APPEAL,CLOSED
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:17-cv-02942-PWG

Casa De Maryland et al v. U.S. Department of Homeland Security et al Assigned to: Judge Paul W. Grimm
Case in other court: USCA, 18-01521
USCA, 18-01522
Cause: 05:551 Administrative Procedures Act

Date Filed: 10/05/2017 Date Terminated: 03/05/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Casa De Maryland

represented by Dennis A Corkery Washington Lawyers Cmte for Civil Rights and Urban Affairs 700 14th St. NW Ste 400 Washington, DC 20005 12023191000 Fax: 12023191010 Email: dennis_corkery@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Arak Freedman Arnold and Porter Kaye Scholer LLP 601 Massachusetts NW Washington, DC 20001 2029425316 Fax: 2029425999 Email: John.Freedman@apks.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ajmel Quereshi NAACP Legal Defense Fund 700 14th St. NW Suite 600

Washington, DC 20005 2022165574 Fax: 2026821312 Email: aquereshi@naacpldf.org TERMINATED: 05/21/2020
Elizabeth J Bower Willkie Farr and Gallagher LLP 1875 K St. NW Washington, DC 20006 2023031000 Fax: 2023032252 Email: ebower@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark Willkie Farr and Gallagher LLP 1875 K St. NW Washington, DC 20006 2023031105 Fax: 2023032105 Email: kclark@willkie.com ATTORNEY TO BE NOTICED
Kyle Mathews Willkie Farr and Gallagher LLP 1875 K St. NW Washington, DC 20006 2023031236 Fax: 2023032000 Email: kmathews@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley Handley Farah & Anderson PLLC 777 6th Street NW Washington, DC 20001 12025592411 Email: mhandley@hfajustice.com TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
The Coalition for Humane Immigrant Rights (CHIRLA)

Nancy Perkins Arnold and Porter Kaye Scholer LLP 601 Massachusetts Ave. NW Washington, DC 20001 2029425065 Fax: 2029425999 Email: nancy.perkins@apks.com PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar Willkie Farr and Gallagher LLP 1875 K St. NW Washington, DC 20006 2023031189 Fax: 2023032189 Email: paiyar@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter Arnold and Porter Kaye Scholer LLP 601 Massachusetts Ave. NW Washington, DC 20001 2029425160 Fax: 2029425999 Email: ronald.schechter@apks.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Fair Immigration Movement (FIRM)

Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address)

Plaintiff One America

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Promise Arizona

Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address)

Plaintiff Make the Road Pennsylvania

TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michigan United

Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020

Plaintiff Arkansas United Community Coalition

Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Junta for Progressive Action, Inc.

represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address)

Plaintiff Angel Aguiluz

PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE

Plaintiff Estefany Rodriguez

Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE

Plaintiff Heymi Elvir Maldonado

ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Nathaly Uribe Robledo

Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Eliseo Mages

Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address)

Plaintiff Jesus Eusebio Perez

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Josue Aguiluz

Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address)

Plaintiff Missael Garcia

TERMINATED: 05/21/2018 PRO HAC VICE
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Aguiluz

Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower

Plaintiff Maricruz Abarca

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff Annabelle Martines Herra

ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter

Plaintiff Maria Joseline Cuellar Baldelomar

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE

Plaintiff Brenda Moreno Martinez

ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley

Plaintiff Luis Aguilar

(See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address)

Plaintiff
J. M. O. a minor child

ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020

Plaintiff
Adriana Gonzales Magos next of friend to J.M.O.

Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
A. M. a minor child

represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address)

Plaintiff
Isabel Cristina Aguilar Arce next of friend to A.M.

PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ajmel Quereshi (See above for address) TERMINATED: 05/21/2020
Elizabeth J Bower (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin B. Clark (See above for address) ATTORNEY TO BE NOTICED
Kyle Mathews (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Keith Handley (See above for address) TERMINATED: 05/21/2018 PRO HAC VICE

V. Intervenor Plaintiff Ricardo Aguilar Garcia TERMINATED: 04/09/2019
Intervenor Plaintiff

Nancy Perkins (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Priya R Aiyar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald A. Schechter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Raha Jorjani Alameda County Public Defender's Office 312 Clay St. 2nd Floor Oakland, CA 94607 5102687401 Fax: 5102687262 Email: raha.jorjani@acgov.org PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas K Ragland Clark Hill PLC 1001 Pennsylvania Ave., NW Suite 1300 South Washington, DC 20004 202-552-2360 Fax: 202-552-2384 Email: tragland@clarkhill.com ATTORNEY TO BE NOTICED

Ricardo Aguilar Garcia

represented by Ricardo Aguilar Garcia Yuba County Jail 215 5th Street Marysville Marysville, CA 95901 PRO SE

V. Defendant U.S. Department of Homeland Security

represented by Brett Shumate US DOJ 950 Pennsylvania Ave. NW Washington, DC 20530 2025142331 Fax: 2025148071 Email: brett.a.shumate@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis U.s. Department Of Justice Civil Division 20 Massachusetts Ave. NW Room 6130 Washington, DC 20530 2026168298 Fax: 2026168460 Email: Kathryn.C.Davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland U.s. Department Of Justice 20 Massachusetts Ave. NW Washington, DC 20530 2025141280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp

Defendant
U.S. Citizenship and Immigration Services

US Department of Justice 1100 L Street NW Washington, DC 20530 2025144781 Fax: 2026168470 Email: galen.thorp@usdoj.gov ATTORNEY TO BE NOTICED
Stephen Michael Pezzi U.s. Department Of Justice 1100 L St. NW Washington, DC 20006 2023058576 Fax: 2026168470 Email: stephen.pezzi@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. Immigration and Customs Enforcement
Defendant U.S. Customs and Border Protection

represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Donald J. Trump in his official capacity as President of the United States
Defendant Jefferson Beauregard Sessions, III in his official capacity as Attorney General of the United States

Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address)

Defendant Elaine C Duke in her official capacity as Acting Secretary of Homeland Security
Defendant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED

James W. McCament in his official capacity as Acting Director of U.S. Citizenship and Immigration Services
Defendant Thomas D. Homan in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement

represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address)

Defendant Kevin K. McAleenan in his official capacity in his official capacity as Acting Commissioner of Custom and Border Protection
Defendant United States of America

ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Shumate (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn C Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachael Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Galen N Thorp (See above for address) ATTORNEY TO BE NOTICED
Stephen Michael Pezzi (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/05/2017
10/05/2017

# Docket Text

COMPLAINT against Elaine C Duke, Thomas D. Homan, Kevin K.

1

McAleenan, James W. McCament, Jefferson Beauregard Sessions, III,

Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs

and Border Protection, U.S. Department of Homeland Security, U.S.

Immigration and Customs Enforcement, UNITED STATES OF AMERICA (

Filing fee $ 400 receipt number 0416-6928887.), filed by Missael Garcia,

Estefany Rodriguez, One America, Junta for Progressive Action, Inc., Casa

De Maryland, Nathaly Uribe Robelo, Eliseo Mages, Adriana Gonzales

Magos, Josue Aguiluz, Jose Aguiluz, Make the Road Pennsylvania, Isabel

Cristina Aguilar Arce, Heymi Elvir Maldonado, Michigan United, Jesus

Eusebio Perez, Annabelle Martines Herra, The Coalition for Humane

Immigrant Rights (CHIRLA), A. M., Promise Arizona, Maria Joseline Cuellar

Baldelomar, Arkansas United Community Coalition, J. M. O., Maricruz

Abarca, Luis Aguilar, Angel Aguiluz, Brenda Moreno Martinez, Fair

Immigration Movement (FIRM). (Attachments: # 1 Civil Cover Sheet,

# 2 DHS Summons, # 3 USCIS Summons, # 4 Ice Summons, # 5 USCBP

Summons, # 6 Trump Summons, # 7 Sessions Summons, # 8 Duke

Summons, # 9 McCament Summons, # 10 Homan Summons,

# 11 McAleenan Summons, # 12 United States Summons, # 13 Summons

to the United States Attorney, # 14 Summons to the Attorney

General)(Corkery, Dennis) (Entered: 10/05/2017)

2 MOTION to Omit Individual Plaintiffs' Home Addresses from Caption by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration

10/05/2017 10/05/2017
10/05/2017
10/06/2017

Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robelo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Corkery, Dennis) (Entered: 10/05/2017)
3 UNREDACTED DOCUMENT (Corkery, Dennis) (Entered: 10/05/2017)
4 Summons Issued 60 days as to Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons)(bus, Deputy Clerk) (Entered: 10/05/2017)
5 MOTION to Appear Pro Hac Vice for Nancy L. Perkins (Filing fee $100, receipt number 0416-6930605.) by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Corkery, Dennis) (Entered: 10/05/2017)
6 MOTION to Appear Pro Hac Vice for Elizabeth J. Bower (Filing fee $100, receipt number 0416-6931065.) by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Corkery, Dennis) (Entered: 10/06/2017)

10/09/2017 10/10/2017 10/11/2017 10/11/2017 10/13/2017
10/16/2017 10/19/2017

7 Local Rule 103.3 Disclosure Statement by Arkansas United Community Coalition, Casa De Maryland, Fair Immigration Movement (FIRM), Junta for Progressive Action, Inc., Make the Road Pennsylvania, Michigan United, One America, Promise Arizona, The Coalition for Humane Immigrant Rights (CHIRLA) (Corkery, Dennis) (Entered: 10/09/2017)
8 Request for Conference (Corkery, Dennis) (Entered: 10/10/2017)
9 PAPERLESS ORDER granting 5 Motion to Appear Pro Hac Vice on behalf of Nancy Perkins. Directing attorney Nancy Perkins to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/11/2017. (srds, Deputy Clerk) (Entered: 10/11/2017)
10 PAPERLESS ORDER granting 6 Motion to Appear Pro Hac Vice on behalf of Elizabeth J Bower. Directing attorney Elizabeth J Bower to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/11/2017. (srds, Deputy Clerk) (Entered: 10/11/2017)
11 MOTION to Appear Pro Hac Vice for John A. Freedman (Filing fee $100, receipt number 0416-6941901.) by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Corkery, Dennis) (Entered: 10/13/2017)
12 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of John Arak Freedman. Directing attorney John Arak Freedman to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/16/2017. (srd, Deputy Clerk) (Entered: 10/16/2017)
13 NOTICE of Appearance by Kathryn C Davis on behalf of Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of

10/19/2017 10/20/2017 10/23/2017 10/30/2017
10/30/2017 11/01/2017 11/01/2017

Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Davis, Kathryn) (Entered: 10/19/2017)
14 NOTICE of Appearance by Rachael Westmoreland on behalf of All Defendants (Westmoreland, Rachael) (Entered: 10/19/2017)
15 ORDER scheduling an in-person status conference for November 1, 2017 at 2:00 p.m. Signed by Judge Roger W Titus on 10/20/2017. (bmhs, Deputy Clerk) (Entered: 10/23/2017)
16 NOTICE of Appearance by Kevin B. Clark on behalf of All Plaintiffs (Clark, Kevin) (Entered: 10/23/2017)
17 SUMMONS Returned Executed by Missael Garcia, Estefany Rodriguez, One America, Junta for Progressive Action, Inc., Casa De Maryland, Nathaly Uribe Robledo, Eliseo Mages, Adriana Gonzales Magos, Josue Aguiluz, Jose Aguiluz, Make the Road Pennsylvania, Isabel Cristina Aguilar Arce, Heymi Elvir Maldonado, Michigan United, Jesus Eusebio Perez, Annabelle Martines Herra, The Coalition for Humane Immigrant Rights (CHIRLA), A. M., Promise Arizona, Maria Joseline Cuellar Baldelomar, Arkansas United Community Coalition, J. M. O., Maricruz Abarca, Luis Aguilar, Angel Aguiluz, Brenda Moreno Martinez, Fair Immigration Movement (FIRM). Elaine C Duke served on 10/6/2017, answer due 12/5/2017; Thomas D. Homan served on 10/6/2017, answer due 12/5/2017; Kevin K. McAleenan served on 10/6/2017, answer due 12/5/2017; James W. McCament served on 10/6/2017, answer due 12/5/2017; Jefferson Beauregard Sessions, III served on 10/6/2017, answer due 12/5/2017; Donald J. Trump served on 10/6/2017, answer due 12/5/2017; U.S. Citizenship and Immigration Services served on 10/6/2017, answer due 12/5/2017; U.S. Customs and Border Protection served on 10/6/2017, answer due 12/5/2017; U.S. Department of Homeland Security served on 10/6/2017, answer due 12/5/2017; U.S. Immigration and Customs Enforcement served on 10/6/2017, answer due 12/5/2017; United States of America served on 10/6/2017, answer due 12/5/2017.(Corkery, Dennis) (Entered: 10/30/2017)
18 NOTICE of Appearance by Matthew Keith Handley on behalf of All Plaintiffs (Handley, Matthew) (Entered: 10/30/2017)
19 Status Conference held on 11/1/2017 before Judge Roger W Titus.(Court Reporter: Linda Marshall - 2C) (jmhs, Deputy Clerk) (Entered: 11/01/2017)
20 ORDER granting 2 MOTION to Omit Individual Plaintiffs' Home Addresses from Caption ; ORDERED, that Defendants SHALL FILE any responsive

11/02/2017 11/06/2017
11/06/2017 11/13/2017 11/14/2017

pleading or motions by November 15, 2017 at 5:00 p.m; ORDERED, that Plaintiffs SHALL RESPOND to any of Defendants motions by November 28, 2017 at 5:00 p.m;ORDERED, that Defendants MAY FILE ANY REPLY in support of their motions byDecember 5, 2017 at 5:00 p.m.;ORDERED, that the hearing on these motions is hereby SCHEDULED for December 15, 2017 at 9:30 a.m. for two hours. Signed by Judge Roger W Titus on 11/1/2017. (kw2s, Deputy Clerk) (Entered: 11/02/2017)
21 STATUS REPORT on Related Cases by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Exhibit Summary of related cases)(Westmoreland, Rachael) (Entered: 11/02/2017)
22 MOTION to Appear Pro Hac Vice for Priya R. Aiyar (Filing fee $100, receipt number 0416-6983199.) by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Clark, Kevin) (Entered: 11/06/2017)
23 PAPERLESS ORDER granting 22 Motion to Appear Pro Hac Vice on behalf of Priya Aiyar. Directing attorney Priya Aiyar to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 11/6/2017. (srd, Deputy Clerk) (Entered: 11/06/2017)
24 MOTION for Leave to File Excess Pages by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America(Westmoreland, Rachael) (Entered: 11/13/2017)
25 MARGINAL ORDER granting 24 Motion for Leave to File Excess Pages. Signed by Judge Roger W Titus on 11/14/2017. (jf3s, Deputy Clerk) (Entered: 11/14/2017)

11/15/2017 11/15/2017 11/21/2017 11/28/2017
12/05/2017

NOTICE of filing Administrative Record by Elaine C Duke, Thomas D.

26

Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard

Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services,

U.S. Customs and Border Protection, U.S. Department of Homeland

Security, U.S. Immigration and Customs Enforcement, United States of

America (Attachments: # 1 Exhibit 1 - Administrative Record)(Davis,

Kathryn) (Entered: 11/15/2017)

MOTION to Dismiss by Elaine C Duke, Thomas D. Homan, Kevin K.

27

McAleenan, James W. McCament, Jefferson Beauregard Sessions, III,

Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs

and Border Protection, U.S. Department of Homeland Security, U.S.

Immigration and Customs Enforcement, United States of America

(Attachments: # 1 Memorandum of Law, # 2 Text of Proposed

Order)(Westmoreland, Rachael) (Entered: 11/15/2017)

28 MEMORANDUM/ORDER re 27 MOTION to Dismiss . Signed by Judge Roger W Titus on 11/21/2017. (jf3s, Deputy Clerk) (Entered: 11/21/2017)

29

RESPONSE in Opposition re 27 MOTION to Dismiss filed by Maricruz

Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose

Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De

Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement

(FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive

Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road

Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno

Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona,

Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane

Immigrant Rights (CHIRLA). (Attachments: # 1 Exhibit Declaration of John

Freedman, # 2 Exhibit Exhibits 1-9 to Declaration of John Freedman,

# 3 Exhibit Exhibits 10-22 to Declaration of John Freedman, # 4 Exhibit

Declaration of Elizabeth Bower, # 5 Exhibit Exhibits to Declaration of

Elizabeth Bower, # 6 Exhibit Declaration of Casa de Maryland, # 7 Exhibit

Declaration of One America, # 8 Exhibit Declaration of Junta for

Progressive Action, Inc.)(Corkery, Dennis) (Entered: 11/28/2017)

30 REPLY to Response to Motion re 27 MOTION to Dismiss filed by Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs

12/11/2017 12/14/2017 12/14/2017 12/15/2017
12/18/2017 01/17/2018
01/19/2018

Enforcement, United States of America. (Attachments: # 1 Exhibit 1)(Davis, Kathryn) (Entered: 12/05/2017)

ORDER Giving notification of Federal Rule of Civil Procedure 56(f). Signed

31

by Judge Roger W Titus on 12/11/2017. (bas, Deputy Clerk) Modified on

12/11/2017 (bas, Deputy Clerk). Modified on 12/11/2017 (jf3s, Deputy

Clerk). (Entered: 12/11/2017)

32 NOTICE of Appearance by Brett Shumate on behalf of All Defendants (Shumate, Brett) (Entered: 12/14/2017)

33 Correspondence re: response to the Court's 56(f) notice. (Bower, Elizabeth) (Entered: 12/14/2017)

34 Motion Hearing held on 12/15/2017 re 27 MOTION to Dismiss filed by Jefferson Beauregard Sessions, III, U.S. Department of Homeland Security, U.S. Customs and Border Protection, Thomas D. Homan, United States of America, Elaine C Duke, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Kevin K. McAleenan, Donald J. Trump before Judge Roger W Titus.(Court Reporter: Lisa Bankins - 2C) (jmhs, Deputy Clerk) (Entered: 12/15/2017)

35 NOTICE of Appearance by Ajmel Quereshi on behalf of All Plaintiffs (Quereshi, Ajmel) (Entered: 12/18/2017)

36 NOTICE by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA) of Supplemental Authority (Attachments: # 1 Exhibit 01/09/18 Opinion, # 2 Exhibit 01/12/18 Opinion)(Corkery, Dennis) (Entered: 01/17/2018)

37 RESPONSE re 36 Notice (Other),, filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security,

01/30/2018
02/01/2018 02/14/2018
02/21/2018 03/05/2018

U.S. Immigration and Customs Enforcement, United States of America.(Davis, Kathryn) (Entered: 01/19/2018)

38 MOTION to Appear Pro Hac Vice for Ronald A. Schechter (Filing fee $100, receipt number 0416-7128473.) by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Freedman, John) (Entered: 01/30/2018)

39 PAPERLESS ORDER granting 38 Motion to Appear Pro Hac Vice on behalf of Ronald A. Schechter. Directing attorney Ronald A. Schechter to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 2/1/2018. (srd, Deputy Clerk) (Entered: 02/01/2018)

40 NOTICE by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition

for Humane Immigrant Rights (CHIRLA) re 29 Response in Opposition to Motion,,,, of Supplemental Authority (Attachments: # 1 Exhibit Supplemental Authority)(Freedman, John) (Entered: 02/14/2018)

41 RESPONSE re 40 Notice (Other),,, filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America.(Davis, Kathryn) (Entered: 02/21/2018)

MEMORANDUM OPINION. Signed by Judge Roger W. Titus on 3/5/2018.

42

(Titus, Roger) (Entered: 03/05/2018)

03/05/2018
03/08/2018 03/09/2018 03/12/2018 03/14/2018
03/15/2018 03/15/2018

43

ORDER GRANTING IN PART and DENYING IN PART 27 Motion to

Dismiss or, in the Alternative, for Summary Judgment, ENJOINING the

Government from using or sharing Dreamer-provided information

obtained through the DACA program for enforcement or deportation

purposes, DECLARING that the DACA Rescission Memo is valid and

constitutional in all respects, and directing the Clerk of this Court to CLOSE

this case. Signed by Judge Roger W. Titus on 3/5/2018. (Titus, Roger)

(Entered: 03/05/2018)

44 Emergency Motion to Intervene for a Declaratory Judgment as Necessary Party for "Remediation of Defendants' Failure to Timely Resolve Immigration Border Wall Solution", with Brief-in-Support (Attachments: # 1 Attachments, # 2 Envelope)(jf3s, Deputy Clerk) (Entered: 03/08/2018)

45 NOTICE by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Westmoreland, Rachael) (Entered: 03/09/2018)

46 MEMORANDUM ORDER. Signed by Judge Roger W Titus on 3/12/2018. (Titus, Roger) (Entered: 03/12/2018)

STATUS REPORT (Joint) Pursuant to the Court's March 12, 2018 Order by

47

Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W.

McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S.

Citizenship and Immigration Services, U.S. Customs and Border Protection,

U.S. Department of Homeland Security, U.S. Immigration and Customs

Enforcement, United States of America(Davis, Kathryn) (Entered:

03/14/2018)

48 MEMORANDUM/ORDER granting ECF 47 , treated as a Consent Motion to Alter or Amend the Injunction. Signed by Judge Roger W Titus on 3/15/2018. (aos, Deputy Clerk) (Entered: 03/15/2018)

49 AMENDED ORDER granting in part and denied in part 27 Defendants Motion to Dismiss or, in the Alternative, for Summary Judgment; directing that Summary Judgment is granted in favor of plaintiffs; Enjoining the Government from using or sharing Dreamer-provided information obtained through the DACA program for enforcement or deportation

03/22/2018 04/16/2018 04/27/2018
04/27/2018

purposes, Declaring that the DACA Rescission Memo is valid and constitutional in all respects, and directing the Clerk of this Court to Close this case. Signed by Judge Roger W Titus on 3/15/2018. (aos, Deputy Clerk) (Entered: 03/16/2018)
50 RESPONSE in Opposition re 44 MOTION to Intervene filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Attachments: # 1 Text of Proposed Order)(Davis, Kathryn) (Entered: 03/22/2018)
51 MEMORANDUM/ORDER denying 44 Emergency Motion to Intervene for a Declaratory Judgment as Necessary Party for "Remediation of Defendants' Failure to Timely Resolve Immigration Border Wall Solution", with Brief-inSupport. Signed by Judge Roger W Titus on 4/16/2018. (C/M 4/16/2018 aos, Deputy Clerk) (Entered: 04/16/2018)

52

NOTICE OF APPEAL as to 49 Order,, 28 Order, 42 Memorandum

Opinion by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce,

Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community

Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair

Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra,

Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales

Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan

United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio

Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The

Coalition for Humane Immigrant Rights (CHIRLA). Filing fee $ 505, receipt

number 0416-7296277.(Freedman, John) (Entered: 04/27/2018)

54 [FILED IN ERROR](wrong event selected) NOTICE OF APPEAL as

to 49 Order, 42 Memorandum Opinion, 28 Order by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Thomas D. Homan, Junta for Progressive Action, Inc., Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA). Filing fee $ 505, receipt number

05/04/2018 05/07/2018 05/07/2018 05/08/2018
05/08/2018

04167296277.(krc, Deputy Clerk) Modified on 5/7/2018 (krc, Deputy Clerk). (Entered: 05/07/2018)
53 NOTICE OF APPEAL by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Davis, Kathryn) (Entered: 05/04/2018)
55 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals
re 52 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(krc, Deputy Clerk) (Entered: 05/07/2018)
56 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 53 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(krc, Deputy Clerk) (Entered: 05/07/2018)
57 USCA Case Number 18-1521 for 52 Notice of Appeal,,, filed by Promise Arizona, Maricruz Abarca, Casa De Maryland, A. M., Maria Joseline Cuellar Baldelomar, Missael Garcia, Nathaly Uribe Robledo, Luis Aguilar, Adriana Gonzales Magos, Jose Aguiluz, Eliseo Mages, Annabelle Martines Herra, Angel Aguiluz, Brenda Moreno Martinez, Junta for Progressive Action, Inc., Josue Aguiluz, Fair Immigration Movement (FIRM), Michigan United, Make the Road Pennsylvania, J. M. O., The Coalition for Humane Immigrant Rights (CHIRLA), Jesus Eusebio Perez, Isabel Cristina Aguilar Arce, One America, Heymi Elvir Maldonado, Estefany Rodriguez, Arkansas United Community Coalition. Case Manager - Cathi Bennett (krc, Deputy Clerk) (Entered: 05/09/2018)
58 USCA Case Number 18-1522 for 53 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, U.S. Department of Homeland Security, U.S. Customs and Border Protection, Thomas D. Homan, United States of America, Elaine C Duke, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Kevin K. McAleenan, Donald J. Trump. Case Manager - Cathi Bennett (krc, Deputy Clerk) (Entered: 05/09/2018)

05/08/2018
05/18/2018 05/21/2018 06/22/2018

59 ORDER of USCA consolidating Case No. 18-1521(L) and Case No. 18-1522 as cross appeals. The appellant(s) in Case No. 18-1521(Casa De Maryland, et al.) shall be considered the appellant(s) for purposes of the consolidated appeals and shall proceed first at briefing and at oral
argument as to 52 Notice of Appeal, filed by Promise Arizona, Maricruz Abarca, Casa De Maryland, A. M., Maria Joseline Cuellar Baldelomar, Missael Garcia, Nathaly Uribe Robledo, Luis Aguilar, Adriana Gonzales Magos, Jose Aguiluz, Eliseo Mages, Annabelle Martines Herra, Angel Aguiluz, Brenda Moreno Martinez, Junta for Progressive Action, Inc., Josue Aguiluz, Fair Immigration Movement (FIRM), Michigan United, Make the Road Pennsylvania, J. M. O., The Coalition for Humane Immigrant Rights (CHIRLA), Jesus Eusebio Perez, Isabel Cristina Aguilar Arce, One America, Heymi Elvir Maldonado, Estefany Rodriguez, Arkansas United Community Coalition, 53 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, Thomas D. Homan, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Donald J. Trump, U.S. Department of Homeland Security, U.S. Customs and Border Protection, United States of America, Elaine C Duke, Kevin K. McAleenan (krc, Deputy Clerk) (Entered: 05/09/2018)
60 MOTION to Withdraw as Attorney by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA) (Attachments: # 1 Text of Proposed Order)(Handley, Matthew) (Entered: 05/18/2018)
61 ORDER granting 60 Motion to Withdraw as Attorney. Attorney Matthew Keith Handley terminated. Signed by Judge Roger W Titus on 5/21/2018. (jf3s, Deputy Clerk) (Entered: 05/21/2018)
62 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11-117, before Judge Titus. Court Reporter/Transcriber Linda Marshall, Telephone number 301-344-3229. Total number of pages filed: 30. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 7/13/2018. Redacted

06/27/2018
02/22/2019 02/22/2019 02/25/2019 02/26/2019 03/07/2019

Transcript Deadline set for 7/23/2018. Release of Transcript Restriction set for 9/20/2018.(lcm, Court Reporter) (Entered: 06/22/2018)
63 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of 12/15/2017,
before Judge Titus, re 52 Notice of Appeal,,, 53 Notice of Appeal, 54 Notice of Appeal,,, Court Reporter/Transcriber L. Bankins, Telephone number 301-344-3912. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Does this satisfy all appellate orders for this reporter? - Y. Redaction Request due 7/18/2018. Redacted Transcript Deadline set for 7/30/2018. Release of Transcript Restriction set for 9/25/2018.(lkb, Court Reporter) (Entered: 06/27/2018)
64 NOTICE of Appearance by Thomas K Ragland on behalf of Ricardo Aguilar Garcia (Ragland, Thomas) (Entered: 02/22/2019)
65 MOTION to Appear Pro Hac Vice for Raha Jorjani (Filing fee $100, receipt number 0416-7853547.) by Ricardo Aguilar Garcia (Attachments: # 1 Text of Proposed Order)(Ragland, Thomas) (Entered: 02/22/2019)
66 MOTION to Intervene by Ricardo Aguilar Garcia (Attachments: # 1 Memorandum in Support of Motion to Intervene, # 2 Exhibit s A-F, # 3 Exhibit s G-J, # 4 Text of Proposed Order)(Ragland, Thomas) (Entered: 02/25/2019)
67 PAPERLESS ORDER granting 65 Motion to Appear Pro Hac Vice on behalf of Raha Jorjani. Directing attorney Raha Jorjani to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 2/26/2019. (srd, Deputy Clerk) (Entered: 02/26/2019)
68 (FILED IN ERROR - PER COUNSEL) MOTION for Extension of Time to File Response/Reply as to 66 MOTION to Intervene by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Text of Proposed Order)(Westmoreland, Rachael) Modified on 3/7/2019 (jf3s, Deputy Clerk). (Entered: 03/07/2019)

03/07/2019
03/11/2019 03/11/2019 03/18/2019
03/21/2019 03/27/2019 04/01/2019 04/04/2019
04/09/2019

69 MOTION for Extension of Time to File Response/Reply as to 66 MOTION to Intervene by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Text of Proposed Order)(Westmoreland, Rachael) (Entered: 03/07/2019)

Case reassigned to Judge Paul W. Grimm. Judge Roger W Titus no longer assigned to the case. (cags, Deputy Clerk) (Entered: 03/11/2019)

70 ORDER granting 69 Motion for Extension of Time to Intervene. Signed by Judge Paul W. Grimm on 3/11/2019. (jf3s, Deputy Clerk) (Entered: 03/11/2019)

71 RESPONSE in Opposition re 66 MOTION to Intervene filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Davis, Kathryn) (Entered: 03/18/2019)

72 ORDER directing parties to file letters addressing jurisdiction, within fourteen days. Signed by Judge Paul W. Grimm on 3/21/2019. (jf3s, Deputy Clerk) (Entered: 03/21/2019)

73 REPLY to Response to Motion re 66 MOTION to Intervene filed by Ricardo Aguilar Garcia.(Jorjani, Raha) (Entered: 03/27/2019)

74 Correspondence re: Court's 3/21/2019 Order Presenting Jurisdictional Question (Bower, Elizabeth) (Entered: 04/01/2019)

75 RESPONSE re 72 Order of the Court dated March 21, 2019 Regarding Jurisdiction filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America.(Davis, Kathryn) (Entered: 04/04/2019)

ORDER denying 66 Motion to Intervene. Signed by Judge Paul W. Grimm

76

on 4/9/2019. (jf3s, Deputy Clerk) (Entered: 04/09/2019)

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05/08/2019
05/15/2019 05/17/2019
05/17/2019

77 Letter Order Regarding the Filing of Motions. Signed by Judge Paul W. Grimm on 4/18/2019. (jf3s, Deputy Clerk) (Entered: 04/18/2019)
78 Substantive legal issues - addressing (Jorjani, Raha) (Entered: 04/19/2019)
79 PAPERLESS ORDER DIRECTING Defendants to file a letter response, of three pages or less, to Ricardo Aguilar Garcia's pre-motion conference request [ECF No. 78] by May 8, 2019 and directing Mr. Garcia to file a letter reply, of two pages or less, by May 15, 2019. Signed by Judge Paul W. Grimm on 4/24/2019. (efs, Chambers) (Entered: 04/24/2019)
80 RESPONSE re 78 Substantive legal issues - addressing filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America.(Davis, Kathryn) (Entered: 05/08/2019)
81 Substantive legal issues - addressing (Jorjani, Raha) (Entered: 05/15/2019)
82 NOTICE by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: # 1 Exhibit 1 Fourth Circuit Opinion)(Davis, Kathryn) (Entered: 05/17/2019)
83 JUDGMENT of USCA affirming in part, reversing in part and vacating in part the Judgment of the USDC. The appeal is dismissed in part. This case is remanded to the USDC for further proceedings consistent with the court's
decision as to 52 Notice of Appeal, filed by Promise Arizona, Maricruz Abarca, Casa De Maryland, A. M., Maria Joseline Cuellar Baldelomar, Missael Garcia, Nathaly Uribe Robledo, Luis Aguilar, Adriana Gonzales Magos, Jose Aguiluz, Eliseo Mages, Annabelle Martines Herra, Angel Aguiluz, Brenda Moreno Martinez, Junta for Progressive Action, Inc., Josue Aguiluz, Fair Immigration Movement (FIRM), Michigan United, Make the Road Pennsylvania, J. M. O., The Coalition for Humane Immigrant Rights (CHIRLA), Jesus Eusebio Perez, Isabel Cristina Aguilar Arce, One America, Heymi Elvir Maldonado, Estefany Rodriguez, Arkansas United Community Coalition, 53 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, Thomas D. Homan, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Donald J.

05/28/2019 05/31/2019 05/31/2019
06/03/2019 06/10/2019 06/11/2019

Trump, U.S. Department of Homeland Security, U.S. Customs and Border Protection, United States of America, Elaine C Duke, Kevin K. McAleenan. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (Attachments: # 1 Published Opinion, # 2 Notice of Judgment)(krc, Deputy Clerk) (Entered: 05/20/2019)
85 SUPREME COURT Remark - petition for writ of certiorari filed on 5.24.19 and placed on the docket 5/24/19 as No. 18-1469. (USCA No. 181521)(krcs, Deputy Clerk) (Entered: 05/31/2019)
84 NOTICE by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Davis, Kathryn) (Entered: 05/31/2019)
86 MANDATE of USCA stayed pending further order of this court as to 52
Notice of Appeal,,, filed by Promise Arizona, Maricruz Abarca, Casa De Maryland, A. M., Maria Joseline Cuellar Baldelomar, Missael Garcia, Nathaly Uribe Robledo, Luis Aguilar, Adriana Gonzales Magos, Jose Aguiluz, Eliseo Mages, Annabelle Martines Herra, Angel Aguiluz, Brenda Moreno Martinez, Junta for Progressive Action, Inc., Josue Aguiluz, Fair Immigration Movement (FIRM), Michigan United, Make the Road Pennsylvania, J. M. O., The Coalition for Humane Immigrant Rights (CHIRLA), Jesus Eusebio Perez, Isabel Cristina Aguilar Arce, One America, Heymi Elvir Maldonado, Estefany Rodriguez, Arkansas United Community Coalition, 53 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, Thomas D. Homan, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Donald J. Trump, U.S. Department of Homeland Security, U.S. Customs and Border Protection, United States of America, Elaine C Duke, Kevin K. McAleenan (krcs, Deputy Clerk) (Entered: 05/31/2019)
87 Substantive legal issues - addressing (Jorjani, Raha) (Entered: 06/03/2019)
88 ORDER denying 78 Ricardo Garcia's request for reconsideration of the denial of his motion to intervene. Signed by Judge Paul W. Grimm on 6/10/2019. (jf3s, Deputy Clerk) (Entered: 06/11/2019)
89 ORDER of USCA granting the unopposed motion to stay the mandate pending resolution of appellees' petition for writ of certiorari as to 52

05/19/2020
05/21/2020 06/29/2020 06/30/2020

Notice of Appeal, filed by Promise Arizona, Maricruz Abarca, Casa De Maryland, A. M., Maria Joseline Cuellar Baldelomar, Missael Garcia, Nathaly Uribe Robledo, Luis Aguilar, Adriana Gonzales Magos, Jose Aguiluz, Eliseo Mages, Annabelle Martines Herra, Angel Aguiluz, Brenda Moreno Martinez, Junta for Progressive Action, Inc., Josue Aguiluz, Fair Immigration Movement (FIRM), Michigan United, Make the Road Pennsylvania, J. M. O., The Coalition for Humane Immigrant Rights (CHIRLA), Jesus Eusebio Perez, Isabel Cristina Aguilar Arce, One America, Heymi Elvir Maldonado, Estefany Rodriguez, Arkansas United Community Coalition, 53 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, Thomas D. Homan, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Donald J. Trump, U.S. Department of Homeland Security, U.S. Customs and Border Protection, United States of America, Elaine C Duke, Kevin K. McAleenan (krc, Deputy Clerk) (Entered: 06/17/2019)
90 MOTION to Withdraw as Attorney Ajmel A. Quereshi as Counsel of Record for All Plaintiffs by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Quereshi, Ajmel) (Entered: 05/19/2020)
91 PAPERLESS ORDER granting 90 Motion to Withdraw as Attorney. Attorney Ajmel Quereshi terminated. Signed by Judge Paul W. Grimm on 5/21/2020. (pk3s, Chambers) (Entered: 05/21/2020)
92 SUPREME COURT REMARK--petition for writ of certiorari denied as to 53 Notice of Appeal, filed by Jefferson Beauregard Sessions, III, U.S. Department of Homeland Security, U.S. Customs and Border Protection, Thomas D. Homan, United States of America, Elaine C Duke, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James W. McCament, Kevin K. McAleenan, Donald J. Trump (nus, Deputy Clerk) (Entered: 07/01/2020)
93 MANDATE of USCA issued as to 52 Notice of Appeal,,, filed by Promise Arizona, Maricruz Abarca, Casa De Maryland, A. M., Maria

07/02/2020 07/16/2020 07/17/2020
07/17/2020
07/17/2020 07/22/2020 07/24/2020 07/24/2020

Joseline Cuellar Baldelomar, Missael Garcia, Nathaly Uribe Robledo, Luis Aguilar, Adriana Gonzales Magos, Jose Aguiluz, Eliseo Mages, Annabelle Martines Herra, Angel Aguiluz, Brenda Moreno Martinez, Junta for Progressive Action, Inc., Josue Aguiluz, Fair Immigration Movement (FIRM), Michigan United, Make the Road Pennsylvania, J. M. O., The Coalition for Humane Immigrant Rights (CHIRLA), Jesus Eusebio Perez, Isabel Cristina Aguilar Arce, One America, Heymi Elvir Maldonado, Estefany Rodriguez, Arkansas United Community Coalition (nus, Deputy Clerk) (Entered: 07/01/2020)

LETTER ORDER scheduling a telephone status conference call on

94

7/17/2020 at 2:30 p.m.. Signed by Judge Paul W. Grimm on 7/2/2020.

(dg3s, Deputy Clerk) (Entered: 07/02/2020)

LETTER ORDER rescheduling telephone conference. Signed by Judge Paul

95

W. Grimm on 7/16/2020. (dg3s, Deputy Clerk) (Entered: 07/16/2020)

96

Substantive legal issues - addressing (Attachments: # 1 Exhibit A, # 2

Exhibit B)(Freedman, John) (Entered: 07/17/2020)

ORDER vacating the rescission of the DACA policy; enjoining Defendants

97

from implementing or enforcing the DACA rescission; directing the Clerk to

close this case. Signed by Judge Paul W. Grimm on 7/17/2020. (dg3s,

Deputy Clerk) (Entered: 07/17/2020)

98 NOTICE of Appearance by Stephen Michael Pezzi on behalf of All Defendants (Pezzi, Stephen) (Entered: 07/17/2020)

Substantive legal issues - addressing (Attachments: # 1 Exhibit A,

99

# 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Freedman, John) (Entered:

07/22/2020)

100 Status Conference held on 7/24/2020 before Judge Paul W. Grimm. (Court Reporter: Linda Marshall-Zoom) (ss5s, Deputy Clerk) (Entered: 07/24/2020)

101 PAPERLESS ORDER memorializing the video conference call held today as follows: the parties shall file a Joint Status Report by close of business on Friday, July 31, 2020, to include at a minimum, (1) a date by which Defendant will update its website; (2) Defendants' agreement to establish a process for acknowledging receipt of applications, and to address the accuracy of any denial letters to include sufficient information to explain

07/28/2020 102
07/29/2020 103
07/30/2020 104
07/30/2020 105
07/30/2020 106

reasons for rejection; (3)agreement between the parties on the information Plaintiffs seek for limited discovery prior to a Show Cause Motion and a deadline by which it will be provided (if needed, a narrowed list of disputed information on which I will need to rule); and (4) a proposed briefing schedule for a Show Cause Motion. Signed by Judge Paul W. Grimm on 7/24/2020. (imws, Chambers) (Entered: 07/24/2020)

NOTICE by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs

Enforcement, United States of America (Attachments: # 1 1)(Westmoreland, Rachael) (Entered: 07/28/2020)

Exhibit

MOTION for Extension of Time to File Joint Status Report by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United

States of America (Attachments: # 1 Ex. 1 - Email Correspondence, # 2 Text of Proposed Order)(Pezzi, Stephen) (Entered: 07/29/2020)

LETTER ORDER scheduling a telephone status conference call on 7/31/2020 at 4:00 p.m.. Signed by Judge Paul W. Grimm on 7/30/2020. (dg3s, Deputy Clerk) (Entered: 07/30/2020)

RESPONSE in Opposition re 103 MOTION for Extension of Time to File Joint Status Report filed by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA).(Bower, Elizabeth) (Entered: 07/30/2020)
Correspondence re: Clarification regarding Joint Status Report Obligation (Pezzi, Stephen) (Entered: 07/30/2020)

07/30/2020

107 PAPERLESS ORDER advising the parties that no status report is due before the telephone conference scheduled for tomorrow, July 31, 2020 at 4:00 p.m. At that time, I shall discuss the schedule further. Signed by Judge Paul W. Grimm on 7/30/2020. (imws, Chambers) (Entered: 07/30/2020)

07/31/2020 108

Substantive legal issues - addressing (Bower, Elizabeth) (Entered: 07/31/2020)

07/31/2020

109 MOTION to Appear Pro Hac Vice for Kyle Mathews (Filing fee $100, receipt number 0416-8786217.) by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)(Clark, Kevin) (Entered: 07/31/2020)

07/31/2020

110 PAPERLESS ORDER memorializing today's telephone conference as follows: the parties shall confer and provide an agreed proposed briefing schedule by Wednesday, August 5, 2020. Signed by Judge Paul W. Grimm on 7/31/2020. (imws, Chambers) (Entered: 07/31/2020)

08/04/2020 111

STATUS REPORT (Joint Proposed Briefing Schedule) by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United

States of America (Attachments: # 1 Stephen) (Entered: 08/04/2020)

Text of Proposed Order)(Pezzi,

08/05/2020

112 PAPERLESS ORDER APPROVING 111 Status Report. Plaintiffs' motion for an order to show cause is due August 14, 2020. Defendants' opposition is due August 28, 2020. Plaintiffs' reply is due September 4, 2020. The briefs in support of the motion and in opposition shall not exceed 20 pages, respectively, and the brief in reply shall not exceed 10 pages, exclusive of exhibits and the table of contents. Signed by Judge Paul W. Grimm on 8/5/2020. (pk3s, Chambers) (Entered: 08/05/2020)

08/06/2020

113 PAPERLESS ORDER granting 109 Motion to Appear Pro Hac Vice on behalf of Kyle Mathews. Directing attorney Kyle Mathews to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 8/6/2020. (srds, Deputy Clerk) (Entered: 08/06/2020)

08/12/2020

114 NOTICE of Appearance by Galen N Thorp on behalf of All Defendants (Thorp, Galen) (Entered: 08/12/2020)

08/14/2020

115 MOTION for Order to Show Cause WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT, OR IN THE ALTERNATIVE, TO COMPEL COMPLIANCE WITH THE FOURTH CIRCUIT MANDATE by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA)

(Attachments: # 1 Memorandum in Support, # 2 Exhibit A-

2019.05.22 Email, # 3 Exhibit B-Bower 202.07.27 Email, # 4 Exhibit CPress Call Transcript, # 5 Exhibit D-House Judiciary Subcommittee on Immigration and Citizenship Holds)(Bower, Elizabeth) (Entered: 08/14/2020)

08/28/2020 116

RESPONSE in Opposition re 115 MOTION for Order to Show Cause WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT, OR IN THE ALTERNATIVE, TO COMPEL COMPLIANCE WITH THE FOURTH CIRCUIT MANDATE filed by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America.(Pezzi, Stephen) (Entered: 08/28/2020)

09/04/2020

117 REPLY to Response to Motion re 115 MOTION for Order to Show Cause WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT, OR IN THE ALTERNATIVE, TO COMPEL COMPLIANCE WITH THE FOURTH CIRCUIT MANDATE filed by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar

Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA). (Attachments: # 1 Ex. E - GAO August 14 2020 Decision, # 2 Ex. F - Edlow Memorandum - August 21, 2020)(Bower, Elizabeth) (Entered: 09/04/2020)

09/09/2020

118 MOTION for Leave to File a Two-Page Sur-Reply in Opposition to Plaintiffs' Motion for an Order to Show Cause by Elaine C Duke, Thomas D. Homan, Kevin K. McAleenan, James W. McCament, Jefferson Beauregard Sessions, III, Donald J. Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America

(Attachments: # 1 Ex. 1 - Proposed Sur-Reply, # 2 Ex. 2 - Meet and Confer Email Correspondence, # 3 Text of Proposed Order)(Pezzi, Stephen) (Entered: 09/09/2020)

09/09/2020

119 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 7-242020, before Judge Grimm. Court Reporter/Transcriber Linda C Marshall, Telephone number 3013443229. Total number of pages filed: 50. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 9/30/2020. Redacted Transcript Deadline set for 10/13/2020. Release of Transcript Restriction set for 12/8/2020.(lcm, Court Reporter) (Entered: 09/09/2020)

09/14/2020 120

RESPONSE in Opposition re 118 MOTION for Leave to File a Two-Page SurReply in Opposition to Plaintiffs' Motion for an Order to Show Cause filed by Maricruz Abarca, Luis Aguilar, Isabel Cristina Aguilar Arce, Angel Aguiluz, Jose Aguiluz, Josue Aguiluz, Arkansas United Community Coalition, Casa De Maryland, Maria Joseline Cuellar Baldelomar, Fair Immigration Movement (FIRM), Missael Garcia, Annabelle Martines Herra, Junta for Progressive Action, Inc., A. M., Eliseo Mages, Adriana Gonzales Magos, Make the Road Pennsylvania, Heymi Elvir Maldonado, Michigan United, Brenda Moreno Martinez, J. M. O., One America, Jesus Eusebio Perez, Promise Arizona, Nathaly Uribe Robledo, Estefany Rodriguez, The Coalition for Humane Immigrant Rights (CHIRLA).(Bower, Elizabeth) (Entered: 09/14/2020)

09/21/2020

121 LETTER ORDER denying without prejudice 118 MOTION for Leave to File a Two-Page Sur-Reply in Opposition to Plaintiffs' Motion for an Order to Show Cause. Signed by Judge Paul W. Grimm on 9/21/2020. (dg3s, Deputy Clerk) (Entered: 09/21/2020)

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 Case 8:17-cv-02942-RWT Document 1 Filed 10/05/17 Page 1 of 61

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

)

CASA DE MARYLAND

)

8151 15th Ave.

)

Hyattsville, MD 20783

)

)

THE COALITION FOR HUMANE IMMIGRANT )

RIGHTS (CHIRLA)

)

2533 West 3rd Street

)

Los Angeles, CA 90057

)

)

FAIR IMMIGRATION MOVEMENT (FIRM) )

1536 U Street NW

)

Washington, DC 20009

)

)

ONE AMERICA

)

1225 S. Weller Street, Suite 430

)

Seattle, WA 98144

)

)

PROMISE ARIZONA

)

701 S 1st Street, Phoenix, Arizona 85004

) ) Case Number 17-02942

MAKE THE ROAD PENNSYLVANIA

) ) REDACTED COPY

501 Washington St, 1st Floor

)

Reading, Pennsylvania 19601

)

)

MICHIGAN UNITED

)

4405 Wesson

)

Detroit, Michigan 48210

)

)

ARKANSAS UNITED COMMUNITY

)

COALITION

)

PO Box 9296

)

Fayetteville, AR 72703

)

)

JUNTA FOR PROGRESSIVE ACTION, INC. )

169 Grand Avenue

)

New Haven, Connecticut 06513,

)

)

)

)

)

Case 8:17-cv-02942-RWT Document 1 Filed 10/05/17 Page 2 of 61

ANGEL AGUILUZ, ESTEFANY RODRGIUEZ, )

HEYMI ELVIR MALDONADO, NATHALY )

URIBE ROBLEDO, ELISEO MAGES, JESUS )

EUSEBIO PEREZ, JOSUE AGUILUZ, MISSAEL )

GARCIA, JOSE AGUILUZ, MARICRUZ

)

ABARCA, ANNABELLE MARTINES HERRA, )

MARIA JOSELINE CUELLAR BALDELOMAR, )

BRENDA MORENO MARTINEZ, LUIS

)

AGUILAR,

)

)

J. M. O., a minor child,

)

)

ADRIANA GONZALES MAGOS, next of friend )

to J.M.O.

)

)

A.M., a minor child, and

)

)

ISABEL CRISTINA AGUILAR ARCE, next of )

friend to A. M.1

)

)

)

v.

)

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY

)

3801 Nebraska Ave. NW

)

Washington, DC 20016

)

)

U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES

)

20 Massachusetts Ave. NW

)

Washington, DC 20008

)

)

U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT

)

500 12th St. SW

)

Washington, DC 20536

)

)

U.S. CUSTOMS AND BORDER PROTECTION )

1300 Pennsylvania Ave. NW

)

Washington, DC 20004

)

)

1 All of the individual plaintiffs concurrently move to waive their obligations under Local Rule 102.2(a) to provide addresses, on the basis of their objectively reasonable fear that publicizing their home addresses would subject Plaintiffs to harassment (potentially including violence) and threats.

2

Case 8:17-cv-02942-RWT Document 1 Filed 10/05/17 Page 3 of 61

DONALD J. TRUMP, in his official capacity as )

President of the United States

)

1600 Pennsylvania Ave. NW

)

Washington, DC 20500

)

)

JEFFERSON BEAUREGARD SESSIONS III, in )

his official capacity as Attorney General of the )

United States

)

950 Pennsylvania Ave. NW

)

Washington, DC 20530-0001

)

)

ELAINE C. DUKE, in her official capacity as

)

Acting Secretary of Homeland Security

)

Washington, D.C. 20528

)

)

JAMES W. MCCAMENT, in his official capacity )

as Acting Director of U.S. Citizenship and

)

Immigration Services

)

20 Massachusetts Ave. NW

)

Washington, DC 20008

)

)

THOMAS D. HOMAN, in his official capacity as )

Acting Director of U.S. Immigration and Customs )

Enforcement

)

500 12th St. SW

)

Washington, DC 20536

)

)

KEVIN K. MCALEENAN, in his official capacity )

as Acting Commissioner of Customs and Border )

Protection

)

1300 Pennsylvania Ave. NW

)

Washington, DC 20004

)

)

UNITED STATES OF AMERICA,

)

)

Defendants.

)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF OVERVIEW
1. American democracy rests on fundamental principles of fairness and equality. Our system of justice does not punish people for things that they did not do or that they could not control. And we expect our government to abide by its commitments. In its rescission of the
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Deferred Action for Childhood Arrivals (“DACA”) program, and its draconian immigration enforcement efforts, the federal government has abandoned these fundamental principles.
2. In the three decades leading up to 2012, hundreds of thousands of children immigrated to the United States. Many of them crossed the border of the United States without authorization, fleeing violence and desperate circumstances in their home countries, but with no route to lawful entry under our nation’s immigration laws. Others came through lawful means, but, for a variety of reasons, later lost their authorization to remain in the United States and did not return to their countries of origin. For many of these children, it was not their choice to come to the United States. All of them have grown up in this country, gone to school, and contributed to the fundamental fabric of American society. Lacking legal status, these young people grew up in the shadows of American life, facing the fear of deportation, family separation, and hardship. They were stigmatized, through no fault of their own.
3. Many of these children dreamed of a better life – where they could live freely and study, work, and defend their country – a life without fear of their government.
4. On June 15, 2012, at the direction of President Obama, Janet Napolitano, thenSecretary of the U.S. Department of Homeland Security, helped this dream come closer to reality. On that date, she established the Deferred Action for Childhood Arrivals (DACA) program.
5. Under DACA, individuals who came to the United States as children and meet specific criteria may request “deferred action” for two years, subject to renewal. “Deferred action” is a long-standing mechanism under immigration laws allowing the government to forbear from removal action against an individual for a designated period. In addition to DACA,
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federal law designates other classes as eligible for deferred action.2 Individuals granted deferred action are eligible for certain rights and privileges associated with lawful presence status in the United States.
6. In establishing DACA, the federal government recognized that "certain young people . . . were brought to this country as children and know only this country as home" and that immigration laws are not "designed to remove productive young people to countries where they may not have lived or even speak the language.” The government also recognized, among other things, that children brought to this country had no intent to violate the law and that, with limited resources, there were more appropriate priorities for immigration enforcement.
7. DACA provides some sense of stability to individuals who came to the United States as children and have grown up to become productive members of American society. Collectively, this group of young people are often referred to as “Dreamers.”
8. To apply for DACA, Dreamers had to (1) submit extensive documentation to the U.S. Citizenship and Immigration Services (USCIS) establishing that they meet the eligibility criteria; (2) pay a $495 fee; and (3) submit to a rigorous DHS background check, including submission of biometric data.
9. When DACA was first implemented, many eligible Dreamers were reluctant to apply because of concern that they would be required to disclose information that could help facilitate their removal from the United States and place their family members at risk. This concern was understandable -- the average Dreamer entered the United States at the age of six, and many had lived their whole lives in fear of deportation.
2 See generally U.S. Dep’t of Justice Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, Op. O.L.C. (November 19, 2014).
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Case 8:17-cv-02942-RWT Document 1 Filed 10/05/17 Page 6 of 61
10. In an effort to encourage reluctant people to apply for DACA, the government launched an aggressive outreach campaign urging Dreamers to apply. These efforts included well organized efforts to provide DACA application materials to organizations that serve the immigrant community,3 enlisting the White House to promote the stories of individual DACA recipient “Champions of Change,”4 and targeted outreach to select populations whose participation in the program lagged.5 DHS officials routinely engaged with immigration service providers and advocates, soliciting their assistance in expanding participation in DACA and dealing with issues in its implementation. USCIS officials attended DACA clinics hosted by non-profits and immigration service providers across the country and held numerous engagement sessions in person, by phone and via webinar6 to encourage participation in the program. In conjunction with this campaign, USCIS made five promises to Dreamers.
11. First, USCIS repeatedly promised Dreamers that information they provided about themselves as part of the DACA application process would be "protected" from use for immigration enforcement purposes.7
12. Second, USCIS promised Dreamers that "information related to your family members or guardians that is contained in your request will not be referred to ICE [U.S.
3 See generally A. Singer et al., Local Insights from DACA for Implementing Future Programs for Unauthorized Immigrants, Brookings Institution (June 2015). 4 Ginette Magaña, DACAmented Teachers: Educating and Enriching Their Communities, Obama White House Archives: Blog (Aug.4, 2015), https://obamawhitehouse.archives.gov/blog/2015/08/04/dacamented-teacherseducating-and-enriching-their-communities; Champions of Change: DACA Champions of Change, Obama White House Archives, https://obamawhitehouse.archives.gov/champions/daca-champions-of-change (last accessed Oct.4, 2017) 5White House Initiative on Asian Americans and Pacific Islanders, Deferred Action for Childhood Arrivals (DACA), Department of Education, https://sites.ed.gov/aapi/files/2014/07/E3-TOOLKIT-DACA.pdf (last accessed 10/2/2017) 6 See for example USCIS, National Stakeholder Engagement - DACA Renewal Process (June 2014), https://www.uscis.gov/outreach/notes-previous-engagements/national-stakeholder-engagement-daca-renewalprocess 7 These representations were extensive, and are detailed below in Section X.
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Immigration and Customs Enforcement] for purposes of immigration enforcement against family members or guardians."8
13. Third, USCIS promised employers of Dreamers that, except in limited circumstances, if they provided their employees "with information regarding [their] employment to support a request for consideration of DACA . . . . This information will not be shared with ICE for civil immigration enforcement purposes."9
14. Fourth, by establishing internal procedures, USCIS promised that once Dreamers received DACA, they would not be terminated from the program unless they posed an “Egregious Public Safety” issue. In addition, USCIS promised to provide them with a “Notice of Intent to Terminate” which “thoroughly explain[ed]” the grounds for the termination.”10
15. Fifth, USCIS promised Dreamers that they could seek renewal of their status at the expiration of their two-year DACA term. USCIS represented that Dreamers “may be considered for renewal of DACA” if they meet the guidelines for consideration and other criteria which “must be met for consideration of DACA renewal.”11
16. These repeated and unequivocal assurances were critical to the success of the DACA initiative. Relying on these representations, more than 800,000 Dreamers brooked the potential risks of deportation and removal and applied for DACA. Employers, too, relied on these representations to assist their employees in applying for DACA, despite the potential risk of liability for the employers.
8 See USCIS, Deferred Action for Childhood Arrivals Frequently Asked Questions (“DACA FAQs”) (April 25, 2017) Q20 9 DACA FAQs Q76. 10 See DHS, National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (Apr. 4, 2013) (“SOP”). 11 DACA FAQs Q51
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17. DACA has been a tremendous success, allowing the Dreamers -- -- such as Plaintiffs Angel Aguiluz, Luis Aguilar, Estefany Rodriguez, Annabelle Martinez Herra, Heymi Elvir Maldonado, Maricruz Abarca, Nathaly Uribe Robledo, Eliseo Mages, Jeus Eusebio Perez, Josue Aguiluz, Missael Garcia, Jose Aguiluz, and Brenda Moreno Martinez -- to live, study, and work in the United States, and to become stable and even more productive members of their communities, without fear that they could be arrested and placed in deportation proceedings at any moment.
18. All of this changed on September 5, 2017, when Attorney General Jefferson Sessions (“Sessions”) announced the rescission of DACA. Several hours after the announcement, Acting Secretary of DHS Elaine Duke ("Duke") issued a memorandum rescinding DACA (the “Rescission Memorandum”).12 At Acting Secretary Duke’s direction, USCIS immediately stopped accepting new applications under DACA, ended DACA recipients’ eligibility to apply for permission to leave the United States and reenter with advance parole, and declared that DHS will consider DACA renewal applications only for Dreamers whose DACA expires between September 5, 2017 and March 5, 2018 if, even then, only if these Dreamers apply for renewal by October 5, 2017.
19. The consequence of the administration’s decision to rescind DACA is that approximately 800,000 Dreamers who have received benefits and received protection against deportation under the program in reliance on the government’s assurances will ultimately lose their benefits and protection, and will be exposed to deportation when their DACA authorizations expire and they cannot seek renewal. In addition, hundreds of thousands of other
12 Memorandum from Elaine C. Duke, Acting Sec'y of Homeland Security to James W. McCament, Acting Dir., USCIS, et al., 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).
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potential beneficiaries, many of whom were preparing to submit their requests for DACA, are now unable to benefit from the program.
20. Specifically, as a direct result of the decision to eliminate DACA, among other things, Dreamers (i) will lose their work authorization, requiring their employers to terminate their employment, (ii) have lost the ability to travel internationally, and (iii) will lose their right to qualify under applicable state law for in-state admissions preferences and tuition. As a result, many Dreamers will leave college because their inability to work will make higher education unaffordable or because they no longer qualify for in-state tuition. Still others will leave college because they may no longer be able to achieve career objectives commensurate with their skills and qualifications.
21. Furthermore, all of the Dreamers are at risk of having their application information shared with immigration enforcement authorities. Welching on its prior assurances, on September 5, USCIS released guidance suggesting that it may share Dreamer applicant information with ICE and Customs and Border Protection (CBP). The guidance substantively changes USCIS’s policy in a manner that places Dreamers at heightened risk of deportation based on information previously disclosed to USCIS in good faith and in reliance on the promises outlined above. The Rescission Memorandum does not provide any assurances that immigration enforcement agents will not be provided such information to find and remove those who applied for and/or received benefits or protection under DACA.
22. Indeed, on September 27, 2017, Acting Secretary Duke shockingly testified before Congress that she had never seen any guidance telling Dreamers their information would not be used for immigration enforcement.
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23. The Defendants’ decision to terminate DACA is a double-cross. It is not only unjustified, but offensive to the basic values of this Nation. It is arbitrary, capricious, and contrary to law, and therefore it cannot stand.
24. The decision to rescind DACA is illegal because it is predicated on discriminatory animus against persons of Mexican or Central American origin. Of the 800,000 DACA recipients, more than 90 percent of DACA recipients are of Mexican or Central American origin.13
25. The evidence of discriminatory animus leading to the rescission is palpable. The rescission is the culmination of a series of well-publicized statements made by President Trump starting as early as February 2015 revealing an anti-Mexican or anti-Central American immigrant animus and threatening Dreamers.
 Starting on February 24, 2015, President Trump made a series of defamatory and incendiary claims about immigrants from Mexico and Central America. For example, on that date, then-candidate Trump characterized immigrants from Mexico as “criminals.”
 During his announcement speech on June 16, 2015, Trump referred to immigrants from Mexico as “rapists.”
 In October 2016, Trump referred to immigrants from Mexico and Latin America as “bad hombres.”
 On August 22, 2017, President Trump described unauthorized immigrants as “animals’ who bring “the drugs, the gangs, the cartels, [and] the crisis of smuggling and trafficking.”
26. The Trump Administration's rescission of DACA is unlawful on a number of grounds. First, the decision to rescind DACA unconstitutionally violates the due process
13 See USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017 (data as of March 31) (June 8, 2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20 Data/All%20Form%20Types/DACA/daca_performancedata_fy2017_qtr2.pdf.
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guarantee of the Fifth Amendment to the United States Constitution by reneging on DHS's prior assurances regarding DACA (including the pledges not to use of information contained in DACA applications). Second, the decision also violates the equal protection guarantee contained in the Fifth Amendment by treating Dreamers differently than other similarly situated recipients of deferred action, obstructing them, without justification, from earning a living and furthering their education. Third, the rescission violates the Administrative Procedure Act in numerous aspects. To begin with, the rescission is contrary to various provisions of law, including the Privacy Act and the e-Government Act. It is also arbitrary and capricious because it (1) is unsupported by a reasoned analysis that addresses the prior conclusion of the government that the program was legal and constitutional or explains how the justification for the rescission can be reconciled with the six-month wind down period; (2) is based on discriminatory animus; and (3) contains deadlines that are arbitrary and treat similarly situated individuals differently based on caprice. Finally, the rescission was adopted without a legally sufficient justification and without notice or the opportunity to comment.
JURISDICTION AND VENUE 27. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 28. Venue is proper in this district pursuant to 28 U.S.C. §§ 139l(b)(2) and 1391(e)(I). A substantial part of the events or omissions giving rise to this action occurred in this district; Plaintiff CASA and many of the Individual Plaintiffs reside in this district. This is a civil action in which Defendants are agencies of the United States or officers of such an agency.
PARTIES 29. CASA de Maryland, Inc. (CASA) is a non-profit membership organization headquartered in Langley Park, Maryland, with offices in Maryland, Virginia and Pennsylvania.
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Founded in 1979, CASA is the largest membership-based immigrant rights organization in the mid-Atlantic region, with more than 90,000 members. CASA’s mission is to create a more just society by building power and improving the quality of life in low-income immigrant communities. In furtherance of this mission, CASA offers a wide variety of social, health, job training, employment, and legal services to immigrant communities in Maryland, as well as the greater Washington DC metropolitan area, Virginia, and Pennsylvania. CASA has provided assistance on nearly 4,000 DACA and DACA renewal applications since 2012, and counts more than 2,300 DACA beneficiaries as members. Since the September 5, 2017 DACA rescission, CASA has had to reallocate significant resources to counsel and assist Dreamers who are eligible to renew their DACA in the arbitrarily narrow window the administration announced. CASA’s small legal team, composed of three attorneys and five support staff, have suspended the majority of their work to assist DACA renewal applicants, depriving community members of access to other vital legal services. In addition, members of CASA’s community organizing department, as well as other CASA departments, have reprioritized their work to engage with the community and educate them about the rescission of DACA and connect eligible individuals to application assistance services. The rescission of DACA has had a significant negative impact on CASA’s mission, as DACA members and their families who live in our communities face an uncertain future that may include loss of employment and potential permanent separation from their families.
30. The Coalition for Humane Immigrant Rights (CHIRLA) is a non-profit organization based in Los Angeles, CA. Founded in 1986, CHIRLA organizes and serves individuals, institutions and coalitions to transform public opinion and change policies on human, civil and labor rights. CHIRLA has been recognized by the Board of Immigration
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Appeals to provide immigration legal services at low cost to its members; its Legal Services Department has helped thousands of individuals to become citizens and apply to DACA.
31. FIRM is a coalition of 44 member organizations from across 32 states around the country. Founded in 2004, it is now the largest national network of immigrant-led grassroots organizations. FIRM fights for immigration rights including paths to citizenship and protection from low wages and poor conditions. When DACA went into effect, FIRM groups across the country helped 17,900 young people apply for work permits and relief for deportation.
32. Michigan United is located in Detroit, Michigan. It was founded in 2012 from the merger of the Michigan Organizing Project and the Alliance for Immigrant Rights to form a statewide coalition of churches, labor, and community groups fighting for the dignity and potential of every person. It conducts extensive community organizing of low-income Latino and Arab American families. It has fought for a stronger national policy against immigration enforcement at schools and churches and for the DREAM Act. It has also been engaged in community education and implementation of DACA.
33. OneAmerica is located in Seattle, Washington. It was formed directly after September 11, 2001 in response to the hate crimes and discrimination targeting Arabs, Muslims and South Asians. OneAmerica has grown into a leading force for immigrant, civil and human rights. Their mission is “OneAmerica advances the fundamental principles of democracy and justice at the local, state and national levels by building power within immigrant communities in collaboration with key allies.” It advocates for immigration policies and practices to best address the needs of immigrant and refugee communities in partnership with immigrant and refugee community members. OneAmerica is advocating for a permanent legislative solution for DACA recipients, many of whom are active OneAmerica volunteers and members.
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34. Promise Arizona is located in Phoenix, Arizona. It was founded in 2010 as a reaction to the passage of the SB 1070 legislation targeting immigrants in the state. It’s mission is to promote “diversity, opportunity, and progress…by building power in [their] community, championing family and cultural values, and connecting people to life-changing resources.” PAZ advocates for the passage of the DREAM Act and a “humane and comprehensive immigration bill.”
35. Make the Road Pennsylvania is located in Reading, PA. It was founded in 2014 to organize low-income and working class Latino immigrants in Lehigh and Berks Counties to fight for change in their communities. It has had several “Occupy” movements in various cities to defend DACA, and gives free legal help for DACA renewals.
36. Arkansas United is located in Fayetteville, AR. It was founded in 2010 to help raise awareness in the immigrant community about how immigrants could become full participants in the state’s economic, political and social processes. It is raising money to assist Dreamers pay for their expedited renewals.
37. Junta for Progressive Action is located in New Haven, CT. Its mission is to “provide services, programs and advocacy that improve the social, political and economic conditions of the Latino community in greater New Haven while nurturing and promoting its cultural traditions as it builds bridges with other communities.” It has been pairing applicants eligible for DACA renewal with lawyers for help with their applications. It also put on a joint press conference with New Haven Mayor Toni Harp to advocate for a “clean Dream Act bill.”
38. XXXXXXXXXXXXXXXX (A.M.) is a 15 year old resident of Owings Mills, Maryland. In October 2003, at the age of 12 months, he was brought to the United States from Honduras following the murder of his cousin. He is currently a high school student with a 3.5
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GPA and has been a Boy Scout for five years. After graduation, his dream is to go to college and become an engineer. He is frustrated that, due to the DACA rescission, he is no longer eligible to apply for DACA, and he fears he will lose his ability to apply for college or be employed after college, as well as is ability to visit family in Honduras. He is also concerned that, if he and his mother are deported, they will be separated from his younger siblings, who are U.S. citizens.
39. Isabel Cristina Aguilar Arce is the mother of A.M and his next of friend in this action.
40. XXXXXXXXXXXXXXX (J.M.O.) is a 17 year old resident of Capitol Heights, Maryland. In April 2005, at the age of 4, he was brought to the United States from Mexico to seek a better life. At the age of 8, he suffered a stroke, and has been under medical care since that time. Jose applied for and received DACA in March 2016. He is currently a high school junior in suburban Maryland. His dream is to go to college to study chemistry and become a chemical engineer. His DACA is due to expire on March 6, 2018, one day after the last date as to which DHS will allow renewals. Due to the DACA rescission, he is concerned that he will be unable to renew his DACA, and he fears he will lose his ability to apply for college.
41. Adriana Gonzales Magos is the mother of J.M.O. and his next of friend in this action.
42. Angel Aguiluz is a 20 year old resident of Silver Spring, Maryland. In June 2005, at the age of 8, he was brought to the United States from Honduras by his parents, who were seeking medical attention for his older brother. Angel applied for and received DACA. He is currently a student at Montgomery College, where he is studying math and physics, and he is also employed part-time by a restaurant. His dream is to become a physicist. His DACA and
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work permit are scheduled to expire in 2018. Due to the DACA rescission, he is concerned that he will lose his job and will be deported to Honduras.
43. Estefany Rodriguez is a 20 year old resident of Rockville, Maryland. In 2001, at the age of 3, she was brought to the United States from Bolivia. She applied for and received DACA in January 2015. At the age of 18, she was diagnosed with brain cancer, and has been under medical care since that time. She is currently a student at Montgomery College. Her DACA is due to expire in January 2018, but she submitted a renewal application on October 4, 2017. She is concerned that, due to the DACA rescission, she will be unable to renew her DACA once it expires.
44. Heymi Elvir Maldonado is a 20 year old resident of Baltimore, Maryland. In, 2008, at the age of 8, she was brought to the United States from Honduras by her mother, who was seeking a better life for her daughters. She applied for and received DACA. Since receiving DACA, she has worked as an office assistant for the school system, and has attended classes at Goucher College, where she intends to major in Business Management and Spanish. Her DACA recently expired. She is concerned that, due to the DACA rescission, she is unable to renew her status and will be unable to work or to be able to afford to complete her college degree. She is also concerned that she will be deported to Honduras, where she has no connections.
45. Nathaly Uribe Robledo is a 22 year old resident of Glen Burnie, Maryland. In 1997, at the age of 2, she was brought to the United States from Chile to seek a better live. Nathaly applied for and received DACA in October 2012. For the last three years, she has worked as an insurance agent, and her dream is one day to have her own agency. She had planned to apply for permanent legal resident status, as well as for advance parole in 2018 to visit her great-grandmother in Chile. Her DACA is scheduled to expire on December 4, 2017;
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she submitted a renewal in July, but has not heard whether it has been approved. Due to the DACA rescission, she has cancelled her plans to travel to Chile, and her plan to apply for legal permanent status has been put on hold. She is concerned that she will lose her job once she loses work authorization.
46. Eliseo Mages is a 23 year old resident of Capital Heights, Maryland. In April 2004, at the age of 11, he was brought to the United States from Mexico so that he and his brother could have a better education and a better life. Eliseo applied for and received DACA. Following receipt of his work permit, he worked in a paint store (ultimately being promoted to manager) while he earned a college degree as a Veterinarian’s Assistant. His DACA is due to expire in 2019. Due to the DACA rescission, he is concerned he will not be able to keep his job and will not be able to obtain employment with a veterinarian.
47. Jesus Eusebio Perez is a 25 year old resident of Baltimore, Maryland. In 1997, at the age of 5, he was brought to the United States from Mexico so that his parents could provide for his family. Jesus applied for and received DACA in November 2012. For over the last four years, he has been employed by the Johns Hopkins School of Public Health, first as a Research Assistant and currently as a Mental Mentor, who works with middle school students. His DACA and work permit are due to expire in March 2019. Due to the DACA rescission, he is concerned that he will lose his employment when his work permit expires and that he will be deported to Mexico.
48. Josue Aguiluz is a 25 year old resident of Beltsville, Maryland. In June 2005, at the age of 12, he was brought to the United States from Honduras by his parents, who were seeking medical attention for his older brother. He applied for and received DACA and a work permit in November 2012. While maintaining a full time job, he earned an associates’ degree in
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accounting. He is currently employed as a billing analyst for a Northern Virginia technology company and is working towards a bachelor’s degree in accounting. His DACA and work permit are due to expire in November 2018. Due to the DACA rescission, he fears that he will be terminated once his work authorization expires, that he will not be able to complete his bachelor’s degree, and that this will delay his ability to take the CPA exam.
49. Missael Garcia is a 27 year old resident of Dundalk, Maryland. In September 2002, at the age of 12, he was brought to the United States from Mexico by his parents, who were seeking a better life. He was valedictorian of his high school class. He applied for and received DACA and a work permit in August 2015. He has worked as a community organizer, as a mentor to middle school students, and in the restaurant business, and is expecting his first child to be born in the next few weeks. His DACA and work authorization expired in August 2017. Due to the DACA rescission, he is unable to renew his status and will be unable to provide for his young family or to complete the purchase of a house. He is also concerned that he will be deported to Mexico, where he has no connections.
50. Jose Aguiluz is a 28 year old resident of Washington, D.C. In June 2005, at the age of 15, his parents brought him to the United States from Honduras to seek medical treatment (spinal surgery) following a car accident. He earned an associate’s degree in nursing in December 2011, but was ineligible to take board examinations to become a Registered Nurse. He applied for and received DACA and a work permit in November 2012. He has subsequently passed the Nursing Boards and received his bachelor’s degree in nursing in 2014. He is employed as a Registered Nurse in a Maryland hospital, and plans to seek a master’s degree in nursing. His DACA and work permit are due to expire in November 2018. Due to the DACA
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rescission, he fears that he will not be able to pursue his master’s degree, that he will be terminated once his work authorization expires, and that he will be deported to Honduras.
51. Brenda Moreno Martinez is a 28 year old resident of Baltimore, Maryland. In August 2001, at the age of 12, her parents brought her to the United States from Mexico because her father was threatened because of his political views. She applied for and received DACA and a work permit in August 2012. She was subsequently able to attend and graduate from college and has passed her certification to become a teacher. She is currently employed as a teacher in the Baltimore City school system, and plans to seek a master’s degree in education. Her DACA and work permit are due to expire in June 2018. Due to the DACA rescission, she is concerned that she will lose her job, and cannot pursue her master’s degree. She has postponed her plans to visit her elderly grandmother in Mexico, and because she is scared of travelling even within the United States, has cancelled a family vacation to Hawaii.
52. Maricruz Abarca is a 29 year old resident of Baltimore, Maryland. In June 2002, at the age of 15, she was brought to the United States from Mexico by her mother, who was trying to reunite their family. She applied for and received DACA in October 2016. Since receiving DACA, she has started a small business and is in the process of acquiring a towing company. She is currently attending classes at Baltimore City Community College to become a legal assistant. Her dream is to attend law school and become a lawyer. Her DACA is scheduled to expire in October 2018. Due to the DACA rescission, she is concerned that she will not be able to continue her education, and that she will be deported to Mexico (where she has no connections) and separated from her three children, who are all U.S. citizens.
53. Luis Aguilar is a 29 year old resident of Alexandria, Virginia. In 1997, at the age of 9, he was brought to the United States from Mexico. He applied for and received DACA in
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2012. He has taught himself how to code, and participated in the 2014 Facebook “hackathon” and won a national competition by designing a website platform that serves as a tool for users to search the voting record and stance of all members of Congress on immigration. Since receiving DACA, he has worked for a variety of organizations in the immigrant rights movement, and currently works as CASA’s Advocacy Specialist in Virginia. His DACA and work permit are scheduled to expire in March 2019. He is concerned that, due to the DACA rescission, he will be unable to find work once he loses his work authorization.
54. Annabelle Martinez Herra is a 33 year old resident of Bowie, Maryland. In December 1995, at the age of 11, she was brought to the United States from Costa Rica by her parents, who were seeking a better life. She applied for and received DACA and work authorization in July 2015. After receiving DACA, she worked doing human resources and accounting at a painting company, and was able to buy her house. Her DACA expired in July 2017. Since the DACA rescission, she has been fired by her employer. She is concerned that, due to the DACA rescission, she will be unable to renew her status and she will be unable to find other employment. She is also concerned that she will lose her house, as well as her food stamps. She is also concerned she will be unable to care for her 14 year old son, who is a U.S. citizen.
55. María Joseline Cuellar Baldelomar is a 21 year old resident of Springfield, Virginia. In July 2001, at the age of 4, she was brought to the United States from Bolivia by her mother, who was seeking a better life for her children. She applied for and received DACA in January 2013. Since receiving DACA, she became employed by a child development center and later became the musical director at her church. She also has started a small business with her husband. Her DACA is scheduled to expire in January 2018; she did not renew because since
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December 2016, she has had an application pending to change her status to legal permanent resident and she is concerned her information will be shared with immigration enforcement authorities. Due to the DACA rescission, she is concerned that her application for legal permanent residence will be denied and she will be deported, separating her from her family -her husband, son, and siblings are all U.S. citizens.
56. Defendant DHS is a federal cabinet agency responsible for implementing DACA. DHS is a Department of the Executive Branch of the United States Government, and is an agency within the meaning of 5 U.S.C. § 552(f)(l).
57. Defendant USCIS is an Operational and Support Component agency within DHS. USCIS is the sub-agency responsible for administering DACA.
58. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an Operational and Support Component agency within DHS. ICE is responsible for enforcing federal immigration law, including identifying, apprehending, detaining, and removing non-citizens.
59. Defendant U.S. Customs and Border Protection (“CBP”) is an Operational and Support Component agency within DHS. CBP is responsible for administering and enforcing immigration law at borders.
60. Defendant Donald J. Trump is the President of the United States, and authorized the issuance of the Rescission Memorandum that purports to rescind DACA. He is sued in his official capacity.
61. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States, and announced the rescission of DACA. He is sued in his official capacity.
62. Defendant Elaine C. Duke is the Acting Secretary of Homeland Security. She is responsible for implementing and enforcing immigration laws, and oversees DHS. She is the
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author of the September 5, 2017 Rescission Memorandum rescinding DACA. She is sued in her official capacity.
63. Defendant James W. McCament is the Acting Director of U.S. Citizenship and Immigration Services. He is sued in his official capacity.
64. Defendant Thomas D. Homan is the Acting Director of U.S. Immigration and Customs Enforcement. He is sued in his official capacity.
65. Defendant Kevin K. McAleenan is the Acting Commissioner of U.S. Customs and Border Protection. He is sued in his official capacity.
66. Defendant United States of America includes all government agencies and departments responsible for the implementation and rescission of DACA.
BACKGROUND: ESTABLISHMENT OF DACA 67. On June 15, 2012, Secretary Napolitano issued a memorandum establishing the DACA program (the “2012 DACA Memorandum”). Under DACA, individuals who came to the United States as children and meet specific criteria may request deferred action for a period of two years, subject to renewal. 68. Deferred action is a long-standing mechanism under the immigration laws pursuant to which the government forbears from taking removal action (i.e., starting the process of expelling an immigrant from the United States) against an individual for a designated period. In addition to DACA, federal law and the federal government by executive action have declared various other classes of individuals as eligible for deferred action. For example:
 In 1990, the Immigration and Naturalization Service implemented a “Family Fairness” program to protect approximately 1.5 million spouses and children
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of immigrants who had been granted legal status under the 1986 immigration law.14
 Certain aliens who have suffered abuse by U.S. Citizens or LPR spouses or parents may self-petition under the Violence Against Women Act for deferred action status. 8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)).
 Certain aliens who are victims of human trafficking and their family members are eligible for deferred action status. 8 U.S.C.§ 1101(a)(15)(T)(i).
 Certain aliens who are victims of certain crimes and their family members are eligible for deferred action status. 8 U.S.C.§ 1101(a)(15)(U)(i).
 In 2009, DHS implemented a deferred action program for certain widows and widowers of U.S. Citizens.15
 The U.S. government has, in the wake of major natural disasters, allowed foreign students who can no longer satisfy the requirements to maintain their student visas to be eligible for deferred action.16
 The U.S. government has, from time to time, allowed aliens of particular nationalities to be eligible for deferred action.17
69. Under the 2012 DACA Memorandum, applicants had to demonstrate that they (i)
came to the United States under the age of sixteen; (ii) had continuously resided in the United
States since June 15, 2007; (iii) were currently in school, had graduated from high school, had
obtained a general education development certificate, or were an honorably discharged veteran;
(iv) had not been convicted of a felony, significant misdemeanor, three or more misdemeanor
offenses, or otherwise posed a threat to national security or public safety; and (v) were not over
thirty years old as of June 15, 2012.
14 See Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) 15 Memorandum for Field Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009) 16 See, e.g., USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) 17 See, e.g., Exec. Order No. 12,711, 3 C.F.R. 284(April 11, 1990) (Policy Implementation with Respect to Nationals of the People’s Republic of China). See generally Congressional Research Service, Analysis of June 15, 2012 DHS Memorandum (July 13, 2012) Appendix A.
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70. USCIS promised Dreamers that their applications would be considered under a fair process. Specifically, USCIS assured Dreamers that “[a]ll individuals who believe they meet the guidelines . . . may affirmatively request consideration of DACA from USCIS through this process,” and after USCIS receives the applicant’s forms, evidence, supporting documents and application fee, “USCIS will review them for completeness.” USCIS further affirmatively represented to Dreamers that if it determines that the request is complete, USCIS will send the applicant notices of receipt and for needed appointments, and then review the applications “on an individual, case-by-case basis” and notify applicants of its determination in writing.18
BACKGROUND: APPLICANTS WERE ADVISED THAT PARTICIPATION IN DACA ENTITLED THEM TO TANGIBLE BENEFITS
71. In publicizing DACA, the government emphasized that deferred action status made Dreamers eligible for numerous benefits and privileges.
72. For example, USCIS promised Dreamers if their DACA applications were granted, they “may obtain employment authorization” to work for up to two years.19 This commitment was authorized under federal law; under 8 CFR 274a(a)(11) & (c)(14), deferred action recipients (including, but not limited to, Dreamers) may apply for work authorization to be legally employed. This representation was important to Plaintiffs Josue Aguilaz, Jose Eusebio Perez, and Missael Garcia who were working in low skill, minimum wage jobs; since receiving DACA, Augilaz has been able to obtain employment as an accountant, Garcia has been able to obtain employment as a school mentor, and Perez has been able to obtain employment as a Research Assistant at Johns Hopkins University.
18 DACA FAQs Q7; USCIS, F5 General Information ― How do I request consideration of DACA? at 2 (June 2014). 19 DACA FAQs Q4.
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73. USCIS promised Dreamers that if their DACA applications were granted, they would be eligible to travel outside the United States for educational, employment, or humanitarian purposes.20 In particular, USCIS told Dreamers that they would be eligible to apply for “advance parole,” parole,” which permits recipients to leave the country temporarily without risk that they will be denied readmission. This commitment opened the door to allow international travel for Dreamers. For example, DACA recipients were allowed to briefly depart the U.S. and legally return under certain circumstances, such as to visit an ailing relative, attend funeral services for a family member, seek medical treatment, or further educational or employment purposes. This commitment was authorized under federal law; under 8 USC 212(d)(5)(A), deferred action recipients (including Dreamers) may apply for “parole” to travel internationally without risk that they will be barred from re-entering the United States.21 Plaintiff Jose Aguilaz and Luis Aguilar successfully obtained advance parole to visit family members in Honduras and Mexico respectively.
74. USCIS promised Dreamers that if their DACA applications were granted, they could attend educational institutions.22 In particular, USCIS told Dreamers they could attend “elementary school, junior high or middle school, high school, alternative program,” “education, literacy, or career training program (including vocational training)” as well as an “education program assisting students in obtaining a regular high school diploma or its recognized equivalent under state law.” This commitment was authorized under federal law; under 42 USC 2000c-6, educational institutions may not discriminate on the basis of national origin, and under 42 USC 2000d, 28 C.F.R. § 42.104(b)(2), and 34 C.F.R. § 100.3(b)(2), individuals may not be
20 DACA FAQs Q57. 21 DACA FAQs Q57. 22 DACA FAQs 32-34.
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discriminated against in the receipt of federal financial educational assistance on the basis of their national origin. See also Plyler v. Doe, 457 U.S. 202 (1982). Plaintiff Josue Aguilaz credits DACA (which allowed him to take his certification to become a Registered Nurse) with his decision to return to school to obtain an advance nursing degree. Similarly, Plaintiffs Eliseo Mages, Brenda Moreno Martinez, Nathaly Uribe Robledo, and Angel Aguilaz all credit DACA with allowing them to attend college.
75. In publicizing DACA, the federal government emphasized that Dreamers would pay into and be eligible for certain public benefits such as Social Security and disability.23 This commitment was authorized under federal law; unlike other undocumented immigrants, under 8 USC 1611(b)(2) & (b)(3) and 8 U.S.C. 1621(d), deferred action recipients are eligible for public benefits, such as Social Security, Medicare, and disability benefits.
76. USCIS promised Dreamers that if their DACA application was granted, they would be “authorized by DHS to be present in the United States,” “considered by DHS to be lawfully present,” and that their “period of stay is authorized by DHS.” 24 This commitment was authorized under federal law; under 8 CFR 109.1, deferred action recipients are granted suspended accrual of unlawful presence for purposes of admission.
77. In addition to the benefits directly provided by the federal government, these benefits enabled Dreamers to secure equal access to other benefits and opportunities on which Americans depend, including opening bank accounts, obtaining credit cards, starting businesses, purchasing homes and cars, and conducting other aspects of daily life that are often unavailable for undocumented immigrants.
23 Karen Tumulty, Illegal Immigrants could receive Social Security, Medicare under Obama Action, Wash. Post., Nov, 25, 2014. 24 DACA FAQs Q1, Q5.
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78. DHS recognized that DACA created rights that the government could not take away without affording due process. Under the DACA "National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (“SOP”), established by USCIS and DHS, individuals admitted into DACA are not to be terminated from the program absent an “Egregious Public Safety” issue.25 In this event, the procedures require USCIS to provide a “Notice of Intent to Terminate” which “thoroughly explain[s]” the grounds for the termination.” Other materials informed Dreamers that only " fraud or misrepresentation" in the application process or "[s]ubsequent criminal activity" would be grounds for revocation of DACA.26 The SOP further directed that the recipients of such notice should receive 33 days to “file a brief or statement contesting the grounds cited in the Notice of Intent to Terminate” prior to termination of participation in DACA.27
BACKGROUND: THE PRIVACY COMMITMENT TO DREAMERS 79. The DACA application form required applicants to provide a wealth of personal, sensitive information, including the applicant's lack of lawful immigration status, address, Social Security number, and the name and location of his or her school. DACA applicants were also required to provide DHS with a detailed history of their criminal arrests and convictions, including all misdemeanors, however minor, and to affirmatively declare whether they had ever been placed in removal proceedings in the past. The application process also required that all DACA applicants undergo biographic and biometric background checks, which included fingerprinting, before USCIS considered their DACA requests.
25 SOP at 132-34. 26 USCIS Approval Notice, Form 1-821D, Consideration of Deferred Action for Childhood Arrivals. 27 SOP at 132.
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80. To induce participation in DACA, USCIS made numerous commitments to
Dreamers regarding their rights under the program.
81. Foremost among these commitments was the promise that DACA applicants’
information would not be shared with the DHS components responsible for immigration
enforcement – ICE and CBP. In providing this information, DACA applicants relied on
Defendants' promises about the terms of the program and the manner in which their information
would be protected. These promises were documented, among other places:
 In the “Instructions” to Form I-821D -- the DACA application which every DACA applicant had to complete -- stated that “information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the individual meets the guidelines for the issuance of a Notice to Appear (NTA) or a referral to ICE under the guidelines set forth in USCIS’s Notice to Appear Guidance.”28
 In the Frequently Asked Questions for DACA applicants, USCIS affirmatively represented to Dreamers that, except in limited circumstances (i.e., the individual meets the guidelines for a Notice to Appear), their information would not be shared with immigration enforcement authorities. See, e.g., FAQ Q19 ("[i]nformation provided in [a DACA request] is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings”).
 In the Frequently Asked Questions for DACA applicants, USCIS affirmatively represented to Dreamers that their information would not be shared with immigration enforcement authorities even if their request for DACA was denied. See, e.g., FAQ Q26 ("[i]f you have submitted a request for consideration of DACA and USCIS decides not to defer your case ... your case will not be referred to ICE for purposes of removal proceedings”).
 In other materials as well, USCIS promised Dreamers that it would not share their information with immigration enforcement authorities. For example, one slide in a Powerpoint presentation staed: “Protecting Your Information: We will not share any information about you with ICE or U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for: the issuance of an NTA; or a referral to ICE under the criteria set forth in our NTA guidance.”29
28 Instructions to Form I-821D. 29 June 2014 PPT at 30.
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 The general guidance on the USCIS website reassured applicants that their applications would be submitted to a “lockbox” and would not be shared with immigration enforcement: “If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, we will not refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.” 30
 Other guidance also stated “What protections are in place to protect the information I share in my request from being used for immigration enforcement practices? The information you provide in your request is 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 unless you meet the criteria for issuance of a Notice to Appear or a referral to ICE under the criteria explained in USCIS’ Notice to Appear . . . Individuals whose cases are deferred under the consideration of deferred action for childhood arrivals process will not be referred to ICE.”31
 USCIS also promised employers of Dreamers that any information they provided verifying employment would not be used for enforcement purposes against them or their company absent “evidence of egregious violations of criminal statutes or widespread abuses.”32
82. In their receipt, use, maintenance, and protection of personally identifiable
information, DHS and USCIS, among other federal government agencies, are required to comply
with the Privacy Act of 1974 (“Privacy Act”). 5 U.S.C. § 552a. Among other things, the
Privacy Act prohibits an agency’s disclosure of information about “individuals” to another
agency or person unless a specific exemption applies.33 The Privacy Act also provides that a
30 Consideration of Deferred Action for Childhood Arrivals, “Filing Process” & “If USCIS does not grant DACA in your case.” 31 USCIS, F5 General Information ― How do I request consideration of DACA? at 3 (June 2014). 32 DACA FAQs 76. 33 See 5 U.S.C. § 552a (b) (“No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains”).
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government agency may not maintain information in its records that is not necessary to
accomplish a purpose required to be accomplished by statute or by executive decree.34
83. Under the Privacy Act, USCIS and DHS stored DACA applicant information in
one of four pre-existing systems of records -- the “Alien File, Index, and National Tracking
System of Records,” the “Background Check Service,” the “Biometric Storage System,” and the
“Benefits Information System.”35
84. DHS and USCIS, like other federal government agencies, also are required to
comply with the e-Government Act of 2002. Pub. L. 107-347 (2002). Among other things, the
e-Government Act requires a government agency to prepare a Privacy Impact Assessment that
addresses “with whom the information will be shared.” Id. § 208(b).
 Under the e-Government Act, on August 15, 2012, USCIS and DHS conducted a Privacy Impact Assessment (“PIA-45”) for DACA.36
 PIA-45 repeatedly refers to DACA applicants as “individuals” (a key statutory term under the Privacy Act) and states that “prior to the submission of any information, individuals are presented with a Privacy Act Statement, as required by Section (e)(3) of the Privacy Act.” PIA-45 4.1.
 PIA-45 instructs that “any [personally identifiable information] that is collected, used, maintained, and/or disseminated . . . are to be treated as System of Records subject to the Privacy Act regardless of whether the information pertains to a U.S. citizen, Legal Permanent Resident, visitor, or alien.” PIA-45 7.1.
 PIA-45 expressly declares that “[i]nformation provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the individual meets the guidelines for the issuance of a Notice to Appear (NTA) or a referral to ICE under the guidelines set forth in USCIS’s Notice to Appear Guidance.” PIA-45 3.3.
34 See 5 U.S.C. § 552a (c)(1) (an agency “shall maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President”) (emphasis added). 35 DHS/USCIS/PIA-045, Privacy Impact Assessment for the Deferred Action for Childhood Arrivals at 9 ((Aug. 15, 2012). 36 Id.
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 When USCIS updated the DACA Application Form (I-821D) to request additional information, DHS issued an updated PIA to provide notice of the new information requested. That updated form similarly said that information provided is “protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings.”37
85. PIA-45’s treatment of DACA applicant data as covered by the Privacy Act was consistent with DHS policy. Well before the establishment of DACA, DHS set forth its policy to treat all persons’ personally identifiable information, regardless of citizenship, the same under the Privacy Act.38
86. Although the Privacy Act prohibition on disclosure includes exceptions that allow an agency to disclose information pursuant to a “routine use” or to “another agency . . . for a civil or criminal law enforcement activity,” 5 USC 552a(b)(3&7), USCIS and DHS expressly waived those exceptions insofar as they relate to immigration enforcement activities regarding DACA applicants.
87. As detailed above in paragraph 84, USCIS and DHS waived the disclosure exceptions by repeatedly and consistently promising Dreamers in agency publications that their data would not be shared with immigration enforcement authorities.
88. The waiver of the exemptions from the Privacy Act’s prohibition on disclosure of personally identifiable information in a system of records is further documented in the USCIS SOP for DACA, which sets forth the standards that DHS applies to DACA applications with nearly 150 pages of specific instructions for granting or denying deferred action. The SOP emphasizes that the “additional measures . . . necessary to ensure that enforcement resources are
37 DHS/USCIS/PIA-045(a), Privacy Impact Assessment Update for the Deferred Action for Childhood Arrivals at 2, 6 (April 2014) (“There is no change in the DHS external sharing and disclosure of information as described in the DHS/USCIS/PIA-045 DACA PIA.”) 38 Guidance Memorandum from Hugo Teufel III, Chief Privacy Officer, U.S. Department of Homeland Security, 2007-01: DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Information on Non-U.S. Persons (Jan. 7, 2009)
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not expended on these low priority cases,” and includes provisions regarding the “lockbox” to which applicants were directed to submit data, as well as “Revised Guidance for the Referral of Cases and Issuance of Notices to Appear” that restricted the referral of cases to ICE. 39
89. In addition, USCIS and DHS senior leadership confirmed the waiver. For example, in December 2016, then-Secretary of Homeland Security Jeh Johnson sent a letter to members of Congress regarding the need to protect DACA-related information, acknowledging that there were, at the time, 750,000 DACA recipients who had "relied on the U.S. government's representations" about prohibitions on the use of such information for immigration enforcement purposes. Johnson unequivocally stated: "We believe these representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored." (emphasis added).
90. The government's representations that information provided by a DACA applicant would not be used against him or her for later immigration enforcement proceedings are unequivocal and atypical. For example, the federal government does not make the same representations for individuals with similar statuses, such as Temporary Protected Status.40
91. Because every DACA applicant was advised that applicant information would not be shared with ICE or CBP, and because the government explicitly acknowledged, Dreamers relied on this commitment in submitting their data, the Due Process Clause and the doctrine of equitable estoppel preclude Defendants from taking actions breaching their commitments.
39 SOP at 18, 20, 23-24 & App. B. 40 See, e.g., USCIS, Temporary Protected Status, https://www.uscis.go v/humanitarian/temporary-protected-status (last updated May 24, 2017).
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THE ROAD TO RESCISSION 92. DACA fundamentally changed the lives of Dreamers. By no longer having to hide in the shadows, they obtained employment, sought higher education, pursued career paths, and became fully contributing members of society who paid taxes and participated in civic life. As Secretary Johnson stated in December 2016, DACA has enabled hundreds of thousands of young people “to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, engineers, and entrepreneurs— all on the books.”41 93. As the Secretary of Homeland Security recognized less than 10 months ago, the United States “continue[s] to benefit . . . from the contributions of those young people who have come forward and want nothing more than to contribute to our country and our shared future .”42 94. Ending DACA, whose participants are mostly of Mexican and Central American origin, fulfills President’s Trump, Attorney General Sessions, and their subordinates oft-stated desire to punish and disparage people with Mexican and/or Central American roots or Latinos generally, as a group, without acknowledging their individual personalities, attributes or circumstances, a failure to differentiate that is the essence of prejudice. For example:
 In announcing his presidential campaign, then-candidate Trump compared Mexican immigrants to rapists, stating: “When Mexico sends its people, they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.”43
 During the first Republican presidential debate, then-candidate Trump again restated his distaste for immigrants from Mexico: “The Mexican government .
41 Letter to Judy Chu, Representative, U.S. House of Representatives, from Jeh Johnson, Secretary, U.S. Department of Homeland Security (“Letter from Sec’y Johnson”) (Dec. 30, 2016) 42 Letter from Sec’y Johnson 43 Transcript of Donald Trump’s Presidential Bid Announcement, Washington Post (June 16, 2015).
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. . send the bad ones over because they don’t want to pay for them. They don’t want to take care of them.”44
 In May 2016, then-candidate Trump referred to anti-Trump protestors who carried the Mexican flag on Twitter as “criminals” and “thugs.”45
 On August 21, 2015, two men urinated on a sleeping Latino man and then beat him with a metal pole. At the police station, they stated “Donald Trump was right; all these illegals need to be deported.” When asked about the incident, then-candidate Trump failed to condemn the men, instead stating that they were “passionate.” Specifically, Trump stated, “[i]t would be a shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.”46
 In June 2016, then-candidate Trump stated that Judge Gonzalo Curiel could not be fair in presiding over a lawsuit because he was Mexican-American and Trump was “very, very strong on the border” and Judge Curiel was “Hispanic” and “pro-Mexican.”47 . . . Now, he is Hispanic, I believe. He is a very hostile judge to me.” Ex.
 In August 2016, during a speech in Phoenix, then-candidate Trump said: “We agree on the importance of ending the illegal flow of drugs, cash, guns, and people across our border. . . most illegal immigrants are lower skilled workers with less education . . . these illegal workers draw much more out from the system than they can ever possibly pay back. And they're hurting a lot of our people that cannot get jobs under any circumstances. . . We will immediately terminate President Obama's two illegal executive amnesties in which he defied federal law and the Constitution to give amnesty to approximately five million illegal immigrants, five million. . . . [N]o one will be immune or exempt from enforcement. . . . Anyone who has entered the United States illegally is subject to deportation. That is what it means to have laws and to have a country. Otherwise we don't have a country.”48
44 Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News (Aug. 6, 2015). 45; Donald Trump (@realDonaldTrump), TWITTER (May 25, 2016 6:39AM), https://twitter.com/realdonaldtrump/status/735465352436408320?lang=en (“The protestors in New Mexico were thugs who were flying the Mexican Flag); Donald Trump (@realDonaldTrump), TWITTER (June 4, 2016 6:04AM), https://twitter.com/realdonaldtrump/status/739080401747120128?lang=en (“Many of the thugs that attacked peaceful Trump supporters in San Jose were illegals”). 46 Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, The Boston Globe (Aug. 21, 2015). 47Transcript of Face the Nation, CBS News, June 5, 2016; Jose A. DelReal and Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts, The Washington Post, June 1, 2016. 48 Transcript: Donald Trump’s Full Immigration Speech, Los Angeles Times (Aug. 31, 2016).
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 In October 2016, during a presidential debate, then-candidate Trump responded to a question about immigration by stating: “We have some bad hombres here and we’re going to get them out.”49
 In December 2016, Trump referred to an article about a recent crime wave on Long Island and said “They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And they are finished.”50
 On January 26, 2017, referring to immigrants, President Trump said “"We are going to get the bad ones out . . . The criminals and the drug deals, and gangs and gang members and cartel leaders. The day is over when they can stay in our country and wreak havoc."51
 On January 27, 2017, newly-inaugurated President Trump and Mexico’s President Peña Nieto discussed President Trump’s proposal for a border wall over the phone. During that transcribed conversation, President Trump once again referred to Mexicans as “tough hombres.”52
 In February 2017, President Trump said "What has been allowed to come into our country, when you see gang violence that you've read about like never before, and all of the things — much of that is people that are here illegally . . . They're rough and they're tough . . . So we're getting them out.”53
 On June 21, 2017, President Trump – implied that thousands of immigrants are members of the Central American gang MS-13. He said “These are true animals. WE are moving them out of the country by the thousands, by the thousands.”54
 Similarly, on June 28, 2017, President Trump said “They are bad people. And we’ve gotten many of them out already. . . We’re actually liberating towns, if you can believe that we have to do that in the United States of America. But we’re doing it, and we’re doing it fast.”55On August 16, 2017 at President Trump’s direction, DHS terminated the Central American Minors Program,
49 Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, The Washington Post (Aug. 30, 2017). 50 Michael Scherer, Person of the Year 2016, TIME Magazine (Dec. 2016). 51 Shannon Dooling, Mayor Walsh Vows to Keep Boston a Safe Place For Immigrants Following Trump’s Orders , WBUR News (Jan. 26, 2017). 52 Greg Miller et. al., Full Transcripts of Trump’s Calls with Mexico and Australia, Wash. Post. (Aug. 3, 2017). 53 Michael A. Memoli, One Comment from Trump shows his administration’s message on immigration has been muddled, L.A. Times (Feb. 23, 2017). 54 Michelle Ye Hee Lee, President Trump’s claim that MS-13 gang members are being deported ‘by the thousands,’ Wash. Post. (June 26, 2017). 55 Press Release, The White House Office of the Press Secretary, Remarks by President Trump During Meeting with Immigration Crime Victims (June 28, 2017).
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which allowed unaccompanied minors fleeing violence in El Salvador, Guatemala, and Honduras to settle in the United States.56
 On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge’s order to stop racially profiling Latinos.57 Before issuing the pardon, President Trump asked rhetorically, “Was Sheriff Joe convicted for doing his job?” After issuing the pardon, President Trump sent a tweet calling Mr. Arpaio “an American patriot.”
95. President Trump’s discriminatory statements about people with Mexican and
Central American roots show the root motivation for the DACA rescission.
96. Other senior officials of the administration have echoed this animus. For
example:
 On March 27, 2017, Attorney General Sessions cited two crimes committed by Latino immigrants and said “the American people are justifiably angry . . . DUIs, assaults, burglaries, drug crimes, rapes, crimes against children and murders. Countless Americans would be alive today-- and countless loved ones would not be grieving today . . . The President has rightly said that this disregard for the law must end. . . . ”58
 On July 28, 2017, White House Senior Policy Advisor Stephen Miller said: “a message of tolerance toward illegal immigration is the number-one boon to smugglers and traffickers. And we’ve seen the results of that over the last eight years in terms of massive human rights violations associated with the Central American migrant surge. . . that permissive approach, we’ve seen the results, and the results have been deadly and horrific. . . We also need to get expedited removal for illegal immigrants from Central America.”59
THE DACA RESCISSION
97. On September 5, 2017-- more than five years after first making numerous
promises to induce individuals to participate in DACA-- DHS abruptly rescinded DACA and
56 Mica Rosenberg, U.S. ends program for Central American minors fleeing violence, Reuters (Aug.16, 2017). 57 Julie Hirschfield Davis and Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, N.Y. Times (Aug. 25, 2017). 58 Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions, https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-jurisdictions (March 27, 2017). 59 Press Release, The White House Office of the Press Secretary, Press Gaggle by Senior Policy Advisor Stephen Miller, July 27, 2017.
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breached those promises. Defendant Sessions announced the rescission of DACA. On the same day, Defendant Duke issued a memorandum formally rescinding DACA. The Rescission Memorandum created a new legal regime governing DACA recipients, which imposed rights and obligations and is legally binding.
98. Under the Rescission Memorandum, the government will immediately cease accepting applications under DACA. Dreamers who were too young to be eligible, such as Plaintiff A.M, can no longer apply for DACA.
99. Under the Rescission Memorandum, the federal government will issue renewals only for recipients whose DACA permits expire between September 5, 2017 and March 5, 2018, and only if they apply for renewal by October 5, 2017. DACA recipients who let their status lapse in the weeks leading up to September 5, 2017, such as Plaintiffs Heymi Elvir Maldonado, Maricruz Abarca, Annabelle Martinez Herra, and Missael Garcia, can no longer renew their DACA.
100. Under the Rescission Memorandum, the federal government will not issue renewals for recipients whose permits expire after March 5, 2018. Individuals whose DACA expires after that date, such as Plaintiff J.M.O. (whose DACA expires on March 6, 2018), Angel Aguiluz, Luis Aguilar, Eliseo Mages, and Brenda Moreno Martinez, will not be allowed to renew their DACA.
101. Under the Rescission Memorandum, the government will not approve any new or pending applications for advanced parole for DACA recipients, meaning that Dreamers are prevented from traveling abroad and returning to the United States, even where there are compelling humanitarian or other reasons for such travel. Dreamers can no longer travel outside the United States during their benefit period, including for those who have already submitted
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requests for advance parole in reliance on DHS's assurances that advance parole was available to them. Those who have pending applications are therefore denied advance parole without any assessment under the criteria DHS has used for advance parole requests. Many Dreamers, such as Plaintiffs Brenda Moreno Martinez and Nathaly Uribe Robdelo have cancelled plans to visit elderly relatives abroad.
102. Under the Rescission Memorandum, thousands of Dreamers will lose their work authorization each day beginning March 6, 2018. Many Dreamers, such as Plaintiffs Angel Aguiluz, Heymi Elvir Maldonado, Nathaly Uribe Robledo, Eliseo Mages, Jesus Eusebio Perez, Josue Aguiluz, Jose Aguiluz, and Brenda Moreno Martinez are worried they will lose their jobs when their work authorization expires. Other Dreamers, including Annabelle Martinez Herra, have already lost their employment.
103. Under the Rescission Memorandum, thousands of Dreamers face the risk of losing their employment, as well as vital benefits, such as driver licenses, financial aid, disability and health benefits, among others. They will also lose their protection from deportation, meaning that they risk permanent separation from their family and community.
104. Under the Rescission Memorandum, the federal government will break up hundreds of thousands of families. Many Dreamers, including Plaintiffs A.M, Annabelle Martinez Herra, and Maricruz Abarca live in households with American citizen family members. Deporting Dreamers will split these recipients from their citizen family members.
105. Under the Rescission Memorandum, Dreamers enrolled in colleges and universities, including Plaintiffs Angel Aguiluz, Estefany Rodriguez, Maricruz Abarca, and Josue Aguiluz, will be unable to plan for the future, apply for and obtain internships, study
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abroad, simultaneously work to pay costs and fees, and obtain certain financial aid and scholarships -- forcing many to withdraw from their college or university.
106. Under the Rescission Memorandum, Dreamers who applied for and received advance parole from USCIS and have paid the required fees have no assurances that they will be readmitted into the United States if they travel abroad. Instead, the Rescission Memorandum states only that DHS will “generally’ honor previously approved applications. Even individuals currently travelling abroad based on advance parole granted before September 5, 2017 are at risk of being denied re-admission.
107. Despite the federal government’s repeated promises that it would not use the information submitted by DACA applicants to conduct enforcement measures, the Rescission Memorandum provides no assurance to Dreamers, or direction to USCIS, ICE, and CBP that information contained in DACA applications or renewal requests cannot be used for the purpose of future immigration enforcement proceedings.
108. To the contrary, USCIS and other government agencies have released guidance suggesting an intention to welch on those promises and to share that information with ICE and CBP. While the FAQs to the DACA Memorandum unequivocally represented that, with limited and specified exceptions, information provided pursuant to a DACA application would be kept confidential and not used for immigration enforcement, the Rescission FAQs state: "Generally, information provided in DACA requests will not be proactively provided to other law enforcement entities (including ICE and CBP) for the purpose of immigration enforcement proceedings unless the requestor poses a risk to national security or public safety, or meets the criteria for the issuance of a Notice To Appear ["NTA''] or a referral to ICE under the [NTA]
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criteria."60 The addition of the qualifiers "generally" and “proactively” makes the representation nearly meaningless, arrogating to USCIS the ability to make the sensitive information submitted by individual DACA applciants available to ICE for previously prohibited purposes, including immigration enforcement, so long as it does so “specifically” and not “proactively.” For example, the language indicates that USCIS would provide DACA applicant data in response to a request from ICE; such action would be directly contrary to the positions USCIS adopted in its Privacy Impact Assessment.
109. As noted earlier, the DACA application form required applicants to provide a wealth of personal, sensitive information. DACA applicants were also required to provide DHS with a detailed history of their criminal arrests and convictions, including all misdemeanors, however minor. In addition, applicants were required to affirmatively declare whether they had ever been placed in removal proceedings in the past.
110. Many DACA recipients have final orders of removal, generally issued in absentia when they were minors. If their information is shared with ICE or CBP, these individuals will be subject to an extreme risk of expedited deportation, which can occur within days or even hours, with minimal procedural safeguards.
111. Plaintiffs and other Dreamers cannot but be worried, as the Defendants have threatened them both directly and indirectly (by refusing to reaffirm the privacy of their applicant data, and by targeting immigrants for deportation who have not been convicted of criminal activity):
 President Trump has taken affirmative steps to reduce the privacy protections applicable to DACA data. In January 2017, President Trump issued Executive
60 DHS, Frequently Asked Questions: Rescission of Deferred Action For Childhood Arrivals (DACA) (“Rescission FAQs”) Q8 (emphasis added), https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescissiondeferred-action-childhood-arrivals-daca (last published Sept. 5, 2017).
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Order 13,768 directing all agencies, including DHS, to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.”61
Pursuant to Executive Order 13,768, on April 25, 2017, DHS issued a new Privacy Policy Guidance Memorandum introducing new “legal and policy obligations.” Among these obligations is a new “transparency” obligation that requires “all information sharing that relates to immigrants and nonimmigrants must be described and justified in the appropriate PIA… ” Another obligation listed is “purpose specification,” which states that use of any information collected “must be compatible with the purpose for which DHS originally collected the information; the PIA must identify and explain this compatibility.” 62 Notwithstanding these commitments, DHS also stated that its new privacy policy “permits the sharing of information about immigrants and non-immigrants with federal, state, and local law enforcement.” 63
 In February 2017, DHS announced a change in immigration enforcement priorities. Previously, DHS enforcement priorities were generally consistent with the DACA Memorandum, prioritizing people who had committed serious felonies, serious misdemeanors, or multiple less serious misdemeanors, and making Dreamers (and others similarly situated) the lowest enforcement priority. The February 2017 Enforcement Priorities Memorandum radically broadened the categories of people who are to be prioritized for removal, to include people “convicted of any criminal offense” (no matter how minor), “charged with any criminal offense” (even if unadjudicated or dismissed), or “committed acts which constitute a chargeable criminal offense” (an astoundingly vague proposition).64
 In February 2017, ICE reportedly implemented a new policy authorizing immigration arrests of collateral, nontargeted individuals (i.e., individual bystanders who are not otherwise enforcement priorities) found at the scene of enforcement operations.65 Pursuant to this change, a number of Dreamers have been arrested and subjected to immigration enforcement proceedings.
61 Exec. Order No. 13,768, 82 Fed. Reg. 8793, (Jan. 25, 2017) (“Enhancing Public Safety in the Interior of the United States”) 62 Guidance Memorandum from Jonathan R. Cantor, Acting Chief Privacy Officer, U.S. Department of Homeland Security, 2017-01: DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Personally Identifiable Information (Apr. 25, 2017). 63 DHS, Privacy Policy 2017-01 Questions & Answers (Apr. 27, 2017). 64 Memorandum for Kevin McAleenan, Acting Commissioner, U.S. Customs and Border Protection, et al., from John Kelly, Secretary, U.S. Department of Homeland Security, Enforcement of the Immigration Laws to Serve the National Interest (“Enforcement Priorities Memorandum”) at 2 (Feb. 20, 2017). 65 See Hamed Aleaziz, Collateral immigration arrests threaten key crime alliances, S.F. Chronicle (Apr. 29, 2017).
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 In June 2017, ICE announced a “surge” where other components of DHS provided information to ICE about adults who agreed to take custody over unaccompanied minors.66
 In at least six instances since the administration has taken office, DHS has illegally commenced immigration enforcement proceedings against Dreamers. These include cases in active litigation, including claims brought by Jessica Cotoltl (where DHS has been enjoined from proceeding with enforcement proceedings), Francisco Rodriguez, Alberto Luciano Gonzales Torres (where DHS has been enjoined from proceeding with enforcement proceedings), Daniela Vargas, Daniel Ramirez-Medina, and Juan Manuel Montes-Bojorquez (who was illegally deported).
 On April 19, 2017, United States Attorney General Jefferson B. Sessions stated in an interview on Fox News’ “Happening Now,” program—in response to a question regarding the deportation of a Dreamer—that “[e]verybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully that they aren’t going to be deported.”67
 On June 13, 2017, Acting ICE Director Thomas Homan testified in front of the House Appropriations Committee's Subcommittee on Homeland Security, stating as to “every immigrant in the country without papers,” that they “should be uncomfortable. You should look over your shoulder. And you need to be worried. . . . No population is off the table. . . . If we wait for them to violate yet another law against a citizen of this country, then it’s too late. We shouldn’t wait for them to become a criminal.”68
 On June 29, Homan stated: “people that enter this country illegally violate the laws of this country. You can't want to be a part of this great nation and not respect its laws.. . . they already committed one crime by entering the country illegally. . . . As far as fear in the immigrant community. . . My purpose is to dispel the notion that if you enter this country illegally and violate the laws of this nation, you should not be comfortable. . . if you enter this country illegally, you should be concerned that someone is looking for you. You should be concerned because you violated the laws of this country.”69
66 See Jenny Jarvie, Immigrant rights groups denounce new ICE policy that targets parents of child migrants, L.A. Times (Jun. 30, 2017). 67 Adam Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News (Apr. 19, 2017). 68 Hearing on the ICE and CBP F.Y. 2018 Budget Before the Subcomm. on Homeland Security of the H. Comm. on Appropriations, 115th Cong. (2017) 2017 WLNR 18737622. 69 Press Release, The White House Office of the Press Secretary, Press Gaggle by Director of Immigration and Customs Enforcement Tom Homan et al. (June 28, 2017).
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 On August 22, 2017, Homan again stated: “ the message is clear: If you're in the United States illegally, if you happen to get by the Border Patrol, someone is looking for you. And that message is clear.”70
 An internal White House memo reported on by CNN stated that DHS now is urging Dreamers “to prepare for and arrange their departure from the United States” when their DACA terms end.71
 A CBP memo reportedly issued on September 6 directed agents to detain individuals claiming DACA at CPB checkpoints until their DACA and work permit could be verified, and that if there is any derogatory information indicating ineligibility, CPB is to commence deportation proceedings immediately.72
 On September 27, 2017, Acting Secretary Duke testified that she had never seen DHS’s guidance assuring Dreamers their information would not be used for immigration purposes.
112. These changes all signal Defendants' intent to renege on their promises and
subject Dreamers to immigration enforcement. Dreamers immediately face increased risk that
information they provided to the federal government, in reliance of promises not to use it against
them, could be used against them, without notice, for purposes of immigration enforcement,
including detention or deportation. At the very least, these changes create confusion about the
new risk faced by current and former Dreamers and former applicants, particularly those whose
DACA protection is ending under the Rescission Memorandum.
113. The Rescission Memorandum does not explain how DHS or USCIS could legally
provide DACA applicant information to ICE or CBP. See 5 U.S.C. § 552a (b) (“No agency shall
disclose any record which is contained in a system of records by any means of communication to
70 Press Release, The White House Office of the Press Secretary, Press Gaggle by Press Secretary Sarah Huckabee Sanders et al. (August 22, 2017). 71 Tal Kopan & Jim Acosta, Admin Memo: DACA recipients should prepare for departure from the United States, CNN (Sept. 6, 2017). 72 Valerie Gonzalez, Border Patrol Memo States Procedures to Process All DACA Applicants, KRGV-TV (Sep. 25, 2017).
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any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains”).
114. The Rescission Memorandum also does not explain how DHS or USCIS can justify continuing to maintain applicant data collected for DACA, from individuals relying on prior agency representations and policies, when the administration has rescinded DACA. See 5 USC § 552a (c)(1) (an agency “shall maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President”).
115. The Rescission Memorandum does not state how providing DACA applicant information to enforcement authorities would be consistent with DHS’ self-adopted privacy policies or consistent with the agency’s procedures and precedent.
116. The Rescission Memorandum does not state how providing DACA applicant information to enforcement authorities would not be a retroactive revision to an agency policy upon which Dreamers relied.
117. The Rescission Memorandum does not explain how the government will keep previously-provided DACA applicant information secure, nor does it provide any reason to believe that immigration enforcement agents will not use such information to find and remove those who applied for DACA. This retreat from prior assurances of privacy protection is particularly alarming in light of Defendant Homan’s threats that immigrants should be “uncomfortable,” “should look over your shoulder,” and “be worried.
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DHS RESCINDS DACA WITHOUT NOTICE, COMMENT, OR ANY SUFFICIENT EXPLANATION FOR ITS CHANGE IN POSITION
118. The Rescission Memorandum is a final, substantive agency action that required
DHS to comply with the notice and comment requirements set forth in 5 U.S.C. § 553(b). But
the agency provided no opportunity for notice and comment before taking this action.
119. By failing to comply with these notice and comment requirements, DHS deprived
Plaintiffs, and all other interested parties, of the opportunity to present important evidence to the
agency about DACA.
120. In the Rescission Memorandum, DHS did not sufficiently explain its abrupt
departure from prior agency statements regarding the necessity and legality of DACA.
a. In issuing the Rescission Memorandum, the federal government and Defendant Sessions misleadingly claimed that DACA was unconstitutional, although no court has so held.73 The single paragraph in the Rescission Memorandum explaining the rationale behind this sudden shift merely asserts that DACA "should be terminated" based on consideration of two factors: (I) the appellate rulings in a case regarding a 2014 memorandum from then-DHS Secretary Johnson that expanded DACA and created a new program, Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"), Texas v. United States, 809 F.3d 134 3 (5th Cir. 20 15), aff'd by an equally divided court sub nom. United States v. Texas,_ U.S. _, 4 136 S. Ct. 2271 (2016); and (2) a September 4, 2017, letter from Attorney General Jefferson B. Sessions arguing that DACA was "unconstitutional" because it had been “effectuated . . . through executive action” and was invalid for the same reasons the Fifth Circuit struck down DAPA in the Texas case.74
b. DHS and DOJ ignored differences between DACA and DAPA when reaching this conclusion. Further, DHS ignored the fact that the legality of DACA was never directly at issue in the Texas v. United States case, and not ruled on by the Fifth Circuit.
c. In concluding that DACA was unconstitutional, Defendant Sessions failed to consider a November 19, 2014 opinion from the Department of Justice
73 Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA, https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca (September 5, 2017). 74 Letter from Jefferson B. Sessions, U.S. Att’y General, to Elaine C. Duke, Acting Secretary, U.S. Department of Homeland Security (Sept. 4, 2017) ("Sessions Letter").
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Office of Legal Counsel that concluded that DACA was constitutional. OLC opinions provide “controlling legal advice” for the executive branch.75 In contrast to Defendant Session’s conclusory assertion, the OLC opinion was thirty-three pages and analyzed the relevant constitutional precedents. d. The Rescission Memorandum’s conclusion that DACA is unconstitutional is impossible to reconcile with the Defendants decision to continue DACA for six additional months. 121. The rescission is inconsistent with promises the government made to Dreamers, on which they relied, that only "fraud or misrepresentation" in the application process or "[s]ubsequent criminal activity" are grounds for revocation of DACA.76 122. Beyond Defendant Sessions’s conclusory assertions of DACA's legal infirmity, DHS failed to offer any explanation of its own why it believed that rescinding DACA was warranted. The Rescission Memorandum did not address the rationale that DHS expressed in 2012 in the DACA Memorandum regarding the use of prosecutorial discretion to focus resources and priorities on lowest priority individuals, much less offer any explanation as to why those factors had changed so radically as to justify rescinding DACA now. 123. Hours after DACA was rescinded, President Trump tweeted that, if Congress fails to provide similar protections through legislation, "I will revisit this issue!" This statement undermines DHS’ faux constitutional rationale for rescission because it confirms that the President has authority to reinstate some or all of DACA without Congressional authorization. 124. President Trump’s September 5, 2017 statement is the latest in a series of admissions he has made that expressly or implicitly recognize the DACA program was legal, undermining the purported rationale for rescinding the program. For example:
75 See, e.g., Memorandum to Att’ys of the Office of Legal Counsel, U.S. Dep’t of Justice, from David Barron, Acting Assistant Att’y General, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010). 76 USCIS Approval Notice, Form 1-821 D, Consideration of Deferred Action for Childhood Arrivals.
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 On December 8, 2016, then-President-elect Trump stated in an interview with TIME magazine that he would find an accommodation for Dreamers, stating, “We’re going to work something out that’s going to make people happy and proud.”77
 On January 18, 2017, then President-elect Trump promised in an interview with Fox & Friends that he was “working on a plan right now. And that plan, over the next two to three months, is going to come out. And it’s a plan that’s going to be very firm, but it’s going to have a lot of heart.”78
 On March 29, 2017, Secretary Kelly reaffirmed that “DACA status” is a “commitment . . . by the government towards the DACA person, or the socalled Dreamer.”79
 On April 21, 2017, President Trump confirmed that his Administration’s policy is not to deport Dreamers, and suggested that they “should rest easy.”80
125. These statements directly contravening Defendants' purported justification for
rescinding DACA confirm that the rescission rests on racist animus against Mexican and Central
American immigrants. Other false and misleading statements by the President and
administration officials confirm that the legal justification offered for the rescission is pretextual:
 On September 5, 2017, President Trump issued a written statement on the rescission of DACA that stated: "The temporary implementation of DACA . . . helped spur a humanitarian crisis -- the massive surge of unaccompanied minors from Central America including, in some cases, young people who would become members of violent gangs throughout our country, such as MS13."81
 On the same day, just prior to Attorney General Sessions's announcement rescinding DACA, President Trump tweeted, "No longer will we incentivize illegal immigration. LAW AND ORDER! #MAGA," and "Make no mistake, we are going to put the interest of AMERICAN CITIZENS FIRST!"82
77 Michael Scherer, Person of the Year 2016, TIME Magazine (Dec. 2016). 78 Francesca Chambers, Trump signals he’s softening on immigration as he says he’s ‘working on a plan’ that will make DREAMers ‘very happy,’ Daily Mail (Jan. 18, 2017). 79 Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on Immigration, Politico (Mar. 29, 2017). 80Transcript of interview with Trump, Associated Press (Apr. 21, 2017). 81 Press Release, The White House Office of the Press Secretary, Statement from President Donald J. Trump (Sept. 5, 2017). 82 Donald Trump (@realDonaldTrump), TWITTER (Sep.5, 2017 5:10am), https://twitter.com/the_trump_train/status/905040389610057728?lang=en
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 During his announcement rescinding DACA, Attorney General Sessions justified the decision by stating that DACA "contributed to a surge of unaccompanied minors on the southern border” and “denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens."83
 Attorney General Sessions, while a United States Senator from Alabama, made similar statements regarding undocumented individuals seeking employment ("I'm a minority in the U.S. Senate ... in questioning whether we should reward people who came into the country illegally with jobs that Americans would like to do.").84 That same year, then-senator Sessions praised the 1924 Johnson-Reed Act, whose namesake, Representative Albert Johnson, used racial theory as the basis for its severe immigration restrictions, which included barring Asian immigration entirely.85
126. The Rescission Memorandum makes no reference to unaccompanied minors,
public safety concerns, or economic interests to explain the agency's action. These shifting,
conflicting, and factually inaccurate statements by the Trump Administration -- that DACA
created a surge in illegal immigration, and that DACA recipients take jobs away from other
American workers -- expose the cursory legal rationale in the Rescission Memorandum's as a
sham. The APA requires governmental agencies to publicly state a sufficient justification for
their actions, particularly where, people have relied upon DHS's prior statements to their
detriment.
127. Moreover, these statements are wholly controverted by available evidence
demonstrating the contributions of Dreamers to the United States, as explained above. See Motor
Veh. Mfrs. Ass 'n of U.S. , Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (an
agency rule is arbitrary and capricious when the explanation offered by the agency "runs counter
to the evidence before the agency").
83 Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017). 84 Seung Min Kim, The Senate's Anti- Immigration Warrior, Politico (Mar. 5, 2015) 85 See Interview by Stephen Bannon with Sen. Jefferson B. Sessions, Breitbart News (Oct. 5, 2015), audio available at https://tinyurl.co111 /y8gbj6vk; see also Adam Serwer, Jeff Sessions 's Unqualified Praise for a 1924 immigration Law, The Atlantic (Jan. 10, 2017)
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128. In making a decision contradicted by the available evidence, providing a false justification for the rescission and promoting the rescission because of discriminatory animus, Defendants abused their discretion and acted in an arbitrary and capricious manner in violation of the APA.
CAUSES OF ACTION FIRST COUNT
FIFTH AMENDMENT – DUE PROCESS (All Defendants)
129. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
130. Immigrants who are physically present in the United States are guaranteed the protections of the Due Process Clause.
131. The Constitution imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.
132. The property interests protected by the Due Process Clause extend beyond tangible property and include anything to which a plaintiff has a legitimate claim of entitlement. A legitimate claim of entitlement is created by rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
133. The term “liberty” also encompasses the ability to work, raise a family, and form the other enduring attachments of normal life.
134. Dreamers, including Plaintiffs, have constitutionally protected liberty and property interests in their DACA and the numerous benefits conferred thereunder, including the ability to renew their DACA every two years. These protected interests exist by virtue of the
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government’s decision to grant Dreamers certain benefits and its repeated representations and promises regarding DACA.
135. In promoting DACA, USCIS affirmatively promised Dreamers that if their case was deferred, they would be eligible for benefits, including employment authorization, advance parole to travel internationally, and to attend educational institutions.
136. Dreamers, including certain of the plaintiffs, were granted employment authorization, advance parole to travel internationally, the right to attend educational institutions, public benefits (including Social Security, Medicare, and disability benefits). They were able to secure equal access to other benefits and opportunities on which Americans depend, including opening bank accounts, obtaining credit cards, starting businesses, purchasing homes and cars, and conducting other aspects of daily life that are otherwise often unavailable for undocumented immigrants.
137. In establishing and continuously operating DACA under a well-defined framework of highly specific criteria—including nearly 150 pages of specific instructions for managing the program—the government created a reasonable expectation among Plaintiffs and other Dreamers that they are entitled to the benefits provided under the program, including the ability to seek renewal of their DACA, as long as they continue to play by the rules and meet the program’s nondiscretionary criteria for renewal.
138. The government deprived Plaintiffs and other Dreamers of their property and liberty interests under this program, including their ability to seek renewal of their DACA, their right to work authorization, and their right to travel internationally without a right to be heard or other individualized procedural protections.
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139. The government’s arbitrary termination of DACA and deprivation of the opportunity to renew DACA violates the due process rights of Plaintiffs and other Dreamers.
140. The government’s decision to terminate DACA after vigorously promoting the program and coaxing hundreds of thousands of highly vulnerable young people to step forward is an unconstitutional bait-and-switch. The government promised Plaintiffs and other young people that if they disclosed highly sensitive personal information, passed a background check, and played by the rules, they would be able to live and work in the United States.
141. The government did not follow its normal procedures in reversing course and terminating DACA. In 2014, the OLC concluded, after conducting a detailed analysis, that DACA was a lawful exercise of the Executive Branch’s discretion. By contrast, Attorney General Sessions’s one-page letter to Acting Secretary Duke contains virtually no legal analysis, and Acting Secretary Duke’s Rescission Memorandum relied largely on Attorney General Sessions’s letter.
142. The Due Process Clause also requires that the federal government’s immigration enforcement actions be fundamentally fair. Here, the government’s arbitrary decisions to terminate DACA is fundamentally unfair.
143. Defendants’ violations of the Due Process Clause have harmed Plaintiffs and will continue to cause ongoing harm to Plaintiffs and other Dreamers.
SECOND COUNT FIFTH AMENDMENT – DUE PROCESS
(All Defendants) 144. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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145. Immigrants who are physically present in the United States are guaranteed the protections of the Due Process Clause.
146. The Constitution imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.
147. Dreamers, including Plaintiffs, have constitutionally protected liberty and property interests in the sensitive personal information they disclosed to the government in reliance on the government’s explicit and repeated assurances that it would not be used for immigration enforcement purposes and would in fact be “protected from disclosure” to ICE and CBP.
148. The protected interest in the nondisclosure of sensitive personal information exists by virtue of the government’s decision to make repeated assurances to Dreamers that this information would not be used for enforcement purposes.
149. The government’s decision to terminate DACA after vigorously promoting the program and coaxing hundreds of thousands of highly vulnerable young people to step forward is an unconstitutional bait-and-switch. The government promised Plaintiffs and other young people that if they disclosed highly sensitive personal information, passed a background check, and played by the rules, they would be able to live and work in the United States.
150. The government’s retraction of its publicly declared and repeatedly reaffirmed policy not to share with ICE and CPB Dreamers’ DACA application information violates due process. The government has already violated other assurances regarding DACA, and there is imminent danger that it will similarly breach its representations regarding information-sharing. Indeed, the government already has breached its prior commitments to affirmatively “protect[]
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[sensitive information] from disclosure,” now asserting only that it will not “proactively provide[]” such information to ICE and CBP for the purpose of immigration enforcement proceedings.
151. The government deprived Plaintiffs and other Dreamers of their property and liberty interests as to their sensitive personal information without a right to be heard or other individualized procedural protections.
152. The Due Process Clause also requires that the federal government’s immigration enforcement actions be fundamentally fair. Here, the government’s arbitrary decisions to terminate DACA and change the policy regarding the use of information provided by Dreamers are fundamentally unfair.
153. Defendants’ violations of the Due Process Clause have harmed Plaintiffs and will continue to cause ongoing harm to Plaintiffs and other Dreamers.
THIRD COUNT FIFTH AMENDMENT – EQUAL PROTECTION
(All Defendants) 154. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 155. The equal protection guarantee of the Fifth Amendment forbids federal officials from acting with a discriminatory intent or purpose. 156. To succeed on an equal protection claim, plaintiffs must show that the defendants discriminated against them as members of an identifiable class and that the discrimination was intentional. Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.
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157. As set forth above, the termination of DACA was motivated by improper discriminatory intent and bias against Mexican nationals, individuals of Mexican and Central American descent, and Latinos, who together account for 93 percent of approved DACA applications.
158. President Trump’s history and that of other senior administration officials of alleging that Mexican, Central American, and Latino immigrants are rapists, criminals, and otherwise bad people demonstrate discriminatory animus. It is this animus that motivated the DACA rescission.
159. The government allows other classes of immigrants to remain eligible for deferred action, and remain eligible for benefit associated with deferred action. Because Mexican, Central American, and Latinos account for 93 percent of approved DACA applications, they will be disproportionately impacted by the termination of DACA.
160. The history, procedure, substance, context, and impact of the decision to terminate DACA demonstrate that the decision was motivated by discriminatory animus against Mexican, Central American, and Latino immigrants. Because it was motivated by a discriminatory purpose, the decision to terminate DACA violates the equal protection guarantee of the Due Process Clause of the Fifth Amendment.
161. Defendants’ violations of the Equal Protection Clause have caused ongoing harm to Plaintiffs and other Dreamers.
FOURTH COUNT ADMINISTRATIVE PROCEDURE ACT
(All Defendants Except Trump) 162. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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163. Defendants are subject to the Administrative Procedure Act (“APA”). See 5
U.S.C. § 703.
164. The termination of DACA is final agency action subject to judicial review
because it marks the consummation of the decisionmaking process and is one from which legal
consequences will flow. The comprehensive scope of the APA provides a default remedy for all
interactions between individuals and all federal agencies.
165. The APA requires that 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 law . . . [or] contrary to constitutional right, power, privilege, or
immunity.” 5 U.S.C. § 706(2)(A), (B).
a. As detailed in Counts I and II, the decision to terminate DACA is unconstitutional in numerous respects and therefore must be vacated.
b. The decision to terminate DACA is arbitrary and capricious and contrary to law because, among other reasons, the government failed to consider important aspects of the issue, offered explanations for its decision inconsistent with the evidence before it, and its explanations are so implausible that its decision cannot be due to a difference in opinion or the product of agency expertise. And because the government failed to provide a reasoned analysis sufficient to justify its change of policy in light of the serious reliance interests created by DACA.
i. The purported rationales for rescission of the program contradict the available evidence. Among other things, the rescission does not provide a reasoned analysis for the rescission, nor does it address the prior Department of Justice OLC analysis concluding the program was constitutional.
ii. The purported rationale for rescission of the program – that the Executive Branch purportedly lacked authority to conduct the program -- is inconsistent with the ongoing continuation of the program and the admissions by the President and various administration officials that the President has the authority to continue the program.
iii. The government’s decision not to accept any DACA renewal applications after October 5, 2017 is also arbitrary. The Rescission
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Memorandum does not provide a reasoned analysis to support this deadline, and the government has failed to provide sufficient time and notice to Dreamers.
iv. The government’s decision not to accept new applications after September 5, 2017 is arbitrary. The Rescission Memorandum does not provide a reasoned analysis to support this deadline.
v. The government’s decision not to accept renewal requests for Dreamers whose status expired before September 5, 2017 is arbitrary. The Rescission Memorandum does not provide a reasoned analysis to support this deadline.
vi. The government’s decision not to accept renewal requests for DACA recipients whose status expires after March 5, 2018 is arbitrary. The Rescission Memorandum does not provide a reasoned analysis to support this decision.
vii. The government’s decision to terminate DACA is also in violation of the APA because the stated rationale for ending the program is pretextual and incorrect as a matter of law.
c. The government’s decision regarding potential sharing of personal information collected from DACA applicants is arbitrary and capricious and contrary to law.
i. The government’s failure to abide by the specific and consistent promise that information obtained from DACA applicants would not be used for immigration enforcement purposes violates the Privacy Act’s prohibition on agency sharing records with another agency. 5 U.S.C. § 552a(b).
ii. The government’s failure to abide by the specific promise in the DACA Privacy Impact Assessment that information collected from DACA applicants would not be used for immigration enforcement purposes violates the e-Government Act provision requiring an agency abide by its Privacy Impact Assessment. 44 U.S.C. § 3501 et seq.
iii. The government’s maintenance of records for Dreamers following rescission of DACA violates the Privacy Act prohibition on an agency maintaining records beyond those which are necessary to accomplish a purpose required to be accomplished by executive order of the President. 5 U.S.C. § 552a(c)(1).
iv. The stated change in the government’s protection of DACA applicant data from use for immigration enforcement proceedings is invalid under APA 5 U.S.C. § 551(4) because it carries an
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unreasonable retroactive effect, incurring new and harmful legal consequences where individuals submitted their data in detrimental reliance on prior DHS policies and representations.
v. The government’s retention of applicants’ personally identifiable information and declaration of the potential disclosure of this information for immigration enforcement purposes violates DHS’ own policies and established practices without providing a reasoned justification for deviation from its own policies.
vi. The change in the government’s policy regarding protection of DACA applicant data from use for immigration enforcement proceedings is not based on a reasoned analysis contained in the Rescission Memorandum.
vii. The change in the government’s policy regarding protection of DACA applicant data from use for immigration enforcement proceedings is not adequately explained in the Rescission Memorandum, particularly in light of the DACA recipients’ strong reliance on the government’s commitment not to use this information for enforcement purposes.
166. Defendants’ violations of the APA have caused ongoing harm to Plaintiffs and
other Dreamers.
FIFTH COUNT ADMINISTRATIVE PROCEDURE ACT
(All Defendants Except Trump)
167. The APA, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct
rulemaking before engaging in action that impacts substantive rights.
168. DHS and USCIS are each an “agency” under the APA, and the Rescission
Memorandum and the actions that DHS and USCIS has taken to implement the Rescission
Memorandum are “rules” under the APA. See 5 U.S.C. § 551(1), (4).
169. In implementing the Rescission Memorandum, federal agencies have changed the
substantive criteria by which individual Dreamers work, live, attend school, obtain credit, and
travel in the United States, thus imposing rights and obligations on Dreamers. The Rescission
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Memorandum modifies substantive rights and interests and so is subject to notice and comment rulemaking.
170. With exceptions that are not applicable here, agency efforts that change substantive rights and interests must go through notice-and-comment rulemaking. See 5 U.S.C. § 553.
171. Defendants promulgated and implemented these changes to Dreamer rights and interests without notice-and-comment rulemaking in violation of the APA.
172. Plaintiffs will be impacted because they have not had the opportunity to comment on the rescission of DACA.
173. Defendants’ violation of the APA has caused ongoing harm to Plaintiffs and other Dreamers.
SIXTH COUNT ESTOPPEL
174. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
175. Through its conduct and statements, the government represented to Plaintiffs and other Dreamers that DACA was lawful and that information collected in connection with DACA would not be used for immigration enforcement purposes absent special circumstances.
176. In reliance on the government’s repeated assurances, Plaintiffs and other Dreamers risked removal and deportation and came forward and identified themselves to the government, and provided sensitive personal information, including their fingerprints and personal history, in order to participate in DACA.
177. Throughout the life of DACA, the government has continued to make affirmative representations about the use of information as well as the validity and legality of DACA.
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Plaintiffs and other Dreamers relied on the government’s continuing representations to their detriment.
178. DACA beneficiaries rearranged their lives to become fully visible and contributing members of society, including by seeking employment, pursuing higher education, and paying taxes, but are now at real risk of removal and deportation.
179. Accordingly, Defendants should be equitably estopped from terminating DACA or from using information provided pursuant to DACA for immigration enforcement purposes, except as previously authorized under DACA.
180. An actual controversy between Plaintiffs and Defendants exists as to whether Defendants should be equitably estopped.
181. Plaintiffs are entitled to a declaration that Defendants are equitably estopped. SEVENTH COUNT
DECLARATORY JUDGMENT THAT DACA IS LAWFUL 182. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 183. DACA was a lawful exercise of the Executive Branch’s discretion to enforce the immigration laws. Indeed, after performing a thorough analysis, the government itself concluded that DACA was lawful. However, the government now claims, as the basis for its rescission of the program, that DACA is unlawful. 184. 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).
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185. As DACA beneficiaries, Plaintiffs have an interest in the legality of DACA. The government’s decision to terminate DACA on the purported basis that DACA was unlawful has harmed Plaintiffs and continues to cause ongoing harm to Plaintiffs.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that this Court: A. Declare that the Rescission and actions taken by Defendants to rescind DACA are void and without legal force or effect; B. Declare that the Rescission and actions taken by Defendants to rescind DACA are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and without observance of procedure required by law in violation of 5 U.S.C. §§ 702-706; C. Declare that the Rescission and actions taken by Defendants to rescind DACA are in violation of the Constitution and contrary to the laws of the United States; D. Preliminarily and permanently enjoin and restrain Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, from implementing or enforcing the Rescission and from taking any other action to rescind DACA that is not in compliance with applicable law; E. Preliminarily and permanently enjoin and restrain Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, from disclosing any DACA applicant information to immigration enforcement activities in a manner inconsistent with their prior commitments; F. Grant such further relief as this Court deems just and proper.
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Dated: October 5, 2017

Respectfully submitted,

__/s/ Dennis A. Corkery_____________________ Matthew K. Handley (D. Md. 18636) Dennis A. Corkery (D. Md. 19076) WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, Suite 400 Washington, DC 20036 (202) 319-1000 matthew_handley@washlaw.org dennis_corkery@washlaw.org

John A. Freedman (pro hac vice forthcoming) Gaela Gehring Flores (D. Md.14559) Ronald A. Schechter (pro hac vice forthcoming) Nancy L. Perkins (pro hac vice forthcoming) Jeremy Karpatkin (pro hac vice forthcoming)
ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001-3743 (202) 942-5000 John.freedman@apks.com

Elizabeth J. Bower (pro hac vice forthcoming) Kevin B. Clark (pro hac vice forthcoming) WILLKIE FARR & GALLAGHER LLP 1875 K Street, NW Washington, DC 20006-1238 EBower@willkie.com

Steven L. Mayer (pro hac vice forthcoming) ARNOLD & PORTER KAYE SCHOLER LLP 10th Floor Three Embarcadero Center San Francisco, CA 94111-4024 +1 415.471.3100

Nicholas Katz (pro hac vice forthcoming) CASA DE MARYLAND 8151 15th Ave. Hyattsville, MD 20783 (240) 491-5743 NKatz@wearecasa.org

Ajmel Quereshi (D. Md. 28882) HOWARD UNIVERSITY SCHOOL OF
LAW CIVIL RIGHS CLINIC 2900 Van Ness Street, NW Washington, DC 20008 (202) 806-8000 aquereshi@law.howard.edu

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

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) U.S. Department of Homeland Security 3801 Nebraaska Ave. NW Washington, D.C. 20016

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-2 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-3 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) U.S. Citizenship and Immigration Services 20 Massachusetts Ave., NW Washington, D.C. 20008

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-3 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-4 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) U.S. Immigration and Customs Enforcement 500 12th St., SW Washington, D.C. 20536

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-4 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-5 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) U.S. Customs and Border Proctection 1300 Pennsylvania Ave. NW Washington, D.C. 20004

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-5 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-6 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Donald J. Trump, in his official capacity as President of the United States 1600 Pennsylvania Ave., NW Washington, D.C. 20500

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-6 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-7 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Jefferson Beuregard Sessions III, in his official capacity as Attorney General of the United States 950 Pennsylvania Ave., NW Washington, D.C. 20530

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-7 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-8 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Elaine C. Duke, in her official capacity as Acting Secretary of the U.S. Department of Homeland Security 3801 Nebraaska Ave. NW Washington, D.C. 20016

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-8 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-9 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) James W. McCament, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services 20 Massachusetts Ave., NW Washington, D.C. 20008

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-9 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-10 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Thomas D. Homan, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement 500 12th St., SW Washington, D.C. 20536

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-10 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-11 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Kevin K. McAleenan, in his official capacity as Acting Commissioner of U.S. Customs and Border Proctection 1300 Pennsylvania Ave. NW Washington, D.C. 20004

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-11 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-12 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) United States of America c/o Stephen M. Schenning Acting United States Attorney, District of Maryland 6406 Ivy Lane Suite 800 Greenbelt, MD 20770

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036

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

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-12 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-13 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 17-02942

)

)

)

)

)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) U.S. Department of Homeland Security, et al.
Stephen M. Schenning Acting United States Attorney, District of Maryland 6406 Ivy Lane Suite 800 Greenbelt, MD 20770
A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036

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

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case 8:17-cv-02942-RWT Document 1-13 Filed 10/05/17 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

.

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

Save As...

Reset

Case 8:17-cv-02942-RWT Document 1-14 Filed 10/05/17 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_______D__is_trDicitsotrficMt oafry_l_a_n_d______

Casa de Maryland, et al
Plaintiff(s)
v. U.S Department of Homeland Securtity, et al
Defendant(s)

)

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Civil Action No. 17-02942

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SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) U.S. Department of Homeland Security, et al.
Jefferson Beuregard Sessions, III Attorney General of the United States 950 Pennsylvania Ave., NW Washington, D.C. 20530

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Dennis A. Corkery
Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cir., NW Suite 400 Washington, D.C. 20036

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

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 17-02942

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

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

was received by me on (date)

.

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

on (date)

; or

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

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

on (date)

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

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

, who is ; or

’ I returned the summons unexecuted because

; or

’ Other (specify): .

My fees are $

for travel and $

for services, for a total of $

0.00

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

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Print

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 Case 8:17-cv-02942-RWT Document 42 Filed 03/05/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CASA DE MARYLAND, et al.

*

Plaintiffs

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v.

* Civil No. RWT-17-2942

U.S. DEPARTMENT OF

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HOMELAND SECURITY, et al.

*

Defendants

***

MEMORANDUM OPINION On October 5, 2017, Plaintiffs filed a Complaint seeking to enjoin rescission of a program known as Deferred Action for Childhood Arrivals (“DACA”), asserting a variety of claims as to why the rescission was unlawful. See ECF No. 1. Plaintiffs are a number of individual participants in that program known as “Dreamers,” as well as a series of special interest organizations that deal with immigration policy issues and work directly with immigrants in the community. Id. at 11–21. Defendants are President Donald Trump, Attorney General Jeff Sessions, and a series of government agencies—the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection (“CBP”)—as well as each agency’s acting leader (secretary, director, or commissioner). Defendants collectively will be referred to as the “Government.” Each individual defendant is being sued in his or her official capacity. Id. at 21–22. Plaintiffs’ Complaint alleges a number of causes of action—both administrative and constitutional—which they believe are proper grounds for relief. Plaintiffs assert that rescission

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of the DACA program was unlawful under the Administrative Procedure Act (“APA”) both (1) as an arbitrary and capricious decision and (2) for failure to follow notice-and-comment procedures. Id. at 54–58. Plaintiffs further allege that the DACA rescission was a violation of the Fifth Amendment on the grounds of procedural due process, substantive due process, and equal protection. Id. at 49–54. Plaintiffs seek injunctive relief on the basis of equitable estoppel both as to the DACA rescission itself and its information sharing policy. Id. at 58–59. Lastly, Plaintiffs seek declaratory relief that the DACA program is lawful. Id. at 59–60.
On November 1, 2017, the Court held an in-person status conference in order to resolve the scheduling and logistical issues of this case. ECF No. 19. Thereafter on November 15, 2017, the Government filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF No. 27. On November 28, 2017, Plaintiffs responded in opposition, ECF No. 29, and on December 5, 2017, the Government replied in support of its Motion, ECF No. 30. The Court issued an Order on December 11, 2017 giving notice to the parties in accordance with Rule 56(f) that it may grant summary judgment for the non-moving party. See ECF No. 31. On December 15, 2017, the Court held a hearing on the Motion. ECF No. 34.
I. BACKGROUND “Can we all get along?” – Rodney King1
In recent years, many Americans have found themselves sharing Mr. King’s sentiment. This Court previously noted, albeit in the context of congressional gerrymandering, that “[n]ever before has the United States seen such deep political divisions as exist today, and while the courts are struggling in their efforts to find a standard [for the adjudication of gerrymandering claims], the fires of excessive partisanship are burning and our national government is
1 See Richard A. Serrano, Rodney King: ‘Truth will come out’, L.A. Times (May 2, 1992), http://www.latimes.com/local/california/la-me-king-case-aftermath-city-in-crisis-19920502-story.html.
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encountering deadlock as never before.” Fletcher v. Lamone, 831 F. Supp. 2d 887, 905 (D. Md. 2011) (Titus, J., concurring), aff’d, 567 U.S. 930 (2012). Unfortunately, that 2011 observation still holds true today—perhaps even more so.
This case is yet another example of the damaging fallout that results from excessive political partisanship. The highly politicized debate surrounding the DACA program has thus far produced only rancor and accusations. During the recent debate over the rescission of DACA, the program even turned into a bargaining chip that resulted in a brief shutdown of the entire federal government earlier this year.2 In order to adequately resolve the legal issues of this case, it is important to step back from the heated rhetoric and understand the context under which DACA was promulgated and rescinded. The Dream Act—a Lengthy History of Failed Legislation
The Constitution reserves the power to enact immigration policy to the legislative branch. U.S. Const. art. I, § 8 (“[T]o establish a uniform rule of naturalization”). However, the “supervision of the admission of aliens into the United States may be intrusted by [C]ongress” to the executive branch. Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). For over a decade at the start of the 21st century, Congress quarreled over policies regarding illegal aliens who entered the country as children, and who may have no memory or connection with their country of origin. Would the world’s beacon of freedom—a nation founded by immigrants— cast out an immigrant population that was likely brought here without choice and who likely now knows no other home? While “no” would seem to be the obvious answer, ordinary logic has eluded our Congress.
2 See Gregory Krieg, The DACA shutdown is over. Now What?, CNN (Jan. 22, 2018), https://www.cnn.com/2018/01/22/politics/shutdown-immigration-daca-outcomes/index.html.
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“Dreamers” are neither constitutionally nor statutorily defined. Rather, the concept of
protection for “Dreamers” arises from repeated congressional failures to act, and presidential
action taken in their wake. A series of congressional sessions marked by bitter strife and
inaction left the country without any protections for persons brought here illegally as children.
The first attempt at a Development, Relief, and Education for Alien Minors (“DREAM”) Act
came in 2001, and although it took on many names in subsequent years, the repeated attempts to pass this legislation were filibustered, abandoned, or defeated on the floor.3 As illustrated by the frequency of bills proposed, Dreamer legislation reached its zenith during late 2010 in the 111th
Session of Congress. On December 8, 2010, the House of Representatives actually passed the DREAM Act.4 However, like all other iterations of this controversial legislation, its fate was doomed—this time, less than two weeks later on the Senate floor.5
DACA—an Act of Desperation Born of Frustration with a Paralyzed Congress
President Obama’s administration, faced with the reality that Congress could do little
more than squabble regarding the Dreamers, decided to take action on its own. On
June 15, 2012, then-Secretary of Homeland Security, Janet Napolitano, issued a memorandum promulgating by executive action what is now known as DACA (“DACA Memo”).6 DACA
3 See Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001, H.R. 1582, 107th Cong. (2001); Student Adjustment Act of 2001, H.R. 1918, 107th Cong. (2001); DREAM Act, S. 1291, 107th Cong. (2002); DREAM Act, S. 1545, 108th Cong. (2003); DREAM Act of 2005, S. 2075, 109th Cong. (2005); Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. (2006); American Dream Act, H.R. 5131, 109th Cong. (2006); DREAM Act, S. 2205, 110th Cong. (2007); Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong. (2007); DREAM Act of 2009, S. 729, 111th Cong. (2009); DREAM Act of 2010, S. 3827, 111th Cong. (2010); DREAM Act of 2010, S. 3962, 111th Cong. (2010); DREAM Act of 2010, S. 3963, 111th Cong. (2010); DREAM Act of 2010, S. 3992, 111th Cong. (2010); DREAM Act of 2010, H.R. 6497, 111th Cong. (2010); DREAM Act of 2011, S. 952, 112th Cong. (2011). 4 See John Brandt, House Passes DREAM Act Immigration Measures, Fox News (Dec. 8, 2010), http://www.foxnews.com/politics/2010/12/08/house-passes-dream-act-immigration-measures.html. 5 See DREAM Act Goes Down in Flames in Senate, Fox News (Dec. 18, 2010), http://www.foxnews.com/politics/2010/12/18/senate-tries-pass-dream-act.html. 6 Memorandum from U.S. Dep’t of Homeland Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).
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protections were afforded to the same class of immigrants foreseen by the various failed iterations of Dreamer legislation. The primary qualifications for DACA protections were that an individual must (1) have come to the U.S. before the age of sixteen, (2) meet various education or military service requirements, (3) not have a criminal record, and (4) register prior to the age of thirty.7
DACA was issued under a theory of “prosecutorial discretion” and “deferred action” and essentially permitted otherwise illegal aliens to remain in the United States without fear of deportation.8 While some heralded DACA as a victory, others decried it as executive overreach—usurping the powers of Congress to promulgate immigration policy.9 Over the course of the next five years, approximately 800,000 Dreamers registered for DACA protections.
Phase II: DAPA Soon thereafter, the executive branch sought to expand its use of deferred action beyond
the Dreamers. On November 20, 2014, then-Secretary of Homeland Security, Jeh Charles Johnson, issued a pair of memoranda in an attempt to promulgate what is now known as Deferred Action for Parents of Americans (“DAPA”), as well as a series of minor expansions for DACA.10
Less than a month later, DAPA was met with a legal challenge when Texas and twenty-five other states sued to enjoin implementation of the program. See generally Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). In that case, DAPA was struck down by the
7 See id. 8 See id. 9 See Obama suspends deportation for thousands of illegals, tells GOP to pass DREAM Act, Fox News (June 15, 2012), http://www.foxnews.com/politics/2012/06/15/obama-administration-to-offer-immunity-to-youngerimmigrants.html. 10 Memorandum from U.S. Dep’t of Homeland Sec., Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014); Memorandum from U.S. Dep’t of Homeland Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014).
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district court, see id., and a divided Fifth Circuit panel affirmed the decision, see 809 F.3d 134 (5th Cir. 2015). In June 2016, an equally divided Supreme Court affirmed the decision. See United States v. Texas, 136 S. Ct. 2271, 2272 (2016). In addition to finding DAPA and the expansions of DACA unlawful, the judicial decisions throughout the DAPA litigation illustrate two key realities: (1) challenges to DAPA or analogous immigration programs promulgated by DHS without approval by Congress are justiciable; and (2) reasonable legal minds may differ regarding their lawfulness.
Aside from the classes of immigrants to which each applies, DACA and DAPA are largely similar programs addressing different classes or subcategories of immigrants. While DACA affects a population of approximately 800,000 otherwise illegal aliens, DAPA would have affected nearly half of the 11,000,000 immigrants currently in the United States unlawfully. See Texas v. United States, 787 F.3d 733, 745 (5th Cir. 2015). DAPA was challenged and defeated before the program was ever successfully promulgated, while DACA has run for approximately half of a decade before the threat of any litigation. A Change in Administration and a Corresponding Change in Immigration Philosophy
The 2016 presidential election brought a change in leadership of the executive branch and, with it, significant changes in immigration views and philosophies.11 In June of 2017, and with the defeat of DAPA directly in the rear-view mirror, Texas and other state plaintiffs sent a letter threatening to challenge DACA if it were not rescinded by September 6, 2017.12 Attorney General Jeff Sessions advised the Acting Secretary of Homeland Security, Elaine Duke, that
11 See, e.g., Tessa Berenson, Middle Schoolers in Michigan Chant ‘Build That Wall’ After Trump Victory, TIME (Nov. 11, 2016), http://time.com/4567812/donald-trump-middle-school-build-wall/. 12 See Admin. R., ECF No. 26-1 at 238–40.
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DACA was likely unlawful and headed for another legal battle.13 On September 5, 2017, Acting Secretary Duke issued a memorandum (“DACA Rescission Memo”) outlining a six-month wind down of DACA to expire March 5, 2018.14
According to the Administrative Record, the basis for the decision to rescind DACA was its presumed unlawfulness in the wake of the DAPA litigation and the threat of imminent legal challenge. The agency’s reasoning is substantiated by the legal advice of the Attorney General and the fact that the memorandum was issued the day before the state parties had threatened to act. A six-month wind down period was provided to avoid the potential for chaos if a court decision resulted in immediate termination, and the President urged Congress to pass Dreamer-protection legislation.15
Complicating the picture for some observers is the unfortunate and often inflammatory rhetoric used by President Trump during the campaign, as well as his Twitter pronouncements, both before and after his election. Thoughtful and careful judicial review is not aided when the President lobs verbal hand grenades at the federal courts, the Department of Justice, and anyone else with whom he disagrees.
As disheartening or inappropriate as the President’s occasionally disparaging remarks may be, they are not relevant to the larger issues governing the DACA rescission. The DACA Rescission Memo is clear as to its purpose and reasoning, and its decision is rationally supported by the Administrative Record. See generally Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (“[W]hen the Executive exercises [a congressionally delegated power of immigration policies
13 See Admin. R., ECF No. 26-1 at 251. 14 Memorandum from U.S. Dep’t of Homeland Sec., 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). 15 See Michael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times (Sept. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.
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and rules for the exclusion of aliens] negatively on the basis of a facially legitimate and bona fide
reason, the courts will [not] look behind the exercise of that discretion.”); Hamdan v. Rumsfeld,
548 U.S. 557, 623–24 n.52 (2006) (“We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.”).16
The executive branch may have the authority to exercise or not exercise prosecutorial
discretion as it sees fit, and an agency certainly may refrain from action it reasonably believes to
be unlawful. Under the Constitution, it is the responsibility of Congress to determine
immigration policy, and the executive branch must only act within its constitutional and
delegated legislative authority. Although Congress has repeatedly failed to pass Dreamer
legislation in the past, the ball is again in its court. And with 87 percent of Americans favoring
some sort of DACA-esque protections, the elected members of Congress should understandably
feel the pressure now that the President has deferred to them—in short, Congress needs to get the job done now that their authority has been recognized by court decisions and the President.17
Other DACA Litigation
Various plaintiffs have filed lawsuits seeking to enjoin the DACA rescission throughout
the country—specifically in this Court, the Eastern District of New York, the Northern District
of California, and the District of the District of Columbia. These cases are at various stages, but
16 See also Washington v. Trump, 858 F.3d 1168, 1174 (9th Cir. 2017) (Kozinski, J., dissenting): Even if a politician’s past statements were utterly clear and consistent, using them to yield a specific constitutional violation would suggest an absurd result—namely, that the policies of an elected official can be forever held hostage by the unguarded declarations of a candidate. If a court were to find that campaign skeletons prevented an official from pursuing otherwise constitutional policies, what could he do to cure the defect? Could he stand up and recant it all (“just kidding!”) and try again? Or would we also need a court to police the sincerity of that mea culpa—piercing into the public official’s “heart of hearts” to divine whether he really changed his mind, just as the Supreme Court has warned us not to? See McCreary, 545 U.S. at 862, 125 S. Ct. 2722.
17 See Jennifer De Pinto, Fred Backus, Kabir Khanna & Anthony Salvanto, Most Americans support DACA, but oppose border wall, CBS News (Jan. 20, 2018), https://www.cbsnews.com/news/most-americans-support-daca-butoppose-border-wall-cbs-news-poll/.
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preliminary injunctions have already been granted by the Eastern District of New York and the Northern District of California.18 With regard to the California case, the Government attempted
to bypass the Ninth Circuit and directly petitioned the Supreme Court for a writ of certiorari before judgment.19 On February 26, 2018, the Supreme Court denied the petition without
prejudice, and noted that “[i]t is assumed that the Court of Appeals [for the Ninth Circuit] will proceed expeditiously to decide this case.”20
All courts reviewing the DACA rescission would benefit from a prior generation’s
wisdom regarding the separation of powers: “A sturdy judiciary should not be swayed by the
unpleasantness or unpopularity of necessary executive action, but must independently determine
for itself whether the President was acting, as required by the Constitution, to ‘take Care that the
Laws be faithfully executed.’” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 709 (1952).21
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. Respectfully, this Court disagrees.
Regardless of the lawfulness of DACA, the appropriate inquiry is whether or not DHS made a
18 See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. CV 17-05211 WHA, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018); Batalla Vidal v. Nielsen, No. CV 16-4756 NGG JO, 2018 WL 834074 (E.D.N.Y. Feb. 13, 2018). 19 U.S. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. CV 17-05211 WHA, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018), petition for cert. before judgment filed, 2018 WL 509822 (U.S. Jan 18, 2018) (No. 17-1003). 20 Docket, U.S. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 17-1003, (U.S. Feb. 26, 2018). 21 Or, more directly, as Judge Niemeyer notes in his recent dissent in the “travel ban” case.
The public debate over the Administration’s foreign policy and, in particular, its immigration policy, is indeed intense and thereby seductively tempts courts to effect a politically preferred result when confronted with such issues. But public respect for Article III courts calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives. Int’l Refugee Assistance Project v. Trump, No. 17-2231, 2018 WL 894413, at *104 (4th Cir. Feb. 15, 2018) (Niemeyer, J., dissenting).
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reasoned decision to rescind DACA based on the Administrative Record. Any alternative inquiry would impermissibly require a court to “substitute its judgment for that of the agency.” See Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 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.
II. STANDARD OF REVIEW Motion to Dismiss. The purpose of a motion to dismiss under Rule 12(b)(6) is “to test
the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The Supreme Court has further articulated the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3. To survive a motion to dismiss, a complaint must put forth “plausible claim[s] for relief.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Motion for Summary Judgment. Summary judgment is proper under Fed. R. Civ. P. Rule 56(a) if there is no genuine dispute over any material facts, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
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477 U.S. 242, 248 (1986). A dispute of material fact is genuine if the evidence would allow the trier of fact to return a verdict for the nonmoving party. Id. When considering a summary judgment motion, the court has “an affirmative obligation . . . to prevent ‘factually unsupported claims or defenses’ from proceeding to trial.” Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). Thus, the court may only rely on facts supported in the record, not assertions made in the pleading. Id. Moreover, the court must view all facts and make all reasonable inferences in the light most favorable to the nonmoving party. Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must present more than a “mere scintilla” of evidence to demonstrate a genuine issue of material fact that would preclude summary judgment. Anderson, 477 U.S. at 252.
III. ANALYSIS a. Justiciability
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Congress has the authority to expand or limit federal district court jurisdiction by statute. However, federal courts possess an inherent jurisdiction (under Article III and the fundamental principles of due process) over certain cases relating to the enforcement of the Constitution that cannot be limited by Congress. See, e.g., Webster v. Doe, 486 U.S. 592, 603 (1988) (permitting federal district court jurisdiction when necessary “to avoid the serious constitutional question that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.”).
The Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. However, federal courts may only review “cases and controversies” if
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they are justiciable. See generally Flast v. Cohen, 392 U.S. 83, 94–99 (1968) (discussing the doctrine of justiciability as “a blend of constitutional requirements and policy considerations”). A case may lack justiciability when it involves a political question and implicates concerns regarding the separation of powers between the judiciary and one of the other branches of government. See, e.g., Baker v. Carr, 369 U.S. 186, 210–11 (1962) (“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed . . . is a responsibility of this Court as ultimate interpreter of the Constitution.”). While executive actions may often involve otherwise unreviewable political questions, federal courts always retain the power to review matters of constitutional violations. See id. Accordingly, the Court need not reach back to Marbury v. Madison, 5 U.S. 137 (1803), to support the conclusion that Plaintiffs’ constitutional claims are justiciable.
Turning to Plaintiffs’ remaining claims, the Court is required to determine if judicial review has been limited by Congress under the APA. The plain language of the APA— specifically, 5 U.S.C. §§ 701, 702—indicates a presumption for judicial review, at least to the procedures surrounding agency decision-making (but not necessarily to the substance of those decisions). See generally Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (restating “the basic presumption of judicial review” for APA claims “so long as no statute precludes such relief or the action is not one committed by law to agency discretion”).22 Under 5 U.S.C. § 701(a), the only two exceptions are when: “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”
22 abrogated on other grounds by statute, Pub. L. 94-574, 90 Stat. 2721, as recognized in Califano v. Sanders, 430 U.S. 99, 105 (1977) (finding the statutory amendment to “eliminate the requirement of a specified amount in controversy as a prerequisite to the maintenance of any (§ 1331) action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity”).
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The Government argues both exceptions—that 8 U.S.C. § 1252(g) precludes judicial review, and that the DACA rescission is “committed to agency discretion” because it is a matter of prosecutorial discretion, see United States v. Armstrong, 517 U.S. 456, 464 (1996), immigration enforcement, see Arizona v. United States, 567 U.S. 387, 396–97 (2012), and deferred action generally, see Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 485 (1999). See ECF No. 27-1 at 29–30.
However, the notion that 8 U.S.C. § 1252(g) precludes judicial review has been rejected repeatedly. See, e.g., AADC, 525 U.S. at 482 (explicitly rejecting that § 1252(g) serves as a zipper clause that functions to prohibit all judicial review). Furthermore, while DHS possesses specified delegated authority over immigration enforcement, Congress never explicitly granted DHS a blanket authority to disparately enforce policies.
Plaintiffs’ APA claims are justiciable because they relate to the procedures followed by DHS—not to the substance of its policy or its decision of a specific case. The Court may review whether the repeal of DACA followed the correct APA procedures. Furthermore, it is important to note that the Government’s explanation for rescinding DACA was the Secretary’s belief that the program was unlawful and would face lengthy legal challenges. The similarities between DACA and DAPA support justiciability in this case because review of DAPA was also found to be justiciable. See Texas v. United States, 809 F.3d 134, 155–64 (5th Cir. 2015) (“Congress has expressly limited or precluded judicial review of many immigration decisions . . . but DAPA is not one of them.”), aff’d, 136 S. Ct. 2271 (2016).23
23 See also Texas v. United States, 809 F.3d 134, 165–170 (5th Cir. 2015), aff’d, 136 S. Ct. 906 (2016). Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states that have relied on the protections conferred by § 1621. . . .
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Accordingly, the Court finds all claims in Plaintiffs’ Complaint are justiciable.
b. Standing
Direct standing exists for plaintiffs who have an injury-in-fact that is traceable to the
defendants and which is redressable through adjudication. See Lujan v. Defs. of Wildlife,
504 U.S. 555, 590 (1992). The injury must be more than a generalized grievance, which is an
ideological objection or an injury widely shared by all members of the public. See id. at 575.
Organizations have direct standing when government action has impaired the organization’s own
legal rights. See, e.g., Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 342
(U.S. 1977). However, association standing also exists for organizational plaintiffs when (1) its
members would otherwise have standing to sue in their own right, (2) the interests it seeks to
protect are germane to the purpose of the organization, and (3) neither the claim asserted nor the
relief requested requires the participation of individual members in the lawsuit. See id. at 343.
The Government does not contest the standing of the individual plaintiffs. However, it
argues that the organizational plaintiffs lack direct standing because they are not “the object of
any government policy” and are merely seeking to “vindicate their own value preferences.” See
ECF No. 27-1 at 38–39 (equating the organizational plaintiffs’ injury to a mere “generalized
(continued from previous page) Chaney’s presumption against judicial review of agency inaction [exists] because there are no meaningful standards against which to judge the agency’s exercise of discretion. But where there is affirmative agency action—as with DAPA’s issuance of lawful presence and employment authorization—and in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization, the action at least can be reviewed to determine whether the agency exceeded its statutory powers. . . . At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA’s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law. The federal courts are fully capable of adjudicating those disputes. Because the interests that Texas seeks to protect are within the INA’s zone of interests, and judicial review is available, we address whether Texas has established a substantial likelihood of success on its claim that DAPA must be submitted for notice and comment.
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grievance”). The Government also argues that the organizational plaintiffs lack representational standing for failing to identify members of their organizations who are directly harmed by the repeal of DACA, see id. at 41–42, or reside within DACA’s zone-of-interests, see id. at 42 (citing Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 395–96 (1987)).
The Government’s challenges to the standing of the organizational plaintiffs miss the mark. Casa De Maryland and the rest of the organizational plaintiffs are special interest groups directly focused on aiding immigrants and their communities. The fact that one of their primary functions has been assisting their members with “tens of thousands of DACA initial and renewal applications” is sufficient for standing in and of itself. See ECF No. 29 at 33. In addition to direct standing, the organizational plaintiffs possess association standing. Each organization has identified a number of its members who are Dreamers, and who unquestionably would have standing in this case. Furthermore, the purpose of these organizations is to aid and represent immigrants in their communities, including compliance with immigration procedures. Therefore, the rescission of DACA has an absolute nexus to the organizations’ purpose. Additionally, the relief sought is injunctive and declaratory relief—not damages or any other remedy requiring the individual Dreamers. Hence, these organizational plaintiffs are the prototypical examples of possessing association standing.
Accordingly, the Court finds all Plaintiffs have standing in the instant case. c. APA Claims
Rulemaking is a common method federal agencies use to promulgate decisions. See generally Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915); Londoner v. City & Cty. of Denver, 210 U.S. 373, 385 (1908). Informal rulemaking is standardized under the APA and requires notice-and-comment procedures. See 5 U.S.C. § 553;
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e.g., United States v. Nova Scotia Food Prod. Corp., 568 F.2d 240, 253 (2d Cir. 1977). Informal rulemaking does not include non-legislative rulemaking, such as procedural rules, interpretive rules, or policy statements. See 5 U.S.C. § 553(b); e.g., McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1324–25 (D.C. Cir. 1988).
After the notice-and-comment requirements, if applicable, have been met, courts must take a hard look at whether the decision to promulgate or repeal a rule is “arbitrary or capricious”—which is to say that there must be a rational correlation between the facts reviewed and the decision made. See Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–44 (1983) (explaining that an agency must examine relevant data, articulate a satisfactory explanation contemporaneously with its decision, using rationale that comes from the agency (and not from a court inferring after the fact logic that is not explicitly stated in the record)). See id. However, even when notice-and-comment requirements do not apply, agency decisions are subject to judicial review under 5 U.S.C. § 706. By statute, “[t]he reviewing court 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 law.” 5 U.S.C. § 706(2).
The DACA program is a deferral of action, which by definition is an exercise of discretion rather than a rule with the force of law. Furthermore, the DACA Rescission Memo was not immediately binding, but rather a statement of intended policy beginning March 5, 2018. To the extent that Plaintiffs aver that, in practice, immigration reviews absent DACA protections lack individualized discretion, their dispute is merely with how the agency applies its policy, and
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not with the policy itself.24 Although a substantial paradigm shift, the DACA Rescission Memo neither curtails DHS’s discretion regarding individual immigration reviews, nor does it prevent the agency from granting Dreamers deferred action status again in the future. Hence, DACA and its rescission are more akin to non-binding policy statements, and thus not subject to notice-andcomment requirements.
Plaintiffs argue that the decision to rescind DACA must be arbitrary and capricious because the Administrative Record is “insufficient” to make a decision of such magnitude. See ECF No. 29 at 35–39 (noting that the Administrative Record is only 256 pages long—192 of which are court opinions related to DAPA); see also In re United States, No. 17-72917, 2017 WL 5505730, at *2 (9th Cir. Nov. 16, 2017) (“The notion that the head of a United States agency would decide to terminate a program giving legal protection to roughly 800,000 people based on 256 pages of publicly available documents is not credible.”).
However, based on the historical and political context outlined in the introductory pages of this Opinion, the decision to rescind DACA was neither arbitrary nor capricious, but rather was a carefully crafted decision supported by the Administrative Record. It is well established that “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” State Farm, 463 U.S. 29, 43 (1983). Therefore, it is irrelevant whether this Court, a judge in California or New York, or even a justice on the Supreme Court might have made a different decision while standing in the shoes of DHS on September 5, 2017. Rather, the relevant inquiry is whether the decision was made with a
24 Plaintiffs’ APA claim regarding DACA’s information sharing policy also lacks merit. Nothing in the DACA Rescission Memo outlines any change—let alone implements a substantive rule—with regard to the use of any individual’s information gathered during DACA’s implementation.
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“satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal quotations omitted).
DHS’s rationale provided in the DACA Rescission Memo was a belief, based on recent court decisions and the advice of the Attorney General, that DACA was unlawful. Assuming that a reasonable basis for that belief exists in the Administrative Record, how could trying to avoid unlawful action possibly be arbitrary and capricious? Quite simply, it cannot. Regardless of whether DACA is, in fact, lawful or unlawful, the belief that it was unlawful and subject to serious legal challenge is completely rational.
DAPA—an analogous program, promulgated by analogous means—had been defeated less than a year prior. The litigation that stopped DAPA included expansions of DACA itself. The same plaintiffs who defeated DAPA threatened to challenge DACA imminently. The Attorney General of the United States—the nation’s chief legal officer—provided legal advice that DACA was likewise unlawful and likely ill-fated against a legal challenge. All of this is in the Administrative Record—the remnants of the DAPA litigation,25 the threatened legal challenge,26 and the Attorney General’s advisory letter.27
Therefore, what did the Acting Secretary of DHS do? She opted for a six-month wind-down period instead of the chaotic possibility of an immediate termination, which would come at a time known only to the judge resolving a future challenge to the DACA program. This decision took control of a pell-mell situation and provided Congress—the branch of government charged with determining immigration policy—an opportunity to remedy it. Given the
25 See Admin. R., ECF No. 26-1 at 42–228. 26 See Admin. R., ECF No. 26-1 at 238–40. 27 See Admin. R., ECF No. 26-1 at 251.
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reasonable belief that DACA was unlawful, the decision to wind down DACA in an orderly manner was rational.
Accordingly, the Court finds Plaintiffs’ APA claims to lack merit; the rescission of DACA neither required notice-and-comment procedures, nor was it decided arbitrarily or capriciously.
d. Equal Protection Equal protection is the legal mechanism by which the law prevents disparate treatment between groups. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). A violative statute or action may provide for disparate treatment facially or in its application. See id. at 447–48. In reviewing legislation, which creates disparate impacts ‘as applied,’ courts review whether the action is covertly based on a suspect classification or if it can be plausibly explained on neutral grounds. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). Probative considerations include a history of hostility towards the group, the sequence of events leading to the government action, departures from previous policies, and the legislative history. See id. at 265–67. The level of judicial scrutiny depends on the nature of the class targeted for disparate treatment. The Complaint asserts that strict scrutiny should apply because the disparate treatment allegedly involves suspect classes—race, alienage, and national origin. See, e.g., Ambach v. Norwick, 441 U.S. 68, 84 (1979) (finding alienage as a suspect class). When strict scrutiny applies, the government has the burden to demonstrate a compelling state interest, for which the governmental action is narrowly tailored and the least restrictive means. See, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 308 (2013).
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The Government’s equal protection argument analogizes the rescission of DACA to “selective prosecution”—which is afforded a presumption of non-discriminatory motives absent “clear evidence to the contrary.” See ECF No. 27-1 at 58–61 (citing United States v. Armstrong, 517 U.S. 456, 463–68 (1996) where the court denied discovery on a selective prosecution claim regarding 24 drug-trafficking offenses (all of which were against African-American defendants)). Plaintiffs correctly note that the Armstrong court accepted the proposition that “the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.” Armstrong, 517 U.S. at 464 (1996). Plaintiffs aver that the DACA rescission was “a discriminatory policy decision (not a challenge to a particular prosecution) that has a discriminatory impact and was motivated by discriminatory animus.” See ECF No. 29 at 55 (noting that Hispanics comprise 93 percent of the 800,000 immigrants affected by DACA). To substantiate their claim, Plaintiffs cite to some of President Trump’s unfortunate, less-than-politically-correct, statements. See ECF No. 29 at 54.
Both sides miss the mark. While DACA was promulgated under a theory of prosecutorial discretion, its rescission was not based on an exercise of that discretion. Rather, its rescission was premised on a legitimate belief that DACA was unlawful and should be wound down in an orderly manner, while giving Congress a window to act and adopt an appropriate legislative solution. The Administrative Record—the basis from which the Court must make its judicial review—does not support the notion that it was targeting a subset of the immigrant population, and it does not support any supposition that the decision was derived on a racial animus. That is where the judicial inquiry should end.
The Court rejects Plaintiffs’ reliance on the President’s misguided, inconsistent, and occasionally irrational comments made to the media to establish an ulterior motive. See
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generally Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (finding that courts should defer to
any “facially legitimate and bona fide reason” for executive action and not “look behind the
exercise of that discretion”); Hamdan v. Rumsfeld, 548 U.S. 557, 623–24 n.52 (2006) (noting
that courts have never, “in evaluating the legality of executive action, deferred to comments
made by such officials to the media”); County of McCreary v. ACLU of Kentucky, 545 U.S. 844,
845 (2005) (warning courts, albeit in the context of the First Amendment, to refrain from “scrutinizing purpose” when it requires “judicial psychoanalysis of a drafter’s heart of hearts”).28
Although the DACA Rescission Memo is facially clear as to its purpose and reasoning,
Plaintiffs urge the Court to look behind it and find an allegedly discriminatory motivation—one
that Plaintiffs attempt to establish with some of the President’s remarks and statements.
However, Plaintiffs here fail to make the necessary factual showing to permit this Court to do so.
Albeit in the context of an Establishment Clause challenge, the Fourth Circuit recently explained
in the “travel ban” case that there is “a heavy burden on Plaintiffs, but not an insurmountable one
[in seeking to introduce such statements]. [Precedent] clearly affords the political branches
substantial deference,” but “also accounts for those very rare instances in which a challenger
plausibly alleges that a government action runs so contrary to the basic premises of our
Constitution as to warrant more probing review.” Int’l Refugee Assistance Project v. Trump,
No. 17-2231, 2018 WL 894413, at *12 (4th Cir. Feb. 15, 2018) (reviewing the standard set forth
28 See also Int’l Refugee Assistance Project v. Trump, No. 17-2231, 2018 WL 894413, at *102 (4th Cir. Feb. 15, 2018) (Niemeyer, J., dissenting):
Because of their nature, campaign statements and other similar statements, including Tweets, are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often susceptible to multiple interpretations, depending on the outlook of the recipient. . . . At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext.
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in Kleindienst v. Mandel, 408 U.S. 753 (1972) “through the lens of Justice Kennedy’s [concurring] opinion in” Kerry v. Din, 135 S. Ct. 2128 (2015)).
In that case, Chief Judge Gregory, writing for the majority, explained that Mandel requires courts to “first ask whether the proffered reason for the Proclamation is ‘facially legitimate and bona fide.’” Id. (citing Mandel, 408 U.S. at 770). Under Din, however, a district court “may ‘look behind’ the Government’s proffered justification for its action” upon “an ‘affirmative showing of bad faith,’ which [plaintiffs] must ‘plausibly allege with sufficient particularity.’” Id. (citing Din, 135 S. Ct. at 2139–41 (Kennedy, J., concurring)). However, while the plaintiffs in the “travel ban” case offered “undisputed evidence” of an “anti-Muslim bias,” see id. at *13, the Plaintiffs cannot here make a similarly substantial showing. The Fourth Circuit found that then-candidate Trump regularly disparaged Islam as a religion and repeatedly proposed banning Muslims from the United States. See id. at *13–*16. Implicit to the issue was a direct nexus between the discriminatory statements and the executive action in question in that case—a travel ban targeting predominantly Muslim nations.
The instant case is factually very different. The President certainly made statements of his strong views on immigration policy, including advocacy for the rescission of the DACA program.29 However, his statements have frequently shifted but have moderated since his election. He has referred to the Dreamers as “terrific people;” he has pledged to “show great heart;” and he has referred to Dreamers as “incredible kids.”30 He referred to the “DACA
29 See Gregory Krieg, Trump’s many shifting positions on DACA, from the campaign to right now, CNN (Jan. 25, 2018), https://www.cnn.com/2018/01/25/politics/donald-trump-positions-daca/index.html. 30 See id.
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situation” as a “very difficult thing for me. Because, you know, I love these kids.”31 He added that “the existing law is very rough. It’s very, very rough.”32
The rescission of the DACA program merely fulfills the duty of the executive branch to faithfully enforce the laws passed by Congress. Accordingly, no affirmative showing of bad faith can follow. In fact, the President actually urged Congress to pass Dreamer-protection legislation during DACA’s wind down period33—simply put, this case is wholly dissimilar to the “extraordinary case” regarding the recent “travel ban.”34 As a result, the Court need not go further than the facially legitimate motivation offered in the DACA Rescission Memo and supported by the Administrative Record.
Accordingly, the Court finds Plaintiffs’ equal protection claims to lack merit e. Procedural Due Process
Procedural due process ensures that the government must satisfy certain procedures prior to depriving a person of his or her rights. See Mathews v. Eldridge, 424 U.S. 319, 332–33 (1976). Procedural due process applies whenever the government seeks to deprive a person of a liberty or property interest. See id. Liberty interests include physical restraint, a substantial infringement of a fundamental right, harm to one’s reputation affecting another tangible interest, or the unjustified intrusion of one’s personal security. See, e.g., Vitek v. Jones, 445 U.S. 480, 488 (1980). Property interests include real property, personal property, intellectual property, or any legitimate claim of entitlement. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422,
31 See id. 32 See id. 33 See supra Note 15. 34 Accord Int’l Refugee Assistance Project v. Trump, No. 17-2231, 2018 WL 894413, at *13 (4th Cir. Feb. 15, 2018) (“In the extraordinary case before us, resolution of that question [regarding pretext] presents little difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual basis” for its actions, Din, 135 S. Ct. at 2140 (Kennedy, J., concurring in the judgment), here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself.”).
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429 (1982). Entitlements—rights to things like education, public employment, and welfare—are grounded in the law and cannot be removed except for cause. See id. In determining the amount of process owed, courts balance (1) the importance of the right the individual is trying to preserve, (2) the risk of erroneous deprivation of that right given the existing level of due process, and (3) the level of governmental burden for the additional levels of due process sought. See Eldridge, 424 U.S. at 334–35.
Plaintiffs allege that under DACA, Dreamers were afforded, and are now being deprived of, a number of protected interests, including the ability to (1) obtain employment authorization, (2) travel internationally, (3) attend schools, (4) pay into and receive payment from Social Security and disability, (5) secure other opportunities like obtaining bank accounts or credit cards, and (6) otherwise be considered “lawfully present.” See ECF No. 29 at 58.
First, Plaintiffs’ claim fails because procedural due process only applies to individualized deprivations, not policy-based deprivations for an entire class. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (holding that individualized hearings are unnecessary when impractical and when the challenged policy affects a large number of people; in these instances, the political process serves as an effective alternative).
Second, even assuming arguendo that due process did attach to class-wide policy deprivations, Plaintiffs’ due process claim would fail because DACA did not create an entitlement. Facially, the June 15, 2012 DACA Memo explicitly denied the creation of any such rights:
This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.
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Memorandum from U.S. Dep’t of Homeland Sec., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).
While entitlements are not always self-labeled or created with bright flashing lights, the exercise or restraint of prosecutorial discretion is not traditionally the sort of governmental action that creates substantive rights. The DACA Memo did not guarantee any individual immigrant particular benefits, and the DACA Rescission Memo did not curtail DHS’s discretion regarding individual immigration reviews. Therefore, even if due process could attach to DACA, no de facto entitlements were created by the program itself.
Accordingly, the Court finds Plaintiffs’ procedural due process claim to lack merit. f. Substantive Due Process
While procedural due process outlines the manner by which the government may deprive a person of his or her rights, substantive due process bars the government from depriving a person of a right altogether. See, e.g., Roe v. Wade, 410 U.S. 113, 167–68 (1973) (Stewart, J., concurring). If the right being deprived is a “fundamental right,” courts apply strict scrutiny; if the right being deprived is not fundamental, courts apply rational basis.
Certain rights have been adjudicated formally as fundamental (right to associate, right to educate one’s children, right to procreate, right to marry, etc.). E.g., Griswold v. Connecticut, 381 U.S. 479, 482–86 (1965). In determining whether a non-previously-adjudicated right is fundamental, courts have applied different approaches—whether the absence of the right would make other fundamental rights “less secure,” see id. at 482–83, whether the right is “deeply rooted in this Nation’s history and tradition,” see Washington v. Glucksberg, 521 U.S. 702, 720– 21 (1997) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)), and whether the
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right is a basic value “implicit in the concept of ordered liberty,” see Glucksberg, 521 U.S. at 720–21 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
In the instant case, Plaintiffs claim a “denial of fundamental fairness.” See ECF No. 29 at 63–64. However, for the “denial of fundamental fairness” to rise to the level of a substantive due process violation, it must be “so egregious” and “so outrageous” as “to shock the contemporary conscience.” See Manion v. N. Carolina Med. Bd., 693 F. App’x 178, 181 (4th Cir. 2017) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 850 (1998), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001)). Plaintiffs believe they have met this burden by alleging a discriminatory intent in DACA’s rescission—an allegation unsupported by the record before this Court.
The rescission of a policy relating to prosecutorial discretion does not shock the conscience of this Court. Absent congressional action, the benefits given to Dreamers by DACA were in potential violation of congressional immigration laws; the only thing that has changed is that deferred status will expire, and enforcement of immigration laws may recommence in the absence of action by Congress, which the President has requested. There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle. Furthermore, the election process, and not federal litigation, is the appropriate method for resolving any fairness implicated in DACA’s rescission.
Accordingly, the Court finds Plaintiffs’ substantive due process claim to lack merit. g. Estoppel
The doctrine of estoppel is traditionally founded in the principles of fraud as applied in contract law, but the doctrine may be applied elsewhere in the law as well. See generally W. Augusta Dev. Corp. v. Giuffrida, 717 F.2d 139, 141 (4th Cir. 1983) (discussing the outgrowth of
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the doctrine of estoppel as a claim against the government). In general, “equitable estoppel is comprised of three basic elements: (1) a voluntary misrepresentation of one party, (2) that is relied on by the other party, (3) to the other party’s detriment.” Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639, 646 (4th Cir. 2006). In this Circuit, when raising such a claim against the government, there is a heightened standard for the first element, and an additional showing of “affirmative misconduct” by the government actors. See Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003).
As with Plaintiffs’ substantive due process claim, estoppel cannot apply to DACA’s rescission. The rescission of a policy relating to prosecutorial discretion does not amount to a misrepresentation by the government. DACA was promulgated with an express disclaimer that it was not conferring any rights. Nothing in the DACA Memo or in DACA’s implementation suggested to Dreamers that the program was permanent, and individuals in the program were aware that their protections were subject to renewal every two years. DACA’s rescission lacks any serious injustice—let alone, affirmative misconduct by any of the defendants.
However, while estoppel does not apply to DACA’s rescission, it potentially would apply to any use for immigration enforcement of the information collected from Dreamers during DACA registrations. With regard to this narrow issue, and based on the evidence before it, the Court finds that the Government promised not to transfer or use the information gathered from Dreamers for immigration enforcement. See ECF No. 29 at 42–44, 60–61; ECF No. 29-3 at 15– 27, 32–41, 52–76, 96–98, 109–13. And now that the government is in possession of this information, the potential for use or sharing of it is theoretically possible.
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On the one hand, the Government claims that no changes have been made to the
information-sharing policy. However, at oral argument, counsel for the Government was unable
to provide any assurance that the Government would not make changes.
[Mr. Shumate:] The rescission policy that is being challenged here says nothing about the sharing of information for enforcement purposes. There’s nothing more that the plaintiffs have raised other than a speculative fear that this might happen in the future. But DHS has been quite clear and they said on the FAQ section –
The Court: Are you prepared to say that from representing the defendants that there is no intention of changing the informationsharing assurances that were given in connection with DACA?
Mr. Shumate: No. I’m not making that representation, Your Honor. Even from the beginning, DHS has been quite clear that this policy on information-sharing can change. . . . But they also I think take liberties with what that policy is. There has never been a promise or assurance that that information would never be changed. FAQ 19 quite clearly says that the information is generally protected and will not be shared for enforcement purposes, but there may be circumstances where it will be to adjudicate a DACA application or for law enforcement purposes if the individual meets the status of the test for notice to appear. But also quite clearly, DHS has said from the start that the information policy – sharing policy can change, but it has not. So that really should be the end of the debate about the information-sharing.
Tr. of Mot. Hr’g (Dec. 15, 2017) at 16–17.
The Court disagrees that this “should be the end of the debate about the information-
sharing.” Id. Logic would dictate that it is possible that the government, having induced these
immigrants to share their personal information under the guise of immigration protections, could
now use that same information to track and remove them. This potentially would be “affirmative
misconduct” by the government, and the Dreamers’ detrimental reliance would be self-evident in
the information-sharing itself.
Therefore, while the Government will not be enjoined from rescinding DACA, given the
substantial risk for irreparable harm in using Dreamers’ DACA-provided information, the Court
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will enjoin the Government from using information provided by Dreamers through the DACA program for enforcement purposes. In the event that the Government needs to make use of an individual Dreamer’s information for national security or some purpose implicating public safety or public interest, the Government may petition the Court for permission to do so on a case-by-case basis with in camera review.
IV. CONCLUSION In concluding this Opinion, the Court notes the recent opinion of Judge Gonzalo P.
Curiel, of the Southern District of California, in which he made observations that aptly apply to this case. In a case involving a challenge to President Trump’s proposed “border wall,” he noted that the case was “currently the subject of heated political debate,” but that in its review of the case, “the Court cannot and does not consider whether underlying decisions . . . are politically wise or prudent.” In re Border Infrastructure Envtl. Litig., No. CV 17-1215 GPC (WVG), 2018 WL 1071702, at *1 (S.D. Cal. Feb. 27, 2018). For this proposition, he cited the opinion of his fellow Indiana native, Chief Justice Roberts, in Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012): “Court[s] are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
The result of this case is not one that this Court would choose if it were a member of a different branch of our government. An overwhelming percentage of Americans support protections for “Dreamers,” yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, “a judge who likes every outcome he reaches is probably
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a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”35
This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.

Date: March 5, 2018

/s/ ROGER W. TITUS UNITED STATES DISTRICT JUDGE

35 Neil Gorsuch, Transcript of Opening Remarks at Confirmation Hearing, Comm. on the Judiciary (Mar. 20, 2017), https://www.judiciary.senate.gov/imo/media/doc/03-20-17%20Gorsuch%20Testimony.pdf.
30

 
 Nos. 18-1521 (L), 18-1522

In the United States Court of Appeals
for the Fourth Circuit
_______________________________________

CASA DE MARYLAND, et al., Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellees.
_______________________________________
On Appeal from the United States District Court for the District of Maryland, Greenbelt Division Case No. 8:17-cv-02942 (Hon. Roger W. Titus) _______________________________________

OPENING BRIEF OF APPELLANTS _______________________________________

Elizabeth J. Bower Kevin B. Clark Priya R. Aiyar WILLKIE FARR & GALLAGHER LLP 1875 K Street, NW Washington, DC 20006 (202) 303-1000 (202) 303-2252 (fax) ebower@willkie.com
Additional counsel listed on inside cover

John A. Freedman Emily Newhouse Dillingham ARNOLD & PORTER KAYE
SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@arnoldporter.com emily.dillingham@arnoldporter.com

July 2, 2018

Counsel for Plaintiffs-Appellants

Dennis A. Corkery WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 (202) 319-1010 (fax) dennis_corkery@washlaw.org

Ajmel A. Quereshi HOWARD UNIVERSITY SCHOOL
OF LAW 2900 Van Ness Street, NW Washington, DC 20008 (202) 216-5574 (202) 682-1312 (fax) aquereshi@naacpldf.org

Counsel for Plaintiffs-Appellants

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_A_rk_a_n_s_a_s_U_n_i_te_d_C__om__m_u_n_it_y_C_o_a_l_iti_o_n__________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_C_a_s_a_d_e_M__a_ry_la_n_d_________________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_T_h_e_C_o_a_li_ti_o_n_fo_r_H__um__a_n_e_I_m_m_i_g_ra_n_t_R_i_gh_t_s______________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_F_a_ir_Im__m_i_gr_a_ti_o_n_M__ov_e_m__e_nt__________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_Ju_n_t_a_f_o_r _P_ro_g_r_e_ss_i_ve__A_c_ti_o_n,_I_n_c_. _____________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_M_a_k_e_t_h_e_R_o_a_d_P_e_n_n_s_y_lv_a_n_ia_________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_M_ic_h_i_ga_n__U_n_it_e_d__________________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_O_n_e_A_m__e_ri_ca_____________________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_P_ro_m__is_e_A_r_iz_o_n_a_C__lin_i_c_a_n_d_U_n_i_d_os_U_S___________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information.

No. _1_8_-_1_5_2_1___

Caption: _C_a_s_a_D_e__M_a_ry_l_a_nd__v_. _D_H_S_______________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_S_e_e_a_tt_a_c_h_e_d_li_st__________________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is ________A_p_p_e_l_la_n_t ________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or

other publicly held entity?

YES NO

If yes, identify all such owners:

09/29/2016 SCC

- 1 -

4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))? YES NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors’ committee:

YES NO

Signature: _s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n__________________ Counsel for: _A_p_p_e_l_la_n_t_s_________________________

Date: _____J_u_ly__2_, _2_01_8______

CERTIFICATE OF SERVICE
************************** I certify that on ____J_u_ly__2_, _2_01_8_____ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:

_s_/ _J_o_h_n__A_._F_r_e_e_d_m__a_n_____________ (signature)
- 2 -

_______J_u_ly__2_,_2_0_1__8_______ (date)

Attachment List of Individual Appellants for Disclosure of Corporate Affiliations
and Other Interests
The following natural persons are appellants in this matter:
MARICRUZ ABARCA LUIS AGUILAR ANGEL AGUILUZ JOSE AGUILUZ JOSUE AGUILUZ MARIA JOSELINE CUELLAR BALDELOMAR MISSAEL GARCIA ANNABELLE MARTINES HERRA ELISEO MAGES HEYMI ELVIR MALDONADO BRENDA MORENO MARTINEZ JESUS EUSEBIO PEREZ NATHALY URIBE ROBLEDO ESTEFANY RODRGIUEZ J.M.O., a minor child, ADRIANA GONZALES MAGOS, next of friend to J.M.O. A.M., a minor child, ISABEL CRISTINA AGUILAR ARCE, next of friend to A.M.

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION .....................................................................................................1 JURISDICTIONAL STATEMENT ..........................................................................4 STATEMENT OF ISSUES PRESENTED FOR REVIEW ......................................4 STATEMENT OF THE CASE..................................................................................5 SUMMARY OF ARGUMENT ...............................................................................11 STANDARD OF REVIEW .....................................................................................13 ARGUMENT ...........................................................................................................14 I. The District Court Misapplied Federal Rule of Civil Procedure 56 and
the APA in Prematurely Granting Summary Judgment ................................14 A. The District Court’s Summary Judgment Ruling Failed To
Meet The Requirements of Rule 56 ....................................................15 B. The District Court Misapplied the APA in Granting Summary
Judgment on an Incomplete Administrative Record...........................20 II. The Court Erred in Granting Summary Judgment on the APA Claims ........24
A. The Rescission of DACA was Arbitrary and Capricious ...................24 1. The District Court Failed to Consider DHS’s Change in Policy and Failure to Account for the Significant Reliance Interests .....................................................................................27 2. The District Court Failed to Consider the Evidence of Bad Faith and Animus Underlying the Decision to Rescind DACA .......................................................................................29 3. The District Court Erred in Assessing DHS’s Purported Rationale ...................................................................................30
B. The DACA Rescission Required Notice and Comment .....................33
i

1. The Rescission Memo Established an Immediately Binding Norm and Precluded Agency Officials From Exercising Discretion ..................................................................................35
2. The Rescission of DACA Had a Significant Substantive Impact on DACA Recipients ....................................................37
III. The Court Erred in Granting Summary Judgment on the Equal Protection Claim ............................................................................................38
IV. The Court Erred in Granting Summary Judgment on the Due Process Claims ............................................................................................................47 A. The District Court Erred in Dismissing the Procedural Due Process Claims ....................................................................................47 B. The District Court Failed to Recognize That the Rescission of DACA and Changes to DHS’s Information-Sharing Policy Violated the Substantive Protections of the Due Process Clause .......53
CONCLUSION ........................................................................................................56 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
ii

TABLE OF AUTHORITIES

Cases

Page(s)

Alaska v. U.S. Dep’t of Transp., 868 F.2d 441 (D.C. Cir. 1989)............................................................................35

Am. Bus Ass’n v. United States., 627 F.2d 525 (D.C. Cir. 1980)............................................................................36

Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143 F. Supp. 2d 7 (D.D.C. 2001)........................................................................21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................................................................................14

Animal Legal Defense Fund v. Vilsack, 110 F. Supp. 3d 157 (D.D.C. 2015)....................................................................22

Baltimore Ctr. for Pregnancy Concerns v. Mayor, 721 F.3d 264 (4th Cir. 2013) ........................................................................15, 16

Batalla Vidal v. Nielsen, 279 F. Supp. 3d. 401 (E.D.N.Y. 2018) ...............................................................10

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)............................................................................................48

Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915)............................................................................................52

Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995) ........................................................................34, 36

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)............................................................................................37

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)............................................................................................20

Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987)................................................................35, 36, 37

iii

Consumer Energy Council v. F.E.R.C., 673 F.2d 425 (D.C. Cir. 1982)............................................................................34
Coyotl v. Kelly, 261 F. Supp. 3d 1328 (N.D. Ga. 2017)...............................................................50
Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982) ...............................................................................20
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011)................................................................................37
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016)..................................................................................26, 27
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)............................................................................................28
Friends of Back Bay v. U.S. Army Corps of Engineers, 681 F.3d 581 (4th Cir. 2012) ..................................................................24, 25, 33
Gonzales Torres v. U.S. Dep’t of Homeland Sec., No. 17-cv-1840, 2017 WL 4340385 (S.D. Cal. Sept. 29, 2017) ........................50
Greater Bos. Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970)............................................................................28
Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658 (D.C. Cir. 1978)............................................................................36
Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) ..............................................................................14
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)..............................................................................................42
Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999) ..............................................................................54
International Refugee Assistance Project (IRAP) v. Trump, 883 F.3d 233 (4th Cir. 2018), cert. granted, vacated on other grounds, No. 17-1270, 2018 WL 1256938 (Sup. Ct. June 28, 2018) ....12, 43, 45
iv

Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205 (4th Cir. 1989) ..............................................................................51
Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018) ........................................................................25, 27
Kapps v. Wings, 404 F.3d 105 (2d Cir. 2005) ...............................................................................53
Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62 (4th Cir. 2016) ................................................................................53
Kleindienst v. Mandel, 408 U.S. 753 (1972).....................................................................................passim
Latecoere Int’l, Inc. v. U.S. Dept. of Navy, 19 F.3d 1342 (11th Cir.1994) .......................................................................18, 30
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)............................................................................................48
Mallette v. Arlington Cty. Employees’ Supplemental Ret. Sys. II, 91 F.3d 630 (4th Cir. 1996) ................................................................................53
Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, No. 16-111, __ S.Ct. __, 2018 WL 2465172 (S. Ct. June 4, 2018)....................54
Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................................52
McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988)..........................................................................36
Medina v. U.S. Dep’t Of Homeland Sec., No. C17-0218, 2018 WL 2214085 (W.D. Wash. May 15, 2018) ......................38
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)..................................................................................25, 29, 30
Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992) ............................................................................35
v

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130 (4th Cir. 1993), cert. denied, 510 U.S. 1197 (1994) ......................46
N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012) ..............................................................................34
NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018)........................................................10, 31, 32
Nat’l Audubon Soc. v. Hoffman, 132 F.3d 7 (2d Cir. 1997) .............................................................................22, 29
Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) ..............................................................................31
Perry v. Sindermann, 408 U.S. 593 (1972)............................................................................................48
Plyler v. Doe, 457 U.S. 202 (1982)......................................................................................39, 43
Poller v. CBS, 368 U.S. 464 (1962)............................................................................................14
Puerto Rico Pub. Hous. Admin. v. U.S. Dep’t of Hous. & Urban Dev., 59 F. Supp. 2d 310 (D. P.R. 1999) .....................................................................44
Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294 (4th Cir. 2012) ..............................................................................17
Real Truth about Obama v. FEC, 575 F.3d 342 (4th Cir. 2009) ..............................................................................33
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018)............................................ 10, 28, 32-33
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304 (N.D. Cal. 2018)..............................................................55
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. C 17-05211, 2017 WL 4642324 (N.D. Cal. Oct. 17, 2017) .................. 30-31
vi

Richardson v. Town of Eastover, 922 F.2d 1152 (4th Cir. 1991) ............................................................................48
Roland v. United States Citizen and Immigration Servs., 850 F.3d 625 (4th Cir. 2017) ..............................................................................13
Romer v. Evans, 517 U.S. 620 (1996)............................................................................................54
Rydeen v. Quigg, 748 F. Supp. 900, 905-06 (D.D.C. 1990), aff’d, 937 F.2d 623 (Fed. Cir. 1991), cert. denied, 205 U.S. 1075 (1992) ..................................................44
Scinto v. Stansberry, 841 F.3d 219 (4th Cir. 2016), cert. denied, sub nom, Phillip v. Scinto, 138 S. Ct. 447 (2017)..................................................................18, 46, 51
SEC v. Chenery Corp., 318 U.S. 80 (1943)..............................................................................................31
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)............................................................................................42
Spath v. NCAA, 728 F.2d 25 (1st Cir. 1984).................................................................................40
Styrene Info. and Research Center v. Sebelius, 851 F. Supp. 2d 57 (D.D.C. 2012)......................................................................21
Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810 (4th Cir. 1995) ................................................................................40
Tafas v. Dudas, 530 F. Supp. 2d 786 (E.D. Va. 2008) .................................................................22
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ..............................................................................32
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015)............................................................26, 32
Trump v. Hawaii, No. 17-965, 2018 WL 3116337 (S. Ct. Jun. 26, 2018)...........................12, 42, 43
vii

Tummino v. Torti, 603 F. Supp. 2d 519 (E.D.N.Y. 2009) ..........................................................18, 29
Tummino v. Von Eschenbach, 427 F. Supp. 2d 212 (E.D.N.Y. 2006) ................................................................22
U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973)............................................................................................30
In re United States, 875 F.3d 1200 (9th Cir. 2017), affirmed sub nom. In re: United States, 138 S. Ct. 443 (2017) ..............................................................................23
United States v. Armstrong, 517 U.S. 456 (1996)............................................................................................43
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)..........................................................................18, 39, 40, 41
Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984)......................................................................20, 22
Washington v. Davis, 426 U.S. 229 (1976)......................................................................................39, 41
Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56 (9th Cir. 1994) ..................................................................................50
Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991) ..............................................................................14
Yick Wo v. Hopkins, 118 U.S. 356 (1886)............................................................................................39
Statutes
5 U.S.C. § 553....................................................................................................33, 34
5 U.S.C. § 706..............................................................................................11, 20, 23
5 U.S.C. § 706(2)(A)................................................................................................24
8 U.S.C. § 212(d)(5)(A) ...........................................................................................49
viii

8 U.S.C. § 1611(b)(2)...............................................................................................49 8 U.S.C. § 1611(b)(3)...............................................................................................49 8 U.S.C. § 1621(d) ...................................................................................................49 28 U.S.C. § 1291........................................................................................................4 28 U.S.C. § 1331........................................................................................................4 28 U.S.C. § 2201(a) ...................................................................................................4 42 U.S.C. § 2000d....................................................................................................49 Rules Fed. R. Civ. P. 12(b)(1)........................................................................................8, 10 Fed. R. Civ. P. 12(b)(6)..............................................................................................8 Fed. R. Civ. P. 56 ..............................................................................................passim Fed. R. Civ. P. 56(c).................................................................................................16 Fed. R. Civ. P. 56(d) ............................................................................................9, 16 Other Authorities 8 C.F.R. § 109.1 .......................................................................................................49 8 C.F.R. § 274a(a)(11) .............................................................................................49 8 C.F.R. § 274a(c)(14) .............................................................................................49 28 C.F.R. § 42.104(b)(2)..........................................................................................49 34 C.F.R. § 100.3(b)(2)............................................................................................49
ix

INTRODUCTION On September 5, 2017, the Government announced the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Established in 2012, DACA allowed individuals who were brought to the United States as children to apply for legal status, providing critical stability by allowing them to work, study, travel internationally, and live free from the risk of deportation. DACA was similar to a long line of other deferred action programs, and the Government continuously had defended its legality. The Government’s change of position announced on September 5 upended the lives of the 800,000 individuals granted DACA, as well their families and their communities. The circumstances of the September 5 decision leave no doubt that it rested on invidious racial discrimination. The decision followed repeated statements from senior Government officials, including the President, expressing anti-Latino animus and threatening Latino immigrants with expulsion. The rescission of DACA was consistent with those statements. Ninety-three percent of DACA recipients were Latino. And while rescinding DACA, the Government continued other deferred action programs with higher proportions of non-Latino beneficiaries. Procedural irregularities also signaled invidious purposes at work. Having continuously defended DACA as legal, the Government abruptly changed its
1

position on September 5 with no prior notice, no opportunity to comment, and no mechanism for individual recipients to be heard before losing their benefits. The Government’s approach was harmful and unfair.
Indeed, the Government flouted the most fundamental attribute of a fair administrative process: the requirement of a reasoned explanation for its decisions. In rescinding DACA, the Government offered only the most threadbare justification—a one-page letter from Attorney General Jefferson Sessions (the “Sessions Letter”) announcing without elaboration that DACA had unspecified “legal and constitutional defects” and a five-page memorandum from Acting U.S. Department of Homeland Security (“DHS”) Secretary Elaine Duke (the “Rescission Memo”) citing the same amorphous “legal and constitutional defects.” The Administrative Record subsequently produced to support the decision consisted of 14 documents totaling 256 pages, almost all of which were either copies of court decisions concerning a challenge to a different deferred action program or an Office of Legal Counsel opinion that DACA was legal. Despite the requirement that the Government carefully assess the impact of the change in position, neither the Sessions Letter nor the Rescission Memo nor the Administrative Record mentioned the impact of the rescission on the 800,000 DACA recipients and their families, communities, and employers, much less a reasoned explanation for its sudden reversal of position.
2

Ten lawsuits were filed across the country challenging the DACA rescission. Faced with the same Sessions Letter, Rescission Memo, and Administrative Record, the judges in nine of those suits (consolidated before three other courts) concluded that the DACA rescission was illegal and unsupported by the Administrative Record, and they ordered appropriate relief, including the entry of nationwide injunctions.
The District Court here was the lone outlier, not only finding that the DACA rescission was “valid and constitutional in all respects,” J.A. 1520, but also giving short shrift to problems other courts had found were substantial violations of the Administrative Procedure Act (“APA”). The other courts:
• concluded the Administrative Record was incomplete and insufficient to support the decision, J.A. 1377-79, 1453-54;
• ordered discovery to proceed, given the inadequate Administrative Record, J.A. 1377;
• recognized that the “arbitrary and capricious” standard required an analysis of whether the decision was “in accordance of the law,” J.A. 1390, 1454. Those courts found the rescission was based on a “flawed legal premise” (J.A. 1390, 1454) and reflected an “obvious factual mistake,” J.A. 1465, 1395-96;
• noted the disparate impact of terminating a program that was 93 percent Latino, J.A. 1420; and
• noted the legal significance of the expressions of “racial animus towards Latinos” by the President. J.A. 1420.
3

The District Court discounted, ignored, or quarreled with each and every one of these points. A review of the District Court’s treatment of Rule 56, the APA, and the applicable Equal Protection and Due Process precedent confirm that this Court should reverse and remand this case.
JURISDICTIONAL STATEMENT The District Court’s jurisdiction was invoked under 28 U.S.C. §§ 1331 and 2201(a). J.A. 47. This Court has jurisdiction under 28 U.S.C. § 1291. On March 5, 2018, the District Court entered its order granting in part and denying in part the Appellees’ motion for summary judgment and granting in part Appellants’ request for injunctive relief. J.A. 1519-20. On March 15, the District Court entered an order modifying the scope of that injunctive relief. J.A. 1531. The District Court entered an amended order later that day, reiterating its ruling on summary judgment and injunctive relief, declaring that the DACA rescission was “valid and constitutional in all respects,” and directing the Clerk of Court to close the case. J.A. 1532-33. Appellants filed a timely notice of appeal on April 27, 2018, J.A. 1534-36, and the Appellees filed a notice of appeal on May 4, 2018, J.A. 1537-38.
STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Whether the District Court erred in granting summary judgment (a) where the Administrative Record produced by Appellees was facially incomplete;
4

(b) without permitting Appellants to conduct any discovery; and (c) where there were material facts in dispute.
2. Whether the District Court erred in granting summary judgment for Appellees with respect to Appellants’ Administrative Procedure Act claims by failing to recognize that the rescission of DACA was arbitrary and capricious and that the Government’s action constituted a substantive determination requiring notice and comment.
3. Whether the District Court erred in granting summary judgment for Appellees with respect to Appellants’ Equal Protection claims by applying an improper and overly deferential standard of review and failing to construe facts in the light most favorable to Plaintiffs.
4. Whether the District Court erred in granting summary judgment on Appellants’ Due Process claims by failing to recognize that (a) DACA created constitutionally protected interests, the mass rescission of which violated due process; and (b) the rescission of DACA and changes to DHS’s informationsharing policy violated substantive due process rights.
STATEMENT OF THE CASE Plaintiffs are sixteen individuals who participated in or were eligible for the DACA program, along with nine social service organizations that serve applicants for and recipients of DACA program benefits. J.A. 47-57. The DACA program
5

allowed immigrants who were brought to the United States as children (known as “Dreamers”)—who thus were in no way culpable—to apply for legal status. J.A. 40-41, 58-60. Many of these individuals were brought by parents fleeing violence and horrific circumstances in their countries of origin or economic hardship, and the DACA program gave them the ability to live in the United States free from the risk of deportation. J.A. 40, 44, 50-57.
The Government publicly promoted participation in the DACA program with the promise that it would make recipients eligible for certain rights and privileges associated with lawful presence in the United States, including the right to receive work permits and travel internationally. J.A. 41-42, 60-63. The Government also assured applicants that their personal information would not be used for immigration enforcement. J.A. 42-43, 63-68.
On September 5, 2017, Attorney General Jefferson Sessions announced the rescission of DACA. J.A. 44, 72-73. Hours later, then-Acting Homeland Security Secretary Elaine Duke released the Rescission Memo directing the Government to immediately cease accepting new DACA applications and to stop issuing to Dreamers work permits and permission to travel internationally. J.A. 44-45, 7375. A few days later, DHS issued guidance hedging its prior commitment to Dreamers to keep their applicant information from enforcement officials. J.A. 45, 75-80. These actions upended the lives of almost 800,000 Dreamers, ending their
6

ability to remain in the United States legally, to continue working, to enroll in
college, and to lead the lives they had established based on DACA’s grant of
forbearance. J.A. 50-57, 73-75, 1237-39, 1242-45, 1248-51.
On October 5, 2017, Plaintiffs sued DHS, Acting Secretary Duke, Attorney
General Sessions, and other Government officials and agencies in the U.S. District
Court for the District of Maryland. J.A. 37-97. The Complaint asked the Court to
enjoin and declare illegal the termination of the DACA program, as well as the
Government’s threat to share personal information of DACA applicants and
beneficiaries with immigration enforcement authorities, under the APA, the Fifth
Amendment’s Due Process and Equal Protection guarantees, and common law
estoppel. J.A. 85-96. The Complaint:
• Identified the anomaly that DACA program enrollees were 93 percent Latino, while other deferred action programs that were not predominantly Latino continued, J.A. 46, 58-59, 90, 1095;
• Documented a string of 22 public statements by the President, Attorney General, and other senior Government officials prior to the DACA rescission threatening expulsion or otherwise expressing antiLatino animus. Among other things, the Complaint noted the President’s statements that Latino immigrants were “criminals,” “rapists,” “thugs,” “bad hombres,” and “true animals,” were in conjunction with his threats that “we’re going to get them out,” “they are finished,” and “we’re getting them out,” J.A. 46, 69-72, 76-79, 83-84, 1096; and
• Identified significant procedural irregularities in the rescission of DACA, including the failure to provide prior notice of the reversal of the Government’s long-standing position that DACA was lawful or to
7

offer any explanation for the decision beyond the barest of reasoning. J.A. 82-85, 90-93, 1096-99. See generally J.A. 37-97. By a letter dated October 10, 2017 and at a hearing on November 1, 2017, Plaintiffs requested leave to commence discovery prior to the Government’s response to the Complaint. J.A. 98-99, 100-123. The District Court orally denied that request at the hearing on November 1. J.A. 30, 109-111, 121. On November 15, 2017, the Government filed the Administrative Record, J.A. 129-384, and certified that it included only “non-privileged documents that were actually considered” by Acting Secretary Duke. J.A. 127. The filed record consisted of 14 documents totaling 256 pages; 217 pages were copies of court decisions concerning a different deferred action program, and 32 pages were a Department of Justice Office of Legal Counsel opinion confirming the legality of the DACA program. J.A. 125-384. The record did not include any materials considered by other participants in the decision-making process; any cost or legal analysis of the impact of the decision on DACA recipients, their families, employers, and communities; or any justification for the change in the Government’s longstanding legal positions beyond a few conclusions devoid of any analysis. That same day, the Government moved to dismiss for lack of jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6) and in the
8

alternative for summary judgment under Rule 56 (“Motion”). J.A. 385-86. Plaintiffs filed an opposition with supporting declarations on November 28. J.A. 461-1252. This filing included a statement of material facts as to which there was a genuine dispute, J.A. 473-476, and public records further substantiating the procedural irregularities, as well as other evidence underpinning the APA, Due Process, and estoppel claims. J.A. 531-1093. The opposition also included a Rule 56(d) declaration explaining the need for discovery on the completeness of the Administrative Record, as well as discovery on the constitutional claims. J.A. 1094-1105. The Rule 56(d) declaration attached draft discovery requests, as well as discovery that had been propounded in parallel proceedings seeking, among other things, discovery relevant to the incompleteness of the Administrative Record; Plaintiffs’ intentional discrimination claim (including further evidence of animus by senior Government officials regarding Latinos, evidence regarding the history leading up to the rescission decision, departures from agency practice, and the discriminatory impact of the decision); and Plaintiffs’ due process and estoppel claims (concerning the Government’s representations regarding benefits and data privacy). J.A. 1106-1234.
On December 11, 2017, the District Court issued an order giving notice “that it may grant summary judgment for the nonmovants (Plaintiffs).” J.A. 1290. Oral argument was held on December 15, 2017. J.A. 32, 1292-1358.
9

Following oral argument, Plaintiffs submitted notices of supplemental authority noting that two other District Courts considering similar challenges had enjoined the Government’s rescission of DACA. J.A. 1359-1424 (Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018)). J.A. 1429-1485 (Batalla Vidal v. Nielsen, 279 F. Supp. 3d. 401 (E.D.N.Y. 2018)). Since then, a third court has also found the DACA rescission to be arbitrary and capricious. NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018).
On March 5, 2018, the District Court granted in part and denied in part the Government’s Motions. Specifically, the Court denied the Government’s Rule 12(b)(1) motion, finding that Plaintiffs had standing and rejecting the Government’s arguments that the claims were not justiciable. The Court then granted summary judgment to the Government on all counts of the Complaint with the exception of Plaintiffs’ estoppel claim. The Court granted summary judgment to Plaintiffs on the estoppel claim concerning the sharing of DACA applicant information and it entered an injunction prohibiting the Government from using or sharing applicant-provided information through the DACA program for immigration-enforcement or deportation purposes. J.A. 1489-1520. On March 15, the District Court entered a stipulated order clarifying the scope of the injunctive relief. J.A. 1531-33. Plaintiffs timely filed a notice of appeal on April 27, 2018, and the Government filed a notice of appeal on May 4, 2018. J.A. 1534-38.
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SUMMARY OF ARGUMENT This case is an outlier. Three other courts have considered the issues presented here, and all three reached precisely the opposite conclusion than the District Court reached here. The other courts were right. The District Court’s grant of summary judgment for the Government rests on a series of legal errors, each sufficient by itself to require reversal and remand. First, the District Court misapplied Rule 56. It did so by granting summary judgment without allowing the requested discovery and without requiring the moving party to submit a statement of undisputed facts. And it did so by failing to construe critical facts and inferences in the light most favorable to the Plaintiff. The District Court similarly misapplied the APA judicial review provisions by failing to ensure its review was conducted based on the “whole record,” 5 U.S.C. § 706, when the 14-document, 256-page Administrative Record submitted by the Government was glaringly incomplete. Second, in dismissing the APA claims, the District Court failed to apply the correct standards for assessing whether agency action is arbitrary and capricious. Both the agency and District Court failed to consider important aspects of the problem, including the Government’s lack of explanation for its reversal of position and the reliance interests of 800,000 DACA recipients (as well as their families, employers, and communities). The District Court also disregarded this
11

Court’s precedent in excusing the Government’s failure to provide notice and an opportunity to comment before rescinding DACA.
Third, in dismissing the Equal Protection claim, the District Court applied the wrong standard of review, holding incorrectly that this Court’s decision in International Refugee Assistance Project (IRAP) v. Trump, 883 F.3d 233 (4th Cir. 2018) (“IRAP”), cert. granted, vacated on other grounds, No. 17-1270, 2018 WL 1256938 (Sup. Ct. June 28, 2018) (overturning the judgment of the Fourth Circuit while limiting the analysis to individuals yet to be admitted into the United States), mandated deferential review under Kleindienst v. Mandel, 408 U.S. 753 (1972). As the Supreme Court has now reiterated, the Mandel standard is predicated on the Government’s national security powers and it applies when individuals are seeking entry into the United States. Trump v. Hawaii, No. 17-965, 2018 WL 3116337 (S. Ct. Jun. 26, 2018). The Mandel standard is not the right one here because (i) the Government raised no national security interests in rescinding DACA, and (ii) the Plaintiffs are claiming intentional discrimination against persons already in the United States, dictating more rigorous standards of review for Government action. The District Court also failed to construe in the light most favorable to non-movant Plaintiffs significant evidence of animus, the events leading to the termination, the Government’s departures from normal agency procedures, the discriminatory
12

impact of the rescission on DACA recipients, and the striking coalescence of all these factors at the same time for the same decision.
Fourth, in dismissing the Due Process claim, the District Court overstepped its role in deciding a summary judgment motion and failed to credit Plaintiffs’ allegations and evidence regarding each of the rights and benefits that the Government had conferred on DACA recipients, and it misapplied precedent in concluding that the Due Process clause did not apply to the stripping of these rights en masse. The District Court also failed to construe in the light most favorable to the non-movant Plaintiffs the evidence of a substantive Due Process violation (the overtly anti-Latino statements by senior Government officials). And the District Court dismissed without analysis the Plaintiffs’ claim that the threat to use applicant information in immigration enforcement proceedings violated substantive Due Process.
For each of these reasons, and all of them together, this Court should reverse and remand this matter.
STANDARD OF REVIEW An appellate court reviews de novo district court orders granting summary judgment. Roland v. United States Citizen and Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017). Summary judgment is appropriate only when the record shows there is no genuine issue of material fact. Fed. R. Civ. P. 56. The Court
13

must determine “whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
In making this determination, this Court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the nonmoving party. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). It must also draw all inferences in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Particularly where motive and intent play “leading roles,” summary judgment should be granted “sparingly.” Poller v. CBS, 368 U.S. 464, 491 (1962). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255. Failure to credit plausible evidence offered by a party, or the failure to draw inferences in favor of the non-movant, requires reversal.
ARGUMENT I. The District Court Misapplied Federal Rule of Civil Procedure 56 and
the APA in Prematurely Granting Summary Judgment Notwithstanding the momentous issues at stake in this litigation, the District Court made some very basic procedural errors. The District Court erred in granting summary judgment on an incomplete Administrative Record and without
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any opportunity for discovery. First, the District Court misapplied Rule 56 with respect to all claims by refusing to afford Plaintiffs the opportunity to conduct discovery, by failing to consider material facts in dispute, and by failing to construe certain key facts and reasonable inferences therefrom in the light most favorable to the non-moving Plaintiffs. Second, the District Court ruled on Plaintiffs’ APA claims without establishing that the entire record was before it, in violation of the APA. For each of these reasons, the Court should reverse and remand.
A. The District Court’s Summary Judgment Ruling Failed To Meet The Requirements of Rule 56
The District Court misapplied Rule 56 in three ways: (1) it failed to afford Plaintiffs a reasonable opportunity for discovery; (2) it failed to consider Plaintiffs’ statement of material facts in dispute; and (3) it failed to construe facts in the light most favorable to Plaintiffs.
First, the District Court improperly adjudicated the Government’s alternative Rule 56 motion without affording Plaintiffs “a reasonable opportunity for discovery.” Baltimore Ctr. for Pregnancy Concerns v. Mayor, 721 F.3d 264, 281 (4th Cir. 2013) (en banc) (citations and internal punctuation omitted). This failure amounts to clear error: a district court “must refuse summary judgment where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.’” Baltimore Ctr., 721 F.3d at 280 (citation omitted).
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From the outset and throughout the course of the litigation, Plaintiffs requested discovery on their claims. J.A. 32, 98-99, 106, 115-16, 120, 477-78, 1094-1105, 1106-1234. To this end, Plaintiffs drafted and included with their Rule 56(d) affidavit model discovery that had been propounded in parallel proceedings, as well as draft supplemental discovery requests. J.A. 1106-1234.
It is axiomatic that “the summary judgment process presupposes the existence of an adequate record.” Baltimore Ctr., 721 F.3d at 280 (citation omitted). Yet in its decision, the District Court failed to address Plaintiffs’ Rule 56(d) affidavit or their proposed discovery. J.A. 1094-1105. The District Court further failed to explain why it thought discovery was unnecessary prior to granting summary judgment on Plaintiffs’ claims.
Second, the District Court failed to consider or address Plaintiffs’ statement of material facts as to which there is a genuine dispute, J.A. 473-78, or the Government’s failure to provide the required statement of undisputed material facts. Fed. R. Civ. P. 56(c). Such failure also required the District Court to deny the Government’s motion: “where the movant fails to fulfill its initial burden of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied even if no opposing evidentiary matter is presented, for the non-movant is not required to rebut an insufficient
16

showing.” Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294,

299 (4th Cir. 2012) (emphasis added and citation omitted).

The District Court wholly failed to address Plaintiffs’ statement of material

facts in dispute. J.A. 473-476. Among other things, Plaintiffs’ statement

contained evidence of material facts (disputed by the Government) that:

(i)

the decision to rescind DACA followed a long series of threats and

derogatory statements by senior Government officials against

Latinos, J.A. 46, 69-72, 76-79, 474;

(ii) 93 percent of DACA beneficiaries were Latino, J.A. 46, 90, 474;

(iii) at the same time the Government rescinded DACA, it left in place numerous other deferred action programs that did not impact predominantly Latino populations, J.A. 40-41, 58-59, 90, 475, 1363-70, 1438-41;

(iv) there were procedural irregularities leading up to the DACA rescission, including suspension of renewal notices, failure to abide by the DACA program Standard Operating Procedures (“SOPs”), failure to use notice and comment procedures, offering only the barest of reasons for the decision, and the reversal of long-standing Government positions that DACA was lawful, J.A. 72-75, 81-82, 85-87, 91-93, 474-76; 588-95; and

(v) the Government repeatedly promoted and represented to DACA recipients prior to the rescission that they would be allowed to work, study, travel internationally, live free from the fear of deportation, and their application information would not be shared with immigration enforcement officials, J.A. 42, 60-63, 86-87, 473.

This evidence, at a minimum, raised issues of material disputed facts that should

have precluded the District Court from granting summary judgment in favor of the

Government.

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Third, at three critical points in its analysis, the District Court failed to view “the facts and the reasonable inferences therefrom in the light most favorable to the nonmoving party.” Scinto v. Stansberry, 841 F.3d 219, 227 (4th Cir. 2016) (citation omitted); cert. denied, sub nom, Phillip v. Scinto, 138 S. Ct. 447 (2017).
a. An agency action is arbitrary and capricious if based on invidious criteria. See, e.g., Latecoere Int'l, Inc. v. U.S. Dept. of Navy, 19 F.3d 1342, 1356 (11th Cir.1994); Tummino v. Torti, 603 F. Supp. 2d 519, 542 (E.D.N.Y. 2009). Evidence of invidious intent is also relevant to establishing a Fifth Amendment violation. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 26364 (1977). The Complaint cites 22 separate statements by senior Administration officials, including the President, threatening or otherwise revealing racial animus against Latinos in the period preceding the decision to rescind DACA. J.A. 46, 6972, 76-79. All 22 statements are public statements and were gathered without the benefit of discovery; Plaintiffs requested the opportunity to conduct discovery regarding non-public evidence of animus. J.A. 32, 98-99, 106, 115-16, 120, 47778, 1094-1105, 1106-1234.
Notwithstanding this evidence, the District Court “reject[ed] Plaintiffs’ reliance on the President’s . . . comments . . . to establish an ulterior motive,” observing the President’s views “have moderated since his election,” and selectively citing comments made by the President that neither side put into
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evidence. J.A. 1508-11. The District Court’s selection of extra-record and postdecision statements was not balanced and failed to consider notorious postdecision statements from Government officials that are as incendiary as those cited in the Complaint. And the District Court failed to draw the reasonable inference that given these 22 public statements, discovery would have revealed more incendiary anti-Latino statements made in private.
b. Although the District Court acknowledged Plaintiffs’ evidence that DACA beneficiaries were overwhelmingly (93 percent) Latino, J.A. 1508, it ignored Plaintiffs’ evidence that the Government allowed other deferred action programs with higher Caucasian or Asian participation to continue. J.A. 40-41, 46, 58-59, 90, 474-75. This evidence was central to Plaintiffs’ Equal Protection claim.
c. The District Court failed to acknowledge or otherwise consider Plaintiffs’ evidence that there were substantial procedural irregularities in the decision to terminate DACA, including DHS’s (i) unannounced decision to suspend mailing of renewal notices to DACA recipients several months before rescission; (ii) changed position from its commitment not to share applicant information for enforcement purposes; (iii) failure to abide by the DACA program SOPs; (iv) offer of only the barest of records to document the basis for the decision; and (v) abandonment of its long-standing position on DACA’s legality. J.A. 45-46, 72-75, 81-87, 91-93, 132-
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64, 474-76, 588-95, 602, 609, 714-977, 1092-93. This evidence was central to Plaintiffs’ APA, Due Process, and estoppel claims.
B. The District Court Misapplied the APA in Granting Summary Judgment on an Incomplete Administrative Record
The District Court granted summary judgment on Plaintiffs’ APA claims without addressing Plaintiffs’ contention that the Administrative Record was incomplete. The APA requires that reviewing courts examine the “whole record.” 5 U.S.C. § 706. A “District Court could not properly grant summary judgment when such a basic factual issue [as to the completeness of the Administrative Record] was in dispute, without at least permitting plaintiffs some limited discovery to explore whether some portions of the full record were not supplied to the Court . . . . This is particularly true in a case like this, where there is a strong suggestion that the record before the Court was not complete . . . .” Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20 (1971) (reversing and remanding grant of summary judgment for further proceedings to complete the Administrative Record); Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (same).
DHS certified that the Administrative Record was limited to only “nonprivileged documents that were actually considered by Elaine C. Duke . . . .” J.A. 127 (emphasis added). Before the District Court, Plaintiffs noted deficiencies in
20

the Administrative Record demonstrating it was incomplete. J.A. 531-34, 10941105. In failing to address these deficiencies or ensure the record was complete, the District Court misapplied the APA.
First, the District Court misapplied the APA by failing to recognize that when an agency decisionmaker bases her decision “on the work and recommendations of subordinates, those materials should be included [in the Administrative Record] as well.” Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior,143 F. Supp. 2d 7, 12 (D.D.C. 2001) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993)). “[T]he mere fact that [those documents] were not ultimately passed on to the final decisionmaker does not lead to the conclusion that they were not before the agency.” Styrene Info. and Research Center v. Sebelius, 851 F. Supp. 2d 57, 64 (D.D.C. 2012). Plaintiffs identified nineteen current or former DHS employees and another six individuals from other agencies who were involved in the decision to rescind DACA whose records were not included in the Administrative Record. J.A. 1100. The exclusion of any work or recommendations from other agency officials who were involved in the decision to rescind DACA was enough to indicate that the Administrative Record was incomplete.
Second, the District Court misapplied the APA by failing to recognize that an Administrative Record is not properly limited only to documents “actually
21

considered” by the decisionmaker: “[A]n agency may not exclude information on the ground that it did not ‘rely’ on that information in its final decision.” Tafas v. Dudas, 530 F. Supp. 2d 786, 793 (E.D. Va. 2008) (citation omitted). A contrary rule “might allow a party to withhold evidence unfavorable to its case . . . .” Walter O. Boswell Mem’l Hosp., 749 F.2d at 792. DHS cannot “skew the record by excluding unfavorable information but must produce the full record that was before the agency at the time the decision was made.” Animal Legal Defense Fund v. Vilsack, 110 F. Supp. 3d 157, 159-60 (D.D.C. 2015) (citation omitted). Plaintiffs demonstrated that the Administrative Record contained no materials explaining prior decisions to maintain the DACA program or the Government’s departure from its prior view that DACA was legal. J.A. 498, 1094-1105.
Third, the District Court misapplied the APA by failing to recognize that evidence of “bad faith or improper behavior by agency decisionmakers serves as a basis for expanding the scope of review, and thereby the scope of discovery . . . .” Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 230 (E.D.N.Y. 2006); see also Nat’l Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997). In granting summary judgment, the District Court failed to consider evidence of bad faith and improper behavior by Government officials, including evidence of racial animus (e.g., the 22 statements referencing Latino as “criminals,” “thugs” and threatening expulsion) and substantial departures from administrative practice (e.g., the
22

reversal of long standing Government position that DACA was legal with de minimis reasoning). J.A. 461-530, 1094-1105.
In declining to permit the limited discovery requested by Plaintiffs to ascertain whether the Administrative Record was complete, the District Court failed to address any of these points. The District Court then proceeded to conduct its review of an Administrative Record that, at the time, had been declared incomplete by two other courts. J.A. 1099.1
The APA specifically requires judicial review to be conducted based on the “whole record.” 5 U.S.C. § 706. The District Court prematurely granted summary judgment on a demonstrably incomplete Administrative Record.
Accordingly, this court should reverse and remand the case to allow for discovery and further proceedings.
1 Although the Government sought mandamus, the orders to supplement the record were affirmed by the appellate courts. See In re Nielsen, No. 17-3345 (2d Cir. Dec. 27, 2017); In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017) (“the notion that the head of a United States agency would decide to terminate a program giving legal protection to roughly 800,000 people based on 256 pages of publicly available documents is not credible”) (footnotes omitted), affirmed sub nom. In re: United States, 138 S. Ct. 443, 445 (2017) (directing District Court to rule on the Government’s 12(b)(1) jurisdictional motion and then to consider whether “amendments to the record are necessary and appropriate”).
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II. The Court Erred in Granting Summary Judgment on the APA Claims The District Court erred in granting summary judgment on Plaintiffs’ APA
claims. First, the District Court failed to recognize that the Government’s action was arbitrary and capricious. Second, the District Court failed to conclude that the Government’s decision was a substantive determination requiring notice-andcomment.
A. The Rescission of DACA was Arbitrary and Capricious In assessing the Government’s action, the District Court failed to properly analyze whether the DACA rescission was arbitrary and capricious. A reviewing court must set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).2 This Court has emphasized that “the arbitrary-and-capricious standard does not ‘reduce judicial review to a rubber stamp of agency action.’” Friends of Back Bay v. U.S. Army Corps of Engineers, 681 F.3d 581, 586-87 (4th Cir. 2012) (citation omitted). Rather, the court “must ‘engage in a ‘searching and careful’ inquiry of the record,’ ‘so that we may ‘consider whether the agency considered the relevant factors and whether a clear error of judgment was made.’” Id. (citation omitted).
2 As discussed below, Plaintiffs also claim that the DACA rescission violates the Equal Protection and Due Process guarantees of the Fifth Amendment of the Constitution, and accordingly, as an unconstitutional agency action, it would also be contrary to law in violation of 5 U.S.C. § 706(2)(A).
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It is axiomatic that “an agency must give adequate reasons for its decisions.”
Jimenez-Cedillo v. Sessions, 885 F.3d 292, 297 (4th Cir. 2018). In assessing
whether DHS “articulate[d] a satisfactory explanation for its action including . . .
[a] rational connection,” the District Court should have:
consider[ed] whether the decision was based on a consideration of the relevant factors . . . [including] on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
42-44 (1983) (“State Farm”). In performing the review function, “reviewing
court[s] should not attempt . . . to make up for such deficiencies” by supplying a
reasoned basis for an agency action “that the agency itself has not given.” State
Farm, 463 U.S. at 43 (citation omitted). If “an agency’s decision [is] unreasonable
as a matter of law, it is likely to have been arbitrary and capricious.” Friends of
Back Bay, 681 F.3d at 587 (citation omitted). And when an agency changes its
position, it “must ‘provide a reasoned explanation for the change . . . display[ing
an] awareness that it is changing position and show that there are good reasons for
the new policy.’” Jimenez-Cedillo, 885 F.3d at 298 (quoting Encino Motorcars,
LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016)). A change in policy further
requires the agency to address the “serious reliance interests” “engendered” “[by]
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long standing policies.” Encino Motorcars, 136 S. Ct. at 2126 (internal quotations and citation omitted).
The District Court did not engage in any of this analysis, concluding that its scope of review was “narrow” and limited to determining whether there was a “satisfactory explanation” for the action. J.A. 1505-07.
As the other courts considering the DACA rescission have now concluded, it is clear that the decision to rescind DACA was arbitrary and capricious. The Government: (1) failed entirely to consider important aspects of the problem, including the serious reliance interests created by the five-year old DACA program and the reversal of long-standing positions; (2) acted with improper motive; and (3) asserted a “litigation risk” rationale unsupported by the Administrative Record, including making factual and legal errors in concluding that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, [and] it is likely that potentially imminent litigation would yield similar results with respect to DACA.”3 J.A. 379. This Court should reverse and remand.
3 “DAPA” refers to the Deferred Action for Parents of Americans and Lawful Permanent Residents program, which was proposed in November 2014 and enjoined in February 2015 before it was implemented. Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015).
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1. The District Court Failed to Consider DHS’s Change in Policy and Failure to Account for the Significant Reliance Interests
The District Court ignored DHS’s failure to consider the existing reliance interests affected by the rescission of DACA, contrary to Supreme Court directives. Reliance interests are created where the regulation in question has been in place for more than a de minimis period of time and where the regulated population has structured activities “against [the] background understanding” of the regulation. Encinco Motorcars, 136 S. Ct. at 2126. Unless the Administrative Record explicitly accounts “for the prospect that its prior policy may have ‘engendered serious reliance interests,’” and the impact of the new policy on those interests, the new policy must be set aside as arbitrary and capricious. See Jimenez-Cedillo, 885 F.3d at 299-300 (quoting Encino Motorcars, 136 S. Ct. at 2126).
In this case, the five-year-old DACA program has engendered serious reliance interests for the 800,000 direct DACA beneficiaries. Since the establishment of the DACA program in 2012, recipients have used their legal status to receive a host of benefits and to enjoy freedom from fear of deportation as a result of their deferred action status. The rescission decision immediately ended some of those protections and benefits, while phasing out the rest, without considering the reliance interests created. Employers, educational institutions,
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communities, and family members of DACA recipients similarly relied on the program. See Regents of the Univ. of Cal., 279 F. Supp. 3d at 1045. None of this is discussed in the Administrative Record.
Similarly, the Government had repeatedly affirmed the legality of DACA— in a 2014 Office of Legal Counsel opinion, in litigation in other courts, and in correspondence with Congress. J.A. 132-164, 531-35, 1091-93. At two earlier junctures in 2017, the Government decided to maintain the program. J.A. 531-35, 600-06, 607-10. These actions promoted reliance on the program by DACA recipients and others. In such circumstances, reasoned agency decision-making “demand[s] that [the agency] display awareness that it is changing position” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis in original and internal citation omitted). See generally Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970) (“[A]n agency changing its course must supply a reasoned analysis . . . .”) (footnotes omitted).
Such analysis is entirely lacking from the Administrative Record. Neither the Rescission Memo nor anything else in the Administrative Record cites any facts or changed circumstances that supported the change. Rather, the Administration was faced with exactly the same facts available at the time the
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DACA program was established. This is a textbook example of “arbitrary” agency action.
The reliance interests and change from the prior policy were “important aspect(s) of the problem,” State Farm, 463 U.S. at 43, that the agency and the District Court ignored.
2. The District Court Failed to Consider the Evidence of Bad Faith and Animus Underlying the Decision to Rescind DACA
The District Court failed to consider much of the evidence of anti-Latino animus by senior Administration officials that was presented in the Complaint. This error manifested itself in two ways. First, as discussed above, the District Court refused to compel the Government to produce, inter alia, any additional, non-public evidence of animus that may have underlay the decision. See Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (“an extra-record investigation by the reviewing court may be appropriate when there has been a strong showing in support of a claim of bad faith or improper behavior on the part of agency decisionmakers . . . .”).
Second, the District Court failed to evaluate appropriately the significance of the evidence of discriminatory animus to the Government’s decision making. For purposes of the APA, “proof of subjective bad faith by [agency decision-makers] . . . generally constitutes arbitrary and capricious action.” Tummino, 603 F. Supp. 2d at 542 (E.D.N.Y. 2009) (citations omitted) (collecting cases). See also
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Latecoere Int'l, Inc. v. U.S. Dept. of Navy, 19 F.3d 1342 (11th Cir. 1994) (finding agency action arbitrary when motivated by impermissible bias against a foreign firm). This understanding comports with the Supreme Court’s warning that “a bare [] desire to harm a politically unpopular group cannot constitute a legitimate government interest.” U.S. Dept. of Agric. v. Moreno, 413 U.S. 528, 536 (1973).
3. The District Court Erred in Assessing DHS’s Purported Rationale
The District Court erred in finding that the Government’s proffered rationale for the rescission of DACA was “satisfactory” under the standard of State Farm. This is evident in two aspects of the District Court’s reasoning.
First, the District Court cited a rationale for the decision— “litigation risk,” J.A. 1506 —that is not fully analyzed in the Administrative Record.
There is no evidence in the Administrative Record that the Government analyzed the litigation risk associated with rescinding DACA. The importance of this missing analysis is underscored by the nine other lawsuits in which courts have found the decision to rescind DACA to be or likely to be arbitrary and capricious. As another reviewing court observed, “it is simply not plausible that DHS reversed policy between February and September because of one threatened lawsuit (never actually filed) without having generated any materials analyzing the lawsuit or other factors militating in favor of and against the switch in policy.” Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. C 17-05211, 2017 WL 4642324,
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at *4 (N.D. Cal. Oct. 17, 2017). The Government’s decision to trade one lawsuit for ten is another textbook example of arbitrariness. See, e.g., Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015).
Moreover, nothing in the Administrative Record analyzes the factors necessary for an injunction to issue, despite the Government’s post-hoc assertion that the rescission was warranted by the threat and disorder of an imminent, nationwide injunction. In considering this rationale, the District Court for the District of Columbia properly concluded that “it strains credulity to suggest that [a] court would have enjoined DACA immediately and completely without allowing DHS any opportunity to wind the program down.” NAACP, 298 F. Supp. 3d at 242. Again, the District Court failed to address the deficient Administrative Record.
Second, the District Court failed to consider that the DHS decision was predicated on a factual error and a series of mistaken legal conclusions. An agency “action . . . may not stand if the agency has misconceived the law.” SEC v. Chenery Corp., 318 U.S. 80, 94 (1943). As referenced in the Rescission Memo, the only source of legal analysis was the Sessions Letter. J.A. 383. The only guidance from Attorney General Sessions concluded, without further analysis, that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA.” J.A. 379. But the Attorney General’s conclusion is
31

premised on a factual error: no court ever found “constitutional defects” in DAPA. The Southern District of Texas enjoined DAPA solely based on the procedural APA claims raised by plaintiffs. It explicitly did not address “Plaintiffs’ likelihood of success on their substantive APA claims or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015) (emphasis in original). Nor did the Fifth Circuit find any constitutional defect in DAPA. Texas v. United States, 809 F.3d 134, 154 (5th Cir. 2015).
The District Court also failed to consider that the Attorney General’s conclusions were based on a faulty analogy between DACA and DAPA that would be essential to any analysis of the legality of the DACA. For example, the Fifth Circuit held that DAPA was contrary to the INA. 809 F.3d at 170--71, 182-83, 190-92. But “unlike DAPA, DACA has no analogue in the INA.” NAACP, 298 F. Supp. 3d at 239 (finding it arbitrary and capricious not to consider distinctions between the programs) (internal quotations omitted). Further, the Administrative Record contains no evidence the Government ever considered that the five-yearold DACA program, unlike the DAPA program (enjoined pre-implementation), is legally defensible on numerous grounds, including laches: any litigant seeking to enjoin DACA would have to explain why they delayed commencing suit for five years. Cf. Regents of Univ. of Cal. v. Dep’t of Homeland Sec., 279 F. Supp. 3d
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1011, 1044 (N.D. Cal. 2018) (criticizing Administrative Record’s lack of analysis of litigation defenses). The Administrative Record is similarly devoid of any evidence the Government analyzed injunction prerequisites, such as how any plaintiff challenging DACA could claim immediate or irreparable harm, or why such harm would outweigh the competing interests of DACA recipients, their employers, educational institutions, and communities. See, e.g., Real Truth about Obama v. FEC, 575 F.3d 342, 345-48 (4th Cir. 2009). Yet the District Court ignored these factors and failed to recognize that DHS’s “decision [was] unreasonable as a matter of law.” Friends of Back Bay, 681 F.3d at 587.
B. The DACA Rescission Required Notice and Comment The District Court improperly granted summary judgment on Plaintiffs’ procedural APA claims. The rescission of DACA was a substantive rule requiring notice-and-comment rulemaking under the APA. See 5 U.S.C. § 553. The District Court—without analyzing or citing any case law—incorrectly concluded that the DACA rescission was not a substantive rule because it “was not immediately binding, but rather a statement of intended policy beginning March 5, 2018.” J.A. 1504. The District Court failed to consider or properly apply the relevant legal standard, concluding that because DACA was not promulgated through notice-and-
33

comment rulemaking, it could be rescinded.4 The DACA Rescission is a substantive determination subject to the notice-and-comment requirements of the APA because: (1) it established immediately binding norms for DHS; (2) it precluded agency officials from exercising discretion to grant status previously available under DACA; and (3) it had a substantive impact on DACA recipients.
Substantive rules have “the force and effect of law,” impose new rights or duties, or have a substantive impact on those the agency seeks to regulate. Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340 (4th Cir. 1995) (citations omitted). By contrast, general statements of policy—which are exempt from notice-andcomment requirements: (1) do not establish a binding norm; (2) leave agency officials the freedom to exercise their own discretion; and (3) do not have a substantive impact on those regulated. See Chen Zhou Chai, 48 F.3d at 1341. Importantly, “Congress expected, and the courts have held, that the various exceptions to the notice-and-comment provisions of section 553 will be narrowly construed and only reluctantly countenanced.” N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 767 (4th Cir. 2012) (citations omitted).
4 The manner of a policy’s promulgation does not determine whether its rescission requires notice-and-comment. See Consumer Energy Council v. F.E.R.C., 673 F.2d 425, 447 n.79 (D.C. Cir. 1982) (noting agencies cannot avoid notice-andcomment by “merely by confessing that the regulations were defective . . . .”).
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1. The Rescission Memo Established an Immediately Binding Norm and Precluded Agency Officials From Exercising Discretion
The District Court incorrectly found that the rescission of DACA “was not immediately binding, but rather a statement of intended policy beginning March 5, 2018.” J.A. 1504-05. This analysis failed to address the ways in which the rescission had an immediate impact on both DACA recipients and DACA-eligible individuals beginning September 5, 2017.
The DACA rescission was an immediately binding rule that stripped DHS officials of discretion. A “critical factor” in determining whether an agency action constitutes a substantive rule is the “extent to which the challenged [rule or regulation] leaves the agency, or its implementing official, free to exercise discretion to follow, or not follow, the [announced] policy in an individual case.” Municipality of Anchorage v. United States, 980 F.2d 1320, 1324 (9th Cir. 1992). A rule “cabining . . . an agency’s prosecutorial discretion can in fact rise to the level of a substantive, legislative rule” when it “is in purpose or likely effect one that narrowly limits administrative discretion . . . .” Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (“CNI”) (per curiam) (emphasis added and internal citation omitted); see also Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 447 (D.C. Cir. 1989) (finding “mandatory language cabining DOT’s enforcement discretion” created a substantive rule).
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In evaluating whether an agency action is binding or constitutes policy,
courts need to carefully scrutinize the language chosen by an agency to determine
whether a rule has a present binding effect or conveys an agency’s tentative
intention for the future, frequently citing the distinction between a “will” directive and a “may” option.5 The District Court failed to consider that, consistent with a
binding norm—and substantive rule—the Rescission Memo contained several non-
discretionary mandates and stated that “effective immediately” DHS:
• “Will reject all DACA initial requests and associated applications for
Employment Authorization Documents filed after the date of this
memorandum.”
• “Will reject all DACA renewal requests and associated applications for
Employment Authorization filed outside of the parameters specified
above.”
• “Will not approve any new Form I-131 applications for advance parole
under standards associated with the DACA program . . . .” 5 Compare Am. Bus Ass’n v. United States., 627 F.2d 525, 532 (D.C. Cir. 1980) (use of “will” indicates statement is binding) and McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320-21 (D.C. Cir. 1988) (“[t]he use of the word ‘will’ suggests the rigor of a rule, not the pliancy of a policy”) and CNI, 818 F.2d at 946 (D.C. Cir. 1987) (“[W]e have . . . found decisive the choice between the words ‘will’ and ‘may’”) with Chen Zhou Chai, 48 F.3d at 1341 (use of “may” “did not create a binding norm . . . .”) and Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 666 (D.C. Cir. 1978) (use of “may” indicates “general statement of policy”).
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• “Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program . . . .”
J.A. 73-75, 383, 1007. The Rescission Memo mandates how DHS officials must act. They are forbidden from approving pending (or new) requests for advance parole from current DACA recipients and from considering case-by-case exceptions to any DACA recipient seeking a renewal. As the D.C. Circuit observed in CNI, “[t]his type of mandatory, definitive language is a powerful, even potentially dispositive, factor suggesting that [agency policy statements] are substantive rules.” 818 F.2d at 947.
Thus, the Rescission Memo made substantive determination subject to the APA’s notice-and-comment requirements.
2. The Rescission of DACA Had a Significant Substantive Impact on DACA Recipients
The District Court failed to analyze that the impact of the rescission on DACA recipients warranted notice and comment. J.A. 1505. Where an agency action “affect[s] individual rights and obligations” or has the “force of law,” it requires notice and comment. Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); see, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 6 (D.C. Cir. 2011) (finding a TSA decision to screen airline passengers using “advanced imaging technology” in place of traditional “magnetometers”
37

implicated passengers’ privacy and had the “hallmark of a substantive rule” because it “substantively affect[ed] the public”).
The rescission of DACA substantively impacts its recipients and potential recipients, who will no longer be able to travel, work, attend school, and live free from the risk of deportation.6 For example, the rescission requires that all pending requests for advance parole be rejected, foreclosing the opportunity for any DACA recipient to travel outside the United States.
These impacts confirm that the Rescission Memo constituted a substantive rule subject to the APA’s notice-and-comment requirements. III. The Court Erred in Granting Summary Judgment on the Equal
Protection Claim The District Court erred by granting summary judgment to the Government on Plaintiffs’ equal protection claim based on an incorrect and overly deferential standard of review. It compounded that error by limiting its review to the Administrative Record and misapplying the Rule 56 standard.
6 See, e.g., Medina v. U.S. Dep’t Of Homeland Sec., No. C17-0218, 2018 WL 2214085 at *11 (W.D. Wash. May 15, 2018) (DACA recipients “enjoy[] significant liberty and property interests, including the right to obtain lawful employment authorization and the right to be considered lawfully present” and finding the plaintiff would likely prevail on his procedural APA claim) (quoting Torres v. U.S. Dep’t of Homeland Security, No. 17-cv-1840, 2018 WL 1757668, at *9 (S.D. Cal. Apr. 12, 2018)).
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It is well-established that non-citizens, as well as citizens, may bring equal protection claims. See Plyler v. Doe, 457 U.S. 202, 210 (1982); Yick Wo v. Hopkins, 118 U.S. 356, 368-69 (1886). The equal protection claim in this case was brought as a claim of intentional discrimination based on race, national origin, and ethnicity. See J.A. 90. When “a prima facie case of discriminatory purpose [has been] made out, ‘the burden of proof shifts to the [Government] to rebut the presumption of unconstitutional action . . . .’” Washington v. Davis, 426 U.S. 229, 241 (1976) (citations omitted).
Building on Washington, the framework established by the Supreme Court in Vill. of Arlington Heights, 429 U.S. 252, provides clear instructions as to what constitutes evidence of discriminatory purpose. In addition to disparate impact evidence, courts must undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266. The non-exhaustive list of proper subjects for inquiry include: (1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he . . . sequence of events leading up [to] the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; and (4) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decision-making body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand
39

at trial to testify concerning the purpose of the official action . . . .” Id. at 267-68

(citations omitted). And once discriminatory purpose has been established and the

burden shifts to the Government, this Court has held, “a classification based on . . .

ethnic origin—if established—requires the most rigid scrutiny, demanding a

compelling state interest for its justification.” Sylvia Dev. Corp. v. Calvert Cty.,

Md., 48 F.3d 810, 820 (4th Cir. 1995) (discussing application of Arlington Heights

to treatment of a Czech immigrant). Other circuits have similarly applied the

Arlington Heights framework to non-citizens. See, e.g., Spath v. NCAA, 728 F.2d

25, 28-29 (1st Cir. 1984).

Plaintiffs’ allegations and evidence tracked this framework, as demonstrated

by the following table:

Subject of Inquiry The decision was motivated by racial animus. Specifically, “the legislative or administrative history” of the DACA Rescission was littered with “contemporary statements by members of the decision-making body” reflecting racial animus. Arlington Heights, 429 U.S. at 268.
“[T]he historical background of the [DACA rescission]. . . reveal[ed] a series of official actions taken for invidious purposes.” Arlington Heights 429 U.S. at 267.

Plaintiffs’ Evidence Plaintiffs cited the long series of threats and derogatory statements by senior Government officials, including the President, the Attorney General, the President’s Senior Advisor for Domestic Affairs, and the Director of Immigrations and Customs Enforcement against Latinos – twenty-two examples of which were cited in the Complaint. J.A. 46, 6972, 76-79, 474. Plaintiffs cited a series of twelve administration actions or policy statements leading up to the DACA rescission, all of which manifest Administration hostility to DACA recipients or Latino immigrants. J.A. 76-79.

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Subject of Inquiry “[T]he specific sequence of events leading up [to] the [DACA rescission]. . [including] [d]epartures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.” Arlington Heights, 429 U.S. at 267.

Plaintiffs’ Evidence Plaintiffs cited procedural irregularities leading up to the DACA rescission, including DHS’s unannounced decision to suspend the mailing of renewal notices to DACA recipients several months before the termination, the reneging of the Government’s commitment not to share DACA applicant information for enforcement purposes, DHS’s failure to abide by the DACA program SOPs, and offering only the barest of records to document the basis for the decision. J.A. 45-46, 72-75, 81-87, 91-93, 474-76, 559-99.

By presenting these allegations and evidence, Plaintiffs have met their burden to

establish a prima facie case of discrimination, and under Washington and Arlington

Heights, the burden of proof then should have shifted to the Government to

advance a sufficient non-discriminatory justification for the rescission.

The District Court failed to apply the standard established in Arlington

Heights and instead improperly evaluated the Rescission Memo under Kleindienst

v. Mandel, 408 U.S. 753 (1972). According to the District Court, its review was

limited to determining whether there was a “facially legitimate and bona fide”

reason for Government action absent an “affirmative showing of bad faith.” J.A.

1510. That was error. The Mandel standard does not apply here: Mandel and its

progeny are predicated on national security interests (to protect the United States

from threats such as communism or terrorism) and involve challenges to denials of

41

permission to enter the United States. Id. at 754. The Mandel Court held that, in the special context of “policies and rules for exclusion of aliens,” it would not look behind a facially legitimate national security reason offered by the government for its exercise of discretion not to provide a waiver. Id. at 769. As the Supreme Court recently emphasized, Mandel “constrain[s] . . . inquiry into matters of [alien] entry and national security . . .” Hawaii, No. 17-965, 2018 WL 3116337, at *21.
The District Court’s reliance on Mandel is misplaced: the Government cited no national security rationale for the DACA rescission. Moreover, the Mandel Court predicated its decision on the long-recognized distinction between excludable aliens (those seeking entry at the border) and aliens already in the United States—like DACA recipients. Aliens already residing in the United States, even those without legal immigrant status, enjoy greater constitutional protection than those seeking entry. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[i]t is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law”). See also Hampton v. Mow Sun Wong, 426 U.S. 88, 115-16 (1976) (exclusion of lawful aliens from civil service positions violated equal protection);
42

Plyler v. Doe, 457 U.S. 202, 210 (1982) (state may not deny undocumented
school-age children free education provided to citizens).
Notably, the Government did not rely in either its briefing or argument on Mandel.7 Nor does this Circuit’s decision in IRAP, 883 F.3d at 264, require the
application of Mandel, as the District Court incorrectly concluded. J.A. 1508-09.
IRAP, like Mandel, concerned the Government’s invocation of a national security
rationale to bar classes of aliens outside the United States seeking entry into the
United States, not the rights of persons already in the United States when the
Government does not invoke national security considerations. The Supreme Court
emphasized the importance of this distinction in Trump v. Hawaii, No. 17-965,
2018 WL 3116337. The District Court failed to address that critical distinction,
and in doing so, failed to apply the correct standard of review.
The District Court also incorrectly concluded that its review of the Equal
Protection claim was necessarily limited to the Administrative Record. It stated:
The Administrative Record—the basis from which the Court must make its judicial review—does not support the notion that [the Government] was targeting a subset
7 The Government urged the District Court to analyze the matter as a “selective prosecution” claim under United States v. Armstrong, 517 U.S. 456 (1996). The District Court properly rejected this argument. As the District Court noted, (i) the decision to rescind DACA was not justified as an exercise in prosecutorial discretion, and (ii) the Armstrong court held that “the decision to prosecute may not be based on an unjustifiable standard such as race” and Plaintiffs had averred race discrimination. J.A. 1508.
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of the immigrant population, and it does not support any supposition that the decision was derived on a racial animus. That is where the judicial inquiry should end. The Court rejects Plaintiffs’ reliance on the President’s misguided, inconsistent, and occasionally irrational comments made to the media to establish an ulterior motive. See generally Kleindienst . . . J.A. 1508-09. The District Court notably failed to cite any authority for the proposition that its consideration of the Equal Protection claim should be limited to the Administrative Record. Nor could it. Plaintiffs’ Equal Protection claim was not an APA claim, and it therefore is not subject to the APA’s requirement that the District Court consider only the Administrative Record. Consequently, Plaintiffs should have been afforded discovery. See, e.g., Puerto Rico Pub. Hous. Admin. v. U.S. Dep’t of Hous. & Urban Dev., 59 F. Supp. 2d 310, 328 (D. P.R. 1999) (“The Supreme Court has held that a plaintiff who is entitled to judicial review of its constitutional claims under the APA is entitled to discovery in connection with those claims”) (citing Webster v. Doe, 486 U.S. 592, 604 (1988)); Rydeen v. Quigg, 748 F. Supp. 900, 905-06 (D.D.C. 1990) (considering extra-record affidavits because “[w]hen reviewing constitutional challenges to agency decisionmaking, courts make an independent assessment of the facts and the law”) (citation omitted); aff’d, 937 F.2d 623 (Fed. Cir. 1991), cert. denied, 205 U.S. 1075 (1992).
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The District Court further erred in holding that under Mandel and IRAP, Plaintiffs had to meet a “heavy burden” to make an “affirmative showing of bad faith” with “particularity” and “undisputed evidence” before a court could look behind the DACA rescission for “discriminatory motivation.” J.A. 1509-10. In so ruling, the District Court concluded that IRAP “implicit[ly]” held that Mandel could be overcome only on a showing of “a direct nexus between the discriminatory statements and the executive action in question in that case,” and that in contrast to IRAP, Plaintiffs “cannot here make a similarly substantial showing” because the President’s statements “have moderated since his election,” citing statements by the President presented in a January 25, 2018 article. J.A. 1510-11. But this Court never held, implicitly or otherwise, that a “direct nexus” was required between discriminatory statements and the challenged action.
Regardless, where the President “regularly and repeatedly disparaged Islam as a religion and repeatedly proposed banning Muslims from the United States,” J.A. 1510, here the Plaintiffs documented a series of statements from the President that “regularly and repeatedly disparaged” Latinos in direct connection (often in the same sentence) with statements directly proposing to exclude or remove Latinos from the country. See J.A. 46, 69-72 (references to Latinos as “criminals,” “rapists,” “thugs,” “bad hombres,” and “true animals” in conjunction with statements “we’re going to get them out,” “they are finished,” and “we’re getting
45

them out”). It is hard to imagine a closer nexus between discriminatory animus and policy.
Moreover, the District Court failed to view “facts and [] reasonable inferences therefrom in the light most favorable to the nonmoving party,” Scinto, 841 F.3d 227, and it construed allegations and evidence in favor of the Government. This error is clearest in the Court’s evaluation of the 22 separate, detailed statements made by senior Administration officials threatening or otherwise revealing racial animus against Latinos leading up to the September 5 decision to rescind DACA. J.A. 46, 69-72, 76-79.8 Such well-pled factual allegations must be accepted as true. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), cert. denied, 510 U.S. 1197 (1994). These statements make out a prima facie case for an equal protection claim. And what reasonable inferences can be drawn from the fact that senior Administration officials made 22 separate public statements of anti-Latino animus? Why is it not reasonable to infer that they made far more incendiary statements outside the public view?
Based on these public statements, Plaintiffs requested the opportunity to conduct discovery regarding non-public evidence of animus, J.A. 98-99, 106, 11516, 120, 477-78, 1094-1105, 1106-1234, 1334-41. But rather than credit Plaintiffs’ 8 Similarly, the District Court ignored other key facts, including Plaintiffs’ evidence that the Government allowed other deferred action programs with higher Caucasian or Asian participation to continue, J.A. 40-41, 46, 58-59, 90, 474-75.
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allegations, the District Court—relying on evidence neither of the parties put before it—found the President’s views “have moderated since his election.” J.A. 1510. In so failing to view all facts in the light most favorable to the Plaintiffs, the District Court plainly misapplied Rule 56.
For these reasons, the District Court erred in granting summary judgment on Plaintiffs’ equal protection claim. IV. The Court Erred in Granting Summary Judgment on the Due Process
Claims The District Court improperly granted summary judgment on Plaintiffs’ Due Process claims. Plaintiffs alleged detailed facts establishing violations of procedural and substantive due process. J.A. 85-89. The District Court failed to credit Plaintiffs’ allegations and evidence regarding the benefits conferred to DACA recipients, and it misapplied precedent in concluding that due process did not apply to their deprivation. And the facts establish outrageous conduct sufficient to violate substantive due process.
A. The District Court Erred in Dismissing the Procedural Due Process Claims
The District Court erred in in failing to recognize that the Government, through its actions, conferred rights and benefits on DACA recipients. The District Court further erred in concluding that such benefits could be stripped en masse without affording any process.
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First, the District Court failed to credit Plaintiffs’ allegations and evidence— as it must on a dispositive motion—that the Government had conferred on DACA recipients legally protected liberty and property interests.
Such interests protected by the Due Process Clause “are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). The source of such rights can be a statute, a regulation, “[e]xplicit contractual provisions,” “implied” agreements, or “rules or mutually explicit understandings.” Perry v. Sindermann, 408 U.S. 593, 601-02 (1972); see also Richardson v. Town of Eastover, 922 F.2d 1152, 1157 (4th Cir. 1991) (an “entitlement . . . may be implied . . . from policies, practices, and understandings . . . .”).
DACA recipients were afforded — and are now being deprived of — the ability to obtain lawful employment authorization, to travel internationally, to pursue education, to pay and receive benefits such as Social Security, to open bank accounts, and to be considered lawfully present. Such benefits, when conferred by the Government, are precisely the types of entitlements covered by Due Process. Roth, 408 U.S. at 572 (1972); Logan v. Zimmerman Brush Co., 455 U.S. 422, 431 (1982) (“Entitlement[s — rights to] other things like high school education,
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government employment, and welfare benefits — are grounded in the law and cannot be removed except for cause”).
The rules, guidelines, and Government communications created an “explicit understanding” regarding the benefits conferred by DACA. To induce applicants to participate in DACA, the Government promoted the right to work (authorized under 8 C.F.R. § 274a(a)(11) & (c)(14)), to travel internationally (authorized under 8 U.S.C. § 212(d)(5)(A)), and to attend educational institutions and apply for financial assistance (authorized under 42 U.S.C. § 2000d, 28 C.F.R. § 42.104(b)(2), and 34 C.F.R. § 100.3(b)(2)). J.A. 60-68, 86. The Government further promoted the right to participate in Social Security and Medicare (authorized under 8 U.S.C. § 1611(b)(2) & (b)(3) and 8 U.S.C. § 1621(d)) and to be considered “lawfully present” in the United States (authorized under 8 C.F.R. § 109.1). J.A. 62. The Government unequivocally promised not to share sensitive personal information with immigration enforcement authorities. J.A. 63-68.
Plaintiffs also cited official statements from senior Government officials that these rights and benefits “upon which DACA applicants most assuredly relied, must continue to be honored.” J.A. 68-69, 1091-93. The Complaint further specifically identified individuals who have availed themselves of these benefits, and who have averred that their enjoyment of these benefits was stripped away when DACA was rescinded. J.A. 60-62, 73-75, 1237-39, 1242-45, 1248-49.
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Plaintiffs further presented evidence that the conferring of these benefits was non-discretionary. The Complaint cited the eligibility criteria in the 2012 DACA Memorandum, which instructed DHS agents not to apprehend or place eligible persons into removal proceedings. J.A. 59, 63. It averred that DACA required ICE agents to use a checklist to determine whether individuals qualified for DACA; such agents were required to follow the 150-page DACA SOP manual; those guidelines were “applicable to all personnel performing adjudicative functions and the procedures to be followed [were] not discretionary.” J.A. 43, 63, 67-68, 714-986. See also Coyotl v. Kelly, 261 F. Supp. 3d 1328, 1334 (N.D. Ga. 2017); Gonzales Torres v. U.S. Dep’t of Homeland Sec., No. 17-cv-1840, 2017 WL 4340385, at *4 (S.D. Cal. Sept. 29, 2017) (finding that DACA’s SOPs are “nondiscretionary”). Such “substantive limitation on the discretion” of government officials creates a “protectable property interest.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64 (9th Cir. 1994). And Plaintiffs sought to bolster this evidence by requesting targeted discovery regarding these benefits. J.A. 1097, 1107-23, 1115-17, 1128-29.
The District Court incorrectly found that “DACA did not create an entitlement” because “the exercise or restraint of prosecutorial discretion is not traditionally the sort of government action that creates substantive rights.” J.A. 1512-13. The District Court also cited the disclaimer in the DACA Memo that the
50

DACA program it “confers no substantive right, immigration status or pathway to citizenship.” J.A. 1512.
In adopting the Government’s characterization of the benefits, the District Court misapplied the appropriate legal standard: a court must independently review a government program to determine whether a protectable interest exists. See Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 207 (4th Cir. 1989). Moreover, the District Court failed to consider that, as alleged in the Complaint, Congress and the federal government did confer rights of which Plaintiffs were deprived. Nor did it consider Plaintiffs’ allegations that, notwithstanding the disclaimer, the Government repeatedly promoted these rights as independent benefits. See J.A. 42-43, 60-62, 64-65. In so doing, the District Court improperly failed to consider these “facts and the reasonable inferences therefrom in the light most favorable to the nonmoving party.” Scinto, 841 F.3d at 227 (internal quotation omitted).
Second, the District Court misconstrued the Complaint and the law when it concluded “procedural due process only applies to individualized deprivations, not policy-based deprivations for an entire class.” J.A. 1512 (citing Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915)). The Complaint and declarations submitted in opposition to summary judgment included specific allegations by specific individuals of the benefits they had lost. J.A. 50-57, 73-75,
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1237-39, 1242-45, 1248-49. And in holding that Bi-Metallic obviated the need for process, the Court disregarded extensive authority holding that Due Process is required for revocation of rights and benefits. Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
The District Court failed to address that individual Plaintiffs had been stripped of benefits without notice or any opportunity to be heard, J.A. 50-57, 7375, 86, in contravention of the DACA SOPs. J.A. 43, 63, 67-68, 86. For example, Plaintiffs Brenda Moreno Martinez and Nathaly Uribe Robdelo had pending applications for permission to travel internationally that were summarily revoked. J.A. 52-53, 55, 73-75. Likewise, Plaintiff Annabelle Martinez Herra was told her work authorization could not be renewed. J.A. 56, 74. In granting summary judgment, the District Court failed to consider any of these individual deprivations, or the other individuals discussed in the record. J.A. 1237-39, 1242-45, 1248-49.
The District Court’s reliance on Bi-Metallic also was error. By its terms, BiMetallic applies only when a legislature—not an agency—enacts a statute of general application, such that the District Court’s observation Bi-Metallic means no process is due where “the political process serves as an effective alternative,” J.A. 1512, makes no sense as applied to this case. The rescission of DACA was an administrative action, taken without the opportunity for public comment, and there was no “political process that served as an effective alternative.”
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Moreover, DACA is not a program of general application. It requires individual application, approval, and enrollment, only after which participants are entitled to the rights and benefits conferred by the program. In comparable circumstances, courts have concluded that en masse deprivations of rights by an agency are subject to Due Process claims. See, e.g., Kapps v. Wings, 404 F.3d 105, 118 (2d Cir. 2005) (finding that where administrator’s rules arbitrarily denied group of applicants the right to appeal, applicants were entitled to individualized notice and an opportunity to be heard).
The law is unequivocal: it is unconstitutional to deprive any individual, including the Plaintiffs, of a protected right without due process of law. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 80 (4th Cir. 2016). Such procedural due process “[a]t a minimum . . . requires notice and some opportunity to be heard.” Mallette v. Arlington Cty. Employees’ Supplemental Ret. Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (citation omitted). The District Court misapplied the law and should be reversed.
B. The District Court Failed to Recognize That the Rescission of DACA and Changes to DHS’s Information-Sharing Policy Violated the Substantive Protections of the Due Process Clause
The District Court erred in granting summary judgment on Plaintiffs’ substantive due process claim. A denial of fundamental fairness may constitute a violation of substantive due process rights when it is so egregious or so outrageous
53

as to “shock the contemporary conscience.” J.A. 1514. Governmental speech and actions based on animus satisfy this standard. See generally Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, No. 16-111, __ S.Ct. __, 2018 WL 2465172, at *12 (S. Ct. June 4, 2018) (“official expressions of hostility . . . were inconsistent with what the [Constitution] requires”); Romer v. Evans, 517 U.S. 620, 634-35 (1996) (“[D]esire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”) (emphasis in original).
As discussed above, the 22 statements of anti-Latino bias cited in the Complaint—threats to expel Latino immigrants because they are “criminals,” “thugs,” “rapists,” and “bad hombres” (J.A. 69-72) that preceded the DACA rescission evidence racial animus—should shock the conscience of any reasonable observer because they are ‘‘intended to injure in some way unjustifiable by any government interest.” Hawkins v. Freeman, 195 F.3d 732, 738, 742 (4th Cir. 1999) (emphasis in original and citation omitted). Taken as true, as they must be on a motion for summary judgment, such conduct is unjustifiable by any legitimate government interest.
The District Court further erred in failing entirely to address Plaintiffs’ allegations that the Government’s reneging on its promise not to share DACA applicant data with enforcement authorities implicates Due Process. As the District Court found elsewhere in its decision, Plaintiffs provided evidence that
54

“the Government promised not to transfer or use the information gathered from Dreamers for immigration enforcement,” J.A. 713-977, 1028-1093, 1515, and the Government refused to provide any assurance that it would adhere to this promise. The District Court further observed that “the government, having induced these immigrants to share their personal information under the guise of immigration protections, could now use that same information to track and remove them,” J.A. 1516, and accurately characterized such action as “affirmative misconduct.” The District Court, however, failed to address Plaintiffs’ claim that such misconduct violates Plaintiffs’ substantive due process rights. See J.A. 88-89. To renege on that promise to DACA applicants is egregious, outrageous, and “shock[s] the conscience . . . .” Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304, 1312 (N.D. Cal. 2018) (citation omitted).
55

CONCLUSION This Court should reverse the District Court’s decision and remand with

instructions for discovery to commence.

Dated: July 2, 2018

Respectfully submitted,

/s/ John A. Freedman John A. Freedman Emily Newhouse Dillingham ARNOLD & PORTER KAYE
SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 john.freedman@arnoldporter.com emily.dillingham@arnoldporter.com

Elizabeth J. Bower Kevin B. Clark Priya R. Aiyar WILLKIE FARR & GALLAGHER LLP 1875 K Street, NW Washington, DC 20006 (202) 303-1000 ebower@willkie.com kclark@willkie.com paiyar@willkie.com

Dennis A. Corkery WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 dennis_corkery@washlaw.org

56

Ajmel A. Quereshi HOWARD UNIVERSITY SCHOOL
OF LAW 2900 Van Ness Street, NW Washington, DC 20008 (202) 216-5574 aquereshi@naacpldf.org Counsel for Plaintiffs-Appellants
57

CERTIFICATE OF COMPLIANCE I certify, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B), that the attached Brief of Appellants contains 12,597 words, excluding those parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). The foregoing brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface, 14-point Times New Roman font, using Microsoft Word 2010.

Dated: July 2, 2018

/s/ John A. Freedman John A. Freedman

CERTIFICATE OF SERVICE I hereby certify that on July 2, 2018, I electronically filed the foregoing document with the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: July 2, 2018

/s/ John A. Freedman John A. Freedman

 
 Nos. 18-1521 (L); 18-1522
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
CASA DE MARYLAND, Inc., et al.,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
On Appeal from the United States District Court for the District of Maryland, Case No. 8:17-cv-02942 (Hon. Roger W. Titus)
OPENING AND RESPONSE BRIEF FOR APPELLEES
CHAD A. READLER Acting Assistant Attorney General
ROBERT K. HUR United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................................1
STATEMENT OF JURISDICTION ...................................................................................4
STATEMENT OF THE ISSUES..........................................................................................4
PERTINENT STATUTES AND REGULATIONS ........................................................5
STATEMENT OF THE CASE.............................................................................................5
A. Overview of “deferred action” and the Acting Secretary’s decision to wind down the discretionary DACA non-enforcement policy..............5
B. Prior proceedings .............................................................................................10
SUMMARY OF ARGUMENT........................................................................................... 12
STANDARD OF REVIEW ................................................................................................ 16
ARGUMENT ......................................................................................................................... 16
I. The Acting Secretary’s Rescission of the Discretionary DACA Enforcement Policy Is Not Subject to Judicial Review........................................ 16
A. The decision is not subject to APA review because it is committed to agency discretion by law.............................................................................16
B. 8 U.S.C. § 1252 bars pre-enforcement review of plaintiffs’ claims. .........28
II. The District Court Correctly Held That the Rescission of DACA Was Lawful. .......................................................................................................................... 31
A. The district court correctly held that the DACA rescission was not arbitrary and capricious............................................................................31
1. The district court correctly concluded that it was not arbitrary and capricious to rescind DACA because it was subject to serious legal challenge. ......................................................32

2. Plaintiffs’ additional arguments that the rescission memorandum was arbitrary and capricious are meritless. .............40
3. The administrative record provided an adequate basis on which to sustain the Acting Secretary’s decision.............................43
B. The district court correctly held that the rescission of DACA did not require notice-and-comment rulemaking..............................................49
C. The district court correctly held that the rescission of DACA did not violate the Constitution............................................................................52 1. The DACA rescission did not violate equal protection.................52 2. The DACA rescission did not violate due process.........................62
III. The District Court Erred in Enjoining the Government from Changing the Information-Sharing Policy. ............................................................................... 65 A. The district court erred in holding that the government was subject to equitable estoppel. .........................................................................66 B. The district court erred in granting injunctive relief that was nationwide in scope. ........................................................................................69
CONCLUSION ..................................................................................................................... 73 STATEMENT REGARDING ORAL ARGUMENT CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................................................35

Air Transp. Ass’n of Am., Inc. v. National Mediation Bd., 663 F.3d 476 (D.C. Cir. 2011) ...........................................................................................48

Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987)..............................................................................................25

Alexander v. Sandoval, 532 U.S. 275 (2001) .............................................................................................................68

Arizona v. United States, 567 U.S. 387 (2012) ..................................................................................................6, 13, 18

Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993)............................................................................................46

Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) ...................................................................................................... 63, 64

Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)..............................................................................................28

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) ...................................................................................................... 31, 34

Califano v. Yamasaki, 442 U.S. 682 (1979) .............................................................................................................71

Camp v. Pitts, 411 U.S. 138 (1973) .............................................................................................................44

Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639 (4th Cir. 2006)..............................................................................................68

Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995)..............................................................................................51

iii

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................................................50
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) ...................................................................................................... 14, 48
City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018)..............................................................................................72
Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305 (S.D.N.Y. 2012)...............................................................................47
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) .............................................................................................................63
Consumer Energy Council of Am. v. FERC, 673 F.2d 425 (D.C. Cir. 1982) ...........................................................................................52
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ...................................................................................... 19, 20
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................................................................................70
Dawkins v. Witt, 318 F.3d 606 (4th Cir. 2003) ....................................................................................... 67, 68
Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982) ...............................................................................................47
Downey v. U.S. Dep’t of Army, 685 F. App’x 184 (4th Cir. 2017) ......................................................................................34
eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) .............................................................................................................67
Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411 (10th Cir. 1984)..........................................................................................69
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).........................................................................................................41
iv

FCC v. Fox, 556 U.S. 502 (2009) .............................................................................................................43
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ......................................................................................... 14, 43, 44, 48
Gerhart v. Lake County, 637 F.3d 1013 (9th Cir. 2011)..................................................................................... 62, 63
Gill v. Whitford, 138 S. Ct. 1916 (2018).........................................................................................................70
Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010)..........................................................................................29
Hadayat v. Gonzalez, 458 F.3d 659 (7th Cir 2006)...............................................................................................57
Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................. 2, 6, 13, 17, 22, 23, 24, 26, 27
Heckler v. Community Health Servs., 467 U.S. 51 (1984) ...............................................................................................................69
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004)..............................................................................................16
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) ......................................................................................... 13, 17, 19, 24
Inova Alexandria Hosp. v. Shalala, 244 F.3d 342 (4th Cir. 2001)..............................................................................................34
International Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir.)........................................................................................................55
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .................................................................................................... 30, 31
Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205 (4th Cir. 1989)..............................................................................................50
v

Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006).................................................................................................57
Kapps v. Wing, 404 F.3d 105 (2d Cir. 2005) ...............................................................................................64
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996)..............................................................................................25
Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................................................................................55
Lewis v. Casey, 518 U.S. 343 (1996) .............................................................................................................70
Lincoln v. Vigil, 508 U.S. 182 (1993) ................................................................................................16, 26, 49
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922 (4th Cir. 1995) ................................................................................................16
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................................67
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir.1987) ...................................................................................... 15, 51
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .............................................................................................................71
McKenzie v. City of Chicago., 118 F.3d 552.........................................................................................................................71
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..................................................................................................31, 39, 40
NAACP v. Trump, 298 F. Supp. 3d. 239 ...........................................................................................................35
National Ass’n of Home Builders v. EPA, 682 F.3d 1032 (D.C. Cir. 2012) .........................................................................................19
vi

National Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014) ...........................................................................................46
OPM v. Richmond, 496 U.S. 414 (1990) .............................................................................................................69
Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015)..............................................................................................37
Pacific Gas & Elec. Co. v. Federal Power Comm’n, 506 F.2d 33 (D.C. Cir. 1974) .............................................................................................49
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).........................................................................................................50
Rajah v. Mukasey, 544 F.3d 427 (2d. Cir. 2008) ....................................................................................... 55, 58
Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294 (4th Cir. 2012)..............................................................................................60
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ..................................................................... 2, 6, 7, 13, 15, 18, 28, 29, 30, 52, 53, 54, 56, 57, 61
Robbins v. Regan, 780 F.2d 37 (D.C. Cir. 1985) .............................................................................................26
San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C. Cir. 1986) .............................................................................................47
Scott v. Harris, 550 U.S. 372 (2007) .............................................................................................................16
Speed Mining, Inc. v. Federal Mine Safety & Health Review Comm’n, 528 F.3d 310 (4th Cir. 2008)..............................................................................................25
Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810 (4th Cir. 1995) ................................................................................................56
Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) .............................................................................................49
vii

Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) ..................................................................................8 809 F.3d 134 (5th Cir. 2015) ................................................................8, 22, 33, 34, 35, 51
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .............................................................................................................29
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).........................................................................................................70
Trump v. Hawaii, 138 S. Ct. 2392 (2018).................................................................................................. 55, 72
UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) ...........................................................................................20
United States v. Armstrong, 517 U.S. 456 (1996) ......................................................................................... 17, 53, 57, 61
United States v. Mendoza, 464 U.S. 154 (1984) .............................................................................................................72
United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977) ...............................................................................................45
United States v. Owens, 54 F.3d 271 (6th Cir. 1995) ................................................................................................69
United States v. Texas, 136 S. Ct. 2271 (2016)...........................................................................................................8
Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016)........................................................................................28
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978) .............................................................................................................45
Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) ....................................................................................... 71, 72
Webster v. Doe, 486 U.S. 592 (1988) ...................................................................................................... 22, 60
viii

Western Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116 (9th Cir. 2009)............................................................................................60
Wilkie v. Robbins, 551 U.S. 537 (2007) .............................................................................................................60
Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980)............................................................................................63
Statutes:
Administrative Procedure Act: 5 U.S.C. § 553(b)-(c)............................................................................................................49 5 U.S.C. § 553(b)(3)(A) .................................................................................................. 3, 49 5 U.S.C. § 556(e) ..................................................................................................................44 5 U.S.C. § 701(a)(2) .......................................................................... 2, 4, 13, 16, 18, 22, 24 5 U.S.C. § 702.......................................................................................................................60 5 U.S.C. § 706(2)(A) ............................................................................................................31 5 U.S.C. § 706(2)(B) ............................................................................................................60
Immigration and Nationality Act: 8 U.S.C. § 1103(a) ................................................................................................................58 8 U.S.C. § 1103(a)(1) .............................................................................................................5 8 U.S.C. § 1182(a) ..................................................................................................................6 8 U.S.C. § 1182(h)................................................................................................................29 8 U.S.C. § 1182(i).................................................................................................................29 8 U.S.C. § 1229b ..................................................................................................................29 8 U.S.C. § 1229c...................................................................................................................29 8 U.S.C. § 1252.....................................................................................................................28 8 U.S.C. § 1252(a)(1) ...........................................................................................................28 8 U.S.C. § 1252(a)(2)(B)......................................................................................................29 8 U.S.C. § 1252(a)(2)(B)(i) ..................................................................................................29 8 U.S.C. § 1252(a)(2)(D) .....................................................................................................29 8 U.S.C. § 1252(b)............................................................................................................. 2, 5 8 U.S.C. § 1252(b)(9)....................................................................................... 13, 29, 30, 31 8 U.S.C. § 1252(g)................................................................ 2, 5, 10, 13, 22, 28, 29, 30, 31 8 U.S.C. § 1255.....................................................................................................................29
6 U.S.C. § 202(5) .................................................................................................... 6, 18, 38, 40
28 U.S.C. § 1291 ........................................................................................................................4
ix

28 U.S.C. § 1331 ........................................................................................................................4
28 U.S.C. § 2112 ......................................................................................................................45
Regulation:
8 C.F.R. § 274a.12(c)(14) ..................................................................................................... 6, 7
Rules:
Fed. R. App. P. 16 ...................................................................................................................45
Fed. R. App. P. 16 note ..........................................................................................................45
Fed. R. Civ. P. 56(c) ................................................................................................................16
Other Authorities:
Memorandum from Secretary Kirstjen M. Nielsen, https://www.dhs.gov/sites/default/files/publications/ 18_0622_S1_Memorandum_DACA.pdf............................................................10, 38, 42
Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY ...............................................................................................40
Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017).............................................................................................71
U.S. Citizenship and Immigration Services Publications:
Deferred Action for Childhood Arrivals Frequently Asked Questions, https://go.usa.gov/xngCd ....................................................................................... 7, 66
Guidance on Rejected DACA Requests, https://www.uscis.gov/daca2017/guidance-rejected-daca2017........................ 9, 66
Revised Guidance for the Referral of Cases and Issuance of Notices to Appear, https://go.usa.gov/xncPK.........................................................................66
U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947) ..............................................................................................................49
x

INTRODUCTION In 2012, the Secretary of Homeland Security adopted the non-enforcement policy commonly known as DACA (Deferred Action for Childhood Arrivals). Under that policy, individuals illegally in this country who met certain criteria could receive deferred action, a temporary forbearance from removal that may also entail certain collateral benefits. From its inception, the policy was a stop-gap measure in anticipation of potential legislative action, and the government made clear that the policy did not grant any substantive rights, lawful immigration status, or pathway to citizenship. The government later expanded the criteria for DACA and created a new policy known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). Texas and twenty-five other states brought suit challenging the latter policies. The suit led to a nationwide injunction that was affirmed by the Fifth Circuit and by an equally divided Supreme Court. Texas then threatened to challenge the original DACA policy. In September 2017, in light of the prior litigation and a legal assessment by the Attorney General, the then-Acting Secretary of Homeland Security rescinded the DACA policy through an orderly wind-down. Plaintiffs in these and other suits challenged that enforcement decision on a variety of grounds under the Administrative Procedure Act (APA) and the Constitution. As an initial matter, the Acting Secretary’s decision is not subject to judicial review in this action. The rescission of DACA was an exercise of enforcement

discretion that is traditionally committed to agency discretion under the APA. 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830-32 (1985). And, assuming arguendo that judicial review of this deferred-action rescission were available, under the terms of the Immigration and Nationality Act (INA), review could take place only on review of a final removal decision. 8 U.S.C. § 1252(b), (g); Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 485 (1999) (AADC).
Although the district court erroneously concluded that it could review the Acting Secretary’s decision, it properly recognized that any such review would be highly deferential. The court acknowledged that while there is significant room for disagreement over immigration enforcement generally and DACA in particular, such policy decisions belong in the hands of the political branches, and it declined to disturb the Acting Secretary’s decision. The district court was correct.
First, the rescission of the DACA policy was not arbitrary and capricious under the APA. For this purely discretionary enforcement decision, the INA prescribes no legal or factual determinations that must be made or even considered. There is thus no warrant for setting aside the Acting Secretary’s rational decision to discontinue the DACA policy in light of the prior nationwide injunction against other closely related policies, as well as the Attorney General’s opinion regarding the legal viability of DACA itself.
Second, the district court’s dismissal of plaintiffs’ notice-and-comment challenge to the DACA rescission comports with both precedent and common sense. The APA
2

exempts “general statements of policy” from notice and comment, 5 U.S.C. § 553(b)(3)(A), and this type of reordering of deferred-action enforcement priorities readily qualifies. Moreover, if the rescission of DACA required notice-and-comment rulemaking, the promulgation of that policy surely did as well.
Third, the district court correctly rejected plaintiffs’ claim that the Acting Secretary’s decision violated the Constitution. There was no denial of equal protection because the rescission of DACA applies equally to all persons without regard to their ethnicity. This immigration enforcement policy is not subject to challenge based on the common circumstance that it has a greater impact on members of certain ethnicities than others, especially given the lack of any evidence that it was a significant factor in the Acting Secretary’s rescission of a policy of such questionable legality that the aliens lacking lawful status who benefitted from the policy happened to be predominantly Latino. Nor was there any denial of due process. Plaintiffs have no protected liberty or property interest—DACA expressly conferred no substantive rights and was revocable at any time—and plaintiffs regardless have failed to demonstrate any government conduct rising to the level of a substantive-due-process violation.
Fourth, the district court correctly ruled in the government’s favor on the basis of the administrative record before it. Plaintiffs come nowhere near demonstrating bad faith—or any other ground—for supplementing the administrative record or obtaining discovery in this record-review case.
3

The district court correctly rejected all of plaintiffs’ challenges to the rescission of DACA, but erred in enjoining the government from modifying its policy regarding the sharing of DACA requestors’ information. The court issued this injunction even though (as it acknowledged) plaintiffs had no evidence that the policy had changed, and the original policy expressly stated that it could “be modified, superseded, or rescinded at any time.” JA.1532. In any event, there is no basis for an equitable estoppel claim against the government. The court’s nationwide permanent injunction should be vacated.
STATEMENT OF JURISDICTION Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. § 1331. JA.47. On March 5, 2018, the district court granted in part and denied in part the government’s motion to dismiss or in the alternative for summary judgment, and it granted plaintiffs permanent injunctive relief. JA.1519-20. On March 15, the district court modified the scope of its injunction. JA.1531. Plaintiffs filed a timely notice of appeal on April 27, 2018, and the government filed a timely notice of appeal on May 4, 2018. JA.1534-36; JA.1537-38. This court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES 1. Whether plaintiffs’ APA claims are not subject to review because the Acting Secretary’s decision to wind down the DACA non-enforcement policy was “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2).
4

2. Whether the district court lacked jurisdiction to consider plaintiffs’ claims in light of the jurisdiction-channeling provisions in 8 U.S.C. § 1252(b) and (g).
3. Whether, assuming judicial review is available, the district court correctly held that the Acting Secretary’s decision was not arbitrary and capricious on the basis of the administrative record.
4. Whether the district court correctly concluded that the rescission of a nonenforcement policy is not required to go through notice-and-comment rulemaking.
5. Whether the district court correctly rejected plaintiffs’ contentions that the Acting Secretary’s decision violated equal-protection and due-process requirements.
6. Whether the district court erred in entering a nationwide injunction barring the government from altering its information-sharing policy.
PERTINENT STATUTES AND REGULATIONS Pertinent statutes and regulations are reproduced in the addendum to this brief.
STATEMENT OF THE CASE A. Overview of “deferred action” and the Acting Secretary’s
decision to wind down the discretionary DACA nonenforcement policy 1. The INA charges the Secretary of Homeland Security “with the administration and enforcement” of the INA and “all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Individuals are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been
5

convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. §§ 1182(a), 1227(a).
As a practical matter, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396. The Secretary of Homeland Security is vested with authority to “[e]stablish[ ] national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). In light of such policies and priorities, officials of the Department of Homeland Security (DHS) must first “decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. “At each stage” of the process, moreover, “the Executive has discretion to abandon the endeavor.” AADC, 525 U.S. at 483. Like other exercises of enforcement discretion, this may involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831.
2. This case concerns an application of the practice of “deferred action” by which the Secretary of Homeland Security may exercise discretion to forbear from seeking the removal of an alien for a designated period. See AADC, 525 U.S. at 48384; 8 C.F.R. § 274a.12(c)(14) (describing “deferred action” as “an act of administrative convenience to the government which gives some cases lower priority”). In addition to the temporary relief from removal directly flowing from a grant of deferred action, certain collateral consequences may flow under pre-existing laws and regulations, including the ability to obtain work authorization in certain circumstances. See, e.g.,
6

8 C.F.R. § 274a.12(c)(14). However, DHS retains the discretion to revoke deferred action unilaterally, and an individual with deferred action remains removable at any time. See AADC, 525 U.S. at 484-85.
On June 15, 2012, DHS announced the policy known as DACA, which makes deferred action available to “certain young people who were brought to this country as children.” JA.129. Following successful completion of a background check and review, an alien who met certain age, residence, and other guidelines could receive deferred action for a period of two years, subject to renewal. JA.130-31. The DACA Memorandum stated that it “confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.” JA.131. In implementing DACA, DHS stated that information provided in the DACA request process would be protected from disclosure for the purpose of immigration enforcement proceedings unless certain criteria related to national security or public safety were satisfied, or the individual met the requirements for a Notice to Appear. USCIS, Deferred Action for Childhood Arrivals Frequently Asked Questions, No. 19 (last updated Oct. 6, 2017; last visited July 31, 2018), https://go.usa.gov/xngCd (DHS DACA FAQ). The instructions also stated, however, that the information-sharing policy “may be modified, superseded or rescinded at any time without notice,” and that it “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.” DHS DACA FAQ 19.
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On November 20, 2014, DHS expanded DACA by broadening certain guidelines and extending the period of deferred action to three years. JA.167. It also created a new, similar policy known as DAPA for parents of American citizens and lawful permanent residents. JA.168-69.
The District Court for the Southern District of Texas entered a nationwide preliminary injunction against DAPA and the expansion of DACA. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). The Fifth Circuit affirmed, concluding that the policy violated both the INA and the APA’s notice-and-comment requirements. Texas v. United States, 809 F.3d 134 (5th Cir. 2015). The Supreme Court affirmed the injunction by an equally divided Court. United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). In response, then-Secretary John Kelly rescinded DAPA and the DACA expansion in June 2017. JA.363. Shortly thereafter, Texas threatened to challenge the original DACA policy. JA.366-68.
3. On September 5, 2017, DHS issued a memorandum explaining its decision to wind down the remaining DACA policy in an orderly fashion. JA.380. As thenActing Secretary Elaine Duke explained in the memorandum, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and [a] September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” JA.383. Therefore, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the Acting Secretary determined to begin an orderly wind-down of the policy. Id. The
8

memorandum provides that DHS will “adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests . . . from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” Id. The memorandum further provides that DHS “[w]ill not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum” for the remaining periods of deferred action. Id.
Upon the rescission of DACA, DHS reiterated that “[g]enerally, information provided in DACA requests will not be proactively provided to other law enforcement entities . . . for the purpose of immigration enforcement proceedings” unless national security or public safety exceptions apply or the individual “meets the criteria for issuance of Notice to Appear.” JA.1143. In December 2017, DHS further clarified that the “information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017” DACA rescission. USCIS, Guidance on Rejected DACA Requests, www.uscis.gov/daca2017/guidance-rejecteddaca2017 (Q5).
4. On June 22, 2018, in response to an order from the United States District Court for the District of Columbia in NAACP v. Trump, No. 17-1907 (D.D.C.), the Secretary of Homeland Security issued a memorandum further explaining the decision to rescind DACA. The new memorandum agrees with the reasoning of the Duke
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memorandum and declines to disturb it. Memorandum from Secretary Kirstjen M. Nielsen 2-3 (Nielsen Memo), https://www.dhs.gov/sites/default/files/publications/ 18_0622_S1_Memorandum_DACA.pdf. In particular, the Secretary confirms that, although she agrees that DACA is unlawful, the rescission is not predicated solely on that legal determination. The Nielsen Memo explains that, whether or not DACA is actually unlawful, “there are, at a minimum, serious doubts about [the policy’s] legality” that warrant its discontinuation. Id. at 2. The Nielsen Memo also offers other enforcement policy reasons wholly independent of DACA’s legality that support the policy’s rescission, and explains why the asserted reliance interests of DACA recipients do not lead to a different result. Id. at 2-3.
B. Prior proceedings 1. Plaintiffs in this case are individual DACA recipients and nonprofit immigrant services and policy organizations. Their complaint seeks to invalidate the rescission of DACA on APA, constitutional, and equitable grounds. See JA.85-96. Plaintiffs also challenge DHS’s authority to change its policy regarding how it may use information provided by DACA requesters. See JA.87-89, JA.94-95. 2. In March 2018, the district court issued an order granting in part and denying in part the government’s motion to dismiss or in the alternative for summary judgment, and granting summary judgment in part for the plaintiffs and in part for the government. JA.1533. The district court first held that plaintiffs’ claims were justiciable, rejecting the argument that 8 U.S.C. § 1252(g) precluded judicial review
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and concluding that the APA’s exception for decisions “committed to agency discretion” by law does not preclude procedural review of agency action, which it characterized plaintiffs’ APA claims to be. JA.1501.
On the merits of the APA claims, the district court held that DACA and the DACA rescission are “akin to non-binding policy statements” and therefore are not subject to notice-and-comment requirements. JA.1505. The district court also concluded that the DACA rescission was not arbitrary and capricious because “the belief that it was unlawful and subject to serious legal challenge [was] completely rational,” and the rescission “was a carefully crafted decision supported by the Administrative Record.” JA.1505-06.
The district court likewise rejected plaintiffs’ constitutional claims. With respect to the equal protection claim, the court concluded that the administrative record “does not support the notion that [the government] was targeting a subset of the immigrant population” or that the decision was motivated by racial animus. JA.1508. The district court also held that plaintiffs were not deprived of a protected procedural due process interest because the DACA decision did not create any such interest. JA.1512-13. And the court further found no substantive due process violation because the DACA rescission did “not shock the conscience of th[e] Court.” JA.1514. The district court also granted summary judgment for the government with respect to plaintiffs’ claim that the government was estopped from rescinding DACA,
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concluding that estoppel did not apply because DACA was expressly subject to revocation at any time and did not confer any rights. JA.1515.
The district court granted relief to plaintiffs, however, on their estoppel claim regarding the government’s information-sharing policy. The district court concluded without analysis that the government “promised not to transfer or use the information gathered from Dreamers for immigration enforcement.” JA.1515. Although the district court did not dispute the government’s assurance that the information-sharing policy has not changed, it noted that “counsel for the Government was unable to provide any assurance that the Government would not make changes” in the future. JA.1516. Accordingly, the court entered a permanent injunction that, as amended, requires the government to comply with its 2012 policy, except that the government may no longer modify or rescind that policy. The injunction further requires “any requests for deviation to be submitted to the district court for in camera review.” JA.1532-33.
SUMMARY OF ARGUMENT The district court correctly declined to disturb Acting Secretary Duke’s memorandum rescinding the discretionary DACA enforcement policy. The district court erred, however, in enjoining the government from modifying its informationsharing policy in the future. I. As an initial matter, the district court should have dismissed plaintiffs’ APA claims as non-justiciable. In rescinding the previous non-enforcement policy
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embodied in DACA, the Acting Secretary reset the agency’s enforcement priorities. A determination of general enforcement policy, like other enforcement decisions, is traditionally committed to agency discretion by law and thus not subject to APA claims. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 831 (1985). That is particularly true in the immigration context, where the “broad discretion exercised by immigration officials” is a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387, 396-97 (2012). That the Acting Secretary’s discretionary enforcement decision was based on legal analysis is immaterial, because the fact that an “agency gives a ‘reviewable’ reason for otherwise unreviewable action” does not mean that “the action becomes reviewable.” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (BLE) (emphases added).
Nothing in the INA cabins that discretion here. To the contrary, 8 U.S.C. § 1252(g) precludes jurisdiction over challenges to “‘no deferred action’ decisions and similar discretionary determinations . . . outside the streamlined process that Congress has designed” for litigating an alien’s removal. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 & n.9 (1999) (AADC); see also 8 U.S.C. § 1252(b)(9). Thus, even if the Acting Secretary’s exercise of enforcement discretion were subject to review at all, that review could take place only in a petition from a final removal order.
II. In any event, the district court correctly concluded that the decision plainly satisfies the APA’s deferential standard. Regardless whether the original DACA policy was consistent with the INA, there is no claim that it was mandated by the statute or
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that rescinding it violated the statute. And the Acting Secretary’s discretionary rescission of DACA based on her clearly expressed concern that it would be enmeshed in litigation and likely enjoined nationwide was eminently reasonable, given the Texas litigation invalidating DAPA and expanded DACA, as well as the Attorney General’s opinion that DACA would and should meet the same fate. Neither precedent nor the APA required the Secretary to spell out the subsidiary legal reasons why it is illusory to distinguish DACA from expanded DACA and DAPA, and there likewise is no basis for a court to set aside the Secretary’s purely discretionary enforcement decision based on mere disagreement with her reasonable legal conclusion. All the more so now that Secretary Nielsen has issued a memorandum further explaining the rescission and agreeing with Acting Secretary Duke’s decision.
Contrary to plaintiffs’ contentions, the district court properly ruled based on the administrative record before it. “The APA specifically contemplates judicial review on the basis of the agency record,” and “[t]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). Plaintiffs have wholly failed to make the strong showing of bad faith required to rebut the rule that discovery is not permitted in an APA suit. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).
The district court also correctly concluded that plaintiffs’ procedural APA claims fail. The rescission memorandum was plainly a general statement of policy, not
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a substantive rule. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir.1987). It thus was not required to go through notice-and-comment rulemaking.
The district court was similarly correct that the Acting Secretary’s decision in no way violates the Constitution. The DACA rescission applies equally to persons of all ethnicities, although, like virtually all immigration policies, it has a disproportionate effect on certain ethnicities—here, Latinos from Central and South America. A challenge to such a facially-neutral immigration enforcement policy based on allegations of discriminatory motive is not permitted under AADC. 525 U.S. at 48892. And, even assuming such a challenge could proceed at all under AADC, plaintiffs have come nowhere near alleging the clear evidence of outrageous government conduct necessary to make out a claim of discriminatory enforcement in the immigration context. Id. The district court also correctly rejected plaintiffs’ contentions that the rescission of DACA violated the protections of the Due Process Clause. DACA itself created no protected liberty or property interest, and its rescission does not shock the conscience.
III. Plaintiffs have failed to demonstrate entitlement to the injunction entered by the district court. Even assuming a freestanding equitable estoppel claim against the government were permissible, plaintiffs have failed to demonstrate any change in the government’s information-sharing policy, which has always permitted modification. And, even assuming a change occurred, plaintiffs have not demonstrated the affirmative misconduct required to make out an equitable estoppel
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claim. At a minimum, the district court erred in granting plaintiffs nationwide relief. Bedrock principles of standing and equitable discretion limit the scope of any injunction to plaintiffs in these cases.
STANDARD OF REVIEW A district court’s grant of summary judgment is reviewed de novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc). Summary judgment may be granted where there are no disputes of “material fact,” and “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed. R. Civ. P. 56(c)). The district court’s grant of a permanent injunction is reviewed for abuse of discretion, but it is per se an abuse of discretion to commit an error of law, which is reviewed de novo. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 939 (4th Cir. 1995).
ARGUMENT I. The Acting Secretary’s Rescission of the Discretionary DACA
Enforcement Policy Is Not Subject to Judicial Review. A. The decision is not subject to APA review because it is
committed to agency discretion by law. 1. The APA precludes review of agency actions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This provision applies to various types of agency decisions that “traditionally” have been regarded as unsuitable for judicial review, Lincoln v. Vigil, 508 U.S. 182, 191 (1993), including the decision whether or not
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to institute enforcement actions, Chaney, 470 U.S. at 831. Such decisions are similar in significant ways to a prosecutor’s decision whether or not to indict—“a decision which has long been regarded as the special province of the Executive Branch.” Id. at 832; 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.” (emphasis added)). Such discretionary enforcement actions “cannot be the subject of judicial review” even when an agency (or a prosecutor) bases them on what would be “a ‘reviewable’ reason” in another context. BLE, 482 U.S. at 283.
The Acting Secretary’s decision to discontinue a prior non-enforcement policy falls well within the types of enforcement decisions that traditionally have been understood as “committed to agency discretion.” Like the decision to adopt a policy of selective non-enforcement, the decision whether to retain such a policy can “involve[] a complicated balancing” of factors that are “peculiarly within [the agency’s] expertise,” including determining how the agency’s resources are best spent and how the non-enforcement policy fits with the agency’s overall policies. Chaney, 470 U.S. at 831. Likewise, a decision to abandon an existing non-enforcement policy will not, in itself, affect “an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.” Id. at 832. Indeed, an agency’s decision to reverse a prior policy of civil non-enforcement is akin to changes in policy as to criminal prosecutorial discretion, which regularly occur within the Department of Justice both during and across presidential administrations, and which,
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as noted, are generally not amenable to judicial review. Judicial review is available if a decision to enforce results in an adverse final determination that deprives an individual of liberty or property, but that review is limited to the substance of the final determination; an individual cannot escape guilt of the criminal or civil offense by bringing an APA challenge to an agency’s discretionary decision to enforce the law.
This presumption of non-reviewability applies with particular force in the context of immigration enforcement discretion. In general, the “broad discretion exercised by immigration officials” has become a “principal feature of the removal system.” Arizona, 567 U.S. at 396; see also, e.g., 6 U.S.C. § 202(5) (vesting authority in the Secretary of Homeland Security to “[e]stablish[] national immigration enforcement policies and priorities”). And more specifically, a suit challenging a discretionary decision to enforce the immigration laws would entail the extraordinary relief of ordering the government to allow a “continuing violation of United States law.” AADC, 525 U.S. at 490. The revocation of a prior immigration non-enforcement policy is thus plainly a decision that is “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and not subject to attack under the APA.
2. The district court did not engage with any of this precedent. Instead, the court held that “[p]laintiffs’ APA claims are justiciable because they relate to the procedures followed by DHS—not to the substance of its policy” and a court “may review whether the repeal of DACA followed the correct APA procedures.” JA 1501. Even on its own terms, this reasoning overlooks that plaintiffs’ arbitrary-and-capricious
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claim is substantive, not procedural. See, e.g., National Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1042 (D.C. Cir. 2012) (distinguishing “the APA’s procedural dictates” from “its substantive command that agency decisionmaking not be ‘arbitrary’ or ‘capricious’”). The district court then declared it “important to note” that the Acting Secretary had rescinded DACA based on her “belief that the program was unlawful and would face lengthy legal challenges.” JA.1501. To the extent that the court found plaintiffs’ arbitrary-and-capricious claim justiciable on that basis, it further erred.
In BLE, the Supreme Court expressly rejected the proposition that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. at 283. By way of example, the Court observed 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,” yet “it is entirely clear that the refusal to prosecute cannot be the subject of judicial review” notwithstanding that the prosecutor’s belief “is surely an eminently ‘reviewable’ proposition.” Id. Thus, after BLE, a court cannot justify judicial review of an agency’s discretionary enforcement decision (an “otherwise unreviewable action”) simply on the ground that the decision was based on a general interpretation of law. See Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 675-76 (D.C. Cir. 1994) (explaining that BLE settles the question whether “Chaney’s presumption of nonreviewability is inapplicable when the agency bases its refusal to enforce in an individual case solely on a legal interpretation without explicitly relying on its
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enforcement discretion”). A legal rationale cannot provide a hook to support review of the underlying enforcement decision.
In some circumstances, though, the legal rationale can be reviewable on its own, for example when an agency provides a definitive interpretation of a statute’s substantive command in the course of announcing a general policy. See Crowley, 37 F.3d at 677 (explaining that there was no substantive interpretation in the single-shot enforcement action at issue, but that a reviewable embedded interpretation might be “more likely” to exist in a general enforcement policy). This distinction between the unreviewability of an enforcement decision and the possible reviewability of its legal rationale is well illustrated by UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986). In Brock, the D.C. Circuit explained that “there is no review available from [an] agency’s specific nonenforcement decision . . . or its overall pattern of decisions not to pursue enforcement action in these areas.” Id. at 245; see also id. (“If the Union had challenged only the Department’s decision not to take enforcement action against [certain entities], or even against this entire genus of practices, our task would be completed.” (emphasis added)). But the court went on to hold that “when a legal challenge focuses on an announcement of a substantive statutory interpretation,” judicial review is available. Id.
These cases demonstrate (1) where an enforcement decision is otherwise unreviewable, a court may not use the fact that the decision rests on a general legal rationale as a hook to permit judicial review of the underlying enforcement decision;
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and (2) where an unreviewable enforcement decision rests on a general legal interpretation of the statute’s substantive commands, a court may in certain situations “carve out” that embedded interpretive rule for review and vacatur (assuming that other prerequisites to judicial review are met), but it may not set aside the underlying enforcement decision.
Applying these principles, plaintiffs’ substantive APA claim is not subject to judicial review. Even assuming arguendo that the sole rationale for the Acting Secretary’s decision was that DACA is unlawful, that legal rationale could not be used as a hook to review the otherwise unreviewable enforcement decision to rescind DACA. As explained, such review is directly contrary to BLE. Nor would review of the legal rationale alone, as an interpretive rule embedded in the underlying enforcement policy decision, justify setting aside the rescission of DACA itself. Any embedded legal interpretation here would concern, at most, the scope of the Acting Secretary’s enforcement discretion. But that interpretation does not govern the behavior of the parties—no one disputes that DACA recipients are removable under the statute. Indeed, the decision at issue here rests on enforcement discretion all the way down.
3. Plaintiffs did not address this aspect of the district court’s ruling in their opening brief on appeal, but they did advance several arguments below in support of their position that their substantive APA claim is justiciable. None has merit.
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First, plaintiffs suggested that “the relevant substantive law that the government cited as the basis for the rescission” provided “judicially manageable standards by which a court can evaluate Plaintiffs’ APA claims.” JA.482. As explained above, it is both well established and common sense that an agency’s discretionary decision whether to enforce a law is not made reviewable because it is based on an understanding of governing law. See supra pp. 18-21.
Rather, for an enforcement decision to be reviewable, the “law to apply” must depart from tradition by “circumscrib[ing] agency enforcement discretion” and “provid[ing] meaningful standards for defining the limits of that discretion.” Chaney, 470 U.S. at 834. Such limits might be found in the statute that provides the agency with enforcement discretion, if Congress has set “substantive priorities” or otherwise limited “an agency’s power to discriminate among issues or cases it will pursue.” Id. at 833; see also Texas v. United States, 809 F.3d 134, 168 (5th Cir. 2015) (holding that court could review whether DAPA ran afoul of alleged INA constraints on enforcement discretion). But neither plaintiffs nor the district court have identified anything in the INA that limited DHS’s discretion in rescinding DACA.1
1 Constitutional constraints on enforcement discretion also are traditionally reviewable and provide meaningful standards to apply. See Webster v. Doe, 486 U.S. 592, 603-04 (1988). Review of plaintiffs’ constitutional claims is therefore not precluded by § 701(a)(2), although those claims are separately barred here by 8 U.S.C. § 1252(g) and are meritless in any event. See infra Part II.C .
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Second, plaintiffs argued that Chaney’s presumption does not apply because that case is “based on the recognition that courts are not well placed to second-guess an agency’s balancing of . . . factors which are particularly in within its expertise,” and “the Government has not engaged in any ‘balancing’ of individualized factors.” JA.484-85; see also JA.482-83. But this argument merely repackages the analysis foreclosed by BLE and Chaney. Where a discretionary enforcement decision is traditionally unreviewable because there is no statutory or regulatory constraint on the exercise of that discretion, a court may not review the agency’s decision regardless of what factors the agency chooses to consider in making that decision, including even if the agency believes for legal reasons that it lacks any discretion at all. Notably, Chaney identified the balancing of discretionary factors as only one of “many” reasons for the “general unsuitability for judicial review” of agency enforcement decisions, and emphasized as well that enforcement decisions have “long been regarded as the special province of the Executive Branch.” 470 U.S. at 831-32.
Indeed, this argument is in significant tension with the facts of Chaney itself. The FDA’s decision not to take enforcement actions with respect to lethal injection drugs relied on both enforcement discretion policy and a perceived lack of jurisdiction. 470 U.S. at 824. The Supreme Court did not call into question the nature of the agency’s policy decision despite the agency’s alternative conclusion. And, in any event, the DACA rescission did involve discretionary balancing, because it rested in part on enforcement-discretion concerns about legality and litigation risk.
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Third, plaintiffs argued that the DACA rescission is reviewable because it is “a broad agency enforcement policy.” JA.483. This argument is also inconsistent with the facts of Chaney. The non-enforcement decision in that case was not an individualized decision by the FDA to forgo enforcement of the Federal Food, Drug, and Cosmetic Act against a single alleged violator. Rather, the plaintiffs in Chaney requested the FDA to enforce the statute’s misbranding prohibition against the use of certain drugs for capital punishment, by taking “various investigatory and enforcement actions” against “drug manufacturers,” “prison administrators,” and “all [others] in the chain of distribution”; the FDA, however, categorically concluded that its enforcement discretion “should not be exercised to interfere with this particular aspect of state criminal justice systems.” 470 U.S. at 824-25. In short, the question under Section 701(a)(2) is whether the type of agency decision at issue is inherently discretionary in nature, not the number of people to whom it applies.
Common sense would dictate this conclusion even if it were not already settled law. Individual enforcement decisions are regularly informed by general interpretations of the agency’s substantive statute to determine “whether a violation has occurred.” Chaney, 470 U.S. at 831; see BLE, 482 U.S. at 283 (“[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.”). Similarly, agency decisions about how its “resources are best spent” or how certain enforcement activity “best fits the agency’s overall policies,” Chaney, 470 U.S. at 831,
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are at least as susceptible to implementation through broad guidance as through caseby-case enforcement decisions. See, e.g., Alaska Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 935, 938 (9th Cir. 1987) (holding unreviewable “a written policy stating that subsistence hunting in Alaska during the closed season would not be punished” because “traditional methods of enforcing game laws are not effective in the vast reaches of rural Alaska”).2
Fourth, plaintiffs argue that the Acting Secretary’s decision was reviewable because, rather than adopting a non-enforcement policy, it rescinded one. Their suggestion that the Chaney presumption applies only to “attempt[s] to obtain judicial review of an agency decision not to act,” JA.485, is foreclosed by this Court’s decision in Speed Mining, Inc. v. Federal Mine Safety & Health Review Commission, 528 F.3d 310 (4th Cir. 2008). In that case, the owner-operator of a coal mine contended that the Secretary of Labor abused her discretion in issuing citations for safety violations. The Court held that the decision was unreviewable, explaining that an “agency’s exercise of its enforcement discretion,” even when that discretion is exercised to enforce the law, is “an area in which the courts have traditionally been most reluctant to interfere.” Id. at 318.
2 Plaintiffs below cited Kenney v. Glickman, 96 F.3d 1118, 1124 (8th Cir. 1996), but that case involved “policy decisions based on the [agency’s] interpretation” of the substantive commands of a statute, not the scope of its enforcement discretion.
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Fifth, plaintiffs further suggested that the Acting Secretary’s “affirmative . . . action rescinding protected interests that have been granted to Dreamers provid[es] a clear focus for judicial review.” JA.486. But the premise of this argument—that DHS made a commitment to certain persons unlawfully in the country—is incorrect. Indeed, DHS made explicit when it adopted the DACA non-enforcement policy that “[t]his memorandum confers no substantive right.” JA.131.3
More fundamentally, any reliance interests would not justify judicial review of otherwise-non-reviewable acts of discretion. In Lincoln, for example, the Indian Health Service had operated its regional program for seven years, providing important medical treatment to disabled children on which the recipients had undoubtedly come to rely. See 508 U.S. at 185-88. Notwithstanding that reliance, the Supreme Court held that the Service’s discretionary decision to discontinue the program by reallocating a lump-sum appropriation was non-reviewable. Id. at 193-94.
Nor does the availability of review turn on the significance of a plaintiff’s asserted interest in an agency’s discretionary enforcement decision. The Supreme Court made this clear in Chaney, where plaintiffs offered “evidence that use of the drugs [that FDA declined to regulate] could lead to a cruel and protracted death.” 470
3 Robbins v. Regan, 780 F.2d 37, 47 (D.C. Cir. 1985) (per curiam), which involved a “rescission of commitments,” is therefore inapposite. That case also did not involve an exercise of enforcement discretion—the challenged agency action was the alleged refusal to provide previously agreed upon funding for renovations of a homeless shelter.
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U.S. at 827. Holding that it could not properly review the agency’s decision, the Supreme Court emphasized that “[t]he fact that the drugs involved in this case are ultimately to be used in imposing the death penalty must not lead this Court or other courts to import profound differences of opinion over the meaning of the Eighth Amendment . . . into the domain of administrative law.” Id. at 838.
In sum, none of plaintiffs’ reasons, individually or collectively, justify applying APA review to the Acting Secretary’s discretionary decision to rescind the DACA non-enforcement policy. And it warrants emphasis that those reasons, if accepted by this Court, would lead to a radical and untenable intrusion on agencies’ enforcement discretion. Consider the following example of a quintessential exercise of prosecutorial discretion: one chief prosecutor adopts a general policy of not enforcing drug laws against low-level, non-violent offenders because she views them as victims of circumstance who should receive treatment and support; but her successor then rescinds that non-enforcement policy based on her legal concerns that the policy would violate her duty to faithfully execute the laws and provide equal treatment to defendants. The district court’s analysis in this case would allow drug offenders in that circumstance, who are concededly guilty, to nevertheless seek judicial review of the legal reasoning underlying the second prosecutor’s discretionary decision to enforce the drug laws in a different manner than her predecessor. That is not, and cannot possibly be, the law.
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B. 8 U.S.C. § 1252 bars pre-enforcement review of plaintiffs’ claims.
1. Under 8 U.S.C. § 1252, judicial review of DHS enforcement decisions is generally available, if at all, only through the procedures for reviewing removal orders set forth in that section. As relevant here, section 1252(g) states that “[e]xcept as provided in this section . . . 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 [Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this subchapter.” As the Supreme Court explained in AADC, section 1252(g) is “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” See 525 U.S. at 485 & n.9.
The Acting Secretary’s rescission of DACA is such a “‘no deferred action’ decision[],” AADC, 525 U.S. at 485, and is an initial “action” in the agency’s “commence[ment] [of ] proceedings” against aliens who are unlawfully in the country, 8 U.S.C. § 1252(g). Thus, even assuming that the DACA rescission were reviewable, it would be reviewable only as otherwise “provided in [Section 1252],” id.—that is, through “[ j]udicial review of a final order of removal,” id. § 1252(a)(1). See, e.g., Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999). That review of a final order of removal is the sole avenue for
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judicial review is underscored by 8 U.S.C. § 1252(b)(9), which channels into the review of final removal orders all questions of law or fact arising from any action taken to remove an alien. See AADC, 525 U.S. at 483 (characterizing section 1252(b)(9) as an “unmistakable ‘zipper’ clause”); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).
The limitation on review here is consistent with the review procedures for other kinds of discretionary DHS actions. For example, under 8 U.S.C. § 1252(a)(2)(B), “no court shall have jurisdiction to review” judgments regarding the grant or denial of specified forms of discretionary relief—including cancellation of removal, voluntary departure, certain waivers of inadmissibility, and adjustment of status. See id. § 1252(a)(2)(B)(i) (citing 8 U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, 1255). Congress provided a limited exception to that jurisdictional bar for “review of constitutional claims or questions of law,” id. § 1252(a)(2)(D), but it mandated that any such review occur only “upon a petition for review [of a final order of removal] filed with an appropriate court of appeals in accordance with this section,” id.; see, e.g., Green v. Napolitano, 627 F.3d 1341, 1347 (10th Cir. 2010).
2. The district court failed to grapple with the government’s argument that review here is barred by the INA, stating only that “the notion that 8 U.S.C. § 1252(g) precludes judicial review has been rejected repeatedly” and citing AADC. JA.1501.
But AADC supports the government’s position in this case. As explained, in AADC, the Supreme Court recognized the INA is “designed to give some measure
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of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” See 525 U.S. at 485 & n.9. The INA affords such protection by channeling legal challenges to such decisions into review of final removal orders, pursuant to 8 U.S.C. § 1252(g) and 8 U.S.C. § 1252(b)(9). Plaintiffs cannot frustrate the INA’s reticulated review scheme by filing suit before the agency has officially initiated an enforcement proceeding.
The Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), does not counsel a different result. The plurality opinion described AADC as having interpreted section 1252(g) not “to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General,” but rather “to refer to just those three specific actions themselves.” Id. at 841. But the opinion merely emphasized that the plaintiffs there fell outside of AADC ’s interpretation of section 1252(g) because they were challenging the conditions and length of detention ancillary to the removal process—in other words, “[they were] not asking for review of an order of removal; they [were] not challenging the decision to detain them in the first place or to seek removal; and they [were] not even challenging any part of the process by which their removability will be determined.” Id. Here, by contrast, the legal questions at issue arise from a challenge to an ingredient to commencement of
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removal—the rescission of deferred-action forbearance from removal—and review is therefore barred under section 1252(g) and AADC. Id. at 841 n.3.
If anything, Jennings underscores the fact that section 1252(b)(9), which channels all legal and factual questions “arising from any action taken or proceeding brought to remove an alien” into final removal orders, also bars plaintiffs’ claims. Under both the plurality’s and concurrence’s interpretation of section 1252(b)(9), see 138 S. Ct. at 839-41 (plurality op.); id. at 852-53 (Thomas, J., concurring in the judgment), plaintiffs’ claims in this case “aris[e] from” an “action taken” in the removal process. II. The District Court Correctly Held That the Rescission of DACA
Was Lawful. A. The district court correctly held that the DACA rescission
was not arbitrary and capricious. Even if the Acting Secretary’s decision were reviewable under the APA, it was plainly not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). As the district court correctly emphasized in so holding, JA.1505, the APA standard of review is “narrow,” Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983): “[A] court is not to substitute its judgment” for the agency’s reasonable judgment, id., and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
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1. The district court correctly concluded that it was not arbitrary and capricious to rescind DACA because it was subject to serious legal challenge.
a. It is uncontroverted that nothing in the INA requires any aspect of the DACA policy. Plaintiffs’ claim, instead, is that once an agency has adopted a purely discretionary non-enforcement policy, it must provide a robust explanation for a decision to pursue a different enforcement policy. Unsurprisingly, plaintiffs have not identified any authority for this proposition. Nor can they seriously dispute the district court’s conclusion that it was reasonable for the Secretary to act based on the significant legal risks presented by maintaining a policy (original DACA) that was materially indistinguishable to ones (expanded DACA and DAPA) that had been enjoined nationwide by the Fifth Circuit in a decision affirmed by an equally divided Supreme Court. This is especially so in the face of a threat by Texas and other States to challenge DACA on the same grounds. As the district court explained, “[r]egardless of whether DACA is, in fact, lawful or unlawful, the belief that it was unlawful and subject to serious legal challenge is completely rational.” JA.1506. “DAPA—an analogous program, promulgated by analogous means,” the court explained “had been defeated less than a year prior” and “[t]he same plaintiffs who defeated DAPA threatened to challenge DACA imminently.” Id. “[I]nstead of the chaotic possibility of an immediate termination,” the Acting Secretary “opted for a six-month wind-down period.” Id.
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The district court was correct. In Texas v. United States, the Fifth Circuit had concluded that DAPA and expanded DACA were unlawful on both procedural and substantive grounds. 809 F.3d at 178; see id. at 147 n.11 (including the “DACA expansions” within the opinion’s references to “DAPA”). The entirety of the Fifth Circuit’s reasoning applies equally to the original DACA policy.
With respect to procedure, the Fifth Circuit concluded that the memorandum expanding DACA and creating DAPA was not exempt from notice and comment as a statement of policy because of how the original DACA policy had been implemented. Texas, 809 F.3d. at 171-78. The court found that, “[a]lthough the DAPA Memo facially purports to confer discretion,” in fact it would operate as a binding statement of eligibility for deferred action because that is how the original DACA policy had been implemented. Id. at 171, 174 n.139.
With respect to substance, the Fifth Circuit held that DAPA and expanded DACA were contrary to the INA because (1) “[i]n specific and detailed provisions,” the INA already “confers eligibility for ‘discretionary relief,’ ” including “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179; (2) the INA’s otherwise “broad grants of authority” could not reasonably be construed to assign to the Secretary the authority to create additional categories of aliens of “vast ‘economic and political significance,’ ” id. at 182-83; (3) DAPA and expanded DACA were inconsistent with historical deferred-action policies because they neither were
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undertaken on a “country-specific basis . . . in response to war, civil unrest, or natural disasters,” nor served as a “bridge[] from one legal status to another,” id. at 184; and (4) “Congress ha[d] repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (‘DREAM Act’), features of which closely resemble DACA and DAPA,” id. at 185 (footnote omitted). Every one of those factors likewise applies to the original DACA policy.
b. Plaintiffs posit various reasons they believe distinguish DACA from DAPA and expanded DACA, and fault the Acting Secretary for failing to expressly address them. Pl. Br. 30. But plaintiffs provide no authority (because none exists) for the proposition that the APA required the Acting Secretary to provide the equivalent of a bench memo setting out the subsidiary legal arguments to be made by each side in the course of protracted litigation, with an accompanying evaluation of the likelihood of success in various district courts, the courts of appeals, and the Supreme Court. Indeed, as this Court has explained, an agency “explanation need not be a ‘model of analytic precision’” to satisfy the APA’s requirements. Downey v. U.S. Dep’t of Army, 685 F. App’x 184, 190 (4th Cir. 2017) (quoting Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001)); see also Bowman, 419 U.S. at 286 (rationale need only be reasonably discernable). So long as the ultimate litigation judgment was reasonable, the Acting Secretary’s decision is not arbitrary and capricious. All of plaintiffs’ arguments to the contrary fail.
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First, plaintiffs urge that DAPA might have been more vulnerable to challenge because “unlike DAPA, DACA has no analogue in the INA.” Pl. Br. 32 (quoting NAACP, 298 F. Supp. 3d. 239). The basis of the Fifth Circuit’s Texas decision was not, however, the existence of a particular statutory pathway to lawful presence, but rather the “specific and intricate provisions” of the INA as a whole addressing discretionary relief (which, of course, no more include DACA recipients than DAPA recipients). 809 F.3d at 186. Indeed, a pathway to lawful presence could not have been decisive to the Fifth Circuit’s rationale, because, as that court itself noted, some DAPA recipients (i.e., the parents of lawful permanent residents) had no such pathway to citizenship, id. at 179-80, and neither did expanded DACA recipients (who differed from DACA recipients only with respect to age and length of residence). Given all this, plaintiffs’ proposed distinction is entirely backward. If anything, the fact that Congress had legislated only for certain individuals similarly situated to DAPA recipients—and not DACA recipients—would make DACA more inconsistent with the INA.
Second, plaintiffs contend that the district erred in failing to consider whether a defense like laches might apply to a suit seeking to enjoin DACA. Pl. Br. 32. But laches requires a showing of prejudice, Abbott Labs. v. Gardner, 387 U.S. 136, 155 (1967), and plaintiffs do not explain how the government (or, indeed, anyone else) was prejudiced by Texas’s failure to bring suit earlier, which simply would have caused DACA to end sooner.
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Third, plaintiffs contend that the Acting Secretary failed to consider the “injunction prerequisites, such as how any plaintiff challenging DACA could claim immediate or irreparable harm.” Pl. Br. 33. This argument ignores the fact that the Fifth Circuit already affirmed the DAPA injunction, and, as explained, there are no material differences between the two policies.
Fourth, plaintiffs cannot undermine the reasonableness of the Acting Secretary’s decision by arguing that the Attorney General erroneously stated that the Fifth Circuit had found “constitutional” defects in DAPA and expanded DACA. Pl. Br. 31. The Acting Secretary made her decision after “[t]aking into consideration” the Attorney General’s letter and the Fifth Circuit’s ruling, but nothing in her memorandum suggests that she misunderstood the nature of that ruling, which she herself described in purely statutory terms. JA.383. Moreover, even the Attorney General’s letter in its entirety should not be read to attribute “constitutional” holdings to the Texas courts, but rather to invoke the “legal grounds” the courts adopted in support of his own view that DACA was “unconstitutional.” JA.379. In any event, any error in attributing a finding of unconstitutionality to the Texas courts was plainly harmless because the Attorney General did not rescind DACA. Rather, the Acting Secretary did, and it is clear from her memorandum that her decision did not depend in any way on whether DACA was unconstitutional, rather than “merely” contrary to statute and likely to be enjoined regardless.
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Fifth, plaintiffs err in contending that Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) (en banc), held that reliance on litigation risk renders agency action arbitrary and capricious. Pl. Br. 31. Kake held no such thing. There, USDA initially had determined not to exempt a particular forest from a rule prohibiting roads in certain areas of national parks, but then reversed course two years later on the identical factual record. Kake, 795 F.3d at 959. As a tertiary rationale for its changed position, USDA suggested that granting the exemption would “reduce[ ] the potential for conflicts” in light of “litigation over the last two years” concerning its rule. Id. at 970. The Ninth Circuit rejected that rationale because the “other lawsuits involved forests other than the [one exempted],” and thus it was “impossible to discern how [the] exemption . . . would affect them,” and USDA “[a]t most . . . [had] deliberately traded one lawsuit for another.” Id. Kake is thus entirely inapposite. It involved the scope of a substantive rule rather than a purely discretionary enforcement policy, and it involved speculative litigation benefits rather than the significant litigation benefit of mooting a near-certain injunction. In short, the government’s position here is not that it may “trade[ ] one lawsuit for another,” but instead that it may choose an orderly wind-down of a purely discretionary non-enforcement policy rather than litigate to the bitter end in the face of adverse precedent.
c. Nor is there any basis to reject the Acting Secretary’s litigation-risk concern as a “post hoc rationalization.” The memorandum focuses from beginning to end principally on litigation concerns, not the legality of DACA per se. The memorandum
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recounted in significant detail the litigation surrounding the DAPA and expanded DACA policies. JA.381-82. It noted that the agency’s prior June 2017 decision to discontinue DAPA and expanded DACA was made after “considering the [government’s] likelihood of success on the merits of th[at] ongoing litigation.” JA.382. It described the subsequent letter from Texas and other States to the Attorney General notifying him of those States’ intention to amend the existing lawsuit to challenge the original DACA policy. Id. It quoted the Attorney General’s qualified statement that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. (emphasis added). And it concluded that, in light of the foregoing, and “[i]n the exercise of [her] authority in establishing national immigration policies and priorities” under 6 U.S.C. § 202(5), the Acting Secretary had decided merely that the DACA policy “should” be terminated and wound down in “an efficient and orderly fashion,” not that it “must” be.
The Nielsen Memo reaffirms this understanding of the Texas litigation and the risk it posed. It spells out why “[a]ny arguable distinctions between the DAPA and DACA policies” were not “sufficiently material” to resolve the agency’s doubts over DACA’s legality, and explains that, whether or not courts ultimately would uphold DACA, “[t]here are sound reasons for a law enforcement agency to avoid discretionary policies that are legally questionable.” Nielsen Memo 2. Indeed, regardless of whether the Duke Memo adequately explained this legal-doubt rationale,
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the Nielsen Memo’s further explanation provides sufficient basis to affirm the district court’s rejection of plaintiffs’ challenge to DHS’s rescission of the DACA policy.
d. In any event, Acting Secretary Duke’s decision is independently supported by her reasonable conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful. As detailed above, the Fifth Circuit had already concluded that DAPA and expanded DACA were procedurally and substantively invalid, in a decision that four Justices of the Supreme Court voted to affirm. See supra pp.33-34. The Attorney General expressed his agreement with the conclusion reached by the Fifth Circuit in a decision that applies equally to the original DACA policy. See JA.379 (concluding that DACA was “effectuated . . . without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result”). The Acting Secretary’s decision to rescind the purely discretionary DACA non-enforcement policy on the basis of the Fifth Circuit’s decision, the Supreme Court’s equally divided affirmance, and the Attorney General’s opinion was not the type of “clear error of judgment,” State Farm, 463 U.S. at 43, that would make it arbitrary and capricious under the APA. As the district court put it, “[H]ow could trying to avoid unlawful action possibly be arbitrary and capricious?” JA.1506.
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2. Plaintiffs’ additional arguments that the rescission memorandum was arbitrary and capricious are meritless.
a. Plaintiffs are equally mistaken in arguing that the Acting Secretary’s decision was arbitrary and capricious in failing to consider the reliance interests at stake. Pl. Br. 27-29. Because of the nature of the decision to rescind DACA, reliance interests are not a sufficiently “important aspect” of the question to require express consideration. State Farm, 463 U.S. at 43. On its face, DACA confers no legitimate reliance interests. DACA made deferred action available for only two-year periods, which could “be terminated at any time” at the agency’s discretion. JA.1013. When he announced DACA in 2012, President Obama explained that it was a “temporary stopgap measure,” not a “permanent fix.” Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY. And he urged Congress to act “because these kids deserve to plan their lives in more than two-year increments.” Id. A purely discretionary policy that can be revoked at any time cannot create legally cognizable reliance interests—and certainly not beyond the stated duration (generally two years) of existing deferred-action grants, which the Acting Secretary left untouched. Nothing in the INA prevents the Secretary of Homeland Security from changing her “national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). And any reliance was even less justified, of course, to the extent that DACA was unlawful.
At a minimum, the asserted reliance interests plainly failed to overcome the substantial change in circumstances resulting from the Supreme Court’s affirmance of
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the Fifth Circuit’s decision, which significantly increased the risk that DACA would be enjoined nationwide and thus drastically reduced the degree to which DACA recipients could rely on the continuation of what was already a purely discretionary non-enforcement policy. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), upon which plaintiffs rely, is entirely inapposite. That case involved the Department of Labor’s interpretation of whether automotive service advisors were covered by a statutory exemption from the overtime provisions of the Fair Labor Standards Act. Unlike the policy at issue here, the one in Encino Motorcars concerned private parties’ substantive statutory rights, had been in place for thirty-three years, and was not subject to a significant risk of imminent judicial invalidation. Id. at 2126-27. The relevant industry stakeholders had therefore developed a strong and justified reliance interest that necessitated consideration under the APA.
In any event, the Acting Secretary’s decision suitably respected the interests of existing DACA recipients. Based on her reasonable evaluation of the litigation risk posed by the imminent lawsuit against the DACA policy, the choice she faced was between a gradual, orderly, administrative wind-down of the policy, and the risk of an immediate, disruptive, court-imposed one. Her decision to phase out the policy over a two-and-a-half-year period—permitting a period of additional renewals and permitting renewed and existing grants of deferred action to expire by their terms— was, by far, the more humane choice.
Again, the Nielsen Memo underscores this conclusion. Although not required, 41

Secretary Nielsen addressed whether any claimed reliance justified the continuation of the DACA policy. As the Secretary explained, she is “keenly aware that DACA recipients have availed themselves of the policy in continuing their presence in this country and pursuing their lives.” Nielsen Memo 3. “Nevertheless,” she concluded that “in considering DHS enforcement policy” she “d[id] not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy” and the other discretionary enforcement policy considerations that she articulated, especially in light of DACA’s temporary nature. Id. Instead, the Secretary determined that “issues of reliance would best be considered by Congress, which can assess and weigh a range of options.” Id. Ultimately, “[i]n [her] judgment, neither any individual’s reliance on the expected continuation of the DACA policy nor the sympathetic circumstances of DACA recipients as a class overcomes the legal and institutional concerns with sanctioning the continued presence of hundreds of thousands of aliens who are illegally present in violation of the laws passed by Congress.” Id. All that said, she also emphasized that any reliance concerns were further mitigated by the important fact that Acting Secretary Duke’s “rescission of the DACA policy does not preclude the exercise of deferred action in individual cases if circumstances warrant.” Id.
b. Plaintiffs similarly err by arguing that the rescission memorandum is arbitrary and capricious because it does not “cite[] any facts or changed circumstances that supported the change.” Pl. Br. 28. The Acting Secretary’s memorandum makes clear
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that DHS changed its position because the Texas injunction against DAPA and expanded DACA was affirmed by an equally divided Supreme Court; the Attorney General has disavowed the prior position; and Texas and other States were threatening to challenge DACA. That is more than sufficient to satisfy the APA’s requirement to acknowledge and explain a changed position. FCC v. Fox, 556 U.S. 502, 514-15 (2009).
c. Plaintiffs also miss the mark in speculating that “animus” motivated the rescission of DACA. Pl. Br. 29-30. Plaintiffs point to no evidence in the administrative record, or anywhere else, to support their contention that Acting Secretary Duke acted with animus in rescinding the DACA policy. See also infra Part II.C.1 (explaining the correctness of district court’s rejection of plaintiffs’ equal protection claims).
3. The administrative record provided an adequate basis on which to sustain the Acting Secretary’s decision.
As a final matter, plaintiffs err in asserting that the district court could not uphold the Acting Secretary’s decision based on the record before it. The district court correctly relied on the administrative record submitted by the agency and held that it supported the agency’s decision.
In agency review cases, “[t]he APA specifically contemplates judicial review on the basis of the agency record.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). In so doing, “[t]he focal point for judicial review should be the administrative
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record already in existence, not some new record made initially in the reviewing court.” Id. at 743-44. Rather than permit wide-ranging discovery, “the task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court.” Id.. If the agency’s action “is not sustainable on the administrative record made,” then the administrative “decision must be vacated and the matter remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam).
Plaintiffs argue both that the district court should have ordered the government to “complete” the record and that the district court should have granted discovery in order to consider extra-record materials. Pl. Br. 20-23. Both arguments are in error.
First, the record was not incomplete. In formal administrative proceedings, the APA provides that the “exclusive record for decision” consists of “[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding.” 5 U.S.C. § 556(e). The administrative record is composed “exclusive[ly]” of the materials affirmatively admitted by the agency in the course of the proceeding. Materials that are not “filed in the proceeding” pursuant to the agency’s own procedures, such as internal agency documents memorializing the agency’s own deliberations, are categorically outside the scope of the administrative record under section 556(e)—just like deliberative materials in the Judicial Branch such as draft opinions, bench memoranda, and communications among judges are not part of the
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record in a case in court. See also 28 U.S.C. § 2112; Fed. R. App. P. 16 & note (imposing the same rule). Although the APA does not contain a parallel provision prescribing the scope of the administrative record for informal agency actions (such as the statement of agency policy here), there is no reason why materials should be treated any differently than when they are created in a formal proceeding. Indeed, the APA’s lack of instruction and the informal character of the action give the agency more, rather than less, latitude in deciding what is material to its decision and thus belongs in the record. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978) (court may “not stray beyond the judicial province . . . to impose upon the agency its own notion of which procedures are ‘best’”).
In arguing that the record here is incomplete, plaintiffs wholly ignore the nature of the decision at issue. It is common sense that “[w]hat will constitute an adequate record for meaningful review may vary with the nature of the administrative action to be reviewed.” United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 249 (2d Cir. 1977). Here the challenged agency act is the formulation of a policy concerning prosecutorial discretion; the agency record permitted review of that policy (assuming review were available at all). Because that discretionary enforcement decision did not require the development of any particular evidentiary basis and turned instead on legal and policy assessment, there is no risk that the government could try to insulate its decisions by “withhold[ing] evidence unfavorable to its case.” Pl. Br. 22.
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Plaintiffs further allege that the administrative record is facially suspect because it did not include documents from subordinates. Pl. Br. 21-22. In making this argument, plaintiffs disregard the “presumption of regularity” that attaches to the agency’s action in designating the record. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993). In any event, plaintiffs recognize that the reason it may be appropriate to include materials from subordinates is that an agency decisionmaker may have based her decision on facts and evidence gathered and provided by subordinates. Pl. Br. 21. But the fact that materials in the possession of subordinates may, in certain circumstances, be indirectly considered by a decisionmaker does not mean that the absence of such materials renders an administrative record suspect and subject to “completion” in every case. The administrative record in this case included all non-deliberative materials considered by the Acting Secretary in reaching her decision.
In arguing (incorrectly) that the administrative record was incomplete because it “contained no materials explaining prior decisions to maintain the DACA program or the Government’s departure from its prior view that DACA was legal,” plaintiffs reveal their goal to uncover the deliberative processes of the agency in reaching its conclusion. Pl. Br. 22. But deliberative materials have no place in an administrative record. “[A]gency officials should be judged by what they decided, not for matters they considered before making up their minds.” National Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014). Indeed, deliberative materials are not merely protected
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from disclosure—they do not form part of the administrative record at all. See San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 44-45 (D.C. Cir. 1986) (plurality opinion) (explaining that “[j]udicial examination of [internal agency] transcripts would represent an extraordinary intrusion into the realm of the agency,” and that the petitioners must make a “‘strong showing of bad faith or improper behavior’” before the court would be “warranted in examining the deliberative proceedings of the agency”); Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305, 312-13 (S.D.N.Y. 2012) (“[C]ourts have consistently recognized that, for the purpose of judicial review of agency action, deliberative materials antecedent to the agency’s decision fall outside the administrative record.”).
Plaintiffs’ reliance on Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982), is misplaced. Pl. Br. 20. Plaintiffs there alleged that a federal agency had improperly funded projects. But the state plans that were being funded—“the very basis for federal decision-making” and documents that were required by regulation—were not included in the administrative record, thus creating a “strong suggestion that the record before the Court was not complete.” Dopico, 687 F.2d at 654. The agency action at issue here does not involve consideration of documents submitted to the government from the outside, and plaintiffs have not identified a comparable document that is missing from the record. Rather, this case involves the formulation of a policy with respect to enforcement discretion, and plaintiffs have not identified
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any non-deliberative materials outside the administrative record relevant to that legal policy decision that the Acting Secretary necessarily considered.
Second, plaintiffs are not entitled to extra-record evidence. The general rule is that discovery is not appropriate in an APA suit absent a “strong showing of bad faith or improper behavior.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); Air Transp. Ass’n of Am., Inc. v. National Mediation Board, 663 F.3d 476, 487 (D.C. Cir. 2011). Here the Acting Secretary explained the reasons for her action in a memorandum that was both publicly released and included in the administrative record. If the administrative record were insufficient for review (which it was not, see supra pp. 44-47), the proper remedy would be for the district court to remand the case to the agency, not to order discovery. Florida Power, 470 U.S. at 744.
In their attempt to evade the general rule forbidding discovery in APA cases, plaintiffs attempt to demonstrate that agency officials acted in bad faith. In making this argument, plaintiffs rely on statements made by “Government officials” that purportedly demonstrate racial animus and the reversal of the government’s previous support of the DACA policy. Pl. Br. 22-23. But neither of these grounds could support a finding of bad faith. First, plaintiffs have made no showing whatsoever that Acting Secretary Duke, the decisionmaker here, acted on the basis of animus. See infra Part II.C.1 (explaining that the district court correctly rejected plaintiffs’ equal protection claims). Second, the administrative record adequately explains the government’s change in position. See supra p. 43.
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B. The district court correctly held that the rescission of DACA did not require notice-and-comment rulemaking.
1. The APA generally requires that agencies give notice of proposed rules to the public and provide interested persons with an opportunity to comment on the proposal. 5 U.S.C. § 553(b)-(c). These requirements do not apply, however, to “general statements of policy.” Id. § 553(b)(3)(A). Accordingly, the rescission of the DACA policy did not require notice-and-comment rulemaking, as the district court correctly recognized (joining all the other courts to have considered the issue). See JA.1504-05.
A general statement of policy “advise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Lincoln, 508 U.S. at 197 (quoting U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “[L]ike a press release,” a general statement of policy “encourages public dissemination of the agency’s policies prior to their actual application in particular situations,” such as by announcing “the course which the agency intends to follow in future adjudications.” Pacific Gas & Elec. Co. v. Federal Power Comm’n, 506 F.2d 33, 38 (D.C. Cir. 1974). Significantly, however, policy statements “are binding on neither the public nor the agency,” and the agency “retains the discretion and the authority to change its position . . . in any specific case.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (citations omitted).
By contrast, “a substantive or legislative rule, pursuant to properly delegated
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authority, has the force of law, and creates new law or imposes new rights or duties.” Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 207 (4th Cir. 1989); see also Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (“Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’”).
The rescission memo was issued as an “exercise of [the Secretary’s] authority in establishing national immigration policies and priorities,” JA.383, and explains how the agency intends to exercise its enforcement authority on a prospective basis. The decision “does not . . . create any right or benefit, substantive or procedural, enforceable at law by any party,” JA.384, and does not affect anyone’s immigration status. As the district court explained, “[a]lthough a substantial paradigm shift, the DACA Rescission Memo neither curtails DHS’s discretion regarding individual immigration reviews, nor does it prevent the agency from granting . . . deferred action status in the future.” JA.1505. It simply returns to the prior status quo, reflecting the background principle that deferred action is “an act of prosecutorial discretion” that may be exercised “on an individualized case-by-case basis,” JA.381, and places “no limitations” on the agency’s exercise of such “otherwise lawful enforcement . . . prerogatives,” JA.384. Nothing in the rescission memo evidences an intent to be bound.
2. Plaintiffs contend that the DACA rescission is a substantive rule because it 50

withdrew officials’ discretion to grant deferred action under DACA. Pl. Br. 36-37. But that cannot be the test, because a change in policy always withdraws discretion to act under the repudiated policy. Setting aside that truism, the essence of plaintiffs’ argument is that they are less likely to receive deferred action based on a totality of the circumstances inquiry than under the DACA policy’s guidelines. But a reduced likelihood of relief does not transform a general statement of policy into a substantive rule. See Mada–Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir. 1987).
This Court’s decision in Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340-41 (4th Cir. 1995), relied on by plaintiffs, only underscores the correctness of the district court’s holding. Contrary to plaintiffs’ contention, this Court in Chen Zhou Chai did not hold that a general statement of policy is required to undergo notice-andcomment rulemaking if it “substantively impacts” individuals. Pl. Br. 38. Indeed, the Court held that an interim asylum policy was a general statement of policy, 48 F.3d at 1341 (citing Mada–Luna, 813 F.2d at 1015), even though it undoubtedly substantively impacted a number of individuals and the likelihood of their being granted asylum.
If the Acting Secretary’s memorandum requiring a return to fully individualized discretion for deferred action is a substantive rule, then a fortiori the restriction on discretion imposed by DACA itself was a substantive rule, as the Fifth Circuit held. Texas, 809 F.3d at 171-78. And that provides an independent and sufficient basis to reject the plaintiffs’ claim. See Chen Zhou Chai, 48 F.3d at 1341 n.8. It would offend both law and equity for this Court to set aside the DACA rescission for failure to
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follow notice-and-comment procedures when that rationale necessarily implies that DACA itself was invalid for the same reason. Not only would such a ruling effectively order the maintenance of an illegally enacted legislative rule, but any relief it provides would necessarily be short-lived, as such a decision would create binding precedent under which opponents of DACA could immediately obtain an injunction against it.
Plaintiffs respond that, even where a substantive rule is invalid, agencies must go through notice-and-comment before repealing it. Pl. Br. 34 n.4. But that argument rests on an inapposite case involving a substantive rule promulgated through noticeand-comment rulemaking and claimed to be defective for some other reason. See Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 438 (D.C. Cir. 1982) (holding that agency had not sufficiently evaluated the original rule). By contrast, it would make no sense to permit an agency official to violate notice-and-comment requirements in adopting a rule and then require her successors to go through the very hurdle of those requirements to undo the prior invalid rule.
C. The district court correctly held that the rescission of DACA did not violate the Constitution. 1. The DACA rescission did not violate equal protection.
a. In AADC, the Supreme Court rejected an attempt by a group of aliens to defend against removal by asserting that the Government was discriminating against them based on their First Amendment activity. 525 U.S. at 488-92. The Court began with the principle that “[e]ven in the criminal-law field, a selective prosecution claim is
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a rara avis.” AADC, 525 U.S. at 489 (citing, inter alia, Armstrong, 517 U.S. at 463-65). As the Court reaffirmed, “[b]ecause such claims invade a special province of the Executive—its prosecutorial discretion—we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” Id.
The Supreme Court in AADC then held that an even more restrictive rule than Armstrong’s clear-evidence standard was required when the claim of selective enforcement arises in the immigration context, because the concerns raised by such claims are “greatly magnified.” 525 U.S. at 489-90. The Court observed that the “delay” associated with challenges to immigration enforcement decisions is more harmful because it “permit[s] and prolong[s] a continuing violation of United States law,” especially given that “[p]ostponing justifiable deportation (in the hope that the alien’s status will change . . . or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding.” Id. at 490. The Court also recognized that heightened separation-of-powers concerns arise in this context because inquiring into the motives behind immigration enforcement entails “not merely the disclosure of normal domestic law enforcement priorities and techniques,” but also “the disclosure of foreign-policy objectives and [in some cases, like AADC itself,] foreign-intelligence products and techniques.” Id. at 490-91. Given all this, the Court dismissed “[t]he contention that a violation [of federal law] must be allowed to continue because it has been improperly selected” as
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“not powerfully appealing.” Id. at 491. Accordingly, the Court held that, “[a]s a general matter,” “an alien unlawfully in
this country has no constitutional right to assert selective enforcement as a defense against his deportation.” AADC, 525 U.S. at 488. Although the Court did “not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the . . . considerations [against discriminatory-enforcement claims] can be overcome,” it also did not decide “[w]hether or not there be such exceptions.” Id. at 491.
b. Although it reached the right result, the district court disagreed with the government on the framework under which to analyze plaintiffs’ equal protection claims. The court stated that even though “DACA was promulgated under a theory of prosecutorial discretion, its rescission was not based on an exercise of that discretion.” JA.1508. As already explained, the DACA policy itself was as an act of prosecutorial discretion (whether or not the exercise of that discretion was lawful) and the rescission of that policy reset the agency’s enforcement policies to no longer provide a categorical grant of deferred action to certain individuals. The rescission is thus precisely the kind of selective enforcement decision to which AADC applies, because plaintiffs do not dispute the government’s authority to enforce the immigration laws against them but instead argue that the government has a discriminatory reason for enforcing those laws against them (by declining to renew their deferred action).
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Plaintiffs contend (Br. 41) that the district court erred in applying the standard derived from Kleindienst v. Mandel, 408 U.S. 753 (1972). It is, however, not clear that the court applied Mandel in the sense asserted by plaintiffs. The district court discussed a number of cases for the proposition that courts should be wary of looking behind facially neutral statutes in a variety of contexts, see JA.1509-10, and then came to the reasonable conclusion that plaintiffs here had made nothing like the showing made in International Refugee Assistance Project (IRAP) v. Trump, 883 F.3d 233 (4th Cir.), cert. granted, and judgment vacated Trump v. IRAP, No. 17-1270, 2018 WL 1256938 (U.S. 2018), a showing which the Supreme Court has now deemed insufficient. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).
In Trump v. Hawaii the Supreme Court rejected statutory and constitutional challenges to the President’s Proclamation imposing entry restrictions on certain nationals of eight foreign countries. In vacating a preliminary injunction against the Proclamation, the Court reaffirmed that facially neutral immigration policies are subject to only limited, deferential review. 138 S. Ct. at 2419-20. Although the proclamation under review in Trump v. Hawaii specifically concerned the admission of aliens abroad, and thus was reviewed at most for rational basis, the Supreme Court recognized that deferential review may apply “across different contexts and constitutional claims.” Id. at 2419 (citing, among other cases, Rajah v. Mukasey, 544 F.3d 427, 433, 438-39 (2d. Cir. 2008), which concerned a special registration policy for
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aliens from certain countries who were already in the country). The district court correctly applied such deferential review.
Plaintiffs’ reliance on this Court’s decision in Sylvia Development Corp. v. Calvert County, 48 F.3d 810, 829 (4th Cir. 1995), fails to advance their claim. That case— which found no constitutional violation—involved a claim that a zoning law had been applied discriminatorily, not a claim of selective enforcement of immigration law.
c. Analyzed under the proper framework, it is clear that the district court reached the correct result in rejecting plaintiffs’ equal protection claim. A claim that a facially neutral policy like the DACA rescission was motivated by racial animus is insufficient to overcome AADC ’s general bar on discriminatory-motive challenges to immigration-enforcement decisions. See 525 U.S. at 491-92 (holding that even selectively targeting particular aliens on the basis of their First Amendment activity did not rise to the level of the possible exception for “outrageous” discrimination). Virtually any immigration policy is likely to have a disparate impact on aliens of some ethnicity, and thus would be vulnerable to a discriminatory-motive allegation from aliens merely seeking to continue their unlawful presence in this country. Even if all such claims were ultimately proven baseless, the very act of adjudicating them leads precisely to the delay and foreign policy concerns the Court described in AADC. See id. at 490. The district court correctly recognized that with respect to the facially neutral rescission of an immigration-enforcement discretion policy, plaintiffs’ claim of animus—unsupported by anything in the administrative record—was insufficient to
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support an equal protection claim. JA.1508. As the court explained, “[t]he rescission of the DACA program merely fulfills the duty of the executive branch to faithfully enforce the laws passed by Congress.” JA.1511.
At a minimum, if racial discriminatory-motive claims are cognizable in the immigration-enforcement context at all under AADC, they must meet the “particularly demanding” standard applicable in the criminal-enforcement context: plaintiffs must plausibly allege the existence of “clear evidence” of “outrageous” discrimination, thus “displacing the presumption that a [federal enforcement official] has acted lawfully,” before the claim may proceed past the pleadings. AADC, 525 U.S. at 489, 491 (citing Armstrong, 517 U.S. at 463-65). This standard is extremely demanding, and plaintiffs have identified no case where a court has held it to be satisfied. Indeed, several courts of appeals rejected equal protection challenges to a registration requirement for male immigrants from certain (predominantly Muslim) countries—which led to removal for those without lawful status—on the ground that “outrageous” discrimination had not been sufficiently demonstrated. See, e.g., Kandamar v. Gonzales, 464 F.3d 65, 73-74 (1st Cir. 2006); Hadayat v. Gonzalez, 458 F.3d 659, 664-65 (7th Cir 2006).
Plaintiffs’ allegations supporting their equal protection claim (Pl. Br.40-41) consist of statements made by government officials other than the Acting Secretary of Homeland Security, JA.46, 69-72, 76-79, 474; and certain events that plaintiffs
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characterize as “procedural irregularities.” None of these allegations is sufficient to establish an equal protection claim.
As an initial matter, plaintiffs disregard the absence of any statement by the actual decisionmaker—Acting Secretary Duke—that could give rise to an inference of animus. Acting Secretary Duke was the only government official with the legal authority to rescind a DHS policy that DHS had operated for the previous five years, 8 U.S.C. § 1103(a)—regardless of the (undisputed) involvement by the White House. For plaintiffs to succeed, it is the Acting Secretary’s decision that must be infected by discriminatory animus, and the mere fact that her decision was preceded by certain statements of the President cannot ipso facto taint her decision given her independent oath and duty to obey the Constitution.
Moreover, even if the President’s statements are taken on their own terms, they are insufficient. First, nationality, as opposed to ethnicity, is not an invidious classification for purposes of federal immigration law. Rajah, 544 F.3d at 435. And second, most of the statements did not refer to DACA, or indeed any official policy, since they occurred on the campaign trail and preceded the President’s inauguration and oath of office. See JA.69-72. Indeed, as the district court recognized, the
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statements directly related to DACA have largely been favorable to that policy. JA.1510-11.4
Simply put, the statements relied on by plaintiffs do not come close to plausibly alleging clear evidence of discriminatory motive. Indeed, it is utterly implausible that, in deciding whether to retain a policy that affirmatively sanctions the ongoing violation of federal law by nearly 700,000 aliens without lawful status, it was a significant factor that those aliens are predominantly Latino, especially given the serious questions about whether the policy itself was illegal.
Nor do plaintiffs advance their claim by invoking “procedural irregularities.” Plaintiffs entirely fail to draw any causal connection between these supposed irregularities (which were not irregular at all, see, e.g., infra pp. 66-67 (informationsharing policy)) and racial animus. See Pl. Br. 41.
d. Lacking sufficient evidence to carry their burden, Plaintiffs argue that the district court could not properly grant summary judgment on their equal protection claim without permitting them to take discovery. Pl. Br. 18-19.
For the reasons explained above, plaintiffs failed to state a claim that the rescission of DACA violated equal protection, and the district court could therefore
4 The statements by the Attorney General and a White House policy advisor cited in the complaint are also insufficient, see JA.72, as is plaintiffs’ reliance on a general increase in immigration enforcement, JA.76-79. Statements and actions indicating an increase in immigration enforcement simply underscore that the motivation of the agency action challenged here was not racial or ethnic animus, but rather the resetting of agency enforcement priorities.
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properly grant the government’s motion to dismiss. No discovery was warranted for this reason alone, and this Court may affirm on that basis.
Even if this Court were to evaluate the appropriateness of granting summary judgment on this claim, the district court correctly recognized that plaintiffs’ constitutional claims could be decided on the basis of the administrative record. JA.1508. The APA expressly provides that agency action may be set aside as contrary to “constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Accordingly, the APA’s “comprehensive remedial scheme,” Western Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116, 1122-23 (9th Cir. 2009), for a “person ‘adversely affected’ . . . by agency action,” 5 U.S.C. § 702, including its provisions governing record review, applies to constitutional claims for non-monetary relief against federal agencies and officials. See also Wilkie v. Robbins, 551 U.S. 537, 551-554 (2007) (describing the APA as the remedial scheme for vindicating complaints against “unfavorable agency actions”).
The Supreme Court’s decision in Webster v. Doe, 486 U.S. 592 (1988) (cited at Pl. Br. 44), is not to the contrary. The Court’s reference in that case to “any discovery process which may be instituted” after remand is hardly a holding that the APA’s requirement of record review has no application to constitutional claims. Id. at 604.
Plaintiffs further err in relying on this Court’s statement in Ray Communications, Inc. v. Clear Channel Communications, Inc., 673 F.3d 294, 299 (4th Cir. 2012), that “where the movant fails to fulfill its initial burden of providing admissible evidence of the
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material facts entitling it to summary judgment, summary judgment must be denied, even if no opposing evidentiary matter is presented, for the non-movant is not required to rebut an insufficient showing.” Ray Communications did not involve an APA claim, and here the government met its burden by submitting the administrative record.
Even assuming some discovery might be permitted for constitutional claims under the APA, the district court did not err in granting judgment for the government without discovery in this case. The Supreme Court has addressed when discovery is appropriate in selective enforcement contexts. Indeed, the whole point of Armstrong’s holding that there must be “clear evidence” of discrimination before prosecutorial discretion can be challenged, supra p. 53, was to limit discovery in selective prosecution claims. 517 U.S. at 463-65; see also AADC, 525 U.S. at 489-90 (relying on Armstrong in holding that aliens defending against removal by alleging selective enforcement need not be given access to district court fact-finding procedures). As explained, plaintiffs have not put forth any evidence that DACA was motivated by animus, let alone the kind of “clear evidence” of discriminatory intent required under Armstrong and AADC. The inappropriateness of discovery in this case is further underscored by the breadth of plaintiffs’ discovery requests, see, e.g., JA.1117-22 (asking for all documents and communications within and between DHS, DOJ, “the executive branch,” and “the Trump administration” on a variety of topics). Instead of “clear evidence” of discriminatory intent, plaintiffs asked the district court to permit them to go on a
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highly intrusive fishing expedition of precisely the sort that Armstrong and AADC forbid. The district court quite properly denied the request.
As a final matter, the district court did not, as plaintiffs contend, fail to view the facts in the light most favorable to plaintiffs’ claim. See Pl. Br. 46. In so arguing, plaintiffs confuse factual findings with their legal relevance. For example, plaintiffs set forth as “disputed” the fact that 93% of DACA recipients were Latino. Pl. Br. 17. The government disputed the legal relevance of that fact, to be sure, but the government has never disputed that DACA recipients were predominantly Latino (whatever the precise figure). The same is true of the various statements made by the President that plaintiffs cited in their complaint. See Pl. Br. 46. The district court did not proceed as though the statements were not made, but rather recognized that the statements were legally insufficient to support plaintiffs’ equal protection claim.
2. The DACA rescission did not violate due process. The district court also correctly rejected plaintiffs’ due process challenges to the rescission of DACA. JA.1512-14. a. The DACA guidance could not have been clearer that it did not create any “substantive right, immigration status or pathway to citizenship.” JA.131. As thenSecretary Napolitano explained, “[o]nly the Congress, acting through its legislative authority, can confer these rights.” Id. In the face of this clear language, a subjective “belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right.” Gerhart v. Lake County, 637 F.3d 1013, 1020-21
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(9th Cir. 2011) (citing Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)). Plaintiffs try in vain to identify any express commitment on the part of the government to indefinitely maintain the DACA policy. See Pl. Br. 50, 51. But as the district court correctly held, DACA simply created no protected liberty or property interest. JA.1512-13. That alone disposes of plaintiffs’ due process claims.
b. Even assuming a protected interest, the procedural due process claim would still fail. Plaintiffs’ theory is not that individual DACA requests were adjudicated incorrectly (for example, due to factual error) and that notice and a hearing could correct those errors. Instead, plaintiffs claim that DHS cannot alter the DACA policy, even on a prospective basis, without providing individualized notice and hearings to nearly 800,000 recipients. As the district court recognized, however, JA.1512, where a government policy “applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption,” and thus due process does not require individualized pre-deprivation notice. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915); see also Yassini v. Crosland, 618 F.2d 1356, 1359, 1363 (9th Cir. 1980) (per curiam) (rejecting procedural due process challenge to rescission of deferred action policy).
In response to this clear precedent, plaintiffs argue that their complaint contained “specific allegations by specific individuals of the benefits they had lost.” Pl. Br. 51, 52. But due process obviously does not prohibit the rescission of a general policy on a categorical rather than individualized basis, and thus notice and an
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opportunity to be heard on these specific allegations is neither necessary nor appropriate. Plaintiffs further miss the mark in relying on Kapps v. Wing, 404 F.3d 105, 118 (2d Cir. 2005) (cited at Pl. Br. 53), to argue that individualized process may be required even for large numbers of individuals. The fact that notice and a hearing for individual decisions, where otherwise required, cannot be dispensed with merely because of the number of individuals affected does not mean that notice and a hearing are required for the rescission of generally applicable policies.
Plaintiffs’ argument that Bi-Metallic is limited to legislative actions, Pl. Br. 52, finds no support in law or logic. Although the Supreme Court there noted that individuals subject to a general policy may have recourse to political processes, the decision did not require a showing of any particular process. Any time a rule of conduct applies generally, an individual’s “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic, 239 U.S. at 445. The ongoing Congressional and public debates over DACA vividly illustrate this principle.
c. Plaintiffs’ substantive due process claim likewise fails. As the district court correctly held, “[t]he rescission of a policy relating to prosecutorial discretion does not shock the conscience.” JA.1514. “[T]he only thing that has changed,” the court observed “is that deferred status will expire . . . in the absence of action by Congress.” Id. “There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle.” Id. Because plaintiffs’ only attempt to demonstrate
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conscience-shocking behavior hinges on their allegations of animus, see Pl. Br. 54 (citing cases not involving substantive due process), their substantive due process challenge collapses into their flawed equal protection claim, supra Part II.C.1.
d. Although the district court did not separately address plaintiffs’ due process claims with respect to the DACA information-sharing policy, see Pl. Br. 54-55, those claims are no more successful than plaintiffs’ claims challenging the rescission of DACA. The DACA information-sharing policy created no protected property or liberty interest, as it was always expressly subject to change, see infra pp. 66. And plaintiffs have failed to show that any alleged change to the information-sharing policy shocks the conscience or that individualized process was due. The informationsharing policy has not changed, see infra pp. 67, and has, in any event, always been subject to a number of exceptions. III. The District Court Erred in Enjoining the Government from
Changing the Information-Sharing Policy. No other court has accepted the theory advanced by plaintiffs and adopted by the district court that the doctrine of equitable estoppel prevents the government from modifying an information-sharing policy that has been expressly subject to modification since the inception of DACA. This Court should not either, and at a minimum it should vacate the nationwide injunction insofar as it extends beyond the plaintiffs in this case.
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A. The district court erred in holding that the government was subject to equitable estoppel.
1. When the DACA policy was implemented in 2012, DHS published a “frequently asked questions” webpage that included guidance regarding DHS’s policy on the sharing of information provided in connection with DACA requests. The guidance stated that information would be “protected from disclosure to ICE and [Customs and Border Protection (CBP)] for the purpose of immigration enforcement proceedings,” subject to exceptions where the criteria for issuance of a Notice to Appear are satisfied (for example, where national security, public safety, or significant criminal activity interests are implicated), and subject to the caveat that the policy “may be modified, superseded, or rescinded at any time.” DHS DACA FAQ 19; see also id. (explaining that information may be used for certain purposes other than removal); USCIS, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) (Nov. 7, 2011), https://go.usa.gov/xncPK (last visited July 30, 2018).
Nothing in the Acting Secretary’s memorandum changes that approach—in fact, the memorandum makes no reference to information sharing at all, a point the district court recognized, JA.1505 n.24. And DHS made clear in guidance issued after the rescission that “[t]his 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 winddown of the DACA policy.” USCIS, Guidance on Rejected DACA Requests Q5 (Dec. 27, 2017), www.uscis.gov/daca2017/guidance-rejected-daca2017 (emphasis added) (last
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visited July 30, 2018). In fact, even the district court did not conclude that the policy had changed; rather it faulted the government for being “unable to provide any assurance the Government would not make changes” in the future. JA.1516.
2.a. The district court erred in holding that plaintiffs were entitled to a permanent injunction on equitable estoppel grounds. The Supreme Court has repeatedly indicated that estoppel against the government “may only be justified, if ever, in the presence of affirmative misconduct by government agents.” Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) (collecting cases). But the district court did not find any affirmative misconduct, or even that the policy had changed in any way. Instead, the court speculated that “it is possible that the government, having induced these immigrants to share personal information under the guise of immigration protections, could now use that same information to track and remove them,” which “potentially would be ‘affirmative misconduct.’ ” JA.1516.
The district court’s speculation fails to satisfy the requirement of “affirmative misconduct” for two independent reasons. First, and most obviously, the policy has not changed, and the court did not find that it had. Unquantified “potential[]” for future action cannot establish the current “presence” of actual misconduct. JA.1516; see Dawkins, 318 F.3d at 611. Indeed, given the lack of a finding concerning any current or even imminent change of policy, this claim fails to satisfy the requirements of both standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992), and irreparable harm, eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
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Second, the government did not “promise” that information obtained through DACA requests would never, under any circumstances, be used for immigration enforcement or that the policy would not change. Rather, DHS explained that information would be “protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings,” subject to exceptions where the criteria for issuance of a Notice to Appear are satisfied. JA.1011. And this was subject to the caveat that the policy “may be modified, superseded, or rescinded at any time without notice,” id., a fact the district court acknowledged yet failed to address in its analysis, JA.1532-33. Thus, even if the government changed its policy at a future date, DHS’s statements regarding the prior policy would not be converted into “misrepresentation[s]” for purposes of equitable estoppel, Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639, 646 (4th Cir. 2006), let alone “affirmative misconduct,” Dawkins, 318 F.3d at 611-12.
b. As a more fundamental matter, the district court erred because an equitable estoppel claim is not available against the government, even assuming the typical elements of such a claim might be demonstrated.
Only Congress can create a “private right[] of action to enforce federal law.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Yet Congress has created no applicable right of action for a freestanding equitable estoppel cause of action against the government. The Supreme Court has acknowledged that the arguments in favor of barring equitable estoppel against the government are “substantial,” while declining to
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rule on the issue. Heckler v. Community Health Servs., 467 U.S. 51, 60 (1984); OPM v. Richmond, 496 U.S. 414, 423 (1990). Courts of appeals have similarly recognized the strong reasons for reticence in applying estoppel against the government, particularly in its exercise of policymaking discretion. See United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (“[T]he government should not be unduly hindered from changing its position if that shift is the result of a change in public policy.”). And, at most, application of the doctrine of estoppel could be “justified only where ‘it does not interfere with underlying government policies.’ ” Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984). The district court’s injunction here does just that—it constrains DHS’s enforcement and policymaking discretion with respect to whether and how to use information it possesses in connection with immigration proceedings. The injunction should be vacated.
B. The district court erred in granting injunctive relief that was nationwide in scope.
The district court’s injunction must be vacated for an additional reason: in granting nationwide relief, the district court violated the requirements of Article III and equity. The injunction prohibits the changing of an information policy as it applies to hundreds of thousands of DACA recipients who are not parties before the court and who do not need to be covered to provide plaintiffs here with complete relief.
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1. To establish Article III standing, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). “[S]tanding is not dispensed in gross,” and the plaintiff must establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
The Supreme Court recently reaffirmed these principles in Gill v. Whitford, 138 S. Ct. 1916 (2018), concluding that a set of voters had not demonstrated standing to challenge alleged statewide partisan gerrymandering of Wisconsin legislative districts. The plaintiffs alleged that voters who shared their political views were disadvantaged by the way district lines were drawn statewide, and that they were therefore entitled to challenge the entire state map. Id. at 1924-25. But the Court concluded that a “plaintiff’s remedy must be ‘limited to the inadequacy that produced [his] injury in fact,’ ” and that a voter’s “harm [from] the dilution of [his] vote[] . . . is district specific” because it “results from the boundaries of the particular district in which he resides.” Id. at 1930 (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)). Accordingly, the Court held that “the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district,” not the broader remedy of “restructuring all of the State’s legislative districts.” Id. at 1930-31. And the Court “caution[ed]” that, on remand, any “remedy must be tailored to redress the plaintiff ’s particular injury.”
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Id. at 1934; accord id. at 1933 (“The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”). Other courts have recognized the same. See, e.g., McKenzie v. City of Chicago, 118 F.3d 552, 555 & n.* (7th Cir. 1997).
2. Even apart from Article III’s requirements, fundamental principles of equity support the same rule. The Supreme Court has cautioned that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” before the court. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 428-37 (2017) (explaining the lack of historical basis for nationwide injunctions).
This Court applied that teaching to vacate a nationwide injunction in Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001). There, the district court had issued a nationwide injunction preventing the Federal Election Commission from enforcing a challenged regulation “against any party anywhere in the United States.” Id. at 393. This Court explained that an injunction covering the plaintiff alone would “adequately protec[t] it,” and that preventing the Commission from enforcing the regulation “against other parties in other circuits does not provide any additional relief ” to the prevailing plaintiff. Id. The Court also rejected the argument that a nationwide injunction was necessary to set aside unlawful agency action, noting that
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“[n]othing in the language of the APA” requires the exercise of “such far-reaching power.” Id. at 394.
Moreover, nationwide injunctions “take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring); see also Virginia Soc’y for Life, 263 F.3d at 393. They also create an inequitable “one-wayratchet” under which any prevailing plaintiff obtains relief on behalf of all others, but a victory by the government would not preclude other potential plaintiffs from “run[ning] off to the 93 other districts for more bites at the apple.” City of Chicago v. Sessions, 888 F.3d 272, 298 (7th Cir. 2018) (Manion, J., dissenting in part), reh’g en banc granted, Order of June 4, 2018 (No. 17-05270) (vacating panel judgment “insofar as it sustained the district court’s decision to extend preliminary relief nationwide”); cf. United States v. Mendoza, 464 U.S. 154, 158-62 (1984) (holding that non-parties to an adverse decision against the federal government may not invoke the decision to preclude the government from continuing to defend the issue in subsequent litigation). Here, there are multiple cases across the country challenging the rescission of the DACA policy and the alleged change to the information-sharing policy. Each court should adjudicate the claims of the plaintiffs before it, and the plaintiffs in other cases should not benefit from the government’s loss in this case on the information-
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sharing policy, just as they are not bound by the government’s win here on the DACA rescission.
CONCLUSION The district court’s permanent injunction should be vacated, and its grant of summary judgment to the government should be affirmed.
Respectfully submitted, CHAD A. READLER
Acting Assistant Attorney General ROBERT K. HUR
United States Attorney HASHIM M. MOOPPAN
Deputy Assistant Attorney General s/ Mark B. Stern MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000
August 2018
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STATEMENT REGARDING ORAL ARGUMENT This case concerns important questions regarding the exercise of the government’s enforcement discretion prerogatives and the scope of judicial review. Moreover, the district court entered a nationwide injunction permanently barring the Department of Homeland Security from altering its information-sharing policy. The government believes that oral argument could assist the court in resolving these crossappeals and respectfully requests oral argument.

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 17,999 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Mark B. Stern Mark B. Stern

CERTIFICATE OF SERVICE I hereby certify that on August 1, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Mark B. Stern Mark B. Stern

ADDENDUM

TABLE OF CONTENTS 5 U.S.C. § 701..........................................................................................................................A1 6 U.S.C. § 202..........................................................................................................................A2 8 U.S.C. § 1252........................................................................................................................A3 8 C.F.R. § 274a.12(c) ........................................................................................................... A11

5 U.S.C. § 701 (a) This chapter 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. (b) For the purpose of this chapter-(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include-(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;1 and (2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency action” have the meanings given them by section 551 of this title.
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6 U.S.C. § 202 The Secretary shall be responsible for the following: (1) Preventing the entry of terrorists and the instruments of terrorism into the United States. (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry. (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 251 of this title takes effect. (4) Establishing and administering rules, in accordance with section 236 of this title, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States. (5) Establishing national immigration enforcement policies and priorities. (6) Except as provided in part C of this subchapter, administering the customs laws of the United States. (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 231 of this title. (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.
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8 U.S.C. § 1252
(a) Applicable provisions (1) General orders of removal Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) and except that the court may not order the taking of additional evidence under section 2347(c) of such title. (2) Matters not subject to judicial review (A) Review relating to section 1225(b)(1) Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review-(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title, (ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section, (iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or (iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title. (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
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(C) Orders against criminal aliens Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (D) Judicial review of certain legal claims Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. (3) Treatment of certain decisions No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in section 1229a(c)(1)(B) of this title. (4) Claims under the United Nations Convention Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e). (5) Exclusive means of review Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).
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(b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1), the following requirements apply: (1) Deadline The petition for review must be filed not later than 30 days after the date of the final order of removal. (2) Venue and forms The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs. (3) Service (A) In general The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under section 1229a of this title was entered. (B) Stay of order Service of the petition on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise. (C) Alien's brief The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. (4) Scope and standard for review Except as provided in paragraph (5)(B)-(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, (B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and
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(D) the Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion.
No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. (5) Treatment of nationality claims (A) Court determination if no issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28. (C) Limitation on determination The petitioner may have such nationality claim decided only as provided in this paragraph. (6) Consolidation with review of motions to reopen or reconsider When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. (7) Challenge to validity of orders in certain criminal proceedings (A) In general If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 1253(a) of this title may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial.
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(B) Claims of United States nationality If the defendant claims in the motion to be a national of the United States and the district court finds that-(i) no genuine issue of material fact about the defendant's nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or (ii) a genuine issue of material fact about the defendant's nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under section 2201 of Title 28.
The defendant may have such nationality claim decided only as provided in this subparagraph. (C) Consequence of invalidation If the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of section 1253(a) of this title. The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal. (D) Limitation on filing petitions for review The defendant in a criminal proceeding under section 1253(a) of this title may not file a petition for review under subsection (a) during the criminal proceeding. (8) Construction This subsection-(A) does not prevent the Attorney General, after a final order of removal has been issued, from detaining the alien under section 1231(a) of this title; (B) does not relieve the alien from complying with section 1231(a)(4) of this title and section 1253(g)1 of this title; and (C) does not require the Attorney General to defer removal of the alien. (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361
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or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. (c) Requirements for petition A petition for review or for habeas corpus of an order of removal-(1) shall attach a copy of such order, and (2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court's ruling, and the kind of proceeding. (d) Review of final orders A court may review a final order of removal only if-(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. (e) Judicial review of orders under section 1225(b)(1) (1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may-(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or (B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection. (2) Habeas corpus proceedings Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of-(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title.
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(3) Challenges on validity of the system (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of-(i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law. (B) Deadlines for bringing actions Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented. (C) Notice of appeal A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order. (D) Expeditious consideration of cases It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph. (4) Decision In any case where the court determines that the petitioner-(A) is an alien who was not ordered removed under section 1225(b)(1) of this title, or (B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, the court may order no remedy or relief other than to require that the petitioner be provided a hearing in accordance with section 1229a of this title. Any alien who is provided a hearing under section 1229a of this title pursuant to this paragraph may thereafter obtain judicial review of any resulting final order of removal pursuant to subsection (a)(1). (5) Scope of inquiry In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was
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issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal. (f) Limit on injunctive relief (1) In general Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. (2) Particular cases Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. (g) Exclusive jurisdiction Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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.
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8 C.F.R. § 274a.12
(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. USCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending. (1) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A–1 or A–2) pursuant to 8 CFR 214.2(a)(2) and who presents an endorsement from an authorized representative of the Department of State; (2) An alien spouse or unmarried dependent son or daughter of an alien employee of the Coordination Council for North American Affairs (E–1) pursuant to § 214.2(e) of this chapter; (3) A nonimmigrant (F–1) student who: (i)(A) Is seeking pre-completion practical training pursuant to 8 CFR 214.2(f)(10)(ii)(A)(1) and (2); (B) Is seeking authorization to engage in up to 12 months of post-completion Optional Practical Training (OPT) pursuant to 8 CFR 214.2(f)(10)(ii)(A)(3); or (C) Is seeking a 24–month OPT extension pursuant to 8 CFR 214.2(f)(10)(ii)(C); (ii) Has been offered employment under the sponsorship of an international organization within the meaning of the International Organization Immunities Act (59 Stat. 669) and who presents a written certification from the international organization that the proposed employment is within the scope of the organization's sponsorship. The F–1 student must also present a Form I–20 ID or SEVIS Form I– 20 with employment page completed by DSO certifying eligibility for employment; or (iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I–20 ID and Form I–538 (for non–SEVIS schools), or SEVIS Form I–20 with employment page completed by the DSO certifying eligibility, and any other supporting materials such as affidavits which further detail the unforeseen economic circumstances that require the student to seek employment authorization. (4) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (G–1, G–3 or G–4) pursuant to 8 CFR 214.2(g) and who presents an endorsement from an authorized representative of the Department of State;
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(5) An alien spouse or minor child of an exchange visitor (J–2) pursuant to § 214.2(j) of this chapter; (6) A nonimmigrant (M–1) student seeking employment for practical training pursuant to 8 CFR 214.2(m) following completion of studies. The alien may be employed only in an occupation or vocation directly related to his or her course of study as recommended by the endorsement of the designated school official on the I– 20 ID; (7) A dependent of an alien classified as NATO–1 through NATO–7 pursuant to § 214.2(n) of this chapter; (8) An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application: (i) Has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of § 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date; or (ii) Has been recommended for approval, but who has not yet received a grant of asylum or withholding or deportation or removal; (9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence; (10) An alien who has filed an application for suspension of deportation under section 244 of the Act (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the Act, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Pub.L. 104–208 (110 Stat. 3009–625) (as amended by the Nicaraguan Adjustment and Central American Relief Act (NACARA)), title II of Pub.L. 105–100
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(111 Stat. 2160, 2193) and whose properly filed application has been accepted by the Service or EOIR; <Text of subsection (c)(11) effective until March 14, 2018.> (11) An alien paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to § 212.5 of this chapter; <Text of subsection (c)(11) effective March 14, 2018.> (11) Except as provided in paragraphs (b)(37) and (c)(34) of this section and § 212.19(h)(4) of this chapter, an alien paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the Act. (12) An alien spouse of a long-term investor in the Commonwealth of the Northern Mariana Islands (E–2 CNMI Investor) other than an E–2 CNMI investor who obtained such status based upon a Foreign Retiree Investment Certificate, pursuant to 8 CFR 214.2(e)(23). An alien spouse of an E–2 CNMI Investor is eligible for employment in the CNMI only; (13) [Reserved] (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment; (15) [Reserved] (16) Any alien who has filed an application for creation of record of lawful admission for permanent residence pursuant to part 249 of this chapter; (17) A nonimmigrant visitor for business (B–1) who: (i) Is a personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States as a nonimmigrant defined under sections 101(a)(15)(B), (E), (F), (H), (I), (J), (L) or section 214(e) of the Act. The personal or domestic servant shall have a residence abroad which he or she has no intention of abandoning and shall demonstrate at least one year's experience as a personal or domestic servant. The nonimmigrant's employer shall demonstrate that the employer/employee relationship has existed for at least one year prior to the employer's admission to the United States; or, if the employer/employee relationship existed for less than one year, that the employer has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the employer's admission to the United States;
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(ii) Is a domestic servant of a United States citizen accompanying or following to join his or her United States citizen employer who has a permanent home or is stationed in a foreign country, and who is visiting temporarily in the United States. The employer/employee relationship shall have existed prior to the commencement of the employer's visit to the United States; or (iii) Is an employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to classification under section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality. (18) An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following: (i) The existence of economic necessity to be employed; (ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and (iii) The anticipated length of time before the alien can be removed from the United States. (19) An alien applying for Temporary Protected Status pursuant to section 244 of the Act shall apply for employment authorization only in accordance with the procedures set forth in part 244 of this chapter. (20) Any alien who has filed a completed legalization application pursuant to section 210 of the Act (and part 210 of this chapter). (21) A principal nonimmigrant witness or informant in S classification, and qualified dependent family members. (22) Any alien who has filed a completed legalization application pursuant to section 245A of the Act (and part 245a of this chapter). Employment authorization shall be granted in increments not exceeding 1 year during the period the application is
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pending (including any period when an administrative appeal is pending) and shall expire on a specified date. (23) [Reserved by 76 FR 53796] (24) An alien who has filed an application for adjustment pursuant to section 1104 of the LIFE Act, Public Law 106–553, and the provisions of 8 CFR part 245a, Subpart B of this chapter. (25) Any alien in T–2, T–3, T–4, T–5, or T–6 nonimmigrant status, pursuant to 8 CFR 214.11, for the period in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (26) An H–4 nonimmigrant spouse of an H–1B nonimmigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv). (27) to (33) [Reserved] <Text of subsection (c)(34) added by 82 FR 5289, effective March 14, 2018, as amended by 82 FR 31887.> (34) A spouse of an entrepreneur parolee described as eligible for employment authorization in § 212.19(h)(3) of this chapter. (35) An alien who is the principal beneficiary of a valid immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act described as eligible for employment authorization in 8 CFR 204.5(p). (36) A spouse or child of a principal beneficiary of a valid immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act described as eligible for employment authorization in 8 CFR 204.5(p).
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 Nos. 18-1521 (L), 18-1522

In the United States Court of Appeals
for the Fourth Circuit _______________________________________

CASA DE MARYLAND, et al., Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellees.
_______________________________________
On Appeal from the United States District Court for the District of Maryland, Greenbelt Division Case No. 8:17-cv-02942 (Hon. Roger W. Titus) _______________________________________

RESPONSE AND REPLY BRIEF OF APPELLANTS _______________________________________

Elizabeth J. Bower Kevin B. Clark Priya R. Aiyar WILLKIE FARR & GALLAGHER LLP 1875 K Street, NW Washington, DC 20006 (202) 303-1000 (202) 303-2252 (fax) ebower@willkie.com
Additional counsel listed on inside cover

John A. Freedman Emily Newhouse Dillingham ARNOLD & PORTER KAYE
SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@arnoldporter.com emily.dillingham@arnoldporter.com

August 31, 2018

Counsel for Plaintiffs-Appellants

Dennis A. Corkery WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 (202) 319-1010 (fax) dennis_corkery@washlaw.org

Ajmel A. Quereshi HOWARD UNIVERSITY SCHOOL
OF LAW 2900 Van Ness Street, NW Washington, DC 20008 (202) 216-5574 (202) 682-1312 (fax) aquereshi@naacpldf.org

Counsel for Plaintiffs-Appellants

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................1
ARGUMENT .............................................................................................................2
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE GOVERNMENT ON PLAINTIFFS’ CONSTITUTIONAL AND APA CLAIMS....................................................2
A. The District Court Failed to Properly Apply the Summary Judgment Standard for Plaintiffs’ Constitutional and APA Claims .....3
B. The District Court Erred in Dismissing the APA Claims .....................7
1. The Administrative Record Is Incomplete and Therefore Cannot Sustain DHS’s Rescission of DACA.............7
2. The DACA Rescission Was Arbitrary and Capricious.............13
3. In Dismissing the APA Notice and Comment Claim, the District Court Misapplied the Law .....................................23
C. The District Court Erred in Granting Summary Judgment on Plaintiffs’ Equal Protection Claim By Erroneously Applying a Heightened Standard of Review..........................................................28
D. The District Court Erred in Granting Summary Judgment on Plaintiffs’ Due Process Claims Because the Rescission Impacted Significant Protectable Interests..........................................................34
1. The Government Extended Constitutionally Protected Interests to DACA Recipients...................................................34
2. The Government’s Rescission of DACA Violated Plaintiffs’ Procedural Due Process Rights................................37
3. The Government’s Change to Its Information-Sharing Policy Violated Plaintiffs’ Substantive Due Process Rights ....39
E. Challenges To The Rescission of DACA Are Justiciable...................41
i

1. The Decision to Rescind DACA Was Not Committed to Agency Discretion by Law .......................................................42
2. Section 1252(g) Does Not Strip the District Court of Jurisdiction ................................................................................50
II. THE DISTRICT COURT CORRECTLY ENJOINED THE GOVERNMENT FROM USING DACA APPLICANTS’ PERSONAL INFORMATION FOR ENFORCEMENT PURPOSES ...............................53 A. The Undisputed Record Below Demonstrated the Appropriateness for Injunctive Relief .................................................54 B. The District Court Acted Within its Discretion in Enjoining the Government From Changing Its Information-Sharing Policy With Respect to All DACA Applicants ..............................................60
CONCLUSION ........................................................................................................63
ii

TABLE OF AUTHORITIES
Page(s)
Cases
Air Transport Ass’n of America, Inc. v. National Mediation Bd., 663 F.3d 476 (D.C. Cir. 2011)............................................................................12
Am. Med. Ass’n v. Reno, 57 F.3d 1129 (D.C. Cir. 1995)............................................................................44
Balt. Ctr. for Pregnancy Concerns v. Mayor, 721 F.3d 264 (4th Cir. 2013) (en banc) ......................................................3, 4, 33
Bar MK Raches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) ............................................................................11
Batalla Vidal v. Duke, 295 F. Supp. 3d 127 (E.D.N.Y. 2017) .........................................................passim
Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018) ..........................................................20, 23
Battalla Vidal v. Baran, 16-cv-4756, ECF No. 87 at 4 (E.D.N.Y. Oct. 18, 2017) ......................................9
Bi-Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441 (1915)......................................................................................37, 38
Capital Associated Indus. v. Stein, 283 F. Supp. 3d 374 (M.D.N.C. 2017) ...............................................................57
Centro Presente v. United States Department of Homeland Security, No. 18-10340, 2018 WL 3543535 (D. Mass. July 23, 2018) .............................31
Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639 (4th Cir. 2006) ..............................................................................56
Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995) ........................................................................24, 26
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)............................................................................................21
iii

Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615 (4th Cir. 2018) ..............................................................................24
Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532 (4th Cir. 2007) ..............................................................................60
Chrysler Corp. v. Brown, 441 U.S. 281 (1979)............................................................................................26
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).....................................................................................passim
City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) ........................................................................61, 62
Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982), aff’d, 463 U.S. 1216 (1983) .............................27
CREW v. FEC, 892 F.3d 434 .......................................................................................................47
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994)..............................................................................47
Dawkins v. Witt, 318 F.3d 606 (4th Cir. 2003), cert. denied, 539 U.S. 960 (2003) ......................56
Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017) ..............................................................................18
Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982) ...............................................................................10
Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996) ..............................................................................62
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011)................................................................................26
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016)..................................................................................14, 15
iv

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)............................................................................................14
Gill v. Whitford, 138 S. Ct. 1916 (2018)........................................................................................62
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)............................................................................................32
Heckler v. Chaney, 470 U.S. 821 (1985)............................................................................................48
Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51 (1984)..............................................................................................60
I.C.C. v. Brotherhood Of Locomotive Engineers, 482 U.S. 270 (1987)............................................................................................44
In re Nielsen, No. 17-3345, 2017 U.S. App. LEXIS 27681 (2d Cir. Dec. 27, 2017) ...................................................................................................................12
In re United States, 875 F.3d 1200 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 443 (2017)...........................................................................................................12
Jennings v. Rodriguez, 138 S. Ct. 830 (2018)....................................................................................52, 53
Jimenez-Cedillo v. Sessions, 885 F.3d 292 (4th Cir. 2018) ..............................................................................14
Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018) ..............................................................................57
Kleindeinst v. Mandel, 408 U.S. 753 (1972)................................................................................29, 30, 31
Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342 (11th Cir. 1994) ............................................................................13
Lincoln v. Vigil, 508 U.S. 182 (1993)......................................................................................43, 44
v

Mach Mining, L.L.C. v. E.E.O.C., 135 S. Ct. 1645 (2015)........................................................................................41
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994)............................................................................................61
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .............................................................................46
McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)............................................................................................32
McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991)............................................................................................41
Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014)..........................................................................24
Morrissey v. Brewer, 408 U.S. 471 (1972)............................................................................................35
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)..................................................................................13, 17, 20
N.C. State Conference of NAACP v. N.C. State Bd. of Elections, 283 F. Supp. 3d 393 (M.D.N.C. 2017) ...............................................................57
NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018).............................................................passim
NAACP v. Trump, No. CV 17-1907 (JDB), 2018 WL 3702588 (D.D.C. Aug. 3, 2018) .................47
Nat’l Audubon Soc. v. Hoofman, 132 F.3d 7 (2d Cir. 1997) ...................................................................................12
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)........................................................................................36
Office of Personnel Management v. Richmond, 496 U.S. 414 (1990)............................................................................................59
vi

Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 159 (2016) ..................................................................................................................23
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) ..............................................................................61
Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009) ........................................................................42, 43
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ...............................................................................30
Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294 (4th Cir. 2012) ............................................................................3, 4
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018).......................................................passim
Regents of Univ. of California v. U.S. Dep’t of Homeland Security, 298 F. Supp. 3d 1304 (N.D. Cal. 2018)........................................................40, 59
Regents of Univ. of California v. U.S. Dep’t of Homeland Security, 3:17-cv-5211, ECF No. 86-1 (N.D. Cal. Oct. 20, 2017) ......................................9
Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999).....................................................................................passim
Richardson v. Town of Eastover, 922 F.2d 1152 (4th Cir. 1991) ............................................................................35
Richmond Tenants Org. v. Kemp, 956 F.2d 1300 (4th Cir. 1992) ......................................................................61, 63
Robbins v. Reagan, 780 F.2d 37 (D.C. Cir. 1985)........................................................................48, 49
Ross v. Comm’ns Satellite Corp., 759 F.2d 355 (4th Cir. 1985) ............................................................................6, 7
Rydeen v. Quigg, 748 F. Supp. 900 (D.D.C. 1990), aff’d, 937 F.2d 623 (Fed. Cir. 1991), cert. denied, 502 U.S. 1075 (1992) .........................................................33
vii

Scinto v. Stansberry, 841 F.3d 219 (4th Cir. 2016), cert. denied, 138 S. Ct. 447 (2017) ........3, 4, 5, 33
SEC v. Chenery Corp., 318 U.S. 80 (1943)..............................................................................................22
Sessions v. Dimaya, 138 S. Ct. 1204 (2018)........................................................................................37
Sijapati v. Boente, 848 F.3d 210 (4th Cir. 2017) ..............................................................................21
Speed Mining, Inc. v. Federal Mine Safety and Health Review Commission, 528 F.3d 310 (4th Cir. 2008) ........................................................................48, 49
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014)........................................................................................57
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ..............................................................................20
Texas v. United States, 86 F. Supp. 3d 591, 674 (S.D. Tex. 2015), aff’d 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015) ...................................................19, 51, 62
Texas v. United States, No. 18-CV-68 (S.D. Tex. June 25, 2018).....................................................16, 45
Trump v. Hawaii, 138 S. Ct. 2392 (2018)........................................................................................29
Tummino v. Torti, 603 F. Supp. 2d 519 (E.D.N.Y. 2009) ................................................................13
U.S. v. Cox, 964 F.2d 1431 (4th Cir. 1992) ......................................................................58, 60
UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986)............................................................................47
United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977) ...............................................................................11
viii

United States v. Stone, 866 F.3d 219 (4th Cir. 2017) ..............................................................................16
Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977).....................................................................................passim
Virginia Society for Human Life, Inc. v. Federal Election Com’n, 263 F.3d 379 (4th Cir. 2001) ........................................................................62, 63
Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984)........................................................................8, 11
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989), cert. denied, 498 U.S. 957 (1990) ......................60
Webster v. Doe, 486 U.S. 592 (1988)........................................................................................5, 33
Western Radio Services Co. v. U.S. Forest Services, 578 F.3d 1116 (9th Cir. 2009), cert. denied, 559 U.S. 1106 (2010) ..................33
White v. Daniel, 909 F.2d 99 (4th Cir. 1990), cert. denied, 501 U.S. 1260 (1991) ......................19
Statutes
5 U.S.C. § 553....................................................................................................27, 43
5 U.S.C. § 553(d)(1).................................................................................................23
5 U.S.C. § 604..........................................................................................................43
5 U.S.C. §§ 701(a)(1)-(2).........................................................................................42
5 U.S.C. § 701(a)(2)...........................................................................................43, 45
5 U.S.C. § 702..........................................................................................................43
5 U.S.C. § 706............................................................................................................9
5 U.S.C. § 706(2)(A)................................................................................................46
8 U.S.C. § 1252(b) ...................................................................................................53
ix

8 U.S.C. § 1252(b)(9)...............................................................................................53 8 U.S.C. § 1252(g) .................................................................................50, 51, 52, 53 Administrative Procedure Act...........................................................................passim Rules Fed. R. Civ. P. 26(a)(2)(B)(i).....................................................................................4 Fed. R. Civ. P. 26(b)(5)(A)(ii) .................................................................................10 Fed. R. Civ. P. 56 ..............................................................................................passim Fed. R. Civ. P. 56(c).....................................................................................2, 3, 5, 54 Fed. R. Civ. P. 56(d) ..............................................................................................2, 3 Fed. R. Civ. P. 56(f) .................................................................................................54 Other Authorities Bill of Rights............................................................................................................36 U.S. CONST. art. III, § 1 ...........................................................................................61 USCIS, Form I-821D Consideration of Deferred Action for
Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometric and Case Status, Fiscal Year 2012-2017 (Mar. 31, 2017) ........................................36
x

INTRODUCTION The Government’s decision to end DACA was unlawful as a matter of both process and substance. The rescission of a program affecting the lives of nearly 800,000 DACA recipients, their families, their employers, and their communities, all of whom had come to rely on DACA, followed a host of statements evidencing discriminatory intent by senior governmental officials, ignored standard administrative procedures, lacked support in the Administrative Record, and was allegedly justified by inadequate legal reasoning predicated on a fundamental error. As set forth in the Opening Brief of Plaintiffs-Appellants, the District Court misapplied this Circuit’s precedents and the established standards for addressing summary judgment under Federal Rule of Civil Procedure 56 for assessing whether an agency action is arbitrary and capricious or requires notice and comment under the Administrative Procedure Act (APA), and for evaluating Plaintiffs’ equal protection and due process claims. The District Court did, in the face of an undisputed factual record, properly enter a permanent nationwide injunction prohibiting the Government from sharing DACA applicants’ personally identifiable information with enforcement officials. Rather than defend the District Court’s decision, the Government spends the first quarter of its brief urging an alternative basis for affirmance on the ground that the rescission of DACA is non-justiciable—an argument that has been

properly rejected by all four courts that have ruled on challenges to the rescission, and which the Government concedes is inapplicable to Plaintiffs’ constitutional claims. See Opening and Response Brief for Appellees (“Gov. Br.”) 22 n.1. Even more telling are the Government’s: (i) failure to discuss the three other court decisions that squarely rejected the arguments advanced in its brief; (ii) failure to discuss Rule 56 or this Circuit’s key precedents for how a court is supposed to address a movants’ failure to propound a Rule 56(c) statement or an opponents’ request for discovery under Rule 56(d); (iii) acknowledgment that the District Court applied the wrong standard of review in evaluating the equal protection claim, Gov. Br. 54; and (iv) reliance on arguments against the nationwide injunction that were not made below and not supported by evidence in the Joint Appendix. In sum, the Government’s brief confirms the legal defects of the DACA rescission.
This Court should sustain the District Court’s injunction, reverse the District Court’s grant of summary judgment, and remand for further proceedings.
ARGUMENT I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF THE GOVERNMENT ON PLAINTIFFS’ CONSTITUTIONAL AND APA CLAIMS As the Government acknowledges, review of the District Court’s grant of summary judgment is de novo. Government Brief (“Gov. Br.”) 16. This Court can and should correct the legal errors made below. The District Court failed to
2

properly apply Federal Rule of Civil Procedure 56, and it made errors of law in its evaluation of each of Plaintiffs’ constitutional claims. Each of these errors warrants reversal.
A. The District Court Failed to Properly Apply the Summary Judgment Standard for Plaintiffs’ Constitutional and APA Claims
In the Opening Brief, Plaintiffs demonstrated that the District Court failed to properly apply Federal Rule of Civil Procedure 56. See Opening Brief of Plaintiffs-Appellants (“Pl. Br.”) 15-23. In particular, the District Court failed to address Plaintiffs’ Rule 56(d) affidavit or related draft discovery, (J.A. 10941105), as well as the Government’s failure to provide a statement of undisputed material facts or respond to Plaintiffs’ Rule 56(c) statement of material facts as to which there is a genuine dispute (J.A. 473-78). The District Court also failed to view the “facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.” Scinto v. Stansberry, 841 F.3d 219, 227 (4th Cir. 2016) cert. denied, 138 S. Ct. 447 (2017). These failures warrant reversal. See Balt. Ctr. for Pregnancy Concerns v. Mayor, 721 F.3d 264, 280 (4th Cir. 2013) (en banc) (a district court “must refuse summary judgment where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.”); Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir. 2012) (“where the movant fails to fulfill its initial burden of providing admissible evidence of the material facts entitling it to summary
3

judgment, summary judgment must be denied even if no opposing evidentiary matter is presented, for the non-movant is not required to rebut an insufficient showing.”) (emphasis added).
The Government does not address Baltimore Center or Scinto, and its efforts to distinguish Ray Communications on the grounds that it “did not involve an APA claim” is cursory, cites no precedent, and lacks merit. Gov. Br. 61. This Circuit has not established a different set of procedures to govern summary judgment in APA cases. Nor should it; unlike other Federal Rules of Civil Procedure, Rule 56 does not exempt APA claims from its requirements. Compare Rule 26(a)(2)(B)(i) (exempting administrative review actions from initial disclosure requirements), with Rule 56 (no such exemption). Rather, these cases, which note that “the summary judgment process presupposes the existence of an adequate record” —are equally relevant to an APA action. Baltimore Center, 721 F.3d at 280. Compare Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971) (judicial review under the APA is required to be conducted based on the “whole record”).
For similar reasons, the Government’s assertion that the “district court did not err in granting judgment for the government without discovery in this case,” Gov. Br. 61, ignores the fact that Plaintiffs brought non-APA claims, which clearly
4

entitles Plaintiffs to discovery. Pl. Br. 44 (collecting cases).1 Moreover, to meet
its burden under Rule 56, the Government should have preserved its position below
by filing an opposition to Plaintiffs’ Rule 56(c) proffer, which it failed to do. (J.A.
121).
The Government also contends that the District Court “did not fail . . . to
view the facts in the light most favorable to the plaintiffs’ claims.” Gov. Br. 62.
The Government both misstates the standard (which requires the District Court to
view both “facts and the reasonable inferences therefrom in the light most
favorable to the nonmoving party,” Scinto, 841 F.3d at 227) (emphasis added) and
ignores material facts that Plaintiffs cited and the District Court failed to address,
including:
(i) the fact that the Government rescinded DACA (which was 93 percent Latino) but left in place numerous other deferred action programs that did not impact predominantly Latino populations (J.A. 40-41, 46, 5859, 90, 475, 1095, 1363-70, 1438-41);
(ii) procedural irregularities leading up to the DACA rescission, including suspension of renewal notices, failure to abide by the DACA program Standard Operating Procedures (“SOPs”), failure to use notice and comment procedures, offering only the barest of reasons for the decision, and the reversal of long-standing Government positions that DACA was lawful (J.A. 72-75, 81-82, 85-87, 91-93, 474-76; 588-95); and
1 The Government’s effort to distinguish Webster v. Doe, 486 U.S. 592 (1988), cited by Plaintiffs, misstates the relevance of that decision: that a plaintiff who brings both APA and constitutional claims against the federal government has the right to conduct discovery even if it “will entail extensive ‘rummaging around.”’ Id. at 604.”
5

(iii) the Government’s repeated promotion and representation to DACA recipients prior to the rescission that they would be allowed to work, study, travel internationally, live free from the fear of deportation, and their application information would not be shared with immigration enforcement officials (J.A. 42, 60-63, 86-87, 473).
Pl. Br. 17. Nor did the Government address the reasonable inference from the 22 public statements from senior Government officials revealing racial animus against Latinos (J.A. 46, 69-72, 76-79, 83-84, 1096) that discovery would have revealed more incendiary anti-Latino statements made in private, including with respect to the rationale for DACA’s rescission. Pl. Br. 18-19.
The Government has not argued, much less met its burden to show, that these points are immaterial as a matter of law. See, e.g., Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 364-65 (4th Cir. 1985) (“The burden is on defendant, as the moving party, to demonstrate the absence of any genuine issue of material fact.”). Nor could it. These facts and the additional discovery Plaintiffs sought on these issues, are relevant to all of Plaintiffs’ claims. (J.A. 1094-1105 & Pl. Br. 1820, 29-30, 39-41, 48-51). Nor did the District Court engage in any of the requisite evaluation of the factual record to conclude immateriality. See generally Ross, 759 F.2d at 364 (“[T]he district court must perform a dual inquiry into the genuineness and materiality of any purported factual issues. Whether an issue is genuine calls for an examination of the entire record then before the court . . . .”) (emphasis in original). These failures demonstrate why “[c]are is required in deciding whether
6

the evidence presents a genuine issue of motive,” and “summary judgment is seldom appropriate in cases wherein particular states of mind are decisive as elements of [a] claim or defense.” Id. The District Court failed to apply this standard in evaluating Plaintiffs’ evidence that bad faith and impermissible animus permeated the administrative process.
The District Court’s misapplication of Rule 56 requires reversal. B. The District Court Erred in Dismissing the APA Claims
In the Opening Brief, Plaintiffs demonstrated that the District Court erred in granting summary judgment on the APA claims for three reasons: (1) it failed to address the incompleteness of the Administrative Record; (2) the Administrative Record, as it stands, does not support the Government’s purported rationale for ending DACA; and (3) DHS promulgated the September 5 memorandum rescinding DACA (the “Rescission Memorandum”) without notice-and-comment rulemaking. Pl. Br. 20-37. Plaintiffs’ Opening Brief noted numerous instances where the District Court diverged on these key issues from the three other Courts to consider these questions. The Government fails to address any of these other decisions in its brief, and its arguments are otherwise unavailing.
1. The Administrative Record Is Incomplete and Therefore Cannot Sustain DHS’s Rescission of DACA
Under the APA, judicial review is required to be conducted based on the “whole record.” Overton Park, 401 U.S. at 419. The Government disputes that the
7

District Court erred by conducting its review of the APA claims on an incomplete Administrative Record. See Gov. Br. 43-48. But as Plaintiffs’ proffer below showed, the Administrative Record was incomplete on its face and lacked any written communication among the relevant personnel involved in the recommendation and decision to rescind DACA. (J.A. 498, 1094-1105). Moreover, the District Court at no point made a finding that the Administrative Record submitted was in fact complete. Indeed, the District Court acknowledged that two other district courts had declared the Administrative Record incomplete and ordered supplementation. (J.A. 1099). Without a predicate finding that the Administrative Record was complete, it was improper for the District Court to rule on whether the Administrative Record as presented fully supported the agency action. Pl. Br. 20 (collecting cases).
The Government’s argument that the Administrative Record is complete, because the agency selected only the materials Acting Secretary Duke actually considered (Gov. Br. 44-46, J.A. 127,) is contrary to law. Agencies are required to submit the “whole record” including all of the materials before the agency, not merely a subset actually considered by a decision-maker, and not merely the subset that purportedly support the ultimate decision. See Pl. Br. 20-22 (citing cases); Walter O. Boswell Mem. Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)
8

(“To review less than the full administrative record might allow a party to withhold evidence unfavorable to its case.”).
The Government raises several arguments that it did not make before the District Court defending the completeness of the Administrative Record. Gov. Br. 44-48. Even if these arguments had not been waived, they are without merit. For example, the Government posits that because the agency decision was an “informal agency action” and because of “the nature of the decision,” there should be a lesser standard for assessing the completeness of the record. Gov. Br. 44-45. But none of the cases the Government cites stand for the proposition that judicial review can be conducted on less than the “whole record,” as required by the APA. See 5 U.S.C. § 706. Similarly, the Government’s suggestion that there were no materials “in the possession of subordinates” or materials “indirectly considered by a decisionmaker,” Gov. Br. 46, strains credulity, and is inconsistent with the proffers the Government made to the Second and Ninth Circuits about the purported “burden” associated with complying with orders compelling completion of the Administrative Record. See Battalla Vidal, et al. v. Baran, et al., 16-cv-4756, ECF No. 87 at 4 (E.D.N.Y. Oct. 18, 2017) (reporting Defendants collected more than 1.2 million documents from 100 DHS custodians pursuant to the order to supplement the Administrative Record); Regents of Univ. of California v. U.S. Dep’t of Homeland Security, 3:17-cv-5211, ECF No. 86-1 (N.D. Cal. Oct. 20,
9

2017) (same). Similarly, the Government’s claim that all materials that it withheld are “deliberative” (Gov. Br. 46) is both inconsistent with its representation that there are no such materials, and is unsupported by the record.2
The Government’s attempt to distinguish Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982) also fails. In Dopico, the Second Circuit recognized that
effective judicial review requires courts’ “independent consideration” of the completeness of the Administrative Record, especially “where there is a strong suggestion that the record before the Court was not complete . . . .” Id. at 654. The fact that the documents in Dopico came from outside the government was not
dispositive; rather, the court focused on the “inconceivab[ility] that such fundamental documents —the very basis for federal decision-making . . . .” would be excluded from the administrative record. Id. Similarly, the decision to rescind
DACA could not have been reasonably reached without materials analyzing the impact of this decision and the litigation risk of maintaining the program. Materials relating to both topics are conspicuously absent from the Administrative
Record. The District Court could not rely on the Government’s “assurances” that
2 The Government’s mere assertion that any undisclosed materials are privileged does not meet its burden to sustain such a privilege. The Federal Rules of Civil Procedure require a litigant to substantiate the basis for a purported privilege by “describ[ing] the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that . . . will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). In other words, the Government cannot evade effective review with a blanket assertion.
10

the record was complete, especially when the Government’s “certification” made clear that the Administrative Record had been compiled using an erroneous legal standard. Compare J.A. 127 (materials directly relied upon by Acting Secretary Duke) with Walter O. Boswell, 749 F.2d at 793 (the “whole record before the agency at the time of its decision”). The District Court should have undertaken its own review to ensure that it had a complete Administrative Record against which to evaluate Plaintiffs’ APA claims.
Finally, the Government’s cited cases do not support its arguments. In United States v. Nova Scotia Food Prods. Corp., the plaintiffs attempted to introduce evidence into the Administrative Record that had never been presented to the agency in its decision-making process. 568 F.2d 240, 249-50 (2d Cir. 1977). Here, Plaintiffs are not seeking to introduce new evidence by supplementing the record, but rather noting that the Administrative Record in this case is incomplete. In Bar MK Raches v. Yuetter, which the Government also cites, the plaintiffs attempted to remove documents from the Administrative Record. 994 F.2d 735, 739-40 (10th Cir. 1993). Neither of these cases limits the ability of a court to require completion of the Administrative Record.
The Government also argues that Plaintiffs were not entitled to extra-record discovery. Gov. Br. 48. Again, the District Court did not make any finding whether or not the Plaintiffs had met the standard for such discovery. See Overton
11

Park, 401 U.S. at 420 (extra record discovery permitted where there is a “strong showing of bad faith or improper behavior”); Nat’l Audubon Soc. v. Hoofman, 132
F.3d 7, 14 (2d Cir. 1997) (same); Air Transport Ass’n of America, Inc. v. National Mediation Bd., 663 F.3d 476, 487-88 (D.C. Cir. 2011) (a district court should grant limited discovery in APA cases if a party can show “that it will find material in the
agency’s possession indicative of bad faith or an incomplete record . . . .”) (emphasis added). Plaintiffs proffered strong evidence, based on the public record, of bad faith and improper behavior by the Government in rescinding DACA, including the 22 statements of anti-Latino animus (J.A. 69-72), the decision to
rescind a deferred action program whose beneficiaries were predominantly Latino while maintaining other deferred action programs (J.A. 474-75), the procedural irregularities that preceded the rescission of DACA (J.A. 81-82, 502), and the
infirmities in the cited rationale for terminating DACA (J.A. 82-85). That two federal district courts reviewed the same facts and found that extra-record discovery was appropriate demonstrates that this standard is easily satisfied.3 See
Pl. Br. 23. The District Court’s failure to evaluate Plaintiffs’ evidence was error.
3 Both the Ninth Circuit and Second Circuit upheld district court orders to supplement the Administrative Record in ruling on the Government’s mandamus petitions. In re United States, 875 F.3d 1200, 1205-06 (9th Cir. 2017) rev’d on other grounds 138 S. Ct. 443 (2017) (delaying discovery proceedings until the District Court ruled on the Government’s 12(b)(1) jurisdictional motion); In re Nielsen, No. 17-3345, 2017 U.S. App. LEXIS 27681, at *13-14 (2d Cir. Dec. 27, 2017).
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2. The DACA Rescission Was Arbitrary and Capricious In the Opening Brief, Plaintiffs demonstrated that there was extensive public
record evidence that the Government’s decision to rescind DACA was motivated
by anti-Latino animus, and that agency action motivated by animus constituted
arbitrary and capricious action. See Op. Br. 29-30. The Government’s conclusory
response, Gov. Br. 43, does not address the merits of this point, and the failure to dispute this argument warrants reversal.4
In the Opening Brief, Plaintiffs also demonstrated that the rescission of
DACA was arbitrary and capricious because DHS failed to consider an “important
aspect of the problem”—reliance interests—and “offered an explanation for its
decision that runs counter to the evidence . . . .” Pl. Br. 27-29. See Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-44 (1983).
Plaintiffs also showed that the Government’s rescission of DACA was arbitrary
4 The Government’s contention that Plaintiffs failed to cite evidence of animus “in the administrative record” or that “Secretary Duke [personally] acted with animus” is not the relevant inquiry. Plaintiffs cited to ample evidence in the Joint Appendix that other senior government officials involved in the decision including the President, made anti-Latino statements contemporaneous with the decision, and that DHS (directed by Duke) engaged in procedural irregularities and other misconduct leading up to the decision. Where there is bad faith or misconduct, it is appropriate to consider evidence outside of the Administrative Record itself, particularly where it is clear that the Government has selectively cherry-picked documents and excluded unfavorable materials. See Latecoere Int’l, Inc. v. U.S. Dep’t of Navy, 19 F.3d 1342, 1365-66 (11th Cir. 1994); Tummino v. Torti, 603 F. Supp. 2d 519, 542-44 (E.D.N.Y. 2009); see generally Overton Park, 401 U.S. 402.
13

and capricious because it was unsupported by the Administrative Record. Pl. Br. 30-33.
a. DHS Failed to Consider an Important Aspect of the Problem: The Significant Reliance Interests Engendered by DACA
Where, as here, an agency program has been in place for a significant period of time and individuals, including those directly regulated, have structured activities based on that program, an agency must consider reliance interests before it undertakes a change or rescission of that program. Pl. Br. 27 (citing Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)). When an agency does not explicitly account for such interests, the new policy must be set aside. Id. (citing Jimenez-Cedillo v. Sessions, 885 F.3d 292, 299-300 (4th Cir. 2018)).
The Government contends, without citing any authority, that a “discretionary policy . . . cannot create legally cognizable reliance interests.” Gov. Br. 40. This contention is directly contrary to Encino Motorcars, where the Supreme Court recognized that “[a]gencies are free to change their existing policies” when implementing statutes and acting in areas where Congress is silent or ambiguous, but that “reliance interests . . . must be taken into account” when such changes occur and that “a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” 136 S. Ct. at 2125-26 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009)). The Government’s attempt to distinguish Encino Motorcars, Gov. Br. 41,
14

misses the Court’s core point: the Encino Motorcar plaintiffs—like the DACA recipients, their employers, their schools, and their communities—had all “structured” themselves around the guidance the agency provided. 136 S. Ct. at 2126. These reliance interests are quintessentially what Encino Motorcars requires courts to consider in reviewing an agency action. Rescission of a long-standing discretionary program requires an agency to consider and analyze the reliance interests at play. DHS did not do so in rescinding DACA.
In addition to being an incorrect statement of law, the Government fundamentally misconstrues the nature of DACA. Once the Government exercised its discretion to implement the DACA program, DACA recipients—as well as their families, employers, schools, and communities—were entitled to and did rely on the many benefits that the program bestowed on them. In addition to DACA status ensuring that the recipient would not be deported from the United States, recipients enjoyed the ability to pursue employment, education, travel internationally, and receive public benefits. When the Government rescinded DACA, it failed to consider those reliance interests as required by law. It also did far more than just end renewals and new applications; it immediately ended certain of these benefits for current DACA recipients, regardless of the expiration of their DACA status, without any analysis as to the rationale for or impact of each revocation. (J.A. 383). It bears emphasis that every court that has considered the issue has found
15

that individual DACA recipients, community organizations, employers, and educational institutions have interests implicated by DACA sufficient to establish standing to challenge its rescission, and thus the Government’s position that the DACA program created no interests lacks merit.5
The Government’s attempt to remedy this fatal flaw in the rescission process by citing to a June 22, 2018 memorandum issued by Secretary of Homeland Security Kirstjen Nielsen, Gov. Br. 41-42, also lacks merit. This memorandum was not and could not have been considered by the District Court, is not in the Joint Appendix, and has no weight here.6 In any event, post-hoc rationalizations cannot sustain DHS’s decision. See Overton Park, 401 U.S. at 419. In sum, the Government has failed entirely to consider an important part of the problem -- the reliance interests engendered by the DACA program.
5 See J.A. 1384-89 (Regents, 279 F. Supp. 3d at 1033-39) (finding that the State and University plaintiffs had standing based on the enrollment and hiring of DACA recipients relying on representations of the DACA program); J.A. 550-56 (Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 154-62 (E.D.N.Y. 2017)) (same); Texas v. United States, No. 18-CV-68 (S.D. Tex. June 25, 2018) (permitting New Jersey to intervene to defend DACA on the same basis). 6 It is improper for the Court to consider materials not part of the Administrative Record or contained elsewhere in the Joint Appendix. See United States v. Stone, 866 F.3d 219, 230 (4th Cir. 2017). For similar reasons, the Court should disregard the Government’s citation of remarks from President Obama. Gov. Br. 40.
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b. DHS’s Decision Is Unsupported By the Administrative Record
The Government argues that the District Court, alone among the courts that have considered the issue, correctly found the rescission of DACA satisfied the APA’s substantive requirement that an agency action not be arbitrary and capricious. Gov. Br. 32-39. The Government’s arguments ignore the fundamental legal principles that: (i) under the APA, a District Court’s review is required to be “searching and careful,” Overton Park, 401 U.S. at 416, and (ii) agencies are required to justify their decisions on the grounds asserted and explain how their conclusions relate to the facts before them. See State Farm, 463 U.S. at 42-43 (emphasizing that an agency must consider all “the relevant factors . . . [including any] important aspect of the problem”). The DACA rescission fails to meet these standards on both counts.
Nowhere in the Administrative Record can the Government find adequate support for its primary asserted rationale for the rescission: litigation risk. Gov. Br. 37-38. Under the APA’s requirements, to posit a litigation-based risk for the rescission, DHS would have had to consider all relevant legal arguments, including the merits of any challenge to DACA, critical distinctions between DACA and the previously litigated DAPA program, and potential defenses.7 Pl. Br. 30-33; State
7 In its Brief, the Government also attempts to support DHS’s changed view on the legality of DACA based on the decision in Texas, the Attorney General’s letter, and the threat of litigation challenging DACA. Gov.Br. 42-43. However, neither
17

Farm, 463 U.S. at 42-44. But the Administrative Record reveals no such in-depth consideration of litigation risk issues. In the absence of such evidence, the Government responds that it is sufficient for it to assume the conclusion that DACA faced an imminent injunction based on the result of litigation over DAPA in the Fifth Circuit. Gov. Br. 32-34. The APA requires that DHS provide a reasoned, non-arbitrary explanation —rather than an ipse dixit—for rescinding the DACA program. And, as every other reviewing court except the District Court below has found, the Government has not done so here. Pl. Br. 10, 30.
There is no analysis of DACA’s susceptibility to an injunction in the Rescission Memorandum. Pl. Br. 30-31. A preliminary injunction requires a plaintiff to show “‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). Other than expressing the view that the DAPA litigation cast doubt on DACA’s legality, which is relevant to but not determinative of the likelihood of success analysis, the Administrative Record nowhere indicates that DHS considered the three remaining factors.
the Fifth Circuit’s opinion in Texas nor the Attorney General’s letter overturned or critiqued the Office of Legal Counsel opinion explaining the legality of the DACA program. In the absence of any explicit response to that opinion, the APA’s requirement that such changes in policy be explained has not been met. See Pl. Br. 28.
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For example, on the equities, the Government cites to nothing in the Administrative Record for the proposition that DACA, as opposed to DAPA, would be enjoined immediately. The pre-implementation challenge to DAPA plainly presented different equitable considerations than would a challenge to the five-year old DACA program, which benefitted roughly 800,000 recipients, each of whom daily relied upon the benefits they expected to maintain during the pendency of their status, including the possibility for renewal. See Pl. Br. 32-33; J.A. 253. See also Texas v. United States, 86 F. Supp. 3d 591, 674 (S.D. Tex. 2015), aff’d 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015)) (recognizing that enjoining DAPA prior to its implementation presented different equities than a situation where “individuals are currently considered ‘legally present’ and an injunction would remove that benefit . . . .”).
On irreparable harm, the Government cites to nothing in the Administrative Record addressing Texas’s five-year delay in commencing litigation, or analyzing other potentially applicable defenses such as laches. See Pl. Br. 32-33; J.A. 140001. See also White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990), cert. denied, 501 U.S. 1260 (1991) (“[T]he greater the delay” in bringing the challenge, “the less the prejudice required” to successfully plead a laches defense); J.A. 252 (Texas, 86 F. Supp. 3d at 674) (noting that enjoining DAPA after its implementation would prove challenging and perhaps “impossible for anyone to ‘unscramble the egg”’ or
19

retract “benefits or licenses already provided to . . . beneficiaries”)). Although the Government attempts to shift its burden, arguing that Plaintiffs never demonstrated the viability of a laches defense (Gov. Br. 35), its argument misconstrues the relevant inquiry: if DHS purportedly based the DACA rescission on the likelihood of a successful suit, it was arbitrary and capricious for DHS to fail to consider its potential defenses because it did not consider “an important aspect of the problem . . . .” State Farm, 463 U.S. at 43.
On the likelihood of success on the merits, the Government’s brief relies primarily on the Attorney General’s letter, and the threat of litigation challenging DACA. Gov. Br. 42-43. But both the Attorney General’s letter and the Government’s brief ignore several crucial differences between DACA and DAPA. See Pl. Br. 32-33; NAACP v. Trump, 298 F. Supp. 3d 209, 239 (D.D.C. 2018); J.A. 1460-65 (Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 423-29 (E.D.N.Y. 2018)); J.A. 1395-96 (Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1040-41 (N.D. Cal. 2018)). For example, there is a direct conflict between DAPA and specific sections of the INA. See Texas v. United States, 809 F.3d 134, 170-71, 182-83, 190-92 (5th Cir. 2015). In contrast, the INA is silent with respect to DACA. This does not, as the Government contends, mean that Congress effectively prohibited DACA. Gov. Br. 35. Rather, it means that DHS has latitude to promulgate a reasonable interpretation of the law as applied to the
20

circumstances of DACA recipients. See J.A. 132-64; cf. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by . . . an agency.”) (emphasis added); Sijapati v. Boente, 848 F.3d 210, 216 (4th Cir. 2017) (applying Chevron deference to an agency interpretation of the INA). In addition, because the Government does not contest that DACA lacks an analogue in the INA, the Government cannot rely on the Fifth Circuit’s inapposite statutory holdings. See Pl. Br. 32; NAACP, 298 F. Supp. 3d at 239 (holding DHS’s conclusion “based only on an incongruous reference to the Fifth Circuit’s decision on DAPA . . . cannot support the program’s rescission”).
Plaintiffs emphasized that, in relying on the Attorney General’s letter, DHS incorporated its factual and legal errors, including the Attorney General’s attribution of constitutional holdings to the Fifth Circuit, which did not make any such holdings. Pl. Br. 31-32. Importantly, the Government does not contest that courts never ruled on the constitutionality of DAPA or DACA. Instead, the Government argues that the Attorney General’s letter “should not be read to attribute ‘constitutional’ holdings to . . . Texas.” But the Attorney General’s letter states that rescission is appropriate “[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA.” (J.A. 370 (emphasis added)). The Attorney General plainly relied on the misapprehension
21

that “courts recognized” “constitutional defects as to DAPA” when no court had done so.
The Government also argues that the Rescission Memorandum “described [the DHS Acting Secretary’s views on the legality of DACA] in purely statutory terms.” Gov. Br. 36. But the sparse analysis (and justification) of the rescission simply states: “Taking into consideration the Supreme Court’s and Fifth Circuit’s ruling in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the . . . DACA program should be terminated. (J.A. 383 (emphasis added)). There is no support in the memo for the Government’s contention that the Acting Secretary used “purely statutory terms.” Nor is there support for the Government’s contentions that the Acting Secretary’s conclusions “did not depend in any way on whether DACA was unconstitutional, rather [that DACA was] ‘merely’ contrary to statute[,] and [was] likely to be enjoined regardless.” Gov. Br. 36 (emphasis added).
Because DHS did not distinguish between “legal . . . defects” and the “constitutional defects,” it is impossible to determine what weight the agency’s legal analysis gave to the alleged constitutional defects. Since a court cannot uphold an agency action “if the agency has misconceived the law,” SEC v. Chenery Corp., 318 U.S. 80, 94 (1943), this error and omission warrants reversal.
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Finally, the Government’s attempt to minimize the import of Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) (en banc), cert. denied, 136 S. Ct. 159 (2016), is belied by the facts of this case. In Kake, the Ninth Circuit made clear that litigation risk alone is not a sufficient justification, especially when the agency would just be “deliberately trad[ing] one lawsuit for another,” which is exactly what DHS did. Id. at 970. Rather than rescinding the program and enjoying the “benefit of mooting a near-certain injunction,” as the Government asserts, Gov. Br. 37, DHS now faces three nationwide injunctions resulting from 10 active suits challenging its decision. J.A. 1519 (D. Md. Order); J.A. 1484-85 (Batalla Vidal, 279 F. Supp. 3d at 437-38); J.A. 1407-09 (Regents, 279 F. Supp. 3d at 1048-49). DHS deliberately traded one lawsuit for several and, in the absence of a supporting rationale, such action illustrates the arbitrary and capricious nature of the agency’s decision.
3. In Dismissing the APA Notice and Comment Claim, the District Court Misapplied the Law
The Government’s rescission of DACA required notice-and-comment rulemaking because it was a “substantive” rule within the meaning of the APA. See 5 U.S.C. § 553(d)(1). In particular, in rescinding DACA, DHS: (1) created an immediately binding norm; (2) narrowly limited the discretion of agency officials; and (3) had a substantial impact on those regulated. Pl. Br. 35-38. The Government’s contention that the DACA rescission was exempt from notice-and-
23

comment because it was a “general statement of policy” about how the agency prospectively intends to exercise its enforcement authority, Gov. Br. 49-52, is wrong as a matter of fact and law.
This Court recently reaffirmed that an agency action constitutes a substantive rule when it “adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.” Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018) (citing Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014) (emphasis added). In contrast, an agency action is a general statement of policy if it “does not establish a binding norm and leaves agency officials free to exercise their discretion.” Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995).
Application of those standards to the facts of the DACA rescission makes clear that the rescission is a substantive rule requiring notice-and-comment. The implementation of the rescission indisputably effects a “substantive change in existing . . . policy.” Children’s Hosp. at 620. In announcing Secretary Duke’s decision, DHS expressly took away the rights of prior and potential DACA recipients to travel internationally, work, attend school, and be free from deportation. See Pl. Br. 38 & n.6. The Rescission Memorandum included numerous mandates removing the discretion of agency officials by directing that they “will” —rather than “may” —undertake specified steps to effectuate the
24

denial of those previous benefits. See Pl. Br. 36-37 & n.5. Tellingly, the Government does not address, much less refute, the critical significance of the compulsory “will” language in the Rescission Memorandum as removing the discretion of agency personnel.
Similarly, by its own terms, the Rescission Memorandum was “effective immediately” (J.A. 383), thereby binding agency officials to a new norm on the day it was issued. Id. It was not, as the Government contends, a mere “general statement of policy [that] ‘advise[s] the public prospectively of the manner in which the agency proposes to exercise discretionary power.’” See Gov. Br. 49 (citation omitted). For example, in announcing the rescission, Acting Secretary Duke ordered DHS officials to immediately reject all new work authorizations and all pending and future applications for advance parole for international travel. J.A. 383.
These actions substantively affect the rights and obligations of individuals and the public. See Pl. Br. 37-38. The Government failed to address, and cannot dispute, the sweeping impact that the DACA rescission has on recipients, DACAeligible individuals, their communities, and other parties affected by the DACA program —including employers, schools, and universities.8 The rescission directly and severely harms roughly 800,000 DACA recipients, who are no longer able to 8 Indeed, the Government concedes that an injunction of the DACA program would cause an “immediate, disruptive” effect. Gov. Br. 41.
25

travel, work, attend school, and live free from the risk of deportation. The rescission harms their families, many of which include U.S. citizens. It harms their communities. And it harms numerous other interested parties (many of whom have sued to enjoin the rescission), including employers and universities. See J.A. 1402-04 (Regents, 279 F. Supp. 3d at 1045). These serious and pervasive impacts reinforce the conclusion that the DACA rescission is a substantive rule, rather than a general statement of policy. See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) (stating that an agency action “affecting individual rights and obligations” is a substantive rule); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 6 (D.C. Cir. 2011) (reasoning that an agency regulation had the “hallmark of a substantive rule” because it “substantively affect[ed] the public. . . .”).
These facts stand in stark contrast to Chen Zhou Chai, where this Court found a regulation that provided “the Attorney General may grant asylum” to certain groups to be a general statement of policy. 48 F.3d at 1341 (emphasis in original). By its permissive language, that regulation did not establish a binding norm; rather, it granted agency officials permission to exercise broader discretion. That is not the case here. The Rescission Memorandum, by its own terms, mandated certain Government actions to be taken that have a substantive effect on hundreds of thousands of people to be “effective immediately.” (J.A. 383).
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For this reason (among others), the Government’s argument that, because DACA was implemented without notice and comment, the rescission of DACA cannot be compelled to undergo that process, Gov. Br. 51-52, is wrong as a matter of law. As a matter of policy, the Government can establish enforcement priorities and consider applications for individuals who seek leniency. But having granted such leniency to a broad class of individuals, the APA requires that substantive changes to the rights and obligations of that class of individuals go through the notice-and-comment process. 5 U.S.C. § 553.
The Government is also wrong as a matter of law because the rescission of a substantive rule requires notice and comment regardless of whether the rule was issued through notice and comment. Consumer Energy Council v. FERC, 673 F.2d 425, 448 (D.C. Cir. 1982), aff’d, 463 U.S. 1216 (1983) (“The argument that repeal was required because the regulations were defective does not explain why notice and comment could not be provided” on the proposed repeal). Underpinning that holding was the D.C. Circuit’s recognition that “[t]he value of notice and comment prior to repeal of a final rule is that it ensures that an agency will not undo all that it accomplished through its rulemaking without giving all parties an opportunity to comment on the wisdom of repeal.” Id. at 446. While the Government argues Consumer Energy Council is inapplicable because the regulation there was defective for a “substantive,” rather than a “procedural” reason, the APA does not
27

recognize such a distinction. Whatever the alleged defect, once a substantive rule is in place the agency must, under the statute, to use proper procedures to rescind the rule. Thus, the assertion that DACA initially should have gone through notice and comment does not relieve the Government of its statutory obligation to follow such requirements when it proposes to rescind DACA.
C. The District Court Erred in Granting Summary Judgment on Plaintiffs’ Equal Protection Claim By Erroneously Applying a Heightened Standard of Review
Plaintiffs’ Opening Brief explained that the District Court applied the wrong standard of review to Plaintiffs’ equal protection claim. The complaint, as well as materials submitted with Plaintiffs’ Opposition to the Government’s Motion to Dismiss or, in the Alternative for Summary Judgment, made out well-pled factual allegations showing the rescission of DACA discriminated against Latinos: (i) key stakeholders involved in the decision to rescind DACA demonstrated discriminatory intent (J.A. 69-72); (ii) DACA recipients are 93 percent Latino, and the Government permitted other, non-predominantly Latino immigration deferred action programs to continue (J.A. 90, 474); and (iii) there were significant procedural irregularities in the termination of DACA (J.A. 501).
Equal protection claims are governed by Village of Arlington Heights v. Metropolitan Housing Development Corporation., 429 U.S. 252 (1977), which establishes that discriminatory intent can be inferred from: (1) the history of a decision, “particularly if it reveals a series of official actions taken for invidious
28

purposes”; (2) “[t]he . . . sequence of events leading up [to] the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; and (4) [t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decision-making body, minutes of its meetings, or reports.” Id. at 267-68. Plaintiffs presented ample allegations and evidence under this standard to make out a prima facie equal protection claim, and the District Court’s grant of summary judgment was in error and should be overturned. At a minimum, Plaintiffs should have been afforded discovery to flesh out their equal protection allegations further before the District Court ruled on the Government’s summary judgment motion. See supra at I.A.
The District Court incorrectly applied the framework from Kleindeinst v. Mandel, 408 U.S. 753 (1972), which is inapposite here, because Mandel addresses only the entry of aliens not yet present in the United States, rather than the rights of individuals already in the United States. Pl. Br. 12, 41-43; see also Trump v. Hawaii,138 S. Ct. 2392, 2419-20 (2018) (applying Mandel to an executive order affecting the entry of foreign nationals to the United States because, in part, of “the President’s constitutional responsibilities in the area of foreign affairs”). Relying on Mandel, the District Court erroneously concluded that the Government merely needed to show a “facially legitimate and bona fide” rationale for the DACA Rescission, Opinion at 21, and therefore failed to consider how Plaintiffs’ evidence
29

met the threshold requirements for stating an equal protection claim under the correct Arlington Heights standard.
The Government does not argue that Mandel should apply. Instead, it contends that the DACA rescission should be viewed as an exercise of prosecutorial discretion, and that under Reno v. American-Arab AntiDiscrimination Committee, 525 U.S. 471 (1999) (“AADC”), Plaintiffs failed to make the requisite showing of “outrageous” discrimination for a selective prosecution claim. See Gov. Br. 52-62. But, as the District Court correctly concluded, the DACA rescission was not an exercise of prosecutorial discretion. (J.A. 1508). Consequently, AADC also is inapplicable here.
Indeed, Plaintiffs here do not claim unconstitutional selective prosecution, but instead that the Government violated the Equal Protection Clause by rescinding the DACA program in order to target a class defined by race and national origin. This contrasts with AADC, where individual Plaintiffs alleged that they each were targeted for deportation based on their political beliefs. 525 U.S. at 472. Moreover, both AADC and Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) (also cited by the Government), relied on national security and intelligence-gathering concerns which are entirely absent here. Compare AADC, 525 U.S. at 490-91 (noting concerns regarding “disclosure of foreign policy objectives and . . . foreign intelligence products and techniques”) and Rajah, 544 F.3d at 438-39 (noting that
30

the program that was the basis for the deportations “was designed to monitor more closely aliens from certain countries selected on the basis of national security criteria”) with J.A. 379-84 (rescinding DACA because the Attorney General determined that DACA was unlawful). Arlington Heights supplies the correct framework, and neither Mandel nor AADC have any application here.9
The Government does not dispute Plaintiffs’ factual showings that: (i) only the DACA program, which predominantly benefitted Latinos, was targeted for rescission, whereas numerous other deferred action programs not primarily benefitting Latinos were left in place; and (ii) there were significant procedural irregularities in the termination of DACA. Pl. Br. 1, 7-8, 40-41, J.A. 90. The Government does contend that Plaintiffs’ evidence of a pattern of derogatory statements by government officials (Pl. Br. 40-41; J.A. 69-72) is insufficient to state a claim of racial animus. Gov. Br. 57-59. However, as Arlington Heights makes clear, that is wrong as a matter of law. Statements of officials demonstrating discriminatory intent are evidence of impermissible government action. Arlington Heights, 429 U.S. at 268; see also Centro Presente, 2018 WL 3543535 at *15 (noting a series of derogatory statements by President Trump were
9 In a similar equal protection challenge concerning the rescission of a temporary protected status immigration program, a district court rejected the Government’s motion to dismiss on the grounds that AADC barred the claim. Centro Presente v. United States Department of Homeland Security, No. 18-10340, 2018 WL 3543535, at *12-13 (D. Mass. July 23, 2018).
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evidence of “statements of animus by people plausibly alleged to be involved in
the decision-making process” because a supervisor’s influence on a subordinate can be considered in analyzing discriminatory intent).10 The statements of senior
officials, referenced in the Complaint, established a plausible basis for finding
discriminatory intent behind the rescission. And here, Plaintiffs presented
additional Arlington Heights evidence of animus, including the decision to
maintain non-predominantly Latino deferred action programs, procedural
irregularities in the rescission decision, and the sequence of events leading to the
rescission.
Finally, the Government incorrectly argues that the District Court
appropriately granted summary judgment on Plaintiffs’ constitutional claim solely
on the basis of the Administrative Record and without permitting discovery. This
too fails because “the summary judgment process presupposes the existence of an
adequate record” and district courts “must refuse summary judgment where the
nonmoving party has not had the opportunity to discover information that is
10 The cases cited by the District Court and the Government do not hold otherwise. In McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005), the Court noted that “examination of purpose is a staple of statutory interpretation” where “an understanding of official objective emerges from readily discoverable fact.” Id. at 861-862. And in Hamdan v. Rumsfeld, 548 U.S. 557, 623-624 n.52 (2006), while the Court declined to substitute statements made by Government officials to the media for the official presidential determination regarding procedures for courts-martial for alien detainees, that case did not suggest such evidence would be irrelevant in an intentional discrimination case.
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essential to its opposition.” Baltimore Center, 721 F.3d at 280-81 (citations and internal punctuation omitted). Contrary to the Defendants’ arguments, when a plaintiff asserts both APA and constitutional claims, discovery beyond the Administrative Record is permitted on the constitutional claims. See. e.g., Webster v. Doe, 486 U.S. 592, 604 (1988) (permitting discovery for constitutional claims); Rydeen v. Quigg, 748 F. Supp. 900, 906 (D.D.C. 1990), aff’d, 937 F.2d 623 (Fed. Cir. 1991) cert. denied, 502 U.S. 1075 (1992) (“When reviewing constitutional challenges to agency decisionmaking, courts make an independent assessment of the facts and the law.”).11
Here, Plaintiffs correctly pled an equal protection violation, presented evidence of discriminatory intent in targeting the DACA program, and requested limited discovery relating to the decision to rescind DACA. The District Court did not, as it is required to do, “viewing the facts and the reasonable inferences therefrom in the light most favorable to the nonmoving party,” Scinto, 841 F.3d at 227, and its decision therefore should be reversed.
11 Similarly, the Government’s reliance on Western Radio Services Co. v. U.S. Forest Services, 578 F.3d 1116 (9th Cir. 2009), cert. denied, 559 U.S. 1106 (2010) is unavailing. This case did not address the appropriate scope of discovery in a case involving both APA and constitutional claims. Id. at 1122-23.
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D. The District Court Erred in Granting Summary Judgment on Plaintiffs’ Due Process Claims Because the Rescission Impacted Significant Protectable Interests
DACA was a promise—made by the Government and relied upon by hundreds of thousands of young people —that if applicants, at the discretion of the Government, were granted DACA status, they could receive the benefits flowing from that status, including the right to work (through a work authorization), the right to travel internationally (through advance parole), and the right to pursue an education. Dreamers also relied on the promise from the Government that they could presumptively renew their legal protection under DACA.
The program created constitutionally protected interests that the Government revoked without affording Plaintiffs the right to be heard, and the Government’s position that it is free to breach its promise not to use DACA applicants’ personal information for enforcement purposes constitutes a violation of Plaintiffs’ substantive due process rights. The District Court incorrectly granted summary judgment for the Government as to Plaintiffs’ due process claims. It failed to recognize the rights conferred by DACA and to acknowledge the facts pled by Plaintiffs in establishing such due process violations. The Government’s arguments to the contrary are wrong.
1. The Government Extended Constitutionally Protected Interests to DACA Recipients
The District Court and the Government point to the Government’s initial DACA guidance in support of their assertion that DACA did not create any
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substantive rights or interests. Gov. Br. 63. But the Government’s argument, like the District Court’s ruling, ignores that following each discretionary decision to grant deferred action under DACA, the Government subsequently conveyed constitutionally protected interests on the recipient by “enabl[ing] [him or her] to do a wide range of things open to [citizens]…[such as] be[ing] gainfully employed and [being] free to be with family and friends and to form the other enduring attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
Perhaps more critically, both the District Court and the Government ignore the liberty interests created by DACA’s presumptive right of renewal. This Court and others have held that individuals may have constitutionally protected interests in the renewal of government-created benefits, especially where an “entitlement to [such] renewal may be implied…from policies, practices, and understandings . . . .” Richardson v. Town of Eastover, 922 F.2d 1152, 1157 (4th Cir. 1991).
There is no doubt that the Government intended DACA to be presumptively renewable. The 2012 DACA Memorandum explicitly directed that DACA be “subject to renewal” (J.A. 131). While the Government enforced age restrictions for initial applications to the program, there were no such restrictions for renewal; instead, DACA recipients could apply to renew as long as they [w]ere under the age of 31 as of June 15, 2012.” (J.A. 1008). The Government also used “nondiscretionary criteria for renewal” (J.A. 86, 130-31), and it approved more
35

than 99% of DACA renewal applications. See USCIS, Form I-821D Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometric and Case Status, Fiscal Year 2012-2017 (Mar. 31, 2017), cited at J.A. 46. Those facts demonstrate more than a plausible inference that the Government knew it was offering DACA recipients the opportunity for renewal; indeed, the Government made repeated statements to that effect, characterizing the program as a “commitment” and telling Dreamers that they should “rest easy.” (J.A. 83, 1374). The District Court failed to consider any of these facts in granting summary judgment for the Government.
Both Plaintiffs and the Government understood that DACA status, once granted, was presumptively renewable, and that such renewability and other interests that flowed from the initial grant of DACA status—the ability to work, pursue an education, and to travel internationally—are constitutionally protected. Those interests are at the core of the liberties protected by the Due Process Clause. “The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights,” and they “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015).
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The Government “is surely free to extend existing forms of liberty to new classes of persons – liberty that the government may then take only after affording due process.” Sessions v. Dimaya, 138 S. Ct. 1204, 1230 (2018) (Gorsuch, J., concurring in part and concurring in the judgment). Having extended such liberties to DACA recipients, the Government cannot revoke them without providing procedural or substantive due process as provided by the Constitution.
2. The Government’s Rescission of DACA Violated Plaintiffs’ Procedural Due Process Rights
The District Court erroneously granted summary judgment as to Plaintiffs’ procedural due process claim, stating, without elaboration, that “procedural due process applies only to individualized deprivations, not policy-based deprivations for an entire class.” (J.A. 1512). The Government does little more than parrot that language in its opposition. Gov. Br. 63.
Both the District Court and the Government are wrong. In reaching this erroneous conclusion, the District Court failed to address any of the evidence Plaintiffs put forth regarding their individualized deprivation of rights, including revocation of permission to travel internationally and loss of employment. Pl. Br. 52 (J.A. 44, 50-57, 73-75, 85-89). That failure alone warrants reversal of summary judgment.
Moreover, the District Court erred in its application of Bi-Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 444-45 (1915). As the Government
37

acknowledges, the Bi-Metallic Court found no procedural due process violation in that specific instance because “individuals subject to a general policy may have recourse to political processes.” Gov. Br. 64. Here, the Government afforded Plaintiffs no “political process [that] serve[d] as an effective alternative.” (J.A. 1512). Indeed, Plaintiffs and other Dreamers were afforded no alternative or process whatsoever.
Finally, the Government argues that due process is not required “for the rescission of generally applicable policies.” Gov. Br. 64. Both the District Court and the Government assume that because DACA impacted a large number of people, application for and granting of DACA status was not an individualized process. The rescission of DACA did impact a large number of people —the lives of roughly 800,000 people were thrown into chaos—but each one of those 800,000 people individually applied, was individually approved, and individually enrolled in the program. DHS officers denied approximately 8% of initial applications, including on discretionary grounds. USCIS Form I-821D, cited at J.A. 46. It was only after this application process, approval, and enrollment in the program that constitutionally-protected benefits were extended to successful applicants. The Individual Plaintiffs cited the specific deprivations of these rights that they suffered without process. (J.A. 50-57, 73-75, 85-89). The District Court erred in not considering those facts.
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3. The Government’s Change to Its Information-Sharing Policy Violated Plaintiffs’ Substantive Due Process Rights
Finally, the District Court erred in granting summary judgment as to
Plaintiff’s substantive due process claim. In so ruling, it wholly failed to address
any facts related to the Government’s alteration of its information-sharing policy.
As the District Court noted elsewhere in its ruling:
• In introducing DACA, “the Government promised not to transfer or use the information gathered from Dreamers for immigration enforcement” (J.A. 1515);
• After making such a promise, “the government, having induced these immigrants to share their personal information under the guise of immigration protections, could now use that same information to track and remove them” (J.A. 1516); and
• Any such use potentially would be “affirmative misconduct” (id.). The Government’s only mention of the District Court’s failure to address the
substantive due process violations accompanying changes to the information-
sharing policy is to tell this Court that the Government’s “information-sharing
policy has not changed,” Gov. Br. 65, an unsupported assertion that is contrary to
the record evidence, untrue, and in direct conflict with the findings of other district
courts.
Plaintiffs presented evidence to the District Court that the Government
initially told DACA applicants that the information they provided would be
“protected from disclosure to ICE and [CBP] for the purpose of immigration
enforcement proceedings” with very limited exceptions. (J.A. 1011). Plaintiffs
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also presented evidence that in September 2017, the Government amended that information-sharing policy to state, “[g]enerally, information provided in DACA requests will not be proactively provided to other law enforcement entities[.]” (J.A. 1143). And Plaintiffs alleged detailed facts identifying specific actions by Government officials stating their intent to change the policy and other related policies, as well as specific individual DACA recipients who had been targeted by the Government for enforcement proceedings following these announcements. (J.A. 76-78; 475). In evaluating this explicit change to the information-sharing policy, the Northern District of California held that plaintiffs there had plausibly alleged a “broken promise” that “shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” Regents of Univ. of California v. U.S. Dep’t of Homeland Security, 298 F. Supp. 3d 1304, 1312 (N.D. Cal. 2018) (internal quotation omitted).
While the Government argues the DACA’s information-sharing policy “was always expressly subject to change,” Gov. Br. 65, Plaintiffs presented evidence that the Government did not consistently provide this disclaimer. (J.A. 380). And although the Government did state in certain communications that the “information-sharing policy may be ‘modified, superseded, or rescinded at any time’” (J.A. 1004), that language “simply allows the government to change its
40

policy in connection with future applicants” (J.A. 1417-18), not to renege on
promises made to prior applicants and DACA enrollees.
At best, the Government’s position—that it did not change the DACA
information-sharing policy and that any such change could, in any event, apply
retroactively to individuals already enrolled in DACA—creates a disputed issue of
fact. The District Court therefore erred in granting summary judgment on this
issue. E. Challenges to the Rescission of DACA Are Justiciable
The Government spends the first fifteen pages of its argument asserting that
federal courts have no jurisdiction to hear a challenge to the DACA rescission.
Gov. Br. 15-30. As noted, these arguments properly have been rejected by every court to consider them, including the court below. (J.A. 1501).12 Contrary to the
Government’s contention, id. at 16-18, the conclusion that there is jurisdiction here
is consistent with the strong presumption courts are required to apply supporting
judicial review of agency decisions, see Mach Mining, L.L.C. v. E.E.O.C., 135 S.
Ct. 1645, 1651 (2015), including in the immigration context, see, e.g., McNary v.
12 See also J.A. 547-48 (Batalla Vidal, 295 F. Supp. 3d at 147) (“Defendants first argue that these cases are non-justiciable because the decision to end the DACA program was committed to DHS’s exclusive discretion by law. The court disagrees.”)); J.A. 1382 (Regents, 279 F. Supp. 3d at 1029-31) (finding that “there is law to apply” and DACA’s rescission was not committed to agency discretion by law)) (emphasis in original); NAACP, 298 F. Supp. at 234 (“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.’”).
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Haitian Refugee Ctr., 498 U.S. 479, 483-84 (1991) (“[G]iven the absence of clear congressional language mandating preclusion of federal jurisdiction . . . the District Court had jurisdiction to hear respondents’ constitutional and statutory challenges to INS procedures.”). Although Congress may overcome the presumption by committing agency action “to agency discretion by law” or by enacting an express jurisdiction-stripping provision, neither of those exceptions applies here. Quinteros-Mendoza v. Holder, 556 F.3d 159, 162 (4th Cir. 2009); 5 U.S.C. §§ 701(a)(1)-(2). The Government’s arguments to the contrary are unavailing.
1. The Decision to Rescind DACA Was Not Committed to Agency Discretion by Law
Every court that has considered the Government’s arguments that the rescission of DACA was committed to agency discretion by law, Gov. Br. 16-18, has rejected that assertion and found that challenges to the rescission of DACA are justiciable. (J.A. 1501). Courts have uniformly ruled this way for a reason: the rescission of DACA is not an enforcement action, discretionary or otherwise. Rather, through the Rescission Memorandum, the Government eliminated a program governing the consideration of deferred action (and related benefits) for a class of individuals meeting specific criteria. This broad directive was not a decision to enforce the nation’s immigration laws with respect to any particular individual.
42

Plaintiffs are not challenging a decision to prosecute but rather the Government’s “affirmative decision to eliminate a program by which DHS exercised prosecutorial discretion with respect to a large number of undocumented immigrants.” (J.A. 547). The Government’s decision regarding that program— with its accompanying protections and benefits—is not committed to agency discretion by law and is therefore reviewable. There are two fundamental flaws in the Government’s reasoning to the contrary.
First, the rescission of DACA was not “committed to agency discretion by law” as that term is defined in the APA. See 5 U.S.C. § 701(a)(2). The APA provides broad jurisdiction, stating that any “person suffering legal wrong because of agency action . . . is entitled to judicial review thereof.” See 5 U.S.C. § 702. Consistent with this jurisdiction, courts interpret the agency discretion exception “extremely narrowly, applying it only ‘in those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’” Quinteros-Mendoza, 556 F.3d at 162 (citing Lincoln v. Vigil, 508 U.S. 182, 191 (1993)).
Here, there is clearly applicable procedural and substantive law and thus a “meaningful standard” for review. The APA provides the relevant procedural law. Courts can—and should—evaluate whether the Rescission Memorandum complies with the procedural requirements of the APA. See 5 U.S.C. §§ 553, 604.
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Regardless of whether the substance of an agency action is reviewable, the agency’s process in making that decision is reviewable for compliance with the procedural requirements (e.g., for notice-and-comment) established by Congress. See Lincoln, 508 U.S. at 195-98 (explaining that whether an agency “was required to abide by the familiar notice-and-comment rulemaking provisions of the APA” is a question “quite apart from the matter of substantive reviewability . . . .”). See also Am. Med. Ass’n v. Reno, 57 F.3d 1129, 1134 (D.C. Cir. 1995) (“under the APA the ultimate availability of substantive judicial review is distinct from the question of whether the basic rulemaking strictures of notice and comment and reasoned explanation apply.”). Rather than address these precedents that squarely provide a basis for review, the Government urges this Court to adopt a strained reading of I.C.C. v. Brotherhood Of Locomotive Engineers, 482 U.S. 270 (1987) (“BLE”). Gov. Br. 19-20. But BLE stands for the unremarkable proposition that an agency’s decisionmaking rationale cannot convert an otherwise unreviewable action into a reviewable one. 482 U.S. at 283. The Government’s reliance on BLE presumes the answer to the threshold question of whether the action at issue is “otherwise reviewable.” Here, the decision to rescind DACA is reviewable and accordingly, BLE is not applicable.13
13 See NAACP, 298 F. Supp. 3d at 232 (distinguishing BLE); J.A. 547 (Batalla Vidal, 295 F. Supp. 3d at 149) (“While it may be true that a presumptively unreviewable decision does not become subject to judicial review simply because
44

The relevant substantive law also provides a reviewable standard. As the Government concedes, the Plaintiffs brought constitutional claims and “constitutional constraints on enforcement discretion are traditionally reviewable and provide meaningful standards to apply . . . [and] review of plaintiffs’ constitutional claims is therefore not precluded by § 701(a)(2). . . .” Gov. Br. 22 n.1.
With regard to the APA claims, the Government’s suggestion that Plaintiffs were required to cite a provision of the INA, Gov. Br. 22, misconstrues the relevant question under § 701(a)(2) — it is not whether any law constrains the agency’s action, but whether that action is expressly committed by statute to agency discretion. As discussed below, the INA contains no such provision. And there are judicially manageable standards here: in claiming that the termination was grounded on DACA’s alleged illegality, the Government cited several legal propositions, which a court is well-suited to evaluate. The inclusion of legal analyses in the Administrative Record—reflected in the Office of Legal Counsel’s DAPA opinion (J.A. 132-64), court decisions in Texas v. United States (J.A. 170343), and the Attorney General’s opinion (J.A. 379) —as the basis of DHS’s decision to rescind DACA (J.A. 382-83), confirms that such decision is squarely
the decisionmaker expresses a ‘reviewable rationale’ . . . the decision to rescind the DACA program was not inherently such a decision . . . .”); J.A. 1382 (Regents, 279 F. Supp. 3d at 1031 n.7) (noting “the rescission of DACA was not such an unreviewable decision”).
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within the competence of this Court to review. Whether or not the Government’s legal conclusions were “not in accordance with the law” provides a judicially manageable standard that allows a reviewing court to evaluate Plaintiffs’ APA claims. See 5 U.S.C. § 706(2)(A); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).
Indeed, there is a fundamental inconsistency in the Government simultaneously arguing that DACA was legally infirm and required rescission (J.A. 379), and that DACA and its rescission were fully discretionary and thus immune from judicial review, Gov. Br. 16-22. As Judge Bates found: “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.” NAACP, 298 F. Supp. 3d at 233 (emphasis in original). The District Court below also noted this irreconcilable tension, citing it as further evidence in favor of justiciability: “Furthermore, it is important to note that the Government’s explanation for rescinding DACA was the Secretary’s belief that the program was unlawful and would face lengthy legal challenges.” (J.A. 1501). See also J.A. 547 (Batalla Vidal, 295 F. Supp. 3d at 150) (“Instead, Defendants stated that they were required to rescind the DACA program because it was unlawful, which suggests both that Defendants did not believe that they were exercising discretion when
46

rescinding the program and that their reasons for doing so are within the competence of this court to review.”)).
Second, the Government’s brief fails to address the distinction between a programmatic determination that affected a class of persons and a decision whether to prosecute a particular person – a factor that was critical to the reasoning of all
four district courts that have found jurisdiction over the DACA rescission. Where, as here, the Government bases a programmatic decision on its interpretation of the law, the decision is subject to judicial review. See Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676-77 (D.C. Cir. 1994) (distinguishing individual
enforcement proceedings from “an agency’s statement of a general enforcement policy [which] may be reviewable for legal sufficiency . . . .”) (emphasis in original); NAACP, 298 F. Supp. 3d at 232 (noting “general enforcement policies
are exempt from Chaney’s presumption of unreviewability when they are predicated solely on the agency’s view of what the law requires”).14
14 The Government’s proposed distinction between the reviewability of a supporting rationale and the non-reviewability of an enforcement decision is unavailing. See Gov. Br. 19-20 (citing UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) and Crowley, 37 F.3d at 675-76). Rather, as Judge Bates recently reaffirmed in this context, when an enforcement policy is predicated on the agency’s view of what the law requires, that “agency action is not ‘non-reviewable’ in the first place if it is ‘based entirely on its interpretation of the statute.’” NAACP v. Trump, No. CV 17-1907 (JDB), 2018 WL 3702588, at *8 n.9 (D.D.C. Aug. 3, 2018) (quoting CREW v. FEC, 892 F.3d 434, 441 n. 11) (emphasis added).
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For this reason, the Government’s reliance on cases involving its exercise of prosecutorial discretion is misplaced. The Government’s main case—Heckler v. Chaney —involved a challenge by several prison inmates sentenced to death by lethal injection to the FDA’s decision not to commence an enforcement action against the drug manufacturers whose drugs were proposed to be used in the executions. 470 U.S. 821, 832 (1985). Similarly, Speed Mining, Inc. v. Federal Mine Safety and Health Review Commission involved a challenge to the Labor Department’s decision as to which party, among jointly and severally liable persons, to cite for a violation of the Mine Act. 528 F.3d 310, 313 (4th Cir. 2008). Both cases involved specific potential enforcement actions against specific identified entities. Chaney is further inapposite because it relied on the fact that plaintiffs in that case were attempting to obtain judicial review of an agency decision not to act, which the Supreme Court carefully distinguished from an agency decision to act. 470 U.S. at 832 (“when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights . . . when an agency does act to enforce, that action itself provides a focus for judicial review . . . .”) (emphasis in original). As the D.C. Circuit held in Robbins v. Reagan:
Decisions not to take enforcement action generally do not involve exercise of coercive power over individual’s liberty or property rights, and thus do not infringe upon areas that courts are called upon to protect. By contrast, rescissions of commitments, whether or not they
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technically implicate liberty and property interests as defined under the fifth and fourteenth amendments, exert much more direct influence on the individuals or entities to whom the repudiated commitments were made . . . . Rescissions of prior obligations clearly fall into the ‘forced action’ category [giving courts a] specific affirmative action to be reviewed.
780 F.2d 37, 47 (D.C. Cir. 1985) (emphasis in original).15 Here, Plaintiffs seek
judicial review of an affirmative agency action rescinding commitments that have
been made to DACA recipients, providing a clear focus for judicial review.
Similarly, the Government’s analogy of shifting priorities in prosecuting
drug crimes is inapt. Gov. Br. 27. The individualized considerations that go into
charging decisions are simply not present here with respect to the Government’s
decision to eliminate an entire program. Unlike a charging decision that
necessarily involves a balancing of factors uniquely within the agency’s
expertise,16 here the Government concluded that it was without power to continue
15 The Government disputes the relevance of Robbins because it “did not involve an exercise of enforcement discretion.” Gov. Br. 26 n.3. That is the point—in rescinding DACA, the Government, as in Robbins, refused to abide by a “previously agreed upon” commitment. The Government also contends that this distinction is unavailing because Speed Mining involved a decision “to act.” Gov. Br. 25. But the Government misconstrues the discretionary act in Speed Mining. There, the statute required the Labor Department to issue a citation if it believed that a violation occurred, but was silent as to which party to cite – in other words, the latter decision was within the agency’s discretion. 528 F.3d at 317. When an agency does decide to “exercise[] its power in some manner,” as DHS did here, Chaney instructs that the agency action is reviewable.
16 Nor is there any evidence in the Administrative Record that the Government undertook such a balancing of factors in rescinding the DACA program.
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the DACA program, under which it exercised its discretion, because the program was legally infirm and required rescission. (J.A. 379-84). See also J.A. 547 (Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 150 (E.D.N.Y. 2017) (“This affirmative decision to constrain DHS’s prosecutorial discretion cannot be analogized to an exercise of prosecutorial discretion . . . .”)).
Moreover, DACA was not merely a decision not to enforce immigration laws, like the decision not to enforce drug laws in the Government’s analogy. In promulgating DACA, the Government made affirmative promises and took proactive measures. It actively encouraged individuals not lawfully present to reveal themselves to law enforcement authorities in exchange for select benefits. In other words, the Government did not merely look the other way while a violation of immigration laws occurred, but openly encouraged the ongoing violation. The Government’s analogy ignores that DACA is not just a grant of deferred action, but includes this exchange of benefits and burdens.
2. Section 1252(g) Does Not Strip the District Court of Jurisdiction
Every court that has considered the Government’s argument that 8 U.S.C. § 1252(g) forecloses judicial review, Gov. Br. 28-31, has properly rejected that proposition. See J.A. 1501 (“the notion that 8 U.S.C. § 1252(g) precludes judicial
50

review has been rejected repeatedly”).17 The unanimous view of these courts is
correct, as the Government’s position cannot be reconciled with the Supreme
Court’s interpretation of §1252(g) in AADC. There, eight resident aliens
challenged their deportation on the grounds that it was politically motivated. 525
U.S. at 472. The Government took the position—similar to the position it takes
here—that §1252(g) precludes review of “all deportation-related claims” short of a
final order of removal. Id. at 506. Based on the plain language of the provision,
the Supreme Court held that § 1252(g) “applies only to three discrete actions”: the
“decision or action” to (1) “commence proceedings,” (2) “adjudicate cases,” or (3)
“execute removal orders.” Id. at 482 (emphasis in original). The Government
concedes that the decision to rescind DACA is not one of these “three discrete
actions,” instead characterizing the rescission as “an ingredient to commencement
17 See also J.A. 549-50 (Batalla Vidal, 295 F. Supp. 3d at 152) (“Nor does the INA divest the court of jurisdiction to hear this case. … [8 U.S.C. § 1252(g)] has no bearing on these cases, which do not arise from one of the three specifically enumerated actions by immigration authorities that trigger application of the statute.”)); Regents of Univ. of California, 279 F. Supp. 3d at 1031–33 (“Nor does Section 1252(g) bar judicial review of the agency action in question.”); NAACP, 298 F. Supp. 3d at 223–24 (“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 Anti–Discrimination Committee . . . . 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.”). See also Texas v. United States, 809 F.3d 134, 156-63 (5th Cir. 2015) (holding Section 1252(g) did not preclude judicial review of DAPA and that such an expansive reading of Section 1252(g) would render numerous other jurisdiction-stripping provisions of the INA “superfluous”).
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of removal.” Gov. Br. 30-31 (emphasis added). But, AADC expressly rejected the argument that ancillary “decisions or actions [in the] deportation process” are encompassed by the jurisdiction-stripping provision of § 1252(g). AADC, 525 U.S. at 482. The Government again conflates the programmatic determination that affected a class of persons and a decision whether or not to commence proceedings against particular persons. The rescission of DACA is no closer to the commencement of removal proceedings than other ancillary actions, “such as the decisions to open an investigation [or] to surveil that suspected violator,” that the Supreme Court found not covered in AADC. Id.
The Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), likewise rejects the Government’s position. The plurality reaffirmed AADC’s narrow interpretation of § 1252(g), stating: “We did not interpret this language [in § 1252(g)] to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves.” 138 S. Ct. at 841. Plaintiffs are not challenging a decision to commence proceedings against them, as no such decision has been made. They are challenging the Government’s termination of a Government-sponsored program pursuant to which roughly
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800,000 people, their families, employers, schools, and communities restructured their activities. Section 1252 simply does not bar such challenges.18
The clear command of AADC and Jennings is that there are three—and only three—circumstances under which § 1252(g) would preclude jurisdiction. None of those circumstances is present here. The Court should affirm the District Court’s finding that the Plaintiffs’ claims are justiciable. II. THE DISTRICT COURT CORRECTLY ENJOINED THE
GOVERNMENT FROM USING DACA APPLICANTS’ PERSONAL INFORMATION FOR ENFORCEMENT PURPOSES The District Court below properly imposed an injunction to stop the Government from using for enforcement purposes personal information DACA recipients provided during the application process. DHS actively encouraged and induced individuals to apply for DACA and to disclose personally-identifying information about themselves and family members by promising that such information would not be used for immigration enforcement purposes. Since the change in Administration, DHS has foresworn its promise to DACA applicants and signaled its belief that it is free to renege on its representations if it chooses to do so by changing its information-sharing policy. (J.A. 1004). The District Court correctly recognized that the law prohibits the government from doing that.
18 The Government also argues that 8 U.S.C. § 1252(b)(9) bars Plaintiffs’ claims. Gov. Br. 31. This argument was not raised in the District Court, but in any event, it also fails because Section 1252(b) applies only to “review of an order of removal under [§1252(a)(1)].” 8 U.S.C. § 1252(b). No such orders are at issue here.
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A. The Undisputed Record Below Demonstrated the Appropriateness for Injunctive Relief
Plaintiffs presented evidence below—in the form of a Rule 56(c) Statement of Material Facts, as well as extensive affidavits and public record evidence— showing that: • the Government made unqualified representations to DACA applicants that
information provided as part of their application would not be used for enforcement purposes. (J.A. 473). • DACA applicants relied on this information. (J.A. 526). • the Government changed its information sharing policy. (J.A. 531-1093). • the Government had used (and could use) personal information in a manner inconsistent with its representations to DACA Applicants. (J.A. 475). • such use did constitute (and could constitute) irreparable harm to recipients. (J.A. 1516). At no point did the Government provide its own statement of material facts in dispute under Rule 56(c) to contest Plaintiffs’ assertions. Even after the District Court provided notice to the Government that “it may grant summary judgment for the nonmovants” pursuant to FRCP 56(f) (J.A. 1290), the Government still did not provide a statement of material facts in dispute, nor did it contest Plaintiffs’ Statement of Material Facts. Indeed, at oral argument, when the District Court asked the Government if it was prepared to state that it had no intention of “changing the information-sharing assurances that were given in connection with DACA,” the Government refused to make this commitment, explicitly reserving
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the right to use for enforcement purposes the information voluntarily provided by Dreamers. (J.A. 1307-08).
Based on the record before it, the District Court issued an injunction barring the Government from changing its policy on information sharing. In particular, the District Court found the Government “induced these immigrants to share their personal information under the guise of immigration protections” and the “use of that same information to track and remove them . . . potentially would be ‘affirmative misconduct’ by the [G]overnment.” (J.A. 1516). Thus, with the Government’s refusal “to provide any assurance that the Government would not make changes [to the information sharing policy],” the District Court enjoined the Government from making any such changes “given the substantial risk for irreparable harm in using Dreamers’ DACA-provided information. . . . for enforcement purposes.” Id. at 1516-17.
This evidence more than satisfies the traditional elements of estoppel: (1) the Government, and not the DACA recipients, “knew the true facts” regarding the Government’s intentions with regard to the personal information; (2) the Government intended its promises regarding personal information “to be acted upon or acted in such a way that” the DACA recipients “had a right to believe that it was intended;” (3) the DACA recipients were “ignorant of the true facts” regarding the Government’s intention to use their personal information for
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enforcement purposes; and (4) the Government’s “misconduct was relied upon to the detriment of” the DACA recipients. Dawkins v. Witt, 318 F.3d 606, 611 n.6
(4th Cir. 2003), cert. denied, 539 U.S. 960 (2003) (noting “affirmative misconduct” must also be found to estop the government).19 Having failed to contest these facts before the District Court, the Government cannot assert on
appeal that the District Court abused its discretion in barring the Government from changing its information sharing policy.
Indeed, the Government challenges only one element of estoppel, asserting that the claim fails because, in the absence of a finding that the information policy
has changed, the “district court’s speculation fails to satisfy the requirement of ‘affirmative misconduct,’” and relatedly that Plaintiffs have not shown irreparable harm. Gov. Br. 67. The Government’s arguments are wrong.
The District Court, “based on the evidence before it,” correctly found the Government’s retention of DACA applicants’ personal information, combined with its refusal to commit to not using that information for enforcement purposes,
presented “substantial risk for irreparable harm” and constituted “affirmative misconduct” sufficient to satisfy even the heightened requirements for finding
19 The District Court, citing Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639, 646 (4th Cir. 2006), described equitable estoppel as comprising “three basic elements: (1) a voluntary misrepresentation of one party, (2) that is relied on by the other party, (3) to the other party’s detriment.” J.A. 1514-15. While Chawla applied Maryland’s equitable estoppel law, it presents no meaningful distinction from the Fourth Circuit’s familiar test espoused in Dawkins.
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estoppel against the Government. (J.A. 1515-16). This easily comports with the Supreme Court’s determination that “[a]n allegation of future injury may suffice [for Article III standing] if . . . there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014); see also N.C. State Conference of NAACP v. N.C. State Bd. of Elections, 283 F. Supp. 3d 393, 399 (M.D.N.C. 2017) (“When a plaintiff seeks redress for a prospective harm, the plaintiff can demonstrate that an alleged injury is sufficiently imminent for standing purposes by showing . . . that the plaintiff faces a ‘substantial risk’ of its occurrence.”). The District Court made this finding.
This Court has recently recognized that “fear and risk of future arrest” based on “a credible threat of prosecution” satisfies “the injury-in-fact requirement for prospective relief.” Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018); see also Capital Associated Indus. v. Stein, 283 F. Supp. 3d 374, 380 (M.D.N.C. 2017), appeal filed, 17-2218 (4th Cir. Oct. 18, 2017) (recognizing that plaintiffs bringing a “‘pre-enforcement challenge”’ “‘need not . . . be proactively threatened with prosecution”’ when “‘the State has not disclaimed any intention of enforcing the challenged statute”’). Here, the Government affirmatively maintains that the rescission of DACA is “an ingredient to the commencement of removal.” Gov. Br. 30-31. Thus, the Government cannot now assert that Plaintiffs do not face a credible threat of being subject to an immigration enforcement action.
57

The District Court likewise recognized that the “use [of DACA applicants’ personal information] to track and remove them would result in irreparable harm to those deported. (J.A. 1516). It is “self-evident” both that removal constitutes irreparable harm and that detrimental reliance on the Government’s representations —that information provided would not be used for such enforcement purposes— constitutes affirmative misconduct. Id. In fact, the Government does not contest either proposition. Nor could it. This Court has found sufficient affirmative misconduct to justify estoppel against the Government on arguably far less egregious facts. See U.S. v. Cox, 964 F.2d 1431, 1434-35 (4th Cir. 1992) (finding that the Government was estopped from reneging on a commitment to pay the costs of a psychiatric examination of an inmate in a federal prison).
The Government’s efforts to raise for the first time before this Court arguments it did not present to the District Court that past statements regarding the information-sharing policy “be converted into ‘misrepresentation[s] for purposes of equitable estoppel” (Gov. Br. 68) are, of course, too little, too late. But even if the Government’s arguments were not procedurally barred, they are without merit. The Government’s suggestion that the potential modification language gives it the right years later to go back on its word to those who relied on it makes no sense when considered in the context in which the DACA policy was promulgated. The Government encouraged DACA-eligible candidates to apply for that program’s
58

benefits, and its success in getting hundreds of thousands of individuals to apply would not have been possible without its promise not to use their personal identifying information for enforcement purposes. It makes no sense for the Government, at the same time, to be telling those applicants that the promise was worthless, and may be broken at any time.
The Government’s argument is also inconsistent with the underlying factual record, which contains documents made available to the public, including DACA applicants and enrollees, lacking the disclaimer that the Government could share information proactively or change its policy at any time. (J.A. 1090). Moreover, as the Northern District of California found, to the extent the Government actually provided the “disclaimer,” at most it preserved the Government’s ability to change its policy prospectively after providing adequate notice—not to do so retroactively. See J.A. 1417-18 (Regents, 298 F. Supp. 3d at 1312) (potential modification language “simply allows the government to change its policy in connection with future applicants.”)
Finally, the Supreme Court has rejected the Government’s argument that there is a per se rule barring estoppel against the Government. Compare Gov. Br. 68 with Office of Personnel Management v. Richmond, 496 U.S. 414, 423 (1990) (declining to adopt a “sweeping rule” establishing that “no estoppel [claim could ever succeed] against the Government”). Contrary to the Government’s view, it
59

can be estopped where, as here, the Government acts in a manner that violates “the
interest of citizens in some minimum standard of decency, honor, and reliability in
their dealing with the Government,” Heckler v. Cmty. Health Servs. of Crawford
Cty., Inc., 467 U.S. 51, 60-61 (1984), or where “justice and fair play require it . . .
.” Watkins v. U.S. Army, 875 F.2d 699, 706 (9th Cir. 1989), cert. denied, 498 U.S.
957 (1990) (citations omitted); Cox, 964 F.2d at 1435.
The District Court correctly recognized that DACA applicants gave the
Government their personal information for a specific use, and estoppel was
appropriate to ensure the government only uses their information for its authorized
use. B. The District Court Acted Within its Discretion in Enjoining the Government From Changing Its Information-Sharing Policy With Respect to All DACA Applicants
As a threshold matter, the Government does not contend that the District
Court erred in finding that the requisite elements for an injunction are present here;
rather, it only argues that the scope of the District Court’s injunction is overbroad. Id. at 69-73.20 Specifically, the Government contends that the nationwide scope of
20 The factors for a permanent injunction are: “(1) that [a plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007). Except as addressed above in its estoppel arguments, the Government does not contest that these factors have been met.
60

the injunction “violate[s] the requirements of Article III and equity” because the relief granted is not plaintiff-specific. Gov. Br. 69. This argument is unavailing.
The District Court enjoys “broad discretion when fashioning injunctive relief,” Ostergren v. Cuccinelli, 615 F.3d 263, 268 (4th Cir. 2010), and is vested with “the judicial Power of the United States” which applies to the Government and extends nationwide. U.S. CONST. art. III, § 1; see also City of Chicago v. Sessions, 888 F.3d 272, 289-90 (7th Cir. 2018) (upholding a nationwide injunction and recognizing “the district court had the authority to fashion the terms of that injunction as it determined necessary for the public interest . . . .”).
The District Court was well within its discretion in granting a nationwide injunction in light of the facts of this case. Plaintiffs reside throughout the United States and include organizations that serve communities in the Second, Third, Fourth, Sixth, Eighth, Ninth, and D.C. Circuits and that had organizational and associational standing to pursue this litigation. (J.A. 1503). Accordingly, nationwide relief is well within the power of the District Court. See Richmond Tenants Org. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992); see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (where plaintiffs reside throughout the country, only a nationwide injunction can provide “complete relief to the plaintiffs”). “[F]or issues of widespread national impact, a nationwide injunction” can “be beneficial in terms of . . . avoidance of irreparable harm and in
61

furtherance of the public interest.” City of Chicago, 888 F.3d at 288. For this reason, the Government’s reliance on Gill v. Whitford, 138 S. Ct. 1916 (2018), Gov. Br. 70, is inapt —a broader injunction was unnecessary to ensure the plaintiffs relief in that case; however, here to ensure adequate protection a broader remedy is required.
The need for national uniformity in the application of immigration laws also favors a nationwide injunction. See Texas v. U.S., 809 F. 3d at 187-88 (upholding a nationwide injunction on the DAPA program due to the need for immigration laws to be “enforced vigorously and uniformly”) (emphasis in original).21 This case is also well-suited to a nationwide injunction because the Government’s misuse of Dreamers’ personal information “presents purely a narrow issue of law; it is not fact dependent and will not vary from one locality to another.” City of Chicago, 888 F.3d at 291-92. Indeed, one of the cases the Government cites supports Plaintiffs’ position. In Virginia Society for Human Life, Inc. v. Federal Election Com’n, 263 F.3d 379, 392-93 (4th Cir. 2001), this Court found that a nationwide injunction was overly broad because an injunction addressing the sole plaintiff in the case “adequately protects it.” But the Court contrasted that situation 21 Moreover, DHS has not demonstrated that it has the capacity to ensure that prior to using DACA applicant’s information for enforcement purposes, it “would inquire . . . into whether [an applicant] was among the named plaintiffs or a member of” one of the organizational plaintiffs. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1502 (9th Cir. 1996).
62

to a circumstance where plaintiffs were seeking relief “from across the country,” where a nationwide injunction “was appropriate.” Id., citing Richmond Tenants Org., 956 F.2d at 1302. Those are precisely the facts here: Plaintiffs include individual members and organizations throughout the country who can obtain relief only through a nationwide injunction. Accordingly, the District Court did not abuse its discretion in issuing a nationwide injunction.
CONCLUSION For the reasons discussed in this brief and in Plaintiffs’ Opening Brief, this Court should reverse the District Court’s decision with respect to Plaintiffs’ APA and constitutional claims, remand with instructions for discovery to commence and the Government to complete the Administrative Record, and affirm the District Court’s permanent, nationwide injunction on Plaintiffs’ estoppel claim.

Dated: August 31, 2018

Respectfully submitted,
/s/ John A. Freedman John A. Freedman Emily Newhouse Dillingham ARNOLD & PORTER KAYE
SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 john.freedman@arnoldporter.com emily.dillingham@arnoldporter.com

63

Elizabeth J. Bower Kevin B. Clark Priya R. Aiyar WILLKIE FARR & GALLAGHER LLP 1875 K Street, NW Washington, DC 20006 (202) 303-1000 ebower@willkie.com kclark@willkie.com paiyar@willkie.com
Dennis A. Corkery WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, NW Suite 400 Washington, DC 20036 (202) 319-1000 dennis_corkery@washlaw.org
Ajmel A. Quereshi HOWARD UNIVERSITY SCHOOL
OF LAW 2900 Van Ness Street, NW Washington, DC 20008 (202) 216-5574 aquereshi@naacpldf.org
Counsel for Plaintiffs-Appellants
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CERTIFICATE OF COMPLIANCE I certify, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B), that the foregoing Response and Reply Brief of Appellants contains 15,279 words, excluding those parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). The foregoing Response and Reply Brief of Appellants complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface, 14-point Times New Roman font, using Microsoft Word 2010.

Dated: August 31, 2018

/s/ John A. Freedman John A. Freedman

CERTIFICATE OF SERVICE I hereby certify that on August 31, 2018, I electronically filed the foregoing Response and Reply Brief of Appellants with the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: August 31, 2018

/s/ John A. Freedman John A. Freedman

 
 Nos. 18-1521 (L); 18-1522
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
CASA DE MARYLAND, Inc., et al.,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
On Appeal from the United States District Court for the District of Maryland, Case No. 8:17-cv-02942 (Hon. Roger W. Titus)
REPLY BRIEF FOR APPELLEES
JOSEPH H. HUNT Assistant Attorney General
ROBERT K. HUR United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY................................................................................1
ARGUMENT ............................................................................................................................3
The District Court’s Nationwide Injunction Should Be Vacated, or, at a Minimum, Limited to the Parties Before the Court ..........................................................3
A. The district court erred in relying on an equitable estoppel theory to enjoin the government from changing its information-sharing policy ....................................................................................................................3
B. The district court erred in granting nationwide relief ................................10
CONCLUSION ..................................................................................................................... 15
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases:

Page(s)

Alexander v. Sandoval, 532 U.S. 275 (2001) ...............................................................................................................3

City of Chicago v. Sessions,
888 F.3d 272 (7th Cir. 2018), reh’g en banc granted, 2018 WL 4268817 (7th Cir. June 4, 2018),
reh’g en banc vacated as moot, 2018 WL 4268814 (7th Cir. Aug. 10, 2018)............. 11, 12

Dawkins v. Witt, 318 F.3d 606 (4th Cir. 2003) ......................................................................................... 5, 14

eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) ...............................................................................................................9

Gill v. Whitford, 138 S. Ct. 1916 (2018).................................................................................................. 12, 14

Heckler v. Community Health Servs., 467 U.S. 51 (1984) ........................................................................................................ 3, 4, 5

Kenny v. Wilson, 885 F.3d 280 (4th Cir. 2018)..............................................................................................10

Kowalczyk v. INS, 245 F.3d 1143 (10th Cir. 2001)............................................................................................5

Lewis v. Casey, 518 U.S. 343 (1996) .............................................................................................................12

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...............................................................................................................9

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .............................................................................................................14

OPM v. Richmond, 496 U.S. 414 (1990) ...............................................................................................................3

ii

Richmond Tenants Org., Inc. v. Kemp, 956 F.2d 1300 (4th Cir. 1992)............................................................................................13
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014)...........................................................................................................9
Trump v. Hawaii, 138 S. Ct. 2392 .....................................................................................................................11
United States v. Cox, 964 F.2d 1431 (4th Cir. 1992)..............................................................................................4
United States v. Owens, 54 F.3d 271 (6th Cir. 1995) ..................................................................................................4
Virginia. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)..............................................................................................12
Other Authorities: Deferred Action for Childhood Arrivals Frequently Asked Questions,
https://go.usa.gov/xngCd......................................................................................1, 5, 7, 9 Guidance for the Referral of Cases and Issuance of Notices to Appear,
(June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/ Laws/Memoranda/2018/2018-06-28-PM-602-DACANotice-to-Appear.pdf ........................................................................................................... 7 Guidance on Rejected DACA Requests Q5 (Dec. 27, 2017), www.uscis.gov/daca2017/guidance-rejected-daca2017 ..................................................8 Revised Guidance for the Referral of Cases and Issuance of Notices to Appear, (Nov. 7, 2011), https://go.usa.gov/xncPK......................................................................7
iii

INTRODUCTION AND SUMMARY The government’s cross appeal in this case challenges the district court’s nationwide injunction barring the government from changing its policy regarding the sharing of information obtained in the course of processing requests for Deferred Action for Childhood Arrivals (DACA). At the time the DACA policy was implemented in 2012, the Department of Homeland Security (DHS) published a “frequently asked questions (FAQ)” webpage that included guidance stating that information would be “protected from disclosure to” U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection “for the purpose of immigration enforcement proceedings,” except that information could be disclosed where the criteria for issuance of a Notice to Appear are satisfied (for example, where national security, public safety, or significant criminal activity interests are implicated). U.S. Citizenship & Immigration Servs. (USCIS), Deferred Action for Childhood Arrivals Frequently Asked Questions, No. 19 (DHS DACA FAQ 19), https://go.usa.gov/xngCd (last visited Sept. 12, 2018); see also id. (explaining that information may be used for certain purposes other than removal). Notably, this policy was subject to the significant caveat that the policy “may be modified, superseded, or rescinded at any time.” DHS DACA FAQ 19. In our cross-appeal opening brief, the government demonstrated that the district court erroneously employed a free-floating “equitable estoppel” theory to enjoin preemptively any potential modification of this information-sharing policy.

Plaintiffs’ cross-appeal response brief fails to overcome the myriad flaws in the district court’s holding. First, there is no affirmative cause of action for equitable estoppel against the government, and plaintiffs identify no legal basis for inferring one. Second, even if such a claim did exist, plaintiffs concede it would require a showing of affirmative misconduct, but any potential change in the policy would not be misconduct given that DHS expressly reserved the right to modify or even rescind the policy at any time, a reservation of rights that must be given effect. Third, even if it would be affirmative misconduct to change the policy, the policy has not in fact changed, plaintiffs have failed to show otherwise, and DHS’s mere refusal to commit that it will not change the policy in the future does not, contrary to plaintiffs’ suggestion, even support their standing to sue now, let alone constitute affirmative misconduct. No other court has accepted plaintiffs’ freestanding equitable estoppel theory, and this Court should not either. The district court’s injunction should be vacated.
At a minimum, the scope of the nationwide relief issued by the district court reaches far too broadly. Plaintiffs’ cross-appeal response brief fails to refute the government’s showing that bedrock principles of standing and equitable discretion require, at the very least, limiting the scope of any injunction to plaintiffs and their DACA-recipient members.
2

ARGUMENT The District Court’s Nationwide Injunction Should Be Vacated, or, at a
Minimum, Limited to the Parties Before the Court. A. The district court erred in relying on an equitable estoppel theory
to enjoin the government from changing its information-sharing policy. 1. As explained in the government’s cross-appeal opening brief (at 68-69), and recognized by the Supreme Court, there is a “substantial” question as to whether equitable estoppel could ever apply against the federal government. Heckler v. Community Health Servs., 467 U.S. 51, 60 (1984); see also OPM v. Richmond, 496 U.S. 414, 423 (1990). And plaintiffs make no attempt to explain how a freestanding equitable estoppel claim can exist, given that only Congress can create a “private right[] of action to enforce federal law.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Plaintiffs simply note (as we acknowledged) that the Supreme Court has reserved the question whether estoppel might ever apply against the government. Resp. Br. 59-60. But plaintiffs cannot dispute that the Supreme Court has never applied principles of equitable estoppel against the government, let alone allowed such a theory to provide a freestanding cause of action. Plaintiffs’ reliance (Resp. Br. 60) on Community Health Services fails to advance their claim. In that case, the Supreme Court declined to apply principles of equitable estoppel. 467 U.S. at 60-61. And although the Court there left open the possibility that an equitable estoppel claim might be available if necessary to maintain “minimum
3

standard[s] of decency, honor, and reliability in [individuals’] dealing with the[] government,” id., that was in the context of equitable estoppel as a defense against government action. Contrary to plaintiffs’ suggestion, the Court nowhere suggested in Community Health Services that a plaintiff might bring a freestanding claim to enjoin a government policy on the ground that the policy decision was not “decent” enough, and Alexander v. Sandoval squarely forecloses implying such a cause of action. The government’s policies may be subject to statutory or constitutional constraints; but the district court did not find a constitutional or statutory problem with respect to the information-sharing policy. JA.1514-15. The district court instead imposed a freefloating additional constraint on the government’s policy decisions. This was error: “the government should not be unduly hindered from changing its position if that shift is the result of a change in public policy.” United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995).
Plaintiffs’ reliance on United States v. Cox, 964 F.2d 1431, 1434-35 (4th Cir. 1992), is also misplaced. See Resp. Br. 58. That case involved the question of which part of the federal government (the federal defender’s office or the Department of Justice) would pay for a psychiatric examination, and this Court simply followed the guidelines promulgated by the Administrative Office of the United States Courts. Cox, 964 F.2d at 1433.
2. Even assuming there were a freestanding cause of action for equitable estoppel against the government, “it is well settled that the Government may not be
4

estopped on the same terms as any other litigant.” Community Health Servs., 467 U.S. at 60. As plaintiffs acknowledge, Resp. Br. 55-56, an estoppel claim against the government requires a showing of “affirmative misconduct.” Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) (collecting cases). And, as the Tenth Circuit has explained, assuming equitable estoppel may lie against the government, there is “an extremely high bar to claims of equitable estoppel against the government, particularly in the immigration context.” Kowalczyk v. INS, 245 F.3d 1143, 1150 (10th Cir. 2001).
Plaintiffs’ contention that the district court “correctly found” that the government’s behavior “constituted ‘affirmative misconduct’” is without basis in the record. Resp. Br. 56. Any potential change in the information policy could not constitute affirmative misconduct. From the outset of the DACA policy, the government expressly stated that the information-sharing policy “may be modified, superseded, or rescinded at any time.” DHS DACA FAQ 19. It cannot be affirmative misconduct to change a policy that was expressly subject to change from its inception (as explained below, the policy has not, in fact, been changed, infra p. 7-9). To hold otherwise would render the reservation of rights without effect and could deter the government from publicly announcing internal policies in the first place.1
1 Without elaboration or citation, plaintiffs appear to suggest (Resp. Br. 58) that the government failed to argue below that the information-sharing policy was always subject to modification, but that suggestion is belied by the record. See JA.1280.
5

Plaintiffs are also wrong to assert that the government’s 2012 statement that the information-sharing policy could be modified at any time applied only to future DACA requestors, not to those who requested DACA under the original policy. Resp. Br. 59. The policy’s reservation of rights that it could be modified or rescinded “at any time” and “without notice” unambiguously applies to those who had already requested and received deferred action under DACA, as there would be no meaningful reason to include those caveats for those who had not yet requested DACA in the first place. Plaintiffs assert that it would “make[] no sense for the Government” to have encouraged individuals to request deferred action under DACA while simultaneously telling them the policy regarding the sharing of their information could be rescinded at any time. Resp. Br. 58-59. But it makes perfect sense both that the Government would not wish to bind itself to a particular policy even as to existing DACA recipients and that individuals without lawful status were willing to request deferred action under DACA even on those terms.
Indeed, the district court implicitly acknowledged that the policy’s reservation of rights applied to plaintiffs. In its order, the court ordered the government to comply with its information-sharing policy except that “the language in the Policy specifying that it ‘may be modified, superseded, or rescinded at any time without notice’ is hereby ENJOINED pending further order of this Court or relief on appeal.” JA.1532-33. If that language did not apply to plaintiffs, there would be no point in enjoining its application.
6

3. Even assuming plaintiffs are correct that changing the information-sharing policy would amount to affirmative misconduct sufficient to subject the government to an equitable estoppel claim, the information-sharing policy has not in fact changed, and the government’s mere refusal to commit to never changing the policy cannot constitute affirmative misconduct. Nor have plaintiffs demonstrated standing to sue under this theory.
The government’s information-sharing policy has not changed. As explained, at the time of DACA’s implementation, recipients were informed that information would be “protected from disclosure . . . for the purpose of immigration enforcement proceedings,” subject to exceptions where the criteria for issuance of a Notice to Appear are satisfied (for example, where national security, public safety, or significant criminal activity interests are implicated). DHS DACA FAQ 19; USCIS, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) (Nov. 7, 2011), https://go.usa.gov/xncPK (last visited Sept. 12, 2018); USCIS, Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) (June 28, 2018), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/ 2018-06-28-PM-602-0161-DACA-Notice-to-Appear.pdf (last visited Sept. 12, 2018). Nothing in the Acting Secretary’s memorandum rescinding the DACA policy changes that approach—in fact, the memorandum makes no reference to information sharing at all, a point the district court recognized, JA.1505 n.24. And DHS had made clear in additional guidance issued after the rescission that “[t]his information-sharing policy
7

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 DACA policy.” USCIS, Guidance on Rejected DACA Requests Q5 (Dec. 27, 2017) (emphasis added), www.uscis.gov/daca2017/ guidance-rejected-daca2017 (last visited Sept. 12, 2018). In fact, even the district court appeared to recognize that the policy had not changed; rather it faulted the government for being “unable to provide any assurance that the Government would not make changes” in the future. JA.1516; see also JA.1528 (enjoining the provision in the information-sharing policy permitting modification of that policy).
In response, plaintiffs point to several record items that they contend demonstrate that the information-sharing policy has changed. Although plaintiffs provide numerous record citations, Resp. Br. 54, the referenced documents fail to support plaintiffs’ contentions. For example, JA.475 references increased deportations and makes a cross-citation to the fact that the rescission memorandum did not itself reiterate the information-sharing policy. But neither of these facts indicate that any change in policy has occurred, especially in light of DHS’s later public affirmation that the policy has not changed. USCIS, Guidance on Rejected DACA Requests Q5 (Dec. 27, 2017), www.uscis.gov/daca2017/guidance-rejected-daca2017. Plaintiffs also point out that one description of the information-sharing policy was slightly reworded in DHS’s 2017 FAQs concerning the rescission of the DACA policy. JA.75-76. But the addition of the word “generally” to the FAQ does not have the meaning plaintiffs ascribe—it was always the case that information received from DACA requestors could be used
8

by DHS in certain circumstances connected with enforcement proceedings, and nothing in the revised FAQ suggests that “special” or “non-proactive” releases will henceforth be allowed when they would not previously have been permitted. See DHS DACA FAQ 19.
Instead of finding existing affirmative misconduct by the government, allegedly in the form of a change in policy, the district court relied on its conjecture that “[l]ogic would dictate that it is possible that the government . . . could now use . . . information to track and remove [DACA recipients]. This potentially would be ‘affirmative misconduct’ by the government.” JA.1516 (emphases added). Plaintiffs have pointed to no case, and the government is aware of none, in which speculation about “potential” affirmative misconduct in the future would suffice to establish an equitable estoppel claim now. And plaintiffs have not presented any basis upon which to conclude that the government has any imminent plans to change its policy.
More fundamentally, as pointed out in the government’s cross-appeal opening brief (at 67), given the lack of a district court finding concerning any current or imminent change of policy, plaintiffs’ equitable estoppel claim fails to satisfy the requirements of both standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992), and irreparable harm, eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Indeed, the mere fact that the government declined to commit not to change the policy does not even demonstrate a “substantial risk” that it will change the policy. Resp. Br. 57 (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). Plaintiffs confuse
9

matters in relying on this Court’s precedent concerning a “credible threat of prosecution” under immigration laws generally. See id. (quoting Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018)). In determining whether relief with respect to the information-sharing policy is appropriate, the question is whether plaintiffs have put forth any plausible contention that their information is likely to be shared in a way that conflicts with the information-sharing policy. Whether plaintiffs face a “credible threat of being subject to an immigration enforcement action,” as plaintiffs contend (Resp. Br. 57), is not relevant to the question whether plaintiffs have an imminent injury stemming from the government’s information-sharing policy.
And plaintiffs cannot evade their failure to show an actual change in policy by suggesting that the affirmative misconduct here is the mere refusal to commit not to change the policy. Plaintiffs assert (Resp. Br. 56) that in obtaining information from DACA requestors (the information necessary to determine whether the requestors met DACA’s guidelines) and “refus[ing] to commit to not us[e] that information for enforcement purposes,” the government engaged in affirmative misconduct. But, the government’s unwillingness to commit to never changing that policy is not misconduct: it is simply a recognition that government policies may change—a fact about which potential DACA recipients were expressly made aware. See supra p. 5-6. B. The district court erred in granting nationwide relief.
For the reasons explained above, the district court’s injunction is erroneous and should be vacated. But at a minimum, as explained in the government’s cross-appeal
10

opening brief (at 69-72), the court’s injunction should be limited to the parties before it. In granting nationwide relief broader than necessary to redress any cognizable injuries of the plaintiffs, the district court violated the requirements of Article III and principles of equity.
1. As an initial matter, plaintiffs completely ignore the government’s showing (Br. 72) that granting a nationwide injunction in these circumstances creates an inequitable result that the law should not and does not permit. Plaintiffs in other suits challenging the rescission of the DACA policy have attempted to obtain relief barring the government from changing its information-sharing policy on an equitable estoppel theory. No other plaintiffs have succeeded. Yet all of those unsuccessful plaintiffs will benefit from the district court’s injunction here. At the same time, plaintiffs here are not bound by the dismissal of the equitable estoppel claims in the other lawsuits challenging the rescission of the DACA policy. Under plaintiffs’ theory, litigants may bring suit in multiple district courts, secure in the knowledge that all will benefit if even one suit succeeds, and none will be bound by suits that fail.
This result is untenable, as voices throughout the federal judiciary have recognized. As Justice Thomas recently explained, nationwide injunctions “take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.” Trump v. Hawaii, 138 S. Ct. 2392, 2425 (Thomas, J., concurring); see also City of Chicago v. Sessions, 888 F.3d 272, 298
11

(7th Cir. 2018) (Manion, J., dissenting in part) (criticizing the “one-way-ratchet” created by nationwide injunctions), reh’g en banc granted, 2018 WL 4268817 (7th Cir. June 4, 2018) (vacating panel judgment “insofar as it sustained the district court’s decision to extend preliminary relief nationwide”), reh’g en banc vacated as moot, 2018 WL 4268814 (7th Cir. Aug. 10, 2018).
2. Ignoring the fundamental inequity of their approach, plaintiffs argue that the district court correctly exercised its discretion to grant nationwide relief “in light of the facts of this case.” Resp. Br. 61. Plaintiffs erroneously contend that because they reside, and provide services to residents, in various parts of the United States, a nationwide injunction is required. Id.
As the government explained in its cross-appeal opening brief (at 70-71), a “plaintiff’s remedy must be ‘limited to the inadequacy that produced [his] injury in fact.’ ” Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (alteration in original) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)); see also Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (explaining that that an injunction covering the plaintiff alone would “adequately protec[t] it,” and that preventing enforcement of the regulation “against other parties in other circuits does not provide any additional relief ” to the plaintiff). Although plaintiffs assert that “a broader remedy is required” here “to ensure adequate protection,” Br. 62, the mere fact that they purport to
12

represent DACA recipients throughout the United States does not explain how their
injuries are remedied by further extending relief to other, unrelated DACA recipients.2
In attempting to paint nationwide relief as the default, plaintiffs rely to a great
extent on the Seventh Circuit’s decision in City of Chicago, overlooking the fact that, as
noted above, see supra p. 12, the panel’s decision in that case was subsequently vacated
when the court granted rehearing en banc on whether the nationwide scope of the
injunction in that case was proper. Although the Seventh Circuit subsequently vacated
its order granting rehearing en banc on mootness grounds, that order does not
resurrect the panel decision or eliminate the significant problems with nationwide
injunctions that caused the Seventh Circuit to decide to hear the case en banc in the
first place.
Plaintiffs’ reliance on Richmond Tenants Organization, Inc. v. Kemp, 956 F.2d 1300,
1308 (4th Cir. 1992), fares no better. See Resp. Br. 61. To the extent that decision
extended relief to numerous individuals not before the court and entirely unrelated to
the parties before it, it is inconsistent with subsequent Supreme Court precedent
2 In a footnote, plaintiffs suggest that “DHS has not demonstrated that it has the capacity” to ascertain whether a given DACA recipient would be covered by an injunction limited to those purportedly represented by plaintiffs. Resp. Br. 62 n.21. But this argument improperly shifts the burden, as it is plaintiffs who must demonstrate why relief going beyond their own injuries is necessary. Moreover, although the record is thus undeveloped on the issue, there does not appear to be any logical or operational reason that DHS would be unable to comply with a plaintiffspecific injunction, and even if there were, DHS could always choose to extend the same treatment to non-plaintiffs to whatever extent was necessary to ensure its compliance with a properly tailored, plaintiff-specific injunction.
13

making clear that a remedy must be limited to the injury of the plaintiffs. See Gill, 138 S. Ct. at 1930. Indeed, although plaintiffs also invoke Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), that case reaffirmed that an injunction should be no broader than necessary to provide complete relief to the plaintiffs, and it nowhere suggested that this entailed a universal injunction merely because plaintiffs are geographically dispersed. Id. at 765.
Finally, plaintiffs argue that a nationwide injunction is appropriate here to maintain uniform enforcement of the immigration laws. Resp. Br. 62. But the requirements of Article III and equity that limit overbroad injunctions apply equally in the immigration context, and nothing in federal immigration law even arguably requires that the same exact information-sharing policy that applies to the DACA recipients purportedly represented by plaintiffs must also be applied to all other DACA recipients in the country.
14

CONCLUSION The district court’s permanent injunction should be vacated, or, at a minimum, restricted to the parties before this Court.
Respectfully submitted, JOSEPH H. HUNT
Assistant Attorney General ROBERT K. HUR
United States Attorney HASHIM M. MOOPPAN
Deputy Assistant Attorney General s/ Mark B. Stern MARK B. STERN ABBY C. WRIGHT
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000
September 2018
15

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 3,436 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Mark B. Stern Mark B. Stern

CERTIFICATE OF SERVICE I hereby certify that on September 14, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Mark B. Stern Mark B. Stern

 
 Nos. 18-1521 (L); 18-1522
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
CASA DE MARYLAND, Inc., et al.,
Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
On Appeal from the United States District Court for the District of Maryland, Case No. 8:17-cv-02942 (Hon. Roger W. Titus)
OPENING AND RESPONSE BRIEF FOR APPELLEES
CHAD A. READLER Acting Assistant Attorney General
ROBERT K. HUR United States Attorney
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000

TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................................1
STATEMENT OF JURISDICTION ...................................................................................4
STATEMENT OF THE ISSUES..........................................................................................4
PERTINENT STATUTES AND REGULATIONS ........................................................5
STATEMENT OF THE CASE.............................................................................................5
A. Overview of “deferred action” and the Acting Secretary’s decision to wind down the discretionary DACA non-enforcement policy..............5
B. Prior proceedings .............................................................................................10
SUMMARY OF ARGUMENT........................................................................................... 12
STANDARD OF REVIEW ................................................................................................ 16
ARGUMENT ......................................................................................................................... 16
I. The Acting Secretary’s Rescission of the Discretionary DACA Enforcement Policy Is Not Subject to Judicial Review........................................ 16
A. The decision is not subject to APA review because it is committed to agency discretion by law.............................................................................16
B. 8 U.S.C. § 1252 bars pre-enforcement review of plaintiffs’ claims. .........28
II. The District Court Correctly Held That the Rescission of DACA Was Lawful. .......................................................................................................................... 31
A. The district court correctly held that the DACA rescission was not arbitrary and capricious............................................................................31
1. The district court correctly concluded that it was not arbitrary and capricious to rescind DACA because it was subject to serious legal challenge. ......................................................32

2. Plaintiffs’ additional arguments that the rescission memorandum was arbitrary and capricious are meritless. .............40
3. The administrative record provided an adequate basis on which to sustain the Acting Secretary’s decision.............................43
B. The district court correctly held that the rescission of DACA did not require notice-and-comment rulemaking..............................................49
C. The district court correctly held that the rescission of DACA did not violate the Constitution............................................................................52 1. The DACA rescission did not violate equal protection.................52 2. The DACA rescission did not violate due process.........................62
III. The District Court Erred in Enjoining the Government from Changing the Information-Sharing Policy. ............................................................................... 65 A. The district court erred in holding that the government was subject to equitable estoppel. .........................................................................66 B. The district court erred in granting injunctive relief that was nationwide in scope. ........................................................................................69
CONCLUSION ..................................................................................................................... 73 STATEMENT REGARDING ORAL ARGUMENT CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................................................35

Air Transp. Ass’n of Am., Inc. v. National Mediation Bd., 663 F.3d 476 (D.C. Cir. 2011) ...........................................................................................48

Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987)..............................................................................................25

Alexander v. Sandoval, 532 U.S. 275 (2001) .............................................................................................................68

Arizona v. United States, 567 U.S. 387 (2012) ..................................................................................................6, 13, 18

Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993)............................................................................................46

Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) ...................................................................................................... 63, 64

Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)..............................................................................................28

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) ...................................................................................................... 31, 34

Califano v. Yamasaki, 442 U.S. 682 (1979) .............................................................................................................71

Camp v. Pitts, 411 U.S. 138 (1973) .............................................................................................................44

Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639 (4th Cir. 2006)..............................................................................................68

Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995)..............................................................................................51

iii

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................................................50
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) ...................................................................................................... 14, 48
City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018)..............................................................................................72
Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305 (S.D.N.Y. 2012)...............................................................................47
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) .............................................................................................................63
Consumer Energy Council of Am. v. FERC, 673 F.2d 425 (D.C. Cir. 1982) ...........................................................................................52
Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ...................................................................................... 19, 20
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................................................................................70
Dawkins v. Witt, 318 F.3d 606 (4th Cir. 2003) ....................................................................................... 67, 68
Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982) ...............................................................................................47
Downey v. U.S. Dep’t of Army, 685 F. App’x 184 (4th Cir. 2017) ......................................................................................34
eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) .............................................................................................................67
Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411 (10th Cir. 1984)..........................................................................................69
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).........................................................................................................41
iv

FCC v. Fox, 556 U.S. 502 (2009) .............................................................................................................43
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ......................................................................................... 14, 43, 44, 48
Gerhart v. Lake County, 637 F.3d 1013 (9th Cir. 2011)..................................................................................... 62, 63
Gill v. Whitford, 138 S. Ct. 1916 (2018).........................................................................................................70
Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010)..........................................................................................29
Hadayat v. Gonzalez, 458 F.3d 659 (7th Cir 2006)...............................................................................................57
Heckler v. Chaney, 470 U.S. 821 (1985) ............................................................. 2, 6, 13, 17, 22, 23, 24, 26, 27
Heckler v. Community Health Servs., 467 U.S. 51 (1984) ...............................................................................................................69
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004)..............................................................................................16
ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) ......................................................................................... 13, 17, 19, 24
Inova Alexandria Hosp. v. Shalala, 244 F.3d 342 (4th Cir. 2001)..............................................................................................34
International Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir.)........................................................................................................55
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .................................................................................................... 30, 31
Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205 (4th Cir. 1989)..............................................................................................50
v

Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006).................................................................................................57
Kapps v. Wing, 404 F.3d 105 (2d Cir. 2005) ...............................................................................................64
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996)..............................................................................................25
Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................................................................................55
Lewis v. Casey, 518 U.S. 343 (1996) .............................................................................................................70
Lincoln v. Vigil, 508 U.S. 182 (1993) ................................................................................................16, 26, 49
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922 (4th Cir. 1995) ................................................................................................16
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................................67
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir.1987) ...................................................................................... 15, 51
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994) .............................................................................................................71
McKenzie v. City of Chicago., 118 F.3d 552.........................................................................................................................71
Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..................................................................................................31, 39, 40
NAACP v. Trump, 298 F. Supp. 3d. 239 ...........................................................................................................35
National Ass’n of Home Builders v. EPA, 682 F.3d 1032 (D.C. Cir. 2012) .........................................................................................19
vi

National Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014) ...........................................................................................46
OPM v. Richmond, 496 U.S. 414 (1990) .............................................................................................................69
Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015)..............................................................................................37
Pacific Gas & Elec. Co. v. Federal Power Comm’n, 506 F.2d 33 (D.C. Cir. 1974) .............................................................................................49
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).........................................................................................................50
Rajah v. Mukasey, 544 F.3d 427 (2d. Cir. 2008) ....................................................................................... 55, 58
Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294 (4th Cir. 2012)..............................................................................................60
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ..................................................................... 2, 6, 7, 13, 15, 18, 28, 29, 30, 52, 53, 54, 56, 57, 61
Robbins v. Regan, 780 F.2d 37 (D.C. Cir. 1985) .............................................................................................26
San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C. Cir. 1986) .............................................................................................47
Scott v. Harris, 550 U.S. 372 (2007) .............................................................................................................16
Speed Mining, Inc. v. Federal Mine Safety & Health Review Comm’n, 528 F.3d 310 (4th Cir. 2008)..............................................................................................25
Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810 (4th Cir. 1995) ................................................................................................56
Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) .............................................................................................49
vii

Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) ..................................................................................8 809 F.3d 134 (5th Cir. 2015) ................................................................8, 22, 33, 34, 35, 51
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .............................................................................................................29
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).........................................................................................................70
Trump v. Hawaii, 138 S. Ct. 2392 (2018).................................................................................................. 55, 72
UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986) ...........................................................................................20
United States v. Armstrong, 517 U.S. 456 (1996) ......................................................................................... 17, 53, 57, 61
United States v. Mendoza, 464 U.S. 154 (1984) .............................................................................................................72
United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977) ...............................................................................................45
United States v. Owens, 54 F.3d 271 (6th Cir. 1995) ................................................................................................69
United States v. Texas, 136 S. Ct. 2271 (2016)...........................................................................................................8
Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016)........................................................................................28
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978) .............................................................................................................45
Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) ....................................................................................... 71, 72
Webster v. Doe, 486 U.S. 592 (1988) ...................................................................................................... 22, 60
viii

Western Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116 (9th Cir. 2009)............................................................................................60
Wilkie v. Robbins, 551 U.S. 537 (2007) .............................................................................................................60
Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980)............................................................................................63
Statutes:
Administrative Procedure Act: 5 U.S.C. § 553(b)-(c)............................................................................................................49 5 U.S.C. § 553(b)(3)(A) .................................................................................................. 3, 49 5 U.S.C. § 556(e) ..................................................................................................................44 5 U.S.C. § 701(a)(2) .......................................................................... 2, 4, 13, 16, 18, 22, 24 5 U.S.C. § 702.......................................................................................................................60 5 U.S.C. § 706(2)(A) ............................................................................................................31 5 U.S.C. § 706(2)(B) ............................................................................................................60
Immigration and Nationality Act: 8 U.S.C. § 1103(a) ................................................................................................................58 8 U.S.C. § 1103(a)(1) .............................................................................................................5 8 U.S.C. § 1182(a) ..................................................................................................................6 8 U.S.C. § 1182(h)................................................................................................................29 8 U.S.C. § 1182(i).................................................................................................................29 8 U.S.C. § 1229b ..................................................................................................................29 8 U.S.C. § 1229c...................................................................................................................29 8 U.S.C. § 1252.....................................................................................................................28 8 U.S.C. § 1252(a)(1) ...........................................................................................................28 8 U.S.C. § 1252(a)(2)(B)......................................................................................................29 8 U.S.C. § 1252(a)(2)(B)(i) ..................................................................................................29 8 U.S.C. § 1252(a)(2)(D) .....................................................................................................29 8 U.S.C. § 1252(b)............................................................................................................. 2, 5 8 U.S.C. § 1252(b)(9)....................................................................................... 13, 29, 30, 31 8 U.S.C. § 1252(g)................................................................ 2, 5, 10, 13, 22, 28, 29, 30, 31 8 U.S.C. § 1255.....................................................................................................................29
6 U.S.C. § 202(5) .................................................................................................... 6, 18, 38, 40
28 U.S.C. § 1291 ........................................................................................................................4
ix

28 U.S.C. § 1331 ........................................................................................................................4
28 U.S.C. § 2112 ......................................................................................................................45
Regulation:
8 C.F.R. § 274a.12(c)(14) ..................................................................................................... 6, 7
Rules:
Fed. R. App. P. 16 ...................................................................................................................45
Fed. R. App. P. 16 note ..........................................................................................................45
Fed. R. Civ. P. 56(c) ................................................................................................................16
Other Authorities:
Memorandum from Secretary Kirstjen M. Nielsen, https://www.dhs.gov/sites/default/files/publications/ 18_0622_S1_Memorandum_DACA.pdf............................................................10, 38, 42
Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY ...............................................................................................40
Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017).............................................................................................71
U.S. Citizenship and Immigration Services Publications:
Deferred Action for Childhood Arrivals Frequently Asked Questions, https://go.usa.gov/xngCd ....................................................................................... 7, 66
Guidance on Rejected DACA Requests, https://www.uscis.gov/daca2017/guidance-rejected-daca2017........................ 9, 66
Revised Guidance for the Referral of Cases and Issuance of Notices to Appear, https://go.usa.gov/xncPK.........................................................................66
U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947) ..............................................................................................................49
x

INTRODUCTION In 2012, the Secretary of Homeland Security adopted the non-enforcement policy commonly known as DACA (Deferred Action for Childhood Arrivals). Under that policy, individuals illegally in this country who met certain criteria could receive deferred action, a temporary forbearance from removal that may also entail certain collateral benefits. From its inception, the policy was a stop-gap measure in anticipation of potential legislative action, and the government made clear that the policy did not grant any substantive rights, lawful immigration status, or pathway to citizenship. The government later expanded the criteria for DACA and created a new policy known as DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). Texas and twenty-five other states brought suit challenging the latter policies. The suit led to a nationwide injunction that was affirmed by the Fifth Circuit and by an equally divided Supreme Court. Texas then threatened to challenge the original DACA policy. In September 2017, in light of the prior litigation and a legal assessment by the Attorney General, the then-Acting Secretary of Homeland Security rescinded the DACA policy through an orderly wind-down. Plaintiffs in these and other suits challenged that enforcement decision on a variety of grounds under the Administrative Procedure Act (APA) and the Constitution. As an initial matter, the Acting Secretary’s decision is not subject to judicial review in this action. The rescission of DACA was an exercise of enforcement

discretion that is traditionally committed to agency discretion under the APA. 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830-32 (1985). And, assuming arguendo that judicial review of this deferred-action rescission were available, under the terms of the Immigration and Nationality Act (INA), review could take place only on review of a final removal decision. 8 U.S.C. § 1252(b), (g); Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 485 (1999) (AADC).
Although the district court erroneously concluded that it could review the Acting Secretary’s decision, it properly recognized that any such review would be highly deferential. The court acknowledged that while there is significant room for disagreement over immigration enforcement generally and DACA in particular, such policy decisions belong in the hands of the political branches, and it declined to disturb the Acting Secretary’s decision. The district court was correct.
First, the rescission of the DACA policy was not arbitrary and capricious under the APA. For this purely discretionary enforcement decision, the INA prescribes no legal or factual determinations that must be made or even considered. There is thus no warrant for setting aside the Acting Secretary’s rational decision to discontinue the DACA policy in light of the prior nationwide injunction against other closely related policies, as well as the Attorney General’s opinion regarding the legal viability of DACA itself.
Second, the district court’s dismissal of plaintiffs’ notice-and-comment challenge to the DACA rescission comports with both precedent and common sense. The APA
2

exempts “general statements of policy” from notice and comment, 5 U.S.C. § 553(b)(3)(A), and this type of reordering of deferred-action enforcement priorities readily qualifies. Moreover, if the rescission of DACA required notice-and-comment rulemaking, the promulgation of that policy surely did as well.
Third, the district court correctly rejected plaintiffs’ claim that the Acting Secretary’s decision violated the Constitution. There was no denial of equal protection because the rescission of DACA applies equally to all persons without regard to their ethnicity. This immigration enforcement policy is not subject to challenge based on the common circumstance that it has a greater impact on members of certain ethnicities than others, especially given the lack of any evidence that it was a significant factor in the Acting Secretary’s rescission of a policy of such questionable legality that the aliens lacking lawful status who benefitted from the policy happened to be predominantly Latino. Nor was there any denial of due process. Plaintiffs have no protected liberty or property interest—DACA expressly conferred no substantive rights and was revocable at any time—and plaintiffs regardless have failed to demonstrate any government conduct rising to the level of a substantive-due-process violation.
Fourth, the district court correctly ruled in the government’s favor on the basis of the administrative record before it. Plaintiffs come nowhere near demonstrating bad faith—or any other ground—for supplementing the administrative record or obtaining discovery in this record-review case.
3

The district court correctly rejected all of plaintiffs’ challenges to the rescission of DACA, but erred in enjoining the government from modifying its policy regarding the sharing of DACA requestors’ information. The court issued this injunction even though (as it acknowledged) plaintiffs had no evidence that the policy had changed, and the original policy expressly stated that it could “be modified, superseded, or rescinded at any time.” JA.1532. In any event, there is no basis for an equitable estoppel claim against the government. The court’s nationwide permanent injunction should be vacated.
STATEMENT OF JURISDICTION Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. § 1331. JA.47. On March 5, 2018, the district court granted in part and denied in part the government’s motion to dismiss or in the alternative for summary judgment, and it granted plaintiffs permanent injunctive relief. JA.1519-20. On March 15, the district court modified the scope of its injunction. JA.1531. Plaintiffs filed a timely notice of appeal on April 27, 2018, and the government filed a timely notice of appeal on May 4, 2018. JA.1534-36; JA.1537-38. This court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES 1. Whether plaintiffs’ APA claims are not subject to review because the Acting Secretary’s decision to wind down the DACA non-enforcement policy was “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2).
4

2. Whether the district court lacked jurisdiction to consider plaintiffs’ claims in light of the jurisdiction-channeling provisions in 8 U.S.C. § 1252(b) and (g).
3. Whether, assuming judicial review is available, the district court correctly held that the Acting Secretary’s decision was not arbitrary and capricious on the basis of the administrative record.
4. Whether the district court correctly concluded that the rescission of a nonenforcement policy is not required to go through notice-and-comment rulemaking.
5. Whether the district court correctly rejected plaintiffs’ contentions that the Acting Secretary’s decision violated equal-protection and due-process requirements.
6. Whether the district court erred in entering a nationwide injunction barring the government from altering its information-sharing policy.
PERTINENT STATUTES AND REGULATIONS Pertinent statutes and regulations are reproduced in the addendum to this brief.
STATEMENT OF THE CASE A. Overview of “deferred action” and the Acting Secretary’s
decision to wind down the discretionary DACA nonenforcement policy 1. The INA charges the Secretary of Homeland Security “with the administration and enforcement” of the INA and “all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Individuals are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been
5

convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. §§ 1182(a), 1227(a).
As a practical matter, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396. The Secretary of Homeland Security is vested with authority to “[e]stablish[ ] national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). In light of such policies and priorities, officials of the Department of Homeland Security (DHS) must first “decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. “At each stage” of the process, moreover, “the Executive has discretion to abandon the endeavor.” AADC, 525 U.S. at 483. Like other exercises of enforcement discretion, this may involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831.
2. This case concerns an application of the practice of “deferred action” by which the Secretary of Homeland Security may exercise discretion to forbear from seeking the removal of an alien for a designated period. See AADC, 525 U.S. at 48384; 8 C.F.R. § 274a.12(c)(14) (describing “deferred action” as “an act of administrative convenience to the government which gives some cases lower priority”). In addition to the temporary relief from removal directly flowing from a grant of deferred action, certain collateral consequences may flow under pre-existing laws and regulations, including the ability to obtain work authorization in certain circumstances. See, e.g.,
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8 C.F.R. § 274a.12(c)(14). However, DHS retains the discretion to revoke deferred action unilaterally, and an individual with deferred action remains removable at any time. See AADC, 525 U.S. at 484-85.
On June 15, 2012, DHS announced the policy known as DACA, which makes deferred action available to “certain young people who were brought to this country as children.” JA.129. Following successful completion of a background check and review, an alien who met certain age, residence, and other guidelines could receive deferred action for a period of two years, subject to renewal. JA.130-31. The DACA Memorandum stated that it “confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.” JA.131. In implementing DACA, DHS stated that information provided in the DACA request process would be protected from disclosure for the purpose of immigration enforcement proceedings unless certain criteria related to national security or public safety were satisfied, or the individual met the requirements for a Notice to Appear. USCIS, Deferred Action for Childhood Arrivals Frequently Asked Questions, No. 19 (last updated Oct. 6, 2017; last visited July 31, 2018), https://go.usa.gov/xngCd (DHS DACA FAQ). The instructions also stated, however, that the information-sharing policy “may be modified, superseded or rescinded at any time without notice,” and that it “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.” DHS DACA FAQ 19.
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On November 20, 2014, DHS expanded DACA by broadening certain guidelines and extending the period of deferred action to three years. JA.167. It also created a new, similar policy known as DAPA for parents of American citizens and lawful permanent residents. JA.168-69.
The District Court for the Southern District of Texas entered a nationwide preliminary injunction against DAPA and the expansion of DACA. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). The Fifth Circuit affirmed, concluding that the policy violated both the INA and the APA’s notice-and-comment requirements. Texas v. United States, 809 F.3d 134 (5th Cir. 2015). The Supreme Court affirmed the injunction by an equally divided Court. United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). In response, then-Secretary John Kelly rescinded DAPA and the DACA expansion in June 2017. JA.363. Shortly thereafter, Texas threatened to challenge the original DACA policy. JA.366-68.
3. On September 5, 2017, DHS issued a memorandum explaining its decision to wind down the remaining DACA policy in an orderly fashion. JA.380. As thenActing Secretary Elaine Duke explained in the memorandum, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and [a] September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” JA.383. Therefore, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the Acting Secretary determined to begin an orderly wind-down of the policy. Id. The
8

memorandum provides that DHS will “adjudicate—on an individual, case-by-case basis—properly filed pending DACA renewal requests . . . from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” Id. The memorandum further provides that DHS “[w]ill not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum” for the remaining periods of deferred action. Id.
Upon the rescission of DACA, DHS reiterated that “[g]enerally, information provided in DACA requests will not be proactively provided to other law enforcement entities . . . for the purpose of immigration enforcement proceedings” unless national security or public safety exceptions apply or the individual “meets the criteria for issuance of Notice to Appear.” JA.1143. In December 2017, DHS further clarified that the “information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017” DACA rescission. USCIS, Guidance on Rejected DACA Requests, www.uscis.gov/daca2017/guidance-rejecteddaca2017 (Q5).
4. On June 22, 2018, in response to an order from the United States District Court for the District of Columbia in NAACP v. Trump, No. 17-1907 (D.D.C.), the Secretary of Homeland Security issued a memorandum further explaining the decision to rescind DACA. The new memorandum agrees with the reasoning of the Duke
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memorandum and declines to disturb it. Memorandum from Secretary Kirstjen M. Nielsen 2-3 (Nielsen Memo), https://www.dhs.gov/sites/default/files/publications/ 18_0622_S1_Memorandum_DACA.pdf. In particular, the Secretary confirms that, although she agrees that DACA is unlawful, the rescission is not predicated solely on that legal determination. The Nielsen Memo explains that, whether or not DACA is actually unlawful, “there are, at a minimum, serious doubts about [the policy’s] legality” that warrant its discontinuation. Id. at 2. The Nielsen Memo also offers other enforcement policy reasons wholly independent of DACA’s legality that support the policy’s rescission, and explains why the asserted reliance interests of DACA recipients do not lead to a different result. Id. at 2-3.
B. Prior proceedings 1. Plaintiffs in this case are individual DACA recipients and nonprofit immigrant services and policy organizations. Their complaint seeks to invalidate the rescission of DACA on APA, constitutional, and equitable grounds. See JA.85-96. Plaintiffs also challenge DHS’s authority to change its policy regarding how it may use information provided by DACA requesters. See JA.87-89, JA.94-95. 2. In March 2018, the district court issued an order granting in part and denying in part the government’s motion to dismiss or in the alternative for summary judgment, and granting summary judgment in part for the plaintiffs and in part for the government. JA.1533. The district court first held that plaintiffs’ claims were justiciable, rejecting the argument that 8 U.S.C. § 1252(g) precluded judicial review
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and concluding that the APA’s exception for decisions “committed to agency discretion” by law does not preclude procedural review of agency action, which it characterized plaintiffs’ APA claims to be. JA.1501.
On the merits of the APA claims, the district court held that DACA and the DACA rescission are “akin to non-binding policy statements” and therefore are not subject to notice-and-comment requirements. JA.1505. The district court also concluded that the DACA rescission was not arbitrary and capricious because “the belief that it was unlawful and subject to serious legal challenge [was] completely rational,” and the rescission “was a carefully crafted decision supported by the Administrative Record.” JA.1505-06.
The district court likewise rejected plaintiffs’ constitutional claims. With respect to the equal protection claim, the court concluded that the administrative record “does not support the notion that [the government] was targeting a subset of the immigrant population” or that the decision was motivated by racial animus. JA.1508. The district court also held that plaintiffs were not deprived of a protected procedural due process interest because the DACA decision did not create any such interest. JA.1512-13. And the court further found no substantive due process violation because the DACA rescission did “not shock the conscience of th[e] Court.” JA.1514. The district court also granted summary judgment for the government with respect to plaintiffs’ claim that the government was estopped from rescinding DACA,
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concluding that estoppel did not apply because DACA was expressly subject to revocation at any time and did not confer any rights. JA.1515.
The district court granted relief to plaintiffs, however, on their estoppel claim regarding the government’s information-sharing policy. The district court concluded without analysis that the government “promised not to transfer or use the information gathered from Dreamers for immigration enforcement.” JA.1515. Although the district court did not dispute the government’s assurance that the information-sharing policy has not changed, it noted that “counsel for the Government was unable to provide any assurance that the Government would not make changes” in the future. JA.1516. Accordingly, the court entered a permanent injunction that, as amended, requires the government to comply with its 2012 policy, except that the government may no longer modify or rescind that policy. The injunction further requires “any requests for deviation to be submitted to the district court for in camera review.” JA.1532-33.
SUMMARY OF ARGUMENT The district court correctly declined to disturb Acting Secretary Duke’s memorandum rescinding the discretionary DACA enforcement policy. The district court erred, however, in enjoining the government from modifying its informationsharing policy in the future. I. As an initial matter, the district court should have dismissed plaintiffs’ APA claims as non-justiciable. In rescinding the previous non-enforcement policy
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embodied in DACA, the Acting Secretary reset the agency’s enforcement priorities. A determination of general enforcement policy, like other enforcement decisions, is traditionally committed to agency discretion by law and thus not subject to APA claims. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 831 (1985). That is particularly true in the immigration context, where the “broad discretion exercised by immigration officials” is a “principal feature of the removal system.” Arizona v. United States, 567 U.S. 387, 396-97 (2012). That the Acting Secretary’s discretionary enforcement decision was based on legal analysis is immaterial, because the fact that an “agency gives a ‘reviewable’ reason for otherwise unreviewable action” does not mean that “the action becomes reviewable.” ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987) (BLE) (emphases added).
Nothing in the INA cabins that discretion here. To the contrary, 8 U.S.C. § 1252(g) precludes jurisdiction over challenges to “‘no deferred action’ decisions and similar discretionary determinations . . . outside the streamlined process that Congress has designed” for litigating an alien’s removal. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 & n.9 (1999) (AADC); see also 8 U.S.C. § 1252(b)(9). Thus, even if the Acting Secretary’s exercise of enforcement discretion were subject to review at all, that review could take place only in a petition from a final removal order.
II. In any event, the district court correctly concluded that the decision plainly satisfies the APA’s deferential standard. Regardless whether the original DACA policy was consistent with the INA, there is no claim that it was mandated by the statute or
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that rescinding it violated the statute. And the Acting Secretary’s discretionary rescission of DACA based on her clearly expressed concern that it would be enmeshed in litigation and likely enjoined nationwide was eminently reasonable, given the Texas litigation invalidating DAPA and expanded DACA, as well as the Attorney General’s opinion that DACA would and should meet the same fate. Neither precedent nor the APA required the Secretary to spell out the subsidiary legal reasons why it is illusory to distinguish DACA from expanded DACA and DAPA, and there likewise is no basis for a court to set aside the Secretary’s purely discretionary enforcement decision based on mere disagreement with her reasonable legal conclusion. All the more so now that Secretary Nielsen has issued a memorandum further explaining the rescission and agreeing with Acting Secretary Duke’s decision.
Contrary to plaintiffs’ contentions, the district court properly ruled based on the administrative record before it. “The APA specifically contemplates judicial review on the basis of the agency record,” and “[t]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). Plaintiffs have wholly failed to make the strong showing of bad faith required to rebut the rule that discovery is not permitted in an APA suit. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).
The district court also correctly concluded that plaintiffs’ procedural APA claims fail. The rescission memorandum was plainly a general statement of policy, not
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a substantive rule. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir.1987). It thus was not required to go through notice-and-comment rulemaking.
The district court was similarly correct that the Acting Secretary’s decision in no way violates the Constitution. The DACA rescission applies equally to persons of all ethnicities, although, like virtually all immigration policies, it has a disproportionate effect on certain ethnicities—here, Latinos from Central and South America. A challenge to such a facially-neutral immigration enforcement policy based on allegations of discriminatory motive is not permitted under AADC. 525 U.S. at 48892. And, even assuming such a challenge could proceed at all under AADC, plaintiffs have come nowhere near alleging the clear evidence of outrageous government conduct necessary to make out a claim of discriminatory enforcement in the immigration context. Id. The district court also correctly rejected plaintiffs’ contentions that the rescission of DACA violated the protections of the Due Process Clause. DACA itself created no protected liberty or property interest, and its rescission does not shock the conscience.
III. Plaintiffs have failed to demonstrate entitlement to the injunction entered by the district court. Even assuming a freestanding equitable estoppel claim against the government were permissible, plaintiffs have failed to demonstrate any change in the government’s information-sharing policy, which has always permitted modification. And, even assuming a change occurred, plaintiffs have not demonstrated the affirmative misconduct required to make out an equitable estoppel
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claim. At a minimum, the district court erred in granting plaintiffs nationwide relief. Bedrock principles of standing and equitable discretion limit the scope of any injunction to plaintiffs in these cases.
STANDARD OF REVIEW A district court’s grant of summary judgment is reviewed de novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc). Summary judgment may be granted where there are no disputes of “material fact,” and “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed. R. Civ. P. 56(c)). The district court’s grant of a permanent injunction is reviewed for abuse of discretion, but it is per se an abuse of discretion to commit an error of law, which is reviewed de novo. Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 939 (4th Cir. 1995).
ARGUMENT I. The Acting Secretary’s Rescission of the Discretionary DACA
Enforcement Policy Is Not Subject to Judicial Review. A. The decision is not subject to APA review because it is
committed to agency discretion by law. 1. The APA precludes review of agency actions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This provision applies to various types of agency decisions that “traditionally” have been regarded as unsuitable for judicial review, Lincoln v. Vigil, 508 U.S. 182, 191 (1993), including the decision whether or not
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to institute enforcement actions, Chaney, 470 U.S. at 831. Such decisions are similar in significant ways to a prosecutor’s decision whether or not to indict—“a decision which has long been regarded as the special province of the Executive Branch.” Id. at 832; 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.” (emphasis added)). Such discretionary enforcement actions “cannot be the subject of judicial review” even when an agency (or a prosecutor) bases them on what would be “a ‘reviewable’ reason” in another context. BLE, 482 U.S. at 283.
The Acting Secretary’s decision to discontinue a prior non-enforcement policy falls well within the types of enforcement decisions that traditionally have been understood as “committed to agency discretion.” Like the decision to adopt a policy of selective non-enforcement, the decision whether to retain such a policy can “involve[] a complicated balancing” of factors that are “peculiarly within [the agency’s] expertise,” including determining how the agency’s resources are best spent and how the non-enforcement policy fits with the agency’s overall policies. Chaney, 470 U.S. at 831. Likewise, a decision to abandon an existing non-enforcement policy will not, in itself, affect “an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.” Id. at 832. Indeed, an agency’s decision to reverse a prior policy of civil non-enforcement is akin to changes in policy as to criminal prosecutorial discretion, which regularly occur within the Department of Justice both during and across presidential administrations, and which,
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as noted, are generally not amenable to judicial review. Judicial review is available if a decision to enforce results in an adverse final determination that deprives an individual of liberty or property, but that review is limited to the substance of the final determination; an individual cannot escape guilt of the criminal or civil offense by bringing an APA challenge to an agency’s discretionary decision to enforce the law.
This presumption of non-reviewability applies with particular force in the context of immigration enforcement discretion. In general, the “broad discretion exercised by immigration officials” has become a “principal feature of the removal system.” Arizona, 567 U.S. at 396; see also, e.g., 6 U.S.C. § 202(5) (vesting authority in the Secretary of Homeland Security to “[e]stablish[] national immigration enforcement policies and priorities”). And more specifically, a suit challenging a discretionary decision to enforce the immigration laws would entail the extraordinary relief of ordering the government to allow a “continuing violation of United States law.” AADC, 525 U.S. at 490. The revocation of a prior immigration non-enforcement policy is thus plainly a decision that is “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and not subject to attack under the APA.
2. The district court did not engage with any of this precedent. Instead, the court held that “[p]laintiffs’ APA claims are justiciable because they relate to the procedures followed by DHS—not to the substance of its policy” and a court “may review whether the repeal of DACA followed the correct APA procedures.” JA 1501. Even on its own terms, this reasoning overlooks that plaintiffs’ arbitrary-and-capricious
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claim is substantive, not procedural. See, e.g., National Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1042 (D.C. Cir. 2012) (distinguishing “the APA’s procedural dictates” from “its substantive command that agency decisionmaking not be ‘arbitrary’ or ‘capricious’”). The district court then declared it “important to note” that the Acting Secretary had rescinded DACA based on her “belief that the program was unlawful and would face lengthy legal challenges.” JA.1501. To the extent that the court found plaintiffs’ arbitrary-and-capricious claim justiciable on that basis, it further erred.
In BLE, the Supreme Court expressly rejected the proposition that “if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” 482 U.S. at 283. By way of example, the Court observed 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,” yet “it is entirely clear that the refusal to prosecute cannot be the subject of judicial review” notwithstanding that the prosecutor’s belief “is surely an eminently ‘reviewable’ proposition.” Id. Thus, after BLE, a court cannot justify judicial review of an agency’s discretionary enforcement decision (an “otherwise unreviewable action”) simply on the ground that the decision was based on a general interpretation of law. See Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 675-76 (D.C. Cir. 1994) (explaining that BLE settles the question whether “Chaney’s presumption of nonreviewability is inapplicable when the agency bases its refusal to enforce in an individual case solely on a legal interpretation without explicitly relying on its
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enforcement discretion”). A legal rationale cannot provide a hook to support review of the underlying enforcement decision.
In some circumstances, though, the legal rationale can be reviewable on its own, for example when an agency provides a definitive interpretation of a statute’s substantive command in the course of announcing a general policy. See Crowley, 37 F.3d at 677 (explaining that there was no substantive interpretation in the single-shot enforcement action at issue, but that a reviewable embedded interpretation might be “more likely” to exist in a general enforcement policy). This distinction between the unreviewability of an enforcement decision and the possible reviewability of its legal rationale is well illustrated by UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986). In Brock, the D.C. Circuit explained that “there is no review available from [an] agency’s specific nonenforcement decision . . . or its overall pattern of decisions not to pursue enforcement action in these areas.” Id. at 245; see also id. (“If the Union had challenged only the Department’s decision not to take enforcement action against [certain entities], or even against this entire genus of practices, our task would be completed.” (emphasis added)). But the court went on to hold that “when a legal challenge focuses on an announcement of a substantive statutory interpretation,” judicial review is available. Id.
These cases demonstrate (1) where an enforcement decision is otherwise unreviewable, a court may not use the fact that the decision rests on a general legal rationale as a hook to permit judicial review of the underlying enforcement decision;
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and (2) where an unreviewable enforcement decision rests on a general legal interpretation of the statute’s substantive commands, a court may in certain situations “carve out” that embedded interpretive rule for review and vacatur (assuming that other prerequisites to judicial review are met), but it may not set aside the underlying enforcement decision.
Applying these principles, plaintiffs’ substantive APA claim is not subject to judicial review. Even assuming arguendo that the sole rationale for the Acting Secretary’s decision was that DACA is unlawful, that legal rationale could not be used as a hook to review the otherwise unreviewable enforcement decision to rescind DACA. As explained, such review is directly contrary to BLE. Nor would review of the legal rationale alone, as an interpretive rule embedded in the underlying enforcement policy decision, justify setting aside the rescission of DACA itself. Any embedded legal interpretation here would concern, at most, the scope of the Acting Secretary’s enforcement discretion. But that interpretation does not govern the behavior of the parties—no one disputes that DACA recipients are removable under the statute. Indeed, the decision at issue here rests on enforcement discretion all the way down.
3. Plaintiffs did not address this aspect of the district court’s ruling in their opening brief on appeal, but they did advance several arguments below in support of their position that their substantive APA claim is justiciable. None has merit.
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First, plaintiffs suggested that “the relevant substantive law that the government cited as the basis for the rescission” provided “judicially manageable standards by which a court can evaluate Plaintiffs’ APA claims.” JA.482. As explained above, it is both well established and common sense that an agency’s discretionary decision whether to enforce a law is not made reviewable because it is based on an understanding of governing law. See supra pp. 18-21.
Rather, for an enforcement decision to be reviewable, the “law to apply” must depart from tradition by “circumscrib[ing] agency enforcement discretion” and “provid[ing] meaningful standards for defining the limits of that discretion.” Chaney, 470 U.S. at 834. Such limits might be found in the statute that provides the agency with enforcement discretion, if Congress has set “substantive priorities” or otherwise limited “an agency’s power to discriminate among issues or cases it will pursue.” Id. at 833; see also Texas v. United States, 809 F.3d 134, 168 (5th Cir. 2015) (holding that court could review whether DAPA ran afoul of alleged INA constraints on enforcement discretion). But neither plaintiffs nor the district court have identified anything in the INA that limited DHS’s discretion in rescinding DACA.1
1 Constitutional constraints on enforcement discretion also are traditionally reviewable and provide meaningful standards to apply. See Webster v. Doe, 486 U.S. 592, 603-04 (1988). Review of plaintiffs’ constitutional claims is therefore not precluded by § 701(a)(2), although those claims are separately barred here by 8 U.S.C. § 1252(g) and are meritless in any event. See infra Part II.C .
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Second, plaintiffs argued that Chaney’s presumption does not apply because that case is “based on the recognition that courts are not well placed to second-guess an agency’s balancing of . . . factors which are particularly in within its expertise,” and “the Government has not engaged in any ‘balancing’ of individualized factors.” JA.484-85; see also JA.482-83. But this argument merely repackages the analysis foreclosed by BLE and Chaney. Where a discretionary enforcement decision is traditionally unreviewable because there is no statutory or regulatory constraint on the exercise of that discretion, a court may not review the agency’s decision regardless of what factors the agency chooses to consider in making that decision, including even if the agency believes for legal reasons that it lacks any discretion at all. Notably, Chaney identified the balancing of discretionary factors as only one of “many” reasons for the “general unsuitability for judicial review” of agency enforcement decisions, and emphasized as well that enforcement decisions have “long been regarded as the special province of the Executive Branch.” 470 U.S. at 831-32.
Indeed, this argument is in significant tension with the facts of Chaney itself. The FDA’s decision not to take enforcement actions with respect to lethal injection drugs relied on both enforcement discretion policy and a perceived lack of jurisdiction. 470 U.S. at 824. The Supreme Court did not call into question the nature of the agency’s policy decision despite the agency’s alternative conclusion. And, in any event, the DACA rescission did involve discretionary balancing, because it rested in part on enforcement-discretion concerns about legality and litigation risk.
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Third, plaintiffs argued that the DACA rescission is reviewable because it is “a broad agency enforcement policy.” JA.483. This argument is also inconsistent with the facts of Chaney. The non-enforcement decision in that case was not an individualized decision by the FDA to forgo enforcement of the Federal Food, Drug, and Cosmetic Act against a single alleged violator. Rather, the plaintiffs in Chaney requested the FDA to enforce the statute’s misbranding prohibition against the use of certain drugs for capital punishment, by taking “various investigatory and enforcement actions” against “drug manufacturers,” “prison administrators,” and “all [others] in the chain of distribution”; the FDA, however, categorically concluded that its enforcement discretion “should not be exercised to interfere with this particular aspect of state criminal justice systems.” 470 U.S. at 824-25. In short, the question under Section 701(a)(2) is whether the type of agency decision at issue is inherently discretionary in nature, not the number of people to whom it applies.
Common sense would dictate this conclusion even if it were not already settled law. Individual enforcement decisions are regularly informed by general interpretations of the agency’s substantive statute to determine “whether a violation has occurred.” Chaney, 470 U.S. at 831; see BLE, 482 U.S. at 283 (“[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.”). Similarly, agency decisions about how its “resources are best spent” or how certain enforcement activity “best fits the agency’s overall policies,” Chaney, 470 U.S. at 831,
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are at least as susceptible to implementation through broad guidance as through caseby-case enforcement decisions. See, e.g., Alaska Fish & Wildlife Federation & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 935, 938 (9th Cir. 1987) (holding unreviewable “a written policy stating that subsistence hunting in Alaska during the closed season would not be punished” because “traditional methods of enforcing game laws are not effective in the vast reaches of rural Alaska”).2
Fourth, plaintiffs argue that the Acting Secretary’s decision was reviewable because, rather than adopting a non-enforcement policy, it rescinded one. Their suggestion that the Chaney presumption applies only to “attempt[s] to obtain judicial review of an agency decision not to act,” JA.485, is foreclosed by this Court’s decision in Speed Mining, Inc. v. Federal Mine Safety & Health Review Commission, 528 F.3d 310 (4th Cir. 2008). In that case, the owner-operator of a coal mine contended that the Secretary of Labor abused her discretion in issuing citations for safety violations. The Court held that the decision was unreviewable, explaining that an “agency’s exercise of its enforcement discretion,” even when that discretion is exercised to enforce the law, is “an area in which the courts have traditionally been most reluctant to interfere.” Id. at 318.
2 Plaintiffs below cited Kenney v. Glickman, 96 F.3d 1118, 1124 (8th Cir. 1996), but that case involved “policy decisions based on the [agency’s] interpretation” of the substantive commands of a statute, not the scope of its enforcement discretion.
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Fifth, plaintiffs further suggested that the Acting Secretary’s “affirmative . . . action rescinding protected interests that have been granted to Dreamers provid[es] a clear focus for judicial review.” JA.486. But the premise of this argument—that DHS made a commitment to certain persons unlawfully in the country—is incorrect. Indeed, DHS made explicit when it adopted the DACA non-enforcement policy that “[t]his memorandum confers no substantive right.” JA.131.3
More fundamentally, any reliance interests would not justify judicial review of otherwise-non-reviewable acts of discretion. In Lincoln, for example, the Indian Health Service had operated its regional program for seven years, providing important medical treatment to disabled children on which the recipients had undoubtedly come to rely. See 508 U.S. at 185-88. Notwithstanding that reliance, the Supreme Court held that the Service’s discretionary decision to discontinue the program by reallocating a lump-sum appropriation was non-reviewable. Id. at 193-94.
Nor does the availability of review turn on the significance of a plaintiff’s asserted interest in an agency’s discretionary enforcement decision. The Supreme Court made this clear in Chaney, where plaintiffs offered “evidence that use of the drugs [that FDA declined to regulate] could lead to a cruel and protracted death.” 470
3 Robbins v. Regan, 780 F.2d 37, 47 (D.C. Cir. 1985) (per curiam), which involved a “rescission of commitments,” is therefore inapposite. That case also did not involve an exercise of enforcement discretion—the challenged agency action was the alleged refusal to provide previously agreed upon funding for renovations of a homeless shelter.
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U.S. at 827. Holding that it could not properly review the agency’s decision, the Supreme Court emphasized that “[t]he fact that the drugs involved in this case are ultimately to be used in imposing the death penalty must not lead this Court or other courts to import profound differences of opinion over the meaning of the Eighth Amendment . . . into the domain of administrative law.” Id. at 838.
In sum, none of plaintiffs’ reasons, individually or collectively, justify applying APA review to the Acting Secretary’s discretionary decision to rescind the DACA non-enforcement policy. And it warrants emphasis that those reasons, if accepted by this Court, would lead to a radical and untenable intrusion on agencies’ enforcement discretion. Consider the following example of a quintessential exercise of prosecutorial discretion: one chief prosecutor adopts a general policy of not enforcing drug laws against low-level, non-violent offenders because she views them as victims of circumstance who should receive treatment and support; but her successor then rescinds that non-enforcement policy based on her legal concerns that the policy would violate her duty to faithfully execute the laws and provide equal treatment to defendants. The district court’s analysis in this case would allow drug offenders in that circumstance, who are concededly guilty, to nevertheless seek judicial review of the legal reasoning underlying the second prosecutor’s discretionary decision to enforce the drug laws in a different manner than her predecessor. That is not, and cannot possibly be, the law.
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B. 8 U.S.C. § 1252 bars pre-enforcement review of plaintiffs’ claims.
1. Under 8 U.S.C. § 1252, judicial review of DHS enforcement decisions is generally available, if at all, only through the procedures for reviewing removal orders set forth in that section. As relevant here, section 1252(g) states that “[e]xcept as provided in this section . . . 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 [Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this subchapter.” As the Supreme Court explained in AADC, section 1252(g) is “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” See 525 U.S. at 485 & n.9.
The Acting Secretary’s rescission of DACA is such a “‘no deferred action’ decision[],” AADC, 525 U.S. at 485, and is an initial “action” in the agency’s “commence[ment] [of ] proceedings” against aliens who are unlawfully in the country, 8 U.S.C. § 1252(g). Thus, even assuming that the DACA rescission were reviewable, it would be reviewable only as otherwise “provided in [Section 1252],” id.—that is, through “[ j]udicial review of a final order of removal,” id. § 1252(a)(1). See, e.g., Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999). That review of a final order of removal is the sole avenue for
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judicial review is underscored by 8 U.S.C. § 1252(b)(9), which channels into the review of final removal orders all questions of law or fact arising from any action taken to remove an alien. See AADC, 525 U.S. at 483 (characterizing section 1252(b)(9) as an “unmistakable ‘zipper’ clause”); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).
The limitation on review here is consistent with the review procedures for other kinds of discretionary DHS actions. For example, under 8 U.S.C. § 1252(a)(2)(B), “no court shall have jurisdiction to review” judgments regarding the grant or denial of specified forms of discretionary relief—including cancellation of removal, voluntary departure, certain waivers of inadmissibility, and adjustment of status. See id. § 1252(a)(2)(B)(i) (citing 8 U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, 1255). Congress provided a limited exception to that jurisdictional bar for “review of constitutional claims or questions of law,” id. § 1252(a)(2)(D), but it mandated that any such review occur only “upon a petition for review [of a final order of removal] filed with an appropriate court of appeals in accordance with this section,” id.; see, e.g., Green v. Napolitano, 627 F.3d 1341, 1347 (10th Cir. 2010).
2. The district court failed to grapple with the government’s argument that review here is barred by the INA, stating only that “the notion that 8 U.S.C. § 1252(g) precludes judicial review has been rejected repeatedly” and citing AADC. JA.1501.
But AADC supports the government’s position in this case. As explained, in AADC, the Supreme Court recognized the INA is “designed to give some measure
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of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” See 525 U.S. at 485 & n.9. The INA affords such protection by channeling legal challenges to such decisions into review of final removal orders, pursuant to 8 U.S.C. § 1252(g) and 8 U.S.C. § 1252(b)(9). Plaintiffs cannot frustrate the INA’s reticulated review scheme by filing suit before the agency has officially initiated an enforcement proceeding.
The Supreme Court’s recent decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), does not counsel a different result. The plurality opinion described AADC as having interpreted section 1252(g) not “to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General,” but rather “to refer to just those three specific actions themselves.” Id. at 841. But the opinion merely emphasized that the plaintiffs there fell outside of AADC ’s interpretation of section 1252(g) because they were challenging the conditions and length of detention ancillary to the removal process—in other words, “[they were] not asking for review of an order of removal; they [were] not challenging the decision to detain them in the first place or to seek removal; and they [were] not even challenging any part of the process by which their removability will be determined.” Id. Here, by contrast, the legal questions at issue arise from a challenge to an ingredient to commencement of
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removal—the rescission of deferred-action forbearance from removal—and review is therefore barred under section 1252(g) and AADC. Id. at 841 n.3.
If anything, Jennings underscores the fact that section 1252(b)(9), which channels all legal and factual questions “arising from any action taken or proceeding brought to remove an alien” into final removal orders, also bars plaintiffs’ claims. Under both the plurality’s and concurrence’s interpretation of section 1252(b)(9), see 138 S. Ct. at 839-41 (plurality op.); id. at 852-53 (Thomas, J., concurring in the judgment), plaintiffs’ claims in this case “aris[e] from” an “action taken” in the removal process. II. The District Court Correctly Held That the Rescission of DACA
Was Lawful. A. The district court correctly held that the DACA rescission
was not arbitrary and capricious. Even if the Acting Secretary’s decision were reviewable under the APA, it was plainly not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). As the district court correctly emphasized in so holding, JA.1505, the APA standard of review is “narrow,” Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983): “[A] court is not to substitute its judgment” for the agency’s reasonable judgment, id., and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
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1. The district court correctly concluded that it was not arbitrary and capricious to rescind DACA because it was subject to serious legal challenge.
a. It is uncontroverted that nothing in the INA requires any aspect of the DACA policy. Plaintiffs’ claim, instead, is that once an agency has adopted a purely discretionary non-enforcement policy, it must provide a robust explanation for a decision to pursue a different enforcement policy. Unsurprisingly, plaintiffs have not identified any authority for this proposition. Nor can they seriously dispute the district court’s conclusion that it was reasonable for the Secretary to act based on the significant legal risks presented by maintaining a policy (original DACA) that was materially indistinguishable to ones (expanded DACA and DAPA) that had been enjoined nationwide by the Fifth Circuit in a decision affirmed by an equally divided Supreme Court. This is especially so in the face of a threat by Texas and other States to challenge DACA on the same grounds. As the district court explained, “[r]egardless of whether DACA is, in fact, lawful or unlawful, the belief that it was unlawful and subject to serious legal challenge is completely rational.” JA.1506. “DAPA—an analogous program, promulgated by analogous means,” the court explained “had been defeated less than a year prior” and “[t]he same plaintiffs who defeated DAPA threatened to challenge DACA imminently.” Id. “[I]nstead of the chaotic possibility of an immediate termination,” the Acting Secretary “opted for a six-month wind-down period.” Id.
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The district court was correct. In Texas v. United States, the Fifth Circuit had concluded that DAPA and expanded DACA were unlawful on both procedural and substantive grounds. 809 F.3d at 178; see id. at 147 n.11 (including the “DACA expansions” within the opinion’s references to “DAPA”). The entirety of the Fifth Circuit’s reasoning applies equally to the original DACA policy.
With respect to procedure, the Fifth Circuit concluded that the memorandum expanding DACA and creating DAPA was not exempt from notice and comment as a statement of policy because of how the original DACA policy had been implemented. Texas, 809 F.3d. at 171-78. The court found that, “[a]lthough the DAPA Memo facially purports to confer discretion,” in fact it would operate as a binding statement of eligibility for deferred action because that is how the original DACA policy had been implemented. Id. at 171, 174 n.139.
With respect to substance, the Fifth Circuit held that DAPA and expanded DACA were contrary to the INA because (1) “[i]n specific and detailed provisions,” the INA already “confers eligibility for ‘discretionary relief,’ ” including “narrow classes of aliens eligible for deferred action,” Texas, 809 F.3d at 179; (2) the INA’s otherwise “broad grants of authority” could not reasonably be construed to assign to the Secretary the authority to create additional categories of aliens of “vast ‘economic and political significance,’ ” id. at 182-83; (3) DAPA and expanded DACA were inconsistent with historical deferred-action policies because they neither were
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undertaken on a “country-specific basis . . . in response to war, civil unrest, or natural disasters,” nor served as a “bridge[] from one legal status to another,” id. at 184; and (4) “Congress ha[d] repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (‘DREAM Act’), features of which closely resemble DACA and DAPA,” id. at 185 (footnote omitted). Every one of those factors likewise applies to the original DACA policy.
b. Plaintiffs posit various reasons they believe distinguish DACA from DAPA and expanded DACA, and fault the Acting Secretary for failing to expressly address them. Pl. Br. 30. But plaintiffs provide no authority (because none exists) for the proposition that the APA required the Acting Secretary to provide the equivalent of a bench memo setting out the subsidiary legal arguments to be made by each side in the course of protracted litigation, with an accompanying evaluation of the likelihood of success in various district courts, the courts of appeals, and the Supreme Court. Indeed, as this Court has explained, an agency “explanation need not be a ‘model of analytic precision’” to satisfy the APA’s requirements. Downey v. U.S. Dep’t of Army, 685 F. App’x 184, 190 (4th Cir. 2017) (quoting Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001)); see also Bowman, 419 U.S. at 286 (rationale need only be reasonably discernable). So long as the ultimate litigation judgment was reasonable, the Acting Secretary’s decision is not arbitrary and capricious. All of plaintiffs’ arguments to the contrary fail.
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First, plaintiffs urge that DAPA might have been more vulnerable to challenge because “unlike DAPA, DACA has no analogue in the INA.” Pl. Br. 32 (quoting NAACP, 298 F. Supp. 3d. 239). The basis of the Fifth Circuit’s Texas decision was not, however, the existence of a particular statutory pathway to lawful presence, but rather the “specific and intricate provisions” of the INA as a whole addressing discretionary relief (which, of course, no more include DACA recipients than DAPA recipients). 809 F.3d at 186. Indeed, a pathway to lawful presence could not have been decisive to the Fifth Circuit’s rationale, because, as that court itself noted, some DAPA recipients (i.e., the parents of lawful permanent residents) had no such pathway to citizenship, id. at 179-80, and neither did expanded DACA recipients (who differed from DACA recipients only with respect to age and length of residence). Given all this, plaintiffs’ proposed distinction is entirely backward. If anything, the fact that Congress had legislated only for certain individuals similarly situated to DAPA recipients—and not DACA recipients—would make DACA more inconsistent with the INA.
Second, plaintiffs contend that the district erred in failing to consider whether a defense like laches might apply to a suit seeking to enjoin DACA. Pl. Br. 32. But laches requires a showing of prejudice, Abbott Labs. v. Gardner, 387 U.S. 136, 155 (1967), and plaintiffs do not explain how the government (or, indeed, anyone else) was prejudiced by Texas’s failure to bring suit earlier, which simply would have caused DACA to end sooner.
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Third, plaintiffs contend that the Acting Secretary failed to consider the “injunction prerequisites, such as how any plaintiff challenging DACA could claim immediate or irreparable harm.” Pl. Br. 33. This argument ignores the fact that the Fifth Circuit already affirmed the DAPA injunction, and, as explained, there are no material differences between the two policies.
Fourth, plaintiffs cannot undermine the reasonableness of the Acting Secretary’s decision by arguing that the Attorney General erroneously stated that the Fifth Circuit had found “constitutional” defects in DAPA and expanded DACA. Pl. Br. 31. The Acting Secretary made her decision after “[t]aking into consideration” the Attorney General’s letter and the Fifth Circuit’s ruling, but nothing in her memorandum suggests that she misunderstood the nature of that ruling, which she herself described in purely statutory terms. JA.383. Moreover, even the Attorney General’s letter in its entirety should not be read to attribute “constitutional” holdings to the Texas courts, but rather to invoke the “legal grounds” the courts adopted in support of his own view that DACA was “unconstitutional.” JA.379. In any event, any error in attributing a finding of unconstitutionality to the Texas courts was plainly harmless because the Attorney General did not rescind DACA. Rather, the Acting Secretary did, and it is clear from her memorandum that her decision did not depend in any way on whether DACA was unconstitutional, rather than “merely” contrary to statute and likely to be enjoined regardless.
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Fifth, plaintiffs err in contending that Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) (en banc), held that reliance on litigation risk renders agency action arbitrary and capricious. Pl. Br. 31. Kake held no such thing. There, USDA initially had determined not to exempt a particular forest from a rule prohibiting roads in certain areas of national parks, but then reversed course two years later on the identical factual record. Kake, 795 F.3d at 959. As a tertiary rationale for its changed position, USDA suggested that granting the exemption would “reduce[ ] the potential for conflicts” in light of “litigation over the last two years” concerning its rule. Id. at 970. The Ninth Circuit rejected that rationale because the “other lawsuits involved forests other than the [one exempted],” and thus it was “impossible to discern how [the] exemption . . . would affect them,” and USDA “[a]t most . . . [had] deliberately traded one lawsuit for another.” Id. Kake is thus entirely inapposite. It involved the scope of a substantive rule rather than a purely discretionary enforcement policy, and it involved speculative litigation benefits rather than the significant litigation benefit of mooting a near-certain injunction. In short, the government’s position here is not that it may “trade[ ] one lawsuit for another,” but instead that it may choose an orderly wind-down of a purely discretionary non-enforcement policy rather than litigate to the bitter end in the face of adverse precedent.
c. Nor is there any basis to reject the Acting Secretary’s litigation-risk concern as a “post hoc rationalization.” The memorandum focuses from beginning to end principally on litigation concerns, not the legality of DACA per se. The memorandum
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recounted in significant detail the litigation surrounding the DAPA and expanded DACA policies. JA.381-82. It noted that the agency’s prior June 2017 decision to discontinue DAPA and expanded DACA was made after “considering the [government’s] likelihood of success on the merits of th[at] ongoing litigation.” JA.382. It described the subsequent letter from Texas and other States to the Attorney General notifying him of those States’ intention to amend the existing lawsuit to challenge the original DACA policy. Id. It quoted the Attorney General’s qualified statement that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. (emphasis added). And it concluded that, in light of the foregoing, and “[i]n the exercise of [her] authority in establishing national immigration policies and priorities” under 6 U.S.C. § 202(5), the Acting Secretary had decided merely that the DACA policy “should” be terminated and wound down in “an efficient and orderly fashion,” not that it “must” be.
The Nielsen Memo reaffirms this understanding of the Texas litigation and the risk it posed. It spells out why “[a]ny arguable distinctions between the DAPA and DACA policies” were not “sufficiently material” to resolve the agency’s doubts over DACA’s legality, and explains that, whether or not courts ultimately would uphold DACA, “[t]here are sound reasons for a law enforcement agency to avoid discretionary policies that are legally questionable.” Nielsen Memo 2. Indeed, regardless of whether the Duke Memo adequately explained this legal-doubt rationale,
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the Nielsen Memo’s further explanation provides sufficient basis to affirm the district court’s rejection of plaintiffs’ challenge to DHS’s rescission of the DACA policy.
d. In any event, Acting Secretary Duke’s decision is independently supported by her reasonable conclusion, informed by the Attorney General’s advice, that indefinitely continuing the DACA policy would itself have been unlawful. As detailed above, the Fifth Circuit had already concluded that DAPA and expanded DACA were procedurally and substantively invalid, in a decision that four Justices of the Supreme Court voted to affirm. See supra pp.33-34. The Attorney General expressed his agreement with the conclusion reached by the Fifth Circuit in a decision that applies equally to the original DACA policy. See JA.379 (concluding that DACA was “effectuated . . . without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result”). The Acting Secretary’s decision to rescind the purely discretionary DACA non-enforcement policy on the basis of the Fifth Circuit’s decision, the Supreme Court’s equally divided affirmance, and the Attorney General’s opinion was not the type of “clear error of judgment,” State Farm, 463 U.S. at 43, that would make it arbitrary and capricious under the APA. As the district court put it, “[H]ow could trying to avoid unlawful action possibly be arbitrary and capricious?” JA.1506.
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2. Plaintiffs’ additional arguments that the rescission memorandum was arbitrary and capricious are meritless.
a. Plaintiffs are equally mistaken in arguing that the Acting Secretary’s decision was arbitrary and capricious in failing to consider the reliance interests at stake. Pl. Br. 27-29. Because of the nature of the decision to rescind DACA, reliance interests are not a sufficiently “important aspect” of the question to require express consideration. State Farm, 463 U.S. at 43. On its face, DACA confers no legitimate reliance interests. DACA made deferred action available for only two-year periods, which could “be terminated at any time” at the agency’s discretion. JA.1013. When he announced DACA in 2012, President Obama explained that it was a “temporary stopgap measure,” not a “permanent fix.” Remarks by the President on Immigration (June 15, 2012), https://go.usa.gov/xnZFY. And he urged Congress to act “because these kids deserve to plan their lives in more than two-year increments.” Id. A purely discretionary policy that can be revoked at any time cannot create legally cognizable reliance interests—and certainly not beyond the stated duration (generally two years) of existing deferred-action grants, which the Acting Secretary left untouched. Nothing in the INA prevents the Secretary of Homeland Security from changing her “national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). And any reliance was even less justified, of course, to the extent that DACA was unlawful.
At a minimum, the asserted reliance interests plainly failed to overcome the substantial change in circumstances resulting from the Supreme Court’s affirmance of
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the Fifth Circuit’s decision, which significantly increased the risk that DACA would be enjoined nationwide and thus drastically reduced the degree to which DACA recipients could rely on the continuation of what was already a purely discretionary non-enforcement policy. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), upon which plaintiffs rely, is entirely inapposite. That case involved the Department of Labor’s interpretation of whether automotive service advisors were covered by a statutory exemption from the overtime provisions of the Fair Labor Standards Act. Unlike the policy at issue here, the one in Encino Motorcars concerned private parties’ substantive statutory rights, had been in place for thirty-three years, and was not subject to a significant risk of imminent judicial invalidation. Id. at 2126-27. The relevant industry stakeholders had therefore developed a strong and justified reliance interest that necessitated consideration under the APA.
In any event, the Acting Secretary’s decision suitably respected the interests of existing DACA recipients. Based on her reasonable evaluation of the litigation risk posed by the imminent lawsuit against the DACA policy, the choice she faced was between a gradual, orderly, administrative wind-down of the policy, and the risk of an immediate, disruptive, court-imposed one. Her decision to phase out the policy over a two-and-a-half-year period—permitting a period of additional renewals and permitting renewed and existing grants of deferred action to expire by their terms— was, by far, the more humane choice.
Again, the Nielsen Memo underscores this conclusion. Although not required, 41

Secretary Nielsen addressed whether any claimed reliance justified the continuation of the DACA policy. As the Secretary explained, she is “keenly aware that DACA recipients have availed themselves of the policy in continuing their presence in this country and pursuing their lives.” Nielsen Memo 3. “Nevertheless,” she concluded that “in considering DHS enforcement policy” she “d[id] not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy” and the other discretionary enforcement policy considerations that she articulated, especially in light of DACA’s temporary nature. Id. Instead, the Secretary determined that “issues of reliance would best be considered by Congress, which can assess and weigh a range of options.” Id. Ultimately, “[i]n [her] judgment, neither any individual’s reliance on the expected continuation of the DACA policy nor the sympathetic circumstances of DACA recipients as a class overcomes the legal and institutional concerns with sanctioning the continued presence of hundreds of thousands of aliens who are illegally present in violation of the laws passed by Congress.” Id. All that said, she also emphasized that any reliance concerns were further mitigated by the important fact that Acting Secretary Duke’s “rescission of the DACA policy does not preclude the exercise of deferred action in individual cases if circumstances warrant.” Id.
b. Plaintiffs similarly err by arguing that the rescission memorandum is arbitrary and capricious because it does not “cite[] any facts or changed circumstances that supported the change.” Pl. Br. 28. The Acting Secretary’s memorandum makes clear
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that DHS changed its position because the Texas injunction against DAPA and expanded DACA was affirmed by an equally divided Supreme Court; the Attorney General has disavowed the prior position; and Texas and other States were threatening to challenge DACA. That is more than sufficient to satisfy the APA’s requirement to acknowledge and explain a changed position. FCC v. Fox, 556 U.S. 502, 514-15 (2009).
c. Plaintiffs also miss the mark in speculating that “animus” motivated the rescission of DACA. Pl. Br. 29-30. Plaintiffs point to no evidence in the administrative record, or anywhere else, to support their contention that Acting Secretary Duke acted with animus in rescinding the DACA policy. See also infra Part II.C.1 (explaining the correctness of district court’s rejection of plaintiffs’ equal protection claims).
3. The administrative record provided an adequate basis on which to sustain the Acting Secretary’s decision.
As a final matter, plaintiffs err in asserting that the district court could not uphold the Acting Secretary’s decision based on the record before it. The district court correctly relied on the administrative record submitted by the agency and held that it supported the agency’s decision.
In agency review cases, “[t]he APA specifically contemplates judicial review on the basis of the agency record.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). In so doing, “[t]he focal point for judicial review should be the administrative
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record already in existence, not some new record made initially in the reviewing court.” Id. at 743-44. Rather than permit wide-ranging discovery, “the task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court.” Id.. If the agency’s action “is not sustainable on the administrative record made,” then the administrative “decision must be vacated and the matter remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam).
Plaintiffs argue both that the district court should have ordered the government to “complete” the record and that the district court should have granted discovery in order to consider extra-record materials. Pl. Br. 20-23. Both arguments are in error.
First, the record was not incomplete. In formal administrative proceedings, the APA provides that the “exclusive record for decision” consists of “[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding.” 5 U.S.C. § 556(e). The administrative record is composed “exclusive[ly]” of the materials affirmatively admitted by the agency in the course of the proceeding. Materials that are not “filed in the proceeding” pursuant to the agency’s own procedures, such as internal agency documents memorializing the agency’s own deliberations, are categorically outside the scope of the administrative record under section 556(e)—just like deliberative materials in the Judicial Branch such as draft opinions, bench memoranda, and communications among judges are not part of the
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record in a case in court. See also 28 U.S.C. § 2112; Fed. R. App. P. 16 & note (imposing the same rule). Although the APA does not contain a parallel provision prescribing the scope of the administrative record for informal agency actions (such as the statement of agency policy here), there is no reason why materials should be treated any differently than when they are created in a formal proceeding. Indeed, the APA’s lack of instruction and the informal character of the action give the agency more, rather than less, latitude in deciding what is material to its decision and thus belongs in the record. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978) (court may “not stray beyond the judicial province . . . to impose upon the agency its own notion of which procedures are ‘best’”).
In arguing that the record here is incomplete, plaintiffs wholly ignore the nature of the decision at issue. It is common sense that “[w]hat will constitute an adequate record for meaningful review may vary with the nature of the administrative action to be reviewed.” United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 249 (2d Cir. 1977). Here the challenged agency act is the formulation of a policy concerning prosecutorial discretion; the agency record permitted review of that policy (assuming review were available at all). Because that discretionary enforcement decision did not require the development of any particular evidentiary basis and turned instead on legal and policy assessment, there is no risk that the government could try to insulate its decisions by “withhold[ing] evidence unfavorable to its case.” Pl. Br. 22.
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Plaintiffs further allege that the administrative record is facially suspect because it did not include documents from subordinates. Pl. Br. 21-22. In making this argument, plaintiffs disregard the “presumption of regularity” that attaches to the agency’s action in designating the record. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993). In any event, plaintiffs recognize that the reason it may be appropriate to include materials from subordinates is that an agency decisionmaker may have based her decision on facts and evidence gathered and provided by subordinates. Pl. Br. 21. But the fact that materials in the possession of subordinates may, in certain circumstances, be indirectly considered by a decisionmaker does not mean that the absence of such materials renders an administrative record suspect and subject to “completion” in every case. The administrative record in this case included all non-deliberative materials considered by the Acting Secretary in reaching her decision.
In arguing (incorrectly) that the administrative record was incomplete because it “contained no materials explaining prior decisions to maintain the DACA program or the Government’s departure from its prior view that DACA was legal,” plaintiffs reveal their goal to uncover the deliberative processes of the agency in reaching its conclusion. Pl. Br. 22. But deliberative materials have no place in an administrative record. “[A]gency officials should be judged by what they decided, not for matters they considered before making up their minds.” National Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014). Indeed, deliberative materials are not merely protected
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from disclosure—they do not form part of the administrative record at all. See San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 44-45 (D.C. Cir. 1986) (plurality opinion) (explaining that “[j]udicial examination of [internal agency] transcripts would represent an extraordinary intrusion into the realm of the agency,” and that the petitioners must make a “‘strong showing of bad faith or improper behavior’” before the court would be “warranted in examining the deliberative proceedings of the agency”); Comprehensive Cmty. Dev. Corp. v. Sebelius, 890 F. Supp. 2d 305, 312-13 (S.D.N.Y. 2012) (“[C]ourts have consistently recognized that, for the purpose of judicial review of agency action, deliberative materials antecedent to the agency’s decision fall outside the administrative record.”).
Plaintiffs’ reliance on Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982), is misplaced. Pl. Br. 20. Plaintiffs there alleged that a federal agency had improperly funded projects. But the state plans that were being funded—“the very basis for federal decision-making” and documents that were required by regulation—were not included in the administrative record, thus creating a “strong suggestion that the record before the Court was not complete.” Dopico, 687 F.2d at 654. The agency action at issue here does not involve consideration of documents submitted to the government from the outside, and plaintiffs have not identified a comparable document that is missing from the record. Rather, this case involves the formulation of a policy with respect to enforcement discretion, and plaintiffs have not identified
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any non-deliberative materials outside the administrative record relevant to that legal policy decision that the Acting Secretary necessarily considered.
Second, plaintiffs are not entitled to extra-record evidence. The general rule is that discovery is not appropriate in an APA suit absent a “strong showing of bad faith or improper behavior.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971); Air Transp. Ass’n of Am., Inc. v. National Mediation Board, 663 F.3d 476, 487 (D.C. Cir. 2011). Here the Acting Secretary explained the reasons for her action in a memorandum that was both publicly released and included in the administrative record. If the administrative record were insufficient for review (which it was not, see supra pp. 44-47), the proper remedy would be for the district court to remand the case to the agency, not to order discovery. Florida Power, 470 U.S. at 744.
In their attempt to evade the general rule forbidding discovery in APA cases, plaintiffs attempt to demonstrate that agency officials acted in bad faith. In making this argument, plaintiffs rely on statements made by “Government officials” that purportedly demonstrate racial animus and the reversal of the government’s previous support of the DACA policy. Pl. Br. 22-23. But neither of these grounds could support a finding of bad faith. First, plaintiffs have made no showing whatsoever that Acting Secretary Duke, the decisionmaker here, acted on the basis of animus. See infra Part II.C.1 (explaining that the district court correctly rejected plaintiffs’ equal protection claims). Second, the administrative record adequately explains the government’s change in position. See supra p. 43.
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B. The district court correctly held that the rescission of DACA did not require notice-and-comment rulemaking.
1. The APA generally requires that agencies give notice of proposed rules to the public and provide interested persons with an opportunity to comment on the proposal. 5 U.S.C. § 553(b)-(c). These requirements do not apply, however, to “general statements of policy.” Id. § 553(b)(3)(A). Accordingly, the rescission of the DACA policy did not require notice-and-comment rulemaking, as the district court correctly recognized (joining all the other courts to have considered the issue). See JA.1504-05.
A general statement of policy “advise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Lincoln, 508 U.S. at 197 (quoting U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). “[L]ike a press release,” a general statement of policy “encourages public dissemination of the agency’s policies prior to their actual application in particular situations,” such as by announcing “the course which the agency intends to follow in future adjudications.” Pacific Gas & Elec. Co. v. Federal Power Comm’n, 506 F.2d 33, 38 (D.C. Cir. 1974). Significantly, however, policy statements “are binding on neither the public nor the agency,” and the agency “retains the discretion and the authority to change its position . . . in any specific case.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (citations omitted).
By contrast, “a substantive or legislative rule, pursuant to properly delegated
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authority, has the force of law, and creates new law or imposes new rights or duties.” Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 207 (4th Cir. 1989); see also Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (“Rules issued through the notice-and-comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’”).
The rescission memo was issued as an “exercise of [the Secretary’s] authority in establishing national immigration policies and priorities,” JA.383, and explains how the agency intends to exercise its enforcement authority on a prospective basis. The decision “does not . . . create any right or benefit, substantive or procedural, enforceable at law by any party,” JA.384, and does not affect anyone’s immigration status. As the district court explained, “[a]lthough a substantial paradigm shift, the DACA Rescission Memo neither curtails DHS’s discretion regarding individual immigration reviews, nor does it prevent the agency from granting . . . deferred action status in the future.” JA.1505. It simply returns to the prior status quo, reflecting the background principle that deferred action is “an act of prosecutorial discretion” that may be exercised “on an individualized case-by-case basis,” JA.381, and places “no limitations” on the agency’s exercise of such “otherwise lawful enforcement . . . prerogatives,” JA.384. Nothing in the rescission memo evidences an intent to be bound.
2. Plaintiffs contend that the DACA rescission is a substantive rule because it 50

withdrew officials’ discretion to grant deferred action under DACA. Pl. Br. 36-37. But that cannot be the test, because a change in policy always withdraws discretion to act under the repudiated policy. Setting aside that truism, the essence of plaintiffs’ argument is that they are less likely to receive deferred action based on a totality of the circumstances inquiry than under the DACA policy’s guidelines. But a reduced likelihood of relief does not transform a general statement of policy into a substantive rule. See Mada–Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir. 1987).
This Court’s decision in Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1340-41 (4th Cir. 1995), relied on by plaintiffs, only underscores the correctness of the district court’s holding. Contrary to plaintiffs’ contention, this Court in Chen Zhou Chai did not hold that a general statement of policy is required to undergo notice-andcomment rulemaking if it “substantively impacts” individuals. Pl. Br. 38. Indeed, the Court held that an interim asylum policy was a general statement of policy, 48 F.3d at 1341 (citing Mada–Luna, 813 F.2d at 1015), even though it undoubtedly substantively impacted a number of individuals and the likelihood of their being granted asylum.
If the Acting Secretary’s memorandum requiring a return to fully individualized discretion for deferred action is a substantive rule, then a fortiori the restriction on discretion imposed by DACA itself was a substantive rule, as the Fifth Circuit held. Texas, 809 F.3d at 171-78. And that provides an independent and sufficient basis to reject the plaintiffs’ claim. See Chen Zhou Chai, 48 F.3d at 1341 n.8. It would offend both law and equity for this Court to set aside the DACA rescission for failure to
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follow notice-and-comment procedures when that rationale necessarily implies that DACA itself was invalid for the same reason. Not only would such a ruling effectively order the maintenance of an illegally enacted legislative rule, but any relief it provides would necessarily be short-lived, as such a decision would create binding precedent under which opponents of DACA could immediately obtain an injunction against it.
Plaintiffs respond that, even where a substantive rule is invalid, agencies must go through notice-and-comment before repealing it. Pl. Br. 34 n.4. But that argument rests on an inapposite case involving a substantive rule promulgated through noticeand-comment rulemaking and claimed to be defective for some other reason. See Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 438 (D.C. Cir. 1982) (holding that agency had not sufficiently evaluated the original rule). By contrast, it would make no sense to permit an agency official to violate notice-and-comment requirements in adopting a rule and then require her successors to go through the very hurdle of those requirements to undo the prior invalid rule.
C. The district court correctly held that the rescission of DACA did not violate the Constitution. 1. The DACA rescission did not violate equal protection.
a. In AADC, the Supreme Court rejected an attempt by a group of aliens to defend against removal by asserting that the Government was discriminating against them based on their First Amendment activity. 525 U.S. at 488-92. The Court began with the principle that “[e]ven in the criminal-law field, a selective prosecution claim is
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a rara avis.” AADC, 525 U.S. at 489 (citing, inter alia, Armstrong, 517 U.S. at 463-65). As the Court reaffirmed, “[b]ecause such claims invade a special province of the Executive—its prosecutorial discretion—we have emphasized that the standard for proving them is particularly demanding, requiring a criminal defendant to introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” Id.
The Supreme Court in AADC then held that an even more restrictive rule than Armstrong’s clear-evidence standard was required when the claim of selective enforcement arises in the immigration context, because the concerns raised by such claims are “greatly magnified.” 525 U.S. at 489-90. The Court observed that the “delay” associated with challenges to immigration enforcement decisions is more harmful because it “permit[s] and prolong[s] a continuing violation of United States law,” especially given that “[p]ostponing justifiable deportation (in the hope that the alien’s status will change . . . or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding.” Id. at 490. The Court also recognized that heightened separation-of-powers concerns arise in this context because inquiring into the motives behind immigration enforcement entails “not merely the disclosure of normal domestic law enforcement priorities and techniques,” but also “the disclosure of foreign-policy objectives and [in some cases, like AADC itself,] foreign-intelligence products and techniques.” Id. at 490-91. Given all this, the Court dismissed “[t]he contention that a violation [of federal law] must be allowed to continue because it has been improperly selected” as
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“not powerfully appealing.” Id. at 491. Accordingly, the Court held that, “[a]s a general matter,” “an alien unlawfully in
this country has no constitutional right to assert selective enforcement as a defense against his deportation.” AADC, 525 U.S. at 488. Although the Court did “not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the . . . considerations [against discriminatory-enforcement claims] can be overcome,” it also did not decide “[w]hether or not there be such exceptions.” Id. at 491.
b. Although it reached the right result, the district court disagreed with the government on the framework under which to analyze plaintiffs’ equal protection claims. The court stated that even though “DACA was promulgated under a theory of prosecutorial discretion, its rescission was not based on an exercise of that discretion.” JA.1508. As already explained, the DACA policy itself was as an act of prosecutorial discretion (whether or not the exercise of that discretion was lawful) and the rescission of that policy reset the agency’s enforcement policies to no longer provide a categorical grant of deferred action to certain individuals. The rescission is thus precisely the kind of selective enforcement decision to which AADC applies, because plaintiffs do not dispute the government’s authority to enforce the immigration laws against them but instead argue that the government has a discriminatory reason for enforcing those laws against them (by declining to renew their deferred action).
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Plaintiffs contend (Br. 41) that the district court erred in applying the standard derived from Kleindienst v. Mandel, 408 U.S. 753 (1972). It is, however, not clear that the court applied Mandel in the sense asserted by plaintiffs. The district court discussed a number of cases for the proposition that courts should be wary of looking behind facially neutral statutes in a variety of contexts, see JA.1509-10, and then came to the reasonable conclusion that plaintiffs here had made nothing like the showing made in International Refugee Assistance Project (IRAP) v. Trump, 883 F.3d 233 (4th Cir.), cert. granted, and judgment vacated Trump v. IRAP, No. 17-1270, 2018 WL 1256938 (U.S. 2018), a showing which the Supreme Court has now deemed insufficient. See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018).
In Trump v. Hawaii the Supreme Court rejected statutory and constitutional challenges to the President’s Proclamation imposing entry restrictions on certain nationals of eight foreign countries. In vacating a preliminary injunction against the Proclamation, the Court reaffirmed that facially neutral immigration policies are subject to only limited, deferential review. 138 S. Ct. at 2419-20. Although the proclamation under review in Trump v. Hawaii specifically concerned the admission of aliens abroad, and thus was reviewed at most for rational basis, the Supreme Court recognized that deferential review may apply “across different contexts and constitutional claims.” Id. at 2419 (citing, among other cases, Rajah v. Mukasey, 544 F.3d 427, 433, 438-39 (2d. Cir. 2008), which concerned a special registration policy for
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aliens from certain countries who were already in the country). The district court correctly applied such deferential review.
Plaintiffs’ reliance on this Court’s decision in Sylvia Development Corp. v. Calvert County, 48 F.3d 810, 829 (4th Cir. 1995), fails to advance their claim. That case— which found no constitutional violation—involved a claim that a zoning law had been applied discriminatorily, not a claim of selective enforcement of immigration law.
c. Analyzed under the proper framework, it is clear that the district court reached the correct result in rejecting plaintiffs’ equal protection claim. A claim that a facially neutral policy like the DACA rescission was motivated by racial animus is insufficient to overcome AADC ’s general bar on discriminatory-motive challenges to immigration-enforcement decisions. See 525 U.S. at 491-92 (holding that even selectively targeting particular aliens on the basis of their First Amendment activity did not rise to the level of the possible exception for “outrageous” discrimination). Virtually any immigration policy is likely to have a disparate impact on aliens of some ethnicity, and thus would be vulnerable to a discriminatory-motive allegation from aliens merely seeking to continue their unlawful presence in this country. Even if all such claims were ultimately proven baseless, the very act of adjudicating them leads precisely to the delay and foreign policy concerns the Court described in AADC. See id. at 490. The district court correctly recognized that with respect to the facially neutral rescission of an immigration-enforcement discretion policy, plaintiffs’ claim of animus—unsupported by anything in the administrative record—was insufficient to
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support an equal protection claim. JA.1508. As the court explained, “[t]he rescission of the DACA program merely fulfills the duty of the executive branch to faithfully enforce the laws passed by Congress.” JA.1511.
At a minimum, if racial discriminatory-motive claims are cognizable in the immigration-enforcement context at all under AADC, they must meet the “particularly demanding” standard applicable in the criminal-enforcement context: plaintiffs must plausibly allege the existence of “clear evidence” of “outrageous” discrimination, thus “displacing the presumption that a [federal enforcement official] has acted lawfully,” before the claim may proceed past the pleadings. AADC, 525 U.S. at 489, 491 (citing Armstrong, 517 U.S. at 463-65). This standard is extremely demanding, and plaintiffs have identified no case where a court has held it to be satisfied. Indeed, several courts of appeals rejected equal protection challenges to a registration requirement for male immigrants from certain (predominantly Muslim) countries—which led to removal for those without lawful status—on the ground that “outrageous” discrimination had not been sufficiently demonstrated. See, e.g., Kandamar v. Gonzales, 464 F.3d 65, 73-74 (1st Cir. 2006); Hadayat v. Gonzalez, 458 F.3d 659, 664-65 (7th Cir 2006).
Plaintiffs’ allegations supporting their equal protection claim (Pl. Br.40-41) consist of statements made by government officials other than the Acting Secretary of Homeland Security, JA.46, 69-72, 76-79, 474; and certain events that plaintiffs
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characterize as “procedural irregularities.” None of these allegations is sufficient to establish an equal protection claim.
As an initial matter, plaintiffs disregard the absence of any statement by the actual decisionmaker—Acting Secretary Duke—that could give rise to an inference of animus. Acting Secretary Duke was the only government official with the legal authority to rescind a DHS policy that DHS had operated for the previous five years, 8 U.S.C. § 1103(a)—regardless of the (undisputed) involvement by the White House. For plaintiffs to succeed, it is the Acting Secretary’s decision that must be infected by discriminatory animus, and the mere fact that her decision was preceded by certain statements of the President cannot ipso facto taint her decision given her independent oath and duty to obey the Constitution.
Moreover, even if the President’s statements are taken on their own terms, they are insufficient. First, nationality, as opposed to ethnicity, is not an invidious classification for purposes of federal immigration law. Rajah, 544 F.3d at 435. And second, most of the statements did not refer to DACA, or indeed any official policy, since they occurred on the campaign trail and preceded the President’s inauguration and oath of office. See JA.69-72. Indeed, as the district court recognized, the
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statements directly related to DACA have largely been favorable to that policy. JA.1510-11.4
Simply put, the statements relied on by plaintiffs do not come close to plausibly alleging clear evidence of discriminatory motive. Indeed, it is utterly implausible that, in deciding whether to retain a policy that affirmatively sanctions the ongoing violation of federal law by nearly 700,000 aliens without lawful status, it was a significant factor that those aliens are predominantly Latino, especially given the serious questions about whether the policy itself was illegal.
Nor do plaintiffs advance their claim by invoking “procedural irregularities.” Plaintiffs entirely fail to draw any causal connection between these supposed irregularities (which were not irregular at all, see, e.g., infra pp. 66-67 (informationsharing policy)) and racial animus. See Pl. Br. 41.
d. Lacking sufficient evidence to carry their burden, Plaintiffs argue that the district court could not properly grant summary judgment on their equal protection claim without permitting them to take discovery. Pl. Br. 18-19.
For the reasons explained above, plaintiffs failed to state a claim that the rescission of DACA violated equal protection, and the district court could therefore
4 The statements by the Attorney General and a White House policy advisor cited in the complaint are also insufficient, see JA.72, as is plaintiffs’ reliance on a general increase in immigration enforcement, JA.76-79. Statements and actions indicating an increase in immigration enforcement simply underscore that the motivation of the agency action challenged here was not racial or ethnic animus, but rather the resetting of agency enforcement priorities.
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properly grant the government’s motion to dismiss. No discovery was warranted for this reason alone, and this Court may affirm on that basis.
Even if this Court were to evaluate the appropriateness of granting summary judgment on this claim, the district court correctly recognized that plaintiffs’ constitutional claims could be decided on the basis of the administrative record. JA.1508. The APA expressly provides that agency action may be set aside as contrary to “constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Accordingly, the APA’s “comprehensive remedial scheme,” Western Radio Servs. Co. v. United States Forest Serv., 578 F.3d 1116, 1122-23 (9th Cir. 2009), for a “person ‘adversely affected’ . . . by agency action,” 5 U.S.C. § 702, including its provisions governing record review, applies to constitutional claims for non-monetary relief against federal agencies and officials. See also Wilkie v. Robbins, 551 U.S. 537, 551-554 (2007) (describing the APA as the remedial scheme for vindicating complaints against “unfavorable agency actions”).
The Supreme Court’s decision in Webster v. Doe, 486 U.S. 592 (1988) (cited at Pl. Br. 44), is not to the contrary. The Court’s reference in that case to “any discovery process which may be instituted” after remand is hardly a holding that the APA’s requirement of record review has no application to constitutional claims. Id. at 604.
Plaintiffs further err in relying on this Court’s statement in Ray Communications, Inc. v. Clear Channel Communications, Inc., 673 F.3d 294, 299 (4th Cir. 2012), that “where the movant fails to fulfill its initial burden of providing admissible evidence of the
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material facts entitling it to summary judgment, summary judgment must be denied, even if no opposing evidentiary matter is presented, for the non-movant is not required to rebut an insufficient showing.” Ray Communications did not involve an APA claim, and here the government met its burden by submitting the administrative record.
Even assuming some discovery might be permitted for constitutional claims under the APA, the district court did not err in granting judgment for the government without discovery in this case. The Supreme Court has addressed when discovery is appropriate in selective enforcement contexts. Indeed, the whole point of Armstrong’s holding that there must be “clear evidence” of discrimination before prosecutorial discretion can be challenged, supra p. 53, was to limit discovery in selective prosecution claims. 517 U.S. at 463-65; see also AADC, 525 U.S. at 489-90 (relying on Armstrong in holding that aliens defending against removal by alleging selective enforcement need not be given access to district court fact-finding procedures). As explained, plaintiffs have not put forth any evidence that DACA was motivated by animus, let alone the kind of “clear evidence” of discriminatory intent required under Armstrong and AADC. The inappropriateness of discovery in this case is further underscored by the breadth of plaintiffs’ discovery requests, see, e.g., JA.1117-22 (asking for all documents and communications within and between DHS, DOJ, “the executive branch,” and “the Trump administration” on a variety of topics). Instead of “clear evidence” of discriminatory intent, plaintiffs asked the district court to permit them to go on a
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highly intrusive fishing expedition of precisely the sort that Armstrong and AADC forbid. The district court quite properly denied the request.
As a final matter, the district court did not, as plaintiffs contend, fail to view the facts in the light most favorable to plaintiffs’ claim. See Pl. Br. 46. In so arguing, plaintiffs confuse factual findings with their legal relevance. For example, plaintiffs set forth as “disputed” the fact that 93% of DACA recipients were Latino. Pl. Br. 17. The government disputed the legal relevance of that fact, to be sure, but the government has never disputed that DACA recipients were predominantly Latino (whatever the precise figure). The same is true of the various statements made by the President that plaintiffs cited in their complaint. See Pl. Br. 46. The district court did not proceed as though the statements were not made, but rather recognized that the statements were legally insufficient to support plaintiffs’ equal protection claim.
2. The DACA rescission did not violate due process. The district court also correctly rejected plaintiffs’ due process challenges to the rescission of DACA. JA.1512-14. a. The DACA guidance could not have been clearer that it did not create any “substantive right, immigration status or pathway to citizenship.” JA.131. As thenSecretary Napolitano explained, “[o]nly the Congress, acting through its legislative authority, can confer these rights.” Id. In the face of this clear language, a subjective “belief of entitlement to a government benefit, no matter how sincerely or reasonably held, does not create a property right.” Gerhart v. Lake County, 637 F.3d 1013, 1020-21
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(9th Cir. 2011) (citing Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)). Plaintiffs try in vain to identify any express commitment on the part of the government to indefinitely maintain the DACA policy. See Pl. Br. 50, 51. But as the district court correctly held, DACA simply created no protected liberty or property interest. JA.1512-13. That alone disposes of plaintiffs’ due process claims.
b. Even assuming a protected interest, the procedural due process claim would still fail. Plaintiffs’ theory is not that individual DACA requests were adjudicated incorrectly (for example, due to factual error) and that notice and a hearing could correct those errors. Instead, plaintiffs claim that DHS cannot alter the DACA policy, even on a prospective basis, without providing individualized notice and hearings to nearly 800,000 recipients. As the district court recognized, however, JA.1512, where a government policy “applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption,” and thus due process does not require individualized pre-deprivation notice. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915); see also Yassini v. Crosland, 618 F.2d 1356, 1359, 1363 (9th Cir. 1980) (per curiam) (rejecting procedural due process challenge to rescission of deferred action policy).
In response to this clear precedent, plaintiffs argue that their complaint contained “specific allegations by specific individuals of the benefits they had lost.” Pl. Br. 51, 52. But due process obviously does not prohibit the rescission of a general policy on a categorical rather than individualized basis, and thus notice and an
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opportunity to be heard on these specific allegations is neither necessary nor appropriate. Plaintiffs further miss the mark in relying on Kapps v. Wing, 404 F.3d 105, 118 (2d Cir. 2005) (cited at Pl. Br. 53), to argue that individualized process may be required even for large numbers of individuals. The fact that notice and a hearing for individual decisions, where otherwise required, cannot be dispensed with merely because of the number of individuals affected does not mean that notice and a hearing are required for the rescission of generally applicable policies.
Plaintiffs’ argument that Bi-Metallic is limited to legislative actions, Pl. Br. 52, finds no support in law or logic. Although the Supreme Court there noted that individuals subject to a general policy may have recourse to political processes, the decision did not require a showing of any particular process. Any time a rule of conduct applies generally, an individual’s “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic, 239 U.S. at 445. The ongoing Congressional and public debates over DACA vividly illustrate this principle.
c. Plaintiffs’ substantive due process claim likewise fails. As the district court correctly held, “[t]he rescission of a policy relating to prosecutorial discretion does not shock the conscience.” JA.1514. “[T]he only thing that has changed,” the court observed “is that deferred status will expire . . . in the absence of action by Congress.” Id. “There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle.” Id. Because plaintiffs’ only attempt to demonstrate
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conscience-shocking behavior hinges on their allegations of animus, see Pl. Br. 54 (citing cases not involving substantive due process), their substantive due process challenge collapses into their flawed equal protection claim, supra Part II.C.1.
d. Although the district court did not separately address plaintiffs’ due process claims with respect to the DACA information-sharing policy, see Pl. Br. 54-55, those claims are no more successful than plaintiffs’ claims challenging the rescission of DACA. The DACA information-sharing policy created no protected property or liberty interest, as it was always expressly subject to change, see infra pp. 66. And plaintiffs have failed to show that any alleged change to the information-sharing policy shocks the conscience or that individualized process was due. The informationsharing policy has not changed, see infra pp. 67, and has, in any event, always been subject to a number of exceptions. III. The District Court Erred in Enjoining the Government from
Changing the Information-Sharing Policy. No other court has accepted the theory advanced by plaintiffs and adopted by the district court that the doctrine of equitable estoppel prevents the government from modifying an information-sharing policy that has been expressly subject to modification since the inception of DACA. This Court should not either, and at a minimum it should vacate the nationwide injunction insofar as it extends beyond the plaintiffs in this case.
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A. The district court erred in holding that the government was subject to equitable estoppel.
1. When the DACA policy was implemented in 2012, DHS published a “frequently asked questions” webpage that included guidance regarding DHS’s policy on the sharing of information provided in connection with DACA requests. The guidance stated that information would be “protected from disclosure to ICE and [Customs and Border Protection (CBP)] for the purpose of immigration enforcement proceedings,” subject to exceptions where the criteria for issuance of a Notice to Appear are satisfied (for example, where national security, public safety, or significant criminal activity interests are implicated), and subject to the caveat that the policy “may be modified, superseded, or rescinded at any time.” DHS DACA FAQ 19; see also id. (explaining that information may be used for certain purposes other than removal); USCIS, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) (Nov. 7, 2011), https://go.usa.gov/xncPK (last visited July 30, 2018).
Nothing in the Acting Secretary’s memorandum changes that approach—in fact, the memorandum makes no reference to information sharing at all, a point the district court recognized, JA.1505 n.24. And DHS made clear in guidance issued after the rescission that “[t]his 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 winddown of the DACA policy.” USCIS, Guidance on Rejected DACA Requests Q5 (Dec. 27, 2017), www.uscis.gov/daca2017/guidance-rejected-daca2017 (emphasis added) (last
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visited July 30, 2018). In fact, even the district court did not conclude that the policy had changed; rather it faulted the government for being “unable to provide any assurance the Government would not make changes” in the future. JA.1516.
2.a. The district court erred in holding that plaintiffs were entitled to a permanent injunction on equitable estoppel grounds. The Supreme Court has repeatedly indicated that estoppel against the government “may only be justified, if ever, in the presence of affirmative misconduct by government agents.” Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) (collecting cases). But the district court did not find any affirmative misconduct, or even that the policy had changed in any way. Instead, the court speculated that “it is possible that the government, having induced these immigrants to share personal information under the guise of immigration protections, could now use that same information to track and remove them,” which “potentially would be ‘affirmative misconduct.’ ” JA.1516.
The district court’s speculation fails to satisfy the requirement of “affirmative misconduct” for two independent reasons. First, and most obviously, the policy has not changed, and the court did not find that it had. Unquantified “potential[]” for future action cannot establish the current “presence” of actual misconduct. JA.1516; see Dawkins, 318 F.3d at 611. Indeed, given the lack of a finding concerning any current or even imminent change of policy, this claim fails to satisfy the requirements of both standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992), and irreparable harm, eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
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Second, the government did not “promise” that information obtained through DACA requests would never, under any circumstances, be used for immigration enforcement or that the policy would not change. Rather, DHS explained that information would be “protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings,” subject to exceptions where the criteria for issuance of a Notice to Appear are satisfied. JA.1011. And this was subject to the caveat that the policy “may be modified, superseded, or rescinded at any time without notice,” id., a fact the district court acknowledged yet failed to address in its analysis, JA.1532-33. Thus, even if the government changed its policy at a future date, DHS’s statements regarding the prior policy would not be converted into “misrepresentation[s]” for purposes of equitable estoppel, Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639, 646 (4th Cir. 2006), let alone “affirmative misconduct,” Dawkins, 318 F.3d at 611-12.
b. As a more fundamental matter, the district court erred because an equitable estoppel claim is not available against the government, even assuming the typical elements of such a claim might be demonstrated.
Only Congress can create a “private right[] of action to enforce federal law.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Yet Congress has created no applicable right of action for a freestanding equitable estoppel cause of action against the government. The Supreme Court has acknowledged that the arguments in favor of barring equitable estoppel against the government are “substantial,” while declining to
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rule on the issue. Heckler v. Community Health Servs., 467 U.S. 51, 60 (1984); OPM v. Richmond, 496 U.S. 414, 423 (1990). Courts of appeals have similarly recognized the strong reasons for reticence in applying estoppel against the government, particularly in its exercise of policymaking discretion. See United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (“[T]he government should not be unduly hindered from changing its position if that shift is the result of a change in public policy.”). And, at most, application of the doctrine of estoppel could be “justified only where ‘it does not interfere with underlying government policies.’ ” Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984). The district court’s injunction here does just that—it constrains DHS’s enforcement and policymaking discretion with respect to whether and how to use information it possesses in connection with immigration proceedings. The injunction should be vacated.
B. The district court erred in granting injunctive relief that was nationwide in scope.
The district court’s injunction must be vacated for an additional reason: in granting nationwide relief, the district court violated the requirements of Article III and equity. The injunction prohibits the changing of an information policy as it applies to hundreds of thousands of DACA recipients who are not parties before the court and who do not need to be covered to provide plaintiffs here with complete relief.
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1. To establish Article III standing, a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). “[S]tanding is not dispensed in gross,” and the plaintiff must establish standing “separately for each form of relief sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
The Supreme Court recently reaffirmed these principles in Gill v. Whitford, 138 S. Ct. 1916 (2018), concluding that a set of voters had not demonstrated standing to challenge alleged statewide partisan gerrymandering of Wisconsin legislative districts. The plaintiffs alleged that voters who shared their political views were disadvantaged by the way district lines were drawn statewide, and that they were therefore entitled to challenge the entire state map. Id. at 1924-25. But the Court concluded that a “plaintiff’s remedy must be ‘limited to the inadequacy that produced [his] injury in fact,’ ” and that a voter’s “harm [from] the dilution of [his] vote[] . . . is district specific” because it “results from the boundaries of the particular district in which he resides.” Id. at 1930 (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)). Accordingly, the Court held that “the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district,” not the broader remedy of “restructuring all of the State’s legislative districts.” Id. at 1930-31. And the Court “caution[ed]” that, on remand, any “remedy must be tailored to redress the plaintiff ’s particular injury.”
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Id. at 1934; accord id. at 1933 (“The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”). Other courts have recognized the same. See, e.g., McKenzie v. City of Chicago, 118 F.3d 552, 555 & n.* (7th Cir. 1997).
2. Even apart from Article III’s requirements, fundamental principles of equity support the same rule. The Supreme Court has cautioned that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” before the court. Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994); Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 428-37 (2017) (explaining the lack of historical basis for nationwide injunctions).
This Court applied that teaching to vacate a nationwide injunction in Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001). There, the district court had issued a nationwide injunction preventing the Federal Election Commission from enforcing a challenged regulation “against any party anywhere in the United States.” Id. at 393. This Court explained that an injunction covering the plaintiff alone would “adequately protec[t] it,” and that preventing the Commission from enforcing the regulation “against other parties in other circuits does not provide any additional relief ” to the prevailing plaintiff. Id. The Court also rejected the argument that a nationwide injunction was necessary to set aside unlawful agency action, noting that
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“[n]othing in the language of the APA” requires the exercise of “such far-reaching power.” Id. at 394.
Moreover, nationwide injunctions “take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring); see also Virginia Soc’y for Life, 263 F.3d at 393. They also create an inequitable “one-wayratchet” under which any prevailing plaintiff obtains relief on behalf of all others, but a victory by the government would not preclude other potential plaintiffs from “run[ning] off to the 93 other districts for more bites at the apple.” City of Chicago v. Sessions, 888 F.3d 272, 298 (7th Cir. 2018) (Manion, J., dissenting in part), reh’g en banc granted, Order of June 4, 2018 (No. 17-05270) (vacating panel judgment “insofar as it sustained the district court’s decision to extend preliminary relief nationwide”); cf. United States v. Mendoza, 464 U.S. 154, 158-62 (1984) (holding that non-parties to an adverse decision against the federal government may not invoke the decision to preclude the government from continuing to defend the issue in subsequent litigation). Here, there are multiple cases across the country challenging the rescission of the DACA policy and the alleged change to the information-sharing policy. Each court should adjudicate the claims of the plaintiffs before it, and the plaintiffs in other cases should not benefit from the government’s loss in this case on the information-
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sharing policy, just as they are not bound by the government’s win here on the DACA rescission.
CONCLUSION The district court’s permanent injunction should be vacated, and its grant of summary judgment to the government should be affirmed.
Respectfully submitted, CHAD A. READLER
Acting Assistant Attorney General ROBERT K. HUR
United States Attorney HASHIM M. MOOPPAN
Deputy Assistant Attorney General s/ Mark B. Stern MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-2000
August 2018
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STATEMENT REGARDING ORAL ARGUMENT This case concerns important questions regarding the exercise of the government’s enforcement discretion prerogatives and the scope of judicial review. Moreover, the district court entered a nationwide injunction permanently barring the Department of Homeland Security from altering its information-sharing policy. The government believes that oral argument could assist the court in resolving these crossappeals and respectfully requests oral argument.

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 17,999 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Mark B. Stern Mark B. Stern

CERTIFICATE OF SERVICE I hereby certify that on August 1, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Mark B. Stern Mark B. Stern

ADDENDUM

TABLE OF CONTENTS 5 U.S.C. § 701..........................................................................................................................A1 6 U.S.C. § 202..........................................................................................................................A2 8 U.S.C. § 1252........................................................................................................................A3 8 C.F.R. § 274a.12(c) ........................................................................................................... A11

5 U.S.C. § 701 (a) This chapter 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. (b) For the purpose of this chapter-(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include-(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia; (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; (F) courts martial and military commissions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former section 1641(b)(2), of title 50, appendix;1 and (2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency action” have the meanings given them by section 551 of this title.
A1

6 U.S.C. § 202 The Secretary shall be responsible for the following: (1) Preventing the entry of terrorists and the instruments of terrorism into the United States. (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry. (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 251 of this title takes effect. (4) Establishing and administering rules, in accordance with section 236 of this title, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States. (5) Establishing national immigration enforcement policies and priorities. (6) Except as provided in part C of this subchapter, administering the customs laws of the United States. (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 231 of this title. (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.
A2

8 U.S.C. § 1252
(a) Applicable provisions (1) General orders of removal Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) and except that the court may not order the taking of additional evidence under section 2347(c) of such title. (2) Matters not subject to judicial review (A) Review relating to section 1225(b)(1) Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review-(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title, (ii) except as provided in subsection (e), a decision by the Attorney General to invoke the provisions of such section, (iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or (iv) except as provided in subsection (e), procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title. (B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
A3

(C) Orders against criminal aliens Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (D) Judicial review of certain legal claims Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. (3) Treatment of certain decisions No alien shall have a right to appeal from a decision of an immigration judge which is based solely on a certification described in section 1229a(c)(1)(B) of this title. (4) Claims under the United Nations Convention Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e). (5) Exclusive means of review Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).
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(b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1), the following requirements apply: (1) Deadline The petition for review must be filed not later than 30 days after the date of the final order of removal. (2) Venue and forms The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. The record and briefs do not have to be printed. The court of appeals shall review the proceeding on a typewritten record and on typewritten briefs. (3) Service (A) In general The respondent is the Attorney General. The petition shall be served on the Attorney General and on the officer or employee of the Service in charge of the Service district in which the final order of removal under section 1229a of this title was entered. (B) Stay of order Service of the petition on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise. (C) Alien's brief The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result. (4) Scope and standard for review Except as provided in paragraph (5)(B)-(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, (B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and
A5

(D) the Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion.
No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. (5) Treatment of nationality claims (A) Court determination if no issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim. (B) Transfer if issue of fact If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28. (C) Limitation on determination The petitioner may have such nationality claim decided only as provided in this paragraph. (6) Consolidation with review of motions to reopen or reconsider When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. (7) Challenge to validity of orders in certain criminal proceedings (A) In general If the validity of an order of removal has not been judicially decided, a defendant in a criminal proceeding charged with violating section 1253(a) of this title may challenge the validity of the order in the criminal proceeding only by filing a separate motion before trial. The district court, without a jury, shall decide the motion before trial.
A6

(B) Claims of United States nationality If the defendant claims in the motion to be a national of the United States and the district court finds that-(i) no genuine issue of material fact about the defendant's nationality is presented, the court shall decide the motion only on the administrative record on which the removal order is based and the administrative findings of fact are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole; or (ii) a genuine issue of material fact about the defendant's nationality is presented, the court shall hold a new hearing on the nationality claim and decide that claim as if an action had been brought under section 2201 of Title 28.
The defendant may have such nationality claim decided only as provided in this subparagraph. (C) Consequence of invalidation If the district court rules that the removal order is invalid, the court shall dismiss the indictment for violation of section 1253(a) of this title. The United States Government may appeal the dismissal to the court of appeals for the appropriate circuit within 30 days after the date of the dismissal. (D) Limitation on filing petitions for review The defendant in a criminal proceeding under section 1253(a) of this title may not file a petition for review under subsection (a) during the criminal proceeding. (8) Construction This subsection-(A) does not prevent the Attorney General, after a final order of removal has been issued, from detaining the alien under section 1231(a) of this title; (B) does not relieve the alien from complying with section 1231(a)(4) of this title and section 1253(g)1 of this title; and (C) does not require the Attorney General to defer removal of the alien. (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361
A7

or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. (c) Requirements for petition A petition for review or for habeas corpus of an order of removal-(1) shall attach a copy of such order, and (2) shall state whether a court has upheld the validity of the order, and, if so, shall state the name of the court, the date of the court's ruling, and the kind of proceeding. (d) Review of final orders A court may review a final order of removal only if-(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order. (e) Judicial review of orders under section 1225(b)(1) (1) Limitations on relief Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may-(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in a subsequent paragraph of this subsection, or (B) certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized under a subsequent paragraph of this subsection. (2) Habeas corpus proceedings Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of-(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title.
A8

(3) Challenges on validity of the system (A) In general Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of-(i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law. (B) Deadlines for bringing actions Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented. (C) Notice of appeal A notice of appeal of an order issued by the District Court under this paragraph may be filed not later than 30 days after the date of issuance of such order. (D) Expeditious consideration of cases It shall be the duty of the District Court, the Court of Appeals, and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any case considered under this paragraph. (4) Decision In any case where the court determines that the petitioner-(A) is an alien who was not ordered removed under section 1225(b)(1) of this title, or (B) has demonstrated by a preponderance of the evidence that the alien is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, the court may order no remedy or relief other than to require that the petitioner be provided a hearing in accordance with section 1229a of this title. Any alien who is provided a hearing under section 1229a of this title pursuant to this paragraph may thereafter obtain judicial review of any resulting final order of removal pursuant to subsection (a)(1). (5) Scope of inquiry In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was
A9

issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal. (f) Limit on injunctive relief (1) In general Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. (2) Particular cases Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law. (g) Exclusive jurisdiction Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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.
A10

8 C.F.R. § 274a.12
(c) Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. USCIS, in its discretion, may establish a specific validity period for an employment authorization document, which may include any period when an administrative appeal or judicial review of an application or petition is pending. (1) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (A–1 or A–2) pursuant to 8 CFR 214.2(a)(2) and who presents an endorsement from an authorized representative of the Department of State; (2) An alien spouse or unmarried dependent son or daughter of an alien employee of the Coordination Council for North American Affairs (E–1) pursuant to § 214.2(e) of this chapter; (3) A nonimmigrant (F–1) student who: (i)(A) Is seeking pre-completion practical training pursuant to 8 CFR 214.2(f)(10)(ii)(A)(1) and (2); (B) Is seeking authorization to engage in up to 12 months of post-completion Optional Practical Training (OPT) pursuant to 8 CFR 214.2(f)(10)(ii)(A)(3); or (C) Is seeking a 24–month OPT extension pursuant to 8 CFR 214.2(f)(10)(ii)(C); (ii) Has been offered employment under the sponsorship of an international organization within the meaning of the International Organization Immunities Act (59 Stat. 669) and who presents a written certification from the international organization that the proposed employment is within the scope of the organization's sponsorship. The F–1 student must also present a Form I–20 ID or SEVIS Form I– 20 with employment page completed by DSO certifying eligibility for employment; or (iii) Is seeking employment because of severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I–20 ID and Form I–538 (for non–SEVIS schools), or SEVIS Form I–20 with employment page completed by the DSO certifying eligibility, and any other supporting materials such as affidavits which further detail the unforeseen economic circumstances that require the student to seek employment authorization. (4) An alien spouse or unmarried dependent child; son or daughter of a foreign government official (G–1, G–3 or G–4) pursuant to 8 CFR 214.2(g) and who presents an endorsement from an authorized representative of the Department of State;
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(5) An alien spouse or minor child of an exchange visitor (J–2) pursuant to § 214.2(j) of this chapter; (6) A nonimmigrant (M–1) student seeking employment for practical training pursuant to 8 CFR 214.2(m) following completion of studies. The alien may be employed only in an occupation or vocation directly related to his or her course of study as recommended by the endorsement of the designated school official on the I– 20 ID; (7) A dependent of an alien classified as NATO–1 through NATO–7 pursuant to § 214.2(n) of this chapter; (8) An alien who has filed a complete application for asylum or withholding of deportation or removal pursuant to 8 CFR part 208, whose application: (i) Has not been decided, and who is eligible to apply for employment authorization under § 208.7 of this chapter because the 150-day period set forth in that section has expired. Employment authorization may be granted according to the provisions of § 208.7 of this chapter in increments to be determined by the Commissioner and shall expire on a specified date; or (ii) Has been recommended for approval, but who has not yet received a grant of asylum or withholding or deportation or removal; (9) An alien who has filed an application for adjustment of status to lawful permanent resident pursuant to part 245 of this chapter. For purposes of section 245(c)(8) of the Act, an alien will not be deemed to be an “unauthorized alien” as defined in section 274A(h)(3) of the Act while his or her properly filed Form I–485 application is pending final adjudication, if the alien has otherwise obtained permission from the Service pursuant to 8 CFR 274a.12 to engage in employment, or if the alien had been granted employment authorization prior to the filing of the adjustment application and such authorization does not expire during the pendency of the adjustment application. Upon meeting these conditions, the adjustment applicant need not file an application for employment authorization to continue employment during the period described in the preceding sentence; (10) An alien who has filed an application for suspension of deportation under section 244 of the Act (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the Act, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Pub.L. 104–208 (110 Stat. 3009–625) (as amended by the Nicaraguan Adjustment and Central American Relief Act (NACARA)), title II of Pub.L. 105–100
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(111 Stat. 2160, 2193) and whose properly filed application has been accepted by the Service or EOIR; <Text of subsection (c)(11) effective until March 14, 2018.> (11) An alien paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest pursuant to § 212.5 of this chapter; <Text of subsection (c)(11) effective March 14, 2018.> (11) Except as provided in paragraphs (b)(37) and (c)(34) of this section and § 212.19(h)(4) of this chapter, an alien paroled into the United States temporarily for urgent humanitarian reasons or significant public benefit pursuant to section 212(d)(5) of the Act. (12) An alien spouse of a long-term investor in the Commonwealth of the Northern Mariana Islands (E–2 CNMI Investor) other than an E–2 CNMI investor who obtained such status based upon a Foreign Retiree Investment Certificate, pursuant to 8 CFR 214.2(e)(23). An alien spouse of an E–2 CNMI Investor is eligible for employment in the CNMI only; (13) [Reserved] (14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment; (15) [Reserved] (16) Any alien who has filed an application for creation of record of lawful admission for permanent residence pursuant to part 249 of this chapter; (17) A nonimmigrant visitor for business (B–1) who: (i) Is a personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States as a nonimmigrant defined under sections 101(a)(15)(B), (E), (F), (H), (I), (J), (L) or section 214(e) of the Act. The personal or domestic servant shall have a residence abroad which he or she has no intention of abandoning and shall demonstrate at least one year's experience as a personal or domestic servant. The nonimmigrant's employer shall demonstrate that the employer/employee relationship has existed for at least one year prior to the employer's admission to the United States; or, if the employer/employee relationship existed for less than one year, that the employer has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the employer's admission to the United States;
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(ii) Is a domestic servant of a United States citizen accompanying or following to join his or her United States citizen employer who has a permanent home or is stationed in a foreign country, and who is visiting temporarily in the United States. The employer/employee relationship shall have existed prior to the commencement of the employer's visit to the United States; or (iii) Is an employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to classification under section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality. (18) An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following: (i) The existence of economic necessity to be employed; (ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and (iii) The anticipated length of time before the alien can be removed from the United States. (19) An alien applying for Temporary Protected Status pursuant to section 244 of the Act shall apply for employment authorization only in accordance with the procedures set forth in part 244 of this chapter. (20) Any alien who has filed a completed legalization application pursuant to section 210 of the Act (and part 210 of this chapter). (21) A principal nonimmigrant witness or informant in S classification, and qualified dependent family members. (22) Any alien who has filed a completed legalization application pursuant to section 245A of the Act (and part 245a of this chapter). Employment authorization shall be granted in increments not exceeding 1 year during the period the application is
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pending (including any period when an administrative appeal is pending) and shall expire on a specified date. (23) [Reserved by 76 FR 53796] (24) An alien who has filed an application for adjustment pursuant to section 1104 of the LIFE Act, Public Law 106–553, and the provisions of 8 CFR part 245a, Subpart B of this chapter. (25) Any alien in T–2, T–3, T–4, T–5, or T–6 nonimmigrant status, pursuant to 8 CFR 214.11, for the period in that status, as evidenced by an employment authorization document issued by USCIS to the alien. (26) An H–4 nonimmigrant spouse of an H–1B nonimmigrant described as eligible for employment authorization in 8 CFR 214.2(h)(9)(iv). (27) to (33) [Reserved] <Text of subsection (c)(34) added by 82 FR 5289, effective March 14, 2018, as amended by 82 FR 31887.> (34) A spouse of an entrepreneur parolee described as eligible for employment authorization in § 212.19(h)(3) of this chapter. (35) An alien who is the principal beneficiary of a valid immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act described as eligible for employment authorization in 8 CFR 204.5(p). (36) A spouse or child of a principal beneficiary of a valid immigrant petition under section 203(b)(1), 203(b)(2) or 203(b)(3) of the Act described as eligible for employment authorization in 8 CFR 204.5(p).
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 USCA4 Appeal: 18-1521 Doc: 60

Filed: 05/17/2019 Pg: 1 of 60

PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1521
CASA DE MARYLAND; COALITION FOR HUMANE IMMIGRANT RIGHTS (CHIRLA); FAIR IMMIGRATION MOVEMENT (FIRM); ONE AMERICA; PROMISE ARIZONA; MAKE THE ROAD PENNSYLVANIA; MICHIGAN UNITED; ARKANSAS UNITED COMMUNITY COALITION; JUNTA FOR PROGRESSIVE ACTION, INC.; ANGEL AGUILUZ; ESTEFANY RODRIGUEZ; HEYMI ELVIR MALDONADO; NATHALY URIBE ROBLEDO; ELISEO MAGES; JESUS EUSEBIO PEREZ; JOSUE AGUILUZ; MISSAEL GARCIA; JOSE AGUILUZ; MARICRUZ ABARCA; ANNABELLE MARTINES HERRA; MARIA JOSELINE CUELLAR BALDELOMAR; BRENDA MORENO MARTINEZ; LUIS AGUILAR; J.M.O., a minor child; ADRIANA GONZALES MAGOS, next of friend to J.M.O.; A.M., a minor child; ISABEL CRISTINA AGUILAR ARCE, next of friend to A.M.,
Plaintiffs - Appellants,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CUSTOMS AND BORDER PROTECTION; DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and Immigration Services; RONALD D. VITIELLO, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement; KEVIN K. MCALEENAN, in his official capacity in his official capacity as Acting Commissioner of Custom and Border Protection; UNITED STATES OF AMERICA,
Defendants - Appellees.

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No. 18-1522

CASA DE MARYLAND; COALITION FOR HUMANE IMMIGRANT RIGHTS (CHIRLA); FAIR IMMIGRATION MOVEMENT (FIRM); ONE AMERICA; PROMISE ARIZONA; MAKE THE ROAD PENNSYLVANIA; MICHIGAN UNITED; ARKANSAS UNITED COMMUNITY COALITION; JUNTA FOR PROGRESSIVE ACTION, INC.; ANGEL AGUILUZ; ESTEFANY RODRIGUEZ; HEYMI ELVIR MALDONADO; NATHALY URIBE ROBLEDO; ELISEO MAGES; JESUS EUSEBIO PEREZ; JOSUE AGUILUZ; MISSAEL GARCIA; JOSE AGUILUZ; MARICRUZ ABARCA; ANNABELLE MARTINES HERRA; MARIA JOSELINE CUELLAR BALDELOMAR; BRENDA MORENO MARTINEZ; LUIS AGUILAR; J.M.O., a minor child; ADRIANA GONZALES MAGOS, next of friend to J.M.O.; A.M., a minor child; ISABEL CRISTINA AGUILAR ARCE, next of friend to A.M.,
Plaintiffs - Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CUSTOMS AND BORDER PROTECTION; DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; L. FRANCIS CISSNA, in his official capacity as Director of U.S. Citizenship and Immigration Services; RONALD D. VITIELLO, in his official capacity as Acting Director of U.S. Immigration and Customs Enforcement; KEVIN K. MCALEENAN, in his official capacity in his official capacity as Acting Commissioner of Custom and Border Protection; UNITED STATES OF AMERICA,
Defendants - Appellants.

Appeals from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:17-cv-02942-RWT)

Argued: December 11, 2018 2

Decided: May 17, 2019

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Before KING, DIAZ, and RICHARDSON, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded by published opinion. Judge Diaz wrote the majority opinion, in which Judge King joined. Judge Richardson wrote an opinion concurring in part and dissenting in part.
ARGUED: John A. Freedman, Emily Newhouse Dillingham, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellants/Cross-Appellees. Hashim M. Mooppan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees/Cross-Appellants. ON BRIEF: Elizabeth J. Bower, Kevin B. Clark, Priya R. Aiyar, WILLKIE FARR & GALLAGHER LLP, Washington, D.C.; Dennis A. Corkery, WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C.; Ajmel A. Quereshi, HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Appellants/Cross-Appellees. Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Abby C. Wright, Thomas Pulham, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees/Cross-Appellants.

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DIAZ, Circuit Judge: In 2012, the Secretary of Homeland Security established the Deferred Action for
Childhood Arrivals (“DACA”) policy. Under this policy, certain noncitizens who came to the United States as children could receive deferred action—a decision forbearing their removal from the country. Hundreds of thousands of individuals, including those who appear as Plaintiffs in these appeals, applied for and received grants of deferred action under DACA.
In 2017, the Acting Secretary of Homeland Security rescinded DACA, which prompted a flurry of lawsuits across the country challenging the action. Plaintiffs in these appeals (a group of individuals and organizations) allege that the government’s decision to rescind DACA (and its changes to policies governing the use of information provided by DACA applicants) violates the Fifth Amendment to the U.S. Constitution, as well as the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., and common law principles of estoppel.
On the government’s motion for summary judgment, the district court determined that Plaintiffs’ challenges were subject to judicial review, that the rescission of DACA and changes to the government’s policies on use of DACA applicant information did not violate the APA, that the constitutional claims were without merit, and that DACA’s rescission did not violate principles of estoppel. The court, however, ordered the government (on grounds of estoppel) to comply with the policies promulgated in 2012 on the use of information provided by DACA applicants and enjoined it from altering these policies.
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As we explain, we agree with the district court that Plaintiffs’ challenges are subject to judicial review. We also agree with the district court that the government’s decision to rescind DACA did not require notice and comment under the APA. But the decision nonetheless violated the APA because—on the administrative record before us—it was not adequately explained and thus was arbitrary and capricious. We also conclude that the district court erred in ordering the government to comply with its policies promulgated in 2012 on the use of information provided by DACA applicants and enjoining it from altering those policies.
Given our resolution, we decline, under the doctrine of constitutional avoidance, to decide whether Plaintiffs’ Fifth Amendment rights were violated. Nor do we address Plaintiffs’ remaining arguments challenging the district court’s grant of summary judgment.
I. A. Before turning to the record material, some context is in order. The Secretary of Homeland Security is “charged with the administration and enforcement” of the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1103(a)(1). One of the enforcement tools available under the INA is the removal of aliens from the United States. “Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United
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States, 567 U.S. 387, 396 (2012); see 8 U.S.C. §§ 1182(a), 1227(a) (listing classes of
deportable and inadmissible aliens).
Because of the “practical fact,” however, that the government can’t possibly
remove all such aliens, the Secretary has discretion to prioritize the removal of some and
to deprioritize the removal of others. Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015);
see 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with “[e]stablishing
national immigration enforcement policies and priorities”). One form of discretion the
government exercises is deferred action, which “is a decision by Executive Branch
officials not to pursue deportation proceedings against an individual or class of
individuals otherwise eligible for removal from this country.” Regents of the Univ. of
Cal. v. DHS, 908 F.3d 476, 487 (9th Cir. 2018), petition for cert. filed, 87 U.S.L.W. 3201
(U.S. Nov. 5 & 19, 2018) (No. 18-587).
Immigration authorities have granted deferred action and related forms of relief
from deportation or removal since at least the early 1960s. See id. at 487-89; The
Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens
Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. ____, 2014 WL 10788677, at *10-13 (Nov. 19, 2014) (“2014 OLC Opinion”)1
1 The Office of Legal Counsel, or OLC, is an office within the U.S. Department of Justice that drafts legal opinions of the Attorney General and provides its own written opinions and other advice in response to requests from various agencies within the executive branch. See 28 U.S.C. § 512 (providing that agency heads may seek legal advice from the Attorney General); 28 C.F.R. § 0.25 (delegating Attorney General’s authority to render legal advice to OLC); “Office of Legal Counsel,” The United States Department of Justice, https://www.justice.gov/olc (saved as ECF opinion attachment). (Continued)
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(addressing the Department’s practices of granting deferred action ad hoc and through broad policies making relief from removal available to particular groups of aliens). The Supreme Court also has recognized deferred action by name, describing it as the executive branch’s “regular practice . . . of exercising . . . discretion for humanitarian reasons or simply for its own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 484 (1999).
B. Turning now to the record material, the essential undisputed facts are as follows. To ensure government resources were not spent on the “low priority cases” of “certain young people who were brought to [the United States] as children and know only this country as home,” J.A. 129, then Secretary of Homeland Security Janet Napolitano announced in a June 15, 2012, memorandum the policy that has become known as DACA. The DACA Memo made renewable two-year terms of deferred action from removal and authorization for employment available to individuals who came to the United States as children, satisfied certain other eligibility criteria,2 and passed background checks.

Although not binding on courts, OLC opinions “reflect[] the legal position of the executive branch” and “are generally viewed as providing binding interpretive guidance for executive agencies.” United States v. Arizona, 641 F.3d 339, 385 n.16 (9th Cir. 2011) (internal quotation marks omitted) (Bea, J., concurring in part and dissenting in part), aff’d in part, rev’d in part, 567 U.S. 387 (2012).
2 In its original form, deferred action was available to individuals who were under age 16 when they came to the United States, were not above age 30, had continuously (Continued)
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To be considered for deferred action under DACA, applicants had to submit to biometric screening and provide extensive personal information to the Department of Homeland Security. The Department informed applicants that the information provided was “protected from disclosure . . . for the purpose of immigration enforcement proceedings” unless the requestor met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal proceedings.3 J.A. 1004. The Department warned, however, that these policies could be “modified, superseded, or rescinded at any time without notice” and were “not intended to” and did not “create any right or benefit, substantive or procedural, enforceable at law by any party.” Id.
The DACA Memo made clear that it “confer[red] no substantive right, immigration status[,] or pathway to citizenship.” J.A. 131. DACA recipients, however, were eligible to receive a host of other benefits under preexisting statutes and regulations, including advance parole allowing reentry into the United States after travel abroad, social security benefits, and certain forms of public assistance. See 8 U.S.C. §§ 1182(d)(5)(A), 1611(b)(1), 1621(b)(1), (d); 8 C.F.R. §§ 1.3(a)(4)(vi), 212.5. DACA

resided in the United States for at least five years preceding June 15, 2012, and were present in the country on June 15, 2012, and satisfied certain other requirements relative to public safety and education or military service.
3 Separately, the Department noted that the information provided could be shared with national security and law enforcement agencies “for purposes other than removal.” J.A. 1004.
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recipients also were eligible to receive employment authorization on a showing of economic necessity. See 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14).
In November 2014, then Secretary of Homeland Security Jeh Johnson announced a separate deferred action policy for certain parents of United States citizens and lawful permanent residents that became known as Deferred Action for Parents of Americans (“DAPA”).4 The DAPA memorandum also expanded DACA by (1) extending the deferred action and employment authorization terms from two to three years; (2) removing the “age cap” that previously excluded certain individuals from DACA eligibility; and (3) reducing the period of time that someone needed to be physically present in the United States to be eligible for DACA. See J.A. 167-68.
A coalition of states led by Texas sued to block implementation of the DAPA policy (and its proposed expansions to DACA) on the grounds that it violated the APA and the Take Care Clause of the Constitution, U.S. Const. art. II, § 3 (the “Texas litigation”). See Texas v. United States, 86 F. Supp. 3d 591, 604 & n.1, 607 (S.D. Tex. 2015). The district court in that case granted injunctive relief, id. at 671-72, 677-78 & n.111, and the Fifth Circuit affirmed, Texas v. United States, 809 F.3d 134, 178-79, 186,

4 The 2014 OLC Opinion concluded that DAPA “would constitute a permissible exercise of [the Department of Homeland Security]’s enforcement discretion under the INA.” J.A. 162; 2014 WL 10788677, at *23. While the opinion doesn’t directly address the Department’s authority to implement DACA, it does recount that, before DACA was announced, the OLC had “orally advised” the Department that the policy would be permissible “provided that immigration officials retained discretion to evaluate each application on an individualized basis.” J.A. 149 n.8; 2014 WL 10788677, at *13 n.8.
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188 (5th Cir. 2015). The Supreme Court affirmed the Fifth Circuit’s judgment by an
equally divided vote. United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).
In June 2017 (approximately five months after the Trump administration took
office), then Secretary of Homeland Security John Kelly rescinded DAPA but left in
place DACA and the deferred action relief and employment authorizations granted
between the issuance of the DAPA Memo and the district court’s decision in the Texas
litigation.
On September 4, 2017, Attorney General Jefferson Sessions wrote to then Acting
Secretary Elaine Duke, advising her to rescind DACA. According to the Attorney
General:
DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The related . . . DAPA . . . policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. . . . Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.[5]
In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process.
5 Plaintiffs in the Texas litigation had written to General Sessions in June 2017, requesting that the Secretary of Homeland Security rescind DACA and prohibit new grants and renewals of deferred action. The letter warned that, if the Executive Branch failed to so act, plaintiffs there would amend their complaint to challenge DACA.
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J.A. 379 (internal citations omitted). The next day, Acting Secretary Duke rescinded DACA and instructed Department
personnel to “wind-down” the policy. J.A. 380, 383. The Secretary’s Rescission Memo recounts in a “Background” section the DACA and DAPA policies, the Texas litigation, Secretary Kelly’s rescission of DAPA, the letter to Attorney General Sessions from the plaintiffs in the Texas litigation, and General Sessions’s September 4 letter. The Rescission Memo then states:
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017[,] letter from the Attorney General, it is clear that the June 15, 2012[,] DACA program should be terminated. J.A. 383. The Rescission Memo—which issued without notice or an opportunity for public comment—did not end DACA outright. Rather, it allowed for a case-by-case basis adjudication of initial applications for deferred action and employment authorization accepted by September 5, 2017, and renewal requests accepted by October 5, 2017, from current DACA beneficiaries whose benefits would expire between September 5, 2017, and March 5, 2018. The Memo stated that the Department would not terminate existing grants of deferred action and employment authorization under DACA “solely based on the directives” in the Memo and would “generally honor” approved applications for advanced parole. Id. But it made clear that the Department would reject all other DACA applications, including initial applications filed after September 5, 2017, and all pending
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and future applications for advance parole under DACA. Id. The Memo, however, explicitly placed “no limitations” on the Department’s “otherwise lawful enforcement . . . prerogatives.” J.A. 384.
The Department also announced that once an individual’s deferred action under DACA expired, information provided by applicants would not be “proactively provided to [law enforcement agencies] for the purpose of immigration enforcement proceedings” unless the requestor met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal proceedings. J.A. 1142. For individuals whose pending DACA requests were denied, the announcement stated that “[g]enerally, information provided in DACA requests will not be proactively provided to other law enforcement entities . . . for the purpose of immigration enforcement proceedings” unless the requestor posed “a risk to national security or public safety” or met criteria for commencement of removal proceedings or referral to U.S. Immigration and Customs Enforcement for a determination whether to commence removal proceedings. J.A. 1143.
Nearly 800,000 individuals have received deferred action under DACA since its inception.
C. Plaintiffs’ complaint raises a host of challenges to the government’s decision to rescind DACA. First, the complaint alleges that the rescission is a substantive rule and thus requires notice-and-comment rulemaking under the APA. Next, it asserts that the government’s decisions to rescind DACA and change the way the government proposed
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to share personal information collected from DACA applicants were arbitrary, capricious, and contrary to law, in violation of the APA, and violated the substantive and procedural due process protections of the Fifth Amendment. Plaintiffs also allege that the decision to rescind DACA violates the equal protection guarantee of the Fifth Amendment. Finally, Plaintiffs say that the government should be equitably estopped from rescinding DACA or using information provided by DACA applicants for immigration enforcement purposes beyond those first announced in 2012, when the government’s informationsharing policies were first implemented.
The district court granted partial summary judgment to the government. The court found (contrary to the government’s contention) that Plaintiffs’ claims were justiciable. Casa De Maryland v. DHS, 284 F. Supp. 3d 758, 768-71 (D. Md. 2018). But on the merits, the court determined that DACA’s rescission and the government’s changes to its policies on information-sharing did not violate the APA and that Plaintiffs’ constitutional claims lacked merit. Id. at 771-77. The court also determined that DACA’s rescission did not violate the doctrine of estoppel. Id. at 777-78.
The court, however, granted summary judgment to Plaintiffs on the portion of their estoppel claim pertaining to the sharing of DACA applicant information. The court ordered the government to comply with the policies as originally announced in 2012 and enjoined it from altering these policies. Id. at 778-79; J.A. 1531-33.
These appeals followed. We review a district court’s grant of summary judgment de novo. Roland v. USCIS, 850 F.3d 625, 628 (4th Cir. 2017). “We can affirm a grant of summary judgment only where there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.” Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886, 889-90 (4th Cir. 2015) (internal quotation marks omitted). We review a district court’s grant of an injunction for abuse of discretion. South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018).
II. We begin with the government’s argument that Plaintiffs’ claims are not justiciable, an issue we consider de novo. See Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014); Angelex Ltd. v. United States, 723 F.3d 500, 505 (4th Cir. 2013).
A. The government contends that Plaintiffs’ claims are immune from judicial review under 8 U.S.C. § 1252(g), a provision of the INA stating, “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 [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” According to the government, § 1252(g) bars review here in two ways. First, noting that the Supreme Court in AAADC observed that § 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations,” 525 U.S. at 485,6 the government contends that this
6 The Supreme Court said as much after reviewing a treatise describing the practice of deferred action and litigation that would result when it was not granted. AAADC, 525 U.S. at 484-85. That treatise, however, referred explicitly to “[e]fforts to (Continued)
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section bars review because DACA’s rescission is a “no deferred action” decision. But this contention ignores both the plain language of § 1252(g) and the Supreme Court’s determination in AAADC that this section “applies only to three discrete actions that the [Secretary of Homeland Security] may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. at 482 (first emphasis added). In rescinding DACA, the Acting Secretary did none of these things.
Second, the government says that § 1252(g) precludes review because DACA’s rescission is an initial “action” in the commencement of removal proceedings. As the government would have it, review of its decision to rescind DACA must await a final order of removal. The Supreme Court in AAADC though “specifically rejected a broad reading of the three discrete actions listed in [§] 1252(g).” Regents, 908 F.3d at 504. Specifically, “decisions to open an investigation, [or] to surveil the suspected violator” are not encompassed by § 1252(g)’s jurisdictional bar, even though these decisions “may be part of the deportation process.” AAADC, 525 U.S. at 482; see Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (Alito, J., plurality) (“[In AAADC, w]e did not interpret [§ 1252(g)] to sweep in any claim that can technically be said to ‘arise from’ the three listed actions. . . . Instead, we read the language to refer to just those three specific actions themselves.” (emphasis added)).

challenge the refusal to exercise [deferred action] on behalf of specific aliens.” Id. at 485 (emphasis added). Plaintiffs don’t challenge the refusal to grant deferred action to a particular individual.
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And while we accept that § 1252(g) “is specifically directed at the deconstruction,
fragmentation, and hence prolongation of removal proceedings,” AAADC, 525 U.S. at
487, the government hasn’t moved to remove any of the Plaintiffs. The two Circuit
decisions on which the government relies to support the proposition that judicial review
of DACA’s rescission is available only through review of a final order of removal—
Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016), and Botezatu v. INS, 195 F.3d 311
(7th Cir. 1999)—are inapposite. Those cases involved challenges to individual “no
deferred action” decisions by aliens adjudicated removable. Vasquez, 639 F. App’x at
901; Botezatu, 195 F.3d at 314. The government’s reliance on AAADC is therefore misplaced, and we reject its argument that § 1252(g) bars review of Plaintiffs’ claims.7
B.
The government argues that another provision of the INA—8 U.S.C.
§ 1252(b)(9)—bars review of Plaintiffs’ claims. The government did not press this
argument in the district court. But because a party may challenge subject matter
jurisdiction for the first time on appeal, Am. Canoe Ass’n, Inc. v. Murphy Farms, Inc.,
326 F.3d 505, 515 (4th Cir. 2003), we consider this issue.
7 Accord Regents, 908 F.3d at 504 (holding § 1252(g) doesn’t deprive courts of jurisdiction to review DACA’s rescission); NAACP v. Trump, 298 F. Supp. 3d 209, 224 (D. D.C. 2018) (rejecting as “misplaced” government’s reliance on AAADC and finding § 1252(g) didn’t bar review of challenges to DACA’s rescission), appeals docketed, Nos. 18-5243, 18-5245 (D.C. Cir. Aug. 10 & 13, 2018), petition for cert. before judgment filed, 87 U.S.L.W. 3204 (U.S. Nov. 5, 2018) (No. 18-588); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 152-54 (E.D.N.Y. 2017) (rejecting government’s § 1252(g) argument in challenge to DACA’s rescission), appeals docketed, Nos. 18-1985, 18-1986 (2d Cir. July 5, 2018), petition for cert. before judgment filed, 87 U.S.L.W. 3201 (U.S. Nov. 5, 2018) (No. 18-589).
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Section 1252(b)(9) provides that “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9). But that provision doesn’t help the government here because it “applies only with respect to review of an order of removal under [8 U.S.C. § 1252(a)(1)].” INS v. St. Cyr, 533 U.S. 289, 313 (2001) (emphases added; internal quotation marks and alteration omitted); see Calcano-Martinez v. INS, 232 F.3d 328, 340 (2d Cir. 2000) (“Congress enacted [§ 1252(b)(9)] for the important purpose of consolidating all claims that may be brought in removal proceedings into one final petition for review of a final order in the court of appeals.” (emphasis added)), aff’d, 533 U.S. 348 (2001).
The government’s contention that § 1252(b)(9) bars review thus is without merit. C.
Next, the government contends that judicial review is foreclosed under the APA because the decision to rescind DACA is committed to agency discretion by law. We do not agree.
“Although there is a ‘strong presumption’ in favor of judicial review of agency action,” Speed Mining, Inc. v. Fed. Mine Safety & Health Review Comm’n, 528 F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)), the APA bars judicial review of agency action “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). The government says that the Acting Secretary’s decision to rescind DACA is a type of agency enforcement decision that is
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presumptively unreviewable under the Supreme Court’s decision in Heckler v. Chaney, 470 U.S. 821 (1985).8 Invoking the “broad discretion exercised by immigration officials” that is a “principal feature of the removal system,” Arizona, 567 U.S. at 396, the government urges that the concerns driving Chaney’s presumption of unreviewability apply with “particular force” in the removal context, a context in which allowing delay would result in ordering the government to allow a “continuing violation” of federal law, AAADC, 525 U.S. at 490.
And while conceding that an agency’s expression of a legal interpretation announced in a broad or general enforcement policy may be reviewable, the government says that the decision to rescind DACA is distinguishable because it rested on discretionary enforcement concerns and expressed the Department of Homeland Security’s view about the scope of its enforcement authority, not the substantive unlawfulness of the policy. Finally, relying on the Supreme Court’s post-Chaney decision in ICC v. Bhd. of Locomotive Eng’rs (“BLE”), 482 U.S. 270 (1987), the government argues that, even if the sole rationale for the rescission decision was the view that DACA was unlawful, such rationale cannot provide a “hook” to support review of the decision.

8 The government doesn’t appear to seriously contest that Plaintiffs’ procedural APA claim challenging the decision to rescind DACA is subject to judicial review. Accord Lincoln v. Vigil, 508 U.S. 182, 195-98 (1993) (process by which an agency makes a rule may be reviewed for compliance with applicable procedural requirements, regardless of reviewability of the substance of the rule).
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Because the government relies so heavily on Chaney for its argument, we turn to that decision. There, a group of death row inmates petitioned the Food and Drug Administration to prevent the use in lethal injections of certain drugs that the agency had not approved for that purpose. 470 U.S. at 823-24. The agency refused to act, based on its view that its jurisdiction to act under the substantive law was unclear and, even if it had jurisdiction, it would decline to exercise that jurisdiction under its inherent discretion to do so. Id. at 824-25. The petitioners filed suit, seeking an order directing the agency to act. Id. at 825.
Without addressing the jurisdictional issue, the Court held that the agency’s discretionary decision not to enforce the substantive law was unreviewable under the APA. Id. at 828, 837-38. As the Court explained, such decisions “often involve[] 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 . . . best fits the agency’s overall policies.” Id. at 831.
Nonenforcement decisions, the Court observed, generally do not involve the exercise of “coercive power over an individual’s liberty or property rights,” and, accordingly, do “not infringe upon areas that courts often are called upon to protect.” Id. at 832. Such decisions also “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. For these reasons, the Court found, such decisions have “traditionally been committed to agency discretion,”
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and Congress, in “enacting the APA[,] did not intend to alter that tradition.” Id. (internal quotation marks omitted). 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.
Here, however, the Department of Homeland Security’s decision to rescind DACA is not a “Chaney-type enforcement action[].” Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996). For starters, the Acting Secretary did not exercise her discretion in an individual case.9 Nor did she identify a violation of the INA against which to act, determine whether government resources would be best spent enforcing one violation over another, or decide whether the Department would succeed if it pursued a particular violation. Rather, Acting Secretary Duke rescinded a general enforcement policy in existence for over five years and affecting hundreds of thousands of enrollees based on the view that the policy was unlawful.
Major agency policy decisions are “quite different from day-to-day agency []enforcement decisions.” Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988). Where an agency expresses a broad or general enforcement policy, different considerations than those driving Chaney’s presumption are at play.
9 The government correctly observes that an agency’s discretionary decision to enforce the law may be unreviewable under § 701(a)(2). See Speed Mining, 528 F.3d at 311, 317-18 (holding agency’s discretionary decision to enforce substantive law by issuing citations for safety violations was committed to agency discretion and therefore unreviewable). But Speed Mining is distinguishable because it involved a discretionary enforcement decision in an individual case.
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“As general statements, they 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.” Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).
Accordingly, as courts have recognized, an agency’s expression of a broad or general enforcement policy based on the agency’s legal interpretation is subject to review. OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 811-12 (D.C. Cir. 1998) (holding courts had jurisdiction under APA because challenged agency action was a general policy of refusing to enforce provision of substantive law and not a “single-shot non-enforcement decision” (citing Crowley, 37 F.3d at 674-76)); see Kenney, 96 F.3d at 1123-24 (concluding Chaney applies to “individual, case-by-base determinations of when to enforce existing [law] rather than permanent policies or standards” and did not encompass agency’s adoption of general policies stating standards agency deemed acceptable to implement statutory goals); Crowley, 37 F.3d at 672-73, 675 (Chaney’s presumption applies if “agency bases its refusal to enforce in an individual case solely on a legal interpretation without explicitly relying on its enforcement discretion”); see also Edison Elec. Inst. v. EPA, 996 F.2d 326, 333 (D.C. Cir. 1993) (holding challenge to agency’s interpretation of law and regulations advanced in enforcement policy statement was “not the type of discretionary judgment concerning the allocation of enforcement resources that [Chaney] shields from judicial review”); Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 767, 773 (D.C. Cir. 1992) (holding Chaney’s presumption “is inapplicable
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or at least rebutted [where plaintiff] raise[d] a facial challenge to the [agency’s] statutory
interpretation embodied in [a regulation] and d[id] not contest a particular enforcement
decision” and citing authority in support). DACA’s rescission fits well within this rubric.10
The government attempts to distinguish this authority, but its efforts are
unavailing. It claims DACA’s rescission involved discretionary balancing because it was
based on concerns about its legality and “litigation risk,” a term that appears to refer to
the likelihood the policy would have been invalidated had it been challenged in the Texas
litigation. But the Rescission Memo doesn’t identify the “risk” of litigation as a
“consideration” on which the Acting Secretary relied in rescinding the policy. Rather,
the Memo relies on the Attorney General’s conclusion that DACA needed to be rescinded because it was unlawful.11 True, the Attorney General’s letter also proffers the
conclusion that “potentially imminent litigation” would invalidate DACA, as was the
case with DAPA in the Texas litigation. But we agree with the determination of our
district court colleague Judge Bates in his opinion resolving challenges to DACA’s
10 Our dissenting colleague contends that decisions from the D.C. Circuit supporting our view that DACA’s rescission is reviewable don’t explain how they can be reconciled with Chaney. Dis. op. at 48-51. We disagree. See Crowley, 37 F.3d at 675-77; Nat’l Wildlife Fed’n, 980 F.2d at 772-73.
11 See 8 U.S.C. § 1103(a)(1) (“[D]etermination[s] and ruling[s] by the Attorney General with respect to all questions of law shall be controlling [on the Secretary of Homeland Security].”); see Yanez-Marquez v. Lynch, 789 F.3d 434, 450 n.6 (4th Cir. 2015) (finding Attorney General’s position controlling where Department of Homeland Security and Attorney General had conflicting views about applicability of a legal doctrine).
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rescission that this justification “was too closely bound up with [the Attorney General’s]
evaluation of DACA’s legality,” NAACP, 298 F. Supp. 3d at 234, and thus cuts against
Chaney’s presumption of unreviewability.
Nor are we persuaded by the government’s claim that DACA’s rescission rested
on the Department’s view of the scope of its enforcement authority, not the substantive
unlawfulness of the policy. As Judge Bates aptly noted when presented with the same
argument, “this strikes the [c]ourt 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.” Id. at 232.
We, like Judge Bates, “fail[] to perceive any meaningful difference between an agency’s
conclusion that it lacks statutory authority and its interpretation of a specific statutory
provision.” Id. 12
12 Our dissenting colleague notes that Acting Secretary Duke didn’t say in the Rescission Memo “that DACA must be terminated or that she lacked the legal authority to enforce DACA or a DACA-like program.” Dis. op. at 54. It is true that Acting Secretary Duke wrote only that it was clear DACA “should” be terminated. J.A. 383. Standing alone, however, “should” can express the notion of requirement or obligation. Should, Webster’s Third New International Dictionary Unabridged (2002) (“used . . . to express duty, obligation, [or] necessity”). Given the Attorney General’s evaluation of DACA’s legality and the absence of any reference to litigation risk in the Rescission Memo’s list of considerations, this use of the word “should” supports our conclusion, ante, at 20, 22, that the Secretary rescinded DACA based on her view that the policy was unlawful. Contrary to our dissenting colleague’s view, our decision today does not intrude on discretionary prerogatives of the Executive Branch (see Dis. op. at 50-52); rather, it “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,” NAACP, 298 F. Supp. 3d at 234.
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The government also relies on the Supreme Court’s decision in BLE as further support for the view that Plaintiffs’ claims are unreviewable. But there, the Supreme Court held only that “where a party petitions an agency for reconsideration on the ground of material error, i.e., on the same record that was before the agency when it rendered its original decision, an order which merely denies rehearing of the prior order is not itself reviewable.” 482 U.S. at 280 (internal quotation marks, ellipsis, and alteration omitted). The government is correct that the Court also rejected the principle that, if an “agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable,” citing as an example a prosecutor’s refusal to institute criminal proceedings based on the belief that the law will not sustain a conviction. Id. at 283. But BLE still does not advance the government’s argument.
For one thing, Plaintiffs here filed a timely challenge to the government’s original decision to rescind DACA. BLE doesn’t bar review of that type of challenge. Moreover, as the government itself concedes, Appellees’ Opening & Response Br. at 19, BLE addressed the scope of judicial review in the context of agency non-enforcement action in an individual case. See Crowley, 37 F.3d at 675-77 (explaining the basis for distinguishing—for purposes of judicial review—between individual enforcement decisions and implementation of broad enforcement policies). DACA’s rescission involves a broad enforcement policy, not an individual decision. 13
13 We accept that agency action doesn’t become reviewable simply because “the agency gives a ‘reviewable’ reason for otherwise unreviewable action.” BLE, 482 U.S. at 283. But, as we’ve explained, DACA’s rescission is not such an unreviewable decision. (Continued)
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In sum, we hold that Plaintiffs’ claims are reviewable.14
III. A. We turn now to the merits and consider first whether the district court erred in granting summary judgment to the government on Plaintiffs’ procedural APA claim. The court determined that DACA’s rescission was akin to a policy statement and thus was not subject to notice and comment under the APA. Casa, 284 F. Supp. 3d at 772. We review this determination de novo. Children’s Hosp. of the King’s Daughters, Inc. v. Azar (“CHKD”), 896 F.3d 615, 619 (4th Cir. 2018). The APA generally requires that agencies provide notice of proposals to create, amend, or repeal a rule15 and an opportunity for interested persons to comment on the proposal. See 5 U.S.C. §§ 551(4)-(5), 553(a)-(c). “Rules issued through the

See NAACP, 298 F. Supp. 3d at 231 (“[A]n otherwise reviewable interpretation of a statute does not become presumptively unreviewable simply because the agency characterizes it as an exercise of enforcement discretion.”).
14 The government has not cross-appealed from the district court’s additional determination that all Plaintiffs had standing, Casa, 284 F. Supp. 3d at 771, and the parties have not briefed this issue on appeal. Nonetheless, reviewing this issue de novo, Bostic, 760 F.3d at 370, we agree with the district court that the individual DACA recipient Plaintiffs have standing to sue. We consequently need not consider whether the other Plaintiffs have standing. See id. at 370-71.
15 The parties don’t dispute that DACA’s rescission qualifies as a “rule” for APA purposes. See 5 U.S.C. § 551(4).
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notice-and-comment process are often referred to as legislative rules because they have the force and effect of law.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (internal quotation marks omitted). “[T]he APA provides[, however,] that, unless another statute states otherwise, the notice-and-comment requirement ‘does not apply’ to ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.’” Id. at 1203-04 (quoting 5 U.S.C. § 553(b)(A)).
Plaintiffs argue that DACA’s rescission required notice and comment under the APA because the Rescission Memo is a legislative rule that mandates how Department officials must act and substantively affects DACA recipients. The government rejects this premise, countering that the Memo is a general statement of policy. We agree with the government.16
The critical question in distinguishing between legislative rules and general statements of policy is whether the statement “is of present binding effect; if it is, then the APA calls for notice and comment.” Elec. Privacy Info. Ctr. v. DHS (“EPIC”), 653 F.3d 1, 7 (D.C. Cir. 2011) (internal quotation marks and ellipsis omitted). “[S]ubstantive or legislative rule[s], pursuant to properly delegated authority, ha[ve] the force of law, and create[] new law or impose[] new rights or duties.” CHKD, 896 F.3d at 620 (internal
16 Accord Regents, 908 F.3d at 512-14 (holding DACA’s rescission is not a binding rule of substantive law); NAACP, 298 F. Supp. 3d at 237 (“[T]he rescission of DACA was exempt from notice and comment as a general statement of agency policy.”); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 270-73 (E.D.N.Y. 2018) (dismissing notice-and-comment claims because Rescission Memo is not a legislative rule), appeals docketed, Nos. 18-1521, 18-1525, 18-1986 (2d Cir. May 21 & July 5, 2018).
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quotation marks omitted); see Nat’l Latino Media Coal. v. FCC, 816 F.2d 785, 788 (D.C. Cir. 1987) (“A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute.”). “To that end, a rule is legislative if it supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy.” CHKD, 896 F.3d at 620 (internal quotation marks and alteration omitted).
By contrast, general statements of policy “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Vigil, 508 U.S. at 197 (internal quotation marks omitted). A directive that doesn’t establish a “binding norm” and leaves agency officials free to exercise their discretion qualifies as a general statement of policy. Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 (4th Cir. 1995) (citing Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987), and Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1015 (9th Cir. 1987)).
The Rescission Memo removes a mechanism under which individuals could receive deferred action but places “no limitations” on other lawful enforcement prerogatives of the Department of Homeland Security. J.A. 384. As the district court observed, Casa, 284 F. Supp. 3d at 772, the Memo doesn’t curtail the Department’s discretion to make deferred action available on a case-by-case or ad hoc basis. Nor does the Memo, by its terms, create “right[s] or benefit[s]” enforceable “by any party.” J.A. 384.
Additionally, although DACA was rescinded based on the government’s view that the policy was unlawful, the Rescission Memo doesn’t bind subsequent Secretaries who
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might disagree with this reasoning or bar the Department from implementing other deferred action policies in the future. Contrary to Plaintiffs’ arguments, the Memo doesn’t “replace[] agency discretion with a new binding rule of substantive law,” MadaLuna, 813 F.2d at 1014 (internal quotation marks omitted), affecting the rights of people regulated by the Department, see EPIC, 653 F.3d at 7 (agency’s statement “cast in mandatory language so the affected private parties are reasonably led to believe that failure to conform will bring adverse consequences” qualifies as binding on those subject to it (internal quotation marks omitted)). It therefore falls on the policy “end of the spectrum,” CHKD, 896 F.3d at 620-21 (internal quotation marks omitted), and thus was exempt from notice and comment under the APA.
B. We consider next whether the district court erred in granting summary judgment to the government on Plaintiffs’ claim that DACA’s rescission is substantively invalid under the APA.
1. The APA requires a reviewing court to “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). These “criteria render our oversight highly deferential, with a presumption in favor of finding the agency action valid.” Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012) (internal quotation marks omitted). This standard, however, “does not reduce judicial review to a rubber stamp of agency action.” Id. (internal quotation marks omitted). Rather, “we
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must engage in a searching and careful inquiry of the [administrative] record, so that we may consider whether the agency considered the relevant factors and whether a clear error of judgment was made.” Id. (internal quotation marks omitted). Where agency action qualifies as “unreasonable as a matter of law, it is likely to have been arbitrary and capricious.” Id. (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 n.23 (1989)). “We evaluate [this issue] de novo[.]” Id.
To comply with § 706(2)(A), 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.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The giving of “adequate reasons” for an agency’s decision is “[o]ne of the basic procedural requirements of administrative rulemaking.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). In a challenge under § 706(2)(A), “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” State Farm, 463 U.S. at 50; see Jimenez–Cedillo v. Sessions, 885 F.3d 292, 299 (4th Cir. 2018) (“[A] reviewing court may not speculate on reasons that might have supported a change in agency position []or supply a reasoned basis for the agency’s action that the agency itself has not given.” (internal quotation marks and citation omitted)).
An agency satisfactorily explains a decision when it provides “enough clarity that its ‘path may reasonably be discerned.’” Jimenez–Cedillo, 885 F.3d at 297 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). If the agency provides such an explanation, “we will uphold its decision.” Id. at 297-98.
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“But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law.” Encino Motorcars, 136 S. Ct. at 2125.
These principles apply with equal force to a change in agency position. Jimenez– Cedillo, 885 F.3d at 298. Thus, in changing policies, agencies “must ‘provide a reasoned explanation for the change.’” Id. (quoting Encino Motorcars, 136 S. Ct. at 2125). “At a minimum, an agency must ‘display awareness that it is changing position and show that there are good reasons for the new policy.’” Id. (quoting Encino Motorcars, 136 S. Ct. at 2126). The agency’s explanation must address the “facts and circumstances that underlay or were engendered by the prior policy,” including any “serious reliance interests.” Encino Motorcars, 136 S. Ct. at 2126 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009)). “An ‘unexplained inconsistency’ in agency policy indicates that the agency’s action is arbitrary and capricious, and therefore unlawful.” Jimenez– Cedillo, 885 F.3d at 298 (quoting Encino Motorcars, 136 S. Ct. at 2125).
2. Plaintiffs argue that DACA’s rescission was arbitrary and capricious because the Department of Homeland Security failed to give a reasoned explanation for the change in policy, particularly given the significant reliance interests involved. We agree.17
17 Plaintiffs also assert that (1) the district court failed to consider evidence of “bad faith” and “animus” underlying the decision to rescind DACA presented in their complaint and (2) the Department’s conclusions about DACA’s legality are substantively incorrect. Given our disposition, we decline to address these arguments.
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As we have explained, DACA was rescinded based on the Department’s view that the policy was unlawful. But neither the Attorney General’s September 4 letter nor the Department’s Rescission Memo identify any statutory provision with which the DACA policy conflicts. Cf. Encino Motorcars, 136 S. Ct. at 2127 (rejecting as insufficient agency statement regarding statutory exemption proffered in support of policy change where agency did not “analyze or explain” why statute should be interpreted as agency suggested).
The Attorney General’s letter does mention that the Fifth Circuit affirmed the injunction against the DAPA policy on “multiple legal grounds” in the Texas litigation, J.A. 379, and the Rescission Memo cites to this ruling. The Fifth Circuit’s ruling was based in part on its determination that the DAPA policy likely ran counter to 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. There is no dispute here, however, that “DACA has no analogue in the INA.” NAACP, 298 F. Supp. 3d at 239 (internal quotation marks omitted). Further, as the Fifth Circuit explained in reaching its conclusion, “DACA and DAPA are not identical.” Texas, 809 F.3d at 174.
The Attorney General’s letter also asserts that DACA suffered from the same “constitutional defects that the courts recognized as to DAPA.” J.A. 379. The courts in the Texas litigation, however, did not address constitutional claims. And while the Attorney General urged in his letter that his office had a duty to “defend the Constitution” and “faithfully execute the laws passed by Congress,” J.A. 379, he does not explain how allowing the DACA policy to remain in effect would violate that duty.
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The Attorney General’s letter and the Rescission Memo also proffer the concern— based on the Attorney General’s determination that the DAPA and DACA policies share the same legal defects—that “potentially imminent” litigation would result in a ruling in the Texas litigation enjoining DACA. Entirely absent, however, is an explanation why it was likely that the district court in the Texas litigation would have enjoined DACA.
Further, the 2014 OLC Opinion outlining the Department’s authority to implement the DAPA policy identified “from the nature of the Take Care duty” at least “four general . . . principles governing the permissible scope of enforcement discretion,” J.A. 137-38; 2014 WL 10788677, at *5-6, and noted that concerns “animating DACA were . . . consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion,” J.A. 149 n.8; 2014 WL 10788677, at *13 n.8.
The point is that the Department had before it at the time it rescinded DACA a reasoned analysis from the office tasked with providing legal advice to all executive branch agencies that supported the policy’s legality. Yet the Department changed course without any explanation for why that analysis was faulty. Cf. Fox Television Stations, 556 U.S. at 516 (“[A] reasoned explanation is needed for disregarding facts and circumstances that underlay . . . the prior policy.”).
Nor did the Department adequately account for the reliance interests that would be affected by its decision. Hundreds of thousands of people had structured their lives on the availability of deferred action during the over five years between the implementation of DACA and the decision to rescind. Although the government insists that Acting
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Secretary Duke18 considered these interests in connection with her decision to rescind DACA, her Memo makes no mention of them.
Accordingly, we hold that the Department’s decision to rescind DACA was arbitrary and capricious and must be set aside.

IV. We turn next to the district court’s rulings (1) granting summary judgment to Plaintiffs on the portion of their estoppel claim pertaining to sharing of DACA applicant information, and (2) ordering the government to comply with the information-sharing policies promulgated in 2012 and enjoining it from altering those policies. “Equitable estoppel is a well-established concept invoked by courts to aid a party who, in good faith, has relied, to his detriment, upon the representations of another.” United States ex rel. Humble Oil & Ref. Co. v. Fid. & Cas. Co. of N.Y., 402 F.2d 893, 897 (4th Cir. 1968) (internal footnote omitted). To establish equitable estoppel, “[i]t is only necessary to show that the person [sought to be] estopped, by . . . statements or conduct, misled another to his prejudice.” Id. at 898 (quoting United States ex rel. Noland Co. v. Wood, 99 F.2d 80, 82 (4th Cir. 1938)). As against the government, “estoppel may only

18 The government urges us to consider the June 2018 memorandum from former Secretary of Homeland Security Kirstjen Nielsen belatedly proffered by the government as a basis for upholding DACA’s rescission. We decline to do so because the memorandum was not part of the administrative record in this appeal. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985).
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be justified, if ever, in the presence of affirmative misconduct by government agents.” Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003).
In enjoining the government, the district court determined that estoppel “potentially would apply to any use for immigration enforcement of the information collected . . . during DACA registrations” because “the Government promised not to transfer or use the information gathered from [DACA applicants] for immigration enforcement.” Casa, 284 F. Supp. 3d at 778.
We disagree with the district court. The government did not make such a promise or suggest in any other way that its policies governing the sharing of information provided by DACA applicants would never change. Rather, the government warned DACA applicants that information they provided could be used for immigration enforcement where criteria for commencement of removal proceedings or referral to law enforcement for a determination whether to commence such proceedings were met. It also warned that its policies governing the sharing of applicant information could be “modified, superseded, or rescinded at any time without notice” and created no “right or benefit.” J.A. 1004. In view of these clear and unequivocal warnings, Plaintiffs could not reasonably believe that the information they provided as part of their DACA application would never be used for immigration enforcement purposes. Cf. Volvo Trucks of N. Am., Inc. v. United States, 367 F.3d 204, 212 (4th Cir. 2004) (“Equitable estoppel requires reasonable reliance.”). Plaintiffs’ equitable estoppel claim thus necessarily fails.
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V.
We turn finally to Plaintiffs’ constitutional claims, which were dismissed by the
district court. We decline to decide whether DACA’s rescission violates the Fifth
Amendment’s due process and equal protection guarantees under the “well established
principle governing the prudent exercise of this [c]ourt’s jurisdiction that normally the
[c]ourt will not decide a constitutional question if there is some other ground upon which
to dispose of the case.” Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam).
Because we have determined that DACA’s rescission violates the APA, we need go no
further. See, e.g., Veasey v. Abbott, 830 F.3d 216, 265 (5th Cir. 2016).
We also decline to decide whether Plaintiffs’ Fifth Amendment rights were
violated by the policies announced on September 5, 2017, regarding the sharing of personal information from DACA applicants.19 McMillan, 466 U.S. at 51. Our decision
today restores DACA to its pre-September 5, 2017, status, rendering a nullity the
information-sharing policies announced on September 5. It therefore is unnecessary to
address Plaintiffs’ constitutional challenge to these policies. See Veasey, 830 F.3d at 265.20
19 Although the district court found Plaintiffs’ due process claims lacked merit, its analysis addressed DACA’s rescission, not information-sharing. Casa, 284 F. Supp. 3d at 775-77.
20 Plaintiffs also contend that the district court misapplied Fed. R. Civ. P. 56 by failing to (1) afford them a reasonable opportunity for discovery on their claims, (2) consider or address their statement of material facts in dispute, and (3) view the facts in the light most favorable to them. They allege further that the district court misapplied the APA by granting summary judgment to the government without addressing their (Continued)
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VI.
To sum up: We affirm the district court’s rulings that Plaintiffs’ claims are
justiciable and that DACA’s rescission did not require notice and comment under the
APA. We reverse the district court’s ruling sustaining the rescission of the policy as
valid under 5 U.S.C. § 706(2)(A). DACA’s rescission is vacated as arbitrary and
capricious, and the matter is remanded for further proceedings consistent with this
opinion. We reverse the district court’s ruling finding Plaintiffs entitled to injunctive
relief on equitable estoppel grounds, reverse the grant of summary judgment in Plaintiffs’
favor, and vacate the injunction. Because we find it unnecessary to decide Plaintiffs’
constitutional challenges to DACA’s rescission and the related changes to the
Department’s policies governing use of information provided by DACA applicants, we
vacate the district court’s judgment on these issues and dismiss those claims.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, DISMISSED IN PART,
AND REMANDED

contention that the administrative record was incomplete and by failing to consider evidence of “bad faith and improper behavior” by government officials. Given our disposition, we find it unnecessary to address these issues.
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RICHARDSON, Circuit Judge, concurring in part and dissenting in part: The plaintiffs ask this Court to invalidate the rescission of DACA, a seven-year-
old program explained at its inception as an act of prosecutorial discretion. The Majority’s opinion grants this request, reasoning that the Department of Homeland Security behaved in an arbitrary and capricious manner by giving what my good colleagues decide are faulty legal reasons for rescinding the discretionary policy.
I disagree with the premise that the Administrative Procedure Act permits this review of the Executive Branch’s rescission of DACA. Enforcement discretion lies at the heart of executive power. The Executive may decide to prosecute, or not prosecute, an individual or a group so long as the reasons for that decision are constitutionally sound and the decision does not violate or abdicate the Executive’s statutory duties. Here, the Executive’s proper exercise of that discretion to rescind DACA is judicially unreviewable under the Administrative Procedure Act, regardless of one’s view of the policy questions underlying DACA. To hold otherwise permits the Judicial Branch to invade the province of the Executive and impair the carefully constructed separation of powers laid out in our Constitution.
I. Background The Secretary of Homeland Security is charged by statute with enforcing the nation’s immigration laws. See 8 U.S.C. § 1103(a); 6 U.S.C. § 202(5). Among those responsibilities is removing individuals subject to removal under federal law. See 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.” Id. At each stage of
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the process—from investigation to execution of a removal order—the Secretary has the discretion to pursue removal or forbear doing so. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999).
The Secretary has used this discretion to prioritize the removal of certain categories of aliens and deprioritize others. See, e.g., Memorandum from Doris Meissner, Commissioner, Dep’t of Justice, Immigration & Naturalization Service, “Exercising Prosecutorial Discretion” 7–9 (Nov. 17, 2000) (deprioritizing the removal of aliens who, for instance, resided in the United States for a long time, had little to no criminal history, and had greater ties to the United States than another country); Memorandum from John Morton, Director, Dep’t of Homeland Sec., Immigration & Customs Enforcement, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” 2 (June 17, 2011) (deprioritizing the removal of veterans, minors, elderly individuals, pregnant women, and various other groups). On top of these general, department-wide enforcement policies, individual agents have been empowered to exercise enforcement discretion based on specific circumstances. See, e.g., Meissner Memorandum at 1–2. Just as a highway patrolman has discretion whether to pull over a given driver (and even after pulling someone over, whether to give that person a ticket), immigration agents can weigh individual and country-specific humanitarian circumstances when deciding whether to exercise their prosecutorial discretion. See Morton Memorandum at 4.
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Relying on this broad enforcement discretion to set enforcement priorities and to guide agents in rendering their individualized enforcement decisions, the Secretary of Homeland Security established the DACA program. Memorandum from Janet Napolitano, Secretary, Dep’t of Homeland Sec., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012). DACA authorized agents to grant deferred action1 to certain people brought illegally to the United States as children. Under DACA, aliens who applied and satisfied certain gateway criteria were “granted” or “denied” deferred action, ostensibly on an individualized, case-by-case basis. Id. Even when granted, deferred action could be revoked unilaterally by the Department. See AAADC, 525 U.S. at 484–85. The DACA memorandum stated expressly that it conferred upon recipients of deferred action “no substantive right, immigration status or pathway to citizenship.” Napolitano Memorandum at 3.
Two years later, the Secretary expanded DACA by loosening some restrictions and extending the period of deferred action from two years to three. Memorandum from Jeh Johnson, Secretary, Dep’t of Homeland Sec., “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (Nov. 20, 2014). In the same action, the Secretary also created a new enforcement policy, known as “DAPA,”

1 “Deferred action” means “an act of administrative convenience to the government which gives some cases lower priority.” 8 C.F.R. § 274a.12(c)(14).
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extending “deferred action, on a case-by-case basis,” to parents of American citizens and lawful permanent residents. Id. at 4.
Led by Texas, a coalition of states challenged this new policy in federal court, arguing that DAPA (and the DACA expansion) violated the Administrative Procedure Act as well as the President’s Article II duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. The district court preliminarily enjoined DAPA, holding that the Department had “legislated a substantive rule without complying with the procedural requirements under the” APA. Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015). The Fifth Circuit affirmed the district court, finding that the Department had promulgated DAPA in violation of the APA and that it was “manifestly contrary” to the Immigration and Nationality Act (“INA”). Texas v. United States, 809 F.3d 134, 182 (5th Cir. 2015).2
The Supreme Court granted certiorari and directed the parties to brief not only the issues decided by the Fifth Circuit, but also whether “the Guidance violates the Take Care Clause of the Constitution, Art. II, § 3.” United States v. Texas, 136 S. Ct. 906 (2016). But after oral argument, the Fifth Circuit decision was summarily affirmed by an equally divided Court. United States v. Texas, 136 S. Ct. 2271, 2272 (2016).

2 In finding DAPA subject to review under the APA, the Fifth Circuit held that deferred action “is much more than nonenforcement.” Texas, 809 F.3d at 166. The court reasoned that since recipients are conferred “lawful presence” and may receive associated benefits such as driver’s licenses and unemployment insurance, deferred action was not an exercise of enforcement discretion. Id. at 168, 168 n.108.
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In response, the Secretary rescinded the enjoined DAPA program and DACA expansion. Memorandum from John Kelly, Secretary, Dep’t of Homeland Sec., “Rescission of November 20, 2014 Memorandum” (June 15, 2017). And several months later, after Texas threatened to challenge the original DACA policy, the Acting Secretary similarly rescinded DACA. Memorandum from Elaine Duke, Acting Secretary, Dep’t of Homeland Sec., “Rescission of the June 15, 2012 Memorandum” (Sept. 5, 2017).
In justifying her decision to rescind DACA, the Acting Secretary referred to the Supreme Court and Fifth Circuit decisions in the DAPA litigation. She also relied on a letter from the Attorney General that asserted that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. at 3–4. The Acting Secretary nonetheless ordered that DACA be wound down in stages over a six-month period. Id.
II. Administrative Procedure Act Review The plaintiffs primarily contend that the rescission of DACA violates the APA. Because I find that immigration enforcement decisions are committed to the discretion of the Department, I part with my colleagues and conclude that the rescission of DACA is judicially unreviewable under the APA.3

3 The plaintiffs’ constitutional claims are, of course, reviewable, and I address them separately below.
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A. Discretionary enforcement decisions are presumptively unreviewable. The APA regulates the decisionmaking process of federal agencies. As such, the
statute provides for the judicial review of a “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. Even so, the statute does not permit review of agency action that “is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This provision applies to a variety of agency decisions that are unsuitable for judicial review. See Lincoln v. Vigil, 508 U.S. 182, 191 (1993); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). One essential category of decisions “generally committed to an agency’s absolute discretion” consists of enforcement decisions, both in the civil and criminal arenas. Heckler v. Chaney, 470 U.S. 821, 831 (1985).
Discretion in prosecutorial enforcement is deeply rooted in the Constitution’s separation of powers. See, e.g., In re Aiken County, 725 F.3d 255, 264 (D.C. Cir. 2013); Saikrishna Prakash, The Chief Prosecutor, 73 GEO. WASH. L. REV. 521, 537–63 (2005). Indeed, the division of labor with respect to enforcement is among the most critical protections the Constitution affords: The Executive Branch decides whether and when to begin enforcement actions while the Judicial Branch adjudicates the government’s claims. This division reflects the Framers’ recognition that, “in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher v. Synar, 478 U.S. 714, 730 (1986).
Encroachment by the judiciary into enforcement decisions upsets this constitutional balance. If judges could decide which cases to prosecute, that would
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combine the role of prosecutor and judge in one branch of government, seriously risking individual liberty. See In re United States, 345 F.3d 450, 454 (7th Cir. 2003); see also 1 BARON DE MONTESQUIEU, THE SPIRIT OF LAWS 154 (Thomas Nugent trans., 6th ed. 1792) (“[T]here is no liberty, if the judiciary power be not separated from the legislative and executive.”). And if the judiciary could decide which meritorious cases not to prosecute, that would improperly divest the President, who unlike judges is elected by the people, of the executive authority that the Constitution affords to protect public safety and enhance public welfare. Thus, in “the ordinary case, ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)); see also United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”). The judiciary’s role is to protect individuals by properly adjudicating the charges against them—for example, by dismissing meritless enforcement actions after they are filed. It is normally neither appropriate nor necessary for judges to involve themselves in the decision to bring, or not to bring, enforcement actions.
Though perhaps more often discussed in the criminal context, this broad enforcement discretion also encompasses civil enforcement decisions. See Speed Mining, Inc. v. Federal Mine Safety, 528 F.3d 310, 317 (4th Cir. 2008); see also Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 448 (1979). Indeed, the Supreme Court
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has recognized that the concerns that counsel against reviewing criminal enforcement decisions are even stronger in the context of immigration removal decisions. AAADC, 525 U.S. at 490 (noting that the “systemic costs” of judicial supervision of enforcement decisions are “greatly magnified in the deportation context”); see also Mathews v. Diaz, 426 U.S. 67, 81–82 (1976).
The nature of civil enforcement discretion led the Supreme Court in Heckler v. Chaney to hold that an agency’s nonenforcement decision was presumptively unreviewable under the APA. In that case, the Food and Drug Administration refused to take civil enforcement action against a class of drug manufacturers and others who produced and distributed drugs used by states to perform executions. The FDA explained its decision not to institute any enforcement action as a product of concerns that it lacked jurisdiction to address the use of drugs in such a way. Yet even if it could, the FDA noted that it would decline to exercise jurisdiction over those manufacturers under its inherent enforcement discretion. The Court found the decision to be presumptively unreviewable under the APA because agency enforcement decisions “involve[] a complicated balancing of a number of factors,” like allocating resources and prioritizing policies, that “are peculiarly within [the FDA’s] expertise” and are thus generally unsuitable for judicial review. Chaney, 470 U.S. at 831; cf. Wayte v. United States, 470 U.S. 598, 607 (1985) (noting that the factors that underlie prosecution decisions are of the type that courts are not competent to evaluate).
While civil enforcement decisions are presumptively unreviewable, Congress can overcome that presumption by “circumscrib[ing] agency enforcement discretion” through
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a substantive statute. Chaney, 470 U.S. at 834; see also id. at 830 (noting that judicial review is unavailable under the APA if the statute provides “no judicially manageable standards . . . for judging how and when an agency should exercise its discretion”). In this way, Congress retains the ability to restrict the Executive’s enforcement discretion. In Chaney, to decide whether the FDA was so restricted, the Court examined the relevant statutory provisions and determined that the statutes provided no dictate about when enforcement discretion must be exercised. Since the FDA’s enforcement discretion was both statutorily authorized and unconstrained, the Court held that the enforcement decision was not subject to APA review.
Chaney also noted, without deciding, two other possible bases for judicial review of civil nonenforcement decisions: if (1) the decision was based “solely on belief that [the agency] lacked jurisdiction”; or (2) an agency expressly adopted a “general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4. The Supreme Court later rejected the first possibility in I.C.C. v. Brotherhood of Locomotive Engineers, finding that an agency’s reliance on a “reviewable reason” for an otherwise unreviewable discretionary decision did not transform the decision into one subject to APA review. 482 U.S. 270, 283 (1987). The second, which might be thought related to the Take Care Clause, U.S. CONST. art II, § 3, remains a narrow exception theoretically permitting judicial review of agency enforcement decisions in some rare cases.

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B. The rescission of DACA is not reviewable. The decision to rescind DACA is precisely the sort of enforcement decision that is
“traditionally . . . ‘committed to agency discretion’” and not reviewable by the courts. Chaney, 470 U.S. at 832. None of the recognized exceptions to that limitation apply, and so the rescission of DACA is not reviewable under the APA.
The Supreme Court has recognized that a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona v. United States, 567 U.S. 387, 396 (2012). Indeed, executive decisions about immigration enforcement are even further beyond the capacity of judicial review than criminal enforcement decisions, which are otherwise thought to represent the peak of executive discretion. AAADC, 525 U.S. at 489–90.
As a result, with or without DACA, government agents have discretion to grant deferred action in individual cases. Id. at 483–84, 484 n.8. At least by its own terms, DACA did not eliminate the individualized discretion over enforcement decisions: it created procedural and substantive scaffolding to guide that discretion. See Napolitano Memorandum at 2. Rescinding DACA took away the scaffolding but left the underlying core—individualized discretion—untouched. Thus, insofar as DACA is merely a programmatic enforcement decision, so is its rescission, and both are unreviewable.
The best argument in favor of reviewability is that DACA itself was something other than an enforcement decision. Once granted, deferred action makes recipients eligible for benefits such as the ability to work legally in the country. These are subsidiary or collateral benefits that arise from other legal provisions not challenged here.
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See 8 U.S.C. § 1324a(h)(3) (“‘[U]nauthorized alien’ means . . . that the alien is not at that time . . . authorized to be so employed by this chapter or by the Attorney General.”); see also 8 C.F.R. § 274a.12(c)(14). Yet the Fifth Circuit found DAPA reviewable because it “would affirmatively confer ‘lawful presence’ and associated benefits.” Texas, 809 F.3d at 166. Moreover, some have argued that DACA only masquerades as a program involving individualized discretion and in fact amounts to an entitlement of benefits for the class of aliens who meet the program’s threshold criteria. Again, the Fifth Circuit reached a similar conclusion about DAPA. See id. at 171–76.
But neither side presses such an argument in this case, and for good reason. The government does not because it claims DACA’s rescission is unreviewable. Nor do the plaintiffs, because if they did, their case would be much harder on the merits. DACA relied on identified individualized enforcement as a necessary predicate for the program’s existence. See The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. ____, 2014 WL 10788677, at *13 n.8 (Nov. 19, 2014). If that predicate was false, then DACA was almost surely procedurally and substantively invalid. And that would mean one of the Department’s proffered explanations for rescinding DACA—that it was likely unlawful—was valid. Unsurprisingly then, the plaintiffs do not rely on this point, giving us no occasion to consider whether DACA might be anything other than what it claimed to be: a program for a specific exercise of prosecutorial discretion.
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No other exception makes the plaintiffs’ APA claims reviewable. In particular, nothing in the INA overcomes Chaney’s presumption of unreviewability. That presumption “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Chaney, 470 U.S. at 832–33; see also Webster v. Doe, 486 U.S. 592, 600 (1988) (“§ 701(a)(2) requires careful examination of the statute on which the claim of agency illegality is based[.]”). Nothing in the INA cabins the government’s broad immigration enforcement discretion. To the contrary, the INA expansively vests the Secretary of Homeland Security with authority for “establishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5); see also 8 U.S.C. § 1103(a)(1). Our nation’s immigration laws do not limit the Secretary’s authority to enforce those laws by removing illegal aliens. As a result, the INA does not overcome the presumptive unreviewability of the DACA rescission. C. The generalized nature of DACA does not render its rescission reviewable.
The Majority adopts a new exception, contending that general enforcement policies, unlike individual enforcement decisions, are reviewable. While this exception has some support in out-of-circuit precedent, I would reject it.
This exception is grounded in dictum from Chaney, which left open the possibility of review when an agency adopts a “general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Chaney, 470 U.S. at 833 n.4 (emphasis added). That is, a general policy that licensed illegal conduct across the board or that categorically excluded a class of individuals from complying with the law might well be reviewable. But nobody here is arguing that the rescission of DACA should be so
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characterized. Nor could they. A return to the pre-DACA regime would increase the Department’s enforcement of the immigration laws, not abandon it.
A few cases from the D.C. Circuit seem to stretch Chaney’s dictum to encompass any “general enforcement policy,” as opposed to a “single-shot nonenforcement decision.” E.g., OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994)). The facts of these cases suggest this principle may be narrower than it appears at first blush. For example, in some cases, the agency’s policy was promulgated as a binding regulation after notice-and-comment rulemaking, which would of course be much more amenable to judicial review than a program like DACA, announced by an informal memorandum. See National Wildlife Federation v. EPA, 980 F.2d 765 (D.C. Cir. 1992). It also appears that these cases did not involve programs that, like DACA, were expressly predicated on the agency’s exercise of individualized discretion.
To the extent that the D.C. Circuit has embraced the broad principle that any “general enforcement policy” is judicially reviewable, that principle simply cannot be reconciled with Chaney. There, the Supreme Court held unreviewable the FDA’s categorical decision not to take enforcement action against a class of actors (drug manufacturers, prison administrators, and others in the drug distribution chain). 470 U.S. at 824–25, 837–38. The fact that the decision was made by the FDA Commissioner made no difference. See id. at 824. The D.C. Circuit’s decisions in this area do not even attempt to explain how this sweeping principle can be reconciled with the facts of
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Chaney. See, e.g., Crowley, 37 F.3d at 675–77. Indeed, they often have no reasoning, simply reciting language (often dicta) from earlier circuit cases.
Such a broad exception for “generalized enforcement policies” would also unduly trammel the Executive Branch in carrying out its duties. The head of an agency has every right to exercise enforcement discretion. Standardizing (i.e., generalizing) how agents use their prosecutorial discretion does not alter its character. Whether the Secretary exercises her discretion over an individual case or provides guidance for how discretion should be applied in a class of cases, the decision is unreviewable as one “committed to agency discretion by law.” Under the plaintiffs’ view, a line agent’s decision not to remove a cancer-stricken alien would be unreviewable, but a front-office policy directing line agents to consider whether an alien is terminally ill would be reviewable. That distinction is untenable. 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 to grant work authorization and pre-hearing voluntary departure to a certain class of eligible aliens over a three-year period).
As anyone who has exercised enforcement discretion knows, supervisory control over that discretion is necessary to avoid arbitrariness and ensure consistency. Supervision through generalized guidance that directs the exercise of enforcement discretion cannot transform the enforcement directive into a reviewable action. To find that discretionary enforcement decisions are unreviewable only when inferior officers exercise single-shot enforcement decisions also brushes aside the separation of powers that the Constitution lays out. The President is empowered by Article II to “take Care
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that the Laws be faithfully executed,” and thus may hire officers to assist in these duties.
But the constitutional responsibility remains firmly at the President’s feet, and therefore,
the President remains responsible for his subordinates’ exercise of executive power. Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010) (“The
President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the
faithfulness of the officers who execute them.”).4
DACA—at least on its face—was just such an unreviewable exercise of
supervisory enforcement discretion. It was issued by the Secretary and instructed her
subordinates when and how to exercise their discretion, emphasizing that “requests for
relief pursuant to this memorandum are to be decided on a case by case basis.”
Napolitano Memorandum at 2. Such general decisions on enforcement policy, no less
than the individual decisions that flow from them, cannot be reviewed by the courts
4 The supervisory use of prosecutorial discretion is not a novel phenomenon. See, e.g., Treasury Department Circular to the Supervisors of the Revenue (Sept. 30, 1791), in 9 PAPERS OF ALEXANDER HAMILTON 248–49 (Harold C. Syrett ed., 1965) (advising Treasury officials that “a great relaxation appears unavoidable” in enforcing provisions for seizing spirits without required certificates); Ruth Wedgewood, The Revolutionary Martyrdom of Jonathan Robbins, 100 YALE L.J. 229, 278, 339–53 (1990) (describing President Adams’s decision to direct the federal prosecutor to enter a nolle prosequi for an allegedly mutinous sailor and describing then-Representative John Marshall’s floor speech defending the Executive’s prosecutorial discretion, see 10 ANNALS OF CONG., 6th Cong. 1st Sess. 614–17 (Mar. 7, 1800)); DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS, THE JEFFERSONIANS: 1801–1829, at 5–6 (2001) (noting President Jefferson’s “decision to pardon two individuals who had been convicted under the Sedition Act and to quash the pending prosecution of a third”); Letter from Thomas Jefferson to William Duane (May 23, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON 54, 55 (Paul Leicester Ford ed., 1897) (explaining that whenever President Jefferson should be met with a prosecution under the Sedition law he would treat it as a nullity and order a nolle prosequi).
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without intruding on the prerogatives of the Executive Branch. And that is necessarily true of DACA’s rescission, which merely removed one avenue for exercising individualized discretion. As a result, the rescission is an even less viable candidate for judicial review than is the promulgation of DACA. D. The Acting Secretary’s use of legal reasoning in rescinding DACA does not
render her decision reviewable. The plaintiffs also argue that the Acting Secretary’s use of legal reasoning in deciding to rescind DACA makes the decision subject to judicial review. In their view, courts can evaluate legal determinations. This argument is foreclosed by Supreme Court precedent. The Supreme Court has matter-of-factly explained that there is no “principle that if the agency gives a reviewable reason for otherwise unreviewable action, the action becomes reviewable.” BLE, 482 U.S. at 283 (internal quotation marks omitted). Enforcement decisions are often intertwined with legal reasoning, most obviously “the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction.” Id. The Court found it “entirely clear” that this “reviewable” proposition cannot render the prosecutor’s “refusal to prosecute” subject to judicial review. Id. Efforts to distinguish BLE factually cannot avoid its holding. In BLE, an agency had refused to reconsider a prior decision on the ground of material error. The Court found that such denials of reconsideration have “traditionally been ‘committed to agency discretion by law.’” Id. at 282 (quoting Chaney, 470 U.S. at 832). As here, the plaintiffs argued that the particular decision before the Court should be reviewable anyway,
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because the agency had based its refusal on a reviewable issue of law. The Court
disagreed and held, as noted, that an unreviewable decision does not become reviewable
by virtue of the reasons provided. Id. at 280–81. That holding is plainly not limited to
cases involving requests for reconsideration. After BLE, the scope of permissible judicial
review must be determined by the type of agency action at issue and not the agency’s
reasons for acting.
Just as in BLE, there is a nonsensical implication in the plaintiffs’ position: that
the Executive’s discretion is more constrained when it gives a “reviewable” reason for its
actions than when it gives no reason at all. If the Acting Secretary was wrong about the likely illegality of DACA,5 then this might mean that she had provided no lawful reason
for the rescission. But in the context of the Executive’s enforcement discretion, this is
perfectly appropriate. The Executive need not explain why it makes particular
enforcement and non-enforcement decisions. The Judicial Branch cannot bootstrap
review of decisions committed to the discretion of the other branches simply because the
reasons provided are of a type that judges consider themselves competent to evaluate.
5 Evaluating the actual legality of DACA requires considering whether and how a court may adjudicate an alleged violation of the Take Care Clause. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838). But it also requires addressing the distinct question of whether and how one presidential administration may determine that a previous administration’s policy was inconsistent with the constitutional obligation to take care that the nation’s immigration laws be faithfully executed. Cf. Letter from President George Washington to Sec’y Alexander Hamilton, U.S. Dep’t of the Treasury (Sept. 7, 1792) in 32 WRITINGS OF GEORGE WASHINGTON 144 (John C. Fitzpatrick ed., 1939) (writing in 1792 about enforcing unpopular tax laws, President Washington explained that it was his “duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to it”).
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In any event, the Acting Secretary’s rescission memorandum was not a mere statement on the legality of DACA. Instead, the memorandum considered various court rulings as well as the Attorney General’s letter before concluding that the “DACA program should be terminated.” Duke Memorandum at 4 (emphasis added). She did not say that DACA must be terminated or that she lacked the legal authority to enforce DACA or a DACA-like program. And in declaring the rescission of DACA after a sixmonth wind-down period, the Acting Secretary invoked her statutory authority to “establish[] national immigration policies and priorities.” Id. The Acting Secretary’s legal analysis was only one aspect of her reasoning for rescinding DACA, and, of course, a prosecutor may consider beliefs about the law when setting enforcement policy, see BLE, 482 U.S. at 283.
For these reasons, I conclude that the plaintiffs’ APA claims are not reviewable and would dismiss them.
III. Constitutional Claims Because they rule for the plaintiffs under the APA, my colleagues in the Majority decline to address the plaintiffs’ constitutional claims. But because I find the plaintiffs’ APA claims to be unreviewable, I must briefly address their claims that the rescission of DACA also violates the Fifth Amendment’s guarantees of Due Process and Equal Protection.6 I have little trouble concluding that it did not.
6 Of course, courts may review the exercise of enforcement discretion for compliance with the Constitution. See Armstrong, 517 U.S. at 464.
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A. Due Process The plaintiffs’ due process claim fails to articulate a constitutionally protected life,
liberty, or property interest impacted by the rescission of DACA. And without a protected interest, there can be no unconstitutional deprivation.
The Due Process Clause of the Fifth Amendment guarantees that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V, cl. 4. A plaintiff raising a due process claim must thus begin by identifying a relevant liberty or property interest. Wooten v. Clifton Forge Sch. Bd., 655 F.2d 552, 554 (4th Cir. 1981). While a government benefit may create such an interest, “a person clearly must have more than an abstract need or desire for [the benefit] . . . . He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
While the plaintiffs argue that DACA created such a claim of entitlement, it did not. On its face, DACA explicitly conferred no protected property or liberty interest, making deferred action putatively available on a discretionary case-by-case basis for twoyear periods that could be terminated at any time at the Secretary’s discretion. See Napolitano Memorandum at 2–3; AAADC, 525 U.S. at 484–85. The memorandum itself acknowledged that such rights could be conferred only by “Congress, acting through its legislative authority.” Id. at 3; see also Smith v. Ashcroft, 295 F.3d 425, 429 (4th Cir. 2002) (noting that for a statute to create a liberty or property interest, “it must confer more than a mere expectation (even one supported by consistent government practice) of
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a benefit”). Having failed to show a protected interest, the plaintiffs’ due process claim fails.
The plaintiffs may have serious concerns about our nation’s immigration laws and the Department’s policy of enforcing those laws. But an understandable policy concern is not a legally cognizable right. The rescission of DACA simply does not generate a due process claim. B. Equal Protection
The plaintiffs also argue that the rescission of DACA violates the Fifth Amendment’s guarantee of equal protection by targeting a class of aliens for removal based on their race and national origin. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). They have failed to plausibly allege such a claim.
As both parties acknowledge, DACA is an enforcement policy, and so the plaintiffs’ challenge to its rescission is necessarily a selective-prosecution claim.7 In an ordinary selective-prosecution case, the plaintiffs would have to show that the government’s conduct “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 608 (1985); see also
7 The plaintiffs assert that they are not claiming selective prosecution “but instead that the Government violated the Equal Protection Clause by rescinding the DACA program in order to target a class defined by race and national origin.” Appellants’ Response Brief at 30. This attempted rewording makes no difference. The rescission of DACA reset the agency’s enforcement policies to no longer channel the exercise of enforcement discretion in a certain way. As the plaintiffs cannot dispute that the government has the statutory authority to enforce the immigration laws against them, any equal protection claim in this context must necessarily be a selective-prosecution claim.
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Armstrong, 517 U.S. at 465 (noting that “the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification’”) (emphasis added) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). There is also a “presumption that a prosecutor has acted lawfully,” which can be displaced only by “clear evidence.” AAADC, 525 U.S. at 489. But the plaintiffs’ burden is even higher in this case, because the rescission of DACA only applies to aliens who are in this country illegally. Such an alien “has no constitutional right to assert selective enforcement as a defense against his deportation,” with a possible exception for “rare” cases of particularly “outrageous” discrimination. Id. at 488, 491.
Here, both DACA and its rescission are, on their face, neutral policies. Logically, the presumption of lawfulness that applies in individual selective-prosecution cases is at least as strong when applied to neutral policies promulgated by senior Executive Branch officials. And the plaintiffs must allege facts that, if true, plausibly suggest that this presumption can be overcome and replaced with an inference of outrageous discrimination.
The plaintiffs have alleged two sets of facts to support their claim of discrimination. First, they argue that since 93% of DACA recipients are Latino, the program’s rescission had a disparate impact. A selective-prosecution claim normally requires differential treatment of “similarly situated individuals of a different race.” Armstrong, 517 U.S. at 465. Yet who is “similarly situated” to DACA recipients except other DACA recipients? Setting aside the closely related and now-rescinded DAPA program, DACA stands alone as a unique exercise of Executive authority. While there
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are other deferred action programs (many of which are statutory), none resembles DACA. And the Department rescinded DACA for all recipients, not just for those of a particular ethnicity or nationality.
Second, the plaintiffs rely on presidential campaign tweets, which they claim show invidious animus. But the plaintiffs must create a plausible inference that the same animus allegedly underlying these statements also motivated the Attorney General and the Acting Secretary to take the official government actions at issue. Their complaint simply lacks the connective tissue required to draw that inference. There is also an “obvious alternative explanation” for these officials’ actions. Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009). As the record shows, DACA has long been politically controversial. It “should come as no surprise,” id., that well-known policy differences would lead cabinet officials in a new administration to change a controversial government policy. See Memorandum from John Kelly, Secretary, Dep’t of Homeland Sec., “Enforcement of the Immigration Laws to Serve the National Interest” 2 (Feb. 20, 2017) (setting out the Administration’s new enforcement policies and stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement”). Changes in government policy are perfectly lawful, and for a selective-prosecution claim, we must presume that the Attorney General and the Acting Secretary were motivated by such a lawful purpose. AAADC, 525 U.S. at 489. The plaintiffs allege no facts plausibly displacing that presumption.

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In short, the plaintiffs have presented no evidence that racial motivations played any part in either the former Attorney General’s advice or the former Acting Secretary’s decision to rescind DACA. Therefore, I would dismiss the equal protection claim.
IV. Information-Sharing Policy The Majority is correct that the plaintiffs’ estoppel claim against the Department is baseless. The availability of equitable estoppel against the government is controversial under any circumstances. See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 419–21 (1990). The issue remains unresolved by the Supreme Court. See id. at 423. And we have recognized that if such a doctrine is ever justified in this context, there must be “affirmative misconduct by government agents.” Dawkins v. Witt, 318 F.3d 606, 611 (4th Cir. 2003) (citing INS v. Hibi, 414 U.S. 5, 8 (1973)). In any case, the mere fact that the Department explicitly told applicants that its information-sharing policy “may be modified, superseded, or rescinded at any time” and that the policy “may not be relied upon to create any right or benefit,” J.A. 1004, is enough to end our analysis. There was nothing for the plaintiffs to rely on for the proposition that their information was immune from disclosure. Additionally, even if the doctrine of estoppel applied here, that would not justify the district court’s nationwide injunction. See Gill v. Whitford, 138 S. Ct. 1916, 1930–31, 1934 (2018); Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379, 394 (4th Cir. 2001) (abrogated on other grounds). This potent judicial tool was largely unheard-of until the mid-twentieth century. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 428 (2017). These broad injunctions pose
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many drawbacks that can quickly outweigh their benefits, particularly when they are

overused (and overused repeatedly). Among other things, such injunctions sharpen

plaintiffs’ incentives to forum-shop while inhibiting the proper ventilation of difficult

legal issues by deterring other lower courts from grappling with them. See id. at 460–61.

Under our decentralized and multifaceted judicial system, judges must scrutinize the

scope of the injunctive remedies they fashion. Even assuming a nationwide injunction

could be appropriate in some case, an injunction that is limited to the plaintiffs should

generally suffice.

*

*

*

We in the Judicial Branch have a narrowly circumscribed role. It is not our place

to second-guess the wisdom of the discretionary decisions made by the other Branches.

The rescission of DACA was a controversial and contentious decision, but one that was

committed to the Executive Branch. For this reason, I respectfully dissent.

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 Case 8:17-cv-02942-PWG Document 97 Filed 07/17/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CASA DE MARYLAND, et al.,

*

Plaintiffs,

*

v.

*

Civil No. PWG-17-2942

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

* * ******

ORDER

This case regarding the U.S. Department of Homeland Security’s rescission of the

Deferred Action for Childhood Arrivals (“DACA”) policy is on remand from the Fourth Circuit

Court of Appeals. On March 12, 2018, Judge Titus granted in part and denied in part

Defendants’ motion to dismiss or, in the alternative, for summary judgment. Memorandum

Order, ECF No. 46, amended by ECF No. 49 (Mar. 15, 2018). On appeal, the Fourth Circuit

affirmed in part, reversed in part, vacated in part, dismissed in part, and remanded. Judgment,

ECF No. 83, published at Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d 684 (4th

Cir. 2019).

The Fourth Circuit held that “the Department’s decision to rescind DACA was arbitrary

and capricious and must be set aside.” Casa De Maryland v. U.S. Dep't of Homeland Sec., 924

F.3d at 705. Therefore, the Fourth Circuit “reverse[d] the district court’s ruling sustaining the

rescission of the policy as valid under 5 U.S.C. § 706(2)(A)” and “vacated [DACA’s rescission]

as arbitrary and capricious.” Id. at 706. Likewise, in separate challenges to the DACA

rescission, on June 18, 2020, the Supreme Court held that the rescission of DACA “was arbitrary

and capricious in violation of the APA.” Dep't of Homeland Sec. v. Regents of the Univ. of

Case 8:17-cv-02942-PWG Document 97 Filed 07/17/20 Page 2 of 4
California, 140 S. Ct. 1891, 1915 (2020). The DACA rescission occurred on September 5, 2017. See Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 693–94. Therefore, the Fourth Circuit explained that its Judgment vacating the DACA rescission “restores DACA to its pre-September 5, 2017, status . . . .” Id. at 706.
Plaintiffs also challenged the September 5, 2017 changes to DACA’s information-sharing policy and requested an injunction based on equitable estoppel. Judge Titus granted the injunction, but the Fourth Circuit held that “Plaintiffs could not reasonably believe that the information they provided as part of their DACA application would never be used for immigration enforcement purposes” and “Plaintiffs’ equitable estoppel claim thus necessarily fails.” Id. at 705–06. Accordingly, the Fourth Circuit “reverse[d] the district court’s ruling finding Plaintiffs entitled to injunctive relief on equitable estoppel grounds, reverse[d] the grant of summary judgment in Plaintiffs’ favor, and vacate[d] the injunction.” Id. at 706. Nonetheless, the Fourth Circuit explained that its decision “restor[ing] DACA to its preSeptember 5, 2017, status, render[ed] a nullity the information-sharing policies announced on September 5.” Id. at 706.
Finally, the Fourth Circuit dismissed Plaintiffs’ constitutional claims. The Fourth Circuit “decline[d] to decide whether DACA’s rescission violates the Fifth Amendment’s due process and equal protection guarantees under the ‘well established principle governing the prudent exercise of this [c]ourt’s jurisdiction that normally the [c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case.’” Id. (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)) (alterations in original). The Fourth Circuit “also decline[d] to decide whether Plaintiffs’ Fifth Amendment rights were violated by the policies announced on September 5, 2017, regarding the sharing of personal
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information from DACA applicants” given that its decision “render[ed] a nullity the
information-sharing policies announced on September 5.” Id. Therefore, the Fourth Circuit
“vacate[d] the district court’s judgment on these issues and dismiss[ed] those claims.” Id. at
706–07.
The Fourth Circuit remanded this case to this Court for further proceedings consistent
with its Judgment. Id. Based on the foregoing, all of the issues in this case have been
determined. Therefore, in accordance with the Judgment of the Fourth Circuit Court of Appeals,
ECF No. 83, and the Supreme Court’s decision in Dep't of Homeland Sec. v. Regents of the Univ.
of California, 140 S. Ct. 1891 (2020), it is this 17th day of July, 2020, by the United States
District Court for the District of Maryland, hereby ORDERED that:
1. The Court ADJUDGES AND DECLARES that the DACA rescission and actions taken by Defendants to rescind the DACA policy are arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A);1
2. The rescission of the DACA policy is VACATED, and the policy is restored to its pre-September 5, 2017 status;2
3. Defendants and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law;3
4. Plaintiff’s estoppel claim and request for an injunction as it pertains to DACA’s information-sharing policies are DENIED;4
1 See Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 705–06 (holding that the DACA rescission was arbitrary and capricious under 5 U.S.C. § 706(2)(A)); Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. at 1913–15 (same). 2 See Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 693–94, 706 (“Our decision 2 See Casa De Maryland v. U.S. Dep't of Homeland Sec., 924 F.3d at 693–94, 706 (“Our decision today restores DACA to its pre-September 5, 2017, status . . . .”). 3 See id. at 706 (“DACA’s rescission is vacated as arbitrary and capricious, and the matter is remanded for further proceedings consistent with this opinion.”). 4 See id. at 705–06 (“We reverse the district court’s ruling finding Plaintiffs entitled to injunctive relief on equitable estoppel grounds, reverse the grant of summary judgment in Plaintiffs’ favor, and vacate the injunction.”).
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5. Nonetheless, because this Order restores the DACA policy to its pre-September 5, 2017 status, the information-sharing polices announced on September 5, 2017 are VOID;5
6. Under the doctrine of constitutional avoidance, and given that the informationsharing policies announced on September 5, 2017 are void, this Court does not address Plaintiffs’ constitutional claims and those claims are DISMISSED;6
7. The Clerk SHALL CLOSE this case. __/S/___________________ Paul W. Grimm United States District Judge
5 See id. at 706 (“Our decision today restores DACA to its pre-September 5, 2017, status, rendering a nullity the information-sharing policies announced on September 5.”). 6 See id. at 706–07 (“Because we find it unnecessary to decide Plaintiffs’ constitutional challenges to DACA’s rescission and the related changes to the Department’s policies governing use of information provided by DACA applicants, we vacate the district court’s judgment on these issues and dismiss those claims.”).
4