 20 17) ("Enfo rcement Priorities

3 Memorandum"). The Enforcement Priorities Memorandum rescinded "a ll existing conflicting

4 directives, memoranda, or field gui dance regarding the enforcement of our immigration laws and

5 priorities for removal," including prior enforcement priorities, but specifi ca lly left OACA in

6 place, unchanged.

7 IV. DHS RESCINDS DACA WITHOUT NOTICE, COMMENT, OR ANY S UFFICIENT
EXPLANATION FOR ITS CHANGE IN POSITION
8

9

IO I. On September 5, 2017- more than five years after first encouraging indi viduals to

IO participate in DACA- DHS abruptly rescinded OACA by announcing that it would immediatel y

11 cease accepting new applications. OHS also announced it would only issue renewals for grantees

12 whose deferrals expire before March 5, 2018, and only if they applied for renewal within one

13 month of OHS 's announcement, i.e., by October 5, 2017. Ex. A, OACA Rescission

14 Memorandum.

15

I 02. Based on this announcement, thousands of OACA grantees will lose their work

16 authorization each day on a rolling basis beginning March 6, 20 18.

17

I 03. The OACA Rescission Memorandum is a final , substanti ve agency action that

18 required OHS to comply with the notice and comment requirements set fo rth in 5 U.S.C.

19 § 553(b). See Hemp Industries Ass 'n v. Drug Enf't Admin. , 333 F.3d I 082, I 087 (9th C ir. 2003).

20 But the agency provided i10 opportunity for notice and comment before adopting thi s rule.

21

I 04. By failing to comply with these notice and comment requirements, OHS deprived

22 Plaintiff States, their agencies and residents, and all other interested part ies, of the opportunity to

23 present impotiant evidence to the agency about the OACA program.

24

I 05. In the DACA Rescission Memorandum, OHS did not sufficientl y explain its

25 abrupt departure from prior agency statements regarding the necess ity and lega lity of OA CA.

26 The single paragraph in the DACA Rescission Memorandum explaining the rationale behind this

27 sudden shift mere ly asserts that OA CA "should be terminated" based on consideration of two

28 factors: ( I) the appe llate rulings in a case regarding a 2014 memorandum from then-OHS 21
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Secretary Johnson that expanded DACA and created a new program, Deferred Action for Parents

2 of Americans and Lawful Permanent Residents ("DAPA"), Texas v. United States, 809 F.3d 134

3 (5th Cir. 20 15), aff'd by an equally divided court sub nom. United States v. Texas,_ U.S. _,

4 136 S. Ct. 2271 (2016); and (2) a September 4, 20 17, letter from Attorney General Jefferson B.

5 Sessions arguing that DACA was "unconstitutional " and was invalid for the same reasons the

6 Fifth Circuit struck down DAPA in the Texas case. Ex. I, Letter from Jefferson B. Sessions to

7 Duke (Sept. 4, 2017) (" Sessions Letter").

8

I 06. DHS ignored obvious differences between DACA and DAPA when reaching this

9 conc lusion. Further, DHS ignored the fact that the legality of DACA was never directly at issue

IO in the Texas case, and not ruled on by the Fifth Circuit. The DACA Rescission Memorandum

11 also erroneously implied that the Supreme Court's summary affirmance of the Texas decision by

12 an equally divided court has precedential effect. The DACA Rescission Memorandum cannot

13 survive judicial review under the APA when it is predicated on an incorrect legal premise. See,

14 e.g. , Massachusetts v. EPA, 549 U.S. 497, 532-535 (2007); Safe Air For Everyone v. US EPA,

15 488 F.3d I 088, 110 I (9th Cir. 2007).

16

I 07. Notably, in the DACA Rescission Memorandum, DHS did not offer its own

17 considered legal views, and neither the Sessions Letter nor the DACA Rescission Memorandum

18 addressed any of the findings articulated in support of the DACA Memorandum or explained why

19 the agency is so sharply departing from both its prior legal position that programs like DACA are

20 lawful and guidance from the U.S. Department of Justice Office of Legal Counsel that supported

2 1 DACA ' s lawfulness. Ex. J, Memorandum Opin ion , The Department of Homeland Security's

22 Authority to Prioritize Removal of Certain Aliens Un lawfu ll y Present in the United States and to

23 Defer Removal of Others, 38 Op. O.L.C. _(Nov . 19, 2014).

24

I 08. Other than the above conclusory assertions of DACA 's legal infirmity, OHS fai led

25 to offer any explanation of why it believed that rescinding DACA was warranted. The DACA

26 Rescission Memorandum did not even address the rationale that DHS expressed in 2012 in the

27 DACA Memorandum regarding the use of prosecutoria l discretion to focus resources and

28 22
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priorities on lowest priority indi vidual s, much less offer any explanation as to why those factors

2 have changed so radically as to justify resc inding DACA now.

3

I09. Hours after the DACA program was rescinded, purportedly due to its illegality,

4 President Trump tweeted that, if Congress fails to provide similar protections through legislation,

5 " I will rev isit thi s issue!" Ex. K, Donald J. Trump (@realDonaldTrump), Twitter (Sept. 5, 2017,

6 5:38 p.m.). This statement suggests that he believes he has authority to reinstate some or all of

7 the DACA program without Congressional authorization, further undermining DHS 's ostensible

8 rationale for rescinding.

9 V. TRUMP ADMINISTRATION STATEMENTS F URTH ER DEMONSTRATE ILLEGALITY OF
DACA RESCISSION
10

11

110. Defendants' stated justification for rescinding DACA- that is, its purported lega l

12 infirmity- has been contravened by a number of their own statements regarding undocumented

13 immigrants, many of which are false and/or misleading, and as such provide an impermissible

14 basis for resc inding DACA. In doing so, Defendants abused their discretion and acted in an

15 arbitrary and capricious manner in violation of the APA.

16

111 . On September 5, 2017, just prior to Attorney General Sessions's announcement

17 resc inding the DACA program, President Trump tweeted, "Congress, get ready to do your job -

18 DACA !" Donald J. Trump, Twitter (Sep. 5, 2017 5:04 a.m.). Id. at 2. A few minutes thereafter,

19 President Trump retweeted a statement that "We are a nati on of laws. No longer will we

20 incentivize illegal immigration. LAW AND ORDER! #MAGA ," and "Make no mi stake, we are

2 1 going to put the interest of AMERICAN CITIZENS FIRST!" Donald J. Trump, Twitter (Sep. 5,

22 20 17.). Id. at 3. The DACA Rescission Memorandum makes no reference to such interests to

23 explain the agency's action.

24

11 2. On the same day, President Trump issued a written statement on the rescission of

25 the DACA program that stated: "The temporary implementati on of DACA .. . helped spur a

26 humanitarian crisis- the mass ive surge of unacco mpanied minors from Central America

27 including, in some cases, young people who would beco me members of violent gangs throughout

28 our country, such as MS-I 3. Only by the reliable enforcement of immigrati on law can we 23
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produce safe communities, a robust middle class, and economic fairness for all Americans." Ex.

2 L, Statement from President Donald J. Trump (Sept. 5, 2017). The DACA Rescission

3 Memorandum makes no reference to unaccompanied minors, public safety concerns, or economic

4 interests to explain the agency' s action.

5

11 3. During hi s announcement rescinding the DA CA program, Attorney General

6 Sessions justified the decision by stating that the DACA program "contributed to a surge of

7 unaccom panied minors on the southern border that yielded terrible humanitarian consequences. It

8 al so denied jobs to hundreds of thousands of Americans by allowing those same j obs to go to

9 illegal aliens." Ex. M, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017).

10 Again, the DACA Rescissi on Memorandum makes no reference to humanitarian or economic

11 interests to explain the agency's action.

12

114. Attorney General Sessions, while a United States Senator from Alabama, made

13 similar statements regarding undocumented individuals seeking employment ("I'm a minority in

14 the U.S . Senate ... in questioning whether we should reward people who came into the country

15 illegally with jobs that Americans would like to do."). Seung Min Kim, The Senate's Anti-

16 Immigration Warrior, Politico (Mar. 5, 2015) https://tinyurl.com/znog262 . That same year, then-

17 senator Sessions praised the 1924 Johnson-Reed Act, whose namesake, Representative Albert

18 Johnson, used racial theory as the basis for its severe immigration restrictions, which included

19 barring Asian immigrati on entirely. See Interview by Stephen Bannon with Sen. Jefferson B.

20 Sess ions, Brietbart News (Oct. 5, 2015), audio available at https://tinyurl.co111/y8gbj6vk; see also

21 Adam Serwer, JeffSessions 's Unqualified Praise for a 1924 immigration Law, The Atlantic (Jan.

22 10, 20 17), https ://tinyurl.com/vbzdo96u.

23

115. These statements by the Trump Administration in the context of its decision to

24 resc ind DACA- that DACA created a surge in illegal immigration, and that DACA grantees take

25 jobs away from other American workers and weaken the middle class-suggest that the DACA

26 Resc iss ion Memorandum' s cursory statements regarding the legal ity of DACA do not set forth

27 the agency' s true rationale for rescission. The APA requires governmental agencies to publicly

28 state a sufficient justification for their actions, particularly where, as here, Pl aintiff States, as well 24
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Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 26 of 37

as their agencies, institutions, and residents, have relied upon DHS 's prior statements to their 2 detriment. See Perez v. Mortg. Bankers Ass 'n, 135 S. Ct. 1199, 1209(20 15); FCC v. Fox

3 Television Stations, 556 U.S. 502, 515 (2009). Defendants have failed to do so.

4

11 6. Moreover, these statements are wholly controverted by available evidence

5 demonstrating the contributions of DACA grantees to Plaintiff States and to the United States as a

6 whole, as explained above. See Motor Veh. Mfrs. Ass 'n ofU.S. , Inc. v. State Farm Mut. Auto. Ins.

7 Co. , 463 U.S . 29, 43 ( 1983) (an agency rule is arbitrary and capricious when the exp lanation

8 offered by the agency "runs counter to the evidence before the agency").

9 VI. FORMER DACA GRANTEES ARE AT RISK OF IMMIGRATION ENFORCEMENT BAS ED

ON INFORMATION THEY ENTRUSTED TO DEFENDANTS AS PART OF DACA

IO

APPLICATIONS

II

117. In rescinding the DACA Memorandum , Defendants have created a confusing and

12 threatening situation for Plaintiff States and their residents, including for DACA grantees who

13 will soon begin losing their DACA protection under the DACA Rescission Memorandum.

14

118. The DACA application form requires applicants to provide a wea lth of personal,

15 sens iti ve information, including the applicant' s lack of lawful immigration status, address, Social

16 Security number, and the name and location of his or her school, if applicable. Ex. N, USCIS,

17 Form 1-82 1D, Con sideration of Deferred Action for Childhood Arrivals. The applicati on process

18 also required that all DACA applicants undergo biographic and biometri c background checks,

19 which includes fingerprinting, before USCIS con sidered their DACA requests . DACA applicants 20 provided this information based on Defendants' representations about the term s of the program

2 1 and the manner in which information would be protected.

22

11 9. Former DA CA grantees now face a real ri sk of having the sensitive information

23 that they provided to OHS in their applications or renewal requests (for example, fingerprints)

24 used against them for future immigration enforcement proceedings. This, despite the repeated

25 assurances discussed above that Defendants would do no such thing.

26

120. The DACA Resci ss ion Memorandum does not provide adequate assurances that

27 this information wi ll not be used for enforcement purposes following DA CA ' s termination.

28 25
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121. The former FAQs to the OACA Memorandum-government representations under

2 which all OACA grantees submitted their applications- unequi vocall y stated: "Information

3 provided in thi s request is protected from disclosure to ICE and CB P for the purpose of

4 immigration enforcement proceedings," with limited exceptions where "the requestor meets the

5 criteria fo r the issuance of a Notice To Appear ["NTA"] or a referral to ICE under the [NTA]

6 criteria" (emphasis added). Ex. E, OACA FAQs Ql9.

7

122. The Rescission FAQs that OHS produced to accompany the OACA Rescission

8 Memorandum provide inadequate assurances that informati on wi ll be protected, and state:

9 "Generally, information provided in OACA requests will not be proactively provided to other

IO law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement

11 proceedings unless the requestor poses a risk to national security or public safety, or meets the

12 criteria for the issuance of a Notice To Appear ["NTA''] or a referral to ICE under the [NTA]

13 criteria." Ex. B, Resciss ion FAQs Q8 (emphasis added).

14

123. The addition of the qua Ii fier "general ly"-devoid of any apparent criteria for when

15 OHS wou ld deviate from the "general" policy of non-referral to IC E- and removal of the

16 unequivocal statement that information is "protected" strongly suggests that, in fact, OHS now

17 views OACA grantees' sensitive information as available to ICE for prev iously prohibited

18 purposes, including immigration enforcement.

19

124. DACA applicants are also required to provide OHS w ith a detailed hi story of their

20 criminal arrests and convictions, including all mi sdemeanors, however minor.

21

125. OACA applicants have relied in good faith on OHS's promises not to use the

22 info rmati on against them and forthrightly informed DHS of minor criminal offenses of which

23 they had been convicted (or for which they were only arrested, regardless of whether they were

24 ultimately convicted). Individuals who applied for OACA with only minor criminal offenses

25 could gain approval under OACA nonetheless because OHS did not regard them as a threat or bar

26 to OACA, since they were of the ve ry lowest enforcement priority. They are now under even

27 more threat than other OACA grantees.

28 26
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126. President Trump also has taken affirmative steps to set the table for eliminating

2 privacy protections applicable to OACA data. In January 2017, President Trump issued an

3 Executive Order entitled " Enhancing Public Safety in the Interior of the United States," directing

4 all agenci es, including OHS , to "ensure that their privacy pol icies exclude persons who are not

5 United States citizens or lawful permanent res idents from the protections of the Privacy Act

6 regarding personally identifiable information." Ex. 0 , Exec. Order No. 13,768, 82 Fed. Reg.

7 8799 § 14 (Jan. 25, 2017). OHS has confirmed that its new privacy policy, adopted in response to

8 the Executive Order, "permits the sharing of information about immigrants and non-immigrants

9 with federal, state, and local law enforcement." Ex. P, OHS Privacy Policy 2017-0 I Questions &

IO Answers No. 6 (Apr. 27, 2017).

I I

127. Until February 2017, DHS 's enforcement priorities were generally consistent with

12 the DACA Memorandum , prioriti zing people who had committed felonies, serious

13 misdemeanors, or multiple less serious misdemeanors, and making DACA grantees (and others

14 similarly situated) the lowest enforcement priority.

15

128. The February 20 17 Enforcement Priorities Memorandum substantively changed

16 policy with respect to how OHS treats individuals with criminal history and radically broadened

17 the categories of people who are to be prioritized for removal. Whereas OHS previously

18 prioritized individuals who had been convicted of serious criminal offenses, the new categories

19 now include, among others, those who:

20

(I) Have been convicted of any criminal offense;

21

(2) Have been charged with any criminal offense that has not been resolved; [and]

22

(3) Have committed acts which constitute a chargeable criminal offense[.]

23 Ex. H, Enforcement Priorities Memorandum at 2.

24

Thus, people who have not been convicted of, but only charged with, any criminal offense

25 (or even never charged, but somehow determined to have committed an act constituting a

26 chargeable criminal offense), no matter how low-level, are now prioritized for immigration

27 enforcement. Because any offense triggers priority enforcement, this includes various lower level

28 27
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Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 29 of 37

offenses that DACA applicants were required to di sclose but that did not make them ineligible for

2 DACA.

3

I29. The sweeping Enforcement Priorities Memorandum replaced DHS 's previous,

4 more targeted enforcement priorities. Although this memorandum specifically exempted the

5 DA CA program from these new priorities, it is not clear whether or how they apply to DACA

6 grantees and those who lose their protections on a rolling basi s in light of the DACA Rescission

7 Memorandum.

8

130. Given these developments- particularly the Enforcement Prioriti es Memorandum

9 signifi cantly broadening enforcement pri orities and the Rescission FAQs changin g DHS' s prior

IO policy to shi eld DACA applicants' information from ICE- the criteria under which current and

I I former DACA grantees with minor criminal histories are considered for referral to ICE have

12 substantively changed. These individuals are now in danger of being placed in removal

.13 proceedings based on information they provided in reliance on DHS 's promi ses.

14

131 . These changes signal Defendants' intent to renege on their assurances and

15 promises and subject DACA applicants to immigration enforcement. At the very least, these

16 changes create confusion about the new risk faced by current and former DACA grantees and

17 former applicants, patticularly those whose DACA protecti on is ending under the DA CA

18 Rescission Memorandum.

19

I 32. Indeed , on June I 3, 2017, in testimony before the House Appropriations

20 Committee' s Subcommittee on Homeland Security, Acting ICE Director Thomas Homan stated

2 1 as to "every immigrant in the country without papers," that they "should be uncomfortable. You

22 should look over your shoulder. And you need to be worried." Immigration and Customs

23 Enforcement & Customs and Border Protection FYJ8 Budget Request Before the H. Comm. on

24 Appropriations, I 15th Cong. (2017) 20 17 WLNR 18737622 (emphasis added) .

25

133. CNN repo1ted that Homan "doubled down" on these statements in an interview

26 later that week, quoting him to state that '" Trump and his admini stration have made clear that any

27 undocumented immigrant could be arrested and face deportation proceedings at any time, unless

28 they have current and valid protection under DACA."' Tai Kopan, ICE Director: Undocumented 28
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Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 30 of 37

Immigrants 'Should Be Afraid,' CNN (June 6, 20 17), https://tinyurl .com/y88h6zuo (quoting

2 Acting ICE Director Thomas Homan) (emphasis added).

3

134. On April 19, 2017, Attorney General Sessions stated in an interview on Fox News '

4 " Happening Now" program- in response to a question regarding the deportation of a DACA

5 grantee- that '"[e]verybody in the country illegally is subject to being deported, so people come

6 here and they stay here a few years and somehow they think they are not subject to being

7 deported- well , they are .. . we can't promise people who are here unlawfu ll y that they aren't

8 go ing to be deported."' Adam Shaw, Sessions Defends Immigration Policies After Reported

9 ' DREAM er' Deportation, Fox News (Apr. 19, 2017), https://tinyu rl. com/kym82ce (quoting

10 Attorney General Jefferson B. Sessions).

11

135. Moreover, current litigation in federal court in Georgia demonstrates that even

12 before the DACA Rescission Memorandum, DHS was terminating individuals ' DACA due to the

13 Enforcement Priorities Memorandum's changed priorities. In that case, Colotl v. Kelly, DHS

14 admitted on the record that Ms. Colotl had met and continued to meet all five DACA

15 criteria. Order [on Preliminary Injunction Motion], Colotl Coyotl v. Kelly, No. 17-1670 (N.D.

16 Ga., June 12, 20 17) ECF No. 28 at 17-18. The only reason for the change in DHS 's decision was

17 that-desp ite the previous assurances by DHS that DACA-related history would not be used

18 against applicants and with no change in Ms. Colotl's criminal history since her application-she

19 had become an enforcement priority under the Enforcement Priorities Memorandum " [d]ue to

20 [her] criminal hi story." Id. at 6, 18. That criminal history, stemming from a 20 IO arrest for

21 allegedly blocking traffic while waiting for a parking space, had been disclosed on Ms. Co lotl ' s

22 initial DACA application and subseq uent renewal requests, each of which were approved until the

23 denial based so lely on the Enforcement Priorities Memorandum. The court ruled in favor of Ms.

24 Co lotl, granting her request for a preliminary injunction and holding that since DACA was still in

25 effect at the time OHS sought to revoke her DACA, and DHS had established procedures with

26 respect to notice and termination, she was likely to prevail on her claim that OHS violated the

27 APA by failing to comp ly with its own administrative processes and procedures. Id. at 30-33.

28 29
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136. Defendants' conduct in inducing DACA applicants to provide sensitive personal

2 information and then removing that protection impacts all DACA grantees, not just those with

3 minor criminal hi stories. DACA applicants were not only required to provide information that

4 could be used to easily find and arrest them ; they were required to undergo fingerprinting

5 regardless of criminal history. DACA grantees are now at risk that this type of biometric

6 information will be used against them for immigration enforcement purposes.

7 VII. DACA GRANTEES CAN No LONGER TRAVEL OUTSIDE THE COUNTRY

8

137. Under DACA, DACA grantees were allowed to apply to receive authorization

9 from USC IS for "advance parole" to travel outside of the United States by submitting Form 1-

1O 131 , Application for Travel Document and paying a filing fee of $575. USC IS approves advance

11 parole on a case-by-case basi s.

12

138. USC IS affirmatively represented to DACA applicants that, if USC IS decides to

13 defer action , the applicant may request advance parole to travel outside the United States for

14 educational, employment, or humanitarian purposes. Ex. E, DACA FAQs Q57.

15

139. The DACA Rescission Memorandum terminated the ability of DACA grantees to

16 travel outside the United States during their renewed benefit period, including for those who have

17 already submitted requests for advance parole in reliance on DHS ' s prior representations that

18 advance parole was available to them . Under the DACA Rescission Memorandum , DHS is now

19 categorically prohibited from granting advance parole for DACA grantees and "[w] ill not approve

20 any new Form 1-131 applications for advance parole under standards associated with the DACA

21 program[.]'' Ex. A, DACA Rescission Memorandum. In addition, DHS " [w]ill administratively

22 close all pending Form 1-131 applications for advance parole filed under standards associated

23 with the DACA program, and will refund all associated fees. " Id. Those who have pending

24 applications are therefore denied advance parole without any assessment being conducted using

25 the criteria set forth previously by DHS for advance parole requests.

26

140. Many DACA grantees have applied for and received advance parole from USCJS

27 and have paid the required fees. The DACA Rescission Memorandum states that DHS will

28 "generally" honor the previously approved applications for advance parole, clearly signaling that 30
Complaint for Declaratory and Injunctive Re li ef

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 32 of 37

sometimes it will not. Many of those DACA grantees who reli ed on USC IS authorization of

2 advance parole are currently travelling abroad visiting family or for other authorized

3 reasons. Given DHS 's unambiguous shift in policy towards prohibiting the case-by-case

4 determination of advance parole for other DACA grantees, DACA grantees with approved

5 advance paro le now face uncertainty and risk of not being able to return to their homes in the

6 United States.

7

FIRST CAUSE OF ACTION

8

(Violation of Fifth Amendment - Due Process - Information Use)

9

I4 I. Plaintiff States re-allege and incorporate by reference the allegations set forth in

IO each of the preced ing paragraphs of this Complaint.

I I

142. The Due Process Clause of the Fifth Amendment requires that immigration

12 enforcement actions taken by the federa l government be fundamentally fair.

13

143. Given the federal government's representations about the allowable uses of

14 information provided by DACA app li cants, Defendants' change in policy on when to allow the

I5 use of information contained in DACA applications and renewal requests for purposes of

16 immigration enforcement, including identifying, apprehending, detaining, or deporting non-

17 citizens, is fundamentally unfair.

18

144. Through their actions above, Defendants have violated the due process guarantee

19 of the Fifth Amendment.

20

145. Defendants' violation causes ongoing harm to Plaintiff States and their residents.

21

SECOND CAUSE OF ACTION

22

(Violation of Administrative Procedure Act - 5 U.S.C. § 553)

23

146. Plaintiff States re-allege and incorporate by reference the al legations set forth in

24 each of the preceding paragraphs of this Complaint.

I
~

25

147. The APA requires the Court to " hold unlawful and set aside agency action" taken

26 ·'without observance of procedure requ ired by law." 5 U.S.C. § 706(2)(0).

27

28
31 Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 33 of 37

148. OHS is an "agency" under the APA. 5 U.S.C. § 55 1(1). The DACA Rescission

2 Memorandum is a "ru le" and an "agency action" under the APA, 5 U.S.C. § 55 1(4), ( 13), and

3 constitutes " [a]gency action made rev iewable by statute and final agency action for wh ich there is

4 no other adequate remedy in a cou11." 5 U.S.C. § 704.

5

149. With exceptions that are not applicab le here, agency rules must go through notice-

6 and-comment rul emak ing. 5 U.S.C. § 553.

7

150. Defendants promulgated and have relied upon the DACA Rescission

8 Memorandum without notice-and-comment rulemaking in violation of the APA.

9

15 1. Defendants' violation causes ongo ing harm to Plaintiff States and their residents,

IO who have been denied the oppor1unity to comment about Defendants' decision to repea l DACA.

I I These injuries, including specific harms alleged above to the Plaintiff States' uni vers ities,

12 agencies and institutions, and their economies and healthcare systems, al l fa ll within the zone of

13 interests encompassed by the broad scope of the Immigration and Naturalization Act (" !NA"), 8

14 U.S.C. et seq.

15

THIRD CAUSE OF ACTION

16

(Violation of Administrative Procedure Act - 5 U.S.C. § 706)

17

I52. Plaintiff States re-allege and incorporate by reference the allegations set fo11h in

18 each of the preceding paragraphs of this Comp laint.

I 9

I53. The APA req uires the Co u11 to "hold unlawfu l and set aside agency action" that is

20 " (A) arbitrary, caprici ous, an abuse of discreti on, or otherw ise not in accordance with law; (B)

2 I contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory

22 jurisdiction, authority, or limitations, or short of statutory right[.]" 5 U.S.C. § 706(2).

23

154. In implementing the DACA Rescission Memorandum without a proper basis,

24 Defendants have acted arbitrari ly and capriciously, have abused their discretion, have acted

25 otherwise not in accordance with law, and have taken unconstitutional and unlawfu l act ion in

26 violati on of the APA.

27

28 32
Complaint for Declaratory and Injunctive Re lief

Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 34 of 37

155. Defendants' violation causes ongoing harm to Plaintiff States and their res idents.

2 These injuries fall within the zone of interests encompassed by the INA.

3

FOURTH CAUSE OF ACTION

4

(Violation of the Regulatory Flexibility Act)

5

156. Plaintiff States re-allege and incorporate by reference the allegations set forth in

6 each of the preceding paragraphs of thi s Complaint.

7

157. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-61 2 (" RFA"), requires federal

8 agencies to analyze the impact of rules they promulgate on small entities and publish initial and

9 final versions of those analyses for public comment. 5 U.S.C. §§ 603-604.

IO

158. "Small entities" for purposes of the RFA include small businesses, small

11 nonprofits, and small governmental jurisdictions. 5 U.S.C. § 60 I(6).

12

159. The DACA Resci ss ion Memorandum is a " rule" under the RFA. 5 U.S.C.

13 § 60 I(2).

14

160. The actions that OHS has taken to implement the DACA Rescission Memorandum

15 are likel y to have a significant economic impact on a substantial number of small entities.

16 5U.S.C.§602(a)(l).

17

161. Defendants have not issued the required analyses of the rule.

18

162. Defendants ' failure to issue the initial and final regulatory flexibility analyses

19 violates the RFA and is unlawful.

20

163. Defendants ' violation causes ongoing harm to Plaintiff States and to their

21 residents, who have been denied the ability to comment on the impact of DACA's resci ssion on

22 srnal I entities.

23

FIFTH CAUSE OF ACTION

24

(Declaratory Relief - Equitable Estoppel)

25

164. Plaintiff States re-allege and incorporate by reference the allegations set forth in

26 each of the preceding paragraphs of thi s Complaint.

27

28 33
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Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 35 of 37

165. Through its conduct and statements, OHS represented to DACA applicants that

2 information collected as part of their applications would not be used against them in future

3 immigration proceedings and that DACA was a lawful exerci se of its discretion.

4

166. In reliance on DHS's repeated assurances, DACA applicants, risking removal and

5 deportation, came forward and identified themselves to OHS and provided detailed information,

6 including fingerprints and criminal history, in order to patiicipate in DACA.

7

167. Throughout the life of DACA, OHS continued to make affirmative representations

8 about the use of information as well as the validity and legality of programs like DACA. DACA

9 applicants relied on DHS ' s continuing representations to their detriment.

IO

168. DACA grantees rearranged their lives to become fully visible and contributing

11 members of society by seeking employment, pursuing higher education, and paying taxes, but are

12 now at real risk of removal and deportation, particularly those with minor criminal histories who

13 fall squarely within the new enforcement priorities set fotih in the Enforcement Priorities

14 Memorandum.

15

169. Accordingly, Defendants should be equitably estopped from using information

16 provided to OHS pursuant to DACA for immigration enforcement purposes, except as previously

17 authorized under DACA.

18

170. An actual controversy between Plaintiff States and Defendants exists as to whether

19 Defendants should be equitably estopped.

20

171. Plaintiff States are entitled to a declaration that Defendants are equitably estopped.

21

SIXTH CAUSE OF ACTION

22

(Violation of Fifth Amendment - Equal Protection)

23

172. The Plaintiff States re-allege and incorporate by reference the allegations set forth

24 in each of the preceding paragraphs of this Complaint.

25

173. The Due Process Clause of the Fifth Amendment prohibits the federal government

26 from den ying equal protection of the laws.

27

28 34
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174. The rescission of DACA violates fundamental conceptions ofjustice by depriving

2 DACA grantees, as a class, of their substantial interests in pursuing a li velihood to support

3 themselves and fu1ther their education.

4

175. The deprivation of these interests is directly traceable to the Defendants' rescission

5 of DACA and cannot be sufficiently justified by federal interests.

6

176. Through the above actions, Defendants have discriminated against DACA grantees

7 in vio lation of the equal protection guarantee of the Fifth Amendment.

8

177. Defendants' vio lation causes ongoing harm to the Plaintiff States and their

9 residents. Among other things, the Plaintiff States wi ll be impacted because DACA grantees wi ll

IO no longer be able to work as State employees, contribute to the States' economies, or attend the

11 States' educational institutions.

12

PRAYER FOR RELIEF

13 WHEREFORE, Plaintiff States respectfully request that this Cou1t enter judgment in their favor,

14 and grant the fo llowing relief:

15

1. Declare that the DACA Rescission Memorandum is unauthorized by and contrary

16 to the Constitution and laws of the United States;

17

2. Declare that the actions that Defendants have taken to implement the DACA

18 Rescission Memorandum were taken without observance of procedure required by law in

19 violation of 5 U.S.C. §§ 702-706 (the APA);

20

3. Declare that the actions that Defendants have taken to implement the DACA

2 1 Rescission Memorandum are arbitrary, capricious, an abuse of discretion, and otherwise not in

22 accordance with law in violation of 5 U.S.C. §§ 702-706 (the APA);

23

4. Declare that Defendants ' failure to analyze the impact of the actions they have

24 taken to implement the DACA Rescission Memorandum on small entities, and Defendants'

25 failure to publish initial and final versions of those analyses for public comment, are unlawful

26 under 5 U.S.C . §§ 601-6 12 (the RFA);

27

28 35
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Case 3:17-cv-05235-MEJ Document 1 Filed 09/11/17 Page 37 of 37

5. Declare that Defendants are equitably estopped from using information provided

2 to Defendants pursuant to DACA for immigration enforcement purposes except as previously

3 authorized under the DACA Memorandum;

4

6. Enjoin Defendants from rescinding DACA or engaging in any acti on to frustrate

5 its full and continued implementation;

6

7. Enjoin Defendants from using information obtained in any DACA application or

7 renewal requ est to identify, apprehend, detain, or deport any DACA applicant or member of any

8 DACA applicant's family, or take any action against a DACA applicant's current or former

9 employer; and

10

8. Award such additional relief as the interests ofjustice may require.

11 12 Dated: September I I, 20 I 7

Respectfully Submitted,

13

14 X AV IER B ECERRA Attorney General of California
I 5 MICHAEL L. NEWMAN Supervising Deputy Attorney General
16 Isl James F. Zahradka II
17 JAMES F. ZAHRADKA II Deputy Attorney General
18 Attorneys for Plaint(/[State ofCal{fornia
19

BRIAN E. FROSH Attorney General of Maryland STEVEN M. SULLIVAN Solicitor General 200 Saint Paul Place, 20th Floor Baltimore, Maryland 21202 Telephone: (410) 576-6325 EmaiI: ssuII ivantmoag.state.md.us
Attorneys.for Plaint[f[State ofMaryland

20 JANETT. MI LLS Attorney General of Maine
21 SUSAN P. H ERMAN (pro hac vice pending) Deputy Attorney General
22 6 State House Station Augusta, Maine 04333
23 Telephone: (207) 626-8814 Emai I: susan.hennan0 )maine.gov
24 A1torneys.for Plaint(/[State ofMaine
25

LORI SWANSON
Attorney General State of Minnesota JULIANNA F. PASSE (pro hac vice pending) Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 Telephone: (651 ) 757-1136 Emai I: juIianna.passe@.ag.state.rnn.us
Attorneys.for Plainl(/fState o.fMinnesota

26

27

28 36
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EXHIBIT A

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 2 of 8
c::1§§ Off1c1al website of the Depa rtment of Homeland =security
Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)
Release Date: September 5, 2017 MEMORANDUM FOR: James W. Mccament Acting Director U.S. Citizenship and Immigration Services Thomas D. Homan Acting Director U.S. Immigration and Customs Enforcement Kevin K. McAleenan Acting Commissioner U.S. Customs and Border Protection Joseph B. Maher Acting General Counsel Ambassador James D. Nealon Assistant Secretary, International Engagement Julie M. Kirchner Citizenship and Immigration Services Ombudsman FROM:

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 3 of 8
Elaine C. Duke Acting Secretary
SUBJECT:
Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children"
This memorandum rescinds the June 15, 2012 memorand.um entitled " Exercisihg Pro secutorial Discretion with Respect to Individuals Who Came to the United States as Children, " which established the program known as Deferred Action for Childhood Arrivals ("DACA") . For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a winddown of the program, consistent with the parameters established in this memorandum.
Background
The Department of Homeland Security established DACA through the issuance of a memorandum on June 15, 2012. The program purported to use deferred action-an act of prosecutorial discretion meant to be applied only on an individualized case-bycase basis-to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.[l] (#_ftnl) Specifically, DACA provided certain illegal aliens who entered the United States before the age of sixteen a period of deferred action and eligibility to request employment authorization.
On November 20, 2014, the Department issued a new memorandum, expanding the parameters of DACA and creating a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). Among other things-such as the expansion of the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and lengthening the period of deferred action and work authorization from two years to three-the November 20, 2014 memorandum directed USCIS "to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-bycase basis," to certain aliens who have "a son or daughter wh o is a U.S. citizen or lawful permanent resident."

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 4 of 8
Prior to the implementation of DAPA, twenty-six states-led by Texas-challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide. [2] (#_ftn2) The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities.
The United States C~urt of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction. [3] (#_ftn3) The Fifth Circuit concluded that the Department's DAPA policy conflicted with the ·discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act "flatly does not permit the reclassification of mi llions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization." According to the court, " DAPA is foreclosed by Congress's careful plan; the program is 'manifestly contrary to the statute' and therefore was properly enjoined. "
Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary, [4] (#_ftn4) and that DAPA and expanded DACA would be substantially similar in execution . Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking.
The Supreme Court affirmed the Fifth Circuit's ruling by equally divided vote (4-4). [5] (#_ftns) The evenly divided ruling resulted in the Fifth Circuit order being affirmed. The preliminary injunction therefore remains in place today. In October 2016, the Supreme Court denied a request from DHS to rehear the case upon the appointment of a new Justice. After the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues.
On January 25, 2017, President Trump issued Executive Order No. 13,768, "Enhancing Public Safety in the Interior of the United States." In that Order, the President

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 5 of 8
directed federal agencies to "[e]nsure the faithful execution of the immigration laws . . . against all removable aliens," and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating "the Department no longer will exempt classes or categories of removable aliens from potential enforcement," except as provided in the Department's June 15, 2012 memorandum establishing DACA,[6] (#_ft n6} and the November 20, 2014 memorandum establishing DAPA and expanding DACA. [7] (lt_ftn 7}
On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA-but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program.
Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney Genera l Sessions asserting that the original 2012 DACA memora ndum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.
The Attorney General se nt a letter to the Department on September 4, 2017, articulating his legal determination that DACA "was effectuated by the previous administration through exec utive 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." The letter further stated that because DACA "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." Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 6 of 8
Rescission of t he June 15, 2 0 12 DACA Memorandum
Taking into consideration the Supreme Court's and the Fifth Circuit's rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney 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.
Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certa in requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:
• Wi ll adjudicate-on an individual, case-by-case basis-properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum. • Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum. • Will 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 of the date of th is memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017. • Wi ll reject all DACA renewal requests and associated applications for Emp loyment Authorization Documents filed outside of the parameters specified above. • Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 7 of 8
• Will not approve any new Form 1-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will-of course-retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will.----of course-retain the authority to revoke or terminate an advance parole document at any time. • Will administratively close all pending Form 1-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees. • Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
This document is not intended to, does not, and may not be rel ied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance·on the otherwise lawful enforcement or litigation prerogatives of DHS.
[1] (tt_ftn refl) Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion.
[2] (#_ftnref2) Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
[3] (#_ftnref3) Texas v. United States, 809 F.3d 134 (5th Cir. 2015).
[4] (#_ ftnref4) Id.
[SJ (#_ ftnrefS) United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).

Case 3:17-cv-05235-MEJ Document 1-1 Filed 09/11/17 Page 8 of 8
[6] (1t_ftnref6) Memorandum from Janet Napolitano, Secretary, OHS to David Aguilar, Acting Comm'r, CBP, et al., "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children" (June 15, 2012).
[7] (#_ftn ref7) Memorandum from Jeh Johnson, Secretary, OHS, 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 Whose Parents are U.S. Citizens or Permanent Residents" (Nov. 20, 2014).
Topics: Border Securi t y (/topics/border-security) , Deferred Act ion (/topics/deferred-action} Keyword s: DACA (Jkeywo rds/daca) , Deferred Acti on for Childhood Arriva ls (/keywords/ deferred-action-childhood-
ar rivals )
Last Published Date: September 5, 2017

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 1 of 7
EXHIBITB

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 2 of 7

C"l== Offlc1al website of the Department of Homeland = s ecu1·ity

.;_<)~;,.a U.S. Department of
"·t,'1·<-t.v..o.....,~c,~f"It: Homeland Securi ty

Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA)
Release Date: September 5, 2017
En es paFi Ol (https://www.dhs.gov/ news/2017/ 09/05/ preguntas-frecuentes-anu laci-n-de-l a-acci-n-
diferid a-para-l os-llegados-en-la)
The fol lowing are frequently asked questions on the September 5, 2017 Rescission of the Deferred Action for Childhood Arrivals (DACA) Program.
Q1: Why is DHS phasing out the DACA program?
Al: Taking into consideration the federal court rulings in ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that program should be terminated. As such, the Acting Secretary of Homeland Security rescinded the June 15, 2012 memorandum establishing the DACA program. Please see the Attorney General's letter and the Acting Secretary of Homeland Security's memorandum for fu rther information on how this decision was reached .
Q2: What is going to happen to current DACA holders?
A2: Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. DACA benefits are generally valid for two years from the date of issuance.

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 3 of 7
Q3 : What happens to individuals who currently have an initial DACA request pending?
A3: Du e to th e anticipated cost s and administrative burd ens associated with rejecting all pending initia l request s, USCIS will adjudicate-on an indi vidu al, caseby-case basis-all properly filed DACA initial request s and associated applications for EADs th at have been accepted as of September 5, 2017.
Q4: What happens to individuals who currently have a request for renewal of DACA pending?
A4: Due to the anticipated costs and administrative burdens associated with rej ecting all pending renewal requests, USCIS adjudicate- on an individual, case-by-case basi s-properly filed pending DACA ren ewal requests and associated applications fo r Emp loyment Authorization Documents from current beneficiaries that have been accept ed as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 201 8 th at have been accepted as of October 5, 2017. USCIS will reject all requests to renew DACA and associated app lications for EADs filed after October 5, 2017.
Q5: Is there still time for current DACA recipient s t o file a request to renew their DACA?
AS: USCIS will only accept renewal requests and associated applications for EADs for the class of individu als des cribed above in the time period described above.
Q6: What happens when an individual's DACA benefits expire over the course of the_next two years? Will individuals with expired DACA be considered illegally present in the country?
A6: Curre nt law does not grant any legal status fo r the class of individuals who are current recipients of DACA. Recipi ents of DACA are currently unla wfully present in the U.S. with the ir removal deferred. When thei r peri od of deferred action expires or is

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 4 of 7
terminated , their removal wilt no tonger be deferred and they wilt no tonge r be eligible for lawful employment.
Only Congress has the authority to amend the existing immigration laws.
Q7 : Once an individual's DACA expires, will their case be referred to ICE for enforcement purposes?
A7: Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings, unless the requester meets the criteria for the issuance of a Notice To Appear or a referral to ICE und er the criteria set forth in USCIS' Notice to Appear guidance (www.uscis.gov/NTA (http ://www .uscis.gov/NTA) ). This policy, which may be modified, superseded, or rescinded at any t ime without notice, is not intended to, does not, and ma y not be relied upon to create any rig ht or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
Q8: Will USCIS share the personal information of individuals whose pending requests are denied proactively with ICE for enforcement purposes?
A8: Generally, information provided in DACA requests wilt not be proactively provided to other law enforcement entities (including ICE and CBP) fo r the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security or public safety, or meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, an d may not be re tied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
Q9: Can deferred action received pursuant to DACA be terminated before it expires?
A9: Yes. DACA is an exercise of deferred action which is a form of prosecutoriat discretion . Hence, OHS will continue to exercise its discretionary authority to

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 5 of 7
termin ate or deny deferred action at any time when immigration officials determine t ermination or denial of deferred action is appropriate.
Q10 : Can DACA recipients who se valid EAD is lost, stolen or destroyed request a new EAD during the phase out?
AlO: If an individual's st ill-va lid EAD is lost, stolen, or destroyed, they may request a re placement EAD by filing a new Form 1-765.
Q11: Will DACA recipients still be able to travel outside of the United States while their DACA is valid?
All: Effective September 5, 2017, USCIS will no longer approve an y new Form 1-131 applications for advance parole under standards associat ed wi th the DACA program . . Those with a current advance parole validity period from a previously-approved advance parole application will generally retain the benefit until it expires. However, CBP will retain the authority it has always exercised in determining the admissibility of any person presenting at the bord er. Fu rther, USCIS retains the authority to revoke or terminate an advance parole document at any time.
Q12: What happens to individuals who have pending requests for advance parole to travel outside of the United States?
Al2 : USCIS will administratively close all pending Form 1-131 applications for advance parole under standards associated with the DACA program , and will refund all associated fees .
Q13: How many DACA requests are currently pending that will be impacted by this change? Do you have a breakdown of these numbers by state?
Al3 : Th ere were 106,341 requests pending as of August 20, 2017 - 34,487 initial request s and 71,854 renewals. We do not currently have th e state-specific breakouts.

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 6 of 7
Q14: Is there a grace period for DACA recipients with EADs that will soon expire to make appropriate plans to leave the country?
Al4: As noted above, once an individual's DACA and EAD expire-unless in the limited class of benefici aries above who are found eligible to renew their benefits-the individual is no longer considered lawfully present in the United States and is not authorized to work. Persons whose DACA perm its will expire between September 5, 2017 and March 5, 2018 are eligible to renew their permits. No person should lose benefits under this memorandum prior to March 5, 2018 if they properly file a renewal request and associated application for employment authorization.
Q15 : Can you provide a breakdown of how many DACA EADs expire in 2017, 2018, and 2019?
Al5: From August through December 2017, 201,678 individuals are set to have their DACA/EADs exp ire. Of these individuals, 55,258 already have submitted requests for renewal of DACA to USCIS.
In calendar year 2018, 275,344 individuals are set to have their DACA/EADs expire. Of these 275,344 ind ividuals, 7,271 have submitted requests for renewal to USCIS.
From January through August 2019, 321,920 individuals are set to have their DACA/EADs expire. Of these 321,920 individuals, eight have submitted requests for renewal of DACA to USCIS.
Q16 : What were the previous guidelines for users to
grant DACA?
Al6: Individuals meeting the following categorical criteria could apply for DACA if they:
• Were under the age of 31 as of June 15, 2012; • Came to the United States before reaching their 16th birthday; • Have continuously resided in the United States since June 15, 2007, up to the present time;

Case 3:17-cv-05235-MEJ Document 1-2 Filed 09/11/17 Page 7 of 7
Were physically present in the United States on June 15, 2012, and at the t ime of making their request for consideration of deferred action with USCIS;
Had no lawful status on June 15, 2012; Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (GE D) certificate, or are an honorably discharged veteran of the Coast Gua rd or Armed Forces of the United States; and Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Topics: Border Secu rity (/topics/border-security) , Deferred Act ion (/topics/deferred-action) Keywords: DACA (/keywords/daca) , Deferred Action for Chi ldhoo d Arrivals (/keywords/deferred -action-childhood-
ar rivals)
Last Published Date: September 5, 2017

Case 3:17-cv-05235-MEJ Document 1-3 Filed 09/11/17 Page 1 of 6
EXHIBIT C

Case 3:17-cv-05235-MEJ Document 1-3 Filed 09/11/17 Page 2 of 6

Requests by Intake, Biometrics a nd Case Status

Period Fiscal Year · Tata/ 6 2012 2013 2014
2014 Initial 2014 Renewal 2015 2015 Initial 2015 Renewal 2016 2016 Initial 2016 Renewal 2017 2017 Initial 2017 Renewal Total Cumulative Total Cumulative Initial Total Cumulative Renewal Fiscal Year 201 7 by Quarter u 0 1. October · December 01. October - December Initial 01. October - December Renewal 02. Jan ua ry · March 02. January - March Initial 02. Janua ry - March Renewal 03. April - June 03. April - June Initial 03. April - June Renewal 04. July· SeptemQer 0 4. July - Septem ber Initial 04. July - Septembe r Re newal

Kequests Accepted'

Intake'

Ke q u e s t s

Total

Rejected' Requests

Average
Accepted/Da

Biometrics6 olOm eLrtCS
Sch eduled '

Requests Unde r

Case Review• Approved10 Denied11

Pend in g "

152,431 427,616 238,899 122,424 116,475 448 ,8 50
85,300 363,550 260,700
73,387 187,313 242,979
25,656 217,323 1. 771, 475 886,814 884,661

5,395 16,351 24,888 19,127
5, 761 35,479 7,481 27,998 12,325
1,205 11,120 23, 39 8
21 23,377 117,836 49,580 68,256

157,826 443,967 263,787 141,551 122,2 3 6 484,329
92,781 391,548 273 ,02 5
74,592 198,433 266,377
25,677 24 0,700 1,889,311 936,394 952,917

3,629 1,697
952 488 464 1, 78 1 338 1,443 1,035 291 743 1,960 207 1,753 1,510 756 754

124,055 445,013 209, 6 7 0 5 2 5, 49 9
68,140
1,372,377

38,024 77,524 101,568
48,355

1,684 470,521 158,3 9 7 136,161
22,236 510,289
90,746 419,543 198,916
52,88 2 146,034 246,850
35,586 211,264 1,586,657 787,580 799,077

11,025 21, 0 8 7 21,084
D 21,452 19,158 2,294 14,503 11,445 3,058 6,930 S,155
1,775 74,997 67,867
7,130

150,747 96,817 156,232 61,996 94,236 73,3 41 37,392 35,949 120,622 46,452 74,170 109,821 31,367 78,454 109,821 31,367 78,454

110,189 15, 294 94,895
132,790 10,362
122,428

4,138 15
4,123 1 9, 260
D 19,254

114,327 15,309 99,018
1 52, 0 5 0 10,368
141,682

1, 777 247
1,5 31 2,142
167 1,975

122,051 18,311
103,740 124,799
17,275 1 0 7, 5 2 4

2,754 2,106
648 4,176 3,049 1,127

109,821 3 1, 367 78,454
124,437 36,490 87,947

D- Data with held to protect requesters' privacy. - Represents zero. 1Refers to a request for USCIS to consider deferred removal action for an individual based on guidelines described in the Secretary of Homeland Security's memorandum issued June 15, 2012.
Each request is considered on a case-by-case basis. See http://www.uscis.gov/childhoodarri vals. 'The nu mber of new requests accepted at a Lockbox during the reporting period. 'The number of requests rejected at a Lockbox during the reporting period. 'The number of requests that were received at a Lockbox during the reporti ng period. 'The number of req uests accepted per day at a Lockbox as of t he end of the re porting period. Also note the average accepted per day for initial plus renewal will not equal the to tal average. ' Refers to capture of requesters' biometrics. 7The nu mbe r of appointments scheduled to capture requesters' biometrics du ring the rep orting period. 'Refers to consideration of deferring action on a case-by-case basis dur ing the reporting period. 'The number of new requests received and entered into a case-tracking system during the reporting period . "'The nu mber of requests approved during the reporting period. 11The num ber of requ ests that were denied, te rminated, or wi thdrawn during the reporting period. " The num ber of requests awaiting a decision as of the end of the reporting period. 130ata on biometrics scheduled is not available past January 31, 2016. Totals reflect up to Janua ry 31, 2016. NOTE: 1. Some req uests approved or denied may have been received in previous re porting periods.
2. The report reflects the most up-to-date estimate ava ilable at the ti me the re port is generated. Source: Department of Homeland Security, U.S. Citizenship and Immigration Services, Biometrics Capt ure Systems, CIS Consolida ted Operational Repository (ClSCOR). December 31, 2016

Case 3:17-cv-05235-MEJ Document 1-3 Filed 09/11/17 Page 3 of 6

Top Countries of Origin

Acceoted to Date

Ini tials Renewals Total

Ao ,roved to Date Initia ls Renewals Total

Residence

Acceoted to Date' Initials Renewals Tota l

Ao ,roved to Date' Initials Renewals Total

Residence

Mexi co

689,029 689,235 1,378,264 618,342 622,170 1,240,512 California

242,339 217,023 459,362 222,795 202,200 424,995 Connecticut

El Salvador

33,661 33,787 67,448 28,371 30,262 58,633 Texas

140,688 117,309 257,997 124,300 110,050 234,350 Ohio

Guatemala

24,247 21,837 46,084 19,792 19,466 39,258 New York

49,710 61,523 111,233 41,970 53,693 95,663 Arkansas

Honduras

22,114 21,107 43,221 18,262 18,526 36,788 Illinois

45,663 39,602 85,265 42,376 37,039 79,415 Alabama

Peru

9,721 11,061 20,782 9,066 10,245 19,311 Florida

39,843 48,460 88,303 32,795 41,526 74,321 Missouri

South Korea Brazil Ecuador

7,813 8,447 7,649

11,038 8,251 7,787

18,851 16,698 15,436

7,250 7,361 6,696

10,375 7,542 7,037

17,625 Missing 14,903 Arizona 13,733 North Carolina

13,691 30,652 29,584

70,681 25,314 23,576

84,372 55,966 53,160

7,140 27,865 27,385

53,276 23,638 22,327

60,416 Nebraska 51,503 Kentucky 49,712 Idaho

Colomb ia

7,217 7,776 14,993 6,591 7,100 13,691 New Jersey

25,650 28,580 54,230 22,024 25,106 47,130 Iowa

Ph il ippi nes

5,055 5,774 10,829 4,655 5,444 10,099 Georgia

28,589 23,521 52,110 24,135 21,804 45,939 Louisiana

Arge ntina

5,180 5,112 10,292 4,774 4,723

9,497 Washington

19,581 17,696 37,277 17,843 16,275 34,118 Rhode Island

India Jamaica

3,741 4,375

4,140 7,881 3,581 · 7,956

3, 182 3,435

3,846 3,192

7,028 Colorado 6,627 Virginia

19,103 15,321 34,424 17,258 13,967 14,995 28,962 12,134

14,302 31,560 Delaware 13,272 25,406 Mississippi

Venezuela

3,441 3,523 6,964 3,099 3,240

6,339 Nevada

14,139 12,587 26,726 13,070 11,771 24,841 Hawaii

Dominican Republic

3,744 3,050 6,794 3,115 2,722

5,837 Maryland

11,513 12,357 23,870 9,785 10,917 20,702 District of Columbia

Ur uguay

2,556 2,419 4,975 2,361 2,201

4,562 Oregon

12,049 10,185 22,234 11,281

9,610 20,891 Puerto Rico

Unknown

2,589 2,535 5,124 1,960 2,238

4,198 Massachusetts

9,517 12,449 2 1,966 7,934 10,854 18,788 Unknown

Bolivia

2,202 2,469 4,671 2,062 2,246

4,308 Indiana

10,709 8,559 19,268 9,840

8,076 17,916 Wyo ming

Costa Rica

2,262 2,387 4,649 2,047 2,169

4,216 Utah

10,512 7,897 18,409 9,711

7,474 17,185 New Hampshire

Tobago Poland

2, 4 4 0 1,951

1,707 1,997

4,147 3,948

2,096 1,782

1,691 1,827

3,787 Tennessee 3,609 Pennsylvania

9,321 7,144

7,416 16,737 9,625 16,769

8,340 5,889

6,950 15,290 Alaska 8,178 14,067 South Dakota

Chile

1,874 2,009 3,883 1,736 1,854

3,590 Michigan

7,339 8,450 15,789 6,430

7,443 13,873 Maine

Paki sta n Nicaragua

1,927 1,860

1,975 1,730

3,902 3,590

1,685 1,576

1,791 1,565

3,476 Wisconsin 3,141 Minnesota

8,144 6,930

6,679 14,823 6,898 13,828

7,565 6,255

6,298 13,863 Guam 6,236 12,491 North Dakota

Guyana

1,467 1,462 2,929 1,266 1,347

2,613 Oklahoma

7,488 6,157 13,645 6,865

5,771 12,636 Virgin Islands

Kansas

7,301 5,997 13,298 6,803

5,647 12,450 West Virginia

New Mexico

7,410 5,557 12,967 6,815

5,236 12,051 Monta na

South Carolina

7,150 5,702 12,852 6,406

5,382 11,788 Vermont

' The number of requests that were accepted to date of the reporting period .

' The number of requests that were accepted to date of the re porting period.

' All fie lds with less than 10 or a blank in the state field are included in the field "not reported."

NOTE: 1) Some requests approved or denied may have been received in previous reporting periods.

2) The report reflects the most up-to-date estimate data available at t he time t he report is generated.

Source: Department of Homeland Security, U.S. Citizenship and Immigration Services, Biometrics Capture Systems, CIS Consolidated Operationa l Repository (CISCOR). March 2017

Acceoted to Date

Initials Renewals Total

5,676 6,675 12,351

5,249 5,895 11,144

5,606 4,475 10,081

4,803 3,844 8,647

3,883 3,747 7,630

3,759 3,448

3,223 6,982 3,056 6,504

3,383 2,845 6,228

3,131 3,074 6,205

2,421 2,499 4,920

1,460 1,979 3,439

1,603 1,561 3,164

1,693 1,421 3,114

774 2,096 2,870

943 1,240 2,183

519 1,275 1,794

185 1,197 1,382

694

563 1,257

450

729 1,179

195

508 703

305

377 682

134

410 544

96

413 509

130

322 452

159

252 411

144

232 376

89

186 275

56

192 248

Aoc roved to Date

Initials Renewals Total

4,929 5,882 10,811

4,442 5,124 9,566

5,099 4,255 9,354

4,270 3,584 7,854

3,524 3,407 6,93 1

3,371 2,970 -6,341

3,062 2,786 5,848

3, 132 2,694 5,826

2,798 2,780 5,578

2,049 2,219 4,268

1,229 1,733 2,962

1,444 1,417 2,861

1,460 1,326 2,786

558 1,740 2,298

764 1,049 1,813

325 1,080 1,405

104

952 1,056

621

520 1,141

367

599

966

138

419

557

252

311

563

95

334

429

59

352

411

98

260

358

94

204

298

117

200

317

72

164

236

42

162

204

Case 3:17-cv-05235-MEJ Document 1-3 Filed 09/11/17 Page 4 of 6
EXHIBIT C ·

Case 3:17-cv-05235-MEJ Document 1-3 Filed 09/11/17 Page 5 of 6

·::ra .....:··.. . .·• ""',_

.

.

1c:l~ :·...

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·,

Requests by Intake, Biometrics and Case Status

Period

Fiscal Year - Toto/ 6

'

2012

2013

2014

2014 Initial

2014 Renewal

2015

2015 Initial

2015 Renewal

2016

2016 Initial

2016 Renewal

2017

2017 Initial

2017 Renewal

Total Cumulati ve

Total Cumulative Initial

Total Cumulative Renewal Fiscal Year 2017 by Quarter 13

Ql. October - December

Ql. October - December Initial

Ql. October · December Renewal

Q2. January - March

02. January · March Initial

Q2. January· March Renewal

Q3. April · June

Q3. April · June Initial

Q3. April · June Renewal

Q4. July - September

Q4. July - September Initial

Q4. July · September Renewal

~eques,s Accepted'

Intake'

~eques,s

Total

Rejected' Requests

Average Accepted/Da

Biometrics• 010merncs
Scheduled'

Requests Under

Case Review8 Approved10 Denied11

Pending"

152,431 427,616 238,899 122, 424 116,475 448,850 85,300 363,550 260,700 73,387 187,313 24 2,979 25,656 217,323 1, 771,475 886,814 884,661

5,395 16,351 24,888 19,127
5,761 35,479
7,481 27,998 12,325
1,205 11,120 23,398
21 23,377 117,836 49,580 68,256

157,826 443,967 263,787 141,551 122,236 484,329
92.781 391,548 273 ,0 2 5
74,592 198,433 266,377
25,677 240,700 1,889,311 936,394 952,917

3,629 1,697
952 488 464 1,781 338 1,443 1,035 291 743 1,960 207 1,753 1,510 756 754

124,055 445,013 209,670 525,499
68,140
1,372,377

38,024 77,524 101,568
48,355

1,684 470,521 158,397 136,161
22,236 510,289
90,746 419, 5 4 3 198,916
52,882 146,034 246,850
35, 5 8 6 211,264 1,586,657 787, 5 8 0 799,077

11,025 21,087 21,084
D 21,452 19,158
2,294 14,503 11,445
3,058 6,930 5,155 1,775 74,997 67,867 7,130

150,747 96,817
156,232 61,996 94,236 73,341 37, 3 9 2 35,949
120,622 46,452 74,170
109,821 31,367 78,454
109,821 31,367 78,454

110,189 15,294 94,895
132,790 10,362
122,428

4,138 15
4,123 19,260
D 19,254

114,327 15,309 99,018
152,050 10,368
141,682

1,777 247
1,531 2,142
167 1,975

122,051 18,311
103,740 124, 799
17,275 107,524

2,754 2,106
648 4,176 3,049 1, 127

109,821 31,367 78,454
124,437 36,490 87,947

D - Data withheld to protect requesters' privacy. · Represents zero. 1Refers to a request for USCIS to consider deferred removal action for an individual based on guidelines descr ibed in the Secretary of Homeland Security's memorandum issued June 15, 2012.
Each r equest is considered on a case-by-case basis.
See http://www.uscis.govI chiIdhoodarrivaIs.
'The number of new requests accepted at a Lockbox during the reporting period. 'The number of requests rejected at a Lockbox during the reporting period. 'The number of requests that were received at a Lockbox during the r eporting period. 5The number of reques ts accepted per day at a Lockbox as of t he end of the reporting period. Also note the avera ge accepted per day for initial plus renewal will not equal the total average. 6Refers to capture of requesters' biometrics. ' The number of appointments scheduled to capture requesters' biometrics d uri ng the reporting period. 'Refers to consideration of deferring action on a case· by·case basis duri ng the reporting per iod . 9The number of new req uests received and entered into a cas e-tracking system during the re porting period. '°The number of requests approved during the reporting period. 11The number of requests that were denied, terminated, or withdrawn during the reporting period. "The number of requests awaiting a decision as of the end of the repor ting period. " oata on biometrics scheduled is not available past January 31, 2016. Totals reflect up t o January 31, 2016. NOTE: l . Some requ ests approved or denied may have been received in previous re porting peri ods.
2. The r eport reflects the most up-to-date estimate available at the time the report is generated. Source: Department of Homeland Security, U.S. Citizenship and Immigration Services, Biometrics Capture Systems, CIS Consolidat ed Operational Repository {CISCOR), December 31, 2016

Case 3:17-cv-05235-MEJ Document 1-3 Filed 09/11/17 Page 6 of 6

Top Countries of Origin Mexico

Acceoted to Date Initials Re newa ls Total

Ao roved to Date' Initials Renewals Total

Reside nce

689,029 689,235 1,378,264 618,342 622,170 1,240,512 California

Acceoted to Date Initials Renewals Total

Aoi,roved to Date' Initials Renewals Total

Residence

242,339 217,023 459,362 222,795 202,200 424,995 Connecticut

El Salvador

33,661 33,787 67,448 28,371 30,262 58,633 Texas

140,688 117,309 257,997 1 24,300 110,050 234,350 Ohio

G u a t e m a la

24,247 21,837 46,084 19,792 19,466 39,258 New York

49,710 61,523 111,233 41,970 53,693 95,663 Arkansas

Hondu ras

22,114 21,107 43,221 18,262 18,526 36,788 Illinois

45,663 39,602 85,265 42,376 37,039 79,415 Alabama

Peru

9,72 1 11,061 20,782 9,066 10,245 19,311 Florida

39,843 48,460 88,303 32,795 41,526 74,321 Missouri

South Korea Brazil

7,813 11,038 8,447 8,251

18,851 16,698

7,250 10,375 7,361 7,542

17,625 Missing 14,903 Ari zona

13,691 70,681 84,372 7,140 30,652 25,314 55,966 27,865

53,276 60,416 Nebraska 23,638 51,503 Kentucky

Ecuador

7,649 7,787 15,436 6,696 7,037 13,733 North Carolina 29,584 23,576 53,160 27,385 22,327 49,712 Idaho

Colomb ia

7,217 7,776 14,993 6,591 7,100 13,691 New Jersey

25,650 28,580 54,230 22,024 25,106 47,130 Iowa

Phi lippines Argentina India

5,055 5,180 3,741

5,774 5,112 4,140

10,829 10 ,292
7,881

4,655 4,774 3,182

5,444 4,723 3,846

10,099 Georgia 9,497 Washington 7,028 Colorado

28,589 19,581 19,103

23,521 17,696 15,321

52,110 37,277 34,424

24,135 17,843 17,258

21,804 16,275 14,302

45,939 Louisiana 34,118 Rhode Island 31,560 Delaware

Jamaica

4,375 3,581

7,956 3,435 3,192

6,627 Virginia

13,967 14,995 28,962 12,134 13,272 25,406 Mississippi

Venezuela

3,441 3,523

6,964 3,099 3,240

6,339 Nevada

14,139 12,587 26,726 13,070 11,771 24,841 Hawaii

Dominican Republic

3,744 3,050 6,794 3,115 2,722

5,837 Maryland

11,513 12,357 23,870 9,785 10,917 20,702 District of Columbia

Uruguay Unknown

2,556 2,589

2,419 2,535

4,975 5,124

2,361 1,960

2,201 2,238

4,562 Oregon 4,198 Massachusetts

12,049 10,185 22,234 11,281 9,5 17 12,449 21,966 7,934

9,610 20,89 1 Puerto Rico 10,854 18,788 Unknown

Bolivia

2,202 2,469 4,671 2,062 2,246

4,308 Indiana

10,709 8,559 19,268 9,840

8,076 17,916 Wyoming

Costa Rica

2,262 2,387 4,649 2,047 2,169

4,216 Utah

10,512 7,897 18,409 9,711

7,474 17,185 New Hampshire

Tobago

2,440 1,707

4,147 2,096 1,691

3,787 Tennessee

9,321 7,416 16,737 8,340

6,950 15,290 Alaska

Poland

1,951 1,997

3,948 1,782 1,827

3,609 Pennsylvania

7,144 9,625 16,769 5,889

8,178 14,067 South Dakota

Chile

1,874 2,009

3,883 1,736 1,854

3,590 Michigan

7,339 8,450 15,789 6,430

7,443 13,873 Maine

Pakistan Nicaragua

1,927 1,860

1,975 1,730

3,902 3,590

1,685 1,576

1,791 1,565

3,476 Wisconsin 3,141 Minnesota

8,144 6,930

6,679 14,823 6,898 13,828

7,565 6,255

6,298 13,863 Guam 6,236 12,491 North Dakota

Guyana

1,467 1,462

2,929 1,266 1,347

2,613 Oklahoma

7,488 6,157 13,645 6,865

5,771 12,636 Virgin Islands

Kansas

7,301 5,997 13,298 6,803

5,647 12,450 West Virginia

New Mexico

7,410 5,557 12,967 6,815

5,236 12,051 Montana

South Carolina

7, 150 5,702 12,852 6,406

5,382 11,788 Vermont

' The number of req uests that were accepted to date of the reporting period.

' The numbe r of requests that were accepted to da te of the reporting period .

' All fields with less than 10 or a blank in t he state fiel d a re included in the field "not reported."

NOTE: 1) Some requests approved or denied may have been received in previous reporti ng periods.

2) The report reflects the most up-to-date estimate data available at the time the report is generated.

Source: Department of Homeland Security, U.S. Citizenship and Immigration Services, Biometrics Capture Systems, CIS Consolidated Operational Repository (CISCOR), March 2017

Acceoted to Date

Ao, roved to Date'

Initials Renewals Total Initials Renewals Total

5,676 6,675 12,351 4,929 5,882 10,811

5,249 5,895 11,144 4,442 5,124 9,566

5,606 4,475 10,081 5,099 4,255 9,354

4,803 3,844 8,647 4,270 3,584 7,854

3,883 3,747 7,630 3,524 3,407 6,931

3,759 3,223 6,982 3,371 2,970 6,341

3,448 3,056 6,504 3,062 2,786 5,848

3,383 2,845 6,228 3,132 2,694 5,826

3,131 3,074 6,205 2,798 2,780 5,578

2,421 2,499 4,920 2,049 2,219 4,268

1,460 1,979 3,439 1,229 1,733 2,962

1,603 1,561 3,164 1,444 1,417 2,861

1,693 1,421 3,114 1,460 1,326 2,786

774 2,096 2,870 · 558 1,740 2,298

943 1,240 2,183

764 1,049 1,813

519 1,275 1,794

325 1,080 1,405

185 1,197 1,382

104

952 1,056

694

563 1,257

621

520 1,141

450

729 1,179

367

599

966

195

508 703

138

419

557

305

377 682

252

311

563

134

410 544

95

334

429

96

413 509

59

352

411

130

322 452

98

260

358

159

252 411

94

204

298

144

232 376

117

200

317

89

186 275

72

164

236

56

192 248

42

162

204

Case 3:17-cv-05235-MEJ Document 1-4 Filed 09/11/17 Page 1 of 4
EXHIBITD

Case 3:17-cv-05235-MEJ Document 1-4 Filed 09/11/17 Page 2 of 4
SecrelwT
V.S. Oc1iartm en t of llo melnn cl Security WHshingtnn. DC 20.'i28
Homeland Security

June 15, 2012

MEMORANDUM FOR:

Dav id V. Aguilar Acting Comm issioner. U.S. Customs and Border Protection

A lejandro Mayorkas Directo r, U.S. C itizenshi p and Immigration Services

FROM:

John Morton

Director, U .S. Imm igratio n and Customs En fo rcement

1~I:_ Janet Napolitano f J- /)
Secretary of Hamel· ritr3'cc u1.ft/

~

SUBJECT:

Exercising Prose oria l D iscretion wi th Respect to Ind ividua ls W ho Came to the n ited States as Children

By this memorandum, I a m setting forth how, in the exercise of our prosecutorial discretion , the Department of Homeland Security (OHS) shou ld e nforce the Nation's immi gration laws against certa in young people who were brought to this country as chi ldren and know only this country as home. As a genera l matter, these ind ivid uals lacked the intent to v iolate the law and o ur on going review of pending removal cases is a lready offeri ng admin istrati ve c losure to many of them. However, additiona l measures are necessary to ensure that our enforcemen t resources are not expended on these low priority cases but are instead appropria te ly focused o n people who meet our enforcement priorities .

T he fo llowing c rite ri a sho uld be sati sfi ed before an ind ividua l is considered for an exerc ise of prosecutorial discretion pursua nt to th is memorandum:

• came to the United States under the age of sixteen; • has con ti nuously resided in the Un ited States for a least five years preceding th e date of
thi s memorandum and is present in the United States on the date of this memorandum ; • is c urrently in school. has graduated from high schoo l, has obtained a general education
deve lopmen t ce rtificate, or is an honorably d ischarged veteran of the Coast G uard or An11ed Forces of the Un ited States; • has not been convicted of a fe lony offense, a significant misd emeanor offense, multi ple misdemeano r offenses, or otherwise po ses a threat to national security or p u blic safe ty; and • is not above the age of thi11y.

www.dhs.gov

Case 3:17-cv-05235-MEJ Document 1-4 Filed 09/11/17 Page 3 of 4
Our Nation 's immigration laws must be enforced in a strong and sensi ble manner. They are not des igned to be blindly enforced without consideration given to the individual circumstances of each case. No r are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, _whic h is used in so many other areas, is especially justified here.
As part of this exercise of prosec utorial discreti on, the above criteria are to be considered whether or not an indi vidual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for rel ief pursuant to this memorandum are to be decided on a case by case basis. OHS cannot provide any assurance that relief will be granted in all cases.
1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (lCE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCTS):
• With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individua l basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.
1 With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from bei ng removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to pennit individual s who believe they meet the above criteria to identify themselves through a clear and efficient process.
• !CE is directed to begin implementing this process within 60 days of the date of this memorandum.
• ICE is also instructed to imm ediately begin the process of deferring action against indi viduals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
• USC IS should esta blish a clear and efficient process for exercising prosecutorial discretion, on an indi vidual bas is, by deferring action against individuals who meet the
2

Case 3:17-cv-05235-MEJ Document 1-4 Filed 09/11/17 Page 4 of 4
above criteria and are at least 15 years old, fo r a period of two years, subject to renewal, in order to prevent low priority ind ividuals from being placed into removal proceedings or removed fro m the United States. • The USC IS process shall also be avail able to individuals subj ect to a final order of removal regardl ess of their age. • USC IS is directed to begin implementing this process within 60 days of the date of this memorandum . For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept appli cations to determi ne whether these individuals qualify for work authori zation during this period of deferred acti on. This men1orandum confe rs no substantive right, immigrati on status or pathway to ci ti zenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains fo r the executive branch, however, to set forth policy for the exercise of discretion within the framewo rk of the existing law. I have done so here.
J;Ndiz~
3

Case 3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 1 of 24
EXHIBITE

Frequently Asked QuestionCs IaUsSCeIS3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 2 of 24

9/7/1 7, 12:47 AM

U.S. Citizenship and Immigration Services
Frequently Asked Questions
FAQs updated April 25, 2017
General Information for All Reguestors
• Wh at is Defer red Action for Childhood Ar ri vals? • DACA Process • Background Checks • After USCIS Makes a Deci sion
Initial Reguests for DACA Renewal of DACA Travel Criminal Convictio ns Miscellaneous
I. General Information for All Requestors
A. Wh at is Deferred Action for Childhood Arrivals?
As the Department of Homeland Security (OHS) continues to focus its enforcement resources on the removal of individua ls who pose a danger to national security or a risk to public safety, DHS wit! exercise prosecutoriat discretion as appropriate to ensu re that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request cons ideration of deferred action for childhood arrivats (DACA) for a period of two years, subject to renewat for a period of two years, and may be eligible for emp loyment authorization. You may request consideration of DACA if you:
1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching your 16th birthday; 3. Have continuously resided in the United States since June 15, 2007, up to the present time; 4. Were physically present in the United States on June 15, 2012, and at the time of making your request for
consideration of deferred action with USCIS; 5. Had no lawfu l status on June 15, 2012, meaning that:

ht t p ://web. arch ive .o rg/web/ 2 01708 2414 2701/htt p s: //w ww.us cis .gov/hum a... fer red- act i on-c hiId hood- arri vals -proe ess/fr equent ly-a sked - q uestions

Page 1 of 2 3

Frequently Asked QuestionsCIaUsSCeIS3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 3 of 24

9/7/17, 12:47 AM

• You never had a lawfu l immigrati on status on or before June 15, 2012, or
• Any lawful immigration status or pa role that you obtained prior to June 15, 2012, had expired as of June 15, 2012;

6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Fo rces of the United States; and
7. Have not been convicted of a felony, a significant misdemeanor, th ree or more oth er misdemeanors, and do not otherwise pose a threat to national security or publi c safety.

Individuals can call U.S. Citizenship and Immigration Services (USCIS) at 1-800-375-5283 with questions or to request more information on DACA. Those with pending req uests ca n also use a number of on lin e self-helQtools wh ich include the ability to check case status and processing times, change your address, and send an inqu iry about a case pending longer than posted processing times or non-delivery of a card or document.
Ql: What is deferred action? Al: Defe rred action is a discretionary determination t o defer a removal action of an individu al as an act of prosecutorial discretion. For purposes of future inadmissibi lity based upon unlawful presence, an individual whose case has been deferred is not considered to be u nlawfully present during the period in which deferred action is in effect. An individual who has received deferred action is authorized by DHS t o be present in the United States, and is therefore considered by DHS t o be lawfu lly 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 subseq u ent periods of unlawful presence.
Under existing regulatio ns, an individ ual whose case has been deferred is eligib le to receive employment authorization for the period of deferred act io n, provided he or she can demonstrate "an economic necessity for employment." DHS can terminate or renew deferred action at any time, at the agency's discretion.
Q2: What is DACA? A2: On June 15, 2012, the Secretary of Homeland Secu rity announced that certain people who came to the United States as chi ldren and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorizati on.
Individua ls who can demonstrate through verifiable document ation that they meet these guidelines wi ll be considered for deferred action. Determinations w il l be made on a case-by-case basis under the DACA guidelines.
Q3: Is there any difference between "deferred action" and DACA under this process? A3: DACA is one form of deferred action. The re lief an individual receives under DACA is identical for imm igration purposes to the relief obtained by any person w ho receives deferred action as an act of prosecutorial discretion .
Q4: If my removal is deferred under the consideration of DACA, am I eligible for employment authorization? A4: Yes. Under existing regulatio ns, if your case is deferred, you may obtain emp loyment authorization from USCIS provid ed you can demonst rate an economic necessit y fo r employment.
Q5: If my case is deferred, am I in lawful status for the period of deferral? AS: No. Although acti on on your case has been deferred and you do not accrue unlawful presence (for admissib ility purposes) during the period o f deferred action, defe rred action does not confer any lawful status.
The fact that you are not accru ing unlawfu l presence does not change whether yo u are in lawfu l status while you rema in in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is

http: //web. archive .o rg/web / 201708 2414 2701 /http s://www.uscis. gov/hu ma ... ferred-act ion-chi Id hood- arri vaIs- process/Ireq uent Iy-asked-q ue st io ns

Page 2 of 23

Frequently Asked QuestionsCIaUsSCeIS3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 4 of 24

9/7/ 17, 12:47 AM

authorized by the Department of Homeland Security while your d eferred action is in effect and, for admissibility purposes, you are co nsidered to be law fully present in the United States du ring that time. Individuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.
Apart from the immigration laws, " la wful presence," " lawfu l status" and similar term s are used in various other federal and st ate laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate federal, state or local authorities.
QG: Can I renew my period of deferred action and employment authorization under DACA? A6: Yes. You may req uest consideration for a renewal of your DACA. Your request for a renewa l will be considered on a caseby-case basis. If USCIS renews its exerci se of discretion u nder DACA for your case, you will receive deferred action for another two years, and if you demonstrate an economic necessity for employment, you may receive employment authorization throughout that period.
Return to top.
B. DACA Process

Q7: How do I request consideration of DACA? A7: To request consideration of DACA (either as an initial request or to req uest a renewal), you must subm it Form 1-8210,. Co nsidera ti on o f Deferred Action for Ch ildhood Arriva ls to USCIS. Please visit uscis.gQYt'.i-82ld before yo u b egi n the process to make su re you are using the mo.st current version of the form availab le. Thi s form must be completed, properly signed and accompanied by a Form 1-765,-6.Q.R licat ion for Em RIOY-ment Authorizatio n, and a Form l-765WS, Worksheet (PDF, 235 KB)_, establishing your economic need for employment. If you fail to submit a complet ed Fo rm 1-765 (along with the accompanying filing fee s for that form, please see the Form 1-82 10 page for more informatio n), USCIS w ill not consider your request for deferred action. Please read the form instructi ons to ensu re that yo u answer the appropriate questions (det ermined by whether you are submitting an initial or renewal requ est) and that you submit all th e required documentation to sup port yo ur init ial request.

You must file your request for consideration of DACA at the USCI S Lockbox . You can find the mailing address and instructions at www.uscis.gQYt'.i-82ld. As of June 5, 2014, requesters must use the new version of the form. After yo ur Form 1-8210, Form 1-765, and Form 1-765 Worksheet have been received, USCIS w ill review them for completeness, including sub mission of th e required fee, initial evidence and supporting documents (fo r initial filings).
If it is determined that the request is complete, USCIS wi ll se nd you a receipt notice. USCIS will then send you an appointme.nt noti ce to visit an Applica t ion Support Center (ASC) for biometric services, if an appointment is req uired. Please make sure you read and follow the directions in the notice. Fai lu re to attend your b iometrics appointment may delay processing of you r request for consideration of deferred action, or may result in a denia l of yo ur req uest. You may also choose to receive an email and/or text message notifying yo u that yo ur form has been accepted by completi ng a Form G1145, E-Notifi cation o f ApplicationLPetit io n Acce ptan ce.
Each request for considerati on of DACA will be reviewed on an individual, case-by-case basis. USCIS may request more inform ation or evi d ence from you, or request that you appear at a USCIS office . USCIS will not ify you of its determination in writing.
Note: All individuals w ho believe they meet the guidelines, including t hose in remova l proceedings, with a final removal order, or wi th a vo lu nta ry departure ord er (and not in immigration detention), may affirmatively request consideration of DACA from USCIS through this process. Individ uals who are curren tly in immigration detention and believe they meet the gu idelines may not request consideration of deferred act ion from USCIS but may identify themselves to their deportation

htt p://web. arch ive.o rg/web/201 708 2414 2701/ http s://www.us cis.gov/huma... ferred-a ction·chi Idhood-a rrivaIs· proe es s/frequent Iy- asked · q uestions

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Frequently Asked QuestionCs IaUsSeCIS3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 5 of 24

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officer or Jail Liaiso n. You may also con t act the ICE Field Office Di rect or. For more informatio n visit ICE's websi te at www.ice.govLdaca .
QS: Can I obtain a fee waiver or fee exemption for this process? A8: There are no fee waivers available for employment authorization applications connect ed to DACA. Th ere are very limited fee exemptions available. Requests for fee exem pti ons must be filed and favorab ly adjudicated before an individual files his/her req uest fo r consideration o f DACA without a fee. In order to be co nsidered for a fee exem ption, you must submit a letter and supporting documentation to USCIS demonstratin g th at you meet one of the following conditions:
• You are under 18 years of age, have an income that is less t han 150 percent of the U.S. poverty level, and are in foster care or otherwise lacking any parental or other familial support; or
• You are under 18 years of age and homeless; or
• You ca nnot care for yourself because you suffer from a serio us, chron ic disabi lity and your income is less th an 150 percent of the U.S. poverty level; or,
• You have, at the ti me of the request, accumulated $10,000 or more in debt in the past 12 months as a resu lt of un reimbursed medical expenses for you rself or an immediate fam ily mem ber, and you r income is less than 150 percent of the U.S. poverty level.
You can find add ition al info rmation on our Fee Exe mpt io n Guidance Web page. Your request must be submitt ed and decided before yo u submit a request for considerat ion of DACA without a fee. In order t o be considered for a fee exem ptio n, yo u must provide documentary evidence to demonstrate that you meet any of the above conditi ons at the time that you m ake the request. For evidence, USC IS w ill:
• Accept affidavits from commun ity-based or religious organ izations to est ab lish a requestor's homelessness or lack of parental o r other familial financial support.
• Accept copies of ta x returns, bank statement, pay stubs, or other reliable evidence of income level. Evidence can also includ e an affidavit from the app li cant or a responsible th ird party attesting that the applicant d oes not fil e t ax ret urns, has no bank accounts, and/ or has no income to prove income level.
• Accept copies of med ical records, insurance records, bank st atements, or other reliable evidence of unreimbu rsed medica l expenses of at least $10,000.
• Add ress factu al qu estions through Requests for Evidence (RFEs).
Q9: If individuals meet the guidelines for consideration of DACA and a re encountered by U.S. Customs and Border
Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE), will they be placed into removal proceedings?
A9 : DACA is intended, in part, to allow CSP and ICE to focus on priority cases. Un der the direction of the Secretary of Homeland Security, if an ind ividual meets the guideli nes for DACA, CSP or ICE should exercise their discretion on a case-bycase basis to prevent qualifying individua ls from bein g apprehended, pla ced into remova l proceedings, or removed. If individua ls believe th at, in light of this policy, they should not have been apprehended or placed into removal proceed ings, con t act the Law Enforcement Su pport Center's hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week).
QlO: Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order? AlO: This process is open to any individual who ca n demonst rat e he or she meets t he guidelines for consideration, including those who have never been in remova l proceedings as well as those in remova l proceedings, with a final order, or with a voluntary departure order (as long as they are not in imm igration detention).
Qll: If I am not in removal proceedings but believe I meet the guidelines for consideration of DACA, should I seek to place myself into removal proceedings through encounters with CBP or ICE?

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All: No. If you are not in remova l proceedi ngs but believe that yo u meet the guidelines, you shou ld submit yo ur DACA req uest to USCIS under t he process outlin ed below.
Q12: Can I request consideration of DACA from USCIS if I am in immigration detention under the custody of ICE? Al2: No. If you are currently in immigration dete ntio n, yo u may not re quest consideratio n of DACA from USCIS. If you think you may meet th e guidelines of th is process, you should identify yo urse lf to your deportation officer or Jail Liaison. You may also contact the ICE Field Office Dire ct or. For more information, visit ICE's websi t e at www.ice.gov/.daca .
Q13: If I am about to be removed by ICE and believe that I meet the guidelines for consideration of DACA, what steps should I take to seek review of my case before removal? Al3: If you believe you can demonstrate that you meet t he guidelines and are about to be removed, you sho uld immediately co nta ct the Law Enfo rcemen t Support Center's hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week ).
Q14: What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a state or local law enforcement officer? Al4: If you meet th e guidelines and have been served a deta iner, you should immediate ly contact the Law Enforce ment Support Cent er's hotline at 1-855-448-6903 (staffed 24 hou rs a day, 7 days a week).
Q15: If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be considered for deferred action under this process? Al5: Yes. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA eve n if yo u ha ve accepted an offer of administrative closu re or termination unde r the case-by-case review process.
QIG: If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process? Al6: Yes. If you can demonstrate that you meet the guidelines, you wi ll be able to request consideration of DACA even if you decl ined an offer of administrative closure under t he case-by-case review process.
QI7: If my case was reviewed as part of the case-by-case review process but I was not offered administrative closure, can I be considered for deferred action under this process? Al7: Yes. If you can demon strate that you meet the guidelines, you wi ll be able to reque st consideration of DACA even if you were not offered administrative closure following review of your case as part of the case-by-case review process.
Q18: Can I request consideration of DACA under this process if I am currently in a non immigrant status (e.g. F-1, E-2, H-4) or have Temporary Protected Status (TPS)? Al8: No. You can only req uest consideration of DACA under thi s process if yo u currently have no immigration status and were not in any lawful status on June 15, 2012.
Q19: Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes? Al9: Information provided in th is request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings un less the requestor meets the criteria for th e issuance of a Notice To Appea r or a referral to ICE und er the criteri a set forth in USCIS' Noti ce to Appear guidance (www.uscis.g@,i'NTA). Individuals whose cases are deferred pursuant t o DACA will not be referred to ICE. Th e information may be shared with national security and law enforcement agencies, including ICE and CBP, for pu rposes other than rem ova l, including for assistance in the consideration of DACA, to identify or preve nt frau dulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. Th e above information sharing policy covers family members and guardians, in addition to the req uesto r. This. policy, which may be modified, superseded, or re scinded 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, enforceab le by law by any party in any

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administrative, civil, or criminal matter.
Q20: If my 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? A20: If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information related to your family m embers or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in th e consideration of DACA, to identify or prevent fraudulent cla ims, for national security purposes, or for the investigation or prosecution of a criminal offense.
Th is policy, which may be modified, su perseded, 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, enfo rceab le at law by any party in any adm inistrative, civil, or criminal matter.
Q21: Will USCIS verify documents or statements that I provide in support of a request for DACA?
A21: USCJS has the authority to verify documents, facts, and statements that are provided in support of requests for DACA. USCIS may contact education institutions, other government agencies, employers, or other entities in order to verify information.
Return to tor1.

C. Background Checks

Q22: Will USCIS conduct a background check when reviewing my request for consideration of DACA? A22: Yes. Yo u must undergo biographic and biometric background checks before USCIS will consider your DACA request.
Q23: What do background checks involve? A23: Background checks involve checking biographic and biometric information provided by the individ uals against a variety of databases maintained by DHS and other fede ral government agencies.
Q24: What steps will USCIS and ICE take if I engage in fraud through the new process? A24: If you knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain DACA or work authorization through this process, you will be treated as an immigration enforceme nt priority to the fullest extent perm itted by law, and be subject to criminal prosecution and/or removal from the United States.
Return to tor1.
D. After USCIS Makes a Decision

Q25: Can I appeal USCIS' determination? A25: No. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of DACA.
You may request a review of your l-821D denia l by contacting USCIS' National Customer Service Center at 1-800-375-5283 t o have a service request created if you believe that you actually did meet all of the DACA guidelines and you believe that your request was denied because USC JS:
• Denied the request based on abandonment, when you actually responded to a Request fo r Evidence (RFE) or Notice of Intent to Deny (NOID) within the prescribed t ime;

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• Mailed the RFE or NOID to the wrong address although you had changed your address online at www.uscis.gov or with a customer service representative on the phone and submitted a Form AR-11, Change of Address, before USCIS issued the RFE or NOID. o To ensure the address is updated on a pending case as quickly as possible, we recommend that customers submit a change of address request at www. uscis.govf-addressch ang~. Please note that only an on line change of address or a Form AR-11 submission will satisfy the legal requirements for notifying the agency of an address change. Therefore, if you called a customer service representative to change your address, please be sure you have also submitted your address change on line or with a Form AR-11.
• Denied the requ est on the grounds that you did not come to the United States prior to your 16th birthday, but the evidence submitted at the time of filing shows that you did arrive before reaching that age.
• Denied the request on the grounds that you were under age 15 at the time of filing but not in removal proceedings, while the evidence submitted at the time of filing show that you indeed were in removal proceedings when the request was filed;
• Denied the request on the grounds that you were 31 or older as of June 15, 2012, but the evidence subm itted at the time of filin g shows that you were under the age of 31 as of June 15, 2012;
• Denied the request on the grounds that you had lawful status on June 15, 2012, but the evidence submitted at the time of filing shows that you indeed were in an unlawful immigration status on that date;
• Denied the request on the grounds that you were not physically present in the United States on June 15, 2012, and up through the date of filing, but the evidence submitted at the time of filing shows that you were, in fact, present;
• Denied the request due to your failure to appear at a USCIS Application Support Center (ASC) to have your biometrics collected, when you in fact either did appear at a USCIS ASC to have this done or requested prior to the scheduled date of your biometrics appointment to have the appointment rescheduled; or
• Denied the request because you did not pay the filing fees for Form 1-765, Application for Employment Authorization, when you actually did pay these fees
If you believe your request was denied due to any of these administrative errors, you may contact our National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired). Customer service officers are available Monday - Friday from 8 a.m. - 6 p.m. in each U.S. time zone.
Q26: If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings? A26: If you have submitted a request for consideration of DACA and USCIS decides not t o defer action in your case, USCIS will apply its policy guidance governing the referral of cases to ICE and the issuance of Notices to Appear (NTA). If yo ur case does not invo lve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where OHS determines there are exceptional circumstances. For more detailed information on the applicable NTA po licy, visit www. usc is.govf-NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you an NTA.
Q27: Can my deferred action under the DACA process be terminated before it expires?
A27: Yes.
DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS's discretion.
Ret urn to t oP-.:_
II. Initial Requests for DACA

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Q28: What guidelines must I meet to be considered for deferred action for childhood arrivals (DACA)? A28: Under the Secretary of Homeland Secu ri ty's Jun e 15, 2012 memorandum, in order to be considered for DACA, yo u mu st subm it evidence, includi ng su pporting documents, showing that yo u:

1. Were under the age of 31 as of June 15, 2012; 2. Came to the United States before reach ing your 16th birthda y; 3. Have contin uously resi ded in the Un ited States since June 15, 2007, up to the present time;
4. Were physically present in th e United St at es on June 15, 2012, and at the ti me of making yo ur request for consideration of deferred action with USCIS;
5. Had no lawful status on Jun e 15, 2012;
6. Are currently in school, have graduated or obtain ed a certificate of completion from high school, have obtain ed a General Edu catio nal Deve lo pme nt (GED) certifi cate, or are an honora b ly discharged vet era n o f the Coast Guard or Armed Forces of the Un ited States; and
7. Have not b een convicted of a felony, significa nt misde meanor, three or more other m isdemeanors, and d o not otherwise pose a threat to national security or public safety.

These guidelines m ust be met for consideration of DACA. U.S. Citizenship and Immigration Services (USCIS) retain s the ultimate discretion t o dete rm ine whet her deferred action is appropriate in any given case even if the guidelines are m et.
Q29: How old must I be in order to be considered for deferred action under this process? A29 :
• If you have never been in re moval proceedings, or your proceedings have been t erminat ed before your request for consideration of DACA, you must be at least 15 years of age or older at the tim e of filing and meet th e other guidelines.
• If you are in removal proceed ings, have a final rem ova l order, or have a vo luntary depa rture order, and are not in immigrat io n detention, yo u can req uest consideration of DACA even if you are und er the age of 15 at the time of filing and meet th e other guidelines.
• In all instan ces, you must ha ve been under the age of 31 as of June 15, 2012, to be considered for DACA.
Q30: I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process? A30: Yes, but o nly if yo u established residence in the United St at es during the period before you turned 16 yea rs old, as evidenced, for example, by records showing yo u attend ed school or worked in the United St at es during that t ime, or that you lived in the United States for multiple years during t hat tim e. In add itio n to esta b lishing that yo u initia lly resided in the United States before you turne d 16 years old, you must also have mainta ined continuous residence in th e United States from Jun e 15, 2007, until th e present time to be considered for deferred action und er th is process .
Q31: To prove my continuous residence in the United States since June 15, 2007, must I provide evidence documenting my presence for every day, or every month, of that period? A31: To meet the co ntinuous residence guideline, yo u must subm it docum entation that shows yo u have been living in the United States from June 15, 2007, up until the time of you r requ est. You shou ld provide docum entation t o account for as much of t he period as reasonably possib le, but there is no requirement that every day or month of that period be specifically acco unted for through direct evidence.

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It is helpful to USCIS if you can submit evidence of your residence during at least each year of the period. USCIS will review the documentation in its totality to determine whether it is more li kely than not that you were continuously resid ing in the United States for the period since June 15, 2007 . Gaps in the documentation as to certain periods may raise doubts as to your continued residence if, for example, the gaps are lengthy or the record otherwise indicates that you may have been outside the United States for a period of time that was not brief, casual or innocent.

If gaps in your documentation raise questions, USCIS may issue a Request for Evidence to allow you to submit additional documentation that supports your claimed continuous residence.

Affidavits may be submitted to explain a gap in the documentation demonstrating that you meet the five-year continuous residence req uirement . If you submit affid avits relat ed to the conti nuous residence requirement, you must submit two or more affidavits, sworn to or affirmed by people other than yourself who have direct personal knowledge of the events and circumstances during the period as to which there is a gap in the documentation. Affidavits may only be used to explain gaps in your continuous residence; they cannot be used as evidence that you meet the entire five-year continuous residence requirement.

Q32: Does "currently in school" refer to the date on which the request for consideration of deferred action is filed? A32: To be considered "currently in school" under the guideli nes, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Q33: Who is considered to be "currently in school" under the guidelines? A33: To be considered "currently in school" under the guidelines, you must be enrolled in :

• a public, private, or charter elementary school, junior high or middle school, high school, seconda ry school, alternative program, or homeschool program that meets state requirements;
• an ed ucation, lite racy, or career training program (including vocational training) that has a purpose of imp roving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job t rain ing, or employme nt and where you are working toward such placement; or
• an education program assistin g students either in obta ining a regular high school diploma or its recognized equiva lent under state law (i ncluding a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other state-authorized exam (e.g., HiSet or TASC) in the United States.

Such educatio n, literacy, career training programs (including vocational training), or educati on programs assisting students in obtaining a regular high school diploma or its recognized eq uiva lent under state law, or in passing a GED exam or other state-autho rized exam in the United States, include, but are not limited to, programs funded, in whole or in part, by federal, state, county or municipal grants or administered by non-profit organizations. Programs funded by other sources may qualify if they are programs of demonstrated effectiveness.

In assessing whethe r such programs not funded in whole or in part by federal, state, county or municipal grants or

administ ered by non-profit organizations are of demonstrated effectiveness, USCIS w ill consid er the du ration of the .

program's existence; the program's track record in assisting students in obtaining a regular high school diploma or its

recognized equiva lent, in passing a GED or other state-authorized exam (e.g., HiSet or TASC), or in placing student s in

postsecondary education, job training, or employment; and other indicators of the program's overall quality. For

I

individuals seeking to demonstrate that they are "currently in school" through enrollment in such a program, the burden is

on the requestor t o show the program's demonstrated effectiveness.

Q34: How do I establish that I am currently in school? A34: Documentation sufficient for you to demonstrate that you are currently in school may include, but is not limit ed to:

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• evidence that yo u are enrolled in a pub lic, privat e, or chart er elementa ry school, j unior high or middle school, high school o r secondary school; alternative program, or homeschool pro gram that m eet s state requ irements; or
• evid ence t hat you are enrolled in an ed ucation, literacy, or career t rain ing program (includi ng vocat io nal trai ning) t hat: o has a purpose of imp rovi ng literacy, m athematics, or English, or is designed t o lead to placement in postsecon dary education, jo b train ing, or emp loyment and w here you are working toward such placement; and
o is fund ed, in whole or in part , by federa l, state, count y or m unicipal grants or is administ ered by non-profit organizati ons, o r if funded by other sources, is a pro gram of demonst rated effect iveness; or
• evidence that yo u are enrolled in an educat io n progra m assisti ng stud ents in obta in ing a high school eq uivalency diploma or cert ificate recogn ized un der st at e law (such as by passing a GED exa m or other such st ate-authorized exa m [for exa mple, HiSet or TASC]) , and that t he progra m is fu nded in who le or in part by federal, sta te, count y or mu nicipal grant s or is ad m ini stered by non-profit organizatio ns or if fun ded by other sources, is of demonstrated effectiveness.
Such evid ence of enro llment may include: accept ance letters, sc hool registration card s, let ters from a school or progra m, t ranscripts, re port cards, or progress reports wh ich may show the name of t he school or program , date of enro llment, and current edu ca tio nal or grade level, if relevant .

Q35: What documentation may be sufficient to demonstrate that I have graduated from high school? A35: Document ation suffi cient for you to demonstrate t hat yo u have grad uat ed from high school may include, but is not lim ited to, a high school diplom a fro m a pu blic or private high sc hool or second ary sc hool, a certifi cat e of co m plet io n, a certi ficate o f attendance, or an alternate awa rd from a pu blic or privat e high school or seco ndary school, or a recognized equiva lent of a high sc hool diplom a under state law, or a GED cert ifi cate or cert ificate fro m passi ng anoth er such st at e authorized exa m (e .g., HiSet or TASC) in the Un ited St at es.
Q36: What documentation may be sufficient to demonstrate that I have obtained a GED certificate or certificate from passing another such state authorized exam (e.g., HiSet or TASC)? A36: Docu mentation m ay include, but is not limited to, evidence that you have passed a GED exa m, or other st at eauthorized exa m (e.g., HiSet or TASC), and, as a result, have received th e recognized equivalent of a regular high sc hool diploma und er st at e law.
Q37 : If I am enrolled in a litera cy or career training program, can I meet the guidelines? A37 : Yes, in certain circumsta nces. You may meet the gu ideli nes if yo u are enrolled in an edu cat io n, literacy, or ca reer tra ining program 'th at has a purpose of im provi ng lit eracy, m athemat ics, or English or is desi gned to lead to place ment in postsecond ary edu ca t ion , j ob trai ning, or em ployment and where yo u are worki ng t oward such placement. Such program s inclu de, but are not lim ited to, program s fund ed, in whole or in part , by federal, st at e, county or mu nicipal grants or ad minist ered by non-pro fit orga nizat ions, or if fund ed by oth er sources, are programs of demonst rated effect iveness.
Q38: If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines? A38 : Yes, in ce rtai n circ umsta nces. Enrollment in an ESL program may be used t o meet t he guidelines if the ESL program is fu nded in w ho le or in part by federa l, state, county or mun ici pa l gra nts, or adm inist ered by non-p rofit orga nizations, or if fun ded by ot her sources is a program of demonstrated effectiveness. Yo u must subm it d irect docum entary evidence t hat the program is fu nded in who le or part by federa l, st ate, county or muni cipal grants, ad m inist ered by a non-profit organization, or of demonstrated effectiveness.
Q39 : Will USCIS consider evidence other than that listed in Chart #1 to show that I have met the education guidelines? A39: No. Ev idence not li sted in Chart #1 will not be accepted t o esta blish that you are currently in school, have graduated or obt ained a certificate of comp leti on from high school, or have obtai ned a GED or passed anoth er state-autho rized exam

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(e.g., HiSet or TASC) . You must submit any of the documentary evidence listed in Chart #1 to show that you meet the education guidelines.
Q40: Will USCIS consider evidence other than that listed in Chart #1 to show that I have met certain initial guidelines? A40: Evidence other than those documents listed in Chart #1 may be used to establish the fo llowing guideli nes and factual showings if available doc umentary evidence is insufficient or lacking and shows that:
• You were physically present in the United States.on June 15, 2012;
• You came to the United States before reaching your 16th birthday; • You satisfy the continuous residence requirem ent, as long as you present direct evidence of your continued residence
in the United States for a portion of the requ ired period and the circumstantial evidence is used only to fill in gaps in the length of continu ous residence demonstrated by the direct evidence; and • Any travel outside the United States during the period of required continuous presence was brief, casua l, and innocent.
However, USCIS w ill not accept evidence other than the .documents listed in Chart #1 as proof of any of the following guid elines to demonstrate that you:
• Were under the age of 31 on June 15, 2012; and • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED
certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the Un ited States.
For example, even if you do not have documentary proof of your presence in the United States on June 15, 2012, yo u may still be able to satisfy the guideline. You may do so by subm itting credible document ary evidence that you were present in the United St ates shortly before and shortly afte r Ju ne 15, 2012, which, under the facts presented, may give rise to an inference of your presence on June 15, 2012 as we ll. However, evidence other than that listed in Chart #1 wi ll not be accepted to establish that you have grad uated high school. You must submit the designated documentary evidence to satisfy that you meet this guideline.
Chart #1 provid es examples of d ocumentation you may submit to demonstrate you meet the initial guide lines for consideration of deferred act ion under this process. Please see the instructions of Fo rm 1-8210, Conside ration of Deferred Act ion for Chi ldh ood Arriva ls, for addit io nal details of acceptable documentation.

Chart #1 Examples of Documents to Submit to Demonstrate You Meet the Guidelines

Proof of identit y

• Passport or national id entity document from yo ur country of origin • Birth certificate wi t h photo identifi cation • School or military ID with ph oto • Any U.S. govern ment immigration or other docum ent bearing yo ur name and
photo

Proof you came to U.S. before your 16th birthd ay

• Passport w ith admission stamp • Fo rm l-94/ l-95/ l-94W

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• School records from the U.S. schools you have attended • Any Immigration and Naturalization Service or DHS document stating your date
of entry (Form 1-862, Notice to Appear) • Travel records • Hospital or medical records • Rent receipts or utility bills • Emp loyment records (pay stubs, W-2 Forms, etc.) • Official records from a religious entity confirming participation in a religious
ceremony • Copies of money order receipts for money sent in or out of the country • Birth certificates of children born in the U.S. • Dated bank transactions • Automobile li cense receipts or registration · • Deeds, mortgages, rental agreement contracts • Tax receipts, insurance policies

Proof of immigration status

• Form l-94/ l-95/ l-94W with authorized stay expiration date • Final order of exclusion, deportation, or remova l issued as of June 15, 2012 • A charging document placing you into removal proceedings

Proof of presence in U.S. on June 15,2012
Proof you continuously resided in U.S. since June 15, 2007

• Rent receipts or utility bills • Employment records (pay stubs, W-2 Forms, etc.) • School records (letters, report cards, etc.) • Military records (Form DD-214 or NGB Form 22) • Official records from a religious entity confirming participation in a religio us
ceremony • Copies of money order receipts for money sent in or out of the country • Passport entries • Bi rth certificates of children born in the U.S. • Dated bank transactions • Automobile license receipts or registration • Deeds, mortgages, rental agreement contracts • Tax receipts, insurance policies

Proof of your education status at the time of requesting consideration of DACA

• School records (transcripts, report cards, etc.) from the school that you are currently attending in t he United States showing the name(s) of the school(s) and periods of schoo l attendance and the current educational or grade level

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• U.S. high school diploma, certificate of completion, or other alternate award • High school equivalency diploma or certificate recognized under state law • Evidence that you passed a state-authorized exam, includ ing the GED or other
state-authorized exam (for example, HiSet or TASC) in the United States

Proof you are an honorably discharged veteran of the U.S. Armed Forces or the U.S. Coast Gua rd

• Form DD-214, Certificate of Release or Discharge from Active Duty • NGB Form 22, Nationa l Guard Repo rt of Separation and Record of Service • Military personnel records • Military health records

Q41: May I file affidavits as proof that I meet the initial guidelines for consideration of DACA? A41: Affidavits generally will not be su ffici ent on their own to demonstrate that you meet the guidelines for USCIS to consider you for DACA. However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking:
• Demonstrating that you meet the five year continuous residence requirement; and
• Establishing that departures during the required period of continuous residence were brief, casual and innocent.
If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct perso nal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence, indicating that further evidence must be submitted to demonstrate that you meet these guidelines.

USCIS will not accept affidavits as proof of satisfying the following guidelines:

• You are currently in school, have graduated or obtained a certificate of completion or other alternate award from high school, have obtained a high school equivalency diploma or certificate (such as by passing the GED exam or other state-authorized exam [for example, HiSet or TASC] ), or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
• You were physically present in the United States on June 15, 2012; • You came to the United States before reaching your 16th birthday;
• You were under the age of 31 on June 15, 2012; and
• Your criminal history, if applicable.

If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a

Request for Evidence, indicating that you have not demonstrated that you meet these guidelines and that yo u must do so in

order to demonstrate that you meet that guideline.

I

I

Q42: Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal

pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?

A42: Yes. If you had an application for asylum or cance llation of remova l, or similar relief, pending before either USCIS or

EOIR as of June 15, 2012, but had no lawful status, yo u may request consideration of DACA.

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Q43: I was admitted for "duration of status" or for a period of time that extended past June 14, 2012, but violated my immigration status (e.g., by engaging in unauthorized employment, failing to report to my employer, or failing to pursue a full course of study) before June 15, 2012. May I be considered for deferred action under this process? A43: No, unless th e Executive Office for Immigration Review terminated yo ur st atus by issuing a final order of removal against you before June 15, 2012.

Q44: I was admitted for "duration of status" or for a period of time that extended past June 14, 2012 but "aged out" of my dependent non immigrant status as of June 15, 2012. May I be considered for deferred action under this process?

A44: Yes. For purposes of satisfying the "had no lawful status on June 15, 2012," guideline alone, if you were admitted for "d uration of status" or for a period of time that extended past Ju ne 14, 2012 but "aged out" of your dependent non imm igrant st atus, on or before June 15, 2012, (meaning you tu rned 21 years old on or before June 15, 2012), you may be considered for deferred action un der this process.

Q45 : I was admitted for "duration of status" but my status in SEVIS is listed as terminated on or before June 15, 2012. May I be considered for deferred action under this process?

A45: Yes. For the purposes of sat isfyi ng the "" had no lawful status on June 15, 2012," guideline alone, if your status as of June 15, 2012, is listed as "t erminated" in SEVIS, you may be considered for deferred actio n unde r th is process.

Q46: I am a Canadian citizen who was inspected by CBP but was not issued an 1-94 at the time of admission. May I be considered for deferred action under this process?

A46: In genera l, a Canadian citizen who was adm itted as a visitor for busi ness or pleasure and not issued an 1-94, Arrival/Departure Record, (a lso known as a "non-controlled" Ca nad ian non immigra nt) is lawfully admitted for a period of six months. For that reason, unless there is evidence, including verifi able evidence provided by the individual, that he or she was specifi cally ad vised t hat his or her adm ission would be for a different length of time, the Department of Homeland Security (OH S) will co nsider fo r DACA purposes only, that the alien was lawfu lly admitted for a period of six months. Therefore, if OHS is able to verify from its records that yo ur last non-controlled entry occurred on or befo re Dec. 14, 2011, OH S will consider yo ur nonimmigrant visitor st atus to have expired as of Jun e 15, 2012 and you may be considered for deferred action under this process.

Q47: I used my Border Crossing Card (BCC) to obtain admission to the United States and was not issued an 1-94 at the time of admission. May I be considered for deferred action under this process?

A47: Because the limitations on entry for a BCC holder vary based on location of admission and travel, OHS wi ll assume that the BCC holder who was not provided an 1-94 was adm itted for the longest period legally possible-30 days- unless the individual can demonstrate, through verifiab le evid ence, that he or she was specifically advised that his or her admissio n would be for a different le ngth of time . Accordin gly, if OHS is ab le t o verify from its records that your last admission was using a BCC, you we re not issued an 1-94 at th e time of adm ission, and it occurred on or before May 14, 2012, OH S will consider your non immigrant visitor status to have expired as of June 15, 2012, and you may be co nsidered for deferred action under this process.

Q48: Do I accrue unlawful presence if I have a pending initial request for consideration of DACA?

,-

A48: You will continue to accrue unlawful presence while the request for considerat io n of DACA is pending unless you are

under 18 years of age at the time of t he request. If you are under 18 years of age at th e time yo u submit your request, you

will not accrue un law ful presence wh ile the request is pending, even if you turn 18 whi le your request is pending with

USCIS. If action on your case is deferred, you w ill not accrue unlawful prese nce du rin g the period of deferred action.

However, having act io n deferred on your case will not excuse previously accrued un lawful presence.

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111. Renewal of DACA

Retu rn to t o12.,.

Q49: When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)?

A49: USCIS st rongly encourages you to su bmit yo ur Deferred Act io n for Ch ildhood Arriva ls (DACA) renewal req uest between 150 days and 120 d ays before the exp irat ion d at e located on your current Form 1-797 DACA app rova l noti ce and Em ployment Autho rization Document (EAD). Fi ling du ring this w ind ow will minimize t he possi b ility th at your cu rrent pe riod of DACA will expire before yo u receive a decision on your renewa l request.
USCIS' current goa l is t o p rocess DACA renewa l req uests wit hin 120 days. Yo u may subm it an in qu iry about the status of yo ur renewal requ est after it has been pending m ore than 105 days. To submit an inquiry on line, please visit .!;:;gov.uscis.govf-e-request.

• Please Note: Facto rs th at may affect the timely processing of your DACA renewa l req uest in cl ude, but are not li mit ed to: o Failure to appear at an Application Sup port Center (ASC) for a scheduled bio metrics appoi ntment to obt ai n fi ngerpri nts and photograp hs. No-shows or rescheduling appoi ntments wi ll req uire ad dit iona l processing ti me.
o Issues of national securit y, crimi na lity or public safet y di scovered du ri ng th e ba ckground ch eck process t hat require fu rther vet ting.
o Iss ues of travel abroad that need additiona l evid ence/ clarificatio n.
o Name/dat e of bi rth discrepancies th at may req uire add it iona l evidence/ clarification.
o Th e ren ewal subm iss ion was incomp lete or co ntained evid ence t hat suggest s a request er may not satisfy t he DACA renewal guid elines and USCIS must send a requ est for add it ion al evid ence or expla nation
QSO: Can I file a renewal request outside the recommended filing period of 150 days to 120 days before my current DACA expires?
A50: USCIS strongly encourages you to fil e your renewal req uest wit hin the reco mm en d ed 150-120 d ay fili ng period to m inimize t he possib ility th at your current period of DACA will expire before yo u receive a decisio n on you r renewa l requ est. Req uest s received earlier th an 150 days in advance wi ll be accepted; however, th is could result in an overlap between yo ur cu rrent DACA an d you r ren ewal. This m ea ns your renewal period may ext end for less than a fu ll t wo years from the d ate t hat yo ur current DACA period expires..

If you fil e after the recom mend ed filing period (m ea ning less th an 120 days before your current pe riod of DACA exp ires), there is an increased possib ilit y th at yo u r cu rren t period of DACA and employment aut horizat io n wi ll expire before yo u receive a decision on yo ur ren ewal request . If yo u fi le after yo ur most recent DACA period expired, but with in one yea r of its expiratio n, you m ay su bm it a req uest to renew you r DACA. If you are fili ng beyond one yea r after you r most recent peri od of DACA expired, you m ay st ill request DACA by subm itting a new initia l re quest .
QSl: How will USCIS evaluate my request for renewal of DACA: A51: Yo u may be consid ered fo r renewal of DACA if yo u met the guide lines for considerat ion of Initi al DACA (see above) AND y o u:
• Did not depart th e Unit ed States on or after Aug. 15, 2012, w it hout ad va nce parole;
• Have co nt inu ously resided in t he United Stat es since you subm itted your most recen t requ est fo r DACA that was approved up to t he present time; and
• Have not been convicted of a felony, a signifi cant misd emeanor, or t hree or more misd emeanors, and do not

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otherwise pose a threat to national security or pu bli c safety.
Th ese guidelines must be met for consideration of OACA renewal. USCIS retains the ultimate discretion to determine whether deferred action is ap propriat e in any given case even if the guidelines are met.
Q52 Do I accrue unlawful presence if I am seeking renewal and my previous period of DACA expires before I receive a renewal of deferred action under DACA? Similarly, what would happen to my work authorization?
A52: Yes, if your previous period of DACA expires before you receive a renewal of deferred acti on under DACA, you will accrue un lawful presence for any t ime between the periods of deferred act io n unless you are under 18 years o f age at the t ime you submit your renewa l requ est.
Similarly, if your previous period of OACA expires before you receive a renewa l of deferred action und er DACA, you will not be authorized to work in the Un ited States rega rdl ess of yo ur age at time of filing until and unless you rece ive a new employment authorization docum ent from USCIS.
Q53. Do I need to provide additional documents when I request renewal of deferred action under DACA?
A53. No, unless yo u have new document s pertaining to removal proceedings or crim inal history that you have not alrea dy
subm itted to USCIS in a previously approved OACA request. USCIS, however, reserves the aut ho rity to request at its discretion additiona l documents, inform ation or stateme nts relatin g to a DACA renewa l request determination.
CAUTION: If you knowingly and willfully provide materially false info rmation on Form 1-821 0, you w ill be committing a federal fe lony punishable by a fin e, or imp rison ment up to five years, or both, und er 18 U.S.C. Section 1001. In addition, ind ivid uals may be placed into removal proceedi ngs, face severe penalties provided by [aw, and be su bject to criminal prosecution.
Q54. If I am no longer in school, can I still request to renew my DACA? A54. Yes. Neither Form 1-821 0 no r the instructions ask renewal req uestors fo r information about continued school enrollment or graduation. The instructions for renewa l reque sts specify that yo u may be considered for DACA renewal if you met the guideli nes for consideration of in itial OACA, includ ing the educational guidelines and :

1. Did not depart the United St ates on or after August 15, 2012, without advance parole;
2. Have continuously resided in the United States, up t o the present tim e, since you subm itted your most recent request for DACA that was approved; and
3. Have not been convicted of a felony, a significant misd emeanor or three or more misd emeanors, and are not a threat to national security or publi c safet y.

QSS. If I iriitially received DACA and was under the age of 31 on June 15, 2012, but have since become 31 or older, can I still request a DACA renewal? ASS. Yes. Yo u may requ est consideration for a renewal of OACA as long as you were under th e age of 31 as of June 15, 2012.

IV. Travel
Q56: May I travel outside of the United States before I submit an initial Deferred Action for Childhood Arrivals (DACA) request or while my initial DACA request remains pending with the Department of Homeland Security (DHS)? A56: Any unauthorized travel outside of the United States on or after Aug. 15, 2012, will inte rrupt your cont inuous residence and you will not be consi dered for deferred actio n und er t his process. Any travel outside of the United States that occurred on or after Ju ne 15, 2007, but before Aug. 15, 2012, w il l be assessed by U.S. Citizenship and Immigrati on Services (USCIS) to

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determine whether the travel qualifies as brief, casual and innocent. (See Chart #2.)
CAUTION: You should be aware that if you have been ordered deported or removed, and you then leave the United States, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.
Q57: If my case is deferred under DACA, will I be able to travel outside of the United States? A57: Not automatically. If USCIS has decided to defer action in your case and you want to t ravel outside the United States, you must apply for advance parole by filing a For m 1-131, AR.R.li cation for Travel Docu ment and paying the applicable fee ($575). USCIS wil l determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will on ly grant advance parole if your travel abroad will be in furtherance of:
• humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
• educational purposes, such as semester-abroad programs and academic research, or; • employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients
overseas .
. Travel for vacation is not a val id basis for advance parole.
You may not apply for advance parole unless and until USCIS defers action in your case under the consideration of DACA. You cannot apply for advance parole at the same time as you submit your request for consideration of DACA. All advance parole requests will be considered on a case-by-case basis.
If USCIS has deferred action in your case under the DACA process after you have been ordered deported or removed, you may still request advance paro le if you meet the guidelines for advance parole described above.
CAUTION: However, for those individuals who have been ordered deported or removed, before you actually leave the United States, you should seek to reopen your case before the Executive Office for Immigration Review (EOIR) and obtain administrative closure or termination of your removal proceed ing. Even after you have asked EOIR to reopen your case, you should not leave the United States until after EOIR has granted your request. If you depart after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure may result in your being considered deported or removed, with potentially serious future immigration consequences. If you have any questions about this process, you may contact U.S. Immigration and Customs Enforcement (ICE) through the local ICE Office of the Chief Counsel with jurisdiction over your case.
CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.
Q58: Do brief departures from the United States interrupt the continuous residence requirement? A58: A brief, casual and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and :

1. The absence was short and reasonably calculated to accomplish the purpose for the absence; 2. The absence was not because of an order of exclusion, deportation or removal; 3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure
before you were placed in exclusion, deportation or removal proceedings; and 4. The purpose of the absence and/or your actions wh ile outside the United States were not contrary to law.

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Once USCIS has approved you r request for DACA, yo u may file Form 1-13 1, Ap plication for Travel Document, to request advance parole to travel outside of the United States.
CAUTION: If you travel outsid e the Un ited States on or after Aug. 15, 2012, w ithout first receiving advance pa ro le, your d eparture automatica lly terminat es your d eferred action under DACA.
Travel Gu idelines (Chart #2)

Travel Dates Type of Travel

Does It Affect Continuous Residence

On or after Ju ne Brief, casual and No

15,2007, but

innocent

before Aug. 15,

2012

For an ext ended Yes

time

Because of an ord er of exclusion, d eportati on , v o l u n tary departu re, or remova l

To participate in criminal activity

On or after Aug. Any 15, 2012, and · before you have re qu ested d eferred action
On or after Aug. Any 15, 2012, and after you have requested d eferred action

Yes. You cannot apply for advance parole unless and until DHS has determ ined w hether to defer action in yo ur case and you cannot tra vel until you receive advance parole.
In addition, if you have previously been ordered deported and removed and you depart the Un ited States without tak ing add it iona l st eps t o address your removal proceedings, your departu re will li kely result in yo ur bei ng considered deported or removed, wi th potentially serious future immigratio n consequences.

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On or after Aug. Any 15, 2012 and after receivi ng DACA

It depen d s. If you travel after receivi ng adva nce parole, the travel w ill not
interrupt your conti nu ous residence. However, if you t ravel without receiving adva nce pa role, the tra vel will interrupt you r conti nuous residence.

Q59: May I file a request for advance parole concurrently with my DACA package?
A59: Concurrent filing of adva nce parole is not an option at this tim e. OHS is, however, reviewing its policy on concurrent fil ing of advance parole with a DACA request. In addition, OHS is also reviewing eligibility criteria for advance parole. If any changes to th is po li cy are made, USCIS wi ll update t his FAQ and inform th e pu blic acco rdingly.
Return to toP-,.
V. Criminal Convictions
Q60: If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process? A60: No. If you h ave been convicted of a felo ny offense, a significant m isdem eanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, yo u will not be considered for Deferred Actio n for Childhood Arrivals (DACA) except where the Department of Homeland Security (OHS) determi nes there are exceptional circumstances.
Q61: What offenses qualify as a felony? A61: A felony is a federa l, state, or local criminal offense pun ish able by imp riso nment for a term exceedi ng one year.
Q62: What offenses constitute a significant misdemeanor? A62: For the purposes of this process, a sig nifi ca nt misde mea nor is a misdemeanor as defined by federal law (specifi cally, one for which the maximum term of impriso nment authorized is one year or less but great er than five days) and that meets the followin g criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sex ual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distri bution or trafficking; or, driving under the in fluence; or,
2. If not an offense listed above, is one for which the individual w as sentenced to time in custody of more than 90 days. The sente nce mu st involve t ime to be served in custody, and therefore does not include a suspended sentence.

The t ime in custody does not include any time served beyo nd th e sen tence for th e crim inal offe nse based on a stat e or local law enforceme nt agency honoring a detainer issued by U.S. Imm igration and Customs Enforcement (ICE). Notwithstanding the above, the decision whet her to defer action in a particular case is an ind ividualized, di scretionary one that is mad e ta king into account the totality of the circumstances. Therefo re, the absence of the crim ina I histo ry outlin ed above, or its presence, is not necessarily det ermi native, but is a factor to be considered in the un reviewable exercise of discretion. OHS retains the disc retion to det ermine that an individua l does not wa rra nt deferred act ion on the basis of a single criminal offense for which t he ind ividu al was sentenced to time in cust ody of 90 days or less.
Q63: What offenses constitute a non-significant misdemeanor?

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A63: For purposes o f t his process, a non-signifi ca nt misdemeanor is any mi sdemea nor as defi ned by federal law (specifica lly, one for whic h t he maximu m t erm of imprisonment authorized is one yea r or less but greater than five days) an d th at meet s th e following criteria:

l. Is not an offense of domestic violence; sexual abu se or exploit ation; bu rglary; unlawful possession or use of a firearm; drug distribut ion or tra fficking; or, drivi ng under the infl uence; and
2. Is one fo r whi ch th e individual was sentenced t o ti me in custody of 90 days or less. The t ime in custody does not include any t ime served beyo nd the sentence fo r the criminal offense based on a stat e o r local law enforcement agency hono r ing a det ainer issued by ICE.

Not withst andi ng t he above, th e decisio n whether to defer action in a part icular case is an individ ualized, discreti ona ry one t hat is made taki ng into acco unt the t otalit y of t he circumst ances. Therefo re, the absence of t he crim inal history o utlin ed above, or its presence, is not necessa rily determi native, but is a factor to be considered in t he unreviewa ble exercise of d iscret ion.
Q64: If I have a minor traffic offense, such as driving without a license, will it be considered a non-significant m isdemeanor that counts towards the "three or more non-significant misdemeanors" making me unable to receive consideration for an exercise of prosecutorial discretion under this new process? A64: A minor traffic offense will not be considered a m isdemea nor for pu rposes of t his process. However, your entire offense history can be co nsidered alo ng with other fact s t o determ ine whether, under the tot ality of the circumstances, yo u wa rra nt an exercise of prosecutoria l di scret io n.
It is important to emp hasize t hat drivi ng under t he influence is a significa nt misdemea nor rega rd less of the sentence im posed.
QGS: What qualifies as a national security or public safety threat? A65: If the backgro und check o r ot her inform ati on uncovered du ring t he review of your request for deferred act ion ind icates th at your presence in the United Stat es t hrea t ens pub lic safet y or national security, you will not be able to receive consideration for an exercise of prose.cutorial discretion except where DH S det ermi nes t here are exce pti ona l circumst ances. Indicators that yo u pose such a t hreat incl ude, but are not lim ited to, gang m embership, part icipation in crimi nal act ivit ies, or partic ipation in act ivit ies th at t hreat en t he Un ited St at es.
Q66: Will offenses criminali zed as felonies or misdemeanors by state immigration laws be considered felonies or misdemeanors for purpose of this process? A66: No. Immigrati on-relat ed offenses cha ract erized as felon ies or misdemeanors by stat e immi grat ion laws will not be treated as disqu ali fying felon ies or misdemeano rs for t he purpose of considering a request for con siderat io n of deferred action und er t his pro cess.
Q67: Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion? A67: Expunged convictions and j uvenile convictions will not auto matically disq ualify you. Your req uest wi ll be assessed on a case-by-case basis t o determine whether, under t he particular circumst ances, a favorable exercise of prosecutoria l di scretion is warran t ed. If yo_u we re a ju ven ile, but tried and co nvict ed as an adu lt , yo u will be t reated as an adu lt fo r p urposes of the DACA process.
Return to to[L
VI. Miscellaneous

http://web.arehive.o rg /web/201708 2 414 2701 /https://www.us eis. gov/hum... ter red- ae t io n -ehi Id hood - arriva Is - proe ess/freq u ent ly- asked-q u estio n s

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Frequently Asked QuestionCs aI UsSeCIS3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 22 of 24

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Q68: Does deferred action provide me with a path to permanent resident status or citizenship? A68: No. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative autho rity, can confer these rights.

Q69 : Can I be considered for deferred action even if I do not meet the guidelines to be considered for DACA?

A69: This process is on ly for individua ls who meet the specific guidelines for DACA. Other ind ividuals may, on a case-by-case

basis, request deferred action from U.S. Citizenship and Immigration Services (USCIS) or U.S. Immigration and Customs

Enfo rcement (ICE) in certain circumstances, consistent with longstanding practice.

I

.

Q70: How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but

believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion

Memoranda?

A70 : If USCIS determines that yo u do not satisfy the guidelines or otherwise determines you do not warrant an exercise of

prosecutorial discretion, then it will d ecline to defer action in your case. If you are currently in removal proceedings, have a

final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial

discretion.

Q71: How should I fill out question 9 on Form 1-765, Application for Employment Authorization? A71. When you are filing a Form I-765 as part of a.DACA req uest, question 9 is asking you to list those Social Security numbers that were officially issu ed to you by the Social Security Administration.
Q72: Will there be supervisory review of decisions by USCIS under this process? A72: Yes. USCIS has implemented a successful supervisory review process to ensure a consistent process for considering requests for DACA.
Q73: Will USCIS personnel responsible for reviewing requests for DACA receive special training? A73: Yes. USCIS personnel responsible for considering requests for consideration of DACA have received special training.
Q74: Must attorneys and accredited representatives who provide pro bono services to deferred action requestors at group assistance events file a Form G-28 with USCIS?
A74: Under 8 C.F.R. §§ 292.3 and 1003.102, practitioners are required to file a Notice of Entry of Appearance as Attorney or Accredited Representative when t hey engage in practice in imm igration matters before OHS, either in person or through the preparation or filing of any brief, application, petition, or other document. Under these rules, a practitioner who consistently violates the requ irement to file a Form G-28 may be subject t o disciplinary sanctions; however on Feb. 28, 2011, USCISissued a statement indicating that it does not intend to in iti ate disciplinary proceed ings against practitioners (attorneys and accredited representatives) based solely on the failure t o sub mit a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) in relation to pro bono services provided at group assist ance events. OHS is in the process of issuing a final rule at which time th is matter will be reevaluated.

Q75: When must an individual sign a Form 1-8210 as a preparer? A75: Anytime someone other than the requestor prepares or helps fill out t he Form l-821D, that individual must complete Part 5 of the form .
Q76: 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? A76: You ma y, as you dete rmine appropriate, provid e individ uals requesting DACA with documentation wh ich verifies their employment. This information will not be shared with ICE for civil immigration enforcement purposes under section 274A of the Im migration and Nationality Act (relating to unlawful employment) unless there is evidence of egregious violations of crim inal statutes or widespread abuses.

http: //web .archive .org /w eb/2 017082414 2701/ htt ps :// www.uscis.gov/hu m ...ferre d-a c tion- child hood-arrivals -p rocess/ I req uent ly- asked- questions

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Frequently Asked QuestionCs IaUsSeCIS3:17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 23 of 24

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Q77: Can I request consideration for deferred action under this process if I live in the Commonwealth of the Northern Mariana Islands (CNMI)? A77: Yes, in certain circumstances. The CNMI is part of the United States for immigration purposes and is not excluded from this process. However, because of the specific gu id elines for consideration of DACA, ind ividuals who have been residents of the CNMI are in most cases unlike ly to qua lify for the program . You must, among other things, have come to th e United Stat es before your 16t h birthday and have resided continuously in the United States since Jun e 15, 2007.
Under the Conso li dated Natural Resources Act of 2008, the CNM I became part of the United States for pu rposes of immigration law on ly on Nov. 28, 2009. Therefore entry into, or residence in, the CNMI before that date is not entry into, or residence in, the United States for purposes of the DACA process.
USCIS has used parole authority in a variety of situ ations in the CNMI to address particular humanitarian needs on a caseby-case basis since Nov. 28, 2009. If you live in the CNMI and believe that you meet the gui delin es for consideration of deferred action under this process, except that your entry and/or residence to the CNMI took place entirely or i n part before Nov. 28, 2009, USCIS is will ing to consider your situation on a case-by-case basis for a grant of parole. If th is situation applies to you, you should make an appointment through INFOPASS with the USC IS ASC in Saipan to discuss your case with an immigration officer.
Q78: Someone told me if I pay them a fee , they can expedite my DACA request. Is this true? A78: No. There is no exped ited processin g for deferred action. Dishonest practitioners may p romise t o provide you with faster services if you pay them a fee. These people are t rying to scam you an d t ake your money. Visit our Avoid Scams page t o lea rn how you can protect yourse lf from immigration scams.
Make sure yo u seek information about requests for cons ideration of DACA from official government sources such as USCI S or the DHS. If you are seeking legal advice, visit our Fin d Lega l Services page t o learn how to choose a licensed attorney or accredited representative.
Q79: Am I required to register with the Selective Service?
A79: Most male persons resid ing in the U.S., who are ages 18 through 25, are required to register with Selective Se rvice. Please see link for more info rmation. [Selecti ve Service] .
QSO: How can I tell if an employer is discriminating against me because I am a DACA recipient?
ABO: An employer may be engagi ng in discrimination if the employer:
• Demands that an employee show specific docu m ents or asks for more or different documents than are req uired t o complete Form 1-9, Emr-loyme nt Eligibilit y Veri fi cation, or create an E-Verify_ case; or
• Rejects doc u ments from the Lists of Acceptable Document s that reasonably appear t o be genuine and relate to the employee, including a work authorization document because it has a future expiration date or because of an employee's prior unauthorized status.
The Civil Rights Division of the U.S. Department of Justice has an office dedicated to ensuring that employers do not discriminate against in dividuals who are permitted t o work in t he U.S. Th ese include DACA recipi ents who have been granted work auth orization. If you th ink your employer may be discriminating against you, contact the Immigrant and Emp loyee Rights Secti on (IER) at 1-800-255-7688 (TDD for the deaf and hard of hearing: l -800-237-2515).
For more information about unfair employment p ractices against DACA recipient s, please read IER's factsheet in En glish (PDF). or .S.12a nish (PD F)..
For additiona l resources and information about wo rkers' rights, visit www.j usti ce.gov!'.crt!'.wo rker- inform ation.

h t tp: //web.are hive.o rg/web/2017 O8 2414 2701/ htt ps: //ww w. usci s. gov/h um ...f erred - action-chiIdhood- arr ival s-p roc ess/f requen t ly- asked-qu est ions

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Frequently Asked QuestionCs aI UsSeCI3S :17-cv-05235-MEJ Document 1-5 Filed 09/11/17 Page 24 of 24

9/7/17, 12:47 AM
Return to to Re.

Last Reviewed/ Updated: 02/ 08/ 2017

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Case 3:17-cv-05235-MEJ Document 1-6 Filed 09/11/17 Page 1 of 3
EXHIBITF

Case 3:17-cv-05235-MEJ

Document 1-6

Filed 09/11/17 Page 2 of 3
S l' C/ t_1 /(II ) '
L. S. Dl'pa1·1111 l·111 uf I lo111rl:111cl Src uri1y \\ ';1sl11nµrn11. ()(' 211:i~S

Homeland
Security

December 30, 20 l6
The Honorable Judy Chu U.S. House of Representatives Washington, DC 20515
Dear Representative Chu:
On behalf of the Administration, 1write in response to the letter you and 110 other members of Congress sent the President on December 5. In your letter, you ask us ';to do everything within [our] power to safeguard the personal identifying information of DACA enrollees .·· We share your concerns.
Toda y there are 750,000 young people enrolled in DACA who, when they applied for enrollment, relied on the U.S. government· s representations about the use of their personal identifying information. Since DACA was announced in 2012 , OHS has consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes. More specifically, the U.S. government represented to applicants that the personal infonnation they provided will not later be used for immigration enforcement purposes except where it is independently determined that a case involves a national security or public safety threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law.
We believe these representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.
For decades, even elating back before DACA, it has been the long-standing and co nsistent practice of OHS (and its predecessor INS) to use information submitted by people seeking deferred ac tion or other benefits for the Iimited purpose of adjudicating their requests, and not for immigration enforcement purposes except in the kinds of spec ified circumstances described above. This was true, for example, under the deferred action policies extended to victims of human tra ffic king, to foreign students affected by Hurricane Katrina, to battered immigrants under the Violence Against Women Act, and to widows and widowers of American citizens. Accordingly, people who requested to be considered under DACA, like those who requ ested deferred action in the past, have reli ed on our consistent practice concerning the information they provide about themselves and others.

Case 3:17-cv-05235-MEJ Document 1-6 Filed 09/11/17 Page 3 of 3 The Honorable Judy Chu Page2
The U.S. government's practice of adhering to the assurances it makes to applicants for deferred action is also consistent with the way USCIS (and the INS before it) has long protected information submitted by those seeking other benefits or relief. This includes but is not limited to individuals requesting temporary protected status, deferred enforced departure, or extended voluntary departure. In these circumstances, as with deferred action requests, USCIS and INS have abided by a longstanding and consistent practice of using information to adjudicate specific applications, but not for immigration enforcement purposes absent the limited circumstances described above.
Since DACA began, thousands of 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. We continue to benefit as a country 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.
The co-signers of your letter will receive separate, identical responses. Should you wish to discuss this further, please do not hesitate to contact me.

Case 3:17-cv-05235-MEJ Document 1-7 Filed 09/11/17 Page 1 of 2
EXHIBIT G

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Case 3:17-cv-05235-MEJ Document 1-8 Filed 09/11/17 Page 1 of 7
EXHIBITH

Case 3:17-cv-05235-MEJ

Document 1-8

Filed 09/11/17 Page 2 of 7
S1:cr.:111n · l l.S. llcpartmcn l of l lomcland Scrn rity
Wasl1111g1r,11. l)(· 2!l5~X

Homeland Security

M EMORANDU M FOR:

Fe bruary 20, 20 17
Kevin McAleenan Acting Comm iss ioner U.S. C ustoms and Border Protection

Thom as D. Ho man Acting Director U.S . Immigration and Customs Enfo rcement

Lori Scialabba Acting Di recto r U.S . Ci tizenship and Im migrati on Services

Joseph B. Maher Acting General Counsel
Dimple Shah Acting Assist ant Secretary for Internati onal A fla irs

FROM:

Chip Fulghum A cting U ndersecretary for Management
John Kelly Secre ta r y

SUBJ ECT:

Enforcemen of the Immigration Laws to Serve th e National Interest

This memorandum implements the Exec uti ve Order entitled " Enhancing Publi c Safety in the Interi or of the United States," issued by the President o n January 25, 2017. It constitutes gu idance fo r all De partment personnel regardi ng the enforcement of the immi gration laws of the United States, and is appl icable to the acti viti es of U.S . Immigration and Customs En forcem ent (ICE), U.S. Customs and Border Protectio n (CB P), and U.S. Citizenship and Immigration Services (USCIS). As such, it sho uld infonn enforcem ent and removal activi ties, detention decisio ns, admiru stra tive litigati o n, budget requests and execution , and strategic planni ng.

"'"'"' .tlhs.gov

Case 3:17-cv-05235-MEJ Document 1-8 Filed 09/11/17 Page 3 of 7
With the exception of the June 15, 20 12, memorandum entitled ''Exercising Prosecutorial Discre tion with Respect to Individuals Who Came to the United States as Children," and the November 20, 2014 memorandum e ntitled "Exercising Prosecutorial Discretion with Respect to Ind ividuals Who Came to the United States as C hildren and wi th Respect to Certain Indi viduals Who Are the Parents of U .S. C itizens o r Permanent Residents," 1 all existing conflicting directive s, memoranda, or fiel d guidance regarding the enforcement of our immigration laws and priorities for removal are hereby immediatel y resc inded--to the extent of the conf1ict- including, but not limi ted to , the November 20, 20 14, memoranda entitled " Polic ies for the Apprehension, Detention and Remova l of Undocumented Immigrants," and "Secure Communities.''
A. The Department's Enforcement Priorities
Congress has defined the Department' s role and responsibiliti es regarding the enforcemen t of the immigration laws of the United States. Effecti ve immediately, and consistent with Article JI , Sectio n 3 of the United States Constitution and Section 3331 of Title 5, United States Code, Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens.
Except as specifi cal ly no ted above, the Department no longer wil l exempt classes or categories of removable aliens from potentia l enforce ment. In faithfull y executing the immigration laws, Department pe rsonnel sho uld take enforcement actions in accordance with applicable law. In order to achieve this goal, as noted below, [ have directed ICE to hire l 0,000 offic ers and agent s expeditiously, subject to availab le resource s, and to take enforcement actions consistent with avai!able resources . However, in o rder to maximize the benefi t to public safety, to stem unlawful migration and to prevent fraud and misrepresentation, Department personnel should prioritize for removal those alie ns described by Congress in Secti ons 212(a)(2), (a)(3), and (a)(6)(C), 235(b) and (c), and 23 7(a)(2) and (4) of the Immigration and Nationality Act (INA).
Additionally, regardl ess of the basis ofremovability, Department personnel should prio riti ze remova ble aliens who: (I) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargea ble criminal offense; (4) have engaged in fraud or w illful mi srepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefi ts; (6) are subject ro a fi nal order ofremoval but have not complied w ith their legal o bligation to depart the United States; or (7) in the judgment of an immigratio n oflicer, otherwise pose a ri sk to public safety or national security. The Director of ICE, the Com missioner of CBP, and the Director of USC IS may, as they determine is appropriate, issue further guidance to allocate a ppropriate resources to prio ritize enforcement activities wi thin these categories-for exampl e, by prioritizing enforcement activities aga inst removable aliens who are conv icted fe lons or w ho are involved in gang acti vity or drug trafficking.
I The N ovember 20, 20 14, memorandum wi ll be addressed in futu re guidance.
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B. Strengthening Programs to Facilitate the Efficient and Faithful Execution of the Immi gration Laws of the United States
Facilitating the efficient and faithful execution o f the immi gration laws of the United States- and priori ti zing the Department 's resources-requires the use of all avai lable systems and en forcement tools by Department personnel.
Through passage of the immi gration laws, Congress established a comprehensive statutory regime to remove aliens expeditiously from the United States in accordance with all applicable due process of law. I determine that the faithful execution of our immi gration laws is best ac hieved by using all these statutory authorities to the greatest extent practicable. Accordingly, Department personne l shall make full use of these authorities.
Criminal ali ens have demonstrated their disregard for the rule of law and pose a threat lo persons res iding in the United States. As such, criminal aliens are a priority for removal. The Priority Enforcement Program failed to achieve its stated objectives, added an unnecessary layer of un certainty for the Department' s personnel, and hampered the Department's enforcement of the immi grat ion laws in the interior of the United States. Effective immediately, the Priority Enforcement Program is tem1inated and the Secure Communities Program shall be restored . To protect our communities and beller facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Department shall eliminate the existing Forms I-247D, f-247N, and I-247 X, and replace them with a new form to more effectively communi cate with recipient law enfo rcement agencies. However, until such forms are updated they may be used as an interim measure to ensure that detainers may sti ll be issued, as appropriate.
ICE's Criminal Alien Program is an effective tool to faci litate the removal of criminal aliens from the United States, while also protecting our communiti es and conserving the Department's detention resources. Accordingly, ICE should devote available resources to expandin g the use of the Cri minal Ali en Program in any willing jurisdiction in the Un ited States. To the max imum extent possible, in coordination with the Executive Office fo r Immigration Re view (EOJR), removal proceedings shall be initi ated agai nst aliens in carcerated in federa l., state, and local con ectional facilities under the Institutional Hearing and Removal Program pursuant to section 238(a) of the INA, and admini strative removal processes, such as those under sec ti on 238(b) of the INA, sha ll be used in all eligible cases.
The INA § 287(g) Program has been a highl y successfu l force multiplier that allows a 4ualified state o'r local law enforceme nt officer to be designated as an ·'immigration officer'' for purposes of enfo rcing federa l immi grati on law. Such officers have the authority to perform all Jaw enforcement functions specified in section 287(a) of the INA, including the authority to in vestigate, identi fy, apprehend, arrest, detain, and conduct searches authorized under the INA, under the direction and supervision of the Department.
There are currently 32 law enforcement agencies in 16 states parti ci pating in the 287(g) 3

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Program. In previous years, there were significantly mo re law enforcement agencies participating in the 287(g) Program. To the greatest extent practicabl e, the Director of ICE and Commissioner
or CBP shalI expand the 287(g) Program to include all qualified law enforcem ent agencies that
request to participate and meet all pro g ram requirements. In furtherance of thi s direction and the guidance memorandum, ·'Implementing the President' s Border Security and Immigration
Enforcem ent Improvements Polici es" (Feb. 20, 2017). the Commissioner of CBP is authorized , in addition to the Direc tor of ICE, to accept State services and take other actions as appropriate to carry out immi gratio n enforcement pursuant to section 287(g) of the INA.

C. Exercise of Prosecutorial Discretion

Unless otherwise directed, Department personnel may injtiate enforcement actions against removable aliens encount ered during the perfom1ance of their official duties and should act co ns istently wi th the President's enforcement priorities identified in his Executive Order and any further guidance issued pursuant to this memorandum. Department personnel have full authority to arrest o r apprehend an alien whom an immigration officer has probable cause to believe is in vio lation of the immigration laws. They also have fu ll authority to initiate removal proceedings against any alien who is subject to removal under any provision of the INA , and to refer appropriate cases for criminal prosec ution. The Department shall prioritize aliens described in the Department 's Enforcement Priorities (Section A) for arrest and removal. This is not intended to remove the individual, case-by-case decisions of immigration officers.

The exercise of prosecutorial discretion with regard to any alien who is subject to an-est, criminal prosecution, or removal in accordance with law shall be made on a case-by-case basis in consultation with the head of the field office component, where appropriate, of CBP, ICE, or USCIS that ini tiated or will initi ate the enforcement action , regardless of which entity actually files any appli cab le charging documents: CBP Chief Patrol Agent, CBP Director of Field Operations, [CE Field Office Director , ICE Special Agent-in-Charge, o r the USCIS Field Office Director, Asy lum Office Director or Service Center Director.

Except as specifically provided in this memorandum, prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws. The General Counsel shall issue guidance consistent wi th these principles to all attorneys involved in immigration proceedings.

D. Establishing the Victims of Immigration Crime Engagement (VOICE) Office

Crim inal aliens routinely victimize Ame ricans and other legal residents. Often, these

victims are not provided adequate in fonnation about the offender, the offender 's immigration status, or any enforcement action taken by ICE against the offender. Efforts by ICE to engage

r

these victims have been hampered by prior Department of Homeland Security (OHS) policy

extending certain Privacy Act protections to persons other than U.S. citizens and lawful

pennanent res idents, leaving victims feeling marginalized and without a voice. Accordingly, I am

establishing the Victims of Immigration Crime Engagement (VOICE) Office within the Office of

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the Director of ICE , which wi! l create a programmatic li aison between ICE and the known victims of crimes committed by removabl e alien s. The liai son wi ll fac ilitate engagement with the victims and their families lo ensure, to the extent pennitted by law, that they are provided inforination about the offender, including the offender's immigration status and custody status, and that their questions and concerns regardin g immigration enforcement efforts are add ressed.
To that end, [ direct the Director of ICE to immediately reallocate any and all resources that are currently used to advocate on behalf of ill egal aliens (except as necessary to comply with a judicial o rder) lo the new VOlCE Office, and to immediately tenninate the provision of such outreach or advocacy services to illegal a liens.
Nothing herein may be construed to authorize di sclosures that are prohibited by law or may relate to information that is Classified , Sensitive but Unclassified (S BU), Law Enforcement Sensitive (LES), For Official Use Only (FOUO), or similarly designated information that may relate to natio na l security, law enforcement, or intelli gence programs o r operations, or disclosures that are reasona bl y likely to cau se hann to any person.
E. Hiring Additional ICE Officers and Agents
To enforce the immigration laws effectively in the interior of the United States in accordance wi th the President 's directives, additional ICE agents and officers are necessary. The Directo r of ICE shall-while ensuring consistency i.n training and standards-take all appropriate action to expeditiously hire 10,000 agents and officers, as well as additional operational and mission support and legal staff necessary to hire and support their activi ti es. Human Capital leadership in CBP and ICE, in coordination with the U nder Secretary for Management and the Chi ef Human Capital Officer, shall develop hiring pl ans that balance growth and interagency attrition by integrating workforce shaping and career paths for incumbents and new hires.
F. Establishment of Programs to Collect Authorized Civil Fines and Penalties
As soo n as practicable. th e Di rector of ICE, the Commissioner of CBP, and the Director of USCIS shall issue guidance and promulgate regulations, where required by law, to e nsure the assessment and collection of all fin es and penalties which the Department is authorized under the law to assess and collect from aliens and from those w ho facilitate their unlawful presence in the United States.
G. Aligning the Department's Privacy Policies W ith the Law
The Department will no longe r afford Pri vacy /\ct rights and protections to persons who are neither U.S . citizens nor lawful pennanent residents. The DHS Privacy Office wi ll rescind the DHS Privacy Policy Guidance memorandum, dated January 7, 2009, which implemented the DHS " mixed systems" poli cy of administratively treating all personal information contained in DHS record systems as being subj ec t to the Pri vacy Act regardless of the subject's immigra ti on status. Th e OHS Pri vacy Office, with the assistance of the Office o f the General Counsel, wi ll
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develop new guidance speci fyi ng the appropriate treatm ent of personal infom1ation DHS maintains in its record system s.
H. Collecting and Reporting Da ta on Alien Apprehensions and Releases
Th e col lecti on of data regarding al iens apprehended by ICE and the disposition of their cases wi ll assist in the developme nt of agency performance metrics and provide transparency in the immigration enforcement mission. Accordingly, to the ex tent permitted by law, the Director of ICE shall develop a standardized me thod of reporting statistical data regarding aliens apprehended by ICE and, at the earliest practicable time, provide monthl y repo rts of such data to the public wi thout charge.
T he reporting method shall include uni fo rm term ino logy and shal l uti lize a fomiat that is easi ly understandabl e by the public and a medium that can be readily accessed. At a mini mum, in addition to stati stical information c urre ntl y being publ icly reported regarding apprehend ed aliens, the foll owing categories of infonnation must be inc luded: country of ci tizenship, convicted criminals and the nature of their offenses, gang members, prior immigration violators, custody status of alie ns and , if released, the reason for release and location of their release, aliens ordered removed, and ali ens physically removed or returned.
The 1CE Directo r shall also develop and provide a weekly report to the public, utilizing a medium that can be readily accessed without charge, of non-Federal jurisdictions that release aliens from their cus tody, notwi thstanding that such aliens are subject to a detainer or sim ilar request for custody issued by JCE to that jurisdict ion. In addition to other relevant information, to the extent that such information is readily available, the report shall reflect the name of the jurisdictio n, the citiz enship and immigration status of th e alien, the arrest, charge, or conviction for which each al ien was in the c ustody of that jurisdicti on, the date on which the ICE detainer or similar request for c ustody was served on the jurisdictio n by ICE, the date of the alien's release from the c ustody of that jurisdiction and the reason for the release, an explanation concerning why the detainer or similar request fo r custod y was not honored, and all arrests, charges, or convictions occurring after the a lien's release from the custody of that jurisdiction.
I. No Private Right of Action
This document provides only inte rnal DHS policy g uidance, which may be modifi ed, rescinded, or superseded at any time without notice. This guidance is not intended to, does not, and may not be reli ed upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or crimina l matter. Likewise, no limitations are placed by this guidance on the otherwise lawfu l enforcement or litigati o n prerogatives of DHS .
In implementing these policies, [ direct DHS Co mpo nents to cons ult with legal counsel to ensure compli ance with all appli cable laws, includin g the Administrative Procedure Act.
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EXHIBIT I

Case 3:17-cv-05235-MEJ Document 1-9 Filed 09/11/17 Page 2 of 2
Ql)ffice of tl7e 1\ttorne~ ~eneral
1Jl!Jngqingtott, m. <!I. 20,5.30
Dear Acting Secretary Duke,
I write to advise that the Department of Homeland Security (DHS) should rescind the June 15 , 2012, DHS Memorandum entitled "Exercising Prosecutorial Discretion with Respect to Individual s Who Came to the United States as Children," as well as any related memoranda or guidance. This policy, known as "Deferred Action for Childhood Arrivals" (DACA), allows ce11ain individuals who are without lawful status in the United States to request and receive a renewable, two-year presumptive reprieve from removal, and other benefits such as work authorization and participation in the Social Security 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 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. 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. See Texas v. United States, 86 F. Supp. 3d 591, 669-70 (S.D. Tex.), ajf'd, 809 F.3d 134, 171-86 (5th Cir. 2015), afj'd by equally divided Court, 136 S. Ct. 2271 (2016). ThenSecretary 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.
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.
As Attorney General of the United States, I have a duty to defend the Constitution and to faithfully execute the laws passed by Congress. Proper enforcement of our immigration laws is, as President Trump consistently said, critical to the national interest and to the restoration of the rule of law in our country. The Department of Justice stands ready to assist and to continue to support DHS in these important efforts.
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EXHIBIT J

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The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present
in the U nited States and to Defer Removal of Others
The De partment of Homeland Security's proposed policy to prioritize the removal of certain aliens unlawful ly present in the United States would be a permissible exercise of DHS 's discretion to enforce the immigration laws.
The Department of Homeland Security 's proposed deterred action program for parents of U. S. citizens and legal permanent residents would also be a permissible exercise of DHS 's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Chi ldhood Arrivals program would not be a permissible exercise ofDHS's enforcement discretion .
November 19, 2014
MEMORANDUM OPINION FOR THE SECRETARY OF H OMELAND SECURITY AND T HE COUNSEL TO THE PRESIDENT
You have asked two questions concerning the scope of the Department of Homeland Security's discretion to enforce the imm igration laws. First, you have asked whether, in light of the limited resources avai la ble to the Department (" DHS") to remove al iens un lawfully present in the Un ited States, it would be legally permissible fo r the Department ·to implement a po licy prioritizing the removal o f certain categories of aliens over others. DHS has explained that although there are approx imately 11 .3 mill ion undocumented a liens in the. country, it has the resources to remove fewer than 400,000 such a liens each year. DHS's proposed policy would prioritize the remova l of aliens w ho present threats to national security, public safety, or border security. Under the proposed policy, OHS officials could remove an alien who did not fal l into one of these categories provided that an Immigration and Customs Enforcement (" ICE") Field Office Director determined that "removing such an alien would serve an important federal interest." Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Secmity, Re: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants at 5 (Nov. 17, 20 14) ("Johnson Prioritization Memorandum").
Second, you have asked whether it would be permissible for OHS to extend deferred action, a fo rm of temporary administrative relief from remova l, to certa in aliens who are the parents of children who are present in the Un ited States. Specifically, OHS has proposed to implement a program under which an a lien could app ly for, and wou ld be elig ib le to receive, deferred action ifhe or she is not a OHS removal priority under the po licy described above; has continuously resided in the Un ited States s ince be fo re January I, 20 IO; has a child who is either a U.S . citizen or a lawfu l permanent resident; is physical ly present in the United

Case 3:17-cv-05235-MEJ Document 1-10 Filed 09/11/17 Page 3 of 34
Opinions of1he Office ofLegal Counsel in Volume 38
States both when OHS announces its program and at the time of application for deferred action; and presents " no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate." Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Home land Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (" Johnson Deferred Action Memorandum"). You have also asked whether OHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals ("DACA") program.
As has historically been true of deferred action, these proposed deferred action programs would not " legalize" any aliens who are unlawfully present in the United States: DefeITed action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS' s decision not to seek an alien ' s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483-84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ I 103(a)(3), 1324a(h)(3), aliens who are granted deferred action-like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants-may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. § 274a. 12(c)( 14) (providing that defmed action recipients may apply for work authorization if they can show an "economic necessity for employment"); see also 8 C .F.R. § 109. l(b)(7) (1982). Under OHS policy guidance, a grant of deferred action also suspends an alien ' s accrual of unlawful presence for purposes of 8 U.S.C. § l 182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admission of aliens who have departed the United States after having been Lmlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS's discretion. See Johnson Deferred Action Memorandum at 2, 5.
For the reasons discussed below, we conclude that DHS's proposed prioritization policy and its proposed deferred action program for parents of U.S. c itizens and lawful permanent residents would be permissible exercises of OHS 's discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA reci pients would not be a permissible exercise of enforcement discretion.
I.
We first address OHS 's authority to prioritize the removal of certain categories of aliens over others. We begin by discussing some of the sources and limits of
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DHS 's Authority lo Prioritize Removal ofCertain Aliens Unla1~(ully Present
DHS's enforcement discre tion under the imm igration laws, and then analyze DHS's proposed prioritization policy in light of these considerations.
A.
DHS 's authority to remove aliens from the United States rests on the Immigration and Nationa lity Act of 1952 ("INA"), as amended, 8 U.S.C. §§ 1101 et seq. In the INA, Congress established a comprehensive scheme governing imm igration and naturalization. The INA spec ifies certain categories of aliens who are inadmissi ble to the United States. See 8 U.S.C. § 1182. It a lso specifies "which aliens may be removed from the Un ited States and the procedures for doing so." Arizona v. United States, 132 S. Ct. 2492, 2499 (20 12). "A liens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law." Id (citing 8 U.S.C. § 1227); see 8 U.S.C.
§ l227(a) (providing that " [a]ny al ien ... in and admitted to the United States
shall, upon the order of the Attorney General, be removed if the alien" falls w ithin one or more classes of deportable a liens); see also 8 U.S.C. § l l 82(a) (listing classes of a liens ineligible to receive visas or be admitted to the United States). Removal proceedings ordinarily take place in federal imm igration courts administered by the Executi ve Office for Immigration Review, a component of the Depattment of Justice. See id § l229a (governing removal proceedings); see also id §§ l225(b)( I)(A), l228(b) (setting out expedi ted removal procedures for ce1tain arriv ing aliens and certain aliens convicted of aggravated felonies).
Before 2003, the Department of Justice, through the Immigration and Natural ization Service ("INS"), was a lso responsible for providing immigration-related administrative services and generally enforci ng the immigration laws. In the Homeland Security Act of 2002, Pub. L. No. I07-296, 11 6 Stat. 2 135, Congress transferred most of these functions to OHS, giving it primary responsibility both for in itiating removal proceedings and for carrying out final orders of removal. See
6 U.S.C. §§ 10 1 el seq.; see also Clark v. Martinez, 543 U.S. 37 1, 374 n.l (2005)
(noting that the imm igration authorities previously exercised by the Attorney General and INS "now reside" in the Secretary of Homeland Security and OHS). The Act divided INS's functions among three different agencies within DHS: U.S. C itizenship and Immigration Services ("USCIS"), which oversees legal imm igration into the Un ited States and provides immigrat ion and naturalization services to aliens; ICE, which enforces federal laws governing customs, trade, and imm igration; and U.S. Customs and Border Protection ("CBP"), which monitors and secures the nation 's borders and ports of entry. See Pub. L. No. I07-296, §§ 403 , 442, 45 1, 47 1, 116 Stat. 2135, 2 178, 2193, 2195 , 2205; see also Name Change From the Bureau ofCitizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 Fed. Reg. 60938, 60938 (Oct. 13 , 2004); Name Change of Two DHS Components, 75 Fed. Reg. 12445, 12445 (Mar. 16, 20 I0). The Secretary of Homeland Security is thus now "charged with the adm inistration and
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Opinions ofthe O.ffice ofLegal Counsel in Volume 38
enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § l 103 (a)( l).
As a general rul e, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a pa1ticular violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President's consti tutional duty to "take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3, and it reflects a recognition that the "faithful[]" execution of the law does not necessarily entail "act[ing] against each technical violation of the statute" that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the decision whether to initiate enforcement proceedings is a complex judgment that calls on the agency to " balanc[e] ... a number of factors which are peculiarly within its expertise." Id These factors include "whether agency resources are best s pent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency 's overall policies, and ... whether the agency has enough resources to unde1take the action at all." Id at 831; cf United States v. Armstrong, 517 U .S. 456, 465 ( 1996) (recognizing that exercises of prosecutorial discretion in criminal cases involve consideration of '" [s]uch factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case' s relationship to the Government's overall enforcement plan"'
(quoti ng Wayte v. United States, 470 U.S. 598, 607 (1985))). In Chaney, the Cou1t
considered and rejected a challenge to the Food and Drug Administration's refusal to initiate enforcement proceedings with respect to alleged violations of the Federal Food, Drug, and Cosmetic Act, concluding that an agency's decision not to initiate enforcement proceedings is presumptively immune from judicial review. See 470 U.S. at 832. The Court explained that, while Congress may " provide[] guidelines for the agency to follow in exercising its enforcement powers," in the absence of such " legislative direction," an agency's non-enforcement determination is, much like a prosecutor's decision not to indict, a "special province of the Executive." Id. at 832-33.
The principles of enforcement di scretion discussed in Chaney apply w ith particu lar force in the context of immigration. Congress enacted the INA against a background understanding that immigration is "a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program." United States ex rel. Knauffv. Shaughnessy, 338 U.S . 537, 543 ( 1950) (internal quotation marks omitted). Consistent with this understanding, the INA vested the Attorney General (now the Secretary of Homeland Security) with broad authority to "establish such regu lations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority" under the statute. 8 U.S.C. § l 103 (a)(3 ). Years later, when Congress created the Department of Homeland Security, it expressly charged DHS with responsibility for " [e]stablishing national immigration enforcement policies and
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DHS 's Authority to Prioritize Removal ofCertain Aliens Unlaw(ilily Present
priorities." Homeland Security Act of 2002, Pub. L. No. I07-296, § 402(5 ), 116 Stat. 2135, 2178 (codified at 6 U.S.C. § 202(5)).
With respect to rem oval decisions in particular, the Supreme Court has recognized that " the broad discretion exercised by immigration officials" is a " principal featu re of the removal system" under the INA. Arizona, 132 S. Ct. at 2499. The INA expressly authorizes im migration officials to grant certain fo1111s of discre-
tionary relief from removal for aliens, including parole, 8 U.S.C. § I l 82(d)(5)(A); asylum, id. § I l 58(b)( I )(A); and cancellation of removal, id. § l 229b. But in
addition to adininistering these statutory forms of relief, " [f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all." Arizona, 132 S. Ct. at 2499. And, as the Court has explained, " [a]t each stage" of the removal process-"commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders"- immigration officials have " discretion to abandon the endeavo r." Am.-Arab Anti-Discrim. Comm. , 525 U.S. at 483 (quoting 8 U.S.C. § l 252(g) (alterations in original)). Deciding whether to pursue removal at each of these stages implicates a wide range of considerations. As the Court observed in Arizona:
Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers ttying to supp01i their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an indi vidual case may turn on many factors, including whether the alien has chi ldren born in the United States, long ties to the community, or a record of distinguished military servi.ce. Some discretiona1y decisions involve policy choices that bear on th is Nation ' s international relations. . .. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family wi ll be harmed upon return. The dynamic nature of relations w ith other countries requires the Executive Branch to ensure that enforcement policies are cons istent w ith this Nation's fore ign policy with respect to these and other reali ties.
132 S. Ct. at 2499. Imm igration officials' discretion in enforcing the laws is not, however, unlim-
ited. Lim its on enforcement discretion are both implic it in, and fundamental to, the Constitution 's allocation of governmental powers between the two political branches. See, e.g. , Youngstown Sheet & Tube Co. v. Sawyer, 343 U .S. 579, 58788 ( 1952). These limits, however, are not c learly defined. The open-ended nature of the inquiry under th e Take Care Clause-whether a particular exercise of discretion is " faithfu l[]" to the law enacted by Congress--does not lend itself easily to the application of set formulas or bright-line rules. And because the exercise of enforcement discretion generally is not subject to j ud ic ial review, see
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Chaney, 4 70 U.S . at 831-33, neither the Supreme Court nor the lower federal cou11s have squarely addressed its constitutional bounds. Rather, the political branches have addressed the proper allocation of enforcement authority through the political process. As the Court noted in Chaney, Congress "may limit an agency's exercise of enforcement power if it wishes, either by setting s ubstantive priorities, or by otherwise circumscribing an agency's power to discrim inate among issues or cases it will pursue." Id. at 833 . The history of immigration policy illustrates this principle: Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various fonns of immigration relief to categories of al iens for humanitarian, foreign policy, and other reasons. When Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive's discretion in enforcing the immigration laws. 1
Nonetheless, the nature of the Take Care duty does point to at least four general (and closely re lated) principles governing the permissible scope of enforcement discretion that we believe are particularly re levant here. First, enforcement decisions should reflect " factors which are peculiarly within [the enforcing agency's] expertise." Chaney, 470 U.S. at 83 l . Those factors may include considerations related to agency resources, such as " whether the agency has enough resources to unde11ake the action," or "whether agency resources ·are best spent on this violation or another." Id. Other relevant considerations may include "the proper ordering of (the agency's] priorities," id. at 832, and the agency's assessment of "whether the pat1icular enforcement action [at issue] best fits the agency's overall policies," id. at 83 1.
Second, the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not " disregard legislative direction in the statutory scheme that [it] adm in isters"). In other words, an agency's enforcement decisions should be consonant with, rather than contrary to, the congressional policy underly ing the statutes the agency is charged with administering. Cf Youngstown, 343 U.S. at 637 (Jackson, J., concurring) ("When the President takes measures incompatib le with the expressed or implied will of Congress, his power is at its lowest ebb."); Nat'/ Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency's decision about the proper administration of the statute unless, among other things, the agency '" has relied on factors wh ich Congress had not intended it to consider"' (quoting
I See, e.g. , Adam B. Cox & Cristina M. Rodriguez, The Presidenr and /111111igration law, 119 Yale L.J. 458, 503-05 (2009) (describing Congress's response to its dissatisfaction with the Executive's use of parole power for refugee populations in the 1960s and 1970s): see also, e.g., infra note 5 (discussing legislative limitations on voluntary departure and extended voluntary departure).
6

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DHS 's Aulhority to Prioritize Removal o/Cerlain Aliens Unlawfully Presenl

Motor Vehicle Mfrs. Ass'n ofU.S. , Inc. v. Stale Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 ( 1983))).
Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, "'consciously and expressly adopt(] a general policy ' that is so extreme as to amount to an abdication of its statutory responsibilities." 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 11 59, 1162 (D.C. Cir. 1973) (en bane)); see id. (noting that in situations where an agency had adopted such an extreme pol icy, " the statute conferring authority on the agency might indicate that such decisions were not ' committed to agency discretion"'). Abdication of the duties assigned to the agency by statute is ordinarily incompatible w ith the constitutional obl igat ion to faithfully execute the laws. But see, e.g. , Presidential Authority to Decline lo Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 ( 1994) (noting that under the Take Care Clause, "the President is required to act in accordance with the laws- including the Constitution, which takes precedence over other forms of law").
Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as j ud icia lly unreviewable exercises of enforcement discretion when they are made on a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 , 676- 77 (D.C. Cir. 1994). That read ing of Chaney reflects a conclusion that case-by-case enforcement decisions generally avoid the concerns mentioned above. Courts have noted that "single-shot nonenfo rcement decisions" almost inevitably rest on " the sort of mingled assessments of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the agency's expe1tise and discretion." Crowley Caribbean Transp., 37 F.3d at 67677 (emphasis omitted). Individual enforcement decis ions made on the basis of case-specific factors are also un li kely to constitute " general pol ic[ies] that [are] so extreme as to amount to an abd ication of[the agency's] statutory responsibilities." Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all "general policies" respecting non-enforcement are categorically forbidden: Some "general policies" may, for example, merely provide a framewo rk for making individual ized, discret ionary assessments about whether to ini tiate enforcement actions in particular cases. Cf Reno v. Flores, 507 U.S. 292, 313 ( 1993) (explaining that an agency's use of "reasonable presumptions and generic rules" is not incompatible with a requirement to make individualized dete1111inations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses " special risks" that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677.

B.

L

We now turn, against this backdrop, to DHS's proposed prioritization policy. In

their exercise of enforcement discretion, DHS and its predecessor, fNS, have long

7

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Opinions of/h e Office ofLegal Counsel in Volume 38
employed guidance instructing immigration officers to prioritize the enforcement of the immigration laws against certain categories of a liens and to deprioritize their enforcement against others. See. e.g., fNS Operating Instructions § I03(a)( J.)(i ) ( I962) ; Memorandum fo r All F ield Office Directors, ICE, et al. , from John Morton, Director, ICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities ofthe Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 20 11 ); Memorandum for All ICE Employees, from John Morton, Director, ICE, Re: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 20 l I); Memorandum for Regional Directors, fNS , et al. , from Doris Meissner, Commissioner, fNS, Re: Exercising Prosecutorial Discretion (Nov. I7, 2000). The policy DHS proposes, which is similar to but would supersede earlier policy guidance, is designed to " provide c learer and more effective guidance in the pursuit" of DHS's enforcement priorities; namely, "threats to national security, public safety and border security." Johnson Prioritization Memorandum at I .
Under the proposed policy, OHS would identify three categories of undocumented aliens who would be priorities for removal from the United States. See generally id at 3-5 . The highest priority category would include aliens who pose pa1ticularly serious threats to national security, border security, or public safety, inc luding al iens engaged in or suspected of espionage or terrorism , aliens convicted of offenses related to pa1ticipation in criminal street gangs, a liens convicted of certain felo ny offenses, and aliens apprehended at the border while attempting to enter the United States unlawfully. See id. at 3. The second-highest priority would include aliens convicted of multiple or significant misdemeanor offenses; aliens who are apprehended after unlawfully entering the United States who cannot establish that they have been continuously present in the United States since January I, 2014; and aliens determined to have significantly abused the visa or visa waiver programs. See id. at 3-4. The third priority category would include other aliens who have been issued a final order of removal on or after January I, 20 14. See id. at 4. The policy would also provide that none of these aliens should be prioritized for removal if they "qualify for asylum or another form of relief under our laws ." Id at 3-5.
The policy would instruct that resources should be directed to these priority categories in a manner " commensurate with the level of prioritization identified." Id. at 5. It would, however, also leave significant room for immigration officials to eval uate the circumstances of indi vidual cases. See id. (stating that the policy '' requires OHS personnel to exercise discretion based on individual circumstances"). For example, the policy would pennit an ICE Field Office Director, CSP Sector Chief, or CSP Director of Field Operations to deprioritize the removal of an alien falling in the highest priority category if, in her j udgment, " there are compelling and exceptional factors that clearly indicate the alien is not a threat to national securi ty, border security, or pub lic safety and shou ld not therefore be an enforcement priority." Id at 3. Similar discretionary provisions would apply to
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DHS 's Aulhority lo Priorilize Removal ofCertain Aliens Unlawfully Presenl
aliens in the second and th ird priority categories. 2 The policy would also provide a non-exhaustive list of fac tors OHS personnel should consider in making such deprioritization j udgments.' In add ition, the policy wou ld express ly state that its terms shou ld not be construed " to prohi bit or discourage the apprehension, detention, or removal of al iens w1 lawfully in the United States who are not identified as priori ties," and would further provide that "[i)mmigration officers and attorneys may pursue removal of an a lien not identified as a priority" if, " in the j udgment of an ICE Field Office Director, removing such an alien would serve an important federal interest." ld. at 5.
OHS has explained that the proposed policy is designed to respond to the practical reality that the number of aliens who are removable under the fN A vastly exceeds the resources Congress has made available to OHS fo r processing and carrying out removals. The resource constraints are striking. As noted, OHS has infonned us that there are approximately 11.3 m ill ion undocumented a liens in the country, but that Congress has appropriated sufficient resources for ICE to remove fewer than 400,000 a liens each year, a significant percentage of whom are typ ica lly encountered at or near the border rather than in the interior of the countly. See E-ma il for Karl R. Thompson, Princ ipal Deputy Assistant Attorney General, Office of Legal Counsel, from David Shahoul ian, Deputy General Counsel, OHS, Re: Immigration Op inion (Nov. 19, 201 4) ("Shahoul ian E-mail"). T he proposed policy explains that, because OHS "cannot respond to all imm igration vio lati ons or remove all persons illegally in the U nited States," it seeks to "pri oriti ze the use of e nforce ment personnel, detention space, and removal assets" to "ensure that use of its li mited resources is devoted to the pursu it of' OHS's highest priorities. Johnson Priori ti zation Memorandum at 2.
In our view, OHS's proposed prioritization policy falls within the scope of its lawfu l discretion to enforce the immigration laws. To begin with, the policy is based on a facto r clearly "with in [DHS 's] expertise." Chaney, 470 U.S. at 83 1. Faced with sharply lim ited resoui·ces, OHS necessari ly must make cho ices about which remova ls to pursue and wh ich removals to defer. OHS's organic statute itself recognizes this inevitable fact, instructing the Secretary to establish "nationa l

2 Under the proposed policy, aliens in the second tier could be deprioritized if, "in the judgment of

an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District

Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to

national security, border security, or public safety, and should not therefore be an enforcement

priority." Johnson Prioritization Memorandum at 4. Aliens in the third tier could be deprioritized if, "in

the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration

system or there are factors suggesting the alien should not be an enforcement priority." Id. at 5.

1 ·

These

facto rs

include

"extenuating

c irc umstances

invo lving

the

offense

of

conviction ;

extended

length of time since the offense of conviction; length of time in the United States; military service;

l

family or community ties in the United States; status as a victim, wi tness or plaintiff in civil or criminal

proceedings; or compell ing humanitarian factors such as poor health, age, pregnancy, a young child or

a seriously ill relative." Johnson Prioritization Memorandum at 6.

9

Case 3:17-cv-05235-MEJ Document 1-10 Filed 09/11/17 Page 11 of 34
Opinions of1he Office o_(Legal Counsel in Volume 38
immigration enforcement policies and priorities." 6 U.S.C. § 202(5). And an agency's need to ensure that scarce enforcement resources are used in an effective manner is a quintessential basis for the use of prosecutorial discretion. See Chaney, 470 U.S. at 831 (among the factors " peculiarly within [an agency's] expertise" are " whether agency resources are best spent on this violation or another" and "whether the agency has enough resources to undertake the action at a ll " ) .
The policy OHS has proposed, moreover, is consistent with the removal priorities established by Congress. In appropriating funds fo r OHS 's enforcement activities- which, as noted, are sufficient to permit the removal of only a fraction of the undocumented a liens currently in the country-Congress has directed OHS · to " prioritize the identification and removal of aliens convicted of a crime by the severity of that crime." Department of Homeland Security Appropriations Act, 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 ("OHS Appropriations Act"). Consistent with this directive, the proposed policy prioritizes individuals convicted of crim ina l offenses involving active participation in a criminal street gang, most offenses classified as felonies in the convicting jurisdiction, offenses classified as "aggravated felonies" under the INA, and certain misdemeanor offenses. Johnson Prioritization Memorandum at 3-4. The policy ranks these priority categories according to the severity of the crime of conviction. The policy also prioritizes the removal of other categories of aliens who pose threats to national security or border security, matters about wh ich Congress has demonstrated particular concern. See, e.g., 8 U.S.C. § 1226(c)( I )(0) (providing for detention of aliens charged with removability on national security grounds); id. § l 225(b) & (c) (providing for an expedited removal process for certain aliens apprehended at the border). The policy thus raises no concern that OHS has relied " on factors which Congress had·not intended it to consider." Nat 'l Ass 'n of Home Builders, 551 U.S. at 658.
Further, although the proposed policy is not a " single-shot non-enforcement deci sion," neither does it amount to an abdication of DHS 's statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp. , 37 F.3d at 676-77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in ce1tain categories of cases. Given that the resources Congress has allocated to DHS are sufficient to remove only a small fraction of the total population of undocumented aliens in the United States, setting fo1th written guidance about how resources should presumptively be allocated in particular cases is a reasonable means of ensuring that DHS's severely lim ited resources are systematically directed to its highest priorities across a large and diverse agency, as wel l as ensuring consistency in the administration of the removal system. The proposed policy's identification of categories of aliens who constitute removal
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DHS's Authority to Prioritize Removal ofCertain Aliens Unlawfully Present
priorities is also consistent with the categorical nature of Congress's instruction to prioritize the removal of criminal aliens in the OH S Appropriations Act.
And, significantly, the proposed policy does not identify any category of removable aliens whose removal may not be pursued under any circumstances. Although the proposed policy limits the di scretion of immigration officials to expend resources to remove non-priority aliens, it does not elim inate that discretion entirely. It directs immigration officials to use their resources to remove aliens in a manner "commensurate with the level of prioritization identified," but (as noted above) it does not " prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the Un ited States who are not identified as priorities." Johnson Prioritization Memorandum at 5. Instead , it authorizes the removal of even non-priority aliens if, in the judgment of an ICE Field Office Director, " removing such an a lien would serve an important federal interest," a standard the policy leaves open-ended. Id. Accordingly, the policy provides for case-by-case determinations about whether an indiv idual al ien' s circumstances wa1nnt the expend iture of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials. For these reasons, the proposed po licy avoids the difficulties that might be raised by a more inflexible prioritization policy and dispels any concern that OHS has either undertaken to rewrite the immigrati on laws or abdicated its statutory responsibilities with res pect to non-priority aliens.'
II.
We turn next to the permiss ibility of OHS's proposed deferred acti on programs for certain aliens who are parents of U.S. cit izens, lawful permanent residents ("LPRs"), or DACA recipients, and who are not removal priorities under the proposed policy discussed above. We begin by discussing the history and current practice of defetTed action. We then discuss the lega l authorities on which defetTed
' In Crane v. Napolitano, a district court recentl y concluded in a non-prcccdential opinion that the INA " mandates the initiation or removal proceedings whenever an immigration officer encounters an illegal alien who is not 'clearly and beyond a doubt entitled to be admitted."' Opinion and Order Respecting Pl. App. for Prelim. Inj. Relief, No. 3: 12-cv-03247-0, 2013 WL 1744422, at *5 (N. D. Tex. Apr. 23) (quoting 8 U.S.C. § 1225(b)(2)(A)). The court later dismissed the case for lack ofj urisdiction. See Crane v. Napolirano, No. 3:12-cv-03247-0, 20 13 WL 8211660, at *4 (N.D. Tex. July 3 1). Although the opinion lacks precedential value. we have nevertheless considered whether, as it suggests, the text of the INA categorically forecl oses the exercise of enforcement discretion with respect to aliens who have not been formall y admitted. The district court 's concl usion is, in our view, inconsistent with the Supreme Court 's reading of the INA as permitting immigration officials to exercise enforcement discretion at any stage of the removal process, including when deciding whether to init iate removal proceedings against a particular alien. See Ari=ona, 132 S. Ct. at 2499; A111.-ArabA111i-Discri111. Comm., 525 U.S. at 483-84. It is also difficult to square with authority holding that the presence of mandatory language in a statute. standing alone, does not necessarily limit the Executive Branch's enforcement discretion, see. e.g. . Chaney, 470 U.S. at 835: Inmates ofAllica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973)
II

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Opinions ofthe Office o_(Legal Counsel in Volume 38
action relies and identify legal principles against which the proposed use of deferred action can be evaluated. Finally, we turn to an analysis of the proposed deferred action programs themselves, beginning with the program for parents of U.S. citizens and LPRs, and concluding with the program for parents of DACA recipients.
A.
In immigration law, the term "deferred action" refers to an exercise of administrative discretion in which imm igration officials temporarily defer the removal of an alien unlawfully present in the United States. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al., immigration Law and Procedure § 72.03 (2](h] ( 1998)); see USCIS, Standard Operating Procedures for Handling Deferred Action Requests at USCJS Field Offices at 3 (20 12) ("USCIS SOP"); fNS Operating Instructions§ 103. l(a)( I)(ii) (1977). It is one ofa number of forms of discretionary relief- in addition to such statutory and non-statutory measures as parole, temporary protected status, deferred enforced departure, and extended voluntary departure---that immigration officials have used over the years to · temporari ly prevent the removal of undocumented aliens.;

5 Parole is available to aliens by statute " for urgent humanitarian reasons or significant public

benefit." 8 U.S.C. § I 182(d)(S)(A). Among other th ings, parole gives aliens the ability to adjust their

status without leaving the United States if they are otherwise eligible for adjustment of status, see id.

§ 125S(a), and may eventually qualify them for Federal means-tested benefits, see id. §§ 16 13,

1641 (b)(4). Temporary protected status is available to nationals of designated foreign states affected by

armed con flicts , environmental disasters, and other extraordinary conditions. id. § I254a. Deferred

enforced departure, which "has no statutory basis" but rather is an exercise of " the President's

constitutional powers to conduct foreign relations," may be granted to nationals of appropriate foreign

states. USCIS, Adjudicator's Field Manual § 38.2(a) (20 14). Extended voluntary departure was a

remedy derived from the voluntary deparn1re statute, which, before its amendment in 1996, permitted

the Attorney General to make a find ing of removabiliry if an alien agreed to voluntarily depart the

United States, without imposing a time limit for the alien's departure. See 8 U.S.C. §§ 1252(b), 1254(e)

(1988 & Supp. II 1990): cf 8 U S.C. § I229c (current provision of the !NA providing authority to grant

voluntary departure. but limiting such grants to 120 days). Some commentators, however. suggested

that extended voluntary departure was in fact a form of "discretionary relief formulated administrative-

ly under the Attorney General 's general authority for enforcing immigration law." Sharon Stephan,

Cong. Research Serv., 85-599 EPW, Extended VoluntOJ)' Departure and Other Grants ofBlanket Reli~f

from Deportation at I (Feb. 23. 1985). It appears that extended voluntary departure is no longer used

following enactment of the Immigration Act of 1990, which established the temporary protected status

program. See U.S. Citi~enship and l111111igration Services Fee Schedule , 75 Fed. Reg. 33446, 33457

(June 11 , 20 I0) (proposed rule) (noting that "since 1990 neither the Altorney General nor the Secretary

have designated a class of aliens for nationality-based 'extended voluntary departure,' and there no

I

longer are aliens in the United States benefiting from such a designation," but noting lhat deferred

I

enforced departure is still used); 1-1.R. Rep. No. I02-123, at 2 (1991) (indicating that in establishing temporary protected status, Congress was "codif[ying] and supersed[ing)" extended voluntary

L

departure). See generally Andorra Bruno et al., Cong. Research Serv., Analysis ofJune 15, 2012 OHS

Memorandum. Exercis ing Prosecutorial Discretion with ~ spect to Individuals Who Came to the

United States as Children at 5-10 (July 13, 2012) ("CRS Immigration Report").

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Df-lS '.1· Authority 10 Prioritize Removal o,(Certain Aliens Unlawfully Present
The practice of granting deferred action dates back several decades. For many years after the INA was enacted, INS exercised prosecutorial discretion to grant "non-priority" status to removable al iens who presented "appea ling humanitarian fac tors." Letter for Leon Wi ldes, from E. A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973) (defining a " non-priority case" as " one in which the Service in the exercise of discretion detennines that adverse action would be unconscionable because of appealing humanitarian factors"); see INS Operating Instructions § I 03 . I(a)([ )(ii) (l 962). This form of admin istrative discretion was later tern1ed " deferred action ." Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484; see INS Operating Instructions § I03 . I(a)( I)(ii) ( 1977) (instructing immigration officers to recommend deferred action whenever " adverse action wou Id be unconscionable because of the existence of appealing humanitarian factors").
Although the practice of granting deferred action "developed w ithout 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. Am. -Arab Anti-Discrim. Comm., 525 U.S. at 484 (internal quotation marks omitted); see id. at 485 (noting that a congressional enactment limiting judicial review of decisions " to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA]" in 8 U.S.C. § 1252(g) "seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations"); see also, e.g., 8 U.S.C. § 1154(a)(l)(D)(i)( Il), (IV) (providing that certain individuals are "eligible for deferred action"). Deferred action "does not confer any immigration status"-i.e., it does not establish any enforceable legal right to remain in the United Statesand it may be revoked by immigration authorities at their discretion. USCIS SOP at 3, 7. Asswning it is not revoked, however, it represents DHS's decision not to seek the alien's removal for a specified period of time.
Under longstanding regulations and policy gLridance promulgated pursuant to statutory authority in the INA, deferred action recipients may receive two additional benefits. First, relying on DHS 's statutory authority to authorize certain aliens to work in the United States, OHS regu lations permit recipients of deferred action to apply for work authorization if they can demonstrate an "economic necessity for employment." 8 C.F.R. § 274a. 12(c)(l4); see 8 U.S.C. § 1324a(h)(3) (defining an " unauthorized alien" not entitled to work in the United States as an a lien who is neither an LPR nor "authorized to be ... employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security]"). Second, OHS has promulgated regulations and issued policy guidance providing that aliens who receive deferred action will temporarily cease accruing "unlawful presence" for purposes of 8 U .S.C. § I l 82(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. § 2 14 .1 4(d)(3); 28 C.F.R. § I I00.35(b)(2); Memorandum for Fie ld Leadership, from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation a/Guidance Concerning Unlawful Presence for Purposes of Sections 2 l 2(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Ac/ at 42
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Opinions ofthe Office ofLegal Counsel in Volume 38
(May 6, 2009) ("USCIS Consolidation of Guidance") (noting that " [a]ccrual of un lawful presence stops on the date an alien is granted deferred action"); see 8 U.S.C. § I 182(a)(9)(B)(ii) (providing that an alien is "unlawfully present" if, among other th ings, he " is present in the United States after the expiration of the period of stay authorized by the Attorney General").''
Immigration officials today continue to grant deferred action in individual cases for humanitarian and other purposes, a practice we will refer to as "ad hoc deferred action." Recent USCIS guidance provides that personnel may recommend ad hoc deferred action if they "encounter cases during [their] normal course of business that they feel warrant deferred action." USCIS SOP at 4. An alien may also apply for ad hoc defen·ed action by submitting a signed, written request to USCIS contain ing "[a]n explanation as to why he or she is seeking deferred action" along with supporting documentation, proof of identi ty, and other records. Id at 3.
For decades, INS and later DHS have also implemented broader programs that make discretionary relief from removal available for pa11icular classes of aliens. In many instances, these agencies have made such broad-based relief available through the use of parole, temporary protected status, deferred enforced departure, or extended voluntary depai1ure. For example, from 1956 to I 972, INS implemented an extended voluntary departure program for physically present aliens who were beneficiaries of approved visa petitions-known as "Third Preference" visa petitions-relating to a specific class of visas for Eastern Hemisphere natives. See United States ex rel. Parco v. Morris, 426 F. Supp . 976, 979-80 (E.D. Pa. 1977). Similarly, for several years beginning in 1978, INS granted extended voluntary depa11ure to nurses who were eligible for H-1 visas. Voluntary Departure/or OutofStatus Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, l 978). In addition, in more than two dozen instances dating to 1956, INS and later DHS granted parole, temporary protected status, deferred enforced depa1ture, or extended voluntary departure to large numbers of nationals of designated fo reign states. See, e.g., CRS Immigration Report at 20-23; Cong. Research Serv., ED206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 1214 ( 1980). And in I 990, INS implemented a " Family Fairness" program that authorized granting extended voluntary depai1ure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99603, 100 Stat. 3359 ("IRCA"). See Memorandum for Regional Commissioners,
<, Section I I82(a)(9)(8)(i) imposes three- and ten-year bars on the admission of aliens (other than aliens admitted to permanent residence) who departed or were removed from the United States after periods of unlawful presence of between 180 days and one year, or one year or more. Section I 182(a}(9)(C)(i)(I) imposes an indefinite bar on the admission of any alien who, without being admitted, enters or attempts to reenter the United States after previously having been unlawfully present in the United States for an aggregate period of more than one year.
14

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DHS's Authority to Prioritize Removal a/Certain Aliens Unlawfully Present
INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) ("Fami ly Fairness Memorandum"); see also CRS Immigration Report at I0.
On at least five occasions since the late 1990s, INS and later OHS have also made discretionary relief available to certain classes of aliens through the use of deferred action:
I. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in I997 for the benefit of self-petitioners under the Vio lence Against Women Act of 1994 ("VA WA"), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. c itizen or LPR spouses or parents to self-petition for lawful immigration status, without having to rely on the ir abusive family members to petition on their behalf. Id § 4070 I (a) (codified as amended at 8 U.S.C. § l 154(a)( I)(A)(iii)-(iv), (vii)). The INS program required immigration officers who approved a VA WA self-petition to assess, " on a case-by-case basis, whether to place the alien in deferred action status" whi le the alien waited fo r a visa to become available . Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that "[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action." Id. But because "[i]n an unusual case, there may be factors present that would militate against defe1Ted action," the agency instructed officers that requests for deferred action should still "receive individual scrutiny." Id In 2000, INS repo1ied to Congress that, because of this program, no approved VAWA self-petitioner had been removed from the country. See Battered Women Immigrant Protection Act: Hearings on HR. 3083 Before the Subcomm. on Immigration and Claims ofthe H. Comm. on the Judiciary, I 06th Cong. at 43 (July 20, 2000) ("H.R. 3083 Hearings").
2. Deferred Action for T and U Visa Applicants. Several years later, INS instituted a simi lar deferred action program for applicants fo r nonimmigrant status or visas made availab le under the V ictims of Trafficking and Violence Protection Act of2000 ("VTVPA"), Pub. L. No. 106-386 , 114 Stat. 1464. That Act created two new nonimmigrant classifications: a "T visa" availab le to victims of human traffick ing and their family members, and a "U visa" for victims of ce1iain other crimes and their family members. Id. §§ 107(e), 1513(b)(3) (codified at 8 U.S.C. § I JOJ(a)(l5)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing immigration officers to locate "possible victims in the above categories," and to use " [e]xisting authority and mechanisms such as parole, deferred action, and stays of removal" to prevent those victims' removal " until they have had the oppOiiunity to avail themselves of the provisions of the VTVPA." Memorandum
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for Michael A. Pearson, Executive Associate Commissioner, INS , from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Re: Victims of Trafficking and Violence Protection Act of 2000 ( VTVPA) Policy Memorandum #2-"T" and "U " Nonimmigrant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instructed officers to make "deferred action assessment[s]" for " al l [T visa] applicants whose applications have been detennined to be bona fide," Memorandum for Johnny N. Williams, Executive Associate Commissioner, INS, from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status at I (May 8, 2002), as well as for all U visa applicants " determined to have submitted prima facie evidence of [their] eligibility," Memorandum for the Director, Vermont Service Center, INS, from William R. Yates, USCIS, Re: Centralization of Interim Relief.for U Nonimmigrant Status Applicants at 5 (Oct. 8, 2003). In 2002 and 2007, INS and OHS promulgated regul ations embodying these policies. See 8 C.F.R. § 214. I I(k)(l), (k)(4), (111)(2) (promulgated by New Class{ficationfor Victims of Severe Forms of Trafficking in Persons; Eligibility for "T" Nonimmigra/11 Status, 67 Fed. Reg. 4 784, 4800-01 (Jan. 31 , 2002)) (prov id ing that any T visa appli cant who presents "primafacie ev idence" of his eligibility shou ld have hi s removal "automat ically stay[ed]" and that applicants placed on a waiting list for visas "shall maintain [their] current means to prevent removal (deferred action, parole, or stay of removal)"); id. § 214 .1 4(d)(2) (promulgated by New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status, 72 Fed. Reg. 53014, 53039 (Sept. I7, 2007)) ("USCIS wi ll grant defened action or parole to U-1 petitioners and qualifying fami ly members while the U- 1 petitioners are on the waiting list" for visas.).
3. Deferred Action for Foreign Students Affected by Hurricane Katrina. As a consequence of the devastation caused by Hurricane Katrina in 2005, several thousand foreign students became temporarily unable to satisfy the requirements for maintaining their lawful status as F-1 nonimmigrant students, which include "pursuit of a ' full course of study."' USC IS, Interim Relieffor Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. § 2 14.2(t)(6)), available at http//www.uscis.gov/s ites/defauIt/fi les/USC IS/Hum ani tarian/Special%20Situati ons/Previous%20Special%20Situations%20By%20Topic/ faq-interim-student-relie f-hurricane-katrina. pdf(last visited Nov. 19, 20 14). OHS a1mounced that it would grant deferred action to these students "based on the fact that [their] failure to maintain status is directly due to Hurricane Katrina." Id. at 7. To app ly fo r deferred action under this program, students were required to send a letter substantiating their need for deferred action, a long with an application for work authorization. Press Release, USC IS, USC!S Announces Interim Relieffor Foreign Students Adversely Impacted by Hurricane Katrina at 1-2 (Nov. 25 , 2005), available at http://www.uscis.gov/sites/defau lt/fi les/files/pressrelease/F I Student_ l 1_25_ 05_ PR.pdf (last visited Nov. 19, 2014). USC IS explained that such
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requests for deferred action would be " decided on a case-by-case basis" and that it could not "provide any assurance that all such requests will be granted." Id. at I.
4. Deferred Action for Widows and Widowers of U.S. Citizens. In 2009, DHS implemented a deferred action program for certain w idows and w idowers of U.S. citizens. USCIS explained that "no av_enue of immigration rel ief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death" and USCIS had not yet adjudicated a visa petition on the spouse's behalf. Memorandum for Field Leadership, USC!S, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at I (Sept. 4, 2009). " In order to address humanitarian concerns arising from cases involving surviving s pouses of U.S. citizens," USCJS issued guidance permitting covered s urviving spouses and "their qual ifying chi ldren who are residing in the United States" to apply for deferred action. Id. at 2, 6. VSCIS clarified that such relief would not be automatic, but rather would be unava ilable in the presence of, for example, "serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons." Id. at 6.7
5. Deferred Action for Childhood Arrivals. Announced by OHS in 2012, DACA makes deferred action available to "certain young people who were brought to this country as chi ldren" and therefore " [a]s a general matter ... lacked the intent to violate the law." Memorandum fo r David Aguilar, Acting Commissioner, CBP, et a l. , from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at l (June 15, 20 12) ("Napolitano Memorandum"). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in ·the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 20 12; satisfies certain educational or military service requirements; and neither has a serious criminal history nor "poses a threat to national security or public safety." See id. OHS evaluates applicants' eligibility fo r DACA on a case-by-case bas is. See id. at 2; USC IS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (" DACA Toolkit"). Successful DACA applicants receive deferred action for a
1 Several months after the deferred action program was announced, Congress eliminated the requirement that an alien be married to a U.S. citizen "for at least 2 years at the time of the citizen's death" to retain his or her eligibility for lawful immigration status. Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its surviving spouse guidance "obsolete," USCIS withdrew its earlier guidance and treated all pending applications for deferred action as visa petitions. See Memorandum for Executive Leadership, USCIS. from Donald Neufeld, Acting Associate Director, USCIS, ct al. , Re: Addi!ional G11idance Regarding Surviving Spo11ses of Deceased U. S. Citi=ens and Their Children (REVISED) at 3, IO (Dec. 2, 2009).
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period of two years, s ubject to renewal. See DACA Toolkit at 11. OHS has stated that grants of deferred action under DACA may be term inated at any time, id. at 16, and "confer[] no substanti ve right, im migration status or pathway to c itizensh ip," Napolitano Memorandum at 3.'
Congress has long been aware of the practice of granting deferred action, including in its categorical vari ety, and of its salient features; and it has never acted to disapprove or limit the practice.0 On the contrary, it has enacted several pieces of legislation that have e ither assumed that deferred action would be available in cettain circumstances, or express ly directed that deferred action be extended to certain categories of aliens. For example, as Congress was considering VAWA reautliorizati on legislation in 2000, INS officials testi fied before Congress about their deferred action program for VA WA self-petitioners, explaining that "[a]pproved [VA WA] self-petitioners are placed in deferred acti on status," such that "[n]o battered alien who has filed a[n approved] self petition ... has been deported." H.R. 3083 Hearings at 43 . Congress responded by not only acknowledging but also expanding the deferred action program in the 2000 YAWA reauthorization legislation, providing that children who could no longer selfpetition under VAWA because they were over the age of 2 1 wou ld nonetheless be "eligible for defetTed action and work authorization ." Victims of Trafficking and
' Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United Stales as a child in exercising their discretion to grant deferred action in individual cases. We explained, however. that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs. the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily gui ded the exercise of immigration enforcement discretion.
9 Congress has considered legislation that would limit the practice of granting deferred action, but it has never enacted such a measure. In 2011, a bill was introduced in both the House and the Senate that would have temporarily suspended OHS 's authority to grant deferred action except in narrow circumstances. See H.R. 2497, I 12th Cong. (2011): S. 1380, I 12th Cong. (2011). Neither chamber, however, voted on the bil l. This year, the House passed a bill that purported to bar any fu nding for DACA or other class-wide deferred action programs, 1-1.R. 5272, I13th Cong. (20 14), but the Senate has not considered the legislation. Because the Supreme Court has instructed that unenacted legislation is an unreliable ind icator of legislative intent, see Red lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969). we do not draw any inference regarding congressional 'policy from these unenacted bills.
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Violence Protection Act of 2000, Pub. L. No. 106-386, § 1503(d)(2), 11 4 Stat.
1464, 1522 (codified at 8 U.S.C. § l 154(a)(l )(D)(i)(Il), (IV)).1"
Congress demonstrated a similar awareness of INS's (and later DHS 's) deferred action program fo r bona fide T and U visa app licants. As discussed above, that program made deferred action available to nearly all individuals who could
make a prima facie show ing of eligibility for a T or U visa. In 2008 legislation,
Congress authorized OHS to "grant ... an adm in istrative stay of a fina l order of removal" to any such individual. W illiam Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub. L. No. 11 0-457, § 204, 122 Stat. 5044, 5060 (codified at 8 U.S.C. § 1227(d)( l )). Congress further clarified that
"[t]he denia l of a request fo r an admin istrative stay of removal under this subsection shall not preclude the a lien from apply ing for ... deferred action." id. It also directed OHS to compile a report detailing, among other things, how long DHS 's "specially trained [YAWA) Unit at the [USC IS) Vermont Service Center" took to adjudicate victim-based immigration appl ications for "deferred action," along w ith "steps taken to improve in th is area." Id § 238 . Representative Berman, the bi ll's sponsor, explained that the Vermont Service Center should "strive to issue work authorization and deferred action" to " [i]mmigrant victims of domestic violence, sexua l assault and other violence crimes . .. in most instances within 60 days of filing." 154 Cong. Rec. 24603 (2008).
In additi on, in other enactments, Congress has specified that certain classes of individuals should be made " el igib le for deferred action." These classes include certain immediate family members of LPRs who were killed on September 11, 200 I , USA PATRJOT Act of 200 I, Pub. L. No. I 07-56, § 423(b), 11 5 Stat. 272, 361, and ce1iain immediate family members of certain U.S. citizens killed in combat, Nationa l Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)--(d), 117 Stat. 1392, 1694. ln the same legislation, Congress made these individuals eligible to obtain lawful status as "family-sponsored imm igrant[s]" or " immediate relative[s)" of U.S. citizens. Pub. L. No. I 07-56, § 423(b), I 15 Stat. 272, 36 1; Pub. L. No. I 08-1 36, § 1703 (c)( I )(A), 117 Stat. 1392, 1694; see generally Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2 197 (2014) (plurali ty opinion) (explaining which a liens typica lly qualify as fam ilysponsored im migrants or immediate relatives).
Finally, Congress acknowledged the practi ce of granting deferred action in the REAL ID Act of 2005, Pub. L. No. I09- 13, div. B, 11 9 Stat. 23 1, 302 (codified at

III Five years later, in the Violence Against Women and Department of Justice Reauthorization Act

or 2005, Pub. L. No. 109- 162, 119 Stat. 2960, Congress specified that, "[u]pon the approval of a

petition as a VAWA self-petitioner, the alien . . . is eligible for work authorization." Id § 8 14(b) (codified at 8 U.S.C. § I154(a)(l )(K)). One of the Act's sponsors explained that while this provision

L

was intended to "give[] OHS statutory authority to grant work authorization . .. without having to rely

upon deferred action . .. [t]he current practice of granting deferred action to approved VAWA self-

petitioners should continue." 151 Cong. Rec. 29334 (2005) (statement of Rep. Conyers).

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49 U.S.C. § 3030 1 note), which makes a state-issued driver's license or identification card acceptable for federal purposes only if the state verifies, among other things, that the card's recipient has " (e]vidence of [!]awful [s]tatus." Congress specified that, for this purpose , acceptab le evidence of lawful status includes proof of, among other th ings, citizenship, lawful permanent or temporary residence, or "approved deferred action statu s." Id § 202(c)(2 )(B)(viii ).
B.
The practice of granting deferred action, like the practice of setting enforcement priorities, is an exercise of enforcement dis cretion rooted in DHS 's authority to enforce the immigration laws and the President' s duty to take care that the laws are faithfu lly executed. It is one of several mechanisms by which immigration officials, against a backdrop of limited enforcement resources, exercise their "broad discretion" to administer the removal system- and, more specifically, their discretion to determine whether " it makes sense to pursue removal" in particular c ircumstances. Arizona, 132 S. Ct. at 2499.
Deferred action, however, differs in at least three respects from more familiar and wides.pread exercises of enforcement discretion. First, unlike (for example) the paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral of deferred action does not represent a deci s ion not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly to lerate an undocumented ali en 's continued presence in the United States for a fixed period (subject to revocation at the agency's discretion). Second, unlike niost exercises of enforcement discretion, deferred action carries with it benefits in addition to nonenforcement itself; specifically, the ability to seek employment authorization and suspension of unlawfu l presence for purposes of 8 U.S.C. § l l 82(a)(9)(B)(i) and (a)(9)(C)(i)(J) . Third, class-based deferred action programs, like those for VA WA recipients and victims of Hurri cane Katrina, do not merely enable individual immigration officials to select deserving beneficiaries from among those aliens who have been identified or apprehended for possible removal-as is the case with ad hoc deferred action-but rather set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status.
While these features of deferred action are somewhat unusual among exercises of enforcement discretion, the differences between deferred action and other exercises of enforcement discretion are less significant than they might initially appear. The first feature-the toleration of an alien's continued unlawful presence- is an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully present alien-even through an exercise of routine enforcement discretion-necessarily carries w ith it a tacit acknowledgment that the alien w ill continue to be present in the United States w ithout legal status. Deferred action arguably goes beyond such tacit acknowledgment by expressly communicating to the a lien that his or her unlawful
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presence w ill be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fundamentally transform deferred action into something other than an exercise of enforceme nt discretion : As we have previously noted, deferred action confers no lawfu l immigration status, provides no path to lawful permanent residence or citizenship, and is revocable at any time in the agency's discretion.
With respect to the second feature, the additional benefits deferred action confers-the ability to app ly for work authorization and the tolling of unlawful presence-do not depend on backgrow1d princip les of agency discretion under DHS's general immigration authorities or the Take Care Clause at all, but rather depend on independent and more specific statutory authority rooted in the text of the fNA. The first of those authorities, OHS 's power to prescribe wh ich aliens are authori zed to work in the United States, is grounded in 8 U.S.C. § I324a(h)(3), which defines an " unauthorized alien" not entitled to work in the United States as an alien who is neither an LPR nor "authorized to be ... employed by [the fNA] or by the Attorney General [now the Secretary of Homeland Security]." This statutory provision has long been understood to recognize the authority of the Secretary (and the Attorney General before him) to grant work authorization to particular c lasses of aliens. See 8 C.F.R. § 274a.12; see also Perales v. Casi!!as, 903 F.2d 1043, 1048- 50 (5th C ir. 1990) (describing the authority recognized by section 1324a(h)(3) as " permissive" and largely " unfettered").11 Although the INA
11 Section 1324a(h)(3) was enacted in 1986 as part of !RCA. Before then, the INA contained no provis ions comprehensively addressing the employment of aliens or expressly delegating the authority to regulate the employment of aliens to a responsible federal agency. INS assumed the authority to prescribe the classes of aliens authorized to work in the United States under its general responsibility to administer the immigration laws. In 1981 , INS promulgated regulations codifyi ng its existing procedures and criteria for granting employment authorization. See Employment Authori=ation to Al,ens in the United States, 46 Fed. Reg. 25079, 25080-81 (May 5, 1981 ) (citing 8 U.S.C. § I 103(a)). Those regulations pennitted certain categories of aliens who lacked lawful immigration status, including deferred action recipients, to apply for work authorization under certain circumstances. 8 C.F.R. § I09.1(b)(7) (1982). In !RCA, Congress introduced a "comprehensive scheme prohibiting the employment of illegal aliens in the United States," Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced primarily through criminal and civil penalties on employers who knowingly employ an "unauthorized alien." As relevant here, Congress defined an "unauthorized alien" barred from employment in the United States as an alien who "is not . . . either (A) an alien lawful ly admined for permanent residence, or (8) authorized to be so employed by this chapter or by rhe AllorneyGenera/." 8 U.SC. § 1324a(h)(3) (emphasis added). Shortly after !RCA was enacted, INS denied a petition to rescind its employment authorization regulation, rejecting an argument that "the phrase 'authorized to be so employed by this Act or the Anorney General' does not recognize. the Attorney General 's authority to grant work authorization except to those aliens who have already been granted specific authorization by the Act. " Employment Authori=ation; Classes of Aliens Eligible, 52 Fed. Reg. 46092, 46093 (Dec. 4, 1987). Because the same statutorY phrase refers both to aliens authorized lo be employed by the INA and aliens authorized to be employed by the Attorney General. INS concluded that the onl y way to give effect to both references is to conclude "that Congress, being full y aware of the Anorney General's authority to promulgate regulations, and approving of the manner in wh ich he has exercised that authority in this matter, defined 'unauthorized alien' in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the
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requires the Secretary to grant work authorization to particular classes of aliens, see, e.g , 8 U.S.C. § l 158(c)(l)(B) (aliens granted asylum), it places few lim itations on the Secretary's authority to grant work authorization to other classes of aliens. Further, and notably, additiona l provisions of the INA expressly contemplate that the Secretary may grant work authorization to aliens lacking lawful immigration status--even those who are in active removal proceedings or, in certain circumstances, those who have already received fi nal orders of removal. See id. § 1226(a)(3) (permitting the Secretary to grant work authorization to an otherwise work-e ligible alien who has been arrested and detained pendit1g a decision whether to remove the alien from the United States); id. § 123 1(a)(7) (pennitting the Secretary under certain narrow circumstances to grant work authorization to al iens who have received final orders of removal). Consistent with these provisions, the Secretary has long permitted certain additional classes of aliens who lack lawful imm igration status to apply for work authorization, including deferred action recipients who can demonstrate an economic necessity
for employment. See 8 C.F.R. § 274a. 12(c)( 14); see also id § 274a. l 2(c)(8) (applicants for asylum), (c)(IO) (app licants for cancellation of removal); supra
note 11 (discussing 1981 regulations). The Secreta1y's authority to suspend the accrual of unlawful presence of de-
ferred action recipients is similarly grounded in the INA. The relevant statutory provision treats an alien as " unlawfully present" for purposes of 8 U.S.C.
§ l 182(a)(9)(B)(i) and (a)(9)(C)(i)(I) ifhe "is present in the United States after the
expiration of the period of stay authorized by the Attorney General." 8 U.S.C. § I l 82(a)(9)(B)(ii). That language contemplates that the Attorney General (and now the Secretary) may authorize an alien to stay in the United States without accruing unlawful presence under section l l 82(a)(9)(B)(i) or section I l 82(a)(9)(C)(i) . And OHS regulations and policy guidance interpret a "period of stay authorized by the Attorney General" to include periods during which an alien has been granted deferred action. See 8 C.F.R. § 2 14.14(d)(3); 28 C.F.R. § I 100.35(b)(2); USCJS Consolidati on of Guidance at 42.
The final unusual feature of deferred action programs is pa11icular to classbased programs. The breadth of such programs, in combination with the first two features of deferred action, tnay raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system rather than simply adapting its appl ication to indi vidual circumstances. But the salient feature of class-based programs- the establishment of an affirmative application process with threshold e ligibility criteria-does not in and of itself cross the line between executing the law and rewriting it. A lthough eve1y c lasswide deferred action program that has been imp lemented to date has established
regulatory process, in addition to those who are authorized employment by statute." Id. ; see Commodity Futures Trading Co111111 '11 v. Schor, 478 U.S . 833. 844 ( 1986) (stating that "considerable weight must be accorded" an agency' s "contemporaneous interpretation of the statute it is entrusted to administer" ).
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certain threshold e lig ibi lity criteria, each program has also left room for case-bycase determinations, giving immigration officials discretion to deny applications even if the applicant fu lfi lls a ll of the program criteria. See supra pp. 15-18. Like the establishment of enforcement priorities discussed in Part I, the establishment of threshold eligibility criteria can serve to avoid arb itrary enforcement decisions by individual officers, thereby furthering the goal of ensuring consistency across a large agency. T he guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of al iens who are automatically entitled to particular immigration relief. See Crowley Caribbean Transp , 37 F.3d at 676- 77; see also Chaney, 470 U.S. at 833 n.4. Furthennore, whi le permitting potentially e ligib le individuals to apply fo r an exercise of enforcement discretion is not especially common, many law en forcement agencies have developed programs that invite violators of the law to identify themselves to the authorities in exchange fo r len iency. 12 Much as is the case with those programs, inviting eligible aliens to identify themselves through an app lication process may serve the agency' s law enforcement interests by encouraging lowerpriority individuals to identify themselves to the agency. In so doing, the process may enab le the agency to better focus its scarce resources on higher enforcement priorities.
Apart from the considerations just discussed, perhaps the clearest indication that these features of deferred action programs are not per se impenn issib le is the fact that Congress, aware o f these features, has repeatedly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made e ligib le for deferred action programs- and in at least one instance, in the case of VA WA beneficiaries, directed the expansion of an ex isting program-but also ranked evidence of approved deferred action status as evidence of " lawful status" for purposes of the REAL ID Act. These enactments strong ly suggest that when OHS in the past has decided to grant deferred action to an ind iv idual or class of in dividuals, it has been acting in a manner consistent w ith congressional policy " 'rather than embarking on a fro lic of its own."' United States v. Riverside Bayview Homes, Inc., 474 U.S . 121, 139

12 For example, since 1978, the Department of Justice's Antitrust Division has implemented a

·'leniency program·· under which a corporation that reveals an antitrust conspiracy in which it

participated may receive a conditional promise that it will not be prosecuted. See Dep't of Justice,

Frequent(v Asked Questions Regarding the Anritrusl Division 's leniency Program and Model leniency

lellers (November 19, 2008), available at http://www.justicc.gov/atr/public/criminal/239583.pdf (last

visited Nov . 19. 20 14): see also Internal Revenue Manual § 9.5 .11.9(2) (Revised IRS Voluntary

Disclosure Practice). available at http://www.irs.gov/uac/Revised-1RS-Voluntary-Disclosure-Practice (last visited Nov. 19, 20 14) (explaining that a taxpayer's voluntary disclosure of misreported tax information "may result in prosecution not being recommended"): U.S. Marshals Serv ice, Fugitive Safe Surrender FAQs. available at http://www.usmarshals.gov/safesurrendcr/faq s.html (last visited Nov. 19. 2014) (stating that fugi tives who surrender at designated sites and times under the " Fugitive Safe

I
~

Surrender'· program are likely to receive "favorable consideration").

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Opinions of the Office ofLegal Counsel in Volume 38
( 1985) (quoting Red Lion Broad Co. v. FCC, 395 U.S. 367, 375 (1969)); cf id at 13 7- 39 (concluding that Congress acquiesced in an agency 's assertion of regulatory authority by " refus[ing] ... to overrule" the agency's view after it was specifical ly "brought to Congress' [s] attention," and furth er finding implicit congressional approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress " im plicit ly approved the practice of claim settlement by executive agreement" by enacting the International Claims Settlement Act of 1949, which "create[d] a procedure to implement" those very agreements).
Congress's apparent endorsement of certain deferred action programs does not mean, of course, that a deferred action program can be lawfully extended to any group of aliens, no matter its characteristics or its scope, and no matter the circumstances in which the program is implemented. Because deferred action, like the prioritization policy discussed above, is an exercise of enforcement discretion rooted in the Secretary's broad authority to enforce the immigration laws and the President's duty to take care that the laws are faithfu lly executed, it is subject to the same four general principles prev iously discussed. See supra pp. 6- 7. Thus, any expansion of deferred action to new c lasses of aliens must be carefully scrutinized to ensure that it reflects considerations within the agency 's expe11ise, and that it does not seek to effectively rewrite the laws to match the Executive's policy preferences, but rather operates in a manner consonant w ith congressional policy expressed in the statute. See supra pp. 6- 7 (citing Youngstown, 343 U.S. at 637, and Nat 'f Ass 'n of Home Builders, 551 U.S. at 658). Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra p. 7 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a pai1icular case warrants the expenditure of resources for enforcement. See supra p . 7 (citing Glickman, 96 F.3d at 11 23, and Crowley Caribbean Tramp., 37 F.3d at 676-77).
Furthermore, because deferred action programs depart in certain respects from more familiar and widespread exercises of enforcement discretion, pai1icularly careful examination is needed to ensure that any proposed expansion of defeITed action complies with these general principles, so that the proposed program does not, in effect, cross the line between executing the law and rewriting it. In ana lyzing whether the proposed programs cross this line, we w ill draw substantial guidance from Congress's history of leg islation concerning deferred action. In the absence of express statutory guidance, the nature of deferred action programs Congress has implicitly approved by statute helps to shed light on Congress's own understandings about the permissible uses of deferred action. Those understandings, in turn, help to inform our consideration of whether the proposed deferred action programs are " faithful[]" to the statutory scheme Congress has enacted. U.S. Const. art. II ,§ 3.
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DJ-JS 's Authorily to Priorilize Removal ofCerlain Aliens Unlawfully Present
c.
We now tum to the specifics of DHS's proposed deferred action programs. OHS has proposed implementing a pol icy under which an alien could app ly for, and would be eligible to receive, deferred action if he or she : ( 1) is not an enforcement priority under OHS policy; (2) has continuous ly resided in the United
States s ince before January 1, 20 IO; (3) is physically present in the Un ited States
both when DHS announces its program and at the time of application fo r defe1Ted action ; (4) has a child who is a U .S. citizen or LPR; and (5) presents " no other facto rs that, in the exercise of discretion, make[] the grant of deferred action inappropriate." Johnson Deferred Action Memorandum at 4. You have also asked about the permissibility of a s imilar program that wou ld be open to parents of ch ildren who have received deferred action under the DACA program . We first address OHS 's proposal to implement a defe1Ted action program fo r the parents of U.S. c itizens and LPRs, and then turn to the permissib ility of the program for parents of DACA rec ipients in the next section.
I.
We begin by considering whether the proposed program for the parents of U .S. citizens and LPRs reflects considerations with in the agency's expertise. DHS has offered two j ustifi cations for the proposed program for the parents of U.S. citizens and LPRs. First, as noted above, severe resource constraints make it inevitable that D HS will not remove the vast majori ty of aliens who are unlawfully present in the Un ited States. Consistent w ith Congress's instruction, DHS prioritizes the remova l of individuals who have s ignifica nt crimina l records, as well as others who present
dangers to national securi ty, pub lic safety, or border securi ty. See supra p. IO.
Parents with longstand ing ties to the country and who have no significant criminal records or other risk fac tors rank among the agency's lowest enforcement priorities; absent s ignificant increases in funding, the likel ihood that any in dividual in that category wi ll be determined to warrant the expend iture of severely lim ited enfo rcement resources is very low. Second, DHS has expla ined that the program would serve an important hum anitarian interest in keep ing parents together with ch ildren who are lawfull y present in the United States, in situations where such parents have demonstrated sign ificant ties to com munity and fam ily in this country. See Shahoulian E-mail.
With respect to OHS' s first j ustification, the need to efficiently allocate scarce enforce ment resou rces is a quintessential basis for an agency's exerc ise of
enforcement discretion. See Chaney, 470 U.S . at 831. Because, as discussed
earlier, Congress has appropriated only a small fraction of the fun ds needed fo r full enforcement, OHS can remove no more than a small fraction of the individuals who are removable under the imm igration laws. See supra p. 9. T he agency must therefore make choices about which violations of the immigr ation laws it
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Opinions of the Office of Legal Counsel in Volume 38
w ill prioritize and pursue. And as Chaney makes clear, such choices are entrusted largely to the Executive' s discretion. 470 U.S . at 83 1.
The deferred action program OHS proposes wou ld not, of course, be costless. Processing applications for deferred action and its renewal requires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scal ia, J., concurring in part and dissenting in part). But OHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees. See Shahoulian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)( l )(i)(C), (b)( l )(i)(HH). OHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP-the enforcement arms of OHS- wh ich rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. OHS has explained that, if anything, the proposed deferred action program might increase ICE's and CBP's efficiency by in effect using USCIS's fee- funded resources to enable those enforcement divisions to more easily identify non-priority al iens and focus their resources on pursuing a liens who are strong candidates for removal. See id. The proposed program, in sho1i, might help OHS address its severe resow·ce limitations, and at the very least likely would not exacerbate them . See id
DHS does not, however, attempt to j ustify the proposed program solely as a cost-saving measure, or suggest that its lack of resources alone is sufficient to j ustify creating a defe1Ted action program for the proposed class. Rather, as noted above, OHS has explained that the program would also serve a paiiicularized human itarian interest in promoting family unity by enabling those parents of U. S. citizens and LPRs who are not otherwise enforcement priorities and who have dem onstrated community and family ties in the United States (as evidenced by the length of time they have remained in the country) to remain united w ith their children in the United States . Like determining how best to respond to resource constraints, determining how to address such "human concerns" in the imm igration context is a consideration that is generally understood to fa ll within OHS's expertise. Arizona, 132 S. Ct. at 2499 .
This second justification for the program also appears consonant with congressional policy embod ied in the INA. Numerous provisions of the statute reflect a paiiicu lar concern w ith uniting aliens w ith close relatives w ho have attain ed lawful immigration status in the United States. See. e.g., Fiallo v. Bell, 430 U .S. 787, 795 n.6 ( 1977); INS v. Errico, 385 U.S. 214, 220 n.9 (1966) ('"The legislative history of the Immigration and Nationality Act clearly indicates that the Congress .. . was concerned with the problem of keeping families of United States citizens and immigrants united."' (quoting H.R. Rep. No. 85-1199, at 7 ( 1957)). The !NA provides a path to lawfu l status for the parents, as well as other immediate relatives, of U.S. citizens: U.S. c itizens aged twenty-one or over may petition fo r parents to obtain visas that would permit them to enter and permanently reside
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DHS 's Authority to Prioritize Removal o/Certain Aliens Unlawfidly Present
in the Un ited States, and there is no li mit on the overall number of such petit ions that may be granted . See 8 U.S.C. § l 15l(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2 197- 99 (describing the process for obtaining a fam ily-based immigrant visa). And although the INA contains no parallel provision permitting LPRs to petition on behalf of their parents, it does provide a path for LPRs to become ci tizens, at which point they too can petition to obtain visas for their parents. See, e.g. , 8 U.S.C. § 1427(a) (providing that a liens are generally eligible to become naturalized c itizens after five years of lawful permanent residence); id. § 1430(a) (alien spouses of U.S. citizens become eligible after three years of lawful permanent residence); Demore v. Kim, 538 U.S. 510, 544 (2003)." Add itiona lly, the INA empowers the Attorney General to cancel the removal of, and adj ust to lawful permanent resident status, aliens who have been physically present in the United States for a continuous period of not less than ten years, exh ibit good moral character, have not been convicted of specified offenses, and have immed iate relatives who are U. S. c itizens or LPRs and who would suffer exceptional hardsh ip fro m the alien 's removal. 8 U.S.C. § 1229b(b)(l). DHS's proposal to focus on the parents of U.S. citizens and .LPRs thus tracks a congressional concern, expressed in the INA, w ith uniting the immediate families of indiv iduals who have pennanent legal ties to the United States.
At the same time, because the temporary relief OHS 's proposed program would confer to such parents is sharply limited in comparison to the benefits Congress has made avai lable through statute, DH S's proposed program would not operate to circumvent the limits Congress has placed on the availability of those benefits. The statutory provisions discussed above offer the parents of U. S. citizens and LPRs the prospect of permanent lawful status in the Un ited States. The cancellation of removal prov ision, moreover, offers the prospect of receiving such status
1.1 The INA does permit LPRs to petition on behalf of their spouses and children even before they have anained citizenship. See 8 U.S.C. § l 153(a}(2). However, the exclusion of LPRs' parents from th is provision does not appear to reflect a congressional judgment that, until they anain citizenship, LPRs lack an interest in being united with their parents comparable to their interest in being united with their other immediate relatives. The distinction between parents and other relatives originated with a 1924 statute that exempted the wives and minor children of U.S. citizens from immigration quotas, gave "prelerence status"---eligibility for a specially designated pool of immigrant visas-to other relatives of U.S. citizens, and gave no favorable treatment to the relatives of LPRs. Immigration Act of 1924, Pub. L. No. 68-139, §§ 4(a}, 6, 43 Stat. 153, 155-56. In 1928, Congress extended preference status to LPRs' wives and minor children. reasoning that because such relatives would be eligible for visas without regard to any quota when their LPR relatives became citizens, granting preference status to LPRs ' wives and minor ch ildren would ·'hasten[]" the "family reunion. " S. Rep. No. 70-245, at 2 (1928): see Act of May 29, 1928. ch. 91 4, 45 Stat. I009, 1009- 10. The special visa status for wives and children of LPRs thus mirrored, and was designed to comple1i1ent, the special visa status given to wives and minor children of U.S. citizens. In 1965, Congress eliminated the basis on which the distinction had rested by exempting all "immediate relatives" of U.S. citizens, including parents. from numerical restrictions on immigration. Pub. L. No. 89-236, § I. 79 Stat. 911 , 91 1. But it did not amend eligibility for preference status for relatives of LPRs to reflect that change. We have not been able to discern any rationale for this omission in the legislative history or statutory text of the 1965 law.
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immediately, w ithout the delays genera lly associated with the family-based immigrant visa process. DHS's proposed program, in contrast, would not grant the parents of U.S. citizens and LPRs any lawful immigration status, provide a path to pe1111anent residence or citizenship, or otherwise confer any legally enforceable entitlement to remain in the United States. See USCl S SOP at 3. It is true that, as we have discussed, a grant of deferred action would confer eligibility to apply fo r and obtain work authorization, pursuant to the Secretary ' s statutory authority to gran t such authorization and the longstanding regulations promulgated thereunder. See supra pp. 13, 2 1-22. But unlike the automatic employment eligibility that accompanies LPR status, see 8 U.S.C. § 1324a(h)(3), this authorization could be granted only on a show ing of economic necessity, and wou ld last only for the limited duration of the de ferred action grant, see 8 C.F.R. § 274a. 12(c)(l4).
The other sa lient features of the proposal are similarly consonant with congressional policy. T he proposed program would focus on parents who are not enforcement priorities under the prioritization policy discussed above-a policy that, as explained earlier, comports with the removal priorities set by Congress. See supra p . I0. The continuous residence requirement is likewise consistent with legislative j udgments that extended periods of continuous res idence are indicative of strong fam ily and commun ity ties. See IRCA, Pub. L. No. 99-603, § 20l (a), 100 Stat. 3359, 3394 ( 1986) (codified as amended at 8 U.S.C. § I 255a(a)(2)) (granting lawfu l status to certain aliens unlawfully present in the United States si nce January 1, 1982); id. § 302(a) (codified as amended at 8 U.S.C. § 1160) (granting sim ila r relief to certain agricultural workers) ; H.R. Rep. No. 99-682, pt. l, at 49 ( 1986) (stating that aliens present in the United States for five y ears "have become a part of their commun ities[,] ... have strong fami ly ties here wh ich include U.S . citizens and lawful residents[,] ... have built social networks in th is country[, and] ... have contributed to the United States in myriad ways"); S. Rep. No . 99-1 32, at 16 ( 1985) (deporting aliens w ho " have become well settled in th is country" would be a " wastefu l use of the Immigration and Naturalization Service's limited enforcement resources"); see also Arizona, 13 2 S . Ct. at 2499 (noting that " [t]he equities of an individu al case" turn on factors " including whether the alien has . . . long ties to the c o m m u n ity").
We also do not believe DHS's proposed program amounts to an abdication of its statutory responsibi lit ies, or a legislat ive rule overriding the commands of the statute. As discussed earlier, DHS's severe resource constraints mean that, unless circumstances change, it could not as a pract ical matter remove the vast majority of removable a liens present in the United States. The fact that the proposed program would defer the removal of a subset of these removable aliens-a subset that ranks near the bottom of the list of the agency' s removal priorities-thus does not, by itself, demonstrate that the program amounts to an abdication of DHS 's responsibi lities. And the case-by-case discretion given to immigration officials under DH S's proposed program a lleviates potential concerns that OHS has
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abdicated its statutory en forcement responsibil ities with respect to, or created a categorical, rule-l ike entitlement to immigration relief for, the particular class of al iens elig ible for the program. An alien w ho meets a ll the criteria for deferred acti on under the program wou ld receive deferred action only if he or she "present[ed] no other factors that, in the exercise of d iscretion," would "make[] the grant of deferred action inappropriate." Johnson Deferred Action Memorandum at 4. T he proposed policy does not specify what wo uld count as such a factor; it thus leaves the re levant USCJS official with substantial discretion to determ ine whether a grant of deferred action is warranted. In other words, even if an a lien is not a removal priority under the proposed policy discussed in Part I, has continuously resided in the Un ited States since before January I, 20 I0, is physically present in the country, and is a parent of an LPR or a U.S. citi zen, the USCJS official evaluating the alien's deferred action app lication must still make a judgment, in the exerc ise of her discretion, about whether that alien presents any other factor that would make a grant of deferred action inappropriate. This feature of the proposed program ensures that it does not create a categorical entit lement to deferred action that cou ld raise concerns that OHS is e ither impe1missibly attempting to rewri te or categorically declining to enforce the law with respect to a particular group of undocumented a liens.
Finally, the proposed deferred action program would resemb le in materia l respects the kinds of deferred action programs Congress has implicitly approved in the past, wh ich provides som e indication that the proposal is consonant not only with interests reflected in im migration law as a general matter, but also w ith congressiona l understand ings about the permissible uses of defe rred action. As noted above, the program use s defe1Ted action as an interim measure for a group o f al iens to whom Congress has g iven a prospective entitlement to lawfu l imm igration status. While Congress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status " takes time." Cuellar de Osorio, I34 S. Ct. at 2 I99. The proposed program would provide a mechanism for fa milies to re main together, depending on their c ircum stances, for some or all o f the intervening period .'" Immigration officials have on several
"DHS 's proposed program would likely not permit all potentially eligible parents to remain together with their children for the entire duration of the time unti l a visa is awarded. In particular, undocumented parents of adult citizens who are physicall y present in the country would be ineligible to adjust their status without first leaving the country if they had never been "inspected and admitted or paroled into the United States.·· 8 U.S.C. § 125S(a) (permitt ing the Attorney General to adjust to permanent resident status certain al iens present in the United States if they become eligible for immigrant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate abroad. See 1d. § 120 I(a): Cuellar de Osorio, 134 S. Ct. at 2197-99. But once such parents left the country, they would in most instances become subject to the 3- or JO-year bar under 8 U.S.C. § I I82(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained outside the country for the duration of the bar. DI-IS 's proposed program would nevertheless enable other famil ies to stay together without regard to the 3- or I0-year bar. And even as to those fam il ies with parents who would become subject to that bar. the proposed de ferred action program would have the effect of reducing the
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occasions deployed deferred action programs as interim measures fo r other classes of aliens with prospective entitlements to lawful immigration status, including VA WA self-petitioners, bona fide T and U visa applicants, certain immediate family members of certain U.S. citizens ki lled in combat, and certain immed iate family members of aliens killed on September 11, 200 I. As noted above, each of these programs has received Congress's implicit approval-and, indeed, in the case of VA WA self-petitioners, a direction to expand the program beyond its original bo unds. See supra pp. 18-20." In addition, much like these and other programs Congress has implicitly endorsed, the program serves substantial and particularized humanitarian interests. Removing the parents of U.S. citizens and LPRs- that is, of children who have established permanent legal ties to the United States-would separate them from their nuclear famil ies, potentia lly fo r many years, until they were able to secure visas through the path Congress has provided. During that time, both the parents and their U.S. citizen or LPR children would be deprived of both the economic support and the intangible benefits that fami lies provide .
We recognize that the proposed program would likely differ in size from these prior deferred action programs. Although DHS has indicated that there is no reliable way to know how' many eligible aliens would actua lly apply for or would be li kely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 mi llion individuals
could be e ligible to apply. See Shahoulian E-mail. We have thus considered
whether the size of the program alone sets it at odds with congressional policy or the Executive's duties under the Take Care Clause. In the absence of express statutory guidance, it is difficu lt to say exactly how the program's potential size bears on its permissibility as an exercise of executive enforcement discretion. But because the size of DHS's proposed program corresponds to the size of a population to which Congress has granted a prospective entitlement to lawful status

amount of time the fam ily had to spend apart, and could enable them to adjust the timing of their

separation according to, for example, their ch ildren's needs for care and support.

" Several extended voluntary departure programs have been animated by a similar rationale, and the most prominent of these programs also received Congress's implicit approval. In particular, as noted above, the Family Fairness policy, implemented in 1990, authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens granted legal status under IRCA- aliens who would eventually "acquire lawful permanent resident status" and be able to petition on behalf of their famil y members. Family Fairness Memorandum at I: see supra

pp. 14--15. Later _that year, Congress granted the beneficiaries of the Fami ly Fairness program an indefinite stay of deportation. See Immigration Act of 1990. Pub. L. No. 101 -649, § 301. 104 Stat.

I

4978, 5030. Although it did not make that grant of rel ief effective for nearly a year, Congress clarified that ·'the delay in effectiveness of this section shall not be construed as reflecting a Congressional belief that the existing famil y fairness program should be modified in any way before such date." Id.

l

§ 301 (g). INS"s policies for qualifying Third Preference visa appl icants and nurses el igible for H-1

nonirnrnigrant status likewise extended to aliens with prospective entitlements to lawful status. See

supra p. 14.

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without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS's proposal to grant a limited fom1 of administrative relie f as a temporary interim measure exceeds its enforcement discretion under the INA. Furthennore, while the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million Lmdocumented aliens who remain in the United States each year because OHS Jacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under OHS's proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exerc ises of deferred action of the size contemplated here, INS 's 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens-approximately four in tenpotentially eligible for discretionary extended voluntaiy departure relief. Compare CRS Immigration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Platming, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5 & 15 (discussing extended voluntary depatture and Congress's implicit approval of the Family Fairness policy). This suggests that DHS 's proposed defen-ed action program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a pe1111issible exercise of enforcement discretion in the immigration context.
In light of these considerations, we believe the proposed expansion of deferred action to the parents of U.S. citizens and LPRs is lawful. It reflects considerations- responding to resource constraints and to particularized humanitarian concerns arising in the immigration context- that fall within OHS's expertise. It is consistent with congressional policy, since it focuses on a group-law-abiding parents of lawfully present children who have substantial ties to the communitythat Congress itself has granted favorable treatment in the immigration process. The program provides for the exercise of case-by-case discretion, thereby avoiding creating a rule- like entitlement to immigration relief or abdicating OHS 's enforcement responsibilities for a particular class of aliens. And, like several deferred action programs Congress has approved in the past, the proposed program provides interim relief that would prevent particularized harm that could otherwise befall both the beneficiaries of the program and their families . We accordingly conclude that the proposed program would constitute a permissible exercise of OHS 's enforcement discretion under the INA.
2.
We now turn to the proposed deferred action program for the parents of OACA recipients. The relevant considerations are, to a certain extent, similar to those
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discussed above: Like the program for the parents of U.S. citizens and LPRs, the proposed program for parents of DACA recipients would respond to severe resource constraints that dramatically limit DHS' s ability to remove aliens who are unlawfully present, and would be limited to individuals who would be unlikely to be removed under DH S' s proposed prioritization po licy. And like the proposed program for LPRs and U .S. citizens, the proposed program for DACA parents would preserve a significant measure of case-by-case discreti on not to award deferred action even if the general eligibility criteria are satisfied.
But the proposed program for parents of DACA recipients is unlike the proposed program for parents of U.S. citizens and LPRs in two critical respects. First, although OHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are d ifferently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. Man y provisions of the INA reflect Congress's general concern with not separating indiv iduals who are legally entitled to live in the United States from their immediate family members. See, e.g., 8 U.S.C. § 115 1(b)(2)(A)(i) (permitting citizens to petition for parents, spouses and chi ldren); id.
§ I229b(b)( l) (allowing cancellation of removal for relatives of citizens and
LPRs). But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawfu I status) in the United States w ith their famil ies. OACA recipients unquestionably lack lawful status in the Un ited States. See DACA Toolkit at 8 (" Deferred action ... does not provide you with a lawful status."). Although they may presumptively remain in the United States, at least for the duration of the grant of deferred action, that grant is both time-limited and contingent, revocable at any time in the agency's discretion. Extending deferred action to the parents of DACA recipients wou ld therefore expand fami ly-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies .
Second, as it has been described to us, the proposed defened action program for the parents of DACA recipients would represent a significant departure from deferred action programs that Congress has implicitly approved in the past. Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtafoing visas, since Congress has not enab led them to self-petition- as it has for VA WA self-petitioners and indi viduals e lig ible fo r T or U visas-or enabled the ir undocumented chi ldren to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors , serve interests that are comparable to those that have prompted implementation of defe1Ted action programs in the past. Family unity is, as we have d iscussed, a s ignificant human itarian concern that underlies many provisions o f the IN A . But a concern with further ing fam ily unity a lone would not justify the
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proposed program, because in the absence of any family member with lawful status in the United States, it would not explain why that concern should be satisfied by permitting family members to remain in the United States. The decision to grant deferred action to DACA parents thus seems to depend critically on the earlier decision to make deferred action available to their children. But we are aware of no precedent for using deferred action in this way, to respond to human itarian needs rooted in earlier exercises of deferred action. The logic underlying such an expansion does not have a clear stopping point: It would appear to argue in favor of extending relief not only to parents of DACA recipients, but also to the close relatives of any al ien granted deferred action through DACA or any other program, those relatives' close relatives, and perhaps the relatives (and relatives' relatives) of any a lien granted any fom1 of discretionar9 relief from removal by the Executive.
For these reasons, the proposed deferred action program for the parents of DACA reci pients is meaningfully different from the proposed program for the parents of U.S. citizens and LPRs. It does not sound in Congress's concern for maintaining the integrity of families of individuals legally entitled to live in the United States. And unlike prior deferred action programs in which Congress has acquiesced, it would treat the Executive' s prior decision to extend deferred action to one population as justifying the extension of deferred action to additional populations. OHS, of course, remains free to consider whether to grant deferred action to individual parents of DACA recipients on an ad hoc basis. But in the absence of clearer indications that the proposed c lass-based deferred action program for DACA parents would be consistent with the congressional policies and priorities embodied in the immigration laws, we conclude that it would not be permissible.
Ill.
In sum, for the reasons set forth above, we conclude that OHS 's proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, but that the proposed defeITed action program for parents of DACA recip ients would not be permissible.
KARL R. THOMPSON Principal Deputy Assistant Attorney General
Office ofLegal Counsel
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EXHIBITK
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Case 3:17-cv-05235-MEJ Document 1-11 Filed 09/11/17 Page 2 of 4

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Case 3:17-cv-05235-MEJ Document 1-11 Filed 09/11/17 Page 3 of 4

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Case 3:17-cv-05235-MEJ Document 1-11 Filed 09/11/17 Page 4 of 4

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Case 3:17-cv-05235-MEJ Document 1-12 Filed 09/11/17 Page 1 of 5
EXHIBITL

Case 3:17-cv-05235-MEJ Document 1-12 Filed 09/11/17 Page 2 of 5
th e WHITE HOUSE PRESIDENTDONALDJ. TRUMP

From t he Press Office
Speeches & Remarks Press Briefings
I Statements & Releases
Nominations & Appointments Presidential Actions Legislati on Di s closures

The White House Office of the Press Secretary
For Immediat e Release

September 05, 201 7

Statement from President
Donald J. Trump

As Pres i dent, my highest duty is to defend the American people and the Constitu ti on of the United States of America. At the same t ime, I do not fa vo r punishin g chi ldren, most of whom are now adults, for the actions of thei r parents. But we m ust also recogn ize t hat we are nation of opportunity because we are a nation of laws.
The legislat ive bra nch, not th e execut ive branch, w rites th ese la ws - t hi s is th e bedrock of our Constituti ona l syst em , w hi ch I took a solem n oath to preserve, prot ect , and defend.

Case 3:17-cv-05235-MEJ Document 1-12 Filed 09/11/17 Page 3 of 5
In Jun e of 2012, President Obam a bypassed Congress to give work permits, soci al security numbers, and fede ral benefits t o ap proximate ly 800,000 illega l immigrants currently between t he ages of 15 and 36. The typ ical recip ient s of this executive amnesty, known as DACA, are in the ir t wenti es. Legislati on offering t hese same benef its had been introduced in Congress on n umerous occasions and rej ect ed each t ime.
In referenc in g the idea of creatin g new immigration rules unil at erally, President Obama admitted t hat "I ca n't j ust do th ese t hings by myse lf" - and yet that is exactly w ha t he did, making an end-run around Congress and violat ing t he core te nets th at susta in our Republ ic.
Officials from 10 St ates are suin g over t he program, requiring my Administration to make a decision rega rdin g its legality. Th e Atto rn ey General of the United States, the Attorneys General of many states, and virtu al ly all other to p legal experts have advised t hat t he program is unlawfu l and unconstitutional and cannot be successfully defended in court.
There ca n be no path t o princi pled im migration reform if the executi ve branch is ab le to rewrite or nu llify federal laws at w ill.
The temporary implementa t ion of DACA by the Obama Adm inist rat ion, after Co ngress repeated ly rejected this am nest y-first ap proac h, also helped spur a humanitarian crisis - the massive su rge of unaccompanied minors from Central America inclu di ng, in some ca ses, young peop le who would becom e members of violent ga ngs th roughout our co untry, such as MS-13.
Only by the rel iable enforce men t of immi gration la w can we produce safe commu nities, a robust middle class, and economic fairness for al l Americans.
Therefore, in the be st interests of our co untry, and in keeping w ith the ob ligations of my office, the Departmen t of Homeland Security wil l begin an orderly transition and w ind-down of DACA, one that provides minimum disruption. Wh il e new appl ications for work permits wi ll not be accepted, all existing work permits will be honored until t heir date of ex piration up to two full years from today. Furthermore, appl ication s already in the pipeline will be processed, as will renewal applicatio ns for those facing near-term exp iration. Thi s is a gra dual process, not a sud den phase out. Permi ts will not begin to expire for another six mo nths, and wi ll rem ain active for up to 24 months. Thu s, in effect , I am not going to j ust cut DACA off, but rather provi de a w indow of opportuni ty for Congress to fi nal ly act.

Case 3:17-cv-05235-MEJ Document 1-12 Filed 09/11/17 Page 4 of 5
Our enforcement priorities remain unchanged. We are focused on crim i nals, secu rity threats, recent border-crossers, visa overstays, and repeat violators. I have advised th e Depa rtment of Homeland Security that DACA recipients are not enforcement priorities unless they are crimina ls, are involved in criminal activity, or are m em bers of a gang.
The decades-long failure of Washington, D.C. to enforce federal immigration law has had both predictable and tragic consequences: lower wages and higher unemployment for America n workers, substantial burdens on local sch ools and hospita ls, t he ill icit entry of dangerous drugs and crimi nal cartels, and many billions of dollars a year i n costs paid for by U.S. taxpayers. Yet few in Washington expressed any compassion for th e mill ions of Americans victim ized by this unfair system. Before we ask what is fair to illegal immigrants, we must also ask what is fair to American families, students, taxpayers, and j obseekers.
Congress now has the opportunity to advance responsib le immigratio n reform tha t puts American jobs and American security first. We are facing the symptom of a larger problem, illegal immigration, along with the many other chronic immigration probl ems Wash in gton has left unsolved. We must reform our green card system, whi ch now favors low-skilled immigration and puts immense strain on U.S. taxpayers . We must base future immigration on merit - we want those coming into the country to be able to support themselves financi ally, to contribute to our economy, and to love our country and the val ues it stands for. Under a merit-based system, citizens will enjoy hi gher employment, rising wa ges, and a stronger middle class. Senators Tom Cotton and David Perdue have introduced the RAISE Act, which would establ ish this merit-based system and produce la stin g gains for the American Peop le.
I look forward to working with Republicans and Democrats in Congress to finally address all of these issues in a manner that puts the hardworking citizens of our country first.
As I've said before, we w ill reso lve the DACA issue with heart and compassion - but through the lawful Democratic process - while at the same time ensuring that any imm igration reform we adopt provid es end uring benefits for the American citizens we were elected to serve. We must also have heart and compassion for un employed, struggl ing, and forgotten Americans.

Case 3:17-cv-05235-MEJ Document 1-12 Filed 09/11/17 Page 5 of 5
Above all else, we must remembe r t hat yo un g Ameri cans have dreams t oo . Being in government means setting priorit ies. Our f irst an d highest pri ority in advancing immigration reform must be t o improve j obs, wages and security for Amer ica n wo r kers and the ir fa mi lies. It is now t ime fo r Co ngress to act!
HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN USA.gov Privacy Policy Copyright Policy

Case 3:17-cv-05235-MEJ Document 1-13 Filed 09/11/17 Page 1 of 4
EXHIBITM

Case 3:17-cv-05235-MEJ Document 1-13 Filed 09/11/17 Page 2 of 4
JUSTICE NEWS
Attorney General Sessions Delivers Remarks on DACA Washington , DC - Tuesday, September 5, 2017
Remarks as prepared for delivery
Good morning . I am here today to announce that the program known as DACA that was effectuated under the Obama Administra tion is being rescinded. The DACA program was implemented in 2012 and essentially provided a legal status for recipients for a renewable two-year term, work authorization and other benefits, including participation in the social security program , to 800,000 mostly-adult illegal aliens. This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens. In other words. the executive branch, through DACA. deliberately sought to achieve what the legislative branch speci fically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. 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 hund reds of thousands of Americans by allowi ng those same jobs to go to illegal aliens. We inherited from our Founders-and have advanced-an unsurpassed legal heritage, which is the founda tion of our freedom , safety, and prosperity. As the Attorney General, it is my duty to ensure that the laws of the United States are enforced and that the Constitutional order is upheld . No greater good can be done for the overall health and well-being of our Republic, than preserving and strengtheni ng the impartial rule of law. Societies where the rule of law is treasured are societies that tend to flouris h and succeed. Societies where the rule of law is subject to political whims and personal biases tend to become societies afflicted by corruption , poverty, and human suffering. To have a lawful system of immigration that serves the national interest, we cannot admit everyone who would like to come here. That is an open border policy and the American people have rightl y rejected it. Therefore, the nation must set and enforce a limit on how many immig rants we admit each year and that means all can not be accepted. This does not mean th ey are bad people or that our nation disrespects or demeans them in any way. It means we are properly enforcing our laws as Congress has passed them.

Case 3:17-cv-05235-MEJ Document 1-13 Filed 09/11/17 Page 3 of 4
It is with these principles and duties in mind, and in light of imminent litigation, that we reviewed the Obama Administration's DACA policy.
Our collective wisdom is that the policy is vulnerable to the same legal and consti tutional challenges that the courts recognized with respect to the DAPA program, which was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit.
The Fifth Circuit specifically concluded that DACA had not been implemented in a fashion that allowed sufficient discretion, and th at DAPA was "foreclosed by Cong ress's careful plan."
In other words, it was inconsistent with the Constitution's separation of powers. That decision was affirmed by th e Supreme Court by an equally divided vote.
If we were to keep the Obama Administration's executive amnesty policy, the likeliest outcome is that it would be enjoined just as was DAPA. The Department of Justice has advised the President and the Department of Homeland Security that OHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program.
Acting Secretary Duke has chosen , appropriately, to initiate a wind down process. This will enable OHS to conduct an orderly change and fu lfill the desire of this administration to create a time period for Congress to act-should it so choose . We firmly believe this is the responsible path.
Simply put, if we are to further our goal of strengthening the constitutional order and the rule of law in America, the Department of Justice cannot defend this type of overreach .
George Washington University Law School Professor Jonathan Turley in testimony before the House Judiciary Committee was clear about the enormous constitutional infi rmities raised by these policies.
He said: "In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with.....If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense ... The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole."
Ending the previous Administration's disrespect for the legislative process is an important first step. All immigration policies should serve the interests of the people of the United States-lawful immigrant and native born alike.
Congress should carefully and thoughtfully pursue the types of reforms that are right for the American people. Our nation is comprised of good and decent people who want their government's leaders to fulfill their promises and advance an immigration policy that serves the national interest.
We are a people of compassion and we are a people of law. But there is nothing compassionate about the failure to enforce immigration laws.
Enforcing the law saves lives, protects communities and taxpayers, and prevents human suffering . Failure to enforce the laws in the past has put our nation at risk of crime, violence and even terrorism.
The compassionate thing is to end the lawlessness, en force our laws, and, if Congress chooses to make changes to those laws, to do so through the process set forth by our Founders in a way that advances the interest of the nation.
Tha t is what the President has promised to do and has delivered to the American people.

Case 3:17-cv-05235-MEJ Document 1-13 Filed 09/11/17 Page 4 of 4

Under President Trump's leadership, this administra tion has made great progress in the last few months towa rd establishing a lawful and constitutional immigration system. This makes us safer and more secure.
It will further economically the lives of millions who are struggling. And it will enable our country to more effectively teach new immigrants about our system of government and assimilate them to the cultural understandings that support it.
The substantial progress in reducing illegal immigration at our border seen in recent months is almost entirely the product of the leadership of President Trump and his inspired federal immigration officers. But the problem is not solved. And without more action, we could see illegality ri se again rather than be eliminated.
As a candidate , and now in office, President Trump has offered specific ideas and legislative solutions that will protect American workers, increase wages and sa laries, defend our nati onal security, ensure the public safety, and increase the general well-being of the American people.
He has worked closely with many members of Congress, including in the introduction of the RAISE Act, which would produce enormous benefits for our coun try. This is how our democratic process works.
There are many powerful interest groups in this country and every one of th em has a constitutional right to advocate their views and represent whomever they choose.
But the Department of Justice does not repre sent any narrow interest or any subset of the American people. We represent all of the American people and protect the integrity of our Constitution . That is our charg e.
We at Department of Justice are proud and honored to work to advance this vision for America and to do our best each day to ensure the safety and security of the American people.
Than k you .

Speaker: Attorney General Jeff Sessions
Attachment(s) : Download ag letter re daca.pdf
Topic(s): Immigration
Component(s): Office of th e Attorney General

Updated September 5, 2017

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 1 of 8
EXHIBITN

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17
Consideration of Deferred Action for Childhood Arrivals
Department of Homeland Security U.S. Citizenship and Immigration Services

Page 2 of 8
USCIS Form 1-8210
OMB No. 1615-0124 Expires OI/31/2019

For A-I

I

USC IS Case JD: Use

Only D Requcstor interviewed

Oil

Returned:

I

I

Resubmitted : I I

~-0 Received:

I

I

~ Sent:

I

I

To Be Completed by an Attorney or Acc redited Representative, if any.

Receipt

Action Block

Remarks
D I Select th is box if Form G-28 is attached to Attorney State Bar Number (!/ any): represent the requestor.

.,._ START HERE - Type or print in black ink. Read Form I-821D Instructions for information on how to complete this fo rm.

Part 1. Information About You (For Initial and Renewal Requests)

I am not in immigration detention and I have included Fonn I-765, Appli cation for Employment Authori zation, and Fom1 l-765WS, Fo nn 1-765 Worksheet; and

I am requesting:

D 1.

Initial Request - Consideration of DefetTed Action

for C hildhood Arrivals

OR

D 2.

Renewal Request - Consideration ofDefeITed

Action for Childhood Anivals

AND

For this Renewal request, my most recent period of Defe1Ted Action fo r Childhood Arriva ls expires _o_n_ _ _ _ _ _ _~
(mmlddlyyyy) ..,.

Full Legal Name
3.a. Family Name (Last Name)
3.b. Given Name (First Name)
3.c. Middle Name

U.S. Mailing Address (Enter the same address on Form 1- 765)
4.a. In Care Of Name (ifapplicable)

Removal Proceedings In.formation

5. Are you NOW or have you EVER b een in removal proceedings, or do you have a removal order issued in any other context (for example, at the border or within tire United States by an immigration agent)?
D Yes D No

NOTE: The tem1 "removal proceedings" includes exclusion or deportation proceedings initiated before April 1, 1997 ; an Immigration and Nationality Act (INA) section 240 removal proceeding; expedited removal; reinstatement of a final order of exclusion, deportation, or removal; an INA section 217 removal after admission under the Visa Waiver Program; o r removal as a criminal alien under INA section 238.
If you answered "Yes" to Item Number 5., you must select a box below indicating your current status or outcome of your removal proceedings.

Status or outcome:

D S.a. Currently in Proceedings (Active)

D S.b . Ctmently in Proceedings (Administratively Closed)

0 S.c. Terminated

D S.d. Subject to a Final Order

D S.e.

Other. Explain in Part 8. Additional Information.

5.f. Most Recent Date of Proceedings (mmlddlyyyy) ..,. ~ , - - -- -- - - ~

4.b. Street Number and Name

D 4.c. Apt.

Ste. D Fir. D

5.g. Location of Proceedings

4.d . City or Town

C J 4.e. Slate

4.f. Z lP Code

Fonn 1-82 l D 01 /09/17 y

Page I of7

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 3 of 8

Part 1. Information About You (For Initial and Renewal R equests) (con tinued)
Other Information
6. A lien Registration Number (A-Number) (ifany) .... A -
7. U.S. Socia l Security Numb~er (~!f(l-ny)~ - - - -- -~
.....

8. Date of Bi.tth (111111/ddlyyyy) ..... L . . . I_ _ _ _ _ _ __ ,

D 9. Gender

D Ma le

Fema le

10.a. City/Town/V illage of Birth

10.b. Country of B irth

11. Current Cou n try of Res idence

12. Country o f Citizenship or Nationality

13. Marital Status
D Ma1Tied D Widowed D Si.t1gle D Divorced
Other N ames Used ({/Applicable)
If you need additio nal space, use Part 8. Additional Information . 14.a. Family Name
(Last Name) 14.b. Given Name
(First N(lme)
14.c. Middle Name

Processing Informadon

15. Ethnicity (Select only one box)
D Hispanic or Latino D Not Hispanic or Latino

16. Race (Select all applicable boxe.s)

D White D Asian D Black or African American D Arne1ican Indian or A laska Native

D Native Hawaiian or Other Pacific Islander

17. Heigh t

D D Feet

Inches

18. Weight

DD D Pounds

19. Eye Color (Select 0 11ly 011e box)

D Black D Gray
D Maroon

D B lue D Green
D Pink

D B rown D Hazel D Unknown/Other

20. Hair Color (Select only one box)

D B ald (No hair) D B rown D Sandy

D Black D Gray D Wh ite

D Blond
D Red D Unknown/
Other

Part 2. Residence and Travel Information (For Initial and Renewal Requests)

1. I have been continuously residing in the U.S . since at least

D D June 15, 2007, up to the present ti.tne.

Yes

No

NOTE: If you departed the United States for some period of time before your 16th birthday and returned to the United States on or a fter your 16th birthday to begin your ctment period of conti.trnous residence, and if this is an initi al request, submit evidence tha t you established residence in the United States prior to 16 years of age as set forth in the instructions to this form.
Fo r Initial Requests: List your cmTent address and, to the best of your knowledge, the addresses where you resided since the date of your initial entry into the United States to preser:it.

For Renewal Req uests: List only the addresses where you resided since you submitted your last F01m I-821D that was approved.

If you require additional space, use Pa r t 8. Additional Information.

Form 1-82 10 01 /09/ 17 Y

Page 2 of7

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 4 of 8

Part 2. Residence and Travel Information (For initial and R enewal Requests) (continued)

Present Aclch·ess

I I 2.a. Dates a t this residence (mmldd!yyyy)

From ...

To ... JPresent

2.b. Street N umber and Name
2.c. Apt. D Ste. D Fi r. D

2.d. City or T own

I___ 2.e. State ....

2.f. ZIP Code

Address 1

3.a. Dates at this residence (mmldd/yyyy)

From ... I

I

T o ... LI_ _ __ _ __,

3.b. Street N um ber and Name

D D D 3.c. Apt.

Ste.

F ir.

, _ J_ __ __

_ __ ,

3.d. City or T own
D 3.e. State

3.f. ZIP Code L . - - - -- -- - - '

Address 2

4.a. Dates a t this residence (mm!ddlyyyy)

From ... I

I

To ... IL _ _ _ _ _ __J

4.b. Street N umber and N ame

D 4.c. Apt.

Ste. D Fi r. D

4.d. City o r T own

D I'-_________, 4.e. State

4.f. ZIP Code

Address 3

5.a. Dates at chis residence (111111/dd()'yyy)

From ... ,

I

T o ... LI_

_ _ _ _ _...,J

S.b. Street Number and N ame

D 5.c. Ap t.

Ste. D F ir. D

L..__ _ _ _ _ _ _ __ J

5.d. City or T own
D 5.c. State

5.f. ZIP Code '------- - - - - - -

Travel Information

For Initial Requ ests : List all of your absences from the United States since June 15, 2007.
F or R en ewal R equests : List onl y your absences from the Uni ted States since you submitted your last Form 1-821 D that was approved.
If you require a dditional space, use Part 8. Additional Information.
Departure 1
6.a. Departure Date (mmlddlyyyy) .....I..________

6.b. Return D ate

(111111/ddlyyyy) ... I...._______-'

6.c. R eason for Departure

Departure 2
7.a. Departure Date (111111/ddlyyyy) .....I.._ _______,

7.b. Return Date

(111111/dd/yyyy) ......I.._ _ ______J

7.c. Reason for Departure

8. H ave you left the United States w ithout advance parole on

or after August 15, 2012?

D Yes D No

9.a. W ha l country issued your last passport?

9.b. Passport N umber

9.c. Passport Exp iration D ate (111111/dd/yyyy) ... .,___ _ __ _ __J
10. B order C rossing Card Number (ifany)

IPart 3. For Initial Requests Only

1. I initially an-ived and established residence in the U.S.

p rior to 16 years of age.

D Yes D No

2. Date of Initial Entry into the United States (on or about)

(mm/dd/yyyy) )ll,,, LI_

_ _ _ _ __

_,

3. Place of Initial Ent1y in to the U nited States

Fonnl-8210 Ol /09i l 7 Y

Page 3 of7

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 5 of 8

Part 3. For Initial Req uests Only (continued)
4. Immigration Status on June l 5, 2012 (e.g., No Lm~ful Status, Status Expired, Parole Expired)

5.a. Were you EVER issued an Arrival-Departure Record

(Forni 1-94, I-94W, or 1-95)?

O Yes O No

5. b. If you answered "Yes" to Item Number 5.a., provide your F o1111 l-94, l-94W, or I-95 number (ifavailable).
~
5.c. l fyou answered "Yes" to Item Numbe r 5.a., provide the date your authorized stay expired, as shown on Forni I-94, I-94W, or I-95 (ifaPailable).
(111111/ddlyyyy) ~ It._________,

Education Information
6. Indicate how you meet the education guideline (e.g., Grnduated.fi·om high school, Received a general educational development (GED) certificate or equivalent state-authorized exam, Currently in school)

7. Name, City, and State of School Clmently Attending or Where Education Received

8. Date of Graduation (e.g., Receipt ofa Certificate of Co111pletion, GED certificate, other equiwt!ent stateauthorized exam) or, if cmTently in school, date of last attendance. (111111/dd!J.yvy) ~
'----- - ----~

Milita1y Service Information

9. Were you a member of the U.S. A1111ed Forces or U.S.

Coast Guard?

O Yes O No

If you answered "Yes" to Item Nu m ber 9., you must provide responses to Item Numbers 9.a. - 9.d.
9.a. Military Branch

~ 9.b. Service Start Date (mmlddlvyyy) LI_ _ _ _ _ _ __,
9..c. Discharge Date (111111/ddlyyyy) ~
L------- ~
9.d. Type of Discharge

Part 4. Criminal, National Security, and Public Safety Information (For Initial and Renewal Requests)

If any of the following questions apply to you, use Part 8. A ddition al I nform ation to describe the circumstances and include a full explanation.

1. Have you EVER been mTested for, charged with, or

convicted of a felony or misdemeanor, including incidents

handled in juvenile court, in the United States? Do not

include minor traffic Fiolations unless they were alcohol-

or drug-related.

O Yes O No

If you answered "Yes," you must include a certified court disposition, arrest r ecord, charging document, sentencing r ecord, etc., for each arrest, unless disclosure is prohibited und e r state law.

2. Have you EVER been arrested for, charged with, or

convicted of a crime in any country other than the United

States?

O Yes 0 No

If you answered "Yes," you must include a certified court disposition, arrest record, c harging document, sentencing r ecord, etc., for each arrest.

3. Have you EVER engaged in, do you continue to engage
in, or plan to engage in te1rnrist activities?
O Yes O No

4. Are you NOW or have you EVER been a member of a

gang?

O Yes O No

5. Have you EVER engaged in, ordered, incited, assisted, or
otherwise participated in any of the following:

5.a. Acts invo lving tqrture, genocide, or human trafficking?
O Yes O No

S. b. Killing any person?

O Yes O No

5.c. Severely injuring any person?

O Yes O No

S.d. Any kind of sexual contact or relations with any person

0 O who was being forced or threatened?

Yes

No

6. Have you EVER recrnited, enlisted, conscripted, or used

any person to serve in or help an armed fo rce or group

O O while such person was under age 15?

Yes

No

7. Have you EVER used any person under age 15 to take

part in hostili ties, or to help or provide services to people

in combat?

O Yes O No

Fonn 1-82 1D O1/09/ 17 Y

Page 4 of 7

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 6 of 8

Part 5. Statement, Certification, Signature, and Contact Information of the Requestor (For Initial and Renewal Requests)

NOTE: Selec t the box fo r either Item Number I.a. or l.b.

D I.a.

l can read and understand Engl ish, and have read and

understand each and every question and instruction

on th is form, as well as m y answer to each question.

D 1.b.

The interpreter named in Part 6. has read to m e each

and every ques tion and instruction on this fo nn, as

well as my answer to each questi on, in

Part 6. Contact Information, Certification, and Signature of the Interpreter (For Initial and Renewal Requests) lnte,preter's Full Name
Provide the fo ll owing information concerning the interpreter: l.a. Interpreter's Family Name (Last Name)
l.b. Interpreter's G iven Name (First Nam e)

a language in which I am fluent. I understand each and every question and instruction on this fom1 as translated to me by my interpreter, and have provided true and correct responses in the language indicated above.
Requestor 's Certification
1certi fy, under penalty of perj u ry under the laws of the United
States of America, that the foregoing is trne and con-eel and that copies o f documents submitted are exact photocopies of unaltered 01ig inal documents. I understand that I may be required to submi t origin a l documents to U.S. Citizenship and Immigration Services (USCIS) at a later date. I also understand that knowingly and willfully providing materially false infomiation on this fo rm is a federa l fe lony punishable by a fine, imprisonment up to 5 years, or both, under 18 U.S.C. section I 00 I. Furthem1ore, l authorize the release of any infomiation from my records that U SCTS may need to reach a determination on my defen-ed action request.
2.a. Requ es to r's Signature
-+'--~~~~~~~~~~~~~
~ 2.b. Date o f Signature (mmldd/yyyy) LI_ _ _ __ ___,
Requestor's Contact Information
3. Requestor's Daytime T elephone Number

2. Interpreter's Business or Organization Name (ifany)

Inte,preter's Nlailing Address

3.a. Street Number and Name

D D D 3.b. Apt.

Ste.

Fir.

3.c. City or Town

C J I 3.d. State

3.e. ZIP Code

3.f. Province

3.g. Postal Code 3.h. Country

Jnte,preter's Contact Infoi·mation 4. Interpreter's Daytime Telephone N umber
5. Interpreter's Emai l Address

4. Requestor's Mobile Telep hone Number

5. Requestor's Email Address

Forml-8210 01 /09/ 17 Y

Page 5 of 7

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 7 of 8

Part 6. Contact Information, Certification, and Signature of the Interpreter (For Initial and Renewal Requests) (continued)

lnte,preter's Certification

I certify that:

_________ I am fluent in English and .__

___, which

is the same language provided i.n Part 5., Item Numb er l. b.;

I have read to th is requestor each and every question and instrnction on th.is fo rm, as well as the answer to each question, in the language provided in Part 5., Item NII mb er l.b .; and

The reques lor has infonned me that he or she understands each and every instruction and question on the fonn, as well as the answer to each question.

6.a. Interpreter's Signature

6.b. Date of Signanire (mmldd/yyyy) .,._ L/_ __ _ _ ____J

Part 7. Contact Information, Declaration, and Signature of the Person Preparing this Request, If Other than the Requestor (For Initial and Renewal Requests) Preparer's Full Name
Provide the followin g infornrntion concerning the preparer: 1.a. Prepare r's Family Name (Last Name)
l.b. Prepare r's Given Name (First Name)
2. Preparer's Business or Organization Name

Preparer's Mailing A ddress

3.a. Street Number and Name

D D 3.b. Apt.

Ste.

Fir. D

3.c. City or Town

3.d. S t a t e ~ 3.e. ZIP Code /

3.f. Province

3.g. Postal Code 3.h. Country

Preparer's Contact Information
4. Preparer's Daytime Telephone Number
5. Preparer's Fax Number 6. Preparer's Email Address

Preparer's Declaration
I declare that I prepared this Fonn 1-821 D at the requestor's behest, and it is based on all the infonnation of which I have knowledge. 7.a. Preparer's Signature
7.b. Date of Signature (111111/ddlyyyy) .... ,.___ __ _ ____J
NOTE : If you need extra space to complete any item within this request, see the next page for Par t 8. Additiona l Information .

Form 1-82 1D OJ/09/17 Y

Page 6 of7

Case 3:17-cv-05235-MEJ Document 1-14 Filed 09/11/17 Page 8 of 8

Part 8. Additional Information (For Initial and Renevval R equests)
If you need extra space to complete any item within this request, use the space below. You may also make copies of this page to complete and file .vith this request. Include your name and A-Number (ifany ) at the lop of each sheet of paper; indicate the Page Number, Part Number, and Item Number to which your answer refers; and sign and date each sheet.

4.a. Page Number 4.b. Part Number 4.c. Item Number
I II II
4.cl.

Full Legal Name
1.a. Fami ly Name (Last Name)
l.b. Given Name (First Name)
I.e. Middle N ame
2. A-Number (if any) .... A-

3.a. Page Number 3 .b. Part Number 3.c. Item Number

I

I I

I I

I

3.d.

S.a. Page Number 5.b. Part Number 5.c. Item Number
I II II I
5.cl.

Fonn l-82 1D 01 /09/ 17 Y

Page 7 of7

Case 3:17-cv-05235-MEJ Document 1-15 Filed 09/11/17 Page 1 of 6
EXHIBIT O

..... ,........, ~
,·,r, ';::f

Case 3:17-cv-05235-MEJ Document 1-15 Filed 09/11/17 Page 2 of 6
Fcclcral Register /Vol. 82, No. 18/Monday, January 30, 20U/Presiclential Documents
Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States

By the authority vested in me as President by the Constituti on and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.). and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed, I hereby declare the policy of the executive b ranch to be, and order, as follows:

Section 1 . Purpose. Interior enforcem ent of our Nation's immigration laws is cr itically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those ·who overstay or otherwise violate the terms of their visas presen t a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.

Sanctuary jurisdictions across the United S tates willfully violate Federal

law in an attempt to shield aliens from removal from th e United States.

These jurisdictions have caused immeasurable harm to the American people

and to the very fabric of our Republic.

·

Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept th eir repatriation. Many of these alie ns are criminals who have served time in our Federal, State , and local jails. The presence of such individuals in the United S tates, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to th e national interest.

Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensme th e removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibili ty. We cannot faithfully execute the immigration laws of th e United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agen cies) to employ all lawful means to enforce the immigration laws of the United States.

Sec. 2. Policy. It is the policy of the executive branch to:

(a) Ensure the fa ithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Consti tution and section 3331 of title 5 , United S tates Code;

(b) Make use of all availabl e systems and resources to ensure the efficient and fai thful execution of the immigration laws of the United States;

(c) En sure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;

(d) Ensure that aliens ordered removed from the United States are promptly removed; and

(e) Support victims, and the families of victims , of crimes committed by removable aliens .

Sec. 3. Definitions. The terms of this order, where applicable, sh all have the meaning provided by section 1101 of title 8, United States Code.

8800

Case 3:17-cv-05235-MEJ Document 1-15 Filed 09/11/17 Page 3 of 6
Federal Register I Vol. 82 , No. 18 I Monday, January 30, 2017 /Presidential Documents
Sec. 4 . Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homelan d Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2). (a)(3). and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3). and (a)(6)(C). 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have b een convicted of any criminal offense;
Cb) Have been charged with any cr iminal offense, where such chaTge has n ot been resolved;
(c) Have committed acts that constitute a chaTgeabl e criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any progrnm related t o receipt of public benefits ;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to p ublic safety or national security.
Sec. 6. Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary sh all issu e guidance and promulgate regulations, w h ere .required by law, to ensure the assessment and collection of all fines and penalties th at the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the Un ited States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent p ermitted by law and subject to the availability of appropriations, take all appropriate action to hire 10 ,000 additional immigration officers , who shall complete relevan t training and be authorized to perform the law enforcemen t functions described in section 287 of the INA (8 U.S .C. 1357).
Sec. 8. Federal-State Agreements. It is the p olicy of the executive branch to em power State and local law enforcement agencies across th e country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter in to agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the exten t permitted by law an d with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the fun ctions of immigration officers in relation to th e investigation , appr ehen sion , or detention of aliens in the United States under the direction and the supervision of the Secretary. Such au thorization shall be in addition to, rather than in place of, Federal performance of th ese duties.
(c) To the extent permitted by law, the Secretary may structure each agreement u nder section 287(g) of th e INA in a manner tha t provides the most effective model for enforcing Feder al immigration laws for that jmisdicti on.

Case 3:17-cv-05235-MEJ Document 1-15 Filed 09/11/17 Page 4 of 6
Federal Register I Vol. 82, No. 18I Monday, January 30, 2017 I Presidential Documents

· 8801

Sec. 9 . Sanctumy Jurisdictions. It is the policy of th e executive branch to ensure, to the fulles.t extent of the law , that a State, or a political subdivision of a State , shall comply with 8 U.S .C. 1373.
(a) In furth erance of this policy, th e Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall en sure that jurisdictions that w illfully refuse to comp ly with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. Th e Secretary has the auth ority to designate, in his discretion an d to the extent consistent ·with law, a jurisdiction as a sanctuary jmisdiction. The Attorney General shall take appropriate enforcem ent action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, p olicy, or prac tice that prevents or h in ders the enforcem ent of Federal law.
(bl To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, th e Secretary shall utilize the Declined Detainer Ou tcome Report or its equivalent and , on a weekly basis , make public a com prehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise fa iled to honor any detain ers with r esp ect to such aliens.
(c) Th e Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal gran t m oney that currently is received by any sanctuary jurisdiction .
Sec. 10. Review of Previous Im migration Actions an d Policies. (a) The Secretary shall immediately take all approp riate action to term inate the Priority Enforcement Program (PEP) described in the m emorandu m issued b y the Secretary on November 20, 2014, and to reinstitute the immigration program kn ow n as "Secure Commu nities" referen ced in th at memoran dum.
(b) Th e Secretary sh all review agency regulatio ns, policies , and procedures for consistency with this order and, if required , publish for notice and comment p rop osed regu lation s rescinding or revising any regulations inconsisten t with this order and shall consider whether to w ith draw or m odify any incons istent policies an d procedures , as appropriate and consistent w ith th e law.
(c) To protect our communities and better facilitate the identification , deten tion, and removal of criminal aliens w ithin constitutional an d statutory parameters, th e Secretary shall consolidate and revise any applicable forms to m ore effectively communicate with recipien t law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and th e Secretai'y shall work together to develop and implement a program th at ensures th at adequate resources are d evoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to red uce violent crime and th e reach of transnation al criminal organization s into th e United States.
Sec. 1 2. Recalcitrant Co untries. The Secretary of Homeland Security and th e Secretary of State shall coop erate to effectively implem ent the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to th e maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their n ati onals who are subject to re moval from the United States.
Sec. 13 . Office for Victims of Crimes Committed by Removable A liens. The Secretary sh all direct the Director of U.S. Immigration and Customs Enforcement to take all app ropriate and lawful action to establish within U.S. Immigration and Cu stom s Enforcement an office to provide proactive, tim ely, adequate, and professional services to victims of crimes comm itted by removable a liens and the family m embers of such victims. This office shall provide quaiterly reports studying the effects of the victimization by criminal aliens presen t in th e United S tates.

8802

Case 3:17-cv-05235-MEJ Document 1-15 Filed 09/11/17 Page 5 of 6
Feder al Register I Vol. 82, No. 18 I Monday, January 30, 2017 I Presidential Documents
Sec. 14. Privocy Act. Agen cies sh all , to the extent consistent with applicable law, ensure that their privacy policies exclude persons wh o are not United States citizens or lawful p ermanent residents from the protections of the Privacy Act regarding person ally identifiable in formation.
Sec. 15. Reporting. Except as otherwise provided in this or der , the Secretary and the Attorney General shall each submit to the Presiden t a report on the progress of the directives contained in this order within 90 days of the elate of this order and again within 180 days of the date of this order.
Sec. 16. Tronsparency. To promote the transparency and situation al awareness of crimin al aliens in the United States, the Secretary and the Attorney General are h ereby directed to collect relevant data and provide quarterly reports on the fo llowing:
(a) the immigration status of all aliens incarcerated under the supervision of the Federa l Bureau of Prisons;
(bl the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(cl the immigration status of all convicted alien s incarcerated in State prisons and local detention cen ters thro ugh out the Un ited States.
Sec. 17. Personnel A ctions. Th e Office of Person nel Management shall take ap propriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the auth ority granted by law to an executive department or agency, or the h ead thereof; or
(ii) the functions of the Director of the Office of Man agement and Budget relating to budgetary, administrative, or legislative p roposals.
(bl Th is order sh all be implem ented consistent with applicable law and subject to the availability of appropriations.

Case 3:17-cv-05235-MEJ Document 1-15 Filed 09/11/17 Page 6 of 6
Federal Regis ter /Vol. 82, No. 18/Monclay, January 30, 2017/Presiclential Documents

8803

(cl This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments , agencies , or entities , its officers, employees , or agents, or any other person.

IFR Doc. 20 17-0 2102
Filed 1- 27- 17; 11: 15 aml Dilling code 32fl 5-F7-P

THE WHITE HOUSE, January 25, 2017.

Case 3:17-cv-05235-MEJ Document 1-16 Filed 09/11/17 Page 1 of 6
EXHIBITP

Case 3:17-cv-05235-MEJ Document 1-16 Filed 09/11/17 Page 2 of 6
April 27, 2017
Privacy Policy 2017-01 Questions & Answers
U.S. Citizen Definitions
Who is a U.S. citizen? A person may become a U.S. citizen at birth, if: 1. He or she was born in the United States or certain territories or outlying possessions of the United States, and subject to the jurisdiction of the United States; or ii. She or he had a parent_or parents who were citizens at the time of your birth (if you were born abroad) and meet other requirements. A person may become a U.S. citizen after birth, if: i. She or he applies for " derived" or " acquired" citi zenship throu2:h parents, or ii. He or she app li es for naturalization.
Who is a lawful permanent resident? A person is a lawful permanent resident if he or she enjoys the status accorded to an individual who has been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with immigration laws, and that status has not changed.
Who is an immigrant? A person who is an alien in the United States, except one legally admitted under specific non-immigrant categories as discussed below in response to question 14. Additionally, a person who has entered without inspection, an illegal alien, is also considered an immigrant.
Who is a non-immigrant? A person who is an alien seeking temporary entry to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission) and qualify for the nonimmigrant classification sought. The nonimmigrant classifications include: foreign government officials, visitors for business and for pleasure, aliens in transit through the United States, treaty traders and investors, students, international representatives, temporary workers and trainees, representatives of foreign information m edia, exchange visitors, fiance(e)s of U.S. citizens, intracompany transferees, NATO officials, religious

Case 3:17-cv-05235-MEJ Document 1-16 Filed 09/11/17 Page 3 of 6
April 27, 2017
workers, and some others. Most nonimmigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children.
1. Why is the Policy changing? a. The Department of Homeland Security (DHS) is changing its policy regarding the extension of Privacy Act protections to all persons as directed by section 14 of Executive Order 13768, which states, that " [a]gencies shall, to the extent consistent with applicable law, 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." Previously, DHS had provided the administrative protections of the Privacy Act to all persons, as permitted by regulatory guidance from the Office of Management and Budget. The policy of the current Administration is to grant Privacy Act protections only to those explicitly covered by the Privacy Act.
2. What changes result from the new Policy? a. Generally, the new policy clarifies that immigrants and non-immigrants may only obtain access to their records through the Freedom of Information Act and may not be granted amendment of their records upon request. The Executive Order limits the rights and protections of the Privacy Act, subject to applicable law, to U .S. citizens and lawful permanent residents. The new policy requires that decisions regarding the collection, maintenance, use, disclosure, retention, and disposal of information being held by DHS conform to an analysis consistent with the Fair Information Practice Principles, see questions 7 and 8.
3. What changes to the analysis of records and information disclosure under the Freedom of Information Act result from the new Policy? a. The new Policy does not change the analysis of records and information disclosure under the Freedom of Information Act (FOIA), an applicable law. Decisions to withhold information requested by third parties about immigrants and non-immigrants will be analyzed in accordance the FOIA exemptions at 5 U.S .C. § 552(b)(6) or (b)(7)(C), which balance the public' s right to know about government operations against the personal privacy interests of the subject. With respect to FOIA requests about oneself, an immigrant or nonimmigrant will receive those records that are not exempt under the FOIA, just like any other person.
2

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April 27, 2017
4. What is the impact of the new Policy on the Judicial Redress Act? a. The new Policy has no effect upon the Judicial Redress Act, an applicable law. The Judicial Redress Act provides that " covered persons," who are citizens of covered foreign states, will have both administrative and judicial Privacy Act rights with respect to their information contained in "covered records," which are law enforcement in nature. This means that certain foreign nationals, currently citizens of the majority of European Union states, may seek access or amendment of their covered records he ld and covered by a DHS System of Records Notice (SORN), or pursue judicial redress for access, amendment, or wrongful disclosure of such records. For more information see, https:/hvv,.,v. justice.gov/opcl/ judi cial-redress-act-2015 .
5. What changes to the sharing or disclosure of information with the Congress result from the new Policy? a. The new Policy does not change the requirements for sharing information in full in response to a request from the Chairperson of Congressional Committee asking upon behalf of the Committee regarding a matter within the jurisdiction of the Committee. Such a response is normally confidential for use in support of the Committee's business and not a public disclosure. Similarly, the new Policy does not change how we respond to Congressional requests on behalf of constituents, who are U.S. citizens or law ful permanent residents, in that it is treated as a first-party Privacy Act request by consent of the constituent; nor does it change how we respond to Congressional requests on behalf of immigrants, non-immigrants, or other third parties (such as, state and local government, or the Congressperson asking in a personal capacity), in that it is treated as a Freedom of Information Act request.
6. What changes to the sharing or disclosure of information with federal, state, and local law enforcement result from the new Policy? a. The new Policy, subject to the Judicial Redress Act or confidentiality provisions provided by statute or regulation, pennits the sharing of information about immigrants and non-immigrants with federal, state, and loca l law enforcement. The Policy requires that such sharing conform to an analysis based upon the Fair Information Practice Principles that demonstrates a consistent relationship between the purpose for collection of the information and intended use.
3

Case 3:17-cv-05235-MEJ Document 1-16 Filed 09/11/17 Page 5 of 6
April 27, 2017
7. What are the Fair Information Practice Principles (FIPPs)? a. The Fair Information Practice Principles (FIPPs) are principles that were first promulgated by the Department of Health, Education, and Welfare in 1973 and have guided federal government information practices going forward. The concepts are integral to many privacy laws, including both the Privacy Act of 1974 and to the E-Government Act of 2002, which also governs agency use of new teclmology. The eight foundational principles are: Transparency, Individual Participation, Purpose Specification, Data Minimization, Use Limitation, Data Quality and Integrity, Security, and Accountability and Auditing. For a discussion see question 8.
8. How do the FIPPs inform the use and protection of information by DHS? a. The FIPPs inform the use and protection of information by DHS as follows: 1. Transparency requires that DHS give public notice to its actions to collect information (e.g., System of Records Notices and Privacy Impact Assessments, which are located on the DHS Privacy Office Website, and signage [see, w,vw.dhs.2.ov/privacv.]); ii. Individual Participation requires that, when appropriate, DHS involve the person in the decision whether or not to provide personal information to DHS (i.e., make a choice); iii. Purpose Specification requires that DHS inform the public of its authority to collect the information that it seeks-in other words, say what information is sought, why it is being sought, and whether or not it' s submission is voluntary; 1v. Data Minimization requires that DHS only seek to collect the information that it needs, based upon its authority and based upon the mission or operation that requires the information; v. Use Limitation requires that DHS use the information that it collects in a manner compatible with the purpose and authority that permit the collection; v1. Data Quality and Integrity require that DHS has means to ensure the accuracy of the information it collects, provides measures.to maintain the data free from corruption, and allow for corrections to data that become inaccurate or stale; vii. Security requires that DHS ensure its data systems are protected against intrusion, that user access is determined by mi ssion assignments, and that remedial procedures exist to address the possibility of breach or data spills; viii. Accountability and Auditing require that DHS maintains the integrity of its systems such that it may find , use, and report upon the data
4

Case 3:17-cv-05235-MEJ Document 1-16 Filed 09/11/17 Page 6 of 6
April 27, 2017
residing in those sys tems , and so that it may allow for independent audits to verify the accuracy of its reporting and its satisfaction of the prior seven principles.
9. What access to records is available to immigrants and non-immigrants? a. Immigrants and non-immigrants may access their records through the Freedom of Information Act (FOIA). Any person, inespective of immigration status, may file a FOIA request with DHS for information about him or herself that DHS has in its possession and systems; he or she is entitled to a response that details the search for information about the person and informs him or her whether or not the records about them are released in full , released with certain portions masked in accordance with exemptions under the FOIA, or withheld in full.
10. May immigrants and non-immigrants amend their records, which are held by OHS? a. Immigrants and non-immigrants may not request amendment of their records in accordance with the Privacy Act. DHS, however, as a matter of efficiency and accurate recordkeeping strives to keep all information in its possession current. When DHS becomes aware and is able to confinn that information in its possession is inaccurate or no longer relevant it may choose to update or dispose of such information in accordance with the terms of the Federal Records Act records disposition schedules that apply to the particular records under review.
11. What impact does the new Policy have on immigrants and non-immigrants access to redress through the OHS Traveler Redress Inquiry Process (OHS TRIP)? a. The new Policy has no impact upon an immigrant or non-immigrant' s access to Redress through DHS TRIP. DHS TRIP provides traveler redress to all persons irrespective of immigration status. Individuals, including foreign nationals, or persons who believe they have been improperly denied entry, refused boarding for transportation, or identified for additional screening by DI-IS may submit a redress request through DHS TRIP. DHS TRIP is a single point of contact for persons who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs such as airports, seaports and train stations, or at U.S . land borders. For more information see, www.dhs.gov/trip.
5

 
 Case 3:17-cv-05235-WHA Document 18 Filed 09/18/17 Page 1 of 2

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

No. C 17-05211 WHA

13

14

v.

Plaintiffs,

ORDER RELATING CASES

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

18

Defendants. /

19

20

On September 15, plaintiffs the Regents of the University of California and Janet

21 Napolitano moved to relate State of California v. United States Department of Homeland

22 Security, Case No. 17-cv-05235 MEJ (the “Multi-State Action”) to the above-captioned case.

23 Thereafter, all parties in both actions stipulated that the cases should be related.

24

The undersigned judge finds that State of California v. United States Department of

25 Homeland Security, Case No. 17-cv-05235 MEJ is related to the above-captioned case and shall

26 be reassigned to the undersigned judge. The parties are instructed that all future filings in the

27 reassigned case are to bear the initials of the newly assigned judge immediately after the case

28 number. Any case management conference in any reassigned case will be rescheduled by the

Court. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must

Case 3:17-cv-05235-WHA Document 18 Filed 09/18/17 Page 2 of 2

United States District Court For the Northern District of California

1 be re-noticed by the moving party before the newly assigned judge. Any deadlines set by the

2 ADR Local Rules remain in effect, and any deadlines established in a case management order

3 continue to govern, except dates for appearance in court, which will be rescheduled by the

4 newly assigned judge.

5

A case management conference in both cases will be held on THURSDAY, SEPTEMBER

6 21 AT 10:30 A.M.

7

8

IT IS SO ORDERED.

9

10 Dated: September 18, 2017.

11

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

12

13

14

15

16

17

18

19

20

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22

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24

25

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27

28

2

 
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1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

No. C 17-05211 WHA

13

Plaintiffs,

14

v.

ORDER RELATING CASES

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

18

Defendants. /

19

20

On September 18, an order related State of California v. United States Department of

21 Homeland Security, Case No. 17-cv-05235 MEJ (the “Multi-State Action”) to the above-

22 captioned case (the “UC Regents Action”). Thereafter, Dulce Garcia v. United States of

23 America, No. 3:17-cv-05380 JCS (the “Garcia Action”) moved to relate its case to both of the

24 above actions, and all parties in the UC Regents Action and the Multi-State Action stipulated

25 that the Garcia Action should be related.

26

The undersigned judge finds that Dulce Garcia v. United States of America, No.

27 3:17-cv-05380 JCS is related to the above-captioned case and the Multi-State Action, and shall

28 be reassigned to the undersigned judge. The parties are instructed that all future filings in the

reassigned case are to bear the initials of the newly assigned judge immediately after the case

Case 3:17-cv-05235-WHA Document 22 Filed 09/20/17 Page 2 of 2

United States District Court For the Northern District of California

1 number. Any case management conference in any reassigned case will be rescheduled by the

2 Court. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must

3 be re-noticed by the moving party before the newly assigned judge. Any deadlines set by the

4 ADR Local Rules remain in effect, and any deadlines established in a case management order

5 continue to govern, except dates for appearance in court, which will be rescheduled by the

6 newly assigned judge.

7

A case management conference in all related cases will be held on THURSDAY,

8 SEPTEMBER 21 AT 10:30 A.M.

9

10

IT IS SO ORDERED.

11

12

13 Dated: September 20, 2017.

14

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

United States District Court For the Northern District of California

10 THE REGENTS OF UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

No. C 17-05211 WHA

13

Plaintiffs,

14

v.

ORDER RELATING CASES

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

18

Defendants. /

19

20

The following cases have already been related to the above-captioned action:

21 •

State of California v. United States Department of Homeland Security, Case No. 17-cv-05235 MEJ (the “Multi-State Action”)

22 •

Dulce Garcia v. United States of America, No. 3:17-cv-05380 JCS (the “Garcia

Action”)

23

On September 18, plaintiff the City of San Jose moved to relate its case, City of San Jose

24

v. Trump, Case No. 5:17-cv-05329 HRL (the “San Jose Action”), to the above cases, and all

25

parties have since stipulated that the San Jose Action should be related.

26

The undersigned judge finds that City of San Jose v. Trump, Case No. 5:17-cv-05329

27

HRL is related to the above cases, and shall be reassigned to the undersigned judge. The parties

28

are instructed that all future filings in the reassigned case are to bear the initials of the newly

assigned judge immediately after the case number. Any case management conference in any

United States District Court For the Northern District of California

1 reassigned case will be rescheduled by the Court. Unless otherwise ordered, any dates for

2 hearing noticed motions are vacated and must be re-noticed by the moving party before the

3 newly assigned judge. Any deadlines set by the ADR Local Rules remain in effect, and any

4 deadlines established in a case management order continue to govern, except dates for

5 appearance in court, which will be rescheduled by the newly assigned judge.

6

A case management conference in all related cases will be held on THURSDAY,

7 SEPTEMBER 21 AT 10:30 A.M.

8

9

IT IS SO ORDERED.

10

11

12 Dated: September 20, 2017.

13

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
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United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD

18

Defendants. /

19

20

INTRODUCTION

21

Under the Administrative Procedure Act, plaintiffs seek to compel completion of the

22 administrative record. Federal defendants oppose. For the reasons herein, plaintiffs’ motion is

23 GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

On June 15, 2012, the Secretary of the Department of Homeland Security issued a

26 memorandum promulgating a deferred action policy for those without lawful immigration status

27 who came to the United States as children, were continuous residents in the United States for at

28 least five years, had graduated from high school, obtained a GED, or served in the military, and

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 2 of 14

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1 met certain other criteria — a memorandum and policy known as Deferred Action for

2 Childhood Arrivals, “DACA” for short (Dkt. No. 64-1 at 1–3).1

3

After the change in administrations in 2017, the new Secretary of DHS, John Kelly,

4 announced that DACA would be continued notwithstanding the rescission of other immigration

5 policies (id. at 230). This was done despite, and with the knowledge of, the decision of the

6 Court of Appeals for the Fifth Circuit in Texas v. United States, 809 F.3d 134 (5th Cir. 2015),

7 invalidating a different deferred action policy and the Supreme Court’s affirmance of that

8 decision by an equally divided vote, United States v. Texas, 136 S. Ct. 2271 (2016) (per

9 curiam).

10

On September 5, 2017, however, the Acting Secretary of DHS, Elaine Duke, reversed

11 the agency’s position and announced DACA’s end, effective March 5, 2018.

12

We now have five lawsuits in this district challenging that rescission.2 Each action is

13 proceeding on a parallel track and on the same schedule, which schedule was designed to reach

14 a decision on the merits and to allow appellate review by the March 5 deadline.3

15

Pursuant to the scheduling order, the federal defendants filed the administrative record

16 on October 6. It consisted of fourteen documents spanning 256 pages, each of which was

17 already available to the public, and had, in fact, already been filed in this action (Dkt. No. 49

18 ¶ 3; Dkt. No. 64-1).

19

In unison, plaintiffs now move to require completion of the administrative record in

20 accordance with Section 706 of Title 5 of the United States Code. They argue that the current

21 record is incomplete because it contains only documents personally considered by the Acting

22 Secretary (and then only some considered by her) and excludes any and all other documents that

23 indirectly led to the rescission.

24

25

1 All docket numbers herein refer to the docket in Case No. C 17-05211 WHA.

26

2 There are two additional DACA lawsuits proceeding in the Eastern District of New York before

Judge Nicholas Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case
27 No. 16-cv-04756 NGG.

28

3 The fifth lawsuit, County of Santa Clara v. Trump, Case No. 17-cv-05813 HRL, was related after

plaintiffs’ motion was fully briefed and argued.

2

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 3 of 14

United States District Court For the Northern District of California

1

The federal defendants oppose, arguing that they have already filed a complete

2 administrative record, which they contend is properly limited to unprivileged documents

3 actually considered by the “decision-maker,” here, the Acting Secretary (Opp. at 8–9).

4

This order follows full briefing and oral argument and the Court’s review of all

5 materials in camera that appeared on the government’s privilege log.

6

ANALYSIS

7

1.

SCOPE OF THE ADMINISTRATIVE RECORD.

8

Section 706 of the APA provides that judicial review of agency action shall be based

9 on “the whole record.” The administrative record “is not necessarily those documents that the

10 agency has compiled and submitted as the administrative record” but rather “consists of all

11 documents and materials directly or indirectly considered by agency decision-makers and

12 includes evidence contrary to the agency’s position.” Thompson v. United States Dep’t of

13 Labor, 885 F.2d 551, 555–56 (9th Cir. 1989). This includes not only documents that “literally

14 pass[ed] before the eyes of the final agency decision maker” but also documents that were

15 considered and relied upon by subordinates who provided recommendations to the decision-

16 maker. People of State of Cal. ex rel. Lockyer v. United States Dep’t of Agriculture, Nos.

17 C05-3508 & C05-4038, 2006 WL 708914, at *2 (N.D. Cal. Mar. 16, 2006) (Magistrate Judge

18 Elizabeth Laporte) (internal citations and quotations omitted); see also Amfac Resorts, L.L.C. v.

19 United States Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (Judge Royce

20 Lamberth).

21

The requirement that a reviewing court consider “the whole record” before rendering a

22 decision “ensures that neither party is withholding evidence unfavorable to its position and that

23 the agencies are not taking advantage of post hoc rationalizations for administrative decisions.

24 Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984).

25

While it is presumed that the administrative record submitted by defendants is complete,

26 plaintiffs can rebut this presumption with “clear evidence to the contrary.” Cook Inletkeeper v.

27 EPA, 400 F. App’x 239, 240 (9th Cir. 2010) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735,

28 740 (10th Cir. 1993)).

3

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United States District Court For the Northern District of California

1

Defendants contend a showing of bad faith or impropriety is required in order to compel

2 a complete production of the administrative record. This is incorrect. True, bad faith is one

3 basis for requiring supplementation of an administrative record, but it is not the exclusive basis.

4 Our court of appeals has repeatedly recognized other grounds for requiring supplementation,

5 including where it appears the “agency relied on documents not [already] included in the

6 record.” Pub. Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982); Fence Creek

7 Cattle Co. v. United States Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010); see also Lands

8 Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).

9

The “bad faith” standard of Overton Park applies where, though an administrative

10 record exists, plaintiffs ask to go beyond the record that was before the agency and inquire into

11 the thought processes of decision-makers — in Overton Park, by taking the testimony of

12 agency officials. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)

13 abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

14

Our plaintiffs are not seeking materials beyond what were already considered, directly

15 or indirectly, by the decision-maker, and therefore need not show bad faith. Supplementation

16 is appropriate if they show, by clear evidence, that the agency relied on materials not already

17 included in the record. See Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d

18 1534, 1548 (9th Cir. 1993) (distinguishing between materials “never presented to the agency”

19 and materials that were “allegedly [] before the agency”); Fence Creek Cattle Co., 602 F.3d at

20 1131.

21

Nor is defendants’ contention that it need only produce documents directly considered

22 by the Acting Secretary correct. Documents reviewed by subordinates, or other agencies

23 who informed her on the issues underlying the decision to rescind DACA, either verbally or

24 in writing, should be in the administrative record. See Lockyer, 2006 WL 708914, at *2.

25 The threshold question is whether plaintiffs have shown, by clear evidence, that the record

26

27

28

4

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1 defendants produced is missing documents that were considered, directly or indirectly, by DHS

2 in deciding to rescind DACA.4

3

2.

PLAINTIFFS’ SHOWING OF INCOMPLETENESS.

4

Here, the tendered administrative record consists merely of fourteen documents

5 spanning 258 pages, which defendants contend constitute the entire record considered in

6 making the decision to rescind DACA. These are plainly pertinent materials, although all were

7 publicly known and already part of the pleadings herein.

8

Plaintiffs seek additional materials including emails, departmental memoranda, policy

9 directives, meeting minutes, materials considered by Secretary Duke’s subordinates,

10 communications from White House officials or staff, communications from the Department of

11 Justice, and communications between DHS and state authorities, which they contend should

12 necessarily be part of the administrative record (Br. at 9–10).

13

Plaintiffs drew this list, in part, from a United States Department of Justice Guidance,

14 which sets forth non-binding recommendations for how to compile an administrative record and

15 what to include. United States Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to Federal

16 Agencies on Compiling the Administrative Record (Jan. 1999). Specifically, the Guidance

17 states that the administrative record should “[i]nclude all documents and materials prepared,

18 reviewed, or received by agency personnel and used by or available to the decision-maker,

19 even though the final decision-maker did not actually review or know about the documents

20 and materials.” Id. at 3. It further provides that the record should include “communications

21 the agency received from other agencies . . . documents and materials that support or oppose

22 the challenged agency decision . . . minutes of meetings or transcripts thereof . . . [and]

23

24

25

4 Defendants also argue that they should not be required to produce any administrative record

whatsoever because the Department of Homeland Security’s decision to end DACA was an exercise of
26 prosecutorial discretion not subject to judicial review (Opp. at 1). Earlier in these actions, our defendants

agreed to produce the administrative record by October 6, and were then ordered to do so. They may not now
27 renege on that commitment. At this stage, defendants are required to produce an administrative record. Should

they prevail on this argument on their eventual motion to dismiss, it will be with the benefit of a proper
28 administrative record.

5

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 6 of 14

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1 memorializations of telephone conversations and meetings, such as memorandum or

2 handwritten notes.”5

3

Plaintiffs contend that communications from DOJ and the White House are a critical

4 part of “the whole record” due to their significant public participation in the process of

5 rescinding DACA. Plaintiffs first point to Attorney General Sessions’ September 4 letter,

6 which DHS expressly relied upon in its memorandum terminating the program (see Dkt. No.

7 64-1 at 251, 255). Despite this critical and publicly disclosed role in the decision, the only DOJ

8 document defendants include in the record is this one-page September 4 letter. This, plaintiffs

9 contend, is clear evidence that defendants omitted documents supporting (or contradicting) the

10 opinions set forth in Attorney General Sessions’ letter, in particular the opinion that DACA was

11 unlawfully implemented.

12

Additionally, the White House has repeatedly emphasized the President’s direct role

13 in decisions concerning DACA. For example, a September 5 White House press release

14 announced “President Donald J. Trump Restores Responsibility and the Rule of Law to

15 Immigration” by rescinding DACA, and repeatedly stated that “President Trump” had acted to

16 end the program. Press Release, The White House Office of the Press Secretary, President

17 Donald J. Trump Restores Responsibility and the Rule of Law to Immigration (Sept. 5, 2017),

18 https://www.whitehouse.gov/thepress-office/2017/09/05/president-donald-j-trump-restores-

19 responsibility-and-rule-law. Other articles likewise emphasize White House officials’ roles

20 in decision-making regarding DACA. See, e.g., Michael D. Shear & Julie Hirschfeld Davis,

21 Trump Moves to End DACA and Calls on Congress to Act, New York Times (Sept. 5, 2017).

22 Moreover, defendants concede in their response that Secretary Duke “received advice from

23 other members of the executive branch” in making her decision (Opp. at 17) and refer to “White

24 House memorandum” in their privilege log (Dkt. No. 71-2). And at oral argument, counsel for

25
5 A 2008 DOJ memorandum specifically notes that the 1999 Guidance is a non-binding internal
26 document, which does not “limit the otherwise lawful prerogatives of the Department of Justice or any other
federal agency” (Dkt. No. 71-1 at 3). In particular, the 2008 memorandum takes issue with outside parties’ use
27 of the Guidance in litigation to advocate for a particular composition of the administrative record or process for
its assembly (ibid.). Recognizing that the 1999 Guidance is not binding upon agencies, this order finds that the
28 Guidance nevertheless provides helpful insight into the types of documents and materials an agency should
consider when assembling an administrative record.

6

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United States District Court For the Northern District of California

1 defendants said it was likely Secretary Duke had received verbal input before making her

2 decision. Despite this, defendants have failed to provide even a single document from any

3 White House officials or staff.

4

Plaintiffs further observe that not a single document from one of Secretary Dukes’

5 subordinates is in the record. It strains credulity to suggest that the Acting Secretary of DHS

6 decided to rescind a program covering 800,000 enrollees without consulting one advisor or

7 subordinate within DHS. Again, at oral argument, government counsel represented that she

8 had likely received verbal input. The government’s in camera submission confirms that she

9 did receive substantial DACA input.

10

Finally, former DHS Secretary John Kelly issued a memorandum in February 2017,

11 in which he rescinded all DHS memoranda that conflicted with newly stated immigration

12 enforcement policies — but expressly declined to rescind DACA (Dkt. No. 64-1 at 229–30).

13 This decision, of course, is directly contrary to that taken by Acting Secretary Duke seven

14 months later. The administrative record, however, omits all materials explaining the change

15 in position from February to September, with two exceptions — (1) a June 29 letter from Ken

16 Paxton, the Attorney General of Texas, to Attorney General Sessions, in which he threatens

17 to amend the suit challenging DAPA to also challenge DACA if it is not rescinded by

18 September 5, and (2) Attorney General Sessions’ September 4 letter to Secretary Duke

19 expressing the opinion that DHS should rescind DACA. Reasoned agency decision-making

20 ordinarily “demand[s] that [the agency] display awareness that it is changing position” and

21 “show that there are good reasons for the new policy.” F.C.C. v. Fox Television Stations, Inc.,

22 556 U.S. 502, 515 (2009). Accordingly, “the whole record” would ordinarily contain materials

23 giving a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or

24 were engendered by the prior policy.” Ibid. It is simply not plausible that DHS reversed policy

25 between February and September because of one threatened lawsuit (never actually filed)

26 without having generated any materials analyzing the lawsuit or other factors militating in favor

27 of and against the switch in policy.

28

7

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1

Based on the foregoing, plaintiffs have clearly shown that defendants excluded highly

2 relevant materials from the administrative record and in doing so have rebutted the presumption

3 that the record is complete.

4

Defendants’ argument to the contrary is unpersuasive. Their position that only selected

5 documents that Acting Secretary Duke personally reviewed need be part of the administrative

6 record must yield to legal authority requiring both directly and indirectly considered documents

7 be included in the record, see, e.g., Thompson, 885 F.2d at 555–56, and by public statements

8 illustrating both DOJ and the White House’s direct involvement in the decision to rescind

9 DACA. The rule that government counsel advocates would allow agencies to contrive a record

10 that suppresses information actually considered by decision-makers and by those making

11 recommendations to the decision-makers, information that might undercut the claimed rationale

12 for the decision.

13

As stated, privilege log entries reveal several documents that were considered in arriving

14 at the decision to rescind DACA. For example, at least seven entries refer to commentary in

15 media articles regarding DACA. At oral argument, government counsel admitted that the

16 Acting Secretary had seen several media items on the issue. There were not, however, any

17 media articles on DACA in the administrative record, but those that came to the Acting

18 Secretary should, of course, be included.6

19

Here, plaintiffs have rebutted the presumption of completeness. It is evident that Acting

20 Secretary Duke considered information directly, or indirectly, through the advice of other

21 agencies and others within her own agency. These documents, as set forth in detail below,

22 should be made part of the administrative record and must be produced by defendants in an

23 amended administrative record by NOON ON OCTOBER 27.

24
6 Many documents were evidently excluded in their entirety based on an assertion of “deliberative-
25 process” privilege. Any “[f]actual portions of documents covered by the deliberative process privilege,
[however], must be segregated and disclosed unless they are so interwoven with the deliberative material” that
26 they are not segregable. See Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir 2008) (citations
and quotations omitted). Accordingly, to the extent that media articles or other non-privileged factual materials
27 were considered, they should have been included in the administrative record, and shall be filed as part of the
amended administrative record, even if passages are redacted as deliberative, and called out as such in the
28 privilege log.

8

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1

3.

WAIVER OF ATTORNEY-CLIENT PRIVILEGE.

2

Plaintiffs next argue that defendants have waived attorney-client privilege because they

3 have put their attorneys’ legal opinions at issue by arguing that the rescission was required due

4 to concerns over DACA’s legality (Br. at 15–16). Indeed, one of DHS’s primary rationales for

5 rescinding DACA was its purported illegality (see Dkt. No. 64-1 at 253–56 (Rescission

6 Memorandum)).

7

Parties are not permitted to advance conclusions that favor their position in litigation,

8 and at the same time shield the information that led to those conclusions from discovery.

9 See Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Put differently, “[t]he

10 privilege which protects attorney-client communications may not be used both as a sword and a

11 shield.” Ibid. Where a party raises a claim, which in fairness to its adversary requires it to

12 reveal the information or communication that claim is predicated upon, it has implicitly waived

13 any privilege over that communication.

14

Here, defendants argue that DHS had to rescind DACA because it exceeded the lawful

15 authority of the agency. They cannot, therefore, simultaneously refuse to disclose the legal

16 research that led to that conclusion. Defendants indeed, have included the September 4 legal

17 opinion of the Attorney General, pithy as it may be — yet they seek to conceal all other legal

18 analysis available to the Acting Secretary and to the Attorney General.

19

Significantly, defendants slide into a backup argument that the agency’s legal worry was

20 “reasonable” even if wrong. If this backup argument comes into play (as government counsel

21 posits) then the “reasonableness” of taking an incorrect legal position would heavily turn on the

22 underlying legal analysis so far withheld from view. In other words, assessing the

23 reasonableness of the Secretary’s legal rationale would turn, in part, on how consistent the

24 analysis has been in the runup to the rescission.

25

Defendants’ arguments to the contrary are unavailing. They first argue, without citation

26 to any legal authority, that “[w]ere plaintiffs’ argument accepted, the government would be

27 deemed to have waived all privileges any time an assessment of the legal landscape informed an

28 agency’s decisionsmaking” (Opp. at 21). This argument vastly exaggerates plaintiffs’ position,

9

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 10 of 14

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1 and misrepresents the position defendants have staked out in this litigation. DHS specifically

2 relied upon DOJ’s assessment that DACA “was effectuated . . . without proper statutory

3 authority,” “was an unconstitutional exercise of authority by the Executive Branch” and “has

4 the same legal and constitutional defects that courts recognized as to DAPA” (Dkt. No. 64-1 at

5 254). Plaintiffs are entitled to challenge whether this was a reasonable legal position and thus a

6 reasonable basis for rescission. In making that challenge, plaintiffs are entitled to review the

7 internal analyses that led up to this change in position.

8

Defendants further argue that the decisions cited by plaintiffs are inapplicable because

9 they arose in different contexts than the present action. True, the decisions plaintiffs cite did

10 not arise in identical circumstances. E.g. Chevron Corp., 974 F.2d at 1162 (defendant

11 prohibited from relying on legal opinion that tax position was reasonable while refusing to

12 disclose the attorney communications leading to that conclusion). They still, however, stand for

13 the widely-accepted proposition that it is unfair for a litigant to defend his action with a

14 selective disclosure of evidence. This principle carries no less force here.

15

In the related context of FOIA, the Court of Appeals for the Second Circuit held that

16 “the attorney-client privilege may not be invoked to protect a document adopted as, or

17 incorporated by reference into an agency’s policy.” Nat’l Council of La Raza v. Dep't of

18 Justice, 411 F.3d 350, 360 (2d Cir. 2005). There, DOJ invoked the reasoning of an OLC

19 memorandum to justify its new position on an immigration issue. Id. at 357. The court held

20 that the agency’s “view that it may adopt a legal position while shielding from public view the

21 analysis that yielded that position is offensive to FOIA.” Id. at 360. So too here.

22

Defendants have waived attorney-client privilege over any materials that bore on

23 whether or not DACA was an unlawful exercise of executive power and therefore should be

24 rescinded.

25

4.

DELIBERATIVE-PROCESS PRIVILEGE BALANCING.

26

Defendants further assert the deliberative-process privilege over many documents.

27

The deliberative-process privilege, however, is qualified and will yield when the need

28 for materials and accurate fact-finding “override the government’s interest in non-disclosure.”

10

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1 F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Among factors to

2 be considered in making this determination are: (1) the relevance of the evidence; (2) the

3 availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to

4 which disclosure would hinder frank and independent discussion regarding contemplated

5 policies and decisions.” Ibid.

6

As set forth below, the judge has personally reviewed in camera all materials on the

7 privilege log and applied the foregoing test to each document for which the deliberative-process

8 privilege is claimed.7

9

5.

PRIVILEGE LOG REQUIREMENT.

10

While defendants did not file a privilege log with their original production, they have

11 since, pursuant to order, filed a privilege log claiming attorney-client or deliberative-process

12 privilege over 84 documents considered by Secretary Duke but not included in the

13 administrative record (Dkt. Nos. 67; 71-2). Nevertheless, defendants argue that privilege logs

14 are not generally required in connection with an administrative record and that one should not

15 be required here.

16

Our court of appeals has not spoken on the issue. Every court in this district

17 considering the issue, however, has required administrative agencies to provide a privilege log.

18 See, e.g., Ctr. for Food Safety v. Vilsack, No. 15CV01590HSGKAW, 2017 WL 1709318, at *5

19 (N.D. Cal. May 3, 2017) (Magistrate Judge Kandis Westmore) (“[C]ourts in this district have

20 required parties withholding documents on the basis of the deliberative process privilege to, at a

21 minimum, substantiate those claims in a privilege log.”); Inst. for Fisheries Res. v. Burwell, No.

22 16-CV-01574-VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017) (Judge Vince Chhabria);

23 Lockyer, 2006 WL 708914, at *4.

24

25

26

27

7 Although not addressed in the brief or at oral argument, the privilege log referenced personal privacy

and executive privilege objections for certain documents. No substantial privacy interest is implicated in any of
28 the documents ordered to be produced below, nor do any of these documents fall within the executive privilege.

11

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 12 of 14

United States District Court For the Northern District of California

1

“If a privilege applies, the proper strategy isn’t pretending the protected material wasn’t

2 considered, but withholding or redacting the protected material and then logging the privilege.”

3 Inst. for Fisheries Res., 2017 WL 89002 at *1.8

4

Courts outside this district that have determined no privilege log was required have done

5 so on the grounds that the defendants’ judgment of what constitutes the administrative record is

6 entitled to a presumption of correctness. See San Luis & Delta-Mendota Water Auth. v. Jewell,

7 No. 115CV01290LJOGSA, 2016 WL 3543203, at *19 (E.D. Cal. June 23, 2016) (Judge

8 Lawrence O’Neill); Nat’l Ass’n of Chain Drug Stores v. United States Dep't of Health &

9 Human Servs., 631 F. Supp. 2d 23, 27 (D.D.C. 2009). Here, however, that presumption has

10 been overcome by plaintiffs’ showing that defendants failed to include documents considered in

11 arriving at the final decision to rescind DACA in the administrative record. Therefore, even

12 applying those courts’ logic, a privilege log would still be appropriate here.

13

Going forward, defendants shall comply with the standing order in this case and provide

14 a privilege log for all documents withheld on grounds of privilege, which log shall include all

15 authors and recipients of privileged documents, as well as other information set forth in the rule

16 (see Dkt. No. 23 ¶ 18).

17

RELIEF ORDERED

18

Plaintiffs’ motion to complete the administrative record is GRANTED to the extent now

19 stated. Defendants are directed to complete the administrative record by adding to it all emails,

20 letters, memoranda, notes, media items, opinions and other materials directly or indirectly

21 considered in the final agency decision to rescind DACA, to the following extent: (1) all

22 materials actually seen or considered, however briefly, by Acting Secretary Duke in connection

23 with the potential or actual decision to rescind DACA (except as stated in the next paragraph

24 below), (2) all DACA-related materials considered by persons (anywhere in the government)

25 who thereafter provided Acting Secretary Duke with written advice or input regarding the

26
8 In a memorandum opinion, our court of appeals denied a plaintiff’s request to require a privilege log.
27 See Cook Inletkeeper v. EPA, 400 F. App'x 239, 240 (2010). In that decision, however, our court of appeals
first denied a motion to supplement the record, and finding that the plaintiffs had not presented evidence that the
28 agency had considered the documents the plaintiffs sought to compel, only then denied the accompanying
motion for preparation of a privilege log without further explanation.

12

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 13 of 14

United States District Court For the Northern District of California

1 actual or potential rescission of DACA, (3) all DACA-related materials considered by persons

2 (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input

3 regarding the actual or potential rescission of DACA, (4) all comments and questions

4 propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual

5 or potential rescission of DACA and their responses, and (5) all materials directly or indirectly

6 considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum

7 not to rescind DACA.

8

The undersigned judge has balanced the deliberative-process privilege factors and

9 determined in camera that the following materials from the government’s in camera

10 submission, listed by tab number, shall be included in the administrative record: 1–6, 7 (only

11 the header and material on pages 3–4 concerning DACA), 12, 14, 17–25, 27–30, 36, 39, 44, 47,

12 49 (only the first paragraph, and the paragraph captioned “General”), 69–70, 73–74, 77, 79, 81,

13 84. The remainder of the in camera submission need not be included.

14

If the government redacts or withholds any material based on deliberative-process, or

15 any other privilege in its next filing, it shall simultaneously lodge full copies of all such

16 materials, indicating by highlighting (or otherwise) the redactions and withholdings together

17 with a log justification for each. The judge will review and rule on each item.

18

Plaintiffs’ insistence that defendants scour the Department of Justice and the White

19 House for documents for inclusion in the administrative record is overruled except to the

20 limited extent that DOJ or White House personnel fall within the category described in the first

21 paragraph above as someone who gave verbal or written input to the Acting Secretary. Nor do

22 defendants have to search for DACA materials below the agency levels indicated in the first

23 paragraph above. These are intended as practical limits on what would otherwise be a bone-

24 crushing expedition to locate needles in haystacks.

25

This order, however, is not intended to limit the scope of discovery (as opposed to the

26 scope of the administrative record). The scope of discovery over and above the administrative

27 record continues to be managed by Magistrate Judge Sallie Kim.

28

13

Case 3:17-cv-05235-WHA Document 39 Filed 10/17/17 Page 14 of 14

United States District Court For the Northern District of California

1

The federal defendants shall file an amended administrative record in conformity with

2 this order by NOON ON OCTOBER 27.

3

If any party plans to seek a writ of mandate and wants a stay pending appellate review,

4 then a fresh motion to that effect must be made very promptly.

5

6

IT IS SO ORDERED.

7

8 Dated: October 17, 2017. 9

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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 Case 3:17-cv-05235-WHA Document 42 Filed 10/19/17 Page 1 of 4

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

ORDER RE MOTION TO STAY PROCEEDINGS

18

Defendants. /

19

20

An October 17 order required federal defendants to complete the administrative record,

21 including by providing all materials directly or indirectly considered by the Acting Secretary of

22 the Department of Homeland Security in connection with her decision to rescind the Deferred

23 Action for Childhood Arrivals (“DACA”) policy, as well as all materials considered by those

24 who advised the Acting Secretary (Dkt. No 79).

25

On October 18, federal defendants filed this motion seeking a stay of certain

26 proceedings — including all discovery and further proceedings concerning composition of the

27 administrative record — pending resolution of a writ of mandamus appealing the October 17

28 order, which writ they will file with our court of appeals no later than October 20 (Dkt. No. 81).

All parties stipulated to an expedited briefing schedule, pursuant to which plaintiffs filed a

Case 3:17-cv-05235-WHA Document 42 Filed 10/19/17 Page 2 of 4

United States District Court For the Northern District of California

1 response at 5:00 p.m. today. With the benefit of the parties’ briefing, this order now DENIES

2 federal defendants’ motion for a stay.

3

Whether to grant a stay is, in the first instance, in the discretion of the district court.

4 Nken v. Holder, 556 U.S. 418, 433 (2009). That discretion is guided by a four-factor test, under

5 which courts consider: “(1) whether the stay applicant has made a strong showing that he is

6 likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a

7 stay; (3) whether issuance of the stay will substantially injure the other parties interested in the

8 proceeding; and (4) where the public interest lies.” Ibid. (citations and quotations omitted).

9

These factors do not favor our federal defendants. The contentions federal defendants

10 rely upon in arguing that they are likely to succeed on the merits are largely duplicative of their

11 arguments opposing completion of the administrative record, which were rejected by the

12 October 17 order. For the same reasons set forth therein, these arguments remain unavailing.

13 Federal defendants additional arguments are likewise unpersuasive. They offer a strained and

14 inaccurate interpretation of 8 U.S.C. 1252(g) in support of their position that the decision to

15 rescind DACA is unreviewable. Section 1252(g), however, only bars judicial review of

16 decisions “by the Attorney General to [1] commence proceedings, [2] adjudicate cases, or [3]

17 execute removal orders,” none of which are at issue here. This provision has been “narrowly

18 construed” and is plainly inapplicable to this action. See Kwai Fun Wong v. United States, 373

19 F.3d 952, 964 (9th Cir. 2004). Nor does federal defendants’ argument regarding the Court’s

20 position on whether Acting Secretary Elaine Duke is subject to deposition — a topic not yet

21 formally raised in this action or properly the subject of defendants’ mandamus petition — show

22 that they are likely to succeed.

23

Most importantly, a stay will likely result in substantial and irreparable harm to our

24 plaintiffs, and to those parties most interested in these proceedings, people who are currently

25 enrolled in DACA. All face a March 5, 2018 deadline, on which date the Department of

26 Homeland Security has determined to end DACA. On that day, people currently living and

27 working in the United States will begin to lose the protections afforded by DACA. The Court

28 intends to reach a decision before the March 5 deadline, on a substantial and complete record,

2

Case 3:17-cv-05235-WHA Document 42 Filed 10/19/17 Page 3 of 4

United States District Court For the Northern District of California

1 which can be reviewed by our court of appeals, and has set a schedule that will accomplish this.

2 A stay risks allowing this deadline to pass without a decision on the merits, and therefore poses

3 a substantial threat to our plaintiffs and to DACA enrollees.

4

Moreover, any alleged “irreparable harm” imposed upon the government related to their

5 discovery burden pales in comparison to that which will be faced by DACA enrollees. Nor will

6 privileged government communications be publicly disclosed, as the undersigned judge has

7 reviewed, and as necessary will continue to review such documents, submitted in camera, and

8 withhold from public view those that require withholding.

9

Finally, the public’s interest is best served by a thorough, transparent, and expeditious

10 resolution of this litigation. Federal defendants’ argument that this action and one other lawsuit

11 pending in New York have diverted resources from the Department of Homeland Security’s

12 mission of protecting the United States is not well taken. The federal government is certainly

13 equipped to participate in this litigation and continue to perform its core functions.

14

Though federal defendants analyze their motion under the four-factor test set forth

15 above, they also suggest that a different test applies here since they seek to stay a proceeding as

16 opposed to only staying an order or judgment. That test asks “whether (1) resolution by the

17 Ninth Circuit of the issue addressed in [the appealed order] could materially affect this case and

18 advance the ultimate termination of litigation and (2) whether a stay will promote [ ] economy

19 of time and effort for the Court and the parties.” American Hotel & Lodging Ass'n v. City of

20 Los Angeles, No. CV 14-09603-AB (SSX), 2015 WL 10791930, at *3 (C.D. Cal. Nov. 5, 2015)

21 (Judge Andre Birotte Jr.) (internal citations and quotations omitted).

22

This, however, is mere slight of hand. Federal defendants are not seeking to stay “all

23 proceedings in the DACA cases” as they state in their notice of motion (Dkt. No. 81 at 1), but

24 rather are seeking to “stay discovery and further proceedings concerning the composition of the

25 administrative record pending a ruling on [their] upcoming motion to dismiss” as they clarify in

26 their memorandum of points and authorities (id. at 1–2). In other words, they are moving to

27 stay the October 17 order — a motion to which the four-part Nken test applies — while

28 continuing to litigate only their affirmative case. This is improper.

3

Case 3:17-cv-05235-WHA Document 42 Filed 10/19/17 Page 4 of 4

United States District Court For the Northern District of California

1

Even under the test set forth in American Hotel & Lodging, however, defendants motion

2 still fails. First, a stay will not promote economy of time and effort. In fact, it will have the

3 opposite effect. It will prolong proceedings and in all likelihood duplicate efforts by creating a

4 delay, which requires litigation first on the issue of provisional relief followed by a second

5 round of litigation on the merits. This will result in a waste of time and resources.

6

Second, staying discovery and proceedings concerning composition of the

7 administrative record will not advance the litigation. An appellate decision on the composition

8 of the administrative record can be made now or later, as our court of appeals prefers, but we

9 ought to continue making progress on the merits while that court considers the issue.

10

For the foregoing reasons, federal defendants’ motion to stay proceedings is DENIED.

11 This action shall continue on the schedule set forth in the September 22 Scheduling Order (Dkt.

12 No. 49). Even in the unfortunate event that the administrative record is not settled (due to

13 appellate proceedings), our briefing schedule will nevertheless allow an orderly assessment of

14 whether or not provisional relief is warranted.

15

16

17

IT IS SO ORDERED.

18

19

20 Dated: October 19, 2017.

21

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

22

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4

 
 Case 3:17-cv-05235-WHA Document 46 Filed 10/24/17 Page 1 of 2

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 UC REGENTS, et al.,

8

Plaintiffs,

9

v.

10 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
11 Defendants.
12

13

Case No. 17-cv-05211-WHA (SK) Case No. 17-cv-05235-WHA (SK) Case No. 17-cv-05329-WHA (SK) Case No. 17-cv-05380-WHA (SK) Case No. 17-cv-05813-WHA (SK)
ORDER RE DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE
Regarding Docket No. 88

14

The Parties have submitted a joint letter brief regarding Defendants’ objection to the

15 deposition of Defendant Acting Secretary of Homeland Security (DHS) Elaine C. Duke. The

16 Court is aware of the pending deadline of November 1, 2017 to file various important motions, the

17 pending mandamus petition with the Ninth Circuit, and the trial date of February 5, 2018, all

18 resulting from the looming deadline of March 5, 2018 for the rescission of DACA.

19

The Court ORDERS that Defendant Acting Secretary of Homeland Security (DHS) Elaine

20 C. Duke appear for deposition before November 15, 2017. The deposition of Acting Secretary

21 Duke may take place via videoconference or, if not available, by telephone, and shall not exceed

22 four hours (not including breaks).

23

This Court will issue a memorandum decision following this short order, issued under time

24 constraints. However, chief among the reasons for this Order is the fact that the testimony of

25 lower-level deponents is that Acting Secretary Duke was the sole decision maker with regard to

26 the rescission of DACA. (Dkts. 90-1 and 90-2.) The extraordinary circumstances required for a

27 deposition of Acting Secretary Duke exist.

28 / / /

Case 3:17-cv-05235-WHA Document 46 Filed 10/24/17 Page 2 of 2

United States District Court Northern District of California

1

IT IS SO ORDERED.

2 Dated: October 24, 2017

3

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_______________________________ SALLIE KIM United States Magistrate Judge
2

 
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Cite as: 583 U. S. ____ (2017)

1

Per Curiam

SUPREME COURT OF THE UNITED STATES
IN RE UNITED STATES, ET AL.
ON PETITION FOR WRIT OF MANDAMUS
No. 17–801. Decided December 20, 2017
PER CURIAM.
This case arises from five related lawsuits that challenge a determination adopted by the Acting Secretary of the Department of Homeland Security (DHS). The determination, announced by the Acting Secretary, is to take immediate steps to rescind a program known as Deferred Action for Childhood Arrivals, or DACA, by March 5, 2018. The Acting Secretary stated that her determination was based in part on the Attorney General’s conclusion that DACA is unlawful and likely would be enjoined in potentially imminent litigation.
The five suits were filed in the United States District Court for the Northern District of California, and the plaintiffs in those actions are the respondents in the matter now before this Court. The defendants in the District Court, and the petitioners here, include the Government of the United States, the Acting Secretary, and the President of the United States, all referred to here as the Government.
In the District Court litigation respondents argue that the Acting Secretary’s determination to rescind DACA in the near future is unlawful because, among other reasons, it violates the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment, including the equal protection guarantee implicit in that Clause.
The issue to be considered here involves respondents’ contention that the administrative record the Government filed to support the Acting Secretary’s determination to rescind DACA is incomplete. The record consists of 256

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2

IN RE UNITED STATES

Per Curiam
pages of documents, and the Government contends that it contains all of the nondeliberative material considered by the Acting Secretary in reaching her determination. (Nearly 200 pages consist of published opinions from various federal courts.)
On October 17, the District Court, on respondents’ motion, ordered the Government to complete the administrative record. See Regents of Univ. of Cal. v. Department of Homeland Security, App. C to Pet. for Mandamus, 2017 WL 4642324 (ND Cal., Oct. 17, 2017) (District Court Order). The details of that order are recounted further below. See infra, at 3.
The Government petitioned for a writ of mandamus in the Court of Appeals for the Ninth Circuit. The Court of Appeals, in a divided opinion, denied the Government’s petition. See 875 F. 3d 1200 (2017).
On November 19, three days after the Court of Appeals issued its opinion, respondents moved the District Court to stay its order requiring completion of the administrative record until after the District Court resolved the Government’s motion to dismiss and respondents’ motion for a preliminary injunction. See Motion to Stay in No. 17–cv–5211 (Nov. 19, 2017), Doc. 190. The District Court did not grant respondents’ request, instead staying its order for one month.
Still objecting to the District Court’s order, the Government now seeks relief in this Court. It has filed here a petition for a writ of mandamus to the District Court, or, in the alternative, for a writ of certiorari to the Court of Appeals.
The Court now grants the petition for a writ of certiorari, vacates the order of the Court of Appeals for the Ninth Circuit, and remands the case.
The District Court’s October 17 order requires the Government to turn over all “emails, letters, memoranda, notes, media items, opinions and other materials” that fall

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Cite as: 583 U. S. ____ (2017)

3

Per Curiam
within the following categories:
“(1) all materials actually seen or considered, however briefly, by Acting Secretary [Elaine] Duke in connection with the potential or actual decision to rescind DACA . . . , (2) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with written advice or input regarding the actual or potential rescission of DACA, (3) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input regarding the actual or potential rescission of DACA, (4) all comments and questions propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual or potential rescission of DACA and their responses, and (5) all materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA.” District Court Order, 2017 WL 4642324, at *8.
The Government makes serious arguments that at least portions of the District Court’s order are overly broad. (The Government appears to emphasize certain materials in categories 2, 3, and 4.) Under the specific facts of this case, the District Court should have granted respondents’ motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government’s threshold arguments (that the Acting Secretary’s determination to rescind DACA is unreviewable because it is “committed to agency discretion,” 5 U. S. C. §701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.

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4

IN RE UNITED STATES

Per Curiam
On remand of the case, the Court of Appeals shall take appropriate action so that the following steps can be taken. The District Court should proceed to rule on the Government’s threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal under 28 U. S. C. §1292(b) if appropriate. Thereafter, the Court of Appeals or the District Court in the first instance may consider whether narrower amendments to the record are necessary and appropriate. In any event, the District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.
This order does not suggest any view on the merits of respondents’ claims or the Government’s defenses, or that the District Court’s rulings on the Government’s motion to dismiss and respondents’ motion for preliminary injunction should be delayed.
The judgment of the Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

 
 Case 3:17-cv-05235-WHA Document 83 Filed 01/09/18 Page 1 of 49

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

NIELSEN, in her official capacity as Secretary of the Department of Homeland Security,

17

Defendants.

18

/

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA
ORDER DENYING FRCP 12(b)(1) DISMISSAL AND GRANTING PROVISIONAL RELIEF

19

INTRODUCTION

20

In these challenges to the government’s rescission of the Deferred Action for Childhood

21 Arrivals program, plaintiffs move for provisional relief while the government moves to dismiss

22 for lack of jurisdiction. For the reasons below, dismissal is DENIED and some provisional relief

23 is GRANTED.

24

STATEMENT

25

In 2012, the United States Department of Homeland Security adopted a program to

26 postpone deportation of undocumented immigrants brought to America as children and, pending

27 action in their cases, to assign them work permits allowing them to obtain social security

28 numbers, pay taxes, and become part of the mainstream economy. This program received the

Case 3:17-cv-05235-WHA Document 83 Filed 01/09/18 Page 2 of 49

United States District Court For the Northern District of California

1 title “Deferred Action for Childhood Arrivals” — DACA for short. In 2017, however, after the

2 national election and change in administrations, the agency eventually reversed itself and began

3 a phase-out of DACA. All agree that a new administration is entitled to replace old policies

4 with new policies so long as they comply with the law. One question presented in these related

5 actions is whether the new administration terminated DACA based on a mistake of law rather

6 than in compliance with the law.

7

1.

HISTORY OF DEFERRED ACTION.

8

At the core of these cases is an administrative practice known as “deferred action.”

9 A primary question presented concerns the extent to which the Department of Homeland

10 Security could lawfully use deferred action to implement DACA, and so it is important to review

11 the history of deferred action as well as of other features of the DACA program.

12

Congress has the constitutional power to “establish an uniform Rule of Naturalization.”

13 Art. I, § 8, cl. 4. Pursuant thereto, Congress has established a comprehensive scheme governing

14 immigration and naturalization through the Immigration and Nationality Act. 8 U.S.C. §§ 1101,

15 et seq. The Secretary of Homeland Security is “charged with the administration and enforcement

16 of [the INA] and all other laws relating to the immigration and naturalization of aliens.”

17 8 U.S.C. § 1103(a)(1). The Secretary is further charged with “establishing national immigration

18 enforcement policies and priorities.” 6 U.S.C. § 202(5).

19

One of the key enforcement tools under the INA is removal, i.e., deportation. In turn,

20 “[a] principal feature of the removal system is the broad discretion exercised by immigration

21 officials.” Arizona v. United States, 567 U.S. 387, 396 (2012). As an initial matter, in any given

22 case, immigration officials “must decide whether it makes sense to pursue removal at all.” Ibid.

23 At each stage of the removal process, they have “discretion to abandon the endeavor.” Reno v.

24 Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”).

25

Beginning as early as 1975, one way to exercise this discretion became “deferred action.”

26 By deferred action, immigration officials could postpone, seemingly indefinitely, the removal of

27 individuals unlawfully present in the United States “for humanitarian reasons or simply for [the

28

2

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United States District Court For the Northern District of California

1 Executive’s] own convenience.” Id. at 483–84. Immigration officials could also grant parole,

2 temporary protected status, deferred enforced departure, or extended voluntary departure.

3

Some of these discretionary powers have flowed from statute. Parole, for example,

4 has allowed otherwise inadmissible aliens to temporarily enter the United States “for urgent

5 humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Temporary

6 protected status, also created by statute, has been available to nationals of designated foreign

7 states affected by armed conflicts, environmental disasters, and other extraordinary conditions.

8 8 U.S.C. § 1254a.

9

Some of these discretionary powers, however, have flowed from nonstatutory powers.

10 Deferred enforced departure had no statutory basis but, instead, grew out of “the President’s

11 constitutional powers to conduct foreign relations.” USCIS, Adjudicator’s Field Manual

12 § 38.2(a) (2014). Nor has extended voluntary departure been anchored in any statute. Rather,

13 it has been recognized as part of the discretion of the Attorney General. Hotel & Restaurant

14 Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc).

15

Deferred action, originally known as “nonpriority” status, also began “without express

16 statutory authorization” but has since been recognized by the Supreme Court as a “regular

17 practice.” AADC, 525 U.S. at 484. Congress has also acknowledged deferred action by explicit

18 reference to it in the INA (8 U.S.C. § 1227(d)(2)):

19

The denial of a request for an administrative stay of removal under

this subsection shall not preclude the alien from applying for a stay

20

of removal, deferred action, or a continuance or abeyance of

removal proceedings under any other provision of the immigration

21

laws of the United States.

22

Another federal statute, the REAL ID Act, also acknowledged deferred action. REAL ID

23 Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. This law provided that states could issue

24 a temporary driver’s license or identification card to persons who can demonstrate an

25 “authorized stay in the United States.” Id. §§ 202(c)(2)(C)(i)–(ii). Persons with “approved

26 deferred action status” were expressly identified as being present in the United States during a

27 “period of authorized stay,” for the purpose of issuing state identification cards. Id. §§

28 202(c)(2)(B)(viii), (C)(ii).

3

Case 3:17-cv-05235-WHA Document 83 Filed 01/09/18 Page 4 of 49

United States District Court For the Northern District of California

1

Congress has also given the Executive Branch broad discretion to determine when

2 noncitizens may work in the United States. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,

3 1062 (9th Cir. 2014) (“Brewer I”); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien”

4 not entitled to work in the United States as an alien who is neither a legal permanent resident

5 nor “authorized to be . . . employed by [the INA] or by the [Secretary of Homeland Security]”).

6 Pursuant to this statutory authority, regulations promulgated in the 1980s allowed recipients of

7 deferred action to apply for work authorization if they could demonstrate an “economic necessity

8 for employment.” 8 C.F.R. § 274a.12(c)(14).

9

The George W. Bush Administration began to use deferred action to mitigate a harsh

10 statutory provision involving “unlawful presence.” The Illegal Immigration Reform and

11 Immigrant Responsibility Act of 1996 created three- and ten-year bars on the admission of

12 aliens who departed or were removed from the United States after periods of “unlawful

13 presence” of between 180 days and one year, or more than one year, respectively. 8 U.S.C.

14 § 1182(a)(9)(B)(i). It also imposed a permanent bar on the admission of any alien who,

15 without being admitted, entered or attempted to reenter the United States after having been

16 unlawfully present for an aggregate period of more than one year. 8 U.S.C. § 1182(a)(9)(C)(i).

17 Beginning in 2007, however, DHS regulations and policy guidance provided that deferred action

18 recipients did not accrue “unlawful presence” for purposes of the INA’s bars on re-entry.

19 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership,

20 from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS,

21 Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections

22 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). DHS excluded recipients

23 of deferred action from being “unlawfully present” because their deferred action is a period of

24 stay authorized by the government. Brewer I, 757 F.3d at 1059 (citing 8 U.S.C.

25 § 1182(a)(9)(B)(ii)). This nonaccrual practice arose well before DACA.1

26

27
1 Undocumented aliens do not begin to accrue “unlawful presence” for purposes of
28 Section 1182(a)(9)(B)(i) until they reach the age of eighteen. 8 U.S.C. § 1182(a)(9)(B)(iii).

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1

DACA grew out of a long agency history of discretionary relief programs. In 1956, the

2 Eisenhower Administration paroled roughly one thousand foreign-born orphans who had been

3 adopted by American citizens but were precluded from entering the United States because of

4 statutory quotas. That same administration later granted parole to tens of thousands of

5 Hungarian refugees after the unsuccessful Hungarian revolution. Both programs flowed from

6 presidential statements, and the programs later ended (in 1959 and 1958, respectively) when

7 Congress passed laws enabling the paroled individuals to become lawful permanent residents

8 (App. 1602–03, 1948–57; AR 33).2

9

In 1987, President Ronald Reagan instituted the Family Fairness Program, a non-

10 statutory program that provided extended voluntary departure to children whose parents were in

11 the process of legalizing their immigration status under the Immigration Reform and Control Act

12 of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover

13 spouses of such legalized aliens, and the program ultimately provided immigration relief to

14 approximately 1.5 million people. The need for the program ended with the passage of the

15 Immigration Act of 1990 (App. 1607, 1612–13, 1703).

16

On at least four occasions prior to the creation of DACA, immigration officials have

17 extended deferred action programs to certain classes of aliens, none of which programs was

18 expressly authorized by statute:

19

•

In 1997, INS established a deferred action program for individuals

20

self-petitioning for relief under the Violence Against Women Act of

21

1994. This program is still in place today. As originally enacted, the

22

Act did not mention deferred action, but instead provided a pathway

23

to lawful permanent residency. Deferred action allowed applicants

24

to remain in the country pending a decision on their applications.

25

26

2 “App.” refers to the appendix submitted in support of plaintiffs’ motion for provisional relief (Dkt.

Nos. 113, 117–19, 121, 124). In connection with their motion for provisional relief, plaintiffs seek judicial
27 notice of thirty-nine exhibits submitted with the appendix (Dkt. No. 111-2). The request is unopposed.

These exhibits consist of congressional testimony and government publications, memoranda, and press releases.
28 Plaintiffs’ request for judicial notice is GRANTED.

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1

Congress later expanded the deferred action program in the 2000

2

VAWA reauthorization legislation (App. at 1640–46).

3

•

In 2002 and 2003, INS issued memoranda instructing officers to make

4

deferred action assessments for T visa applicants (victims of human

5

trafficking) and U visa applicants (victims of crimes such as domestic

6

violence) (App. 1650–58). These programs have since been codified in

7

regulations promulgated by INS and DHS. 8 C.F.R. §§ 214.11(k)(1),

8

(k)(4), (m)(2); 8 C.F.R. § 214.14(d)(2).

9

•

After Hurricane Katrina in 2005, USCIS announced a deferred action

10

program for certain foreign students (F-1 visa holders) who, because of

11

the hurricane, could not satisfy the requirements of their student visas.

12

In announcing the program, USCIS stated that “[t]he interim relief

13

[would] remain in effect until February 1, 2006” (App. 1661–62).

14

•

In 2009, to fill a gap under the law, USCIS established a deferred

15

action program for widowed spouses who had been married to United

16

States citizens for less than two years. Congress later eliminated the

17

statutory requirement that an alien be married to a United States citizen

18

for at least two years at the time of the citizen’s death to retain

19

eligibility for lawful immigration status, and USCIS accordingly

20

withdrew the deferred action program as “obsolete” (App. 1664–82).

21

In sum, by the time DACA arrived in 2012, deferred action programs had become a

22 well-accepted feature of the executive’s enforcement of our immigration laws, recognized as

23 such by Congress and the Supreme Court.

24

2. DACA.

25

On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a

26 memorandum establishing Deferred Action for Childhood Arrivals. Under DACA, immigrants

27 brought to the United States as children could apply for deferred action for a two-year period,

28 subject to renewal. To qualify for DACA, an individual must: (1) have come to the United

6

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1 States before the age of sixteen and been under the age of thirty-one on June 15, 2012;

2 (2) have been present in the United States on June 15, 2012; (3) have been continuously residing

3 in the United States for at least the prior five years; (4) have been enrolled in school, graduated

4 from high school, obtained a GED, or been honorably discharged from the United States military

5 or Coast Guard; and (5) not pose a threat to national security or public safety (AR 1).

6

The 2012 DACA memo described the program as an exercise of “prosecutorial

7 discretion.” Secretary Napolitano found leniency “especially justified” for the DACA-eligible,

8 whom she described as “productive young people” who “have already contributed to our country

9 in significant ways.” The memo further stated that these individuals “lacked the intent to violate

10 the law” and were low priority cases for deportation (AR 1–2).

11

DACA applicants had to pass a DHS background check and applications had to be

12 “decided on a case by case basis.” To apply for DACA, eligible individuals completed USCIS

13 Form I-821D. The application called for substantial personal information, such as biographical

14 information, date of entry into the United States, immigration status or lack thereof, educational

15 history, and all prior residential addresses since entering the United States.

16

Form I-821D also required substantial documentary support, including proof of identity

17 and proof of continuous residence in the United States through rent receipts, utility bills,

18 employment documents, or similar records. Applicants also appeared at a USCIS field office

19 to provide fingerprints, photographs, and signatures. The form’s instructions stated (App. 1820):

20

Information provided in this request is protected from disclosure

to ICE and U.S. Customs and Border Protection (CBP) for the

21

purpose of immigration enforcement proceedings unless the

requestor meets the criteria for the issuance of a Notice To Appear

22

or a referral to ICE under the criteria set forth in USCIS’ Notice to

Appear guidance (www.uscis.gov/NTA). The information may be

23

shared with national security and law enforcement agencies,

including ICE and CBP, for purposes other than removal,

24

including for assistance in the consideration of deferred action for

childhood arrivals request itself, to identify or prevent fraudulent

25

claims, for national security purposes, or for the investigation or

prosecution of a criminal offense. The above information sharing

26

clause covers family members and guardians, in addition to the

requestor.

27

28

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1

The form’s instructions also stated (App. 1808):

2

Individuals who receive deferred action will not be placed into

removal proceedings or removed from the United States for a

3

specified period of time, unless the Department of Homeland

Security (DHS) chooses to terminate the deferral.

4

DACA applicants also submitted a Form I-765, Application for Employment

5

Authorization, a Form I-765WS, Worksheet, and the accompanying fees. To determine an

6

applicant’s eligibility for work authorization, USCIS reviewed the applicant’s current annual

7

income, current annual expenses, and the total current value of his or her assets (App. 1762,

8

1801–21, 2067–87).

9

If approved, the recipient received a Form I-797, Notice of Action, stating (App. 585):

10

USCIS, in the exercise of its prosecutorial discretion, has decided

11

to defer action in your case. Deferred action is an exercise of

prosecutorial discretion by USCIS not to pursue the removal of an

12

individual from the United States for a specific period. Deferred

action does not confer or alter any immigration status.

13

Significantly, DHS could terminate a recipient’s deferred action at any time, at the

14

agency’s discretion, and DACA paved no pathway to lawful permanent residency, much less

15

citizenship (App. 1774, 1808). Secretary Napolitano concluded her DACA memorandum

16

(AR 1–3):

17

This memorandum confers no substantive right, immigration status

18

or pathway to citizenship. Only the Congress, acting through its

legislative authority, can confer these rights. It remains for the

19

executive branch, however, to set forth policy for the exercise of

discretion within the framework of the existing law. I have done

20

so here.

21

But DACA did provide important benefits. First, under pre-existing regulations, DACA

22 recipients became eligible to receive employment authorization for the period of deferred action,

23 thereby allowing them to obtain social security numbers and to become legitimate taxpayers and

24 contributing members of our open economy. 8 C.F.R. § 274a.12(c)(14). Second, deferred action

25 provided a measure of safety for a period of two years from detention and removal, albeit always

26 subject to termination at any time in any individual case. Third, DACA recipients could apply

27 for “advance parole” to obtain permission to travel overseas and be paroled back into the United

28 States. 8 C.F.R. § 212.5(f). Fourth, also pursuant to pre-existing regulations, DACA recipients

8

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1 avoided accrual of time for “unlawful presence” under the INA’s bar on re-entry. 8 U.S.C.

2 § 1182(a)(9)(B)–(C) (establishing three-year, ten-year, and permanent bars on the admission

3 of aliens after specified periods of “unlawful presence”).

4

USCIS “strongly encourage[d]” DACA recipients to submit renewal requests between

5 120 and 150 days before the expiration date-stamped on the recipient’s Form I-797. According

6 to the “Frequently Asked Questions” posted on the agency’s website, recipients were eligible for

7 renewal under DACA so long as they: (1) did not depart the United States on or after August 15,

8 2012, without advance parole; (2) continuously resided in the United States since submitting

9 their most recent DACA request; and (3) had not received criminal convictions (with minor

10 exceptions). Renewal requests did not require additional documentary support (App. 1756–57).

11

The agency adopted DACA without any notice or opportunity for public comment.

12

According to data published by USCIS, 793,026 applicants received deferred action

13 under DACA since its inception. As of September 2017, there remained approximately 689,800

14 active DACA recipients. Their average age was 23.8. Based on a survey completed by

15 Associate Professor Tom K. Wong in August 2017, 91 percent of DACA recipients had jobs,

16 and 45 percent of DACA recipients were enrolled in school (App. 1494–1522, 1533–52).

17

3. THE DAPA LITIGATION.

18

In 2014, DHS announced a different deferred action program for parents of United States

19 citizens or lawful permanent residents, titled “Deferred Action for Parents of Americans and

20 Lawful Permanent Residents” — shortened to the confusingly-similar acronym DAPA.

21

For our purposes, DAPA is important because the United States Court of Appeals for

22 the Fifth Circuit promptly held that DAPA exceeded the statutory authority of DHS, a holding

23 that eventually moved Attorney General Jeff Sessions to rule that DACA too had exceeded the

24 agency’s authority. Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

25

The 2014 DAPA memo directed USCIS “to establish a process, similar to DACA, for

26 exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,”

27 for aliens who had a son or daughter who was a United States citizen or lawful permanent

28 resident and: (1) were not an enforcement priority under DHS policy; (2) had continuously

9

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1 resided in the United States since before January 1, 2010; (3) had been physically present in the

2 United States both when DHS announced DAPA and at the time of application to the program;

3 and (4) presented “no other factors that, in the exercise of discretion, [made] the grant of

4 deferred action inappropriate” (AR 37–41).

5

That same 2014 announcement also expanded DACA in three minor ways: (1) allowing

6 otherwise eligible immigrants to apply for DACA even if they were older than 31 on the day

7 DACA was earlier announced; (2) extending DACA renewals and work authorizations from

8 two- to three-year periods; and (3) adjusting DACA’s date-of-entry requirement from June 15,

9 2007, to January 1, 2010 (AR 37–41).

10

DAPA was also adopted without notice or opportunity for public comment.

11

A coalition of twenty-six states immediately filed suit in the United States District Court

12 for the Southern District of Texas to challenge DAPA. The district court preliminarily enjoined

13 its implementation on the ground that DHS had failed to comply with the APA’s

14 notice-and-comment requirements. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

15 The district court’s order stated that “with three minor exceptions,” the case did not involve

16 DACA (id. at 606):

17

The Complaint in this matter does not include the actions taken by

Secretary Napolitano, which have to date formalized the status of

18

approximately 700,000 teenagers and young adults. Therefore,

those actions are not before the Court and will not be addressed

19

by this opinion. Having said that, DACA will necessarily be

discussed in this opinion as it is relevant to many legal issues in

20

the present case. For example, the States maintain that the DAPA

applications will undergo a process identical to that used for

21

DACA applications and, therefore, DACA’s policies and

procedures will be instructive for the Court as to DAPA’s

22

implementation.

23

In holding that DAPA violated notice-and-comment procedures, the district court held

24 that it constituted “a new rule that substantially change[d] both the status and employability of

25 millions” and inflicted “major costs on both states and federal government.” It therefore should

26 have been issued, the district court held, after notice and opportunity for public comment. Id. at

27 671. Though the order focused on DAPA, it also preliminarily enjoined everything in the 2014

28

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1 memorandum, including the three minor ways in which DACA had been modified (but left alone

2 the 2012 DACA program).

3

The Fifth Circuit affirmed in a split decision but added a further ground for affirmance.

4 Texas, 809 F.3d at 178. Over a dissent, the appellate panel added the ground that DAPA was

5 substantively foreclosed by statute because the INA contained “an intricate process for illegal

6 aliens to derive a lawful immigration classification from their children’s immigration status,”

7 and that DAPA, by providing “the benefits of lawful presence” to undocumented immigrants

8 “solely on account of their children’s immigration status,” was inconsistent with this statutory

9 scheme, which provided its own pathway for lawful presence to parents of children lawfully

10 in the United States. Id. at 179–80, 186. The Fifth Circuit’s holding was also based on its

11 observation that “the INA does not grant the Secretary discretion to grant deferred action and

12 lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 186

13 n.202. The decision was later affirmed without opinion by an equally divided Supreme Court.

14 United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).3

15

In February 2017, DHS Secretary John Kelly issued guidance regarding the Trump

16 Administration’s immigration enforcement priorities. Although the guidance rescinded “all

17 existing conflicting directives, memoranda, or field guidance regarding the enforcement of our

18 immigration laws and priorities for removal,” the 2012 DACA memo and 2014 DAPA memo

19 were explicitly left in place. The guidance also said that the 2014 DAPA memo would “be

20 addressed in future guidance” (AR 229–34).

21

In June 2017, Secretary Kelly rescinded the 2014 DAPA memo, which rescission

22 included the 2014 expansions of DACA. He explained:

23

I have considered a number of factors, including the preliminary

injunction in this matter, the ongoing litigation, the fact that DAPA

24

never took effect, and our new immigration enforcement priorities.

After consulting with the Attorney General, and in the exercise of

25

my discretion in establishing national immigration enforcement

policies and priorities, I hereby rescind the November 20, 2014,

26

memorandum.

27

28

3 Such an affirmance has no precedential value. Neil v. Biggers, 409 U.S. 188, 192 (1972).

11

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1 Again, however, Secretary Kelly declared that the 2012 DACA memo would remain in effect

2 (AR 235–37).

3

4. RESCISSION OF DACA.

4

Also in June 2017, ten of the twenty-six plaintiffs from the DAPA litigation wrote to

5 Attorney General Jeff Sessions to demand rescission of the 2012 DACA memo. Their letter

6 stated that if DACA was rescinded by September 5, they would dismiss the still-pending DAPA

7 litigation. Otherwise, the letter threatened to try to amend their complaint to additionally

8 challenge the legality of DACA (AR 238–40).

9

A day before the deadline, the Attorney General advised Acting Secretary of Homeland

10 Security Elaine Duke via a short letter that the Obama Administration had created DACA

11 “without proper statutory authority and with no established end-date, after Congress’ repeated

12 rejection of proposed legislation that would have accomplished a similar result,” and that

13 therefore the program was an “unconstitutional exercise of authority by the Executive Branch.”

14 The Attorney General’s letter also referenced the preliminary injunction against DAPA, then

15 stated that “[b]ecause the DACA policy has the same legal and constitutional defects that the

16 courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar

17 results with respect to DACA” (AR 251).

18

The following day, without prior notice, the Acting Secretary rescinded DACA.

19 The rescission was not based on any policy criticism. Instead, it was based on the legal

20 determination by the Attorney General. The Acting Secretary explained that after “[t]aking into

21 consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and

22 the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012,

23 DACA program should be terminated.” She said that “[r]ecognizing the complexities associated

24 with winding down the program,” DHS would “provide a limited window” in which it would

25 adjudicate certain requests, but that new DACA requests and applications for employment

26 authorization would be rejected starting immediately. DHS would adjudicate, on a case-by-case

27 basis, DACA renewal requests received within thirty days from beneficiaries whose DACA

28 status would expire before March 5, 2018. She also instructed DHS to immediately stop

12

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1 approving new applications for advance parole. The rescission left in place all extant grants of

2 deferred action and work authorizations for the remainder of their validity periods (AR 252–56).

3 Consequently, starting in March 2018, the DACA population will, over two years, dwindle down

4 to zero.

5

On the night of the rescission, President Trump called upon Congress specifically to

6 enact DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

7 Administration was unable to do). If they can’t, I will revisit this issue!” During an interview

8 earlier in 2017, President Trump had stated “we are not after the dreamers, we are after the

9 criminals” and that “the dreamers should rest easy” (App. 1852–53, 1958).

10

In sum, the new administration didn’t terminate DACA on policy grounds. It terminated

11 DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and

12 constitutional authority. An important question now presented is whether that conclusion was a

13 mistake of law.

14

5.

THE INSTANT LITIGATION.

15

Plaintiffs herein filed five related non-class lawsuits in this district, all now before the

16 undersigned judge. The first commenced on September 8, brought by The Regents of the

17 University of California, on its own behalf and on behalf of its students, and Janet Napolitano,

18 in her official capacity as President of the University. UC Plaintiffs allege they have invested

19 considerable resources in recruiting students and staff who are DACA recipients, and that these

20 individuals make important contributions to the University. As DACA recipients lose their work

21 authorizations, UC Plaintiffs allege that the University will lose significant intellectual capital

22 and productivity. They further allege that students who lose DACA protections will be unable

23 “to plan for the future, apply for and obtain internships and certain financial aid and

24 scholarships, study abroad, or work to pay their tuition and other expenses,” and as a result may

25 withdraw from the University altogether (UC Compl. ¶¶ 4–6, 34–37, 48–49).4

26

27

4 Two additional DACA lawsuits proceed in the Eastern District of New York before Judge Nicholas

Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case No. 16-cv-04756
28 NGG.

13

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1

On September 11, the States of California, Maine, Maryland, and Minnesota filed suit.

2 Plaintiff States allege that they are home to more than 238,000 DACA recipients, and that the

3 loss of their residents’ DACA status and work authorizations will injure their public colleges

4 and universities, upset the States’ workforces, disrupt the States’ statutory and regulatory

5 interests, cause harm to hundreds of thousands of their residents, damage their economies,

6 and hurt companies based in Plaintiff States (States Compl. ¶¶ 1–10).

7

The City of San Jose, on its own behalf and on behalf of its employees who are DACA

8 recipients, filed its action on September 14. San Jose alleges that it has hired DACA recipients

9 into vital City jobs, that substantial resources were invested in training these employees, and that

10 the City will be harmed when these employees are forced to leave the workforce (when they lose

11 their work authorizations). San Jose further alleges that it will continue to lose tax revenue as

12 DACA recipients lose work authorizations and can no longer contribute to the City’s tax base

13 (San Jose Compl. ¶¶ 10, 28, 49–51).

14

On September 18, Individual DACA recipients Dulce Garcia, Miriam Gonzalez Avila,

15 Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut

16 Latthivongskorn brought suit to challenge the termination of DACA. Individual Plaintiffs work

17 and study in the fields of law, medicine, education, and psychology. They allege that the loss of

18 DACA will frustrate their professional goals and accomplishments. They further allege that as a

19 result of the rescission, they will lose access to numerous federal and state benefits, and may not

20 be able to reside in the United States with their families. They applied for DACA in reliance on

21 the government’s representations that information provided under the program would not be

22 used for purposes of immigration enforcement (Garcia Compl. ¶¶ 4–9, 55, 59, 72, 78, 85, 95,

23 128).

24

Finally, the County of Santa Clara and the Service Employees International Union Local

25 521 filed their complaint on October 10. The County alleges that it employs DACA recipients,

26 including union members, in key positions, such as in its In-Home Supportive Services Program

27 and New Americans Fellowship Program. The County alleges that it has expended time and

28 money in training these employees, and that it relies on them to provide important services.

14

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1 As DACA recipients leave the workforce, the County will lose important employees, will incur

2 harm to its economy and suffer decreased tax revenue, and will incur the costs of increased

3 dependency on subsidized health care and other County services. Local 521 sues as an

4 associational plaintiff on behalf of its members who are DACA recipients, and alleges that the

5 Union’s organizational mission is to organize, represent, and empower employees, as well as

6 mobilize immigration reform (Santa Clara Compl. ¶¶ 1, 15–20, 32, 37, 43–52).

7

Collectively, plaintiffs assert the following claims:

8

•

The rescission violated the Administrative Procedure Act because it

9

was arbitrary, capricious, an abuse of discretion, and otherwise not in

10

accordance with law (UC Compl. ¶¶ 50–58; State Compl. ¶¶ 152–55;

11

Garcia Compl. ¶¶ 165–84; Santa Clara Compl. ¶¶ 67–73).

12

•

The rescission violated the APA because it was a substantive rule that

13

did not comply with the APA’s notice-and-comment requirements or

14

the Regulatory Flexibility Act’s mandate under 5 U.S.C. § 604 that

15

an agency publish analysis of a rule’s impact on small businesses

16

(UC Compl. ¶¶ 59–66; State Compl. ¶¶ 146–63; San Jose Compl.

17

¶¶ 59–63; Garcia Compl. ¶¶ 177–84).

18

•

The rescission deprived DACA recipients of constitutionally-protected

19

property and liberty interests without due process of law. Plaintiffs also

20

allege that the rescission violated due process because the government

21

changed its policy regarding agency use of DACA-related information

22

(UC Compl. ¶¶ 67–73; State Compl. ¶¶ 141–45; Garcia Compl.

23

¶¶ 133–47; Santa Clara Compl. ¶¶ 59–66).

24

•

The rescission violates equal protection of the law because it was

25

motivated by discriminatory animus and because it deprived DACA

26

grantees of their substantial interests in supporting themselves and

27

furthering their education (State Compl. ¶¶ 172–77; San Jose Compl.

28

¶¶ 52–58; Garcia Compl. ¶¶ 148–59; Santa Clara Compl. ¶¶ 74–78).

15

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1

•

The rescission violates equitable estoppel. DACA recipients provided

2

detailed personal information to the government and rearranged their

3

lives based on the government’s representations, but now face the

4

possibility of removal. Plaintiffs argue that the government should

5

therefore be equitably estopped from terminating DACA or from using

6

their DACA information for immigration enforcement purposes (State

7

Compl. ¶¶ 164–71; Garcia Compl. ¶¶ 192–99; Santa Clara Compl.

8

¶¶ 79–86).

9

•

Plaintiffs seek a declaration that the rescission was unlawful and an

10

order restoring DACA (UC Compl. at 16, State Compl. at 35–36;

11

San Jose Compl. at 15–16; Garcia Compl. at 43; Santa Clara Compl.

12

at 26–27).

13

On September 21, an initial case management conference occurred for all DACA actions

14 in our district. At the conference, all counsel, including government counsel, presented a joint

15 proposal whereby the government would file the administrative record by October 13.

16 Significantly, although the government argued that discovery would be premature, it agreed to

17 submit the administrative record without any condition that it be done before any decision on its

18 threshold jurisdictional motion (presumably because it knew its jurisdictional motion would be

19 premised on the administrative record) (see Dkt. No. 114 at 16; Tr. at 17:3, 22:2). The Court

20 made only slight revisions to the joint proposal, all in aid of a stated goal of providing a full

21 record and final decision for our court of appeals prior to the March 5 expiration date. Pursuant

22 to FRCP 26, a case management order then set a October 6 deadline for the government to file

23 the administrative record, set a briefing schedule for the parties’ motions to dismiss, for

24 provisional relief, or for summary judgment, and permitted the parties to proceed with

25 reasonable, limited, and narrowly-directed discovery (Dkt. No. 49).

26

The government filed an administrative record on October 6. It was merely, however,

27 fourteen documents comprising 256 pages of which 187 consisted of published opinions from

28 the DAPA litigation, and all of which already resided in the public domain. All non-public

16

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1 materials, some eighty-four documents, actually reviewed by the Acting Secretary remained

2 withheld as privileged (Dkt. No. 71). In other words, of the ninety-eight DACA-related

3 documents personally considered by the decisionmaker, all but the fourteen already known to

4 the public were withheld as privileged. Although government counsel further indicated, upon

5 inquiry by the district judge, that the decisionmaker had also likely received verbal input,

6 nothing was included in the administrative record to capture this input. Nor were there any

7 materials regarding the agency’s earlier, recent decisions to leave DACA in place.

8

On October 9, plaintiffs moved to require the government to complete the administrative

9 record, seeking all materials considered directly or indirectly by the Acting Secretary in

10 reaching her decision to rescind DACA, which motion was granted in part and denied in part.

11 The government, having earlier consented to filing the administrative record, was ordered to

12 keep its word and to file a complete administrative record (Dkt. Nos. 65, 79–80).

13

Instead, the government filed a petition for writ of mandamus with our court of appeals,

14 seeking relief from having to complete the administrative record until after its jurisdictional

15 arguments were determined, a turnabout from its earlier voluntary proposal and stipulation to

16 file the administrative record as part of an agreed-upon schedule. After full briefing and oral

17 argument, our court of appeals denied the government’s mandamus petition and vacated the

18 stay (over one dissent).5

19

The government was again ordered to complete the administrative record, this time by

20 November 22, later extended to December 22 to accommodate the government’s claim of

21 burden. On December 1, however, the government filed a petition for writ of mandamus and

22 application for a stay in the United States Supreme Court. Ultimately, the Supreme Court did

23 not reach the merits of the government’s petition but required that defendants’ jurisdictional

24 defenses be adjudicated prior to consideration of discovery or completing the administrative

25
5 Recently, the United States Court of Appeals for the Second Circuit denied the government’s petition
26 for a writ of mandamus to stay an order to supplement the same administrative record. The court of appeals
found that there was “a strong suggestion that the record before the District Court was not complete” and, noting
27 that nearly 200 pages of the record consisted of published opinions from various federal courts, “[i]t is difficult
to imagine that a decision as important as whether to repeal DACA would be made based upon a factual record
28 of little more than 56 pages, even accepting that litigation risk was the reason for repeal.” In Re: Kirstjen M.
Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017).

17

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1 record (Dkt. Nos. 86, 188, 197, 214, 224), a decision the district judge himself might have made

2 at the outset save for the government’s own proposal and agreement to file the administrative

3 record in October.

4

Consequently, this action has proceeded on the incomplete administrative record

5 initially filed by the government. Plaintiffs have been forced to draw on other materials.

6 Ironically, even the government in these motions relies on material outside of the administrative

7 record to defend the agency decision (Dkt. No. 204 at 10, 12, 19–20). The parties have now

8 fully briefed motions to dismiss and a motion for provisional relief, all argued on December 20

9 (Dkt. Nos. 111, 114). This order now follows.

10

ANALYSIS

11

1.

MOTION TO DISMISS.

12

Defendants raise three jurisdictional arguments under FRCP 12(b)(1). First, they argue

13 that the decision to rescind DACA was a discretionary act barred from judicial review under

14 the APA. Second, they contend that the INA bars judicial review. Third, although defendants

15 concede that Individual Plaintiffs have standing, they contend that no others do. Each is

16 now addressed in turn. A separate order will consider defendants’ motion to dismiss under

17 FRCP 12(b)(6).

18

A. The DACA Rescission Was Not Committed

To Agency Discretion by Law.

19

Congress has instructed our district courts to review and set aside agency action found

20

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

21

5 U.S.C. § 706(2)(A). Under the APA, however, our district courts lack subject-matter

22

jurisdiction to review agency action that is “committed to agency discretion by law.” 5 U.S.C.

23

§ 701(a)(2).

24

In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the

25

Supreme Court explained that the jurisdictional bar of Section 701(a)(2) is “very narrow” and

26

“applicable in those rare instances where statutes are drawn in such broad terms that in a given

27

case there is no law to apply.” The Supreme Court held that because the statute there at issue

28

contained “clear and specific directives” guiding the agency’s decision, there was “‘law to

18

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1 apply,’ so the exemption for action ‘committed to agency discretion’ [was] inapplicable.” Id. at

2 411–13 (quotations and citations omitted).

3

When it next revisited the exception in Heckler v. Chaney, 470 U.S. 821, 830 (1985),

4 the Supreme Court reiterated that the exception applies only where “the statute is drawn so

5 that a court would have no meaningful standard against which to judge the agency’s exercise

6 of discretion.” There, condemned inmates asked the FDA to bring an enforcement action to

7 prevent purported violations of the Federal Food, Drug, and Cosmetic Act through the

8 administration of death-penalty drugs. The FDA Commissioner, however, refused to do so on

9 the ground that the FDA lacked jurisdiction and otherwise should not interfere with the state

10 criminal justice system. Skipping over the agency jurisdiction issue, the Supreme Court held

11 that such decisions not to prosecute or initiate enforcement actions are generally not reviewable

12 as they are “committed to an agency’s absolute discretion.” Id. at 824–25, 831.

13

Chaney identified several characteristics of non-enforcement decisions as key to

14 its holding. First, non-enforcement decisions require a complicated balancing of factors

15 “peculiarly within [the agency’s] expertise,” including whether “resources are best spent on

16 this violation or another, whether the agency is likely to succeed if it acts, whether the particular

17 enforcement action requested best fits the agency’s overall policies, and . . . whether the agency

18 has enough resources to undertake the action at all.” Id. at 831. Second, in refusing to act,

19 an agency “does not exercise its coercive power over an individual’s liberty” and accordingly

20 “does not infringe upon areas that courts often are called upon to protect.” Id. at 832. When an

21 agency does act to enforce, however, that action itself provides a focus for judicial review,

22 inasmuch as the agency must have exercised its power in some manner. Third, a refusal to

23 institute enforcement proceedings is similar to a prosecutor’s decision not to indict, which

24 decision “has long been regarded as the special province of the Executive Branch.” Ibid.

25

Our case is different from Chaney. There, the agency simply refused to initiate an

26 enforcement proceeding. Here, by contrast, the agency has ended a program which has existed

27 for five years affecting 689,800 enrollees. Importantly, major policy decisions are “quite

28 different from day-to-day agency nonenforcement decisions.” National Treasury Employees

19

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1 Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988). Rather, broad enforcement policies “are

2 more likely to be direct interpretations of the commands of the substantive statute rather than

3 the sort of mingled assessments of fact, policy, and law that drive an individual enforcement

4 decision.” Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).

5 Even defendants concede that where “the agency’s interpretation of a statute is embedded in a

6 non-reviewable enforcement policy, the former may be reviewable as such” (Dkt. No. 218 at 3

7 n.4). Although they contend that the rescission memorandum “does not contain an embedded

8 interpretation of the INA,” that assertion is incompatible with the Acting Secretary’s explicit

9 references to the INA and the Attorney General’s determination that DACA was effectuated

10 without “statutory authority.” The first and third Chaney factors, accordingly, do not apply to

11 the instant case.6

12

Chaney is also distinguishable because, unlike there, here the government reversed

13 course after five years of inviting DACA recipients out of the shadows. In contrast to

14 nonenforcement decisions, “rescissions of commitments, whether or not they technically

15 implicate liberty and property interests as defined under the fifth and fourteenth amendments,

16 exert much more direct influence on the individuals or entities to whom the repudiated

17 commitments were made.” Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Through

18 DACA, the government has invited undocumented aliens who meet threshold criteria to step

19 forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing

20 conditions, all in expectation of (though not a right to) continued deferred action. DACA

21 allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA

22 work authorizations, for example, allow recipients to join in the mainstream economy (and pay

23 taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least,

24 if any, threat and allows them to sign up for honest labor on the condition of continued good

25 behavior. This has become an important program for DACA recipients and their families, for

26
6 Contrary to defendants, Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990), is distinguishable
27 on its facts. There, the Fifth Circuit addressed a class action stemming from the Immigration and Naturalization
Service’s failure to adjudicate requests for voluntary departure. The court of appeals determined that the district
28 court had improperly issued an injunction directing INS to consider particular grounds in deciding individual
requests for voluntary departure and employment authorization. Id. at 1046.

20

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1 the employers who hire them, for our tax treasuries, and for our economy. An agency action to

2 terminate it bears no resemblance to an agency decision not to regulate something never before

3 regulated.

4

Finally, there is law to apply. The main, if not exclusive, rationale for ending DACA

5 was its supposed illegality. But determining illegality is a quintessential role of the courts.7

6

B. The INA Does Not Bar Review.

7

The principle that courts owe substantial deference to the immigration determinations of

8 the political branches is important and undisputed. Washington v. Trump, 847 F.3d 1151, 1162

9 (9th Cir. 2017). That deference, however, does not remove the decision to rescind DACA from

10 the ambit of judicial review. Rather, the Supreme Court has applied the “strong presumption

11 in favor of judicial review of administration action” in the immigration context. See INS v.

12 St. Cyr, 533 U.S. 289, 298–99 (2001).

13

In this connection, defendants raise two arguments. First, they contend that review

14 of discretionary enforcement decisions results in the inappropriate delay of removal, and

15 accordingly prolongs violations of our immigration laws. This argument, however, again

16 ignores that plaintiffs do not challenge any particular removal but, rather, challenge the abrupt

17 end to a nationwide deferred-action and work-authorization program. In any individual case,

18 DACA allows DHS to revoke deferred status and to deport. Second, defendants assert that

19 review of such decisions may involve disclosure of law enforcement priorities and

20 foreign-policy objectives. Neither concern is implicated here, as defendants’ stated reasons

21 for the rescission all relate to the across-the-board cancellation of DACA based on supposed

22 illegality, not to the facts particular to any proposed removal.

23

24

25

26
7 Defendants are correct, of course, that a presumptively unreviewable agency action does not become
27 reviewable simply because “the agency gives a reviewable reason for otherwise unreviewable action.” ICC v.
Bhd. of Locomotive Eng’s, 482 U.S. 270, 283 (1987). As discussed above, however, the rescission of DACA
28 was not such an unreviewable decision.

21

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1

Nor does Section 1252(g) bar judicial review of the agency action in question. 8 U.S.C.

2 § 1252(g) provides:

3

Except as provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory) . . . no court shall have

4

jurisdiction to hear any cause or claim by or on behalf of any alien

arising from the decision or action by the Attorney General to

5

commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.

6

As explained by the Supreme Court, this provision applies only to the three discrete

7

decisions or actions named in Section 1252(g). AADC, 525 U.S. at 482. Plaintiffs’ claims do

8

not involve such decisions, but rather the challenge here is to the across-the-board cancellation

9

of a nationwide program.8

10

Defendants recognize that these actions were brought prior to the commencement of

11

any removal proceedings. Nevertheless, they argue that Section 1252(g) precludes review of

12

plaintiffs’ claims because the decision to discontinue deferred action is “an ingredient to the

13

commencement of enforcement proceedings.” It is true that eliminating DACA draws its

14

enrollees one step closer to deportation, but the Supreme Court rejected the argument that

15

Section 1252(g) somehow precludes review of the “many other decisions or actions that may be

16

part of the deportation process.” As AADC emphasized, “[i]t is implausible that the mention of

17

three discrete events along the road to deportation was a shorthand way of referring to all claims

18

arising from deportation proceedings.” Ibid.

19

Defendants cite two decisions. Importantly, however, both stemmed from already-

20

commenced deportation or removal proceedings. See Botezatu v. I.N.S., 195 F.3d 311, 312

21

(7th Cir. 1999) (declining to review a decision to deny deferred action after plaintiff had been

22

found deportable); Vasquez v. Aviles, 639 F. App’x 898, 899–900 (3d Cir. 2016) (district court

23

lacked jurisdiction to hear habeas corpus petition that claimed plaintiff was improperly denied

24

DACA relief).

25

By comparison, our court of appeals has held, following AADC, that Section 1252(g)

26

does not bar review of actions that occur “prior to any decision to ‘commence proceedings.’”

27

28

8 The district court in Batalla Vidal also concluded that Section 1252(g) did not bar judicial review of

challenges to the DACA rescission. Batalla Vidal v. Duke, 2017 WL 5201116, at *13.

22

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1 Kwai Fun Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004). The claims in Kwai Fun

2 Wong challenged the revocation of the plaintiff’s parole without first deciding her application

3 for immigration relief, conduct which “resulted in the INS’s decision to commence removal

4 proceedings and ultimately to remove” the plaintiff from the United States. Id. at 959, 964.

5 Contrary to defendants, it is immaterial that Kwai Fun Wong did not involve deferred action,

6 as both the revocation of parole and the revocation of deferred action are “an ingredient” to the

7 commencement of enforcement proceedings. The jurisdictional limits of Section 1252(g) were

8 instead “directed at the deconstruction, fragmentation, and hence prolongation of removal

9 proceedings.” AADC, 525 U.S. at 482.

10

C. Most Plaintiffs Have Standing.

11

To establish standing, Article III of the United States Constitution requires plaintiffs

12 to show “(1) they suffered an injury in fact, (2) that is fairly traceable to the challenged conduct

13 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

14 Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

15 560–61 (1992)). The standing inquiry is focused on whether the plaintiff has a sufficient

16 personal stake in the outcome of the controversy to ensure that the parties will be truly adverse

17 and their legal presentations sharpened. Massachusetts v. EPA, 549 U.S. 497 (2007). Standing

18 must be assessed on a claim-by-claim basis. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

19 (2006).

20

Defendants do not dispute that the Individual Plaintiffs have standing. Rather, they argue

21 in brief that the entity plaintiffs (the state and local governments, UC Plaintiffs, and SEIU Local

22 521) lack Article III standing because the rescission does not regulate or restrict them in any

23 way. Defendants therefore posit that the entity plaintiffs’ claimed injuries are due only to

24 “incidental effects” of the rescission, which defendants contend are insufficient to establish

25 injury-in-fact. As set forth below, these arguments lack merit.

26

First, California, Maryland, the City of San Jose, and the County of Santa Clara each

27 employ DACA recipients, in connection with whom they have invested substantial resources

28 in hiring and training. Plaintiffs allege that they will not only lose these employees as work

23

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1 authorizations expire, but that they will also need to expend additional resources to hire and train

2 replacements. San Jose further alleges that as a result of the rescission, the City has had

3 decreased productivity, and that it has had to expend time and resources to deal with decreased

4 employee morale (States Compl. ¶¶ 26–27, 32, 53; San Jose Compl. ¶¶ 49–50; Santa Clara

5 Compl. ¶¶ 32–37; App. 11, 95–97, 706–07, 798, 1575–76).

6

Second, Plaintiff States, including Maine and Maryland, stand to lose significant tax

7 revenue as a result of the rescission (States Compl. ¶¶ 28–30, 37, 49–50, 70–71). Although

8 general allegations of injury to a state’s economy and the associated decline in general tax

9 revenues may not be sufficient to establish standing, here, Plaintiff States sufficiently allege a

10 “direct injury in the form of a loss of specific tax revenues.” Wyoming v. Oklahoma, 502 U.S.

11 437, 448 (1992). They allege, for example, that Maine stands to lose $96,000 in annual state

12 and local taxes as DACA recipients leave the workforce (States Compl. ¶¶ 30, 38). Evidence

13 submitted by plaintiffs supports these allegations, and demonstrates that DACA’s rescission

14 would reduce state and local tax contributions by DACA-eligible individuals by at least half

15 (App. 68–74, 218–30).

16

Third, the University of California has also established that it will suffer injury to its

17 proprietary interests. As declarations submitted by the University demonstrate, the rescission

18 has harmed the University in multiple ways. Because DACA recipients can no longer seek

19 advance parole, these students are unable to travel outside of the United States for research and

20 educational conferences. DACA recipients have also decided to cancel their enrollment in the

21 University, and additional recipients are at risk of dropping out, because they would not be able

22 to pay the cost of attendance without work authorizations. The University has also invested

23 resources in recruiting and retaining DACA recipients as employees in various roles, including

24 as teaching assistants and health care providers. Such investments would be lost should these

25 employees lose their ability to work in the United States.

26

California, Maryland, and Minnesota also allege injury to their public universities

27 through harm to their educational missions and the loss of students and teachers. According to

28 the declarations filed by plaintiffs, the rescission, and the resulting loss of work authorization

24

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1 and potential for deportation, will adversely impact the diversity of the talent pool of potential

2 students, which will make it more difficult for the universities to fulfill their missions of

3 increasing diversity (States Compl. ¶¶ 27, 55, 64–66; App. 12–16, 496–514, 884–90). Our court

4 of appeals recently affirmed the standing of two state governments to challenge an immigration

5 policy that similarly harmed the plaintiffs’ public universities. Washington v. Trump, 847 F.3d

6 1151, 1160–01 (9th Cir. 2017). These injuries accordingly give the University of California and

7 the States of California, Maryland, and Minnesota Article III standing. Ibid. (citing Singleton v.

8 Wulff, 428 U.S. 106, 114–16 (1976)).9

9

Fourth, State Plaintiffs Maryland and Minnesota further allege that the rescission will

10 negatively impact their public health programs. In particular, Maryland and Minnesota allege

11 that rescinding DACA will cause many DACA grantees to lose their employer-based health

12 insurance, imposing higher healthcare costs on the state (State Compl. ¶¶ 51, 62). These injuries

13 are also sufficient to confer Article III standing.10

14

Finally, SEIU Local 521 has associational standing to bring its claims on behalf of its

15 members who are DACA recipients. An association has standing to bring suit on behalf of its

16 members when: (1) its members would otherwise have standing to sue in their own right;

17 (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the

18 claim asserted nor the relief requested requires the participation of individual members in the

19 lawsuit. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock,

20

21

9 The public universities of California, Maryland, and Minnesota are branches of the states under state

law. Campbell v. Regents of Univ. of California, 35 Cal. 4th 311, 321 (2005); Hanauer v. Elkins, 217 Md. 213,
22 219, 141 A.2d 903, 906 (Md. 1958); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

23

10 Although not discussed by the parties, the District of Columbia Circuit held that Joe Arpaio, Sheriff

of Maricopa County, Arizona, lacked Article III standing to challenge DACA. Arpaio v. Obama, 797 F.3d 11
24 (D.C. Cir. 2015). While the court of appeals found that the plaintiff’s alleged harm — increased spending on

criminal investigation, apprehension, and incarceration — was sufficiently concrete, his theory that DACA 25 would lead to an increased number of undocumented immigrants committing crimes in his jurisdiction was too

speculative. Id. at 19–20. Here, by contrast, plaintiffs allege that the rescission will cause DACA recipients to
26 lose their work authorizations, and that plaintiffs will lose employees and students, suffer decreased tax revenue,

and otherwise incur increased costs as a direct result. This case is also different from Crane v. Johnson,
27 783 F.3d 244, 252 (5th Cir. 2015), where the Fifth Circuit held that Mississippi lacked standing to challenge

DACA because it failed to submit evidence that DACA eligible immigrants resided in the state. Defendants do
28 not dispute State Plaintiffs’ allegations that hundreds of thousands of DACA recipients live in Plaintiff States.

25

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1 477 U.S. 274, 282 (1986) (quoting Hunt v. Washington State Apple Advertising Comm’n,

2 432 U.S. 333, 343 (1977)). SEIU has established all three elements here. SEIU has members

3 who are DACA recipients. Its constitution states that part of its mission is to provide its

4 members with a voice in the larger community, and that its members should be treated equally

5 with dignity regardless of immigration status or national origin. SEIU has also formed a

6 Committee on Comprehensive Immigration Reform, a member-based committee that engages in

7 organizing, advocacy, and education to help undocumented workers. Its members’ interests in

8 these actions are therefore germane to SEIU’s stated purpose (App. 801–09). Furthermore, this

9 action does not require the participation of SEIU’s individual members.

10

Defendants, in arguing that the entity plaintiffs lack standing, rely solely on Linda R.S. v.

11 Richard D., 410 U.S. 614, 619 (1973). There, the plaintiff lacked standing to challenge a Texas

12 state court’s interpretation of a child support statute. Ibid. The Supreme Court held that,

13 although the plaintiff had alleged an injury, she had not shown “a direct nexus between the

14 vindication of her interest and the enforcement of the State’s criminal laws” because the

15 relationship between the state’s decision not to prosecute and the father’s decision not to pay

16 under the statute could “at best, be termed only speculative.” Id. at 618–19. Linda R.S. has no

17 application here. As explained above, the entity plaintiffs have alleged harm to their proprietary

18 interests as a direct result of defendants’ decision to terminate the DACA program, most notably

19 through its termination of work authorizations. Accordingly, the entity plaintiffs have

20 sufficiently alleged injury-in-fact traceable to the termination of DACA, and have demonstrated

21 that these harms are redressable by their requested relief.11

22

Turning to prudential standing under the APA, a plaintiff must show that it has suffered

23 or will suffer sufficient injury-in-fact, and that “the interest[s] sought to be protected by the

24 complainant [are] arguably within the zone of interests to be protected or regulated by the

25 statute . . . in question.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.

26 479, 488 (1998).

27
11 Because defendants’ conduct imposes direct injury on the State Plaintiffs’ proprietary interests, this
28 order need not reach defendants’ argument that the State Plaintiffs lack standing as parens patriae.

26

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1

A plaintiff that is not itself the subject of the contested regulatory action lacks prudential

2 standing only where its interests “are so marginally related to or inconsistent with the purposes

3 implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the

4 suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). This test is “not meant to be

5 especially demanding,” and must be applied “in keeping with Congress’s evident intent when

6 enacting the APA to make agency action presumably reviewable.” Match-E-Be-Nash-She-Wish

7 Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotations and citations

8 omitted).

9

The parties’ briefs include only a cursory discussion of plaintiffs’ prudential standing

10 under the APA. Again, defendants do not dispute that the Individual Plaintiffs also have

11 statutory standing. SEIU, which asserts the rights of its members who are DACA recipients,

12 likewise seeks the protection of interests regulated by the INA. Not all of the entity plaintiffs,

13 however, have established prudential standing to proceed on their APA claims.

14

Plaintiffs primarily rely on our court of appeals’ recent decision in Hawaii v. Trump,

15 859 F.3d 741, 765 (9th Cir. 2017), as well as on various provisions of the INA which provide for

16 student- and employment-related immigrant visas. Plaintiffs do not contend, however, that their

17 DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point to

18 any provisions of the INA which indicate a protected interest in enrolling students with deferred

19 action in their schools or universities. Plaintiffs are also unable to point to any provision of the

20 INA indicating that Congress intend to protected Plaintiff States’ interests in maintaining income

21 tax revenue or avoiding increased healthcare costs.

22

By contrast, local and state governments San Jose, Santa Clara, California, and

23 Maryland, as well as the University of California, have all identified injuries resulting from their

24 status as employers, and allege harm caused by their employees’ future loss of deferred action

25 and associated work authorization. The INA gives the Executive Branch broad discretion to

26 determine when noncitizens may work in the United States, 8 U.S.C. § 1324a(h)(3), and

27 regulations promulgated pursuant to this authority allow recipients of deferred action to apply

28 for work authorization if they can demonstrate an “economic necessity for employment.”

27

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1 8 C.F.R. § 274a.12(c)(14). Moreover, the INA contains detailed provisions which subject

2 employers to criminal and civil liability for knowingly hiring unauthorized aliens, see 8 U.S.C.

3 § 1324a(a)(1)(A), and for “continu[ing] to employ the alien in the United States knowing

4 the alien is (or has become) an unauthorized alien with respect to such employment,” id.

5 § 1324a(a)(2). The work authorization document that the agency issues to DACA recipients

6 is one of the documents that is acceptable for Form I-9, Employment Eligibility Verification,

7 which employers must complete and retain for each individual they hire for employment in the

8 United States (App. 2061–62). Plaintiffs’ interest in their employees’ continued authorization

9 to work in the United States is therefore “arguably within the zone of interests” that the INA

10 protects. Hawaii, 859 F.3d at 765; Nat’l Credit Union Admin., 522 U.S. at 488.12

11

Accordingly, even though the zone of interests inquiry is not demanding, this order

12 concludes that Maine and Minnesota’s interests are “so marginally related” to the purposes

13 implicit in the INA that it cannot reasonably be assumed that Congress intended to permit the

14 suit. Maine and Minnesota’s APA claims are accordingly DISMISSED WITH LEAVE TO AMEND.

15 The remaining entity plaintiffs, however, have established that their interests that support

16 Article III standing also satisfy the APA’s zone of interests test.

17

*

*

*

18

Apart from the holding that Maine and Minnesota do not have statutory standing, the

19 foregoing rejects all of the government’s jurisdictional arguments to dismiss plaintiffs’

20 challenges under the Administrative Procedure Act.

21

2.

PROVISIONAL RELIEF.

22

Plaintiffs seek a preliminary injunction to restore DACA. To support a preliminary

23 injunction, plaintiffs must establish four elements: (1) likelihood of success on the merits;

24 (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in

25

26

12 Defendants’ sole argument against the entity plaintiffs’ prudential standing is that no provision

of the INA protects the entity plaintiffs from “bearing the incidental effects” of a denial of deferred action.
27 The case on which defendants rely, however, dealt with a private anti-immigration organization whose members

were not impacted by the immigration policy at issue. See Fed’n for Am. Immigration Reform, Inc. v. Reno,
28 93 F.3d 897, 899 (D.C. Cir. 1996).

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1 their favor; and (4) that the injunction is in the public interest. Winter v. Natural Resources

2 Defense Council Inc., 555 U.S. 7, 20 (2008). As now explained, the record warrants most of the

3 provisional relief requested.

4

A. Likelihood of Success on the Merits.

5

Plaintiffs have shown a likelihood of success on their claim that the rescission

6 was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.

7 Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to

8 rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed

9 “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and

10 capricious.

11

(1) The Rescission was Based on a Flawed Legal Premise.

12

The agency action was “not in accordance with law” because it was based on the flawed

13 legal premise that the agency lacked authority to implement DACA. When agency action is

14 based on a flawed legal premise, it may be set as aside as “arbitrary, capricious, an abuse of

15 discretion, or otherwise not in accordance with law.” See Massachusetts, 549 U.S. at 532

16 (setting aside the EPA’s denial of a petition for rulemaking under the Clean Air Act for

17 supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007).

18 This order holds that DACA fell within the agency’s enforcement authority. The contrary

19 conclusion was flawed and should be set aside.

20

The administrative record includes the 2014 determination of the Office of Legal Counsel

21 of the United States Department of Justice that programmatic deferred action is a permissible

22 exercise of DHS’s enforcement discretion. OLC noted that deferred action programs such as

23 DACA are permissible so long as immigration officials retain discretion to evaluate each

24 application on an individualized basis and so long as the concerns animating the program were

25 consistent with the types of concerns that have customarily guided the exercise of immigration

26 enforcement discretion. OLC recognized that the “practice of granting deferred action date[d]

27 back several decades,” and that “Congress has long been aware of the practice of granting

28 deferred action, including in its categorical variety, and of its salient features; and it has never

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1 acted to disapprove or limit the practice.” Indeed, not only has Congress not limited the practice,

2 but it has “enacted several pieces of legislation that have either assumed that deferred action

3 would be available in certain circumstances, or expressly directed that deferred action be

4 extended to certain categories of aliens” (AR 15–27).

5

As explained in OLC’s opinion, each feature of the DACA program is anchored in

6 authority granted or recognized by Congress or the Supreme Court. Because this is the heart

7 of the problem, and with apology for some repetition, this order will now examine each feature

8 in turn.

9

The Secretary of Homeland Security is responsible under the INA for “establishing

10 national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). The Secretary is

11 also charged with the administration and enforcement of the INA. 8 U.S.C. § 1103. In making

12 immigration enforcement decisions, the executive “considers a variety of factors such as the

13 danger posed to the United States of an individual’s unlawful presence, the impact of removal

14 on the nation’s international relations, and the ‘human concerns’ of whether the individual ‘has

15 children born in the United States, long ties to the community, or a record of distinguished

16 military service.’” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citing Arizona v. United

17 States, 132 S. Ct. 2492, 2499 (2012)). In instituting DACA, Secretary Napolitano explained that

18 the program was “necessary to ensure that [DHS’s] enforcement resources are not expended on

19 [] low priority cases but are instead appropriately focused on people who meet our enforcement

20 priorities” (AR 1).13

21

As set forth above, deferred action originated without any statutory basis apart from the

22 discretion vested by Congress in connection with the agency’s enforcement of the immigration

23 laws. Over the decades, however, deferred action became such a fixture that Congress referred

24 to it by name in several INA amendments. See, e.g., 8 U.S.C. § 1227(d)(2) (stating that U visa

25 and T visa applicants who were denied an administrative stay of removal were not precluded

26 from applying for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that eligible

27
13 The United States Court of Appeals for the District of Columbia Circuit did not reach the merits of
28 Sheriff Joe Arpaio’s challenges to DACA and DAPA but instead dismissed the case for lack of Article III
standing. Arpaio, 797 F.3d at 15.

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1 derivatives of VAWA petitioners were eligible for “deferred action” and work authorization); 8

2 U.S.C. § 1151 note (stating that certain immediate family members of certain United States

3 citizens “shall be eligible for deferred action”). Congress has also acknowledged deferred action

4 in enactments outside of the INA. See, e.g., 49 U.S.C. § 30301 note (specifying that evidence of

5 lawful status includes proof of “deferred action status”); USA PATRIOT Act of 2001, Pub. L.

6 No. 107-56, § 423(b), 115 Stat. 272, 361 (stating that immediate family members of legal

7 permanent residents killed on September 11, 2001 “may be eligible for deferred action”).

8 Congress has been free to constrain DHS’s discretion with respect to granting deferred action,

9 but it has yet to do so.

10

The Supreme Court has recognized the authority of DHS to grant relief from removal,

11 Arizona, 567 U.S. at 396, and has specifically recognized deferred action as a way to exercise

12 that discretion — “for humanitarian reasons or simply for [the Executive’s] own convenience.”

13 AADC, 525 U.S. at 484. Notably, our court of appeals has said that “the exercise of

14 prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by

15 the INA.” Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir. 2017) (“Brewer

16 II”).14

17

In extending programmatic deferred action to DACA enrollees, the agency acted within

18 the scope of this long and recognized practice. In the exercise of its enforcement discretion and

19 policy-making, the agency simply found that DACA enrollees represented low priority cases

20 for removal and instituted DACA to manage that population while it redirected its resources

21 elsewhere. Even for enrollees approved under the program, DHS expressly retained the

22 authority to terminate their deferred action at any time, in the agency’s discretion. DACA

23 provided no guarantee against removal.

24

Nevertheless, DACA has provided recipients with a major benefit, namely work

25 authorizations for the period of deferral upon a demonstration of economic need. This has

26

27

14 In Brewer II, our court of appeals denied a petition for rehearing en banc. Circuit Judge Kozinski,

joined by five other Circuit Judges, filed a dissent to the denial of the petition, expressing the view that DACA
28 did not preempt Arizona’s law refusing to issue drivers’ licenses to DACA recipients. 855 F.3d at 958–62.

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1 allowed DACA recipients to become part of the mainstream workforce and contribute openly

2 to our economy. Significantly, Section 1324a(h)(3) defines an “unauthorized alien” not entitled

3 to work in the United States as an alien who is neither a legal permanent resident nor “authorized

4 to be . . . employed by [the INA] or by the [Secretary of Homeland Security].” In turn, the

5 Secretary of Homeland Security has allowed work authorizations in cases of deferred action

6 under 8 C.F.R. § 274a.12(c)(14). As our court of appeals has stated, “the Executive Branch has

7 determined that deferred action recipients — including DACA recipients — are ordinarily

8 authorized to work in the United States.” See Brewer I, 757 F.3d at 1062.

9

It is also within the lawful authority of the agency to determine that DACA recipients

10 do not accrue “unlawful presence” for purposes of the INA’s bars on re-entry. Pursuant to

11 pre-existent DHS regulations and policy guidance, deferred action recipients already avoided

12 accrual of “unlawful presence.” 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2);

13 Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic

14 Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence

15 for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009).

16 Importantly, DHS excludes recipients of deferred action from being “unlawfully present”

17 because their deferred action is considered a period of stay authorized by the government. See 8

18 U.S.C. § 1182(a)(9)(B)(ii) (an alien is deemed to be unlawfully present if the alien is present “in

19 the United States after the expiration of the period of stay authorized by the Attorney General

20 [and now the Secretary of Homeland Security]”); Brewer I, 757 F.3d at 1059.

21

Allowing DACA recipients to apply for and obtain advance parole to travel overseas and

22 return to the United States is also in accord with pre-existing regulations. 8 C.F.R. § 212.5(f);

23 8 U.S.C. § 1182(d)(5)(A) (the Attorney General [and now the Secretary of Homeland Security]

24 may “in his discretion parole into the United States temporarily under such conditions as he

25 may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public

26 benefit”).

27

In short, what exactly is the part of DACA that oversteps the authority of the agency?

28 Is it the granting of deferred action itself? No, deferred action has been blessed by both the

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1 Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting

2 of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic

3 deferred action has been in use since at least 1997, and other forms of programmatic

4 discretionary relief date back to at least 1956. Is it granting work authorizations coextensive

5 with the two-year period of deferred action? No, aliens receiving deferred action have been able

6 to apply for work authorization for decades. Is it granting relief from accruing “unlawful

7 presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George

8 W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for

9 and obtain advance parole? No, once again, granting advance parole has all been in accord

10 with pre-existing law. Is it combining all these elements into a program? No, if each step is

11 within the authority of the agency, then how can combining them in one program be outside its

12 authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case

13 basis?

14

Significantly, the government makes no effort in its briefs to challenge any of the

15 foregoing reasons why DACA was and remains within the authority of the agency. Nor does the

16 government challenge any of the statutes and regulations under which deferred action recipients

17 obtain the foregoing benefits.

18

Instead, the administrative record shows that the Attorney General told the Acting

19 Secretary that DACA was illegal. First, the Attorney General said that DACA had been

20 improperly adopted by the Obama Administration after “Congress’ repeated rejection of

21 proposed legislation that would have accomplished a similar result.” But the proposals rejected

22 by Congress markedly differ from DACA. Importantly, while the proposed legislation would

23 have offered Dreamers the ability to become lawful permanent residents, no comparable

24 pathway was offered by DACA. Our court of appeals recognized this distinction, noting that “the

25 DREAM Act and the DACA program are not interchangeable policies because they provided

26 different forms of relief.” Brewer II, 855 F.3d at 976 n.10. In fact, the 2012 DACA memo

27 made explicit that DACA offered no pathway to lawful permanent residency, much less

28 citizenship. Secretary Napolitano concluded her memo by stating that DACA “confer[ed] no

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1 substantive right, immigration status or pathway to citizenship.” To claim that DACA was

2 rejected by Congress, therefore, is unfair.15

3

Second, another criticism of DACA was that applications received mechanical, routine

4 approval without individualized consideration. In her rescission memorandum, the Acting

5 Secretary indicated that “[United States Citizenship and Immigration Services] has not been

6 able to identify specific denial cases where an applicant appeared to satisfy the programmatic

7 categorical criteria as outlined in the [original DACA] memorandum, but still had his or her

8 application denied based solely upon discretion.” The simple answer to this, if true, would be

9 for the agency to instruct its adjudicators to exercise discretion, on a individualized basis, to

10 make sure applicants do not pose a threat to national security or public safety and are otherwise

11 deserving of deferred action.

12

It appears, moreover, that the Acting Secretary was in error when she said that USCIS

13 has been unable to identify discretionary denials of DACA applications. She cited no evidence

14 for this fact, and none is found in the administrative record. Possibly, the Acting Secretary relied

15 on findings made in the DAPA litigation. There, the majority panel noted that USCIS could not

16 produce any applications that satisfied the guidelines of the original DACA memorandum but

17 were nonetheless refused through an exercise of discretion. Texas, 809 F.3d at 172. As the

18 dissent pointed out, however, the district court may have conflated rejections of DACA

19 applications with denials, and as a result suggested that most denials were made for mechanical,

20 administrative reasons. Id. at 210 (King, J., dissenting). A declaration submitted in that case by

21 Donald Neufeld, then-Associate Director for Service Center Operations for USCIS, pointed to

22 several instances of discretionary denials. Id. at 175. That same declaration explained that while

23 a DACA application was rejected when it was “determined upon intake that the application [had]

24 a fatal flaw,” an application was denied when a USCIS adjudicator, on a case-by-case basis,

25 determined that the requestor either had not demonstrated that they satisfied the guidelines for

26
15 See, e.g., S. 1291, 107th Congress (2001); S. 1545, 108th Congress (2003); S. 2075, 109th Congress
27 (2005); H.R. 5131, 109th Congress (2006); H.R. 1275, 110th Congress (2007); S. 2205, 110th Congress (2007);
H.R. 1751, 111th Congress (2009); S. 3827, 111th Congress (2010); S. 3962, 111th Congress (2010); S. 3992,
28 111th Congress (2010); H.R. 6497, 111th Congress (2010); S. 952, 112th Congress (2011).

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1 DACA or when an adjudicator determined that deferred action should be denied even though

2 the threshold guidelines were met. Id. at 210–11 (dissent). The United States District Court

3 for the District of Columbia, in addressing nearly identical statistics, recognized the distinction.

4 The district court noted that as of December 2014, 36,860 requests for deferred action under

5 DACA were denied and another 42,632 applicants were rejected as not eligible, and concluded

6 that such statistics “reflect that [] case-by-case review is in operation.” Arpaio, 27 F. Supp. 3d

7 at 209 n.13. The administrative record tendered in our case completely fails to explain this

8 apparent discrepancy.

9

Third, the main ground given by the Attorney General for illegality was the Fifth

10 Circuit’s decision in the DAPA litigation. DACA, the Attorney General said, suffered from the

11 same “legal and constitutional defects” leveled against DAPA in Texas v. United States, 809

12 F.3d 134 (5th Cir. 2015). Upon consideration of the full history of that case, however, this was

13 an overstatement.

14

In the DAPA litigation, the district court held that DAPA violated the APA’s notice-and-

15 comment procedures because it constituted “a new rule that substantially change[d] both the

16 status and employability of millions” and inflicted “major costs on both states and federal

17 government.” The district court found that the discretionary aspects of DAPA were “merely

18 pretext,” based on its finding that DACA had been implemented in such a mechanical way

19 as to prevent the exercise of discretion on a case-by-case basis, and DAPA would therefore be

20 implemented in the same manner. Notice and opportunity for public comment, it held, should

21 have accordingly been given. Texas, 86 F. Supp. 3d at 671.

22

Although the Fifth Circuit recognized that “there was conflicting evidence on the degree

23 to which DACA allowed discretion,” because the government had failed to produce any

24 applications that satisfied all of the criteria but were refused deferred action by an exercise of

25 discretion, it was “not error — clear or otherwise —” for the district court to have concluded that

26 DHS had only issued denials under mechanical formulae. The appellate court also pointed to

27 DACA’s Operating Procedures, which contained “nearly 150 pages of specific instructions for

28

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1 granting or denying deferred action,” as supporting the conclusion that DACA did not leave the

2 agency free to exercise discretion.

3

It cautioned, however, that “[f]or a number of reasons, any extrapolation from DACA

4 must be done carefully.” Texas, 809 F.3d at 173 (emphasis added). In particular, the appellate

5 court recognized that DACA involved self-selecting applicants, and those who expected to be

6 denied relief were unlikely to apply. Id. at 174. The court also recognized that “DACA and

7 DAPA are not identical” and that because eligibility for DACA was restricted to a younger and

8 less numerous population, DACA applicants were less likely to have backgrounds that would

9 warrant a discretionary denial. Ibid.

10

In addition to affirming the notice-and-comment holding (over one dissent), two of the

11 judges on the Fifth Circuit panel went a large step further and held that DAPA conflicted with

12 the INA. The majority pointed out that the INA already had a specific provision through which

13 aliens could derive lawful status from their children’s immigration status. Id. at 180 n.167

14 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255). DAPA, the majority

15 said, circumvented this statutory pathway.

16

The Fifth Circuit also pointed out that the INA had specific provisions through which

17 aliens could be classified as “lawfully present,” could obtain discretionary relief from removal,

18 or could obtain eligibility for work authorization. Because DAPA could make 4.3 million

19 removable aliens eligible for lawful presence, employment authorization, and associated

20 benefits, the Fifth Circuit concluded that DAPA implicated “questions of deep ‘economic and

21 political significance’ that are central to [the INA’s] statutory scheme,” and therefore had

22 Congress wished to assign that decision to an agency, “it surely would have done so expressly.”

23

The Fifth Circuit rejected the argument that various provisions of the INA, such as the

24 broad grant of authority to the agency in 6 U.S.C. § 202(5) (providing that the Secretary “shall

25 be responsible for establishing national immigration enforcement policies and priorities”),

26 provided the authority to implement DAPA. Rather, it found that such grants of authority could

27 not reasonably be construed as assigning the agency decisions of such massive “economic and

28 political significance.” Such an interpretation, the majority said, would allow the agency to

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1 grant lawful presence and work authorization to any illegal alien in the United States. It

2 concluded that “even with ‘special deference’ to the Secretary,” the INA did not permit the

3 reclassification of 4.3 million aliens as “lawfully present,” thereby making them newly eligible

4 for a host of federal and state benefits, including work authorization.

5

The majority also rejected the argument that DAPA was moored in historical practice,

6 finding that such historical practice “does not, by itself, create power,” and that in any event,

7 previous deferred-action programs were not analogous to DAPA because most discretionary

8 deferrals had been done on a country-specific basis, usually in response to war, civil unrest, or

9 natural disasters, or had been bridges from one legal status to another. It found that “[n]othing

10 like DAPA, which alters the status of more than four million aliens, has ever been contemplated

11 absent direct statutory authorization.”

12

The majority concluded that Congress had “directly addressed the precise question

13 at issue” in DAPA because the INA “prescribes how parents may derive an immigration

14 classification on the basis of their child’s status and which classes of aliens can achieve deferred

15 action and eligibility for work authorization.” Texas, 809 F.3d at 186. Because it found that

16 DAPA was foreclosed by Congress’s “careful plan,” the majority held that the program was

17 “manifestly contrary to the statute.”

18

While at least some of the majority’s reasons for holding DAPA illegal would apply to

19 DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion

20 stated. An important criticism against DAPA would not apply against DACA, namely the fact

21 that Congress had already established a pathway to lawful presence for alien parents of citizens

22 (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no

23 such analogue in the INA. And, there is a difference between 4.3 million and 689,800. Finally,

24 the criticism that DACA had been mechanically administered without the exercise of discretion

25 in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum,

26 the DAPA litigation was not a death knell for DACA.

27

This order holds that, in light of our own court of appeals’ reasoning in Brewer I and

28 Brewer II, in light of the analysis of the Office of Legal Counsel of the United States Department

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1 of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA

2 was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed

3 on the merits of their claim that the rescission was based on a flawed legal premise and must be

4 set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

5 law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94

6 (1943); Safe Air for Everyone, 488 F.3d at 1101.16

7

(2) Government Counsel’s Alternative Rationale

Is Post Hoc and, in Any Event, Arbitrary,

8

Capricious, and an Abuse of Discretion.

9

Government counsel now advances an alternative rationale for the Secretary’s decision to

10 rescind DACA. Counsel contends that DHS acted within its discretion in managing its litigation

11 exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the

12 program so as to avoid a potentially disastrous injunction in the Fifth Circuit. This, they say,

13 constituted a reasonable judgment call involving management of litigation risk and agency

14 resources.

15

Courts, of course, may not accept post hoc rationalizations for agency action, see

16 Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962), nor may they “supply a

17 reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp.,

18 Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285–86 (1974); see also Cal. Pub. Util. Comm’n v.

19 Fed. Energy Regulatory Comm’n, No. 16-70481 at 15 (9th Cir. Jan. 8, 2018). Rather, “an

20 agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor

21 Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50

22 (1983).

23

24
16 Defendants argue that if the Acting Secretary had relied on DACA’s purported illegality in
25 terminating the program, that reliance should be presumed to be a “reasonable policy judgment that immigration
decisions of this magnitude should be left to Congress.” This argument finds no support in the administrative
26 record. In Syracuse Peace Council v. F.C.C., upon which defendants rely, the agency explicitly based its
decision on the independent grounds that a policy was both unconstitutional and contrary to the public interest.
27 867 F.2d 654, 656 (D.C. Cir. 1989). Although the court of appeals elected to review only the agency’s policy
determination under the APA, it noted that “if the Commission had written its opinion in purely constitutional
28 terms, we would have no choice but to address the constitutional issue.” Id. at 659.

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1

The reason actually given in the administrative record for the rescission was DACA’s

2 purported illegality. The Attorney General’s letter and the Acting Secretary’s memorandum can

3 only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore,

4 be ended, the best course was “an orderly and efficient wind-down process,” rather than a

5 potentially harsh shutdown in the Fifth Circuit. Nowhere in the administrative record did

6 the Attorney General or the agency consider whether defending the program in court would

7 (or would not) be worth the litigation risk. The new spin by government counsel is a classic

8 post hoc rationalization. That alone is dispositive of the new “litigation risk” rationale.

9

Significantly, the INA itself makes clear that once the Attorney General had determined

10 that DACA was illegal, the Acting Secretary had to accept his ruling as “controlling.” Section

11 1103(a)(1) of Title 8, a provision that allocates immigration power and duties among the

12 Secretary of Homeland Security, the Secretary of State, and the Attorney General, provides that

13 “determinations and rulings by the Attorney General with respect to all questions of law shall be

14 controlling.” Therefore, once the Attorney General advised the Acting Secretary that DACA

15 was illegal, that ruling became “controlling” upon her. She had no choice other than to end

16 DACA. She had no room to push back with arguments for the program, to weigh litigation risks,

17 or to consider whether DACA recipients warranted fighting for. The ruling of law by the

18 Attorney General, controlling upon her, made all such considerations moot. Therefore, the new

19 spin by government counsel that the decisionmaker here indulged in a litigation risk assessment

20 and, out of caution, chose not to fight for the program in favor of an orderly wind-down is

21 foreclosed by the INA itself. Her wind-down references plainly presuppose that DACA had to

22 end and the only question was how.

23

Nevertheless, this order now indulges government counsel’s new explanation and

24 addresses whether it holds up even if taken as authentic. In that event, two major criticisms can

25 and should be made of the “litigation risk management” rationale.

26

First, even as to the risk in the Fifth Circuit, the administrative record mentions only

27 similarities between DAPA and DACA (and even then only in an exceedingly conclusory way).

28 No mention appears concerning the differences between DAPA and DACA that might have led

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1 to a different result. In addition to the distinctions made above, one powerful consideration

2 should have been the doctrine of laches. Unlike the DAPA challenge filed immediately after

3 DAPA was announced, the threatened DACA challenge by ten states would have come five

4 years after the program began and after hundreds of thousands of young adults had enrolled and

5 entered the workforce. See Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 155 (1967) (adopting

6 laches in APA context); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 210 (D.D.C. 2014),

7 aff’d, 797 F.3d 11 (D.C. Cir. 2015) (noting that even if plaintiff did have standing he could not

8 demonstrate irreparable harm since he waited two years to challenge DACA). Another

9 difference was that DACA was precisely the kind of interstitial program of deferred action

10 seemingly approved even by the Fifth Circuit, Texas, 809 F.3d at 185, given that both sides of

11 the aisle and our two most recent presidents have called for Dreamer legislation. Nor was there

12 any mention of our own circuit’s more recent decision in Brewer II that favored DACA, or of

13 recognition by the district court in the District of Columbia that DACA had, contrary to the

14 Fifth Circuit, involved discretionary denials of DACA relief.

15

Second, if we are to indulge the spin that the decision to end DACA rested on a

16 litigation-management assessment (rather than on a ruling of illegality), then the Acting

17 Secretary committed a serious error. Against the litigation risk the Acting Secretary should

18 have — but did not — weigh DACA’s programmatic objectives as well as the reliance interests

19 of DACA recipients. Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117, 2126–27

20 (2016). This responsibility lay with the Acting Secretary, not the Attorney General. That is,

21 once the Acting Secretary was informed of the supposed litigation risk, it remained her

22 responsibility to balance it against competing policy considerations. It remained her

23 responsibility to recognize the litigation risk, yet still ask whether the program was worth

24 fighting for. The administrative record is utterly silent in this regard.

25

The agency reversed over five years of DHS policy, did so only one day after the

26 Attorney General’s letter, and did so just three months after Secretary Kelly had continued the

27 program (despite the Fifth Circuit’s decision and affirmance). The Acting Secretary failed to

28 provide a “reasoned explanation” as to why she was “disregarding facts and circumstances

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1 which underlay or were engendered by the prior policy.” See F.C.C. v. Fox Television Stations,

2 Inc., 556 U.S. 502, 516 (2009).

3

Encino Motorcars seems very close on point. There, the Supreme Court addressed the

4 Department of Labor’s reversal of an interpretive regulation construing the Fair Labor Standard

5 Act’s minimum wage and overtime provisions for car dealership employees. Our court of

6 appeals gave Chevron deference to the new interpretation. The Supreme Court reversed.

7 In determining whether the regulation was “procedurally defective” — and accordingly whether

8 the agency’s regulation warranted Chevron deference — the Supreme Court evaluated whether

9 the agency had given adequate reasons for its decision to reverse course. Encino Motorcars,

10 136 S. Ct. at 2125 (citing Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43). The Supreme Court

11 explained (at page 2126) that while agencies are free to change their existing policies, they must

12 provide a reasoned explanation for a change (quotes and citations omitted):

13

In explaining its changed position, an agency must also be

cognizant that longstanding policies may have engendered serious

14

reliance interests that must be taken into account. In such cases

it is not that further justification is demanded by the mere fact

15

of policy change; but that a reasoned explanation is needed for

disregarding facts and circumstances that underlay or were

16

engendered by the prior policy. It follows that an unexplained

inconsistency in agency policy is a reason for holding an

17

interpretation to be an arbitrary and capricious change from agency

practice.

18

Because the agency “gave almost no reason at all” for its change in position, the Supreme Court

19

concluded that the agency had failed to provide the sort of reasoned explanation required in light

20

of the “significant reliance issues involved.” Id. at 2126–27.

21

So too here.

22

As there, the agency here reversed its interpretation of its statutory authority. As there,

23

the administrative record here includes no analysis of the “significant reliance issues involved.”

24

The parallel is striking. In terminating DACA, the administrative record failed to address the

25

689,800 young people who had come to rely on DACA to live and to work in this country.

26

These individuals had submitted substantial personal identifying information to the government,

27

paid hefty fees, and planned their lives according to the dictates of DACA. The administrative

28

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1 record includes no consideration to the disruption a rescission would have on the lives of DACA

2 recipients, let alone their families, employers and employees, schools and communities.17

3

Ironically, government counsel now cite material outside of the administrative record in

4 an attempt to show the Acting Secretary considered the plight of DACA recipients (Dkt. 204 at

5 10, 12, 19–20). This press release came after the fact and was not part of the administrative

6 record, and therefore cannot now rescue the agency. In that respect, Cal. Pub. Util. Comm’n,

7 No. 16-70481 at 17 n.4 is analogous. There, our court appeals refused to consider an agency’s

8 position which was not advanced in connection with the decision under review but, rather, was

9 offered for the first time afterwards.

10

Defendants next argue that because no statute here dictated the factors for an agency to

11 consider in granting or rescinding deferred action, the agency need not have given weight to the

12 benefits of the DACA program or the harm that would be caused to its recipients upon its

13 rescission. The Supreme Court has recognized, however, that “[c]onsideration of cost reflects

14 the understanding that reasonable regulation ordinarily requires paying attention to the

15 advantages and the disadvantages of agency decision.” Michigan v. EPA, — U.S. —, 135 S. Ct.

16 2699, 2707 (2015). While defendants attempt to distinguish Michigan on the ground that the

17 text of the statute required regulation there to be “appropriate and necessary,” they ignore that a

18 change in agency policy requires the agency to have “good reasons for it.” Fox TV Stations,

19 Inc., 556 U.S. at 515.

20

Defendants, of course, are correct that when an agency reverses policy it “need not

21 demonstrate to a court’s satisfaction that the reasons for the new policy are better than the

22 reasons for the old one.” Ibid. Where, however, an agency abruptly changes course and

23 terminates a program on which so many people rely, the APA requires “a more detailed

24 justification.” Ibid. Indeed, “[i]t would be arbitrary and capricious to ignore such matters.”

25 Ibid. In such cases, “it is not that further justification is demanded by the mere fact of policy

26 change; but that a reasoned explanation is needed for disregarding facts and circumstances that

27
17 Here, perhaps in light of Encino Motors, the government does not argue that Chevron deference
28 should be afforded to the Attorney General’s legal conclusion that DACA exceeded the agency’s authority.

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1 underlay or were engendered by the prior policy.” Id. at 515–16. Defendants’ attempt to portray

2 DACA as a program that did not generate reliance interests is unconvincing. As plaintiffs’

3 evidence shows, DACA recipients, their employers, their colleges, and their communities all

4 developed expectations based on the possibility that DACA recipients could renew their deferred

5 action and work authorizations for additional two-year periods.

6

In sum, government counsel’s alternative spin on the administrative record is just a post

7 hoc rationalization. But, even if it had been the actual rationale, it was arbitrary, capricious, and

8 an abuse of discretion under Encino Motors.

9

*

*

*

10

Accordingly, plaintiffs have shown that they are likely to succeed on the merits of their

11 claim that the rescission was arbitrary and capricious and must be set aside under the APA.

12

B. Irreparable Harm.

13

Plaintiffs have clearly demonstrated that they are likely to suffer serious irreparable harm

14 absent an injunction. Before DACA, Individual Plaintiffs, brought to America as children, faced

15 a tough set of life and career choices turning on the comparative probabilities of being deported

16 versus remaining here. DACA gave them a more tolerable set of choices, including joining the

17 mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and

18 associated hardship.

19

The University of California and other entity plaintiffs have also demonstrated that they

20 face irreparable harm as they begin to lose valuable students and employees in whom they have

21 invested, and that loss of DACA recipients from the workforce will have a detrimental impact on

22 their organization interests, economic output, public health, and safety.

23

Our court of appeals recently confirmed that “prolonged separation from family

24 members” and “constraints to recruiting and retaining faculty members to foster diversity and

25 quality within the University community” are harms which are not compensable with monetary

26 damages and therefore weigh in favor of finding irreparable harm. Hawaii v. Trump,

27 No. 17-17168, 2017 WL 6554184, at *22 (9th Cir. Dec. 22, 2017). These showings accordingly

28

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1 demonstrate that preliminary relief is appropriate. Ibid.; see also Valle del Sol Inc. v. Whiting,

2 732 F.3d 1006, 1029 (9th Cir. 2013).

3

Defendants do not dispute that plaintiffs are likely to suffer such harms. Rather, they

4 argue that these harms will not happen before the phase-out begins on March 5, 2018, the date

5 by which the undersigned judge had wanted to present a final record and final decision for

6 appellate review.

7

Delays in this case, however, have made it impossible to send a final judgment to our

8 court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion

9 without giving plaintiffs an opportunity to examine the complete administrative record.

10 Government counsel, however, succeeded in obtaining an order from the Supreme Court

11 postponing proceedings on completing the administrative record until after ruling on its

12 FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative

13 record. Although plaintiffs are likely to prevail on even the truncated administrative record, as

14 set forth above, our appellate court might disagree with that conclusion or the agency might seek

15 to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all

16 flaws, if any more there be, lurking in the whole record. One such possibility suggested by

17 plaintiffs is that the rescission was contrived to give the administration a bargaining chip to

18 demand funding for a border wall in exchange for reviving DACA. A presidential tweet after

19 our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus.

20 These theories deserve the benefit of the full administrative record. It will be impossible to

21 litigate this case to a fair and final conclusion before March 5.18

22

23

24

25
18 On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully
26 understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an
END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our
27 Country at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial notice of this tweet. Defendants
object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial
28 notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED.

44

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1

C. Balance of Equities and Public Interest.

2

On provisional relief motions, district judges must consider whether (or not) such relief

3 would be in the public interest. On this point, we seem to be in the unusual position wherein the

4 ultimate authority over the agency, the Chief Executive, publicly favors the very program the

5 agency has ended. In September, President Trump stated his support for DACA, tweeting:

6 “Does anybody really want to throw out good, educated and accomplished young people who

7 have jobs, some serving in the military? Really! . . . .” He has also called upon Congress to

8 ratify DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

9 Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958).

10

For the reasons DACA was instituted, and for the reasons tweeted by President Trump,

11 this order finds that the public interest will be served by DACA’s continuation (on the conditions

12 and exceptions set out below). Beginning March 5, absent an injunction, one thousand

13 individuals per day, on average, will lose their DACA protection. The rescission will result in

14 hundreds of thousands of individuals losing their work authorizations and deferred action status.

15 This would tear authorized workers from our nation’s economy and would prejudice their being

16 able to support themselves and their families, not to mention paying taxes to support our nation.

17 Too, authorized workers will lose the benefit of their employer-provided healthcare plans and

18 thus place a greater burden on emergency healthcare services.

19

On provisional relief motions, district judges must also weigh the balance of hardships

20 flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be

21 repeated. The only hardship raised by defendants is interference with the agency’s judgment on

22 how best to allocate its resources in keeping our homeland secure, as well as its judgment in

23 phasing out DACA. Significantly, however, the agency’s judgment here was not based on a

24 policy change. It was based on a mistake of law. If the instant order is correct that DACA fell

25 within the statutory and constitutional powers of the Executive Branch, then a policy supported

26

27

28

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1 as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary

2 injunction will set that right without imposing any policy unwanted by the Executive Branch.19

3

D. Scope of Provisional Relief.

4

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending

5 final judgment herein or other order, to maintain the DACA program on a nationwide basis on

6 the same terms and conditions as were in effect before the rescission on September 5, 2017,

7 including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new

8 applications from applicants who have never before received deferred action need not be

9 processed; (2) that the advance parole feature need not be continued for the time being for

10 anyone; and (3) that defendants may take administrative steps to make sure fair discretion is

11 exercised on an individualized basis for each renewal application.

12

Nothing in this order prohibits the agency from proceeding to remove any individual,

13 including any DACA enrollee, who it determines poses a risk to national security or public

14 safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency

15 from granting advance parole in individual cases it finds deserving, or from granting deferred

16 action to new individuals on an ad hoc basis.

17

The agency shall post reasonable public notice that it will resume receiving DACA

18 renewal applications and prescribe a process consistent with this order. The agency shall keep

19 records of its actions on all DACA-related applications and provide summary reports to the

20 Court (and counsel) on the first business day of each quarter.20

21

22

19 If a likelihood of irreparable injury is shown and an injunction is in the public interest, a preliminary

injunction is also appropriate when a plaintiff demonstrates that serious questions going to the merits are raised
23 and the balance of hardships tips sharply in the plaintiff’s favor. Alliance for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1134–35 (9th Cir. 2011). Because plaintiffs have clearly demonstrated a likelihood of
24 irreparable injury and that the balance of hardships tips sharply in plaintiffs’ favor, preliminary relief would also

be appropriate under this alternative standard of review.
25

20 A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction
26 prohibits a party from taking action and preserves the status quo pending a determination of the action on the

merits.” Brewer I, 757 F.3d at 1060. The relevant status quo is the legally relevant relationship between the
27 parties before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission

of DACA, the status quo before which was that DACA was fully implemented. Accordingly, plaintiffs’
28 requested preliminary injunction is not mandatory. But even if it were, plaintiffs have demonstrated that

sufficiently serious irreparable harm would result to warrant even a mandatory injunction.

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1

By way of explanation, while plaintiffs have demonstrated that DACA recipients,

2 as well as their families, schools, employers, and communities, are likely to suffer substantial,

3 irreparable harm as a result of the rescission, they have not made a comparable showing as to

4 individuals who have never applied for or obtained DACA.

5

This order will not require advance parole. Unlike the widespread harm to plaintiffs and

6 our economy that would result were the 689,800 DACA enrollees to lose their ability to work in

7 this country, plaintiffs have not demonstrated that comparable harm will occur as a result of

8 DACA recipients’ inability to travel abroad. True, Individual Plaintiffs Jirayut Latthivongskorn

9 and Norma Ramirez describe professional disadvantages that may result if they are unable to

10 travel internationally. These, however, do not amount to hardships justifying a provisional

11 injunction requiring DHS to resume accepting applications for advance parole. However, as

12 stated, nothing in this order would bar individuals from asking for such agency relief or bar the

13 agency from granting it in deserving cases.

14

With respect to geographical scope, this order finds a nationwide injunction is

15 appropriate. Our country has a strong interest in the uniform application of immigration law

16 and policy. Plaintiffs have established injury that reaches beyond the geographical bounds

17 of the Northern District of California. The problem affects every state and territory of the

18 United States.

19

In February 2017, our court of appeals considered this very issue in Washington v.

20 Trump, 847 F.3d 1151, 1167 (9th Cir. 2017), and upheld a nationwide injunction imposed by a

21 single district court, observing that limiting the geographic scope of an injunction on an

22 immigration enforcement policy “would run afoul of the constitutional and statutory

23 requirements for uniform immigration law and policy” and that, as here, “the government ha[d]

24 not proposed a workable alternative.” Indeed, the Fifth Circuit reached the same conclusion in

25 determining the appropriate scope of an injunction over DAPA, Texas, 809 F.3d at 187–88,

26

27

28

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1 holding that uniform application of the immigration laws justified a nationwide injunction. So

2 too here.21

3

Limiting relief to the States in suit or the Individual Plaintiffs would result in

4 administrative confusion and simply provoke many thousands of individual lawsuits all over the

5 country. The most practical relief is to maintain DACA in the same manner to which the agency

6 and recipients are accustomed, subject to the exceptions above noted.

7

CONCLUSION

8

Defendants’ motion to dismiss under FRCP 12(b)(1) is GRANTED IN PART only to the

9 limited extent stated above and is otherwise DENIED. Maine and Minnesota’s APA claims are

10 hereby DISMISSED. Maine or Minnesota may seek leave to amend and will have 21 CALENDAR

11 DAYS from the date of this order to file a motion, noticed on the normal 35-day track, for leave to

12 file an amended complaint. A proposed amended complaint must be appended to the motion and

13 plaintiffs must plead their best case. Any such motion should clearly explain how the

14 amendments to the complaint cure the deficiencies identified herein. To the extent stated above,

15 plaintiffs’ motion for provisional relief is GRANTED. A separate order will address defendants’

16 motion to dismiss pursuant to FRCP 12(b)(6).

17

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

18

Pursuant to our court of appeals’ order dated December 21, 2017, the district court

19 hereby certifies for interlocutory appeal the issues decided herein (i) whether (or not) the

20 rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C.

21 § 1252(g), (ii) whether (or not) plaintiffs have standing, and (iii) all other questions interposed

22 by the government in its motion to dismiss under FRCP 12(b)(1). This order finds that these are

23 controlling questions of law as to which there is substantial ground for difference of opinion and

24

25

21 Oddly, the government’s contrary authority is Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir.

1987), a decision in which our court of appeals upheld a nationwide injunction and held, “[t]here is no general
26 requirement that an injunction affect only the parties in the suit,” and “nationwide relief in federal district or

circuit court [is permitted] when it is appropriate.” Bresgal merely observed that “[w]here relief can be
27 structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170.

Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general
28 proposition that a remedy should match the injury alleged, see, e.g., Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017), to the contrary.

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1 that their resolution by the court of appeals will materially advance the litigation. This order

2 realizes that the same issues are reviewable upon appeal of this injunction. Nevertheless, out of

3 caution and to avoid any problem concerning scope of review, the district court so certifies.

4

5

IT IS SO ORDERED.

6

7 Dated: January 9, 2018. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

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1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

14

v.

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

NIELSEN, in her official capacity as Secretary of the Department of Homeland

17 Security,

ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6)

18

Defendants.

/

19

20

INTRODUCTION

21

In these challenges to the government’s rescission of the Deferred Action for Childhood

22 Arrivals program, the government moves to dismiss plaintiffs’ complaints for failure to state a

23 claim. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

This order incorporates the statement set forth in the order dated January 9, 2018,

26 largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs’ motion for

27 provisional relief (Dkt. No. 234). This order, however, addresses a separate motion by the

28 government to dismiss all claims for failure to state a claim for relief under FRCP 12(b)(6).

This order sustains three claims for relief but finds that the rest fall short.

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1

ANALYSIS

2

1. APA CLAIMS UNDER 5 U.S.C. § 706(2)(A).

3

For the same reasons that plaintiffs are likely to succeed on their claim that the

4 rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in

5 accordance with law” in violation of the Administrative Procedure Act, as explained in the

6 January 9 order, the government’s motion to dismiss plaintiffs’ APA claims under 5 U.S.C. §

7 706(2)(A) is DENIED.

8

2. APA CLAIMS UNDER 5 U.S.C. § 706(2)(D).

9

The original DACA program began in 2012 without any notice or opportunity for public

10 comment. Likewise, the rescission in question ended DACA without notice or opportunity for

11 public comment. One issue now presented is whether the rescission is invalid for having been

12 carried out without notice-and-comment procedures.

13

Under the APA, an agency action must be set aside if it was done “without observance

14 of procedure required by law.” 5 U.S.C. § 706(2)(D). An agency is required to follow

15 prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C. § 553.

16 The Regulatory Flexibility Act further requires that notice-and-comment rulemaking include

17 an assessment of the impact on small entities. 5 U.S.C. § 604(a). These requirements do not

18 apply, however, to general statements of policy. 5 U.S.C. § 553(b)(A).

19

A general statement of policy “advis[es] the public prospectively of the manner in which

20 the agency proposes to exercise a discretionary power.” Mada-Luna v. Fitzpatrick, 813 F.2d

21 1006, 1012–13 (9th Cir. 1987). Such policies also “serve to educate and provide direction to

22 the agency’s personnel in the field, who are required to implement its policies and exercise its

23 discretionary power in specific cases.” Id. at 1013 (quotes and citations omitted). “The critical

24 factor” in determining whether a directive constitutes a general statement of policy is “the

25 extent to which the challenged [directive] leaves the agency, or its implementing official, free to

26 exercise discretion to follow, or not to follow, the [announced] policy in an individual case.”

27 Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the

28 policy operates only prospectively, and (2) the policy does “not establish a binding norm,” and

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1 is not “finally determinative of the issues or rights to which [it] address[es],” but instead leaves

2 officials “free to consider the individual facts in the various cases that arise.” Id. at 1014

3 (quotes and citations omitted). Under this standard, the rescission memorandum is a general

4 statement of policy.

5

This order rejects plaintiffs’ contention that the rescission could only be done through

6 notice and comment. For the same reasons that the promulgation of DACA needed no notice

7 and comment, its rescission needed no notice and comment.

8

Almost this exact problem was addressed in Mada-Luna. There, our court of appeals

9 held that the repeal of an INS policy under which applicants could seek deferred action was not

10 subject to notice and comment. It rejected the argument that the repeal could not constitute a

11 general statement of policy because it diminished the likelihood of receiving deferred action for

12 a class of individuals. Id. at 1016. Rather, because the original policy allowed for discretion

13 and failed to establish a “binding norm,” the repeal of that policy also did not require notice and

14 comment. Id. at 1017. So too here. The DACA program allowed but did not require the

15 agency to grant deferred action, and upon separate application, travel authorization, on a case-

16 by-case basis at the agency’s discretion. Therefore, neither its promulgation nor its rescission

17 required notice and comment.

18

Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), on which plaintiffs heavily rely,

19 does not warrant the conclusion that the rescission policy is a substantive rule. Parco also

20 addressed whether the rescission of an INS policy required notice and comment. Notably, the

21 government in Parco stipulated that the policy’s precipitous rescission was the sole reason for

22 denial of the plaintiff’s application for immigration relief. Id. at 984. The district court

23 determined that the repeal therefore left no discretion, explaining that “discretion” was stripped

24 of all meaning where “one contends that under a certain regulation ‘discretion’ was exercised

25 favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in

26 each such case.” Ibid. Here, by contrast, plaintiffs do not allege that all deferred action

27 applications under DACA were approved but now, after the rescission, all requests for deferred

28 action will be denied.

3

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1

Plaintiffs argue that the rescission memorandum is more than a policy because it creates

2 a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are

3 correct that the rescission policy contains mandatory language on its face. It is also true that the

4 rescission memorandum categorically eliminates advance parole for DACA recipients.

5 This comes closer to resembling a substantive rule. However, it remains the case that because

6 the original promulgation of the discretionary program did not require notice and comment,

7 a return to the status quo ante also does not require notice and comment. Mada-Luna, 813 F.2d

8 at 1017.

9

Defendants’ motion to dismiss plaintiffs’ claims pursuant to Section 706(2)(D) of the

10 APA and the Regulatory Flexibility Act is accordingly GRANTED.

11

3.

DUE PROCESS CLAIMS.

12

To assert a due process claim, a plaintiff must first show that he or she has an interest in

13 liberty or property protected by the Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569

14 (1972). Plaintiffs fail to make the threshold showing that they have a protected interest in the

15 continuation of DACA and, accordingly, their due process claims based on the rescission must

16 be dismissed. Plaintiffs have adequately alleged, however, that the agency’s changes to its

17 information-sharing policy are “fundamentally unfair.”

18

A. Deferred Action.

19

Because discretionary immigration relief “is a privilege created by Congress, denial of

20 such relief cannot violate a substantive interest protected by the Due Process clause.” Munoz v.

21 Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (citing INS v. Yang, 519 U.S. 26, 30 (1996)).

22 Moreover, “aliens have no fundamental right to discretionary relief from removal” for purposes

23 of due process. Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Our court of

24 appeals has accordingly held there is no protected interest in temporary parole, since such relief

25 is “entirely within the discretion of the Attorney General.” Kwai Fun Wong v. United States,

26 373 F.3d 952, 967–68 (9th Cir. 2004). Nor did an INS policy which allowed the agency to

27 recommend deferred action as “an act of administrative choice” create substantive liberty

28 interests. Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985). These authorities

4

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1 foreclose any argument that plaintiffs have a protected interest in continued deferred action or

2 advance parole under DACA.1

3

Plaintiffs reply that even absent a protected interest in the initial, discretionary grant of

4 deferred action, there is a protected interest in the renewal of DACA and its associated benefits.

5 Yet a benefit is not a “protected entitlement” where “government officials may grant or deny it

6 in their discretion.” Castle Rock, 545 U.S. 748, 756 (2005). Rather, an individual has a

7 protected property right in public benefits where the rules conferring those benefits “greatly

8 restrict the discretion” of the people who administer them. Nozzi v. Hous. Auth. of City of Los

9 Angeles, 806 F.3d 1178, 1191 (9th Cir. 2015). Plaintiffs’ authorities confirm that the same

10 principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of

11 California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64 (9th Cir. 1994); Stauch v. City of

12 Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000). No such limitations on agency discretion

13 are alleged to have applied under DACA. Rather, the USCIS DACA FAQs referenced by

14 plaintiffs in their complaints make clear that “USCIS retain[ed] the ultimate discretion to

15 determine whether deferred action [was] appropriate in any given case even if the guidelines

16 [were] met” (Garcia Compl. ¶ 24 n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B; State

17 Compl., Exh. E).

18

Next, plaintiffs argue that once DACA status was conferred, and recipients organized

19 their lives in reliance on the program’s protections and benefits, they developed interests

20 protected by the Constitution. Plaintiffs’ authorities, however, stand only for the

21 uncontroversial proposition that once in possession of a particular benefit, the alteration,

22 revocation or suspension of that benefit may implicate due process.2 Such a principle has no

23 application where, as here, extant benefits are not impacted by a change in policy. Indeed, there

24 is no dispute that the rescission acts only prospectively. That is, all existing DACA recipients

25
1 Plaintiffs’ attempt to distinguish Romeiro de Silva on the ground that the INS policy there involved
26 “unfettered discretion,” whereas the exercise of prosecutorial discretion under DACA was guided by standard
operating procedures, is unconvincing.
27
2 See Bell v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist. Court For Dist. of Arizona,
28 349 F.3d 1169, 1179 (9th Cir. 2003); Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 5176720, at *9
(W.D. Wash. Nov. 8, 2017).

5

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1 will receive deferred action through the end of their two-year terms. What they will not receive,

2 if the rescission endures, will be DACA renewal, thereafter. For this reason, Ixcot v. Holder,

3 646 F.3d 1202 (9th Cir. 2011), and Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), which

4 addressed whether amendments to the INA were impermissibly retroactive, do not compel a

5 different result.

6

Plaintiffs contend that the government’s communications with plaintiffs regarding

7 renewals, its operation of the program, and the public promises of government officials

8 “together created an understanding that DACA recipients were entitled to the continued benefits

9 of the program so long as they met the renewal criteria” (Dkt. No. 205 at 29). Plaintiffs are

10 correct, of course, that claims of entitlement can be defined by “rules or mutually explicit

11 understandings.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). Importantly, however, a

12 person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably

13 held, does not create a protected right if that belief is not mutually held by the government.

14 Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011). An agency’s past practice of

15 generally granting a government benefit is also insufficient to establish a legal entitlement.

16 Ibid.

17

This order empathizes with those DACA recipients who have built their lives around

18 the expectation that DACA, and its associated benefits, would continue to be available to them

19 if they played by the rules. That expectation, however, remains insufficient to give rise to a

20 constitutional claim under the Fifth Amendment. Because plaintiffs have failed to allege facts

21 demonstrating a protected interest in DACA’s continuation or the renewal of benefits

22 thereunder, defendants’ motion to dismiss plaintiffs’ due process claims based on the rescission

23 must be GRANTED.

24

B. Information-Sharing Policy.

25

Plaintiffs fare better with their substantive due process claim that DHS allegedly

26 changed its policy with respect to the personal information provided by DACA recipients

27 during the application process. Plaintiffs allege that the government repeatedly represented

28 that information provided by DACA applicants would not be used for immigration enforcement

6

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United States District Court For the Northern District of California

1 purposes absent special circumstances, and that DACA recipients relied on these promises in

2 submitting the extensive personal information needed to meet the program’s requirements.

3

Defendants insist that the agency’s information-sharing policy remains unchanged.

4 On a motion to dismiss, however, the well-pled factual allegations in a complaint must be

5 accepted as true. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.

6 2008). Plaintiffs have clearly alleged that DHS changed its information-sharing policy such

7 that now, rather than affirmatively protecting DACA recipients’ information from disclosure,

8 the government will only refrain from “proactively” providing their information for purposes of

9 immigration enforcement proceedings (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State

10 Compl. ¶ 122).

11

Plaintiffs have also adequately alleged a “mutually explicit understanding” giving rise

12 to a protected interest in the confidentiality of DACA recipients’ personal information.

13 They allege that throughout DACA’s existence, DHS made affirmative representations as to

14 how this information would (and would not) be used. The policy stated (Garcia Compl. ¶ 126;

15 Santa Clara Compl. ¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs)):

16

Information provided in this request is protected from disclosure

to ICE and CBP for the purpose of immigration enforcement

17

proceedings unless the requestor meets the criteria for the issuance

of a Notice to Appear or a referral to ICE under the criteria set

18

forth in USCIS’ Notice to Appear guidance

(www.uscis.gov/NTA). Individuals whose cases are deferred

19

pursuant to DACA will not be referred to ICE. The information

may be shared with national security and law enforcement

20

agencies, including ICE and CBP, for purposes other than removal,

including for assistance in the consideration of DACA, to identify

21

or prevent fraudulent claims, for national security purposes, or for

the investigation or prosecution of a criminal offense. The above

22

information sharing policy covers family members and guardians,

in addition to the requestor. This policy, which may be modified,

23

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

24

benefit, substantive or procedural, enforceable by law by any party

in any administrative, civil, or criminal matter.

25

The language contained in the policy’s caveat, that it could “be modified, superseded,

26

or rescinded at any time,” is ambiguous. One reading advanced by the government is that this

27

caveat allows the agency to change how it treats information already received from DACA

28

applicants. Another reading, however, is that it simply allows the government to change its

7

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United States District Court For the Northern District of California

1 policy in connection with future applicants. Secretary of Homeland Security Jeh Johnson’s

2 December 2016 letter to United States Representative Judy Chu supports the later reading.

3 He stated that, “[s]ince DACA was announced in 2012, DHS has consistently made clear that

4 information provided by applicants . . . will not later be used for immigration enforcement

5 purposes except where it is independently determined that a case involves a national security

6 or public safety threat, criminal activity, fraud, or limited other circumstances where issuance

7 of a notice to appear is required by law” (Garcia Compl. ¶¶ 36–37; State Compl. ¶ 98, Exh. F).

8 This ambiguity presents a question of fact that cannot be resolved on the pleadings.

9

Taken as true at this stage, as must be done on a FRCP 12(b)(6) motion, plaintiffs’

10 allegations regarding the government’s broken promise as to how DACA recipients’ personal

11 information will be used — and its potentially profound consequences — “shock[s] the

12 conscience and offend[s] the community’s sense of fair play and decency.” Marsh v. County of

13 San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quotes and citations omitted). Defendants’

14 motion to dismiss plaintiffs’ due process claims based on changes to the government’s

15 information-use policy is DENIED.

16

4.

EQUITABLE ESTOPPEL.

17

Plaintiffs bring claims for equitable estoppel, arguing that the government should not be

18 permitted to terminate DACA or use the information collected from applicants for immigration

19 enforcement purposes.

20

Defendants first contend that plaintiffs’ equitable estoppel claims fail because there is no

21 recognized claim for relief based on estoppel. The Supreme Court has refused to adopt,

22 however, “a flat rule that estoppel may not in any circumstances run against the Government,”

23 noting that “the public interest in ensuring that the Government can enforce the law free from

24 estoppel might be outweighed by the countervailing interest of citizens in some minimum

25 standard of decency, honor, and reliability in their dealings with their Government.” Heckler v.

26 Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60–61 (1984). Moreover, our court of

27 appeals has addressed such claims on the merits, and has held that the government may be

28

8

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United States District Court For the Northern District of California

1 subject to equitable estoppel if it has engaged in “affirmative misconduct.” Watkins v. U.S.

2 Army, 875 F.2d 699, 706–07 (9th Cir. 1989).

3

To state an equitable estoppel claim against the government, a party must show

4 (1) that the government engaged in “affirmative conduct going beyond mere negligence”; and

5 (2) “the government’s wrongful act will cause a serious injustice, and the public’s interest will

6 not suffer undue damage” if the requested relief is granted. Id. at 707. “Neither the failure to

7 inform an individual of his or her legal rights nor the negligent provision of misinformation

8 constitute affirmative misconduct.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000).

9 Moreover, our court of appeals has defined “affirmative misconduct” to mean a “deliberate lie”

10 or “a pattern of false promises.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001).

11 The allegations in the complaints fail to meet this standard, inasmuch as no affirmative instances

12 of misrepresentation or concealment have been plausibly alleged.

13

Plaintiffs are correct that estoppel “does not require that the government intend to

14 mislead a party,” Watkins, 875 F.2d 707, but plaintiffs fail to explain how contradictory policies

15 under two different administrations add up to “affirmative misconduct beyond mere negligence.”

16 Plaintiffs fail to allege, for example, that the government’s past statements regarding DACA’s

17 legality were a “deliberate lie” or more than mere negligence. Nor have plaintiffs pleaded that

18 the alleged change in the agency’s information-use policy was the result of an affirmative

19 misrepresentation. Rather, they have merely alleged a change in policy. Under plaintiffs’ theory

20 new administrations would almost never be able to change prior policies because someone could

21 always assert reliance upon the old policy. Defendants’ motion to dismiss plaintiffs’ equitable

22 estoppel claims is GRANTED.

23

5.

EQUAL PROTECTION CLAIMS.

24

To state an equal protection claim plaintiffs must show that the rescission was motivated

25 by a discriminatory purpose. Arce v. Douglas, 793 F.3d 968, 977 (2015) (citing Vill. of

26 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). Determining

27 whether discrimination is a motivating factor “demands a sensitive inquiry into such

28 circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at

9

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United States District Court For the Northern District of California

1 266. A plaintiff need not show that the discriminatory purpose was the sole purpose of the

2 challenged action, but only that it was a “motivating factor.” Ibid. In analyzing whether a

3 facially-neutral policy was motivated by a discriminatory purpose, district courts must consider

4 factors such as whether the policy creates a disparate impact, the historical background and

5 sequence of events leading up to the decision, and any relevant legislative or administrative

6 history. Id. at 266–68.3

7

First, Individual Plaintiffs and Santa Clara clearly allege that the rescission had a

8 disproportionate impact on Latinos and Mexican nationals. Indeed, such individuals account

9 for 93 percent of DACA recipients (Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9, 75).

10 Defendants reply that this disparate impact is an accident of geography, not evidence of

11 discrimination. True, a disparate impact of a facially-neutral rule, standing alone, cannot

12 establish discriminatory intent. See Washington v. Davis, 426 U.S. 229, 242 (1976). Individual

13 Plaintiffs and Santa Clara, however, have alleged a discriminatory impact only as a starting

14 point. They also allege a history of bias leading up to the rescission of DACA in the form of

15 campaign statements and other public comments by President Trump, as next discussed.4

16

Second, plaintiffs allege that President Trump has, on multiple occasions since he

17 announced his presidential campaign, expressed racial animus towards Latinos and Mexicans.

18 When President Trump announced his candidacy on June 16, 2015, for example, he

19 characterized Mexicans as criminals, rapists, and “people that have lots of problems.” Three

20 days later, President Trump tweeted that “[d]ruggies, drug dealers, rapists and killers are coming

21 across the southern border,” and asked, “When will the U.S. get smart and stop this travesty?”

22

23

3 The Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), which addressed

the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim, has no
24 application here. Plaintiffs’ claims cannot fairly be characterized as selective-prosecution claims because they

do not “implicate the Attorney General’s prosecutorial discretion — that is, in this context, his discretion to
25 choose to deport one person rather than another among those who are illegally in the country.” Kwai Fun

Wong, 373 F.3d at 970. Rather, plaintiffs allege that the agency’s decision to end a nationwide deferred action
26 program was motivated by racial animus towards a protected class.

27

4 The City of San Jose’s equal protection claim falls a little short. Rather than alleging a disparate

impact on a protected class, it alleges only that “[d]efendants’ actions target individuals for discriminatory
28 treatment based on their national origin, without lawful justification” (San Jose Compl. ¶ 54). For this reason,

defendants’ motion to dismiss San Jose’s equal protection claim is GRANTED.

10

Case 3:17-cv-05235-WHA Document 88 Filed 01/12/18 Page 11 of 14

United States District Court For the Northern District of California

1 During the first Republican presidential debate, President Trump claimed that the Mexican

2 government “send[s] the bad ones over because they don’t want to pay for them.” And in

3 August 2017, he referred to undocumented immigrants as “animals” who are responsible for “the

4 drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13” (Garcia Compl. ¶¶

5 102–13, 124; Santa Clara Compl. ¶¶ 75–76).

6

Circumstantial evidence of intent, including statements by a decisionmaker, may be

7 considered in evaluating whether government action was motivated by a discriminatory purpose.

8 Arlington Heights, 429 U.S. at 266–68. These statements were not about the rescission (which

9 came later) but they still have relevance to show racial animus against people south of our

10 border.

11

Should campaign rhetoric be admissible to undermine later agency action by the victors?

12 This order recognizes that such admissibility can readily lead to mischief in challenging the

13 policies of a new administration. We should proceed with caution and give wide berth to the

14 democratic process. Yet are clear cut indications of racial prejudice on the campaign trail to be

15 forgotten altogether?

16

Our court of appeals recently confirmed that “evidence of purpose beyond the face of the

17 challenged law may be considered in evaluating Establishment and Equal Protection Clause

18 claims.” Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that

19 President Trump’s statements regarding a “Muslim ban” raised “serious allegations and

20 presented significant constitutional questions,” although it ultimately reserved consideration of

21 plaintiffs’ equal protection claim. Id. at 1167–68. Citing to Washington, at least two district

22 courts have since considered President Trump’s campaign statements in finding a likelihood of

23 success on Establishment Clause claims. See, e.g., Aziz v. Trump, 234 F. Supp. 3d 724, 736

24 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1236 (D.

25 Haw. 2017) (Judge Derrick Watson). This order will follow these decisions and hold that, at

26 least at the pleading stage, campaign rhetoric so closely tied to the challenged executive action is

27 admissible to show racial animus.

28

11

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United States District Court For the Northern District of California

1

Third, a final consideration is the unusual history behind the rescission. DACA received

2 reaffirmation by the agency as recently as three months before the rescission, only to be

3 hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality).

4 This strange about-face, done at lightning speed, suggests that the normal care and consideration

5 within the agency was bypassed (Garcia Compl. ¶ 154; Santa Clara Compl. ¶¶ 8, 77).

6

That President Trump has at other times shown support for DACA recipients cannot wipe

7 the slate clean as a matter of law at the pleading stage. Although the government argues that

8 these allegations fail to suggest that the Acting Secretary (as the purported decisionmaker)

9 terminated DACA due to racial animus, plaintiffs have alleged that it was President Trump

10 himself who, in line with his campaign rhetoric, directed the decision to end the program

11 (Garcia Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21).

12

Construed in the light most favorable to plaintiffs, as must be done at the pleading stage,

13 these allegations raise a plausible inference that racial animus towards Mexicans and Latinos

14 was a motivating factor in the decision to end DACA. The fact-intensive inquiry needed to

15 determine whether defendants acted with discriminatory intent cannot be made on the pleadings.

16 Accordingly, defendants’ motion to dismiss Santa Clara’s and Individual Plaintiffs’ equal

17 protection claims must be DENIED.

18

State Plaintiffs allege an equal protection claim on the alternative theory that the

19 rescission “violates fundamental conceptions of justice by depriving DACA grantees, as a class,

20 of their substantial interests in pursuing a livelihood to support themselves and further their

21 education” (State Compl. ¶¶ 172–77). Plaintiffs do not respond to the government’s arguments

22 that this theory fails to state a claim under FRCP 12(b)(6). Defendants’ motion to dismiss State

23 Plaintiffs’ equal protection claim is accordingly GRANTED.

24

6.

DECLARATORY RELIEF.

25

Defendants move to dismiss the Individual Plaintiffs’ claim for declaratory relief.

26 Individual Plaintiffs’ request for declaratory relief is also contained in their prayer for relief and,

27 accordingly, the standalone claim is superfluous. Defendants’ motion to dismiss this claim is

28 GRANTED.

12

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United States District Court For the Northern District of California

1

CONCLUSION

2

Consistent with the foregoing, defendants’ motion to dismiss is GRANTED IN PART and

3 DENIED IN PART as follows:

4

•

Plaintiffs’ APA claims are sustained, except for the following: Garcia

5

Complaint – Fifth Claim for Relief; UC Complaint – Second Claim for

6

Relief; State Complaint – Second Claim for Relief; San Jose Complaint

7

– Second Claim for Relief.

8

•

Plaintiffs’ Regulatory Flexibility Act claims are dismissed.

9

•

Plaintiffs’ due process claims are sustained, except for the following:

10

UC Complaint – Third Claim for Relief; Garcia Complaint –

11

First Claim for Relief (to the extent based on the rescission);

12

Santa Clara Complaint – First Claim for Relief (to the extent based on

13

the rescission).

14

•

Plaintiffs’ equal protection claims are sustained, except for the

15

following: State Complaint – Sixth Claim for Relief; San Jose

16

Complaint – First Claim for Relief.

17

•

Plaintiffs’ equitable estoppel claims are dismissed.

18

•

Individual Plaintiffs’ declaratory relief claim is dismissed.

19

Plaintiffs may seek leave to amend and will have 21 CALENDAR DAYS from the date of

20 this order to file motions, noticed on the normal 35-day track, seeking leave to amend solely

21 as to the claims dismissed above. Proposed amended complaints must be appended to each

22 motion and plaintiffs must plead their best case. Any such motion should clearly explain how

23 the amendments to the complaints cure the deficiencies identified herein and should include as

24 an exhibit a redlined or highlighted version of the complaints identifying all changes.

25

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

26

The district court hereby certifies for interlocutory appeal the issues of whether

27 (i) President Trump’s campaign statements are properly considered in evaluating plaintiffs’

28 equal protection claims, (ii) whether the Individual Plaintiffs’ and County of Santa Clara’s

13

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United States District Court For the Northern District of California

1 allegations as pleaded state an equal protection claim, (iii) whether plaintiffs’ allegations

2 concerning changes to the government’s information-sharing policy state a due process claim;

3 (iv) whether plaintiffs have failed to state a claim under 5 U.S.C. § 553; and (v) whether

4 plaintiffs have failed to state a due process claim based on the rescission of DACA. This order

5 finds that these are controlling questions of law as to which there is substantial ground for

6 difference of opinion and that their resolution by the court of appeals will materially advance the

7 litigation.

8

9

IT IS SO ORDERED.

10

11 Dated: January 12, 2018. 12

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
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2018  WL  5833232  
  

908 F.3d 476 United States Court of Appeals, Ninth Circuit.
REGENTS OF THE UNIVERSITY OF CALIFORNIA; Janet Napolitano, in her official
capacity as President of the University of California, Plaintiffs-Appellees, v.
U.S. DEPARTMENT OF HOMELAND SECURITY; Kirstjen Nielsen, in her official capacity as Acting Secretary of the Department of Homeland Security,
Defendants-Appellants. State of California; State of Maine; State of
Minnesota; State of Maryland, Plaintiffs-Appellees, v.
U.S. Department of Homeland Security; Kirstjen Nielsen, in her official capacity as Acting Secretary of the Department of Homeland Security; United
States of America, Defendants-Appellants. City of San Jose, Plaintiff-Appellee, v.
Donald J. Trump, President of the United States, in his official capacity; Kirstjen Nielsen, in her official capacity as Acting Secretary of the
Department of Homeland Security; United States of America, Defendants-Appellants.
Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza;
Jirayut Latthivongskorn; Norma Ramirez, Plaintiffs-Appellees, v.
United States of America; Donald J. Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; Kirstjen Nielsen, in her official capacity as Acting Secretary
of the Department of Homeland Security, Defendants-Appellants.
County of Santa Clara; Service Employees International Union Local 521, Plaintiffs-Appellees, v.
Donald J. Trump, in his official capacity as President of the United States; Jefferson B. Sessions III, Attorney General; Kirstjen Nielsen, in her official capacity as Acting Secretary of the
Department of Homeland Security; U.S. Department of Homeland Security, Defendants-Appellants.
Regents of the University of California; Janet Napolitano, in her official capacity as President of
the University of California; State of California; State of Maine; State of Minnesota; State of
  
  

Maryland; City of San Jose; Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza; Jirayut Latthivongskorn; Norma Ramirez; County of Santa Clara; Service Employees International Union Local 521, Plaintiffs-Appellees, v.
United States of America; Donald J. Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; Kirstjen Nielsen, in her official capacity as Acting Secretary
of the Department of Homeland Security, Defendants-Appellants.
Regents of the University of California; Janet Napolitano, in her official capacity as President of
the University of California; State of California; State of Maine; State of Minnesota; State of
Maryland; City of San Jose; Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza; Jirayut Latthivongskorn; Norma Ramirez, Plaintiffs-Appellants, v.
United States of America; Donald J. Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; Kirstjen Nielsen, in her official capacity as Acting Secretary
of the Department of Homeland Security, Defendants-Appellees.
Dulce Garcia; Miriam Gonzalez Avila; Saul Jimenez Suarez; Viridiana Chabolla Mendoza; Norma Ramirez; Jirayut Latthivongskorn; County of Santa Clara; Service Employees International
Union Local 521, Plaintiffs-Appellants, v.
United States of America; Donald J. Trump, in his official capacity as President of the United States; U.S. Department of Homeland Security; Kirstjen Nielsen, in her official capacity as Acting Secretary
of the Department of Homeland Security, Defendants-Appellees.
No. 18-15068, No. 18-15069, No. 18-15070, No. 18-15071, No. 18-15072, No. 18-15128, No. 18-15133, No. 18-15134 |
Argued and Submitted May 15, 2018 Pasadena, California |
Filed November 8, 2018
Synopsis Background: States, state university, county, city, union,
1  

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2018  WL  5833232  
  
and individuals brought action against United States Department of Homeland Security (DHS) for, among other things, declaratory relief, alleging Administrative Procedure Act (APA), due process, and equal protection claims based on rescission of Deferred Action for Childhood Arrivals (DACA) program which had provided certain aliens discretionary relief from removal. The United States District Court for the Northern District of California, William Alsup, J., 279 F.Supp.3d 1011, entered preliminary injunctive relief 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.

Owens, Circuit Judge, issued opinion concurring in the judgment.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction; Motion to Dismiss for Failure to State a Claim.
Attorneys and Law Firms
*482 Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Thomas Pulham, Abby C. Wright, and Mark B. Stern, Appellate Staff; Alex G. Tse, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Holdings: The Court of Appeals, Wardlaw, Circuit Judge, held that:
APA’s jurisdictional bar to judicial review of agency action committed to agency discretion by law did not apply to action;
Immigration and Nationality Act (INA) provision barring jurisdiction for judicial review of claims arising from a decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien did not deprive court of jurisdiction over action;
jurisdiction-stripping provision of REAL ID Act did not bar jurisdiction over action;
plaintiffs were likely to succeed on merits of their claim, as element of preliminary injunction, that DHS to decision to rescind DACA was based on Acting Secretary of DHS’s incorrect belief that DACA was illegal and had to be rescinded;
District Court did not abuse its discretion by issuing nationwide preliminary injunction;
memorandum rescinding DACA program constituted a “general statement of policy” that did not require notice and comment rulemaking under the APA;
illegal immigrants did not possess any liberty or property interest in continuation of DACA, thereby precluding Due Process claim;
plaintiffs stated equal protection claim.
Affirmed.
  
  

Michael J. Mongan (argued), Deputy Solicitor General; Samuel P. Siegel, Associate Deputy Solicitor General; James F. Zahradka II, Deputy Attorney General; Michael L. Newman, Supervising Deputy Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Plaintiff-Appellee State of California.
Susan P. Herman, Deputy Attorney General; Janet T. Mills, Attorney General; Office of the Attorney General, Augusta, Maine; for Plaintiff-Appellee State of Maine.
Jacob Campion, Assistant Attorney General; Lori Swanson, Attorney General; Office of the Attorney General, St. Paul, Minnesota; for Plaintiff-Appellee State of Minnesota.
Leah J. Tullin, Assistant Attorney General; Steven M. Sullivan, Solicitor General; Brian E. Frosh, Attorney General; Attorney General’s Office, Baltimore, Maryland; for Plaintiff-Appellee State of Maryland.
Jeffrey Michael Davidson (argued), Breanna K. Jones, David S. Watnick, Erika Douglas, and Mónica Ramírez Almadani, Covington & Burling LLP, San Francisco, California; Ivano M. Ventresca, Megan A. Crowley, Alexander A. Berengaut, Mark H. Lynch, and Robert A. Long, Covington & Burling LLP, Washington, D.C.; for Plaintiff-Appellee The Regents of the University of California, et al.
Brian Danitz, Tamarah Prevost, and Justin T. Berger, Cotchett Pitre & McCarthy LLP, Burlingame, California, for Plaintiff-Appellee City of San José.
Mark D. Rosenbaum (argued), Malhar Shah, and Judy London, Public Counsel, Los Angeles, California; Haley S. Morrisson, Matthew S. Rozen, and Nicole A. Saharsky,
2  

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2018  WL  5833232  
  
Gibson Dunn & Crutcher LLP, Washington, D.C.; Kelsey J. Helland, Jonathan N. Soleimani, Kirsten Galler, Ethan D. Dettmer, and Theodore J. Boutrous Jr., Gibson Dunn & Crutcher LLP, Los Angeles, California; Luis Cortes Romera, Barrera Legal Group PLLC, Kent, Washington; Erwin Chemerinsky, Berkeley, California; Laurence H. Tribe, Cambridge, Massachusetts; Leah M. Litman, Irvine, California; for Plaintiffs-Appellees Dulce Garcia, Miriam Gonzalez Avila, Saul Jimenez Suarez, Virdiana Chabolla Mendoza, Norma Ramirez, and Jirayut Latthivongskorn.
Andrew Kushner, Eric P. Brown, and Stacey M. Leyton, Altshuler Berzon LLP, San Francisco, California, for Plaintiff-Appellee County of Santa Clara and Service Employees International Union Local 521.
Marcelo Quiñones, Laura S. Trice, Greta S. Hansen, and James R. Williams, Office of the County Counsel, County of Santa Clara, San Jose, California, for Plaintiff-Appellee County of Santa Clara.

Abhas Hajela, Capitol Advisors Group LLC, Sacramento, California; Eric E. Stevens, Girard Edwards Stevens & Tucker LLP, Sacramento, California; Kathryn M. Sheffield, California Faculty Association, Sacramento, California; Glenn Rothner, Rothner Segall & Greenstone, Pasadena, California; D. Michael Ambrose and Elaine M. Yama-Garcia, California School Boards Association Education Legal Alliance, Sacramento, California; Jean Shin and Laura P. Juran, California Teachers Association, Burlingame, California; Vibiana M. Andrade, Los Angeles County Office of Education, Downey, California; Devora Navera Reed and David Holmquist, Los Angeles Unified School District, Los Angeles, California; Sonja H. Trainor and Francisco Negrón, National School Boards Association, Alexandria, Virginia; Michael L. Smith, Oakland Unified School District, Oakland, California; Raoul Bozio, Sacramento City Unified School District, Sacramento, California; for Amici Curiae Public Education Groups.

Jessica Levin, Melissa Lee, Lorraine K. Bannai, and Robert S. Chang, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington, for Amici Curiae 42 Historians and the Fred T. Korematsu Center for Law and Equality.
Leo Gertner, Deborah L. Smith, and Nicole G. Berner, Service Employees International Union, Washington, D.C.; Deepak Gupta, Gupta Wessler PLLC, Washington, D.C.; David J. Strom, American Federation of Teachers, Washington, D.C.; Judith Rivlin, American Federation of State, County, and Municipal Employees, Washington, D.C.; Patricia M. Shea, Communications Workers of America, Washington, D.C.; Bradley Raymond, International Brotherhood of Teamsters, Washington, D.C.; Joseph E. Kolick Jr., International Union of Painters and Allied Trades, Hanover, Maryland; Mario Martínez, Martínez Aguilasocho & Lynch APLC, Bakersfield, California; for Amici Curiae Service Employees International Union; American Federation of Teachers; American Federation of State, County and Municipal Employees; Communications Workers of America; International Brotherhood of Teamsters; International Union of Painters and Allied Trades; and United Farm Workers of America.
Geoffrey S. Brounell and Peter Karanjia, Davis Wright Tremaine LLP, Washington, D.C., for Amicus Curiae United We Dream.
Sean Goldhammer, Lubna A, Alam, Jason Walta, Emma Leheny, and Alice O’Brien, National Education Association, Washington, D.C.; Andra M. Donovan, San Diego Unified School District, San Diego, California;

Caryn C. Lederer, Chirag G. Badlani, and Matthew J. Piers, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois; Daniel B. Rice and Joshua A. Geltzer, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.
Zachary Kolodin, Michael N. Fresco, Adeel A. Mangi, and Steven A. Zalesin, Patterson Belknap Webb & Tyler LLP, New York, New York; Juvaria Khan, Sirine Shebaya, and Jonathan Smith, Muslim Advocates, Washington, D.C.; for Amici Curiae 119 Religious Organizations.
Jennifer J. Yun, Ishan Bhabha, Lindsay C. Harrison, and Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C., for Amici Curiae Institutions of Higher Education.
Jennifer B. Sokoler and Anton Metlitsky, O’Melveny & Myers LLP, New York, New York, for Amicus Curiae Eighteen Universities.
Lauren R. Goldman and Karen W. Lin, Mayer Brown LLP, New York, New York; Andrew J. Pincus, Mayer Brown LLP, Washington, D.C.; Ari Holzblatt, Patrick J. Carome, and Seth Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for Amici Curiae 102 Companies and Associations.
John-Paul S. Deol and Daniel J. McCoy, Fenwick & West LLP, Mountain View, California; Mark S. Ross, James L. McGinnis, and Neil A.F. Popović, Sheppard Mullin Richter & Hampton LLP, San Francisco, California; for Amicus Curiae The Bar Association of San Francisco.

  

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2018  WL  5833232  
  
Juan P. Valdivieso, Boies Schiller Flexner LLP, Oakland, California; Albert Giang, Boies Schiller Flexner LLP, Los Angeles, California; J. Wells Harrell and Joshua Riley, Boies Schiller Flexner LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration and Homeland Security Officials.
Kaitland M. Kennelly and William J. Schwartz, Cooley LLP, New York, New York, for Amici Curiae Partnership for Educational Justice, DelawareCAN: The Delaware Campaign for Achievement Now, HawaiiKidsCAN, NewMexicoKidsCAN, and Virginia Excels.
Matthew Scherb, Michael Dundas, Valerie L. Flores, Leela A. Kapur, James P. Clark, and Michael N. Feuer, City Attorney, Office of the City Attorney, Los Angeles, California; Donna R. Ziegler, Alameda County Counsel, Oakland, California; Anne L. Morgan, City Attorney, Austin, Texas; Eugene O’Flaherty, City Corporation Counsel, Boston, Massachusetts; Cheryl Watson Fisher, City Solicitor, Chelsea, Massachusetts; Kimberly M. Foxx, States Attorney for Cook County, Chicago, Illinois; Jeremy Berry, City Attorney, Atlanta, Georgia; Farimah F. Brown, City Attorney, Berkeley, California; Nancy E. Glowa, City Solicitor, Cambridge, Massachusetts; Edward N. Siskel, City Corporation Counsel, Chicago, Illinois; Larry E. Casto, City Attorney, Dallas, Texas; Kristin M. Bronson, City Attorney of the City and County of Denver, Denver, Colorado; Gregory L. Thomas, City Attorney, Gary, Indiana; Ronald C. Lewis, City Attorney, Houston, Texas; Eleanor M. Dilkes, City Attorney, Iowa City, Iowa; Jennifer Vega-Brown, City Attorney, Las Cruces, New Mexico; Karl A. Racine, Attorney General, District of Colombia, Washington, D.C.; Donna Y. L. Leong, Corporation Counsel, Honolulu, Hawaii; Aaron O. Lavine, City Attorney, Ithaca, New York; Daniel T. Satterberg, King County Prosecuting Attorney, Seattle, Washington; Charles Parkin, City Attorney, Long Beach, California; Margaret L. Carter, O’Melveny & Myers LLP, Los Angeles, California; Susan Segal, City Attorney, Minneapolis, Minnesota; John Rose Jr., Corporation Counsel, New Haven, Connecticut; Barbara J. Parker, City Attorney, Oakland, California; Tracy P. Reeve, City Attorney, Portland, Oregon; Michael P. May, City Attorney, Madison, Wisconsin; Charles J. McKee, Monterey County Counsel, Salinas, California; Zachary W. Carter, City Corporation Counsel, New York, New York; Marcel S. Pratt, Acting City Solicitor, Philadelphia, Pennsylvania; Jeffrey Dana, City Solicitor, Providence, Rhode Island; Timothy R. Curtin, City Corporation Counsel, Rochester, New York; Dennis J. Herrera, City Attorney for the City and County of San Francisco, San Francisco, California; Lane Dilg, City Attorney, Santa Monica, California; Francis X. Wright Jr., City Solicitor, Somerville, Massachusetts; Matthew D. Ruyak, Interim

City Attorney, Sacramento, California; Kelley A. Brennan, City Attorney, Santa Fe, New Mexico; Peter S. Holmes, City Attorney; Seattle, Washington; Mike Rankin, City Attorney, Tucson, Arizona; Michael Jenkins, West Hollywood City Attorney, Jenkins & Hogan LLP, Manhattan Beach, California; John Daniel Reaves, General Counsel, The U.S. Conference of Mayors, Washington, D.C.; for Amici Curiae 40 Cities and Counties, The National League of Cities, and The United States Conference of Mayors.
Jennifer Chang Newell and Katrina L. Eiland, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; David Hausman, Michael K.T. Tan, and Lee Gelernt, ACLU Foundation Immigrants’ Rights Project, New York, New York; Julia Harumi Mass, ACLU Foundation of Northern California, San Francisco, California; Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, California; David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for Amici Curiae American Civil Liberties Union Foundation, ACLU Foundation of Northern California, ACLU Foundation of Southern California, and ACLU Foundation of San Diego & Imperial Counties.
Claire M. Blakey, Johanna S. Dennehy, and Harry Lee, Steptoe & Johnson LLP, Washington, D.C.; Christopher W. Smith, Steptoe & Johnson, Los Angeles, California; for Amici Curiae Immigration Law Scholars.
Avi Zevin, Jack Lienke, and Richard L. Revesz, Institute for Policy Integrity, New York, New York, for Amicus Curiae Institute for Policy Integrity at New York University School of Law.
Anna-Rose Mathieson and Ben Feuer, California Appellate Law Group LLP, San Francisco, California; Daniel Hemel, Chicago, Illinois; Seth Davis, Irvine, California; for Amici Curiae Twenty-Four Law Professors.
Philicia Hill, Dorian Spence, Dariely Rodriguez, and Jon Greenbaum, The Lawyers’ Committee for Civil Rights Under Law, Washington, D.C.; Sameer P. Sheikh, Martin L. Saad, John F. Cooney, and William D. Coston, Venable LLP, Washington, D.C.; for Amici Curiae The Lawyers’ Committee for Civil Rights Under Law, Anti-Defamation League, and Social Justice Organizations.
Joan R. Li, Kara C. Wilson, Monique R. Sherman, and Maureen P. Alger, Cooley LLP, Palo Alto, California, for Amici Curiae Legal Services Organizations.

  

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Regents  of  the  University  of  California  v.  U.S.  Department  of...,  908  F.3d  476  (2018)  

  

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Mary Kelley Persyn, Persyn Law & Policy, San Francisco, California, for Amici Curiae American Professional Society on the Abuse of Children and California Professional Society on the Abuse of Children.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae The Immigration Reform Law Institute.

Appeal from the United States District Court for the

Northern District of California, William Alsup, District

Judge, Presiding, D.C. Nos. 3:17-cv-05211-WHA,

3:17-cv-05235-WHA,

3:17-cv-05329-WHA,

3:17-cv-05380-WHA,

3:17-cv-05813-WHA,

3:17-cv-05211-WHA

3:17-cv-05235-WHA

3:17-cv-05329-WHA

3:17-cv-05380-WHA

3:17-cv-05813-WHA,

3:17-cv-05211-WHA

3:17-cv-05235-WHA

3:17-cv-05329-WHA

3:17-cv-05380-WHA

3:17-cv-05813-WHA,

3:17-cv-05211-WHA

3:17-cv-05235-WHA

3:17-cv-05329-WHA

3:17-cv-05380-WHA

3:17-cv-05813-WHA

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.

Concurrence by Judge Owens

On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the above-ground economy. Garcia, along with hundreds of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.

OPINION
**3 WARDLAW, Circuit Judge:
*485 It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not *486 afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
  
  

But after a change in presidential administrations, in 2017 the government moved to end the DACA program. Why? According to the Acting Secretary of Homeland Security, upon the legal advice of the Attorney General, DACA was illegal from its inception, and therefore could no longer continue in effect. And after Dulce Garcia—along with other DACA recipients and affected states, municipalities, and organizations—challenged this conclusion in the federal courts, the government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch.
With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this
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record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief.1
I.
A. History of Deferred Action **4 The central benefit available under the DACA program is deferred action. Because *487 much of this dispute revolves around the legitimacy of that practice, we begin by reviewing the Executive Branch’s historical use of deferred action.
The basic concept is a simple one: deferred action is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country. See 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2018) (“To ameliorate a harsh and unjust outcome, the immigration agency may decline to institute proceedings, may terminate proceedings, or may decline to execute a final order of deportation. This commendable exercise in administrative discretion ... is now designated as deferred action.”); Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) (“Deferred action refers to an exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds.” (internal quotation marks omitted) ); Hiroshi Motomura, Immigration Outside the Law 29 (2014) (noting that “deferred action is usually granted only for limited periods of time and does not provide a path to lawful permanent resident status or citizenship”).
Unlike most other forms of relief from deportation, deferred action is not expressly grounded in statute. It arises instead from the Executive’s inherent authority to allocate resources and prioritize cases. Cf. 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities”). As such, recipients of deferred action “enjoy no formal immigration status.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017) (Brewer II ). But despite its non-statutory origins, Congress has historically recognized the existence of

deferred action in amendments to the Immigration and Nationality Act (INA), as well as other statutory enactments. See 8 U.S.C. § 1227(d)(2) (“The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for ... deferred action[.]”); REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231, 313 (2005) (listing proof of “approved deferred action status” as sufficient “evidence of lawful status” for the issuance of a driver’s license). The Supreme Court has also recognized deferred action by name, describing the Executive’s “regular practice (which ha[s] come to be known as ‘deferred action’) of exercising discretion for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (AADC ). Thus, “it is well settled that the Secretary [of Homeland Security] can exercise deferred action.” Brewer II, 855 F.3d at 967.
Official records of administrative discretion in immigration enforcement date at least back to the turn of the twentieth century, not long after the enactment of the nation’s first general immigration statute in 1882. See Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department of Justice circular regarding statutorily authorized denaturalization instructed that “as a general rule, good cause is not shown for the institution of proceedings ... unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country.” U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20, 1909) (quoted in Memorandum from Sam Bernsen, Gen. Counsel, INS, Legal Opinion Regarding Service Exercise *488 of Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen Memorandum) ).
**5 The government’s exercise of deferred action in particular first came to light in the 1970s, as a result of Freedom of Information Act litigation over the government’s efforts to deport John Lennon and Yoko Ono, apparently based on Lennon’s “British conviction for marijuana possession.” Motomura, supra, at 28; see generally Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases 2–27 (2015). Then known as “nonpriority status,” the practice had been observed in secret within the former Immigration and Naturalization Service (INS) since at least the 1950s, but INS officials had publicly denied its existence. See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act, 14 San Diego L. Rev. 42, 52–53 (1976); Wadhia, supra, at 16. After the Lennon case revealed the practice, the INS issued its first public guidance on the use of deferred action, stating that “[i]n every case where the district

  

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director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for nonpriority.” Immigration and Naturalization Service, Operations Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia, supra, at 17). Although the 1975 guidance was rescinded in 1997, DHS officials continue to apply the same humanitarian factors in deciding whether to grant an individual deferred action. 6 Gordon et al., supra, § 72.03[2][h] & nn.133–34; see also AADC, 525 U.S. at 484 n.8, 119 S.Ct. 936.
In addition to case-by-case adjudications, the Executive Branch has frequently applied deferred action and related forms of discretionary relief programmatically, to entire classes of otherwise removable noncitizens. Indeed, the Congressional Research Service has compiled a list of twenty-one such “administrative directives on blanket or categorical deferrals of deportation” issued between 1976 and 2011. Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 20–23 (July 13, 2012); see also id. at 9 (“The executive branch has provided blanket or categorical deferrals of deportation numerous times over the years.”).
To take one early example, in 1956 President Eisenhower extended immigration parole to over thirty thousand Hungarian refugees who were otherwise unable to immigrate to the United States because of restrictive quotas then in existence. See White House Statement on the Termination of the Emergency Program for Hungarian Refugees (Dec. 28, 1957). The power to parole—that is, to allow a noncitizen physically to enter the country, while treating that person as “at the border” for purposes of immigration law—is established by statute, but the version of the INA in existence when President Eisenhower acted did not explicitly authorize programmatic exercises of the parole power.2 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See generally 6 Gordon et *489 al., supra, § 62.01. Subsequent presidents made use of similar categorical parole initiatives. Wadhia, supra, at 30.
Another salient example is the Family Fairness program, established by the Reagan Administration and expanded under President George H.W. Bush. The Immigration Reform and Control Act of 1986 (IRCA) had provided a pathway to legal status for hundreds of thousands of undocumented noncitizens, but did not make any provision for their close relatives unless those individuals separately qualified under the Act’s criteria. See generally

3 Gordon et al., supra, § 38.06. President Reagan’s INS Commissioner interpreted IRCA not to authorize immigration benefits for anyone outside the statutory criteria, but nevertheless exercised executive discretion to defer the deportation of the minor children of noncitizens legalized under the statute. Alan C. Nelson, Comm’r, INS, Legalization & Family Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS instituted “significant liberalizations” of the policy by granting one-year periods of extended voluntary departure to children and spouses of individuals legalized under IRCA who could establish admissibility, continuous residency, and a clean criminal record. INS Reverses Family Fairness Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990); see also 3 Gordon et al., supra, § 38.06. Contemporary estimates by INS officials of the number of people potentially eligible ranged as high as 1.5 million.3 See Immigration Act of 1989 (Part 2): Hearings Before the Subcomm. on Immigration, Refugees & Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 49, 56 (1990) (testimony of Gene McNary, Comm’r, INS). Extended voluntary departure, the mechanism through which these individuals were allowed to remain in the United States is, like deferred action, a creature of executive discretion not specifically authorized by statute. See Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (opinion of Mikva, J.).
**6 Since then, the immigration agency has instituted categorical deferred action programs for self-petitioners under the Violence Against Women Act; applicants for T and U visas (which are issued to victims of human trafficking and of certain crimes, respectively); foreign students unable to fulfill their visa requirements after Hurricane Katrina; and widowed spouses of United States citizens who had been married less than two years. None of these deferred action programs was expressly authorized by statute at the time they were initiated.
B. The DACA Program DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano,4 entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Secretary Napolitano explained that the nation’s immigration laws “are not designed ... to remove productive young people to countries where they may not have lived or even speak the language,” especially where *490 “many of these young people have already contributed to our country in significant ways,” and, because they were brought here as children, “lacked the

  

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intent to violate the law.” She therefore determined that “[p]rosecutorial discretion, which is used in so many other areas, is especially justified here.”
The Napolitano memorandum thus laid out the basic criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if he or she:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012];
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to national security or public safety; and • is not above the age of thirty [on June 15, 2012].5
DACA applicants must submit extensive personal information to DHS, along with fees totaling nearly $500. Applicants also submit to biometric screening in which they are photographed and fingerprinted, enabling extensive biographical and biometric background checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel on a case-by-case basis.
If approved into the DACA program, an applicant is granted a renewable two-year term of deferred action—again, “a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States.” Brewer II, 855 F.3d at 967. In addition to the deferral of removal itself, pre-existing DHS regulations allow all deferred-action recipients to apply for employment authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that “[a]n alien who has been granted deferred action” is eligible for work authorization upon a showing of “economic necessity for employment”). Indeed, “DACA recipients are required to apply for employment authorization, in keeping with the Executive’s intention that DACA recipients remain ‘productive’ members of society.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053,

1062 (9th Cir. 2014) (Brewer I ) (emphasis in original). Finally, DHS does not consider deferred-action recipients, including those benefitting from DACA, to accrue “unlawful presence” for purposes of the INA’s re-entry bars.6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I, 757 F.3d at 1059.
**7 *491 In an attempt to build on the success of the DACA program, in 2014 Secretary of Homeland Security Jeh Johnson issued a separate memorandum that both announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing the age cap, (2) extending the term of deferred-action and related work-authorization grants from two to three years, and (3) moving up the cutoff date by which an applicant must have been in the United States to January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. See United States v. Texas, ––– U.S. ––––, 136 S. Ct. 2271, 195 L.Ed.2d 638 (2016); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015); see also Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (affirmance by an equally divided court has no precedential value). The original DACA program remained in effect.
In 2017, a new presidential administration took office, bringing with it a change in immigration policy. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out the administration’s new enforcement priorities, stating that “the Department no longer will exempt classes or categories of removable aliens from potential enforcement.” However, the memorandum explicitly left DACA and DAPA in place. In a second memorandum issued June 15, 2017, after “consider[ing] a number of factors, including the preliminary injunction in the [Texas] matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities,” Secretary Kelly rescinded DAPA as an “exercise of [his] discretion.”
Then, on June 28, 2017, Texas Attorney General Ken Paxton wrote to United States Attorney General Jefferson B. Sessions III threatening that if the federal government did not rescind DACA by September 5, 2017, Paxton

  

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would amend the complaint in the Texas litigation to challenge DACA as well as DAPA.
On September 4, 2017, the day before Paxton’s deadline, Attorney General Sessions sent his own letter to Acting Secretary of Homeland Security Elaine Duke. The Attorney General’s letter “advise[d] that the Department of Homeland Security ... should rescind” the DACA memorandum based on his legal opinion that the Department lacked statutory authority to *492 have created DACA in the first place. He wrote:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’[s] 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.

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.
**8 The Duke memorandum further states that although DHS would stop accepting initial DACA requests effective immediately, the agency would provide a one-month window in which renewal applications could be filed for current DACA beneficiaries whose benefits were set to expire before March 5, 2018. It also states that DHS would not terminate existing grants of deferred action under DACA “solely based on the directives in this memorandum.” Thus, beginning on March 5, 2018, each DACA recipient’s grant of deferred action would be allowed to expire at the end of its two-year term. As of September 4, 2017—the day before the rescission—approximately 689,800 individuals were enrolled in DACA.

The Attorney General further opined that “[b]ecause 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.”
The very next day, following the Attorney General’s directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with a “Background” section that covers DACA, DAPA, the Texas litigation, Secretary Kelly’s previous memoranda, Texas Attorney General Paxton’s threat, and the Attorney General’s letter. Then, in the section titled “Rescission of the June 15, 2012 DACA Memorandum,” the Duke memorandum states:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney
  
  

C. Procedural History The rescission of DACA instantly sparked litigation across the country, including the cases on appeal here. Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The complaints included claims that the rescission was arbitrary and capricious under the Administrative Procedure Act (APA); that it was a substantive rule requiring notice-and-comment rulemaking under the APA; that it violated the due process and equal protection rights protected by the U.S. Constitution; and that DHS was equitably estopped from using the information provided on DACA applications for enforcement purposes. The cases were consolidated before Judge William Alsup in the District Court for the Northern District of California and proceeded to litigation.
On October 17, 2017, the district court ordered the government to complete the administrative record, holding that the record proffered by the government was incomplete *493 in several respects. Seeking to avoid
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providing additional documents, the government filed a petition for mandamus. In arguing its mandamus petition, the government took the position that the legality of the rescission should stand or fall based solely on the reasons and the record already provided by the government. We denied the mandamus petition, stating that “the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded.” In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017) (footnotes omitted).
The government next petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instead instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision before requiring the government to provide additional documents. In re United States, ––– U.S. ––––, 138 S. Ct. 443, 445, 199 L.Ed.2d 351 (2017). Thus, the administrative record in this case still consists of a scant 256 publicly available pages, roughly three-quarters of which are taken up by the three published judicial opinions from the Texas litigation.

notice-and-comment and due process claims.
II.
“We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam) ). Within this inquiry, “[w]e review the district court’s legal conclusions de novo, the factual findings underlying its decision for clear error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 969 (9th Cir. 2015) ). A district court’s decision on a motion to dismiss for lack of subject matter *494 jurisdiction or for failure to state a claim is also reviewed de novo. See, e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir. 2017).

Returning to the district court, the government moved to dismiss the consolidated cases on jurisdictional grounds and for failure to state a claim, while the plaintiffs moved for a preliminary injunction. The district court granted the request for a nationwide preliminary injunction, holding that most of the plaintiffs had standing;7 that neither the APA nor the INA barred judicial review; and that plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. The district court therefore entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients.
**9 In a separate order, the court partially granted and partially denied the government’s motion to dismiss. The court dismissed plaintiffs’ notice-and-comment and Regulatory Flexibility Act claims; a due process claim premised on an entitlement to deferred action; and the equitable estoppel claim. The court denied the motion as to plaintiffs’ equal protection claim and a due process claim premised on an alleged change in DHS’s information-sharing policy.
The district court certified the issues addressed in both its orders for interlocutory review under 28 U.S.C. § 1292(b). We granted the government’s petition for permission to appeal the orders. Plaintiffs cross-appealed, asserting that the district court erroneously dismissed their
  
  

III.
The threshold question in this case is in many ways also the most pivotal: is Acting Secretary Duke’s decision to rescind the DACA program reviewable by the courts at all? The government contends that both the APA and the INA bar judicial review; we address each statute in turn.
A. Reviewability under the APA The APA provides for broad judicial review of agency action: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. Thus, as a general matter, the Supreme Court has consistently articulated “a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, ––– U.S. ––––, 135 S. Ct. 1645, 1651, 191 L.Ed.2d 607 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ); see also, e.g., Lincoln v. Vigil, 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (“[W]e have read the APA as embodying a ‘basic presumption of judicial review.’ ”) (quoting Abbott Labs.
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v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ).
However, the APA also forecloses judicial review under its procedures to the extent that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).8 “This is a very narrow exception” that comes into play only “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 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (internal quotation marks omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); see also Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (“[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”).
**10 In Heckler v. Chaney, the Supreme Court analyzed this exception in considering “the extent to which a decision of an administrative agency to exercise its ‘discretion’ not to undertake certain enforcement actions is subject to judicial review under the [APA].” 470 U.S. at 823, 105 S.Ct. 1649. In Chaney, the Commissioner of the Food and Drug Administration (FDA) declined to take investigatory and enforcement action against state prison officials’ use of drugs, which had been FDA-approved for medical use, in human executions. Id. at 823–24, 105 S.Ct. 1649. A group of prisoners on death row had petitioned the FDA, arguing that using the drugs to execute humans was unlawful because they were only approved for medical use, and not for executions. Id. Responding to the petition, the Commissioner questioned whether the FDA had jurisdiction *495 to prohibit the use of drugs in executions, but went on to conclude that even if the agency did have jurisdiction, it would “decline to exercise it under [the agency’s] inherent discretion to” do so. Id. at 824, 105 S.Ct. 1649. The inmates then sued the FDA, attempting to invoke the APA’s framework for judicial review. Id. at 825, 105 S.Ct. 1649.
The Supreme Court held that the FDA Commissioner’s discretionary decision not to enforce the Food, Drug, and Cosmetic Act against state prison officials was unreviewable under the APA. Chaney, 470 U.S. at 837–38, 105 S.Ct. 1649. The Court identified a pre-APA “tradition” under which “an agency’s decision not to prosecute or enforce ... is a decision generally committed to an agency’s absolute discretion,” and concluded that “the Congress enacting the APA did not intend to alter that tradition.” Id. at 831–32, 105 S.Ct. 1649. As the Court summed up its holding, “[t]he general exception to

reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” Id. at 838, 105 S.Ct. 1649 (citation omitted). That is, the normal presumption in favor of judicial review is reversed when the agency action in question is a refusal to enforce the substantive law.
Importantly for present purposes, the Court explicitly left open the question whether “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction” might be reviewable notwithstanding this general rule. Chaney, 470 U.S. at 833 n.4, 105 S.Ct. 1649 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2)....”).9 This reservation makes perfect sense. It is one thing to read the APA’s exception for “agency action [ ] committed to agency discretion by law” as including the Executive’s discretionary decisions to decline enforcement, given a pre-existing legal tradition that had treated those decisions as unreviewable. It would be quite another to say that an agency’s non-discretionary belief that it lacked the power to enforce the law was similarly “committed to agency discretion.” 5 U.S.C. § 701(a)(2); see Chaney, 470 U.S. at 833 n.4, 105 S.Ct. 1649 (“[W]e note that in those situations [involving a belief that the agency lacked discretion,] the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’ ”).
Several years after Chaney, our court directly addressed the question that the Supreme Court had left open. In Montana Air Chapter No. 29 v. Federal Labor Relations Authority, a union representing civilian Air National Guard employees filed an unfair labor practice charge against the National Guard Bureau, but the Federal Labor Relations Authority (FLRA) refused *496 to issue a complaint. 898 F.2d 753, 755 (9th Cir. 1990). The opinion letters issued by FLRA’s general counsel indicated that he had “determined, according to his interpretation of the statutes and regulations, that he lacked jurisdiction to issue an unfair labor practice complaint” under the circumstances. Id. at 757.
**11 Acknowledging Chaney’s rule that “[a]n agency’s decision not to take enforcement action ... is presumed to be immune from judicial review,” we noted that the Supreme Court had nevertheless “suggested that discretionary nonenforcement decisions may be reviewable when” the refusal to enforce is based on a supposed lack of jurisdiction. Id. at 756 (citing Chaney, 470 U.S. at 833 n.4, 105 S.Ct. 1649). We took the next

  

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logical step, holding that Chaney’s presumption of nonreviewability “may be overcome if the refusal is based solely on the erroneous belief that the agency lacks jurisdiction.” Id. at 754. Because “the General Counsel’s decision not to issue an unfair labor practice complaint was based on his belief that he lacked jurisdiction to issue such a complaint,” we proceeded to “examine the General Counsel’s statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757.10
The final piece of the APA reviewability puzzle is the Supreme Court’s decision in City of Arlington v. FCC, 569 U.S. 290, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). There, the Court was faced with the question whether an agency’s determination of its own jurisdiction is entitled to the same deference as any other agency interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Writing for the Court, Justice Scalia explained in no uncertain terms that in the context of administrative agencies, “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a mirage.” City of Arlington, 569 U.S. at 297, 133 S.Ct. 1863. With respect to courts, the jurisdictional/nonjurisdictional divide is a real and consequential one, because “[a] court’s power to decide a case is independent of whether its decision is correct.... Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires.” Id. But the same is not true with respect to agencies: “Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.” Id. Thus, the Court concluded, “[t]he reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” Id. at 299, 133 S.Ct. 1863 (emphasis in original).11
*497 To summarize, Chaney holds that an agency’s refusal to enforce the substantive law is presumptively unreviewable because that discretionary nonenforcement function is “committed to agency discretion” within the meaning of the APA. Montana Air builds upon the question left open by Chaney’s footnote four, explaining that a nonenforcement decision is reviewable notwithstanding Chaney if the decision was based solely on the agency’s belief that it lacked jurisdiction to act. And City of Arlington teaches that there is no difference between an agency that lacks jurisdiction to take a certain action, and one that is barred by the substantive law from

doing the same; the question “is always, simply, whether the agency has stayed within the bounds of its statutory authority.” City of Arlington, 569 U.S. at 297, 133 S.Ct. 1863 (emphasis omitted). The rule that emerges is this: an agency’s nonenforcement decision is outside the scope of the Chaney presumption—and is therefore presumptively reviewable—if it is based solely on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply.
**12 This rule is fully consistent with the Supreme Court’s decision in ICC v. Brotherhood of Locomotive Engineers (BLE ), which rejected the notion that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. 270, 283, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987). We have no quarrel with that statement in the abstract, but as applied it simply begs the question: is the agency action in question “otherwise unreviewable”?
The BLE case concerned the reviewability of the Interstate Commerce Commission’s denial of a motion to reopen proceedings on grounds of material error. Id. at 280, 107 S.Ct. 2360. The Supreme Court held that category of agency action presumptively unreviewable because it “perceive[d] ... a similar tradition of nonreviewability” to the one it had found in Chaney for nonenforcement decisions. Id. at 282, 107 S.Ct. 2360. In reaching its holding, the Court rejected an argument that there was nevertheless “law to apply”—and that therefore the action was not committed to agency discretion—as the agency’s order had discussed the legal merits at length. Id. at 280–81, 107 S.Ct. 2360. What mattered was that the agency’s “formal action” was one for which a tradition of nonreviewability was discernable, regardless of how the agency explained its action.12 Id.
BLE thus stands for the proposition that if a particular type of agency action is presumptively unreviewable, the fact that the agency explains itself in terms that are judicially cognizable does not change the categorical rule. Fair enough. But the categorical rule announced in Chaney does not encompass nonenforcement decisions *498 based solely on the agency’s belief that it lacked power to take a particular course; instead, the Court explicitly declined to extend its rule to that situation. Chaney, 470 U.S. at 833 n.4, 105 S.Ct. 1649. And in Montana Air, we held that such decisions are reviewable. 898 F.2d at 754. BLE’s statement about “otherwise unreviewable” agency decisions, 482 U.S. at 283, 107

  

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S.Ct. 2360, therefore has no application to the category of agency action at issue here.
We believe the analysis laid out above follows necessarily from existing doctrine. And, just as importantly, this approach also promotes values fundamental to the administrative process.
First, the Montana Air rule does not impermissibly encroach on executive discretion; to the contrary, it empowers the Executive. If an agency head is mistaken in her assessment that the law precludes one course of action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion, but rather opens new vistas within which discretion can operate. That is, if an administrator chooses option A for the sole reason that she believes option B to be beyond her legal authority, a decision from the courts putting option B back on the table allows a reasoned, discretionary policy choice between the two courses of action. And if the agency’s view of the law is instead confirmed by the courts, no injury to discretion results because the status quo is preserved.
**13 Moreover, allowing judicial review under these circumstances serves the critical function of promoting accountability within the Executive Branch—not accountability to the courts, but democratic accountability to the people. Accountability in this sense is fundamental to the legitimacy of the administrative system: although they are “unelected ... bureaucrats,” City of Arlington, 569 U.S. at 305, 133 S.Ct. 1863, the heads of cabinet-level departments like DHS “are subject to the exercise of political oversight and share the President’s accountability to the people.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 886, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). Indeed, the Constitution’s “Appointments Clause was designed to ensure public accountability for ... the making of a bad appointment....” Edmond v. United States, 520 U.S. 651, 660, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997); see also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2251–52 (2001) (“[A]ccountability” is one of the two “principal values that all models of administration must attempt to further.”); 1 Richard J. Pierce, Jr., Administrative Law Treatise 114 (5th ed. 2010) (“Agencies are politically accountable because the President is accountable for the actions of agencies.”).
This democratic responsiveness is especially critical for agencies exercising prosecutorial functions because, as Justice Scalia explained in his oft-cited dissent in Morrison v. Olson, “[u]nder our system of government, the primary check against prosecutorial abuse is a

political one.” 487 U.S. 654, 728, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting). This check works because “when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration.” Id. at 728–29, 108 S.Ct. 2597. In other words, when prosecutorial functions are exercised in a manner that is within the law but is nevertheless repugnant to the sensibilities of the people, “the unfairness will come home to roost in the Oval Office.” Id. at 729, 108 S.Ct. 2597.
But public accountability for agency action can only be achieved if the electorate knows how to apportion the praise for *499 good measures and the blame for bad ones. Without knowing the true source of an objectionable agency action, “the public cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.’ ” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (quoting The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ). In then-Professor Kagan’s words, “the degree to which the public can understand the sources and levers of bureaucratic action” is “a fundamental precondition of accountability in administration.” Kagan, supra, at 2332.
The Montana Air rule promotes accountability by ensuring that the public knows where to place blame for an unpopular measure. When an agency justifies an action solely with an assertion that the law prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing it). If the Executive is correct in its interpretation of the law, then the public is correct to blame the other two branches for any resulting problems. But if the Executive is wrong, then it avoids democratic accountability for a choice that was the agency’s to make all along. Allowing the judiciary—the branch ultimately responsible for interpreting the law, see Marbury, 5 U.S. (1 Cranch) at 177—to review such decisions prevents this anti-democratic and untoward outcome. As Judge Bates of the District Court for the District of Columbia aptly put the point in confronting the very issue we face here, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.” NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018).
**14 We therefore must determine whether the Acting Secretary’s decision to end DACA was based solely on a belief that the program was unlawful, such that the

  

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Chaney presumption does not apply.13
*500 We take Attorney General Sessions literally at his word when he wrote to Acting Secretary Duke that “DACA was effectuated ... without proper statutory authority,” and that DACA “was an unconstitutional exercise of authority by the Executive Branch.” These are the reasons he gave for advising Acting Secretary Duke to rescind DACA. We therefore agree with the district court that the basis for the rescission was a belief that DACA was unlawful, and that the discretionary “litigation risk” rationale pressed by the government now is a mere post-hoc rationalization put forward for purposes of this litigation.14 Acting Secretary Duke’s September 5, 2017, rescission memorandum contains exactly one sentence of analysis:

the Fifth Circuit upheld a preliminary injunction against the related DAPA policy, and the Supreme Court affirmed by an equally divided vote.15 See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134 (5th Cir. 2015). The “rulings” in that case are propositions of law—taken alone, they are more readily understood as supporting a legal conclusion (DACA is illegal) than a pragmatic one (DACA might be enjoined). The pragmatic interpretation requires extra analytical steps (someone might sue to enjoin DACA, and they might win) that are entirely absent from the list of factors that the Acting Secretary stated she was “taking into consideration” in making her decision. Acting Secretary Duke easily could have included “the prospect of litigation challenging DACA” in her list of considerations; had she done so, then perhaps the reference to the Texas litigation could be read as supporting a practical worry about an injunction.16 Absent that, however, the *501 mention of the courts’ “rulings” is best read as referencing the courts’ legal conclusions.

**15 Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.
In the next sentence, the Acting Secretary went on to announce the rescission itself:
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.
The easy rejoinder to the government’s insistence that the Acting Secretary rescinded DACA due to “litigation risks” is that the Acting Secretary did not mention “litigation risks” as a “consideration.” And both “consideration[s]” actually enumerated by the Acting Secretary are most naturally read as supporting a rationale based on DACA’s illegality. The “ongoing litigation” referenced is of course Texas v. United States, in which
  
  

Attorney General Sessions’s September 4, 2017, letter likewise focuses on the supposed illegality of DACA, rather than any alleged “litigation risk.” Its substantive paragraph states
DACA was effectuated ... without proper statutory authority and with no established end-date, after Congress’[s] 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.
**16 (emphases added).
These sentences unmistakably reflect the Attorney General’s belief that DACA was illegal and therefore beyond the power of DHS to institute or maintain. The letter goes on to opine that “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA [in the Texas litigation], it is likely that potentially imminent litigation would yield similar results with respect to DACA.” But in the context of the full paragraph, the reference to “similar results” is best read not as an independent reason for rescinding DACA, but as a natural consequence of DACA’s supposed illegality—which is the topic of the paragraph
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as a whole. In the words of Judge Garaufis of the District Court for the Eastern District of New York, that reference “is too thin a reed to bear the weight of Defendants’ ‘litigation risk’ argument.” Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018).
In any event, the Attorney General’s letter is relevant only to the extent it illuminates whether Acting Secretary Duke—the official who actually rescinded the DACA program—did so as an exercise of her discretion or because she understood her hand to be forced by the law. In this connection, it is helpful to compare the operative language used by Acting Secretary Duke to rescind DACA with that used by her predecessor, Secretary John Kelly, to rescind DAPA just months before. In his June 15, 2017, memorandum, Secretary Kelly wrote:
After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum [that established DAPA].
(emphasis added). Placed alongside Acting Secretary Duke’s language, the parallels—and the differences—are stark. Acting Secretary Duke’s memorandum reads:
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 [that established DACA].
(emphasis added).
The obvious similarities between the two passages strongly suggest that Acting Secretary Duke modeled her language after that of Secretary Kelly’s memo. And indeed, we know that the Acting Secretary considered the Kelly memorandum in reaching her decision, because the government has told us so. See Petition for Writ of

Mandamus, In re United States, No. 17-72917 (9th Cir. Oct. 20, 2017) (stating that the government’s proffered administrative record in this case, which includes the *502 Kelly memorandum, “consist[s] of the non-privileged materials considered by the Acting Secretary in reaching her decision to rescind the DACA policy”); id. at 18 (taking the position that only materials personally reviewed by the Acting Secretary herself, not by subordinates, are “considered” by the Secretary).
Given that Acting Secretary Duke hewed so closely to Secretary Kelly’s language in general, it is appropriate to draw meaning from the one major difference between the two sentences: Secretary Kelly exercised his “discretion” in ending DAPA; Acting Secretary Duke merely exercised her “authority.” Cf., e.g., Jama v. ICE, 543 U.S. 335, 357, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”). The point is that with the example set by the Kelly memorandum in front of her, Acting Secretary Duke clearly would have known how to express that the rescission was a discretionary act—if that were indeed the case.17 Furthermore, the near-verbatim language of the two rescission memoranda suggests that the Acting Secretary adopted the majority of Kelly’s wording, but actively rejected describing the DACA rescission as an act of discretion. This difference in language cuts strongly against any suggestion that the rescission was discretionary.
**17 The government counters that the memorandum “focused from beginning to end principally on litigation concerns, not the legality of DACA per se.” But as the State plaintiffs point out, the memorandum’s references to these supposed “litigation concerns” were limited to a simple summary of the Texas litigation’s procedural history; appeared only in the “Background” section of the memorandum; and were not referenced in the Acting Secretary’s statement of what she was “[t]aking into consideration.” See also note 16, supra.
The government also asserts that because the Acting Secretary wrote that DACA “should” rather than must be ended, she did not view herself as bound to act. But even on its face, “should” is fully capable of expressing obligation or necessity. See, e.g., Should, New Oxford American Dictionary (3d ed. 2010) (“used to indicate obligation, duty, or correctness”); cf. Should, Garner’s Dictionary of Legal Usage (3d ed. 2011) (“should ... is sometimes used to create mandatory standards”). The Acting Secretary’s use of “should” instead of “must” cannot overcome the absence of any discussion of

  

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potential litigation or the “risks” attendant to it from the rescission memorandum’s statement of reasons, and the discrepancy between the rescission of DAPA as an act of “discretion” and the rescission of DACA as an act of “authority.”
Finally, the government takes a quote from the Supreme Court to the effect that courts should “uphold a decision of less 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, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), and contorts it into an argument that the district court’s “narrow reading of the Acting Secretary’s rationale is hardly the only one that ‘may reasonably be discerned’ from the Acting Secretary’s memorandum.” But Bowman is about finding a reviewable rationale in an agency’s action versus finding no articulation *503 of that rationale. Bowman does not say—and it certainly does not logically follow—that a court must ignore the most natural reading of an agency’s statement of reasons just because it may also be “reasonably susceptible” to a (less compelling) reading that the government would prefer. The government is in effect asking the court to defer to agency counsel’s post-hoc rationalization, as long as there is some reading of the rescission memorandum—never mind how strained—that would support it. Bowman does not require this incongruous result.
We agree with the district court that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Under Montana Air and Chaney’s footnote four, this conclusion brings the rescission within the realm of agency actions reviewable under the APA. Unless the INA itself deprives the courts of jurisdiction over this case, we must proceed to evaluate the merits of plaintiffs’ arbitrary-and-capricious claim.

any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g).
The Supreme Court has explicitly held that this section “applies only to three discrete actions that the [Secretary] may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ ” AADC, 525 U.S. at 482, 119 S.Ct. 936 (emphasis in original). As the Court put it, “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting.” Id.
**18 The government attempts to expand Section 1252(g) to encompass this case in two ways. First, it points out that the AADC Court read that provision as Congress’s effort to shield executive decisions not to grant deferred action from review outside the procedures prescribed by the INA. The Court quoted a treatise describing the practice of deferred action and the litigation that would result when the government declined to grant deferred action: “Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts....” Id. at 484–85, 119 S.Ct. 936 (quoting 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998) ). Having reviewed these developments, the Court concluded: “Section 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations....” Id. at 485, 119 S.Ct. 936.

B. Jurisdiction under the INA The government contends that the INA stripped the district court of its jurisdiction in a provision that states:
Except as provided in this section [which sets out avenues of review not applicable here] ... no court shall have jurisdiction to hear any cause or claim by or on behalf of

The government argues that AADC’s reasoning—and therefore Section 1252(g)—applies to the rescission of DACA, which is itself in some sense a “no deferred action” decision. It seems quite clear, however, that AADC reads Section 1252(g) as responding to litigation over individual “no deferred action” decisions, rather than a programmatic shift like the *504 DACA rescission. For example, the treatise passage AADC quotes to set the scene for Congress’s action refers explicitly to “[e]fforts to challenge the refusal to exercise [deferred action] on behalf of specific aliens....” Id. (emphasis added). And in any case, the holding of AADC was explicit: “The

  

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provision applies only to [the] three discrete actions” mentioned in the statute. Id. at 482, 119 S.Ct. 936.
The government’s fallback argument is thus to cast the rescission of DACA as an initial “action” in the agency’s “commence[ment] [of] proceedings.” 8 U.S.C. § 1252(g). But AADC specifically rejected a broad reading of the three discrete actions listed in Section 1252(g). “[D]ecisions to open an investigation, [or] to surveil the suspected violator” are not included in Section 1252(g)’s jurisdictional bar, AADC, 525 U.S. at 482, 119 S.Ct. 936, even though these actions are also “part of the deportation process,” id., and could similarly be construed as incremental steps toward an eventual “commence[ment] [of] proceedings,” 8 U.S.C. § 1252(g).
Indeed, in a case closely on point, our court rejected the application of Section 1252(g) and allowed to proceed a challenge to INS guidance narrowly interpreting the terms of a “one-time legalization program” for undocumented immigrants. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1141 (9th Cir. 2000). We noted that “[a]s interpreted by the Supreme Court in [AADC], [Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings,” and held that the challenge was not barred. Id. at 1150. The panel did not appear concerned by the fact that it was possible to conceptualize that policy choice by INS as an ingredient in a subsequent decision to commence proceedings against particular individuals.
The government cites no cases applying the Section 1252(g) bar to a programmatic policy decision about deferred action; the two cases it does cite were challenges to individual “no deferred action” decisions—that is, they fall exactly within Section 1252(g) as interpreted by the Court in AADC. See Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999). Especially in light of the “ ‘strong presumption in favor of judicial review of administrative action’ governing the construction of jurisdiction-stripping provisions of IIRIRA,”18 ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ), we hold that Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.19

**19 Having concluded that neither the APA nor the INA precludes judicial review, we turn to the merits of the preliminary *505 injunction. The district court held that plaintiffs satisfied the familiar four-factor preliminary injunction standard20 with respect to their claim under the APA that the rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A). The government takes issue with the district court’s conclusion on only one of the preliminary injunction factors: the likelihood of success on the merits.
In an arbitrary-and-capricious challenge, “[i]t is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see also, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (Chenery II ) (“[A] reviewing court ... must judge the propriety of [agency] action solely by the grounds invoked by the agency.” (citing SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (Chenery I ) ) ).
Similarly, it is black letter law that where an agency purports to act solely on the basis that a certain result is legally required, and that legal premise turns out to be incorrect, the action must be set aside, regardless of whether the action could have been justified as an exercise of discretion. That principle goes back at least as far as the Supreme Court’s seminal decision in Chenery I, in which the Court stated:
If [agency] action rests upon an administrative determination—an exercise of judgment in an area which Congress has entrusted to the agency—of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.

IV.
  
  

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This holding of Chenery I remains good law. See, e.g., United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) (“Where a statute grants an agency discretion but the agency erroneously believes it is bound to a specific decision, we can’t uphold the result as an exercise of the discretion that the agency disavows.”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (setting aside agency action that was justified on a “legally erroneous” basis, and remanding for further consideration under other justifications). As the D.C. Circuit flatly put it, “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. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998) (internal quotation marks omitted) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985) ).
Thus, if the DACA rescission was based solely on an erroneous legal premise, it must be set aside under 5 U.S.C. § 706(2)(A). We have already concluded, in our discussion of reviewability, that the rescission was indeed premised on the belief that the DACA program was unlawful. *506 We next must decide whether that legal conclusion was correct.21
**20 Attorney General Sessions’s September 4, 2017, letter expresses several possible bases for the agency’s ultimate conclusion that DACA was unlawful. First, the Attorney General states that “DACA was effectuated by the previous administration through executive action ... after Congress’[s] repeated rejection of proposed legislation that would have accomplished a similar result.” But our court has already explained that “Congress’s failure to pass the [DREAM] Act does not signal the illegitimacy of the DACA program,” partly because “the DREAM Act and the DACA program are not interchangeable policies because they provide different forms of relief”: the DREAM Act would have provided a path to lawful permanent resident status, while DACA simply defers removal. Brewer II, 855 F.3d at 976 n.10; see Motomura, supra, at 175 (“DACA is not the DREAM Act; as an interim executive measure, it is limited in duration and provides no durable immigration status.”) (footnote omitted); see also, e.g., DREAM Act of 2011, S. 952, 112th Cong. (2011). Moreover, there is nothing inherently problematic about an agency addressing a problem for which Congress has been unable to pass a legislative fix, so long as the particular action taken is properly within the agency’s power. This argument therefore provides no independent reason to think that DACA is unlawful.
The Attorney General’s primary bases for concluding that

DACA was illegal were that the program was “effectuated ... without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Texas litigation.
The claim of “constitutional defects” is a puzzling one because as all the parties recognize, no court has ever held that DAPA is unconstitutional. The Fifth Circuit and district court in Texas explicitly declined to address the constitutional issue. See Texas, 809 F.3d at 154 (“We decide this appeal ... without resolving the constitutional claim.”); Texas, 86 F. Supp. 3d at 677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on ... their constitutional claims....”). Indeed, the government makes no attempt in this appeal to defend the Attorney General’s assertion that the DACA program is unconstitutional. We therefore do not address it further.
With respect to DACA’s alleged “legal ... defects,” the district court explained in great detail the long history of deferred action in immigration enforcement, including in the form of broad programs; the fact that the Supreme Court and Congress have both acknowledged deferred action as a feature of the immigration system; and the specific statutory responsibility of the Secretary of Homeland Security for “[e]stablishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5). The government does not contest any of these propositions, which themselves go a long way toward establishing DACA’s legality. Instead, the government argues that the Fifth Circuit’s reasons for striking down the related DAPA policy would also apply to DACA.
*507 The Fifth Circuit concluded that DAPA was unlawful on two grounds: first, that DAPA was in fact a legislative rule and therefore should have been promulgated through notice-and-comment rulemaking; and second, that DAPA was substantively inconsistent with the INA. See Texas, 809 F.3d at 171–78, 178–86.
With respect to the first holding, notice-and-comment procedures are not required where the agency pronouncement in question is a “general statement[ ] of policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor to determine whether a directive announcing a new policy constitutes a rule or 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.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987) (alterations in

  

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original) (internal quotation marks omitted).
On its face, DACA obviously allows (and indeed requires) DHS officials to exercise discretion in making deferred action decisions as to individual cases: Secretary Napolitano’s memorandum announcing DACA specifically states that “requests for relief pursuant to this memorandum are to be decided on a case by case basis.” The Fifth Circuit in Texas held that DAPA was a substantive rule notwithstanding similar discretionary language, based primarily on statistics regarding the approval rates of DACA applications. The court read those statistics as revealing that DACA was discretionary in name only—that is, that DHS personnel had no discretion to deny deferred action if the DACA criteria were met. Texas, 809 F.3d at 172–73.
**21 But as the dissenting judge in Texas pointed out, DACA’s (then) 5% denial rate—which did not include applications rejected for administrative deficiencies—is consistent with a discretionary program given that applicants self-select: “It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).” Texas, 809 F.3d at 210 (King, J., dissenting).
Moreover, the denial rate has risen as the DACA program has matured. DHS statistics included in the record reveal that in fiscal year 2016, for example, the agency approved 52,882 initial DACA applications and denied 11,445; that is, 17.8% of the applications acted upon were denied.22 As Judge King concluded, “Neither of these numbers suggests an agency on autopilot.” Texas, 809 F.3d at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting that these same statistics “reflect that ... case-by-case review is in operation”).23 In light of these differences, we do not agree that DACA is a legislative rule *508 that would require notice-and-comment rulemaking.
As to the substantive holding in Texas, the Fifth Circuit concluded that DAPA conflicted with the INA largely for a reason that is inapplicable to DACA. Specifically, the Fifth Circuit reasoned that the INA provides “an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status” but that “DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements ... that Congress has deliberately imposed.” Texas, 809 F.3d at 179–80. As the district court

in this case noted, there is no analogous provision in the INA defining how immigration status may be derived by undocumented persons who arrived in the United States as children. One of the major problems the Fifth Circuit identified with DAPA is therefore not present here.
In resisting this conclusion, the government flips the Fifth Circuit’s reasoning on its head, arguing that “[i]nsofar as the creation of pathways to lawful presence was relevant, the fact that Congress had legislated only for certain individuals similarly situated to DAPA beneficiaries—and not DACA recipients—would make DACA more inconsistent with the INA than DAPA.” To the extent the government meant to draw on the Texas court’s analysis, it gets it exactly backwards: the whole thrust of the Fifth Circuit’s reasoning on this point was that DHS was without authority because “Congress has ‘directly addressed the precise question at issue.’ ” Texas, 809 F.3d at 186 (quoting Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 52, 131 S.Ct. 704, 178 L.Ed.2d 588 (2011) ). There is no argument that Congress has similarly occupied the field with respect to DACA; as the Attorney General himself noted, Congress has repeatedly rejected Dreamer legislation.
**22 The second major element of the Fifth Circuit’s analysis on the substantive issues was that the INA itself “prescribes ... which classes of aliens can achieve deferred action and eligibility for work authorization.” Texas, 809 F.3d at 186. The court drew the implication that the statute must therefore preclude the Executive Branch from granting these benefits to other classes. Id. (pairing this notion with the pathway-to-lawful-presence argument as the keys to its conclusion).
But “[t]he force of any negative implication ... depends on context.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013). Indeed, “[w]e do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003). Here, the express grants of deferred action cited by the Fifth Circuit were not passed together as part of the original INA; rather, they were added to the statute books piecemeal over time by Congress. See Violence Against Women Act of 2000, Pub. L. No. 106-386, div. B, sec. 1503, § 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at 8 U.S.C. § 1154(a)(1)(D)(i) ) (specifying deferred action for certain VAWA self-petitioners); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (same, for family members of lawful permanent residents killed by terrorism); National Defense Authorization Act for Fiscal

  

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Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694–95 (same, for relatives of noncitizens killed in combat and posthumously granted citizenship).
*509 Given this context, we find it improbable that Congress “considered the ... possibility” of all other potential uses for deferred action “and meant to say no” to any other application of that tool by the immigration agency. Barnhart, 537 U.S. at 168, 123 S.Ct. 748. We think the much more reasonable conclusion is that in passing its seriatim pieces of legislation, instructing that this and that “narrow class[ ]” of noncitizens should be eligible for deferred action, Texas, 809 F.3d at 179, Congress meant to say nothing at all about the underlying power of the Executive Branch to grant the same remedy to others. We do not read an “and no one else” clause into each of Congress’s individual express grants of deferred action.
Another element in the Fifth Circuit’s analysis was that “DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and ‘we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.’ ” Id. at 181 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ). DACA, on the other hand, had 689,800 enrollees as of September 2017. The government asserts that this difference in size is “legally immaterial,” but that response is unconvincing. If the point is that the “economic and political magnitude” of allowing 4.3 million people to remain in the country and obtain work authorization is such that Congress would have spoken to it directly, then surely it makes a difference that one policy has less than one-sixth the “magnitude” of the other. Id. As the district court laconically put it, “there is a difference between 4.3 million and 689,800.”
Finally, the government finds “an insurmountable obstacle to plaintiffs’ position” in that “the district court’s injunction affirmed by the Fifth Circuit covered both DAPA and expanded DACA.” It is true that the Texas court also enjoined the expansions of DACA that were announced in the same memorandum as the DAPA program. See Texas, 809 F.3d at 147 n.11 (“The district court enjoined implementation of the following three DACA expansions, and they are included in the term ‘DAPA’ in this opinion....”). But no analysis was devoted to those provisions by either the Fifth Circuit or the Texas district court, and one of the keys to the Fifth Circuit’s reasoning—that Congress had supposedly occupied the

field with respect to obtaining immigration benefits through one’s children—does not apply to either the original DACA program or its expansions. Under these circumstances, we do not find the Texas courts’ treatment of the DACA expansions to be strong persuasive authority, much less an “insurmountable obstacle.” Cf. Bryan A. Garner et al., The Law of Judicial Precedent 170 (2016) (“An authority derives its persuasive power from its ability to convince others to go along with it.”).
**23 In sum, the reality is (and always has been) that the executive agencies charged with immigration enforcement do not have the resources required to deport every single person present in this country without authorization. Compare Bernsen Memorandum, supra, at 1 (stating, in 1976, that “[t]here simply are not enough resources to enforce all of the rules and regulations presently on the books”), with Memorandum from John Morton, Assistant Secretary, DHS, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, at 1 (June 30, 2010) (estimating that ICE has enough resources to deport only 4% of the undocumented population in any given *510 year, and concluding that “ICE must prioritize the use of its ... removal resources to ensure the removals the agency does conduct promote the agency’s highest enforcement priorities”) and Motomura, supra, at 26 (“The letter of the law creates a large removable population, but whether an individual is actually targeted for removal has long depended on government discretion and bad luck.” (footnote omitted) ). Recognizing this state of affairs, Congress has explicitly charged the Secretary of Homeland Security with “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).
It is therefore no surprise that deferred action has been a feature of our immigration system—albeit one of executive invention—for decades; has been employed categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the courts. See, e.g., Brewer II, 855 F.3d at 967 (“[I]t is well settled that the Secretary [of Homeland Security] can exercise deferred action” as part of her statutory authority “to administer and enforce all laws relating to immigration and naturalization.”). In a world where the government can remove only a small percentage of the undocumented noncitizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.

  

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We therefore conclude that DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. DACA is being implemented in a manner that reflects discretionary, case-by-case review, and at least one of the Fifth Circuit’s key rationales in striking down DAPA is inapplicable with respect to DACA. With respect for our sister circuit, we find the analysis that seemingly compelled the result in Texas entirely inapposite. And because the Acting Secretary was therefore incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside. Chenery I, 318 U.S. at 94, 63 S.Ct. 454; Safe Air for Everyone, 488 F.3d at 1101–02.
To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.24

It is also important to note that the claim underlying the injunction here is an arbitrary-and-capricious challenge under the APA. In this context, “[w]hen 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.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal citation omitted). As Justice Blackmun explained while “writing in dissent but apparently expressing the view of all nine Justices on this question,” id.:
The Administrative Procedure Act permits suit to be brought by any person “adversely affected or aggrieved by agency action.” In some cases the “agency action” will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain “programmatic” relief that affects the rights of parties not before the court.
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (Blackmun, J., dissenting) (citation omitted).

*511 V.
**24 Having concluded that the district court was correct in its APA merits holding, we now turn to the question of the appropriate remedy. The district court preliminarily enjoined the rescission of DACA with respect to existing beneficiaries on a nationwide basis. The government asserts that this was error, and that a proper injunction would be narrower.
The general rule regarding the scope of preliminary injunctive relief is that it “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal citation omitted). But “[t]here is no general requirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987); see also id. at 1170–71 (“[A]n injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”) (emphasis in original).
  
  

A final principle is also relevant: the need for uniformity in immigration policy. See Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, ––– U.S. ––––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). As the Fifth Circuit stated when it affirmed the nationwide injunction against DAPA, “the Constitution requires an uniform Rule of Naturalization; Congress has instructed that the immigration laws of the United States should be enforced vigorously and uniformly; and the Supreme Court has described immigration policy as a comprehensive and unified system.” Texas, 809 F.3d at 187–88 (emphases in original) (citations and internal quotation marks omitted). Allowing uneven application of nationwide immigration policy flies in the face of these requirements.
*512 In its briefing, the government fails to explain how the district court could have crafted a narrower injunction that would provide complete relief to the plaintiffs, including the entity plaintiffs. Cf. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (“[T]he Government has not proposed a workable alternative form of the TRO ... that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.”). Nor does it provide
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compelling reasons to deviate from the normal rule in APA cases, or to disregard the need for uniformity in national immigration policy. The one argument it does offer on this latter point—that “[d]eferred action is itself a departure from vigorous and uniform enforcement of the immigration laws,” and that “enjoining the rescission of DACA on a nationwide basis ... increases rather than lessens that departure”—is a red herring. DACA is national immigration policy, and an injunction that applies that policy to some individuals while rescinding it as to others is inimical to the principle of uniformity.
**25 We therefore conclude that the district court did not abuse its discretion in issuing a nationwide injunction. Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.

constitutes a “general statement[ ] of policy.” 5 U.S.C. § 553(b)(3)(A). General statements of policy are those that “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Mada-Luna, 813 F.2d at 1012–13 (quoting Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947) ). “To qualify as a general statement of policy ... a directive must not establish a binding norm and must leave agency officials free to consider the individual facts in the various cases that arise and to exercise discretion.” Id. at 1015 (internal quotation marks omitted); see also id. at 1013 (“The critical factor to determine whether a directive announcing a new policy constitutes a rule or a general statement of policy is the extent to which the challenged [directive] leaves the agency, or its implementing official, free to *513 exercise discretion to follow, or not to follow, the [announced] policy in an individual case.” (alterations in original) (internal quotation marks omitted) ).

VI.
We turn next to the district court’s treatment of the government’s motion to dismiss for failure to state a claim. The government moved to dismiss all of plaintiffs’ claims; the district court dismissed some claims and denied the government’s motion as to others. We take each claim in turn.25

The district court held that because DACA itself was a general statement of policy that did not require notice and comment, it could also be rescinded without those procedures. This proposition finds support in Mada-Luna, in which “we conclude[d] that [a deferred-action Operating Instruction] constituted a general statement of policy, and thus could be validly repealed and superseded without notice-and-comment proceedings.” Id. at 1017. Plaintiffs contest this conclusion, arguing that the DACA rescission was a binding rule, even though DACA’s adoption was a general statement of policy. They provide two bases for this assertion.

A. APA: Arbitrary-and-Capricious For the reasons stated above in discussing plaintiffs’ likelihood of success on the merits, the district court was correct to deny the government’s motion to dismiss plaintiffs’ claim that the DACA rescission was arbitrary and capricious under the APA. See 5 U.S.C. § 706(2)(A).

First, plaintiffs argue that the rescission is binding because it requires DHS officials to reject new DACA applications and (after a certain date) renewal applications. It is true that Acting Secretary Duke’s rescission memorandum makes rejections of DACA applications mandatory. But the relevant question under the rescission memorandum is not whether DHS officials retained discretion to accept applications for a program that no longer existed; instead, the question is whether DHS officials retained discretion to grant deferred action and collateral benefits outside of the (now-cancelled) DACA program.

B. APA: Notice-and-Comment Plaintiffs also assert that the rescission of DACA is in fact a substantive rule under the APA, and that it therefore could not be validly accomplished without notice-and-comment procedures.
As touched on above with respect to DACA itself, an agency pronouncement is excluded from the APA’s requirement of notice-and-comment procedures if it
  
  

**26 For its part, the government asserts that the rescission memorandum made clear that, despite the rescission, “future deferred action requests will be ‘adjudicat[ed] ... on an individual, case-by-case basis.’ ” Mildly put, this assertion mischaracterizes the memorandum. The quoted language refers to the treatment of only (a) initial applications pending on the date of the rescission, and (b) renewal applications filed
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within the one-month wind-down period. It does not refer to how future requests for deferred action outside the DACA program would be handled. Still, the rescission memorandum also did not forbid the agency from granting such requests, and it acknowledged the background principle of deferred action as “an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis.” And the memorandum closed by stating that “no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS”—presumably including granting deferred action on a case-by-case basis to some people who would have been eligible for DACA.
If allowed to go into effect, the rescission of DACA would undoubtedly result in the loss of deferred action for the vast majority of the 689,800 people who rely on the program. But the rescission memorandum does not mandate that result because it leaves in place the background principle that deferred action is available on a case-by-case basis.26 Plaintiffs’ primary argument against this conclusion is a citation to United States ex rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), which is said to be “the only other decision to address an Executive Branch decision to terminate a deferred-action program without undergoing notice-and-comment rulemaking.” *514 But as the district court noted, the key factor in that case was the contention that under the policy at issue, “ ‘discretion’ was exercised favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in each such case.” Parco, 426 F. Supp. at 984. DACA, by contrast, explicitly contemplated case-by-case discretion, and its rescission appears to have left in place background principles of prosecutorial discretion.
Plaintiffs also argue that the DACA rescission is not a general policy statement because it is binding as a legal interpretation that a DACA-like program would be illegal. But again, this argument answers the wrong question. The Acting Secretary’s legal conclusion that a DACA-like program is unlawful does not constrain the discretion of line-level DHS employees to grant deferred action on a case-by-case basis, and those employees lack authority to institute such an agency-wide program in the first place. And plaintiffs do not point to any reason why this Acting Secretary’s legal conclusion about DACA would bind subsequent Secretaries if they were to disagree with its reasoning—just as Acting Secretary Duke reversed course from previous Secretaries who concluded DACA was legal. This is not a “new ‘binding rule of substantive law,’ ” Mada-Luna, 813 F.2d at 1014, affecting the rights of the people and entities regulated by the agency; it is an interpretation of the agency’s own power, and plaintiffs

do not explain why it should be read as binding future DHS Secretaries. The district court correctly dismissed plaintiffs’ notice-and-comment claims.
C. Due Process: Deferred Action The Garcia plaintiffs—individual DACA recipients—have brought a substantive due process claim alleging that the rescission deprived them of protected interests in their DACA designation, including the renewal of their benefits. The district court dismissed this claim, holding that there is no protected entitlement in either the initial grant of deferred action under DACA or the renewal of benefits for existing DACA enrollees. On appeal, the Garcia plaintiffs challenge this ruling only as it applies to the renewal of DACA benefits, not as to the initial grant.
**27 “A threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). It is possible to have a property interest in a government benefit, but “a person clearly must have more than an abstract need or desire for [the benefit]. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Although “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005), a legitimate claim of entitlement may exist where there are “rules or mutually explicit understandings that support [a plaintiff’s] claim of entitlement to the benefit....” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); see also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th Cir. 2011). The dispute here focuses on whether such “mutually explicit understandings” existed between the government and DACA recipients with respect to the renewal of DACA benefits.
The Garcia plaintiffs assert that they and the government “ ‘mutually’ understood that DACA recipients would be *515 able to renew their benefits and protection on an ongoing basis so long as they fulfilled the program’s criteria.” But this argument is undercut by the DACA FAQs published by DHS, which explicitly state that “USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case

  

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even if the [renewal] guidelines are met.” The FAQs also state that any individual’s “deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion,” and Secretary Napolitano’s DACA memorandum claims that it “confers no substantive right, immigration status or pathway to citizenship.” Whether or not these provisions are legally operative, they do not indicate that the government shared plaintiffs’ expectation of presumptive renewal.
Attempting to overcome this facially discretionary language, plaintiffs emphasize several factors. First, they say, the very nature of the DACA project was such that presumptive renewal was required to encourage people to participate; a two-year term with no presumption of renewal would not have been attractive enough to outweigh the risks to the applicants. Moreover, Secretary Napolitano’s DACA memorandum itself states that grants of deferred action under DACA will be “subject to renewal,” and the actual criteria for renewal were “nondiscretionary” in nature.27 Finally, the plaintiffs point to a more than 99% approval rate for adjudicated DACA renewal applications. This, they assert, is powerful evidence of a mutual understanding of presumptive renewal.
All these points might have revealed a question of fact as to whether a mutually explicit understanding of presumptive renewal existed—thereby avoiding dismissal on the pleadings—if plaintiffs were bringing a claim that, for example, their individual DACA renewals were denied for no good reason. But it is hard to see how an expectation of renewal within the confines of the existing DACA policy could have created a mutually explicit understanding that the DACA program itself would not be terminated wholesale. That is, a 99% renewal rate under DACA provides no evidence that the government shared an understanding that the DACA program would continue existing indefinitely to provide such renewals. None of plaintiffs’ cited authorities appear to address this kind of claim.
**28 While we may agree with much of what plaintiffs say about the cruelty of ending a program upon which so many have come to rely, we do not believe they have plausibly alleged a “mutually explicit understanding” that DACA—created by executive action in a politically polarized policy area and explicitly couched in discretionary language—would exist indefinitely, including through a change in presidential administrations. See Gerhart, 637 F.3d at 1020 (“A person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right if that belief is not mutually held by the

government.”). On that basis, we affirm the district court’s dismissal.

*516 D. Due Process: Information-Sharing Several of the complaints allege a different due process theory: DACA recipients had a protected interest based on the government’s representations that the personal information they submitted with their applications would not be used for enforcement purposes, and the government violated this interest by changing its policy to allow such use. The district court held that the plaintiffs had plausibly alleged facts that state a claim under this theory.
As with their other due process claim, the question whether DACA recipients enjoy a protected due process right protecting them from having the government use their information against them for enforcement purposes turns on the existence of a “mutually explicit understanding[ ]” on that point between the government and DACA recipients. Perry, 408 U.S. at 601, 92 S.Ct. 2694; see also Gerhart, 637 F.3d at 1020. The DACA FAQs published by DHS state the following information-use policy:

Information provided in this

request is protected from disclosure

to ICE and 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). Individuals

whose cases are deferred pursuant

to DACA will not be referred to

ICE. 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 DACA, to identify

or prevent fraudulent claims, for

national security purposes, or for

the investigation or prosecution of

  

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a criminal offense. The above information sharing policy covers family 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 by law by any party in any administrative, civil, or criminal matter.
(emphasis added). The statement that applicant information “is protected from disclosure” to the enforcement arms of DHS is a strong commitment, and plaintiffs plausibly allege that DACA recipients reasonably relied on it.

September 5, 2017. In those rescission FAQs, the previous language stating that personal information “is protected from disclosure” has been replaced with the following:

Information provided to USCIS in

DACA requests will not be

proactively provided to ICE and

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 government of course points to the express caveat that the information-sharing policy “may be modified, superseded or rescinded at any time.” But as the district court held, this qualifier is ambiguous as to whether it allows the government to change its policy only prospectively, or also with respect to information already received—and this ambiguity presents a fact question not amenable to resolution on the pleadings. Plaintiffs’ interpretation that a policy change would only apply prospectively is a plausible one, given that the policy is written in terms of what will happen to “[i]nformation provided in this request,” rather than DACA-derived information generally. (emphasis added). It is at least reasonable to think that a change in the policy would apply only to those applications submitted after that change takes effect. And while the government also relies on the language stating that the policy does not create enforceable rights, such a disclaimer by an agency about what its statements do and do not constitute as a legal matter are not dispositive. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (declining to give legal effect to agency statement that its guidance did “not represent final Agency action, and cannot be relied upon to *517 create any rights....”). Plaintiffs have plausibly alleged a mutually explicit understanding that DACA applicants’ information would be protected from disclosure.
**29 The government argues in the alternative that plaintiffs have failed to plausibly allege that DHS actually changed its policy. Plaintiffs’ allegations rest on a set of FAQs about the DACA rescission that DHS published the same day it issued the rescission memorandum,
  
  

(emphasis added).
The government’s first response—that the differing language in the two FAQs does not actually reflect a difference in policy—is hard to swallow. It does not take much parsing of the text to see the significant difference between “protect[ing]” something from “disclosure” on the one hand, and merely declining to “proactively provide[ ]” it on the other. This is especially so when the entities in question (and to which USCIS presumably would now provide information reactively) are fellow components of the same umbrella agency.
Changing gears, the government also points to yet a third set of FAQs, published months after the rescission and not part of the record in this case, which state:

Information provided to USCIS for

the DACA process will not make

you an immigration priority for that

reason alone. That information will

only be proactively provided to ICE

or CBP if 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).

This

information-sharing policy has not

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changed in any way since it was first announced, including as a result of the Sept. 5, 2017 memo starting a wind-down of the DACA policy.
USCIS, Guidance on Rejected DACA Requests: Frequently Asked Questions (Nov. 30, 2017) (emphases added). The government notes that a district court relied on FAQs containing this language in parallel litigation to dismiss a nearly identical information-use due process claim. See Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279–81 (E.D.N.Y. 2018).

incorporated). We agree. Cf. Raley v. Ohio, 360 U.S. 423, 437–39, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959) (holding that “convicting a citizen for exercising a privilege which the State had clearly told him was available to him” was “the most indefensible sort of entrapment by the State” and violated due process); Cox v. Louisiana, 379 U.S. 559, 568–71, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (due process violation where defendant was convicted for leading a demonstration in a location where the police chief had given him permission to do so). Plaintiffs have stated a due process claim based on the alleged change in DHS’s information-sharing policy.

But this case is critically different because in Batalla Vidal the plaintiffs had attached the new version of the FAQs to their complaint. As the court there explained, “Plaintiffs ... have effectively pleaded themselves out of court by relying on a document that contradicts their otherwise-unsupported allegation of a change to DHS’s information-use policy.” Id. at 280. By contrast, here the most recent FAQs were not attached to or referenced in any of the complaints—indeed, they postdate the filing of the complaints. Therefore, the normal rule applies: materials outside the complaint cannot be considered on a motion to dismiss. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Even if it could be considered, this newest FAQ would not conclusively resolve the question of fact surrounding DHS’s current information-sharing policy because it still contains the language that suggests a change from the pre-rescission policy. See USCIS, Guidance, supra (“[I]nformation will only be proactively provided to ICE or *518 CBP if the requestor meets the criteria for the issuance of a Notice To Appear[.]”) (emphasis added).28 Plaintiffs have plausibly alleged that DHS has changed its policy.

E. Equal Protection The district court also held that plaintiffs stated a viable equal protection claim by plausibly alleging that the DACA rescission disproportionately affected Latinos and individuals of Mexican descent and was motivated by discriminatory animus. See Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (holding a facially neutral action unconstitutional where “its enactment or the manner in which it was enforced were motivated by a discriminatory purpose,” and reviewing the Arlington Heights factors for assessing discriminatory purpose) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ).
Because the district court denied the government’s motion to dismiss plaintiffs’ equal protection claim at the pleading stage, we take all of the complaints’ allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and construe them in the light most favorable to the plaintiffs, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We agree with the district court that plaintiffs plausibly alleged an equal protection claim.

**30 Finally, in order to state a substantive due process claim, plaintiffs must allege conduct that “shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1195 (9th Cir. 2013) (quoting March v. Cty. of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) ). The government makes a passing argument that this standard is not satisfied because the information-sharing policy has always contained some exceptions, but as the Garcia plaintiffs put it, “[a]pplicants accepted those limited, acknowledged risks when they applied for DACA. They did not accept the risk that the government would abandon the other assurances that were ‘crucial’ to ‘inducing them to apply for DACA.’ ” (alterations
  
  

Most significantly, plaintiffs allege that the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients. See Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. The complaints also allege a history of animus toward persons of Hispanic descent29 evidenced *519 by both pre-presidential and post-presidential30 statements by President Trump, who is alleged to have decided to end DACA, even though the directive to the Acting Secretary was issued from Attorney General Sessions. Finally, the district court properly considered “the unusual history behind the rescission,” all of which appeared in the record submitted by the government. See Arlington Heights, 429 U.S. at 267, 97 S.Ct. 555. As the
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district court noted, “DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed.”
**31 The government contends that the equal protection claim is foreclosed by AADC, in which the Supreme Court stated that “as a general matter ... an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” 525 U.S. at 488, 119 S.Ct. 936. But in the context of this case, the challenge to the rescission of DACA is not raised “as a defense against [ ] deportation,” and is not a claim of “selective enforcement.” Id. Rather, it is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly benefits a certain ethnic group. Thus, the equal protection claim does not implicate the concerns motivating the Court in AADC and underscored by the government: inhibiting prosecutorial discretion, allowing continuing violations of immigration law, and impacting foreign relations. The two cases cited by the government do not support its position, as both of them involved an individual noncitizen making an equal protection argument in an attempt to avoid his own deportation. See Kandamar v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Plaintiffs’ challenge to the rescission of DACA—which is itself discretionary—is not such a case.
The government also contends that even if not totally barred by AADC, plaintiffs’ claims must be subject to the heightened pleading standard applied to selective-prosecution claims in the criminal context. See United States v. Armstrong, 517 U.S. 456, 463–65, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). But this argument meets the same objection: as the district court held, plaintiffs’ challenge is not a selective-prosecution claim. We are therefore not persuaded by the government’s arguments.
The Supreme Court’s recent decision in Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018), does not foreclose this claim. There, statements by the President allegedly revealing religious *520 animus against Muslims were “[a]t the heart of plaintiffs’ case....” Hawaii, 138 S. Ct. at 2417. The Court assumed without deciding that it was proper to rely on the President’s statements, but nevertheless upheld the challenged executive order under rational basis review. Id. at 2420, 2423. Here, by contrast, plaintiffs provide substantially

greater evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and persons of Mexican heritage, as well as the order’s unusual history. Moreover, our case differs from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States, see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc), the lack of a national security justification for the challenged government action, and the nature of the constitutional claim raised.
Therefore, we conclude that plaintiffs have stated a plausible equal protection claim.
VII.
The rescission of DACA—based as it was solely on a misconceived view of the law—is reviewable, and plaintiffs are likely to succeed on their claim that it must be set aside under the APA. We therefore affirm the district court’s entry of a preliminary injunction.31 The district court also properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.
* * *
The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.
**32 AFFIRMED.

  

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OWENS, Circuit Judge, concurring in the judgment:

L.Ed.2d 687 (1996) ).

As I believe that Plaintiffs’ Equal Protection claim has some “likelihood of success on the merits,” I concur in the judgment affirming the preliminary injunction. The extraordinary practical impact of allowing DACA’s rescission to take effect before a final adjudication of its legality far outweighs the minimal practical impact of keeping the program in place a bit longer. For that reason, it is better now to risk incorrectly preserving the status quo than to risk incorrectly disrupting it.1 *521 However, I disagree with the portion of the majority’s opinion that we may review the rescission of DACA for compliance with the APA.2
Under 5 U.S.C. § 701(a)(2), “agency action [that] is committed to agency discretion by law” is not subject to judicial review for compliance with the APA. Since Heckler v. Chaney, courts read § 701(a)(2) to preclude judicial review of certain types of administrative action that are “traditionally ... ‘committed to agency discretion.’ ” 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (holding unreviewable the decision not to institute enforcement proceedings); Lincoln v. Vigil, 508 U.S. 182, 192, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (same for the allocation of funds from a lump-sum appropriation); Webster v. Doe, 486 U.S. 592, 599–600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (same for decisions of the Director of the Central Intelligence Agency to terminate an employee due to national security interests); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 281–82, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) (BLE ) (same for an agency’s refusal to grant reconsideration of an action due to material error).
An agency decision to rescind a non-enforcement policy in the immigration context is this type of administrative action. From Heckler, we know that agency actions that “involve[ ] a complicated balancing of a number of factors,” like allocating agency resources and prioritizing agency policies, “are peculiarly within [the agency’s] expertise,” and are therefore “general[ly] unsuitab[le] for judicial review.” 470 U.S. at 831, 105 S.Ct. 1649. And in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (AADC), the Supreme Court made clear that Executive Branch decisions that implicate enforcement priorities in the context of immigration are among those that judges are least equipped to review. Id. at 489–90, 119 S.Ct. 936. In AADC, the Court explained that the concerns necessitating the Executive’s “broad discretion” in criminal prosecutions are “greatly magnified in the deportation context.” Id. (citing United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134

**33 In deciding to rescind an immigration policy of nonenforcement, DHS thus acts with broad discretion that courts cannot review absent clear congressional authorization. Here, rather than authorize judicial review, the broad, discretion-granting language of the enabling statute reinforces that DHS’s enforcement decision is not subject to APA review. See 6 U.S.C. § 202(5) (“The Secretary shall be responsible for ... [e]stablishing national immigration enforcement policies and priorities.”); see also Webster, 486 U.S. at 599–600, 108 S.Ct. 2047.
Perhaps recognizing that immigration enforcement decisions exhibit the characteristics of unreviewable agency actions, the majority decides that we should nonetheless review the rescission of DACA because these features are not actually at work here: Acting Secretary Duke explained *522 that DACA was rescinded based on DHS’s belief that the program was unlawful. The majority points to Heckler’s footnote 4, where the Court left open the question whether courts may review agency action if “a refusal by the agency to institute proceedings [is] based solely on the belief that it lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4, 105 S.Ct. 1649 (“[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2)....”). The majority concludes that the Supreme Court has not yet answered this question, and that our court, in Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756–57 (9th Cir. 1990), has answered it in the affirmative: that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. I respectfully disagree.
In Montana Air, we confronted the question left open in Heckler’s footnote 4. Specifically, we held that a decision by the Federal Labor Relations Authority’s General Counsel not to issue an unfair labor practice complaint was reviewable only because his decision was “based solely on his belief that he lacks jurisdiction to issue such a complaint.” Id. at 756. But what we held reviewable were the General Counsel’s “statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct.” Id. at 757. Applying Chevron, we found “impermissible” the General Counsel’s interpretations of the statute under which he acted. Id. at 758.
Here, by contrast, Plaintiffs do not ask that we apply Chevron to review whether Acting Secretary Duke impermissibly interpreted 6 U.S.C. § 202(5) in concluding that the statute authorized the rescission of DACA.3

  

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Instead, Plaintiffs ask that we review for arbitrariness and capriciousness the procedures the agency used to rescind DACA. But nothing in Montana Air suggests that Heckler’s footnote 4 authorizes arbitrary-and-capricious, rather than Chevron, review of agency action simply because the agency acted based on its understanding of its enabling statute. And, despite Plaintiffs’ arguments to the contrary, BLE plainly prohibits us from doing so.
In BLE, the Supreme Court held that an agency’s refusal to reconsider a prior adjudicative decision was unreviewable even where the agency based its refusal on its interpretation of its enabling statute. 482 U.S. at 278–84, 107 S.Ct. 2360. In so holding, the Court explained that the agency’s refusal to reconsider was unreviewable because it was the type of action that “has traditionally been ‘committed to agency discretion,’ ” id. at 282, 107 S.Ct. 2360 (quoting Heckler, 470 U.S. at 832, 105 S.Ct. 1649); thus any inquiry into its reasons for acting was inappropriate, id. at 280–81, 107 S.Ct. 2360. “It is irrelevant that the [agency’s] order refusing reconsideration discussed the merits of the unions’ claim at length,” the Court explained, as “[i]t would hardly be sensible to say that the [agency] can genuinely deny reconsideration only when it gives the matter no thought.” Id. BLE thus makes clear that when determining the scope of permissible judicial review, courts consider only the type of agency action at issue, not the agency’s reasons for acting.
**34 Finally, Plaintiffs argue that even if BLE precludes review of some types of agency action regardless of the agency’s *523 reason for acting, that rule only applies to single-shot enforcement decisions, not to general statements of policy. See NAACP v. Trump, 298 F. Supp. 3d 209, 227–36 (D.D.C. 2018) (discussing Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), and permitting APA review on this ground). In other words, Plaintiffs would have us hold that general statements of policy—but not single-shot enforcement decisions—are subject to APA review when the agency’s sole reason for acting is its understanding of its jurisdiction. While the majority acknowledges Plaintiffs’ argument without reaching its merits, I believe that such a distinction collapses Heckler on its head: In deciding whether agency action is reviewable, the first question we ask is what type of agency action is before us—whether it is agency action that courts typically review or agency action “traditionally ... ‘committed to agency discretion.’ ” Heckler, 470 U.S. at 832, 105 S.Ct. 1649. This initial inquiry includes consideration of whether the action is a single-shot non-enforcement decision or a general statement of policy. It would beg the question to conclude that unreviewable agency action is in fact

reviewable because it is the type of action that courts typically review.
I would therefore hold that § 701(a)(2) precludes us from subjecting DACA’s rescission to arbitrary-and-capricious review.
At the same time, as the government concedes, DACA’s rescission may be reviewed for compliance with the Constitution. I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment, and that the district court correctly denied the government’s motion to dismiss this claim.
Notably, Plaintiffs did not seek a preliminary injunction on their Equal Protection claim, instead relying solely on their APA argument. Nonetheless, this court may affirm a preliminary injunction on any basis supported by the record. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021 (9th Cir. 2013). And because a preliminary injunction preserves the court’s power to render a meaningful decision on the merits, we can affirm an injunction issued on legally erroneous grounds where remand for consideration of alternative grounds is warranted. See Gerling Global Reinsurance Corp. of Am. v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“It is possible that [the challenged law] violates the Due Process Clause, but the district court did not reach that issue, and it is not fully developed in the record or in the briefs presented to this court. We leave the preliminary injunction in place in order to give the district court an opportunity to consider whether Plaintiffs are likely to succeed on the merits.”); see also United States v. Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en banc) (holding that the district court erred in entering an injunction but leaving “the injunction in place ... pending the conclusion of all proceedings in this case, in aid of the court’s jurisdiction”). Accordingly, I would affirm the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.
As the majority details, the record assembled at this early stage is promising. Plaintiffs highlight (1) the disproportionate impact DACA’s rescission has on “individuals of Mexican heritage, and Latinos, who together account for 93 percent of approved DACA applications”; (2) a litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central *524 America;4 and (3) substantial procedural irregularities in the challenged

  

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agency action.
**35 Such evidence—plus whatever additional evidence Plaintiffs muster on remand—may well raise a presumption that unconstitutional animus was a substantial factor in the rescission of DACA. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); see also Hawaii, 138 S. Ct. at 2420 (holding that courts “may consider plaintiffs’ extrinsic evidence” as permitted by the applicable level of scrutiny). If the government fails to rebut that presumption, Plaintiffs will have demonstrated a likelihood of success on the merits. See Arlington Heights, 429 U.S. at 270 & n.21, 97 S.Ct. 555 (noting that proof that an action was motivated by a discriminatory purpose shifts to the government the burden of establishing that the same decision would have resulted without the impermissible purpose); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (affirming the injunction where the government failed to meet its burden at preliminary injunction stage, because “the burdens at the preliminary injunction stage track the burdens at trial”). As such, I believe that Plaintiffs have plausibly alleged an Equal Protection violation and that the district court should decide whether it is an alternative ground to grant the preliminary injunction.
Moreover, the balance of equities here weighs heavily in favor of affirming the preliminary injunction. A merits decision from the district court concluding that the Executive rescinded DACA because of unconstitutional racial animus would be little more than an advisory opinion if by that time thousands of young people had lost their status due to the lack of an injunction preserving it. Preliminary injunctive relief exists precisely for

circumstances like these: “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Thus, on these facts, the district court was correct to issue a preliminary injunction. See Ashcroft v. ACLU, 542 U.S. 656, 670, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (affirming injunction where “the potential harms from reversing the injunction outweigh those of leaving it in place by mistake”); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (granting preliminary relief because “otherwise a favorable final judgment might well be useless”); Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973); cf. Winter v. NRDC, Inc., 555 U.S. 7, 26, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (reversing injunction without addressing likelihood of success on the merits where “the balance of equities and consideration of the overall public interest in this case tip strongly in favor of [defendants]”).
Accordingly, while I would remand for the district court to evaluate the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim as an alternative basis for preliminary relief in the first instance, I join the majority in affirming the preliminary injunction to preserve the *525 status quo while Plaintiffs attempt to prove up that claim.
All Citations
908 F.3d 476, 2018 WL 5833232
  

Footnotes  

  

1  

We  also  affirm  in  part  the  district  court’s  partial  grant  and  partial  denial  of  the  government’s  motion  to  dismiss  for  failure  to  state  

  

a  claim.     

2  

Indeed,   there   is   evidence   that   “Congress   originally   intended   that   parole   would   be   used   on   a   case-­‐by-­‐case   basis   on   behalf   of  

  

individual  aliens.”  Cong.  Research  Serv.,  Review  of  U.S.  Refugee  Resettlement  Programs  &  Policies  8  (1980);  see  also  S.  Rep.  No.   89-­‐748,   at   17   (1965).   The   statute   was   amended   in   1980   to   expressly   prohibit   categorical   grants   of   parole.   Refugee   Act   of   1980,  

Pub.  L.  No.  96-­‐212,  §  203(f),  94  Stat.  102,  108;  see  8  U.S.C.  §  1182(d)(5).  

  

3  

There   is   some   controversy   surrounding   this   number.   See   generally   Unconstitutionality   of   Obama’s   Executive   Actions   on  

  

Immigration:   Hearing   Before   the   House   Comm.   on   the   Judiciary,   114th   Cong.   84–85   (2015)   (written   testimony   of   Professor   Stephen  H.   Legomsky).   But  even  the   lowest   reported  contemporary   estimate  was  that   100,000   people   would  actually  benefit  

from  the  program,  indicating  a  major  policy  initiative.  See  INS  Reverses  Family  Fairness  Policy,  supra.  

  

4  

Napolitano  is  a  party  to  this  appeal  in  her  current  capacity  as  President  of  the  University  of  California.  

  

  

  

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5  

This  criterion  became  known  as  the  “age  cap.”  

  

  

6  

8   U.S.C.   §§   1182(a)(9)(B)(i)(I)–(II)   establish   a   three-­‐year   and   ten-­‐year   bar   on   admission   after   specified   periods   of   “unlawful  

  

presence.”  Additionally,   8   U.S.C.  §   1182(a)(9)(C)   provides   a   permanent   bar   on   admission   for   immigrants   who   have   accrued   an   aggregate  of  more  than  one  year  of  “unlawful  presence”  and  who  later  attempt  to  cross  the  border  clandestinely.  As  the  district  

court  noted  below,  DHS  “excludes  recipients  of  deferred  action  from  being  ‘unlawfully  present’  because  their  deferred  action  is  

considered  a  period  of  stay  authorized  by  the  government.”  Regents  of  Univ.  of  Cal.  v.  DHS,  279  F.  Supp.  3d  1011,  1039  (N.D.  Cal.  

2018).   As   DHS   noted   in   its   DACA   Frequently   Asked   Questions   (FAQs),   “[f]or   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.”  Importantly,  however,  “deferred  action  does  not  confer  lawful  status  upon  an  individual,  nor  

does  it  excuse  any  previous  or  subsequent  periods  of  unlawful  presence.”  

The   FAQs   are   attached   as   an   exhibit   to   the   Regents   complaint,   and   are   cited   pervasively   throughout   the   Garcia   complaint.   See  

United  States  v.  Ritchie,  342  F.3d  903,  908  (9th  Cir.  2003)  (explaining  that  for  purposes  of  a  motion  to  dismiss,  “[c]ertain  written  

instruments   attached  to   pleadings   may   be  considered   part   of   the  pleading.  Even  if   a  document  is  not   attached  to   a   complaint,   it  

may  be  incorporated  by  reference  into  a  complaint  if  the  plaintiff  refers  extensively  to  the  document  or  the  document  forms  the  

basis  of  the  plaintiff’s  claim.”  (internal  citation  omitted)  ).  

  

7  

Two  states  were  dismissed  from  the  case  with  leave  to  amend.  That  decision  is  not  challenged  on  appeal.  

  

  

8  

This  bar  does  not  affect  a  plaintiff’s  ability  to  bring  freestanding  constitutional  claims.  See  Webster  v.  Doe,  486  U.S.  592,  601–05,  

  

108   S.Ct.   2047,   100   L.Ed.2d   632   (1988);   Padula   v.   Webster,   822   F.2d   97,   101   (D.C.   Cir.   1987)   (“[E]ven   where   agency   action   is   ‘committed  to  agency  discretion  by  law,’  review  is  still  available  to  determine  if  the  Constitution  has  been  violated.”  (quoting  Doe  

v.  Casey,  796  F.2d  1508,  1517–18  n.33  (D.C.  Cir.  1986),  aff’d  in  part,  rev’d  in  part  on  other  grounds,  Webster  v.  Doe,  486  U.S.  592,  

108  S.Ct.  2047,  100  L.Ed.2d  632  (1988)  )  ).  

  

9  

Chaney’s  footnote  4  reads  in  its  entirety:  

  

We   do   not   have   in   this   case   a   refusal   by   the   agency   to   institute   proceedings   based   solely   on   the   belief   that   it   lacks   jurisdiction.   Nor   do   we   have   a   situation   where   it   could   justifiably   be   found   that   the   agency   has   “consciously   and   expressly  

adopted  a  general  policy”  that  is  so  extreme  as  to  amount  to  an  abdication  of  its  statutory  responsibilities.  See,  e.g.,  Adams  

v.   Richardson,   156   U.S.   App.   D.C.   267,   480   F.2d   1159  (1973)  (en  banc).   Although   we  express   no   opinion   on   whether   such  

decisions  would  be  unreviewable  under  §  701(a)(2),  we  note  that  in  those  situations  the  statute  conferring  authority  on  the  

agency  might  indicate  that  such  decisions  were  not  “committed  to  agency  discretion.”  

Heckler  v.  Chaney,  470  U.S.  821,  833  n.4,  105  S.Ct.  1649  (emphasis  added).  

  

10   We  reject  the  government’s  reading  of  Montana  Air,  under  which  the  Chaney  presumption  would  be  overcome  only  if  the  agency  

  

action   is   based   on   a   belief   in   a   lack   of   jurisdiction,   and   the   refusal   to   enforce   is   so   extreme   as   to   become   an   abdication   of   the   agency’s  statutory  responsibilities.  Both  Chaney  and  Montana  Air  make  clear  that  these  are  two  independent  exceptions  to  the  

narrow  rule  of  nonreviewability,  not  two  elements  of  a  single  test.  Chaney,  470  U.S.  at  833  n.4,  105  S.Ct.  1649;  Montana  Air,  898  

F.2d  at  756.  

  

11   The  opinion  is  replete  with  equally  emphatic—and  equally  quotable—formulations  of  the  same  point.  See,  e.g.,  City  of  Arlington,  

  

569  U.S.  at  301,  133  S.Ct.  1863  (“In  sum,  judges  should  not  waste  their  time  in  the  mental  acrobatics  needed  to  decide  whether   an  agency’s  interpretation  of  a  statutory  provision  is  ‘jurisdictional’  or  ‘nonjurisdictional.’  Once  those  labels  are  sheared  away,  it  

becomes   clear   that   the   question   in   every   case   is,   simply,   whether   the   statutory   text   forecloses   the   agency’s   assertion   of  

authority,  or  not.”).  

  

12   The  Court  gave  as  an  example  a  prosecutor’s  refusal  to  institute  criminal  proceedings  based  on  her  “belief  ...  that  the  law  will  not  

  

sustain   a   conviction.”   BLE,   482   U.S.   at   283,   107   S.Ct.   2360.   Such   a   belief   is   not   equivalent   to   a   conclusion   that   the   government   lacked  the   power   to   institute   a   prosecution   in   the  first  place.   For   one   colorful   example,   in   Bond   v.   United  States,   prosecutors  

made   the   “surprising”   decision   to   charge   “an   amateur   attempt   by   a   jilted   wife   to   injure   her   husband’s   lover”   under   the   federal  

statute  implementing  the  international  Convention  on  Chemical  Weapons.  572  U.S.  844,  134  S.  Ct.  2077,  2083–84,  189  L.Ed.2d  1  

(2014).   While   the   Court   ultimately   interpreted   the   statute   not   to   encompass   the   charged   conduct,   id.   at   2093–94,   no   one  

suggested  that  the  government’s  aggressive  decision  to  institute  the  prosecution  was  itself  ultra  vires.  

  

13   Because   we   take   this   doctrinal   course,   we   need   not   decide   whether   the   rescission   of   DACA   would   be   reviewable   absent   the  
exception  reflected  in  Montana  Air  and  Chaney’s  footnote  four.  But  we  do  note  several  points.  First,  a  literal  reading  of  Chaney’s  

  

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language   would   not   even   encompass   the   decision   to   rescind   DACA,   since   Chaney   by   its   own   terms   applies   only   to   “agency  

decisions   not   to   undertake   enforcement   action.”   470   U.S.   at   832,   105   S.Ct.   1649   (emphasis   added).   Nowhere   does   the   opinion  

suggest  the  broader  proposition  that  any  decision  simply  related  to  enforcement  should  be  presumed  unreviewable.  Our  court’s  

dicta   in   Morales   de   Soto   v.   Lynch,   824   F.3d   822,   827   n.4   (9th   Cir.   2016),   which   addressed   a   completely   separate   issue   of  

jurisdiction  under  the  INA,  is  not  to  the  contrary.  Thus,  to  the  extent  that  the  Montana  Air  exception  might  not  seem  a  perfect  fit  

for  the   rescission   of   DACA—which   was   not   exactly   a  decision  not   to   enforce—the  Chaney   presumption   itself   shares  the   same  

defect.   There  is   no   daylight   between  the  Chaney   rule   and   the  Montana   Air   exception  in   terms   of   the   type   of   agency   action   to  

which   they   apply.   So   if   the   rescission   of   DACA   were   outside   the   Montana   Air   exception   by   virtue   of   not   being   strictly   a  

nonenforcement  decision,  it  would  also  fall  outside  the  Chaney  presumption  of  unreviewability  in  the  first  place.  

Second,   the   D.C.   Circuit   has   developed   a   line   of   cases   explaining   that   while   Chaney   bars   judicial   review   of   a   “single-­‐shot  

nonenforcement  decision,”  on  the  other  hand,  “an  agency’s  adoption  of  a  general  enforcement  policy  is  subject  to  review.”  OSG  

Bulk  Ships,  Inc.  v.  United  States,  132  F.3d  808,  812  (D.C.  Cir.  1998)  (quoting  Crowley  Caribbean  Transp.,  Inc.  v.  Pena,  37  F.3d  671,  

674–75  (D.C.  Cir.  1994)  );  see  also  Kenney  v.  Glickman,  96  F.3d  1118,  1123  (8th  Cir.  1996);  Nat’l  Treasury  Emps.  Union  v.  Horner,  

854  F.2d  490,  496–97  (D.C.  Cir.  1988).  

Thus,  every  one  of  the  four  courts  that  has  considered  the  question  has  held  that  the  rescission  of  DACA  is  reviewable  under  the  

APA,   although   each   has   employed   slightly   different   reasoning   for   that   conclusion.   See   NAACP   v.   Trump,   298   F.   Supp.   3d   209,  

226–34   (D.D.C.   2018);   Casa   de   Md.   v.   DHS,   284   F.   Supp.   3d   758,   769–70   (D.   Md.   2018);   Regents   of   Univ.   of   Cal.   v.   DHS,   279   F.  

Supp.  3d  1011,  1029–31  (N.D.  Cal.  2018)  (decision  below);  Batalla  Vidal  v.  Duke,  295  F.  Supp.  3d  127,  147–52  (E.D.N.Y.  2017).  

  

14   After  hundreds  of  pages  of  briefing  and  over  an  hour  of  oral  argument,  it  remains  less  than  clear  how  “litigation  risk”  differs  from  

  

a  substantive  belief  that  DACA  is  illegal.  We  take  the  term  to  refer  to  a  concern  that  DACA  would  be  abruptly  enjoined,  regardless   of   whether   the   program   was   illegal   or   not.   Of   course,   such   a   concern   is   not   independent   of   an   on-­‐the-­‐merits   assessment   of  

DACA’s  legality.  

  

15   This  conclusion  is  only  bolstered  by  the  fact  that  the  government’s  production  of  the  “administrative  record”  in  this  case  includes  

  

the  entirety  of  the  three  published  judicial  opinions  in  the  Texas  litigation.     

16   The  Acting  Secretary  did  reference  Texas  Attorney  General  Ken  Paxton’s  threat  to  amend  the  Texas  suit  to  include  DACA,  but  she  

  

did   so   in   the   “Background”   section   of   her   memorandum.   If   anything,   the   inclusion   of   the   threat   in   the   background   portion   renders  its  omission  from  the  list  of  factors  the  Acting  Secretary  was  actually  “[t]aking  into  consideration”  all  the  more  stark.  

  

17   Secretary  Kelly’s  references  to  the  factors  he  considered,  which  included  obviously  discretionary  considerations  such  as  “our  new  

  

immigration   enforcement   priorities,”   provided   a   further   model   for   how   to   describe   a   discretionary   decision,   which   Acting   Secretary  Duke  also  chose  not  to  follow.  

  

18   Section  1252(g)  is  one  such  provision.  See  AADC,  525  U.S.  at  475,  119  S.Ct.  936  (describing  §  1252(g)’s  passage  as  part  of  IIRIRA).  

  

  

19   In  its  response  and  reply  brief,  the  government  appears  to  argue  that  another  provision  of  the  INA,  8  U.S.C.  §  1252(b)(9),  also  

  

stripped  the  district  court  of  jurisdiction.  Although  ordinarily  an  argument  not  raised  in  the  opening  brief  would  be  waived,  this   argument  is   jurisdictional   so   we   must   consider   it.   See,   e.g.,  Embassy  of  the   Arab  Republic  of  Egypt  v.   Lasheen,   603   F.3d   1166,  

1171  n.3  (9th  Cir.  2010)  (“[C]hallenges  to  subject  matter  jurisdiction  cannot  be  waived[.]”).  But  Section  1252(b)(9)  does  not  bar  

jurisdiction  here,  because  it  “appl[ies]  only  to  those  claims  seeking  judicial  review  of  orders  of  removal.”  Singh  v.  Gonzales,  499  

F.3d  969,  978  (9th  Cir.  2007)  (citing  St.  Cyr,  533  U.S.  at  313,  121  S.Ct.  2271).  

  

20   “A   plaintiff   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,  129  S.Ct.  365,  172  L.Ed.2d  249  (2008).  

  

21   The  government  does  not  argue  that  its  conclusion  is  entitled  to  Chevron  deference,  likely  because  “[d]eference  to  an  agency’s  

  

interpretation  of  a  statute  is  not  appropriate  when  the  agency  wrongly  ‘believes  that  interpretation  is  compelled  by  Congress.’  ”   Gila   River   Indian   Cmty.   v.   United   States,   729   F.3d   1139,   1149   (9th   Cir.   2013)   (quoting   PDK   Labs.   Inc.   v.   DEA,   362   F.3d   786,   798  

(D.C.  Cir.  2004)  ).  

  

22   U.S.   Citizenship   &   Immigration   Services,   Number   of   Form   I-­‐821D,   Consideration   of   Deferred   Action   for   Childhood   Arrivals,   by  

  

Fiscal   Year,   Quarter,   Intake,   Biometrics   and   Case   Status   Fiscal   Year   2012–2017   (March   31,   2017).   The   number   of   initial   applications  is  the  relevant  metric  because  renewal  applications  are  by  definition  limited  to  the  pool  of  those  already  approved  

  

32  

  

Regents  of  the  University  of  California  v.  U.S.  Department  of...,  908  F.3d  476  (2018)  

  

2018  WL  5833232  

  

for  DACA  at  least  once.  Therefore,  one  would  expect  an  even  lower  denial  rate  for  renewals.  

  

23   Judge   King’s   dissent   also   makes   the   critical   observation   that,   according   to   the   declarations   filed   in   that   case,   the   reason   DHS  

  

could  not  point  to  specific  instances  in  which  DACA  applicants  met  the  program  criteria  but  were  denied  as  a  matter  of  discretion   was  that  DHS  did  not  have  the  ability  to  track  and  sort  the  reasons  for  DACA  denials.  Texas,  809  F.3d  at  211  (King,  J.,  dissenting).  

  

24   The   government   has   submitted   a   letter   pursuant   to   Federal   Rule   of   Appellate   Procedure   28(j),   informing   us   that   the   current  

  

Secretary  of  Homeland  Security,  Kirstjen  Nielsen,  issued  a  new  memorandum  regarding  the  DACA  rescission  on  June  22,  2018.  In   the  memorandum,  Secretary  Nielsen  “provide[d]  additional  explanation  of  the  basis  for  the  DACA  rescission,”  in  response  to  an  

order  filed  in  a  parallel  lawsuit.  The  government’s  letter  does  not  argue  that  the  Nielsen  memorandum  represents  fresh  agency  

action   that   could   possibly   moot   this   appeal.   We   therefore   leave   it   to   the   district   court   in   the   first   instance   to   determine   the  

admissibility  of  Secretary  Nielsen’s  letter  given  that  it  cannot  possibly  be  a  part  of  the  administrative  record  in  this  case,  and  its  

impact,   if   any,   on   this   case.   And   to   the   extent   the   Nielsen   memorandum   is   offered   as   an   additional   justification   of   the   original  

DACA   rescission,   we   do   not   consider   it   in   our   review   of   Acting   Secretary   Duke’s   decision   because   it   is   well-­‐settled   that   “we   will  

not  allow  the  agency  to  supply  post-­‐hoc  rationalizations  for  its  actions....”  San  Luis  &  Delta-­‐Mendota  Water  Auth.  v.  Jewell,  747  

F.3d  581,  603  (9th  Cir.  2014).  

  

25   Plaintiffs  do  not  challenge  the  district  court’s  dismissal  of  their  equitable  estoppel  claim.  

  

  

26   The  Regents  argue  that  “the  agency’s  discretion  to  grant  deferred  action  on  the  basis  of  the  DACA  criteria  has  been  eliminated.”  

  

This   is   not   quite   right   either.   DHS’s   authority   to   grant   deferred   action   under  the   DACA  program   has   been   eliminated,   but   the   DACA   criteria   themselves   are   some   of   those   that   have   traditionally   guided   immigration   enforcement   discretion.   See   Wadhia,  

supra,  at  57  (“DHS  used  traditional  humanitarian  factors  to  outline  the  parameters  for  the  DACA  program,  such  as  tender  age  and  

longtime  residence  in  the  United  States.”).  

  

27   DHS’s  DACA  FAQs  state  that  “[y]ou  may  be  considered  for  renewal  of  DACA  if  you  met  the  guidelines  for  consideration  of  Initial  

  

DACA  (see   above)   AND   you:  [1]   Did   not   depart   the   United   States   on   or   after   Aug.   15,   2012,   without   advance   parole;   [2]   Have   continuously  resided  in  the  United  States  since  you  submitted  your  most  recent  request  for  DACA  that  was  approved  up  to  the  

present  time;  and  [3]  Have  not  been  convicted  of  a  felony,  a  significant  misdemeanor,  or  three  or  more  misdemeanors,  and  do  

not  otherwise  pose  a  threat  to  national  security  or  public  safety.”  

  

28   Astonishingly,  this  sentence—which  appears  to  represent  a  change  from  the  prior  policy  of  affirmatively  protecting  information  

  

from  disclosure—is  immediately  adjacent  to  DHS’s  assurance  that  nothing  has  changed.  Cf.  George  Orwell,  Nineteen  Eighty-­‐Four   (1949),  at  175  (“Oceania  was  at  war  with  Eastasia:  Oceania  had  always  been  at  war  with  Eastasia.”).  

  

29   The   government   argues   that   the   statements   by   the   President   cited   in   the   complaints   do   not   provide   sufficient   evidence   to  

  

plausibly  allege  discriminatory  intent.  The  government  first  submits  that  nationality,  as  opposed  to  ethnicity,  is  not  an  invidious   classification,  and  that  many  of  the  cited  comments  go  only  to  Mexican  nationality.  “Often,  however,  the  two  are  identical  as  a  

factual   matter:   one   was   born   in   the   nation   whose   primary   stock   is   one’s   own   ethnic   group.”   St.   Francis   Coll.   v.   Al-­‐Khazraji,   481  

U.S.  604,  614,  107  S.Ct.  2022,  95  L.Ed.2d  582  (1987)  (Brennan,  J.,  concurring).  And  plaintiffs  allege  discriminatory  intent  not  only  

toward  “Mexican  nationals,”  but  also  toward  “individuals  of  Mexican  heritage,  and  Latinos.”  

  

30   The   district   court   took   judicial   notice   of   one   such   statement   by   the   President:   “[o]n   December   29,   2017,   President   Trump  

  

tweeted:  ‘The  Democrats  have  been  told,  and  fully  understand,  that  there  can  be  no  DACA  without  the  desperately  needed  WALL   at   the   Southern   Border   and   an   END  to   the  horrible   Chain  Migration  &   ridiculous   Lottery   System   of  Immigration   etc.   We   must  

protect   our   Country   at   all   cost!’   ”   There   were   many   similar   statements   made   by   the   President   after   he   took   the   oath   of   office  

leading  up  to  the  DACA  rescission  on  September  5,  2017.  

  

31   We   do   not   disagree   with   the   reasoning  of   Judge   Owens’s   concurring   opinion   that   the  likelihood   of   success  on   plaintiffs’   equal  

  

protection  claim  is  a  second,  alternative  ground  for  affirming  the  entry  of  the  injunction.     

1  

The   government   appears   to   share   this   view.   In   its   petition   for   certiorari   before   judgment,   the   government   asserted   that   “a  

  

primary  purpose  of  the  Acting  Secretary’s  orderly  wind-­‐down  of  the  DACA  policy  was  to  avoid  the  disruptive  effects  on  all  parties   of   abrupt   shifts   in   the   enforcement   of   the   Nation’s   immigration   laws.   Inviting   more   changes   before   final   resolution   of   this  

litigation  would  not  further  that  interest.”  

  

  

33  

  

Regents  of  the  University  of  California  v.  U.S.  Department  of...,  908  F.3d  476  (2018)  

  

2018  WL  5833232  

  

2  

As   for   the   government’s   appeal   from   the   motions   to   dismiss,   I   dissent,   for   reasons   stated   here,   from   the   majority’s   holding   to  

  

affirm   the   district   court’s   denial   of   the   motion   to   dismiss   Plaintiffs’   APA   arbitrary-­‐and-­‐capricious   claim   (Part   VI-­‐A).   However,   I   concur  in  the  majority’s  holding  to  affirm  the  district  court’s  dismissal  of  Plaintiffs’  APA  notice-­‐and-­‐comment  claim  (Part  VI-­‐B).  I  

also   concur   in  the   judgment   to   affirm   the   district   court’s   ruling   on  Plaintiffs’   Due  Process   claims   (Part  VI-­‐C;   Part   VI-­‐D).  And,   as  

explained  here  as  well,  I  agree  with  the  majority’s  decision  to  affirm  the  district  court’s  denial  of  the  motion  to  dismiss  the  Equal  

Protection   claim   (Part   VI-­‐E)   and   hold   that   the   Equal   Protection   claim   offers   an   alternative   ground   to   affirm   the   preliminary  

injunction.  

  

3  

This   is   not   surprising:   §   202(5)   makes   the   Secretary   “responsible   for   ...   [e]stablishing   national   immigration   enforcement   policies  

  

and   priorities.”   If   we   accept   that   this   broad,   discretion-­‐granting   statute   authorized   DACA’s   implementation,   it   surely   also   sanctions  DACA’s  termination.  

  

4  

Like  the  majority,  I  do  not  interpret  Trump  v.  Hawaii,  –––  U.S.  ––––,  138  S.  Ct.  2392,  201  L.Ed.2d  775  (2018),  to  preclude  review  

  

of  the  President’s  statements  when  applying  the  Arlington  Heights  standard.  At  the  merits  stage,  the  district  court  can  still  decide   whether,  or  to  what  degree,  the  President’s  statements  betray  a  discriminatory  animus  behind  DACA’s  rescission.  

  

  

  

  

  

  

  

  

34  

  

 
 Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 1 of 50

1 XAVIER BECERRA Attorney General of California
2 MICHAEL L. NEWMAN Senior Assistant Attorney General
3 CHRISTINE CHUANG Supervising Deputy Attorney General
4 VIRGINIA CORRIGAN REBEKAH A. FRETZ
5 SHUBHRA SHIVPURI JAMES F. ZAHRADKA II (SBN 196822)
6 Deputy Attorneys General 1515 Clay Street, 20th Floor
7 Oakland, CA 94612-1499 Telephone: (510) 879-1247
8 Fax: (510) 622-2270 E-mail: James.Zahradka@doj.ca.gov
9 Attorneys for Plaintiff State of California

10 [Additional counsel listed on signature page]

11 IN THE UNITED STATES DISTRICT COURT
12 FOR THE NORTHERN DISTRICT OF CALIFORNIA
13

14

15 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, STATE
16 OF MINNESOTA,

Civil Case No.: 3:17-cv-05235-WHA

17

18

v.

Plaintiffs, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19 U.S. DEPARTMENT OF HOMELAND
20 SECURITY; CHAD F. WOLF, in his purported official capacity as Acting Secretary
21 of Homeland Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES;
22 JOSEPH EDLOW, in his purported official capacity as Deputy Director for Policy of the
23 U.S. Citizenship and Immigration Services; and UNITED STATES OF AMERICA,
24 Defendants.
25

26

27

28

First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 2 of 50

1

INTRODUCTION

2

1. Defendants continue to take unlawful actions to diminish the protections that the

3 Deferred Action for Childhood Arrivals (DACA) program provides for individuals who were

4 brought to this country as children, in spite of the United States Supreme Court’s June 18, 2020

5 decision finding Defendants’ 2017 rescission of DACA unlawful. Dep’t of Homeland Sec. v.

6 Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914–15 (2020) (Regents III). Defendants’ latest

7 actions are unlawful for the same reason that the Supreme Court rejected the original rescission—

8 they fail the Administrative Procedure Act’s (APA) core requirement that government action be

9 rational, based on consideration of the relevant factors, and sufficiently explained. This Court

10 should invalidate these arbitrary and capricious actions, which are also unlawful because the

11 officials who took them were not properly appointed to the positions they purportedly held.

12

2. On July 28, 2020, Defendant Chad F. Wolf, purported Acting Secretary of the

13 Department of Homeland Security, issued a memorandum making a number of changes to

14 DACA. Ex. A, Mem. from Chad F. Wolf, Acting Sec’y of Homeland Security, to Mark Morgan,

15 Senior Official Performing the Duties of Comm’r, U.S. Customs and Border Protection (CBP), et

16 al., Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial

17 Discretion with Respect to Individuals Who Came to the United States as Children” (July 28,

18 2020) (Wolf Memorandum). Pursuant to that memorandum, the Department of Homeland

19 Security (DHS) reduced the period of deferred action and work authorization granted under the

20 DACA program from two years to one year. DHS also again decided to reject any applications

21 from individuals who had not previously received a grant of deferred action under DACA, and to

22 reject requests for advance parole (i.e., authorization for DACA recipients to re-enter the United

23 States after travelling abroad) except in extraordinary circumstances. DHS further decided to

24 apply these policies to all initial DACA applications and applications for advance parole

25 submitted before the issuance of the Wolf Memorandum but after the Supreme Court affirmed the

26 vacatur of DHS’s 2017 rescission.

27

3. On August 21, 2020, Defendant Joseph Edlow, purported Deputy Director for

28 Policy for U.S. Citizenship and Immigration Services (USCIS), issued a memorandum 1
First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 3 of 50

1 implementing the Wolf Memorandum. Ex. B, Mem. from Joseph Edlow, Deputy Dir. for Pol’y, to

2 Assoc. Dirs. and Program Off. Chiefs, Implementing Acting Secretary Chad Wolf’s July 28, 2020

3 Memorandum, “Reconsideration of the June 15, 2012 Memorandum ‘Exercising Prosecutorial

4 Discretion with Respect to Individuals Who Came to the United States as Children’” (Aug. 21,

5 2020) (Edlow Memorandum). Under the terms of the Edlow Memorandum, USCIS will reject

6 DACA renewal requests received more than 150 days (five months) prior to the expiration of

7 DACA recipients’ current DACA validity period. As a result, many recipients will face lapses in

8 the renewal of their DACA protections and accompanying work authorizations because of the

9 lengthy processing times for renewal applications at USCIS centers, which currently extend up to

10 14 months.

11

4. Defendants’ actions are invalid, in part, because on July 28, 2020, when Defendant

12 Wolf issued the Wolf Memorandum, he was unlawfully exercising the functions and duties of the

13 Secretary of Homeland Security, in violation of the U.S. Constitution, the Federal Vacancies

14 Reform Act, and, as at least two courts have held, the Homeland Security Act. Moreover,

15 Defendant Wolf’s subsequent attempts to ratify his actions are unavailing.

16

5. Defendants’ latest efforts to diminish the protections provided by the DACA

17 program also violate the APA and significantly harm the Plaintiff States’ interests. The State of

18 California is home to more DACA recipients than any other state by far, and the States of

19 California, Maine, Maryland, and Minnesota (collectively, Plaintiff States) combined are

20 currently home to more than 197,000 DACA recipients. Since 2012, this program has allowed

21 nearly 800,000 people (including over 220,000 Californians) who have come of age in the United

22 States—many of whom have known no other home—to study and work here without fear of

23 removal, enriching our States and communities. As the Supreme Court recognized, “DACA

24 recipients have ‘enrolled in degree programs, embarked on careers, started businesses, purchased

25 homes, and even married and had children, all in reliance’ on the DACA program.” Regents III,

26 140 S. Ct. at 1914 (quoting Br. for Resp’t Regents of Univ. of Cal. et al.).

27

6. Further, an estimated 56,000 additional individuals (including tens of thousands in

28 the Plaintiff States) have become eligible for DACA since Defendants’ 2017 rescission, but have 2
First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 4 of 50

1 been—and, under Defendants’ recent actions, will continue to be—prohibited from receiving

2 DACA, despite the Supreme Court’s ruling, further harming the States.

3

7. DACA recipients residing in Plaintiff States are employed by companies and non-

4 profits, large and small, as well as State and municipal agencies, all of which benefit from their

5 skills and productivity. Through their employment and broader participation in the economy,

6 DACA recipients contribute to the economic activity and tax base of Plaintiff States and the

7 Nation. DACA recipients have also pursued educational opportunities at public and private post-

8 secondary institutions within the Plaintiff States, enriching the educational experiences of all

9 students and faculty by contributing their diverse life experiences and perspectives, while

10 building their upward career mobility. In addition to substantially benefitting from DACA

11 themselves, DACA recipients have taken advantage of the opportunities made available to them

12 through DACA in ways that have significantly enhanced Plaintiff States.

13

8. As a direct result of Defendants’ recent decision to limit the eligibility period for

14 deferred action and work authorization under DACA, DACA recipients are now required to

15 demonstrate to their employers that they are authorized to work yearly rather than every two

16 years. Approximately 56 percent of respondents to a survey of DACA recipients were concerned

17 that this shortened eligibility period for DACA would make it more difficult for them to keep

18 their jobs.1 Concomitantly, employers (including the States) will incur the administrative cost of

19 verifying that their DACA recipient employees are authorized to work twice as often, effectively

20 doubling their administrative costs and burdens. In light of the increased administrative costs and

21 the additional uncertainty regarding the status of their DACA employees’ work authorizations

22 caused by this change, some employers may find that hiring or retaining DACA employees will

23 not merit the expenditure of substantial resources in hiring and training, and DACA recipients

24 may lose or be unable to obtain employment.

25

9. Moreover, the reduced window of time for DACA recipients to seek renewal under

26

27

1 Lora Adams, et al., Presidents’ All. on Higher Educ. and Immigr., Discouraging and

Denying Renewals: An Assessment on the Impact of the July 2020 DHS Memorandum on DACA

28 (Sept. 29, 2020), https://tinyurl.com/y233qfqt.

3

First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 5 of 50

1 the Edlow Memorandum increases the probability that some DACA recipients’ work

2 authorization will lapse while renewal requests are pending in light of the often-lengthy

3 processing times for such requests, which could force employers to place DACA recipients on

4 unpaid leave or terminate their employment. As a result of losing employment, DACA recipients

5 face the loss of employer-based health insurance, which has not only benefited them and their

6 families personally, but has reduced Plaintiff States’ expenditures on healthcare to uninsured

7 people and enhanced public health overall.

8

10. Some DACA recipients who are enrolled in colleges and universities may be

9 forced to disenroll, because the barriers to employment created by the Wolf and Edlow

10 Memoranda will create financial obstacles to maintaining enrollment. Forty percent of DACA

11 recipients surveyed were concerned that having only one year of DACA would make it more

12 difficult for them to stay in college.2 Others may disenroll simply because they will no longer be

13 able to achieve career objectives commensurate with their skills and qualifications in light of the

14 reduced length of DACA work authorization available. Those DACA recipients who choose to

15 remain enrolled in school will be unable to participate equally in other opportunities generally

16 available to students, such as paid internships and externships, as well as study abroad programs.

17 This also harms the States’ post-secondary education systems, where thousands of DACA-

18 eligible individuals are enrolled or have been admitted, and deprives other participants in these

19 programs of DACA-eligible students’ diverse life experiences and perspectives.

20

11. The State of California, recognizing the significant benefits that DACA brings to

21 DACA recipients, their families, and communities, and the State as a whole, has long supported

22 DACA applicants by providing fee payment assistance. To date, California has invested

23 approximately $14.8 million in providing such assistance. The Wolf Memorandum’s reduction of

24 the renewal period from two years to one year will dramatically increase the demand for these

25 services by forcing DACA renewal applicants to pay the $495 renewal fee twice as frequently,

26

27

2 Tom K. Wong et al., Ctr. for Am. Progress, Results from 2020 National DACA Study (Sept. 10, 2020), https://tinyurl.com/y48v2sjcf.

28

4

First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 6 of 50

1 straining the State’s resources. According to a recent survey of DACA recipients, almost two-

2 thirds of respondents were concerned that the cost of applying to renew DACA every year would

3 be too much for them to afford.3

4

12. Since the 2017 rescission, it is estimated that 56,000 young people have become

5 eligible for DACA by “aging in” to the program or on other bases such as employment or

6 education. Defendants have continued to deny DACA-eligible individuals the opportunity to

7 receive DACA, which further harms the States, as these individuals’ contributions to the States

8 will be limited.

9

13. Under the DACA program, recipients were authorized to apply for advance parole,

10 which allowed them to return to the United States after traveling abroad for educational or work

11 purposes, or to visit relatives when family emergencies arose. In 2017, Defendants abruptly

12 terminated this authorization; pursuant to the Wolf Memorandum, Defendants are now rejecting

13 all applications for advance parole absent undescribed “exceptional circumstances.” Ex. A, Wolf

14 Mem., at 5. The Edlow Memorandum makes it clear that effectively all advance parole

15 applications for educational- or employment-related purposes, or to visit family, will be denied.

16 Ex. B, Edlow Mem., at 6-9. As a result, thousands of residents of Plaintiff States have been and

17 will continue to be unable to travel abroad for these purposes.

18

14. In short, Defendants’ unlawful actions to curtail DACA will harm hundreds of

19 thousands of Plaintiff States’ residents, injure the States’ colleges and universities, hurt employers

20 in the States (including the States themselves), disrupt the States’ statutory and regulatory

21 interests, and damage the economies and tax bases of Plaintiff States.

22

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT

23

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

24

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

25 substantial part of the events or omissions giving rise to this action occurred in this district;

26 Plaintiff State of California resides in this district; and no real property is involved in the action.

27

28

3 Id.

5

First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 7 of 50

1 This is a civil action in which Defendants are agencies of the United States or officers of such an

2 agency.

3

17. Intradistrict assignment is proper in San Francisco pursuant to Local Rules 3-2(c)

4 and (d) because a substantial part of the events or omissions which give rise to the claim occurred

5 in the City and County of San Francisco.

6

PARTIES

7

PLAINTIFF STATE OF CALIFORNIA

8

18. The State of California, represented by and through its Attorney General, is a

9 sovereign State of the United States of America.

10

19. Governor Gavin Newsom is the chief executive officer of the State. The Governor

11 is responsible for overseeing the operations of the State and ensuring that its laws are faithfully

12 executed. As the leader of the executive branch, the Governor is the chief of California’s

13 executive branch agencies, including those whose injuries are discussed in this Complaint. Cal.

14 Const. art V, § 1.

15

20. Attorney General Xavier Becerra is the chief law officer of the State. The Attorney

16 General is responsible for protecting California’s sovereign interests, including its interest in

17 enforcing California laws. Cal. Const. art V, § 13.

18

21. California is aggrieved by the actions of Defendants and has standing to bring this

19 action because of the injury to its state sovereignty caused by Defendants’ diminishment of

20 DACA, including immediate and irreparable injuries to its interests.

21

22. California is home to 395,000 DACA-eligible residents.4 As of July 2020, USCIS

22 had approved 238,623 initial DACA applications and 555,895 renewals from immigrants residing

23 in California. Ex. C, USCIS, Number of Form I-821D, Consideration of Deferred Action for

24 Childhood Arrivals, Status, by Fiscal Year, Quarter, and Case Status: Aug. 15, 2012 to June 30,

25 2020 (July 1, 2020) (USCIS Numbers). Thus, California is home to over 156,000 additional

26

27

4 Migration Pol’y Inst., National and State Estimates of Immigrant Populations Eligible for the Deferred Action for Childhood Arrivals (DACA) Program (June 2020),

28 https://tinyurl.com/y4gnghn5.

6

First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 8 of 50

1 individuals who are eligible for DACA but would face automatic rejection of their applications

2 under the Wolf Memorandum. Nearly 30 percent of all DACA recipients in the entire country

3 reside in California and California has by far the largest population of DACA recipients of any

4 state. Id. It is estimated that 16,000 young people in California have become eligible for DACA

5 by “aging in” to the program or on other bases such as employment or education since the 2017

6 rescission.

7

23. California’s interest in protecting the health, safety, and well-being of its residents,

8 including their physical and economic health, extends to all residents, regardless of immigration

9 status. See, e.g., Cal. Civ. Code § 3339(a); Cal. Gov’t Code § 7285(a); Cal. Health & Safety Code

10 § 24000(a); Cal. Lab. Code § 1171.5(a).

11

24. California has an interest in ensuring public safety within its borders and

12 protecting the rights of its residents by maintaining an effective law enforcement system. Like

13 many local law enforcement agencies in California and throughout the Nation, the State has

14 concluded that public safety is best protected when all members of its community—regardless of

15 immigration status—are encouraged to report crimes and participate in policing efforts without

16 fear of immigration consequences. California has further determined that the interests of public

17 safety are best served by promoting trust between law enforcement and California residents,

18 including members of the immigrant community. By deferring the possibility of immediate

19 deportation, the DACA program removed a significant deterrent to immigrants approaching law

20 enforcement when they have been victimized or have witnessed crimes.

21

25. California has an interest in promoting and preserving the public health of

22 California residents. Defendants’ actions to curtail DACA will shrink the pipeline for health care

23 workers, exacerbating the existing shortage of physicians and home healthcare workforce for

24 seniors and people with disabilities. California can ill afford such an outcome, particularly in the

25 midst of the COVID-19 pandemic; indeed, approximately 29,000 doctors, nurses, dentists,

26 physician assistants, and other healthcare workers who have benefitted from DACA are on the

27

28 7
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1 front lines confronting the ongoing pandemic every day.5 Further, DACA-eligible individuals

2 barred from filing applications face an increased risk of experiencing mental health conditions

3 like depression, anxiety, and suicide attempts as they continue to face an uncertain future, which

4 in turn will impact California’s healthcare system.

5

26. The new limitations on the DACA program will also harm California’s interests in,

6 and expenditures on, its educational priorities. California’s state universities and colleges have

7 made significant investments in financial aid and other programs to support students with DACA,

8 consistent with the interests of those institutions and the State in ensuring diversity and

9 nondiscrimination. See Regents III, 140 S. Ct. at 1914 (discussing harms to “schools where

10 DACA recipients study”). The University of California (“UC”) system has over 4,000

11 undocumented students, including approximately 1,700 current DACA recipients. It is estimated

12 that between 54,000 and 100,000 undocumented students attend California’s community colleges,

13 and 9,800 attend the California State Universities; a significant number of these students are

14 DACA recipients. The Wolf Memorandum’s requirement that students with DACA renew on an

15 annual basis, instead of every two years, increases the risk that their DACA protections will lapse,

16 making it more difficult or impossible for students to continue their studies and in turn harming

17 the States’ investments and interests.

18

27. Further, the Wolf Memorandum’s change to DACA eligibility threatens significant

19 additional harms to California’s community college system by pushing students out of education,

20 depriving the system of significant revenues and wasting significant investments that the State has

21 made in these students. In 2018-2019, undocumented students and those with DACA accounted

22 for between 2.1 million and 3.4 million credits attempted and between 750,000 and 2.2 million

23 noncredit course enrollments at the California Community Colleges. Further, in 2018-2019, the

24 California Community Colleges provided between 450,000 and 900,000 noncredit enrollments to

25 students who were working toward credentials that would allow them to become DACA eligible.

26

27

5 See Nicole Prchal Svajlenka, Ctr. for Am. Progress, A Demographic Profile of DACA Recipients on the Frontlines of the Coronavirus Response (Apr. 6, 2020),

28 https://tinyurl.com/y7c8ky88.

8

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1 Further marginalizing these students by reducing their opportunities to obtain or renew their

2 DACA would constitute a significant risk of revenue loss to the California Community Colleges,

3 amounting to millions of dollars annually.

4

28. Further, the Wolf Memorandum’s denial of DACA to thousands of individuals

5 who are eligible will make it difficult or impossible for these otherwise qualified young people to

6 enter the States’ post-secondary institutions due to their inability to work, and thus support tuition

7 and other costs of higher education. As many as 1,700 undocumented students in the UC system,

8 2,540 in the California State University system, and at least 27,000 students in the California

9 Community Colleges system are individuals who are DACA-eligible, but are barred from

10 receiving DACA under the Wolf Memorandum.

11

29. UC also employs many DACA recipients at UC campuses and in UC medical

12 centers as teaching assistants, research assistants, post-doctoral researchers, and health care

13 providers. DACA recipients often possess valuable skills, including fluency in foreign languages

14 that can be difficult for employers to replace. As a result of the Wolf Memorandum, UC (1) is

15 only assured that these employees are eligible to work legally for one year, rather than two years,

16 and (2) will lose the opportunity to employ individuals in these capacities who would have been

17 eligible for DACA but whose initial applications will automatically be denied. See id. (discussing

18 harms to “schools where DACA recipients . . . teach”).

19

30. Similarly, California’s primary and secondary schools, as well as the California

20 State University and California Community College systems, will be harmed because they

21 currently employ professors, teachers, teachers’ aides, administrators, and nurses under DACA

22 work authorizations. The Wolf Memorandum’s reduced renewal period frustrates California’s

23 interests in the education of all its residents and harms Californians. Further, the Wolf

24 Memorandum’s prohibition on the issuance of DACA to new applicants harms these schools

25 because they are unable to hire individuals who would have been eligible for DACA but whose

26 initial applications will now automatically be denied.

27

31. Immigration is an important economic driver in California, the fifth-largest

28 economy in the world. California is home to many small businesses, large corporations, non9
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1 profit organizations, public and private hospitals, and colleges and universities that will be

2 adversely affected by the limitations imposed on DACA by Defendants.

3

32. The cumulative economic harm to California from Defendants’ diminishment of

4 DACA protections in the Wolf Memorandum is significant. According to one estimate, California

5 will suffer over $2 billion in economic losses over a ten-year period as a result of Defendants’

6 denial of employment authorization to DACA-eligible individuals. See id. (discussing potential

7 loss in economic activity from “excluding DACA recipients from the lawful labor force”).

8

33. DACA recipients also contribute significantly to state and local tax revenues. See

9 id. (discussing $1.25 billion annual loss in tax revenue to state and local governments from

10 rescission). DACA recipients average higher earning capacities than their undocumented peers

11 and are able to better contribute to the economy. Studies show that after receiving DACA, many

12 recipients purchase houses and cars for the first time, boosting the economy and generating state

13 and local tax revenues. According to one estimate, DACA-eligible residents contribute more than

14 $534 million annually in state and local taxes in California. California state and local

15 governments stand to lose an estimated $262 million in tax revenues over ten years if DACA-

16 eligible individuals are denied the ability to receive employment authorization through DACA.

17

34. Shortening the work authorization period provided under DACA from two years to

18 one year will increase costs for employers (including the State of California, as discussed below).

19 First, the decreased work authorization period will put the “significant investments in hiring and

20 training” DACA recipients that employers have made, Regents of Univ. of Cal. v. U.S. Dep’t of

21 Homeland Sec., 279 F. Supp. 3d 1011, 1033 (N.D. Cal. 2018) (Regents I), at risk of being lost

22 after just one year. Second, the shortened work authorization period will impose administrative

23 costs on employers by requiring them to verify DACA recipients’ employment every year, rather

24 than every two years. Third, given the generally lengthy, multi-month processing times for

25 DACA renewal requests, the more compressed window of time for DACA recipients to seek

26 renewal of their work authorization under the Wolf and Edlow Memoranda increases the

27 probability that some DACA recipients’ work authorization will lapse while timely renewal

28 10
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1 requests are pending, forcing employers to place employees on leave or terminate their

2 employment and imposing additional costs to hire and train replacements.

3

35. Some of the largest companies in California, and indeed, the Nation, have been

4 vocal in support of DACA recipients, urging the President to retain DACA and not undermine its

5 protections. More than 140 employers and trade associations from different and varied American

6 industries signed on to a letter earlier this year under the banner of an organization called

7 Coalition for the American Dream, calling on the President to “leave DACA in place and refrain

8 from taking any additional administrative actions that would negatively impact the DACA

9 program,” which they state would both “disrupt the economic recovery of our companies and

10 communities, [and] jeopardize the health and safety of these vulnerable individuals.”6

11

36. California, too, has an interest in ensuring that it has access to the best possible

12 employees—including current and prospective DACA recipients—as well as fully realizing its

13 investments in the employees it recruits, hires, and trains. The State employs at least 288 DACA

14 recipients across 26 agencies and departments, many of whom were hired because of their

15 specialized skills and qualifications and who will be affected by the limitations imposed on

16 DACA. These state employees help further California’s priorities to ensure, inter alia: public

17 safety at the Department of Corrections and Rehabilitation and the Department of Forestry and

18 Fire Protection; public health at the Departments of Health Care Services, State Hospitals, and

19 Developmental Services; infrastructure at the Departments of Transportation and Water

20 Resources; and support for veterans at the Department of Veterans’ Affairs. In addition, the

21 California State University system employs at least 645 DACA recipients in a variety of roles.

22 California has expended time and funds to hire, train, and manage these DACA recipients.

23

37. Cutting the renewal period for DACA recipients in half both reduces the value of

24 the State’s investment by increasing uncertainty as to DACA recipients’ future employability, see

25 Regents I, 279 F. Supp. 3d at 1033 (discussing “consequences . . . to the employers who have

26

6 Coal. for the Am. Dream, Letter to President Trump (July 11, 2020),

27

https://tinyurl.com/y6bgchnr (including companies and organizations such as the U.S. Chamber of Commerce, General Motors, Target, Levi Strauss, Marriott, Molson Coors, Apple, Microsoft,

28 Facebook, Amazon, Google, and Starbucks as signatories).

11

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1 invested time and money in training [DACA recipients]”), and increasing administrative costs to

2 verify employment eligibility every year rather than every two years. For DACA recipients

3 employed by the State of California, the additional employment verifications required by the

4 Wolf Memorandum will require approximately two hours of state employee time per verification

5 to verify continued employment eligibility and update the corresponding employee file, taking an

6 estimated total 575 hours of state employee time, at an additional cost to the State of

7 approximately $21,558 annually. In addition, some State agencies may need to incur the

8 administrative burden of terminating the employment of these individuals when their work

9 authorization expires and expending resources to find, hire, and train replacement employees, at

10 an average cost per employee of $15,000. The California State University system estimates that

11 its costs would increase by more than $57,000 per year.

12

38. State agencies that provide assistance to DACA recipients in the form of funding

13 for application fees face additional time and resource expenditures as a result of higher renewal

14 fees and shorter renewal periods associated with the Wolf Memorandum. For example, the

15 California Department of Social Services’ (CDSS) DACA Legal Services Program has provided

16 over $14 million to cover the cost of DACA application fees for over 28,000 individuals through

17 FY 2019-20. Based on CDSS’s experience with high demand and unmet need for DACA

18 recipients to pay renewal fees, and the anticipated increase in costs to recipients due to the annual

19 renewal requirement, the State of California will likely expend millions more in future assistance

20 than it would have in the absence of the Wolf Memorandum.

21

39. Defendants’ actions in severely limiting DACA recipients’ ability to receive

22 advance parole for educational or employment purposes also harms the State of California,

23 because it impacts, for example, the ability of students at California’s public universities to study

24 abroad, the ability of faculty at California public universities to travel internationally for

25 conferences and research, and the ability of California state employees to travel abroad for State

26 business.

27

40. In sum, Defendants’ actions limiting the period of deferred action available under

28 DACA, effectively denying advance parole for DACA recipients, and rejecting initial 12
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1 applications for DACA harm the State of California through their effects on California residents

2 with DACA, their families, and California businesses and institutions.

3

PLAINTIFF STATE OF MAINE

4

41. The State of Maine, represented by and through its Attorney General, is a

5 sovereign State of United States of America.

6

42. The Attorney General of Maine, Aaron M. Frey, is a constitutional officer with the

7 authority to represent the State of Maine in all matters and serves as its chief legal officer with

8 general charge, supervision, and direction of the State’s legal business. Me. Const. art. IX, § 11;

9 Me. Rev. Stat. tit. 5 § 191 et seq. The Attorney General’s powers and duties include acting on

10 behalf of the State and the people of Maine in the federal courts on matters of public interest. The

11 Attorney General has the authority to file suit to challenge action by the federal government that

12 threatens the public interest and welfare of Maine residents as a matter of constitutional, statutory,

13 and common law authority.

14

43. Maine is aggrieved by Defendants’ actions and has standing to bring this action

15 because of the injury to its State sovereignty caused by Defendants’ diminishment of DACA,

16 including immediate and irreparable injuries to its interests.

17

44. Maine is home to an estimated 50 DACA recipients. An additional 50 residents are

18 eligible for but not enrolled in DACA. As of July 2020, USCIS had accepted 135 renewal

19 applications for the DACA program in Maine. Ex. C, USCIS Numbers.

20

45. On a national basis, fifty-five percent of DACA recipients are employed.7

21 Applying the rate of 55% to the 50 DACA recipients in Maine, it is estimated that 27 DACA

22 recipients are employed in Maine.

23

46. Maine has an interest in hiring, training and retaining a qualified workforce. The

24 State has extended an employment offer to a DACA recipient, which has been accepted. Cutting

25 the renewal period for DACA recipients in half reduces the value of the State’s investments in

26

27

7 Jie Zong, et al., Migration Pol’y Inst., A Profile of Current DACA Recipients by

28 Education, Industry, and Occupation (Nov. 2017), https://tinyurl.com/ycxuhjru.

13

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1 hiring and training by increasing uncertainty as to this employee’s future employability, and that

2 of other potential state employees.

3

47. Maine will suffer economic harm from Defendants’ diminishment of DACA

4 protections in the Wolf Memorandum. DACA recipients average higher earning capacities than

5 their undocumented peers and are able to better contribute to the economy. Studies show that

6 after receiving DACA, many recipients purchase houses and cars for the first time, boosting the

7 economy and generating state and local tax revenues. According to one estimate, Maine will incur

8 $400,000 in economic losses over a ten-year period as a result of the limitations on DACA in the

9 Wolf Memorandum. See Regents III, 140 S. Ct. at 1914 (discussing potential loss in economic

10 activity from “excluding DACA recipients from the lawful labor force”).

11

48. Through this economic activity, DACA recipients contribute to state and local tax

12 revenues. See id. (discussing $1.25 billion annual loss in tax revenue to state and local

13 governments from rescission). The additional 50 Maine residents who are DACA-eligible but not

14 enrolled contribute over $178,600 in Maine state and local taxes annually. They contribute over

15 $41,800 in state and local taxes annually, bringing the total annual tax contributions of the 100

16 DACA-eligible Maine residents to over $220,400. According to one estimate, Maine state and

17 local governments stand to lose over $53,000 in tax revenues over ten years if DACA-eligible

18 individuals are denied the ability to receive employment authorization through DACA.

19

49. Shortening the work authorization period provided under DACA from two years to

20 one year will increase costs for employers. First, the decreased work authorization period will put

21 the “significant investments in hiring and training” DACA recipients that employers have made,

22 Regents I, 279 F. Supp. 3d at 1033, at risk of being lost after just one year. Second, the shortened

23 work authorization period will impose administrative costs on employers by requiring them to

24 verify DACA recipients’ employment authorization each year, rather than once every two years.

25 Third, given the lengthy multi-month processing times for DACA renewal requests, the more

26 compressed window of time for DACA recipients to seek renewal of their work authorization

27 under the Wolf and Edlow Memoranda increases the probability that some DACA recipients’

28 work authorization will lapse while timely renewal requests are pending, forcing employers to 14
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1 place employees on leave or terminate their employment and imposing additional costs to hire

2 and train replacements.

3

50. The reduced window of time for DACA recipients to seek renewal under the

4 Edlow Memorandum increases the probability that some DACA recipients’ work authorization

5 will lapse while renewal requests are pending in light of the often lengthy processing times for

6 such requests, which could force employers to place DACA recipients on unpaid leave or

7 terminate their employment.

8

51. As a result of losing employment, DACA recipients face the loss of employer-

9 based health insurance. Without employer-based benefits, more Maine residents are likely to

10 refrain from seeking needed medical care. As a result of forgoing treatment, including for

11 preventative purposes, these residents will impose higher healthcare costs on Maine.

12

PLAINTIFF STATE OF MARYLAND

13

52. The State of Maryland is a sovereign State of the United States of America.

14

53. The State is represented by and through the Attorney General of Maryland, Brian

15 Frosh, its chief legal officer with general charge, supervision, and direction of the State’s legal

16 business. The Attorney General’s powers and duties include acting on behalf of the State and the

17 people of Maryland in the federal courts on matters of public concern. Under the Constitution of

18 Maryland, and as directed by the Maryland General Assembly, the Attorney General has the

19 authority to file suit to challenge action by the federal government that threatens the public

20 interest and welfare of Maryland residents. Md. Const. art. V, § 3(a)(2); 2017 Md. Laws, Joint

21 Resolution 1.

22

54. Maryland is aggrieved by Defendants’ actions and has standing to bring this action

23 because of the injury to its State sovereignty caused by Defendants’ diminishment of DACA,

24 including immediate and irreparable injuries to its interests.

25

55. Maryland is home to an estimated 27,000 DACA-eligible residents.8 As of July

26 2020, USCIS had accepted 11,504 initial applications and 24,560 renewal applications for the

27

28

8 National and State Estimates, supra note 4.

15

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1 DACA program in Maryland. Ex. C, USCIS Numbers. Thus, Maryland is home to over 15,000

2 additional individuals who are eligible for DACA but would face automatic rejection of their

3 applications under the Wolf Memorandum.

4

56. According to one estimate, Maryland will suffer over $98.9 million in economic

5 losses over a ten-year period as a result of Defendants’ actions in denying DACA to new

6 applicants.

7

57. DACA-eligible individuals contribute more than $33.6 million per year in state

8 and local taxes. Maryland state and local governments stand to lose an estimated $12 million in

9 tax revenues over ten years if DACA-eligible individuals are denied the ability to receive

10 employment authorization through DACA.

11

58. Maryland has a cognizable interest in protecting the economic health and welfare

12 of its residents. More than 72% of Maryland’s undocumented immigrants aged 16 and older are

13 employed,9 and Maryland is home to an estimated 5,000 employed DACA recipients.10 DACA

14 recipients work for both large and small businesses, all of which are critical to the State’s

15 economic vitality. In addition, DACA recipients in Maryland work in a wide array of fields,

16 including healthcare, education, law, and social services.

17

59. Shortening the work authorization period provided under DACA from two years to

18 one year will increase costs for employers. First, the decreased work authorization period will put

19 the “significant investments in hiring and training” DACA recipients that employers have made,

20 Regents I, 279 F. Supp. 3d at 1033, at risk of being lost after just one year. Second, the shortened

21 work authorization period will impose administrative costs on employers by requiring them to

22 verify DACA recipients’ employment authorization each year, rather than once every two years.

23 Third, given the often lengthy multi-month processing times for DACA renewal requests, the

24 more compressed window of time for DACA recipients to seek renewal of their work

25

26

9 Migration Pol’y Inst., Profile of the Unauthorized Population: Maryland, https://tinyurl.com/y4hecbew.

27

10 Migration Pol’y Inst., National and State Estimates of Employed Workers among Current Deferred Action for Childhood Arrivals (DACA) Recipients (as of March 31, 2020),

28 https://tinyurl.com/y2wj65pf.

16

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1 authorization under the Wolf and Edlow Memoranda increases the probability that some DACA

2 recipients’ work authorization will lapse while timely renewal requests are pending, forcing

3 employers to place employees on leave or terminate their employment and imposing additional

4 costs to hire and train replacements.

5

60. As a result of losing employment, DACA recipients face the loss of employer-

6 based health insurance. Without employer-based benefits, more Maryland residents are likely to

7 refrain from seeking needed medical care. As a result of forgoing treatment, including for

8 preventative purposes, these residents will impose higher healthcare costs on Maryland.

9

61. Maryland also has an interest in hiring and training a qualified workforce. Both the

10 State and local jurisdictions employ DACA recipients, many of whom have specialized skills and

11 qualifications. Cutting the renewal period for DACA recipients in half reduces the value of the

12 State and local governments’ significant investments in hiring and training them by increasing

13 uncertainty as to their future employability.

14

62. The restrictions on DACA will adversely impact current DACA recipients enrolled

15 in colleges and universities. These students’ educational and employment plans could be

16 disrupted, if not aborted, by the Wolf Memorandum’s requirement to renew their DACA

17 protections on an annual basis, instead of every two years, and will risk lapses in their DACA

18 protections and work authorizations, making it more difficult or impossible for them to continue

19 their studies.

20

63. Disenrollment by DACA recipients will also harm Maryland’s public colleges and

21 universities. An estimated 27% of all university and college students in Maryland are first or

22 second-generation immigrants.11 The University System of Maryland has emphasized that the

23 DACA program is “critical to the growth and prosperity of our state and our nation” and “remains

24 a key component” of the University System’s “strategy to foster a highly skilled workforce that

25 will help attract and create jobs.”12 In 2011, Maryland passed a law allowing undocumented

26

11 Jeanne Batalova & Miriam Feldblum, Migration Pol’y Inst., Immigrant-Origin Students

27 in U.S. Higher Education: A Data Profile (Oct. 2020), https://tinyurl.com/y56bl3yp.

28

12 Univ. System of Md., Statement on Supreme Court Decision Regarding the Deferred

17

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1 students brought to the United States as children, or “Dreamers,” to receive in-state tuition breaks

2 at the State’s public institutions, and voters later approved the law in a referendum. 2011 Md.

3 Laws, Ch. 191. In the 2019-20 academic year, over 600 Dreamers were enrolled in Maryland

4 public colleges at in-state tuition rates.13 The restrictions on DACA will make it more difficult or

5 impossible for students to continue their studies, harming both the individual students as well as

6 their schools. Maryland’s public institutions will lose the diversity and enrichment this population

7 brings to the school community.

8

64. Defendants’ actions in severely limiting DACA recipients’ ability to receive

9 advance parole for educational or employment purposes also harms the State of Maryland,

10 because it impacts, for example, the ability of students at Maryland’s public universities to study

11 abroad, the ability of faculty at Maryland’s public universities to travel internationally for

12 conferences and research, and the ability of Maryland state employees to travel abroad for State

13 business.

14

65. DACA’s value to Maryland’s economy and its education system will be

15 diminished significantly, and the State and its residents will incur increased administrative and

16 other costs, due to limitations imposed under the Wolf and Edlow Memoranda, including denial

17 of DACA benefits to thousands of eligible individuals, a more compressed window of time for

18 DACA recipients to seek renewal of their work authorization, shortening of the work

19 authorization period provided under DACA from two years to one year, and rejection of pending

20 and future applications for advance parole.

21

PLAINTIFF STATE OF MINNESOTA

22

66. The State of Minnesota, represented by and through its Attorney General, is a

23 sovereign State of the United States of America.

24

67. Attorney General Keith Ellison is the chief legal officer of the State of Minnesota.

25 The Attorney General’s powers and duties include acting in federal court in matters of State

26 Action for Childhood Arrivals (DACA) Program (June 18, 2020),

https://www.usmd.edu/newsroom/news/2058.

27

13 Sec’y James D. Fielder, Md. Dep’t of Higher Educ., Letter to Senate President and

28 Speaker of the House of Delegates (Aug. 8, 2020).

18

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1 concern. Minn. Stat. § 8.01.

2

68. Minnesota is aggrieved by the actions of Defendants and has standing to bring this

3 action because of the injury to its state sovereignty caused by Defendants’ rescission of DACA,

4 including immediate and irreparable injuries to its interests.

5

69. Minnesota is home to an estimated 12,000 DACA-eligible residents.14 As of July

6 2020, USCIS had approved 6,500 initial DACA applications from individuals residing in

7 Minnesota. Ex. C, USCIS Numbers. Thus, Minnesota is home to over 5,000 additional

8 individuals who are eligible for DACA but would face automatic rejection of their applications

9 under the Wolf Memorandum.

10

70. Minnesota has cognizable interests in protecting the health and well-being, both

11 economic and physical, of all its residents.

12

71. The new limitations on the DACA program will harm Minnesota’s interests in, and

13 expenditures on, its educational priorities. Minnesota seeks to extend educational opportunities to

14 all of its residents, regardless of immigration status. In 2013, the Minnesota Legislature passed

15 the Prosperity Act (commonly referred to as the “Minnesota Dream Act”). Prosperity Act, ch. 99,

16 art. 4, 2013 Minn. Laws. This legislation changed the definition of a resident student under

17 Minnesota law to include DACA recipients and other individuals without lawful immigration

18 status. See Minn. Stat. § 135A.043. Minnesota has chosen to extend benefits to DACA recipients,

19 including eligibility for resident tuition rates. Id. Importantly, the Minnesota Dream Act’s

20 inclusion of DACA recipients as Minnesota residents for postsecondary education purposes has

21 made DACA recipients eligible for state grants, aid, and scholarships. See Minn. Stat. Ch. 136A.

22 Minnesota has further invested in the education of individuals holding DACA by extending

23 student child care grants, teacher candidate grants, and student loan programs to DACA

24 recipients. Minn. Stat. §§ 136A.125, .1275, .15-.1795.

25

72. Minnesota has invested in supporting post-secondary students with DACA. The

26 Minnesota Office of Higher Education (“OHE”) is a state agency providing students with

27

28

14 National and State Estimates, supra note 4.

19

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1 financial aid programs and other assistance to gain access to postsecondary education. OHE

2 proactively works to improve access to the state educational benefits made available to DACA

3 recipients through the Minnesota Dream Act, including through a state financial aid application

4 specific to DACA recipients and undocumented students.

5

73. Minnesota’s state colleges and universities have likewise invested in financial aid

6 and other programs to support DACA recipients. These investments and expenditures are

7 consistent with the interests of Minnesota’s state educational institutions—and those of the State

8 itself—in diversity and nondiscrimination. See Regents III, 140 S. Ct. at 1914 (discussing harms

9 to “schools where DACA recipients study”). The Wolf Memorandum’s reduction of students’

10 DACA protection from two years to one and the inevitable lapses in renewal of their DACA

11 protections and work authorizations will harm these investments and interests by making it more

12 difficult or impossible for impacted students to continue their studies.

13

74. Minnesota State Colleges and Universities (“Minnesota State”) is the fourth largest

14 system of two-year colleges and four-year universities in the nation. Minnesota State does not

15 include the University of Minnesota. Minnesota State is comprised of 30 two-year and 7 four-year

16 state colleges and universities with 54 campuses located in 47 Minnesota communities. The

17 diversity of Minnesota State’s student body is one of its greatest assets. Of the credit students

18 system-wide, 27% are students of color, 56% are women, 4% are students with disabilities, and

19 30% are PELL eligible. In addition, 45.8% are the first in their families attending higher

20 education. Minnesota State is a state entity governed by a 15-member Board of Trustees.

21 Minnesota State’s operating statute is set forth in Minnesota Statutes Chapter 136F. In fiscal year

22 2017, Minnesota State contributed over $8 billion to the State’s economy. Students who are

23 DACA recipients or who otherwise meet the qualifications for DACA bring important vibrancy

24 and perspective to Minnesota State’s campuses that add to the diversity of thought and experience

25 critical to fostering the type of learning environments that Minnesota State students need and

26 deserve. Minnesota State’s campuses are critical to the economic success of Minnesota’s regional

27 and local economies.

28

75. OHE maintains information regarding the post-secondary students in Minnesota

20

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1 who have applied for state educational benefits pursuant to the Minnesota Dream Act. According

2 to OHE’s data, 147 students attending the colleges and universities of Minnesota State are DACA

3 recipients, and an additional 45 DACA recipients attend the separate University of Minnesota

4 system.15 Other students attending Minnesota State and the University of Minnesota would be

5 eligible to apply for DACA and would like to pursue DACA benefits but have been prevented

6 from doing so because of the Wolf Memorandum and prior DHS memoranda, which have barred

7 the acceptance of new initial applications for DACA.

8

76. The Wolf Memorandum’s continued denial of DACA to individuals in Minnesota

9 who otherwise meet the program’s criteria also makes it difficult or impossible for thousands of

10 young people to enter the State’s post-secondary institutions.

11

77. The State of Minnesota and its public employers also employ DACA recipients.

12 DACA recipients often possess valuable skills, including fluency in foreign languages, that can be

13 difficult for employers to replace. As a result of the Wolf Memorandum’s limitations, the State of

14 Minnesota is only assured that DACA recipient employees are eligible to work legally for one

15 year, rather than two years, and the State of Minnesota has lost the opportunity to employ

16 individuals who would have otherwise been eligible to submit an initial DACA application.

17

78. Minnesota faces economic harm due to the diminishment of DACA protections in

18 the Wolf Memorandum. As noted above, immigration is an important economic driver in

19 Minnesota. Minnesota is home to businesses ranging from 16 companies listed in the Fortune 500

20 to small businesses struggling to survive through the COVID-19 pandemic. Estimates of DACA

21 recipients employed within the State of Minnesota range from 3,000 individuals to over 5,400,

22 and their contribution to Minnesota’s GDP is estimated at over $376 million annually.

23

79. As these economic figures reflect, and as recognized by the Supreme Court,

24 DACA recipients make significant contributions to state and local tax revenues. Indeed, the State

25

15 OHE verifies an individual’s DACA status as part of its administration of the state

26

benefits made available to DACA recipients pursuant to the Minnesota Dream Act. It should be noted that these statistics reflect only those DACA recipients who have applied for the state

27

educational benefits made available through the Minnesota Dream Act. DACA recipients attending Minnesota State or the University of Minnesota who have not applied for Minnesota

28 Dream Act benefits are not included in these statistics.

21

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1 of Minnesota stands to lose an estimated $7,444,000 in state and local tax contributions over ten

2 years if DACA-eligible individuals are denied the ability to receive employment authorization

3 through DACA.

4

80. Shortening the work authorization period provided under DACA from two years to

5 one year will increase costs for public employers in Minnesota. First, a decreased work

6 authorization period puts the significant investments in hiring and training DACA recipients that

7 employers have made at risk of being lost after just one year. Second, the shortened work

8 authorization period will impose administrative costs on employers by requiring them to verify

9 DACA recipients’ employment authorization yearly rather than every two years. Third, given the

10 multi-month processing times for DACA renewal requests, the more compressed window of time

11 for DACA recipients to seek renewal of their work authorization under the Wolf and Edlow

12 Memoranda increases the probability that some DACA recipients’ work authorization will lapse

13 while timely renewal requests are pending, forcing employers to place employees on leave or

14 terminate their employment and imposing additional costs to hire and train replacements.

15

81. Large companies in Minnesota, including Target and Best Buy, have been vocal in

16 support of DACA recipients, urging the President to retain DACA and not undermine its

17 protections.16 Public employers in Minnesota also have an interest in ensuring that they have

18 access to the best possible employees—including current and prospective DACA recipients—as

19 well as fully realizing their investments in the employees they recruit, hire, and train. DACA

20 recipients are employed by the State and other public employers across multiple entities and

21 agencies in Minnesota. These employees will be affected by the DACA limitations imposed by

22 Defendants.

23

82. Defendants’ actions in severely limiting DACA recipients’ ability to receive

24 advance parole for educational or employment purposes also harms the State of Minnesota,

25 because it impacts, for example, the ability of Minnesota’s public university students to study

26 abroad and the ability of Minnesota’s public employees to travel abroad for any business-related

27

28

16 Coal. for the Am. Dream, supra note 6.

22

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1 purpose.

2

83. Defendants’ actions limiting the period of deferred action available under DACA,

3 essentially terminating advance parole for DACA recipients, and denying initial applications for

4 DACA harm the State of Minnesota through their effects on Minnesota residents, families,

5 businesses, and institutions.

6

DEFENDANTS

7

84. Defendant DHS is a federal cabinet agency responsible for implementing the

8 DACA program. DHS is a department of the Executive branch of the United States government,

9 and is an agency within the meaning of 5 U.S.C. § 552(f)(1).

10

85. Defendant Chad F. Wolf is the purported Acting Secretary of Homeland Security.

11 He is purportedly responsible for implementing and enforcing immigration laws, and oversees

12 DHS. He is the author of the July 28, 2020 memorandum restricting DACA. He is sued in his

13 purported official capacity.

14

86. Defendant USCIS is a component of Defendant DHS responsible for

15 implementing the DACA program. USCIS is the federal agency that oversees lawful immigration

16 to the United States and is an agency within the meaning of 5 U.S.C. § 552(f)(1).

17

87. Defendant Joseph Edlow is the purported Deputy Director for Policy of USCIS.

18 He is the author of the August 21, 2020 memorandum implementing the Wolf Memorandum. He

19 is sued in his purported official capacity.

20

88. Defendant United States of America includes all government agencies and

21 departments responsible for the implementation of the DACA program, including any actions to

22 restrict, limit, or rescind the DACA program.

23

ALLEGATIONS

24 I. ESTABLISHMENT OF DACA

25

89. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a

26 memorandum establishing the DACA program. Ex. D, Memorandum from Janet Napolitano,

27 Sec’y of DHS, to David V. Aguilar, Acting Comm’r, U.S. Customs and Border Protection

28 (“CBP”), et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the 23
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1 United States as Children (June 15, 2012) (Napolitano Memorandum). Under the Napolitano

2 Memorandum, individuals who were brought to the United States as children and met specific

3 criteria could request deferred action for a period of two years, subject to renewal.

4

90. The Napolitano Memorandum systematized the application of existing

5 prosecutorial discretion for any applicant who satisfied each of the following criteria:

6

a. Arrived in the United States under the age of sixteen;

7

b. Had continuously resided in the United States for at least five years preceding the

8 date of the memorandum and was present in the United States on the date of the memorandum;

9

c. Was currently in school, had graduated from high school, had obtained a general

10 education development certificate, or was an honorably discharged veteran of the Coast Guard or

11 Armed Forces of the United States;

12

d. Had not been convicted of a felony offense, a significant misdemeanor offense,

13 multiple misdemeanor offenses, or otherwise posed a threat to national security or public safety;

14 and

15

e. Was not above the age of thirty.

16

Id. at 1.

17

91. According to the Napolitano Memorandum, DACA’s purpose was to ensure that

18 DHS’s resources were appropriately allocated to individuals who were higher priorities for

19 immigration enforcement. In that memorandum, Secretary Napolitano recognized that there are

20 “certain young people who were brought to this country as children and know only this country as

21 home” and that immigration laws are not “designed to remove productive young people to

22 countries where they may not have lived or even speak the language.” Id. at 1-2.

23 II. DACA PROVIDES NUMEROUS BENEFITS

24

92. DACA recipients are provided with numerous benefits. Most importantly, as

25 individuals who are low priorities for enforcement, DHS will not place them in removal

26 proceedings or remove them based solely on their immigration status during the designated period

27 of their deferred action. See id. at 2-3.

28 24
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1

93. Pursuant to a separate regulation promulgated before DACA was adopted, DACA

2 recipients, like other individuals granted deferred action, are granted eligibility to receive

3 employment authorization. See 8 C.F.R. § 274a.12(c)(14).

4

94. Also pursuant to a separate statutory and regulatory scheme, DACA opened the

5 door for DACA recipients to travel for important purposes. DACA recipients were allowed to

6 request—and routinely received—advance parole to legally return to the United States after brief

7 trips abroad for limited purposes, such as to visit an ailing relative, attend funeral services for a

8 family member, seek medical treatment, or further educational or employment purposes. 8 U.S.C.

9 § 1182(a)(9)(B)(i); 8 C.F.R. § 212.5(f). Leisure travel was not permitted.

10

95. Separate statutory and regulatory authority also permits DACA recipients to

11 receive certain public benefits, including federal Social Security, retirement, and disability

12 benefits. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d); 8 C.F.R. § 1.3(a)(4)(vi); 42 C.F.R.

13 § 417.422(h). DACA recipients are also eligible for state benefits; for example, in California

14 DACA recipients are eligible for income assistance.

15

96. DACA recipients are able to secure equal access to other benefits and

16 opportunities on which Americans depend, including opening bank accounts, obtaining credit

17 cards, starting businesses, purchasing homes and cars, and conducting other aspects of daily life

18 that are otherwise often unavailable for undocumented immigrants.

19

97. DACA fundamentally changed the lives of DACA recipients. They have obtained

20 employment, sought higher education, pursued career paths, and become fully contributing

21 members of society who pay taxes and participate in civic life.

22

98. Many DACA recipients have also started families here; there are “200,000 U.S.-

23 citizen children” whose parents are legally in the United States thanks to DACA. Regents III, 140

24 S. Ct. at 1914.

25

99. The federal government has recognized that the United States “continue[s] to

26 benefit . . . from the contributions of those young people who have come forward and want

27 nothing more than to contribute to our country and our shared future.” Ex. E, Letter from Jeh

28 Charles Johnson, DHS Sec’y, to Rep. Judy Chu, U.S. H. Rep. (CA-27) (Dec. 30, 2016). In fact, 25
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1 shortly after the attempted rescission in 2017, President Trump tweeted regarding DACA

2 recipients: “Does anybody really want to throw out good, educated and accomplished young

3 people who have jobs, some serving in the military? Really!”.17 DACA recipients’ contributions

4 to society have also generated benefits to many sectors of the Plaintiff States’ economies. See,

5 e.g., Regents III, 140 S. Ct. at 1914.

6 III. DHS’S ARBITRARY AND CAPRICIOUS ATTEMPT TO RESCIND DACA IN 2017

7

100. On September 5, 2017, then-Acting Secretary of Homeland Security Elaine Duke

8 issued a memorandum rescinding DACA. Ex. F, Memorandum from Elaine C. Duke, Acting

9 Sec’y of Homeland Security to James W. McCament, Acting Dir., USCIS, et al., Rescission of the

10 June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to

11 Individuals Who Came to the United States as Children” (Sept. 5, 2017) (Duke Memorandum).

12 Pursuant to that memorandum, DHS immediately began rejecting all new initial applications for

13 DACA, immediately ceased granting advance parole, and declared that it would only issue

14 renewals for current recipients whose DACA protection expired on or before March 5, 2018, and

15 who applied for renewal by October 5, 2017.

16

101. Acting Secretary Duke asserted that DACA “should be terminated” based on

17 consideration of two factors: (1) the appellate rulings in a case regarding a 2014 memorandum

18 from then-DHS Secretary Johnson that expanded DACA and created a new program, Deferred

19 Action for Parents of Americans and Lawful Permanent Residents (DAPA), Texas v. United

20 States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court sub nom. United States v.

21 Texas, 136 S. Ct. 2271 (2016); and (2) a September 4, 2017, letter from then-Attorney General

22 Jefferson B. Sessions claiming that DACA was “unconstitutional” and was invalid for the same

23 reasons the Fifth Circuit struck down DAPA in the Texas case. Ex. G, Letter from Jefferson B.

24 Sessions to Duke (Sept. 4, 2017) (Sessions Letter). Other than these conclusory assertions of

25 DACA’s legal infirmity, Acting Secretary Duke failed to offer any explanation of why she

26 believed that rescinding DACA was warranted.

27

17 Donald J. Trump (@realDonaldTrump), Twitter (Sept. 24, 2017, 3:28 a.m.)

28 https://tinyurl.com/y63m36ez.

26

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1

102. On September 11, 2017, Plaintiff States filed a complaint with this Court,

2 requesting that it invalidate the Duke Memorandum on a number of grounds, including that

3 DHS’s action was arbitrary and capricious in violation of the APA. The States and other plaintiffs

4 moved for a preliminary injunction, which this Court granted and the Ninth Circuit affirmed. See

5 Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018),

6 aff’d, 908 F.3d 476 (9th Cir. 2018) (Regents II), rev’d in part, vacated in part sub nom. Dep’t of

7 Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020). On June 22, 2020, the

8 Supreme Court affirmed a decision by the district court for the District of Columbia vacating the

9 Duke Memorandum, holding that the action was arbitrary and capricious in violation of the APA.

10 Regents III, 140 S. Ct. at 1916.18

11 IV. DEFENDANTS’ RECENT ARBITRARY AND CAPRICIOUS ACTIONS DIMINISHING

12

DACA PROTECTIONS

13

103. After the Supreme Court upheld the vacatur of the Duke Memorandum, on June

14 30, 2020, Attorney General William Barr withdrew the Sessions Letter in a letter to Defendant

15 Wolf, also stating that he had requested the Office of Legal Counsel at the U.S. Department of

16 Justice to withdraw earlier guidance that it had provided to DHS regarding DACA. Ex. H, Letter

17 from William P. Barr to Chad F. Wolf (June 30, 2020). Attorney General Barr expressed no

18 opinion as to the legality of DACA, but indicated that he wished to remove any determination that

19 might constrain Defendant Wolf’s discretion in considering “whether and how to rescind

20 DACA.” Id. Attorney General Barr stated that he wished “to wipe the slate clean to make clear

21 beyond doubt that [Defendant Wolf was] free to exercise [his] own independent judgment in

22 considering the full range of legal and policy issues implicated by a potential rescission or

23 modification of DACA.” Id.

24

104. On July 28, 2020, Defendant Wolf issued a memorandum announcing that DHS

25 would limit the period of deferred action and work authorization granted under DACA to one

26

18 During the pendency of this litigation, then-DHS Secretary Kirsten Nielsen issued a

27

memorandum purporting to “provid[e] a fuller explanation” of DHS’s rescission decision. Regents III, 140 S. Ct. at 1904. The Supreme Court held that this memorandum was an

28 “impermissible post hoc rationalization[]” and thus not properly before the Court. Id. at 1909.

27

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1 year, accept no new applications for DACA, reject any pending initial applications for DACA,

2 and reject all requests for advance parole absent exceptional circumstances. Ex. A, Wolf Mem.

3 The Wolf Memorandum indicates that DHS made these “immediate changes” to “facilitate

4 [Defendant Wolf’s] thorough consideration of how to address DACA in light of the Supreme

5 Court’s decision,” id. at 1, as well as “mitigate [Defendant Wolf’s] concerns” about DACA

6 pending his reconsideration of the policy as a whole, id. at 5.

7

105. While only making passing mention of “significant questions of law and legal

8 policy,” id. at 4—all but abandoning the concerns about legality that undergirded the Duke

9 Memorandum—the Wolf Memorandum identifies several “enforcement policy” concerns that

10 Defendant Wolf asserts could warrant a full rescission of DACA. However, the policy concerns

11 identified by Defendant Wolf fail to provide a reasoned basis for the changes to DACA policy

12 and practice in the Wolf Memorandum.

13

106. First, Defendant Wolf asserts that rescinding DACA might “create a more pressing

14 need for Congress to decide whether it wants to address” the concerns of DACA-eligible

15 individuals as well as “other efforts to reform our immigration system in a manner that advances

16 the national interest.” Id. at 4-5. The Executive’s desire to place political pressure on a co-equal

17 branch of government to enact immigration reforms—including, apparently, changes to the

18 immigration system unrelated to DACA—is not a rational basis for agency action impacting the

19 lives of hundreds of thousands of DACA recipients, and those of their families, employers,

20 schools, and communities. Further, even assuming that this is a legitimate rationale, Defendant

21 Wolf has not explained how the measures outlined in his memorandum (e.g., limiting renewals of

22 deferred action and work authorization to one year, rather than two years), mitigate his asserted

23 policy concern that Congress, not the executive, should enact policies like DACA.

24

107. Defendant Wolf further claims that he has “reservations as a matter of policy about

25 setting out a list of detailed criteria, and maintaining a formal process, for non-enforcement” and

26 claims that he is “concerned that doing so may tilt the scales in deciding which aliens should

27 receive deferred action and may inhibit individualized consideration of each case, at least for a

28 non-enforcement policy of this scale.” Id. at 5. Defendant Wolf’s cursory discussion is 28
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1 unsupported by any data or other supporting evidence to justify imposing the limitations on

2 DACA contained in the Wolf Memorandum. This brief discussion cannot pass muster under the

3 APA’s requirement for “reasoned analysis.” Regents III, 140 S. Ct. at 1913. This is particularly

4 true given the robust precedent of DHS and its predecessor agencies’ use of deferred action for

5 decades, including policies that could have impacted tens or hundreds of thousands of immigrants

6 such as the Emergency Program for Hungarian Refugees and Family Fairness Program. See

7 Regents I, 279 F. Supp. 3d at 1021–22; Regents II, 908 F.3d at 488–89.

8

108. Defendant Wolf also advances a concern that the existence of DACA encourages

9 “illegal immigration” in general and of children specifically. Wolf Mem. at 5. However, the Wolf

10 Memorandum contains no evidence suggesting that the existence of DACA has affected rates of

11 migration either of children or in general. Indeed, as Defendant Wolf notes, children entering the

12 United States today are ineligible for DACA, id. at 5; individuals must have lived in the United

13 States since 2007 to be eligible. Again, Defendant Wolf also fails to explain how limiting

14 renewals of deferred action and work authorization to one year, rather than two years, mitigates

15 this asserted policy concern.

16

109. Moreover, in deciding to limit the DACA renewal period to one year, Defendant

17 Wolf failed to consider important aspects of the problem at issue. These include the fact that (1)

18 many DACA recipients seeking renewals already face lengthy delays in processing of their

19 applications, and effectively doubling USCIS’s workload in this regard by reducing renewal times

20 from two years to one will only exacerbate this problem; and (2) effectively doubling the fees for

21 renewal requests will impose a significant financial burden on many DACA recipients. While

22 Defendant Wolf briefly acknowledges that “shortening renewal periods . . . will increase[e] the

23 total amount of renewal fees that an alien will be required to pay over a multi-year period,” id. at

24 6, he fails to address this issue other than to suggest that “DHS personnel should consider whether

25 it is possible to reduce renewal fees during this interim period of reconsideration.” Id. at 6-7.

26

27

28 29
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1 Indeed, there is no indication that DHS has taken any steps to reduce the $495 fee, which USCIS

2 claims “cannot be waived.”19

3

110. Additionally, Defendant Wolf failed to consider other important aspects of the

4 problem. These include the reliance interests of third parties, including state and local government

5 agencies that employ DACA recipients, and the harms that Defendants’ actions impose on those

6 third parties. See Regents III, 140 S. Ct. at 1913–14 (where longstanding policies have

7 engendered reliance interests, such as the reliance interests of “employers who have invested time

8 and money in training,” it is arbitrary and capricious to ignore them). Defendant Wolf asserts that

9 such third parties will “continue to receive the same derivative benefits” under a one-year renewal

10 period. Ex. A, Wolf Mem., at 6. This ignores the important fact that for an employer, the certainty

11 that an employee is eligible to work legally for two years, rather than just one year, is highly

12 valuable; employers have “invested substantial resources in hiring and training” such employees,

13 and would “need to expend additional resources to hire and train replacements.” Regents I, 279 F.

14 Supp. 3d at 1033.

15

111. Defendant Wolf also fails to consider other harms that this change will cause to

16 third parties, including state agencies employing DACA recipients. Employers incur

17 administrative costs and burdens to verify DACA recipients’ continuing eligibility for

18 employment. Cutting the renewal period in half will in turn double these costs to third parties, as

19 employers now incur these costs every year rather than every two years. Further, the shortened

20 renewal period, combined with the months-long processing times for DACA renewal requests,

21 increases the probability that DACA recipients’ work authorizations will lapse. This could force

22 employers to terminate DACA recipients’ employment and to incur additional costs to hire and

23 train their replacements, or to place DACA recipients on administrative leave and lose these

24 employees’ valuable services during their period of ineligibility.

25

112. On August 21, 2020, Defendant Joseph Edlow, purported Deputy Director for

26

19 USCIS, I-821D, Consideration of Deferred Action for Childhood Arrivals,

27

https://www.uscis.gov/i-821d (last reviewed/updated: Aug. 4, 2020). The Edlow Memorandum only acknowledges that “USCIS is currently considering the merits and feasibility of reducing

28 DACA-related fees.” Ex. B, Edlow Mem., at 5-6.

30

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1 Policy for U.S. Citizenship and Immigration Services, issued a memorandum implementing the

2 Wolf Memorandum. Ex. B, Edlow Mem. The Edlow Memorandum (1) establishes a policy that

3 “USCIS will generally reject DACA renewal requests received more than 150 days prior to the

4 expiration of the DACA recipients’ current DACA validity period”; (2) states that USCIS will

5 reject all advance parole applications filed before the Wolf Memorandum; and (3) provides that,

6 in most instances, USCIS will reject advance parole requests to travel abroad for educational or

7 employment-related purposes, or to visit family members. Id.

8

113. The Edlow Memorandum’s provision that USCIS will reject DACA renewal

9 requests received more than 150 days (five months) prior to the expiration of the DACA

10 recipients’ current DACA validity period will create serious problems for many DACA

11 recipients. Current USCIS estimates show that DACA renewal processing times vary widely,

12 between 2 months to 14 months. For example, as of October 29, 2020, the USCIS Vermont

13 Processing Center was processing DACA renewal applications from September 3, 2019, and

14 estimated that a DACA renewal application would be processed in 11 to 14 months.20 Reflecting

15 this lengthy process, up to 11 percent of respondents to recent surveys of DACA recipients

16 indicated that it took longer than 150 days for their DACA renewal application to be approved.21

17 Further, on August 25, 2020, USCIS announced plans to undertake “[a]ggressive spending

18 reduction measures,” which “will impact all agency operations,” including “longer case

19 processing times.”22 Given the shortened eligibility period, USCIS’s already lengthy processing

20 times, the expected further delays in processing times, and the fact that USCIS will reject

21 applications submitted more than 150 days before a DACA recipient’s grant expires, some

22 recipients will face lapses in the renewal of their DACA grants and accompanying work

23 authorizations.

24

114. Defendants failed entirely to consider this important aspect of the problem,

25

20 USCIS, Check Case Processing Times (I-821D Consideration for Deferred Action for

26 Childhood Arrivals), https://egov.uscis.gov/processing-times/.

27

21 Wong, supra note 2 (8.5 percent); Adams, supra note 1 (11 percent). 22 USCIS, USCIS Averts Furlough of Nearly 70% of Workforce (Aug. 25, 2020),

28 https://tinyurl.com/y45yeejf.

31

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1 ignoring altogether that their actions will undermine the purpose and value of many DACA

2 recipients’ work authorizations by causing those authorizations to lapse (and, in turn, resulting in

3 termination or unpaid administrative leave for DACA recipients).

4 V. DEFENDANT WOLF’S APPOINTMENT IS CONTRARY TO FEDERAL LAW AND THE U.S.

5

CONSTITUTION

6

115. Defendant Wolf issued the Wolf Memorandum in exercise of the functions and

7 duties of the office of the Secretary of Homeland Security. However, Defendant Wolf was not

8 authorized to exercise such functions and duties under the U.S. Constitution, the Homeland

9 Security Act, or the Federal Vacancies Reform Act. Accordingly, the Wolf Memorandum is

10 without force or effect, may not be ratified, and was issued in excess of statutory authority or

11 otherwise not in accordance with law under the APA.

12

A. Defendant Wolf’s Purported Service as Acting Secretary Violates the

Appointments Clause 13

14

116. The Appointments Clause of the U.S. Constitution requires that principal officers

15 of the United States be appointed by the President “by and with the Advice and Consent of the

16 Senate.” U.S. Const. art. II, § 2, cl. 2. The Appointments Clause is a critical element of the U.S.

17 Constitution’s separation of powers. The “advice and consent” requirement is “an excellent check

18 upon a spirit of favoritism in the President” and “the necessity of [the Senate’s] co-operation in

19 the business of appointments will be a considerable and salutary restraint upon the conduct of”

20 the President. The Federalist No. 76 (Alexander Hamilton). “The Framers understood . . . that by

21 limiting the appointments power, they could ensure that those who wielded it were accountable to

22 political force and the will of the people.” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868,

23 884 (1991).

24

117. DHS is an Executive Department and the Secretary of Homeland Security is a

25 principal officer who must be appointed by the President by and with the advice and consent of

26 the Senate under both the Appointments Clause and federal statute. 6 U.S.C. § 112(a)(1). Such

27 offices are commonly known as “presidentially appointed, Senate-confirmed” (PAS) offices.

28

118. Despite this, there has not been a Senate-confirmed Secretary of Homeland

32

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1 Security since the resignation of Secretary Kirstjen Nielsen on or about April 10, 2019, nearly 19

2 months ago.

3

119. A number of other DHS offices are also PAS offices, including the Deputy

4 Secretary, the Under Secretary for Management, the General Counsel, the Commissioner of CBP,

5 the Director of USCIS, and the Director of Immigration and Customs Enforcement (ICE). 6

6 U.S.C. § 113(a)(1).

7

120. Currently, the offices of Deputy Secretary, the Under Secretary for Management,

8 the General Counsel, the Commissioner of CBP, the Director of USCIS, and the Director of ICE

9 are all vacant, with various individuals purporting to exercise the functions and duties of those

10 offices under the title of “Senior Official Performing the Duties of” the offices. Nearly all of these

11 offices have been vacant for more than a year. The office of Deputy Secretary has been vacant

12 since April 14, 2018. The office of Under Secretary for Management has been vacant since April

13 10, 2019. The office of General Counsel has been vacant since September 17, 2019. The office of

14 Director of USCIS has been vacant since June 1, 2019. The office of Commissioner of CBP has

15 been vacant since November 13, 2019. The office of Director of ICE has been vacant since

16 January 20, 2017, the first day of President Trump’s presidency.

17

121. Upon information and belief, Congress has not provided for the position of “Senior

18 Official Performing the Duties” of any executive office in any statute.

19

122. President Trump has repeatedly expressed his intention to circumvent the

20 requirements and accountability of the Appointments Clause by appointing acting officials. The

21 President has stated that:

22

a. “Well, I’m in no hurry. I have ‘acting’ . . . I sort of like ‘acting.’ It gives me more

23 flexibility; do you understand that? I like ‘acting.’”23

24

b. “It’s easier to make moves when they’re acting . . . I like acting because I can

25 move so quickly. It gives me more flexibility.”24

26

23 Felicia Sonmez, Trump Says He’s ‘in No Hurry’ to Replace Acting Cabinet Members,

27 Wash. Post (Jan. 6, 2019), https://tinyurl.com/y7v5fme3.

28

24 Transcript: President Trump on “Face the Nation,” CBS News (Feb. 3, 2019),

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1

c. “Acting gives you much greater flexibility. A lot easier to do things.”25

2

d. “I’m generally not going to make a lot of the appointments that would normally

3 be—because you don’t need them.”26

4

123. By holding PAS positions, including the office of Secretary of Homeland Security,

5 vacant for lengthy periods of time, while relying on acting officials to perform the functions and

6 duties of those offices, Defendants have violated the Appointments Clause. See United States v.

7 Eaton, 169 U.S. 331, 333 (1898) (acting officials may be designated only “for a limited time, and

8 under special and temporary conditions”).

9

124. Defendant Wolf purports to serve as Acting Secretary pursuant to a designation by

10 CBP Commissioner Kevin McAleenan, who was at the time of the designation purporting to

11 serve as Acting Secretary of Homeland Security.

12

125. Although the Appointments Clause requires that principal officers be appointed by

13 the President with the advice and consent of the Senate, the Clause permits Congress to vest the

14 appointment of “inferior Officers . . . in the President alone, in the Courts of Law, or in the Heads

15 of Departments.” U.S. Const. art. II, § 2, cl. 2. Acting officers are designated pursuant to this

16 exception, rendering them inferior officers within the meaning of the Appointments Clause.

17 United States v. Smith, 962 F.3d 755, 765 (4th Cir. 2020) (noting “the basic principle that acting

18 heads of departments are not principal officers because of the temporary nature of the office”).

19 Inferior officers lack the authority under the Appointments Clause to appoint other inferior

20 officers; that power is reserved for the President, the courts, or Heads of Departments pursuant to

21 a congressional authorization.

22

126. Because Commissioner McAleenan was merely purportedly the Acting Secretary

23 of Homeland Security when he purported to amend the order of succession as described below, he

24 was an inferior officer, and not a Head of Department. Accordingly, he lacked constitutional

25 https://tinyurl.com/y8l38g72.

26

25 Editorial Board, An Administration of Temps, Bloomberg Opinion (July 25, 2019),

https://tinyurl.com/yyuz3nzb.

27

26 Randall Lane, Inside Trump’s Head: An Exclusive Interview with the President, and the

28 Single Theory That Explains Everything, Forbes (Oct. 10, 2017), https://tinyurl.com/y5mlmxbn.

34

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1 authority to appoint inferior officers, and his purported amendment of the order of succession to

2 designate Defendant Wolf as Acting Secretary of Homeland Security violated the Appointments

3 Clause of the U.S. Constitution.

4

127. As of July 28, 2020, Defendant Wolf had been neither nominated nor confirmed as

5 Secretary of Homeland Security. On August 25, 2020, President Trump announced his intention

6 to nominate Defendant Wolf to the position of Secretary of Homeland Security via Twitter.27 The

7 nomination of Defendant Wolf was submitted to the Senate on September 10, 2020.

8

B. Defendant Wolf’s Purported Service as Acting Secretary Violates the

FVRA and HSA. 9

10

128. Congress has recognized that while the nomination and confirmation process

11 proceeds, someone must be authorized to act to ensure that federal agencies continue to function.

12 To that end, Congress enacted the Federal Vacancies Reform Act (“FVRA”). In enacting the

13 FVRA, Congress sought to safeguard its authority under the Appointments Clause to advise and

14 consent to appointments. Nat’l Lab. Rel. Bd. v. SW General, Inc., 137 S. Ct. 929, 936 (2017).

15

129. The FVRA limits who may serve as an acting official if “an officer of an

16 Executive Agency . . . whose appointment is required to be made by the President, by and with

17 the advice and consent of the Senate . . . resigns.” 5 U.S.C. § 3345(a). Although the default rule is

18 that the “first assistant” will take on the acting role, the FVRA permits the President to select a

19 Senate-confirmed appointee or certain agency employees instead. 5 U.S.C. § 3345(a).

20

130. The FVRA provides that the President may direct a person to fill a vacant principal

21 office in an acting capacity for no more than 210 days from the date of the vacancy, the

22 submission of a nomination for the office, or from the rejection of a nomination. 5 U.S.C.

23 §§ 3345(a)(2), 3346. Once the time period runs out, “the office shall remain vacant” except in

24 certain limited circumstances not applicable here. 5 U.S.C. § 3348(b)(1).

25

131. The FVRA is “the exclusive means for temporarily authorizing an acting official

26 to perform the functions and duties of any office of an Executive agency . . . for which

27

27 Donald J. Trump (@realDonaldTrump), Twitter (Aug. 25, 2020, 9:30 a.m.)

28 https://tinyurl.com/y26476js.

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1 appointment is required to be made by the President, by and with the advice and consent of the

2 Senate, unless . . . a statutory provision expressly . . . designate[s] an officer or employee to

3 perform the functions and duties of a specific office temporarily in an acting capacity.” 5 U.S.C.

4 § 3347(a).

5

132. The Homeland Security Act (“HSA”) expressly designates a line of succession in

6 the event that the Secretary of Homeland Security is unavailable to exercise the office. In the

7 event of a vacancy, the duties of the Secretary are to be fulfilled first by the Deputy Secretary of

8 Homeland Security, who is designated as the Secretary’s first assistant for the purposes of the

9 FVRA. 6 U.S.C. § 113(a)(1)(A). Then, if the office of Deputy Secretary is likewise vacant, the

10 duties of the Secretary are to be fulfilled by the Under Secretary for Management. 6 U.S.C.

11 § 113(g)(1). The Secretary may designate a further order of succession if both of these offices are

12 vacant. 6 U.S.C. § 113(g)(2).

13

133. In February 2019, then-Secretary Nielsen designated an order of succession in the

14 event of a vacancy resulting from the resignation of the Secretary of Homeland Security. That

15 order of succession was never properly amended to permit either Defendant Wolf or his

16 predecessor, Commissioner McAleenan, to serve as Acting Secretary of Homeland Security.

17 Accordingly, both Commissioner McAleenan’s and Defendant Wolf’s services as purported

18 Acting Secretary violated the FVRA and the HSA, and actions taken by Defendant Wolf in

19 exercise of the functions and duties of the Secretary of Homeland Security are without force or

20 effect, may not be ratified, and are in excess of statutory authority.

21

134. On February 15, 2019, then-Secretary Kirstjen Nielsen issued HSA Delegation

22 00106, Revision No. 08.4. Ex. I (February Delegation).

23

135. The February Delegation included different orders of succession for the office of

24 Secretary of Homeland Security for two different scenarios. First, Section II.A of the February

25 Delegation provided that “[i]n case of the Secretary’s death, resignation, or inability to perform

26 the functions of the Office, the orderly succession of officials is governed by Executive Order

27 13753, amended on December 9, 2016.” Id. at § II.A.

28

136. Executive Order 13753, in turn, set the order of succession, beginning with the

36

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1 Deputy Secretary of Homeland Security and the Under Secretary for Management. Executive

2 Order Amending the Order of Succession in the Department of Homeland Security, 81 Fed. Reg.

3 90,667 (Dec. 9, 2016). The Commissioner of U.S. Customs and Border Protection was listed

4 seventh in the order of succession. Id. Executive Order 13753 further provided that

5 “[n]otwithstanding the provisions of this section, the President retains discretion, to the extent

6 permitted by the Vacancies Act, to depart from this order in designating an acting Secretary.” Id.

7

137. The February Delegation further provided that in the event the Secretary was

8 “unavailable to act during a disaster or catastrophic emergency,” the Secretary’s powers are

9 delegated to the officials listed in Annex A to the Delegation, in the order listed. February

10 Delegation at § II.B.

11

138. The February Delegation further provided that “[u]nless formally appointed by the

12 Secretary, persons appointed on an acting basis, or on some other temporary basis, are ineligible

13 to serve as a successor; therefore, the order of succession would fall to the next designated official

14 in the approved order of succession.” Id. at § II.G.

15

139. On April 7, 2019, then-Secretary Nielsen submitted a letter of resignation,

16 “effective April 7th 2019.” Letter from Kirstjen Nielsen, U.S. Sec’y of Homeland Security, to

17 President Donald J. Trump (Apr. 7, 2019). That evening, President Trump tweeted “Secretary of

18 Homeland Security Kirstjen Nielsen will be leaving her position, and I would like to thank her for

19 her service . . . I am pleased to announce that Kevin McAleenan, the current U.S. Customs and

20 Border Protection Commissioner, will become Acting Secretary for @dhsgov.”28 However, later

21 that evening, then-Secretary Nielsen tweeted that she had “agreed to stay on as Secretary through

22 Wednesday, April 10th to assist with an orderly transition and ensure that key DHS missions are

23 not impacted.”29

24

140. On or about April 10, 2019, then-Secretary Nielsen amended Annex A to

25 Delegation No. 00106, titled “Order for Delegation of Authority by the Secretary of the

26

28 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 7, 2019, 3:02 p.m.)

https://tinyurl.com/yxqq5o4j.

27

29 Kirsten Nielsen (@SecNielsen), Twitter (Apr. 7, 2019, 7:36 p.m.)

28 https://tinyurl.com/y58zop5j.

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1 Department of Homeland Security,” to place the Commissioner of U.S. Customs and Border

2 Protection third in the order of delegation, after the Deputy Secretary of Homeland Security and

3 Under Secretary for Management. Ex. J, HSA Delegation 00106, Revision No. 08.5 (April

4 Delegation).

5

141. However, then-Secretary Nielsen did not amend the provision in Section II.A. of

6 the Delegation for the order of succession in the event of the Secretary’s resignation.

7 Accordingly, pursuant to the April Delegation, the order of succession in the event of the

8 Secretary’s resignation was governed by Executive Order No. 13753.

9

142. On April 11, 2019, Kevin McAleenan, who was serving as the Commissioner of

10 CBP, began serving as the purported Acting Secretary of Homeland Security. Defendant DHS has

11 claimed that Commissioner McAleenan took the position of Acting Secretary of Homeland

12 Security pursuant to the April Delegation. However, two Senate-confirmed officers who were

13 listed fourth and sixth in the order of succession outlined in Executive Order No. 13753—

14 Christopher Krebs, the Director of the Cybersecurity and Infrastructure Security Agency, and

15 David Glawe, the Under Secretary for Intelligence and Analysis—were serving on the date that

16 Commissioner McAleenan purportedly took the position. Commissioner of CBP was listed

17 seventh in the order of succession outlined in Executive Order No. 13753. Accordingly,

18 Commissioner McAleenan’s designation as Acting Secretary of Homeland Security was not valid

19 under the HSA.

20

143. On November 8, 2019, the 212th day of McAleenan’s tenure as purported Acting

21 Secretary of Homeland Security, he purported to amend Section II.A. of Delegation No. 00106,

22 specifying that Annex A governed the order of succession in the event of the Secretary’s

23 resignation and elevating the Under Secretary for Strategy, Policy, and Plans to fourth in the order

24 of succession. Ex. K, DHS, Orders of Succession and Delegations of Authorities for Named

25 Positions, Delegation No. 00106, Revision No. 08.6 (Nov. 8, 2019) (November Delegation). Such

26 an amendment would have been superfluous had Secretary Nielsen’s order already accomplished

27 this goal.

28 38
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1

144. As multiple district courts have held, because Commissioner McAleenan’s

2 purported succession was not authorized by Executive Order No. 13753, the February Delegation,

3 or the HSA, Commissioner McAleenan lacked lawful authority to exercise the powers or

4 authority of Acting Secretary of Homeland Security, including amending the order of succession

5 to the office of Secretary of Homeland Security. Accordingly, Commissioner McAleenan’s

6 purported November Delegation was without force or effect. See Immigrant Legal Res. Ctr. v.

7 Wolf, No. 20-CV-05883-JSW, 2020 WL 5798269, at *7–9 (N.D. Cal. Sept. 29, 2020); Casa de

8 Maryland, Inc. v. Wolf, No. 8:20-CV-02118-PX, 2020 WL 5500165, at *20–23 (D. Md. Sept. 11,

9 2020).

10

145. Moreover, even if Commissioner McAleenan’s designation as Acting Secretary

11 pursuant to the April Delegation and the HSA were proper, and to the extent that and even if he

12 was designated Acting Secretary pursuant to the FRVA, he lacked authority to issue the

13 November Delegation, as the 210-day time limit for service as Acting Secretary under the FVRA

14 had passed and no nomination for the position of Secretary of Homeland Security had been

15 submitted.

16

146. Because the November Delegation was issued without lawful authority and was

17 therefore without force or effect, the order of succession contained in the April Delegation and in

18 Executive Order No. 13753 continued to govern upon Commissioner McAleenan’s resignation.

19 On November 13, 2019, the first three offices in the order of succession contained in Executive

20 Order No. 17573 were vacant; the fourth office, Director of the Cybersecurity and Infrastructure

21 Security Agency, was filled by Senate-confirmed appointee Christopher Krebs.30 Accordingly,

22 pursuant to the HSA, the April Delegation, and Executive Order No. 13753, Director Krebs

23 should have been designated as Acting Secretary of Homeland Security.

24

147. Nevertheless, after Defendant Wolf’s nomination as Under Secretary for Strategy,

25 Policy, and Plans was confirmed by the Senate on November 13, 2019, Defendant Wolf purported

26

30 At the time Executive Order No. 17573 was issued, the position of the Director of

27

Cybersecurity and Infrastructure Security Agency was called the Undersecretary for National Protection and Programs. The office was retitled pursuant to the Cybersecurity and Infrastructure

28 Security Agency Act of 2018. 6 U.S.C. § 652(b).

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1 to begin serving as the Acting Secretary of Homeland Security. However, Defendant Wolf’s

2 designation as Acting Secretary of Homeland Security was improper and unlawful under the

3 FVRA and HSA.

4

148. Furthermore, pursuant to the FVRA, Defendant Wolf cannot lawfully exercise the

5 functions and duties of the Secretary of Homeland Security because the time limit for service in

6 an acting capacity had expired prior to November 13, 2019. On November 7, 2019, the office of

7 Acting Secretary had been vacant for 211 days without a nomination being submitted to the

8 Senate. Accordingly, pursuant to the FVRA, the office was required to “remain vacant.” 5 U.S.C.

9 § 3348(b)(1).

10

149. On November 15, 2019, the Chairman of the House Committee on Homeland

11 Security and the Acting Chairwoman of the House Committee on Oversight and Reform sent a

12 letter to the Comptroller General and the Government Accountability Office (GAO), expressing

13 concerns about the legality of Defendant Wolf’s designation as Acting Secretary of Homeland

14 Security. The letter requested an expedited review to determine whether Defendant Wolf and

15 purported Senior Official Performing the Duties of Deputy Secretary Ken Cuccinelli were legally

16 serving in those positions. A copy of the letter was sent to Defendant Wolf.

17

150. On August 14, 2020, the GAO issued a decision determining that Defendant Wolf

18 was improperly designated as Acting Secretary of Homeland Security by reference to an invalid

19 order of succession. U.S. Gov’t Accountability Off., Decision, File No. 331650 (Aug. 14, 2020)

20 2, 11, https://www.gao.gov/assets/710/708830.pdf.

21

151. On August 17, 2020, DHS Acting General Counsel Chad Mizelle sent a letter to

22 the GAO requesting that the GAO rescind its report. See Off. of the Gen’l Couns., DHS, Letter to

23 Thomas A. Armstrong, General Counsel, GAO (Aug. 17, 2020), https://tinyurl.com/y5ohnvfl.

24

152. On August 21, 2020, the GAO declined to rescind its report, stating that DHS had

25 neither demonstrated that the GAO’s decision contained material errors of fact or law nor

26 provided additional information that warranted reconsideration. See U.S. Gov’t Accountability

27 Off., B-332451, Decision Letter on Legality of Service of Acting Secretary of Homeland Security

28 40
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1 and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security—

2 Reconsideration (Aug. 17, 2020), https://www.gao.gov/assets/710/708944.pdf.

3

153. On September 10, 2020, Peter T. Gaynor, Administrator of the Federal Emergency

4 Management Agency, issued an order purporting to amend the order of succession, relying on

5 “any authority vested in [him] as Acting Secretary of Homeland Security,” and placing the Under

6 Secretary for Strategy, Policy, and Plans fourth in the line of succession. Ex. L, Order

7 Designating the Order of Succession for the Secretary of Homeland Security (Sept. 10, 2020)

8 (Gaynor Order). The Gaynor Order stated that “in accordance with the President’s advance

9 exercise of his authority to name an Acting Secretary under the FVRA,” Gaynor was relying on

10 “any authority [he] may have been granted by the FVRA to designate the order of succession for

11 the Secretary of Homeland Security pursuant to 6 U.S.C. § 113(g)(2).” Mr. Gaynor stated that his

12 issuance of the order of succession terminated his authority, if any, under the FVRA.

13

154. On September 17, 2020, Defendant Wolf issued a memorandum purporting to

14 ratify “any and all actions involving delegable duties that [he had] taken from November 13,

15 2019, through September 10, 2020.” Ratification of Department Actions, 85 Fed. Reg. 59,651

16 (Sept. 23, 2020).

17

155. On October 7, 2020, Defendant Wolf issued a second memorandum purporting to

18 ratify actions taken by Commissioner McAleenan and Defendant Edlow, including the Edlow

19 Memorandum. Ratification of Department Actions, 85 Fed. Reg. 65,653 (Oct. 16, 2020).

20

156. Under the FVRA, “an action taken by any person” who is unlawfully exercising

21 the authority of a vacant office “in the performance of any function or duty of a vacant office . . .

22 shall have no force or effect” and “may not be ratified.” 5 U.S.C. § 3348(d)(1), (2); see also SW

23 General, 137 S. Ct. at 938 n. 2 (noting “general rule that actions taken in violation of the FVRA

24 are void ab initio”). Such actions have no force and effect and may not be ratified whether a

25 person is purportedly exercising authority under the FVRA or under an agency-specific statute.

26 See 5 U.S.C. § 3348(d)(1), (2) (referring to actions taken by a “person who is not acting under

27 section 3345, 3346, or 3347”).

28 41
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1

157. The HSA provides that “[t]he Secretary is the head of the Department and shall

2 have direction, authority, and control over it” and that “[a]ll functions of all officers, employees,

3 and organizational units of the Department are vested in the Secretary.” 6 U.S.C. § 112(a)(2), (3).

4 The Secretary of Homeland Security is responsible for “[e]stablishing national immigration

5 enforcement policies and priorities.” 6 U.S.C. § 202(5). The Secretary of Homeland Security is

6 also “charged with the administration and enforcement of . . . all . . . laws relating to the

7 immigration and naturalization of aliens” and is required to “establish such regulations; . . . issue

8 such instructions; and perform such other acts as he deems necessary for carrying out his

9 authority.” 8 U.S.C. § 1103(a)(1), (3).

10

158. In issuing the Wolf Memorandum, Defendant Wolf took an action in the

11 performance of a function or duty of the vacant office of Secretary of Homeland Security. See Ex.

12 A, Wolf Mem., at 3 (noting that the memorandum was issued “in the exercise” of Defendant

13 Wolf’s purported “authority and discretion in establishing national immigration enforcement

14 policies and priorities”).

15

159. Because Defendant Wolf was improperly and unlawfully designated as Acting

16 Secretary of Homeland Security under the FVRA and HSA, he lacked authority to issue the Wolf

17 Memorandum.

18

160. Moreover, on the date that the Wolf Memorandum was issued, July 28, 2020, the

19 office of Secretary of Homeland Security had not been occupied by a Senate-confirmed appointee

20 for 475 days, well beyond the time limit provided in the FVRA for service in an acting capacity.

21

161. Because Defendant Wolf was improperly and unlawfully performing the functions

22 and duties of the Secretary of Homeland Security on July 28, 2020, the Wolf Memorandum has

23 no force or effect and may not be ratified, and Defendant Wolf’s purported ratification of that

24 action is ineffective.

25

162. In addition, because Defendant Wolf lacked authority under the U.S. Constitution,

26 the FVRA, or the HSA to serve as Acting Secretary of Homeland Security, the issuance and

27 implementation of the Wolf Memorandum was and is in excess of statutory authority or otherwise

28 not in accordance with law pursuant to the APA. 5 U.S.C. § 706(2). 42
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1

163. Among the recipients of the Wolf Memorandum is Defendant Joseph Edlow,

2 purported Deputy Director of Policy at USCIS. Defendant Wolf purportedly designated

3 Defendant Edlow as Deputy Director at USCIS on February 19, 2020. Because, for the reasons

4 discussed above, Defendant Wolf lacked legal authority to perform the functions and duties of the

5 Secretary of Homeland Security, he likewise lacked legal authority to designate Defendant Edlow

6 to that position. In turn, because Defendant Edlow was improperly designated to the role of

7 Deputy Director of Policy at USCIS, he lacked legal authority to issue the Edlow Memorandum,

8 and the issuance and implementation of the Edlow Memorandum was and is in excess of statutory

9 authority or otherwise not in accordance with law pursuant to the APA. 5 U.S.C. § 706(2).

10

164. With certain limited exceptions not applicable here, the FVRA prohibits a person

11 from serving as an acting officer if the President submits to the Senate a nomination of that

12 person to the office, and during the 365 days prior to the vacancy, the person was not first

13 assistant to the office or was first assistant for less than 90 days. 5 U.S.C. § 3345(b)(1). Defendant

14 Wolf has never served as first assistant to the Secretary of Homeland Security. Nevertheless,

15 despite the submission of his nomination to the position of Secretary of Homeland Security to the

16 Senate on September 10, 2020, Defendant Wolf continues to purport to serve as Acting Secretary

17 of Homeland Security in violation of the FVRA.

18

FIRST CAUSE OF ACTION

19

Violation of Administrative Procedure Act—5 U.S.C. § 706

20

CONTRARY TO LAW

21

165. Plaintiff States re-allege and incorporate by reference the allegations set forth in

22 each of the preceding paragraphs of this Complaint.

23

166. The APA requires the Court to “hold unlawful and set aside agency action” that is

24 “(A) . . . not in accordance with law; (B) contrary to constitutional right, power, privilege, or

25 immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of

26 statutory right[.]” 5 U.S.C. § 706(2).

27

167. In issuing and implementing the Wolf Memorandum while Defendant Wolf was

28 unlawfully performing the functions and duties of the Secretary of Homeland Security in 43
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1 violation of the Appropriations Clause, the FVRA, and the HSA, Defendants have acted not in

2 accordance with law, contrary to constitutional power, and in excess of statutory authority in

3 violation of the APA.

4

168. In issuing and implementing the Edlow Memorandum when Defendant Edlow was

5 improperly designated to the position of Deputy Director of Policy at USCIS by Defendant Wolf,

6 who lacked any legal authority to designate Defendant Edlow to that position, Defendants have

7 acted not in accordance with law, contrary to constitutional power, and in excess of statutory

8 authority in violation of the APA.

9

169. Defendants’ violation causes ongoing harm to Plaintiff States and their residents,

10 who are within the zone of interests of the relevant statutes and/or constitutional provisions.

11

SECOND CAUSE OF ACTION

12

Violation of Administrative Procedure Act—5 U.S.C. § 706

13

ARBITRARY AND CAPRICIOUS

14

170. Plaintiff States re-allege and incorporate by reference the allegations set forth in

15 each of the preceding paragraphs of this Complaint.

16

171. The APA requires courts to “hold unlawful and set aside” agency action that is

17 “arbitrary,” “capricious,” or an “abuse of discretion.” 5 U.S.C. § 706(2)(A).

18

172. In issuing and implementing the Wolf and Edlow Memoranda, Defendants have

19 acted arbitrarily and capriciously and abused their discretion in violation of the APA. Defendants

20 have not offered a reasoned basis for these actions and failed to consider important aspects of the

21 problem, including, but not limited to, the reliance interests of third parties, including the Plaintiff

22 States.

23

173. Defendants’ violation causes ongoing harm to Plaintiff States and their residents,

24 who are within the zone of interests of the relevant statutes and/or constitutional provisions.

25

THIRD CAUSE OF ACTION

26

Violation of Federal Vacancies Reform Act—5 U.S.C. §§ 3345-3349c

27

174. Plaintiff States re-allege and incorporate by reference the allegations set forth in

28 each of the preceding paragraphs of this Complaint. 44
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1

175. The office of Secretary of Homeland Security is an office to which the FVRA

2 applies. 5 U.S.C. § 3345. The FVRA provides that “the person serving as an acting officer as

3 described under section 3345 may serve in the office for no longer than 210 days beginning on

4 the date the vacancy occurs.” 5 U.S.C. § 3346(a)(1). Once the time periods in the statute have

5 elapsed, “the office shall remain vacant” and “an action taken by any person who is not acting”

6 pursuant to the FVRA “in the performance of any function or duty of a vacant office” to which

7 the FVRA applies “shall have no force or effect” and “may not be ratified.” 5 U.S.C.

8 § 3348(b)(1), (d)(1)-(2).

9

176. Defendant Wolf issued the Wolf Memorandum in the performance of a function or

10 duty of the Secretary of Homeland Security.

11

177. Defendant Wolf designated Defendant Edlow to the position of Deputy Director of

12 Policy at USCIS in the performance of a function or duty of the Secretary of Homeland Security.

13

178. Because, on the date that the order of succession for Secretary of Homeland

14 Security was purportedly amended by Commissioner McAleenan, more than 210 days had passed

15 since the office of Secretary of Homeland Security had become vacant and no nomination for

16 such office had been submitted to the Senate, Commissioner McAleenan was performing the

17 functions or duties of the Secretary of Homeland Security in violation of the Federal Vacancies

18 Reform Act, and his purported amendment to the order of succession had no force or effect and

19 may not be ratified.

20

179. Because, on the date that the Wolf Memorandum was issued, more than 210 days

21 had passed since the office of Secretary of Homeland Security had become vacant and no

22 nomination for such office had been submitted to the Senate, Defendant Wolf was performing the

23 functions or duties of the Secretary of Homeland Security in violation of the Federal Vacancies

24 Reform Act, and the Wolf Memorandum has no force or effect and may not be ratified.

25

180. Because, on the date that Defendant Edlow was designated as Deputy Director of

26 Policy at USCIS, more than 210 days had passed since the office of Secretary of Homeland

27 Security had become vacant and no nomination for such office had been submitted to the Senate,

28 Defendant Wolf was performing the functions or duties of the Secretary of Homeland Security in 45
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1 violation of the Federal Vacancies Reform Act, and the designation of Defendant Edlow has no

2 force or effect and may not be ratified.

3

FOURTH CAUSE OF ACTION

4

Violation of Homeland Security Act, 6 U.S.C. §§ 112-113

5

181. Plaintiff States re-allege and incorporate by reference the allegations set forth in

6 each of the preceding paragraphs of this Complaint.

7

182. The Secretary of Homeland Security may be appointed only with the advice and

8 consent of the Senate. 6 U.S.C. § 112(a)(1).

9

183. In the event of a vacancy in the office of Secretary of Homeland Security, the

10 order of succession is governed by 6 U.S.C. § 113(g) and by the order of succession designated

11 by the Secretary of Homeland Security.

12

184. Defendant Wolf is not legally authorized to perform the functions and duties of

13 Secretary of Homeland Security or to hold the position of Acting Secretary of Homeland Security

14 pursuant to 6 U.S.C. § 113(g) and the relevant, valid order of succession in effect on the date that

15 Defendant Wolf purported to assume the position of Acting Secretary.

16

185. Because Defendant Wolf is performing the functions and duties of the Secretary of

17 Homeland Security without having been confirmed in that position by the Senate, and without

18 statutory authorization pursuant to the HSA or any other legal authority, his actions, including his

19 purported issuance of the Wolf Memorandum and purported designation of Defendant Edlow as

20 Deputy Director for Policy of USCIS, are invalid and void.

21

FIFTH CAUSE OF ACTION

22

Violation of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2

23

186. Plaintiff States re-allege and incorporate by reference the allegations set forth in

24 each of the preceding paragraphs of this Complaint.

25

187. The Appointments Clause of the U.S. Constitution requires that principal officers

26 of the United States be appointed by the President “by and with the advice and consent of the

27 Senate.” U.S. Const. art. II, § 2, cl. 2.

28 46
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1

188. The Department of Homeland Security is an Executive Department, 5 U.S.C. §

2 101, and the Secretary of Homeland Security is a principal subject to the Appointments Clause.

3

189. Defendant Wolf has not been confirmed by the Senate to the position of Secretary

4 of Homeland Security.

5

190. Because (1) the office of Secretary of Homeland Security has been vacant for a

6 lengthy and unreasonable period of time, and (2) Commissioner McAleenan, as an inferior

7 officer, lacked authority under the Appointments Clause to appoint an inferior officer, and (3)

8 Defendant Wolf has been unlawfully performing the functions and duties of the Secretary of

9 Homeland Security in an acting capacity, Defendant Wolf is serving in the position of Acting

10 Secretary in violation of the Appointments Clause, and his issuance of the Wolf Memorandum is

11 unlawful.

12

SIXTH CAUSE OF ACTION

13

Ultra Vires

14

191. Plaintiff States re-allege and incorporate by reference the allegations set forth in

15 each of the preceding paragraphs of this Complaint.

16

192. Neither a federal official nor an agency can take any action that exceeds the scope

17 of their constitutional and/or statutory authority.

18

193. Defendants Wolf and Edlow have acted ultra vires in promulgating the Wolf and

19 Edlow Memoranda without legal authority.

20

194. For the reasons stated herein, Plaintiffs are entitled to a declaration that

21 Defendants’ promulgation of the Wolf and Edlow Memoranda are unlawful, and the Court should

22 enjoin Defendants’ implementation of those actions.

23

PRAYER FOR RELIEF

24

WHEREFORE, Plaintiff States respectfully request that this Court enter judgment in their

25 favor, and grant the following relief:

26

1. Declare that Defendants’ actions in promulgating the Wolf and Edlow Memoranda

27 are arbitrary, capricious, abuses of discretion, contrary to constitutional power, in excess of

28 47
First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 49 of 50

1 statutory authority, and otherwise not in accordance with law in violation of the Administrative

2 Procedure Act, 5 U.S.C. §§ 702-706;

3

2. Declare that Defendants’ actions in promulgating the Wolf and Edlow Memoranda

4 are ultra vires;

5

3. Declare that Defendant Wolf’s service as Acting Secretary of Homeland Security

6 violates the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345-3349c;

7

4. Declare that Defendant Wolf’s actions taken as Acting Secretary of Homeland

8 Security and/or in the performance of the functions or duties of the Secretary of Homeland

9 Security, including his purported change to DACA policy and procedure, have no force and effect

10 and may not be ratified pursuant to the Federal Vacancies Reform Act, 5 U.S.C. § 3348(d);

11

5. Declare that Defendant Wolf’s service as Acting Secretary of Homeland Security

12 violates the Homeland Security Act, 6 U.S.C. § 113(g)(2);

13

6. Enjoin Defendants from altering and limiting DACA or engaging in any action to

14 frustrate its full and continued implementation without complying with the APA and other

15 relevant laws;

16

7. Vacate and set aside the Wolf and the Edlow Memoranda; and

17

8. Award such additional relief as the interests of justice may require.

18

19

20

21

22

23

24

25

26

27

28 48
First Amended Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-05235-WHA Document 124 Filed 11/02/20 Page 50 of 50

1 Dated: November 2, 2020

Respectfully Submitted,

2

XAVIER BECERRA

Attorney General of California

3

MICHAEL L. NEWMAN

Senior Assistant Attorney General

4

CHRISTINE CHUANG

Supervising Deputy Attorney General

5

VIRGINIA CORRIGAN

REBEKAH A. FRETZ

6

SHUBHRA SHIVPURI

JAMES F. ZAHRADKA II (SBN 196822)

7

Deputy Attorneys General

8

/s/ James F. Zahradka II

JAMES F. ZAHRADKA II

9

Deputy Attorney General

Attorneys for Plaintiff State of California

10

AARON FREY

11

Attorney General of Maine

SUSAN P. HERMAN (pro hac vice)

12

Chief Deputy Attorney General

6 State House Station

13

Augusta, Maine 04333

Telephone: (207) 626-8814

14

E-mail: susan.herman@maine.gov

Attorneys for Plaintiff State of Maine

15

BRIAN E. FROSH

16

Attorney General of Maryland

STEVEN M. SULLIVAN (pro hac vice)

17

Solicitor General

200 Saint Paul Place, 20th Floor

18

Baltimore, Maryland 21202

Telephone: (410) 576-6325

19

E-mail: ssullivan@oag.state.md.us

Attorneys for Plaintiff State of Maryland

20

KEITH ELLISON

21

Attorney General of Minnesota

JULIANNA F. PASSE (pro hac vice)

22

Assistant Attorney General

445 Minnesota Street, Suite 1100

23

St. Paul, Minnesota 55101-2128

Telephone: (651) 757-1136

24

E-mail: julianna.passe@ag.state.mn.us

Attorneys for Plaintiff State of Minnesota 25

26

27

28 49
First Amended Complaint for Declaratory and Injunctive Relief

 
 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. 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.
SUPREME COURT OF THE UNITED STATES

Syllabus
DEPARTMENT OF HOMELAND SECURITY ET AL. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 18–587. Argued November 12, 2019—Decided June 18, 2020*
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 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
—————— * Together with No. 18–588, Trump, President of the United States, et
al. v. National Association for the Advancement of Colored People et al., on certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before judgment to the United States Court of Appeals for the Second Circuit.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

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.
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

Cite as: 591 U. S. ____ (2020)

3

Syllabus

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.
No. 18–587, 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. 9–13. (a) The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, 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. The Government contends that 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. 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. 9–12. (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. 12–13. 2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 13–26. (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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

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. 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 (emphasis added), or to “deal with the problem afresh” by taking new agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. 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. 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. 13–17.
(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. While DHS

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5

Syllabus

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.
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. 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 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. 17–26.
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. 27–29.

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.

Cite as: 591 U. S. ____ (2020)

1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part IV.
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 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
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

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3

Opinion of the Court
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 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 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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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)).
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 designa-
tions allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work

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5

Opinion of the Court
authorization, 809 F. 3d, at 179–181, 186 (internal 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. ___ (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.

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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.

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
All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.2 In doing so, each court rejected the Government’s threshold arguments that the

—————— 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.

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7

Opinion of the Court
claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–224, 234–235 (DC 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.” 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

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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 questiona-
ble” 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.
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 “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 de-
cisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pend-
ing, 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 ar-
gument. 588 U. S. ___ (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so,

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whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim.
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 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (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 (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 (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 (1967) (quoting §702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review,

10

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

§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
exception in §701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___
(2018) (slip op., at 12), confining it to those rare “administrative decision[s] traditionally left to agency discretion,” Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited cat-
egory of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v.
Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government primarily relies.
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 commit-
ted to an agency’s absolute discretion.” Id., at 831. 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. 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

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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 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. 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.
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 3. Unlike an agency’s refusal to take requested enforcement action, access to these

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

types of benefits is an interest “courts often are called upon
to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determi-
nation for Social Security benefits). Because the DACA program is more than a non-enforce-
ment 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 . . . to seek removal,” or “the process by which . . . removability will be determined.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 10–11); id., at ___ (BREYER, J., dissenting) (slip op., at 31). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.
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 AntiDiscrimination Comm., 525 U. S. 471, 482 (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

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Opinion of the Court
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 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. 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.” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v.

14

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per-
mitting 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 (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 (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 expla-
nation 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 4 (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. Because Secretary Nielsen chose to elaborate on the rea-
sons 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

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Opinion of the Court
ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.” Overton Park, 401 U. S., at 420. 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-bycase decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points 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,

16

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

n. 6 (1969) (plurality opinion). See also post, at 5. Proce-
dural 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 (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 confi-
dence that the reasons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham
Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifica-
tions, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U. S.
80, 94 (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, actually limits only what lawyers may argue, not what agencies may do. Post, at 5. 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 ration-
alizations, 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 (1981)
(“[T]he post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action.”); Overton

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Opinion of the Court
Park, 401 U. S., at 419 (rejecting “litigation affidavits” from agency officials as “merely ‘post hoc’ rationalizations”).3
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 (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 (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 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 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
—————— 3 JUSTICE KAVANAUGH further argues that the contemporaneous expla-
nation requirement applies only to agency adjudications, not rulemakings. Post, at 5–6 (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

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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 en-
force 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 reviewa-
bility 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 dis-
cuss 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 cor-
rectness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Sec-
retary 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 (1983).

—————— carried any independent weight.

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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.
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). 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
—————— 5 As the Fifth Circuit noted, DAPA recipients were eligible for Social

20

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

But there is more to DAPA (and DACA) than such bene-
fits. 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 por-
tion 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 de-
cline to execute a final order of deportation.’ ” Id., at 168 (quoting Reno, 525 U. S., at 484). And the Fifth Circuit un-
derscored 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.
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 con-

—————— 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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cluded 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 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. 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.
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. It did “not cast doubt” on the

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

“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 airbags-only requirement.”
Id., at 51. While the factual setting is different here, the error is the
same. Even if it is illegal for DHS to extend work authori-
zation and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. Id., at 47. It
did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to child-
hood 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 re-
scinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm, 463 U. S., at 51.6
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

—————— 6 The three-page memorandum that established DACA is devoted en-
tirely 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.

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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 21– 22, n. 14 (opinion of THOMAS, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 21. 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 22 (quoting State Farm, 463 U. S., at 42). 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. 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.
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 (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. ___, ___ (2016)

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

(slip op., at 9) (quoting Fox Television, 556 U. S., at 515). “It
would be arbitrary and capricious to ignore such matters.” Id., at 515. 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 pro-
vided benefits only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opin-
ion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such fea-
tures 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 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 conse-
quences 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).

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Opinion of the Court
In addition, excluding DACA recipients from the lawful 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.
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 23 (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.

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

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 accommo-
dating 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.” State Farm, 463 U. S., at 51. 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 (1978). But, because DHS was “not writing on a blank
slate,” post, at 22, 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 19–23 (opinion of THOMAS, J.). The dissent is correct that DACA was rescinded because
of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination fore-
closed 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.

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27

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.
IV
Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment.
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 AntiDiscrimination Committee. See 525 U. S., at 488 (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.
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 (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. 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

28

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.

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_1214_PLCY_pops-est-report.pdf. Were this fact suffi-
cient 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, respond-
ents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these state-
ments—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. Thus, like respondents’ other points, the statements fail to

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29

Opinion of the Court
raise a plausible inference that the rescission was motivated by animus.
* * *
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. 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.

—————— 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.

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1

SOOpTiOnMioAnYOofRS, JO.T,OcMonAcYuOrRr,inJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE SOTOMAYOR, concurring in part, concurring in the judgment in part, and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

The majority rightly holds that the Department of Home-
land Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any chal-
lenge 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.
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 (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 re-
mand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either sin-
gly or in concert, establishes a plausible equal protection claim.” Ante, at 27. But it reaches that conclusion by dis-
counting 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 ad-

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3

Opinion of SOTOMAYOR, J.
ditionally 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 28.
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 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 11, n. 3). 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 ___ (opinion of SOTOMAYOR, J.) (slip op., at 13). 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 28 (“Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection 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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

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 deci-
sion.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (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 Perma-
nent Residents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termi-
nation. 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.” Depart-
ment of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plural-
ity 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. 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.

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1

TOHpOinMiAoSn, oJf.,TdHisOsMeAnSti,nJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t 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 threepage 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 Act-
ing 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.
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 stand-
ard administrative law case. DHS created DACA during the Obama administration
without any statutory authorization and without going
through the 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 capri-
cious 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.

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3

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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 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
—————— 1 I concur in the judgment insofar as the majority rejects respondents’
equal protection claim. 2 See Immigrant Children’s Educational Advancement and Dropout

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

“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 young people who were brought to this country as chil-
dren” 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. DACA granted a renewable 2-year period of “deferred ac-
tion” that made approximately 1.7 million otherwise remov-
able 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 §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.

—————— 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).

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5

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
§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

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

comment procedures. The States also argued that DHS’ de-
cision 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. The District Court preliminarily enjoined DAPA and ex-
panded 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 con-
cluded 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. 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. ___ (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.
On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine

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7

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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 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
“ ‘[A]n agency literally has no power to act . . . unless and

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

until Congress confers power upon it.’ ” Arlington v. FCC,
569 U. S. 290, 317 (2013) (ROBERTS, C. J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355,
374 (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. (2018) (slip op.,
at 11, n.). The 2012 memorandum 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 “de-
cline to institute [removal] proceedings, terminate [removal] proceedings, or decline to institute a final order of [removal].” Reno v. American-Arab Anti-Discrimination
Comm., 525 U. S. 471, 484 (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 4. Thus, DACA in effect cre-
ated 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 remov-
able 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 immi-
gration 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.

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THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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
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 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

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humanitarian reasons or [a] significant public benefit,” 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 seri-
ous threat to [an alien’s] personal safety,” §1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consulta-
tion 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 enter-
ing the country to “engag[e] in a new commercial enterprise.” §§1153(a)–(b), 1154; see also Congressional Re-
search Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful permanent residence under certain condi-
tions, §1159; 8 CFR §§209.1, 209.2.4 As with temporary lawful presence, each avenue to lawful permanent resi-
dence status has its own set of rules and exceptions.5 As the Fifth Circuit held in the DAPA litigation, a conclu-
sion with which then-Attorney General Sessions agreed,
“specific and detailed provisions[ of] the INA expressly and

—————— 4 The immigration statutes also provide for conditional lawful perma-
nent 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).

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carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.” 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 (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 (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 (1988).
2
The relief that Congress has extended to removable aliens likewise confirms that DACA exceeds DHS’ delegated authority. 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

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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 indi-
viduals 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 individ-
ual described in subclause (I) is eligible for deferred action’ ”); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Ter-
rorism (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 ac-
tion”).6 Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws con-
tain no indication that DHS can, at will, create its own categorical policies for deferred action.
Other provisions pertaining to relief from removal fur-
ther demonstrate that DHS lacked the delegated authority

—————— 6 In the DAPA litigation, DHS noted that some deferred-action pro-
grams 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 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (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 (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.

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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.
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 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
—————— 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 conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 327 (2014).

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

symmetrical and coherent regulatory scheme,” Gustafson v.
Alloyd Co., 513 U. S. 561, 569 (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 po-
sition in light of the INA’s intricate system,” ibid., but it would also render many of those provisions wholly super-
fluous due to DHS’ authority to disregard them at will, Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addi-
tion 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 (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 (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 (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

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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 grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary’s pen.
B
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 (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 18–19. 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 (2007) (ROBERTS, C. J., dissenting).
The lack of support for the majority’s position is hardly

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

surprising in light of our Constitution’s separation of pow-
ers. 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 (1998); INS v. Chadha, 462 U. S. 919 (1983); see also EPA v. EME Homer City Generation, L. P.,
572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U. S. 440, 487 (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 (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; Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 462 (2002). Under our precedents, DHS can only exercise the author-
ity that Congress has chosen to delegate to it. See UARG, 573 U. S., at 327. 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 car-
ried 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

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DACA. But at the very least, this 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 (1979) (internal quotation marks omitted).
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 (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. ___, ___ (2019) (plurality opinion) (slip op., at 23) (“[A] legislative rule, . . . to be valid[,] must go through notice and comment”); id., at ___ (GORSUCH, J., concurring in judgment) (slip op., at 17) (same); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96 (2015); cf. Azar v. Allina Health Services, 587 U. S. ___, ___ (2019) (slip op., at 1) (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
—————— 8 The majority tacitly acknowledges as much, as it must. See ante, at
11–12. 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 (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 (2015) (opinion concurring in judgment).

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

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 ___ (opin-
ion of GORSUCH, J.) (slip op., at 17). As we have recognized recently, use of the word “shall” indicates that these proce-
dures 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. ___, ___
(2020) (slip op., at 12). 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 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor, 588 U. S., at ___ (opinion of GORSUCH,
J.) (slip op., at 17).10 Because DACA has the force and effect of law, DHS was
required to observe the 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 oppor-
tunity 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

—————— 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.

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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 ___ (plurality opinion) (slip op., at 23); id., at ___ (opinion of GORSUCH, J.) (slip op., at 17).
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 (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.
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

—————— 11 Thus, it is not that the APA “should not” be construed to support the
majority’s result, ante, at 26 (emphasis added), it is that the APA does not and cannot support that result.

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THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

though no such detailed discussion accompanied DACA’s is-
suance. 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 23–24. 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 suffi-
cient 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 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); Na-
tional 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 com-
pelled to treat an invalid legislative rule as though it were legitimate.13

—————— 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

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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
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 20. 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 22–23. 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
—————— Department of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (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.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

The then-Attorney General reviewed the thorough deci-
sions 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 stat-
utes, 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 DHS to restore the rule of law. DHS followed the then-Attorney General’s legal analysis and rescinded the program. This legal con-
clusion more than suffices to supply the “reasoned analysis” necessary to rescind an unlawful program. State Farm, 463
U. S., at 42. The majority has no answer except to suggest that this
approach is inconsistent with State Farm. See ante, at 21– 22. But in doing so, the majority ignores the fact that, unlike the typical “prior policy” contemplated by the Court in

—————— Ante, at 19, 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.

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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.
B
Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante, at 23–26. 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.

—————— 15 The majority contends that this argument does not carry force be-
cause 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.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

to Pet. for Cert. in No. 18–587, at 104a (DACA and ex-
panded 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 made clear time and again that, because “deferred action is not an immigra-
tion status, no alien has the right to deferred action. It is used solely in the discretion of the [Government] and confers no protection or benefit upon an alien.” DHS Immigra-
tion and Customs Enforcement Office of Detention and Removal, Detention and Deportation Officers’ Field Manual §20.8 (Mar. 27, 2006); see also Memorandum from D. Meiss-
ner, Comm’r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memorandum from W. Yates, Assoc. Direc-
tor 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 23,
this longstanding administrative treatment of deferred action provides strong evidence and authority for the proposi-
tion that an agency need not consider reliance interests in this context.16
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 ac-
tion at any time at the agency’s discretion.” Consideration

—————— 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 discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (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.

Cite as: 591 U. S. ____ (2020)

25

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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. 15–40238, 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 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

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.

Cite as: 591 U. S. ____ (2020)

1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE ALITO, concurring in the judgment in part and dissenting in part.
Anyone interested in the role that the Federal Judiciary

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of ALITO, J.

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, with-
out 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 deli-
cate 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 re-
scission represented an exercise of that same discretion, and it would therefore be unreviewable under the Adminis-
trative Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v. Chaney, 470 U. S. 821, 831–832 (1985). Second, to the ex-
tent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by JUSTICE KAVANAUGH. See post, at 4–6 (opinion concurring in the
judgment in part and dissenting in part).

Cite as: 591 U. S. ____ (2020)

1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE KAVANAUGH, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

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 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

Cite as: 591 U. S. ____ (2020)

3

Opinion of KAVANAUGH, J.
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 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 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (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.
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

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

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 . . . 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 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

Cite as: 591 U. S. ____ (2020)

5

Opinion of KAVANAUGH, J.
DACA. Ante, at 14–16. 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 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc., 417 U. S. 380, 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168–169 (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 20–26.
To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

may in some circumstances decline to examine an after-thefact agency explanation. See Camp v. Pitts, 411 U. S. 138, 142–143 (1973) (per curiam); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (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 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

Cite as: 591 U. S. ____ (2020)

7

Opinion of KAVANAUGH, J.
of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. Ante, at 23–26.*
* * *
The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Congress’s inability thus far to agree on legislation, 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 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 that has persisted for years for these young immigrants and the Na-

—————— * Because I conclude that the Executive Branch satisfied the APA’s ar-
bitrary-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 (1985); ICC v. Locomotive Engineers, 482 U. S. 270, 277–284 (1987); United States v. Nixon, 418 U. S. 683, 693 (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).

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

tion’s immigration system. In the meantime, as to the narrow APA question presented here, I appreciate the Court’s careful analysis, but I ultimately disagree with its treatment of the Nielsen Memorandum. I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.

 
 Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 1 of 8

1 JEFFREY M. DAVIDSON (SBN 248620)

MATTHEW RODRIQUEZ

ALAN BERSIN (SBN 63874)

Acting Attorney General of California

2 COVINGTON & BURLING LLP

CHRISTINE CHUANG

One Front Street, 35th Floor

JAMES F. ZAHRADKA II (SBN 196822)

3 San Francisco, CA 94111-5356

Supervising Deputy Attorneys General

Telephone: (415) 591-6000

1515 Clay Street, 20th Floor

4 Facsimile: (415) 591-6091

Oakland, CA 94612-0550

Email: jdavidson@cov.com,

Telephone: (510) 879-1247

5 abersin@cov.com

Email: James.Zahradka@doj.ca.gov

Attorneys for Plaintiff The Regents of the

Attorneys for Plaintiff State of California

6 University of California

JOSEPH W. COTCHETT (SBN 36324)

7 THEODORE J. BOUTROUS, JR. (SBN 132099) JUSTIN T. BERGER (SBN 250346)

ETHAN D. DETTMER (SBN 196046)

COTCHETT, PITRE & McCARTHY, LLP

8 GIBSON, DUNN & CRUTCHER LLP

San Francisco Airport Office Center

333 South Grand Avenue

840 Malcolm Road, Suite 200

9 Los Angeles, CA 90071-3197

Burlingame, CA 94010

Telephone: (213) 229-7000

Telephone: (650) 697-6000

10 Facsimile: (213) 229-7520

Facsimile: (650) 697-0577

Email: tboutrous@gibsondunn.com,

Email: jberger@cpmlegal.com

11 edettmer@gibsondunn.com

Attorneys for Plaintiff City of San Jose

Attorneys for Plaintiffs Dulce Garcia, Miriam

12 Gonzalez Avila, Saul Jimenez Suarez, Norma

STACEY M. LEYTON (SBN 203827)

Ramirez, Jirayut Latthivongskorn, Marco

ALTSHULER BERZON LLP

13 Antonio Salinas Munoz, Dulce Berenice Vargas 177 Post Street, Suite 300

Baltazar, Ericka Lisseth Daniel Santellan, Grisel San Francisco, CA 94108

14 Guadalupe Chavez Diaz, and Felipe Alvarez

Telephone: (415) 421-7151

Carrillo

Facsimile: (415) 362-8064

15

Email: sleyton@altber.com

Attorneys for Plaintiffs County of Santa Clara and

16

Service Employees International Union Local 521

17

(Additional counsel listed on signature page)

18 UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

20 THE REGENTS OF THE UNIVERSITY OF

CASE NO. 17-CV-05211-WHA

21 CALIFORNIA,

STIPULATION RE: VACATION OF

22

Plaintiff,

DEADLINES AND STAY OF

23

v.

PROCEEDINGS PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20,

24 U.S. DEPARTMENT OF HOMELAND

2021 PRESIDENTIAL MEMORANDUM RE: DACA

25 SECURITY and ALEJANDRO MAYORKAS,1 in his official capacity as
26 Secretary of the Department of Homeland Security,

Judge:

Hon. William Alsup

Trial Date: None set

Action Filed: September 8, 2017

27
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary of Homeland Security Alejandro 28 Mayorkas is automatically substituted as a Defendant in his official capacity for former Acting Secretary

of Homeland Security David Pekoske.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 2 of 8

1 Defendants.
2 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
3 STATE OF MINNESOTA,

CASE NO. 17-CV-05235-WHA

4

Plaintiffs,

5

v.

6 U.S. DEPARTMENT OF HOMELAND
7 SECURITY; ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland
8 Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; JOSEPH
9 EDLOW, in his purported official capacity as Deputy Director for Policy of the U.S.
10 Citizenship and Immigration Services2; and UNITED STATES OF AMERICA,
11 Defendants.
12
CITY OF SAN JOSE, a municipal corporation, CASE NO. 17-CV-05329-WHA 13
Plaintiffs, 14
v. 15
JOSEPH R. BIDEN, President of the United 16 States, in his official capacity,3 ALEJANDRO
MAYORKAS, in his official capacity, and the 17 UNITED STATES OF AMERICA,

18

Defendants.

19

CASE NO. 17-CV-05380-WHA

DULCE GARCIA; MIRIAM GONZALEZ 20 AVILA; SAUL JIMENEZ SUAREZ;

NORMA RAMIREZ; JIRAYUT 21 LATTHIVONGSKORN; MARCO ANTONIO

SALINAS MUNOZ; DULCE BERENICE 22 VARGAS BALTAZAR; ERICKA LISSETH

DANIEL SANTELLAN; GRISEL 23 GUADALUPE CHAVEZ DIAZ; and FELIPE

ALVAREZ CARRILLO, 24

Plaintiffs, 25

v. 26

27

2 Joseph Edlow left the Department of Homeland Security in January of 2021, and the office he

formerly occupied is currently vacant.

28

3 Pursuant to Federal Rule of Civil Procedure 25(d), President Joseph R. Biden is automatically

substituted as a Defendant in his official capacity for former President Donald J. Trump.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 3 of 8

1 UNITED STATES OF AMERICA; U.S.
2 DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS, in
3 his official capacity as Secretary of Homeland Security; JOSEPH EDLOW, in his official
4 capacity as purported DHS Deputy Director of Policy; and UNITED STATES CITIZENSHIP
5 AND IMMIGRATION SERVICES,

6

Defendants.

7
COUNTY OF SANTA CLARA and 8 SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521, 9
Plaintiffs, 10
v. 11
JOSEPH R. BIDEN, in his official capacity as 12 President of the United States; ALEJANDRO
MAYORKAS, in his official capacity as 13 Secretary of the Department of Homeland
Security; U.S. DEPARTMENT OF 14 HOMELAND SECURITY; JOSEPH
EDLOW, in his official capacity as Deputy 15 Director of Policy of USCIS; and U.S.
CITIZENSHIP AND IMMIGRATION 16 SERVICES,

17

Defendants.

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 17-CV-05813-WHA

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 4 of 8

1

STIPULATION RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS

PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20, 2021

2

PRESIDENTIAL MEMORANDUM RE: DACA

3

Per Defendants’ filing on January 21, 2021, ECF No. 315, on January 20, 2021, President

4 Biden issued a memorandum entitled “Preserving and Fortifying Deferred Action for Childhood

5 Arrivals (DACA).” 86 Fed. Reg. 7053 (Jan. 25, 2021). In that memorandum, the President

6 instructed the Secretary of Homeland Security, in consultation with the Attorney General, to “take

7 all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

8 Id. at 7053. The Secretary of Homeland Security, in consultation with the Attorney General, is

9 currently working to implement the recent Presidential Memorandum, which may result in further

10 agency action that impacts the substantive and procedural aspects of this litigation.

11

In light of the above, to prevent the unnecessary expenditure of public resources, and to

12 promote judicial economy, the parties hereby stipulate to the following, and request that the

13 Court:

14

 Vacate all pending deadlines in this matter;

15

 Stay further proceedings in this matter pending further court order; and

16

 Order the parties to submit joint status reports every 60 days pending further court order,

17

with the first joint status report to be filed on May 24, 2021.

18 IT IS SO STIPULATED THIS 22 DAY OF MARCH, 2021

19

20

21

22

23

24

25

26

27

28
1
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 5 of 8

1 Dated: March 22, 2021

Respectfully submitted,

2 COVINGTON & BURLING LLP

MATTHEW RODRIQUEZ

Acting Attorney General of California

3 /s/ Jeffrey M. Davidson

4

JEFFREY M. DAVIDSON Attorneys for Plaintiffs The Regents of the

/s/ James F. Zahradka II JAMES F. ZAHRADKA II

5

University of California and Janet Napolitano, in Supervising Deputy Attorney General her official capacity as President of the University Attorneys for Plaintiff State of California

6

of California

AARON FREY

7 GIBSON, DUNN & CRUTCHER LLP

Attorney General of Maine KIMBERLY L. PATWARDHAN (pro hac

8 /s/ Ethan D. Dettmer ETHAN D. DETTMER
9

vice) Deputy Attorney General Attorneys for Plaintiff State of Maine

PUBLIC COUNSEL 10

BRIAN E. FROSH

11

/s/ Mark D. Rosenbaum MARK D. ROSENBAUM

Attorney General of Maryland STEVEN M. SULLIVAN (pro hac vice)

12 Attorneys for Plaintiffs Dulce Garcia, Miriam Solicitor General

Gonzalez Avila, Saul Jimenez Suarez, Norma

Attorneys for Plaintiff State of Maryland

13 Ramirez, Jirayut Latthivongskorn, Marco Antonio

Salinas Munoz, Dulce Berenice Vargas Baltazar, KEITH ELLISON

14 Ericka Lisseth Daniel Santellan, Grisel

Attorney General State of Minnesota

15 Guadalupe Chavez Diaz, and Felipe Alvarez Carrillo

JULIANNA F. PASSE (pro hac vice) Attorneys for Plaintiff State of Minnesota

16 COTCHETT, PITRE & McCARTHY, LLP
17

/s/ Justin T. Berger 18 JUSTIN T. BERGER
Attorneys for Plaintiff City of San Jose 19

20

21

22

23

24

25

26

27

28
2
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 6 of 8

1

ALTSHULER BERZON LLP

2

/s/ Stacey M. Leyton

STACEY M. LEYTON

3

Attorneys for Plaintiffs COUNTY OF

SANTA CLARA AND SERVICE

4

EMPLOYEES INTERNATIONAL

UNION LOCAL 521

5

JAMES R. WILLIAMS (SBN 271253)

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County Counsel

GRETA S. HANSEN (SBN 251471)

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LAURA S. TRICE (SBN 284837)

MARCELO QUIÑONES (SBN 279132)

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HANNAH KIESCHNICK (SBN 319011)

OFFICE OF THE COUNTY COUNSEL

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70 West Hedding Street, East Wing, Ninth

Floor

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San Jose, California 95110

Telephone: (408) 299-5900

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Facsimile: (408) 292-7240

Email: laura.trice@cco.sccgov.org,

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marcelo.quinones@cco.sccgov.org,

hannah.kieschnick@cco.sccgov.org

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/s/ Hannah Kieschnick

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HANNAH KIESCHNICK

Attorneys for Plaintiff COUNTY OF

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SANTA CLARA

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BRIAN M. BOYNTON

Acting Assistant Attorney General

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BRAD P. ROSENBERG

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Assistant Branch Director

20 /s/ Stephen M. Pezzi

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STEPHEN M. PEZZI (DC Bar #995500)

Trial Attorney

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United States Department of Justice

Civil Division, Federal Programs Branch

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1100 L Street, N.W.

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Washington, DC 20005

Telephone: (202) 305-8576

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Facsimile: (202) 616-8460

E-mail: stephen.pezzi@usdoj.gov 26

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Attorneys for Defendants

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STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 7 of 8

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[PROPOSED] ORDER

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Pursuant to the parties’ stipulation, this Court hereby issues the following ORDER:

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All pending deadlines in this matter are hereby VACATED;

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All further proceedings in this matter are hereby STAYED pending further court

5 order; and

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The parties are hereby ORDERED to submit joint status reports every 60 days

7 pending further court order, with the first joint status report due on May 24, 2021.

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IT IS SO ORDERED.

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____________________________

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WILLIAM ALSUP UNITED STATES DISTRICT

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JUDGE

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STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 8 of 8

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ATTESTATION OF SIGNATURES

2 I, James F. Zahradka II, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
3 District of California that concurrence in the filing of this document has been obtained from each
4 signatory hereto.
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6 Dated: March 22, 2021 7 8

/s/ James F. Zahradka II JAMES F. ZAHRADKA II Supervising Deputy Attorney General Attorney for State of California

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STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)