CLOSED,TYPE−C
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02325−JDB

TRUSTEES OF PRINCETON UNIVERSITY et al v. UNITED STATES OF AMERICA et al Assigned to: Judge John D. Bates Case: 1:17−cv−01907−JDB
Case in other court: USCA, 18−05245 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 11/03/2017 Date Terminated: 08/23/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

TRUSTEES OF PRINCETON UNIVERSITY

represented by Thomas J. Perrelli JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001 (202) 639−6000 Fax: (202) 661−4855 Email: tperrelli@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay C. Harrison JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001−4412 (202) 639−6865 Email: LHarrison@jenner.com ATTORNEY TO BE NOTICED

Plaintiff MICROSOFT CORPORATION

represented by Thomas J. Perrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay C. Harrison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
MARIA DE LA CRUZ PERALES SANCHEZ

represented by Thomas J. Perrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren R. Goldman MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020 212−506−2500 Email: lrgoldman@mayerbrown.com PRO HAC VICE ATTORNEY TO BE NOTICED

Lindsay C. Harrison (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 17−cv−01907−JDB
Plaintiff UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFL−CIO, CLC 17−cv−01907−JDB V. Defendant UNITED STATES OF AMERICA

represented by Douglas James McNamara COHEN, MILSTEIN, SELLERS & TOLL 1100 New York Avenue NW Suite 500, West Tower Washington, DC 20005 (202) 408−4600 Email: dmcnamara@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M. Sellers COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408−4604 Fax: (202) 408−4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Horwitz COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408−4600 Fax: (202) 408−4699 Email: jhorwitz@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie S. Selesnick COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave, NW Suite 500 Washington, DC 20815 (202) 408−4600 Fax: (202) 457−1678 Email: jselesnick@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph M. Sellers (See above for address) ATTORNEY TO BE NOTICED
Julie S. Selesnick (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., NW

Defendant
U.S. DEPARTMENT OF HOMELAND SECURITY

Washington, DC 20530 (202 305−7920 Email: brinton.lucas@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514−9239 Fax: (202) 616−8460 Email: kate.bailey@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 (202) 616−8298 Fax: (202) 616−8460 Email: Kathryn.C.Davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L St, NW Washington, DC 20005 202−514−1280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 (202) 305−8576 Fax: (202) 616−8470 Email: stephen.pezzi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Room 11220 Washington, DC 20005 (202) 514−4781 Fax: (202) 616−8460 Email: galen.thorp@usdoj.gov ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY

Defendant ELAINE C. DUKE in her official capacity as Acting Secretary of the Department of Homeland Security
Defendant DEPARTMENT OF HOMELAND SECURITY 17−cv−1902 JDB

ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address)

Defendant ELAINE C. DUKE 17−cv−1902 JDB, in her official capacity as acting Secretary of Homeland Security
Defendant JEFFERSON B. SESSIONS, III 17−cv−1902 JDB, in his official capacity as Attorney General of the United States

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis

Defendant DONALD J. TRUMP 17−cv−1902 JDB, in his official capacity as President of the United States
Defendant U.S. CITIZENSHIP AND IMMIGRATION SERVICES 17−cv−1902 JDB

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 17−cv−1902 JDB
Defendant UNITED STATES OF AMERICA 17−cv−1902

Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Gerald Brinton Lucas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kate Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Celia Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant LATINOJUSTICE PRLDEF
Movant CITY OF LOS ANGELES
Movant 28 ADDITIONAL CITIES AND COUNTIES
Movant NATIONAL LEAGUE OF CITIES
Movant UNITED STATES CONFERENCE OF MAYORS
Movant ARAB AMERICAN INSTITUTE
Movant ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND

Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen Nicholas Thorp (See above for address) ATTORNEY TO BE NOTICED
represented by Paul Marc Levine BAKER & HOSTETLER, LLP 1050 Connecticut Avenue, NW Suite 1100 Washington, DC 20036 (202) 861−1500 Email: pmlevine@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Alex Scherb LOS ANGELES CITY ATTORNEY'S OFFICE 200 N. Main Street, 7th Floor Los Angeles, CA 90012 (213) 978−2204 Email: matthew.scherb@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Alex Scherb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Alex Scherb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew Alex Scherb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY

Movant ASIAN AMERICANS ADVANCING JUSTICE
Movant ASIAN AMERICANS ADVANCING JUSTICE−ASIAN LAW CAUCUS
Movant CUNY DREAMERS
Movant HISPANIC ASSOCIATION OF COLLEGES AND UNIVERSITIES
Movant HISPANIC NATIONAL BAR ASSOCIATION
Movant HISPANIC FEDERATION, INC.
Movant LEAGUE OF UNITED LATIN AMERICAN CITIZENS
Movant NEW YORK STATE YOUTH LEADERSHIP COUNCIL
Movant PRESENTE.ORG
Movant RU DREAMERS

ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address)

Movant UNIDOSUS
Movant BAR ASSOCIATION OF SAN FRANCISCO
Movant LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Movant LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE Movant MISSISSIPPI CENTER FOR JUSTICE Movant PUBLIC COUNSEL
Movant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Marc Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chidera Anyanwu SHEPPARD MULLIN RICHTER HAMPTON LLP 2099 Pennsylvania Avenue, NW Washington, DC 20006−6801 (202) 747−2651 Email: canyanwu@sheppardmullin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Dean Coston VENABLE LLP 600 Massachusetts Avenue, NW Washington, DC 20001 (202) 344−4813 Fax: (202) 344−8300 Email: wdcoston@venable.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jon M. Greenbaum LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662−8325 Email: jgreenbaum@lawyerscommittee.org ATTORNEY TO BE NOTICED
represented by William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

SOUTHERN POVERTY LAW CENTER
Movant WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS Movant ADVOCATES FOR YOUTH
Movant ANTI−DEFAMATION LEAGUE
Amicus IMMIGRATION REFORM LAW INSTITUTE
Amicus CURRENT AND FORMER LAW ENFORCEMENT LEADERS
Amicus 112 COMPANIES

William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Dean Coston (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Julie B. Axelrod CENTER FOR IMMIGRATION STUDIES 1629 K Street, NW Suite 600 Washington, DC 20006 (703) 888−2442 Fax: (202) 466−8076 Email: jba@cis.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joshua Geltzer INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION 600 New Jersey Avenue, NW Washington, DC 20001 (202) 662−9042 Email: jg1861@law.georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew John Pincus MAYER BROWN LLP 1999 K Street, NW Washington, DC 20006 (202) 263−3220 Fax: (202) 263−5220 Email: apincus@mayerbrown.com LEAD ATTORNEY

Amicus TWITTER, INC.

ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt WILMER CUTLER PICKERING HALE & DORR, LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663−6964 Email: ari.holtzblatt@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine M. Lopez ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue NW Washington, DC 20001 (202) 942−5000 Fax: (202) 942−5999 Email: janine.lopez@arnoldporter.com TERMINATED: 04/24/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin MAYER BROWN LLP 1221 Avenue of Americas New York, NY 10020−1001 212−506−2538 Fax: 212−849−5539 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Joseph Carome WILMER CUTLER PICKERING HALE & DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6610 Fax: (202) 663−6363 Email: patrick.carome@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rory K. Schneider MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020−1001 212−506−2157 Fax: 212−849−5775 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth Paul Waxman WILMER CUTLER PICKERING HALE

Amicus YELP, INC.
Amicus AIRBNB, INC.

& DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663−6000 Fax: (202) 663−6363 Email: seth.waxman@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine M. Lopez (See above for address) TERMINATED: 04/24/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Joseph Carome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth Paul Waxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine M. Lopez (See above for address) TERMINATED: 04/24/2018 LEAD ATTORNEY

Amicus SQUARE, INC.

PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Joseph Carome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth Paul Waxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ari Holtzblatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine M. Lopez (See above for address) TERMINATED: 04/24/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Joseph Carome (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Seth Paul Waxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus ASIAN LAW ALLIANCE
Amicus BROOKLYN DEFENDER SERVICES
Amicus CENTRO LEGAL DE LA RAZA

Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel COOLEY, LLP 1299 Pennsylvania Ave., N.W Suite 700 Washington, DC 20004−2400 (202) 842−7800 Fax: (202) 842−7899 Email: jsiegel@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus CHILDREN'S LAW CENTER OF MASSACHUSETTS
Amicus COMMUNITY LEGAL SERVICES IN EAST PALO (CLSEPA)

Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus DOLORES STREET COMMUNITY SERVICES
Amicus EAST BAY SANCTUARY COVENANT
Amicus HEARTLAND ALLIANCE'S NATIONAL IMMIGRANT JUSTICE CENTER (NIJC)

represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus HEBREW IMMIGRANT AID SOCIETY (HIAS) PENNSYLVANIA
Amicus IMMIGRANT LEGAL RESOURCE CENTER (ILRC)
Amicus LEGAL AID JUSTICE CENTER

ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus LEGAL AID SOCIETY OF SAN MATEO COUNTY
Amicus LEGAL SERVICES FOR CHILDREN (LSC)
Amicus JUSTICE CENTER OF SOUTHEAST MASSACHUSETTS

ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY

Amicus MASSACHUSETTS LAW REFORM INSTITUTE (MLRI)
Amicus NATIONAL JUSTICE FOR OUR NEIGHBORS

ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus NEW YORK LEGAL ASSISTANCE GROUP
Amicus NORTHWEST IMMIGRANT RIGHTS PROJECT
Amicus ONEJUSTICE

represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK
Amicus SERVICES, IMMIGRANT RIGHTS, AND EDUCATION NETWORK (SIREN)
Amicus JUST NEIGHBORS

ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus CANAL ALLIANCE
Amicus AMHERST COLLEGE

ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Joshua M. Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva PERKINS COIE LLP 700 13th Street, NW Suite 600 Washington, DC 20005 (202) 654−6203 Fax: (202) 654−9664 Email: bspiva@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus ASNUNTUCK COMMUNITY COLLEGE
Amicus BOWDOIN COLLEGE
Amicus BRANDEIS UNIVERSITY

represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus BUCKNELL UNIVERSITY
Amicus CAPITAL COMMUNITY COLLEGE
Amicus CARNEGIE MELLON UNIVERSITY

ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus CASE WESTERN RESERVE UNIVERSITY
Amicus CENTRAL CONNECTICUT STATE UNIVERSITY
Amicus CHARTER OAK STATE COLLEGE

ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY

Amicus COLBY COLLEGE
Amicus UNIVERSITY OF CONNECTICUT

ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus EASTERN CONNECTICUT STATE UNIVERSITY
Amicus EMERSON COLLEGE
Amicus GATEWAY COMMUNITY COLLEGE

represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus HAMPSHIRE COLLEGE
Amicus HOUSATONIC COMMUNITY COLLEGE
Amicus LAWRENCE UNIVERSITY

ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE

Amicus LOS RIOS COMMUNITY COLLEGE DISTRICT
Amicus MANCHESTER COMMUNITY COLLEGE
Amicus UNIVERSITY OF MARYLAND, COLLEGE PARK

ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY

Amicus UNIVERSITY OF MICHIGAN
Amicus MIDDLESEX COMMUNITY COLLEGE

ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus MOUNT HOLYOKE COLLEGE
Amicus NAUGATUCK VALLEY COMMUNITY COLLEGE
Amicus NORTHEASTERN UNIVERSITY

represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Hacker O'MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006 (202) 383−5285 Fax: (202) 383−5414 Email: jhacker@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus NORTHWESTERN COMMUNITY COLLEGE
Amicus NORWALK COMMUNITY COLLEGE

Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus QUINEBAUG VALLEY COMMUNITY COLLEGE
Amicus RICE UNIVERSITY
Amicus SAN FRANCISCO COMMUNITY COLLEGE DISTRICT

represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus SMITH COLLEGE
Amicus SOUTHERN CONNECTICUT STATE UNIVERSITY
Amicus THREE RIVERS COMMUNITY COLLEGE

Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus TUFTS UNIVERSITY
Amicus TUNXIS COMMUNITY COLLEGE
Amicus WELLESLEY COLLEGE

Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus WESTERN CONNECTICUT STATE UNIVERSITY
Amicus WORCESTER POLYTECHNIC INSTITUTE

Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus WILLIAMS COLLEGE
Amicus BROWN UNIVERSITY

represented by Bruce Van Spiva (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray O'MELVENY & MYERS LLP 7 Times Square New York, NY 10036 212−326−2000 TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler O'MELVENY & MYERS LLP 7 Times Square New York, NY 10036 212−326−2162 Fax: 212−326−2061 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE

Amicus CALIFORNIA INSTITUTE OF TECHNOLOGY
Amicus COLUMBIA UNIVERSITY

ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker

Amicus CORNELL UNIVERSITY
Amicus DARTMOUTH COLLEGE

(See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider

Amicus DUKE UNIVERSITY
Amicus EMORY UNIVERSITY

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin

Amicus GEORGETOWN UNIVERSITY
Amicus GEORGE WASHINGTON UNIVERSITY

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler

Amicus HARVARD UNIVERSITY
Amicus MASSACHUSETTS INSTITUTE OF TECHNOLOGY

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address)

Amicus NORTHWESTERN UNIVERSITY

TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address)

Amicus STANFORD UNIVERSITY
Amicus UNIVERSITY OF CHICAGO

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus UNIVERSITY OF PENNSYLVANIA
Amicus VANDERBILT UNIVERSITY

Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus WASHINGTON UNIVERSITY IN ST. LOUIS
Amicus YALE UNIVERSITY

Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle C. Gray (See above for address) TERMINATED: 03/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer B. Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Karen W. Lin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rory K. Schneider (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan D. Hacker (See above for address) ATTORNEY TO BE NOTICED
Lauren R. Goldman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 11/03/2017
11/03/2017 11/03/2017 11/03/2017 11/03/2017 11/06/2017 11/09/2017
11/09/2017 11/21/2017 11/22/2017

# Docket Text
1 COMPLAINT against U.S. DEPARTMENT OF HOMELAND SECURITY, UNITED STATES OF AMERICA, ELAINE C. DUKE ( Filing fee $ 400 receipt number 0090−5190077) filed by TRUSTEES OF PRINCETON UNIVERSITY, MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Perrelli, Thomas) (Entered: 11/03/2017)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY (Perrelli, Thomas) (Entered: 11/03/2017)
3 NOTICE OF RELATED CASE by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. Case related to Case No. 17−cv−1907. (Perrelli, Thomas) (Entered: 11/03/2017)
4 REQUEST FOR SUMMONS TO ISSUE filed by TRUSTEES OF PRINCETON UNIVERSITY, MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION.(Perrelli, Thomas) (Entered: 11/03/2017)
Case Assigned to Judge Christopher R. Cooper. (md) (Entered: 11/06/2017)
5 SUMMONS (4) Issued Electronically as to ELAINE C. DUKE, U.S. DEPARTMENT OF HOMELAND SECURITY, UNITED STATES OF AMERICA, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 11/06/2017)
MINUTE ORDER: The Court directs Defendants to file a responsive pleading by November 22, 2017. Plaintiffs' opposition to that pleading is due on or before December 13, 2017. Defendants' reply is due 14 days after Plaintiffs file their opposition. Signed by Judge Christopher R. Cooper on 11/9/2017. (lccrc3) (Entered: 11/09/2017)
Set/Reset Deadlines: Answer due by 11/22/2017. Responses due by 12/13/2017 (lsj) (Entered: 11/09/2017)
6 Joint MOTION for Scheduling Order and Stipulation Regarding Use of Discovery by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, THE TRUSTEES OF PRINCETON UNIVERSITY (Attachments: # 1 Proposed Scheduling Order)(Perrelli, Thomas) (Entered: 11/21/2017)
7 SCHEDULING ORDER: See Order for full briefing schedule. The Court will hold a motions hearing on January 31, 2017 at 10:00 AM in Courtroom 27A. Signed by

11/22/2017 11/27/2017 12/12/2017 12/13/2017 12/14/2017 12/14/2017
12/15/2017 12/15/2017
12/15/2017
12/15/2017
12/15/2017 12/15/2017

Judge Christopher R. Cooper on 11/22/2017. (lccrc1) (Entered: 11/22/2017)
8 MOTION to Dismiss by ELAINE C. DUKE, U.S. DEPARTMENT OF HOMELAND SECURITY, UNITED STATES OF AMERICA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Certified Index of Administrative Record)(Westmoreland, Rachael). Added MOTION for Summary Judgment on 11/27/2017 (znmw). (Entered: 11/22/2017)
Set/Reset Deadlines/Hearings: Response to Dispositive Motions due by 12/15/2017. Reply to Dispositive Motions due by 1/10/2018. Replies due by 1/19/2018. Oral Arguments on Motion set for 1/31/2018 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (lsj) (Entered: 11/27/2017)
9 MOTION for Leave to File Amicus Brief by IMMIGRATION REFORM LAW INSTITUTE (Attachments: # 1 Amicus Brief, # 2 Text of Proposed Order)(Axelrod, Julie) Modified event title on 12/13/2017 (znmw). (Entered: 12/12/2017)
10 Joint MOTION for Leave to File Excess Pages by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY (Attachments: # 1 Proposed Order)(Perrelli, Thomas) (Entered: 12/13/2017)
NOTICE OF ERROR re 10 Motion for Leave to File Excess Pages; emailed to tperrelli@jenner.com, cc'd 8 associated attorneys −− The PDF file you docketed contained errors: 1. Cases are not consolidated; Documents shall only contain one case caption and case number; File separate motion in 17−1907 if it also pertains to that case. (znmw, ) (Entered: 12/14/2017)
MINUTE ORDER granting 10 Joint Motion for Leave to Enlarge Page Limit. Plaintiffs' memorandum of law supporting their combined opposition to Defendant's motion to dismiss may be up to 50 pages. Plaintiffs' memorandum supporting their motion for a preliminary injunction or for summary judgment may be up to 55 pages. Defendants' memorandum supporting their opposition to Plaintiffs' motions may be up to 55 pages. Signed by Judge Christopher R. Cooper on 12/14/2017. (lccrc1) (Entered: 12/14/2017)
11 MOTION for Leave to File Brief Amici Curiae by Current and Former Law Enforcement Leaders (Attachments: # 1 Exhibit Brief Amici Curiae, # 2 Text of Proposed Order)(Geltzer, Joshua) (Entered: 12/15/2017)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Karen W. Lin, :Firm− Mayer Brown LLP, :Address− 1221 Avenue of the Americas, New York, NY 10020−1001. Phone No. − 212−506−2538. Fax No. − 212−849−5539 Filing fee $ 100, receipt number 0090−5251462. Fee Status: Fee Paid. by 112 COMPANIES (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Pincus, Andrew) (Entered: 12/15/2017)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Lauren R. Goldman, :Firm− Mayer Brown LLP, :Address− 1221 Avenue of the Americas, New York, NY 10020−1001. Phone No. − 212−506−2647. Fax No. − 212−849−5647 Filing fee $ 100, receipt number 0090−5251506. Fee Status: Fee Paid. by 112 COMPANIES (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Pincus, Andrew) (Entered: 12/15/2017)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Rory K. Schneider, :Firm− Mayer Brown LLP, :Address− 1221 Avenue of the Americas, New York, NY 10020−1001. Phone No. − 212−506−2157. Fax No. − 212−849−5775 Filing fee $ 100, receipt number 0090−5251526. Fee Status: Fee Paid. by 112 COMPANIES (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Pincus, Andrew) (Entered: 12/15/2017)
15 NOTICE of Appearance by Seth Paul Waxman on behalf of Twitter, Inc., Yelp, Inc., Airbnb, Inc., Square, Inc. (Waxman, Seth) (Entered: 12/15/2017)
16 NOTICE of Appearance by Patrick Joseph Carome on behalf of Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp, Inc. (Carome, Patrick) (Entered: 12/15/2017)

12/15/2017 12/15/2017 12/15/2017 12/15/2017
12/15/2017
12/15/2017 12/15/2017 12/15/2017

17 Unopposed MOTION for Leave to File Amicus Brief by 112 COMPANIES (Attachments: # 1 Exhibit A − Amicus Brief of 112 Companies in Support of Plaintiffs' Motion for Summary Judgment and/or Preliminary Injunction, # 2 Exhibit B − Proposed Order)(Pincus, Andrew) (Entered: 12/15/2017)
18 NOTICE of Appearance by Ari Holtzblatt on behalf of Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp, Inc. (Holtzblatt, Ari) (Entered: 12/15/2017)
19 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Janine M. Lopez, :Firm− Wilmer Cutler Pickering Hale and Dorr LLP, :Address− 60 State Street Boston, MA 02109. Phone No. − 617−526−6454. Fax No. − 617−526−5000 Filing fee $ 100, receipt number 0090−5251601. Fee Status: Fee Paid. by Airbnb, Inc., Square, Inc., Twitter, Inc., Yelp, Inc. (Attachments: # 1 Declaration in Support of Motion, # 2 Text of Proposed Order)(Holtzblatt, Ari) (Entered: 12/15/2017)
20 MOTION for Leave to File Brief as Amici Curiae in Support of Plaintiffs' Motion for Summary Judgment and/or Preliminary Injunction by Asian Law Alliance, Brooklyn Defender Services, Centro Legal de la Raza, Children's Law Center of Massachusetts, Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), LEGAL AID JUSTICE CENTER, Legal Aid Society of San Mateo County, Legal Services for Children (LSC), Justice Center of Southeast Massachusetts, Massachusetts Law Reform Institute (MLRI), National Justice for Our Neighbors, New York Legal Assistance Group, NORTHWEST IMMIGRANT RIGHTS PROJECT, OneJustice, Rocky Mountain Immigrant Advocacy Network, Services, Immigrant Rights, and Education Network (SIREN), Just Neighbors, Canal Alliance (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Siegel, Joshua) (Entered: 12/15/2017)
21 Unopposed MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Summary Judgment and/or Preliminary Injunction by Amherst College, Asnuntuck Community College, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, University of Connecticut, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Rios Community College District, Manchester Community College, University of Maryland, College Park, UNIVERSITY OF MICHIGAN, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Quinebaug Valley Community College, Rice University, San Francisco Community College District, Smith College, Southern Connecticut State University, Three Rivers Community College, Tufts University, Tunxis Community College, Wellesley College, Western Connecticut State University, Worcester Polytechnic Institute, Williams College (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Spiva, Bruce) (Entered: 12/15/2017)
22 MOTION For Leave To Allow Three Declarants To Proceed By Pseudonym by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Certificate of Service)(Perrelli, Thomas) (Entered: 12/15/2017)
23 Memorandum in opposition to re 8 MOTION to Dismiss MOTION for Summary Judgment filed by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Perrelli, Thomas) (Entered: 12/15/2017)
24 NOTICE of Appearance by Jonathan D. Hacker on behalf of Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, George Washington University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St.

12/15/2017
12/15/2017
12/15/2017
12/15/2017
12/19/2017 12/19/2017 12/19/2017 12/19/2017

Louis, Yale University (Hacker, Jonathan) (Entered: 12/15/2017)
25 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Danielle C. Gray, :Firm− O'Melveny & Myers LLP, :Address− 7 Times Square, New York, NY 10036. Phone No. − (212) 326−2000. Fax No. − (213) 326−2061 Filing fee $ 100, receipt number 0090−5251722. Fee Status: Fee Paid. by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (Attachments: # 1 Declaration of Danielle C. Gray, # 2 Text of Proposed Order)(Hacker, Jonathan) (Entered: 12/15/2017)
26 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jennifer Sokoler, :Firm− O'Melveny & Myers LLP, :Address− 7 Times Square, New York, NY 10036. Phone No. − (212) 326−2000. Fax No. − (212) 326−2061 Filing fee $ 100, receipt number 0090−5251723. Fee Status: Fee Paid. by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (Attachments: # 1 Declaration of Jennifer Sokoler, # 2 Text of Proposed Order)(Hacker, Jonathan) (Entered: 12/15/2017)
27 MOTION for Leave to File Brief of Amici Curiae Eighteen Universities in Support of The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez's Motion for Summary Judgment and/or Injunctive Relief by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University (Attachments: # 1 Exhibit A−Amicus Brief, # 2 Text of Proposed Order)(Hacker, Jonathan) (Entered: 12/15/2017)
28 MOTION for Summary Judgment and/or, MOTION for Preliminary Injunction by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY (Attachments: # 1 Memorandum in Support, # 2 Declaration of Lindsay C. Harrison, # 3 Request for Judicial Notice, # 4 Text of Proposed Order on Motion for Summary Judgment, # 5 Text of Proposed Order on Motion for Preliminary Injunction, # 6 Certificate of Service, # 7 Appendix A. Table of Contents, # 8 Appendix B. Declarations − Exhibits A−Q, # 9 Appendix C. Exhibits 1−24, # 10 Appendix D. Exhibits 25−43, # 11 Appendix E. Exhibits 44−59, # 12 Appendix F. Exhibits 60−78, # 13 Appendix G. Exhibits 79−98, # 14 Appendix H. Exhibits 99−108 and ND Cal Topical Index, # 15 Appendix I. Exhibits 109−120, # 16 Appendix J. Exhibits 121−141, # 17 Appendix K. Declarations − Exhibits R−CC, # 18 Appendix L. Exhibits 142−143 and Topical Index)(Perrelli, Thomas) (Entered: 12/15/2017)
MINUTE ORDER granting 9 Motion of Immigration Reform Law Institute for Leave to File Amicus Brief in Support of Defendants. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 11 Motion of Current and Former Law Enforcement Leaders for Leave to File Amicus Brief in Support of Plaintiffs. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 12 Motion to Admit Karen W. Lin Pro Hac Vice; granting 13 Motion to Admit Lauren R. Goldman Pro Hac Vice; and granting 14 Motion to Admit Rory K. Schneider Pro Hac Vice. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 17 Motion of 112 Companies for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)

12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/19/2017 12/19/2017
12/19/2017
12/19/2017
12/22/2017 12/22/2017

MINUTE ORDER granting 19 Motion to Admit Janine M. Lopez Pro Hac Vice. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 20 Motion of Legal Services Organizations for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 21 Motion for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 27 Motion of Eighteen Universities for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
MINUTE ORDER granting 25 Motion to Admit Danielle C. Gray Pro Hac Vice; and granting 26 Motion to Admit Jennifer Sokoler Pro Hac Vice. Signed by Judge Christopher R. Cooper on 12/19/2017. (lccrc1) (Entered: 12/19/2017)
29 AMICUS BRIEF by IMMIGRATION REFORM LAW INSTITUTE. (td) (Entered: 12/20/2017)
30 AMICUS BRIEF by Current and Former Law Enforcement Leaders. (td) (Entered: 12/20/2017)
31 AMICUS BRIEF by 112 COMPANIES. (td) (Entered: 12/20/2017)
32 AMICUS BRIEF by Asian Law Alliance, Brooklyn Defender Services, Canal Alliance, Centro Legal de la Raza, Children's Law Center of Massachusetts, Community Legal Services in East Palo Alto (CLSEPA), Dolores Street Community Services, East Bay Sanctuary Covenant, Heartland Alliance's National Immigrant Justice Center (NIJC), Hebrew Immigrant Aid Society (HIAS) Pennsylvania, Immigrant Legal Resource Center (ILRC), Just Neighbors, Justice Center of Southeast Massachusetts, LEGAL AID JUSTICE CENTER, Legal Aid Society of San Mateo County, Legal Services for Children (LSC), Massachusetts Law Reform Institute (MLRI), NORTHWEST IMMIGRANT RIGHTS PROJECT, National Justice for Our Neighbors, New York Legal Assistance Group, OneJustice, Rocky Mountain Immigrant Advocacy Network, Services, Immigrant Rights, and Education Network (SIREN). (td) (Entered: 12/20/2017)
33 AMICUS BRIEF by Amherst College, Asnuntuck Community College, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Rios Community College District, Manchester Community College, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Quinebaug Valley Community College, Rice University, San Francisco Community College District, Smith College, Southern Connecticut State University, Three Rivers Community College, Tufts University, UNIVERSITY OF MICHIGAN, University of Connecticut, University of Maryland, College Park, Wellesley College, Western Connecticut State University, Williams College, Worcester Polytechnic Institute. (td) (Entered: 12/20/2017)
34 AMICUS BRIEF by Brown University, California Institute of Technology, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northeastern University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University. (td) (Entered: 12/20/2017)
35 NOTICE of Appearance by Paul Marc Levine on behalf of LATINOJUSTICE PRLDEF (Levine, Paul) (Entered: 12/22/2017)
36 MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Motion for Summary Judgment And/Or Preliminary Injunction and Plaintiffs' Opposition to Defendants' Motion to Dismiss by LATINOJUSTICE PRLDEF (Attachments: # 1

12/22/2017 12/22/2017 12/22/2017 12/22/2017 12/22/2017 12/22/2017
12/29/2017 12/29/2017 12/29/2017

Exhibit 1, # 2 Amicus Brief, # 3 Text of Proposed Order)(Levine, Paul) (Entered: 12/22/2017)
37 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Madiha M. Zuberi, :Firm− Baker & Hostetler LLP, :Address− 11601 Wilshire Boulevard, Suite 1400, Los Angeles, CA 90025. Phone No. − 310−979−8454. Fax No. − 310−820−8859 Filing fee $ 100, receipt number 0090−5262628. Fee Status: Fee Paid. by LATINOJUSTICE PRLDEF (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Levine, Paul) (Entered: 12/22/2017)
38 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jose Luis Perez, :Firm− LatinoJustice PRLDEF, :Address− 99 Hudson Street, New York, NY 10013. Phone No. − 213−219−3360. Fax No. − 212−431−4276 Filing fee $ 100, receipt number 0090−5262630. Fee Status: Fee Paid. by LATINOJUSTICE PRLDEF (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Levine, Paul) (Entered: 12/22/2017)
39 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Fernando Bohorquez, Jr., :Firm− Baker & Hostetler LLP, :Address− 45 Rockefeller Plaza, New York, NY 10111. Phone No. − 212−589−4200. Fax No. − 212−589−4201 Filing fee $ 100, receipt number 0090−5262635. Fee Status: Fee Paid. by LATINOJUSTICE PRLDEF (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Levine, Paul) (Entered: 12/22/2017)
40 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Alan Friel, :Firm− Baker & Hostetler LLP, :Address− 11601 Wilshire Boulevard, Suite 1400, Los Angeles, CA 90025. Phone No. − 310−979−8860. Fax No. − 310−820−8859 Filing fee $ 100, receipt number 0090−5262643. Fee Status: Fee Paid. by LATINOJUSTICE PRLDEF (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Levine, Paul) (Entered: 12/22/2017)
41 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Tiffany Miao, :Firm− Baker & Hostetler LLP, :Address− 45 Rockefeller Plaza, New York, NY 10111. Phone No. − 212−847−4266. Fax No. − 212−589−4201 Filing fee $ 100, receipt number 0090−5262649. Fee Status: Fee Paid. by LATINOJUSTICE PRLDEF (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Levine, Paul) (Entered: 12/22/2017)
42 MOTION for Leave to File by CITY OF LOS ANGELES, 28 Additional Cities and Counties, The National League of Cities, The United States Conference of Mayors (Attachments: # 1 AMICUS BRIEF OF THE CITY OF LOS ANGELES, 28 ADDITIONAL CITIES AND COUNTIES., THE NATIONAL LEAGUE OF CITIES, AND THE UNITED STATES CONFERENCE OF MAYORS IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND/OR PRELIMINARY INJUNCTION, # 2 [PROPOSED] ORDER GRANTING LEAVE TO FILE AND ORDERING FILING OF AMICUS CURIAE BRIEF)(Scherb, Matthew) (Entered: 12/22/2017)
43 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− John−Paul S. Deol, :Firm− Sheppard, Mullin, Richter & Hampton LLP, :Address− 4 Embarcadero Center, 17th Floor, San Francisco, CA 94111. Phone No. − 415.434.9100. Fax No. − 415.434.3947 Filing fee $ 100, receipt number 0090−5268110. Fee Status: Fee Paid. by The Bar Association of San Francisco (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Anyanwu, Chidera) (Entered: 12/29/2017)
44 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Neil A.F. Popovic, :Firm− Sheppard, Mullin, Richter & Hampton LLP, :Address− 4 Embarcadero Center, 17th Floor, San Francisco, CA 94111. Phone No. − 415.434.9100. Fax No. − 415.434.3947 Filing fee $ 100, receipt number 0090−5268155. Fee Status: Fee Paid. by The Bar Association of San Francisco (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Anyanwu, Chidera) (Entered: 12/29/2017)
45 Unopposed MOTION for Leave to File Amicus Curiae Brief by The Bar Association of San Francisco (Attachments: # 1 Exhibit Exhibit A − Proposed Amicus Brief of the Bar Association of San Francisco, # 2 Text of Proposed Order)(Anyanwu, Chidera) (Entered: 12/29/2017)

01/03/2018 01/04/2018 01/04/2018 01/05/2018 01/08/2018 01/12/2018
01/12/2018 01/12/2018
01/12/2018

46 Case randomly reassigned to Judge John D. Bates. Judge Christopher R. Cooper is no longer assigned to the case. (ztnr) (Entered: 01/03/2018)
47 MOTION for Extension of Time to File Response/Reply by ELAINE C. DUKE, U.S. DEPARTMENT OF HOMELAND SECURITY, UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Bailey, Kate). Added MOTION to Modify on 1/5/2018 (znmw). (Entered: 01/04/2018)
48 ERRATA Correcting Date by ELAINE C. DUKE, UNITED STATES OF AMERICA 47 MOTION for Extension of Time to File Response/Reply filed by UNITED STATES OF AMERICA, ELAINE C. DUKE, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order CORRECTED Proposed Order)(Bailey, Kate) (Entered: 01/04/2018)
49 SCHEDULING ORDER granting 47 defendants' motion for a modified briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 1/5/2018. (lcjdb1) (Entered: 01/05/2018)
Set/Reset Deadlines/Hearings: Reply due by 1/22/2018. Response to Motion for Summary Judgment due by 1/31/2018. Motion Hearing rescheduled for 2/2/2018 at 9:30 AM in Courtroom 30A before Judge John D. Bates. (gdf) (Entered: 01/08/2018)
50 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Sameer P. Sheikh, :Firm− Venable LLP, :Address− 600 Massachusetts Avenue NW, Washington, D.C. 20001. Phone No. − 202−344−4168. Fax No. − 202−344−8300 Filing fee $ 100, receipt number 0090−5285694. Fee Status: Fee Paid. by ADVOCATES OF YOUTH, LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, PUBLIC COUNSEL, SOUTHERN POVERTY LAW CENTER, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, ANTI−DEFAMATION LEAGUE, MISSISSIPPI CENTER FOR JUSTICE.(Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Coston, William) Modified filers on 1/16/2018 (znmw). (Entered: 01/12/2018)
51 NOTICE of Appearance by William Dean Coston on behalf of ADVOCATES OF YOUTH, LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, PUBLIC COUNSEL, SOUTHERN POVERTY LAW CENTER, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, ANTI−DEFAMATION LEAGUE, MISSISSIPPI CENTER FOR JUSTICE. (Coston, William) Modified filers on 1/16/2018 (znmw). (Entered: 01/12/2018)
52 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Martin L. Saad, :Firm− Venable LLP, :Address− 600 Massachusetts Avenue NW, Washington, D.C. 20001. Phone No. − 202−344−4345. Fax No. − 202−344−8300 Filing fee $ 100, receipt number 0090−5286205. Fee Status: Fee Paid. by ADVOCATES OF YOUTH, LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, PUBLIC COUNSEL, SOUTHERN POVERTY LAW CENTER, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, ANTI−DEFAMATION LEAGUE, MISSISSIPPI CENTER FOR JUSTICE. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Coston, William) Modified filers on 1/16/2018 (znmw). (Entered: 01/12/2018)
53 Consent MOTION for Leave to File Amicus Brief by ADVOCATES OF YOUTH, LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, PUBLIC COUNSEL, SOUTHERN POVERTY LAW CENTER, WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, ANTI−DEFAMATION LEAGUE, MISSISSIPPI CENTER FOR JUSTICE. (Attachments: # 1 Exhibit A − Amicus Brief of the Lawyers' Committee for Civil Rights Under Law, Anti−Defamation League, and Social Justice Organizations in Support of Motion for Summary Judgment and/or Preliminary Injunction, # 2 Exhibit B − Proposed Order)(Coston, William) Modified filers on 1/16/2018 (znmw). (Entered: 01/12/2018)

01/18/2018
01/19/2018 01/22/2018
01/22/2018
01/25/2018 01/25/2018 01/26/2018 01/26/2018
01/28/2018 02/06/2018 02/16/2018

MINUTE ORDER: On the Court's own motion, and upon consideration of the entire record herein, it is hereby ORDERED that this case is CONSOLIDATED with Civil Action No. 17−1907 for purposes of the dispositive motions currently pending in both cases; it is further ORDERED that all filings with respect to those motions shall be made jointly and shall be filed only in this case; it is further ORDERED that counsel of record in both cases shall receive electronic notice of any filings made in either case; and it is further ORDERED that counsel in both cases shall determine how to divide their argument time at the motions hearing currently set for Friday, February 2, 2018. SO ORDERED. Signed by Judge John D. Bates on 1/18/2018. (lcjdb1) (Entered: 01/18/2018)
54 NOTICE of Appearance by Jon M. Greenbaum on behalf of LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW (Greenbaum, Jon) (Entered: 01/19/2018)
55 Memorandum in opposition to re 28 MOTION for Summary Judgment and/or MOTION for Preliminary Injunction filed by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA. (Westmoreland, Rachael) (Entered: 01/22/2018)
56 REPLY to opposition to motion re 8 MOTION to Dismiss MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA. (Westmoreland, Rachael) (Entered: 01/22/2018)
57 NOTICE of Appearance by Kathryn Celia Davis on behalf of All Defendants (Davis, Kathryn) (Entered: 01/25/2018)
Set/Reset Hearings: Telephone Conference set for 1/26/2018 at 02:30 PM in Courtroom 30A before Judge John D. Bates. (tb) (Entered: 01/26/2018)
Minute Entry for proceedings held before Judge John D. Bates: Telephone Conference call held on 1/26/2018. The Motions Hearing presently scheduled for Friday, February 2, 2018 is continued to a date and time to be determined. (Revised Scheduling Order to be Issued) (Court Reporter: Lisa Moreira) (jth) (Entered: 01/26/2018)
MINUTE ORDER: Upon consideration of the matters discussed at the telephone conference held on this date, including plaintiffs' oral motion for an extension of time to file their reply in support of 28 their motion for summary judgment, it is hereby ORDERED that the plaintiffs' oral motion is GRANTED; it is further ORDERED that the plaintiffs' reply shall be filed by not later than Tuesday, February 6, 2018; it is further ORDERED that, at the request of both parties, the motions hearing currently set in this matter for Friday, February 2, 2018 is CONTINUED; and it is further ORDERED that the parties shall file, by not later than Thursday, February 22, 2018, a joint status report presenting their respective proposals for scheduling further proceedings in this case. SO ORDERED. Signed by Judge John D. Bates on 1/26/2018. (lcjdb1) (Entered: 01/26/2018)
Set/Reset Deadlines: Plaintiffs' Reply in support of their 28 Motion for Summary Judgment is due by 2/6/2018. A Joint Status Report representing the parties' respective proposals for scheduling further proceedings in this case is due by 2/22/2018. (jth) (Entered: 01/28/2018)
58 REPLY to opposition to motion re 28 MOTION for Summary Judgment and/or MOTION for Preliminary Injunction filed by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Attachments: # 1 Appendix M. Exhibit DD, # 2 Certificate of Service)(Perrelli, Thomas) (Entered: 02/06/2018)
59 NOTICE of Filing of Joint Appendix of Administrative Exhibits Relied Upon by the Parties With Respect to Dispositive Motions by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON

02/16/2018 02/22/2018 02/26/2018
02/27/2018 03/05/2018 03/05/2018
03/05/2018 03/06/2018 03/06/2018
03/06/2018 03/07/2018 03/14/2018
03/15/2018

UNIVERSITY re 8 MOTION to Dismiss MOTION for Summary Judgment, 28 MOTION for Summary Judgment and/or MOTION for Preliminary Injunction (Perrelli, Thomas) (Entered: 02/16/2018)
60 JOINT APPENDIX by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Perrelli, Thomas) (Entered: 02/16/2018)
61 Joint STATUS REPORT by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Perrelli, Thomas) (Entered: 02/22/2018)
MINUTE ORDER: Upon consideration of 61 the parties' joint status report, and the entire record herein, it is hereby ORDERED that a hearing on the dispositive motions currently pending in this case is tentatively set for Wednesday, March 14, 2018 at 9:30 a.m. in Courtroom 30; and it is further ORDERED that the parties shall file, by not later than Monday, March 5, 2018 at 1:00 p.m., another joint status report addressing any scheduling issues that remain outstanding as of that date. SO ORDERED. Signed by Judge John D. Bates on 2/26/2018. (lcjdb1) (Entered: 02/26/2018)
Set/Reset Deadlines/Hearings: Joint Status Report due by 1:00 p.m. on 3/5/2018. Motion Hearing set for 3/14/2018 at 01:00 PM in Courtroom 30A before Judge John D. Bates. (tb) (Entered: 02/27/2018)
62 Joint STATUS REPORT by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Perrelli, Thomas) (Entered: 03/05/2018)
MINUTE ORDER: Upon consideration of 62 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the motions hearing tentatively set for Wednesday, March 14, 2018 at 9:30 a.m. is confirmed for that date and time; and it is further ORDERED that the Clerk of Court shall update the Court's public calendar to reflect the 9:30 a.m. hearing time. SO ORDERED. Signed by Judge John D. Bates on 3/5/2018. (lcjdb1) (Entered: 03/05/2018)
Set/Reset Hearings: Motion Hearing reset for 3/14/2018 at 09:30 AM in Courtroom 30A before Judge John D. Bates. (tb) (Entered: 03/05/2018)
63 NOTICE of Appearance by Gerald Brinton Lucas on behalf of All Defendants (Lucas, Gerald) (Entered: 03/06/2018)
MINUTE ORDER: It is hereby ORDERED that at the hearing on the motions to dismiss and for summary judgment pending in these cases, which is currently set for Wednesday, March 14, at 9:30 a.m., plaintiffs and defendants shall each be allowed 45 minutes for oral argument. It is further ORDERED that plaintiffs' counsel shall determine how to divide their argument time among themselves. SO ORDERED. Signed by Judge John D. Bates on 3/6/2018. (lcjdb1) (Entered: 03/06/2018)
MINUTE ORDER: Upon consideration of plaintiffs' consent request to change the time of the hearing currently set for Wednesday, March 14, 2018, at 9:30 a.m., and the entire record herein, it is hereby ORDERED that the hearing shall take place on that date at 10:00 a.m. Signed by Judge John D. Bates on 3/6/2018. (lcjdb1) Modified on 3/7/2018 (tb). (Entered: 03/06/2018)
Set/Reset Hearings: Motion Hearing set for 3/14/2018 at 10:00 AM in Courtroom 30A before Judge John D. Bates. (tb) (Entered: 03/07/2018)
Minute Entry: Motions Hearing held on 3/14/2018 before Judge John D. Bates re: 8 MOTION to Dismiss MOTION for Summary Judgment filed by UNITED STATES OF AMERICA, ELAINE C. DUKE, U.S. DEPARTMENT OF HOMELAND SECURITY and 28 MOTION for Summary Judgment and/or MOTION for Preliminary Injunction filed by MARIA DE LA CRUZ PERALES SANCHEZ, TRUSTEES OF PRINCETON UNIVERSITY, MICROSOFT CORPORATION. Motions heard and taken under advisement. (Court Reporter Bryan Wayne) (tb) (Entered: 03/14/2018)
64 TRANSCRIPT OF 3/14/18 MOTIONS HEARING before Judge John D. Bates held on March 14, 2018; Page Numbers: 1−95. Date of Issuance: March 15, 2018. Court

03/15/2018 03/19/2018
03/23/2018
03/30/2018 04/24/2018 04/24/2018 06/22/2018
06/27/2018 06/27/2018 07/11/2018

Reporter: Bryan A. Wayne. Transcripts may be ordered at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 4/5/2018. Redacted Transcript Deadline set for 4/15/2018. Release of Transcript Restriction set for 6/13/2018.(Wayne, Bryan) (Entered: 03/15/2018)
65 NOTICE of Clarification by UNITED STATES OF AMERICA (Davis, Kathryn) (Entered: 03/15/2018)
66 NOTICE OF WITHDRAWAL OF APPEARANCE as to BROWN UNIVERSITY, CALIFORNIA INSTITUTE OF TECHNOLOGY, COLUMBIA UNIVERSITY, CORNELL UNIVERSITY, DARTMOUTH COLLEGE, DUKE UNIVERSITY, EMORY UNIVERSITY, GEORGE WASHINGTON UNIVERSITY, GEORGETOWN UNIVERSITY, HARVARD UNIVERSITY, MASSACHUSETTS INSTITUTE OF TECHNOLOGY, NORTHWESTERN UNIVERSITY, STANFORD UNIVERSITY, UNIVERSITY OF PENNSYLVANIA, VANDERBILT UNIVERSITY, WASHINGTON UNIVERSITY IN ST. LOUIS, YALE UNIVERSITY, UNIVERSITY OF CHICAGO. Attorney Danielle C. Gray terminated. (Hacker, Jonathan) (Entered: 03/19/2018)
67 NOTICE by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1 − Amended Order, # 2 Exhibit 2 − Memorandum Order, # 3 Exhibit 3 − Joint Status Report, # 4 Exhibit 4 − Defendants' Notice)(Davis, Kathryn) (Entered: 03/23/2018)
68 MOTION to Withdraw as Attorney (Motion to Withdraw as Counsel − Janine M. Lopez) by AIRBNB, INC., SQUARE, INC., TWITTER, INC., YELP, INC. (Holtzblatt, Ari) (Entered: 03/30/2018)
69 ORDER granting in part, denying in part, and deferring in part 8 defendants' motion to dismiss; granting in part and denying in part 28 plaintiffs' motion for summary judgment; and disposing of the remaining motions pending in this case. See text of Order for details. Signed by Judge John D. Bates on 4/24/2018. (lcjdb1) (Entered: 04/24/2018)
70 MEMORANDUM AND OPINION. Signed by Judge John D. Bates on 4/24/2018. (lcjdb1) (Main Document 70 replaced on 4/26/2018) (ztd). (Entered: 04/24/2018)
71 NOTICE of Filing by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA (Attachments: # 1 Exhibit A − Memorandum)(Davis, Kathryn) (Entered: 06/22/2018)
72 SCHEDULING ORDER. See text of Order for details. Signed by Judge John D. Bates on 6/27/2018. (lcjdb1) (Entered: 06/27/2018)
Set/Reset Deadlines: Motion to revive Order 69 is due by 7/11/2018. Responses due by 7/23/2018. Reply due by 7/27/2018. (tb) (Entered: 06/27/2018)
73 NOTICE of Appearance by Stephen M. Pezzi on behalf of All Defendants (Pezzi, Stephen) (Entered: 07/11/2018)

07/11/2018
07/23/2018 07/27/2018
08/03/2018 08/03/2018 08/03/2018 08/06/2018
08/07/2018 08/13/2018 08/14/2018

74 MOTION for Order Revising the Court's April 24, 2018 Order by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Davis, Kathryn) (Entered: 07/11/2018)
75 Memorandum in opposition to re 74 MOTION for Order Revising the Court's April 24, 2018 Order filed by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Perrelli, Thomas) (Entered: 07/23/2018)
76 REPLY to opposition to motion re 74 MOTION for Order Revising the Court's April 24, 2018 Order filed by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA. (Davis, Kathryn) (Entered: 07/27/2018)
77 ORDER denying 74 defendants' motion to revise 69 the Court's April 24, 2018 Order. See text of Order for details. Signed by Judge John D. Bates on 8/3/2018. (lcjdb1) (Entered: 08/03/2018)
78 MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/3/2018. (lcjdb1) (Entered: 08/03/2018)
Set/Reset Deadlines: The stay of the Court's 4/24/2018 Order vacating the DHS's 9/5/2017 decision rescinding the DACA program is continued until 8/23/2018. Defendants shall file by 8/23/2018 any motion seeking a further stay of the Court's Order pending appeal. (jth) (Entered: 08/03/2018)
79 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 78 Memorandum & Opinion, 77 Order on Motion for Order, 70 Memorandum & Opinion, 69 Order on Motion for Miscellaneous Relief,, Order on Motion for Summary Judgment,, Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,, Order on Motion to Withdraw as Attorney, by ELAINE C. DUKE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), U.S. DEPARTMENT OF HOMELAND SECURITY, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, ELAINE C. DUKE, DEPARTMENT OF HOMELAND SECURITY, UNITED STATES OF AMERICA. Fee Status: No Fee Paid. Parties have been notified. (Davis, Kathryn) (Entered: 08/06/2018)
80 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 79 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 08/07/2018)
USCA Case Number 18−5245 for 79 Notice of Appeal to DC Circuit Court,,, filed by JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE. (zrdj) (Entered: 08/13/2018)
81 MOTION to Clarify Regarding Entry of Final Judgment by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Davis, Kathryn) (Entered: 08/14/2018)

08/14/2018
08/15/2018 08/16/2018
08/17/2018 08/17/2018 07/23/2020 07/23/2020
07/27/2020

82 MOTION to Stay re 77 Order on Motion for Order, 69 Order on Motion for Miscellaneous Relief,, Order on Motion for Summary Judgment,, Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, Order on Motion for Leave to Appear Pro Hac Vice,,,,,,,,,,,,,,,,,,,,,,,, Order on Motion to Withdraw as Attorney, Pending Appeal by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1 − Renaud Decl., # 2 Text of Proposed Order)(Davis, Kathryn) (Entered: 08/14/2018)
83 RESPONSE re 82 MOTION to Stay re 77 Order on Motion for Order, 69 Order on Motion for Miscellaneous Relief,, Order on Motion for Summary Judgment,, Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, filed by MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY. (Attachments: # 1 Exhibit A)(Perrelli, Thomas) (Entered: 08/15/2018)
84 REPLY to opposition to motion re 82 MOTION to Stay re 77 Order on Motion for Order, 69 Order on Motion for Miscellaneous Relief,, Order on Motion for Summary Judgment,, Order on Motion for Preliminary Injunction,, Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, filed by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA. (Davis, Kathryn) (Entered: 08/16/2018)
85 ORDER granting 81 the government's motion to clarify and granting in part and denying in part 82 the government's motion to stay. See text of Order for details. Signed by Judge John D. Bates on 8/17/2018. (lcjdb1) (Entered: 08/17/2018)
86 MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/17/2018. (lcjdb1) (Entered: 08/17/2018)
87 ORDER remanding to the Department of Homeland Security. See text of Order for details. Signed by Judge John D. Bates on 7/23/2020. (lcjdb1) (Entered: 07/23/2020)
88 MANDATE of USCA as to (28 in 1:17−cv−01907−JDB) Notice of Appeal to DC Circuit Court,, filed by JEFFERSON B. SESSIONS, III, DONALD J. TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, (79 in 1:17−cv−02325−JDB) Notice of Appeal to DC Circuit Court,,, filed by JEFFERSON B. SESSIONS, III, DONALD J. TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE ; USCA Case Number 18−5243. (Attachment: # 1 USCA Order)(zsb) (Entered: 07/24/2020)
MINUTE ORDER: It is hereby ORDERED that the government shall file a status report by not later than August 11, 2020, informing the Court of (1) what steps the government has taken on remand to comply with the Supreme Court's opinion in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020), which affirmed this Court's 69 77 Orders; and (2) what actions the government has taken in response to other judicial orders bearing on the DACA program that have been issued since the Supreme Court's decision, including any relevant orders in Casa De Maryland v. U.S. Department of Homeland Security, No. 17−cv−2942−PWG (D. Md. 2020); it is further ORDERED that plaintiffs may file a status report by not later than August 11, 2020, informing the Court of any outstanding issues and whether this Court retains authority to address them in light of its 87 Order remanding to the Department of Homeland Security. SO ORDERED. Signed by Judge John D. Bates on 7/27/2020. (lcjdb1) (Entered: 07/27/2020)

07/27/2020 07/28/2020
07/29/2020
08/03/2020 08/03/2020 08/05/2020 08/05/2020

Set/Reset Deadlines: Status Reports due by 8/11/2020. (tb) (Entered: 07/27/2020)
89 NOTICE by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, ELAINE C. DUKE, JEFFERSON B. SESSIONS, III, DONALD J. TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA(17−cv−1902), UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1)(Westmoreland, Rachael) (Entered: 07/28/2020)
MINUTE ORDER: Upon consideration of 89 notice of memorandum, and the entire record herein, it is hereby ORDERED that a telephonic status conference is scheduled for August 5, 2020, at 10:00 a.m.; it is further ORDERED that, pursuant to Standing Order 20−20 (BAH), the Court will provide access for the public to listen to the status conference at toll−free number 888−278−0296 and access code 4416918; and it is further ORDERED that participants using the public access telephone line shall adhere to the rules set forth in Standing Order 20−20, available on the Court's website. SO ORDERED. Signed by Judge John D. Bates on 7/29/2020. (lcjdb1) (Entered: 07/29/2020)
Set/Reset Hearings: Telephone Conference set for 8/5/2020 at 10:00 AM in Telephonic/VTC before Judge John D. Bates. (tb) (Entered: 08/03/2020)
90 NOTICE of Appearance by Galen Nicholas Thorp on behalf of All Defendants (Thorp, Galen) (Entered: 08/03/2020)
Minute Entry: Telephone Conference held on 8/5/2020 before Judge John D. Bates: The parties shall file a joint status report by 9/16/2020 and the 8/11/2020 deadline for filing a status report is VACATED. (Court Reporter Cathryn Jones) (tb) (Entered: 08/05/2020)
91 NOTICE of Appearance by Lindsay C. Harrison on behalf of MARIA DE LA CRUZ PERALES SANCHEZ, MICROSOFT CORPORATION, TRUSTEES OF PRINCETON UNIVERSITY (Harrison, Lindsay) (Entered: 08/05/2020)

 
 Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

THE TRUSTEES OF PRINCETON

)

UNIVERSITY

)

Princeton, New Jersey 08544

)

) Civil Action No. _______________

MICROSOFT CORPORATION

)

One Microsoft Way

)

Redmond, WA 98052

) COMPLAINT FOR DECLARATORY AND

) INJUNCTIVE RELIEF

MARIA DE LA CRUZ PERALES SANCHEZ, )

Princeton, New Jersey 08544

)

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES OF AMERICA,

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY,

)

650 Massachusetts Avenue, NW

)

Washington, DC 20001

)

)

and

)

)

ELAINE C. DUKE, in her official capacity as )

Acting Secretary of the Department of

)

Homeland Security,

)

650 Massachusetts Avenue, NW

)

Washington, DC 20001

)

)

Defendants.

)

)

)

)

)

)

)

)

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 2 of 42
COMPLAINT Plaintiff The Trustees of Princeton University (“Princeton” or “the University”)—suing on its own behalf and on behalf of its students—Plaintiff Microsoft Corporation (“Microsoft”), and Plaintiff Maria De La Cruz Perales Sanchez (“Perales Sanchez”) (collectively, “Plaintiffs”) bring this action for declaratory and injunctive relief against Defendants the United States of America; the U.S. Department of Homeland Security (“DHS”); and Elaine C. Duke, in her official capacity as Acting Secretary of DHS (“Duke”) (collectively, “Defendants”), and allege as follows:
INTRODUCTION 1. Millions of young people arrived in the United States as children, brought here by immigrant parents searching for safety, stability, and opportunity. Known as Dreamers, these young people were raised here as Americans: they were educated in American communities, surrounded by American friends, struggling and striving alongside their American peers. Many have grown up to be impressive leaders: star students, educators, soldiers, architects, entrepreneurs, lawyers, and scholars,1 each advancing on their own merit and making considerable contributions to American society. By any measure, these achievements are extraordinary. They are all the more impressive considering the uncertainty that long defined their lives. Until 2012, Dreamers lived in pervasive fear that they might return home from school or work one day to find immigration authorities on their doorstep, prepared to take them into custody. Instead of turning to the normal routines of their personal lives—dinner, family, homework—they might be suddenly deported to a country that is in no sense their home. 2. DHS finally addressed that untenable situation in 2012 when it created DACA— Deferred Action for Childhood Arrivals. DACA provided up to 2 million Dreamers the chance to obtain protection from deportation and the opportunity to develop their skills through education.
2

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 3 of 42

Individuals who received deferred action under DACA were not subject to removal for a period of two years, subject to renewal. DACA also rendered recipients eligible for work authorization that allowed them to work legally anywhere in the United States. To qualify for DACA, Dreamers were required to meet strict conditions: they must have entered this country prior to age sixteen, have resided here continuously since 2007 and been present in the United States on June 15, 2012, and on the date they requested deferred action; be in school, have graduated, or have been discharged honorably from the Armed Forces or Coast Guard; pose no threat to public safety or national security; and have been under the age of 31 as of June 15, 2012. To demonstrate their eligibility, Dreamers had to provide the government with detailed and highly sensitive personal information, pay a significant fee, and submit to a rigorous background check.
3. Given that most Dreamers had lived for years in fear of federal immigration authorities, asking them to turn over their private information to those same authorities was a bold request. The government was aware that Dreamers might reasonably be reluctant to sign up. It accordingly devoted significant resources to an outreach campaign calling on Dreamers to apply for DACA, assuring potential applicants that it would protect their information (and the information of their families and guardians) from disclosure to other agencies for purposes of immigration enforcement proceedings.
4. The government’s efforts to encourage Dreamers to apply for DACA worked. Since 2012, nearly 800,000 young people—including Perales Sanchez—have come to rely on

1

See,

e.g.,

American

Dreamers,

N.Y.

TIMES

(2017),

https://www.nytimes.com/interactive/projects/storywall/american-dreamers/ (featuring stories

from individuals who were able to work and study in the United States under DACA); Gregory

Korte et al., Trump Administration Struggles with Fate of 900 DREAMers Serving in the Military,

USA TODAY (Sept. 7, 2017), https://www.usatoday.com/story/news/politics/2017/09/07/trump-

administration-struggles-fate-900-dreamers-serving-military/640637001/.

3

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 4 of 42
DACA.2 They have made educational plans, pursued career paths, and invested in their lives here based on the government’s promise that they would be safe from deportation so long as they complied with DACA’s rules and procedures. Many Dreamers have gotten married and started families here in the belief that DACA would allow them to remain in the United States to raise their children. Other Dreamers have taken out significant student loans to pursue higher education and advanced degrees that make them better able to contribute to a growing American economy. They have launched and invested in companies, purchased homes and cars, paid taxes, pursued opportunities to serve our country in the military, and generally lived full and productive lives out of the shadows that many undocumented immigrants were forced into by the uncertainty that preceded DACA.
5. Princeton and Microsoft also have benefited from—and relied upon—DACA. As one of the nation’s premiere universities, Princeton devotes substantial resources to recruiting and admitting the most promising students. Since 2012, Princeton has admitted and enrolled at least 21 Dreamers who have relied on the government’s promises regarding DACA, and 15 DACA beneficiaries are currently enrolled as undergraduate students at the University. Similarly, Microsoft has invested significant resources in Dreamers, who serve in critical roles at the company. Together with its subsidiary LinkedIn Corporation, Microsoft employs at least 45 DACA recipients as software engineers, financial analysts, inventory control experts, and in core technical and operations positions and other specialized functions and internships. The company has invested significant resources in recruiting, retaining, and supporting these individuals, and in training them to develop within the organization.
2 Jens Manuel Krogstad, Pew Research Ctr., DACA Has Shielded Nearly 790,000 Young Unauthorized Immigrants from Deportation (Sept. 1, 2017), http://www.pewresearch.org/facttank/2017/09/01/unauthorized-immigrants-covered-by-daca-face-uncertain-future/.
4

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 5 of 42
6. Dreamers are particularly promising students and employees because of the significant barriers they have overcome in order to excel. As children, they were forced not only to navigate a new country, culture, and language, but also to do so knowing that at any moment, they might be taken into custody and sent far from their homes and lives here in the United States. To have achieved educational and career successes under such precarious circumstances suggests that Dreamers have grit and perseverance, can overcome obstacles, and will exceed expectations— all qualities that Princeton values in its students and Microsoft values in its employees.
7. DACA recipients have made countless contributions to Microsoft in their diverse roles within a number of the company’s divisions, including the Office Products Group, Windows and Devices Group, Cloud & Enterprise, Artificial Intelligence and Research Group, LinkedIn, Finance, Worldwide Commercial Business, and Retail division. Microsoft has significant interests in retaining these employees and in reaping the benefits of their talent over time. It has conducted its business operations on the understanding that DACA recipients would continue to be eligible to work at the company.
8. At the University, DACA beneficiaries study in a diverse array of fields, including computer science, molecular biology, mechanical and aerospace engineering, psychology, and politics. They serve as mentors and peer advisors, class representatives in student government, and as community organizers and campus leaders. They have earned numerous academic honors, awards, and fellowships, including several competitive and prestigious national or University fellowships. They have collaborated on important research projects, including as part of the University’s Computer Science Summer Programming Experience,3 and through the University’s
3 Princeton University, Princeton Summer Programming Experiences (SPE), http://www.cs.princeton.edu/academics/ugradpgm/spe/home/ (last visited Nov. 3, 2017).
5

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 6 of 42
Keller Center for Innovation.4 They have published in campus publications. They have secured highly competitive internships, including with the United Nations. They are among the most accomplished and respected students studying at the University.
9. Among the DACA beneficiaries at Princeton is Plaintiff Maria De La Cruz Perales Sanchez. Perales Sanchez is an impressive student. She has received the Arthur Liman public interest summer fellowship, the Fred Fox Fund grant for independent projects, and the Princeton Institute for International and Regional Studies undergraduate fellowship for summer thesis research. She has also served as a peer academic advisor, as the co-director of the Princeton Dream Team (an immigrants’ rights organization), as a member of her undergraduate department’s advisory council, and as a volunteer and leader of Community House, a tutoring organization serving underprivileged students.
10. Dreamers’ presence on Princeton’s campus also benefits other students and helps fulfill the University’s educational mission. Princeton has long made clear that diversity and inclusion are central to its mission for many reasons: First, diverse environments are more intellectually and socially stimulating, with research from the fields of psychology, sociology, and economics showing that experiences with diversity improve one’s own intellectual skills and performance, improve self-confidence, decrease negative stereotypes and biases, and create awareness of inequalities and discrimination.5 Second, because fundamental fairness is a core value of the University, Princeton believes that students of all backgrounds should have an equal opportunity to earn a position at Princeton, and then to contribute and succeed in their subsequent
4 Princeton University, Keller Center, https://kellercenter.princeton.edu/ (last visited Nov. 3, 2017). 5 Deborah Son Holoien, Do Differences Make a Difference? The Effects of Diversity on Learning, Intergroup Outcomes, and Civic Engagement (2003), http://www.princeton.edu/reports/ 2013/diversity/report/PU-report-diversity-outcomes.pdf.
6

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 7 of 42
endeavors. And third, core to its educational mission is the idea that Princeton students should live and learn in an environment that reflects U.S. society and introduces them to the world beyond. In broadening the range of perspectives to which they are exposed, Princeton offers students a better understanding of the world and renders them better equipped to lead and serve others in today’s pluralistic society.6
11. Microsoft similarly benefits greatly from a workforce that reflects the diversity of the United States—and the world. As a worldwide leader in software, services, devices and solutions that help people and businesses reach their full potential, it places a high priority on having a diverse workforce that can reflect the global customer base that it serves. Similarly, Microsoft’s subsidiary LinkedIn benefits from a diverse workforce as the world’s largest professional network with members in more than 200 countries and territories worldwide. DACA helped advance this interest by increasing the breadth of experiences, perspectives, and approaches to problem-solving represented in the workforce through the lenses of the highly qualified and talented DACA beneficiaries hired into the companies.
12. Because fostering a diversity of perspectives is crucial to Princeton’s mission of teaching and research and to Microsoft’s core business functions, these two institutions have invested in many initiatives to make their campus and workplaces more welcoming to people of all backgrounds.7 DACA recipients are no exception.
13. For example, Princeton has provided faculty time, attention, privately-funded financial aid for tuition, room and board, and more to DACA recipients with the expectation that
6 Princeton University, Our Commitment to Diversity, https://inclusive.princeton.edu/about/ourcommitment-diversity (last visited Nov. 3, 2017). 7 See Princeton University, Initiatives, https://inclusive.princeton.edu/initiatives (last visited Nov. 3, 2017).
7

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 8 of 42
they would be allowed to complete their studies at the University and make contributions in the “nation’s service and in service of humanity.”8 Without DACA, Perales Sanchez and other Dreamers have significantly fewer opportunities to work and contribute, substantially diminishing the value of their Princeton education. And Princeton will have to make up the difference in financial aid to compensate for their inability to contribute through on-campus work.
14. Princeton’s President, Christopher Eisgruber, has described Princeton’s significant interest in DACA, noting that DACA “enables law-abiding young people who have grown up in the United States to develop their talents and contribute productively to this country, which is their home.”9 President Eisgruber joined a group of more than 700 college and university presidents in issuing a statement supporting DACA.10 As that statement explains, since the advent of DACA in 2012, universities like Princeton “have seen the critical benefits of this program for our students, and the highly positive impacts on our institutions and communities.”11 The statement continues:
DACA beneficiaries on our campuses have been exemplary student scholars and student leaders, working across campus and in the community. With DACA, our students and alumni have been able to pursue opportunities in business, education, high tech, and the non-profit sector; they have gone to medical school, law school, and graduate schools in numerous disciplines. They are actively contributing to their local communities and economies.12
8 This is Princeton’s informal motto. See Princeton University, In Service of Humanity, https://www.princeton.edu/meet-princeton/service-humanity (last visited Nov. 3, 2017). 9 President Eisgruber’s Statement on Deferred Action for Childhood Arrivals (DACA), Office of the President, Princeton, http://www.princeton.edu/president/eisgruber/speecheswritings/archive/?id=17355 (last visited Nov. 3, 2017). 10 Pomona College, College & University Presidents Call for U.S. to Uphold and Continue DACA (Nov. 21, 2016), https://www.pomona.edu/news/2016/11/21-college-university-presidents-callus-uphold-and-continue-daca. 11 Id. 12 Id.
8

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 9 of 42
Because Princeton has already invested in students based on the expectation that DACA would
facilitate their studying and working in this country, and because it desires to continue to so invest
due to the significant contributions of DACA beneficiaries, Princeton has significant interests in retaining the DACA program.13
15. Similarly, Microsoft has made significant investments to foster an inclusive and
diverse workplace environment, including by recruiting, retaining, and developing its employees
who are Dreamers. Given the persistent demand for high-skilled talent and the tightness of the
labor supply for professionals in Microsoft’s industry, the costs of recruiting employees are high
and unanticipated turnover is incredibly disruptive to business plans. Microsoft has significant
interests in retaining the Dreamers it employs, and in reaping the benefits of their talent over time.
It has conducted its business operations on the understanding that these individuals would continue
to be eligible to work at the company.
16. As Microsoft’s President Brad Smith has explained, “DACA recipients bring a
wide array of educational and professional backgrounds that enable them to contribute in crucial ways to our nation’s workforce.”14 He continued:
We experience this in a very real way at Microsoft. . . . [E]mployees who are beneficiaries of DACA . . . are software engineers with top technical skills; finance professionals driving our business ambitions forward; and retail and sales associates connecting customers to our technologies. Each of them is actively participating in our collective mission to empower every person and every organization on the planet to achieve more. They are not only our colleagues, but our friends, our neighbors and valued members of the Microsoft community.15
13 Princeton is also interested as an employer in retaining the DACA program because it enables DACA beneficiaries to obtain work authorization. 14 Microsoft President Brad Smith, DREAMers make our country and communities stronger (Aug. 31, 2017), https://blogs.microsoft.com/on-the-issues/2017/08/31/dreamers-make-countrycommunities-stronger?lipi=urn%3Ali%3Apage%3Ad_flagship3_pulse_ read%3BVGlIRxrxTBirfzbdYk4jSg%3D%3D. 15 Id.
9

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 10 of 42
17. Microsoft’s CEO Satya Nadella has also underscored the importance of Microsoft’s DACA-beneficiary employees to its business, explaining that he “see[s] each day the direct contributions that talented employees from around the world bring to our company, our customers and to the broader economy.”16 As he stated, “[w]e care deeply about the DREAMers who work at Microsoft and fully support them. We will always stand for diversity and economic opportunity for everyone. It is core to who we are at Microsoft and I believe it is core to what America is.”17
18. The government has also benefited from Dreamers’ willingness to participate in the DACA program. Many DACA recipients have pursued professions in fields suffering from serious labor shortages, such as nursing and home health care; removing them from the economy could dramatically escalate costs that are in large part covered by Medicaid and Medicare.18 DACA recipients have also contributed to national security, with approximately 900 DACA recipients serving in the military under a program for persons who possess skills “vital to the national interest.”19 More broadly, using their education and work authorizations, Dreamers have helped American companies grow and thrive. They have contributed to valuable technological innovations, promising medical and scientific research, and creative artistic endeavors.
16 Satya Nadella, CEO, Microsoft, DREAMers Make Our Country and Communities Stronger (Aug. 31, 2017), https://www.linkedin.com/pulse/dreamers-make-our-country-communitiesstronger-satya-nadella/. 17 Id. 18 Noam Scheiber & Rachel Adams, What Older Americans Stand to Lose if ‘Dreamers’ Are Deported, N.Y. TIMES (Sept. 6, 2007), https://www.nytimes.com/2017/09/06/business/ economy/daca-dreamers-home-health-care.html. 19 Alex Horton, The Military Looked to ‘Dreamers’ to Use Their Vital Skills. Now the U.S. Might Deport Them, WASH. POST (Sept. 7, 2017), https://www.washingtonpost.com/news/checkpoint/ wp/2017/09/07/the-military-looked-to-dreamers-to-use-their-vital-skills-now-the-u-s-mightdeport-them/?utm_term=.be8c41bb71ef; Korte, supra n.1.
10

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 11 of 42
19. The Dreamers have held up their end of the bargain. But the same cannot be said of the United States. Although the Trump Administration continued to induce Dreamers to rely on the DACA program for the Administration’s first eight months, on September 5, 2017, Attorney General Sessions announced Defendants’ decision to end the DACA program. That same day, Acting Secretary of Homeland Security Elaine C. Duke issued a memorandum formally rescinding DACA.
20. The termination of the DACA program severely harms Perales Sanchez and other Dreamers, as well as the employers and educational institutions that rely on and benefit from their contributions. For example, as a result of the rescission of the program, Princeton will suffer the loss of critical members of its community—students who lead vital student organizations, contribute to important research projects, participate in study-abroad programs, and perform oncampus work that aids the activities of the University. Similarly, Microsoft will lose employees who fill critical positions in the company’s workforce and in whom the company has invested— leaving gaps that cannot easily be filled.
21. Accordingly, the University, Microsoft, and Perales Sanchez bring this action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the Fifth Amendment of the U.S. Constitution, to enjoin the rescission of DACA and to obtain a declaration that the DACA program was lawful as initially promulgated and remains lawful today.
VENUE AND JURISDICTION 22. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, because this action arises under the laws of the United States, including the judicial review provisions of
11

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 12 of 42
the Administrative Procedure Act, 5 U.S.C. §§ 701-706; the Fifth Amendment of the U.S. Constitution; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.
23. Venue is proper in the District of Columbia under 28 U.S.C. § 1391(e). A substantial part of the events giving rise to Plaintiffs’ claims occurred in the District of Columbia. Defendant Duke is a United States officer sued in her official capacity, and her official residence is in the District of Columbia. Defendant DHS is a U.S. agency with its principal office in the District of Columbia.
PARTIES 24. The University is a private, non-profit educational institution with its principal place of business at Princeton University, Princeton, New Jersey 08544. The University is a “person” within the meaning of 5 U.S.C. § 551(2). 25. Microsoft is a technology corporation organized and existing under the laws of the State of Washington, with its principal place of business in Redmond, Washington. Microsoft is a “person” within the meaning of 5 U.S.C. § 551(2). 26. Maria De La Cruz Perales Sanchez is a DACA beneficiary and a current undergraduate student at Princeton University. Perales Sanchez is a “person” within the meaning of 5 U.S.C. § 551(2). 27. Defendant the United States of America includes all government agencies and departments responsible for the implementation and rescission of the DACA program. 28. Defendant DHS is an “agency” within the meaning of 5 U.S.C. § 551(1) and § 552(f). The Department of Homeland Security has its principal place of business at 650 Massachusetts Avenue NW, Washington, DC 20001.
12

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 13 of 42
29. Defendant Elaine C. Duke is the Acting Secretary of DHS. She is responsible for implementing and enforcing the Immigration and Nationality Act, and oversees the U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement. She issued the DHS Memorandum that purports to rescind DACA. She is being sued in her official capacity.
FACTUAL ALLEGATIONS A. The DACA Program 30. On June 15, 2012, the then-Secretary of Homeland Security issued a memorandum establishing the DACA program (“DACA Memorandum”).20 Under the program, individuals who were brought to the United States as children and met certain criteria could apply for deferred action for a period of two years, subject to renewal. Deferred action means that the government agrees in its discretion to defer the removal21 of an individual for a specified period, subject to renewal. The DACA Memorandum explained that it was intended to set forth “how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and know only this country as home.” Because “these individuals lacked the intent to violate the law,” and because this country’s immigration laws are not “designed to remove productive young people to countries where they may not have lived or even speak the language,” the DACA Memorandum advised that “[p]rosecutorial discretion, which is used in so many other areas, is especially justified here.” The DACA Memorandum acknowledged that it “confers no
20 See Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf. 21 Removal is the legal term used in the Immigration and Naturalization Act for what is commonly known as deportation. See generally 8 U.S.C. § 240.
13

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 14 of 42
substantive right,” but rather “set[s] forth policy for the exercise of discretion within the framework of the existing law.”
31. The DACA Memorandum also set forth a series of stringent criteria individuals had to meet to qualify for the DACA program. Individuals were eligible only if they: (1) came to this country when they were under the age of sixteen; (2) continuously resided in the United States since June 15, 2007, and were present in the United States on June 15, 2012; (3) were currently in school, had graduated from high school, had obtained a general education development certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (4) had not been convicted of a felony, a significant misdemeanor offense, multiple misdemeanor offenses, and otherwise did not pose a threat to national security or public safety; and, (5) were not above the age of 30 as of June 15, 2012.
32. The government prepared answers to Frequently Asked Questions about the DACA program and posted them online.22 They explained that individuals who were granted deferred action are “not considered to be unlawfully present during the period in which deferred action is in effect.”23 Likewise, despite not having received “lawful status,” “[a]n individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.”24
33. In order to apply for the DACA program, individuals including Perales Sanchez were required to pay a substantial fee, submit to biometric and biographical background checks, and hand over highly sensitive personal information, including their date of entry into the United
22 USCIS DACA FAQs, https://www.uscis.gov/archive/frequently-asked-questions (Archived). 23 Id., Question 1. 24 Id.
14

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 15 of 42
States, their country of birth, their current and previous mailing addresses, and other contact information.25
34. Many Dreamers, including Perales Sanchez, were reluctant to hand over their
personal information to the government. Accordingly, the government assured them that their
information would not be used for other immigration-related purposes, including to facilitate their
removal. The official instructions accompanying USCIS’s DACA application form stated:
Information provided in this request is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice To Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of deferred action for childhood arrivals request itself, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing clause covers family members and guardians, in addition to the requestor.26
35. In the DACA Memorandum, the government also assuaged concerns that it might
use information obtained through DACA to facilitate removal. DHS emphasized that the country’s
immigration laws are not designed “to remove productive young people to countries where they
may not have lived or even speak the language.” DHS also acknowledged that many DACA
eligible individuals “have already contributed to [the United States] in significant ways” and that,
as a result, the exercise of prosecutorial discretion is “especially justified” as to those eligible for
relief under DACA.
36. In 2016, then-Secretary of Homeland Security Jeh Johnson further explained the
government’s assurances to Dreamers in a letter to Representative Judy Chu:
25 See Instructions for Consideration of Deferred Action for Childhood Arrivals, USCIS Form I821D at 13 (Jan. 9, 2017), https://www.uscis.gov/sites/default/files/files/form/i-821dinstr.pdf. 26 Id. at 13 (emphasis added).
15

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 16 of 42
Since DACA was announced in 2012, DHS 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 information 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.27
Secretary Johnson represented that this practice of not sharing information supplied by people
seeking deferred action for immigration enforcement purposes had consistently been applied by
DHS and its predecessor INS even before DACA was established. He also acknowledged that
“people who requested to be considered under DACA, like those who requested deferred action in
the past, have relied on our consistent practice concerning the information they provide about
themselves and others.”28
37. The government devoted significant time and effort to encourage Dreamers to apply
for the DACA program, vigorously promoting the program in a variety of ways. Among other
initiatives, the government advised universities on how best to encourage eligible individuals to
apply.29 The government also promoted the DACA program by, among other things, honoring ten
DACA recipients as White House Champions of Change and inviting some of them to the White
House to meet with President Obama.30 Cecilia Muñoz, Director of the White House Domestic
27 Letter from Secretary Jeh Charles Johnson to The Honorable Judy Chu (Dec. 30, 2016), https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response%20to%20 Chu%2012.30.16.pdf. 28 Id. 29 See, e.g., U.S. Dep’t of Education, Resource Guide: Supporting Undocumented Youth (Oct. 20, 2015), https://www2.ed.gov/about/overview/focus/supporting-undocumented-youth.pdf. 30 See Champions of Change: DACA Champions of Change, Obama White House Archives, https://obamawhitehouse.archives.gov/champions/daca-champions-of-change (last visited Nov. 3,
16

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 17 of 42
Policy Council, wrote in a blog post preserved in the Obama White House archives that “[b]ecause the Administration acted, hundreds of thousands of ambitious, hardworking young people have been able to emerge from the shadows, no longer living in fear of deportation.”31
38. In order to entice Dreamers to apply, the government also promised that, if eligible, DACA recipients would be entitled not only to a single, two-year deferral of action but also to the ability to renew their deferred action for the foreseeable future. See 2012 DACA Memorandum (noting that deferred action was “subject to renewal”). Indeed, the government “strongly encourage[d]” DACA recipients to submit their renewal requests well in advance of the relevant expiration date.32 To qualify for renewal, DACA recipients must not have left the United States without advance parole, must have continuously resided in the United States after submitting their initial DACA application, and must not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, or otherwise pose a threat to national security or public safety.33
39. DHS also made it difficult to terminate a Dreamer’s deferred action under DACA. DHS’s Standard Operating Procedures implementing the DACA program provided that, absent a disqualifying criminal offense, national security concern, or other extraordinary circumstance, an individual’s deferred action under DACA could not be removed until the government provided a
2017); Lindsay Holst, Meet the 6 DREAMers the President Met with in the Oval Office Yesterday (Feb. 5, 2015), https://obamawhitehouse.archives.gov/blog/2015/02/05/meet-6-dreamerspresident-met-oval-office-yesterday. 31 Cecilia Muñoz, One Year Anniversary of Implementation of Deferred Action Policy for DREAMers (Aug. 15, 2013), https://obamawhitehouse.archives.gov/blog/2013/08/15/one-yearanniversary-implementation-deferred-action-policy-dreamers. 32 USCIS DACA FAQs, Question 49, https://www.uscis.gov/archive/frequently-asked-questions (Archived). 33 Id., Question 51.
17

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 18 of 42
“Notice of Intent to Terminate” that “thoroughly explain[ed]” the grounds for termination.34 DHS Standard Operating Procedures further provided that recipients of such notice “should be allowed 33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate” prior to termination of deferred action under DACA.35
40. As a result of these policies and procedures, along with other government actions and representations, Perales Sanchez and other Dreamers reasonably expected that they would be allowed to maintain and continue renewing their deferred status, so long as they complied with the government’s straightforward rules.
41. Since its inception in 2012, the DACA program has provided nearly 800,000 young people with the ability to live, study, and work in the United States without hiding in the shadows. For the first time in their lives, DACA recipients, including Perales Sanchez, received Social Security numbers, enabling them to access credit and apply for student loans, obtain driver’s licenses, and apply for federal work authorization. In reliance on the DACA program, Perales Sanchez and other Dreamers have made considerable investments in their American lives, pursuing jobs, and educational programs that cost money, time, and energy, and require a commitment to a future here. For example, after obtaining her federal work authorization, Perales Sanchez worked as a tutor, a research assistant, a dining hall employee, an office assistant, and an associate for an on-campus center for civic engagement.
42. Some Dreamers may not have been able or may not have chosen to study at Princeton without DACA, which, among other things, allowed them to obtain a government-issued
34 National Standard Operating Procedures (SOP), Deferred Action for Childhood Arrivals (DACA), at 132, Appendix I (Apr. 4, 2013), https://cliniclegal.org/sites/default/files/ attachments/daca_sop_4-4-13.pdf. 35 Id.
18

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 19 of 42
photo identification and thus travel back and forth to campus by airplane, and to dream of a future that includes legitimate employment in the United States, helping to justify the dedication and work that goes into a Princeton education. For example, before the DACA program was implemented, Perales Sanchez believed she would never be able to leave her state of residence. After obtaining relief under the DACA program, she was able to fly not only to Princeton as an entering freshman, but also to travel abroad twice—once for a summer internship and once for a study-abroad program.36 DACA has enabled her to pursue those internships and programs to further her dream of going to law school.
43. While Dreamers have certainly benefited from DACA, so too has the government. “By removing the threat of deportation for young people brought to this country as children,” Cecilia Muñoz acknowledged, “DHS has been able to focus its enforcement efforts on those who endanger our communities rather than students pursuing an education and seeking to better themselves and their communities.”37 Then-Secretary Johnson acknowledged additional benefits from the program in 2016, explaining:
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.38
36 Perales Sanchez obtained advance parole for her extraterritorial travel. 37 Id. 38 Johnson, supra n.27.
19

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 20 of 42
B. Defendants’ Unlawful and Unconstitutional Rescission of DACA 44. On September 5, 2017, Attorney General Sessions announced Defendants’ decision to end the DACA program, and Acting Secretary of Homeland Security Elaine C. Duke issued a memorandum formally rescinding the DACA program (“DACA Rescission Memorandum”). 45. President Trump’s statements about the DACA program—both before and after its rescission—have been less consistent. In the speech that launched his campaign, then-candidate Trump promised to “immediately terminate President Obama’s illegal executive order on immigration,” referring to DACA.39 On the same day that he met with the Mexican president in August 2016, he again announced his intent to “immediately terminate” DACA.40 But after the election, he told Time magazine: “We’re going to work something out that’s going to make people happy and proud. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”41 And a few days after his inauguration, President Trump told ABC’s David Muir that DACA recipients “shouldn’t be very worried.”42 At a February 16, 2017 press conference, President Trump explained his thinking on the subject: “The DACA situation is a very difficult thing for me as I love these kids, I love kids, I have kids and grandkids and I find it very, very hard doing what the law says exactly to do and, you know, the law is rough. It’s rough, very very rough.”43
39 Anu Joshi, Donald Trump and DACA: A Confusing History, HUFFINGTON POST (Mar. 3, 2017), http://www.huffingtonpost.com/entry/donald-trump-and-daca-a-confusinghistory_us_58b9960be4b0fa65b844b24a. 40 Id. 41 Michael Scherer, 2016 Person of the Year Donald Trump, TIME (Dec. 8, 2016), http://time.com/time-person-of-the-year-2016-donald-trump/. 42 Joshi, supra n.39. 43 Id.
20

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 21 of 42
46. On June 29, 2017, officials from ten States, led by Texas Attorney General Ken Paxton, sent a letter to U.S. Attorney General Jeff Sessions, asserting that the DACA program is unlawful and requesting that it be “phase[d] out.”44 The States threatened to challenge DACA in court unless DACA was rescinded by September 5, 2017.
47. In response to that letter, other stakeholders weighed in. A letter from the attorneys general of twenty States, led by California, described how DACA has “been a boon to the communities, universities, and employers with which these Dreamers are connected, and for the American economy as a whole.”45 A separate, open letter from hundreds of entrepreneurs and business leaders noted that “[a]t least 72 percent of the top 25 Fortune 500 companies count DACA recipients among their employees.” It explained that “Dreamers are vital to the future of our companies and our economy. With them, we grow and create jobs. They are part of why we will continue to have a global competitive advantage.” If the DACA program were rescinded, “[o]ur economy would lose $460.3 billion from the national GDP and $24.6 billion in Social Security and Medicare tax contributions.”46 The letter was signed by, among many others, Satya Nadella

44 See Chris Geidner, Texas Attorney General Threatens to Sue Trump If He Doesn’t End DACA,

BUZZFEED NEWS (June 29, 2017), https://www.buzzfeed.com/chrisgeidner/texas-attorney-

general-threatens-to-sue-trump-if-he-doesnt?utm_term=.umwR4Ll05#.it7d1JGWx.

The

Tennessee Attorney General later reversed course and withdrew Tennessee’s threat to sue. See

Letter from Tennessee Attorney General Herbert H. Slattery III to Sens. Lamar Alexander and Bob

Corker (Sept. 1, 2017), https://www.vox.com/policy-and-politics/2017/9/1/16243944/daca-

tennessee-dream-act. He explained that he had changed his mind because “[t]here is a human

element to this,” and “[m]any of the DACA recipients, some of whose records I reviewed, have

outstanding accomplishments and laudable ambitions, which if achieved, will be of great benefit

and service to our country.” Id.

45 Letter from Xavier Becerra (July 21, 2017), https://oag.ca.gov/system/files/attachments/

press_releases/7-21-17%20%20Letter%20from%20State%20AGs%20to%20President%

20Trump%20re%20DACA.final_.pdf.

46 Leaders of American Industry on DACA (Aug. 31, 2017), https://dreamers.fwd.us/business-

leaders.

21

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 22 of 42
and Brad Smith of Microsoft, Jeff Bezos of Amazon, Tim Cook of Apple, Mark Zuckerberg and Sheryl Sandberg of Facebook, and Sundar Pichai of Google.
48. Despite the overwhelming evidence of DACA’s benefits, DACA was rescinded on September 5, 2017—the deadline provided in Texas Attorney General Paxton’s letter. Unlike the DACA program itself, which required case-by-case assessment of individual applications, DACA’s rescission is a categorical rule, applicable to all DACA recipients. The rationale provided by Attorney General Sessions for rescinding DACA, which was echoed by Acting Secretary Duke, was that it is vulnerable to the “same legal and constitutional defects that the courts recognized as to DAPA [Deferred Action for Parents of Americans and Lawful Permanent Residents],” which is a separate program that DHS introduced in November 2014, and which was enjoined prior to its effective date. Accordingly, the Attorney General and Acting Secretary stated that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.”47
49. DHS’s rationale is directly at odds with new policies that the agency announced in connection with its rescission of DACA. For example, when it announced rescission, DHS declared that it would continue to adjudicate pending DACA applications. DHS also asserted that it would adjudicate any applications for renewal filed by individuals whose deferred status under DACA would expire before March 5, 2018, so long as those applications were filed by October 5, 2017.48 This announcement effectively extended DACA for an additional two and a half years.
47 Letter on Rescission of Deferred Action for Childhood Arrivals (Sept. 4, 2017), https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-DACA.pdf; Memorandum on Rescission of Deferred Action for Childhood Arrivals (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca#. 48 Memorandum on Rescission of Deferred Action for Childhood Arrivals (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca#.
22

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 23 of 42
50. DHS’s asserted basis for rescinding DACA also conflicts with the position
previously taken by the United States, including in an opinion by the Office of Legal Counsel (“OLC”) that has not been withdrawn.49 Its credibility is further undermined by President Trump’s
own tweet, published less than nine hours after the announcement of DACA’s rescission, promising that if Congress does not “legalize DACA” in six months, “I will revisit this issue!”50
51. In addition, the government has provided no assurance or commitment that the
information collected from DACA applicants will not be used to pursue their deportation. The
DACA Rescission Memorandum is silent on the issue. DHS has adopted a new privacy policy
pursuant to an Executive Order issued in January 2017 that “permits the sharing of information about immigrants and non-immigrants with federal, state, and local law enforcement.”51 And
whereas the government in the past had promised that information provided by DACA applicants “is protected from disclosure,”52 it now states only that such information “will not be proactively provided to ICE and CBP for the purpose of immigration enforcement proceedings.”53
49 See Dep’t of Homeland Sec.’s Auth. to Prioritize Removal of Certain Aliens Unlawfully Present in the U.S. & to Defer Removal of Others, 2014 WL 10788677 (Op. O.L.C. Nov. 19, 2014). 50 See Donald J. Trump (@realDonaldTrump), Twitter (Sep. 5, 2017, 8:38 PM), https://twitter.com/realDonaldTrump/status/905228667336499200; Josh Blackman, Trump’s DACA Decision Defies All Norms, LawFare@FP (Sept. 7, 2017), http://foreignpolicy.com/2017/09/07/trumps-daca-decision-defies-all-norms/ (“[T]his latest constitutional whiplash undermines that defense on an even more profound level.”). 51 DHS, Privacy Policy 2017-01 Questions & Answers, at 3 (Apr. 27, 2017), https://www.dhs.gov/sites/default/files/publications/Privacy%20Policy%20Questions%20%20A nswers%2C%2020170427%2C%20Final.pdf. 52 USCIS DACA FAQs, Question 19 (emphasis added). The referenced Notice to Appearance guidance is USCIS Policy Memorandum 602-0050 (Nov. 7, 2011) (“Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens”). 53 DHS, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017) (emphasis added), https://www.dhs.gov/news/2017/09/05/frequentlyaskedquestions-rescission-deferred-action-childhood-arrivals-daca.
23

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 24 of 42
Accordingly, Dreamers reasonably anticipate that the information they provided to the government in order to enroll in the DACA program will be used against them, including to pursue their removal from this country. Indeed, DHS has already “urge[d] DACA recipients to use the time remaining on their work authorizations to prepare for and arrange their departure from the United States.”54
C. Plaintiffs’ Interest in the DACA Program a. Princeton University and Perales Sanchez Have Benefited from DACA.
52. Plaintiff Princeton is a private, non-profit educational institution that advances learning through scholarship, research, and teaching of extraordinary quality, with an emphasis on undergraduate and doctoral education and a pervasive commitment to serve the nation and the world. The University’s defining characteristics and aspirations include, among other things, a commitment to welcome, support, and engage students, faculty, and staff with a broad range of backgrounds and experiences, and to encourage all members of the University community to learn from the robust expression of diverse perspectives.55
53. Every year, the University accepts applications for admission to its undergraduate program from both domestic and international students who have completed or are soon to complete secondary education programs. To achieve the excellence to which it aspires, Princeton must find, attract, and support talented people from a wide range of demographic groups, and it
54 Talking Points - DACA Rescission, MSNBC, http://msnbcmedia.msn.com/i/MSNBC/Sections/ NEWS/z-pdf-archive/170905-DACA-Talking-Points.pdf; see also Kristen Welker & Daniel Arkin, Trump Administration Memo: DACA Recipients Should Prepare for ‘Departure,’ NBC NEWS (Sept. 5, 2007), https://www.nbcnews.com/news/us-news/white-house-memo-dacarecipients-should-prepare-departure-n799026. 55 See Princeton University, Our Commitment to Diversity, https://inclusive.princeton.edu/about/ our-commitment-diversity (last visited Nov. 3, 2017); Princeton University, Academics, https://www.princeton.edu/academics (last visited Nov. 3, 2017).
24

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 25 of 42
must provide a campus climate in which people from all backgrounds learn from and share experiences and perspectives with each other. A diverse, inclusive, and collaborative learning community sparks creativity and insight, generates meaningful conversation, and facilitates intercultural connection and understanding. Diversity is essential to Princeton’s efforts to meet the needs of a world that requires leaders who come from a wide variety of backgrounds and groups and who are able to work effectively across cultures and political and social divides. Accordingly, the University expends considerable time and resources recruiting high-achieving students from diverse backgrounds to create an exceptional learning community for each incoming class.
54. Undergraduate admission to the University is highly competitive. For the University’s graduating class of 2021 (matriculating in the fall of 2017), 1,991 applicants were admitted out of 31,056 total applicants, for an admissions rate of 6.4 percent.56
55. Since 2012, Princeton has admitted and enrolled at least 21 DACA recipients as students. These students have enrolled in both undergraduate and graduate programs in a diverse array of fields, including sciences, engineering, politics, psychology, and public policy. These individuals have been among the greatest contributors to the campus community. For example, a member of the class of 2015 and a DACA beneficiary, Yessica Martinez, was a co-recipient of the 2015 Pyne Prize, the University’s highest general honor for an undergraduate. She was recognized for her “excellent scholarship, strength of character, and effective leadership in support of the best interests of Princeton University.”57 Among her accomplishments at Princeton, Martinez was “a
56 See Princeton University, Statistics for Applicants to the Class of 2021, available at https://admission.princeton.edu/how-apply/admission-statistics (last visited Nov. 3, 2017). 57 See Princeton University, Introduction by President Christopher L. Eisgruber, available at http://alumni.princeton.edu/learntravel/lectures/videodetail/index.xml?videoid=409 (last visited Nov. 3, 2017); Princeton University, Seniors Martinez, Robertson Named Pyne Prize Winners
25

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 26 of 42
standout student and writer, and an exceptional community organizer and leader,” who served as a residential advisor and excelled in studying comparative literature, creative writing, and Latin American studies.58 University President Eisgruber stated in awarding her the Pyne Prize that Martinez had a “profound impact on the Princeton community.”59
56. As explained in the Introduction to this Complaint, Princeton benefits from DACA in many ways. Princeton’s DACA recipients—including Perales Sanchez—are exceptionally resilient students who have overcome varied, serious life obstacles in the course of achieving great success. They have unique insights because of their backgrounds, and they contribute diverse perspectives on a range of issues on campus—both inside and outside the classroom. Their presence in the classroom, student housing, student organizations, and other campus activities enhances the intellectual experience of all students and faculty at Princeton. Their membership in Princeton’s community helps the University to realize its educational mission.
b. Microsoft Has Benefited from DACA. 57. Similarly, Microsoft benefits in myriad ways from the DACA recipients whom it employs as software engineers, financial analysts, inventory control experts, and core technical and operations positions. Microsoft’s mission on behalf of its customers around the world creates a substantial business need for finding, developing, and attracting the brightest and most promising talent from around the country and around the world. As Microsoft CEO Satya Nadella explained, “smart immigration can help our economic growth and global competitiveness.”60
(Feb. 12, 2005), available at https://undergraduateresearch.princeton.edu/news/seniors-martinezrobertson-named-pyne-prize-winners (last visited Nov. 3, 2017). 58 Id. 59 Id. 60 Nadella, supra n.16.
26

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 27 of 42
58. The company places a high priority on having a diverse workforce that can reflect the global customer base Microsoft serves. The company’s products and services—and ultimately its customers—benefit from input and contributions that draw from the diverse backgrounds found among the company’s employees. Microsoft has significant interests in retaining its employees and in reaping the benefits of their talent over time.
59. DACA beneficiaries are working across a range of Microsoft’s business divisions, employing their “tremendous talent” to develop the next generations of Microsoft products and services.61 While Microsoft’s DACA employees are generally early in their careers, their past accomplishments and promise for the future reflect their significant value to the company. The company employs DACA beneficiaries in its Office Products Group, which produces its industryleading suite of productivity applications; the Windows and Devices Group, which is responsible for the software platform, apps, games, store, and devices that power the Windows ecosystem; the Cloud & Enterprise Group, which builds the infrastructure software and developer tools that power the company’s cloud platform and services; the Artificial Intelligence and Research Group, which drives the company’s strategy for artificial intelligence and forward-looking research and development; and LinkedIn, its online professional network designed to help members find jobs, connect with other professionals, and locate business opportunities. DACA beneficiaries are also employed in positions within Microsoft’s Finance organization as well as its Worldwide Commercial Business and Retail divisions, which engage directly with its customers. As Microsoft President Brad Smith has explained, these individuals are an integral part of the fabric
61 Brad Smith, President, Microsoft, DREAMers Make Our Country and Communities Stronger (Aug. 31, 2017), https://blogs.microsoft.com/on-the-issues/2017/08/31/dreamers-make-countrycommunitiesstronger?lipi=urn%3Ali%3Apage%3Ad_flagship3_pulse_read%3BVGlIRxrxTBirfz bdYk4jSg%3D%3D.
27

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 28 of 42
of Microsoft’s business and its “collective mission to empower every person and organization on the planet to achieve more.”62
60. Moreover, by allowing Dreamers to work lawfully, DACA moved these individuals out of the informal economy, increasing the pool of talent from which Microsoft could fill supply gaps in the U.S. job market. The United States faces a shortage of skilled workers that is only projected to intensify over the next decade, as workers from the baby-boom generation retire from the workforce. As these gaps continue to widen, DACA recipients play a critical role in filling positions for which there are not enough U.S.-born applicants. DACA recipients also often possess skills—including foreign language skills—that businesses like Microsoft need.
c. Plaintiffs Will Be Harmed by the Rescission of DACA. 61. With DACA’s rescission, Princeton and Microsoft will be harmed in several ways. Princeton has devoted substantial resources to recruiting, retaining, and educating Dreamers— including, among other things, investments in financial aid to cover tuition, housing, and other educational expenses, as well as faculty and administrative time. Those resources were invested with the expectation that those students would be able to deploy their Princeton degree in varied successful careers. The loss of DACA diminishes the likelihood that Dreamers will be authorized to work in the United States, thus also diminishing the economic value of their education and Princeton’s investment in them. Princeton has also spent additional resources to address the harms of DACA’s rescission on Princeton’s students and employees, and reasonably expects to spend further resources addressing this issue. Furthermore, Princeton will lose the opportunity to matriculate new Dreamers, as many may be deterred from studying at Princeton because the
62 Id.
28

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 29 of 42
tremendous investment of time, effort, and money required to pursue that education may not yield employment prospects without the work authorization provided by DACA.
62. Microsoft also has expended significant resources in recruiting and training Dreamers, with the expectation that they would continue to be eligible to work at the company. By eliminating a valuable pool of employees, rescission of DACA will cause Microsoft to lose at least 45 employees and interns who make significant contributions to the company. This loss will hinder the company’s productivity, leading to a less robust and diverse workforce. Moreover, as a consequence of Defendants’ actions, Microsoft will have to spend additional resources to recruit, train, and promote replacement employees. The pool of workers from which to fill these positions will be smaller, inhibiting Microsoft’s productivity, reducing the diversity of its workforce, and making it harder to compete globally. Microsoft’s corporate interests are best served by a stable, fair, and efficient business environment. Defendants’ rescission of DACA injures each of these interests.
63. DACA’s rescission of course inflicts grave harm on not only the University and Microsoft, but also the Dreamers themselves. Some feel that DACA’s rescission will impede or diminish their educational experience. For example, they may not be able to pursue research or study abroad, which are important parts of many academic programs. In addition, they may not be able to receive work authorization, which will hinder their ability to enhance their skills, build their resumes, network with campus administrators, professors, and other students, and earn money that can be used to further their educations. For all, the future value of their Princeton education is seriously diminished because they cannot obtain a legitimate job in the United States after graduation. Perales Sanchez, for example, will not be able to obtain financial aid to support her
29

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 30 of 42
planned law school education—and even if she could, her inability to work legally in the United States as a lawyer undermines the viability of that planned career path.
64. Of course, the ultimate consequence of DACA’s rescission is not just the loss of opportunity in the United States, but the very real threat of deportation from the United States. If that threat is realized, the Dreamers, including Perales Sanchez, stand to lose everything: their homes, their families and friends, and the lives that they have finally been free to live in this country because of DACA. If deported, they will be sent to countries where they have not lived since they were very young, where they have no friends and no known prospects, and that are in every meaningful sense foreign to them. Perales Sanchez, for example, left her native country of Mexico at the age of eight and has only returned once for a single week. Her family, friends, and career prospects are all here in the United States.
COUNT I PROCEDURAL VIOLATIONS OF THE ADMINISTRATIVE PROCEDURE ACT
Brought By All Plaintiffs Against All Defendants 65. Plaintiffs repeat and incorporate herein by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 66. The APA requires that federal agencies conduct notice-and-comment rulemaking before promulgating a substantive rule. See 5 U.S.C. § 553. Agency action is unlawful where it is made “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 67. DHS is an “agency” within the meaning of the APA, and the DACA Rescission Memorandum and the actions that DHS has taken to implement the DACA Rescission Memorandum are a substantive rule within the meaning of the APA. See 5 U.S.C. § 551(1), (4).
30

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 31 of 42
68. Defendants’ actions affirmatively circumscribe DHS’s statutory authority in providing deferred action as they bind DHS to categorically deny applications for deferred action to individuals who fit the original DACA eligibility criteria, prohibit DHS from renewing recipients’ deferred status under DACA after October 5, 2017, and prohibit DHS from granting advance parole to DACA recipients.
69. The DACA Rescission Memorandum and the actions that DHS has taken to implement the DACA Rescission Memorandum have affected the rights and interests of all DACA recipients by changing the substantive criteria by which these individuals work, live, attend school, obtain credit, and travel. Defendants did not follow the procedures required by the APA before taking action affecting these substantive rights.
70. Defendants promulgated and implemented these substantive rules without authority and without notice-and-comment rulemaking in violation of the APA.
71. Plaintiffs have been harmed by these unlawful acts, including because they have not had the opportunity to comment on the rescission of DACA.
72. Defendants’ violation causes ongoing harm to the University, Microsoft, Perales Sanchez, and other members of the University community. These injuries, including the specific harms alleged above to the University and Microsoft, fall within the zone of interests encompassed by the broad scope of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §§ 1101 et seq.
COUNT II SUBSTANTIVE VIOLATIONS OF THE ADMINISTRATIVE PROCEDURE ACT
Brought By All Plaintiffs Against All Defendants 73. Plaintiffs repeat and incorporate herein by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
31

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 32 of 42
74. Defendants are subject to the APA. See 5 U.S.C. §§ 701(b)(1), 703. Defendants’ rescission of DACA is final agency action subject to judicial review because it consummates DHS’s decision-making process and is a decision from which legal consequences will flow.
75. The APA prohibits federal agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “contrary to constitutional right, power, privilege, or immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (B), (C).
76. In creating and implementing DACA, over the course of years, the government repeatedly made promises and assurances to DACA recipients (including Princeton alumni and current students, and Microsoft employees) that if they stepped forward, shared highly sensitive personal information, and passed a background check, they would be granted renewable protection and would be allowed to live and work in the United States as long as they abided by the conditions of the program. The government also specifically and consistently promised that information disclosed through the DACA program would not be used for immigration enforcement purposes outside certain limited circumstances.
77. The University, Microsoft, Perales Sanchez, and nearly 800,000 other vulnerable young people reasonably relied on the government’s assurances and promises in taking the irreversible step of identifying themselves and providing the government with highly sensitive and potentially compromising personal information. DACA recipients, including Perales Sanchez, also made numerous life-altering personal and professional decisions in reliance on the government’s promises regarding DACA.
78. The establishment and implementation of DACA engendered serious reliance interests by Perales Sanchez and other DACA recipients, their families, and others affected,
32

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 33 of 42
including the University and Microsoft. Defendants failed to take these interests into account and failed to provide a rational explanation for the change in policy on which such individuals and institutions have reasonably relied.
79. Defendants’ disregard for the reasonable reliance of Perales Sanchez and hundreds of thousands of other vulnerable young people, and others affected by DACA’s rescission is the hallmark of arbitrary and capricious action and an abuse of discretion. The decision to rescind DACA is therefore in violation of the APA and must be vacated.
80. Defendants’ rescission of DACA also must be set aside as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because the agency failed to articulate a reasoned explanation for its decision that considered all important aspects of the issue.
81. For example, Defendants provided no justification for many of the details of the rescission of DACA, including but not limited to the September 5, 2017 deadline for initial applications; the October 5, 2017 deadline to file certain renewal applications; and the March 5, 2018 cut-off for renewal eligibility. These deadlines are arbitrary, and they fail to provide sufficient time and notice to DACA recipients.
82. Defendants also failed to provide any reasoned analysis to support the changes to the confidentiality of applicant information.
83. Defendants’ purported grounds for rescinding DACA are inadequate to justify termination, are legally erroneous, pretextual, and internally inconsistent, and fail to consider or address relevant factors such as the government’s previous conclusion that the DACA program was lawful or other government statements that contradict the agency’s stated rationale.
84. Defendants’ rescission of DACA and the steps taken to implement that determination are arbitrary and capricious, an abuse of discretion, and not in accordance with law
33

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 34 of 42
because, among other things, they are based on the legally incorrect premise that DACA is unlawful.
85. Defendants’ assertion that the Executive Branch lacks authority to continue the DACA program ignores the fact that the government itself previously concluded that it did have the authority to implement the program, including in an OLC opinion that has not been withdrawn or amended. Defendants’ failure to conduct or provide a reasoned analysis for its decision to rescind DACA constitutes a violation of the APA.
86. Defendants’ decision to rescind DACA is also arbitrary and capricious because its purported rationale is inconsistent with DHS’s new policy. In particular, Defendants terminated the program because they purportedly concluded that the Executive Branch lacks authority to continue the program, yet DHS continued to adjudicate pending DACA applications and renewal applications received before October 5, 2017 (for individuals whose benefits would expire before March 5, 2018), effectively extending DACA for an additional two and a half years. Likewise, the President suggested that he may renew DACA if Congress does not act within six months, which is an inherent admission that the stated rationale for DACA’s rescission is arbitrary and capricious.
87. The rescission of DACA also violates the APA because it is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). For the reasons set forth in this complaint, Defendants’ actions in promulgating and implementing the rescission of DACA are unconstitutional and therefore must be vacated.
88. For all of the reasons stated above and throughout this complaint, Defendants’ actions violate the APA.
34

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 35 of 42
89. Defendants’ violation causes ongoing harm to the University, Microsoft, Perales Sanchez, and other DACA recipients. These injuries fall within the zone of interests of the INA, which is intimately related to the ability of Perales Sanchez and other Dreamers to study and work in the United States and to the University and Microsoft’s ability to enroll and hire Dreamers.
COUNT III VIOLATIONS OF THE FIFTH AMENDMENT (EQUAL PROTECTION)
Brought By All Plaintiffs Against All Defendants 90. Plaintiffs repeat and incorporate herein by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 91. The Due Process Clause of the Fifth Amendment prohibits the federal government, including Defendants, from denying equal protection of the laws. 92. Rescission of DACA impermissibly discriminates against DACA recipients on the basis of a characteristic over which they have little control—namely, their undocumented status. Defendants’ decision to deprive DACA recipients of their interest in furthering their education or pursuing a livelihood presents unreasonable obstacles to advancement based on individual merit, and cannot be sufficiently justified by federal interests. 93. The University, DACA recipients enrolled at the University, other University students, Microsoft, and Perales Sanchez, have been and continue to be harmed by this violation of the equal protection guarantee of the Fifth Amendment.
35

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 36 of 42
COUNT IV VIOLATIONS OF THE FIFTH AMENDMENT (DUE PROCESS—RESCISSION)
Brought By All Plaintiffs Against All Defendants 94. Plaintiffs repeat and incorporate herein by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 95. DACA recipients—including Perales Sanchez, other University students and alumni, and Microsoft employees—are physically present in the United States and have developed deep and meaningful connections to their communities, including through pursuit of education, occupation, entrepreneurial enterprise, financial and other support for family, friends, and members of the public, and other activities enabled by the government’s decision to grant deferred status. 96. The Due Process Clause applies to individuals and entities present in the United States. See Zadvydas v. Davis, 533 U.S. 678, 682, 693-94 (2001) (“[A]liens who were admitted to the United States but subsequently ordered removed” have constitutional due process rights, “whether their presence here is lawful, unlawful, temporary, or permanent.”). 97. The Due Process Clause imposes limits on federal government decisions that deprive individuals of liberty or property interests protected by the Fifth Amendment. See Mathews v. Eldridge, 424 U.S. 319, 331 (1976). Protected liberty and property interests may take many forms. E.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). 98. Rescission will, without due process of law, deprive the University of several interests cognizable under the Constitution. For example, the University currently has enrolled 16 DACA recipients, including 1 graduate student and 15 undergraduate students. The University
36

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 37 of 42
has incurred substantial cost to support each student, including costs associated with faculty time and attention, privately-funded financial aid, research grants, housing, and other resources. The University has made these investments on the basis of individual merit, and with the firm belief that each student will make significant contributions to communities within and beyond the University. Were DACA enrollees to leave the University before completing their program of study, the University stands to forfeit the important contributions that the students make on campus, the resources the University has invested in their education, and the benefits associated with their future success, including their continued contributions—socially, academically, and monetarily—to the University.
99. Rescission also will, without due process of law, deprive Microsoft of several interests cognizable under the Constitution. Microsoft has made significant investments in recruiting, training, and supporting DACA enrollees, and has conducted its business operations based on the well-founded expectation that they would continue to be eligible to work at the company. If DACA enrollees become ineligible to work at Microsoft, the company will lose this crucial talent in which it has heavily invested, as well as the time, money, and resources that it has spent cultivating this human capital. It also will suffer business disruptions as a result of the loss of these employees and will have to spend additional resources to recruit, train, and promote replacement employees.
100. DACA recipients, including Perales Sanchez, also have constitutionally-cognizable liberty and property interests in their deferred status, as well as rights, benefits, and property that they could not have obtained but for DACA. Because of DACA, some of these individuals, including Perales Sanchez, have become eligible for and obtained work authorization, become able
37

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 38 of 42
to open bank accounts, to obtain credit, to secure driver’s licenses, to pursue higher education, and to access various federal government benefits, such as Social Security.
101. The government, through its introduction, implementation, and operation of DACA, cultivated a reasonable expectation among the University, Microsoft, Perales Sanchez, and other DACA recipients that DACA recipients would have an opportunity to maintain and renew their deferred status.
102. The rescission of DACA occurred with inadequate notice and without any opportunity to be heard and does not provide for any opportunity to be heard. As a result, rescission and actions taken by Defendants in connection with rescission unlawfully deprive the University, Microsoft, Perales Sanchez, other DACA recipients enrolled at the University, and all other University students of constitutionally-protected interests without due process of law.
103. The University, Microsoft, Perales Sanchez, other DACA recipients enrolled at the University, and other University students have been and continue to be harmed by these violations of the Due Process Clause of the Fifth Amendment.
COUNT V VIOLATIONS OF THE FIFTH AMENDMENT (DUE PROCESS — INFORMATION SHARING) Brought By The University and Perales Sanchez Against All Defendants 104. The University and Perales Sanchez repeat and incorporate herein by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 105. The Due Process Clause also requires fundamental fairness and limits the government’s discretion to make and break assurances, particularly when the government offers benefits to induce conduct that may have severe repercussions.
38

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 39 of 42
106. After introducing DACA, the government invited undocumented individuals brought to the United States as children to apply for deferred status and, in the event an individual was granted relief, work authorization. Applications for deferred status and for work authorization required that individuals provide sensitive and detailed personal information. To induce otherwise vulnerable individuals to disclose this information, the government made clear and consistent assurances that it would not be used to facilitate removal. For example, in official instructions provided to potential applicants, the government represented that information supplied in a request for consideration under DACA “is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement.”
107. In reliance on the government’s assurances about information sharing, and the potential to secure relief under DACA, Perales Sanchez, and other individuals enrolled at the University provided the government with sensitive and detailed personal information.
108. In addition to rescinding DACA, the Defendants have revised assurances about information sharing. Defendants no longer promise to protect information from use for immigration enforcement. Instead, they offer only to prevent personal information from being provided “proactively” to agencies responsible for facilitating removal. Except as previously provided under the DACA program, the use of information obtained through implementation and operation of DACA—information that was provided at the government’s invitation, to facilitate an assessment of eligibility for deferred status, and based on assurances that it would be protected—for any purpose related to immigration enforcement violates the Due Process Clause of the Fifth Amendment to the United States Constitution.
39

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 40 of 42
109. The University, Perales Sanchez, other DACA recipients enrolled at the University, and all other University students have been and continue to be harmed by these violations of the Due Process Clause of the Fifth Amendment.
REQUEST FOR DECLARATORY JUDGMENT 110. Plaintiffs repeat and incorporate herein by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 111. The DACA program was a lawful exercise of the President’s discretion to enforce the immigration laws. The government, through OLC, concluded that DACA was lawful. Defendants now claim, as the basis for rescission of the program, that DACA is unlawful. There is therefore an actual controversy regarding whether the DACA program is lawful. 112. The Declaratory Judgment Act, 28 U.S.C. § 2201, allows the court, “[i]n a case of actual controversy within its jurisdiction,” to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 113. Because it is a direct beneficiary of the program through its Dreamer students and employees, Princeton and Microsoft have interests in the legality of the DACA program. Perales Sanchez, as a DACA beneficiary, also has an interest in the legality of the DACA program. Defendants’ decision to terminate DACA on the purported basis that the DACA program was unlawful has harmed Plaintiffs and continues to cause ongoing harm to Plaintiffs. 114. Plaintiffs are entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201(a) that the DACA program was lawful and is lawful today.
40

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 41 of 42
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez respectfully request that judgment be entered against the Defendants, and that this Court: A. Declare pursuant to 28 U.S.C. § 2201(a) that the DACA program is lawful and
constitutional; B. Declare pursuant to 28 U.S.C. § 2201(a) that the termination of the DACA program
was unlawful and unconstitutional; C. Issue an injunction against enforcement and implementation of the DACA Rescission
Memorandum, and enjoining Defendants from terminating or rescinding the DACA program; D. Issue an injunction enjoining Defendants from sharing or otherwise using information furnished by Dreamers, including Perales Sanchez, pursuant to the DACA program for purposes of immigration enforcement, except as previously provided under the DACA program; E. In the alternative, remand the action to the Defendants for reconsideration; and
41

Case 1:17-cv-02325-CRC Document 1 Filed 11/03/17 Page 42 of 42

F. Grant such other and further relief as may be just and proper.

Dated: November 3, 2017

Respectfully submitted,

THE TRUSTEES OF PRINCETON UNIVERSITY; MICROSOFT CORPORATION; MARIA DE LA CRUZ PERALES SANCHEZ

By: /s/ Thomas J. Perrelli .

Thomas J. Perrelli D.C. Bar No. 438929
Lindsay C. Harrison D.C. Bar No. 977407
Marina Jenkins D.C. Bar No. 988059
Alex Trepp D.C. Bar No. 1031036*
JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 Phone 202 639-6000 Fax 202 639-6066 Email: tperrelli@jenner.com
lharrison@jenner.com mjenkins@jenner.com atrepp@jenner.com
Attorneys for The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez
*Application for Admission to District Court for District of Columbia Pending

42

 
 Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 1 of 16

Julie B. Axelrod (DC Bar 1001557) Christopher J. Hajec (DC Bar 492551) Elizabeth A. Hohenstein (DC Bar 1044138) IMMIGRATION REFORM LAW INSTITUTE 25 Massachusetts Avenue, NW Suite 335 Washington, DC 20001 (202) 232-5590 jaxelrod@irli.org chajec@irli.org ehohenstein@irli.org
Attorneys for Amicus Curiae Immigration Reform Law Institute
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE TRUSTEES OF PRINCETON UNIVERSITY, et al.,
Plaintiffs,
v.
UNITED STATES, et al.,
Defendants.

Civil Action No. 17-cv-2325 (CRC)

AMICUS CURIAE BRIEF OF THE IMMIGRATION REFORM LAW INSTITUTE IN SUPPORT OF DEFENDANTS

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 2 of 16 CORPORATE DISCLOSURE STATEMENT
The Immigration Reform Law Institute is a 501(c)(3) nonprofit corporation. It does not have a parent corporation and does not issue stock.
ii

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 3 of 16
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .............................................................................. ii TABLE OF AUTHORITIES ......................................................................................................... iv IDENTITY OF AMICUS CURIAE ................................................................................................. 1 ARGUMENT .................................................................................................................................. 1 I. Because DACA Was Invalid, This Court May Not Reinstate It, And Plaintiffs Lack Standing..........................................................................................................................................2 II. DACA Was Invalid................................................................................................................. 3
A. The Immigration and Nationality Act does not authorize DACA................................ 3 B. The DACA program is a substantive rule that did not go through the procedural requirements of 5 U.S.C. § 553............................................................................................... 8 CONCLUSION............................................................................................................................. 10
iii

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 4 of 16
TABLE OF AUTHORITIES
Cases Action on Smoking & Health v. Civil Aeronautics Bd.,
713 F.2d 795 (D.C. Cir. 1983)……………………………………………………….……2 Arizona v. United States, 567 U.S. 387 (2012)…………………………………………………....7 City of Los Angeles v. Adams, 556 F.2d 40 (D.C. Cir. 1977)……………………………………..5 Chrysler Corp. v. Brown, 441 U.S. 281 (1979)…………………………………………………...3 Guevara v. Holder, 649 F.3d 1086 (9th Cir. 2011)……………………………………….………7 In re Q- T- -- M- T-, 21 I. & N. Dec. 639 (B.I.A. 1996)…………………………………………..1 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)………………………………………………...…3 Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987)…………………………………….….9 Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue,
297 U.S. 129 (1936)…………………………………………………………………….…3 Massachusetts v. EPA, 549 U.S 497 (2007)………………………………………………………4 Matter of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010)……………………………………………..1 Matter of Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016)……………………………………...1 Nat’l Ass’n of Mfrs. v. United States Dep’t of Labor, no. 95-0715,
1996 U.S. Dist. LEXIS 10478 (D.D.C. July 22, 1996)…………..………………………..8 NRDC v. United States Forest Serv., 421 F.3d 797 (9th Cir. 2005)……………………………....8 Pacific Gas & Electric Co. v. Federal Power Com.,
506 F.2d 33 (D.C. Cir. 1974)…………………………………………………………...…9 Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005)…………………………………….……2 Succar v. Ashcroft, 394 F.3d 8, 10 (1st Cir. 2005)…………………………………………….….4 Sure-Tan, Inc. v. Nat’l Labor Relations Bd., 467 U.S. 883 (1984)…………………………….....8 Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015),
aff’d Texas v. United States, 809 F.3d 134 (5th Cir. 2015)…………………………….6, 7
iv

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 5 of 16
Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598 (D.C. Cir. 1992)…………………………………………………………….2
Univ. of the D.C. Faculty Ass’n/NEA v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 163 F.3d 616 (D.C. Cir. 1998)……………………………………...…..3
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001)…………………………………………..8 Statutes 5 U.S.C. § 706(2)(A)……………………………………………………………………………....2 5 U.S.C. § 706(2)(C)…………………………………………………………………………..…..2 6 U.S.C. § 202(5)………………………………………………………………………………….4 8 U.S.C. § 1103(a)(3)…………………………………………………………………………...…4 8 U.S.C. § 1158(d)(5).……………………………………..…………………………………...…4 8 U.S.C. § 1182(n)……………………………………………………………………………...…8 8 U.S.C. § 1184(g)………………………………………………………………………………...8 8 U.S.C. § 1188…………………………………………………………………....……………....8 8 U.S.C. § 1225(a)(1)………………………………………………………………………….…..3 8 U.S.C. § 1225(b)(2)(A)…………………………………………………………………….……3 8 U.S.C. § 1228(a)(3)...……………………………………………………………………………4 8 U.S.C. § 1229a……………………………………………………………………………….….4 8 U.S.C. § 1324a(h)(3)…………………………………………………………………………….7 Other Authorities H.R. Rep. No. 99-682, at 46 (1986)…………………………………………………………...…..6 H.R. Rep. No. 104-725, at 383 (1996) (Conf. Rep.)………………………………………………6 Memorandum from Janet Napolitano, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012)…………………………………………..6, 7, 9
v

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 6 of 16 Memorandum from Jeh Charles Johnson, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014)...............................5 Michael X. Marinelli, INS Enforcement of the Immigration Reform and Control Act of 1986: Employer Sanctions During the Citation Period, 37 Cath. U. L.R. 829 (1988)………………………………………….6, 7
vi

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 7 of 16
IDENTITY OF AMICUS CURIAE The Immigration Reform Law Institute (“IRLI”) is a nonprofit 501(c)(3) public interest law firm dedicated to litigating immigration-related cases in the interests of United States citizens and assisting courts in understanding federal immigration law. For more than twenty years the Board of Immigration Appeals (“BIA”) has solicited supplementary briefing, drafted by IRLI staff, from the Federation for American Immigration Reform, of which IRLI is a supporting organization, See, e.g., Matter of Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016); Matter of C-T-L-, 25 I. & N. Dec. 341 (B.I.A. 2010); and In re Q- T- -- M- T-, 21 I. & N. Dec. 639 (B.I.A. 1996). IRLI submits this amicus curiae brief to help this Court understand how the Deferred Action for Childhood Arrivals program (“DACA”) lacks the force of law, and, indeed, is ultra vires agency action. All parties have consented to the filing of this amicus curiae brief. No party or party’s counsel authored any part of this brief. No person or entity, other than amicus, its members, or its counsel, has made a monetary contribution to its preparation or submission.
ARGUMENT Plaintiffs’ claims against rescission of the DACA program depend on the assumption that the program both is substantively lawful and was implemented in a procedurally lawful manner. Neither assumption is true. Since DACA was both substantively and procedurally invalid, plaintiffs’ complaint challenging the decision of the Department of Homeland Security (“DHS”) to rescind the program should be dismissed.
1

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 8 of 16
I. Because DACA Was Invalid, This Court May Not Reinstate It, And Plaintiffs Lack Standing. As explained below, the DACA program was invalid. For that reason, it would be
nonsensical for this Court either to declare that DHS may not rescind it or to enjoin its rescission. On the contrary, courts must hold unlawful, rather than give effect to, invalid regulations. 5 U.S.C. §§ 706(2)(A), (C) (“The reviewing courts shall . . . hold unlawful and set aside agency action, findings and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law . . . [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right . . . .”); Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir. 1992) (“Agency actions beyond delegated authority are ultra vires, and courts must invalidate them.”) (internal citation and quotations marks omitted).
If this Court were to invalidate the rescission of DACA, the effect would be to reinstate the rule previously in force—but only if that previous rule were valid. See, e.g., Action on Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (holding that the effect of invalidating an agency rule is to reinstate the rule previously in force); Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) (refusing to reinstate a previous rule under that standard because it was itself invalid). Thus, because DACA was invalid, the invalidation of its rescission cannot revive it.
Indeed, because DACA was invalid, and because the effect of invalidating its rescission would be to reinstate the last lawful state of applicable regulations, the remedy plaintiffs seek would only result in the restoration of the status quo pre-DACA. For this reason, at the minimum, plaintiffs’ claimed injuries are non-redressable, and their claims should be dismissed
2

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 9 of 16
for lack of standing under Federal Rule of Civil Procedure 12(b)(2). See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
II. DACA Was Invalid. DACA was invalid both because it was ultra vires and because DHS failed to follow the
notice and comment requirement of the Administrative Procedure Act (“APA”). A. The Immigration and Nationality Act does not authorize DACA. In reviewing an ultra vires claim, courts examine statutory language to determine
whether Congress intended the agency to have the power that it exercised when it acted. Univ. of the D.C. Faculty Ass’n/NEA v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 163 F.3d 616, 620 (D.C. Cir. 1998). A reviewing court must reasonably be able to conclude that the grant of authority contemplated the regulations issued. Chrysler Corp. v. Brown, 441 U.S. 281, 308 (1979).
Analyzing DACA by this standard reveals that it has no statutory foundation and is a broad stroke of executive power not on the executive’s own canvas, but on Congress’s. Therefore, it is ultra vires and a nullity, and this Court should not reinstate it even if it finds its rescission invalid. See Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936) (“A regulation which . . . operations to create a rule out of harmony with the statute, is a mere nullity”).
First, the Immigration and Nationality Act (“INA”) does not provide a statutory foundation for the DACA program. On the contrary, DACA is a programmatic refusal by DHS to enforce Congress’s clear statutory mandate. Under the INA, any alien who entered the country illegally is an applicant for admission. 8 U.S.C. § 1225(a)(1). And 8 U.S.C. § 1225(b)(2)(A) mandates that if an applicant for admission “is not clearly and beyond a doubt
3

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 10 of 16
entitled to be admitted, the alien shall be detained” for removal proceedings under 8 U.S.C. § 1229a (emphasis added). “Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria.” Succar v. Ashcroft, 394 F.3d 8, 10 (1st Cir. 2005). “[W]hile the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.” Massachusetts v. EPA, 549 U.S 497, 534 (2007).
True, two provisions of the INA provide broad, general grants of authority to DHS: 8 U.S.C. § 1103(a)(3) (“[The Secretary] . . . shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”); and 6 U.S.C. § 202(5) (“The Secretary . . . shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”). The first of these, 8 U.S.C. § 1103(a)(3), clearly fails to authorize DACA, which is not “necessary for carrying out” any part of the INA. In any event, only if the authority of DHS to “deem[]” that an action is so “necessary” were unlimited and unreviewable could these provisions grant authority for DACA, but in that case, they would grant DHS a limitless authority over how it carries out its duties, making the innumerable other provisions of the INA that detail how DHS is to carry out its duties meaningless. See, e.g., 8 U.S.C §§ 1158(d)(5) (providing requirements for asylum procedure), 1228(a)(3) (providing that expedited proceedings “shall be” initiated for aliens incarcerated for aggravated felonies), 1229a (providing procedural requirements for removal proceedings).
Title 6 U.S.C. § 202(5)’s grant of authority to “[e]stablish[] national immigration enforcement policies and priorities” also fails to authorize DACA. Its authorization to DHS to set “priorities” does not authorize DACA, which, as explained below, goes far beyond making
4

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 11 of 16
removable aliens that meet its criteria low priorities for removal. Thus, this provision could only authorize DACA based on its apparently open-ended authorization to DHS to establish enforcement “policies.” But if this language were as open-ended as that, it would allow DHS to establish a policy, for example, of removing only removable aliens who were violent felons, or only those who had been in the country less than two months, or only those who lacked a highschool education—and it would be patently unreasonable to suppose that Congress intended DHS to have authority to set policies so at odds with the INA.
Second, DACA is not a valid form of “deferred action.” True, faced with limited resources, an agency has discretion to implement the mandate of Congress as best as it can, by setting priorities for action. See City of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C. Cir. 1977) (holding that when a statutory mandate is not fully funded, “the agency administering the statute is required to effectuate the original statutory scheme as much as possible, within the limits of the added constraint.”).
With DACA, however, DHS did not “effectuate the original statutory scheme as much as possible” within the limits set by underfunding. DACA was not created because of lack of resources; the aliens protected by it were already rarely removed. Memorandum from Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents 3 (Nov. 20, 2014) (explaining that DACA applies to individuals who “are extremely unlikely to be deported given [the] Department’s limited enforcement resources”).1 Rather, the program reflects a policy judgment that these aliens should be free to
1 This statement is scarcely consistent with Secretary Napolitano’s bald assertion that “additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement
5

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 12 of 16
live and work in the United States without fear of deportation. Far from “effectuat[ing] the original statutory scheme as much as possible,” this policy judgment is at odds with the INA and congressional intent. Not only has Congress rejected a legislative version of DACA repeatedly, it has found that “immigration law enforcement is as high a priority as other aspects of Federal law enforcement, and illegal aliens do not have the right to remain in the United States undetected and unapprehended.” H.R. Rep. No. 104-725, at 383 (1996) (Conf. Rep.). Congress has also passed laws designed to reduce the incentives for illegal entry, and to incentivize selfdeportation where enforcement is lacking. Texas v. United States, 86 F. Supp. 3d 591, 634-35 (S.D. Tex. 2015), aff’d Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (arguing that DAPA would disincentivize illegal aliens from self-deporting); Michael X. Marinelli, INS Enforcement of the Immigration Reform and Control Act of 1986: Employer Sanctions During the Citation Period, 37 Cath. U. L.R. 829, 833-34 (1988) (“Marinelli”) (“Congress postulated that unauthorized aliens currently in the United States would be encouraged to depart”) (citing H.R. Rep. No. 99-682, at 46 (1986)).
In any event, the deferred-action justification, even if accepted, cannot help plaintiffs in this case, for two reasons. First, a prime feature of deferred action is that, as an exercise of discretion, it can be ended at any time. Indeed, the memo that created DACA emphasizes the reversible nature of the program. Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 3 (June 15, 2012) (“DACA memo”) (“This memorandum confers no substantive right, immigration status or pathway to citizenship.”). Because of the discretionary, reversible nature
priorities.” Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (June 15, 2012).
6

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 13 of 16
of deferred action, it would be illogical for this Court to hold that DACA is not ultra vires because it is deferred action, but then forbid DHS to rescind it.
Second, DACA is not only deferred action; as part of the DACA program, DHS has granted work authorization to its beneficiaries. Id. at 3. And it is not reasonable to conclude that Congress intended DHS to have the unrestricted power to grant work authorization to removable aliens, even “low-priority” ones. Congress, in making it illegal for illegal aliens to work, wished to discourage illegal entry and to encourage removable aliens to remove themselves, even if enforcement by removal is underfunded and slow to reach low-priority cases. See Arizona v. United States, 567 U.S. 387, 404 (2012) (“Congress enacted IRCA as a comprehensive framework for combating the employment of illegal aliens.”) (citation and quotation marks omitted); Texas v. United States, 86 F. Supp. 3d at 634-35 (arguing that DAPA would disincentivize illegal aliens from self-deporting); Marinelli at 833-34.
8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien,” that is, an alien ineligible for employment, as an “alien [that] is not at that time either (a) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General”) certainly does not grant DHS the needed authority. That provision, which does not address deferred action at all, is an “exceedingly unlikely” grant of power from Congress to authorize work, because what the provision does address is the unlawful employment of aliens. Texas, 809 F.3d at 182-83. Indeed, as the Ninth Circuit has held, “[8 U.S.C. § 1324a] merely allows an employer to legally hire an alien (whether admitted or not) while his application [for adjustment of status] is pending.” Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir. 2011). And if § 1324a(h)(3) permitted DHS to give work authorization to DACA beneficiaries, it could only be because that provision allowed DHS to authorize work for any class of alien it chose; the
7

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 14 of 16
provision contains no limiting language. If Congress had granted the executive branch such vast discretion, it would have done so clearly, not through “vague terms or ancillary provisions—it does not, one might say, hide elephants in mouse holes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). It is not reasonable to suppose that Congress, without any clear statement that it was doing so, granted to DHS the unrestricted power to overthrow Congress’s own grants of work protection to American workers. See, e.g., 8 U.S.C. §§ 1182(n), 1184(g), 1188 (protecting American workers from competition from aliens); Sure-Tan, Inc. v. Nat’l Labor Relations Bd., 467 U.S. 883, 893 (1984) (“A primary purpose in restricting immigration is to preserve jobs for American workers.”).
For these reasons, the DACA program is ultra vires and should not be given effect by this Court.
B. The DACA program is a substantive rule that did not go through the procedural requirements of 5 U.S.C. § 553.
Even if this Court determines that DACA is not ultra vires on its face, it did not go through the proper procedural requirements for enacting a substantive rule. Substantive rules issued by an agency that did not go through the notice and comment process are invalid. NRDC v. United States Forest Serv., 421 F.3d 797, 810 n.27 (9th Cir. 2005); Nat’l Ass’n of Mfrs. v. United States Dep’t of Labor, no. 95-0715, 1996 U.S. Dist. LEXIS 10478, *55 (D.D.C. July 22, 1996) (“Under section 706(2), this court must hold unlawful and set aside regulations promulgated without adequate notice and comment.”) (citation and internal quotation marks omitted).
The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings. A properly adopted substantive rule establishes a standard of conduct which has the force of law. In subsequent administrative proceedings involving a substantive rule, the issues are whether the
8

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 15 of 16
adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance. The underlying policy embodied in the rule is not generally subject to challenge before the agency. Pacific Gas & Electric Co. v. Federal Power Com., 506 F.2d 33, 38 (D.C. Cir. 1974) (internal citation omitted). Thus, “a new policy constitutes a rule . . . 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) (internal citations and quotation marks omitted) (emphasis in original) (finding that an agency directive concerning the application of a deferred action policy in the immigration context left ample discretion to agency officials and thus did not constitute a substantive rule). By this standard, DACA is clearly a substantive rule. The memorandum establishing DACA directs ICE agents to “exercise prosecutorial discretion, on an individual basis,” to grant deferred action for two years, subject to renewal, to aliens who meet the criteria set forth in the memo, for the purpose of “preventing low priority individuals from being placed into removal proceedings or removed from the United States,” and to accept work authorization applications from those granted deferred action. Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 2, 3 (June 15, 2012). It is difficult to see how any agent so charged would feel free not to grant deferred action in any given case, especially since the only purpose the agents are supposed to be fulfilling in implementing the memo is to prevent the removal of those meeting the criteria. Compare Mada-Luna, 813 F.2d at 1017 (finding discretion where officials were permitted to grant deferred action based on “appealing humanitarian factors”). Thus, though couched in terms of agents’ discretion, the memo actually removes that discretion. Indeed, the form of
9

Case 1:17-cv-02325-CRC Document 29 Filed 12/19/17 Page 16 of 16

words chosen verges on the comical; to order someone to “exercise his discretion” only in a

particular way, as the DACA memo does, is to deny him the very discretion the order

presupposes.

As a substantive rule, DACA was required to go through notice and comment; it never

did. It therefore is an invalid rule; at most, this Court, exercising its equitable powers, could

allow it to remain in effect while notice and comment was accomplished. But DACA will not,

now, go through the notice and comment process, so there would be no occasion for this Court to

allow it to remain in effect at all.

CONCLUSION

For the forgoing reasons, this Court should grant the defendants’ motion to dismiss or, in

the alternative, for summary judgment.

Dated: December 12, 2017

Respectfully submitted,

/s/ Julie B. Axelrod Julie B. Axelrod (DC Bar 1001557) Christopher J. Hajec (DC Bar 492551) Elizabeth A. Hohenstein (DC Bar 1044138) IMMIGRATION REFORM LAW INSTITUTE 25 Massachusetts Avenue, NW Suite 335 Washington, DC 20001 (202) 232-5590 jaxelrod@irli.org chajec@irli.org ehohenstein@irli.org
Attorneys for Amicus Curiae Immigration Reform Law Institute

10

 
 Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE TRUSTEES OF PRINCETON UNIVERSITY, et al.,
Plaintiffs, v. UNITED STATES OF AMERICA, et al.,
Defendants.

) ) ) ) ) ) ) ) Case No. 17-cv-2325 (CRC) ) ) ) ) ) ) ) ) ) )

BRIEF AMICI CURIAE OF CURRENT AND FORMER LAW ENFORCEMENT LEADERS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND/OR PRELIMINARY INJUNCTION

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 2 of 21 TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................................................................................... 1 INTRODUCTION .......................................................................................................................... 2 ARGUMENT .................................................................................................................................. 3
I. DACA Fosters Effective Law Enforcement. ...................................................................... 3 A. “Community Policing” Is Essential to Effective Law Enforcement. ............................... 3 B. DACA Promotes Cooperation with Law Enforcement.................................................... 4 C. DACA Aids Law Enforcement by Facilitating Access to Identification. ........................ 8
II. DACA Helps Law Enforcement Protect Vulnerable Individuals from Crime and Exploitation....................................................................................................................... 10
CONCLUSION............................................................................................................................. 14
i

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 3 of 21
Table of Authorities
Statutes
8 U.S.C. § 1324a(h)(3).....................................................................................................................9
8 C.F.R. § 274a.12(c)(14) ................................................................................................................9
Pub. L. No. 106-386, 114 Stat. 1491 (2000)....................................................................................7
Executive and Congressional Materials
Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n) ...................................4, 6, 10
Soc. Security Admin., SSA Publ’n No. 05-10096, Social Security Numbers for Noncitizens (June 2015), available at http://www.ssa.gov/pubs/EN-05-10096.pdf ...................................10
U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., OMB No. 1615-0040, Instructions for I-765 Application for Employment Authorization (Nov. 2015), available at https://www.uscis.gov/sites/default/files/files/form/i-765instr.pdf ...........................................9
U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-humantrafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminalactivity-u-nonimmigrant-status (last updated Aug. 25, 2017) ...............................................7, 8
U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs., Enhancing Community Policing with Immigrant Populations (Apr. 2010), available at https://ric-zaiinc.com/Publications/cops-w0747-pub.pdf .............................................................................10
Other Authorities
Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593 (2013)..................................................................................13
Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (2009), https://www.policefoundation.org/wpcontent/uploads/2015/06/The-Role-of-Local-Police-Narrative.pdf.....................................4, 12
Elizabeth Fussell, The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery, 52 Soc. Q. 593 (2011) ..................................................................11, 12, 13
ii

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 4 of 21
Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159 (2010) ......12
Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328 (2015) ...............13
Leslye Orloff, Levi Wolberg & Benish Anver, Nat’l Ctr. on Domestic & Sexual Violence, UVisa Victims and Lawful Permanent Residency (Sept. 6, 2012), http://www.ncdsv.org/ images/NIWAP_U-VisaVictimsAndLawfulPermanentResidency_9-6-12.pdf.........................8
Nat’l Immigration Law Ctr., Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement (Aug. 2013), https://www.nilc.org/wp-content/uploads/2017/02/ Law-Enforcement-Opposition-to-Mandates-2013-08-30.pdf ....................................................6
Mark Hugo Lopez & Susan Minushkin, Pew Hispanic Center, 2008 National Survey of Latinos: Hispanics See Their Situation in U.S. Deteriorating; Oppose Key Immigration Enforcement Measures (Sept. 18, 2008), http://pewhispanic.org/reports/report.php?ReportID=93 ..............4
Michael Corkery & Jessica Silver-Greenberg, Banks Reject New York City IDs, Leaving ‘Unbanked’ on Sidelines, N.Y. Times, Dec. 23, 2015...............................................................9
Natalia Lee et al., Nat’l Immigrant Women’s Advocacy Project, National Survey of Service Providers on Police Response to Immigrant Crime Victims, U Visa Certification and Language Access (Apr. 16, 2013), http://www.niwap.org/reports/Police-Response-U-VisasLanguage-Access-Report-4.6.13.pdf .........................................................................................8
Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230 (2005) ...............................................13
Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013), www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_ FINAL.PDF ...............................................................................................................................5
Police Exec. Research Forum, Voices from Across the Country: Local Law Enforcement Officials Discuss the Challenges of Immigration Enforcement (2012), http://www.policeforum.org/ assets/docs/Free_Online_Documents/Immigration/voices%20from%20across%20the%20cou ntry%20-%20local%20law%20enforcement%20officials%20discuss%20the%20challenges %20of%20immigration%20enforcement%202012.pdf.........................................................5, 9
Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183 (2001) .....................................................................................................................................6, 7
iii

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 5 of 21 Roberto G. Gonzales, DACA’s beneficiaries landed good jobs, enrolled in college, and
contributed to society, Vox Media, Sept. 5, 2017, https://www.vox.com/2017/9/2/16244380/ daca-benefits-trump-undocumented-immigrants-jobs ...........................................................7, 8 Roberto G. Gonzales & Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA (June 2014), http://www.immigrationpolicy.org/special-reports/two-years-and-counting-assessinggrowing-power-daca ..............................................................................................................7, 8 S. Poverty Law Ctr., Under Siege: Life for Low-Income Latinos in the South (Apr. 2009), http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf ..........................11, 12 Zenén Jaimes Pérez, United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three-Years Later (June 2015), http://unitedwedream.org/wp-content/uploads/2015/10/DACA-report-final-1.pdf ............7, 10
iv

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 6 of 21
INTEREST OF AMICI CURIAE Amici Current and Former Law Enforcement Leaders file this brief as amici curiae in support of Plaintiffs.* Amici are current and former individual police chiefs, sheriffs, and law enforcement leaders. Amici have deep and wide-ranging expertise in local law enforcement and in cooperative federal-state law enforcement activities. They are intimately familiar with the difficulties of performing critical law enforcement functions in communities where immigrants fear the police and therefore are especially vulnerable to exploitation and crime. Amici’s experience in keeping their communities safe has taught them the critical importance of bringing immigrants and their families “out of the shadows” and into their broader communities. Trust and cooperation are essential to public safety, and sound police work is undermined when undocumented immigrants fear interacting with law enforcement. This fear, moreover, leaves undocumented immigrants more vulnerable to crime and exploitation, leading to more violence in the communities that amici are charged with protecting. The Deferred Action for Childhood Arrivals (“DACA”) program protects from deportation nearly 800,000 individuals brought to this country as children. Under DACA, these individuals, who have undergone background checks and lived continuously in the United States since 2007, have been permitted to live, work, and study in this country without fear of deportation. Amici have witnessed firsthand how the DACA program has helped law enforcement officers to keep their communities safe by taking away the fear of removal from these nearly 800,000 individuals who are active members of their communities. A full list of amici is attached as Exhibit A.
* Pursuant to LCvR 7(o)(5), amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici, their members, or their counsel made any monetary contributions intended to fund the preparation or submission of this brief.
1

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 7 of 21
INTRODUCTION The lessons that amici have learned in protecting their communities shed important light on the issues raised in this case. Community policing, a philosophy that calls for trust and engagement between law enforcement and those whom they protect, is vital to effective police work and, in turn, to public safety. That trust is undermined when undocumented individuals fear interaction with the police, and law enforcement suffers as a result. Extensive evidence shows that, especially without programs such as DACA in place, undocumented immigrants—and their lawfully present family and neighbors—fear that turning to the police to report crimes or engaging with the police as they investigate crimes will bring adverse immigration consequences. As a result, immigrant communities are less willing to report crimes or cooperate with police investigations. This fundamental breakdown in trust poses a major challenge for police not only as they seek to protect communities but also as they attempt to allocate resources sensibly in the interest of public safety. DACA ameliorates these problems by addressing an important reason that many individuals fear cooperating with law enforcement. As experience with DACA has shown, when immigrants are permitted to step out of the shadows, they are much more willing to work cooperatively with police. As explained below, nearly two-thirds of DACA recipients reported being less afraid of law enforcement, and 59 percent indicated that they would report a crime now in a situation in which they would not have reported it before entering the program. DACA further aids law enforcement by facilitating access to identification, such as federal employment authorization documents. Lack of identification in immigrant communities often leads to undue burdens on police, potentially turning a simple traffic stop into an hours-long detour to fingerprint
2

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 8 of 21
someone at the police station. When police are able to identify victims, witnesses, and potential suspects without those sorts of delays, valuable law enforcement resources are spared.
DACA also benefits public safety by helping law enforcement to protect a population uniquely vulnerable to exploitation and violent crime. Numerous studies show that undocumented individuals’ fear of interactions with law enforcement makes them attractive targets for many forms of crime and abuse. Undocumented immigrants, for instance, face increased wage theft and other forms of exploitation in the workplace. With limited access to bank accounts (in substantial part because of their lack of identification), they have been dubbed by some as “walking ATMs” and are frequently targeted for robbery. Undocumented individuals are also especially vulnerable to domestic abuse because they are often afraid to turn to law enforcement for help against abusive partners.
By eliminating an important reason to fear law enforcement, by providing work authorization and access to identification, and by building trust between police and immigrants with longstanding ties to the United States, DACA aids community policing and makes recipients less vulnerable to crime and exploitation. In doing so, DACA provides vital support to police charged with protecting everyone in their communities.
ARGUMENT I. DACA Fosters Effective Law Enforcement.
A. “Community Policing” Is Essential to Effective Law Enforcement. As one major city police chief has explained, the experience of policing cities across the country has taught law enforcement officers that, “[t]o do our job, we must have the trust and
3

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 9 of 21
respect of the communities we serve.”1 In order to stop crime, police officers “need the full cooperation of victims and witnesses.”2
This common-sense philosophy has come to be called “community policing.” Community
policing is an approach to policing whereby police officers engage communities in a working partnership to reduce crime and promote public safety.3 It thus requires police to interact with
neighborhood residents in a manner that will build trust and improve the level of cooperation with the police department.4 When that relationship of trust is missing—as it is when people believe
that contacting police could lead to deportation for themselves or others—community policing
breaks down and the entire community is left at greater risk of exploitation and violence.
B. DACA Promotes Cooperation with Law Enforcement.
The reality of millions of undocumented immigrants living in the United States poses
significant challenges to effective community policing.
According to a Pew survey, 57 percent of Latinos in the United States indicate that they
worry about deportation—of themselves, family members, or close friends—and 40 percent worry about it “a lot.”5 This fear necessarily affects cooperation and communication with the police.
1 Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), available at http://www.judiciary.senate. gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. 2 Id. 3 See Anita Khashu, Police Found., The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties (Apr. 2009) (citing Mark H. Moore, ProblemSolving and Community Policing, Modern Policing (Michael Tonry & Norval Morris eds., 1992)), available at https://www.policefoundation.org/wp-content/uploads/2015/06/The-Role-of-LocalPolice-Narrative.pdf. 4 Id. 5 Mark Hugo Lopez & Susan Minushkin, Pew Hispanic Ctr., 2008 National Survey of Latinos: Hispanics See Their Situation in U.S. Deteriorating; Oppose Key Immigration Enforcement
4

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 10 of 21
Immigrants and their family members and neighbors who may be U.S. citizens or lawfully present
often assume that interaction with police could have adverse consequences for themselves or a
loved one. Even when local authorities play no role in immigration enforcement, many immigrants
still associate police with immigration authorities, or expect police to inquire about immigration
status.6
As a result, immigrant communities in general, and undocumented immigrants in
particular, are less likely to trust and cooperate with local police. In one survey of Latinos in four
major cities designed to assess the impact of police involvement in immigration enforcement on
public safety and police-community relations, 70 percent of undocumented immigrants and 44
percent of all Latinos said they would be less likely to contact law enforcement authorities if they
were victims of a crime for fear that the police would ask them or people they know about their
immigration status; and 67 percent of undocumented immigrants and 45 percent of all Latinos said
they would be less likely to voluntarily offer information about, or report, crimes because of the
same fear.7
Measures at ii (Sept. 18, 2008), http://pewhispanic.org/reports/report.php ?ReportID=93. 6 See, e.g., Police Exec. Research Forum, Voices from Across the Country: Local Law Enforcement Officials Discuss the Challenges of Immigration Enforcement 2 (2012), http://www.policeforum.org/ assets/docs/Free_Online_Documents/Immigration/voices%20from %20across%20the%20country%20-%20local%20law%20enforcement%20officials%20discuss% 20the%20challenges %20of%20immigration%20enforcement%202012.pdf (“[S]ome members of the public . . . may have a misperception that because immigration is governed by laws, all law enforcement agencies have responsibility for enforcing those laws. . . . Police chiefs note that immigrants often have this misperception, which often makes them reluctant to contact local police . . . .”). 7 Nik Theodore, Dep’t of Urban Planning & Policy, Univ. of Ill. at Chi., Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5-6 (May 2013), www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF; see also id. at 1 (“Survey results indicate that the greater involvement of police in immigration enforcement has significantly heightened the fears many Latinos have of the police, . . . exacerbating their mistrust of law enforcement authorities.”).
5

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 11 of 21
This problematic atmosphere of mistrust is felt by police as well. In one study, two-thirds of the law enforcement officers polled held the view that recent immigrants reported crimes less frequently than others.8 Those surveyed also indicated that the crimes underreported by immigrants most often are serious ones, with domestic violence and gang violence at the top.9 The widely recognized fear among immigrants of interacting with law enforcement poses a fundamental challenge for community policing. Police cannot prevent or solve crimes if victims or witnesses are unwilling to talk to them because of concerns that they or their loved ones or neighbors will face adverse immigration consequences. As the president of the Major Cities Chiefs Association has explained to Congress, “[c]ooperation is not forthcoming from persons who see their police as immigration agents.”10 Moreover, as cautioned by one official, “immigrants will never help their local police to fight crime once they fear we have become immigration officers.”11
The underreporting of crimes by recent immigrants is a problem for the criminal justice system.12 The most immediate consequence, of course, is that serious crimes go unreported and unpunished. At a broader level, undercounting the incidence of crime in areas where immigrant communities live leads to the under-allocation of law enforcement resources to those communities.13 As one official explained, when criminal behavior goes unreported, “[c]rime
8 Robert C. Davis, Edna Erez & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (2001). 9 Id. at 188-9. 10 Statement of Tom Manger, supra note 1, at 2. 11 National Immigration Law Center, Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement 2 (Aug. 2013) (statement of Chief Acevedo), https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Opposition-to-Mandates2013-08-30.pdf. 12 Davis et al., supra note 8, at 188. 13 Id.
6

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 12 of 21
multiplies” and “[u]nresolved resentments grow in the community.”14 Another added that the
underreporting of crime “keeps fear at very high levels and diminishes quality of life.”15
DACA has helped to ameliorate these problems and improve public safety more broadly.
Nearly eight in ten recipients of DACA relief reported that they are now less afraid of deportation,16 two-thirds reported being less afraid of law enforcement, and 59 percent of DACA
recipients surveyed said that they would report a crime now in a situation in which they would not have reported it before.17 If DACA were to remain in place, those who qualify for the program
would not revert to old reasons to fear ordinary encounters with law enforcement. Instead, they
would retain greater freedom to cooperate in the protection of their communities without worrying
about how their good deed might be punished—for example, by causing them to be separated from
their family members, siblings, or loved ones. Lessons learned from implementation of the Violence Against Women Act of 200018 are
instructive. With that Act, congress created the U visa to provide immigration relief to
undocumented victims of certain crimes.19 Like DACA qualification, a U visa allows recipients
14 Id. 15 Id. 16 Zenén Jaimes Pérez, United We Dream, A Portrait of Deferred Action for Childhood Arrivals Recipients: Challenges and Opportunities Three-Years Later 23 (June 2015), http://unitedwedream.org/wp-content/uploads/2015/10/DACA-report-final-1.pdf. 17 Roberto G. Gonzales & Angie M. Bautista-Chavez, Am. Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA 9 (June 2014), http://www.immigrationpolicy.org/special-reports/two-years-and-counting-assessing-growingpower-daca; Roberto G. Gonzales, DACA’s beneficiaries landed good jobs, enrolled in college, and contributed to society, Vox Media, Sept. 5, 2017, https://www.vox.com/2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs. 18 Pub. L. No. 106-386, 114 Stat. 1491 (2000). 19 See U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-humantrafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminalactivity-u-nonimmigrant-status (last updated Aug. 25, 2017).
7

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 13 of 21
to identify themselves, receive temporary relief from removal, and obtain verified government identification.20 The consequences for law enforcement have been striking. A recent study indicated that U visa applicants and recipients, freed of the need to remain in the shadows, became far more likely to cooperate with law enforcement in the detection, investigation, and prosecution of crimes.21 Indeed, more than 99 percent stated that they were willing to cooperate with the police, and 70 percent were in fact asked to—and did—provide assistance related to crimes committed against them.22 That U-visa holders who seek lawful permanent residency are expected to provide “reasonably requested information and assistance” to law enforcement in connection with the crimes that qualify them for immigration relief undoubtedly helps explain the especially high level of cooperation, but the protections offered by the U-visa are what enable that cooperation.23 Another study revealed that three-quarters of law enforcement officers view U visas as beneficial in encouraging victims to come forward and report crimes.24
C. DACA Aids Law Enforcement by Facilitating Access to Identification. A further benefit of DACA for effective policing follows from the greater availability of identification. Because most states do not issue driver’s licenses or other identification to undocumented immigrants, law enforcement often face serious difficulties reliably identifying undocumented community members. Ready access to identification aids law enforcement in the
20 See id. 21 See Leslye Orloff, Levi Wolberg & Benish Anver, Nat’l Ctr. on Domestic & Sexual Violence, U-Visa Victims and Lawful Permanent Residency 5-6 (Sept. 6, 2012), http://www.ncdsv.org/ images/NIWAP_U-VisaVictimsAndLawfulPermanentResidency_9-6-12.pdf. 22 Id. 23 See id. at 5 (internal quotation marks omitted). As set forth supra, note 17, there is a similar result from the DACA program, which involves no expectation of law enforcement cooperation. 24 Natalia Lee et al., Nat’l Immigrant Women’s Advocacy Project, National Survey of Service Providers on Police Response to Immigrant Crime Victims, U Visa Certification and Language Access 21 (Apr. 16, 2013), available at http://www.niwap.org/reports/Police-Response-U-VisasLanguage-Access-Report-4.6.13.pdf.
8

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 14 of 21
most basic of ways: if the police cannot verify who someone is, it becomes much harder to identify witnesses and victims, investigate potential suspects, and perform critical tasks like searching for a criminal history, investigating outstanding warrants, and determining whether someone poses a threat.25
Even the simplest traffic stop can lead to an unnecessary waste of valuable law enforcement resources if an individual cannot be identified. If an officer stops a motorist who does not have a license or other verifiable identification, the officer may have no other option than to arrest the individual, bring him to the station, and obtain fingerprint information in order to identify the individual. As one police chief has explained, “[w]hen we stop cars and the driver doesn’t have a driver’s license, there are very few options for the officers and troopers.”26 The only way to reliably identify the individual may be through fingerprints, requiring a detour to “jail so we can find out who they are.”27 Another former police chief lamented the “manpower” required and time lost—“up to two to three hours to determine who an arrestee is”—which could be devoted to more pressing law enforcement concerns.28
Recipients of DACA are eligible to apply for a federal employment authorization document (“EAD”). The EAD comes in the form of a card issued by U.S. Citizenship and Immigration Services, and includes the recipient’s photograph.29 Individuals who receive employment
25 Police Exec. Research Forum, supra note 6, at 15; see also Michael Corkery & Jessica SilverGreenberg, Banks Reject New York City IDs, Leaving ‘Unbanked’ on Sidelines, N.Y. Times, Dec. 23, 2015 (describing municipal identification and stating, “[t]he mayor emphasized that the cards were developed with input from the New York City Police Department and said the department had been one of the biggest backers of the program. ‘They want every New Yorker on the street to have an ID card; it greatly improves the work of the NYPD,’ Mr. de Blasio said.”). 26 See id. at 15-16. 27 Id. at 16. 28 Id. at 15. 29 See 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14); see also U.S. Dep’t of Homeland Sec., U.S. Citizenship & Immigration Servs., OMB No. 1615-0040, Instructions for I-765 Application
9

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 15 of 21
authorization also are eligible to obtain a Social Security number and card.30 Because DACA has expanded availability of identification, it has assisted law enforcement officers’ ability to identify those whom they encounter.31 Instead of time-consuming, wasteful, and potentially antagonistic encounters with individuals who pose no public safety concern, police have more time to focus on higher priorities in keeping their communities safe.
II. DACA Helps Law Enforcement Protect Vulnerable Individuals from Crime and Exploitation.
DACA has yielded another vital public safety benefit: protecting individuals who are attractive targets for criminals.
As discussed above, undocumented immigrants as well as their families fear interactions with police and are reluctant to report crimes when doing so is accompanied by the fear of removal. No one knows this better than the predators who seek to take advantage of immigrant communities’ vulnerabilities. These communities face a range of misconduct, from abuse by unscrupulous employers to domestic and gang violence.32 “When immigrants come to view their local police and sheriffs with distrust because they fear deportation, it creates conditions that encourage criminals to prey upon victims and witnesses alike.”33
for Employment Authorization (Nov. 2015) (describing EAD as a “card” and requiring two passport-style photos), available at https://www.uscis.gov/sites/default/files/files/form/i765instr.pdf. 30 See Soc. Sec. Admin., SSA Publ’n No. 05-10096, Social Security Numbers for Noncitizens (June 2015), available at http://www.ssa.gov/pubs/EN-05-10096.pdf. 31 More than 90 percent of recipients of relief under DACA report that they have acquired a driver’s license or other identification. Pérez, supra note 16, at 20. 32 See U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs., Enhancing Community Policing with Immigrant Populations 16 (Apr. 2010), available at https://ric-zaiinc.com/Publications/cops-w0747-pub.pdf. 33 Statement of Tom Manger, supra note 1, at 2.
10

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 16 of 21
This phenomenon has been termed the “deportation threat dynamic.”34 The logic is straightforward: “(1) an unauthorized migrant seeks, and finds, employment; (2) a person, such as an employer or criminal, identifies the migrant as unauthorized; (3) that person commits a crime against the migrant, such as wage theft, another workplace violation, or robbery; and (4) the migrant does not report the crime to law enforcement,” fearing immigration consequences.35
This phenomenon is widespread in the workplace. In a number of studies, between 40 and 80 percent of mostly undocumented immigrants reported being victims of wage theft.36 Many immigrants also reported other types of worksite abuse.37 In one study, 32 percent of respondents said that they had suffered on-the-job injuries—and most of these individuals, after being injured, were fired, not paid lost wages, or denied medical care by their employers.38
The deportation threat dynamic fuels not only exploitation but also outright violence. An advocate reported that, when one worker attempted to collect wages his employer owed him, “[t]he contractor raised his shirt and showed he had a gun—and that was enough. . . . He didn’t have to say any more. The worker left.”39 DACA recipients are currently eligible to receive work authorization, and many are currently working or pursuing higher educational opportunities.
34 Elizabeth Fussell, The Deportation Threat Dynamic and Victimization of Latino Migrants: Wage Theft and Robbery, 52 Soc. Q. 593 (2011). 35 Id. at 610. 36 See id. (finding that 2 of 5 respondents reported wage theft since arriving in New Orleans, and citing Nik Theodore, Abel Valenzuela, Jr. & Edwin Meléndez, La Esquina (The Corner): Day Laborers on the Margins of New York’s Formal Economy, 9 WorkingUSA: J. Labor & Soc. 407 (Dec. 2006), finding a wage theft rate of approximately 50% in New York); S. Poverty Law Ctr., Under Siege: Life for Low-Income Latinos in the South 6 (Apr. 2009) (finding that 41% of those surveyed across the South had experienced wage theft, and 80% had in New Orleans), http://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf. 37 Fussell, supra note 34, at 604. 38 S. Poverty Law Ctr., supra note 36, at 6. 39 Id. at 7 (internal quotation marks omitted).
11

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 17 of 21
Revocation of their work authorization will leave them more vulnerable to exploitation and even violent crime.
This same lawlessness plaguing undocumented communities extends well beyond the workplace. Nearly two-thirds of undocumented migrant workers participating in a Memphis study reported being the victim of at least one crime, most commonly theft or robbery.40 Respondents indicated that fewer than a quarter of these crimes were reported to the police, and only one was reported by the victim himself.41
As this study suggests, robbery and similar crimes pose a particular threat to undocumented individuals, who typically do not have bank accounts, in part because of their inability to obtain government-issued identification.42 Moreover, many of these immigrants live in group apartments and are unable to store valuables in a safe place at home.43 As a result, undocumented immigrants are known to carry large amounts of cash, making robbing them an especially lucrative proposition. The risk to the perpetrators, meanwhile, is minimal because the victims are too afraid to report the crime to the police.
The targeting of undocumented immigrants for robbery has become so widespread that these individuals have been labeled “walking ATMs”—or the subjects of “amigo shopping.”44 In a study of largely undocumented immigrants helping to rebuild New Orleans in the wake of Hurricane Katrina, the immigrants reported robbery and physical assault at more than ten times the
40 Jacob Bucher, Michelle Manasse & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 (2010). 41 Id. at 165. 42 Fussell, supra note 34, at 604; S. Poverty Law Ctr., supra note 36, at 6, 25. 43 Khashu, supra note 3, at 25; see also Bucher, Manasse & Tarasawa, supra note 40, at 164, 16768 (finding that a large majority of surveyed undocumented migrants workers lived with at least three others and identifying a strong relationship between number of cohabitants and crime). 44 See Fussell, supra note 34, at 604-05; S. Poverty Law Ctr., supra note 36, at 25; Khashu, supra note 3, at 25.
12

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 18 of 21
rate experienced by the general population.45 In another survey, 53 percent of law enforcement
officers held the view that undocumented immigrants were especially likely to be victims of
robbery and theft.46
There is also evidence that undocumented immigrants are especially vulnerable to domestic
violence. Studies have shown that abusive partners may utilize the threat of deportation in order
to maintain power and control over their victims.47 When the abusing partner has lawful status,
financial dependence on that partner may similarly allow for the perpetuation of violence.48
Seventy percent of participants in one study of domestic abuse victims said that
immigration status was a major impediment to their seeking help or reporting their abuse to the
authorities and thereby permitting the violence to continue.49 In another study, the single largest
factor independently affecting the rate at which battered immigrant Latina women called the police
was identified as immigration status.50
In short, should DACA recipients lose their work authorizations and once again fear
removal from the United States, their lack of status will embolden exploitative employers and
criminals alike and thus diminish the safety of entire communities. By permitting these young
45 See Fussell, supra note 34, at 604. 46 Id. 47 See, e.g., Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 330 (2015) (citing several studies); Angelica S. Reina, Brenda J. Lohman & Marta María Maldonado, ‘‘He Said They’d Deport Me’’: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 601 (2013). The latter study cited a participant who explained that a partner “beat me up and I could have called the police because that was what I thought to do . . . but he threatened me . . . he told me that if I called the police I was going to lose out . . . because they [police officers] . . . would . . . take me, because I didn’t have legal documents.” Id. 48 See, e.g., Messing, supra note 47, at 330. 49 Reina, Lohman & Maldonado, supra note 47, at 600. 50 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005).
13

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 19 of 21

individuals to live and work openly, DACA eliminates a significant barrier to an open and trusting relationship with law enforcement. Continuing DACA will enable police to better fight crime and serve all those whom they are charged with protecting.
CONCLUSION For the foregoing reasons, as well as the reasons set forth in Plaintiffs’ Motion, this Court should grant the relief sought by the Plaintiffs.

December 15, 2017

Respectfully Submitted,
/s/ Joshua A. Geltzer
Joshua A. Geltzer (D.C. Bar No. 1018768) Institute for Constitutional Advocacy and Protection Georgetown University Law Center 600 New Jersey Avenue NW Washington, D.C. 20001 Phone: (202) 662-9042 Email: jg1861@georgetown.edu
Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100 Counsel for Amici Curiae

14

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 20 of 21
Exhibit A

Case 1:17-cv-02325-CRC Document 30 Filed 12/19/17 Page 21 of 21
EXHIBIT A: LIST OF AMICI*  Chief Art Acevedo, Houston, Texas, Police Department  Deputy Chief Carmen Best, Seattle, Washington, Police Department  Chief Richard Biehl, Dayton, Ohio, Police Department  Chief Chris Burbank, Salt Lake City, Utah, Police Department (retired)  Sheriff Jerry Clayton, Washtenaw County, Michigan, Sheriff’s Office  Ronald Davis, Former Director, United States Department of Justice, Office of
Community Oriented Policing Services (COPS Office); Chief (Ret.), East Palo Alto, California, Police Department  Commissioner William Evans, Boston, Massachusetts, Police Department  Asst. Chief Randy Gaber, Madison, Wisconsin, Police Department  Sheriff Edward Gonzalez, Harris County, Texas, Sheriff’s Office  Chief Ronald Haddad, Dearborn, Michigan, Police Department  Sheriff Mike Haley, Washoe County, Nevada, Sheriff’s Office (retired)  Sheriff Bill McCarthy, Polk County, Iowa, Sheriff’s Office  Lieutenant Andy Norris, Tuscaloosa County, Alabama, Sheriff’s Office  Sheriff Joe Pelle, Boulder County, Colorado, Sheriff’s Office  Director Mark Prosser, Storm Lake, Iowa, Department of Public Safety  Police Chief Celestino Rivera, Lorain, Ohio, Police Department  Sheriff Lupe Valdez, Dallas County, Texas, Sheriff’s Department  Chief Roberto Villasenor, Tucson, Arizona, Police Department (retired)  Chief Jeri Williams, Phoenix, Arizona, Police Department
* Affiliations are provided for identification purposes only.

 
 Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE TRUSTEES OF PRINCETON UNIVERSITY, MICROSOFT CORPORATION, and MARIA DE LA CRUZ PERALES SANCHEZ,

Plaintiffs, v.

Civil Action No. 17-cv-2325 (CRC)

UNITED STATES OF AMERICA, U.S. DEPARTMENT OF HOMELAND SECURITY, and ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security

Defendants.

AMICUS BRIEF OF 112 COMPANIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND/OR PRELIMINARY INJUNCTION

Of Counsel:
Seth Waxman Patrick J. Carome Ari Holtzblatt WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006
Janine M. Lopez (pro hac pending) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109
Counsel for Amici Curiae Airbnb, Inc., Square, Inc., Twitter, Inc., and Yelp Inc.

Andrew J. Pincus (D.C. Bar #370762) MAYER BROWN LLP 1999 K Street NW Washington, DC 20006
Lauren R. Goldman (pro hac pending) Karen W. Lin (pro hac pending) Rory K. Schneider (pro hac pending) MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020-1001
Counsel for Amici Curiae

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 2 of 40 CORPORATE DISCLOSURE STATEMENT
Amici curiae submit their corporate disclosure statements, as required by Local Rule 7(o) and Federal Rule of Appellate Procedure 29(a)(4)(A), in Appendix B.
i

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 3 of 40
TABLE OF CONTENTS INTEREST OF AMICI CURIAE .................................................................................................... 1 INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. DACA’S RESCISSION WILL INFLICT SIGNIFICANT HARM ON U.S.
COMPANIES AND THE ENTIRE ECONOMY............................................................... 2 A. Dreamers Contribute Directly To Our Nation’s Economic Growth ....................... 3 B. Dreamers Help Grow The Economy By Filling Jobs For Which There
Otherwise Would Not Be A Sufficient Supply Of Workers................................... 5 1. Permitting Dreamers to participate in the workforce expands,
rather than reduces, the number of jobs ...................................................... 5 2. Dreamers fill critical labor shortages .......................................................... 6 C. Rescinding DACA Will Inflict Enormous Harm On Individuals, Companies, And The Economy .............................................................................. 9 II. THE DECISION TO RESCIND DACA IS INVALID, BECAUSE IT IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW....................... 12 A. Rescission Of DACA Is A “Final Agency Action” Subject To Review Under The APA ....................................................................................... 12 B. Rescission Of DACA Is Arbitrary And Capricious .............................................. 14 CONCLUSION............................................................................................................................. 17
ii

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 4 of 40
TABLE OF AUTHORITIES
Cases
Arizona v. United States, 567 U.S. 387 (2012).................................................................................................................15
Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) .................................................................................................13
Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) ...................................................................................................14
Bowrin v. INS, 194 F.3d 483 (4th Cir. 1999) ...................................................................................................13
Edison Elec. Inst. v. EPA, 996 F.2d 326 (D.C. Cir. 1993) .................................................................................................14
F.C.C. v. Fox Television Stations, 556 U.S. 502 (2009).................................................................................................................12
Heckler v. Chaney, 470 U.S. 821 (1985).....................................................................................................12, 13, 14
INS v. St. Cyr, 533 U.S. 289 (2001).................................................................................................................13
Johns v. DOJ, 653 F.2d 884 (5th Cir. 1981) ...................................................................................................15
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) ...................................................................................................14
Kucana v. Holder, 558 U.S. 233 (2010).................................................................................................................14
Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015) ..............................................................................................................14
Mahmood v. Holder, 570 F.3d 466 (2d Cir. 2009).....................................................................................................14
Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011).....................................................................................................12
Montana Air Chapter No. 29 v. Fed. Labor Relations Auth., 898 F.2d 753 (9th Cir. 1990) ...................................................................................................14
iii

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 5 of 40
Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765 (D.C. Cir. 1992) .................................................................................................14
Pllumi v. Att’y General, 642 F.3d 155 (3d Cir. 2011).....................................................................................................14
Reno v. American Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)...............................................................................................12, 13, 15, 16
Safe Air For Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007) .................................................................................................14
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................................................................13, 17
Constitution, Statutes, and Regulations U.S. Const. art. II, § 3 ....................................................................................................................15 5 U.S.C. § 551................................................................................................................................12 5 U.S.C. § 701................................................................................................................................12 5 U.S.C. § 706................................................................................................................................14 6 U.S.C. § 202................................................................................................................................15 8 U.S.C. § 1103..............................................................................................................................15 8 U.S.C. § 1154..............................................................................................................................16 8 U.S.C. § 1252..................................................................................................................12, 13, 16 8 U.S.C. § 1324..............................................................................................................................16 49 U.S.C. § 30301..........................................................................................................................16 National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,
117 Stat. 1392, 1694-1695 (2003) ...........................................................................................16 USA PATRIOT Act, Pub. L. No. 7 107-56, 115 Stat. 272, 361 (2001) ........................................16 8 C.F.R. § 274a ..............................................................................................................................16
iv

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 6 of 40
Other Authorities
Am. Farm Bureau Federation, Agricultural Labor – Immigration Reform (Oct. 2016), https://goo.gl/WUAz3e...................................................................................................8
Ben Gitis & Jacqueline Varas, The Labor and Output Declines From Removing All Undocumented Immigrants, Am. Action Forum, May 5, 2016, https://goo.gl/UAt3dJ ...............................................................................................................11
Bob Davis, The Thorny Economics of Illegal Immigration, Wall St. J., Feb. 9, 2010, https://goo.gl/j4dd7J.......................................................................................................10
Buttonwood, Keep on Trucking, The Economist, Feb. 11, 2012.................................................5, 6
CHARLES GORDON ET AL., 6-72 IMMIGRATION LAW & PROC. rev. ed. (1981) ...............................15
Ctr. for Am. Progress, Results of Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey (2016), https://goo.gl/pe2i17......................................................................................................7
Ctr. for Am. Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program (2017), https://goo.gl/P3DgPz ......................................9
David Bier, Ending DACA Will Impose Billions in Employer Compliance Costs, Cato Institute, Sept. 1, 2017, https://goo.gl/1FMidk................................................................10
David Bier, Five Myths About DACA, Cato Institue, Sept. 7, 2017, https://goo.gl/y1e8gb .................................................................................................................6
Economics A-Z Terms Beginning With L, The Economist, https://goo.gl/BvRwKU .............................................................................................................5
Giovanni Peri, The Effect of Immigrants on U.S. Employment and Productivity, Fed. Reserve Bank of San Francisco Economic Letter, Aug. 30, 2010, https://goo.gl/jK17fc ..............................................................................................................6, 8
H.R. Rep. No. 11-157 (2009).........................................................................................................15
Heather Boushey & Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Ctr. for Am. Progress, Nov. 16, 2012, https://goo.gl/ZSmRLq ............................................................................................................10
I Felt Like a Normal American Kid . . . Then Everything Changed, THINKPolicy Blog, Oct. 9, 2017, https://goo.gl/oV9P7h.................................................................................8
Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA, Cato Institute, Jan. 18, 2017, https://goo.gl/jFXw4g.................................................4, 9
v

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 7 of 40
Jacqueline Varas, How Immigration Helps U.S. Workers and the Economy, American Action Forum, Mar. 20, 2017, https://goo.gl/ovHQEh .............................................6
Jose Magana-Salgado, Immigrant Legal Resources Center, Money on the Table: The Economic Cost of Ending DACA (2016), https://goo.gl/3ZwGVJ ...............................9, 10
Julia Boorstin, Illegal Entrepreneurs: Maria Has No U.S. Visa, and Jose’s Expires Soon. Yet They Own a Profitable California Factory, Pay Taxes, and Create Jobs, CNNMoney, July 1, 2005, https://goo.gl/jq2Y1C ................................................4
Kenneth Megan, Immigration and the Labor Force, Bipartisan Policy Ctr., Aug. 25, 2015, https://goo.gl/8p3SP8.................................................................................................5
ManpowerGroup, 2016/2017 Talent Shortage Survey: The United States Results, https://goo.gl/rJTKs6 .................................................................................................................7
Mem. Op. for the Sec’y of Homeland Security and the Counsel to the President, 38 Op. Off. Legal Counsel 1 (Nov. 19, 2014), https://www.justice.gov/file/179206/download .......................................................................15
Memorandum from Elaine C. Duke, Acting Secretary, Dep’t of Homeland Security, on Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017) ....................................................................13
Memorandum from Janet Napolitano to David V. Aguilar Regarding Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).............................................................................................1
Michael A. Clemens & Lant Pritchett, Temporary Work Visas: A Four-Way Win for the Middle Class, Low-Skill Workers, Border Security, and Migrants, Ctr. for Global Dev. Brief, Apr. 2013, https://goo.gl/p9NLuc .....................................................5, 8
Michael A. Clemens, Does Kicking Out Mexicans Create Jobs?, Politico Magazine, Feb. 15, 2017, https://goo.gl/XwLj1x ....................................................................11
Michael Greenstone & Adam Looney, What Immigration Means for U.S. Employment and Wages 1-2, The Hamilton Project (2012), https://goo.gl/bvC7AE ...............................................................................................................5
Mitra Toossi, Consumer Spending: An Engine for U.S. Job Growth, Monthly Labor Review (Nov. 2002) ........................................................................................................5
My American Dream, Minus the Paperwork, THINKPolicy Blog, Oct. 3, 2017, https://goo.gl/876JDm ................................................................................................................8
Nat’l Conference of State Legislatures, National Employment Monthly Update, https://goo.gl/wZBJh8 (last accessed Oct. 31, 2017).................................................................6
vi

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 8 of 40
Natalie Kitroeff & Geoffrey Mohan, Wages Rise on California Farms. Americans Still Don’t Want the Job, Los Angeles Times, Mar. 17, 2017 ...................................................8
Nicole Prchal Svajlenka et al., A New Threat to DACA Could Cost States Billions of Dollars, Ctr. for Am. Progress, July 21, 2017, https://goo.gl/7udtFu ...................................9
Octavio Blanco, The Worker Shortage Facing America’s Farmers, CNN Money, Sept. 29, 2016, https://goo.gl/ZF2Tdx .......................................................................................8
P’ship for a New Am. Economy, Open for Business: How Immigrants Are Driving Business Creation in the United States 12 (Aug. 2012), https://goo.gl/3mFkVz ...............................................................................................................3
Paul Krugman, Opinion, Lumps of Labor, N.Y. Times, Oct. 7, 2003 .............................................5
President’s Council of Advisors on Science and Technology, Report to the President: Engage to Excel: Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering, and Mathematics (Feb. 2012), https://goo.gl/v2YRVD....................................................................7
Rachel Unruh & Amanda Bergson-Shilcock, Nat’l Skills Coalition, Missing in Action (2015), https://goo.gl/gokfJW ........................................................................................7
Sarah Bohn et al., Do E-Verify Mandates Improve Labor Market Outcomes of Low-Skilled Native and Legal Immigrant Workers? 17-18 (2014), https://goo.gl/7UihSE ........................................................................................................ 10-11
Sarah Elizabeth Richards, How Fear of Deportation Puts Stress on Families, The Atlantic, Mar. 22, 2017, https://goo.gl/qDgeRf .........................................................................9
Silva Mathema, Assessing the Economic Impacts of Granting Deferred Action Through DACA and DAPA, Ctr. for Am. Progress, Apr. 2, 2015, https://goo.gl/wxxek1.................................................................................................................4
Tiziana Rinaldi & Angilee Shah, Immigration Limbo Is a ‘Tug of Emotions.’ It’s Also a Mental Health Issue, PRI’s The World, Aug. 22, 2017, https://goo.gl/WLXMZ4 ............................................................................................................9
Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow Ctr. for Am. Progress, Aug. 28, 2017, https://goo.gl/dYJV1s ................................................................................................................4
Tom K. Wong et al., Results from 2017 National DACA Study, https://goo.gl/eyZ3VT........................................................................................................3, 4, 7
Tony Romm, IBM CEO Ginni Rometty Is in D.C. Urging Congress to Save DACA, Recode.net, Sept. 19, 2017, https://goo.gl/NQeJUc ......................................................8
vii

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 9 of 40 U.S. Dep’t of Labor, Bureau of Labor Statistics, Economic News Release Table
A-14 (Oct. 6, 2017), https://goo.gl/o8t39g; ...............................................................................7 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor
Turnover Survey Highlights August 2017 (Oct. 11, 2017), https://goo.gl/H28XkL ...............................................................................................................7 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey, https://goo.gl/g4n9Ag (last accessed Oct. 31, 2017) ....................................6 The UndocuScholars Project, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform (2015), https://goo.gl/sEpx1K ................................................................................................................7 World Health Org. & Int’l Labour Org., Mental Health And Work: Impact, Issues and Good Practices 1 (2000), https://goo.gl/ecH1Ut ................................................................9
viii

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 10 of 40
INTEREST OF AMICI CURIAE Amici are 112 U.S. companies and associations that collectively contribute trillions of dollars in annual revenue to the American economy. Many amici employ Dreamers—the young people who, under the Deferred Action for Childhood Arrivals (DACA) program, are able to live and work in the country that has been their home for most of their young lives. In addition, amici’s customers and end users are Dreamers; and amici’s businesses benefit from Dreamers’ contributions to the overall economy through their tax payments, spending, and investments. Accordingly, amici have a strong interest in Dreamers’ continued ability to work and participate in our country’s economy and in society generally. A list of the amici is set forth in Appendix A.1
INTRODUCTION The intangible benefits of the DACA program are undeniable and substantial: nearly 800,000 young people (Dreamers) who “were brought to this country as children and know only this country as home” may for the first time live in America and participate fully in all aspects of our society without the constant and crippling fear of deportation. Memorandum from Janet Napolitano to David V. Aguilar Regarding Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012). DACA is a concrete and essential example of America fulfilling its centuries-old promise to welcome people from around the world seeking a better and a freer life. And no group is more deserving of that welcome than the Dreamers.

1

Pursuant to Local Rule 7(o)(5) and Federal Rule of Appellate Procedure 29(a)(4)(E),

amici state that no party’s counsel authored this brief in whole or in part, and that no person

other than amici or its counsel contributed money that was intended to fund preparing or

submitting the brief.

1

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 11 of 40
In addition to these invaluable intangible benefits, DACA has produced—and is continuing to produce—important benefits for America’s companies and for our economy as a whole. Most notably, DACA permits Dreamers to obtain work authorization, thereby enabling them to obtain jobs. Employment of Dreamers expands work opportunities for everyone, because employment is not a zero-sum game. Dreamers are filling vacancies at companies that cannot find enough workers to fill their needs. And Dreamers’ wages lead to higher tax revenues and expansion of our national GDP—producing new jobs for all Americans.
DACA’s rescission will inflict serious harm on U.S. companies, all workers, and the American economy as a whole. Indeed, our national GDP will lose $460.3 billion, and Social Security and Medicare tax contributions will be reduced by $24.6 billion, over the next decade.
The decision to rescind DACA did not rest on a policy choice by the Department of Homeland Security (DHS). Rather, DHS concluded that DACA exceeds DHS’s statutory authority. That conclusion is plainly reviewable under the Administrative Procedure Act: Courts every day determine the scope of federal agencies’ power under governing laws and regulations. And DHS’s legal conclusion is wrong: DACA closely resembles deferred action programs adopted in the past, and complies fully with the applicable statute. The agency’s rescission of DACA, predicated entirely on that erroneous legal conclusion, therefore cannot stand.
ARGUMENT I. DACA’S RESCISSION WILL INFLICT SIGNIFICANT HARM ON U.S.
COMPANIES AND THE ENTIRE ECONOMY. Since the nation’s founding, immigrants have been an integral part of the fabric of our country, enhancing the lives and prosperity of all Americans. Immigrants’ contributions to the
2

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 12 of 40
U.S. economy are well-recognized: For example, the businesses they own generate over $775 billion in revenue and employ one out of every 10 workers.2
DACA enabled Dreamers—immigrants who were brought to the U.S. as children—to come out of the shadows, participate in the economy, and contribute to U.S. companies, which benefits all of us. Rescinding DACA harms not only individual Dreamers and their families, friends, and co-workers; but also the many U.S. businesses that count on them to help fuel continued innovation and economic growth.
A. Dreamers Contribute Directly To Our Nation’s Economic Growth. In the five years since DACA was implemented, Dreamers have become essential contributors to American companies and the American economy. Prior to the DACA program, these young people—who have obtained at least a high school degree and, in many cases have finished college and obtained graduate degrees—would have been unable to obtain work authorization, and therefore unable to put their education and skills to use. DACA changed that, and as a result over 91 percent of the almost 800,000 Dreamers are employed and earn wages commensurate with their skill levels.3 Permitting Dreamers to stay and work in the country in which they grew up not only benefits those individuals, but also benefits American companies and the American economy as a whole. First, Dreamers directly contribute to the success of numerous U.S. companies. At least 72 percent of the top 25 Fortune 500 companies employ Dreamers—including IBM, Walmart,

2

P’ship for a New Am. Economy, Open for Business: How Immigrants Are Driving

Business Creation in the United States 12, 14 (Aug. 2012), https://goo.gl/3mFkVz.

3

Tom K. Wong et al., Results from 2017 National DACA Study 3-4 (“Wong 2017

Results”), https://goo.gl/eyZ3VT.

3

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 13 of 40
Apple, General Motors, Amazon, JPMorgan Chase, Home Depot, Wells Fargo, among others. Those companies alone generate almost $3 trillion in annual revenue.4
Many Dreamers are entrepreneurs who have created their own businesses: According to one survey, five percent of Dreamers started their own businesses after receiving DACA status. Among those respondents 25 years and older, the figure is eight percent—well above the 3.1 percent for all Americans.5 These businesses create new jobs and provide goods and services that expand the economy.6
Second, Dreamers pay taxes to federal, state, and local governments.7 The Cato Institute estimated that over 10 years, DACA recipients will increase tax revenues by $60 billion.8
Third, Dreamers have used their earnings—and the increased stability and security resulting from their DACA status—to make purchases and investments that grow our nation’s economy. Nearly two-thirds of Dreamers reported purchasing their first car in 2017, and 16 percent reported purchasing a first home.9 These and other types of personal consumption

4

Id.

5

Wong 2017 Results, supra n.2, at 3; Tom K. Wong et al., DACA Recipients’ Economic

and Educational Gains Continue to Grow, Ctr. for Am. Progress, Aug. 28, 2017,

https://goo.gl/dYJV1s.

6

See Julia Boorstin, Illegal Entrepreneurs: Maria Has No U.S. Visa, and Jose’s Expires

Soon. Yet They Own a Profitable California Factory, Pay Taxes, and Create Jobs, CNNMoney,

July 1, 2005, https://goo.gl/jq2Y1C.

7

See Silva Mathema, Assessing the Economic Impacts of Granting Deferred Action

Through DACA and DAPA, Ctr. for Am. Progress, Apr. 2, 2015, https://goo.gl/wxxek1.

8

Ike Brannon & Logan Albright, The Economic and Fiscal Impact of Repealing DACA,

Cato Institute, Jan. 18, 2017, https://goo.gl/jFXw4g.

9

Wong 2017 Results, supra n.3, at 3.

4

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 14 of 40

expenditures are important drivers of the economy: they “account[] for the largest share of GDP [and] are the main generator of employment in the economy.”10
B. Dreamers Help Grow The Economy By Filling Jobs For Which There Otherwise Would Not Be A Sufficient Supply Of Workers.
Studies have consistently found that immigrants do not displace U.S.-born workers. They instead help grow the economy and create more opportunities for U.S.-born workers by filling positions that otherwise would remain vacant because of a shortage of qualified workers.11
1. Permitting Dreamers to participate in the workforce expands, rather than reduces, the number of jobs.
“[O]ne of the best-known fallacies in economics” is the “lump of labour fallacy.”12 Economists from across the policy and political spectrum have discredited the notion that “there is a fixed amount of work to be done—a lump of labour”—such that an increase in the number of workers reduces the number of available jobs.13 Rather, the clear reality is that jobs beget more jobs. “[W]hen people work for a living they earn money. They spend that money on goods and services that are produced by other people, young and old, male and female.”14 The greater demand for goods and services creates new jobs.

10

Mitra Toossi, Consumer Spending: An Engine for U.S. Job Growth, Monthly Labor

Review 12 (Nov. 2002), https://goo.gl/iyTkdR.

11 See Michael Greenstone & Adam Looney, What Immigration Means for U.S. Employment and Wages 1-2, The Hamilton Project (2012), https://goo.gl/bvC7AE; Kenneth Megan, Immigration and the Labor Force, Bipartisan Policy Ctr., Aug. 25, 2015, https://goo.gl/8p3SP8; Michael A. Clemens & Lant Pritchett, Temporary Work Visas: A FourWay Win for the Middle Class, Low-Skill Workers, Border Security, and Migrants 4, Ctr. for Global Dev. Brief, Apr. 2013, https://goo.gl/p9NLuc.

12

Economics A-Z Terms Beginning With L, The Economist, https://goo.gl/BvRwKU.

13 Id.; see also Paul Krugman, Opinion, Lumps of Labor, N.Y. Times, Oct. 7, 2003, https://goo.gl/GyYTG5.

14 Buttonwood, Keep on Trucking, The Economist, Feb. 11, 2012, https://goo.gl/x8vqaL; see also Megan, supra n.10 (“[A] breadth of research indicates that immigration can be complementary to native born employment, as it spurs demand for goods and services”);

5

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 15 of 40
The facts are indisputable. “From 1970 to 2017, the U.S. labor force doubled. Rather than ending up with a 50 percent unemployment rate, U.S. employment doubled.”15 Another study showed that countries with high employment levels of older workers also had high employment levels of young workers; in other words, high employment levels in one group benefited the other group, rather than depriving the other of employment opportunities.16 And yet other studies have shown that increased immigration levels in the U.S. in the past have had largely positive impacts on the employment levels and income of U.S.-born workers.17
These findings hold true today. The unemployment rate has been cut almost in half since 2012, when DACA was created.18 The number of total job openings has increased.19 And Dreamers are spending money and starting businesses—which help grow the economy and create more jobs.
2. Dreamers fill critical labor shortages. The jobs being filled by Dreamers post-DACA are largely jobs for which there is a shortage of qualified workers—not the jobs that are or could be filled by U.S.-born workers. In a recent survey of U.S. employers, 46 percent of respondents reported difficulty filling jobs— particularly in skilled labor positions, such as teachers, accounting and finance staff, nurses, and
Giovanni Peri, The Effect of Immigrants on U.S. Employment and Productivity, Fed. Reserve Bank of San Francisco Economic Letter, Aug. 30, 2010, https://goo.gl/jK17fc. 15 David Bier, Five Myths About DACA, Cato Inst., Sept. 7, 2017, https://goo.gl/y1e8gb. 16 Buttonwood, supra n.14. 17 See Jacqueline Varas, How Immigration Helps U.S. Workers and the Economy, American Action Forum, Mar. 20, 2017, https://goo.gl/ovHQEh. 18 See Nat’l Conference of State Legislatures, National Employment Monthly Update, https://goo.gl/wZBJh8 (last accessed Oct. 31, 2017). 19 U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey, https://goo.gl/g4n9Ag (last accessed Oct. 31, 2017).
6

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 16 of 40

engineers.20 Almost a quarter of employers reported a lack of available applicants; another 34 percent cited a shortage of applicants with necessary skills.21 In 2012, the President’s Council of Advisors on Science and Technology warned that within ten years, the U.S. could face a shortfall of nearly one million professionals in the science, technology, engineering, and mathematics (STEM) fields.22 Even putting aside the skills mismatch, it is unlikely that there are enough available workers to fill the openings: The U.S. unemployment rate is currently quite low, and the number of job openings is high.23
Dreamers help fill this gap. They all have a high school degree or equivalent—and a large percentage of Dreamers are pursuing or have received college or post-college degrees and therefore qualify for highly-skilled jobs.24 In 2016, almost a quarter of Dreamers were employed in the educational or health services industry.25 Many others work in technology, science, and finance,26 and more still are majoring in STEM fields.27 Amici’s experiences confirm this: For

20 See ManpowerGroup, 2016/2017 Talent Shortage Survey: The United States Results (“ManpowerGroup 2016/2017”), https://goo.gl/rJTKs6; see also Rachel Unruh & Amanda Bergson-Shilcock, Nat’l Skills Coalition, Missing in Action 3-4 (2015), https://goo.gl/gokfJW (“In 2012, middle-skill jobs accounted for 54 percent of the U.S. labor market, but only 44 percent of the country’s workers were trained to the middle-skill level.”).

21 ManpowerGroup 2016/2017, supra n.20. 22 President’s Council of Advisors on Science and Technology, Report to the President: Engage to Excel: Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering, and Mathematics 1 (Feb. 2012), https://goo.gl/v2YRVD.

23 See U.S. Dep’t of Labor, Bureau of Labor Statistics, Economic News Release Table A-14 (Oct. 6, 2017), https://goo.gl/o8t39g; U.S. Dep’t of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey Highlights August 2017 charts 1 & 2 (Oct. 11, 2017), https://goo.gl/H28XkL. 24 Wong 2017 Results, supra n.3, at 7-8.

25 Ctr. for Am. Progress, Results of Tom K. Wong, United We Dream, National Immigration

Law Center, and Center for American Progress National Survey 4 (2016), https://goo.gl/pe2i17.

26

Id.

27 The UndocuScholars Project, In the Shadows of the Ivory Tower: Undocumented

Undergraduates and the Liminal State of Immigration Reform 8 (2015), https://goo.gl/sEpx1K.

7

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 17 of 40
example, IBM has identified at least 31 Dreamers within the company who work in areas such as software development and client support.28 One IBM Dreamer provided critical remote technical support to ensure continuity of IBM’s Cloud services when Hurricane Harvey flooded Houston. Lyft employs at least one Dreamer as a software engineer, who serves as one of the tech leads of the team driving critical data projects.
Even Dreamers with lesser-skilled jobs are filling positions for which there is an insufficient labor supply. “Among less-educated workers, those born in the United States tend to have jobs in manufacturing or mining, while immigrants tend to have jobs in personal services and agriculture.”29 The latter industries in particular “face[] a critical shortage of workers every year, as citizens are largely unwilling to engage in these physically demanding activities”30— even when companies increase wages the maximum amount financially feasible.31
In sum, Dreamers are filling jobs that otherwise would remain vacant and are increasing demand for goods and services, which helps to grow the entire economy.
28 See Tony Romm, IBM CEO Ginni Rometty Is in D.C. Urging Congress to Save DACA, Recode.net, Sept. 19, 2017, https://goo.gl/NQeJUc; My American Dream, Minus the Paperwork, THINKPolicy Blog, Oct. 3, 2017, https://goo.gl/876JDm; I Felt Like a Normal American Kid . . . Then Everything Changed, THINKPolicy Blog, Oct. 9, 2017, https://goo.gl/oV9P7h. 29 Peri, supra n.14. 30 Am. Farm Bureau Federation, Agricultural Labor – Immigration Reform (Oct. 2016), https://goo.gl/WUAz3e; see also Clemens & Pritchett, supra n.11, at 3, (predicting that increase in low-skill jobs in the care industry will be more than the total increase in the 25-54 labor force). 31 See, e.g., Natalie Kitroeff & Geoffrey Mohan, Wages Rise on California Farms. Americans Still Don’t Want the Job, Los Angeles Times, Mar. 17, 2017, https://goo.gl/r1cH9Z; Octavio Blanco, The Worker Shortage Facing America’s Farmers, CNN Money, Sept. 29, 2016, https://goo.gl/ZF2Tdx.
8

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 18 of 40
C. Rescinding DACA Will Inflict Enormous Harm On Individuals, Companies, And The Economy.
All of the above benefits—and more—will be lost if DACA’s rescission is permitted to
stand. Over the next decade, our country’s GDP will lose $460.3 billion; and Social Security and Medicare tax receipts will drop $24.6 billion.32
This economic contraction results directly from Dreamers’ loss of work authorization.
The approximately 700,000 employed Dreamers would all lose their jobs over the next two years—an average of 1,400 people losing jobs every single business day.33 In addition to the
obvious harm to Dreamers themselves, the loss of so many workers will have severe
repercussions for U.S. companies and workers.
The impending March 2018 deadline—and threat of job loss and being forced into a life
in the shadows, unable to participate in society, and facing forced removal from the only country
they have ever known—is already impacting Dreamers and, by extension, the companies for
which they work. The fear for the future that is now a daily part of life for Dreamers and their families affects both physical and mental health.34 That, in turn, negatively affects employee productivity and performance, illness and absenteeism, accidents, and turnover.35
32 See Nicole Prchal Svajlenka et al., A New Threat to DACA Could Cost States Billions of Dollars, Ctr. for Am. Progress, July 21, 2017, https://goo.gl/7udtFu; Jose Magana-Salgado, Immigrant Legal Resources Center, Money on the Table: The Economic Cost of Ending DACA 4, 6-7 (2016), https://goo.gl/3ZwGVJ; see also Brannon & Albright, supra n.8 (estimating cost of “immediately eliminating the DACA program and deporting its participants” to be $283 billion reduction in economic growth and over $60 billion reduction to tax revenues over 10 years). 33 Ctr. for Am. Progress & FWD.us, Study: The Impact of Deferred Action for Childhood Arrivals (DACA) Program 3 (2017), https://goo.gl/P3DgPz. 34 See Tiziana Rinaldi & Angilee Shah, Immigration Limbo Is a ‘Tug of Emotions.’ It’s Also a Mental Health Issue, PRI’s The World, Aug. 22, 2017, https://goo.gl/WLXMZ4; Sarah Elizabeth Richards, How Fear of Deportation Puts Stress on Families, The Atlantic, Mar. 22, 2017, https://goo.gl/qDgeRf. 35 See World Health Org. & Int’l Labour Org., Mental Health And Work: Impact, Issues and Good Practices 1 (2000), https://goo.gl/ecH1Ut.
9

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 19 of 40
Once Dreamers’ work authorizations begin expiring in March 2018, companies will face an estimated $6.3 billion in costs to replace Dreamers—if they can find new employees to fill the empty positions.36 Companies will forfeit the money they invested in training Dreamers, and will incur costs recruiting and training new employees, who will be less experienced and therefore less productive.37 These costs are particularly burdensome for small businesses.
The numbers are relevant, but numbers alone do not come close to capturing Dreamers’ contributions and the tremendous harm that will result from their loss. People are the heart of every business; and every company’s goal is to create teams that work seamlessly together— teams in which colleagues support each other both within and outside the workplace. Ripping Dreamers out of their jobs hurts not only Dreamers, but other employees who lose friends and colleagues, and companies that lose trusted members of their teams.
History shows that forcing Dreamers out of the workforce and into the shadows will also reduce job growth and harm the U.S. economy. After Arizona passed the Legal Arizona Workers Act in 2007, which targeted the use of unauthorized workers, its population of undocumented workers dropped by 40 percent. Economic growth fell, reducing job opportunities: The state’s total employment was 2.5 percent less than what it would have been without the laws, and its GDP was reduced by an average of 2 percent a year between 2008 and 2015.38
36 See David Bier, Ending DACA Will Impose Billions in Employer Compliance Costs, Cato Institute, Sept. 1, 2017, https://goo.gl/1FMidk; see also Magana-Salgado, supra n.32, at 4, (estimating turnover costs due to DACA termination to be $3.4 billion). 37 Heather Boushey & Sarah Jane Glynn, There Are Significant Business Costs to Replacing Employees, Ctr. for Am. Progress, Nov. 16, 2012, https://goo.gl/ZSmRLq. 38 See Bob Davis, The Thorny Economics of Illegal Immigration, Wall St. J., Feb. 9, 2010, https://goo.gl/j4dd7J; see also Sarah Bohn et al., Do E-Verify Mandates Improve Labor Market Outcomes of Low-Skilled Native and Legal Immigrant Workers? 17-18, 21, 24-25 (2014),
10

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 20 of 40
Similarly, in 1964, the U.S. expelled Mexican braceros, who were previously permitted to work temporarily in the U.S., mostly on farms. A recent study revealed that excluding the Mexican braceros “did not affect the wages or employment of U.S. farmworkers.”39 Instead, farms responded by eliminating the jobs—often by moving production abroad or going out of business.40
Removing Dreamers from the workforce is likely to have the very same negative effect on U.S. employment levels as companies are unable to fill critical jobs. That effect will be exacerbated as Dreamers are forced to shutter businesses that employ other workers and other companies lose the income that has helped drive demand and production of goods and services provided by U.S.-born workers.41
And the harm will be much more far-reaching: Just as DACA sent a powerful message of inclusion, its rescission tells the immigrants who have been integral to the growth and development of our society and economy for decades that they are no longer welcome here. As a result, DACA’s rescission will reduce the future ability of U.S. companies to attract individuals from around the world to support America’s continued economic growth and prosperity.

https://goo.gl/7UihSE (finding that employment rates of U.S.-born men—both Hispanic and non-

Hispanic white men—dropped post-LAWA).

39 Michael A. Clemens, Does Kicking Out Mexicans Create Jobs?, Politico Magazine, Feb.

15, 2017, https://goo.gl/XwLj1x.

40

Id.

41 Cf. Ben Gitis & Jacqueline Varas, The Labor and Output Declines From Removing All

Undocumented Immigrants, Am. Action Forum, May 5, 2016, https://goo.gl/UAt3dJ (concluding

that removing undocumented immigrants from the workforce would cause private sector

employment to decline by 4 to 6.8 million workers, would reduce real private sector output by

$381.5 to $623.2 billion, and would have further negative economic impacts through the loss of

consumption, investments, and entrepreneurship).

11

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 21 of 40
II. THE DECISION TO RESCIND DACA IS INVALID, BECAUSE IT IS ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW. DHS’s decision to rescind DACA rested solely on its conclusion that the DACA program
is unlawful. That legal conclusion is wrong, and DHS’s rescission of DACA based on it is
therefore arbitrary and capricious in violation of the APA.
A. Rescission Of DACA Is A “Final Agency Action” Subject To Review Under The APA.
The rescission of DACA is unquestionably a final agency action—it is “an agency
statement of general or particular applicability and future effect designed to implement, interpret or prescribe . . . [DHS’s] policy.” 5 U.S.C. § 551(4).42 As such, it is subject to judicial review
under the APA unless it falls within one of two narrow exceptions: “(1) statutes preclude judicial review; or (2) [the] agency action is committed to agency discretion by law.” Id. § 701(a); accord Heckler v. Chaney, 470 U.S. 821, 828-29 (1985). Neither exception applies.
First, there is no statute precluding judicial review of the rescission of DACA. The government has previously argued that 8 U.S.C. § 1252(g)43 barred review of its creation of a related program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). See Br. for Pet’rs at 41, United States v. Texas, No. 15-674 (2017). But the Supreme Court explained in Reno v. American Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (“AAADC”), that 8 U.S.C. § 1252(g) “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or
42 See, e.g., F.C.C. v. Fox Television Stations, 556 U.S. 502, 514-15 (2009) (applying APA to rescission of prior action); Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 247-48 (3d Cir. 2011) (U.S. Forest Service’s change in policy to impose a moratorium on drilling was a “final agency action”). 43 Section 1252(g) provides that, subject to certain exceptions, “no court shall have 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 commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”
12

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 22 of 40
execute removal orders.’” Id. at 479 (emphases in original). Plaintiffs in these cases challenge no such action, and Section 1252(g) therefore does not apply.44
Second, the rescission of DACA does not fall within the “very narrow” exception for actions committed to agency discretion by law. Chaney, 470 U.S. at 830 (internal quotation marks omitted). The rescission decision did not rest on fact-specific exercise of enforcement discretion, as in Heckler v. Chaney. Rather, revocation is predicated on the legal conclusion that DACA “was effectuated . . . without proper statutory authority” and therefore “was an unconstitutional exercise of authority by the Executive Branch.” Memorandum from Elaine C. Duke, Acting Secretary, Dep’t of Homeland Security, on Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017).
Courts have repeatedly held that agency action resting solely on such a legal determination is reviewable. Such actions do not implicate the “complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” nor do they present a situation where there is “no law to apply.” Chaney, 470 U.S. at 831. There accordingly is no basis for disregarding the “strong” and “well-settled presumption” favoring review of executive
44 See, e.g., INS v. St. Cyr, 533 U.S. 289, 293 & 311 n.34 (2001) (holding that § 1252(g) did not apply to challenge to “Attorney General[’s] interpret[ion]” of statutes); Texas v. United States, 809 F.3d 134, 165 (5th Cir. 2015) (§ 1252(g) did not apply to challenge to DAPA); Barahona-Gomez v. Reno, 236 F.3d 1115, 1118-19 (9th Cir. 2001) (§ 1252(g) did not apply and bar judicial review of a challenge to directives issued by the BIA Chairman and the Chief Immigration Judge that were based on legal interpretations); Bowrin v. INS, 194 F.3d 483, 488 (4th Cir. 1999) (“We read the Court’s AADC II ruling . . . to hold that § 1252(g) does not apply to agency interpretations of statutes as these decisions do not fall into any of the three categories enumerated in § 1252(g).”).
13

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 23 of 40
determinations like the rescission of DACA. Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1651
(2015); Kucana v. Holder, 558 U.S. 233, 251 (2010).45
B. Rescission Of DACA Is Arbitrary And Capricious.
Because DACA’s rescission rests solely on a legal question—the interpretation of the
relevant statutes—DHS’s decision stands or falls on the correctness of that legal determination.
If DHS got the law wrong, its action is not supported by a valid justification and therefore is
arbitrary and capricious in violation of the APA. See 5 U.S.C. § 706(2)(A); Safe Air For
Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007) (“Because [EPA’s flawed legal
interpretation] is fundamental to EPA’s determination that [the State] did not contravene [the
Clean Air Act], EPA’s outcome on those statutory interpretation questions is ‘arbitrary,
capricious, or otherwise not in accordance with law’ for the purposes of our review.”). DHS’s
legal interpretation was plainly erroneous.
45 See, e.g., Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (“[I]nterpretation [of] the substantive requirements of the law . . . is not the type of discretionary judgment concerning the allocation of enforcement resources that [Chaney] shields from review.”); Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (holding reviewable EPA’s nonenforcement decision where plaintiff challenged agency’s “statutory interpretation embodied in [the regulation], and does not contest a particular enforcement decision”); Montana Air Chapter No. 29 v. Fed. Labor Relations Auth., 898 F.2d 753 (9th Cir. 1990) (holding Chaney does not apply to decisions “based on a belief that the agency lacks jurisdiction” and “agency statutory interpretations made in the course of nonenforcement decisions”); see also Chaney, 470 U.S. at 833 n.4 (suggesting exception would not apply if case involved “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction”); Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996) (interpreting Chaney as applying “to individual, case-by-case determinations of when to enforce existing regulations rather than permanent policies or standards”); cf. Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (holding that “where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the Agency for reconsideration in view of the correct law is appropriate”); Bonilla v. Lynch, 840 F.3d 575, 587 (9th Cir. 2016) (holding reviewable BIA’s decision not to exercise its sua sponte authority to reopen petitioner’s order of removal where BIA did not deny motion “as an exercise of discretion,” but rather based on the “conclu[sion] that it lacked the authority to reopen”); Pllumi v. Att’y General, 642 F.3d 155, 162-63 (3d Cir. 2011) (similar).
14

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 24 of 40
DACA confers two related benefits: deferral of government action to remove the individual from the United States (known as “deferred action”) and eligibility for work authorization. Both elements have long been recognized in U.S. immigration law.
First, granting “deferred action” is a long-established practice engaged in by Administrations of both parties and expressly recognized by the Supreme Court. See AAADC, 525 U.S. at 483-85 (describing “regular practice” of “deferred action”).46 The decision to defer removal proceedings is an exercise of prosecutorial discretion that falls squarely within the Executive Branch’s constitutional authority to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
In the immigration context, moreover, Congress has codified that discretion. Until 1940, “the deportation statute unyieldingly demanded that an alien illegally in the United States be deported.” Johns v. DOJ, 653 F.2d 884, 890 n.12 (5th Cir. 1981). Now, however, the immigration laws specifically charge the secretary of Homeland Security with “establishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and to carry out the “administration and enforcement of th[e INA] and all other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a); see also H.R. Rep. No. 11-157, at 8 (2009) (“[R]ather than simply rounding up as many illegal immigrants as possible, which is sometimes achieved by targeting the easiest and least threatening among the undocumented population, DHS must ensure that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”).
46 See also Arizona v. United States, 567 U.S. 387, 396 (2012) (“A principal feature of the removal system is the broad discretion exercised by immigration officials.”); CHARLES GORDON ET AL., 6-72 IMMIGRATION LAW AND PROC. § 72.03 (Matthew Bender, rev. ed.); Mem. Op. for the Sec’y of Homeland Security and the Counsel to the President, 38 Op. Off. Legal Counsel 1, 13-18 (Nov. 19, 2014), https://www.justice.gov/file/179206/download.
15

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 25 of 40
Congress has on several occasions expanded deferred action to certain categories of individuals.47 And it enacted 8 U.S.C. § 1252(g), which the Supreme Court explained was intended to preserve the INS’s exercise of discretion in granting deferred action while “giv[ing] some measure of protection to ‘no deferred action’ decisions.” AAADC, 525 U.S. at 484-85.
Second, conferring eligibility for work authorization has a similarly lengthy pedigree. A regulation promulgated in the 1980s provides that individuals who receive deferred action are eligible to apply for work authorization. See 8 C.F.R. § 274a.12(c)(14) (providing eligibility to apply for work authorization to “[a]n alien who has been granted deferred action”). Congress has legislated on the basis of this regulation, enacting a law prohibiting employers from hiring unauthorized aliens, but expressly excluding from that category individuals “authorized to be so employed by . . . the Attorney General.” 8 U.S.C. § 1324a(h)(3); cf. 49 U.S.C. § 30301 note (providing that certain states may issue driver’s licenses to aliens with “approved deferred action status”).
In concluding that DACA was an unconstitutional exercise of authority, DHS claimed that DACA suffered from the defect identified by the Fifth Circuit in a case challenging a separate deferred action program, DAPA. But the plaintiffs in that earlier case did not challenge the authority of the Executive Branch to exercise its discretion to defer removal with respect to certain undocumented immigrants, even on a categorical basis. Instead, the dispute centered on a statement in the memorandum implementing DAPA that “for a specified period of time, an
47 See, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain aliens who selfpetition for relief under the Violence Against Women Act of 1994, Pub. L. No. 103-322, Tit. V, 108 Stat. 1092, are eligible to request “deferred action”); USA PATRIOT Act, Pub. L. No. 10756, § 423(b), 115 Stat. 272, 361 (2001) (providing that certain family members of lawful permanent residents killed on September 11, 2001, or of citizens killed in combat, are “eligible for deferred action”); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108136, § 1703(c)-(d), 117 Stat. 1392, 1694-1695 (2003) (same).
16

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 26 of 40 individual [covered by DAPA] is permitted to be lawfully present in the United States.” See Texas v. United States, 809 F.3d 134, 147-49, 166, 179-84 (5th Cir. 2015). The claim was that DHS lacked the authority to confer “lawful[] presen[ce]” and the Fifth Circuit agreed. The memorandum establishing DACA contains no such language, and the Fifth Circuit’s rationale is therefore inapplicable.
In short, ample constitutional and statutory authority exists for DACA. DHS’s rescission of DACA based on a contrary legal conclusion is accordingly unfounded and should be vacated.
CONCLUSION For the foregoing reasons, amici urge the Court to grant Plaintiffs’ motion for summary judgment and/or preliminary injunction.
17

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 27 of 40

Of Counsel:
Seth P. Waxman Patrick J. Carome Ari Holtzblatt WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 seth.waxman@wilmerhale.com patrick.carome@wilmerhale.com ari.holtzblatt@wilmerhale.com
Janine M. Lopez (pro hac pending) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 janine.lopez@wilmerhale.com
Counsel for Amici Curiae Airbnb, Inc., Square, Inc., Twitter, Inc., and Yelp Inc.

/s/ Andrew J. Pincus
Andrew J. Pincus (D.C. Bar #370762) MAYER BROWN LLP 1999 K Street NW Washington, DC 20006 (202) 263-3000 apincus@mayerbrown.com
Lauren R. Goldman (pro hac pending) Karen W. Lin (pro hac pending) Rory K. Schneider (pro hac pending) MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020-1001 (212) 506-2500 lrgoldman @mayerbrown.com klin@mayerbrown.com rschneider@mayerbrown.com
Counsel for Amici Curiae

18

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 28 of 40
APPENDIX A LIST OF AMICI CURIAE 1. 6Sense Insights, Inc. 2. A Medium Corporation 3. Adobe Systems Incorporated 4. AdRoll, Inc. 5. Affirm, Inc. 6. Airbnb, Inc. 7. Alation, Inc. 8. Ampush LLC 9. Andela, Inc. 10. Appboy, Inc. 11. Asana, Inc. 12. Atlassian Corp. Plc 13. Azavea Inc. 14. Ben & Jerry’s Homemade, Inc. 15. Bigtooth Ventures 16. Box, Inc. 17. Brightcove Inc. 18. BSA | The Software Alliance 19. CareZone Inc. 20. CartoDB Inc. 21. Casper Sleep Inc.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 29 of 40
22. Castlight Health, Inc. 23. Cavium, Inc. 24. Chegg, Inc. 25. Chobani, LLC 26. Civis Analytics, Inc. 27. Citrix Systems, Inc. 28. ClassPass Inc. 29. Cloudera, Inc. 30. Cloudflare Inc. 31. Codecademy 32. Color Genomics, Inc. 33. The Copia Institute 34. Credit Karma, Inc. 35. DocuSign, Inc. 36. DoorDash, Inc. 37. Dropbox, Inc. 38. eBay Inc. 39. Edmodo, Inc. 40. Electronic Arts Inc. 41. EquityZen Inc. 42. Facebook, Inc. 43. General Assembly Space, Inc. 44. Glassdoor, Inc.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 30 of 40
45. Google Inc. 46. Gusto 47. Greenhouse Software, Inc. 48. Hewlett Packard Enterprise 49. Homer Logistics, Inc. 50. IBM Corporation 51. IDEO LP 52. Imgur Inc. 53. Indiegogo, Inc. 54. Kargo 55. Knotel 56. Lam Research Corporation 57. Levi Strauss & Co. 58. Linden Research, Inc. 59. Lithium Technologies, LLC 60. Lyft, Inc. 61. Lytro, Inc. 62. Mapbox 63. Marin Software Incorporated 64. Medidata Solutions, Inc. 65. Molecule Software, Inc. 66. MongoDB, Inc. 67. Motivate International Inc.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 31 of 40
68. Mozilla 69. NETGEAR, Inc. 70. NewsCred, Inc. 71. NIO U.S. 72. Oath Inc. 73. Patreon, Inc. 74. PayPal Holdings, Inc. 75. Pinterest, Inc. 76. Pixability, Inc. 77. Postmates Inc. 78. Quantcast Corp. 79. RealNetworks, Inc. 80. Reddit, Inc. 81. Redfin Corporation 82. salesforce.com inc. 83. Scopely, Inc. 84. Shutterstock, Inc. 85. Singularity University 86. Sizmek, Inc. 87. SpaceX 88. Spokeo, Inc. 89. Spotify USA Inc. 90. Square, Inc.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 32 of 40
91. Squarespace, Inc. 92. Strava, Inc. 93. SurveyMonkey Inc. 94. Tesla, Inc. 95. The Software and Information Industry Association. 96. Thumbtack 97. TripAdvisor, Inc. 98. Tumblr, Inc. 99. Turo Inc. 100. Twilio Inc. 101. Twitter Inc. 102. Uber Technologies, Inc. 103. Udacity Inc. 104. Univision Communications, Inc. 105. Upwork Inc. 106. Verizon Communications Inc. 107. Via 108. Warby Parker 109. Work & Co. 110. Workday, Inc. 111. Yelp Inc. 112. Zendesk, Inc.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 33 of 40
APPENDIX B
CORPORATE DISCLOSURES FOR AMICI CURIAE
1. 6Sense Insights, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
2. A Medium Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
3. Adobe Systems Incorporated has no parent corporation and no publicly held corporation owns 10% or more of its stock.
4. AdRoll, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
5. Affirm, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
6. Airbnb, Inc. has no parent corporation and no publicly held corporation owns 10% or more of Airbnb’s stock.
7. Alation, Inc. has no parent company and no publicly held company holds 10% or more of its stock.
8. Ampush LLC has no parent corporation and no publicly held corporation owns 10% or more of its stock.
9. Andela, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
10. Appboy, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
11. Asana, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
12. Atlassian Corp. Plc has no parent corporation and no publicly held corporation owns 10% or more of its stock.
13. Azavea Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
14. Ben & Jerry’s Homemade, Inc. is a wholly-owned autonomous subsidiary of Unilever, which is a publicly traded company.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 34 of 40
15. Bigtooth Ventures has no parent corporation and no publicly held corporation owns 10% or more of its stock.
16. Box, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
17. Brightcove Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
18. BSA | The Software Alliance has no parent corporation and no publicly held corporation owns 10% or more of its stock.
19. CareZone Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
20. CartoDB Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
21. Casper Sleep Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
22. Castlight Health, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
23. Cavium, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
24. Chegg, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
25. Chobani Global Holdings, LLC is the sole member of Chobani, LLC and no publicly held corporation owns 10% or more of the membership interest in either entity.
26. Civis Analytics, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
27. Citrix Systems, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
28. ClassPass Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 35 of 40
29. Cloudera, Inc. has no parent corporation and the following publicly held corporation own 10% or more of its stock: Intel Corporation.
30. Cloudflare Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
31. Color Genomics, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
32. Credit Karma, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
33. DocuSign, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
34. DoorDash, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
35. Dropbox, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
36. eBay Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
37. Edmodo, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
38. Electronic Arts Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
39. EquityZen Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
40. Facebook, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
41. General Assembly Space, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
42. Glassdoor, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
43. Google Inc. is a wholly owned subsidiary of Alphabet Inc. Alphabet Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 36 of 40
44. Greenhouse Software, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
45. Hewlett Packard Enterprise has no parent corporation and no publicly held corporation owns 10% or more of its stock.
46. Homer Logistics, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
47. International Business Machines Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
48. IDEO LP has no parent corporation and the following publicly held corporation owns 10% or more of its stock: Steelcase, Inc.
49. Imgur Inc. is a privately-held Delaware corporation. No public corporation owns 10% or more of its stock.
50. Indiegogo, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
51. JAND, Inc. d/b/a Warby Parker has no parent corporation and no publicly held corporation owns 10% or more of its stock.
52. Kargo has no parent corporation and no publicly held corporation owns 10% or more of its stock.
53. Knotel has no parent corporation and no publicly held corporation owns 10% or more of its stock.
54. Lam Research Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
55. Levi Strauss & Co. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
56. Linden Research, Inc. d/b/a Linden Lab has no parent corporation and no publicly held corporation owns 10% or more of its stock.
57. Lithium Technologies, LLC’s parent corporation is Zeus JointCo Holdco LLC (which is majority owned by Vista Equity Partners) and no publicly held corporation owns 10% or more of its stock

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 37 of 40
58. Lyft, Inc. has no parent corporation and the following publicly held corporations own 10% or more of its stock: Rakuten, Inc., a publicly held corporation traded on the Tokyo Stock Exchange, and General Motors Company, a publicly held corporation traded on the New York Stock Exchange, each own more than ten percent of Lyft’s outstanding stock, in each case through a subsidiary.
59. Lytro, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
60. Mapbox, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
61. Marin Software Incorporated has no parent corporation and no publicly held corporation owns 10% or more of its stock.
62. Medidata Solutions, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
63. Molecule Software, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
64. MongoDB, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
65. Motivate International Inc. parent corporation is Bikeshare Holdings, LLC and no publicly held corporation owns 10% or more of its stock.
66. Mozilla Corporation’s parent corporation is Mozilla Foundation and no publicly held corporation owns 10% or more of its stock.
67. NETGEAR, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
68. NewsCred, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
69. NIO U.S.A., Inc. is a wholly-owned subsidiary of NIO Limited, a Hong Kong company, which is a wholly-owned subsidiary of NIO Inc., a Cayman company.
70. Oath Inc.’s parent corporation is Verizon Business Network Services Inc. No publicly held corporation owns 10% or more of its stock.
71. Patreon, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 38 of 40
72. PayPal Holdings, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
73. Pinterest, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
74. Pixability, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
75. Postmates Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
76. Quantcast Corp. has no parent company and no publicly held corporation owns 10% or more of its stock.
77. RealNetworks, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
78. Reddit, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
79. Redfin Corporation has no parent corporation and no publicly held corporation owns 10% or more of its stock.
80. Ryzac, Inc. d/b/a Codecademy has no parent corporation and Naspers, Ltd., a publicly held corporation, indirectly owns 10% or more of its stock.
81. salesforce.com inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
82. Scopely, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
83. Shutterstock, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
84. Singularity Education Group d/b/a Singularity University has no parent corporation and no publicly held corporation owns 10% or more of its stock.
85. Sizmek, Inc. is owned by Vector Capital. No public company owns 10% or more of its stock.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 39 of 40
86. The Software and Information Industry Association has no parent corporation and no publicly held company owns 10% or more of its stock.
87. Space Exploration Technologies Corp. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
88. Spokeo, Inc. has no parent corporation and there are no publicly-held corporations that own 10% or more of Spokeo, Inc.’s stock.
89. Spotify USA Inc. is a wholly-owned subsidiary of Spotify AB, a company organized under the laws of Sweden. Spotify AB is a wholly-owned subsidiary of Spotify Technology S.A., a company organized under the laws of the Grand Duchy of Luxembourg. Spotify Technology S.A. does not have a parent corporation and no publicly held corporation owns 10% or more of its stock.
90. Square, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
91. Squarespace, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
92. Strava, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
93. SurveyMonkey Inc.’s parent corporation is SVMK Inc. and no publicly held corporation owns 10% or more of its stock.
94. Tesla, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
95. The Copia Institute has no parent corporation and no publicly held corporation owns 10% or more of its stock.
96. Thumbtack, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
97. TripAdvisor, Inc. has no parent corporation and the following publicly held corporation owns 10% or more of its stock: Liberty TripAdvisor Holdings, Inc.
98. Tumblr, Inc. parent corporation is Yahoo! Inc., and the following publicly held corporation owns 10% or more of its stock: Yahoo! Inc.

Case 1:17-cv-02325-CRC Document 31 Filed 12/19/17 Page 40 of 40
99. Turo Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
100. Twilio Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
101. Twitter Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
102. Uber Technologies, Inc. has no parent entity and no publicly held corporation holds 10% or more of its stock.
103. Udacity Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
104. Univision Communications, Inc. has no parent corporation and no publicly held corporation own 10% or more of its stock.
105. Upwork Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
106. Verizon Communications Inc. is a publicly held corporation and no publicly held corporation owns 10% or more of its stock.
107. Via Transportation, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
108. WorkAndCo International Inc d/b/a Work & Co. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
109. Workday, Inc. has no parent corporation and no publicly held corporation holds 10% or more of its stock.
110. Yelp Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
111. Zendesk, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
112. ZenPayroll, Inc. d/b/a Gusto has no parent corporation and no publicly held corporation owns 10% or more of its stock.

 
  Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 1 of 27 

,17+(81,7('67$7(6',675,&7&2857



)257+(',675,&72)&2/80%,$





BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB

7+(75867((62)35,1&(721



81,9(56,7<







0,&5262)7&25325$7,21



DQG







0$5,$'(/$&58=3(5$/(66$1&+(=







3ODLQWLIIV







Y

 &DVH1RFY&5&





81,7('67$7(62)$0(5,&$







86'(3$570(172)+20(/$1'



6(&85,7<







DQG







(/$,1('8.(in her official capacity as 

Acting Secretary of the Department of



Homeland Security,









'HIHQGDQWV



BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB



%5,()2)/(*$/6(59,&(625*$1,=$7,216$6AMICI CURIAE ,1 68332572)3/$,17,))6¶027,21)256800$5<-8'*0(17$1'25

35(/,0,1$5<,1-81&7,21








-RVKXD06LHJHO'&%DU1R &22/(<//3 3HQQV\OYDQLD$YHQXH1:6XLWH :DVKLQJWRQ'& 7HOHSKRQH  )DFVLPLOH   

0DXUHHQ3$OJHU&DO%DU1R 0RQLTXH56KHUPDQ&DO%DU1R .DUD&:LOVRQ&DO%DU1R -RDQ5/L&DO%DU1R &22/(<//3 +DQRYHU6WUHHW 3DOR$OWR&$ 7HOHSKRQH  )DFVLPLOH  





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 2 of 27
7$%/(2)&217(176  3DJH
 ,17(5(672)AMICI CURIAE
6800$5<2)$5*80(17
$5*80(17
, 7+(5(6&,66,212)'$&$&$86(66,*1,),&$17+$5072AMICI’6 '$&$&/,(17602672):+20+$9(129,$%/(237,2172 2%7$,1/(*$/,00,*5$7,2167$786$1'$92,''(3257$7,21
$ 0RVW'$&$5HFLSLHQWV$UH1RW(OLJLEOHIRU+XPDQLWDULDQRU)DPLO\ %DVHG)RUPVRI,PPLJUDWLRQ5HOLHI
% '$&$5HFLSLHQWV$UH1RW(OLJLEOHIRU5HOLHI%DVHGRQ7KHLU/HQJWKRI 7LPHLQWKH861R0DWWHU+RZ:HOO6SHQW
& :LWKRXW'$&$0RVW'$&$5HFLSLHQWV:LOO%HFRPH8QGRFXPHQWHG DQG6XIIHU6LJQLILFDQW5HODWHG+DUPV
,, 7+(5(6&,66,212)'$&$&$86(6)($5,17+(&20081,7< $%287$&&(66,1*38%/,&6(59,&(6:+,&++$5067+(38%/,& ,17(5(67
$ '$&$5HFLSLHQWVDQG2WKHU,PPLJUDQWV$UH$IUDLGWR$FFHVV+HDOWKDQG 2WKHU6RFLDO6HUYLFHVDQGWR$WWHQG6FKRRO2XWRI)HDURI 'HSRUWDWLRQ
% :KHQ,PPLJUDQWV$UH$IUDLGWR$FFHVV6HUYLFHV3XEOLF+HDOWK6DIHW\ DQG&RPPXQLW\(FRQRPLF,QWHUHVWV$UH1HJDWLYHO\,PSDFWHG
&21&/86,21



L





 Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 3 of 27
7$%/(2)$87+25,7,(6  3DJHV
&DVHV Ayeni v. Holder
)GVW&LU Gomez-Perez v. Holder
)GWK&LU Hernandez v. Gonzalez
)GG&LU Tejado v. Holder
)GWK&LU 6WDWXWHVDQG5HJXODWLRQV 86&D &)5 ,1$ ,1$ ,1$ ,1$ ,1$$ ,1$ ,1$DUHSHDOHG ,1$ /HJLVODWLYH0DWHULDOV +5WK&RQJ +5WK&RQJ +5WK&RQJ +5WK&RQJ



LL





 Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 4 of 27

+5WK&RQJ
+5WK&RQJ
6WK&RQJ
6WK&RQJ
6WK&RQJ
6WK&RQJ
6WK&RQJ
6WK&RQJ
6WK&RQJ
6WK&RQJ
Report and analysis of immigration and nationality law6HQDWH-XGLFLDU\ 6XEFRPPLWWHH+ROGV+HDULQJRQWKH'5($0$FW1R,QWHUSUHWHU5HOHDVHV -XO\
$GPLQLVWUDWLYH ([HFXWLYH0DWHULDOV
/HWWHUIURP6HFUHWDU\-HK-RKQVRQ86'HS¶WRI+RPHODQG6HFWR+RQRUDEOH-XG\ &KX86+RXVHRI5HS'HF
0HPRUDQGXPIURP$FWLQJ6HFUHWDU\(ODLQH&'XNH0HPRUDQGXPRQ5HVFLVVLRQRI 'HIHUUHG$FWLRQIRU&KLOGKRRG$UULYDOV'$&$6HSWpassim
0HPRUDQGXPIURP6HFUHWDU\-DQHW1DSROLWDQRExercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children-XQH 
6XSSOHPHQWDO1XWULWLRQ$VVLVWDQFH3URJUDP61$38QLWHG6WDWHV'HSDUWPHQWRI $JULFXOWXUH)RRGDQG1XWULWLRQ6HUYLFH-DQ
8QLWHG6WDWHV&LWL]HQVKLSDQG,PPLJUDWLRQ6HUYLFHV'$&$)UHTXHQWO\$VNHG 4XHVWLRQV
9LVD%XOOHWLQIRU2FWREHU86'HS¶WRI6WDWH%XUHDXRI&RQVXODU$IIDLUV 6HSW
:RPHQ,QIDQWVDQG&KLOGUHQ:,&8QLWHG6WDWHV'HSDUWPHQWRI$JULFXOWXUH )RRGDQG1XWULWLRQ6HUYLFH$XJ




LLL





 Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 5 of 27
2WKHU$XWKRULWLHV
$QQLH/RZUH\Trump’s anti-immigrant policies are scaring families away from the safety net7KH$WODQWLF0DU
$QQD1RUWKDACA helped some immigrants finally get health care. Now they could lose it9R[6HSW
%LOO2QJ+LQJ Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy ,59,1(/5(9
&DLWOLQ'LFNHUVRQFor DACA Recipients, Losing Protection and Work Permits Is Just the Start7KH1HZ<RUN7LPHV6HSW
&DURO\Q-RQHVImmigration crackdown taking heavy toll on California students6DQ -RVH0HUFXU\1HZV2FW
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment8QLWHG1DWLRQV7UHDW\6HULHV'HF
'DYLG%HFHUUDet al.Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S-62& 62&:(/)$5(
'HEUD-5REELQWhen Undocumented Immigrants Don’t Report Crime, We All Suffer :%856HSW
Deferred Action for Childhood Arrivals (DACA): Funding Opportunities for Philanthropy*UDQWPDNHUV&RQFHUQHGZLWK,PPLJUDQWVDQG5HIXJHHV2FW 
-HQQLIHU0HGLQDToo Scared to Report Sexual Abuse. The Fear: Deportation7KH 1HZ<RUN7LPHV$SU
-HVVLFD)HUJHURescinding DACA Could Spur a Public Health Crisis, from Lost Services to Higher Rates of Depression, Substance Abuse1HZVZHHN6HSW 
-RVH0DJDxD6DOJDGR et al., Draining the Trust Funds: Ending DACA and the Consequences to Social Security and Medicare,PPLJUDQW/HJDO5HVRXUFH&HQWHU 2FW
-XOLD&DUULH:RQJFear and uncertainty for Dreamers as DACA ends: “Where am I going to go?7KH*XDUGLDQ6HSW
-XOLDQQH=XEHUHealthcare for the Undocumented:Solving a Public Health Crisis in the U.S.-&217(03+($/7+/ 32/,&<



LY





 Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 6 of 27
/HLV\-$EUHJRLegal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims-Making for First- and 1.5-Generation Immigrants/$:  62&¶<5(9
0DGHOLQH.HQQH\Berwyn grandmother of 10 facing deportation sues DHS over visa delay&KLFDJR6XQ7LPHV6HSW
0DUN.HLHUOHEHUTrump’s immigration crackdown is traumatizing a generation of children7KH*XDUGLDQ$XJ
3ULVFLOOD$OYDUH]Will DACA Parents Be Forced to Leave Their U.S.-Citizen Children Behind?7KH$WODQWLF2FW
5HVXOWVIURP7RP.:RQJ et al. 2017 National DACA Study&(17(5)25 $0(5,&$1352*5(66$XJ
5LFKDUG*RQ]DOHVDACA Recipients Worry What The Government Will Do With Their Private Information1356HSW
6WHSKDQLH.XRUndocumented Immigrants Putting ‘Health On Hold’ Out Of Fear, Anxiety In Uncertain Times+RXVWRQ3XEOLF0HGLD6HSW
6XVDQD0DUWLQH]DQG6KHLOD1HYLOOHHelp for Undocumented Victims of Crime &/($5,1*+286(5(9
7RP.:RQJet al.Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey-2)0,*5$7,21$1'+80$16(&85,7<
9LUJLQLD)D\Back Into the Shadows: Immigrants Retreat From Needed Services as Deportation Fears Loom.4('1HZV-XQH




Y







Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 7 of 27

&(57,),&$7(5(48,5('%</&Y52)7+(/2&$/58/(62)7+(81,7(' 67$7(6',675&7&2857)257+(',675,&72)&2/80%,$

,WKHXQGHUVLJQHGFRXQVHORIUHFRUGIRUamici curiaeFHUWLI\WKDWWRWKHEHVWRIP\

NQRZOHGJHDQGEHOLHIamici DUHQRQSURILWOHJDOVHUYLFHVRUJDQL]DWLRQVDQGWKHUHIRUHDUHQRW

SXEOLFO\KHOGFRUSRUDWLRQVWKDWLVVXHVWRFNAmiciGRQRWKDYHSDUHQWFRPSDQLHVVXEVLGLDULHVRU

DIILOLDWHVZLWKDQ\RXWVWDQGLQJVHFXULWLHVLQWKHKDQGVRIWKHSXEOLF

7KHVHUHSUHVHQWDWLRQVDUHPDGHLQRUGHUWKDWMXGJHVRIWKLV&RXUWPD\GHWHUPLQHWKHQHHG

IRUUHFXVDO

 'DWHG'HFHPEHU 

 &22/(<//3

/s/ Joshua M. Siegel  -RVKXD06LHJHO'&%DU1R &22/(<//3 3HQQV\OYDQLD$YHQXH1:6XLWH :DVKLQJWRQ'& 7HOHSKRQH  )DFVLPLOH 
$WWRUQH\IRUAmici Curiae 





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 8 of 27

,17(5(672)AMICI CURIAE AmiciDUHOHJDOVHUYLFHVRUJDQL]DWLRQVWKDWSURYLGHLPPLJUDWLRQOHJDOVHUYLFHVAmici LQFOXGHWKHIROORZLQJWZHQW\WKUHHRUJDQL]DWLRQV$VLDQ/DZ$OOLDQFH%URRNO\Q'HIHQGHU 6HUYLFHV&DQDO$OOLDQFH&HQWUR/HJDOGHOD5D]D&KLOGUHQ¶V/DZ&HQWHURI0DVVDFKXVHWWV &RPPXQLW\/HJDO6HUYLFHVLQ(DVW3DOR$OWR&/6(3$'RORUHV6WUHHW&RPPXQLW\6HUYLFHV (DVW%D\6DQFWXDU\&RYHQDQW+HDUWODQG$OOLDQFH¶V1DWLRQDO,PPLJUDQW-XVWLFH&HQWHU1,-& +HEUHZ,PPLJUDQW$LG6RFLHW\+,$63HQQV\OYDQLD,PPLJUDQW/HJDO5HVRXUFH&HQWHU ,/5&-XVW1HLJKERUV/HJDO$LG-XVWLFH&HQWHU/HJDO$LG6RFLHW\RI6DQ0DWHR&RXQW\ /HJDO6HUYLFHVIRU&KLOGUHQ/6&-XVWLFH&HQWHURI6RXWKHDVW0DVVDFKXVHWWV0DVVDFKXVHWWV /DZ5HIRUP,QVWLWXWH0/5,1DWLRQDO-XVWLFHIRU2XU1HLJKERUV1HZ<RUN/HJDO$VVLVWDQFH *URXS1RUWKZHVW,PPLJUDQW5LJKWV3URMHFW2QH-XVWLFH5RFN\0RXQWDLQ,PPLJUDQW$GYRFDF\ 1HWZRUNDQG6HUYLFHV,PPLJUDQW5LJKWVDQG(GXFDWLRQ1HWZRUN6,5(10DQ\RIamici¶V FOLHQWVDUH\RXWKZKRZHUHHOLJLEOHIRUWKHUHFHQWO\UHVFLQGHG'HIHUUHG$FWLRQIRU&KLOGKRRG $UULYDOV³'$&$´SURJUDPAmici SURYLGHOHJDOFRXQVHOLQJWRWKHVH\RXWKWRJXLGHWKHP WKURXJKWKHLQWULFDFLHVRIWKHLPPLJUDWLRQV\VWHP$VDUHVXOWRIWKHLULQWHUDFWLRQZLWK XQGRFXPHQWHGLPPLJUDQWVJHQHUDOO\DQG'$&$HOLJLEOHLQGLYLGXDOVLQSDUWLFXODUamici XQGHUVWDQGWKHFRPSOH[OHJDOFKDOOHQJHVQRZIDFLQJ'$&$JUDQWHHVLQOLJKWRIWKHUHVFLVVLRQRI '$&$DQGKDYHREVHUYHGWKHQHJDWLYHHIIHFWVRQWKHLUFOLHQWV7KH\ DUHZHOOSRVLWLRQHGWR

 3XUVXDQWWR/&Y5RamiciDIILUPWKDWQRFRXQVHOIRUDSDUW\DXWKRUHGWKLVEULHILQZKROH RULQSDUWDQGWKDWQRSHUVRQRWKHUWKDQamiciWKHLUPHPEHUVRUWKHLUFRXQVHOPDGHDQ\ PRQHWDU\FRQWULEXWLRQVLQWHQGHGWRIXQGWKHSUHSDUDWLRQRUVXEPLVVLRQRIWKLVEULHI 'HVFULSWLRQVRIHDFKamicusRUJDQL]DWLRQDUHSURYLGHGLQWKH0RWLRQRI/HJDO6HUYLFHV 2UJDQL]DWLRQVIRU/HDYHWR)LOH%ULHIDVAmici Curiae




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 9 of 27

DUWLFXODWHWKHQDWXUHRIWKHLUUHSDUDEOHKDUPDWLVVXHDQGWKHUHDVRQVDQLQMXQFWLRQVHUYHVWKH SXEOLFLQWHUHVW
6800$5<2)$5*80(17 7KHUHVFLVVLRQRIWKH'$&$SURJUDPDQQRXQFHGE\WKH'HSDUWPHQWRI+RPHODQG 6HFXULW\³'+6´RQ6HSWHPEHUFDXVHVUHDODQGLPPLQHQWKDUPWR\RXQJSHRSOHZKR ZHUHHOLJLEOHIRUSURWHFWLRQIURPGHSRUWDWLRQXQGHU'$&$0RUHWKDQKDOIRIWKHVH'$&$ HOLJLEOHLQGLYLGXDOVZHUHVL[\HDUVROGRU\RXQJHUZKHQWKH\ILUVWFDPHWRWKH8QLWHG6WDWHVDOO ZHUH\RXQJHUWKDQVL[WHHQ\HDUVROG5HVXOWVIURP7RP.:RQJ et al. 2017 National DACA Study&(17(5)25$0(5,&$1352*5(66DW$XJ³2017 National DACA Study´ 7KHVH\RXQJSHRSOHQRZIDFHDIULJKWHQLQJDQGXQFHUWDLQIXWXUHLQWKH8QLWHG6WDWHVGHVSLWH SULRUDVVXUDQFHVE\WKHJRYHUQPHQWWKDWE\FRPLQJIRUZDUGDQGDSSO\LQJIRU'$&$WKH\ZRXOG EHSURWHFWHGIURPQHJDWLYHLPPLJUDWLRQHQIRUFHPHQWDFWLRQ 7KHYDVWPDMRULW\RI'$&$JUDQWHHVZLOOEHOHIWZLWKRXWDQ\SURWHFWLRQIURPGHSRUWDWLRQ ZKHQWKHLUFXUUHQWVWDWXVH[SLUHV'$&$JUDQWHHVZLOODOVRORVHZRUNDXWKRUL]DWLRQOHDGLQJ WKHPWRORVHWKHLUMREVKHDOWKLQVXUDQFHDQGFRXQWOHVVRWKHUEHQHILWV/RVLQJ'$&$ZLOOIRUFH PDQ\RIWKHPLQWRDOLIHRIKLGLQJDQGFRQVWDQWIHDURIUHPRYDOIURPWKHRQO\FRXQWU\WKH\KDYH HYHUNQRZQ 7KHGHFLVLRQWRUHVFLQG'$&$KDVLQWHQVLILHGIHDURIDFFHVVLQJYLWDOVHUYLFHVLQWKH LPPLJUDQWFRPPXQLW\$VWKHLU'$&$VWDWXVH[SLUHV'$&$UHFLSLHQWVZLOOMRLQWKHUDQNVRI
  &RXQVHO IRU amici KDYH LQWHUYLHZHG DQG UHFHLYHG LQIRUPDWLRQ IURP WKH OHJDO VHUYLFHV RUJDQL]DWLRQV WKDW DUH ILOLQJ WKLV EULHI  ,QIRUPDWLRQ WKURXJKRXW WKH EULHI WKDW UHODWHV WR WKHVH RUJDQL]DWLRQV¶FOLHQWVZDVREWDLQHGWKURXJKWKHVHLQWHUYLHZVDQGUHODWHGUHTXHVWVIRULQIRUPDWLRQ 0HPRUDQGXPIURP$FWLQJ6HFUHWDU\(ODLQH&'XNHMemorandum on Rescission of Deferred Action For Childhood Arrivals (DACA)6HSW³5HVFLVVLRQ0HPRUDQGXP´ KWWSVZZZGKVJRYQHZVPHPRUDQGXPUHVFLVVLRQGDFD Available atKWWSVFGQDPHULFDQSURJUHVVRUJFRQWHQWXSORDGV:RQJ(W$O 1HZ'$&$6XUYH\&RGHERRNSGI




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 10 of 27

LPPLJUDQWVZKRKDYHQRSURWHFWLRQDJDLQVWGHSRUWDWLRQDQGDUHDIUDLGWKDWLIWKH\JRWRVFKRRORU

ZRUNDFFHVVPHGLFDOVHUYLFHVRUUHSRUWDFULPHWKH\ZLOOEHFRPHWDUJHWVIRUGHSRUWDWLRQ7KLV

IHDULVQRWRQO\KDUPIXOWRWKRVHGLUHFWO\DIIHFWHGEXWDOVRGDQJHURXVIRUSXEOLFKHDOWKDQG

VDIHW\

$SUHOLPLQDU\LQMXQFWLRQSURKLELWLQJWKHJRYHUQPHQWIURPHQIRUFLQJWKH5HVFLVVLRQ

0HPRUDQGXPDQGIURPXVLQJLQIRUPDWLRQREWDLQHGLQDQ\'$&$DSSOLFDWLRQH[FHSWDV

SUHYLRXVO\SURYLGHGXQGHUWKH'$&$SURJUDPLVQHFHVVDU\LQRUGHUWRSUHYHQWLUUHSDUDEOHKDUP

WRWKLVFRPPXQLW\RI\RXQJLPPLJUDQWVDQGLVLQWKHSXEOLFLQWHUHVW

$5*80(17

,

7+( 5(6&,66,21 2) '$&$ &$86(6 6,*1,),&$17 +$50 72 AMICI’6 '$&$ &/,(176

02672):+20+$9(129,$%/(237,21722%7$,1/(*$/,00,*5$7,2167$786

$1'$92,''(3257$7,21

7KHUHVFLVVLRQRI'$&$ZLOOSXW'$&$UHFLSLHQWVDWULVNIRUGHSRUWDWLRQDQGVWULSWKHP

RIWKHLUHOLJLELOLW\IRUZRUNSHUPLWV:LWKRXW'$&$PRVW'$&$UHFLSLHQWVDUHLQHOLJLEOHIRU

DQ\SURWHFWLRQIURPGHSRUWDWLRQXQGHUFXUUHQWODZ,QGHHG'$&$ZDVRQO\QHFHVVDU\EHFDXVH

&RQJUHVVIDLOHGWRSDVVWKH'HYHORSPHQW5HOLHIDQG(GXFDWLRQIRU$OLHQ0LQRUV$FW³'5($0

$FW´ZKLFKZRXOGKDYHFUHDWHGDSDWKWRFLWL]HQVKLSIRUPDQ\'$&$HOLJLEOHLQGLYLGXDOV

FRPPRQO\UHIHUUHGWRDV³'UHDPHUV´7KH'5($0$FW¶VSURSRQHQWVVRXJKWWRSURYLGHDPXFK

QHHGHGOHJDOVROXWLRQIRUXQGRFXPHQWHG\RXQJSHRSOHZKRKDGEHHQSUHVHQWLQWKH8QLWHG6WDWHV

IURPFKLOGKRRGDQGLQVRPHFDVHVZHUHQRWDZDUHXQWLODGXOWKRRGRIWKHLUODFNRIVWDWXV

3URSRQHQWVUHFRJQL]HGWKDW'UHDPHUVJUHZXSLQWKH86EXWKDGQRRWKHURSWLRQIRUVWD\LQJ

OHJDOO\LQWKH8QLWHG6WDWHVReport and analysis of immigration and nationality law6HQDWH

-XGLFLDU\6XEFRPPLWWHH+ROGV+HDULQJRQWKH'5($0$FW1R,QWHUSUHWHU5HOHDVHV

 +5WK&RQJ6WK&RQJ




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 11 of 27

-XO\&RQJUHVVDWWHPSWHGEXWIDLOHGWRSDVVOHJLVODWLRQLQFOXGLQJWKH'5($0 $FWSURWHFWLQJWKLVFODVVRI\RXQJLPPLJUDQWVDSSUR[LPDWHO\IRXUWHHQWLPHVVLQFHERWKDV VWDQGDORQHOHJLVODWLRQDQGDVSDUWRIFRPSUHKHQVLYHLPPLJUDWLRQUHIRUP
,QUHVSRQVHWR&RQJUHVV¶VIDLOHGDWWHPSWVWRSURYLGHUHOLHIWRWKHVH\RXQJLPPLJUDQWV 3UHVLGHQW2EDPDLVVXHGDQ([HFXWLYH2UGHULQ-XQHHQDFWLQJ'$&$See 0HPRUDQGXP IURP6HFUHWDU\-DQHW1DSROLWDQRExercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children-XQH'$&$JUDQWHGD UHQHZDEOHWZR\HDUSHULRGRIGHIHUUHGDFWLRQSURWHFWLRQIURPGHSRUWDWLRQDQGZRUN DXWKRUL]DWLRQId.$OWKRXJK'$&$GRHVQRWRIIHUDSDWKWROHJDOVWDWXVRUFLWL]HQVKLS³LW SURYLGHVWDQJLEOHRSSRUWXQLWLHVIRU\RXQJLPPLJUDQWVWRSDUWLFLSDWHPRUHIXOO\LQRXUVRFLHW\DQG HFRQRP\´Deferred Action for Childhood Arrivals (DACA): Funding Opportunities for Philanthropy*UDQWPDNHUV&RQFHUQHGZLWK,PPLJUDQWVDQG5HIXJHHV2FW7KH '$&$SURJUDPDOORZHGUHFLSLHQWVWROLYHZLWKRXWIHDURIGHSRUWDWLRQDQGWRRYHUFRPHPDQ\RI WKHKDUGVKLSVDVVRFLDWHGZLWKXQGRFXPHQWHGVWDWXV
:KHQWKHLUFXUUHQWSHULRGRIGHIHUUHGDFWLRQH[SLUHV'$&$UHFLSLHQWVZLOOEHFDVWEDFN LQWROHJDOXQFHUWDLQW\ZLWKRXWDQ\SURWHFWLRQIURPGHSRUWDWLRQ7KHLUORVVLVVXEVWDQWLDODQGWKH FRQVHTXHQFHVDUHGLUHWKH\ZLOOORVHWKHDELOLW\WRUHPDLQOHJDOO\LQWKH86DQGZLOOKDYHQR

 See, e.g.+5WK&RQJ6WK&RQJ6WK&RQJ 6WK&RQJ+5WK&RQJ6WK&RQJ +5WK&RQJ6WK&RQJ6WK&RQJ +5WK&RQJ6WK&RQJ+5WK&RQJ +5WK&RQJ6WK&RQJ Available atKWWSVZZZGKVJRY[OLEUDU\DVVHWVVH[HUFLVLQJSURVHFXWRULDOGLVFUHWLRQ LQGLYLGXDOVZKRFDPHWRXVDVFKLOGUHQSGI Available at KWWSVZZZJFLURUJVLWHVGHIDXOWILOHVUHVRXUFHV*&,5'$&$)XQGLQJ2SSRUWXQLWLH VBSGI




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 12 of 27

PHDQVRIHDUQLQJDOLYLQJ0RVW'$&$UHFLSLHQWVGRQRWTXDOLI\IRUDQ\IRUPRILPPLJUDWLRQ
UHOLHIVXFKDVKXPDQLWDULDQEDVHGIRUPVRIUHOLHIRUIDPLO\EDVHGYLVDV$QGIRUWKHIHZZKR
PD\TXDOLI\IRURWKHUUHOLHIVXFFHVVIXOO\obtainingUHOLHILVQHDUO\LPSRVVLEOHXQGHUFXUUHQW
LPPLJUDWLRQODZ7KXVIRUWKHYDVWPDMRULW\RI'$&$JUDQWHHV, there is no other optionDQG
WKH\ZLOOEHFRPHXQGRFXPHQWHGZKHQWKHLUGHIHUUHGVWDWXVH[SLUHV
$ 0RVW'$&$5HFLSLHQWV$UH1RW(OLJLEOHIRU+XPDQLWDULDQRU)DPLO\%DVHG )RUPVRI,PPLJUDWLRQ5HOLHI
9HU\IHZ'$&$UHFLSLHQWVDUHHOLJLEOHIRULPPLJUDWLRQUHOLHIXQGHUFXUUHQWODZAmici
URXWLQHO\VFUHHQHG'$&$HOLJLEOHLQGLYLGXDOVIRUKXPDQLWDULDQDQGIDPLO\EDVHGIRUPVRIUHOLHI EHIRUHSURYLGLQJDVVLVWDQFHDSSO\LQJIRU'$&$EXWPRVW'$&$UHFLSLHQWVKDGQRWVXIIHUHG
WKHUHTXLVLWHWUDXPDWRTXDOLI\IRUKXPDQLWDULDQIRUPVRIUHOLHIDQGGLGQRWTXDOLI\IRUIDPLO\ EDVHGUHOLHI7KHPDMRULW\RI'$&$UHFLSLHQWVGRQRWTXDOLI\IRURWKHULPPLJUDWLRQRSWLRQV
VXFKDVVWXGHQWRUZRUNYLVDVHLWKHU,QGHHGDVWXG\IRXQGWKDWRQO\RI'$&$
HOLJLEOH\RXQJSHRSOHSRWHQWLDOO\TXDOLILHGIRUDQ\RWKHUIRUPRIUHOLHI7RP.:RQJet al.
Paths to Lawful Immigration Status: Results and Implications from the PERSON Survey-2)
0,*5$7,21$1'+80$16(&85,7<7KHUHVFLVVLRQRI'$&$WKHUHIRUHOHDYHV
WKHYDVWPDMRULW\RI'$&$UHFLSLHQWVZLWKRXWDQ\SURWHFWLRQIURPGHSRUWDWLRQ
+XPDQLWDULDQEDVHGRSWLRQVDUHQDUURZO\WDLORUHGIRUPVRIUHOLHIWKDWW\SLFDOO\UHTXLUH
WKDWDSSOLFDQWVVXIIHUHGVLJQLILFDQWWUDXPDLQWKHLUFRXQWU\RIRULJLQRULQWKH86)RUH[DPSOH
 5XOLQJRXWRWKHUIRUPVRIUHOLHIZDVDFUXFLDOSDUWRIWKH'$&$DSSOLFDWLRQSURFHVVDVPDQ\ RWKHUIRUPVRIUHOLHIXQOLNH'$&$FRQIHUDSDWKWROHJDOSHUPDQHQWUHVLGHQFHDQGFLWL]HQVKLS 7RTXDOLI\IRUIDPLO\EDVHGUHOLHIDSSOLFDQWVPXVWEHDQimmediate relativeGHILQHGDVD VSRXVHXQPDUULHGFKLOGXQGHURUDSDUHQWLIWKHFKLOGLV\HDUVRUROGHURID86 FLWL]HQ,1$E$L2OGHUDQGPDUULHGFKLOGUHQRI86FLWL]HQVDQGVSRXVHVDQG XQPDUULHGFKLOGUHQRIODZIXOSHUPDQHQWUHVLGHQWVDUHDOVRHOLJLEOHIRUYLVDVEXWDUHVXEMHFWWR QXPHULFDOOLPLWDWLRQVHDFK\HDU,1$





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 13 of 27

DV\OXPDQGLWVUHODWHGIRUPVRIUHOLHIUHTXLUHWKDWDSSOLFDQWVVXIIHUHGRUZLOOVXIIHUH[WUHPHKDUP LQWKHLUFRXQWULHVRIRULJLQ86&D,1$D$6LPLODUO\6SHFLDO
,PPLJUDQW-XYHQLOH6WDWXV³6,-6´FRQIHUVVWDWXVRQ\RXQJLPPLJUDQWVZKRKDYHEHHQDEXVHG
DEDQGRQHGRUQHJOHFWHG,1$D&)5³8´DQG³7´YLVDVSURYLGHUHOLHI
IRUYLFWLPVRIFHUWDLQTXDOLI\LQJFULPHVDQGKXPDQWUDIILFNLQJUHVSHFWLYHO\ZKLOHWKH9LROHQFH
$JDLQVW:RPHQ$FW³9$:$´DOORZVFHUWDLQEDWWHUHGVSRXVHVFKLOGUHQDQGSDUHQWVWRSHWLWLRQ
IRUOHJDOVWDWXVZLWKRXWWKHLQYROYHPHQWRIWKHLUDEXVLYHVSRXVHSDUHQWRUFKLOG,1$ D889LVDV,1$D77YLVDV,1$9$:$%XWLQGLYLGXDOV
ZKRVSHQWPRVWRIWKHLUOLYHVLQWKH8QLWHG6WDWHVDQGKDYHQRWH[SHULHQFHGVLJQLILFDQWKDUPRU
YLROHQFHLQWKHLUOLYHVVLPSO\GRQRWTXDOLI\IRUWKHVHIRUPVRIUHOLHI
0RVW'$&$JUDQWHHVDUHQRWHOLJLEOHIRUIDPLO\EDVHGLPPLJUDWLRQUHOLHIEHFDXVHWKH\
GRQRWKDYHDTXDOLI\LQJUHODWLYH$PRQJWKHIHZ'$&$UHFLSLHQWVZKRGRKDYHDTXDOLI\LQJ
UHODWLYHPDQ\DUHQRWHOLJLEOHWRDSSO\WRDGMXVWVWDWXVIURPZLWKLQWKHFRXQWU\EHFDXVHWKH\ODVW HQWHUHGWKHFRXQWU\ZLWKRXWSHUPLVVLRQ$VDUHVXOWWKHVH'$&$UHFLSLHQWVZRXOGKDYHWR
 $V\OXPDSSOLFDQWVRIWHQVHHNZLWKKROGLQJRIUHPRYDODQGUHOLHIXQGHUWKH&RQYHQWLRQ$JDLQVW 7RUWXUHDVZHOO,1$EConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment8QLWHG1DWLRQV7UHDW\6HULHVDW'HF KWWSVWUHDWLHVXQRUJSDJHV9LHZ'HWDLOVDVS["VUF ,1' PWGVJBQR ,9 FKDSWHU  ODQJ HQ 7KH,PPLJUDWLRQDQG1DWLRQDOLW\$FW³,1$´LVFRPSULVHGRIDVHULHVRIVHFWLRQVRI7LWOHRI WKH8QLWHG6WDWHV&RGH³86&´+HUHLQDIWHUIHGHUDOLPPLJUDWLRQVWDWXWHVDUHRQO\UHIHUHQFHGWR WKHLU,1$FODVVLILFDWLRQ (YHQLQWKHUDUHVLWXDWLRQWKDWD'$&$HOLJLEOHLQGLYLGXDOTXDOLILHVIRUDQDOWHUQDWLYHIRUPRI UHOLHIWKHZDLWLQJWLPHIRUWKDWUHOLHIFDQEHPDQ\\HDUV)RUH[DPSOHWKHFXUUHQWZDLWLQJWLPH IRUD8YLVDLVDSSUR[LPDWHO\ILYHWRWHQ\HDUV(YHQDQLQWHULPZRUNSHUPLWWKURXJKD8YLVD DSSOLFDWLRQFXUUHQWO\WDNHVDERXWWKUHH\HDUVWRSURFHVVDQGLQGLYLGXDOVZDLWLQJIRU8YLVD DSSURYDOKDYHEHHQVXEMHFWHGWRHQIRUFHPHQWE\,PPLJUDWLRQDQG&XVWRPV(QIRUFHPHQW³,&(´ GXULQJWKLVZDLWLQJSHULRG Amici DQGRWKHUVUHSRUWWKDW8YLVDDSSOLFDQWVKDYHEHHQGHWDLQHGLQ UHFHQWPRQWKV GHVSLWHKDYLQJDSHQGLQJ8YLVDDSSOLFDWLRQVSee also0DGHOLQH.HQQH\Berwyn grandmother of 10 facing deportation sues DHS over visa delay&KLFDJR6XQ7LPHV6HSW KWWSVFKLFDJRVXQWLPHVFRPFKLFDJRSROLWLFVEHUZ\QJUDQGPRWKHURIIDFLQJ GHSRUWDWLRQVXHVGKVRYHUYLVDGHOD\  )DPLO\EDVHGSHWLWLRQVDOVRWDNH\HDUVWRSURFHVV6HYHQW\HLJKWSHUFHQWRI'$&$UHFLSLHQWV





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 14 of 27

OHDYHWKHFRXQWU\WRDSSO\IRUDIDPLO\EDVHGYLVDDQGWKHQZRXOGIDFHVWULFWEDUVWRUHHQWU\GXH WRWKHLUSUHYLRXV³XQODZIXOSUHVHQFH´LQWKH8QLWHG6WDWHV,1$D%& 8QGRFXPHQWHGLPPLJUDQWVZKRKDYHDFFUXHGXQODZIXOSUHVHQFHDUHEDUUHGIURPUHHQWU\IRU WKUHH\HDUVWHQ\HDUVRUSHUPDQHQWO\GHSHQGLQJRQWKHLUOHQJWKRIXQODZIXOSUHVHQFHDQG QXPEHURIHQWULHV,1$D%L,,,DQGD&7KRVHZKRHQWHUHGWKH FRXQWU\PRUHWKDQRQFHZLWKRXWLQVSHFWLRQDQGKDYHEHHQXQODZIXOO\SUHVHQWIRUDWRWDORIPRUH WKDQRQH\HDUDUHpermanently EDUUHG,1$D&
'$&$UHFLSLHQWVGRQRWFRQWLQXHWRDFFUXH³XQODZIXOSUHVHQFH´RQFHWKHLU'$&$ DSSOLFDWLRQLVDSSURYHG²EXWRQFHWKHLU'$&$VWDWXVH[SLUHVWKH\ZLOODJDLQDFFUXHXQODZIXO SUHVHQFHSee 8QLWHG6WDWHV&LWL]HQVKLSDQG,PPLJUDWLRQ6HUYLFHV'$&$)UHTXHQWO\$VNHG 4XHVWLRQV³86&,6'$&$)$4V´4XHVWLRQ0RVW'$&$UHFLSLHQWVKDYHDOUHDG\DFFUXHG VRPHXQODZIXOSUHVHQFHDQGDUHVXEMHFWWRWLPHEDUV$FFUXDORI³XQODZIXOSUHVHQFH´IRUWKH SXUSRVHRIWKHWKUHHDQGWHQ\HDUEDUVEHJLQVRQFHDQXQGRFXPHQWHGLPPLJUDQWWXUQV,1$ D%LLL,7KHUHIRUH'$&$UHFLSLHQWVZRXOGKDYHDFFUXHG³XQODZIXOSUHVHQFH´ EHWZHHQWKHWLPHWKH\WXUQHGDQGWKHGDWHWKH\UHFHLYHGSURWHFWLRQIURPGHSRUWDWLRQi.e.WKH GDWHWKHLU'$&$DSSOLFDWLRQZDVDSSURYHG%HFDXVHWKHDYHUDJHDJHRID'$&$JUDQWHHLQ LV\HDUVROGDQG'$&$ZDVLPSOHPHQWHGLQDQDYHUDJH'$&$JUDQWHHZKR DSSOLHGIRU'$&$DVVRRQDVLWZDVDYDLODEOHZDV\HDUVROGDWWKHWLPHRIDSSOLFDWLRQDQG

 DUHIURP0H[LFR7KHJRYHUQPHQWLVFXUUHQWO\SURFHVVLQJYLVDSHWLWLRQVILOHGLQ0DUFKIRU XQPDUULHG0H[LFDQVRQVDQGGDXJKWHUVRI86FLWL]HQV9LVD%XOOHWLQIRU2FWREHU86 'HS¶WRI6WDWH%XUHDXRI&RQVXODU$IIDLUV6HSW KWWSVWUDYHOVWDWHJRYFRQWHQWYLVDVHQODZDQGSROLF\EXOOHWLQYLVDEXOOHWLQIRURFWREHU KWPO ³8QODZIXOSUHVHQFH´LVZKHQDQXQGRFXPHQWHGLPPLJUDQW³LVSUHVHQWLQWKH8QLWHG6WDWHV DIWHUWKHH[SLUDWLRQRIWKHSHULRGRIVWD\DXWKRUL]HGRULVSUHVHQWZLWKLQWKH8QLWHG6WDWHV ZLWKRXWEHLQJDGPLWWHGRUSDUROHG´,1$D%LL




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 15 of 27

WKXVZRXOGKDYHDFFUXHGWZR\HDUVRIXQODZIXOSUHVHQFHIURPWKHWLPHWKH\ZHUHLQ XQWLOWKH\UHFHLYHGWKH'$&$JUDQWLQSee 2017 National DACA StudyDW7KLVZRXOG UHVXOWLQDWHQ\HDUEDUWRUHHQWHULQJWKH8QLWHG6WDWHV,1$D%LLL,,(YHQWKH WKUHHDQGWHQ\HDUEDUVLQSUDFWLFHDUHFRPSOHWHEDUULHUVWRUHOLHIEHFDXVHDSSOLFDQWVZRXOGQHHG WROHDYHWKHLUIDPLOLHVMREVVFKRROVDQGIRUPRVWWKHRQO\FRXQWU\WKH\KDYHHYHUNQRZQLQ RUGHUWRZDLWRXWWKHWLPHEDU7KHVWDQGDUGVIRUREWDLQLQJDZDLYHURIXQODZIXOSUHVHQFHDUHVR GLIILFXOWWRPHHWWKDWHYHQIRUWKHYHU\IHZ'$&$UHFLSLHQWVZKRPLJKWTXDOLI\IRUIDPLO\EDVHG DGMXVWPHQWRIVWDWXVLWLVDQLOOXVRU\IRUPRIUHOLHIDWEHVW
% '$&$5HFLSLHQWV$UH1RW(OLJLEOHIRU5HOLHI%DVHGRQ7KHLU/HQJWKRI7LPH LQWKH861R0DWWHU+RZ:HOO6SHQW
&RQWUDU\WRSRSXODUSHUFHSWLRQWKHUHLVQRIRUPRIUHOLHIDYDLODEOHWR\RXQJLPPLJUDQWV RQWKHEDVLVWKDWWKH\KDYHOLYHGLQWKH8QLWHG6WDWHVIRUPRVWRIWKHLUOLYHVHYHQLIWKH\KDYH EHHQH[HPSODU\PHPEHUVRIWKHFRPPXQLW\DQGH[FHOOHGDFDGHPLFDOO\'$&$DOVRGLGQRW FUHDWHD³ORRSKROH´E\ZKLFKHOLJLEOH\RXQJSHRSOHFRXOG³FXWLQOLQH´IRUUHOLHIIRUZKLFKWKH\ ZRXOGKDYHKDGWRZDLWORQJHULIWKH\KDGVWD\HGLQWKHLUKRPHFRXQWULHV5DWKHU'$&$ SURYLGHG\RXQJSHRSOHZKRZHUHDOUHDG\KHUHDQGKDGQRYLDEOHUHFRXUVHIRULPPLJUDWLRQUHOLHI ZLWKWHPSRUDU\ZRUNSHUPLWVDQGSURWHFWLRQIURPGHSRUWDWLRQ
3ULRUWRLPPLJUDWLRQUHIRUPLQLPPLJUDQWVLQGHSRUWDWLRQSURFHHGLQJVFRXOGDVNDQ LPPLJUDWLRQMXGJHWRJUDQW³VXVSHQVLRQRIGHSRUWDWLRQ´ZKLFKWRRNWKH³JRRGPRUDOFKDUDFWHU´ RIDQLPPLJUDQWLQWRDFFRXQW7KLVIRUPRIUHOLHIZDVRQO\DYDLODEOHLIDQLPPLJUDQWZDVLQ UHPRYDOSURFHHGLQJVandZRXOGHLWKHUHQGXUHH[WUHPHKDUGVKLSLIGHSRUWHGRUKDGD86FLWL]HQ
 ³6XVSHQVLRQRIGHSRUWDWLRQ´UHTXLUHGFRQWLQXRXVSK\VLFDOSUHVHQFHLQWKH86IRUDWOHDVW VHYHQ\HDUVJRRGPRUDOFKDUDFWHUGXULQJWKRVHVHYHQ\HDUVDQGWKDWGHSRUWDWLRQZRXOG UHVXOWLQH[WUHPHKDUGVKLSWRWKHDSSOLFDQWRUWKHDSSOLFDQW¶VFLWL]HQRUODZIXOSHUPDQHQWUHVLGHQW VSRXVHSDUHQWRUFKLOG,1$DUHSHDOHG




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 16 of 27

RU/35IDPLO\PHPEHUZKRZRXOGHQGXUHH[WUHPHKDUGVKLSLIWKHDSSOLFDQWZHUHGHSRUWHG,Q &RQJUHVVHOLPLQDWHG³VXVSHQVLRQRIGHSRUWDWLRQ´DQGUHSODFHGLWZLWKDIRUPRI FDQFHOODWLRQRIUHPRYDOWKDWUHPRYHGFRQVLGHUDWLRQRIKDUGVKLSWRWKHDSSOLFDQWDQGLPSRVHGD KLJKHUEXUGHQRQWKHDSSOLFDQWWRVKRZKDUGVKLSWRD86FLWL]HQRU/35IDPLO\PHPEHU,1$ $Esee Hernandez v. Gonzalez)GG&LUQRWLQJWKH ³SUDFWLFDOHIIHFW>LV@WKDWDIDUODUJHUQXPEHURILPPLJUDQWVDUHQRZUHPRYDEOHXQGHUWKHQHZ ODZZKLOHDPXFKVPDOOHUQXPEHUDUHHOLJLEOHIRUDQ\IRUPRIUHOLHIIURPUHPRYDO´$VZLWK ³VXVSHQVLRQRIGHSRUWDWLRQ´RQO\LPPLJUDQWVLQUHPRYDOSURFHHGLQJVDQGZLWKDTXDOLI\LQJ UHODWLYHKDUGVKLSWRWKHDSSOLFDQWLVQRORQJHUVXIILFLHQWDUHDEOHWRVHHNFDQFHOODWLRQRI UHPRYDO*LYHQWKDWPRVW'$&$UHFLSLHQWVGRQRWKDYHDTXDOLI\LQJUHODWLYHDWDOO:RQJPaths to Lawful Immigration StatusQROHVVDTXDOLI\LQJUHODWLYHZKRZRXOGHQGXUHH[WUHPHKDUGVKLS WKLVRSWLRQLVLQDSSOLFDEOHWRPRVW'$&$UHFLSLHQWV
$VDUHVXOWIRUWKHYDVWPDMRULW\RI'$&$UHFLSLHQWVZKRGRQRWTXDOLI\IRUKXPDQLWDULDQ RUIDPLO\EDVHGLPPLJUDWLRQUHOLHIWKHUHLVQRSURFHGXUHRWKHUWKDQ'$&$WRSURWHFWWKHP IURPGHSRUWDWLRQ

 0RVWDSSOLFDQWVDUHXQDEOHWRDYRLGGHSRUWDWLRQWKURXJKFDQFHOODWLRQRIUHPRYDOXQOHVVWKH\ FDQVKRZWKDWGHSRUWDWLRQZRXOGUHVXOWLQ³H[FHSWLRQDODQGH[WUHPHO\XQXVXDOKDUGVKLS´WRD 86FLWL]HQRU/35VSRXVHSDUHQWRUFKLOG,1$$7KLVVWDQGDUGLVDYHU\GHPDQGLQJ RQHWKDWJHQHUDOO\UHTXLUHVDVKRZLQJWKDWD86FLWL]HQRU/35IDPLO\PHPEHUVXIIHUVIURPD VHYHUHFKURQLFPHGLFDOFRQGLWLRQDQGUHTXLUHVVSHFLDOPHGLFDODWWHQWLRQDQGILQDQFLDOVXSSRUW See Ayeni v. Holder)GVW&LUXSKROGLQJORZHUFRXUWGHFLVLRQWKDW HYHQHYLGHQFHRISHWLWLRQHU¶VLQDELOLW\WRSURYLGHPHGLFDOFDUHIRUKLVFKLOGUHQ¶VFKURQLFDQG VHULRXVKHDOWKLVVXHVZKLFKLQFOXGHGVHYHUHDVWKPDPLJUDLQHKHDGDFKHVDQGDWWHQWLRQGHILFLW K\SHUDFWLYLW\GLVRUGHUGLGQRWPHHWKDUGVKLSVWDQGDUG'HPRQVWUDWLQJWKDWHPRWLRQDOKDUPZLOO FDXVHGE\WKHVHSDUDWLRQRIIDPLO\PHPEHUVRUILQDQFLDOKDUGVKLSLVLQVXIILFLHQWTejado v. Holder)GWK&LUHPRWLRQDOKDUPGomez-Perez v. Holder)G WK&LUILQDQFLDOKDUGVKLS




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 17 of 27

& :LWKRXW '$&$ 0RVW '$&$ 5HFLSLHQWV :LOO %HFRPH 8QGRFXPHQWHG DQG 6XIIHU6LJQLILFDQW5HODWHG+DUPV
*LYHQWKHVPDOOQXPEHURI'$&$UHFLSLHQWVZKRDFWXDOO\TXDOLI\IRULPPLJUDWLRQUHOLHI DQGWKHOHJDOKXUGOHVIDFHGE\WKHVPDOOPLQRULW\RIWKRVHWKDWGRTXDOLI\WKHUHDOLW\LVWKDWPRVW '$&$UHFLSLHQWVZLOOEHFRPHXQGRFXPHQWHGDVDUHVXOWRIWKH5HVFLVVLRQ0HPRUDQGXP7KH\ ZLOOQRWEHDEOHWRZRUNOHJDOO\DQGZLOOQRWKDYHDQ\SURWHFWLRQIURPGHSRUWDWLRQ²DQGZLOO VXIIHUQXPHURXVKDUPVDVDUHVXOW7KHHOLPLQDWLRQRI'$&$³UHYHUEHUDWH>V@IDUEH\RQGWK>H@ SULYLOHJHV´RIOHJDOO\OLYLQJDQGZRUNLQJLQWKH8QLWHG6WDWHV&DLWOLQ'LFNHUVRQFor DACA Recipients, Losing Protection and Work Permits Is Just the Start7KH1HZ<RUN7LPHV6HSW “Losing Protection´
7KHSRVLWLYHLPSDFWRIWKH'$&$SURJUDP²ERWKWRLWVUHFLSLHQWVDQGWR$PHULFDQ VRFLHW\PRUHJHQHUDOO\²VKRXOGQRWEHXQGHUHVWLPDWHG³6LQFH'$&$EHJDQWKRXVDQGVRI 'UHDPHUVKDYHEHHQDEOHWRHQUROOLQFROOHJHVDQGXQLYHUVLWLHVFRPSOHWHWKHLUHGXFDWLRQVWDUW EXVLQHVVHVWKDWKHOSLPSURYHRXUHFRQRP\DQGJLYHEDFNWRRXUFRPPXQLWLHVDVWHDFKHUV PHGLFDOSURIHVVLRQDOVHQJLQHHUVDQGHQWUHSUHQHXUV²DOORQWKHERRNV´/HWWHUIURP6HFUHWDU\ -HK-RKQVRQ86'HS¶WRI+RPHODQG6HFWR+RQRUDEOH-XG\&KX86+RXVHRI5HS'HF $IWHUWKHLPSOHPHQWDWLRQRI'$&$DSSUR[LPDWHO\RI'$&$JUDQWHHV REWDLQHGGULYHU¶VOLFHQVHVIRUWKHILUVWWLPH 2017 National DACA StudyDW0DQ\DOVR REWDLQHGILQDQFLDODLGIRUKLJKHUHGXFDWLRQSee 'LFNHUVRQLosing Protection)XUWKHUDIWHU UHFHLYLQJ'$&$DSSUR[LPDWHO\RI'$&$JUDQWHHVDJHDQGXQGHUDQGDSSUR[LPDWHO\ RI'$&$JUDQWHHVRYHUDJHSXUVXHGHGXFDWLRQDORSSRUWXQLWLHVWKH\SUHYLRXVO\FRXOGQRW
 Available atKWWSVZZZQ\WLPHVFRPXVGDFDORVVHVLPPLJUDWLRQKWPO Available at KWWSVFKXKRXVHJRYVLWHVFKXKRXVHJRYILOHVGRFXPHQWV'+66LJQHG5HVSRQVHWR &KXSGI





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 18 of 27

SXUVXH2017 National DACA Study DW$SSUR[LPDWHO\RI'$&$UHFLSLHQWV³HDUQ>HG@
PRUHPRQH\ZKLFKKHOSHG>WKHP@EHFRPHILQDQFLDOO\LQGHSHQGHQW´Id DW$VWKHUHVXOW RIWKHLUHPSOR\PHQWPDQ\'$&$UHFLSLHQWVDOVRREWDLQHGHPSOR\HUEDVHGKHDOWKLQVXUDQFH
See -HVVLFD)HUJHURescinding DACA Could Spur a Public Health Crisis, from Lost Services to Higher Rates of Depression, Substance Abuse1HZVZHHN6HSW 7KHVHEHQHILWVWKDW
'$&$UHFLSLHQWVKDYHUHOLHGRQEHQHILWVWKDWPDQ\86FLWL]HQV³WDNHIRUJUDQWHGDQGFDQQRW
HYHQLPDJLQHOLYLQJZLWKRXW´ZLOOGLVDSSHDUZLWKWKHUHVFLVVLRQRI'$&$'LFNHUVRQLosing
Protection. )RU'$&$UHFLSLHQWVWKLVZLOOUHVXOWLQXQGHQLDEOHKDUPDVLWZLOOPHDQDQLQDELOLW\
WRFRQWLQXHWKHLUHGXFDWLRQVXSSRUWWKHPVHOYHVDQGWKHLUIDPLOLHVILQDQFLDOO\DQG³NHHSDURRI
RYHUWKHLUKHDGV´Id.
0DQ\'$&$UHFLSLHQWVZLOODOVREHIRUFHGWRPDNHKHDUWEUHDNLQJGHFLVLRQVDERXWWKH
IXWXUHRIWKHLUIDPLOLHVDQGLQSDUWLFXODURIWKHLU86FLWL]HQFKLOGUHQ'$&$UHFLSLHQWVZKRDUH
SDUHQWVPXVWFKRRVHZKHWKHUWRWDNHWKHLU86FLWL]HQFKLOGUHQZLWKWKHPLIWKH\DUHGHSRUWHGRU
IDFHORQJWHUPDQGSRVVLEO\SHUPDQHQWVHSDUDWLRQ3ULVFLOOD$OYDUH]Will DACA Parents Be
Forced to Leave Their U.S.-Citizen Children Behind?7KH$WODQWLF2FWEHFDXVHRI
WKHUHVFLVVLRQRI'$&$DQHVWLPDWHGFKLOGUHQDUHQRZDWULVNRIORVLQJWKHLU'$&$ UHFLSLHQWSDUHQWV,IWKH\GHFLGHWROHDYHWKHLU86FLWL]HQFKLOGUHQLQWKH86WKH\QHHGWR
 5HVFLQGLQJ '$&$ ZLOO DOVR KDYH D VLJQLILFDQW HFRQRPLF HIIHFW DV HPSOR\HUV ZLOO KDYH WR WHUPLQDWHWKHHPSOR\PHQWRI'$&$JUDQWHHVRQFHWKHLUGHIHUUHGVWDWXVH[SLUHV7KLVZLOOUHVXOWLQ D UHGXFWLRQ LQ FRQWULEXWLRQV PDGH WR 6RFLDO 6HFXULW\ DQG 0HGLFDUH ERWK E\ WKH HPSOR\HH DQG HPSOR\HURIDSSUR[LPDWHO\ELOOLRQRYHU\HDUV-RVH0DJDxD6DOJDGRHWDODraining the Trust FundsEnding DACA and the Consequences to Social Security and Medicare,PPLJUDQW /HJDO5HVRXUFH&HQWHUDW2FWKWWSVZZZLOUFRUJVLWHVGHIDXOWILOHVUHVRXUFHV BGUDLQLQJBWKHBWUXVWBIXQGVBILQDOSGI Available atKWWSZZZQHZVZHHNFRPGDFDLPPLJUDWLRQKHDWKFDUHDFFHVVPHQWDOKHDOWK  Available atKWWSVZZZWKHDWODQWLFFRPSROLWLFVDUFKLYHGRQDOGWUXPS GDFD




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 19 of 27

PDNHOHJDOSUDFWLFDODQGILQDQFLDODUUDQJHPHQWVIRUWKHFDUHRIWKHLUFKLOGUHQ'$&$UHFLSLHQWV ZKRPD\EHVXEMHFWWRGHSRUWDWLRQPXVWDOVRVSHQGWLPHDQGUHVRXUFHVWRSURWHFWWKHLUSURSHUW\ DVVHWVDQGILQDQFHVLQFDVHWKH\DUHGHSRUWHG7KHVHKDUPVDUHQRWVSHFXODWLYH$UHFHQWVWXG\ SURILOHGD'$&$UHFLSLHQWZKR³ZDVERUQLQ0H[LFREXWFDPHWRWKH86DWWKHDJHRIQLQH 6KHUHFHLYHG'$&$ZKHQVKHZDVVWXG\LQJIRUDPDVWHU¶VGHJUHHDW6WDQIRUG6KHERXJKWD KRXVHPDUULHGDQRWKHU'$&$UHFLSLHQWDQGKDVWZRFKLOGUHQZKRDUH86FLWL]HQV´-XOLD &DUULH:RQJFear and uncertainty for Dreamers as DACA ends: “Where am I going to go?´ 7KH*XDUGLDQ6HSW7KLV'$&$UHFLSLHQWLVQRWHOLJLEOHIRULPPLJUDWLRQUHOLHIVRVKH DQGKHUSDUWQHUDUHKDYLQJWRFRQVLGHURSWLRQV³WRSURWHFW>WKHLU@GDXJKWHUVLQFDVH>WKH\@DUH GHSRUWHG´IdDWAmiciDUHDZDUHRIFRXQWOHVVVLPLODUVLWXDWLRQVDPRQJWKHLUFOLHQWVZKLFK FDXVHDVLJQLILFDQWDPRXQWRIVWUHVVDQGDQ[LHW\
7KHUHVFLVVLRQRI'$&$FUHDWHVVLJQLILFDQWWXUPRLOIRU'$&$UHFLSLHQWVDQGWKHLU IDPLOLHVZKRKDYHSODQQHGWKHLUIXWXUHVDURXQGWKHSURPLVHVRI'$&$1RZPRVWZLOORQFH DJDLQEHFRPHXQGRFXPHQWHGLPPLJUDQWVZLWKDOOWKHXQFHUWDLQW\DQGDQ[LHW\WKDWHQWDLOVDQG ZLWKRXWWKHDELOLW\WRZRUNOHJDOO\REWDLQKHDOWKLQVXUDQFHOHJDOO\GULYHLQPDQ\VWDWHVSD\IRU FROOHJHSXUFKDVHKRPHVDQGPDNHSODQVIRUWKHLUOLYHV

 '$&$UHFLSLHQWVDUHDWHYHQPRUHULVNWKDQRWKHUXQGRFXPHQWHGLPPLJUDQWVEHFDXVHWKH\ SURYLGHGSHUVRQDODQGVHQVLWLYHLQIRUPDWLRQWRWKHJRYHUQPHQWDVSDUWRIWKH'$&$DSSOLFDWLRQ SURFHVVLQFOXGLQJDGGUHVVHVHPSOR\HUVSKRWRVDQGILQJHUSULQWV1RZWKHJRYHUQPHQWKDV VWDWHGWKDWDOWKRXJKWKHSHUVRQDOLQIRUPDWLRQZLOOQRWEH³SURDFWLYHO\SURYLGHG´WRRWKHUODZ HQIRUFHPHQWHQWLWLHVDQG,&(WKDWPD\FKDQJHDQGEH³UHVFLQGHGDWDQ\WLPHZLWKRXWQRWLFH´ See 86&,6'$&$)$4VDW4XHVWLRQ5LFKDUG*RQ]DOHVDACA Recipients Worry What The Government Will Do With Their Private Information1356HSW KWWSZZZQSURUJGDFDUHFLSLHQWVZRUU\ZKDWWKHJRYHUQPHQWZLOOGR ZLWKWKHLUSULYDWHLQIRUPDWLRQ 




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 20 of 27

,, 7+( 5(6&,66,21 2) '$&$ &$86(6 )($5 ,1 7+( &20081,7< $%287 $&&(66,1* 38%/,&6(59,&(6:+,&++$5067+(38%/,&,17(5(67 ,QOLJKWRIDSROLWLFDOFOLPDWHLQFUHDVLQJO\KRVWLOHWRLPPLJUDQWVLQWHQVLILHGE\WKH
UHVFLVVLRQRI'$&$PDQ\LQWKHLPPLJUDQWFRPPXQLW\DUHXQGHUVWDQGDEO\IHDUIXORI GHSRUWDWLRQDQGDIUDLGWRDFFHVVVHUYLFHV:KHQ'$&$SURWHFWLRQVH[SLUHamici¶V'$&$ FOLHQWVZLOOQRORQJHUEHSURWHFWHGIURPGHSRUWDWLRQDQGOLNHRWKHUXQGRFXPHQWHGLPPLJUDQWV PD\EHDIUDLGWRDFFHVVVHUYLFHV7KLVVLWXDWLRQHQGDQJHUVSXEOLFKHDOWKDQGVDIHW\ 
$ '$&$ 5HFLSLHQWV DQG 2WKHU ,PPLJUDQWV $UH $IUDLG WR $FFHVV +HDOWK DQG 2WKHU6RFLDO6HUYLFHVDQGWR$WWHQG6FKRRO2XWRI)HDURI'HSRUWDWLRQ
,QWKHZDNHRIUHFHQWLQFUHDVLQJLPPLJUDWLRQHQIRUFHPHQWDFWLYLW\DQGWKH5HVFLVVLRQ 0HPRUDQGXPWKHUHLVHYLGHQFHWKDWDQ[LHW\LVFDXVLQJXQGRFXPHQWHGLPPLJUDQWVLQFOXGLQJ '$&$UHFLSLHQWVWRDYRLGXWLOL]LQJKHDOWKVHUYLFHVDQGUHIUDLQIURPUHSRUWLQJFULPHV6RPH PHPEHUVRIWKHLPPLJUDQWFRPPXQLW\DUHHYHQDYRLGLQJVFKRRODQGZRUN)RUH[DPSOHamicus RUJDQL]DWLRQ&HQWUR/HJDOGHOD5D]DKDVDFOLHQWZKRVHIDPLO\PHPEHUVVWRSSHGZRUNLQJ EHFDXVHRIIHDURIZRUNSODFHUDLGV͘ 6HYHUDO amici RUJDQL]DWLRQVKDYHEHHQSURYLGLQJ³.QRZ <RXU5LJKWV´SUHVHQWDWLRQVLQRUGHUWRDOOHYLDWHWKHVHFRQFHUQVLQWKHFRPPXQLW\
0DQ\XQGRFXPHQWHGLPPLJUDQWVDYRLGYLVLWLQJKRVSLWDOVRUFOLQLFVIRUIHDURI GHSRUWDWLRQSee $QQD1RUWKDACA helped some immigrants finally get health care. Now they could lose it9R[6HSW³DACA helped get health care´)RUH[DPSOH XQGRFXPHQWHGLPPLJUDQWZRPHQPD\QRWDFFHVVQHFHVVDU\SUHQDWDOKHDOWKFDUHZKLFKFDQOHDG WRDZLGHUDQJHRIGHWULPHQWDOKHDOWKRXWFRPHV1RUWKDACA helped get health care $QHFGRWDOHYLGHQFHGHPRQVWUDWHVWKDWDYRLGDQFHEHKDYLRUPRWLYDWHGE\IHDUDERXQGV$VRQH QRQSURILWRUJDQL]DWLRQREVHUYHG³>Z@KDWZH¶UHILQGLQJDQGKHDULQJIURPDOORYHUWKHFRXQWU\LV
 Available atKWWSVZZZYR[FRPLGHQWLWLHVGDFDKHDOWKFDUH UHSURGXFWLYHKHDOWKXQGRFXPHQWHGLPPLJUDQWV




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 21 of 27

DKXJHFRQFHUQDERXWZKHWKHURUQRWVHHNLQJURXWLQHFDUHDQGSUHYHQWDWLYHFDUHDVZHOODVFDUH IRUWKHLUFKLOGUHQZKRPD\EHGRFXPHQWHGLVJRLQJWRSXWWKRVHIDPLOLHVLQMHRSDUG\RI GHSRUWDWLRQ:KDWZHKHDUGZDVDUHDOVLJQLILFDQWXSWLFNLQQRVKRZUDWHV´6WHSKDQLH.XR Undocumented Immigrants Putting ‘Health On Hold’ Out Of Fear, Anxiety In Uncertain Times +RXVWRQ3XEOLF0HGLD6HSW,QGHHGIHDURIGHSRUWDWLRQLVVRVWURQJWKDWRQH XQGRFXPHQWHGLPPLJUDQWZRPDQVWRSSHGDFFHVVLQJDQGUHFHLYLQJFDQFHUWUHDWPHQWVEHFDXVHVKH ZDVWHUULILHGRIEHLQJLGHQWLILHGDQGGHWDLQHGLIVKHFRQWLQXHGXVLQJKHDOWKVHUYLFHVJLYHQUHSRUWV RILQFUHDVHGLPPLJUDWLRQHQIRUFHPHQW9LUJLQLD)D\Back Into the Shadows: Immigrants Retreat From Needed Services as Deportation Fears Loom.4('1HZV-XQH³Back Into the Shadows´AmiciKDYHREVHUYHGWKLVSKHQRPHQRQDVZHOO0HGLFDOSURIHVVLRQDOV KDYHLQIRUPHGamicusRUJDQL]DWLRQ,/5&WKDWXQGRFXPHQWHGLPPLJUDQWVWUHDWHGLQHPHUJHQF\ URRPVKDYHIDLOHGWRUHWXUQWRWKHKRVSLWDOIRUFULWLFDOIROORZXSWUHDWPHQWRXWRIIHDURI GHSRUWDWLRQ
8QGRFXPHQWHGLPPLJUDQWVDUHDOVRLQFUHDVLQJO\DIUDLGWRUHSRUWFULPHVWRODZ HQIRUFHPHQWIHDULQJWKDWDQ\LQWHUDFWLRQZLWKDJRYHUQPHQWDOHQWLW\FRXOGOHDGWRGHSRUWDWLRQ 3ROLFHGHSDUWPHQWVDFURVVWKHQDWLRQZRUU\DERXWKRZWKHLQFUHDVLQJO\IHDUIXOFOLPDWHZLOODIIHFW WKHLUUHODWLRQVKLSVZLWKLPPLJUDQWFRPPXQLWLHVDQGWKHLUDELOLW\WRVROYHFULPHV$VRQHSROLFH FDSWDLQH[SODLQHGXQGRFXPHQWHGLPPLJUDQWV³ZLOOVHHODZHQIRUFHPHQWDQGWKHMXVWLFHV\VWHP DVVRPHWKLQJWKDWLVQRZOHVVDFFHVVLEOHDQGSRWHQWLDOO\WKUHDWHQLQJEHFDXVHWKH\¶UH FRQFHUQHGWKDWWKHIHGHUDOJRYHUQPHQWZLOOVRPHKRZJHWWKDWLQIRUPDWLRQDQGXVHLWWRGHSRUW
 Available at KWWSVZZZKRXVWRQSXEOLFPHGLDRUJDUWLFOHVQHZVXQGRFXPHQWHG LPPLJUDQWVSXWWLQJKHDOWKRQKROGRXWRIIHDUDQ[LHW\LQXQFHUWDLQWLPHV Available atKWWSVZZNTHGRUJQHZVEDFNLQWRWKHVKDGRZVLPPLJUDQWV UHWUHDWIURPQHHGHGVHUYLFHVDVGHSRUWDWLRQIHDUVORRP




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 22 of 27

WKHP´Id3ROLFHLQPDQ\PDMRUFLWLHVKDYHREVHUYHGVLJQLILFDQWO\GHFUHDVHGUHSRUWLQJRIVH[XDO DQGGRPHVWLFYLROHQFHE\/DWLQDZRPHQGXULQJWKHILUVWIHZPRQWKVRIFRPSDUHGWRWKH VDPHWLPHSHULRGLQIdVKDUSGRZQWXUQLQ+RXVWRQ/RV$QJHOHVDQG6DQ)UDQFLVFRsee also -HQQLIHU0HGLQDToo Scared to Report Sexual Abuse. The Fear: Deportation7KH1HZ <RUN7LPHV$SUVKDUSGRZQWXUQLQFLWLHVLQ&RORUDGRDQG0DU\ODQG$GYRFDWHV UHSRUWWKDWPDQ\GRPHVWLFYLROHQFHVXUYLYRUVZKRDUHXQGRFXPHQWHGDUHWRRDIUDLGRIFRQWDFW ZLWKSROLFHWRVHHNOLIHVDYLQJUHVWUDLQLQJRUGHUVUHSRUWDEXVHRUVHHN8YLVDV)D\Back Into the Shadows7KH\IXUWKHUQRWHWKDWXQGRFXPHQWHGVXUYLYRUVDUHHYHQDIUDLGWRVWD\DWVKHOWHUV Id. :KHQ³VXUYLYRUVGRFRPHLQIRUKHOSWKH\DUHRIWHQVRVFDUHGWKDWWKH\ZRQ¶WVWD\PRUHWKDQ DIHZGD\VRUDZHHN´IdAmicus RUJDQL]DWLRQVUHSRUWH[SHULHQFHVZLWKPXOWLSOHFOLHQWVZKR KDYHHQGXUHGKRUULILFGRPHVWLFYLROHQFHEXWDUHWRRDIUDLGWRUHSRUWWKHDEXVHGXHWRWKHLU LPPLJUDWLRQVWDWXV6RPHLPPLJUDQWVDUHHYHQDIUDLGWRFRPHWRamici¶VRIILFHVWREHVFUHHQHG IRULPPLJUDWLRQUHOLHIIRUIHDURIHQFRXQWHULQJ,&(
)HDULQWKHFRPPXQLW\KDVOHGWRLQFUHDVHGDEVHQWHHLVPDPRQJLPPLJUDQWVWXGHQWVLQ VFKRROVDFURVVWKHQDWLRQSee &DURO\Q-RQHVImmigration crackdown taking heavy toll on California students6DQ-RVH0HUFXU\1HZV2FW³Immigration crackdown taking heavy toll´0DUN.HLHUOHEHUTrump’s immigration crackdown is traumatizing a generation of children7KH*XDUGLDQ$XJQRWLQJWKDWVFKRRORIILFLDOVIURP1HZ<RUNWR1HZ 0H[LFRDUHSUHSDULQJIRU³LQFUHDVHGDQ[LHW\DQGDEVHQWHHLVPDPRQJVWXGHQWVRILPPLJUDQW

 Available at KWWSVZZZQ\WLPHVFRPXVLPPLJUDQWVGHSRUWDWLRQVH[XDO DEXVHKWPO Available atKWWSZZZPHUFXU\QHZVFRPLPPLJUDWLRQFUDFNGRZQWDNLQJKHDY\ WROORQFDOLIRUQLDVWXGHQWV"SODWIRUP KRRWVXLWH Available atKWWSVZZZWKHJXDUGLDQFRPXVQHZVDXJXVLPPLJUDWLRQFKLOGUHQ VFKRROVWUXPS




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 23 of 27

IDPLOLHV´DQGWKDWPRUHDQGPRUHVWXGHQWVDUHGURSSLQJRXWRIVFKRRO(GXFDWRUVKDYHDOVR REVHUYHGWKDWVRPHVWXGHQWVDUHKDYLQJLQFUHDVHGGLIILFXOW\FRQFHQWUDWLQJLQWKHFODVVURRPDVD UHVXOWRIUHFHQWDQWLLPPLJUDWLRQSROLFLHV-RQHVImmigration crackdown taking heavy toll 6RPHLPPLJUDQWSDUHQWVKDYHHYHQH[SUHVVHGIHDURIVHQGLQJWKHLUFKLOGUHQWRVFKRROLQFDVH ³WKH\¶UHWDNHQLQDQ,&(UDLGGXULQJWKHGD\DQGWKHLUFKLOGUHQKDYHQRRQHWRUHWXUQKRPHWR´ )D\Back Into the Shadows
,PPLJUDQWIDPLOLHVDUHDOVRUHOXFWDQWWRDFFHVVVRFLDOVHUYLFHVGXHWRIHDURIGHSRUWDWLRQ 6RFLDOVFLHQWLVWVKDYHSRLQWHGRXWWKDW³DQWLLPPLJUDQWVHQWLPHQWDQGLQFUHDVHGGHSRUWDWLRQ DFWLYLW\KDVKDGDORQJKLVWRU\RIFDXVLQJHOLJLEOHIDPLOLHVWRGURSRXWDQGVK\DZD\´IURPVDIHW\ QHWSURJUDPV$QQLH/RZUH\Trump’s anti-immigrant policies are scaring families away from the safety net7KH$WODQWLF0DU³Trump’s anti-immigrant policies´,QPDQ\ FDVHVIDPLOLHVHOLJLEOHIRUWKHVHYLWDOSURJUDPVKDYHPL[HGLPPLJUDWLRQVWDWXV²IRUH[DPSOH ³XQGRFXPHQWHGSDUHQWVZLWKFKLOGUHQZLWKELUWKULJKWFLWL]HQVKLS´Id(OLJLEOHPL[HGVWDWXV IDPLOLHVDUHGHFOLQLQJWRHQUROOLQRUHYHQXQHQUROOLQJIURPSURJUDPVVXFKDVWKH6XSSOHPHQWDO 1XWULWLRQ$VVLVWDQFH3URJUDP³61$3´DQG:RPHQ,QIDQWVDQG&KLOGUHQ³:,&´RXWRI IHDUWKDWHQUROOPHQWZLOOSXWXQGRFXPHQWHGIDPLO\PHPEHUVDWULVNRIGHSRUWDWLRQ/RZUH\ Trump’s anti-immigrant policies(OLJLEOHIDPLOLHVDUHZLWKGUDZLQJIURPRWKHUDQWLSRYHUW\

 Available atKWWSVZZZWKHDWODQWLFFRPEXVLQHVVDUFKLYHWUXPSVDIHW\QHWODWLQR IDPLOLHV"XWPBVRXUFH QODWODQWLFZHHNO\ 6XFK PL[HG LPPLJUDWLRQ IDPLO\ VWDWXV IDPLOLHV DUH LQFUHDVLQJO\ FRPPRQ²QHDUO\ VL[ PLOOLRQ FLWL]HQFKLOGUHQOLYHLQVXFKKRXVHKROGVId 6XSSOHPHQWDO1XWULWLRQ$VVLVWDQFH3URJUDP61$38QLWHG6WDWHV'HSDUWPHQWRI$JULFXOWXUH )RRG DQG 1XWULWLRQ 6HUYLFH -DQ   KWWSVZZZIQVXVGDJRYVQDSVXSSOHPHQWDO QXWULWLRQDVVLVWDQFHSURJUDPVQDS :RPHQ ,QIDQWV DQG &KLOGUHQ :,& 8QLWHG 6WDWHV 'HSDUWPHQW RI $JULFXOWXUH  )RRG DQG 1XWULWLRQ 6HUYLFH $XJ   KWWSVZZZIQVXVGDJRYZLFZRPHQLQIDQWVDQGFKLOGUHQ ZLF




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 24 of 27

SURJUDPVDVZHOOId)RULQVWDQFH(LVQHU+HDOWKDKHDOWKFDUHSURYLGHUFRPSDUHGPRQWKO\ HQUROOPHQWDYHUDJHVIURP'HFHPEHUWKURXJK)HEUXDU\ZLWKGDWDIURPDQG UHSRUWHGDGURSLQIRRGVWDPSHQUROOPHQWDGURSLQ0HGLFDLGHQUROOPHQWDPRQJ FKLOGUHQDQGDQGURSLQHQUROOPHQWLQDORFDOKHDOWKSURJUDPId5HHQUROOPHQWLQWKHVH SURJUDPVKDVGHFOLQHGE\Id7KHFRPPXQLW\¶VDYRLGDQFHRIWKHVHFUXFLDOVHUYLFHVZLOO OLNHO\UHVXOWLQ³ORQJWHUPFRQVHTXHQFHVRQWKHKHDOWKQXWULWLRQDQGVFKRROSHUIRUPDQFHRIWKH \RXQJHVWPHPEHUVRIWKHVHIDPLOLHV´PDQ\RIZKRPDUH86FLWL]HQVId
(YHQLPPLJUDQWVZKRKDYHDOUHDG\UHFHLYHGDIRUPRIUHOLHIIURPGHSRUWDWLRQVXFKDV DV\OXPDUHH[SHULHQFLQJDQXSWLFNLQDQ[LHW\6HYHUDOamiciKDYHUHFHLYHGFDOOVIURPDV\OHHV FRQFHUQHGWKDWWKH'$&$UHVFLVVLRQPLJKWUHVXOWLQWKHUHYRFDWLRQRIWKHLUDV\OXPVWDWXVRUPHDQ WKDWWKH\VKRXOGWDNHIXUWKHUVWHSVWRSURWHFWWKHPVHOYHVIURPGHSRUWDWLRQ2WKHUFOLHQWVDUH DIUDLGWRDSSO\DIILUPDWLYHO\IRUDQ\IRUPRIUHOLHIEHFDXVHWKH\ZRUU\DERXWZKDWZLOOKDSSHQLI UHOLHILVGHQLHGRUODWHUUHVFLQGHGOLNH'$&$
'XHWRWKHUHVFLVVLRQRI'$&$PDQ\\RXQJSHRSOHDUHQRZWKUXVWLQWRWKHSUHFDULRXV SRVLWLRQRIFRQVLGHULQJZKHWKHUDFFHVVLQJPHGLFDOFDUHUHSRUWLQJFULPHVJRLQJWRVFKRRORU HQUROOLQJLQVRFLDOVHUYLFHVFRXOGQHJDWLYHO\DIIHFWWKHLUDELOLW\WRUHPDLQLQWKH8QLWHG6WDWHV $QGIRUWKHLPPLJUDQWFRPPXQLW\DWODUJHWKHUHVFLVVLRQRI'$&$KDVRQO\ZRUVHQHGDQ[LHW\ LQDQHUDDOUHDG\IUDXJKWZLWKXQFHUWDLQW\DQGIHDU
% :KHQ,PPLJUDQWV$UH$IUDLGWR$FFHVV6HUYLFHV3XEOLF+HDOWK6DIHW\DQG &RPPXQLW\(FRQRPLF,QWHUHVWV$UH1HJDWLYHO\,PSDFWHG
:KHQLQGLYLGXDOVDUHWRRVFDUHGWRVHHNHVVHQWLDOVHUYLFHVIRUIHDURIGHSRUWDWLRQWKH ULVNVIRULQGLYLGXDODQGSXEOLFKHDOWKVDIHW\LQFUHDVHVLJQLILFDQWO\,QGHHGWKH³DGPLQLVWUDWLRQ¶V DFWLRQVDQGGLUHFWLYHVRVWHQVLEO\WDUJHWWKHPLOOLRQXQDXWKRUL]HGLPPLJUDQWVZKROLYHLQWKH 8QLWHG6WDWHVEXWWKH\will also harm millions of American citizens all across the country who





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 25 of 27

live and work beside these immigrants every day´/RZUH\Trump’s anti-immigrant policies HPSKDVLVDGGHG
&RQVLGHUDEOHULVNVWRLQGLYLGXDODQGSXEOLFKHDOWKDUHDVVRFLDWHGZLWKWKHFRPPXQLW\¶V DQ[LHW\DERXWDFFHVVLQJKHDOWKFDUH:KHQLQGLYLGXDOVGRQRWVHHNSUHYHQWLYHFDUHLQFOXGLQJ YDFFLQHVILOOYLWDOSUHVFULSWLRQVRUFDUHIRUDFXWHFRQGLWLRQVXQWLOWKH\H[SHULHQFHDQ HPHUJHQF\ERWKWKHULVNRISXEOLFKHDOWKFULVHVDQGWKHSULFHRIKHDOWKFDUHFDQULVH ³8OWLPDWHO\NHHSLQJXQGRFXPHQWHGLPPLJUDQWVIURPJHWWLQJQHFHVVDU\KHDOWKFDUHLVEDGIRU HYHU\RQH+HDOWKFDUHLVPRUHH[SHQVLYHZKHQSHRSOHFDQ¶WJHWLWXQWLOWKH\¶UHYHU\VLFN $QGODFNRIKHDOWKFDUHLQFUHDVHVWKHULVNRIFKURQLFLOOQHVVZKLFKFDQPDNHSHRSOHXQDEOHWR ZRUNRUEHDFWLYHLQWKHLUFRPPXQLWLHV´1RUWKDACA helped get health care; see also -XOLDQQH =XEHU+HDOWKFDUHIRUWKH8QGRFXPHQWHGSolving a Public Health Crisis in the U.S.- &217(03+($/7+/ 32/,&<³3ODFLQJEDUULHUVWRDFFHVVLQJUHJXODUKHDOWK FDUHIRUXQGRFXPHQWHGLPPLJUDQWVWKUHDWHQ>V@FRPPXQLW\UHVLOLHQFHEHFDXVHWKRVHZLWKSUH H[LVWLQJKHDOWKFRQGLWLRQVDUHPRUHYXOQHUDEOHWRVHYHUHHIIHFWVIURPDGLVHDVHRXWEUHDNRU SXEOLFKHDOWKHPHUJHQF\´.0RUHRYHUDQ[LHW\DQGIHDURIWKHFRQVHTXHQFHVRIEHLQJ XQGRFXPHQWHGLQFOXGLQJGHSRUWDWLRQDQGODFNRIIXWXUHDFFHVVWRKHDOWKFDUHFRXOGOHDGWRDFXWH PHQWDOKHDOWKFRQFHUQVSee 'DYLG%HFHUUDet al.Fear vs. Facts: Examining the Economic Impact of Undocumented Immigrants in the U.S-62& 62&:(/)$5( /HLV\-$EUHJRLegal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims-Making for First- and 1.5-Generation Immigrants/$: 62&
<5(9 ULVNRISHUPDQHQWDQ[LHW\IRUXQGRFXPHQWHGLPPLJUDQWV
7KHSXEOLF¶VVDIHW\LVDOVRSXWDWULVN:KHQYLFWLPVRIDQGZLWQHVVHVWRFULPHDUHDIUDLG WRDSSURDFKODZHQIRUFHPHQWFULPHJRHVXQGHUUHSRUWHGSee 6XVDQD0DUWLQH]DQG6KHLOD





Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 26 of 27

1HYLOOHHelp for Undocumented Victims of Crime&/($5,1*+286(5(9 7KHUHOXFWDQFHWRUHSRUWFULPHLVGDQJHURXVQRWRQO\WRXQGRFXPHQWHGLPPLJUDQWYLFWLPVEXWWR VRFLHW\DVDZKROHSee %LOO2QJ+LQJ Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy 8&,59,1(/5(9 QRWLQJWKDWWKHHQWLUHFRPPXQLW\LVVDIHUZKHQWKHLPPLJUDQWFRPPXQLW\WUXVWVODZ HQIRUFHPHQW³:KHQWKHFRPPXQLW\DQGODZHQIRUFHPHQWDUHQRWHQJDJHGZHPLVV RSSRUWXQLWLHVWRLQWHUUXSWFXUUHQWDQGIXWXUHYLROHQFH$VDUHVXOWHYHU\RQH¶VSXEOLFVDIHW\LVSXW DWULVN´'HEUD-5REELQWhen Undocumented Immigrants Don’t Report Crime, We All Suffer :%856HSW
7KHGHFLVLRQWRUHVFLQG'$&$KDVLQFUHDVHGIHDULQWKHLPPLJUDQWFRPPXQLW\DQGDGGHG WKRXVDQGVRI\RXQJSHRSOHWRWKHJURXSRISHRSOHDIUDLGRIGHSRUWDWLRQ7KHUHVXOWLQJUHGXFWLRQ LQXVHRISXEOLFKHDOWKVDIHW\HGXFDWLRQDODQGVRFLDOVHUYLFHVLVKDUPIXOWRWKHSXEOLFLQWHUHVW
&21&/86,21 7KHUHVFLVVLRQRI'$&$LUUHSDUDEO\KDUPV'$&$UHFLSLHQWVE\GHSULYLQJWKHPRIWKHLU RQO\UHDORSSRUWXQLW\WRSXUVXHWKH$PHULFDQ'UHDP,WDOVRLQVWLOOVDIHDUDPRQJ'$&$ UHFLSLHQWVDQGDOOLPPLJUDQWVDOLNHWKDWLVKDUPIXOWR$PHULFDQVRFLHW\DVDZKROH2QEHKDOIRI WKHLUFOLHQWVDQGWKHFRPPXQLWLHVWKH\VHUYHamici curiaeXUJHWKLV&RXUWWRLVVXHDGHFODUDWRU\ MXGJPHQWWKDWWKH5HVFLVVLRQ0HPRUDQGXPLVXQODZIXODQGXQFRQVWLWXWLRQDODQGWRJUDQWD QDWLRQZLGHLQMXQFWLRQLQRUGHUWRSUHYHQWIXUWKHUKDUPDQGGDPDJHWRWKHSXEOLFLQWHUHVW 

 Available atKWWSZZZZEXURUJFRJQRVFHQWLXQGRFXPHQWHGLPPLJUDQWVUHSRUW FULPHVGHEUDMUREELQ




Case 1:17-cv-02325-CRC Document 32 Filed 12/19/17 Page 27 of 27

 'DWHG'HFHPEHU 

 &22/(<//3  5HVSHFWIXOO\VXEPLWWHG

/s/ Joshua M. Siegel  -RVKXD06LHJHO'&%DU1R &22/(<//3 3HQQV\OYDQLD$YHQXH1:6XLWH :DVKLQJWRQ'& 7HOHSKRQH  )DFVLPLOH   0DXUHHQ3$OJHU&DO%DU1R 0RQLTXH56KHUPDQ&DO%DU1R .DUD&:LOVRQ&DO%DU1R -RDQ5/L&DO%DU1R &22/(<//3 +DQRYHU6WUHHW 3DOR$OWR&$ 7HOHSKRQH  )DFVLPLOH 
$WWRUQH\VIRUAmici Curiae    




 
 Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
THE TRUSTEES OF PRINCETON UNIVERSITY,

MICROSOFT CORPORATION, MARIA DE LA CRUZ PERALES SANCHEZ,

Civil Action No. 17-cv-02325 (CRC)

Plaintiffs,

v.

UNITED STATES OF AMERICA,

U.S. DEPARTMENT OF HOMELAND SECURITY,

and

ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security,

Defendants.

AMICI CURIAE BRIEF OF INSTITUTIONS OF HIGHER EDUCATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND/OR PRELIMINARY
INJUNCTION

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 2 of 24
CORPORATE DISCLOSURE CERTIFICATION Pursuant to Federal Rule of Civil Procedure 7.1 and Local Civil Rule 7.1, I., Bruce V. Spiva, the undersigned counsel of record for the institutions of higher education listed on page one of this brief, certify that, to the best of my knowledge and belief, none of the institutions of higher education have any parent companies or subsidiaries, nor does any company own 10% or more of their stock.

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 3 of 24
TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................................ii I. INTRODUCTION .................................................................................................................1 II. ARGUMENT.........................................................................................................................3
A. DACA Has Allowed Tens of Thousands of Previously Undocumented Youth To Pursue Higher Education...........................................................................3
B. DACA Students Contribute Immeasurably to Our Campuses...................................6 1. DACA Students Have Had Great Academic and Extra-Curricular Success At Our Schools. ................................................................................7 2. DACA Students Contribute to Campus Diversity, A Key Component of the Educational Experience..................................................11
C. The Rescission of DACA Will Harm American Colleges and Universities. ..........13 III. CONCLUSION....................................................................................................................15
i

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 4 of 24 TABLE OF AUTHORITIES
CASES
Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013).............................................................................................................11
Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016).............................................................................................................12
Grutter v. Bollinger, 539 U.S. 306 (2003).................................................................................................................11
STATUTES
Ala. Code § 31-13-8.........................................................................................................................4
S.C. Code Ann. § 59-101-430..........................................................................................................4
OTHER AUTHORITIES
America’s Voice Online (Oct. 3, 2017), https://americasvoice.org/blog/namedenisse-rojas-marquez-28-years-old-old-proud-undocumented-american-soondoctor/ ....................................................................................................................................7, 8
American Dreamers: Alfredo Avila, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/alfredo-avila ..................................10
American Dreamers: Anayancy Ramos, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/anayancy-ramos ..........................7, 9
American Dreamers: Belsy Garcia, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/belsy-garcia (last visited Dec. 13, 2017) ................................................................................................................8
American Dreamers: Brisa E. Ramirez, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/brisae-ramirez .................................8
American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times, https://www. nytimes.com/interactive/projects/storywall/american-dreamers/stories/carlosadolfo-gonzalez-sierra............................................................................................................7, 9
American Dreamers: Denisse Rojas Marquez, 2016, N.Y. Times, https://www. pdsoros. org/meet-the-fellows/denisse-rojas-marquez ..............................................................7
American Dreamers: Eduardo Solis, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/eduardo-solis ...................................9
American Dreamers: Gargi Y. Purohit, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/gargiy-purohit .................................7
ii

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 5 of 24
TABLE OF AUTHORITIES (CONTINUED)
American Dreamers: Isabelle Muhlbauer, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/isabelle-muhlbauer..........................8
American Dreamers: Jin Park, N.Y. Times, https://www.nytimes.com/interactive/ projects/storywall/ american-dreamers/stories/jin-park.............................................................8
American Dreamers: Julia Verzbickis, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/julia-verzbickis................................8
American Dreamers: Kok-Leong Seow, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/kok-leong-seow...............................7
American Dreamers: Nancy A., N.Y. Times, https://www.nytimes.com/interactive /projects/storywall/american-dreamers/stories/nancy-a...........................................................10
Approximate Active DACA Recipients: Country of Birth, USCIS (Sept. 4, 2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and% 20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/da ca_population_data.pdf ............................................................................................................13
Association of Vermont Independent Colleges, Statement on the Revocation of the Deferred Action for Childhood Arrivals (DACA) Program, http://www. vermonticolleges.org/Documents/DACA Final2017.pdf ..........................................................7
Caitlin Patler & Jorge A. Cabrera, From Undocumented to DACAmented: Impacts of the Deferred Action for Childhood Arrivals (DACA) Program Three Years Following its Announcement at 15 (June 2015), ucla.edu/files/Patler_DACA _Report_ 061515.pdf .........................................................................................................3, 4, 5
DACA Announcement, David W. Leebron, President, Rice University (Sept. 5, 2017), https://president.rice.edu/presidents-office/remarks /DACAannouncement ............................................................................................................................6
Eleanor J. Bader, As End of DACA Looms, Colleges and Organizers Ramp Up Efforts to Protect Undocumented Students, NACLA (Jan. 27, 2017), https://nacla.org/ news /2017/01/27/end-daca-looms-colleges-and-organizersramp-efforts-protect-undocumented-students ..........................................................................15
Immigration Policy Ctr., The DREAM Act: Creating Opportunities for Immigrant Students and Supporting the U.S. Economy (November 18, 2010), http://www. mygreencard.com/downloads.php?file=Dream_Act_January 2011.pdf ...................................2
Inst. for Immigration, Globalization, & Educ., In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform 1 (2015), http://www.undocuscholars.org/assets/undocuscholars report2015.pdf......................................................................................................................2, 10
iii

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 6 of 24 TABLE OF AUTHORITIES (CONTINUED)
Jerome Dineen, If Trump Ends DACA, here’s how many students could be affected, USA Today College (Feb. 8, 2017), http://college.usatoday.com/ 2017/02/08/if-trump-ends-daca-heres-how-many-students-could-be-affected/ ......................13
Jose Herrerra, DACA student leads by example, Los Angeles Pierce College Roundup (Sept. 13, 2017), http://theroundupnews.com/2017/09/13/dacastudent-leads-example/ ..............................................................................................................7
Letter from Adam Falk, President, Williams, to the Williams Community, https://president.williams.edu/writings/caring-for-our-undocumented-students/......................6
Letter from Andrew D. Hamilton, New York University, to Donald J. Trump, President (Sept. 1, 2017), http://www.nyu.edu/content/dam/nyu/ president/ documents/09-01-17-daca-letter.pdf ..........................................................................................6
Letter from Biddy Martin, Amherst College, to Donald J. Trump, President (Aug. 30, 2017), https://www.amherst.edu/amherst- story/president/statements/ node/689036...............................................................................................................................6
Letter from Drew Gilpin Faust, Harvard, to Donald J. Trump, President (Aug. 28, 2017), https://www.harvard.edu/president/news/2017/letter-to-presidenttrump-regarding-daca.................................................................................................................6
Letter from Lee Pelton, President, Emerson College, to Emerson Community (Sept. 6, 2017) http://www. emerson.edu/news-events/emerson-collegetoday/pelton-reaffirms-support-emerson-daca-students#.WjGdAHlrxtQ .................................6
Letter from Ron Liebowitz, President, Brandeis University, to Donald J. Trump, President (Sept. 5, 2017), https://www.brandeis.edu/president/letters/2017-0905.html .......................................................................................................................................6
Letter from Vincent E. Price, President Duke University, to Donald J. Trump, President (Aug. 30, 2017), https://today.duke.edu/2017/08/duke-universityletter-support-daca .....................................................................................................................6
Middlebury College, Diversity and Inclusion, http://www.middlebury.edu/ student-life/community-living/diversity-inclusivity ................................................................12
Mission & Diversity Statements, Brandeis University, http://www.brandeis.edu /about/ mission.html.................................................................................................................12
iv

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 7 of 24
TABLE OF AUTHORITIES (CONTINUED)
Monica Scott, Undocumented: One immigrant’s story of life under DACA, MLive (Aug. 29, 2017, updated Sept. 4, 2017), http://www.mlive. com/news/grand-rapids/index.ssf /2017/08/one_daca_students_ story_ about.html ..................................................................................................................................7
Penny Schwartz, A Jewish ‘Dreamer’ is scared, but refuses to despair, Jewish Telegraphic Agency (Sept. 6, 2017), https://www.jta.org/2017/09/06/newsopinion/united-states/a-jewish-dreamer-is-scared-but-refuses-to-despair.............................8, 9
Pomona College: Statement in Support of the Deferred Action for Childhood Arrivals (DACA) Program and Our Undocumented Students, (November 21, 2016), https:// www.pomona.edu/news/2016/11/21- college-universitypresidents-call-us-uphold-and-continue-daca ............................................................................6
President Herbst Responds to DACA Decision (Sept. 5, 2017), https://today. uconn.edu/2017 /09/president-herbst-responds-daca-decision/.................................................6
Resolutions of the Board of Governors, California Community Colleges, Nos. 2017-04 (Sept. 18, 2017) & 2017-01 (Jan. 18, 2017) http://extranet.cccco. edu/Portals/1/ExecutiveOffice/Board/2017_agendas/September/2.2Resolution-DACA-Attachment.pdf & http://extranet.cccco.edu/Portals/ 1/ExecutiveOffice /Board/2017_agendas/January/Item-2.3-AttachmentREVISED-Resolution.pdf; UConn Today.................................................................................6
Rice University, Statement of Office of Diversity and Inclusion, http://diversity. rice. edu/...................................................................................................................................12
Statement of Kathleen McCartney Responding to President Trump’s DACA Decision, President, Smith College, to Students, Staff and Faculty (Sept. 5, 2017), https://www.smith.edu/ president-kathleen-mccartney/letters//201718/responding-to-daca-decision .................................................................................................6
Statement on DACA from President, University of Michigan, Mark Schlissel (Sept. 3, 2017), https://president.umich.edu/news- communications/ statements/statement-on-daca-from-president-mark-schlissel/.................................................6
Tom K. Wong, 2017 National DACA Study, https://cdn.americanprogress.org/ content /uploads/2017/08/27164928/Wong-Et-Al-New-DACASurvey- 2017Codebook.pdf.............................................................................................................................5
Turning Ideals Into Action, Letter of Joseph E. Aoun, President, Northeastern University, to all members of the Northeastern Community (Sept. 4, 2017), http://www.northeastern.edu/president/2017/09/04/turning-ideals-into-action/........................6
Vision, Mission, & Equity, Folsom Lake College, http://www.flc.losrios.edu /about-us/vision-mission-and-equity........................................................................................12
v

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 8 of 24 TABLE OF AUTHORITIES (CONTINUED)
Zenén Jaimes Pérez, Center for American Progress, How DACA Has Improved the Lives of Undocumented Young People, at 5 (Nov. 19, 2014), https://cdn. americanprogress.org/ wpcontent/uploads/2014/11/Benefits OfDACABrief2.pdf ...................................................................................................................4
vi

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 9 of 24
I. INTRODUCTION Amici are institutions of higher education from across the country: Amherst College, Asnuntuck Community College, Bowdoin College, Brandeis University, Bucknell University, Capital Community College, Carnegie Mellon University, Case Western Reserve University, Central Connecticut State University, Charter Oak State College, Colby College, University of Connecticut, Eastern Connecticut State University, Emerson College, Gateway Community College, Hampshire College, Housatonic Community College, Lawrence University, Los Rios Community College District, Manchester Community College, University of Maryland, College Park, University of Michigan, Middlesex Community College, Mount Holyoke College, Naugatuck Valley Community College, Northeastern University, Northwestern Community College, Norwalk Community College, Quinebaug Valley Community College, Rice University, San Francisco Community College District, Smith College, Southern Connecticut State University, Three Rivers Community College, Tufts University, Tunxis Community College, Wellesley College, Western Connecticut State University, Worcester Polytechnic Institute, and Williams College. American institutions of higher education benefit profoundly from the presence of immigrant students on our campuses. Whether they attend large public universities, private research universities and liberal arts colleges, or community colleges, these students contribute a perspective and experience that is unique and important. That is especially true of Dreamers— that is, undocumented young people who were brought to the United States as children. Through no choice of their own, Dreamers were raised and educated in this country as Americans. They have worked and studied in American schools; have prepared and trained for all manner of careers; and have strived to innovate, achieve, and serve their communities. Yet, until the government announced the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, they lived under the threat that the government might one day come calling, to remove them from the country that has become their home. Though they might have dreamed of bright
1

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 10 of 24
futures, for many their undocumented status stood as an impenetrable roadblock to one of the most fundamental tools for a successful future: college. Of the 65,000 undocumented youth who graduate from U.S. high schools each year, historically only approximately 5 to 10 percent were able to enroll in college.1
DACA changed all of this and has provided up to 2 million Dreamers with an opportunity to apply for temporary protection from removal, an opportunity to pursue their education, and the authorization to work legally. To qualify for DACA, Dreamers are required to meet strict conditions, including having completed high school or a GED in the United States, or being currently enrolled in school. In addition, Dreamers are required to pay a significant application fee and provide detailed personal information to the government—a significant request given the hesitancy of undocumented persons to have any interaction with the government whatsoever. But the students who have signed up and placed their trust in the government received, in exchange, the opportunity to pursue higher education. They have done so in unprecedented numbers.
On September 5, 2017, Defendants announced they were rescinding DACA. This misguided, arbitrary and capricious decision will harm millions of remarkable young people. But, critically, it will also harm the country, which will be deprived of the many contributions Dreamers would otherwise be able to make. Amici collectively have educated thousands of DACA beneficiaries, and we have benefited from their talents and the passion they bring to our campuses. Even those amici who have no DACA beneficiaries currently on campus view DACA as core to their educational missions. In this brief, we explain how we will be harmed if Defendants’ action is not reversed and, for that reason, amici support Plaintiffs and respectfully
1 Inst. for Immigration, Globalization, & Educ., In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform 1 (2015), http://www.undocuscholars.org/assets/undocuscholarsreport2015.pdf; Immigration Policy Ctr., The DREAM Act: Creating Opportunities for Immigrant Students and Supporting the U.S. Economy (November 18, 2010), http://www.mygreencard.com/downloads.php?file=Dream _Act_January2011.pdf.
2

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 11 of 24
urge the Court to grant Plaintiffs’ motion for summary judgment and/or preliminary injunction.2
II. ARGUMENT A. DACA Has Allowed Tens of Thousands of Previously Undocumented Youth To
Pursue Higher Education.
DACA has enabled previously undocumented students to pursue higher education in several important ways.
First, in order to qualify for deferred action under DACA, an applicant must generally obtain a high school diploma or GED certificate. The possibility of securing deferred action provides a powerful incentive for students to stay in school, increasing the likelihood that they will pursue postsecondary education, and become taxpayers and significant contributors to our society.
Second, prior to DACA, undocumented students felt the need to hide their status from others, which constrained their access to academic resources and their desire to apply to college.3 Not surprisingly, undocumented students who felt the need to hide their status from school personnel or peers during high school are significantly less likely even to think college is a possibility.4
Third, DACA enables students to secure social security numbers and photo identification. Something as simple as flying on an airplane was previously all but impossible for
2 Jenner & Block LLP, counsel for Plaintiffs in this case, has submitted a substantially similar version of this brief on behalf of similarly situated or the same amici in other cases. No party or party’s counsel nor any other person other than amici have contributed money intended to fund preparing or submitting this brief, which is being prepared on a pro bono basis by counsel for the amici.
3 Caitlin Patler & Jorge A. Cabrera, From Undocumented to DACAmented: Impacts of the Deferred Action for Childhood Arrivals (DACA) Program Three Years Following its Announcement at 15 (June 2015), http://www.chicano.ucla.edu/files/Patler_DACA_Report_ 061515.pdf.
4 Id. at 16.
3

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 12 of 24
undocumented youth. With DACA, they can fly across the country to visit campuses, attend school and academic conferences, and even obtain authorization to study abroad. Likewise, with a social security number, they can apply for financial aid and fee waivers that were previously unobtainable and secure credit to fund other education-related expenses. Given that DACA students come from families whose parents lack legal status—and thus frequently are unable to secure high-paying jobs—the availability of financial aid is all the more crucial to their ability to attend college or university.
Fourth, DACA enables students to secure work authorization. With the ability to work part-time jobs and participate in work-study programs, undocumented students can better afford school—something previously made difficult or impossible by the inability to work lawfully.5 Likewise, the ability to secure a legitimate job following graduation from college provides a powerful incentive to pursue a college education; and the inability to secure such a job likewise dissuades promising students from pursuing higher education. DACA thus increases the value of higher education itself for undocumented students.
Fifth, DACA has enabled students to overcome state laws that impede their ability to pursue higher education. For example, DACA recipients may enroll in public colleges and universities in states where they would otherwise be barred from attending,6 and may apply for in-state tuition in others, making it far easier for them to afford a college education.7 Sixth, DACA enables students to envision a future for themselves in this country, providing the
5 See Zenén Jaimes Pérez, Center for American Progress, How DACA Has Improved the Lives of Undocumented Young People, at 5 (Nov. 19, 2014), https://cdn.americanprogress.org/ wpcontent/ uploads/2014/11/BenefitsOfDACABrief2.pdf; Patler, supra, at 18.
6 See, e.g., Ala. Code § 31-13-8; S.C. Code Ann. § 59-101-430. 7 See Pérez, supra, at 4.
4

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 13 of 24
incentive to pursue a degree, develop skills and expertise, and invest in their future here. Finally, because of DACA, amici have made extensive investments in the education of
DACA beneficiaries, facilitating their access to higher education like never before. Among other things, amici have provided DACA students with financial aid, housing benefits, counseling, faculty time and attention, and graduate and research assistant positions, all in reliance on the DACA program. Some amici even provide legal services. Amici made these investments with the expectation that those students would be able to pursue their education and career in this country, in furtherance of amici’s educational missions, and the public interest.
DACA has accomplished what it was intended to do: In a 2017 survey of more than 3,000 DACA recipients, 45% are currently in school.8 And, among those who are in school, 94% said that, because of DACA, they “[p]ursued educational opportunities that I previously could not.”9 In a different study, nearly four-fifths of DACA recipients (78%) reported that DACA made it easier to pay for school.10 Three-quarters of current students said DACA made it easier to attend school and to stay in school.11 These studies and amici’s experience confirm what should be obvious: once young people are able to come out of the shadows and avail themselves of programs available to countless other American youth, they seize and benefit from the opportunity. But, while Dreamers and their families have benefited greatly from the DACA program, colleges and universities have benefited as well.
8 Tom K. Wong, 2017 National DACA Study, https://cdn.americanprogress.org/content /uploads/2017/08/27164928/Wong-Et-Al-New-DACASurvey- 2017-Codebook.pdf.
9 Id. at 7. 10 Patler, supra, at 5 or 18. 11 Id. at 18.
5

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 14 of 24
B. DACA Students Contribute Immeasurably to Our Campuses.
American colleges and universities have benefited immeasurably from DACA. As
amicus Amherst’s President, Biddy Martin, wrote in a letter to the President, “[o]ur classrooms
at Amherst are enriched by the academic talent, hard work, and perspectives of DACA students
who go on to become doctors, teachers, engineers, and artists.”12 And President Martin is far
from alone. Hundreds of other university presidents have echoed those sentiments, issuing public
statements on DACA’s importance to American colleges and universities.13
12 Letter from Biddy Martin, Amherst College, to Donald J. Trump, President (Aug. 30, 2017), https://www.amherst.edu/amherst-story/president/statements/node/689036.
13 See Pomona College: Statement in Support of the Deferred Action for Childhood Arrivals (DACA) Program and Our Undocumented Students, (November 21, 2016), https:// www.pomona.edu/news/2016/11/21- college-university-presidents-call-us-uphold-and-continuedaca (letter opposing the nonrenewal of DACA signed by over 700 university and college presidents and chancellors); see also, e.g., Letter from Andrew D. Hamilton, New York University, to Donald J. Trump, President (Sept. 1, 2017), http://www.nyu.edu/content/dam/nyu/ president/documents/09-01-17-daca-letter.pdf; Letter from Vincent E. Price, President Duke University, to Donald J. Trump, President (Aug. 30, 2017), https://today.duke.edu/2017/08/dukeuniversity-letter-support-daca; Letter from Drew Gilpin Faust, Harvard, to Donald J. Trump, President (Aug. 28, 2017), https://www.harvard.edu/president/news/2017/letter-to-presidenttrump-regarding-daca; Letter from Ron Liebowitz, President, Brandeis University, to Donald J. Trump, President (Sept. 5, 2017), https://www.brandeis.edu/president/letters/2017-09-05.html; Statement on DACA from President, University of Michigan, Mark Schlissel (Sept. 3, 2017), https://president.umich.edu/news-communications/statements/statement-on-daca-from-presidentmark-schlissel/; Letter from Adam Falk, President, Williams, to the Williams Community, https://president.williams.edu/writings/caring-for-our-undocumented-students/ (last visited Dec. 13, 2017); Statement of Kathleen McCartney Responding to President Trump’s DACA Decision, President, Smith College, to Students, Staff and Faculty (Sept. 5, 2017), https://www.smith.edu/ president-kathleen-mccartney/letters//2017-18/responding-to-daca-decision; Letter from Lee Pelton, President, Emerson College, to Emerson Community (Sept. 6, 2017) http://www. emerson.edu/news-events/emerson-college-today/pelton-reaffirms-support-emerson-dacastudents#.WjGdAHlrxtQ; Resolutions of the Board of Governors, California Community Colleges, Nos. 2017-04 (Sept. 18, 2017) & 2017-01 (Jan. 18, 2017) http://extranet.cccco. edu/Portals/1/ExecutiveOffice/Board/2017_agendas/September/2.2-Resolution-DACAAttachment.pdf & http://extranet.cccco.edu/Portals/1/ExecutiveOffice/Board/2017_agendas/ January/Item-2.3-Attachment-REVISED-Resolution.pdf; UConn Today, President Herbst Responds to DACA Decision (Sept. 5, 2017), https://today.uconn.edu/2017/09/president-herbst-
(footnote continued)
6

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 15 of 24
1. DACA Students Have Had Great Academic and Extra-Curricular Success At Our Schools.
Dreamers are invaluable members of our academic communities. DACA recipients serve
as the president14 and vice-president15 of student government, publish research in top academic
journals,16 innovate and apply for patents,17 earn inclusion on the Dean’s List18 and graduate
summa cum laude,19 and serve as tutors and research assistants.20 They have won Soros
Fellowships21 and been named Gates Cambridge Scholars and Schwarzman Scholars.22 They
responds-daca-decision/; DACA Announcement, David W. Leebron, President, Rice University (Sept. 5, 2017), https://president.rice.edu/presidents-office/remarks/DACA-announcement; Turning Ideals Into Action, Letter of Joseph E. Aoun, President, Northeastern University, to all members of the Northeastern Community (Sept. 4, 2017), http://www.northeastern.edu/ president/2017/09/04/turning-ideals-into-action/; Association of Vermont Independent Colleges, Statement on the Revocation of the Deferred Action for Childhood Arrivals (DACA) Program, http://www.vermonticolleges.org/Documents/DACAFinal2017.pdf.
14 See Jose Herrerra, DACA student leads by example, Los Angeles Pierce College Roundup (Sept. 13, 2017), http://theroundupnews.com/2017/09/13/daca-student-leads-example/.
15 Monica Scott, Undocumented: One immigrant’s story of life under DACA, MLive (Aug. 29, 2017, updated Sept. 4, 2017), http://www.mlive.com/news/grand-rapids/index.ssf /2017/08/one_daca_students_story_about.html.
16 America’s Voice Online (Oct. 3, 2017), https://americasvoice.org/blog/name-denisserojas-marquez-28-years-old-old-proud-undocumented-american-soon-doctor/.
17 American Dreamers: Kok-Leong Seow, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/kok-leong-seow (last visited Dec. 13, 2017).
18 E.g., American Dreamers: Anayancy Ramos, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/anayancy-ramos (last visited Dec. 13, 2017).
19 American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times, https://www. nytimes.com/interactive/projects/storywall/american-dreamers/stories/carlos-adolfo-gonzalezsierra (last visited Dec. 13, 2017).
20 E.g., American Dreamers: Gargi Y. Purohit, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/gargiy-purohit (last visited Dec. 13, 2017).
21 American Dreamers: Denisse Rojas Marquez, 2016, N.Y. Times, https://www.pdsoros.
(footnote continued)
7

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 16 of 24
have graduated with honors and received admission to serve others in the Team for America23
and AmeriCorps VISTA24 programs. They have founded national organizations to assist other
undocumented youth.25 They have pursued careers in a wide variety of fields, including health
care26 and service to low-income veterans.27 The following are but a few examples of current
and past DACA students at amici and other institutions of higher education who are brave
enough to share their stories, and whose remarkable achievements serve as a reminder of why
DACA benefits both students and the institutions lucky enough to have them:
x Elias Rosenfeld, now a sophomore at Brandeis University, was brought to the United States at age 6 from Venezuela by his mother who was a media executive and came on an L1 visa. His mother died when he was in fifth grade, and it was only in high school when
org/meet-the-fellows/denisse-rojas-marquez (last visited Dec. 13, 2017). 22 American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times, https://www.
nytimes.com/interactive/projects/storywall/american-dreamers/stories/carlos-adolfo-gonzalezsierra (last visited Dec. 13, 2017).
23 American Dreamers: Julia Verzbickis, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/julia-verzbickis (last visited Dec. 13, 2017).
24 American Dreamers: Brisa E. Ramirez, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/brisae-ramirez (last visited Dec. 13, 2017).
25 America’s Voice (Oct. 3, 2017), https://americasvoice.org/blog/name-denisse-rojasmarquez-28-years-old-old-proud-undocumented-american-soon-doctor; see also American Dreamers: Jin Park, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/ american-dreamers/stories/jin-park (last visited Dec. 13, 2017); Penny Schwartz, A Jewish ‘Dreamer’ is scared, but refuses to despair, Jewish Telegraphic Agency (Sept. 6, 2017), https://www.jta.org/2017/09/06/news-opinion/united-states/a-jewish-dreamer-is-scared-butrefuses-to-despair.
26 America’s Voice (Oct. 3, 2017), https://americasvoice.org/blog/name-denisse-rojasmarquez-28-years-old-old-proud-undocumented-american-soon-doctor/; American Dreamers: Belsy Garcia, N.Y. Times, https://www.nytimes.com/interactive/projects/storywall/americandreamers/stories/belsy-garcia (last visited Dec. 13, 2017).
27 American Dreamers: Isabelle Muhlbauer, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/isabelle-muhlbauer (last visited Dec. 13, 2017).
8

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 17 of 24
he tried to apply for a driver’s license that he learned he was undocumented because his mother’s death voided her (and his) visas. Elias excelled in high school, completing 13 AP classes and ranking in the top 10% of his class. At Brandeis he is studying political science, sociology and law. When asked what America means to him, he responded: “It means my country. It’s my home. There’s a connection. I want to contribute.”28
x Anayancy Ramos is a student at Eastern Connecticut State University who will graduate with a double major in Biology and Computer Science and a minor in Bioinformatics. Before matriculating at ECSU, she attended a community college where she was a Dean’s List scholar, was inducted into the Phi Theta Kappa honor society, was the president of the Alpha Beta Gamma chapter, and worked full time at an animal hospital. She notes that through DACA she’s been able to achieve an education and a future she never thought possible, but that those dreams will die if DACA forces her to retreat once more into the shadows.29
x Carlos Adolfo Gonzalez Sierra came to the United States from the Dominican Republic when he was eleven. Carlos graduated summa cum laude from Amherst and studied as a Gates Scholar at Cambridge University and a Schwarzman Scholar in China. Carlos emphasizes that his desire to stay is not economic: “The United States is my home. It is where I feel the most comfortable.” Moreover, given the education he’s received, he expresses an “inconsolable desire to contribute to the country that has given me so much.”30
x Eduardo Solis was brought to the United States when he was 1-month old from Mexico. He is a student at UCLA, aspiring to major in either psychology or sociology. At the age of 11 he founded a blog to help fellow children deal with bullying. He has gained over 30,000 followers, from all over the world, and has won awards recognizing his role as a teen activist. Although worried about the end of DACA, Eduardo says that “[f]or now, I will continue on pledging allegiance to the only flag I know and love; the American Flag.”31
28 See Penny Schwartz, A Jewish ‘Dreamer’ is scared, but refuses to despair, Jewish Telegraphic Agency (Sept. 6, 2017), https://www.jta.org/2017/09/06/news-opinion/unitedstates/a-jewish-dreamer-is-scared-but-refuses-to-despair.
29 See American Dreamers: Anayancy Ramos, N.Y. Times, https://www.nytimes.com /interactive/projects/storywall/american-dreamers/stories/anayancy-ramos (last visited Dec. 13, 2017). Amicus Eastern Connecticut State University has provided updated details about Ramos’s course of study, with her consent.
30 See American Dreamers: Carlos Adolfo Gonzalez Sierra, N.Y. Times, https://www. nytimes.com/interactive/projects/storywall/american-dreamers/stories/carlos-adolfo-gonzalezsierra (last visited Dec. 13, 2017).
31 See American Dreamers: Eduardo Solis, N.Y. Times, https://www.nytimes.com/ interactive/projects/storywall/american-dreamers/stories/eduardo-solis (last visited Dec. 13,
(footnote continued)
9

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 18 of 24
x Nancy A. was brought to the United States from Togo as a child. When she entered high school at 13 she realized she was undocumented and, shortly thereafter, both she and her parents were put in deportation proceedings. Despite being in these proceedings, she graduated as the valedictorian of her high school class and then became the youngest graduate of her masters programs. She is currently due to graduate with her Doctorate at age 27 and is a professor of Political Science and Education at a university and community college. She describes receiving DACA at age 23 as being “finally forgiven for a sin I had no control over when I was a child.”32
x Alfredo Avila was brought to the U.S. when he was just a child, and despite neither of his parents being able to speak English, they managed to send Alfredo and his siblings to school where they all learned English. Despite having to move around a number of times out of a fear of deportation, Alfredo excelled in school and is now a student in the Honors College at the University of Texas at San Antonio, majoring in Electrical Engineering. Alfredo works part-time as a math and science tutor and is involved with many student organizations, including serving as the President of the professional engineering student organization. His dream is to one day build and manage his own technology company that thrives off diversity and inclusion.33
The success of DACA students in college and university should come as no surprise.
These students have overcome innumerable hardships simply to be able to apply and enroll in an
institute of higher education. For many of our students (whether U.S. citizens or from other
countries), matriculation in college or university is a natural progression after attending high
school and taking standardized tests. But this is not the case for DACA students. Those students
must perform well in school and on tests while at the same time living under the constant threat
that they and their families may be deported. Moreover, until DACA these students could not get
work authorization, and most of their parents still cannot.34 Thus, DACA students frequently
2017). 32 See American Dreamers: Nancy A., N.Y. Times, https://www.nytimes.com/interactive
/projects/storywall/american-dreamers/stories/nancy-a (last visited Oct. 29, 2017) 33 See American Dreamers: Alfredo Avila, N.Y. Times, https://www.nytimes.com/
interactive/projects/storywall/american-dreamers/stories/alfredo-avila (last visited Dec. 13, 2017).
34 Most DACA students are raised in households with incomes well below the federal
(footnote continued)
10

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 19 of 24
have had to work multiple, poorly-paid jobs in order to help put food on the table while at the same time trying to maintain their focus and performance in school and apply to college. The sacrifices these students and their families have had to make simply to enroll as students at our institutions are legion, and their commitment to bettering themselves and getting the most out of their education is unwavering. These extraordinary young people should be cherished and celebrated, so that they can achieve their dreams and contribute to the fullest for our country. Banishing them once more to immigration limbo—a predicament they had no part in creating— is not merely cruel, but irrational. DACA students are the ideal candidates for prosecutorial discretion, which the government formerly recognized and exercised for those who applied and were accepted. DACA’s rescission is not based on any different conclusion about those eligible; rather, it appears to reflect an arbitrary and capricious policy shift for which talented young people will bear the brunt of the harm. If such an unlawful decision is allowed to stand—and these young people take their tremendous talent, enthusiasm, and skills elsewhere—we (both amici and the country as a whole) will be the losers.
2. DACA Students Contribute to Campus Diversity, A Key Component of the Educational Experience.
The Supreme Court has time and again noted the myriad benefits that a diverse student body yields for institutes of higher education. First, the Court has recognized “the educational benefits that flow from student body diversity,” Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2419 (2013) (Fisher I) (quotation marks omitted), namely the deeper understanding students and professors achieve when an issue or problem is analyzed by individuals who bring
poverty line. See Inst. for Immigration, Globalization, & Educ., supra, 7 (in a survey of undocumented students, 61.3% had annual household incomes below $30,000 and 29% had annual household incomes between $30,000 and $50,000).
11

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 20 of 24
differing perspectives and backgrounds to the question. See also Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (noting that the “educational benefits that diversity is designed to produce . . . [are] substantial”). Second, “enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’” Fisher v. Univ. of Tex. at Austin (Fisher II), 136 S. Ct. 2198, 2210 (2016) (quoting Fisher I, 133 S. Ct. at 2427; see also Grutter, 539 U.S. at 328, 330). While this obviously has a direct benefit to students, it also is a key component in creating a dynamic and integrated campus environment. Third, and “[e]qually important, student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” Fisher II, 136 S. Ct. at 2210 (internal quotation marks omitted).
The Supreme Court’s observations in this respect are well taken. Diversity on campus is amongst the highest priorities for amici, and we have seen the benefits in practice that the Supreme Court has highlighted in theory. For example, amicus Rice University’s mission statement notes that it seeks to fulfill its mission “by cultivating a diverse community of learning and discovery that produces leaders across the spectrum of human endeavor.”35 Likewise, amicus Middlebury College explains its commitment to “full and equal participation for all individuals and groups” by noting evidence that “groups of people from a variety of backgrounds and with differing viewpoints are often more resilient and adaptive in solving problems and reaching complex goals than more homogenous groups.”36 These are but two examples of
35 Rice University, Statement of Office of Diversity and Inclusion, http://diversity.rice. edu/ (last visited Dec. 13, 2017).
36 Middlebury College, Diversity and Inclusion, http://www.middlebury.edu/studentlife/community-living/diversity-inclusivity (last visited Dec. 13, 2017).
12

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 21 of 24
many.37 The DACA students attending our schools play a significant role in fostering the
inclusive and diverse on-campus atmosphere we strive to create. As reported by the United States Citizenship and Immigration Services, the 689,900 DACA recipients as of September 2017 come from over 150 countries spanning every continent except Antarctica.38 And, this diversity of backgrounds and ethnicities is reflected in the thousands of DACA recipients, and undocumented students, who study on our campuses.39 Indeed, in many ways DACA students bring a special form of diversity to our campuses in that they are neither traditionally domestic nor traditionally international students. They have an entirely different perspective and they bring that in addition to their compelling life stories to our schools. C. The Rescission of DACA Will Harm American Colleges and Universities.
If DACA’s rescission is allowed to stand, the greatest harm will of course be suffered by DACA recipients and their families. But American colleges and universities will be harmed as well.
First, and foremost, we will lose important members of our academic communities. The few examples cited above are not anomalous; rather, they exemplify the talent and
37 See, e.g., Vision, Mission, & Equity, Folsom Lake College, http://www.flc.losrios.edu/ about-us/vision-mission-and-equity (last visited Dec. 13, 2017); Mission & Diversity Statements, Brandeis University, http://www.brandeis.edu/about/mission.html (last visited Dec. 13, 2017).
38 See Approximate Active DACA Recipients: Country of Birth, USCIS (Sept. 4, 2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/ Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_population_data.pdf.
39 See Jerome Dineen, If Trump Ends DACA, here’s how many students could be affected, USA Today College (Feb. 8, 2017), http://college.usatoday.com/2017/02/08/if-trump-ends-dacaheres-how-many-students-could-be-affected/ (estimating that 10,000 undocumented students graduate from undergraduate institutions in the United States annually).
13

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 22 of 24
accomplishment of the thousands of DACA students we have on our campuses. As many students may be forced to withdraw, amici will be deprived of some of our most accomplished students. These students contribute not only to the diversity of perspectives in our classrooms but also to the student leadership of social action initiatives in our communities. Our campuses will be noticeably poorer places without those substantial contributions.
Second, the education we provide our students is a valuable commodity, and we have finite resources to provide it. If DACA students lose their status and, with it, the ability to pay for tuition or living expenses, they may well not be able to continue with their education. And, even for those students who have saved enough money to continue, the value of an education may decrease if they will be unable to secure lawful employment upon graduation. As a result, amici will almost certainly lose students mid-way through their degree programs, and the retention rate for this population will drop dramatically and beyond what institutions are prepared to accommodate through normal attrition cycles. Amici have devoted valuable, and in many cases limited, enrollment spaces to this student population that will not continue in their education and cannot be replaced during a mid-point of their progression in their degree program.
Third, some of our DACA students work in a variety of positions on campus, and many are already trained for these positions and performing well. With the loss of employment authorization, amici will lose these valuable contributions. The cost of refilling and retraining for these roles, if we can even find adequate replacements, represents measurable harm to the institutions. More broadly, the loss of work authorization will also mean that our DACA students will be unable to secure stable jobs upon graduation. While of course this is primarily a harm to them, given that our DACA students are among the most committed of our alumni, we too will lose an important source of support (both financial and otherwise).
14

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 23 of 24
Fourth, DACA’s rescission has already required amici to dedicate valuable resources to counsel students who are negatively impacted by rescission. Many of these students have required mental health counseling to deal with the stress and anxiety induced by the government’s sudden shift in position, as well as legal assistance to determine their range of possibilities.40 As institutions of higher education, we believe we should be spending our resources on educating our students for the bright futures they will have, not defending and counseling them against unfair and adverse actions by their government for a situation in which they have no blame whatsoever.
Finally, even for those schools without many or even any DACA students, supporting DACA is central to our mission as educators. Amici are devoted to the education of people to help them realize their ambitions and potential, and to contribute to their communities, to this country, and to the world. We pursue that mission on behalf of our students, regardless of national origin. Indeed, core to that mission is our commitment to equal opportunity. The rescission of DACA devalues that mission without any rational basis. In that respect, it harms all amici.
III. CONCLUSION DACA is an enlightened and humane policy, and it represents the very best of America. It provides legal certainty for a generation of high-achieving young people who love this country and were raised here. Once at college or university, DACA recipients are among the most engaged both academically and otherwise. They work hard in the classroom and become deeply
40 See, e.g., Eleanor J. Bader, As End of DACA Looms, Colleges and Organizers Ramp Up Efforts to Protect Undocumented Students, NACLA (Jan. 27, 2017), https://nacla.org/ news /2017/01/27/end-daca-looms-colleges-and-organizers-ramp-efforts-protect-undocumentedstudents.
15

Case 1:17-cv-02325-CRC Document 33 Filed 12/19/17 Page 24 of 24

engaged in extracurricular activities. Moreover, our DACA students are deeply committed to giving back to their communities and, more broadly, the country they love. These are not the types of individuals we should be pushing out of the country, or returning to a life in the shadows. As institutions of higher education, we see every day the achievement and potential of these young people, and we think it imperative that they be allowed to remain here and live out their dreams. Indeed, it defies rationality to prevent the government from utilizing its discretion to protect this set of young people from removal. For these reasons, we urge the Court to grant the Plaintiffs’ motion for summary judgment and/or preliminary injunction.

Dated: December 15, 2017

PERKINS COIE LLP
By: Bruce V. Spiva Bruce V. Spiva (D.C. Bar No. 443754) Amanda R. Callais (D.C. Bar No. 1021944) PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 600 Washington, D.C. 20005-3960 Tel: (202) 654-6200 BSpiva@perkinscoie.com ACallais@perkinscoie.com
Attorneys for Amici Curiae Institutions of Higher Education

16

 
 Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE TRUSTEES OF PRINCETON UNIVERSITY,
MICROSOFT CORPORATION,
MARIA DE LA CRUZ PERALES SANCHEZ,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
U.S. DEPARTMENT OF HOMELAND SECURITY,
KIRSTJEN NIELSEN, in her official capacity as Secretary of the Department of Homeland Security,
Defendants.

Civil Action No. 17-cv-02325
BRIEF OF AMICI CURIAE EIGHTEEN UNIVERSITIES IN SUPPORT OF THE TRUSTEES OF PRINCETON UNIVERSITY, MICROSOFT CORPORATION, AND MARIA DE LA CRUZ PERALES SANCHEZ’S MOTION FOR SUMMARY JUDGMENT AND/OR INJUNCTIVE RELIEF

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 2 of 20 TABLE OF CONTENTS Page
INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................3
I. DACA Students Enrolled at Amici Institutions Are Some of the Most Gifted and Motivated Young People in the World ..................................................3
II. Rescinding DACA Harms Amici’s Students and Alumni, and Deprives Both Amici Institutions and the Country of Their Promise......................................8 A. The September Memorandum Has a Devastating Impact on DACA Recipients.....................................................................................................8 B. Rescinding DACA Prevents Undocumented Students From Fully Benefitting From and Contributing To Amici’s Institutions ........................9 C. Rescinding DACA Deprives the Nation of Invaluable Resources ............11
CONCLUSION..............................................................................................................................15
-i-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 3 of 20
TABLE OF AUTHORITIES Page(s)
Cases
Plyler v. Doe, 457 U.S. 202 (1982).................................................................................................................. 9
Sweezy v. New Hampshire, 354 U.S. 234 (1957).................................................................................................................. 4
Other Authorities
Amanda Mott, Inaugural President’s Innovation Prize Winners Announced at Penn, PENNNEWS (Apr. 20, 2016), https://news.upenn.edu/news/inauguralpresident-s-innovation-prize-winners-announced-penn ......................................................... 13
Brown President Urges Trump to Continue DACA, BROWN UNIV. NEWS (Aug. 30, 2017), https://news.brown.edu/articles/2017/08/daca............................................................. 14
Brown University, Undergraduate Admission, https://www.brown.edu/admission/ undergraduate/apply.................................................................................................................. 5
Columbia Undergraduate Admissions, Undocumented Students and DACA, https://undergrad.admissions.columbia.edu/applyfirst-year/undocumentedstudents ..................................................................................................................................... 5
Cornell University, About Cornell University, https://www.cornell.edu/about/ mission.cfm............................................................................................................................... 4
Dartmouth College, Dartmouth College Mission Statement, http://home.dartmouth.edu/mission-statement.......................................................................... 3
Duke University, Indenture of James B. Duke Establishing the Duke Endowment (1924), https://archive.org/details/indentureofjames00slsn ...................................................... 3
Durbin: Let’s Show The American Dream Is Still Alive By Passing The Dream Act (Sept. 12, 2017), https://www.durbin.senate.gov/newsroom/pressreleases/durbin-lets-show-the-american-dream-is-still-alive-by-passing-thedream-act................................................................................................................................. 12
Greg Lee, Undocumented Santa Ana Scholar Accepted to Harvard Medical School, ABC NEWS (June 16, 2016), http://abc7.com/news/undocumentedsanta-ana-scholar-accepted-to-harvard-medical-school/1388040/ ......................................... 13
Harvard College Admissions & Financial Aid, What We Look For, https://college.harvard.edu/admissions/application-process/what-we-look ............................. 5
-ii-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 4 of 20

TABLE OF AUTHORITIES (continued)

Page(s)

Harvard College Financial Aid Office, How Aid Works, https://college.harvard.edu/financial-aid/how-aid-works ......................................................... 5

Harvard University, The Charter of the President and Fellows of Harvard College, Under the Seal of the Colony of Massachusetts Bay, and Bearing the Date May 31st A.D. 1650, https://library.harvard.edu/universityarchives/using-the-collections/online-resources/charter-of-1650............................................. 4

Institute for Immigration, Globalization, & Education, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform (2015), http://www.undocuscholars.org/assets/ undocuscholarsreport2015.pdf.................................................................................................. 7

Jake Miller, White Coats for DACA, HARVARD MED. SCH. NEWS (Sept. 14, 2017), https://hms.harv ard.edu/news/white-coats-daca .................................................................... 14

L. Rafael Reif, President of MIT, Trump Should Not Repeal DACA, BOSTON GLOBE (Aug. 31, 2017), https://www.bostonglobe.com/opinion/2017/08/31/ trump-shouldn-repeal-daca/9sqIjciw0UseCKGTSVCRlK/story.html ............................... 3, 12

Laura Anthony, Two Years Later, Tania Chairez Still ‘Undocumented and Unapologetic’, DAILY PENNSYLVANIAN (April 17, 2014), http://www.thedp.com/article/2014/04/q-a-with-tania-chairez............................................... 11

Letter from Caltech President Thomas F. Rosenbaum to The Caltech Community (Sept. 5, 2017), http://www.caltech.edu/content/statement-daca ............................................. 2

Letter from Cornell University President Martha E. Pollack to President Donald J. Trump (Aug. 31, 2017), http://news.cornell.edu/stories/2017/09/pollackurges-trump-support-daca-program .......................................................................................... 2

Letter from Harvard University President Drew Gilpin Faust to President Donald J. Trump Regarding DACA (Aug. 28, 2017), https://www.harvard.edu/ president/news/2017/letter-to-president-trump-regarding-daca ......................................... 2, 14

Liz Mineo, Ask the Undocumented, HARVARD GAZETTE (May 4, 2017), https://news.harvard.edu/gazette/story/2017/05/4-undocumented-harvardcollege-students-recount-their-journeys-and-their-hopes/................................................ 6, 7, 8

MIT Student Financial Services, Financial Aid at MIT, https://sfs.mit.edu/ financial-aid-mit........................................................................................................................ 5

MIT, MIT Mission, http://www.mit.edu/aboutmit/......................................................................... 4

-iii-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 5 of 20

TABLE OF AUTHORITIES (continued)

Page(s)

Northwestern University, Why Study Abroad?, http://www.northwestern.edu/ studyabroad/prospective-students/why-study-abroad/index.html .......................................... 10

Penn for Immigrant Rights, Founders Statement, https://upenn4immigrantrights. wordpress.com/blog/............................................................................................................... 11

Roberto Torres, These 3 Companies Are Coming to the Pennovation Center, TECHNICAL.LY (June 30, 2016), https://technical.ly/philly/2016/06/30/ pennovation-center-cosy-xeed-fever-smart/ ........................................................................... 13

Santiago Tobar Potes, DACA Student: Deporting Me and 800,000 Dreamers Is a Man-Made Disaster That Will Be Terrible for US, FOX NEWS (Sept. 5, 2017), http://www.foxnews.com/opinion/2017/09/05/daca-student-deporting-me-and800000-dreamers-is-man-made-disaster-that-will-be-terrible-for-us.html............................... 6

Stanford University, The Founding Grant with Amendments, Legislation, and Court Decrees (1885), https://stacks.stanford.edu/file/druid:bz978md4965/ su_founding_grand.pdf ............................................................................................................. 4

Stephanie Leutert, Undocumented in the Ivy League, AM. Q. (May 5, 2012), http://www.americasquarterly.org/content/undocumented-ivy-league..................................... 7

Teach for America, Teach for America Urges Congress To Pass The DREAM Act (Sept. 5, 2017), https://www.teachforamerica.org/top-stories/daca-dream-acthow-you-can-stand-tfa-dreamer-teachers-and-undocumented-students................................. 12

Troy Parks, Med Student ʻDreamersʼ Speak Out on Maintaining DACA Protections, AMA WIRE (Feb. 13, 2017), https://wire.ama-assn.org/amanews/med-student-dreamers-speak-out-maintaining-daca-protections .................................. 13

Yale Admissions, What Yale Looks For, https://admissions.yale.edu/what-yalelooks-for.................................................................................................................................... 5

-iv-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 6 of 20
INTRODUCTION Amici are eighteen distinguished American institutions of higher education.1 Amici have educated and helped launch the careers of many celebrated leaders and innovators in all fields, including more than 200 Nobel Prize recipients, half of the astronauts who have walked on the moon, dozens of Fortune 500 CEOs, and numerous Academy Award and Pulitzer Prize-winning artists and authors. And every day, amici’s alumni can be found teaching in our schools, performing cutting-edge research, discovering ground-breaking technology, healing patients in our hospitals, starting businesses, leading our armed forces, and reporting on current events for local and global news outlets. This is no coincidence, but a reflection of amici’s principal objective: To improve the human condition by educating the next generation of people with the talent, drive, and heart needed to identify and solve society’s most pressing problems. In furtherance of this mission, all amici institutions have admitted students who have applied for and been granted participation in the Deferred Action for Childhood Arrival (“DACA”) program. “[L]ike their peers,” the DACA students on amici’s campuses “are extraordinarily talented young people who . . . aspire to be leaders in public service, science, business, medicine, and the arts. They embody the drive and determination that has made the
1 They include Brown University, California Institute of Technology (“Caltech”), Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, George Washington University, Harvard University, Massachusetts Institute of Technology (“MIT”), Northwestern University, Stanford University, University of Chicago, the University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, and Yale University. Plaintiff Princeton University previously joined these amici in filing a similar brief in support of the plaintiffs in similar actions filed in California, Univ. of Cal. v. U.S. Dep’t of Homeland Sec., Nos. 17-cv-05211, 17-cv-05235, 17-cv-05329, 17-cv-05380 (N.D. Cal.). However, no counsel for any party authored this brief in whole or in part, nor has any person other than the amici curiae and their counsel contributed money that was intended to fund preparing or submitting this brief.

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 7 of 20
United States the most prosperous and innovative country in the world.”2 And by virtue of the DACA program—which protects participants against near-term deportation, allows them to work lawfully, and enables them to travel abroad—these students have been able for the first time to access educational and life opportunities on nearly equal terms with their peers.
The Department of Homeland Security’s September 5, 2017 Memorandum (“September Memorandum”) rescinding DACA deters young people from pursuing higher education and precludes the remarkable students enrolled at amici institutions from deriving the full benefit of their time on our campuses. The government’s action therefore threatens amici’s ability to attract and educate the most talented individuals and so undermines their educational missions.3 Indeed, ending DACA forces future scholars, innovators, and leaders to choose between withdrawing to the margins of our society and national economy or returning to countries that they have never called home. Whatever they choose, their gifts and education are lost to this nation.
Amici submit this brief to inform the court about their experiences with the DACA students on their campuses and to warn of the consequences—to the students, amici, and the country—of rescinding the DACA program. At this time of profound challenges—from global
2 Letter from Harvard University President Drew Gilpin Faust to President Donald J. Trump Regarding DACA (Aug. 28, 2017), https://www.harvard.edu/president/news/2017/letter-topresident-trump-regarding-daca. See also, e.g., Letter from Cornell University President Martha E. Pollack to President Donald J. Trump (Aug. 31, 2017), http://news.cornell.edu/stories/2017/ 09/pollack-urges-trump-support-daca-program (“I believe that our DACA students are ‘incredible kids.’ . . . It would be more than a shame if you . . . extinguish so many bright and productive futures just as they are getting started.”). 3 Letter from Caltech President Thomas F. Rosenbaum to The Caltech Community (Sept. 5, 2017), http://www.caltech.edu/content/statement-daca (ending DACA “cuts to the core of what we stand for as an educational institution: to identify, attract, and support talented individuals, and to create a community where students, staff, and faculty alike can learn from each other and thrive”).
-2-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 8 of 20
pandemics and insoluble conflicts, to climate change and income inequality—the importance of
amici’s shared mission of advancing and improving the human condition through teaching and
research comes into sharper focus. To achieve their ambitious goals of advancing knowledge
and transforming our society, schools must be able to identify and educate the very best students,
and those students must be able to work after graduation. Ending DACA unjustly sidelines a
discrete group of students. As one of amici’s Presidents put it, no student—amici’s or
otherwise—should be forced to live in constant fear of “losing the opportunities they earned, the communities they think of as home, and the nation they love.”4 Nor should the nation lose the
benefits of that student’s full participation in our society.
ARGUMENT I. DACA STUDENTS ENROLLED AT AMICI INSTITUTIONS ARE SOME OF
THE MOST GIFTED AND MOTIVATED YOUNG PEOPLE IN THE WORLD Although important differences exist from school to school, amici are united in a core
mission: to educate extraordinary students from diverse backgrounds and prepare them for
leadership, active citizenship, and achievement in every field of human endeavor. Each of
amici’s schools, to borrow from one, “educates the most promising students and prepares them for a lifetime of learning and of responsible leadership.”5 From their founding charters6 to their
4 L. Rafael Reif, President of MIT, Trump Should Not Repeal DACA, BOSTON GLOBE (Aug. 31, 2017), https://www.bostonglobe.com/opinion/2017/08/31/trump-shouldn-repealdaca/9sqIjciw0UseCKGTSVCRlK/story.html. 5 Dartmouth College, Dartmouth College Mission Statement, http://home.dartmouth.edu/ mission-statement (last visited Oct. 31, 2017). 6 See, e.g., Duke University, Indenture of James B. Duke Establishing the Duke Endowment, at 24 (1924), https://archive.org/details/indentureofjames00slsn (calling for courses of instruction in areas that “can do most to uplift mankind” and “help to develop our resources, increase our wisdom and promote human happiness”); Stanford University, The Founding Grant with Amendments, Legislation, and Court Decrees, at 24 (1885), https://stacks.stanford.edu/file/ druid:bz978md4965/su_founding_grant.pdf (Stanford University’s “chief object is the instruction of students with a view to producing leaders and educators in every field of science
-3-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 9 of 20
current websites,7 these clearly stated educational objectives govern how amici “determine for [themselves] on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., conc’g) (quotation omitted).
To fulfill their missions, amici devote substantial resources to identifying, recruiting, and retaining exceptional young people from around the globe. Of course, amici seek students with the scholarship record to excel in their classrooms, but given the great number of applications that amici receive—well in excess of the number of students they can admit—academic merit alone is insufficient for admission. Amici therefore undertake an intensive application review process to identify those students “who w[ill] make the most of the extraordinary resources” they have to offer, “those with a zest to stretch the limits of their talents, and those with an outstanding public motivation—in other words, applicants with a concern for something larger
and industry”); Harvard University, The Charter of the President and Fellows of Harvard College, Under the Seal of the Colony of Massachusetts Bay, and Bearing the Date May 31st A.D. 1650, https://library.harvard.edu/university-archives/using-the-collections/online-resources/ charter-of-1650 (last visited Oct. 31, 2017) (Harvard’s mission includes “the advancement of all good literature, arts, and sciences”). 7 See, e.g., Cornell University, About Cornell University, https://www.cornell.edu/about/ mission.cfm (last visited Oct. 31, 2017) (Cornell University’s “mission is to discover, preserve and disseminate knowledge, to educate the next generation of global citizens, and to promote a culture of broad inquiry throughout and beyond the Cornell community”); MIT, MIT Mission, http://www.mit.edu/aboutmit/ (last visited Oct. 31, 2017) (MIT’s goal “is to advance knowledge and educate students in science, technology, and other areas of scholarship that will best serve the nation and the world in the 21st century”).
-4-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 10 of 20
than themselves.”8 Additionally, amici have worked to ensure that the most qualified students
can enroll in their institutions, irrespective of their socioeconomic and immigration status.9
The DACA students at amici institutions were selected because they are outstanding
students. Like their classmates, these young people were valedictorians, student government
leaders, varsity athletes, inventors, academic award winners, accomplished artists, and role
models for younger children in their communities. And like many of their classmates, they are
the pride of the neighborhoods in which they grew up—“local kids who made good.” To take
just a few examples:
! Santiago Tobar Potes, a sophomore at Columbia University, was a straight-A student in high school, scored at the highest levels on state and national academic tests, speaks six languages and is an accomplished violinist who gave free lessons to impoverished youth in his hometown of Miami, Florida.10
8 Yale Admissions, What Yale Looks For, https://admissions.yale.edu/what-yale-looks-for (last visited Oct. 31, 2017); see also Harvard College Admissions & Financial Aid, What We Look For, https://college.harvard.edu/admissions/application-process/what-we-look (last visited Oct. 31, 2017) (“We seek to identify students who will be the best educators of one another and their professors—individuals who will inspire those around them during their college years and beyond.”); Brown University, Undergraduate Admission, https://www.brown.edu/admission/ undergraduate/apply (last visited Oct. 31, 2017) (“We will consider how your unique talents, accomplishments, energy, curiosity, perspective, and identity might weave into the everchanging tapestry that is Brown University.”). 9 Indeed, many of amici provide at least their undergraduate students complete, need-based financial aid. See, e.g., Harvard College Financial Aid Office, How Aid Works, https://college.harvard.edu/financial-aid/how-aid-works (last visited Oct. 31, 2017) (Harvard is “committed to meeting 100 percent of demonstrated financial need for all four years” of undergraduate education irrespective of citizenship status); MIT Student Financial Services, Financial Aid at MIT, https://sfs.mit.edu/financial-aid-mit (last visited Oct. 31, 2017) (MIT promises its undergraduate applicants that once they are admitted, the university will “meet [their] full financial need for all four years of [their] undergraduate career.); Columbia Undergraduate Admissions, Undocumented Students and DACA, https://undergrad.admissions. columbia.edu/apply/first-year/undocumented-students (last visited Oct. 31, 2017) (Columbia is “committed to meeting 100% of the demonstrated financial need of all students admitted as firstyears or transfer students pursuing their first degree, regardless of citizenship status”). 10 Santiago Tobar Potes, DACA Student: Deporting Me and 800,000 Dreamers Is a Man-Made Disaster That Will Be Terrible for US, FOX NEWS (Sept. 5, 2017), http://www.foxnews.com/
-5-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 11 of 20
! Laura Veira-Ramirez, a sophomore at Harvard, concentrating in chemistry with a secondary on ethnicity, migration, and rights, had the highest grade point average in her high school class in Connecticut.11 At graduation, she gave a speech that revealed her undocumented status to many of her classmates for the first time, precisely because she “wanted to show how much you [can] accomplish even though you may be undocumented.”12
! Luis Gonzalez, a junior at Georgetown majoring in American Studies, graduated from high school in California, with a 4.69 grade point average and with passing scores on all nine of the Advanced Placement exams that he took. As the secretary of his high school’s National Honor Society chapter, he helped organize an anti-bullying campaign in the elementary school he had attended and spent most of his Saturdays tutoring classmates in math.
! Luke Hwang, a current PhD candidate in chemistry at the University of Chicago, graduated from a competitive math and sciences magnet high school in Bergen County, New Jersey, where he won a number of awards at regional science fairs and volunteered as an Emergency Medical Technician in his local ambulance corps. Luke was next accepted as a University Scholar in the Macaulay Honors College at the City College of New York, from which he received a Bachelor’s of Science in Chemistry. In addition to graduating summa cum laude, Luke received an award for obtaining the highest grade point average of any chemistry major.
! Barbara Olachea Lopez Portillo is a junior at Dartmouth, where she is majoring in sociology, minoring in international relations, and devoting substantial time to learning media production. She was the valedictorian of her high school class in Phoenix, Arizona, the secretary of her schools’ student government, and an active participant in various other extracurricular activities, including Inspire Arizona, an organization that promotes civic engagement.
! Johan Villanueva, a sophomore at MIT majoring in chemical engineering, graduated second in his class from the largest public high school in Chicago. In addition to being the co-captain of his high school’s Math Team, Johan was involved in Homeland Helpers, a student group dedicated to assisting the city’s homeless population, the Environmental Club, and the National Honor Society.
DACA students’ presence on amici’s campuses is all the more notable given the
enormous challenges that undocumented youth face in order to obtain a higher education. To
start, the vast majority of these students have grown up in households that survive on incomes far
opinion/2017/09/05/daca-student-deporting-me-and-800000-dreamers-is-man-made-disasterthat-will-be-terrible-for-us.html. 11 Liz Mineo, Ask the Undocumented, HARVARD GAZETTE (May 4, 2017), https://news.harvard.edu/gazette/story/2017/05/4-undocumented-harvard-college-studentsrecount-their-journeys-and-their-hopes/. 12 Id.
-6-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 12 of 20
below the federal poverty line, and most are the first persons in their families to attend college.13
Additionally, these students often cope with family instability and anxiety relating to their
undocumented status.14 As one DACA student at Yale explained:
[The] challenges . . . start in high school—when many undocumented students, seeing no way out of their limbo status, lose motivation. Others pick up jobs on the side to financially help their families, slowly drifting away from their classwork. Even for those who remain dedicated to their classes, studies show a lack of information regarding university options and an inability to obtain financial aid obstructs the path to higher education.15 Given the significant adversity that DACA students have surmounted prior to even
applying to amici institutions, it is no surprise that DACA recipients have also excelled on
amici’s campuses. Jin Park was born in South Korea and came to New York City at age 7.
Growing up, Park understood that his family was different: “I knew that my family couldn’t get
a car, that we didn’t have health care, and that we should avoid busy streets, where immigration
raids often take place[,] … but I didn’t quite understand it.”16 He found out about his legal status
when a Manhattan hospital rejected him from an internship program on that basis. Park credits
DACA with giving him the confidence to apply to college to pursue his dream of becoming a
“doctor to work on policies to help the most vulnerable.”17 Indeed, his professional goals are an
13 See Institute for Immigration, Globalization, & Education, In the Shadows of the Ivory Tower: Undocumented Undergraduates and the Liminal State of Immigration Reform 7 (2015), http://www.undocuscholars.org/assets/undocuscholarsreport2015.pdf (reporting on a survey of undocumented students that found “61.3% . . . had an annual household income below $30,000” and 67.6% were first-generation college students). 14 Id. at 2 (“[Undocumented youth] are disproportionately more likely to grow up in poverty, crowded housing, lacking health care, and residing in households where families have trouble paying rent and affording food.”). 15 Stephanie Leutert, Undocumented in the Ivy League, AM. Q. (May 5, 2012), http://www.americasquarterly.org/content/undocumented-ivy-league. 16 Mineo, supra note 11. 17 Id.
-7-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 13 of 20
outgrowth of his experience growing up undocumented: “When I was 11, I had to search online how to treat a burn at home because my father had been burned at work and couldn’t go to the hospital.”18 Now a molecular and cellular biology concentrator at Harvard College conducting immunology research at Harvard Medical School, Park was recently nominated by Harvard for both a Rhodes and Marshall Scholarship. II. RESCINDING DACA HARMS AMICI’S STUDENTS AND ALUMNI, AND
DEPRIVES BOTH AMICI INSTITUTIONS AND THE COUNTRY OF THEIR PROMISE A. The September Memorandum Has a Devastating Impact on DACA
Recipients DACA recipients are American in everything except immigration status. They have come of age in this country, excelling in our elementary, middle and high schools, praying in our houses of worship, playing on our little league teams, and celebrating our national holidays. Still more, an amazing number of these young people have demonstrated their dedication to this country’s ideals by actively engaging in its civic life to the full extent permitted by law. Even before their arrival on our campuses, many of amici’s students and alumni led voter registration drives, carried petitions, testified before state and federal legislative bodies, wrote letters to the editor and participated in documentary film projects. And they continue to do so today—despite the potential consequences for themselves, their friends, and their loved ones. In short, many of these young people have engaged in precisely the kind of courageous civic activities that are crucial to the continued vitality of our democracy. While DACA did not provide our students and alumni a path to citizenship, it did offer them a measure of security and access to opportunities for educational and professional
18 Id.
-8-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 14 of 20
development. As Juan Jose Martinez, a sophomore at Georgetown, whose goal is someday to “work for the government—to help achieve what is best for America in the world and to help make the world a safer place”—put it:
Thanks to DACA, I now have a part-time job on campus and can help ease the cost of college on my parents. Thanks to DACA I can feel safe and confident while traveling, whether it be to attend school or to visit my family. Thanks to DACA I can focus on my studies without worrying that it may all be taken away from me at any second. I have always thought of myself as an American, but it is thanks to DACA that I can begin to truly feel like one, too. Rescinding DACA wrests from Juan and hundreds of thousands of strivers like him the sense of safety and possibility that they deserve. Now, through no fault of their own, they face the terrifying prospect of having to return to a life in which they have little chance of making the best use of their hard-earned skills and knowledge, or, worse still, being removed altogether and forced to make their way in a country that is wholly foreign to them. The September Memorandum also sends a clear message to the more than one million undocumented children in the United States that the trails amici’s students and alumni have blazed lead nowhere and are not worth following. That message is antithetical to the commitment to equal opportunity on which this country was founded, raising “the specter of a permanent caste of undocumented [immigrants] . . . denied the benefits that our society makes available to citizens and lawful residents.” Plyler v. Doe, 457 U.S. 202, 218–19 (1982). Rather than serving our country’s interests, rescinding DACA will deprive our society of the many contributions these young people are prepared and eager to make. B. Rescinding DACA Prevents Undocumented Students From Fully Benefitting From and Contributing To Amici’s Institutions Consistent with their missions, amici are committed to providing a full and complete education to all of their enrolled students—anything less is insufficient to prepare them to identify and solve the consequential problems that amici expect them to address over the course
-9-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 15 of 20
of their careers. DACA helped amici achieve this objective by making it possible for undocumented students to participate fully in educational work opportunities, such as off-campus internships and on-campus research with university faculty. It also allowed them to conduct field work outside of the United States and participate in amici’s varied study abroad programs.19 By participating in these experiences, students generate questions for further exploration during their time on campus and begin to chart their course for after graduation.
For instance, during his time at MIT, Jose Gomez, who came to the United States from northern Mexico when he was five years old, participated in MIT’s Undergraduate Research Opportunity Program at the MIT Space Systems Laboratory, where, among other things, he participated as a flyer in a NASA reduced gravity flight. This work in turn resulted in Jose coauthoring a paper that was presented at an international conference in Vienna, Austria. Separately, due to his DACA status, Jose was eligible to participate in an externship at a startup company that develops robots to improve the efficiency of e-commerce order fulfillment. During this externship, Jose led the development of a tactile sensor kit for a robotic hand and designed and prototyped robotic finger mechanical components using 3D printed parts and rubber casting. Given this achievement, it is no surprise that the startup asked Jose to return as an applications engineer after he graduated with a Bachelor of Aerospace Engineering this past June. Without DACA, Jose’s story would not have been possible.
In addition to unlocking the full array of enriching activities that comprise a world-class higher education, DACA’s promise of deferred action empowered undocumented students to talk
19 Indeed, amici have emphasized the importance of study abroad programs to better prepare students to “build global competence” and navigate careers in an interconnected world. See, e.g., Northwestern University, Why Study Abroad?, http://www.northwestern.edu/studyabroad/ prospective-students/why-study-abroad/index.html (last visited Oct. 31, 2017).
-10-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 16 of 20
about their lived experiences without fear of retribution, adding meaningfully to the robust exchange of ideas that amici seek to cultivate on their campuses. For instance, while attending the University of Pennsylvania’s Wharton School of Business, recent alumna and DACA recipient Tania Chairez founded Penn for Immigrant Rights (“PIR”), an organization intended to “debunk misconceptions and connect immigration to current events.”20 Under her leadership, PIR conducted “undocu-trainings . . . [to] mak[e] sure as many student leaders as possible know what it even means to be an undocumented person.”21
True, numerous DACA recipients have continued to speak publicly about their legal status despite the September Memorandum—including the many students who agreed to the use of their name in this brief. But the policy reversal places these students, and the many more whom it has silenced, in a position wholly at odds with the principles of academic freedom to which amici are fervently committed. These students should not have to risk their own physical liberty—and that of their families—in order to tell their stories.
C. Rescinding DACA Deprives the Nation of Invaluable Resources The DACA students at amici institutions—and the many thousands more enrolled at other colleges and universities—are by definition the product of this nation’s education system and the communities that support it. Through the opportunities provided by American institutions of higher education all over this country, including amici’s, these young people now have the skills to give back—in ways big and small—to the country that raised them. And they
20 Penn for Immigrant Rights, Founders Statement, https://upenn4immigrantrights. wordpress.com/blog/ (last visited Oct. 31, 2017). 21 Laura Anthony, Two Years Later, Tania Chairez Still ‘Undocumented and Unapologetic’, DAILY PENNSYLVANIAN (April 17, 2014), http://www.thedp.com/article/2014/04/q-a-with-taniachairez.
-11-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 17 of 20
want nothing more than the opportunity to do so. “[D]riving them out” now “would be throwing away a tremendous national investment” for no discernible benefit.22
Take Cristina Velasquez, whose mother brought her to Madison, Wisconsin, when she was six years old. In a letter to Senator Richard Durbin of Illinois, Cristina wrote that her values and attitude were shaped by the people surrounding her during her childhood, especially their “compassion, patience and hard work.” During middle school, Cristina’s family relocated to Florida, where she went on to graduate from high school with impeccable grades and a track record of community engagement, but she could not afford to attend college. After taking a gap year to focus on saving money, Cristina enrolled at Miami-Dade Community College before transferring to the Georgetown School of Foreign Service, from which she will graduate in December. While at Georgetown, Cristina spent both of her summers working with highachieving, low-income middle school students, and received several awards for her academic achievement and commitment to public service. Next year, Cristina will return to the classroom as one of 190 DACA recipients who will be teaching some of our nation’s most marginalized and vulnerable youth through Teach for America.23
Consider, too, Alfredo Muniz, who arrived with his parents in Houston, Texas when he was only a year old and went on to earn a full scholarship to attend the University of Pennsylvania, from which he graduated in 2016 with undergraduate and graduate degrees in
22 Reif, supra note 3. 23 Durbin: Let’s Show The American Dream Is Still Alive By Passing The Dream Act (Sept. 12, 2017), https://www.durbin.senate.gov/newsroom/press-releases/durbin-lets-show-the-americandream-is-still-alive-by-passing-the-dream-act; Teach for America, Teach for America Urges Congress To Pass The DREAM Act (Sept. 5, 2017), https://www.teachforamerica.org/top-stories/ daca-dream-act-how-you-can-stand-tfa-dreamer-teachers-and-undocumented-students.
-12-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 18 of 20
mechanical engineering and robotics.24 While at Penn, Alfredo and a classmate developed XEED, a sensor-based system that collects and transmits data about limb movement in individuals with Parkinson’s disease.25 Healthcare professionals and patients can use this information to better assess the disease’s progress and the effectiveness of treatment. The project, which has the potential to help hundreds of thousands of patients around the world, was awarded the 2016 University of Pennsylvania President’s Innovation Prize, which was accompanied by $100,000 to support its further development.26
And as a final example, take Blanca Morales. Blanca arrived in the United States when she was five years old. She “believed [her] teachers when they said that if [she] just worked hard enough, [she] could achieve great things.”27 Heeding their advice, Blanca graduated as the valedictorian of her high school class and with honors from the University of California, Irvine, before receiving a full scholarship to attend Harvard Medical School. 28 Blanca’s ultimate goal is to return to Santa Ana, California, the town where she grew up, to give back to its current residents the “opportunities” and “encouragement” that they gave her.29 But with the end of
24 Amanda Mott, Inaugural President’s Innovation Prize Winners Announced at Penn, PENNNEWS (Apr. 20, 2016), https://news.upenn.edu/news/inaugural-president-s-innovationprize-winners-announced-penn. 25 Id. 26 Roberto Torres, These 3 Companies Are Coming to the Pennovation Center, TECHNICAL.LY (June 30, 2016), https://technical.ly/philly/2016/06/30/pennovation-center-cosy-xeed-feversmart/. 27 Troy Parks, Med Student ‘Dreamers’ Speak Out on Maintaining DACA Protections, AMA WIRE (Feb. 13, 2017), https://wire.ama-assn.org/ama-news/med-student-dreamers-speak-outmaintaining-daca-protections. 28 Id. 29 Greg Lee, Undocumented Santa Ana Scholar Accepted to Harvard Medical School, ABC NEWS (June 16, 2016), http://abc7.com/news/undocumented-santa-ana-scholar-accepted-toharvard-medical-school/1388040/.
-13-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 19 of 20
DACA, Blanca is “left to wonder if [she] will be deported” before she has the opportunity to do so.30 “When I received this white coat, I took an oath to act whenever there are injustices and to embrace my duty to advocate for patients,” Blanca said. “The end of DACA is an injustice to my future patients, because it threatens my ability to treat diabetes, to perform heart surgery or perhaps even cure cancer as a future physician.”31
Cristina, Alfredo, Blanca, and countless others like them have “bound” themselves to this nation through their “hard work, perseverance, grit and determination to succeed.”32 And this nation, in turn, has bound itself to them. The United States now stands to benefit greatly by permitting the young people that it has raised “to put their skills to their highest use.”33 “[F]orcing them to return to the shadows of our society” by rescinding DACA would be a tragic mistake.34
30 Jake Miller, White Coats for DACA, HARVARD MED. SCH. NEWS (Sept. 14, 2017), https://hms.harvard.edu/news/white-coats-daca. 31 Id. 32 Brown President Urges Trump to Continue DACA, BROWN UNIV. NEWS (Aug. 30, 2017), https://news.brown.edu/articles/2017/08/daca. 33 Faust, supra note 2. 34 Id.
-14-

Case 1:17-cv-02325-CRC Document 34 Filed 12/19/17 Page 20 of 20

CONCLUSION For the foregoing reasons, the September Memorandum impedes the ability of the undersigned institutions to advance their missions, imposes a direct harm on their current students and alumni, and deprives the United States of the benefit of DACA students’ considerable talents. Accordingly, the Court should grant Plaintiffs’ motion for summary judgment and/or injunctive relief.

Dated: December 15, 2017 Washington, D.C.

Respectfully submitted,

By:

/s/Jonathan Hacker

Jonathan Hacker

(D.C. Bar #456553)

Danielle C. Gray

(pro hac vice pending)

Jennifer B. Sokoler

(pro hac vice pending)

O’MELVENY & MYERS LLP

1625 Eye Street, NW Washington, D.C. 20006 Telephone: (202) 383-5300 Facsimile: (202) 383-5414 jhacker@omm.com

Times Square Tower 7 Times Square New York, New York 10036-6537 Telephone: (212) 326-2000 Facsimile: (212) 326 2061 dgray@omm.com jsokoler@omm.com

Attorneys for Amici

-15-

 
 Case 1:17-cv-02325-CRC Document 28 Filed 12/15/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

NATIONAL ASSOCIATION FOR THE

) PLAINTIFFS’ MOTION FOR

ADVANCEMENT OF COLORED PEOPLE ) SUMMARY JUDGMENT AND/OR

(NAACP), AMERICAN FEDERATION OF ) PRELIMINARY INJUNCTION

TEACHERS, AFL-CIO, and THE UNITED )

FOOD AND COMMERCIAL WORKERS )

INTERNATIONAL UNION, AFL-CIO, CLC, ) Civil Action No. 17-cv-1907

)

Plaintiffs,

)

v.

) )

DONALD TRUMP, in his official capacity as )

President of the United States, JEFFERSON )

BEAUREGARD SESSIONS, III, in his official )

capacity as Attorney General of the United )

States, KRISTJEN NIELSON, in her official )

capacity as Secretary of Homeland Security, )

U.S. CITIZENSHIP AND IMMIGRATION )

SERVICES, U.S. IMMIGRATION AND

)

CUSTOMS ENFORCEMENT,

)

DEPARTMENT OF HOMELAND

)

SECURITY, UNITED STATES OF

)

AMERICA,

)

)

Defendants.

)

_______________________________________)

)

THE TRUSTEES OF PRINCETON

) Civil Action No. 17-cv-2325

UNIVERSITY, MICROSOFT

)

CORPORATION, and

)

MARIA DE LA CRUZ PERALES SANCHEZ, )

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES OF AMERICA, U.S.

)

DEPARTMENT OF HOMELAND

)

SECURITY, and KRISTJEN NIELSON, in her )

official capacity as Secretary of the Department )

of Homeland Security,

)

)

Defendants.

)

Case 1:17-cv-02325-CRC Document 28 Filed 12/15/17 Page 2 of 3

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND/OR PRELIMINARY INJUNCTION
For the reasons set forth in the accompanying memorandum of law, Plaintiffs respectfully request that this Court grant summary judgment or, in the alternative, a preliminary injunction, on their claim that Defendants’ termination of the Deferred Action for Childhood Arrival Program violates the Administrative Procedure Act. See Fed. R. Civ. P. 56, 65. Plaintiffs further request that this Court preliminarily enjoin Defendants from modifying, in policy or practice, the use of information furnished pursuant to the DACA program in ways that could result in the detention or removal of current or former DACA applicants, without first providing Plaintiffs reasonable notice of and an opportunity to contest any such modification in this Court. See Fed. R. Civ. P 65.

Dated: December 15, 2017

Respectfully Submitted,
By: /s/ Joseph M. Sellers Joseph M. Sellers
D.C. Bar No. 318410 Julie S. Selesnick
D.C. Bar No. 485558 Julia A. Horwitz
D.C. Bar No. 1018561 Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW, Fifth Floor Washington, DC 20005 T: (202) 408-4600 F: (202) 408-4699 jsellers@cohenmilstein.com jselesnick@cohenmilstein.com jhorwitz@cohenmilstein.com
Attorney for Plaintiffs NAACP; American Federation of Teachers, AFL-CIO; United Food and Commercial International Union, AFL-CIO, CLC
2

Case 1:17-cv-02325-CRC Document 28 Filed 12/15/17 Page 3 of 3
By: /s/ Thomas J. Perrelli . Thomas J. Perrelli
D.C. Bar No. 438929 Lindsay C. Harrison
D.C. Bar No. 977407 Sam Hirsch
D.C. Bar No. 455688 Ishan Bhabha
D.C. Bar No. 101567 Ben Eidelson
D.C. Bar No. 1031574 Alex Trepp
D.C. Bar No. 1031036* JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 Phone 202 639-6000 Fax 202 639-6066 tperrelli@jenner.com lharrison@jenner.com shirsch@jenner.com ibhabha@jenner.com beidelson@jenner.com atrepp@jenner.com
Attorneys for The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez
*Application for Admission to District Court for District of Columbia Pending
3

 
 Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 1 of 60

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.
TRUSTEES OF PRINCETON UNIVERSITY, et al.,
Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.

Civil Action No. 17-1907 (JDB) Civil Action No. 17-2325 (JDB)

MEMORANDUM OPINION These cases present an array of administrative and constitutional challenges to the Department of Homeland Security’s (“DHS”) rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Though the government disputes these challenges on the merits, its primary defenses concern the Court’s authority to hear the cases: the government contends that most plaintiffs lack standing, that the Immigration and Nationality Act (“INA”) deprives the Court of subject-matter jurisdiction, and that the Department’s decision to rescind DACA is not subject to review under the Administrative Procedure Act (“APA”) because it was committed to agency discretion by law. The government has moved to dismiss the complaint in its entirety, and plaintiffs have moved for summary judgment only on their APA claims.

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 2 of 60
These are just two of a series of challenges to the September 2017 rescission of DACA that have already been before several district courts, two circuit courts of appeals, and the Supreme Court on two occasions. At this time, two preliminary injunctions are in place that require DHS to accept applications for the renewal of DACA benefits, but not to accept new DACA applications. Here, through their pending motions, plaintiffs seek permanent injunctive relief, although only on their APA claims. And the relief they seek would reach new as well as renewal DACA applications.
For the reasons that follow, the Court concludes that it has both jurisdiction and statutory authority to hear plaintiffs’ APA and constitutional claims. The Court further concludes that, under the APA, DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful. Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program. Thus, plaintiffs’ motion for summary judgment will be granted in part, and the decision to rescind DACA will be vacated and remanded to DHS. Vacatur of DACA’s rescission will mean that DHS must accept and process new as well as renewal DACA applications. The Court will stay its order of vacatur for ninety days, however, to allow the agency an opportunity to better explain its rescission decision.
2

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 3 of 60

BACKGROUND

I.

THE IMPLEMENTATION AND RESCISSION OF DACA

A. Deferred Action for Childhood Arrivals In 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program, which allowed certain undocumented aliens1 who had been

brought to the United States as children to be treated as low priorities for removal under the federal

immigration laws. See AR 1.2 According to the Secretary’s memorandum (the “DACA Memo”),

these young people generally “lacked the intent to violate the law” when they entered the United

States as children and, in many cases, “kn[e]w only this country as home” and had “contributed to

[the] country in significant ways.” AR 1–2. DACA was therefore undertaken as “an exercise

of . . . prosecutorial discretion” to “ensure that our enforcement resources are not expended on

these low priority cases.” AR 1.

DACA was available to any undocumented alien who: (1) came to the United States when

she was under the age of sixteen; (2) had lived in the United States continuously since at least June

15, 2007; (3) was enrolled in school or had graduated from high school or been honorably

discharged from the military; (4) had not been convicted of certain criminal offenses and posed no

threat to national security or public safety; and (5) was under the age of thirty. AR 1. Aliens who

met these criteria were eligible for renewable, two-year grants of “deferred action” on their

1 Some courts, including the Supreme Court, have referred to aliens who are unlawfully present in the United States as “illegal” instead of “undocumented.” See, e.g., Texas v. United States, 809 F.3d 134, 148 n.14 (5th Cir. 2015) (explaining that this “is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law” (citation omitted)); but see Mohawk Indust., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (using the term “undocumented immigrants”). Because both terms appear in the record materials here, and because, as at least one court has noted, “there is a certain segment of the population that finds the phrase ‘illegal alien’ offensive,” Texas v. United States, 86 F. Supp. 3d 591, 605 n.2 (S.D. Tex. 2015), the Court will use the term “undocumented.”
2 Citations to “AR” refer to the administrative record. See Joint Appendix [ECF No. 60].
3

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 4 of 60
removal from the United States. AR 2–3; see 8 C.F.R. § 274a.12(c)(14) (defining deferred action as “an act of administrative convenience to the government which gives some [removal] cases lower priority”). As the DACA Memo was careful to point out, however, the program “confer[red] no substantive right, immigration status or pathway to citizenship,” as “[o]nly the Congress, acting through its legislative authority, can confer these rights.” AR 3.
Individuals who received deferred action under DACA were also eligible for a host of other benefits under preexisting statutes and DHS regulations. These benefits included work authorization, 8 C.F.R. § 274a.12(a)(11), social security numbers, id. § 1.3(a)(4)(vi), advance parole (i.e., preauthorization to travel to the United States without a visa), id. § 212.5, and a limited class of public assistance, such as state and federal aid for medical emergencies, 8 U.S.C. §§ 1611(b)(1), 1621(b)(1). Benefits like these allowed DACA recipients to work, travel abroad, access credit, and otherwise lead productive lives during their periods of deferred action.
To be considered for deferred action under DACA, an applicant had to provide DHS with certain identifying information, including her name, mailing address, and contact information. See Decl. of Maria De La Cruz Perales Sanchez (“Perales Decl.”) [ECF No. 28-8] ¶ 11; see also Form I-821D, U.S. Citizenship and Immigration Servs., Consideration for Deferred Action for Childhood Arrivals, https://www.uscis.gov/i-821d. Although many applicants feared that this information would later be used to initiate removal proceedings against them, see Perales Decl. ¶¶ 10, 24, the Department assured applicants that their information would in most cases be “protected from disclosure to [U.S. Immigration and Customs Enforcement (“ICE”)] and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings.” See U.S. Citizenship and Immigration Servs., Instructions for Consideration of Deferred Action for
4

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 5 of 60
Childhood Arrivals, https://www.uscis.gov/i-821d. Relying on these representations, hundreds of thousands of undocumented aliens applied for and received deferred action under the DACA program. See, e.g., Perales Decl. ¶ 10; Decl. of John Doe #1 ¶ 6; Decl. of John Doe #2 ¶ 5. By late 2017, nearly 800,000 individuals had been granted deferred action under DACA. AR 242.
B. Deferred Action for Parents of Americans Two years after DACA’s implementation, DHS issued a second memorandum, this time purporting to establish a deferred-action program called Deferred Action for Parents of Americans (“DAPA”). AR 37–41. As its name suggests, DAPA would have offered deferred action to parents of U.S. citizens or lawful permanent residents who were themselves unlawfully present in the United States.3 AR 40–41. The DAPA memorandum also purported to expand the DACA program in certain respects: it would have removed the thirty-year age cap, made the deferredaction grants last for three years instead of two, and required that an alien need only have been present in the United States since January 1, 2010 to be eligible. AR 39–40. Before DAPA took effect, a coalition of states, led by Texas, sued to block its implementation on grounds that it violated both the APA and the Take Care Clause of the Constitution. See Texas, 86 F. Supp. 3d at 604 & n.1, 607 (citing U.S. Const. art. II, § 3). The district court granted the states’ motion for a preliminary injunction, concluding that they were likely to succeed on their procedural APA claim that DAPA (including its expansion of DACA) should have been promulgated using notice and comment. Id. at 671–72; see 5 U.S.C. § 553. In
3 DAPA would have applied to any alien who: (1) had a son or daughter who was a U.S. citizen or lawful permanent resident; (2) had continuously resided in the United States since before January 1, 2010; (3) was physically present in the United States both on November 20, 2014 and the date of her application; (4) had no lawful basis to be present in the United States on November 20, 2014; (5) did not meet certain enforcement priorities; and (6) did not otherwise raise concerns that would make deferred action inappropriate in the agency’s discretion. See AR 40.
5

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 6 of 60
part, this was because the Department’s implementation of DACA suggested that DAPA would not “genuinely leave[] the agency and its employees free to exercise discretion.” Texas, 86 F. Supp. 3d at 604 at 670 (emphasis, alterations, and internal quotation marks omitted). The district court found that only about 5% of all DACA applications had been denied, and the government could not say how many of those had been denied for discretionary reasons. Id. at 609. This led the court to conclude that the DAPA Memo’s suggestion that immigration officers could exercise case-by-case discretion was “merely pretext.” Id. at 669 n. 101; see Texas, 809 F.3d at 173 (agreeing that although “[t]he DACA and DAPA Memos purport to grant discretion, . . . there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual”).
The Fifth Circuit affirmed, holding that the states had demonstrated a likelihood of success on the merits not only of their procedural APA claim, but also on their substantive APA claim, because DAPA seemed to conflict with the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.”4 Texas, 809 F.3d at 179. But the court expressly declined to address the states’ constitutional challenges. See id. at 146 n.3 (finding it “unnecessary” to address those claims “at this early stage of the proceedings”). It also rejected the government’s threshold arguments—similar to the ones offered here—that the states lacked standing, see id. at 150–63, that the INA deprived the court of subject-matter jurisdiction, see id. at 164–65, and that DAPA’s implementation was unreviewable under the APA, see id. at 165–72.5 The government petitioned for certiorari, and in June 2016, an eight-Justice
4 According to the Fifth Circuit, under the INA, the parent must generally “(i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate.” Texas, 809 F.3d at 179–80.
5 All parties agreed that DAPA was “committed to agency discretion by law,” 5 U.S.C. §701(a)(2), to the extent that it “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a
6

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 7 of 60
Supreme Court affirmed the Fifth Circuit’s judgment by an equally divided vote. See United States v. Texas, 136 S. Ct. 2271 (2016) (mem).
On January 20, 2017, President Donald J. Trump was sworn into office, and his nominee for Secretary of Homeland Security, John F. Kelly, was confirmed that same day. Six months later, Secretary Kelly issued a memorandum rescinding DAPA, including its expansion of DACA, but leaving the original DACA program in place. AR 235–236. The Texas plaintiffs voluntarily dismissed their challenge to DAPA a few months later. See Pls.’ Stipulation of Voluntary Dismissal, Texas v. United States, No. 14-CV-254 (S.D. Tex. Sep. 12, 2017), ECF No. 473.
C. The Rescission of DACA On September 5, 2017, three months after DAPA’s rescission, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA (the “Rescission Memo”).6 See AR 252–56. The Rescission Memo began by canvassing the procedural history of the Texas litigation, and then noted that “[a]lthough the original DACA policy was not challenged in [that] lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum.” AR 253. Specifically, the memorandum noted that “[t]he Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary,” and that “[b]oth the district court and the Fifth Circuit concluded that implementation of the program did not comply with the [APA] because the Department did not implement it through notice-and-comment rulemaking.” AR 253–54.
class of what he deems to be low-priority illegal aliens,” Texas, 809 F.3d at 166 (“[Plaintiffs] have not challenged the priority levels [the Secretary] has established, and neither the [district court’s] preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities”). But the Fifth Circuit nonetheless found DAPA to be reviewable because it was “much more than nonenforcement: [i]t would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Id.
6 Secretary Kelly had since been appointed to serve as President Trump’s chief of staff.
7

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 8 of 60
The memorandum also stated that in June 2017, after DAPA had been rescinded but before the Texas litigation was voluntarily dismissed, Texas and the other state plaintiffs in that case had sent a letter to Attorney General Jeff Sessions threatening to challenge DACA in court unless he rescinded the program by September 5, 2017. AR 254; see AR 238–240 (Texas’s demand letter). Attorney General Sessions then sent a one-page letter to Acting Secretary Duke (the “Sessions Letter”) instructing her to rescind DACA. AR 251. The Sessions Letter explained that the program had been “effectuated by the previous administration through executive action, without proper statutory authority and . . . after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result,” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id. The letter also noted that because DACA suffered from “the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. The letter instructed Acting Secretary Duke to “consider” implementing “an orderly and efficient wind-down process” for the program. Id.
In light of the Texas litigation and the Sessions Letter, the Rescission Memo concluded, “it is clear that the . . . DACA program should be terminated.” AR 255. Given “the complexities associated with winding down the program,” however, the Department decided to “provide a limited window in which it will adjudicate certain requests for DACA and associated applications.” Id. Thus, the Department would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018. It would also honor (in most cases) existing grants of
8

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 9 of 60
deferred action, work authorization, and advance parole. But it would reject all other DACA applications, including any initial applications filed after September 5, 2017, and all pending and future applications for advance parole under the DACA program. Effectively, then, DACA benefits were made unavailable to any alien who had not already applied, and existing DACA grants would be allowed to expire permanently beginning in March 2018. Finally, like the earlier DACA and DAPA memorandums, the Rescission Memo stated that it “is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” AR 256. II. LEGAL CHALLENGES TO DACA’S RESCISSION
Since September 2017, legal challenges to DACA’s rescission have been filed in federal district courts throughout the country. Two of these challenges have made their way to the federal courts of appeals, and one has been to the Supreme Court. Because these challenges generally involve similar administrative and constitutional claims, the Court will not address the plaintiffs’ assertions in each case in detail. Nevertheless, a brief overview of this pending litigation landscape will be useful to understand the state of DACA’s rescission today.7
A. Regents of the University of California v. DHS The first set of challenges to DACA’s rescission was filed in September 2017 in federal district court in California. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1026 (N.D. Cal. 2018). The plaintiffs in those cases are the University of California, the State of California and several other states, a group of individual DACA recipients,
7 One case, Park v. Sessions, No. 17-cv-1332 (E.D. Va. filed Nov. 21, 2017), was dismissed pursuant to a stipulation by all parties on March 1, 2018, before any relief was granted. The Court will not discuss that case further.
9

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 10 of 60
two California municipalities, and a labor union. See id. Though not formally consolidated, the cases were all assigned to U.S. District Judge William H. Alsup. See Case Management Scheduling Order, Regents, No. 17-5211 (N.D. Cal. Sept 22, 2017), ECF No. 49.
Shortly after the actions were filed, the government filed an administrative record consisting of “fourteen documents comprising 256 pages of which 187 consisted of published opinions from the DAPA litigation.” Regents, 279 F. Supp. 3d at 1028. “All non-public materials, some eighty-four documents, actually reviewed by the Acting Secretary remained withheld as privileged.” Id. (citation omitted). The district court ordered the government to complete the record, denying many of the government’s claims of privilege. Id. at 1028–29. The government petitioned the Ninth Circuit for a writ of mandamus, but the court of appeals denied the petition. See In re United States, 875 F.3d 1200 (9th Cir. 2017). The government then sought the same relief from the Supreme Court, which construed the government’s mandamus petition as a petition for a writ of certiorari, granted it, vacated the Ninth Circuit’s order, and directed the district court to “first resolve[] the Government’s threshold arguments,” since those arguments, “if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.” In re United States, 138 S. Ct. 443, 444–45 (2017) (per curiam).
While the litigation over the administrative record was pending, the plaintiffs filed a motion for preliminary injunctive relief, and the government moved to dismiss the plaintiffs’ complaints both for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). See Regents, 279 F. Supp. 3d at 1029. Then, following the Supreme Court’s instruction to first address the government’s threshold arguments, the district court denied the government’s Rule 12(b)(1) motion and granted the plaintiffs’ motion for a preliminary
10

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 11 of 60
injunction. Id. at 1036–37. The injunction directed DHS to resume accepting applications for the renewal of DACA benefits, although it did not require the agency to accept new DACA applications or to afford current DACA beneficiaries advance parole. See id. at 1048–49.
In a separate order entered a few days later, the district court denied the government’s Rule 12(b)(6) motion except as to the plaintiffs’ notice-and-comment and Regulatory Flexibility Act claims. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No 17-CV-05211, 2018 WL 401177, at *2 (N.D. Cal. Jan. 12, 2018). The government appealed both orders, and the Ninth Circuit set an expedited briefing schedule. See Order, Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 18-15068 (9th Cir. Jan. 17, 2018), ECF No. 2. The government also petitioned the Supreme Court for a writ of certiorari before judgment, but the Supreme Court denied the petition. See Order, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 171003 (U.S. Feb. 26, 2018). The government’s appeal is currently pending before the Ninth Circuit.
B. Batalla Vidal v. Duke The second challenge also came about in September 2017 when Martin Batalla Vidal, an individual DACA beneficiary who was already engaged in litigation with the Department over the revocation of his employment authorization, amended his complaint to assert a challenge to DACA’s rescission. See Batalla Vidal v. Duke, No. 16-CV-4756, 2017 WL 5201116, at *4 (E.D.N.Y. Nov. 9, 2017). His challenge was later consolidated with two others before Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York. Id. The plaintiffs in the three cases include Mr. Batalla Vidal, the State of New York, fourteen other states and the District of Columbia, and Make the Road New York, a nonprofit. See id. at *4 & n.5. Shortly after the consolidation of the three actions, another dispute arose regarding the scope of the administrative record. The district court ordered the government to produce certain
11

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 12 of 60
documents, see id. at *6–7, and, on the government’s petition for mandamus, the Second Circuit stayed discovery pending the district court’s resolution of “issues of jurisdiction and justiciability.” Id. at *8. The government then filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6). Id.
The district court denied the government’s Rule 12(b)(1) motion (except as to some plaintiffs that the court found lacked standing), see id. at *20, but it later certified its decision for an interlocutory appeal, see Batalla Vidal v. Nielsen, 16-CV-4756, 2018 WL 333515, at *1 (E.D.N.Y. Jan. 8, 2018). The Second Circuit then held the government’s petition for leave to file an interlocutory appeal in abeyance pending the district court’s resolution of the government’s Rule 12(b)(6) motion and the plaintiffs’ motion for a preliminary injunction, which the plaintiffs had filed while issues related to the interlocutory appeal were being litigated. See Certified Order, Nielsen v. Vidal, No. 18-122 (2d Cir. Jan. 31, 2018), ECF No. 46.
A few weeks later, the district court granted the plaintiffs’ motion for a preliminary injunction. See Batalla Vidal v. Nielsen, 279 F. Supp. 401, 437–38 (E.D.N.Y. 2018). The scope of the court’s injunction was the same as in Regents: it required the Department to resume consideration of renewal applications but did not require the consideration of initial applications or applications for advance parole. Id. at 437–38. The government took an interlocutory appeal, and the next day, the Second Circuit denied the mandamus petition that it had previously held in abeyance and vacated its earlier discovery stay. See Certified Order, In re Nielson, No. 17-3345 (2d Cir. Feb. 21, 2018), ECF No. 181. The Second Circuit thereafter granted the government’s motion to expedite the appeal, which is pending at this time. See Certified Order, Vidal v. Nielsen, No. 18-485 (2d Cir. Mar. 8, 2018), ECF No. 62.
12

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 13 of 60
While the expedited appeal was pending, the district court granted in part and denied in part the government’s pending 12(b)(6) motion.8 See Batalla Vidal v. Nielsen, No. 16-cv-4756, 2018 WL 1532370, at *1 (E.D.N.Y. Mar. 29, 2018). The court denied the motion as to plaintiffs’ substantive APA claims for substantially the same reasons that it had previously found a substantial likelihood of success on the merits of those claims, id. at *3, but granted the motion as to their procedural APA and Regulatory Flexibility Act (“RFA”) claims. Id. at *5–6. The court also denied the motion as to the plaintiffs’ equal protection claims, id. at *6–10, although it granted the motion as to their information-sharing claim, concluding that the plaintiffs had “not plausibly alleged that DHS actually changed its information-sharing policy,” id. at *11. Finally, the court granted the motion as to plaintiffs’ procedural due process claim, except as to certain plaintiffs who alleged that their renewal applications had been improperly rejected as untimely or were erroneously deemed to contain minor clerical errors. Id. at *14.
C. Casa de Maryland v. DHS The plaintiffs in the third case, CASA de Maryland v. U.S. Dep’t of Homeland Security, 284 F. Supp. 3d 758 (D. Md. 2018), are individual DACA recipients and several nonprofit organizations. In March 2018, the district court (Judge Roger W. Titus) ruled that although DACA’s rescission was reviewable, it did not violate the APA or the Equal Protection or Due Process Clauses. See id. at 770, 773–77, 779. The district court summarized its decision to depart from the Regents and Batalla Vidal courts on the substantive APA claim as follows:
The decisions to date by courts in California and New York are premised on the legal conclusion that DACA is lawful, and therefore, a decision to rescind DACA on the basis of unlawfulness is necessarily arbitrary and capricious.
8 That motion also sought dismissal under Rule 12(b)(1) (on standing and mootness grounds) of the Batalla Vidal plaintiffs’ procedural due process claim, which had been presented for the first time in their third amended complaint. Batalla Vidal, 2018 WL 1532370, at *12–13. The court denied the motion to dismiss on that ground.
13

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 14 of 60
Respectfully, this Court disagrees. Regardless of the lawfulness of DACA, the appropriate inquiry is whether or not DHS made a reasoned decision to rescind DACA based on the Administrative Record . . . . Given the fate of DAPA, the legal advice provided by the Attorney General, and the threat of imminent litigation, it was reasonable for DHS to have concluded—right or wrong—that DACA was unlawful and should be wound down in an orderly manner. Therefore, its decision to rescind DACA cannot be arbitrary and capricious. Id. at 767–768 (citation omitted). However, the district court did grant one form of relief not granted by the courts in Regents or Batalla Vidal: it enjoined DHS from “using information provided by Dreamers through the DACA program for enforcement purposes,” explaining that so doing would violate applicable principles of equitable estoppel. Id. at 779. As of the date of this decision, neither party has appealed the district court’s order, although the time in which to do so has not yet expired. See Fed. R. App. P. 4 (a)(1)(B). III. THE PRESENT CHALLENGES TO DACA’S RESCISSION The cases currently before this Court, NAACP v. Trump and Princeton v. United States, were filed in September and November 2017, respectively, and have been consolidated for purposes of the dispositive motions pending in each. The plaintiffs in the Princeton action are Princeton University, Microsoft Corporation, and Maria de la Cruz Perales Sanchez, a DACA beneficiary and Princeton undergraduate. See Compl. (“Princeton Compl.”) [ECF No. 1] at 12. The plaintiffs in the NAACP action are the National Association for the Advancement of Colored People (“NAACP”), the American Federation of Teachers (“AFT”), and the United Food and Commercial Workers International Union (“UFCW”). See First Amended Complaint at 3–5, NAACP, No. 17-cv-1907 (D.D.C. Oct. 24, 2017), ECF No. 10 (“NAACP FAC”). Both sets of plaintiffs challenge DACA’s rescission on various administrative and constitutional grounds, including that it was arbitrary and capricious, see Pls.’ Mem. in Supp. of Pls.’ Mot. for Summ. J.
14

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 15 of 60
(“Princeton MSJ”) at 11–38; that it should have undergone notice-and-comment procedures, see id. at 38–41; that its effects on “small entities” should have been analyzed pursuant to the RFA, 5 U.S.C. §§ 601–12, see NAACP FAC 16–17; and that it violates the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments, see Princeton Compl. at 35–40.
The government has filed motions to dismiss in both actions. It argues: (1) that plaintiffs’ APA claims should be dismissed because DACA’s rescission was “committed to agency discretion by law” and is therefore unreviewable under 5 U.S.C. § 701(a)(2), see Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (“Princeton MTD”) [ECF No. 8] at 14–21; (2) that a provision of the INA, 8 U.S.C. § 1252(g), deprives the Court of subject-matter jurisdiction, see id. at 21–24; (3) that all plaintiffs but Ms. Perales Sanchez lack Article III and prudential standing, see id. at 24–25; Mem. in Supp. of Defs.’ Mot. to Dismiss, No. 17-cv-1907 (D.D.C. Nov. 8, 2018) (“NAACP MTD”) at 14–18; and (4) that plaintiffs have failed to state a claim under the APA, the RFA, and the Constitution, Princeton MTD at 27–44.
Plaintiffs have moved for summary judgment only on their APA claims, or alternatively, for preliminary injunctive relief “[t]o the extent the Court wishes to see [the discovery] issues [in Regents and Batalla Vidal] litigated before granting final judgment to the Plaintiffs.” Princeton MSJ at 3 & n.1. Unlike the plaintiffs in Regents and Batalla Vidal, however, plaintiffs here have not challenged the completeness of the administrative record, see 5 U.S.C. § 706 (providing that, in reviewing agency action, “the court shall review the whole record or those parts of it cited by a party” (emphasis added)), and the government urges the Court to decide the pending motions on the current record, see Princeton MTD at 3 (“[T]he Court should either uphold the Rescission Policy and grant this motion if it agrees that the record supports Defendants’ position, or set aside
15

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 16 of 60

the Rescission Policy if it disagrees.”). Finally, plaintiffs have also moved for a preliminary

injunction preventing DHS from sharing or otherwise using DACA beneficiaries’ personal

information for immigration enforcement purposes. See Princeton MSJ at 48–53.

The Court initially set a motions hearing in this case for February 2018, but the hearing

was continued at the parties’ request pending the government’s petition for certiorari before

judgment in the Regents case. See January 26, 2018 Min. Order. That petition was denied in late

February, and the Court held a motions hearing in mid-March. The parties’ motions are now ripe

for decision.

DISCUSSION

I.

SUBJECT-MATTER JURISDICTION

A. The Immigration and Nationality Act The government argues that the Court lacks jurisdiction over all of plaintiffs’ claims—

administrative and constitutional—under 8 U.S.C. § 1252(g), a provision of the INA that states

that “no court shall have 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 commence proceedings, adjudicate cases,

or execute removal orders against any alien under this chapter.” On its face, that language removes

jurisdiction only as to the three listed actions of the Attorney General. The government argues

that “[t]he denial of deferred action is a step toward the commencement of removal proceedings

against an alien” and that “the INA’s careful scheme for [removal] proceedings” suggests that such

denials may be challenged only through individual removal proceedings, and hence § 1252(g)

strips the Court of jurisdiction over plaintiffs’ challenge here. Defs.’ Reply in Supp. of their Mot.

to Dismiss (“Defs.’ Reply”) [ECF No. 56] at 10.

16

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 17 of 60
The government’s position contradicts not only the plain language of § 1252(g) but also the Supreme Court’s interpretation of that language in Reno v. American–Arab AntiDiscrimination Committee (“AAADC”), where the Court specifically rejected the argument 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.” 525 U.S. 471, 482 (1999). Rather, the Court explained, § 1252(g) applies “only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. (listing “part[s] of the deportation process” that fall outside of § 1252(g)’s scope, including “decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order”). Because the rescission of DACA is neither the commencement of a proceeding, the adjudication of a case, nor the execution of a removal order, § 1252(g) is inapplicable here pursuant to the provision’s plain language.
The government’s only response is that DACA’s rescission is a “step toward” the removal of specific aliens. See Defs.’ Reply at 10; but see id. at 2 (stressing elsewhere that rescission “does not, in itself, exert the agency’s coercive power over any individual”). True, the Supreme Court said in AAADC that § 1252(g) was “specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.” 525 U.S. at 487. But there is no allegation here that removal proceedings have yet been initiated against any DACA beneficiary, so there are no pending removal proceedings with which plaintiffs’ challenge might interfere. Cf. id. (concluding that § 1252(g) stripped jurisdiction over selective deportation claims brought by six aliens who were then in removal proceedings). Thus, the government’s reliance on AAADC is misplaced,
17

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 18 of 60
and § 1252(g) does not bar review here. Accord Regents, 279 F. Supp. 3d at 1031–1033 (rejecting the government’s § 1252(g) argument); Batalla Vidal, 2017 WL 5201116, at *12–13 (same).
B. Article III Standing The government also asks the Court to dismiss the claims brought by Princeton and Microsoft, Princeton MTD at 24–25, and by all plaintiffs in the NAACP action, see NAACP MTD at 14–17, for lack of Article III standing. In so moving, the government urges the Court to conduct a “claim-by-claim analysis” of each plaintiff’s standing as to each claim. Defs.’ Reply 11. Such a detailed analysis is unnecessary, however, at least in Princeton. The government does not dispute that the individual plaintiff, Ms. Perales Sanchez, has Article III standing to assert each claim in the complaint.9 See Princeton MTD 24–25 (seeking dismissal only as to the “[n]on[i]ndividual [p]laintiffs”); Princeton Compl. 30–38 (listing Ms. Perales Sanchez as a plaintiff on each count). And as the Supreme Court has recently reaffirmed, Article III requires only that “[a]t least one plaintiff . . . have standing to seek each form of relief requested in the complaint.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). In Princeton, that “one plaintiff” is Ms. Perales Sanchez, and no further analysis of any other plaintiff’s standing is necessary.
9 Nor could they. Ms. Perales Sanchez clearly satisfies the “irreducible constitutional minimum” of standing as to DACA’s rescission: her inability to renew her DACA benefits is (1) an “injury in fact,” which is “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical”; it is (2) “fairly traceable” to DHS’s decision to rescind DACA; and it is (3) “likely to be redressed” by a decision of this Court invalidating DACA’s rescission. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016) (internal quotation marks omitted). And although the Court ultimately concludes that plaintiffs fail to state a claim as to DHS’s alleged plans to share DACA beneficiaries’ information with immigration enforcement agencies, the Court concludes—and the government does not dispute—that Ms. Perales Sanchez has standing to assert that claim as well. See Princeton Compl. ¶ 108 (alleging that DHS has “revised [its] assurances about information sharing” and now “offer[s] only to prevent personal information from being provided ‘proactively’ to agencies responsible for facilitating removal”); cf. Clapper v. Amnesty Int’l, 568 U.S. 398, 411 (2013) (finding that the plaintiffs’ asserted injury was too speculative when it relied on a hypothetical sequence of government actions that culminated in their communications being monitored).
18

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 19 of 60
In NAACP, however, there is no individual plaintiff. The organizational plaintiffs—the NAACP and two labor unions—therefore must rely on their own standing to survive the government’s motion to dismiss. These plaintiffs assert that they have “associational standing,” which requires each of them to plead that “(1) at least one of its members would have standing to sue in his or her own right; (2) the interests it seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of an individual member of the organization in the suit.” AARP v. EEOC, 226 F. Supp. 3d 7, 16 (D.D.C. 2016) (citation omitted). As in Princeton, if one of the three NAACP plaintiffs has standing, then an analysis of the remaining plaintiffs’ standing is unnecessary.
The parties do not dispute that the NAACP plaintiffs meet the third prong of the test for representational standing—they do. See NAACP MTD at 16–17 (not arguing that the participation of individual members should be required). And although the government contends that the NAACP plaintiffs fail the first prong because their complaint does not “name a specific member with standing,” see id. at 16, each plaintiff provided an anonymous affidavit from at least one of its members stating that the member was a DACA beneficiary, see, e.g., Princeton MSJ, Ex. W [ECF No. 28-17] (declaration of NAACP member), and the government does not seriously dispute—nor could it—that these affidavits are sufficient.10 Thus, the only remaining issue is whether the rescission of DACA is germane to the organizational plaintiffs’ purposes.
10 The government initially argued that the organizational plaintiffs had to name these members. See NAACP MTD at 16. The authority for that proposition is tenuous, however, see Young Am.’s Found. v. Gates, 560 F. Supp. 2d 39, 49 (D.D.C. 2008) (“[I]t is not clear that [associational standing] actually requires a name-specific identification.”), aff’d, 573 F.3d 797 (D.C. Cir. 2009); Doe v. Stincer, 175 F.3d 879, 884 (11th Cir. 1999) (“[W]e have never held that a party suing as a representative must specifically name the individual on whose behalf the suit is brought . . . .”), and the government did not renew the argument in its reply brief, see Defs.’ Reply at 12–13.
19

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 20 of 60
The germaneness requirement is “undemanding” and requires “mere pertinence between litigation subject and organizational purpose.” Humane Soc. of the U.S. v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). Here, the NAACP has alleged that its purpose is to “ensure the political, educational, social, and economic equality of all persons,” particularly “people of color.” NAACP Compl. at 3–4. This mission is “pertinent” to the subject of the litigation here, because plaintiffs have alleged that “[n]early all of the DACA registrants—more than 95%—are people of color,” id. at 12, and that DACA confers various educational, social, and economic benefits on those individuals, see id. at 2. At this stage of the litigation, these allegations are sufficient to establish the NAACP’s standing—which, in turn, is sufficient to establish the standing of the other two plaintiffs in the NAACP action. See Hodel, 840 F.2d at 59 (concluding that an association’s “members’ aesthetic interest in viewing live animals and birds” was sufficiently germane to a lawsuit whose purpose was “keeping animals and birds alive and well”). Thus, at least one plaintiff has standing to assert every claim in both of the actions currently before the Court, and the government’s motions to dismiss for lack of standing will be denied. II. ADMINISTRATIVE CHALLENGES
As noted above, plaintiffs assert various administrative challenges to DACA’s rescission, including that it was arbitrary and capricious, that it required notice and comment, and that it ran afoul of RFA’s requirement that an agency consider the effects of its actions on small entities. The government raises two threshold arguments that apply only to plaintiffs’ administrative claims: first, that DACA’s rescission was unreviewable under the APA’s carve-out for actions “committed
20

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 21 of 60
to agency discretion by law,” 5 U.S.C. § 701(a)(2);11 and second, that plaintiffs fall outside the “zone of interests” protected by the APA and RFA. The Court will first address the government’s threshold arguments and then proceed to the merits of plaintiffs’ claims.
A. Reviewability The APA “applies, according to the provisions thereof, except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). The Supreme Court has explained the difference between § 701(a)(1) and (a)(2) as follows: The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review 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. In such a case, the statute (‘law’) can be taken to have ‘committed’ the decisionmaking to the agency’s judgment absolutely. Heckler v. Chaney, 470 U.S. 821, 828 (1985) (emphasis added). Thus, in determining whether a particular agency action is “committed to agency discretion by law,” courts ask whether “statutes are drawn in such broad terms that in a given case there is no law to apply.” Id. (citations and internal quotation marks omitted); see also Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002) (“[T]he ‘no law to apply’ formula has come to refer to the search for substantive legal criteria against which an agency’s conduct can be seriously evaluated.”). One category of agency action that the Court has held to be “presumptively unreviewable” under § 701(a)(2) is an agency’s decision “not to institute enforcement proceedings.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (citing Chaney, 470 U.S. at 831). The Supreme Court first
11 “[A] complaint seeking review of agency action ‘committed to agency discretion by law’ has failed to state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (citations omitted).
21

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 22 of 60
identified this presumption in Chaney, a case in which a group of death-sentenced prisoners petitioned the Food and Drug Administration (“FDA”) to prevent the use in lethal injections of certain drugs that the agency had not approved for that purpose. See 470 U.S. at 823. The FDA refused, explaining not only that was it “unclear” that it had “jurisdiction over the unapproved use of approved drugs for human execution,” but also that given the absence of any “danger to the public health or a blatant scheme to defraud,” even if the agency did have jurisdiction, it would “decline to exercise [that jurisdiction] under [its] inherent discretion to decline to pursue certain enforcement matters.” Id. at 824–25. The plaintiffs filed suit, seeking an order directing the FDA to take enforcement action. The district court granted summary judgment for the agency, holding that its decision not to act was unreviewable under § 701(a)(2), but the court of appeals reversed with instructions to order the agency to “fulfill its statutory function.” Id. at 825–27.
The Supreme Court granted certiorari and reversed. “[A]gency decisions to refuse enforcement,” the Court explained, are “general[ly] unsuit[able] for judicial review” for several reasons. Id. at 831. Such decisions call for “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” including “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, [and] whether the particular enforcement action requested best fits the agency’s overall policies.” Id. Moreover, nonenforcement decisions generally do not involve the exercise of “coercive power over an individual’s liberty or property rights”; they provide no “focus for judicial review”; and they “share[] to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch.” Id. at 832. For these reasons, such decisions have “traditionally been ‘committed to
22

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 23 of 60
agency discretion,’ and we believe that the Congress enacting the APA did not intend to alter that tradition.” Id. Thus, the Court concluded, “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” Id. The Court was careful to note, however, that this presumption of unreviewability “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 833. Critically for purposes of this case, moreover, the Court reserved judgment on whether the presumption applies where an agency “refuse[s] . . . to institute proceedings based solely on the belief that it lacks jurisdiction.” Id. at 833 n.4 (internal quotation marks omitted).
Although the Supreme Court has not yet answered the question reserved in Chaney, the D.C. Circuit has addressed it. In Crowley Caribbean Transport, Inc. v. Pena, for example, the issue was whether Chaney’s presumption of unreviewability applied to the Maritime Administration’s refusal to take an enforcement action under a provision of the Merchant Marine Act of 1936 (the “1936 Act”) that the agency thought was inapplicable as a matter of law. See 37 F.3d at 672–73. The D.C. Circuit began by noting that Chaney had reserved judgment on almost exactly this issue and then observed that two intervening circuit decisions seemed to have answered the question in contradictory ways. See id. at 675–76 (citing Safe Energy Coal. of Mich. v. U.S. Nuclear Regulatory Comm’n, 866 F.2d 1473, 1477 (D.C. Cir. 1989) (presumption of unreviewability applied to the agency’s refusal, based on its interpretation of its own regulations, to take enforcement action against a nuclear reactor); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 244–45 (D.C. Cir. 1986) (presumption of unreviewability did not apply to the Department of Labor’s refusal, based on its interpretation of the labor laws, to take enforcement action in response to a union complaint)).
23

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 24 of 60
After noting that “[a]s a circuit, we seem to have no explicit rule on how to proceed when we have inconsistent precedents,” id. at 675, the court relied on language from an intervening Supreme Court decision, ICC v. Brotherhood of Locomotive Engineers (“BLE”), 482 U.S. 270 (1987), to resolve the intra-circuit split. BLE held that an agency’s refusal to reconsider a decision on the basis of “material error”—that is, because it was erroneous when made, not because of changed circumstances or newly discovered evidence—is “committed to agency discretion by law” under § 701(a)(2), even if it is based on the agency’s interpretation of a statute. Id. at 278– 84. In reaching this conclusion, the Supreme Court rejected what it took to be the concurrence’s suggestion that “if [an] agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.”12 Id. at 283. To refute this proposition, the Court explained,
it is enough to observe that a common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction. That is surely an eminently “reviewable” proposition, in the sense that courts are well qualified to consider the point; yet it is entirely clear that the refusal to prosecute cannot be the subject of judicial review. Id. Citing this passage, the Crowley court concluded that BLE, “though not in the Chaney context, squarely rejects the notion of carving reviewable legal rulings out from the middle of nonreviewable actions.” Crowley, 37 F.3d at 676. Thus, the court held, there was “no basis for review of the Maritime Administrator’s single-shot non-enforcement decision.” Id. The D.C. Circuit in Crowley was careful to preserve another line of circuit precedent, however, which holds that Chaney’s presumption of unreviewability does not apply to “an
12 The concurrence disputed this characterization of its argument. See id. at 290 n.2 (Stevens, J., concurring in the judgment). Its point was that because an agency’s action can be sustained only on the grounds invoked by the agency, “when an agency explains that it has denied a petition for reopening based on . . . its reading of a statute or a constitutional provision, its decision cannot be sustained on the conjecture that it has the discretion to deny reopening on a variety of grounds.” BLE, 482 U.S. at 290–291 (Stevens, J., concurring in the judgment).
24

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 25 of 60
agency’s announcement of its interpretation of a statute, even when that interpretation is advanced
in the context of a decision not to take enforcement action.” Edison Elec. Inst. v. EPA, 996 F.2d
326, 333 (D.C. Cir. 1993) (citations and internal quotation marks omitted).13 The key difference,
the Crowley court explained, was that while the case before it involved an agency’s refusal to act
on a single complaint, those prior cases involved “an agency’s statement of a general enforcement
policy” that was either “expressed . . . as a formal regulation after the full rulemaking
process . . . or . . . otherwise articulated . . . in some form of universal policy statement.” Crowley,
37 F.3d at 676. The court then pointed out the “ample reasons for distinguishing the two”:
[First,] general statements [of enforcement policy] . . . are more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion. Second, an agency’s pronouncement of a broad policy against enforcement poses special risks that it ‘has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities,’ a situation in which the normal presumption of nonreviewability may be inappropriate. Finally, an agency will generally present a clearer (and more easily reviewable) statement of its reasons for acting when formally articulating a broadly applicable enforcement policy . . . .
Id. at 677 (quoting Chaney, 470 U.S. at 833 n.4). Thus, the court concluded in Crowley, an
individual nonenforcement decision is presumptively unreviewable even if it is based solely on
legal grounds, even though “an agency’s statement of a general enforcement policy may be
reviewable for legal sufficiency.” Id. at 676–677.
13 See id. (holding that the presumption of unreviewability did not apply to the agency’s determination that a statutory requirement applied to the plaintiffs, even though that determination was made in a policy statement that communicated the agency’s intent not to enforce that requirement); Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (“[T]he presumption of unreviewability of agency nonenforcement decisions is inapplicable or at least rebutted [where a plaintiff] raises a facial challenge to [an agency’s] statutory interpretation embodied in [a regulation] and does not contest a particular enforcement decision.”).
25

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 26 of 60
The D.C. Circuit has applied Crowley only once, in OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998). In that case, a plaintiff challenged the Maritime Administration’s longstanding policy of refusing to enforce a different provision of the 1936 Act against certain vessels. See id. at 811 (explaining that the agency had “long allowed” vessels built with the aid of a federal subsidy that was reserved for ships that would be operated exclusively in foreign trade to enter the domestic shipping market at the end of their economic lives). Citing Crowley for the proposition that while “agencies’ nonenforcement decisions are generally unreviewable . . . , an agency’s adoption of a general enforcement policy is subject to review,” the court concluded that the Maritime Administration’s policy was not presumptively unreviewable because it was not a “single-shot non-enforcement decision.” Id. at 812 (citation omitted).
The government contends that Chaney’s presumption of unreviewability applies here. See Princeton MTD at 17. Like the FDA’s refusal to take the enforcement actions at issue in Chaney, the government argues, DHS’s decision to rescind a deferred-action policy like DACA involves a “complicated balancing” of the agency’s enforcement and resource-allocation priorities, and it resembles the “[c]hanges in policy as to criminal prosecutorial discretion” that “regularly occur within and between presidential administrations.” Defs.’ Reply at 2–3, 26. Moreover, the Supreme Court has said that the concerns that counsel against judicial review in the criminal context are “greatly magnified in the deportation context,” where delaying removal “is often the principal object of resistance to a deportation proceeding” and where delays “permit and prolong a continuing violation” of the federal immigration laws. AAADC, 525 U.S. at 490. Nor do Crowley and OSG apply here, the government argues, because those cases involved an agency’s
26

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 27 of 60
interpretation of a specific statutory provision, whereas this case involves the agency’s evaluation of its overall statutory authority.
Plaintiffs resist the application of Chaney’s presumption on two grounds. First, they argue, Chaney itself involved a decision not to enforce a statute, whereas DACA’s rescission was, in essence, a decision to resume enforcing the immigration laws. Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”) [ECF No. 23] at 6. This matters because two of Chaney’s reasons for its presumption apply “unique[ly] to non-enforcement decisions”: the absence of the exercise of “coercive power” over any person, and the lack of any “focus for judicial review.” Id.
This distinction is unpersuasive. For one thing, the rescission of DACA does not actually require the Department to initiate removal proceedings against any specific alien; rather, it simply removes a mechanism by which certain aliens otherwise could have been considered for deferred action. Thus, like the FDA’s nonenforcement decision in Chaney, there are no agency proceedings here to provide a “focus for judicial review,” 470 U.S. at 832, and DACA’s rescission does not itself involve the exercise of coercive power over any person.14
Moreover, Chaney’s remaining rationales apply here with equal force. An agency’s decision to revoke a nonenforcement policy involves the same prioritization and resourceallocation considerations as its decision to implement such a policy. See Chaney, 470 U.S. at 831.
14 True, there is an element of coercion in the revocation of work authorization and other benefits associated with DACA. But the revocation of those benefits is not itself an enforcement decision and is therefore not properly analyzed under Chaney. See 470 U.S. at 832. Indeed, at least one other court has concluded that the withholding of work authorization and similar discretionary benefits is unreviewable under § 701(a)(2) simply because “[t]here are no statutory standards . . . to apply.” See Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990) (holding that § 701(a)(2) precluded review of a categorical refusal by a district office of the then-Immigration and Naturalization Service to grant work authorization and pre-hearing voluntary departure to a certain class of eligible aliens over a three-year period); cf. Texas, 809 F.3d at 166–68 (holding that conferring such benefits, especially “in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization,” was a nondiscretionary determination sufficient to permit APA review).
27

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 28 of 60
And both types of decisions are substantially immunized from judicial review in the criminal context. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (“[T]he decision whether or not to prosecute . . . generally rests entirely in [the prosecutor’s] discretion[,] . . . subject to constitutional constraints.” (citations omitted)). Thus, although the D.C. Circuit has at times warned against extending Chaney “outside of [the] context” of “decisions not to take enforcement action,” Robbins v. Reagan, 780 F.2d 37, 46 (D.C. Cir. 1985) (rejecting Chaney’s application to a decision to withhold federal funding from a homeless shelter), this Court has little difficulty concluding that Chaney extends to the revocation of nonenforcement decisions.
Second, plaintiffs contend that under Crowley and OSG, any general enforcement policy is exempt from Chaney’s presumption of unreviewability, regardless of whether it is premised on a legal interpretation. See Pls.’ Opp’n at 7; Tr. Of Mots. Hr’g [ECF No. 64] (“Oral Arg. Tr.”) at 21:6–11. Concededly, there is some language in the post-Crowley case law to support this view. See, e.g., OSG, 132 F.3d at 812 (stating that “an agency’s adoption of a general enforcement policy is subject to review”); Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 283 F.3d 339, 343 (D.C. Cir. 2002) (noting “our assumption in Crowley that a district court might have jurisdiction over an agency’s articulation of its general enforcement policy”).
But plaintiffs’ reading of this language is unpersuasive for at least two reasons. First, it is in substantial tension with Chaney itself, where the plaintiffs had asked the FDA to take “various investigatory and enforcement actions” against drug manufacturers, state prisons, and “all those in the chain of distribution who knowingly distribute or purchase the drugs [at issue] with intent to use them for human execution.” 470 U.S. at 824; see id. at 842 (Marshall, J., concurring in the judgment) (noting that “the number of people currently affected by the alleged misbranding is
28

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 29 of 60
around 200”). These facts suggest that the FDA’s refusal to act in that case was more than just a one-off nonenforcement decision.15 Second, plaintiffs’ broad reading of Crowley and OSG is unnecessary to support the holdings of those cases, which both involved nonenforcement decisions based solely on agency statutory interpretation. See Crowley, 37 F. 3d at 672–73; OSG, 132 F.3d at 810 Better, then, to adhere to the lines that the D.C. Circuit and the Supreme Court have actually drawn: between legal interpretations couched as broad enforcement policies (which are reviewable, as in OSG), individual enforcement decisions (which are presumptively unreviewable, as in Crowley), and discretionary enforcement policies (which are presumptively unreviewable, as in Chaney itself).
Indeed, the government’s reading of Crowley and OSG proceeds essentially along these lines. In the government’s view, those cases stand for the proposition that “if [an] agency’s interpretation of a statute is embedded in a non-reviewable enforcement policy, the former may be reviewable as such,” but “the enforcement policy itself” is presumptively insulated from review. Defs.’ Reply at 6 (emphasis added). Thus, according to the government, Crowley and OSG address the “flipside” of the Supreme Court’s dictum in BLE: just as an otherwise unreviewable agency action (like a refusal to reconsider an earlier decision, as in BLE, or a nonenforcement decision, as in Chaney and Crowley) does not become reviewable simply because the agency acts on the basis of its interpretation of a statute, an otherwise reviewable interpretation of a statute does not become presumptively unreviewable simply because the agency characterizes it as an exercise of enforcement discretion. See Oral Arg. Tr. at 15:5–13.
15 Justice Brennan joined the Court’s opinion on the understanding that it applied only to “[i]ndividual, isolated nonenforcement decisions.” Id. at 839 (Brennan, J., concurring). Seven other justices joined the majority opinion in full, however, and none of them took Justice Brennan’s view.
29

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 30 of 60
The Court has no quarrel with this statement of the law as a general matter, but it is unpersuaded by the government’s attempt to apply that law to this case. The government contends that the Crowley/OSG exception does not apply here because the Rescission Memo “does not contain an embedded interpretation of the INA (or any other statute).” Defs.’ Reply at 6. But the Sessions Letter makes clear that DACA’s rescission was based (at least in significant part) on the Attorney General’s view that the program lacked “proper statutory authority.” AR 251.
As best the Court can tell, the government’s response is that Crowley and OSG are distinguishable because they involved an agency’s determination that a specific statutory provision applied to a particular course of conduct, whereas this case—like Chaney—involves an agency’s determination as to the scope of its statutory (and here, also constitutional) authority. See Oral Arg. Tr. at 57:24–58:9 (arguing that Crowley applies only “where there’s an interpretation of a substantive provision of the statute”); id. at 8:12–15 (“Plaintiffs nowhere point to any provision in the INA that would substantively constrain the Secretary’s decision . . . to rescind or discontinue DACA.”). But this strikes the Court as a distinction without a difference. To say that a particular agency action is “without statutory authority” is simply to say that no statutory provision authorizes that action; in a sense, therefore, it is a determination of the substantive content of each statutory provision that might plausibly apply. See, e.g., 6 U.S.C. § 202(5) (authorizing the Department to “[e]stablish[] national immigration enforcement policies and priorities”). The Court fails to perceive any meaningful difference between an agency’s conclusion that it lacks statutory authority and its interpretation of a specific statutory provision. See City of Arlington v. FCC, 569 U.S. 290, 299–300 (2013) (rejecting, for purposes of determining the proper standard of judicial review, a similar distinction between “jurisdictional” and “nonjurisdictional” agency
30

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 31 of 60
interpretations and concluding 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”). The government’s attempt to avoid Crowley and OSG on these grounds therefore fails.
The government’s reliance on BLE is equally unavailing. For one thing, as Crowley recognized, BLE addressed the reviewability of enforcement decisions only in dictum; its actual holding concerned the reviewability of an agency’s refusal to reconsider a prior decision. See Crowley, 37 F.3d at 676; BLE, 482 U.S. at 278–84. Moreover, the best account of BLE is the one that the D.C. Circuit actually gave in Crowley, where the court relied on BLE to conclude that Chaney’s presumption of unreviewability applies to individual nonenforcement decisions. See Crowley, 37 F.3d at 676–77. In the same breath, however, the D.C. Circuit reaffirmed its view that general enforcement policies are exempt from Chaney’s presumption of unreviewability where they are predicated solely on the agency’s view of what the law requires. See id. This treatment of BLE by the Crowley court is not only sensible—after all, BLE’s dictum concerned a prosecutor’s decision not to bring a single criminal charge—but it is also binding on this Court.
Nor do the concerns that counsel against judicial review in the immigration context carry much force where, as here, a party seeks judicial review of a legal judgment embedded in an immigration enforcement policy. Unlike judicial review of individual removal proceedings, review of an enforcement policy does not itself delay the removal of any specific alien. See AAADC, 525 U.S. at 490–91 (noting that delay “is often the principal object of resistance to a deportation proceeding” and that it prolongs “an ongoing violation of United States law”). And there is no danger of “chilling law enforcement by subjecting the [agency’s] motives . . . to outside
31

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 32 of 60
inquiry,” since the court need only examine the immigration authority’s legal reasoning. Id. at 490 (alteration omitted). Although many immigration decisions touch on subjects that courts are illequipped to consider, such as diplomacy or national security, see id. at 491, an agency’s interpretation of a statute is a much more natural subject for judicial review. Thus, while immigration policies are generally “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference,” there are good reasons to scrutinize a policy more carefully when it is based solely on an agency’s reading of domestic statutory law. Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999).
Properly understood, then, the Crowley/OSG exception to Chaney’s presumption of unreviewability applies to a legal interpretation phrased as a general enforcement policy, even if that interpretation concerns the scope of the agency’s lawful enforcement authority. And that is essentially what we have here.
But the government has one final line of defense. According to the government, DACA was rescinded not only because of its supposed illegality, but also because of the Attorney General’s assessment of what the government now calls “litigation risk”—that is, the likelihood that DACA would have been invalidated had it been challenged in the Texas litigation. See Defs.’ Reply at 17; AR 254–55. At first blush, this seems to be a “discretionary” consideration that makes this case more like Chaney, where the agency refused to take enforcement action not only because it thought that it lacked jurisdiction (a legal reason), but also because the alleged violations did not implicate the agency’s enforcement priorities (a discretionary reason). See 470 U.S. at 824–25.
It is not difficult to imagine a case where a court’s preliminary disapproval of an agency’s nonenforcement policy could lead the agency to rescind that policy for bona fide discretionary
32

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 33 of 60
reasons. See Chaney, 470 U.S. at 831 (identifying “whether the agency is likely to succeed if it acts” as one of several such reasons). For example, the agency could conclude that the costs of defending the policy in court would outweigh its benefits to the public, or that the negative publicity that would surround the litigation would undermine the policy’s effectiveness. In such cases, the decision to rescind would be “discretionary” in a meaningful sense: the agency would have weighed the policy’s costs and benefits and decided that the former outweighed the latter.
But where an agency asserts that a nonenforcement policy is unlawful and then asserts “litigation risk” as a separate ground for the policy’s rescission, there are reasons to be more suspicious. After all, if an agency could insulate from judicial review any legal interpretation simply by framing it as an enforcement policy and then offering as an additional, “discretionary” justification the assertion that a court would likely agree with the agency’s interpretation, then Crowley would be a dead letter. Moreover, because such an assertion would depend (at least in part) on the correctness of the agency’s view of the policy’s unlawfulness, it would be unlike the independent discretionary ground that triggered the presumption of unreviewability in Chaney itself. See 470 U.S. at 824–25 (noting the FDA’s statement that even if it had jurisdiction, it would still decline to act pursuant to its “inherent discretion to decline to pursue certain enforcement matters”). For these reasons, litigation-strategy justifications deserve closer scrutiny when they are accompanied by agency assertions of unlawfulness.
Here, the Department rescinded DACA for legal reasons—its purported statutory and constitutional defects—and then offered as an additional reason the fact that a federal court of appeals had held that DAPA, a related but distinct deferred-action program, likely suffered from similar defects. See Defs.’ Reply at 17 (citing the “litigation risk posed by the proceedings in
33

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 34 of 60
Texas and the consequent potential for massive disruption were the policy [to be] immediately enjoined”). Although this additional justification was not a bare assertion that a court would likely agree with the agency’s view of the law—since it relied on an actual court’s view of a concededly similar legal issue—it nonetheless raises many of the same concerns. The Crowley/OSG rule would be seriously undermined if an agency could insulate from judicial review any legal interpretation stated as a general enforcement policy simply by pointing to one case where one court tentatively agreed with the agency on a similar legal issue. Moreover, the Department’s conclusion that the Fifth Circuit’s decision to uphold a preliminary injunction of DAPA suggests that a court would likely also impose a preliminary injunction of DACA necessarily relies on the Department’s legal analysis of the similarities between the two policies—which, like the Department’s view of DACA’s legality itself, does not qualify for Chaney’s presumption of unreviewability. Thus, the Court concludes that the Department’s litigation-risk justification was too closely bound up with its evaluation of DACA’s legality to trigger Chaney’s presumption of unreviewability here.
When the litigation-risk justification falls away, all that is left to support DACA’s rescission is the Department’s determination that the program was implemented without proper statutory and constitutional authority—a legal determination which, when made in the context of a general enforcement policy, is not subject to Chaney’s presumption of unreviewability. Thus, like every other court that has considered the question thus far, the Court concludes that DACA’s rescission was not “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see Regents, 279 F. Supp. 3d at 1029–31; Batalla Vidal, 2017 WL 5201116, at *9–12; Casa De Maryland, 284 F. Supp. 3d at 770. The Court will therefore proceed to the merits of plaintiffs’ APA claims.
34

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 35 of 60
* * * To summarize: an agency’s decision whether to take an enforcement action is presumptively unreviewable, and that presumption can normally be rebutted only by pointing to statutory language that constrains the agency’s exercise of its enforcement discretion. See Chaney, 470 U.S. at 832–33. Under circuit precedent, however, an enforcement decision is exempt from the presumption of unreviewability if: (1) it is expressed as a general enforcement policy; and (2) it relies solely on the agency’s view of what the law requires. See OSG, 132 F.3d at 812; Crowley, 37 F.3d at 676–677. This rule not only accords with the applicable case law, but it also preserves the judiciary’s role as the ultimate arbiter of statutory meaning while at the same time affording agencies breathing space to adopt enforcement policies for discretionary reasons. Here, DACA’s rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted. And although the government has sought to cast the Department’s assessment of “litigation risk” as a discretionary justification that brings this case within Chaney’s ambit, that justification is insufficiently independent from the agency’s evaluation of DACA’s legality to trigger Chaney’s presumption of unreviewability. Thus, the Crowley/OSG exemption applies, and the government’s motions to dismiss will be denied to the extent that they assert § 701(a)(2) as a bar to APA review. B. Whether Plaintiffs Possess a Cause of Action Under the APA and RFA The government also argues that the non-individual plaintiffs “lack a cause of action under the APA” because they “cannot meet the zone-of-interest test” used to determine prudential standing. Defs.’ Reply at 13–14; see also NAACP MTD at 18 (framing this argument as one of “prudential standing”). However, “[f]or each claim, if constitutional and prudential standing can be shown for at least one plaintiff, [the Court] need not consider the standing of the other plaintiffs
35

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 36 of 60
to raise that claim.” Mt. States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). Thus, because it is undisputed that Ms. Perales Sanchez’s interests fall within the zone regulated by the INA,16 the Court need not consider prudential standing in Princeton. And the NAACP plaintiffs have prudential standing for essentially the same reason as Ms. Perales Sanchez: each has members who are DACA beneficiaries and whose interests consequently fall within the zone of interests regulated by the INA. See Hodel, 840 F.2d at 61 (concluding that, “[f]or similar reasons [that the court found Article III standing], the interests of [the association’s] members also fall within the zone of interests protected by the Endangered Species Act”).
The NAACP plaintiffs’ RFA claims are another matter. See NAACP FAC 75–82 (alleging that the Department failed to conduct an analysis of the effect of DACA’s rescission on “small entities,” as required by the RFA). “The RFA provides that ‘a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review . . . .’” Nw. Min. Ass’n v. Babbitt, 5 F. Supp. 2d 9, 13 (D.D.C. 1998) (quoting 5 U.S.C. § 611(a)(1)); see also 5 U.S.C. § 601(6) (defining a “small entity” to mean, as relevant here, a “small organization”); id. § 601(4) (defining a “small organization” to be “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field”). Given this statutory language, “the RFA extends standing to seek judicial review only to a ‘small entity.’” Babbitt, 5 F. Supp. 2d at 13. But as the government points out, the NAACP plaintiffs’ complaint “contains only a single conclusory allegation that [they] fall within the statutory definition, and any factual support for that claim is
16 Nor could there be any dispute. As a DACA beneficiary, Ms. Perales Sanchez is “[her]self the subject of the contested regulatory action.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987) (“The ‘zone of interest’ test is a guide for deciding whether . . . a particular plaintiff should be heard to complain of a particular agency decision. . . . [It] denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”).
36

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 37 of 60
missing from (and arguably contradicted by) the declarations submitted in support of their motion for summary judgment.” Defs.’ Reply at 14 (citation omitted) (quoting Princeton MSJ, Ex. R at 2595 [ECF No. 28-17] (declaration from the president of the AFT, stating that “[t]he AFT is a national labor union representing approximately 1.7 million members”); id. at 2618 (declaration from the president of the NAACP, stating that “[t]he NAACP is the nation’s largest . . . civil rights organization”); id. at 2639–40 (declaration from the president of the UFCW, stating that the union “is a labor organization” representing “1.3 million members”)). Thus, the NAACP plaintiffs have not established prudential standing on their RFA claim, and that claim will be dismissed.
C. Procedural Validity The Court turns now to the merits of plaintiffs’ administrative claims, beginning with their argument that DACA’s rescission should have undergone notice-and-comment rulemaking. The APA generally requires notice-and-comment procedures whenever an agency creates, amends, or repeals a rule.17 See 5 U.S.C §§ 551(5), 553(b)–(c). A rule is exempt from this requirement, however, if it is an “interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice.” Id. § 553(b)(A). Here, plaintiffs assert that DACA’s rescission was a “substantive” or “legislative” rule that should have undergone notice and comment, Princeton MSJ at 38–41, while the government contends that DACA’s rescission was “a general statement of policy regarding how DHS will exercise its enforcement discretion,” Defs.’ Reply at 27. On this point, the government has the better of the argument. Accord Regents, 2018
17 The parties do not dispute that DACA’s rescission is a “rule” for APA purposes. See 5 U.S.C. § 551(4) (defining a “rule,” in relevant part, as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency”); see also Texas, 809 F.3d at 171 n.122 (noting that the government likewise did not dispute that DAPA was a rule).
37

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 38 of 60
WL 401177, at *2 (dismissing the notice-and-comment challenge to DACA’s rescission); Batalla Vidal, 2018 WL 1532370, at *5–6 (same); Casa De Maryland, 284 F. Supp. 3d at 772 (same).
The key question in distinguishing between legislative rules (which must undergo notice and comment) and general statements of policy (which need not) is whether the statement in question has a “present binding effect.” Elec. Privacy Info. Ctr. (EPIC) v. DHS, 653 F.3d 1, 7 (D.C. Cir. 2011). “An agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Id. (citation omitted); see Lincoln, 508 U.S. at 197 (describing general statements of policy as “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power” (citation omitted)).
Plaintiffs contend that DACA’s rescission has a present binding effect because it “presently bars DACA beneficiaries from obtaining advance parole or applying to renew DACA relief” and “presently bars DHS officials from exercising their prior discretion in reviewing DACA applications or advance-parole applications.” Princeton MSJ at 40. But this characterization of DACA’s rescission is misleading. The Rescission Memo states the Department’s intent to “reject all DACA initial requests” filed after September 5, 2017 and “not [to] approve any new . . . applications for advance parole,” AR 255; thus, its binding effect is “prospective[],” Lincoln, 508 U.S. at 197 (citation omitted), rather than “present,” EPIC, 653 F.3d at 7 (citation omitted).18 Moreover, the memo expressly states that it places “no limitations . . . on the otherwise lawful enforcement or litigation prerogatives of DHS,” AR 255, which further suggests that it is
18 Although technically the memo does “presently bar DHS officials” from considering DACA and advanceparole applications, Princeton MSJ at 40, this argument proves too much. Any general statement of agency policy will presently bind the agency’s employees; the question, rather, is whether the statement “purport[s] to bind those subject to it.” EPIC, 653 F.3d at 7 (citation omitted). The Rescission Memo does not.
38

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 39 of 60
without present binding effect, cf. McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1319 (D.C. Cir. 1988) (“If a statement denies the decisionmaker discretion . . . so that he, she, or they will automatically decline to entertain challenges to the statement’s position, then the statement is binding . . . .”).
Finally, the fact remains that the Rescission Memo withdrew a prior memorandum, which was itself issued without notice and comment, regarding how DHS intended to “exercise [its] prosecutorial discretion.” AR 1. The Rescission Memo is therefore a clear example of a “statement[] by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Lincoln, 508 U.S. at 197 (citation omitted); see Regents, 2018 WL 401177, at *2 (“For the same reasons that the promulgation of DACA needed no notice and comment, its rescission needed no notice and comment.”). Hence, the rescission of DACA was exempt from notice and comment as a general statement of agency policy.19
D. Substantive Validity The APA provides that a court “shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To satisfy this standard, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.
19 Plaintiffs also argue that DACA’s rescission “‘alter[s] the rights or interests of parties’” (and hence is not a rule of “agency organization, procedure, or practice”) and “makes a ‘substantive change’ to the statutory or regulatory regime” (and hence is not an interpretive rule). Princeton MSJ at 39–40 (quoting EPIC, 653 F.3d at 5–7). The government does not contend that DACA falls under either of these alternative exceptions to the notice-andcomment requirement, however, and the Court therefore will not address these arguments.
39

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 40 of 60
Ins. Co., 463 U.S. 29, 43 (1983)). “[I]f an agency relies on two grounds for a decision, a court may sustain it if one is valid and if the agency would clearly have acted on that ground even if the other were unavailable.” Syracuse Peace Council v. FCC, 867 F.2d 654, 657 (D.C. Cir. 1989). However, because “a reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency,” post hoc explanations that the agency did not articulate when it acted are insufficient. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
Here, the Department never stated, and the government does not now contend, that DACA’s rescission reflected a change in the agency’s immigration enforcement priorities. Instead, the government points to two reasons for DACA’s rescission: first, the Department’s legal conclusion that DACA was unconstitutional and without statutory authority; and second, its assessment of what it now calls “litigation risk”—the likelihood that DACA would have been abruptly enjoined in the Texas litigation. Because these were the only reasons given by the agency, DACA’s rescission can be sustained only on those grounds, even if the agency could have validly rescinded DACA as an exercise of its enforcement discretion. See Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 646 (D.C. Cir. 1998) (“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.’” (citation omitted)).
1. The Department’s Conclusion that DACA Was Unlawful Plaintiffs first attack DHS’s reliance on DACA’s purported unlawfulness as a reason to rescind DACA. They argue both that DHS failed adequately to explain its legal conclusion, see Princeton MSJ at 11–17, and that even if DHS’s explanation were adequate, its conclusion was erroneous, see id. at 17–27. The Court agrees that DHS’s decision was inadequately explained,
40

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 41 of 60
and hence it need not address the alternative argument that DHS’s conclusion was substantively incorrect.
“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, 136 S. Ct. at 2125. Thus, when an agency reverses a prior decision, it must “provide a reasoned explanation for the change.” Id. That explanation need not be “more detailed . . . than what would suffice for a new policy created on a blank slate,” but it must address the “facts and circumstances that underlay or were engendered by the prior policy,” including any “serious reliance interests.” Id. at 2125–26 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)); see also id. at 2126 (“[A]n ‘unexplained inconsistency’ in agency policy ‘is a reason for holding an interpretation to be an arbitrary and capricious change . . . .’” (alterations and citation omitted)).
In concluding that DACA was unlawful, DHS purported to identify both statutory and constitutional defects with the program. For its part, the Rescission Memo pointed to “the Supreme Court’s and the Fifth Circuit’s rulings” in the Texas litigation and then cited the Sessions Letter, see AR 255, which stated that “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.” AR 251. The Sessions Letter also stated that “[s]uch an open-ended circumvention of the immigration laws was an unconstitutional exercise of authority by the Executive Branch,” and later, in its concluding paragraph, it cited the Executive’s duty to “faithfully execute the laws passed by Congress.” Id. It also opined that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA.” Id.
41

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 42 of 60
This scant legal reasoning was insufficient to satisfy the Department’s obligation to explain its departure from its prior stated view that DACA was lawful. In concluding that DACA was implemented “without statutory authority,” neither the Sessions Letter nor the Rescission Memo cited any statutory provision with which DACA was in conflict. Cf. Encino Motorcars, 136 S. Ct. at 2127 (rejecting as inadequate an agency’s statement that a particular statutory exemption “does not include [certain] positions and the [agency] recognizes that there are circumstances under which the requirements for the exemption would not be met”). True, both documents pointed to the Fifth Circuit’s decision in Texas, which held that DAPA likely conflicted with the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.” Texas, 809 F.3d at 179. But the government does not meaningfully dispute that, unlike DAPA, “DACA has ‘no analogue in the INA.’” Defs.’ Reply at 22 (quoting Regents, 279 F. Supp. 3d at 1042). Thus, the Fifth Circuit’s statutory analysis is inapposite.20 The Department’s conclusion that DACA was implemented without statutory authority—based only on an incongruous reference to the Fifth Circuit’s decision on DAPA— therefore cannot support the program’s rescission.
20 The Fifth Circuit also concluded that “there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual.” Texas, 809 F.3d at 173; see id. at 172–176 (upholding the district court’s factual finding that although “the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, . . . those statements were ‘merely pretext’ because only about 5% of [DACA] applications . . . had been denied” and because the government could not identify how many of those had been denied for discretionary reasons (footnote omitted)). But the Fifth Circuit relied on that finding only to conclude that DAPA should have been promulgated using notice-and-comment rulemaking, not that it conflicted substantively with the INA. See id. at 171–178. And although OLC had orally advised the Department 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,” AR 21 n.8, neither the Rescission Memo nor the Sessions Letter identified this purported flaw as a reason for DACA’s invalidity.
42

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 43 of 60
The Department’s explanation for its conclusion that DACA was unconstitutional was
equally opaque. The Sessions Letter made a fleeting reference to the Attorney General’s “duty
to . . . faithfully execute the laws passed by Congress,” AR 251, which could be read to invoke the
President’s constitutional duty to “take Care that the Laws be faithfully executed.” See U.S. Const. art. II, § 3. But the letter made no attempt to explain why DACA breached that duty.21 This failure
was particularly acute in light of a thirty-three page memorandum prepared in 2014 by the Office
of Legal Counsel (“OLC”), which deduced “from the nature of the Take Care duty” no fewer than
“four general . . . principles governing the permissible scope of enforcement discretion” and
concluded that DAPA, a similar deferred-action program, was consistent with all of them. AR 9– 10, 14–36.22 And although the Sessions Letter asserted that DACA suffered from “the
same . . . constitutional defects that the courts recognized as to DAPA,” AR 251, the Fifth Circuit’s
decision in Texas did not actually identify any such defects. Indeed, it expressly declined to
address the plaintiffs’ constitutional claims. See 809 F.3d at 146 n.3. Like its evaluation of its
statutory authority to implement DACA, then, the Department’s analysis of DACA’s
constitutionality was so barebones that the Court cannot “discern[]” the “path” that the agency
21 At least one commentator has identified a second possible constitutional argument in the Sessions Letter: “The Obama administration’s open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine.” See Josh Blackman, Understanding Sessions’s Justification to Rescind DACA, Lawfare (Jan. 16, 2018, 8:00 AM) https://www.lawfareblog.com/understandingsessionss-justification-rescind-daca; see also Texas, 809 F.3d at 150 (noting that the plaintiffs there had asserted “constitutional claims under the Take Care Clause” and the “separation of powers doctrine”). The government does not raise these arguments, however, so the Court will not consider them.
22 The OLC memorandum did not directly address the Department’s authority to implement DACA. See AR 5–14 (discussing the agency’s authority to “prioritize the removal of certain categories of aliens over others”); AR 14–36 (discussing the agency’s authority to implement DAPA). However, the memo did state that OLC had “orally advised” the Department that DACA was lawful so long as “immigration officials retained discretion to evaluate each application on an individualized basis.” AR 21 n.8 (“[T]he concerns animating DACA were . . . consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.”).
43

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 44 of 60
followed. Encino Motorcars, 136 S. Ct. at 2125 (citation omitted).23 Thus, it too cannot support
DACA’s rescission.
The Department’s failure to give an adequate explanation of its legal judgment was
particularly egregious here in light of the reliance interests involved. See Encino Motorcars, 136
S. Ct. at 2126. The Rescission Memo made no mention of the fact that DACA had been in place
for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of
whom had structured their education, employment, and other life activities on the assumption that
they would be able to renew their DACA benefits.24 The Supreme Court has set aside changes in
agency policy for failure to consider reliance interests that pale in comparison to the ones at stake
here. See, e.g., Encino Motorcars, 136 S. Ct. at 2126 (setting aside the Department of Labor’s
interpretation of a statutory exemption from the Fair Labor Standards Act’s overtime-pay
requirements, in part because the agency had failed to address “decades of industry reliance” on
its prior view that the exemption applied to a particular class of employees). Because DHS failed
23 Neither Encino Motorcars nor any of its predecessor cases explicitly required an agency to address its prior views on the legality of its prior policy. See, e.g., Fox, 556 U.S. at 515 (explaining that “[a]n agency may not . . . depart from a prior policy sub silentio” (first emphasis added)). But where, as here, the OLC provides an agency with an opinion that suggests a legal framework for evaluating the legality of a particular program and the agency later rescinds that policy on legal grounds, failure to even consider OLC’s thorough analysis is arbitrary and capricious. See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1464 (2010) (“OLC’s legal advice is treated as binding within the Executive Branch until withdrawn or overruled.”); Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 178 (D.D.C. 2017) (concluding that an “agency’s nonconsideration of [certain] OLC memoranda—whether deliberate or inadvertent—is all the more reason to consider them in reviewing the agency’s action,” because “[a] contrary result would permit agencies to toss aside OLC memoranda that contain legal conclusions contrary to the agency’s preferred policy choices”).
24 See, e.g., Perales Decl. ¶¶ 21–22 (if DACA were rescinded, Ms. Perales Sanchez would have to abandon her plans of conducting postgraduate research in Mexico and then applying to law school, because she could no longer travel abroad, take out student loans, or work lawfully in the United States); Decl. of Jane Doe #2, Ex. S to Princeton MSJ [ECF No. 28-17] ¶¶ 11–13 (current special education teacher and DACA beneficiary would lose her job and would have to abandon her plans of pursuing a doctorate in audiology); Decl. of Jane Doe #5, Ex. X to Princeton MSJ [ECF No. 28-17] ¶ 11 (current undergraduate student and DACA beneficiary would have to abandon her plans of attending law school). Plaintiffs filed a motion for leave to file pseudonymous declarations with their summary judgment motion. See Pls.’ Mot. for Leave to Allow Three Declarants to Proceed by Pseudonym [ECF No. 22]. The government did not oppose the motion, so the Court will treat it as conceded and grant it. See Local Civ. R. 7(b).
44

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 45 of 60
to even acknowledge how heavily DACA beneficiaries had come to rely on the expectation that they would be able to renew their DACA benefits, its barebones legal interpretation was doubly insufficient and cannot support DACA’s rescission.
2. Litigation Risk The Department’s second justification for DACA’s rescission was its conclusion that, if DACA were challenged in the Texas litigation, the district court there would enter a “nationwide injunction” that “would have prompted an immediate—and chaotic—end to the policy.” Defs.’ Reply at 15. Plaintiffs contend that this “litigation risk” conclusion was arbitrary and capricious and hence cannot sustain DACA’s rescission. Princeton MSJ at 28–36. They are correct. As an initial matter, plaintiffs assert that the government’s litigation-risk argument is an “impermissible post hoc rationalization” of the Department’s decision to rescind DACA. Princeton MSJ at 28. Here, plaintiffs miss the mark. Although both the Rescission Memo and the Sessions Letter focused primarily on DACA’s statutory and constitutional defects, the Sessions Letter did state that DAPA was “enjoined on a nationwide basis” and that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” AR 251. Moreover, the Rescission Memo went on to cite this concern as grounds for its decision to “wind [DACA] down in an efficient and orderly manner.” AR 254. Together, these statements were sufficient to express the Department’s concern that a nationwide injunction in the Texas litigation would abruptly shut down the DACA program. See Chenery, 332 U.S. at 196. Nevertheless, this concern does not withstand review under the familiar arbitrary and capricious standard. See State Farm, 463 U.S. at 43. First, as already noted, there was good reason to doubt that the second of the Fifth Circuit’s holdings in Texas—that DAPA conflicted with the express provisions of the INA, see 809 F.3d at 178–86—would extend to DACA, because the INA
45

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 46 of 60
does not prescribe a statutory naturalization process for DACA-eligible individuals. And although the Fifth Circuit’s holding that DAPA should have undergone notice-and-comment rulemaking likely would have extended to DACA,25 see id. at 170–78, it simply does not follow that the district court in Texas was likely to issue an injunction bringing DACA to an abrupt halt.
For one thing, it is black-letter administrative law that when a court sets aside an agency action as procedurally invalid, the proper remedy is to remand the action to allow the agency an opportunity to conduct the required notice-and-comment procedures. See Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002) (observing that “[w]e have previously remanded without vacating when the agency failed to follow notice-and-comment procedures”); C. & S.W. Services, Inc. v. EPA, 220 F.3d 683, 692 (5th Cir. 2000) (remanding without vacatur where the agency “may well be able to justify its decision . . . and it would be disruptive to vacate [the challenged] rule”). It is true, as the government points out, that in Texas the district court preliminarily enjoined DAPA based solely on the program’s failure to have undergone notice-andcomment rulemaking. See Texas, 86 F. Supp. 3d at 677. DAPA was challenged before it took effect, however. See Texas, 809 F.3d at 149. By contrast, as of September 5, 2017 (the date by which the Texas plaintiffs had threatened to challenge DACA, see AR 239), DACA would have been in place for over five years, and hundreds of thousands of applicants would have already been granted deferred action under the program. Thus, assuming that the district court in the Texas litigation would have found DACA defective only on procedural grounds (as a fair reading of the
25 Because DAPA had not yet been implemented, the Fifth Circuit relied in large part on “extrapolation” from evidence regarding DACA’s implementation to conclude that DAPA would not “genuinely leave the agency and its employees free to exercise discretion” and hence was a substantive rule that should have undergone notice and comment. Texas, 809 F.3d at 171–176. The government is correct that “[w]hile that finding had to be ‘extrapolated’ to invalidate DAPA, it directly dooms DACA itself,” at least as far as notice and comment are concerned. Defs.’ Reply at 22 (citations omitted).
46

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 47 of 60
Fifth Circuit’s opinion would suggest), it seems doubtful that the court would have preliminarily enjoined DACA instead of remanding it to the Department, perhaps without vacatur, to undergo notice-and-comment rulemaking.
On the other hand, if the Texas district court were to find that DACA was substantively invalid—or indeed, unconstitutional—injunctive relief rather than remand may have been the more likely remedy. But it still does not follow that the district court’s injunction would have brought the DACA program to an “immediate” and “chaotic” halt. Defs.’ Reply at 15. As the Fifth Circuit has repeatedly recognized, district courts have “broad discretion” to “fashion[] equitable relief,” Crawford v. Silette, 608 F.3d 275, 278 (5th Cir. 2010), including injunctive relief, see ODonnell v. Harris County, 882 F.3d 528, 537 (5th Cir. 2018) (noting that a district court’s injunction is reviewed for abuse of discretion). In light of this discretion, it strains credulity to suggest that the district court would have enjoined DACA immediately and completely without allowing DHS any opportunity to wind the program down. Thus, regardless of the grounds on which the district court in Texas might have ultimately invalidated DACA, the Department’s insistence that an “immediate—and chaotic—end to the policy” would have resulted, Defs.’ Reply at 15, is “so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” State Farm, 463 U.S. at 43, and was therefore arbitrary and capricious.
* * * If, as the Court has concluded, see supra Part II.A, an agency’s general enforcement policy is reviewable to the extent that it is premised on a legal judgment, it follows that the agency must
47

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 48 of 60
explain that judgment in sufficient detail to permit meaningful judicial review.26 See Encino
Motorcars, 136 S. Ct. at 2127. Here, the Department’s conclusory statements were insufficient to
explain the change in its view of DACA’s lawfulness.27 Moreover, the agency’s prediction
regarding the outcome of threatened litigation over DACA’s validity—specifically, that the district
court in the Texas litigation would immediately halt the program, without any opportunity for a
wind-down—was so implausible that it fails even under the deferential arbitrary and capricious
standard. DACA’s rescission will therefore be set aside.28
26 The parties dispute the standard of review that would apply to the agency’s statutory and constitutional analysis had it been adequately explained. The government maintains that it would be reviewed for a “clear error of judgment”—that is, under the ordinary test for arbitrary and capricious agency action. State Farm, 463 U.S. at 43 (citation omitted); see Oral Arg. Tr. at 68:5–18. Plaintiffs contend that review would be de novo. See Teva Pharm. USA, Inc. v. FDA, 441 F.3d 1, 5 (D.C. Cir. 2006) (finding agency action arbitrary and capricious where the agency “mistakenly thought itself bound” by certain D.C. Circuit precedent); Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985) (“An agency decision cannot be sustained, however, where it is based not on the agency's own judgment but on an erroneous view of the law.”). The district court in Batalla Vidal has suggested a third option: because “neither the Sessions Letter nor the DACA Rescission Memo carry the ‘force of law,’” that court concluded, the Department’s “interpretation of the legality of the DACA program is [not] entitled to formal or controlling deference.” Batalla Vidal, 279 F. Supp. 3d at 421 n.9 (E.D.N.Y. 2018) (quoting Mead, 533 U.S. at 226–27). Rather, it would be treated only as persuasive. See Mead, 533 U.S. at 234–35 (explaining that agency interpretations “contained in policy statements, agency manuals, and enforcement guidelines” are “beyond the Chevron pale” and instead deserve “respect proportional to [their] ‘power to persuade’” (quoting Christensen v. Harris Cty., 529 U.S. 576, 587 (2000); then Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Because the Court does not reach the merits of the Department’s conclusions that DACA lacked statutory and constitutional authority, however, it expresses no opinion as to what standard of review would apply.
27 The district court in Casa de Maryland reached the opposite conclusion. See 284 F. Supp. 3d at 772 (finding that DHS had a “reasonable basis” to conclude that DACA was unlawful based on “the DAPA litigation, the threatened legal challenge, and the Attorney General’s advisory letter”). But that court’s brief discussion of the issue failed to address the limited applicability of the Fifth Circuit’s Texas decision to DACA, the inadequacy of the Sessions Letter itself, DHS’s failure to address DACA beneficiaries’ reliance interests, and the implausibility of an injunction issuing in the Texas litigation that would put an immediate end to DACA. Therefore, this Court respectfully disagrees with the Casa de Maryland court’s analysis.
28 The government also urges the Court to construe the Department’s statement that DACA was “unconstitutional in part because it was an ‘open-ended’ policy that closely tracked ‘proposed legislation’ that Congress had repeatedly rejected” as an “independent policy judgment” that “immigration decisions of [DACA’s] magnitude should be left to Congress.” Defs.’ Reply at 21 (quoting AR 251 and citing Syracuse Peace Council, 867 F.2d at 657–58 (holding that if an agency offers two justifications for its decision, one constitutional and one discretionary, and if a court is “persuaded” that the agency would have reached the same result on discretionary grounds had it “foregone its ruminations on the constitutional issue,” the court may avoid the constitutional issue and uphold the agency action only on the discretionary ground)). But the government offers no support for the proposition that an agency’s view as to which branch of government ought to address a particular policy issue is an assessment appropriately committed to the agency’s discretion. Cf. Chaney, 470 U.S. at 831 (listing such assessments).
48

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 49 of 60
E. Remedy Having concluded that DACA’s rescission violated the APA, the question of remedy remains. As an initial matter, the Court will reject the government’s invitation to confine its grant of relief strictly to the plaintiffs in this action. See Defs.’ Reply at 44–45. As plaintiffs point out, the D.C. Circuit has previously rejected an agency’s suggestion that “the named plaintiffs alone should be protected by [an] injunction,” explaining that “[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.” Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989). Moreover, as the Fifth Circuit noted in Texas, the immigration context counsels strongly in favor of nationwide relief: “the Constitution requires ‘an uniform Rule of Naturalization,’” 809 F.3d at 187 (quoting U.S. Const. art. I, § 8), “Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly,’” id. at 187–88 (quoting Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 115(1), 100 Stat. 3359, 3384), “and the Supreme Court has described immigration policy as ‘a comprehensive and unified system,’” id. at 188 (quoting Arizona v. United States, 567 U.S. 387, 401 (2012)). Thus, the Court concludes that nationwide relief is appropriate here. The only remaining issue, then, is what form the Court’s relief should take. “[U]nsupported agency action normally warrants vacatur.” Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005). But courts have discretion to remand without vacatur if “there is at least a serious possibility that the [agency] will be able to substantiate its decision,” and if “vacating would be disruptive.” Radio-TV News Directors Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999) (alteration in original) (citation omitted); see AlliedSignal, Inc. v. U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (“The decision
49

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 50 of 60
whether to vacate depends on the seriousness of the order’s deficiencies . . . and the disruptive consequences of an interim change that may itself be changed.” (citation omitted)). Alternatively, a court may vacate the unlawful action but stay its order of vacatur for a limited time to allow the agency to attempt to cure the defects that the court has identified. See Friends of Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006) (remanding to the district court with instructions to vacate an agency rule but noting that the district court possessed “remedial discretion . . . to stay [its] order on remand”); Nat. Res. Def. Council, Inc. v. EPA, Civ. Action No. 16-1861 (JDB), 2018 WL 1568882, at *8 (D.D.C. Mar. 30, 2018) (vacating a rule but staying the order of vacatur until such time as the agency promulgated a replacement); see also A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995) (remanding and providing for “automatic[]” vacatur unless the agency justified its decision within 90 days); Rodway v. USDA, 514 F.2d 809, 817–18 (D.C. Cir. 1975) (remanding and giving the agency 120 days to complete the rulemaking process).
Here, the first Allied-Signal factor—the seriousness of the action’s defects—favors remand without vacatur, although not unequivocally. On the one hand, it is certainly possible that the Department could articulate a valid reason for DACA’s rescission. For example, it could offer a coherent legal argument that DACA conflicts with the INA or violates the President’s duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, or it could explain why, as a matter of policy, DACA-eligible individuals should no longer be low-priority targets for removal. Accord Batalla Vidal, 279 F. Supp. 3d at 408 (“Defendants indisputably can end the DACA program.”). But there is some evidence in the record to suggest that the Department would not have rescinded DACA but for its supposed illegality. See, e.g., Ex. 119 to Princeton MSJ [ECF No. 28-15] at 2003 (congressional testimony of DHS officials that DACA beneficiaries are “a
50

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 51 of 60
EHQHILWWRWKHFRXQWU\´DQGWKDW³>Z@HQHHGWRUHJXODUL]HWKHLUVWDWXVWKURXJKVRPHOHJDOPHDQV´ $QG DOWKRXJKLWVHHPVWKDWQRFRXUWKDV\HWSDVVHGMXGJPHQWRQ'$&$¶VFRQVWLWXWLRQDOLW\DWOHDVW RQHFRXUWLQWKLVGLVWULFWKDVFRQFOXGHGWKDW'$&$ZDVOLNHO\³FRQVLVWHQWZLWKUDWKHUWKDQFRQWUDU\ WR FRQJUHVVLRQDO SROLF\´ $USDLR Y 2EDPD  ) 6XSS G  ± ''&  FRQFOXGLQJWKDWWKHSODLQWLII¶VVXEVWDQWLYH$3$ FKDOOHQJH WR'$&$ ZDVXQOLNHO\WRVXFFHHGRQ WKH PHULWV DII¶G  )G  '& &LU  DIILUPLQJ RQO\ RQ VWDQGLQJ JURXQGV  7KXV DOWKRXJKWKHVXEVWDQWLYHIODZVLQ'$&$¶V UHVFLVVLRQDUHFXUDEOHLQWKHRU\WKH'HSDUWPHQWPD\ IDFH SUDFWLFDO REVWDFOHV ZKHQ DWWHPSWLQJ WR UHPHG\ WKHP  1RQHWKHOHVV WKHUH UHPDLQV D ³QRQ WULYLDOOLNHOLKRRG´WKDWWKHDJHQF\FRXOG MXVWLI\'$&$¶VUHVFLVVLRQ RQUHPDQG :RUOG&RP,QFY )&&)G'&&LUVRWKHILUVW$OOLHG6LJQDO IDFWRUVXSSRUWVUHPDQG ZLWKRXW YDFDWXU
7KH VHFRQG $OOLHG6LJQDO IDFWRU²WKH ULVN RI GLVUXSWLRQ²DOVR WLSV VOLJKWO\ LQ IDYRU RI UHPDQG ZLWKRXWYDFDWXU2QWKHRQHKDQGWZRFRXUWVKDYHDOUHDG\ SUHOLPLQDULO\HQMRLQHG'$&$¶V UHVFLVVLRQ VHH 5HJHQWV )6XSSGDW± %DWDOOD9LGDO )6XSSGDW± ZKLFKVXJJHVWVWKDWYDFDWXUZRXOGFDXVHOLWWOHGLVUXSWLRQDWOHDVWLQLWLDOO\ 2QWKHRWKHUKDQG QHLWKHU LQMXQFWLRQ DSSOLHV WR LQLWLDO '$&$ DSSOLFDWLRQV ZKLFK WKH 'HSDUWPHQW KDV VWRSSHG DFFHSWLQJ 7KXV YDFDWLQJ'$&$¶V UHVFLVVLRQFRXOGOHDGWR³DQLQWHULPFKDQJH´²DQLQIOX[RI LQLWLDO '$&$ DSSOLFDWLRQV²³WKDW PD\ LWVHOI EH FKDQJHG´ LI '+6 ODWHU SURYLGHV D VXIILFLHQW
 7UXHERWKSUHOLPLQDU\LQMXQFWLRQVDUHFXUUHQWO\WKHVXEMHFWVRIH[SHGLWHGDSSHDOV7KLVIDFWDFWXDOO\IDYRUV YDFDWXUKRZHYHUEHFDXVHLIERWKLQMXQFWLRQVDUHRYHUWXUQHGWKHQWKLV&RXUW¶VRUGHURIYDFDWXUZRXOGSUHVHUYH'$&$ SHQGLQJWKH'HSDUWPHQW¶VUHYLVHGH[SODQDWLRQIRUWKHSURJUDP¶VUHVFLVVLRQWKHUHE\PDLQWDLQLQJWKHVWDWXVTXR


Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 52 of 60
explanation for DACA’s rescission.30 Allied-Signal, 988 F.2d at 150–151 (citation omitted). On balance, therefore, the two Allied-Signal factors tend to favor remand without vacatur.
However, the Court is also mindful that, as several judges of the D.C. Circuit have noted, remand without vacatur “sometimes invites agency indifference.” In re Core Comm’n, Inc., 531 F.3d 849, 862 (D.C. Cir. 2008) (Griffith, J., concurring) (urging courts “to consider the alternatives to the open-ended remand without vacatur”); see Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such.”). This concern is particularly acute here, where each day that the agency delays is a day that aliens who might otherwise be eligible for initial grants of DACA benefits are exposed to removal because of an unlawful agency action. Moreover, although the preliminary injunctions in Regents and Batalla Vidal currently protect aliens who have already received DACA grants, those injunctions are both on expedited appeals and hence could be reversed in the not-too-distant future. These concerns suggest that time is of the essence here, and the Court need not ignore this reality in crafting a remedy. Cf. Rodway, 514 F.2d at 817–18 (ordering that regulations concerning the food stamp system be revised “with expedition”—that is, within 120 days—because “[i]n matters as vital as basic nutrition there is no excuse for delay”).
30 Nor would it be proper for the Court to vacate DACA’s rescission except as to initial applications. While a court has discretion to craft preliminary injunctive relief based on a number of equitable factors, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24 (2008), its discretion in fashioning administrative remedies is somewhat more limited, see Harmon, 878 F.2d at 494–95 (“Courts ordinarily do not attempt, even with the assistance of agency counsel, to fashion a valid regulation from the remnants of the old rule . . . [or to] draw[] a line which the agency itself has never drawn.”). Here, there is no principled basis to distinguish between initial DACA applications and renewal applications, since the Rescission Memo’s substantive invalidity stems chiefly from its inadequately explained rationale. The Court therefore will not fashion an ad hoc order of vacatur along these lines.
52

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 53 of 60
In light of the Allied-Signal factors, which tip in favor of remand without vacatur, and the troubling humanitarian consequences of the delays that remedy might invite, the Court will adopt an intermediate course: it will vacate DACA’s rescission but stay its order of vacatur for 90 days. During that time, the Secretary of Homeland Security or her delegate may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the Rescission Memo will be vacated in its entirety, and the original DACA program will be restored in full. This means, among other things, that the agency will be required to resume accepting initial DACA applications and applications for advanced parole. III. CONSTITUTIONAL CHALLENGES
The government has also moved under Rule 12(b)(6) to dismiss the three constitutional claims asserted in plaintiffs’ complaints for failure to state a claim. See Princeton MTD 37–44; NAACP MTD 37–43. Two of these claims—one grounded in equal protection, see Pls.’ Opp’n at 24–27, and the other in due process, id. at 27–32—are challenges to DACA’s rescission itself. The third argues that the Department may not, consistent with applicable due process principles, use DACA beneficiaries’ personal identifying information to initiate immigration enforcement proceedings against them, and plaintiffs seek a preliminary injunction to that effect. Id. at 32–35.
In light of its decision to vacate DACA’s rescission, the Court will defer ruling on the government’s motion to dismiss plaintiffs’ first two constitutional challenges. Because plaintiffs have failed to plausibly allege facts to support their information-sharing claim, however, that claim will be dismissed without prejudice.
53

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 54 of 60
A. Challenges to DACA’s Rescission As noted, plaintiffs’ constitutional challenges to DACA’s rescission proceed along two lines. First, plaintiffs argue that DACA’s rescission violates the equal protection guarantee of the Fifth and Fourteenth Amendments, because it deprives undocumented aliens of certain benefits that remain available to aliens who are lawfully present in the United States. Pls.’ Opp’n at 24– 27 (citing Plyler v. Doe, 457 U.S. 202 (1982); then Romer v. Evans, 517 U.S. 620 (1996)). Second, plaintiffs maintain that DACA’s rescission deprives existing DACA beneficiaries of their liberty and property interests in renewing their DACA benefits without due process of law. Id. at 27–31. The Court will defer ruling on the government’s motions to dismiss these two constitutional claims. To begin with, because the Court has already concluded that DACA’s rescission violates the APA, it is not necessary to address plaintiffs’ constitutional claims now. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (noting that courts generally avoid deciding constitutional issues unnecessarily); Texas, 809 F.3d at 146 n.3 (declining to reach plaintiffs’ constitutional challenges to DAPA and instead affirming only on APA grounds). Moreover, litigation over similar constitutional issues has either reached or progressed past the motion-to-dismiss stage in three other cases, see Regents, 2018 WL 401177, at *2–7; Batalla Vidal, 2018 WL 1532370, at *6–14; Casa de Maryland, 284 F. Supp. 3d at 773–777, and the Court is especially reluctant unnecessarily to address constitutional issues that have already been thoroughly considered by other courts. Finally, the Department could, on remand, alter DACA’s rescission in ways that might affect the merits of plaintiffs’ constitutional claims.31 At this stage
31 For example, the Department might provide for procedures through which an existing DACA recipient could contest the revocation of her DACA benefits—something that the current Rescission Memo does not do. Such procedures could, at least in theory, be relevant to plaintiffs’ procedural due process claim.
54

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 55 of 60
of the proceedings, then, the Court will defer ruling on the government’s motion to dismiss plaintiffs’ constitutional challenges to DACA’s rescission.
B. Information-Sharing Claim Plaintiffs seek a preliminary injunction preventing DHS from sharing DACA beneficiaries’ personal information with immigration enforcement authorities or otherwise using it for immigration enforcement purposes. See Princeton MSJ at 48–53; Pls.’ Opp’n at 32–35. The government has moved to dismiss plaintiffs’ information-sharing claim, arguing primarily that DHS had previously stated its intent not to use DACA beneficiaries’ personal information in this way and that plaintiffs have not plausibly alleged that the agency has since changed its policy. See Princeton MTD at 41–42; Defs.’ Reply at 36–37. The government also contends that even if the Department had changed its information-sharing policy, there would be no due-process violation, because that policy has always stated that it “may be modified, superseded, or rescinded at any time.” Princeton MTD at 43 (citation omitted); Defs.’ Reply at 37–39 (citation omitted). To secure preliminary injunctive relief, plaintiffs “must establish (1) that [they are] likely to succeed on the merits, (2) that [they are] likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in [their] favor, and (4) that an injunction is in the public interest.” Winter, 555 U.S. at 20. Here, the third and fourth prongs of this test—the equities and the public interest—clearly favor plaintiffs, who allege that the Department intends to use DACA beneficiaries’ identifying information against them despite its earlier assurances that it would not do so, which induced the beneficiaries to provide the information in the first place. Plaintiffs have also demonstrated a likelihood of success on the merits—as least as to their legal theory. Plaintiffs rely on two cases, Cox v. Louisiana, 379 U.S. 536 (1965), and Raley v. Ohio, 360 U.S. 423 (1959), for the general proposition that “[d]ue process forbids the Government
55

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 56 of 60
from making and then breaking promises about the legal consequences of a specific action.” Princeton MSJ at 48. In Raley, the Supreme Court found a due process violation where four individuals were convicted of failing to answer questions posed by Ohio’s Un-American Activities Commission after the chairman of that commission had specifically represented to the individuals that they could refuse to answer pursuant to a state-law privilege. See 360 U.S. at 437–38; see also id. at 438 (“[T]o sustain the judgment of the Ohio Supreme Court on such a basis after the Commission had acted as it did would be to sanction the most indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State clearly had told him was available to him.”). And in Cox, the Court, relying on Raley, held that it violated due process to convict demonstrators under a statute that prohibited demonstrating “near” a courthouse where “the highest police officials of the city . . . in effect told the demonstrators that they could meet where they did.” 379 U.S. at 571; see also Santobello v. New York, 404 U.S. 257, 262 (1971) (recognizing a substantive due process right to enforce the terms of a plea agreement). This argument is sufficiently persuasive to support preliminary injunctive relief.
The sticking point here is the second prong—the likelihood of irreparable harm. Several factors convince the Court that the harm to DACA beneficiaries of having their information shared with immigration enforcement authorities, though likely irreparable, is insufficiently imminent to justify preliminary injunctive relief. League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7– 8 (D.C. Cir. 2016) (harm is irreparable only if it is “so ‘imminent that there is a clear and present need for equitable relief . . . .’” (alterations and citation omitted)). For one thing, the Department has recently reaffirmed that its “information-sharing policy has not 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
56

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 57 of 60
DACA policy.” USCIS, DHS, Frequently Asked Questions: Rejected DACA Requests Q5, https://www.uscis.gov/daca2017/mail-faqs (last updated Feb. 14, 2018).32 This fact was enough to persuade one other district court to dismiss a similar information-sharing claim. See Batalla Vidal, 2018 WL 1532370, at *10–11. On the other hand, two courts have reached the opposite conclusion, see Regents, 2018 WL 401177, at *4–5; Casa de Maryland, 284 F. Supp. 3d at 777– 79, and one of those courts has already granted the injunctive relief that plaintiffs seek here, see Amended Order, Casa de Maryland, No. 17-cv-2942 (D. Md. Mar. 15, 2018), ECF No. 49 (enjoining the Department from (1) using or sharing DACA beneficiaries’ personal information except as originally specified on the DACA application forms and instructions and (2) changing its information-sharing policy without the Court’s preapproval). But that injunction now in place further belies any suggestion that irreparable harm to DACA beneficiaries is imminent—their information cannot now be used as they fear. Hence, the Court concludes that plaintiffs have failed to demonstrate that they are entitled to preliminary injunctive relief on their information-sharing claim, and their motion for preliminary injunctive relief will be denied.
The Court also concludes that plaintiffs have failed to state a claim. See Fed. R. Civ. P. 12(b)(6). Plaintiffs point to a discrepancy between a prior statement by the Department that DACA beneficiaries’ information would be “protected from disclosure” and a later statement issued on the date of DACA’s rescission that the information would not be “proactively” provided to immigration enforcement authorities. See Princeton Compl. ¶ 51. Even if this discrepancy were sufficient to plausibly allege that DACA beneficiaries’ information has
32 This document does not appear in the administrative record, but the Court takes judicial notice of it. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”).
57

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 58 of 60
been or will be used inconsistently with DHS’s stated information-sharing policy, the agency has since reaffirmed its commitment to that prior policy, and the Court may take judicial notice of that fact in ruling on the government’s motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Vasser v. McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016) (“Courts may take judicial notice of matters of a general public nature without converting the motion to dismiss into one for summary judgment.” (alterations and citation omitted)).33 Thus, the government’s Rule 12(b)(6) motion will be granted as to plaintiffs’ information-sharing claim.
CONCLUSION Executive Branch officials possess relatively unconstrained authority to enforce the law against certain violators but not others. Ordinarily, the exercise of that authority is subject to review not in a court of law, but rather in the court of public opinion: members of the public know how their elected officials have used their enforcement powers, and they can hold those officials accountable by speaking out, by petitioning their representatives, or ultimately at the ballot box. When an official claims that the law requires her to exercise her enforcement authority in a certain way, however, she excuses herself from this accountability. Moreover, if her view of the law is incorrect, she may needlessly forego the opportunity to implement appropriate enforcement priorities and also to demonstrate those priorities to the public.
33 For similar reasons, the Court will not address the argument made by amici LatinoJustice PRLDEF (and others) that DHS’s breach of the information-sharing policy would violate the Privacy Act of 1974, 5 U.S.C. § 552a, and the agency’s own privacy rules. See Br. of LatinoJustice PRLDEF, et al., as Amicus Curiae [ECF No. 36-2].
58

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 59 of 60
Fortunately, neither Supreme Court nor D.C. Circuit precedent compels such a result. Rather, the cases are clear that courts have the authority to review an agency’s interpretation of the law if it is relied on to justify an enforcement policy, even when that interpretation concerns the lawful scope of the agency’s enforcement discretion. See Chaney, 470 U.S. at 832–33; OSG, 132 F.3d at 812; Crowley, 37 F.3d at 676–77. Under this rule, 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.
Here, the Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.
For the reasons given above, then, the Court will vacate the Department’s September 5, 2017 decision to rescind the DACA program. The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful. The Court will also deny the government’s motion to dismiss for lack of subject-matter jurisdiction, its motion to dismiss plaintiffs’ APA claims on reviewability grounds, and its motion to dismiss plaintiffs’ substantive APA claim; grant the government’s motion to dismiss plaintiffs’ procedural APA claim, the NAACP plaintiffs’ RFA claim, and plaintiffs’ information-sharing claim; and defer ruling on the government’s motion to dismiss plaintiffs’ remaining constitutional claims.
59

Case 1:17-cv-02325-JDB Document 70 Filed 04/24/18 Page 60 of 60

Finally, the Court will also grant plaintiffs’ motion for partial summary judgment as to their substantive APA claim, deny that motion as to their procedural APA claim, and deny their motion for preliminary injunctive relief on their information-sharing claim. A separate order has been issued on this date.

Dated: April 24, 2018

/s/
JOHN D. BATES United States District Judge

60

 
 Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs, v. DONALD J. TRUMP, et al., Defendants.
TRUSTEES OF PRINCETON UNIVERSITY, et al.,
Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.

Civil Action No. 17-1907 (JDB) Civil Action No. 17-2325 (JDB)

MEMORANDUM OPINION This litigation concerns the Department of Homeland Security’s (“DHS”) September 5, 2017 decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program. In April 2018, this Court held that decision unlawful and set it aside, concluding both that it was reviewable under the Administrative Procedure Act (“APA”) and that the reasons given to support it were inadequate. See NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018). However, because the Court also determined that DHS could possibly remedy the decision’s inadequacies—at least in theory—the Court stayed its order of vacatur for a period of ninety days. See id. That ninety-day period has now expired. In the interim, DHS has issued a new memorandum “concur[ring] with and declin[ing] to disturb” its September 2017 rescission

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 2 of 25
decision. Mem. from Sec’y Kirstjen M. Nielsen (“Nielsen Memo”) [ECF No. 71-1] at 3.1 Also, the government has now moved the Court to revise its April 2018 order, arguing that the Nielsen Memo demonstrates that DACA’s rescission was neither unlawful nor subject to judicial review. See Defs.’ Mot. to Revise the Court’s April 24, 2018 Order (“Gov’t’s Mot.”) [ECF No. 74].
For the reasons explained below, the government’s motion will be denied. Although the Nielsen Memo purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. NAACP, 298 F. Supp. 3d at 235. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA’s rescission, but this reason was articulated nowhere in DHS’s prior explanation for its decision, and therefore cannot support that decision now.
By choosing to stand by its September 2017 rescission decision, DHS has placed itself in a dilemma. On the one hand, it cannot rely on the reasons it previously gave for DACA’s rescission, because the Court has already rejected them. On the other, because “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983), DHS also cannot rely on new reasons that it now articulates for the first time. The government’s attempt to thread this
1 Although NAACP v. Trump, Civil Action No. 17-1907, was filed first, at the Court’s direction most of the papers in these two cases were filed in Princeton v. United States, Civil Action No. 17-2325. See Min. Order, Princeton (D.D.C. Jan. 18, 2018). Thus, unless otherwise noted, references to the docket refer to the Princeton action.
2

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 3 of 25
needle fails. The motion to revise the Court’s April 2018 order will therefore be denied, and the Court’s vacatur of DACA’s rescission will stand.
BACKGROUND2 The DACA program offers renewable, two-year grants of deferred action to certain undocumented aliens who were brought to the United States as children. See NAACP, 298 F. Supp. 3d at 216 (describing DACA’s eligibility criteria in greater detail). A grant of deferred action under DACA guarantees not only that the recipient will not be removed from the United States during the relevant time period, but also that she will be able to live, work, and contribute to society in various ways. See id. at 216–17 (discussing DACA’s ancillary benefits). Since DACA’s implementation in 2012, nearly 800,000 individuals have received grants of deferred action under the program. Id. at 17. In 2014, DHS implemented a similar program, Deferred Action for Parents of Americans (“DAPA”), which would have offered renewable grants of deferred action to the noncitizen parents of U.S. citizens or lawful permanent residents. Id. at 217. Before DAPA could take effect, however, several states—led by Texas—challenged it in federal court. Id. A district court preliminarily enjoined DAPA in 2015, and the following year the Supreme Court affirmed the district court’s preliminary injunction by an equally divided vote. See id. at 217–18 (citing United States v. Texas, 136 S. Ct. 2271 (2016) (mem)). Litigation over DAPA continued until June 2017, when, following the election of President Trump, DHS rescinded the program. Id. at 18. On September 5, 2017, purportedly in response to threats from the plaintiffs in the Texas litigation, DHS rescinded the DACA program as well. Id. at 218–19. A flurry of court challenges
2 Because the facts and procedural history of this case were recounted at length in the Court’s prior opinion, see NAACP, 298 F. Supp. 3d at 216–223, the Court will review them here only briefly.
3

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 4 of 25
followed, each of whose procedural history is described more fully in the Court’s prior opinion. See id. at 219–22. For present purposes, it suffices to say that DACA’s rescission has been preliminarily enjoined by two district courts, one in California and one in New York, and that the government’s appeals of those injunctions are currently pending. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1048 (N.D. Cal. 2018), appeal docketed, No. 18-15068 (9th Cir. Jan. 16, 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 437–38 (E.D.N.Y. 2018), appeal docketed, No. 18-485 (2d Cir. Feb. 20, 2018). Also currently pending before the Fourth Circuit is an appeal of a Maryland district court’s dismissal of a challenge to DACA’s rescission. Casa De Maryland v. U.S. Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 779 (D. Md. 2018), appeal docketed, No. 18-1522 (4th Cir. May 8, 2018).
The cases before this Court, which present challenges to DACA’s rescission on both administrative and constitutional grounds, were filed in late 2017 and consolidated for purposes of the dispositive motions filed in each. See NAACP, 298 F. Supp. 3d at 222–23. After holding a hearing on those motions, the Court entered judgment in plaintiffs’ favor on their APA claims. See id. at 223, 249. The Court held, among other things, that: (1) DHS’s September 5, 2017 decision to rescind DACA was reviewable under the APA because it was predicated chiefly on the agency’s legal judgment that DACA was unlawful, see id. at 226–235; and (2) the decision was arbitrary and capricious because (a) DHS’s legal judgment was inadequately explained, see id. at 238–240, and (b) the other reasons offered for DACA’s rescission—mainly, the purported “litigation risk” that DACA would be preliminarily enjoined by the district court in Texas—were insufficiently reasoned, see id. at 241–243. Hence, the Court vacated DACA’s rescission on
4

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 5 of 25
administrative grounds, see id. at 243–46, and deferred ruling on the bulk of plaintiffs’
constitutional claims, id. at 246.
However, because the Court’s decision was based in large part on its conclusion that DHS’s
legal judgment was “virtually unexplained,” the Court stayed its order of vacatur for 90 days to
allow DHS “to better explain its view that DACA is unlawful.” Id. at 249. During that 90-day
period, the Court explained,
the Secretary of Homeland Security or her delegate may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the Rescission Memo will be vacated in its entirety, and the original DACA program will be restored in full.
Id. at 245–46. The order accompanying the Court’s opinion directed the parties to inform the
Court before the stay expired as to “whether DHS has issued a new decision rescinding DACA
and whether the parties contemplate the need for further proceedings in this case.” Apr. 24, 2018
Order [ECF No. 69] at 2.3
3 Soon after this Court issued its decision, several of the plaintiffs in the Texas litigation filed a new case challenging DACA in a federal district court in Texas. See Texas v. United States, No. 1:18-cv-68 (S.D. Tex. filed May 1, 2018) (“Texas II”). The Texas II plaintiffs assert that DACA is procedurally and substantively invalid under the APA and that it violates the Constitution’s Take Care Clause, U.S. Const. art. II, § 3. See Compl. ¶¶ 351–56, Texas II (S.D. Tex. May 1, 2018). The plaintiffs have filed a motion for a preliminary injunction in that case, see Pls.’ Mot. for a Prelim. Inj., Texas II (S.D. Tex. May 2, 2018), which is currently pending. The government opposes the motion only insofar as it seeks nationwide relief. See Fed. Defs.’ Response to Pls.’ Mot. for a Prelim. Inj. at 17, Texas II (S.D. Tex. June 8, 2018). Otherwise, although the government acknowledges that “[i]n similar situations, courts have typically held that the appropriate course is for a district court to refrain from issuing a conflicting injunction,” id. at 17 (citations omitted), it nonetheless suggests that, assuming “that preliminary injunctive relief is appropriate,” the district court should stay its order for fourteen days to allow the government to seek emergency relief from the Supreme Court, id. at 17–18. Other parties, including the State of New Jersey, have intervened as defendants and opposed the plaintiffs’ preliminary injunction motion in full. See, e.g., Def.–Intervenor State of N.J.’s Mem. of Law in Opp’n to Pls.’ Mot. for Prelim. Inj., Texas II (S.D. Tex. July 21, 2018). A hearing on the plaintiffs’ motion is currently set for Wednesday, August 8, 2018.
5

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 6 of 25
In late June, Secretary of Homeland Security Kirstjen M. Nielsen issued a memorandum responding to the Court’s order. See Nielsen Memo at 1. Instead of issuing a new decision rescinding DACA, as the Court’s order had contemplated, Secretary Nielson simply “declin[ed] to disturb” the earlier decision to rescind the program by then-Acting Secretary of Homeland Security Elaine C. Duke.4 Id. Secretary Nielsen then went on to offer several reasons why “the decision to rescind the DACA policy was, and remains, sound.” Id.
Specifically, Secretary Nielsen opined that: (1) “the DACA policy was contrary to law”; (2) regardless of whether DACA was in fact contrary to law, the program “was appropriately rescinded . . . because there are, at a minimum, serious doubts about its legality”; and (3) other “sound reasons of enforcement policy” supported DACA’s rescission. Id. at 2. The reasons in this last category included that: (a) DHS “should not adopt public policies of non-enforcement of [federal] laws for broad classes and categories of aliens,” particularly aliens whom “Congress has repeatedly considered but declined to protect”; (b) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-by-case basis”; and (c) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws,” particularly given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” Id. at 2–3. Finally, Secretary Nielsen wrote that although she was “keenly aware that DACA recipients have availed themselves of the policy in continuing their presence in this country,” she nonetheless “do[es] not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy and the other reasons [given] for ending [it].” Id. at 3.
4 Secretary Nielsen replaced Acting Secretary Duke as Secretary of Homeland Security on December 6, 2017.
6

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 7 of 25
In July, following the issuance of the Nielsen Memo, the government filed the instant motion to revise the Court’s April 24, 2018 order. According to the government, the Nielsen Memo demonstrates that DHS’s September 2017 decision to rescind DACA was neither subject to judicial review nor arbitrary and capricious. See Gov’t’s Mot. at 1–2. This is so, the government contends, because Secretary Nielsen’s articulation of “serious doubts” regarding DACA’s legality, see id. at 5–13, as well as her “additional” discussion of enforcement-policy concerns, see id. at 14–16, “confirm[]” that the rescission was both an exercise of enforcement discretion (as opposed to a legal judgment) and, at a minimum, reasonable, id. at 1. Thus, the government asks the Court either to dismiss all of plaintiffs’ claims (including their constitutional claims) or to enter judgment in its favor. See id. at 18–19. Finally, the government states that, if the Court denies the motion, it intends to seek “a further continuation of the stay of the vacatur order,” either “to consider seeking a stay pending appeal or to give DHS time to appropriately prepare” to accept new DACA applications, “which DHS has generally not accepted since September 5, 2017.” Id. at 19 n.4.
Plaintiffs offer several arguments in response. First, they contend, the Court should not even consider Secretary Nielsen’s memorandum, because it is not “the new agency action [the] Court anticipated [DHS] might take” during the ninety-day stay-of-vacatur period. See Pls.’ Opp’n to Defs.’ Mot. to Revise the Court’s Apr. 24, 2018 Order (“Pls.’ Opp’n”) [ECF No. 75] at 3–8. Second, they argue that if the Court considers the Nielsen Memo at all, it should consider only the memorandum’s legal analysis, because the remainder of the memorandum offers impermissible post hoc rationalizations of DHS’s rescission decision. See id. at 8–10 (citing Food Mktg. Inst. v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978)). Third, they contend that even if the Court considers the Nielsen Memo in full, its arguments present no reason to reconsider the Court’s prior
7

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 8 of 25

determination that DACA’s rescission was both judicially reviewable, see id. at 10–14, and

arbitrary and capricious, see id. at 15–20. Therefore, plaintiffs ask the Court to deny DHS’s motion

and to allow the vacatur of DACA’s rescission to take effect. See id. at 20.

ANALYSIS

I.

THE COURT WILL CONSIDER THE NIELSEN MEMO

As a threshold matter, plaintiffs argue that the Court should refuse to consider the Nielsen

Memo it its entirety, because instead of issuing a new rescission decision, the memo simply adopts

and further explains DHS’s September 2017 rescission decision. See Pls.’ Opp’n at 3–8.5 The

government objects that this argument “inappropriately elevate[s] form over substance” and that

agencies “routinely rectify decisions that are deemed inadequately supported on remand without

vacatur.” Reply in Supp. of Defs.’ Mot. to Revise the Court’s April 24, 2018 Order (“Gov’t’s

Reply”) [ECF No. 76] at 1 (citations omitted). Here, the Court agrees with the government. It

will therefore consider the Nielsen Memo.

As the government correctly points out, courts regularly remand challenges to agency

action for further “elaboration of [the agency’s] reasoning.” A.L. Pharma, Inc. v. Shalala, 62 F.3d

1484, 1492 (D.C. Cir. 1995). Nonetheless, relying on Judge Silberman’s separate opinion in

Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994), plaintiffs appear to suggest that courts can

consider such further explanations only before holding an agency action unlawful—and that,

consequently, this Court is powerless to consider the Nielsen Memo’s explanation of DHS’s

rescission decision because it has already held that decision unlawful. See Pls.’ Opp’n at 4

5 Plaintiffs brand DHS’s failure to issue a new agency action as a “litigation tactic” that seeks to avoid “major consequences for the litigation pending in the Second and Ninth Circuits—which could potentially include, among other things, triggering remands to the district courts or raising possible mootness questions and prompting new complaints.” Pls.’ Opp’n at 1, 8.
8

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 9 of 25
(“[W]hile courts do sometimes solicit further explanation of an action before deciding whether it is arbitrary and capricious, that is not what this Court did here.”).
But neither Judge Silberman’s opinion in Checkosky nor any of the other cases on which plaintiffs rely go so far. Rather, Judge Silberman explained that “courts will often . . . pause before exercising full judicial review and remand to the agency for a more complete explanation” and noted that “[i]n many of these cases”—but not all of them—courts “make clear” that they “have not found the agency action to be arbitrary and capricious.” Checkosky, 23 F.3d at 463 (opinion of Silberman, J.) (emphasis added); see, e.g., City of Charlottesville v. FERC, 661 F.2d 945, 954 (D.C. Cir. 1981) (reversing an agency’s orders because they “were not based upon substantial evidence” and remanding for further proceedings); id. at 955 (Wald, J., concurring) (urging the agency “on remand to attempt a clearer articulation and reconciliation of its” apparently contradictory explanations for its orders). Thus, although it may be true that courts usually consider additional explanation before invalidating an agency’s action, plaintiffs cite no authority for the proposition that courts must maintain this order of operations. Indeed, such a rule would be inconsistent with the district courts’ broad discretion to reconsider their decisions before they become final. See Fed. R. Civ. P. 54(b); AARP v. EEOC, 292 F. Supp. 3d 238, 241 n.1 (D.D.C. 2017) (“[A] district court order remanding a case to an agency for significant further proceedings is not final.” (quoting Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000))).
Here, the Court gave DHS ninety days to remedy the deficiencies in its September 2017 rescission decision. Although plaintiffs are correct that the Court’s opinion and order anticipated
9

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 10 of 25
that DHS would do so by way of a new agency action (if it did so at all),6 the Court will not disregard Secretary Nielsen’s memorandum simply because she chose a somewhat different path. Instead, the Court will treat the memo as what it purports to be: a “further explanation” of the rescission decision, Nielsen Memo at 1, which the government contends forms a basis for revising the Court’s April 2018 order. Likewise, the Court will construe the government’s motion for a revised order as a motion for reconsideration of the Court’s April 2018 decision. See Gov’t’s Reply at 3 n.2 (proposing that, “[a]t a minimum, the Court could simply reconsider its [April 2018] Order”); Fed. R. Civ. P. 54(b) (district courts may “revise[]” nonfinal decisions “at any time” prior to the entry of final judgment). II. MOST OF THE NIELSEN MEMO’S ARGUMENTS ARE NOT POST HOC RATIONALIZATIONS
Next, plaintiffs contend that the Court should disregard “nearly the entire Nielsen Memo” because none of the justifications it offers—aside from DACA’s purported illegality—were articulated by Acting Secretary Duke in her initial September 5, 2017 memorandum rescinding the DACA program (the “Duke Memo”), J.A. [ECF No. 60] at 252–56. Pls.’ Opp’n at 8–10. With one notable exception, the Court disagrees. Although many of the Nielsen Memo’s rationales are quite attenuated from those offered in the Duke Memo and its supporting documentation, only one is so far afield as to constitute an impermissibly post hoc rationalization for DACA’s rescission.
Although “post hoc rationalizations ‘have traditionally been found to be an inadequate basis for review’ of agency decisions,” the D.C. Circuit has clarified that this rule “does not
6 See Apr. 24, 2018 Order at 2 (directing the parties to inform the court as to whether DHS had “issued a new decision rescinding DACA”); NAACP, 298 F. Supp. 3d at 246 (deferring ruling on plaintiffs’ constitutional claims in part because DHS “could, on remand, alter DACA’s rescission in ways that might affect the merits of plaintiffs’ constitutional claims”); see also Pls.’ Opp’n at 5 (“[T]he import of this Court’s stay was not that the agency should take another crack at defending the Duke Memo, but that the agency should be afforded an opportunity to replace its void decision seamlessly with a new one.”).
10

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 11 of 25
prohibit [an agency] from submitting an amplified articulation” of the reasons for its decision following a remand. Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations omitted). Indeed, the rule’s purpose is simply to prevent courts from considering “rationales offered by anyone other than the proper decisionmakers,” such as those appearing “for the first time in litigation affidavits and arguments of counsel”; it is not meant to be “a time barrier which freezes an agency’s exercise of its judgment . . . and bars it from further articulation of its reasoning.” Id. (citation omitted). Hence, when faced with an explanation offered for the first time on remand, a court must determine whether it is an “amplified articulation” of the agency’s prior reasoning (which must be considered), Alpharma, 460 F.3d at 6 (citation omitted), or instead “a new reason for why the agency could have” taken the action (which must be disregarded), Delta Air Lines, Inc. v. Export–Import Bank of U.S., 85 F. Supp. 3d 436, 453 (D.D.C. 2015); see Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 217 n.8 (D.C. Cir. 2013) (stating that an agency’s further explanation on remand “must be more than a barren exercise of supplying reasons to support a pre-ordained result” (citation omitted)).
Here, plaintiffs argue that the bulk of the Nielsen Memo falls in the latter category. Specifically, they contend, Secretary Nielsen’s assertion of “serious doubts” about DACA’s legality “does not amplify or explicate” the Duke Memo’s prediction that DACA would be abruptly enjoined in the Texas litigation; rather, “it silently abandons it.” Pls.’ Opp’n at 10. Similarly, plaintiffs argue that the various “purported ‘reasons of enforcement policy’” raised in the Nielsen Memo “have no foundation in the Duke Memo at all.” See id.
Plaintiffs overstate the novelty of the Nielsen Memo’s arguments. Although the Nielsen Memo certainly expands on the Duke Memo’s points, most of its arguments are not so detached
11

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 12 of 25
from the earlier document as to appear post hoc. For example, the Nielsen Memo contends that “serious doubts” about DACA’s legality could “undermine public confidence in . . . the rule of law” and lead to “burdensome litigation.” Nielsen Memo at 2. Similarly, the Duke Memo expressly relied on a September 4, 2017 letter from Attorney General Jeff Sessions (the “Sessions Letter”), see J.A. at 254–55, which cited “the costs and burdens” associated with rescinding DACA in response to “potentially imminent litigation,” and opined that “[p]roper enforcement of our immigration laws is . . . critical . . . to the restoration of the rule of law in our country,” J.A. at 251. The Nielsen Memo’s “serious doubts” rationale strikes this Court as a permitted amplification, rather than a prohibited post hoc rationalization, of these statements in the Sessions Letter.
The same is true of the Nielsen Memo’s remaining “policy” justifications (again, save one). Like the Nielsen Memo, which faults DACA for protecting a class of aliens whom Congress has “repeatedly considered but declined to protect,” Nielsen Memo at 2, the Duke Memo relied on “Congress’s repeated rejection of proposed legislation that would have accomplished a similar result” as DACA, J.A. at 254. Similarly, the Nielsen Memo’s concerns about “individualized, case-by-case” discretion, Nielsen Memo at 3, parallel the Duke Memo’s observation that DACA was “meant to be applied only on an individualized case-by-case basis” and that DHS “has not been able to identify specific denial cases . . . based solely upon discretion,” J.A. at 253.
The same cannot be said, however, about the Nielsen Memo’s concern with “project[ing] a message” to noncitizen children (and their parents) who would attempt to enter the United States unlawfully. Nielsen Memo at 3. Nothing in the Duke Memo or the Sessions Letter even remotely parallels the Nielsen Memo’s discussion of a “pattern” of illegal immigration by minors, and neither document mentions the “tens of thousands of minor aliens [who] have illegally crossed or
12

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 13 of 25
been smuggled across our border in recent years,” id. Indeed, the closest either document comes is the Sessions Letter’s assertion that “[p]roper enforcement of our immigration laws is . . . critical to the national interest,” J.A. at 251, but this statement is far too vague—on some level, nearly any policy statement could be seen as an explication of an agency’s view of the “national interest.” Consequently, the Court will decline to consider the Nielsen Memo’s “messaging” rationale, which appears for the first time on remand and is therefore impermissibly post hoc. See Food Mktg. Inst., 587 F.2d at 1290 (“Post-hoc rationalizations by the agency on remand are no more permissible than are such arguments when raised by appellate counsel during judicial review.”).7
In sum, although none of the Nielsen Memo’s rationales for DACA’s rescission relate back perfectly to the Duke Memo’s, only one—the messaging rationale—is so attenuated as to comprise “a new reason for why the agency could have” rescinded DACA. Delta Air Lines, 85 F. Supp. 3d at 453. The Court will therefore consider all of the Nielsen Memo except its messaging rationale. III. THE NIELSEN MEMO PROVIDES NO REASON TO REVISE THE COURT’S EARLIER
DETERMINATION THAT DACA’S RESCISSION WAS SUBJECT TO JUDICIAL REVIEW This Court previously held that DHS’s September 2017 decision to rescind the DACA program was subject to judicial review despite the APA’s exception for “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see NAACP, 298 F. Supp. 3d at 234. This was so, the Court explained, because although the Supreme Court has held enforcement decisions to be “presumptively unreviewable,” NAACP, 298 F. Supp. 3d at 234 (citing Heckler v. Chaney, 470 U.S. 821, 832–33 (1985)), the D.C. Circuit recognizes an exception for “general enforcement polic[ies]” that “rel[y] solely on the agency’s view of what the law requires,” id. (first
7 Of course, had Secretary Nielsen opted to issue a new decision rescinding DACA, the explanations offered in her memorandum would be contemporaneous and, consequently, not post hoc. She did not do this, however.
13

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 14 of 25
citing OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998); and then citing Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994)).8 This rule
reflects the commonsense notion that “an otherwise reviewable” legal interpretation “does not
become presumptively unreviewable simply because the agency characterizes it as an exercise of
enforcement discretion.” Id. at 231.
The Court held that DACA’s rescission was reviewable under this exception because it was
“predicated on DHS’s legal determination that the program was invalid when it was adopted.” Id.
at 233. The Court rejected what it took to be the government’s attempt to distinguish between an
agency’s “interpretation of a specific statutory provision” (which the government conceded was
reviewable) and its “conclusion that it lacks statutory authority” (which the government contended
was unreviewable), explaining that “[t]o say that a particular agency action is ‘without statutory
authority’ is simply to say that no statutory provision authorizes that action.” Id. at 232 (citing City of Arlington v. FCC, 569 U.S. 290, 299–300 (2013)).9 The Court also rejected the
government’s reliance on what it had termed “litigation risk”—that is, the adverse consequences
that would follow if DACA were struck down in litigation—explaining that “Crowley would be a
dead letter” if an agency “could insulate from judicial review any legal determination simply by
8 The D.C. Circuit’s recent decision in CREW v. FEC confirms this Court’s reading of Circuit law. See 892 F.3d 434, 441 n.11 (D.C. Cir. 2018) (“[I]f [an agency] declines to bring an enforcement action on the basis of its interpretation of [a statute], the [agency’s] decision is subject to judicial review.”).
9 In its present motion, DHS attempts to relitigate this issue, contending that “Secretary Nielsen’s further explanation of DACA’s questionable legality also underscores why Crowley does not permit judicial review of an enforcement decision simply because that decision rests on a legal rationale.” Gov’t’s Mot. at 7. Once again, DHS attempts to draw a “distinction between the non-reviewability of an enforcement decision, and the potential reviewability of the supporting rationale on its own terms,” id. at 8, and contends that “even if a general legal rationale in the Duke or Nielsen Memos could be carved out for review on its own terms, that would not justify reviewing the enforcement decision to rescind DACA itself,” id. at 9. But the Court rejects this novel proposition. As the D.C. Circuit has recently confirmed, although “[t]he law of this circuit ‘rejects the notion of carving reviewable legal rulings out from the middle of non-reviewable actions,” CREW, 892 F.3d at 442 (citation omitted), an agency action is not “non-reviewable” in the first place if it is “based entirely on its interpretation of the statute,” id. at 441 n.11.
14

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 15 of 25
framing it as an enforcement policy” and then tacking on a boilerplate assertion that “a court would likely agree with the agency’s interpretation.” Id. at 233.
Neither the Nielsen Memo nor the government’s motion provides a sufficient basis for reconsidering the Court’s earlier determination that DACA’s rescission was judicially reviewable. To start with, Secretary Nielsen makes clear that her decision not to disturb DACA’s rescission is predicated first and foremost on her view that “the DACA policy was contrary to law.” Nielsen Memo at 2. Thus, this case continues to be like Crowley and OSG: at bottom, it involves an enforcement policy that is predicated on the agency’s view of what the law requires.
Nor do the Nielsen Memo’s remaining rationales immunize from judicial review DHS’s decision to rescind DACA. The first of these revolves around Secretary Nielsen’s “serious doubts about [DACA’s] legality,” which she says would lead her to rescind the policy regardless of “whether the courts would ultimately uphold it or not.” Id. These doubts, Secretary Nielsen explains, raise concerns like “the risk that such policies may undermine public confidence in and reliance on the agency and the rule of law, and the threat of burdensome litigation that distracts from the agency’s work.” Id. According to the government, this rationale renders DACA’s rescission unreviewable because it “cannot be meaningfully distinguished from other ‘bona fide discretionary reasons’ that this Court found acceptable” in its prior opinion, “such as an agency’s fear that ‘negative publicity . . . would undermine the policy’s effectiveness.’” Gov’t’s Mot. at 7 (quoting NAACP, 298 F. Supp. 3d at 233).
But as the Court’s opinion explained in the very next paragraph, it is difficult to conclude that such policy assertions are “bona fide” when they are accompanied by an assertion from the
15

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 16 of 25
agency that its longstanding policy is “unlawful.” NAACP, 298 F. Supp. 3d at 233.10 In this respect, the “serious doubts” rationale suffers from the same defect as the “litigation risk” rationale: accepting it here would permit agencies to insulate their legal judgments from judicial review simply by couching them as enforcement policies and then adding a boilerplate assertion that any other course of action would lead to litigation and undermine confidence in the rule of law. Judicial review of agency legal determinations cannot be so easily evaded.
Next, the Nielsen Memo asserts a handful of “sound reasons of enforcement policy” that it argues would justify DACA’s rescission “regardless of whether . . . the DACA policy [is] illegal or legally questionable.” Nielsen Memo at 2. First among these is the memo’s claim that, “if a policy concerning the ability of this class of aliens to remain in the United States is to be adopted, it should be enacted legislatively.” Id. at 3. But the Court rejected the government’s reliance on this argument in its prior opinion, concluding that the government had failed to explain why “an agency’s view as to which branch of government ought to address a particular policy issue is an assessment appropriately committed to the agency’s discretion.” NAACP, 298 F. Supp. 3d at 243 n.28. Like the litigation-risk and substantial-doubts rationales, then, this legislative-inaction rationale is simply another legal determination dressed up as a policy judgment, and it cannot render DACA’s rescission immune from judicial review.
The memo’s second “policy” justification asserts that “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-bycase basis.” Nielsen Memo at 3. This is so, Secretary Nielsen claims, not because “a categorical
10 While the Court’s opinion did not suggest that an agency cannot rescind a policy in response to an adverse court judgment notwithstanding the agency’s continued belief in the policy’s legality, it did suggest that where (as here) the agency rescinds a policy after doing an about-face as to its legality, “there are reasons to be more suspicious.” NAACP, 298 F. Supp. 3d at 233.
16

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 17 of 25
deferred-action policy” like DACA raises legal or constitutional concerns—as previously argued—but rather because such a policy “tilts the scales significantly and has the practical effect of inhibiting assessments of whether deferred action is appropriate in a particular case.” Id. In essence, the Secretary claims that even though DACA “on its face . . . allow[s] for individual considerations,” id., it should nonetheless be rescinded because its programmatic nature somehow misleads those charged with its implementation into applying it categorically.
As an initial matter, this rationale strikes the Court as specious. It would be one thing for a challenger other than DHS to claim that although DACA calls for case-by-case discretion in theory, its application is categorical in practice. Indeed, this argument was made by the plaintiffs in the Texas litigation. See Texas v. United States, 809 F.3d 134, 171–72 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem). But when made by the agency itself, the argument becomes a non sequitur: if Secretary Nielsen believes that DACA is not being implemented as written, she can simply direct her employees to implement it properly. An agency head cannot point to her own employees’ misapplication of a program as a reason for its invalidity.
Specious though it may be, this rationale nonetheless presents as the sort of policy consideration that, when offered as an independent reason for adopting a general enforcement policy, might foreclose judicial review. When viewed in the broader context of this litigation, however, this rationale reveals itself to be yet another attempt to disguise an objection to DACA’s legality as a policy justification for its rescission.
Throughout the litigation over DAPA and DACA, the programs’ challengers have consistently claimed that although DACA “facially purports to confer discretion,” in practice deferred action was categorically granted to anyone who met the program’s eligibility criteria.
17

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 18 of 25
Texas, 809 F.3d at 171–72. This argument was offered by the Texas plaintiffs as a reason that DAPA should have undergone notice-and-comment rulemaking, see id., and by the government in this case as a reason to uphold DHS’s conclusion that DACA was unlawful, see Reply in Supp. of Defs.’ Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. [ECF No. 55] at 22 (“While [the Fifth Circuit’s] finding [that DACA was applied categorically] had to be ‘extrapolated’ to invalidate DAPA, it directly dooms DACA itself . . . .” (citation omitted)). Likewise, the Duke Memo cast DACA’s alleged categorical application as an issue of lawfulness, explaining that deferred action was “meant to be applied only on an individualized case-by-case basis,” not to “confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” See J.A. at 253. Even a 2014 memorandum by the Office of Legal Counsel (the “OLC Memo”) cautioned that “it was critical that . . . 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.” J.A. at 21 n.8.
Taken in context, then, Secretary Nielsen’s claim that rescinding DACA would further her policy objective of ensuring the distribution of deferred action grants on a “case-by-case” basis is simply a repackaging in policy terms of an oft-repeated objection to DACA’s lawfulness. And while a remand provides an agency the opportunity to elaborate on its prior positions in good faith, it is not an opportunity for the agency to alter those positions—particularly where the chief design of doing so appears to be to defeat judicial review. The Court therefore concludes that the Nielsen Memo’s individualized-discretion rationale does not preclude judicial review here.
Finally, the memo asserts that “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration
18

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 19 of 25
laws,” particularly given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” Nielsen Memo at 3. As the Court has already explained, this rationale is a post hoc rationalization and hence is not entitled to consideration on remand. See Food Mktg. Inst., 587 F.2d at 1290. But even if the Court were to consider this rationale, it would not immunize DACA’s rescission from judicial review.
With this messaging rationale, Secretary Nielsen finally articulates (albeit in a single sentence) what might be properly characterized as a policy reason for DACA’s rescission: a judgment that DACA’s benefits—whatever they may be—are outweighed by the fact that, in Secretary Nielsen’s view, the policy encourages noncitizen children and their parents to enter the United States illegally. Of course, this rationale is not without its logical difficulties: after all, DACA is available only to those individuals who have lived in the United States since 2007, see NAACP, 298 F. Supp. 3d at 216, so the “tens of thousands of minor aliens” who Secretary Nielsen asserts have illegally entered the United States “in recent years” would not even be eligible under the program. But no matter. The question for reviewability purposes is not whether the rationale makes sense, but rather whether it transforms DACA’s rescission from a decision based “solely on [DHS’s] belief that it lacks jurisdiction,” Chaney, 470 U.S. at 833 n.4, into a decision based on “factors which are peculiarly within [DHS’s] expertise,” such as “whether the particular enforcement action requested best fits the agency’s overall policies,” id. at 831.
Even if the messaging rationale were sufficiently grounded in the Duke Memo so as to be an amplification rather than a post hoc rationalization, ultimately it would still be too little, too late. Although the Nielsen Memo states several paragraphs earlier that each of its reasons is “separate and independently sufficient” to support DACA’s rescission, Nielsen Memo at 1, the
19

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 20 of 25
document’s cursory discussion of the messaging rationale—which is articulated in a single sentence on the last page of the three-page memorandum—does not support this assertion. See NAACP, 298 F. Supp. 3d at 233–34 (noting that, in Chaney, the agency took the position that “even if it had jurisdiction, it would still decline to act pursuant to its ‘inherent discretion to decline to pursue certain enforcement matters’” (quoting Chaney, 470 U.S. at 824–25)). The Court would not conclude that this solitary sentence in the Nielsen Memo wholly transmutes the explanation for DACA’s rescission from an issue of law into an issue of policy.
In any case, the Court need not reach this conclusion because, as it has already explained, the messaging rationale is merely a post hoc rationalization of DACA’s rescission. And because, as explained above, the other rationales offered by the Nielsen Memo are “insufficiently independent from the agency’s evaluation of DACA’s legality” to defeat review, id. at 235, the Court declines to reverse its prior conclusion that DACA’s rescission is reviewable. The government’s motion for reconsideration will therefore be denied as to reviewability. IV. THE NIELSEN MEMO PROVIDES NO REASON TO REVISE THE COURT’S EARLIER
DETERMINATION THAT DACA’S RESCISSION WAS ARBITRARY AND CAPRICIOUS The Court now turns to whether the Nielsen Memo provides a basis for revising the Court’s prior determination that DACA’s rescission was arbitrary and capricious. See id. at 237–43. As explained below, it does not. Most glaringly, the Nielsen Memo provides almost no meaningful elaboration on the Duke Memo’s assertion that DACA is unlawful. The Nielsen Memo again ignores the 2014 OLC Memo laying out a comprehensive framework for evaluating the lawfulness of nonenforcement policies in the immigration context, see J.A. at 4–36—an omission that plaintiffs properly characterize as “mystifying,” Pls.’ Opp’n at 18, given the Court’s prior emphasis on the document, see NAACP,
20

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 21 of 25
298 F. Supp. 3d at 239 & n. 22.11 Instead, like the Duke Memo before it, the Nielsen Memo relies
primarily on the one-page Sessions Letter and on the Fifth Circuit’s ruling in the DAPA litigation.
See Nielsen Memo at 2. But as this Court has already said, the Sessions Letter’s conclusory legal
assertions are themselves inadequately explained, and the Fifth Circuit’s analysis in the DAPA
case is “inapposite” here given the meaningful distinctions between DAPA and DACA, which
include DAPA’s open-ended nature, broad scope, and apparent conflict with express provisions of
the INA. See NAACP, 298 F. Supp. 3d at 238–40 (citing Texas, 809 F.3d at 179).
In response, Secretary Nielsen states that “[a]ny arguable distinctions between the DAPA
and DACA policies are not sufficiently material to convince me that the DACA policy is lawful.”
Nielsen Memo at 2. But she does not explain why. Secretary Nielsen also asserts that the Fifth
Circuit’s DAPA ruling was based not on any particular statutory conflict, but rather on DAPA’s
“incompatibility . . . with the INA’s comprehensive scheme.” Id. But as plaintiffs correctly point
out, see Pls.’ Opp’n at 15–16, even if this were an accurate characterization of the Fifth Circuit’s
opinion,12 the Nielsen Memo offers no clue as to how an agency official, a court, or anyone else
would go about determining whether a particular nonenforcement policy meets Secretary Nielsen’s
11 As was true with respect to the Duke Memo, the mere fact that the OLC Memo appears in the administrative record, even when combined with the Nielsen Memo’s statement that Secretary Nielsen has “considered . . . the administrative record,” Nielsen Memo at 1, does not amount to meaningful consideration for purposes of the APA. Nor does the Court agree that “the OLC Memo has little significance, especially given that its analysis as to DAPA was later rejected by the Fifth Circuit (in a decision affirmed by an equally divided Supreme Court) as well as by the Attorney General.” Gov’t’s Mot. at 13. For one thing, the Fifth Circuit did not expressly disapprove the OLC Memo; indeed, the one time it mentioned the memo, it cited it as an authoritative source. See Texas, 809 F.3d at 184 n.197. And in any case, to the extent that the panel majority’s analysis in Texas was inconsistent with OLC Memo, its decision was affirmed by an equally divided Supreme Court and so is not binding outside of the Fifth Circuit. See Nichols v. United States, 511 U.S. 738, 750 (1994) (Souter, J., concurring in the judgment) (noting that “a decision . . . by an equally divided [Supreme] Court” is “entitled to no precedential value”). Similarly, the one-page Sessions Letter did not directly address the OLC Memo or expressly overrule its analysis. J.A. at 251.
12 But see Texas, 809 F.3d at 184 n. 197 (“[O]ur conclusion turns on whether the INA gives DHS the power to create and implement a sweeping class-wide rule changing the immigration status of the affected aliens without full notice-and-comment rulemaking, especially where—as here—the directive is flatly contrary to the statutory text.” (emphasis added)).
21

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 22 of 25
test for “compatibility” with the overall statutory scheme. Thus, like the Duke Memo before it, the Nielsen Memo offers nothing even remotely approaching a considered legal assessment that this Court could subject to judicial review.
Nor do the Nielsen Memo’s remaining rationales persuade the Court to revise its prior conclusion that DACA’s rescission was arbitrary and capricious. As the Court has already indicated, those rationales carry varying degrees of persuasive force, and some may fall below the APA’s standard of rationality. But as the D.C. Circuit has explained, “[w]here . . . an agency has set out multiple independent grounds for a decision,” courts will uphold that decision “so long as any one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that basis if the alternative grounds were unavailable.” Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (citation omitted).
Here, Secretary Nielsen states in a somewhat conclusory fashion that each of the grounds offered in her memo is “independently sufficient” to support DACA’s rescission. Nielsen Memo at 1. The Court is skeptical of this assertion, particularly given its conclusion that three of those grounds—the substantial-doubts, legislative-inaction, and individualized-discretion rationales— simply recapitulate the Secretary’s inadequately explained legal assessment, and that the remaining ground—projecting a message to would-be illegal immigrants—appears nowhere in the Duke Memo and is therefore post hoc. Even assuming that these rationales are indeed independent and that at least one is sufficiently rational to survive APA review, however, DACA’s rescission would still be arbitrary and capricious because the Nielsen Memo—like the Duke Memo before it—fails to engage meaningfully with the reliance interests and other countervailing factors that weigh against ending the program. See NAACP, 298 F. Supp. 3d at 240.
22

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 23 of 25
Although this time around the Nielsen Memo at least “acknowledge[s] how heavily DACA beneficiaries had come to rely on” the program, id., it does little more than that. Instead of considering DACA’s benefits to DACA recipients and to society at large, see Pls.’ Opp’n at 19– 20, Secretary Nielsen simply states that “the asserted reliance interests” are outweighed by DACA’s “questionable legality . . . and the other reasons for ending the policy,” and then goes on to suggest that she should not even have to consider those interests. See id. (asserting that “issues of reliance would be best considered by Congress”). However, it is not up to Secretary Nielsen— or even to this Court—to decide what she should or should not consider when reversing agency policy. Rather, the requirements are set by the APA, as interpreted by the Supreme Court: “When an agency changes its existing position, it . . . must . . . be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016).
Like the Duke Memo, the Nielsen Memo demonstrates no true cognizance of the serious reliance interests at issue here—indeed, it does not even identify what those interests are. “It would be arbitrary and capricious to ignore such matters,” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015) (citation omitted), and it is so here. Nor, given the inadequacy of the Nielsen Memo’s explanation of why DACA is unlawful, can the Court accept as sufficient its bare determination that any reliance interests are outweighed by “the questionable legality of the DACA policy and the other” fatally intertwined reasons listed in the memo. Nielsen Memo at 3. Because the Nielsen Memo fails to provide an adequate justification for the decision to rescind DACA— much less the “more substantial justification” that the APA requires when an agency’s “prior
23

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 24 of 25
policy has engendered serious reliance interests,” Perez, 135 S. Ct. at 1209—the Court sees no reason to change its earlier determination that DACA’s rescission was arbitrary and capricious.
CONCLUSION For the foregoing reasons, the Court again concludes that DHS’s September 2017 decision to rescind the DACA program, as now explained in the Duke and Nielsen Memos, was both subject to judicial review and arbitrary and capricious. The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again. Consequently, the government’s motion to reconsider the Court’s April 24, 2018 order will be denied. Per the government’s request, however, the Court will continue the stay of its order of vacatur for a brief period—twenty days—to permit the government to determine whether it intends to appeal the Court’s decision and, if so, to seek a stay pending appeal. In all other respects, the Court’s April 24, 2018 order will remain in force. Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not
24

Case 1:17-cv-02325-JDB Document 78 Filed 08/03/18 Page 25 of 25

do. The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.13 A separate order has been issued on this date.

Dated: August 3, 2018

/s/
JOHN D. BATES United States District Judge

13 The Court also notes that the propriety of so-called nationwide injunctions, such as the ones issued by district courts in California and New York in related litigation, has recently been called into question. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (noting but declining to address the issue); City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018) (concluding that the district court did not “abuse[] its discretion in determining that the scope of the injunction should be nationwide”), reh’g granted, No. 17-2991 (7th Cir. June 4, 2018) (granting rehearing en banc “only as to the geographic scope of the preliminary injunction entered by the district court”). That debate is not implicated here, however, where the Court is vacating an agency action pursuant to the APA, as opposed to enjoining it as a violation of the Constitution or other applicable law. See 5 U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).
25

 
 Case 1:17-cv-02325-JDB Document 88-1 Filed 07/23/20 Page 1 of 1

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 18-5243

September Term, 2019

1:17-cv-01907-JDB 1:17-cv-02325-JDB

Filed On: July 23, 2020

National Association for the Advancement of Colored People, (NAACP), National Headquarters, et al.,

Appellees

v.

Donald J. Trump, in his official capacity as President of the United States, et al.,

Appellants ------------------------------

Consolidated with 18-5245

BEFORE: Griffith and Millett, Circuit Judges; and Edwards, Senior Circuit Judge
O R D E R
It is ORDERED, on the court’s own motion, that in light of the Supreme Court’s opinion in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020), this case be remanded to the district court with instructions to remand it to the Department of Homeland Security for further action, if appropriate, that is consistent with the Supreme Court’s decision.
The Clerk is direct to issue the mandate forthwith.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Daniel J. Reidy Deputy Clerk

 
 (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

Cite as: 591 U. S. ____ (2020)

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

Cite as: 591 U. S. ____ (2020)

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

Cite as: 591 U. S. ____ (2020)

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.

Cite as: 591 U. S. ____ (2020)

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,

Cite as: 591 U. S. ____ (2020)

9

Opinion of the Court
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

Cite as: 591 U. S. ____ (2020)

11

Opinion of the Court
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

12

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

Cite as: 591 U. S. ____ (2020)

13

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

Cite as: 591 U. S. ____ (2020)

15

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

Cite as: 591 U. S. ____ (2020)

17

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

18

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.

Cite as: 591 U. S. ____ (2020)

19

Opinion of the Court
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).

Cite as: 591 U. S. ____ (2020)

21

Opinion of the Court
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

22

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.

Cite as: 591 U. S. ____ (2020)

23

Opinion of the Court
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)

24

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).

Cite as: 591 U. S. ____ (2020)

25

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.

Cite as: 591 U. S. ____ (2020)

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

Cite as: 591 U. S. ____ (2020)

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.

Cite as: 591 U. S. ____ (2020)

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-

Cite as: 591 U. S. ____ (2020)

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.

Cite as: 591 U. S. ____ (2020)

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.

Cite as: 591 U. S. ____ (2020)

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).

Cite as: 591 U. S. ____ (2020)

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

Cite as: 591 U. S. ____ (2020)

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.

Cite as: 591 U. S. ____ (2020)

9

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

10

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

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).

Cite as: 591 U. S. ____ (2020)

11

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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

12

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

THOMAS, J., concurring iOnptihneiojundogfmTeHnOtMiAnSp, aJr. t and dissenting in part

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.

Cite as: 591 U. S. ____ (2020)

13

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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).

14

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

Cite as: 591 U. S. ____ (2020)

15

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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

16

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

Cite as: 591 U. S. ____ (2020)

17

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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).

18

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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.

Cite as: 591 U. S. ____ (2020)

19

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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.

20

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

Cite as: 591 U. S. ____ (2020)

21

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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.

22

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.

Cite as: 591 U. S. ____ (2020)

23

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
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.

24

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 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 1 of 9
Exhibit 1

Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 2 of 9
Secretary U.S. Department of Homeland Security Washington, DC 20528

July 28, 2020

MEMORANDUM FOR:
FROM: SUBJECT:

Mark Morgan Senior Official Performing the Duties of Commissioner U.S. Customs and Border Protection
Matthew Albence Senior Official Performing the Duties of Director U.S. Immigration and Customs Enforcement
Joseph Edlow Deputy Director of Policy U.S. Citizenship and Immigration Services
Chad F. Wolf Acting Secretary
Reconsideration of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”

On June 15, 2012, Secretary of Homeland Security Janet Napolitano established the policy known as Deferred Action for Childhood Arrivals (DACA) through a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” Ever since, the policy has been subject to substantial controversy. In recent years, Acting Secretary of Homeland Security Elaine Duke and Secretary of Homeland Security Kirstjen Nielsen concluded that the DACA policy should be fully rescinded and issued additional memoranda in 2017 and 2018, respectively, to effect that decision.

On June 18, 2020, the U.S. Supreme Court issued a decision that did not question the authority of the Department of Homeland Security (DHS) to rescind the DACA policy, but determined that the 2017 and 2018 memoranda had not complied with certain requirements for doing so. See Department of Homeland Security v. Regents of the University of California, Nos. 18-587, 18-588, 18-589. Accordingly, the Court concluded that the rescission must be vacated and remanded to DHS so that it “may consider the problem anew.” Regents, Slip op. at 29.

By this memorandum, I am rescinding the 2017 and 2018 memoranda, and making certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision. For the reasons outlined below, pending my full reconsideration of the DACA policy, I direct DHS personnel to take all appropriate actions to reject all pending and future initial requests for DACA, to reject all

Page 2 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 3 of 9
pending and future applications for advance parole absent exceptional circumstances, and to shorten DACA renewals consistent with the parameters established in this memorandum.
Background
On June 15, 2012, Secretary Napolitano issued the memorandum (Napolitano Memorandum) establishing the DACA policy. The policy provided for the granting of deferred action to certain individuals with no lawful immigration status “who were brought to this country as children” and who satisfied a list of additional specified criteria. The memorandum described this deferred action as an exercise of “prosecutorial discretion” to forbear from removing an alien who would otherwise be subject to removal. Under pre-existing regulations, a grant of deferred action made aliens eligible for certain other attendant benefits, such as work authorization. The memorandum directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to establish procedures for granting deferred action and work authorization to eligible aliens for a two-year period, subject to renewal, and for notifying those aliens of DHS’s decision to do so. The memorandum stated, however, that it “confer[red] no substantive right, immigration status or pathway to citizenship.”
On November 20, 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum (Johnson Memorandum) to expand the DACA policy and establish a new, related policy known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). With regard to DACA, this memorandum eliminated a criterion relating to the age of DACA requestors when the policy was announced, extended the deferred-action and work-authorization period from two to three years, and adjusted the date by which requestors must have entered the United States to be eligible for DACA. The DAPA policy allowed for deferred action to be provided to certain parents whose children are U.S. citizens or lawful permanent residents through a process similar to DACA.
Shortly thereafter, the U.S. District Court for the Southern District of Texas issued a nationwide preliminary injunction preventing both the DAPA policy and the expansion of the DACA policy from taking effect. In 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed, holding that DAPA and expanded DACA likely violated both the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA). In 2016, the U.S. Supreme Court affirmed the court of appeals’ decision by an equally divided vote. On June 15, 2017, Secretary of Homeland Security John Kelly issued a memorandum rescinding the Johnson Memorandum.
Also in June 2017, several of the state plaintiffs from the Texas lawsuit announced their intent to amend their complaint in the then still-pending litigation to challenge the original DACA policy as well. The States argued that the DACA policy was unlawful for the same reasons as the DAPA policy and the expansion of the DACA policy. On September 4, 2017, then-Attorney General Jefferson B. Sessions III issued a letter to Acting Secretary Duke (Sessions Letter), concluding that the DACA policy was indeed unlawful and likely would also be enjoined.
On September 5, 2017, Acting Secretary Duke issued her memorandum (Duke Memorandum) rescinding the Napolitano Memorandum and initiating an orderly wind-down of the DACA policy. The Duke Memorandum explained that, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” in the litigation concerning the Johnson Memorandum, and the Sessions Letter, it was clear to the Acting Secretary that the DACA policy “should be terminated.”

Page 3 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 4 of 9
Litigation challenging the Duke Memorandum promptly ensued. As relevant here, suits were filed in the U.S. District Courts for the Northern District of California, Eastern District of New York, District of Maryland, and the District of Columbia. The District of Columbia district court vacated the rescission entirely, but stayed its ruling for 90 days to permit DHS to reissue a memorandum rescinding the DACA policy and providing a fuller explanation.
In response to that ruling, on June 22, 2018, Secretary Nielsen issued an additional memorandum (Nielsen Memorandum) providing further explanation for the rescission of the DACA policy. The Nielsen Memorandum explained that “the DACA policy properly was—and should be— rescinded, for several separate and independently sufficient reasons,” including that the policy is contrary to law; that, even if it were not unlawful, Secretary Nielsen lacked sufficient confidence in the policy’s legality to continue it; and that it was not sound enforcement policy in multiple respects. Despite the Nielsen Memorandum, the District of Columbia district court declined to reconsider its previous order vacating the rescission.
On June 18, 2020, having granted review in the California, New York, and D.C. cases, the U.S. Supreme Court held that the rescission of the DACA policy must be vacated. See Department of Homeland Security v. Regents of the University of California, Nos. 18-587, 18-588, 18-589. The Court observed that “[a]ll parties agree[d]” that “DHS may rescind DACA,” and the Court provided no reason to doubt that consensus. Slip op. at 9. But it held that DHS violated the APA in the manner in which it had rescinded the policy.
As a threshold matter, the Court determined that, although agency non-enforcement decisions are generally not reviewable under the APA, the rescission of the DACA policy was reviewable “because DACA is not simply a non-enforcement policy.” Id. at 11. Rather, the Court stated, the Napolitano Memorandum “created a program for conferring affirmative immigration relief,” the creation and rescission of which is subject to review under the APA. Id. And it added that the “benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy.” Id.
On the merits, the Court found that when DHS rescinded the DACA policy, it failed to consider important aspects of the problem. In making that determination, the Court declined to consider the Nielsen Memorandum. Instead, the Court characterized that memorandum as an impermissible post hoc rationalization of the rescission, because in the Court’s view Secretary Nielsen “chose to elaborate on the reasons for the initial rescission rather than take new administrative action.” Id. at 14. As to the Duke Memorandum, the Court held that it was arbitrary and capricious because (1) the Acting Secretary did not adequately consider whether DHS could and should address the illegality of the DACA policy by retaining the forbearance aspect of the policy (i.e., deferred action), while declining to make DACA recipients eligible for the other associated benefits, such as work authorization, id. at 17-23; and (2) the Acting Secretary did not adequately consider how, if at all, to address any “legitimate reliance ” on the Napolitano Memorandum, id. at 23-26. The Court thus concluded that the rescission must be vacated and that the matter should be “remand[ed] to DHS so that it may consider the problem anew.” Id. at 29.
The Court affirmed the District of Columbia district court’s final judgment, vacated the Ninth Circuit’s affirmance of the preliminary injunction issued by the Northern District of California, and vacated the preliminary injunction issued by the Eastern District of New York. Id.

Page 4 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 5 of 9
On June 30, 2020, Attorney General William Barr withdrew the Sessions Letter and directed the Department of Justice’s Office of Legal Counsel to withdraw all guidance it had provided to DHS on the legality of DACA and related deferred-action policies, including an Office of Legal Counsel opinion that briefly addressed the legality of DACA in connection with related deferredaction policies. Attorney General Barr explained that he did not “wish to maintain a determination as the Attorney General about the legality of DACA that might constrain the discretion [I] otherwise possess as Acting Secretary of Homeland Security to consider whether and how to rescind DACA.”
Rescission of the Nielsen and Duke Memoranda, and Reconsideration of the Napolitano Memoranda
In light of the Supreme Court’s decision to vacate the Duke Memorandum and remand to the Department of Homeland Security, and in my capacity as the Acting Secretary of Homeland Security, I am considering anew the DACA policy. To date, I have considered the Napolitano Memorandum itself, the Duke Memorandum and Acting Secretary Duke’s accompanying statement, the Nielsen Memorandum, the administrative record produced in litigation challenging the Duke Memorandum, the briefs and joint appendix filed in the Supreme Court from that litigation, the joint appendix filed in the Fourth Circuit on appeal in the District of Maryland litigation, all of the judicial opinions issued in the litigation over the Duke Memorandum, including the June 18 decision of the Supreme Court, the letter from Attorney General Barr, and letters expressing support for the DACA policy that have been submitted to the President and DHS since the Supreme Court’s June 18 decision.
As those materials demonstrate, whether to retain the DACA policy presents significant questions of law and legal policy. More importantly for present purposes, having considered those materials, I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission. At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration. Accordingly, in the exercise of my authority and discretion in establishing national immigration policies and priorities, see 8 U.S.C. § 1103(a)(1); 6 U.S.C. § 202(5), I am rescinding the Nielsen Memorandum and the Duke Memorandum, and making certain immediate changes to the DACA policy to mitigate my enforcement policy concerns while I conduct a full and careful consideration of a full rescission. Below, I address each of my enforcement policy concerns and then explain the immediate interim changes.
Enforcement Policy Concerns: There are several reasons of enforcement policy that may warrant the full rescission of the DACA policy.
First, even if the DACA policy could have been justified as a temporary measure when it was created, Congress arguably has had more than sufficient time to consider affording permanent status or immigration relief to the class of aliens covered by the policy. And yet, although various proposals have been advanced to do that, Congress has so far declined to take action. Particularly in the face of this failure to reach a legislative solution, I have serious doubts as to whether DHS should continue to provide either a reprieve from removal or a grant of attendant benefits to more than half a million aliens through a broad, class-based deferred-action policy.
By contrast, rescinding DACA entirely may well create a more pressing need for Congress to decide whether it wants to address this issue and the underlying conditions that led to a

Page 5 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 6 of 9
population of this size to remain in the United States in violation of our immigration laws for so long, and any other efforts to reform our immigration system in a manner that advances the national interest. As unilateral executive action, the DACA policy necessarily lacks the permanence of statutory law; it is more akin to a stopgap measure. For example, DACA recipients, as such, are not entitled to become lawful permanent residents and are not on a path to citizenship. Congress is best positioned to address that and other concerns on a more permanent basis through duly enacted statutes.
Second, there has been much debate about the discretion exercised by DHS personnel in implementing the DACA policy. In my view, however, regardless of the amount of discretion that has been exercised or could be exercised under the policy, I have reservations as a matter of policy about setting out a list of detailed criteria, and maintaining a formal process, for nonenforcement. I am concerned that doing so may tilt the scales in deciding which aliens should receive deferred action and may inhibit individualized consideration of each case, at least for a non-enforcement policy of this scale.
Third, because DHS is a law enforcement agency, I am concerned about sending mixed messages about DHS’s intention to consistently enforce the immigration laws as Congress has written them. DACA makes clear that, for certain large classes of individuals, DHS will at least tolerate, if not affirmatively sanction, their ongoing violation of the immigration laws. I am deeply troubled that the message communicated by non-enforcement policies like DACA may contribute to the general problem of illegal immigration in a manner that is inconsistent with DHS’s law enforcement mission.
Fourth, these concerns are all the more pressing in the context of children. It is vitally important to convey a message that discourages individuals from undertaking what can often be a perilous journey to this country with no legitimate claim to enter or remain. Of course, the DACA policy would not apply to children who are sent or brought to this country today. But rescinding the DACA policy may further DHS’s efforts to discourage illegal immigration involving children going forward. By contrast, I am concerned that retaining the policy creates some risk of communicating the contrary message and encouraging such illegal conduct by suggesting a potential for similar future policies.
Changes Pending Reconsideration of the DACA Policy: In accordance with the Supreme Court’s decision, I am determined to give careful consideration to whether the DACA policy should be maintained, rescinded, or modified. In the meantime, given my serious concerns about the policy, I have determined that some changes should immediately be made to the policy to limit its scope in the interim. First, while my reconsideration of the DACA policy continues, no new initial requests for DACA should be accepted. Second, advance parole should be granted to current DACA beneficiaries only in exceptional circumstances. Third, going forward, renewals of deferred action and the accompanying work authorization should be granted for one-year, rather than two-year, periods.
These changes will mitigate my concerns without encroaching materially on the reliance interests that have been raised by individuals, organizations, and state and local governments during the course of the extensive litigation over the Duke and Nielsen Memoranda, and in recent letters to the President and DHS. As noted by the Supreme Court, these groups have argued that, as the Napolitano Memorandum itself stated, many DACA recipients were brought or sent to the country as children, through no fault of their own, and may have never known another home.

Page 6 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 7 of 9
They assert that DACA recipients have structured their lives around the expectation that DHS would forbear from enforcing the immigration laws against them and have come to rely on the other associated benefits—like work authorization, Social Security, and Medicare, as well as advance parole—that are made available to DACA recipients. They point out that other parties, too, would be affected by the rescission of the DACA policy, including the family members, schools, employers, and employees of DACA recipients. They have offered estimates of the amount of economic activity DACA recipients generate and the federal, state, and local tax revenue that DACA recipients provide. And some have even argued that the current COVID-19 and economic crises provide additional reasons to continue the DACA policy, in light of the many DACA recipients who have pursued careers in healthcare and other essential services or who serve in other critical roles in the workforce.
Whatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking, with regard to aliens who have never before received deferred action pursuant to the policy. And any reliance interests possessed by an alien or a third party within the United States on that alien’s ability to remain in the country does not depend on the extraordinary ability to come and go from the country as they please. In light of my concerns about the policy as a whole, I do not believe that, at least absent exceptional circumstances, DHS should continue to make the benefit of advance parole available while I reconsider whether the DACA policy itself should exist. Indeed, even after determining that DHS’s prior full rescission of the policy was likely unlawful, the district courts in the previous litigation did not require DHS to consider requests for DACA from aliens who had not previously received it or to grant any requests for advance parole. Accordingly, that has been the status quo for more than two years. It makes sense to continue that approach while I reconsider whether to rescind or revise the policy. If I ultimately determine to maintain the policy, there is nothing in the policy that would preclude aliens from making an initial request for DACA or renewing requests for advance parole at that time. And, even in the interim, nothing in this memorandum precludes the exercise of deferred action on a truly individualized, case-by-case basis when and if warranted.
Nor are the asserted reliance interests significantly affected by shortening the renewal periods from two years to one year. Shortening renewal periods granted during this reconsideration period will have the potential benefit of significantly lessening the lasting effects of the DACA policy if I ultimately decide to rescind it. And the costs will be limited in the meantime, because the aliens who currently have DACA grants and have structured their affairs based on their expectation of its continuance may still seek renewal. They will merely have to seek renewal on an annual, rather than biannual, basis. In a similar manner, the third parties who are benefiting from those aliens’ continued presence today will continue to receive the same derivative benefits that they are receiving as long as the aliens’ renewals continue—whether on an annual or biannual basis. Put differently, even assuming that aliens with DACA have legitimate reliance interests in being able to renew at all, they have minimal if any reliance interests in the length of each renewal period, especially since a grant of DACA was and remains revocable.
I recognize that shortening renewal periods on a prospective basis will have the effect, during this interim period as I consider how to address the DACA policy, of increasing the total amount of renewal fees that an alien will be required to pay over a multi-year period. But the fee per application will remain constant, and the fee that DHS charges for the application is associated with the processing costs to DHS. DHS personnel should consider whether it is possible to

Page 7 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 8 of 9
reduce renewal fees during this interim period of reconsideration. In my current view, however, even if renewal fees cannot be reduced, shortening the renewal period is still warranted by my strong desire to limit the scope of the policy during this interim period despite any additional fees incurred by DACA beneficiaries as a result.
Finally, to further mitigate my concerns, I have determined that these changes should apply both to DACA and advance parole requests submitted after the issuance of this memorandum and requests that are currently pending before the agency. Since the issuance of the Supreme Court’s decision, DHS has, on an interim basis, generally held properly submitted initial requests for DACA in anticipation of potential policy changes. Since July 24, DHS has likewise, on an interim basis, held all requests for advanced parole from current DACA recipients.1 Consistent with the Court’s express remand for the agency’s reconsideration and the Napolitano Memorandum’s clear statement that it conferred no substantive rights, DHS did not expand beyond the status quo of the past several years for a few weeks while it was determining next steps. I now conclude that all pending and future requests should be treated in the same manner, rather than be subject to differential treatment depending on the fortuity of when DHS received the request within a short period of uncertainty. Nothing in the Napolitano Memo purports to preclude me from exercising my enforcement discretion to make these changes on an interim basis while I consider whether to make more substantial changes on a permanent basis. Even under the Napolitano Memo, no aliens had a legal entitlement to receive DACA—much less a legal entitlement to a particular renewal period. Nor can aliens with pending requests assert any meaningfully greater reliance interests in their initial or continued enjoyment of the policy and the attendant benefits than aliens who submit such requests after the issuance of this memorandum.
Accordingly, effective immediately, DHS shall:
• Reject all initial DACA requests and associated applications for Employment Authorization Documents, and refund all associated fees, without prejudice to re-filing such requests should DHS determine to begin accepting initial requests again in the future.
• Adjudicate all pending and future properly submitted DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries.
• Limit the period of any deferred action granted pursuant to the DACA policy after the issuance of this memorandum (and thereby limit the period of any associated work authorization) to one year.
• Refrain from terminating any grants of previously issued deferred action or revoking any Employment Authorization Documents based solely on the directives in this memorandum for the remaining duration of their validity periods.

1

Prior to July 24, DHS’s treatment of advance parole requests from DACA recipients varied. Many were

rejected, while some were accepted and receipted. To the extent any rejected requestor believes exceptional

circumstances support his or her request, he or she may now renew the request for advance parole, and it will be

adjudicated on the terms set forth in this memorandum.

Page 8 Case 1:17-cv-02325-JDB Document 89-1 Filed 07/28/20 Page 9 of 9
• Reject all pending and future Form I-131 applications for advance parole from beneficiaries of the DACA policy and refund all associated fees, absent exceptional circumstances.
• Refrain from terminating any grants of previously approved advance parole based solely on the directives in this memorandum for the remaining duration of their validity periods.
• 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.
• Continue to comply with the information-sharing policy as reflected in the DACA Frequently Asked Questions issued alongside the Napolitano Memorandum, and as set forth in USCIS’s Form I-821D instructions. Nothing in this memorandum makes any change to that policy.
* * * * *
This document is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or equity 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. Finally, if any aspect of the changes to the DACA policy in this memorandum is found to be unlawful, the remainder of the changes should nonetheless continue in effect.