Case: 3:17-cv-05813-WHA As of: 02/17/2020 08:04 PM PST 1 of 11
ADRMOP,APPEAL,REFDIS,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−05813−WHA

County of Santa Clara et al v. Trump et al Assigned to: Judge William Alsup Referred to: Magistrate Judge Sallie Kim Relate Case Cases: 3:17−cv−05211−WHA
3:17−cv−05235−WHA
3:17−cv−05329−WHA
3:17−cv−05380−WHA
Case in other court: USCA 9th Circuit, 18−15072 Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 10/10/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

County of Santa Clara

represented by Greta Suzanne Hansen Office of the County Counsel, Santa Clara County 70 West Hedding Street 9th Floor, East Wing San Jose, Ca 95110 United Sta 408−299−5930 Fax: 408−292−7240 Email: greta.hansen@cco.sccgov.org ATTORNEY TO BE NOTICED

James Robyzad Williams Santa Clara County Counsel's Office 70 W. Hedding Street 9th Floor, East Wing San Jose, CA 95110 408−299−6936 Fax: 408−292−7240 Email: james.williams@cco.sccgov.org ATTORNEY TO BE NOTICED

Jonathan David Weissglass Law Office of Jonathan Weissglass 1939 Harrison Street Suite 150−B Oakland, CA 94612 510−836−4200 Email: jonathan@weissglass.com TERMINATED: 02/05/2018

Laura Susan Trice Office of the County Counsel County of Santa Clara 70 W. Hedding Street East Wing, 9th Floor San Jose, CA 95110 408−299−5900 Fax: 408−292−7240 Email: Laura.Trice@cco.sccgov.org ATTORNEY TO BE NOTICED

Marcelo Quinones Office of the County Counsel Santa Clara County 70 W. Hedding Street

Case: 3:17-cv-05813-WHA As of: 02/17/2020 08:04 PM PST 2 of 11

Plaintiff
Service Employees International Union Local 521

East Wing, 9th Floor San Jose, CA 95110 408−299−5997 Email: marcelo.quinones@cco.sccgov.org ATTORNEY TO BE NOTICED
Stacey M. Leyton Altshuler Berzon LLP 177 Post St. Ste 300 San Francisco, CA 94108 415 421−7151 Email: sleyton@altshulerberzon.com ATTORNEY TO BE NOTICED
Eric Prince Brown Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: ebrown@altber.com TERMINATED: 07/03/2019 ATTORNEY TO BE NOTICED
represented by Greta Suzanne Hansen (See above for address) ATTORNEY TO BE NOTICED
James Robyzad Williams (See above for address) ATTORNEY TO BE NOTICED
Jonathan David Weissglass (See above for address) TERMINATED: 02/05/2018
Laura Susan Trice (See above for address) ATTORNEY TO BE NOTICED
Marcelo Quinones (See above for address) ATTORNEY TO BE NOTICED
Stacey M. Leyton (See above for address) ATTORNEY TO BE NOTICED
Eric Prince Brown (See above for address) TERMINATED: 07/03/2019 ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his official capacity as President of the United States

represented by Brad Prescott Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−514−3374

Case: 3:17-cv-05813-WHA As of: 02/17/2020 08:04 PM PST 3 of 11

Defendant Jefferson Beauregard Sessions in his official capacity as Attorney General of the United States
Defendant Kirstjen Nielson In her official capacity as Acting Secretary of the Department of Homeland Security
Defendant U.S. Department of Homeland Security
Amicus National Education Association Of The United States
Amicus Association of California School Administrators
Amicus Berkeley Unified School District
Amicus Moreno Valley Unified School District
Amicus San Diego Unified School District
Amicus

Fax: 202−616−8460 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan David Weissglass (See above for address) TERMINATED: 02/05/2018
represented by Brad Prescott Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emma Leheny National Education Association 1201 16th Street N.W. Washington, DC 20036 (202) 822−7060 Fax: (202) 822−7033 Email: eleheny@nea.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED

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West Contra Costa Unified School District
Amicus California Faculty Association
Amicus California Federation of Teachers
Amicus California School Boards Association
Amicus California Teachers Association
Amicus Los Angeles County Superintendent of Schools
Amicus Los Angeles County Board of Education
Amicus Los Angeles Unified School District
Amicus Oakland Unified School District
Amicus Sacramento City Unified School District

represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED
represented by Emma Leheny (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/26/2017
10/10/2017

# Docket Text
CASE REFERRED to Magistrate Judge Sallie Kim for Discovery (ahm, COURT STAFF) (Filed on 9/26/2017) (Entered: 10/25/2017)
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400, receipt number 0971−11783372.). Filed byCounty of Santa Clara, SEIU Local 521. (Attachments: # 1 Civil Cover Sheet)(Brown, Eric) (Filed on 10/10/2017) (Entered: 10/10/2017)

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10/10/2017
10/10/2017 10/10/2017

2 Certificate of Interested Entities by County of Santa Clara, SEIU Local 521 (Brown, Eric) (Filed on 10/10/2017) (Entered: 10/10/2017)
3 Proposed Summons. (Brown, Eric) (Filed on 10/10/2017) (Entered: 10/10/2017)
4 Case assigned to Magistrate Judge Howard R. Lloyd.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

10/10/2017
10/10/2017 10/10/2017 10/10/2017 10/10/2017 10/16/2017 10/16/2017 10/16/2017 10/16/2017 10/16/2017 10/17/2017
10/17/2017

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 10/24/2017. (cfeS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 1/2/2018. Initial Case Management Conference set for 1/9/2018 01:30 PM in Courtroom 2, 5th Floor, San Jose before Magistrate Judge Howard R. Lloyd. (dhmS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
6 Summons Issued as to Donald J. Trump, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
7 Summons Issued as to Jefferson Beauregard Sessions, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
8 Summons Issued as to Elaine Duke, U.S. Department of Homeland Security, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
9 Summons Issued as to, U.S. Attorney's office for the Northern District of Calfiornia Attn: Civil Process Clerk and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 10/10/2017) (Entered: 10/10/2017)
10 ORDER RELATING CASE. Signed by Judge Alsup on 10/16/2017. (whalc1, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)
Related cases: Create association to 3:17−cv−05211−WHA. (sxbS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/17/2017)
Related cases: Create association to 3:17−cv−05235−WHA. (sxbS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/17/2017)
Related cases: Create association to 3:17−cv−05380−WHA. (sxbS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/17/2017)
Related cases: Create association to 3:17−cv−05329−WHA. (sxbS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/17/2017)
11 ORDER REASSIGNING CASE. Case reassigned to Judge William Alsup for all further proceedings pursuant to Order Relating Cases. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Magistrate Judge Howard R. Lloyd no longer assigned to the case. (Attachments: # 1 Notice of Eligibilityf or Video Recording)(bwS, COURT STAFF) (Filed on 10/17/2017) (Entered: 10/17/2017)
12 ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD by Judge William Alsup granting in part and denying in part (65) Motion Complete Administrative Record in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/17/2017) (Entered: 10/17/2017)

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10/18/2017 10/18/2017 10/19/2017
10/19/2017 10/19/2017
10/20/2017 10/20/2017 10/20/2017 10/23/2017 10/24/2017 10/24/2017 10/25/2017 10/25/2017
10/26/2017 10/27/2017

13 ORDER TO COMPILE SUPPLEMENT FORTHWITH re (12 in 3:17−cv−05813−WHA) Order on Motion for Miscellaneous Relief, Signed by Judge Alsup on 10/18/2017. (whalc1, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)
14 NOTICE of Appearance by Brad Prescott Rosenberg (Rosenberg, Brad) (Filed on 10/18/2017) (Entered: 10/18/2017)
15 ORDER ADOPTING STIPULATED BRIEFING SCHEDULE FOR DEFENDANTS' MOTION TO STAY ALL PROCEEDINGS by Judge William Alsup granting (82) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
Terminate Hearing re (15 in 3:17−cv−05813−WHA) Order on Stipulation, (whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
16 ORDER RE MOTION TO STAY PROCEEDINGS by Judge William Alsup denying (81) Motion to Stay in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
17 NOTICE by Elaine Duke, Jefferson Beauregard Sessions, Donald J. Trump, U.S. Department of Homeland Security of Filing of Petition for Writ of Mandamus (Attachments: # 1 Petition for Writ of Mandamus)(Rosenberg, Brad) (Filed on 10/20/2017) (Entered: 10/20/2017)
21 USCA Case Number 17−72917 USCA 9th Circuit re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
22 ORDER of USCA re Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/24/2017)
18 ANSWER BY DISTRICT COURT TO PETITION FOR WRIT OF MANDAMUS Signed by Judge Alsup on 10/23/2017. (whalc1, COURT STAFF) (Filed on 10/23/2017) (Entered: 10/23/2017)
19 ORDER by Magistrate Judge Sallie Kim granting (91) Unopposed Administrative Motion for Additional Pages for Joint Discovery Letter Brief in case 3:17−cv−05211−WHA. (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
20 ORDER RE: DEPOSITION OF ACTING SECRETARY OF HOMELAND SECURITY DUKE by Magistrate Judge Sallie Kim (Re: (88) Discovery Letter Brief in case 3:17−cv−05211−WHA). (mklS, COURT STAFF) (Filed on 10/24/2017) (Entered: 10/24/2017)
23 FURTHER CASE MANAGEMENT ORDER RE MOTION SCHEDULE Signed by Judge Alsup on 10/25/2017. (whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
24 ORDER GRANTING STIPULATION REGARDING AMICUS BRIEFING AS MODIFIED by Judge William Alsup granting as modified (101) Stipulation in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/25/2017) (Entered: 10/25/2017)
30 ORDER of USCA regarding oral arguments and amicus briefs as to (21 in 3:17−cv−05813−WHA, 38 in 3:17−cv−05329−WHA, 95 in 317−cv−05211−WHA, 47 in 3:17−cv−05235−WHA, 34 in 3:17−cv−05380−WHA) (sxbS, COURT STAFF) (Filed on 10/26/2017) (Entered: 11/03/2017)
25 ORDER GRANTING PLAINTIFFS' UNOPPOSED ADMINISTRATIVE MOTION TO AMEND PAGE LIMITS IN CONNECTION WITH MOTION FOR PROVISIONAL RELIEF by Judge William Alsup granting (103) Administrative Motion to alter page limits in case

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10/27/2017 10/31/2017 11/01/2017 11/01/2017
11/01/2017
11/08/2017 11/16/2017 11/20/2017 11/20/2017 11/21/2017

3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 10/27/2017) (Entered: 10/27/2017)
26 CERTIFICATE OF SERVICE by County of Santa Clara, Service Employees International Union Local 521 re 4 Case Assigned by Intake,,, 5 Initial Case Management Scheduling Order with ADR Deadlines, 2 Certificate of Interested Entities, 8 Summons Issued as to USA, 1 Complaint, 9 Summons Issued as to USA, 6 Summons Issued as to USA, 7 Summons Issued as to USA (Brown, Eric) (Filed on 10/27/2017) (Entered: 10/27/2017)
31 ORDER of USCA regarding amicus briefs as to (21 in 3:17−cv−05813−WHA, 38 in 3:17−cv−05329−WHA, 95 in 3:17−cv−05211−WHA, 47 in 3:17−cv−05235−WHA, 34 in 3:17−cv−05380−WHA) (sxbS, COURT STAFF) (Filed on 10/31/2017) (Entered: 11/03/2017)
27 PROTECTIVE ORDER by Judge William Alsup granting (115) Motion for Protective Order in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
28 ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANTS by Judge William Alsup granting (110) Administrative Motion leave to file amicus curiae brief in case 3:17−cv−05211−WHA.Associated Cases: 3:17−cv−05211−WHA, 3:17−cv−05235−WHA, 3:17−cv−05329−WHA, 3:17−cv−05380−WHA, 3:17−cv−05813−WHA(whalc1, COURT STAFF) (Filed on 11/1/2017) (Entered: 11/01/2017)
29 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by National Education Association Of The United States, Association of California School Administrators, Berkeley Unified School District, Moreno Valley Unified School District, San Diego Unified School District, West Contra Costa Unified School District, California Faculty Association, California Federation of Teachers, California School Boards Association, California Teachers Association, Los Angeles County Superintendent of Schools, Los Angeles County Board of Education, Los Angeles Unified School District, Oakland Unified School District, Sacramento City Unified School District. Responses due by 11/6/2017. (Attachments: # 1 Exhibit Amicus Curiae Brief)(Leheny, Emma) (Filed on 11/1/2017) (Entered: 11/01/2017)
32 ORDER RE MOTION TO MAINTAIN ANONYMITY by Judge Alsup granting in part and denying in part (125) Administrative Motion maintain anonymity; granting in part and denying in part (126) Administrative Motion to File Under Seal in case 3:17−cv−05211−WHA. (whalc1, COURT STAFF) (Filed on 11/8/2017) (Entered: 11/08/2017)
33 ORDER TO FILE COMPLETED ADMINISTRATIVE RECORD AND PROPOSE SCHEDULE Signed by Judge Alsup on 11/16/2017. (whalc1, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)
34 TENTATIVE ORDER RE MOTIONS TO STAY DISCOVERY AND COMPLETION OF THE ADMINISTRATIVE RECORD Signed by Judge Alsup on 11/20/2017. (Attachments: # 1 Tentative Order)(whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
35 ONE−MONTH CONTINUANCE OF DUE DATE FOR AUGMENTED ADMINISTRATIVE RECORD AND TEMPORARY STAY OF DISCOVERY by Judge Alsup re (190) Motion to Stay; re (191) Motion to Stay; re (192) Stipulation in case 3:17−cv−05211−WHA. (whalc1, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
36 ORDER of USCA denying petition (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)

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11/21/2017 11/21/2017 11/21/2017 11/22/2017 12/01/2017 12/06/2017 12/20/2017
12/21/2017
12/21/2017 12/21/2017 12/27/2017 01/09/2018

37 ORDER of USCA Dismissing Motion for Stay filed by government. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
38 ORDER of USCA regarding Motion for Stay. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
39 Memorandum of USCA regarding Administrative Record. (sxbS, COURT STAFF) (Filed on 11/21/2017) (Entered: 11/21/2017)
40 ORDER of USCA denying Petition for Writ of Mandamus (sxbS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
41 NOTICE by Elaine Duke, Jefferson Beauregard Sessions, Donald J. Trump, U.S. Department of Homeland Security of Filing of Petition for Writ of Mandamus and Application for a Stay in the United States Supreme Court (Attachments: # 1 Petition for a Writ of Mandamus, # 2 Application for a Stay)(Rosenberg, Brad) (Filed on 12/1/2017) (Entered: 12/01/2017)
42 NOTICE OF FILING OF STATEMENT OF DISTRICT COURT IN RESPONSE TO APPLICATION FOR A STAY Signed by Judge Alsup on 12/6/2017. (whalc1, COURT STAFF) (Filed on 12/6/2017) (Entered: 12/06/2017)
43 Minute Entry for proceedings held before Judge William Alsup:
Motion Hearing held on 12/20/2017 re 114 MOTION to Dismiss All N.D. Cal. DACA Cases and Memorandum in Support filed by Elaine Duke, United States Department of Homeland Security; 111 MOTION for Preliminary Injunction −− Plaintiffs' Motion for Provisional Relie filed by UC Regents, Janet Napolitano. Motions are submitted.
Total Time in Court: 3 Hours; 40 Minutes. Court Reporter: Lydia Zinn.
Plaintiff Attorneys: Jeffrey Davidson, Megan Crowley, Alexander Berengaut, Mark Lynch, Lanny Breuer, James Zahradka, Brian Danitz, Mark Rosenbaum, Ethan Dettmer, Eric Brown. Defendant Attorneys: Brad Rosenberg, Kate Bailey, Brett Shumate.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Date Filed: 12/20/2017) (Entered: 12/20/2017)
44 Transcript of Proceedings held on 12/20/2017, before Judge William Alsup. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (222 in 3:17−cv−05211−WHA) Transcript Order, (220 in 3:17−cv−05211−WHA) Transcript Order ) Redacted Transcript Deadline set for 1/22/2018. Release of Transcript Restriction set for 3/21/2018. (Zinn, Lydia) (Filed on 12/21/2017) (Entered: 12/21/2017)
45 PER CURIAM of Supreme Court of the United States on Petition for Writ of Mandamus vacating judgment of USCA and remanding case. (sxbS, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
46 STAY OF NOVEMBER 20 ORDER 197 . Signed by Judge Alsup on 12/21/2017. (whalc1, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)
47 ORDER of USCA regarding Government's threshold arguments and certification for appeal (sxbS, COURT STAFF) (Filed on 12/27/2017) (Entered: 12/27/2017)
48 ORDER DENYING 114 FRCP 12(b)(1) DISMISSAL AND GRANTING 111 PROVISIONAL RELIEF (granting 227 ) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/9/2018) (Entered: 01/09/2018)

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01/10/2018
01/10/2018 01/10/2018 01/11/2018

49 CLERK'S NOTICE: Discovery Hearing set for 1/10/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Personal appearances are preferred, but given the short notice counsel may appear by telephone. Only one attorney per party to speak if appearing by telephone, although other attorneys for the same party may listen to the hearing. Attorneys wishing to participate by telephone shall contact the Court by email to SKCRD@cand.uscourts.gov to request the dial−in information. In the email, counsel shall identify which party they represent and the name(s) of the attorney(s) that will be appearing. The Court will issue a follow up order with specific topics to be addressed during the hearing. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
50 CLERK'S NOTICE Correcting Date/Time of Discovery Hearing: Discovery Hearing set for 1/11/2018 10:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/10/2018) Modified on 1/10/2018 (mklS, COURT STAFF). (Entered: 01/10/2018)
51 ORDER REGARDING DISCOVERY HEARING ON 1/11/2018. Signed by Magistrate Judge Sallie Kim on 1/10/2018. (mklS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
52 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Discovery Hearing held on 1/11/2018. The Court and parties discuss the status of discovery. Further Discovery Hearing set for 1/30/2018 09:30 AM in Courtroom A, 15th Floor, San Francisco before Magistrate Judge Sallie Kim. Defense counsel may appear by telephone. (FTR Time: 10:32−10:41.)

Plaintiff Attorney: Jeffrey Davidson; James Zahradka; Eric Brown; Justin Berger; Kelsey Helland. Defendant Attorney: Brad Rosenberg (by telephone).

01/12/2018 01/16/2018
01/22/2018 01/23/2018 01/26/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 1/11/2018) (Entered: 01/11/2018)
53 ORDER GRANTING IN PART 114 DEFENDANTS' MOTION TO DISMISS UNDER FRCP 12(b)(6) by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)
54 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump, U.S. Department of Homeland Security. Appeal of Order on Motion for Preliminary Injunction 48 , Order on Motion to Dismiss 53 (Appeal fee FEE WAIVED.) (Rosenberg, Brad) (Filed on 1/16/2018) (Entered: 01/16/2018)
55 CLERK'S NOTICE: The Discovery Hearing currently set for 1/30/2018 at 9:30 AM before Magistrate Judge Sallie Kim is vacated. (This is a text−only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)
56 ORDER GRANTING (246) STIPULATION RE EXTENSION OF TIME TO RESPOND TO COMPLAINTS AND TO SEEK LEAVE TO FILE AMENDED COMPLAINTS by Judge William Alsup.(whalc1, COURT STAFF) (Filed on 1/23/2018) (Entered: 01/23/2018)
57 USCA Acknowledgment of Receipt of Permission to Appeal 18−80004 USCA 9th Circuit for (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump. (sxbS, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)

Case: 3:17-cv-05813-WHA As of: 02/17/2020 08:04 PM PST 10 of 11

01/29/2018
01/31/2018 01/31/2018 01/31/2018 02/01/2018
02/01/2018
02/01/2018
02/01/2018 02/01/2018 02/01/2018 02/01/2018
02/02/2018 02/22/2018 03/08/2018 03/19/2018 03/22/2018 04/04/2018

58 USCA Case Number 18−15072 USCA 9th Circuit for 54 Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump. (sxbS, COURT STAFF) (Filed on 1/29/2018) (Entered: 01/29/2018)
59 Judgment of Supreme Court of United States Washington DC re Writ of Mandamus (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
60 USCA Case Number 18−80007 USCA 9th Circuit for Acknowledgment of Receipt for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
61 USCA Case Number 18−80008 USCA 9th Circuit acknowledgment receipt of Petition for Permission to Appeal. (sxbS, COURT STAFF) (Filed on 1/31/2018) (Entered: 01/31/2018)
62 ORDER of USCA granting petition for permission to appeal as to (92 in 3:17−cv−05235−WHA, 251 in 3:17−cv−05211−WHA, 75 in 3:17−cv−05329−WHA, 69 in 3:17−cv−05380−WHA, 57 in 3:17−cv−05813−WHA) USCA Case Number 18−80004 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
63 ORDER of USCA granting petition for permission to appeal as to (253 in 3:17−cv−05211−WHA, 73 in 3:17−cv−05380−WHA, 60 in 3:17−cv−05813−WHA, 95 in 3:17−cv−05235−WHA, 78 in 3:17−cv−05329−WHA) USCA Case Number 18−80007 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
64 ORDER of USCA granting petition for permission to appeal as to (79 in 3:17−cv−05329−WHA, 96 in 3:17−cv−05235−WHA, 61 in 3:17−cv−05813−WHA, 74 in 3:17−cv−05380−WHA, 254 in 3:17−cv−05211−WHA) USCA Case Number 18−80008 (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
65 USCA Case Number 18−15128 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
66 USCA Case Number 18−15133 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
67 USCA Case Number 18−15134 USCA 9th Circuit and Time Schedule Order (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
68 ORDER of Supreme Court of U.S. Washington DC re filing of petition for writ of certiorari as to (92 in 3:17−cv−05235−WHA, 251 in 3:17−cv−05211−WHA, 75 in 3:17−cv−05329−WHA, 69 in 3:17−cv−05380−WHA, 57 in 3:17−cv−05813−WHA) USCA Case Number,,, (62 in 3:17−cv−05813−WHA, 97 in 3:17−cv−05235−WHA, 75 in 3:17−cv−05380−WHA, 255 in 3:17−cv−05211−WHA, 80 in 3:17−cv−05329−WHA) USCA Order, (sxbS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/01/2018)
69 NOTICE of Change In Counsel by Jonathan David Weissglass (Weissglass, Jonathan) (Filed on 2/2/2018) (Entered: 02/02/2018)
70 U.S. Supreme Court Receipt acknowledging Petition for Writ of Certiorari filed on 1/18/18 as No. 17−1003. (sxbS, COURT STAFF) (Filed on 2/22/2018) (Entered: 02/22/2018)
71 ORDER RE DEADLINE FOR PLAINTIFFS TO MOVE FOR LEAVE TO FILE AMENDED COMPLAINTS. Signed by Judge Alsup on 3/8/2018. (whalc1, COURT STAFF) (Filed on 3/8/2018) (Entered: 03/08/2018)
72 ORDER of USCA re motion and panel of Ninth Circuit Judges. (sxbS, COURT STAFF) (Filed on 3/19/2018) (Entered: 03/19/2018)
73 USCA Acknowledgment of Receipt for Permission to Appeal: Case Number 18−80037 USCA 9th Circuit (sxbS, COURT STAFF) (Filed on 3/22/2018) (Entered: 03/22/2018)
74 ORDER OF RECUSAL. Signed by Magistrate Judge Sallie Kim on 4/4/2018. (mklS, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)

Case: 3:17-cv-05813-WHA As of: 02/17/2020 08:04 PM PST 11 of 11

06/26/2018 11/08/2018
02/25/2019
07/03/2019

75 ORDER REFERRING CASE TO MAGISTRATE JUDGE SALLIE KIM FOR DISCOVERY PURPOSES. Signed by Judge Alsup on 6/26/2018. (whalc1, COURT STAFF) (Filed on 6/26/2018) (Entered: 06/26/2018)
76 USCA JUDGMENT as to (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (ddkS, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/21/2018)
77 MANDATE of USCA as to (89 in 3:17−cv−05235−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, United States Department of Homeland Security, (241 in 3:17−cv−05211−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States Department of Homeland Security, (72 in 3:17−cv−05329−WHA) Notice of Appeal, filed by Kirstjen Nielson, United States of America, Donald J. Trump, (66 in 3:17−cv−05380−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, United States of America, Donald J. Trump, (54 in 3:17−cv−05813−WHA) Notice of Appeal, filed by U.S. Department of Homeland Security, Kirstjen Nielson, Jefferson Beauregard Sessions, Donald J. Trump (amgS, COURT STAFF) (Filed on 2/25/2019) (Entered: 02/27/2019)
78 NOTICE of Change In Counsel by Eric Prince Brown (Brown, Eric) (Filed on 7/3/2019) (Entered: 07/03/2019)

 
 Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 1 of 28

1 JAMES R. WILLIAMS, County Counsel (SBN 271253) GRETA S. HANSEN (SBN 251471)

2 LAURA S. TRICE (SBN 284837) MARCELO QUIÑONES (SBN 279132)

3 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA

4

70 West Hedding Street East Wing, Ninth Floor

5

San Jose, CA 95110-1770 Telephone: (408) 299-5900

6

Facsimile: (408) 292-7240 laura.trice@cco.sccgov.org

7 marcelo.quinones@cco.sccgov.org

8 Attorneys for Plaintiff County of Santa Clara

9

JONATHAN WEISSGLASS (SBN 185008) STACEY M. LEYTON (SBN 203827)

10

ERIC P. BROWN (SBN 284245) ALTSHULER BERZON LLP

11

177 Post St., Suite 300 San Francisco, CA 94108

Telephone: (415) 421-7151 12 Facsimile: (415) 362-8064

jweissglass@altber.com 13 sleyton@altber.com

ebrown@altber.com 14

Attorneys for all Plaintiffs 15

16

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN JOSE DIVISION

18

COUNTY OF SANTA CLARA and

19 SERVICE EMPLOYEES

INTERNATIONAL UNION LOCAL 521,

20

Plaintiffs,

21

v.

Case No. ________________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22 DONALD J. TRUMP, in his official capacity as President of the United States;
23 JEFFERSON BEAUREGARD SESSIONS, in his official capacity as
24 Attorney General of the United States; and ELAINE DUKE, in her official capacity as
25 Acting Secretary of the Department of Homeland Security; and U. S.
26 DEPARTMENT OF HOMELAND SECURITY,
27 Defendants.
28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 2 of 28

1

INTRODUCTION

2

1. Plaintiffs County of Santa Clara (“County”) and Service Employees International

3 Union Local 521 (“Local 521”), acting in its capacity as the representative of more than 10,000

4 County employees, challenge the actions of Defendants President Donald J. Trump, Attorney

5 General Jefferson Beauregard Sessions, and Acting Department of Homeland Security (“DHS”)

6 Secretary Elaine Duke related to the rescission of the Deferred Action for Childhood Arrivals

7 (“DACA”) program. DACA affords a two-year period of “deferred action” status for young people

8 who were brought to this country as children, meaning that recipients are not subject to immigration

9 enforcement actions during that time. Recipients are also afforded the opportunity to receive work

10 authorization, allowing them to work legally, report income, and pay taxes. Because of DACA,

11 approximately 800,000 young people, brought to this country as children, have been able to come

12 out of the shadows of American life, work legally to support themselves and their families, go to

13 school, pay taxes, and participate more fully in their communities. The DACA program has been

14 hugely successful. But the benefits the program provided communities locally and nationally are

15 now at risk, as are the futures of DACA recipients.

16

2. Because of the stringent requirements governing eligibility for the DACA program

17 from its inception, DACA recipients are undeniably contributing members of society who pose no

18 threat to public safety or national security. These individuals find themselves on the wrong side of

19 America’s immigration laws through no fault of their own, and have made substantial contributions

20 to their communities despite the constant threat of removal they faced prior to receiving DACA

21 status.

22

3. DACA has conferred innumerable benefits on recipients, their families, and their

23 communities. DACA recipients can live their lives in the open and more fully participate in civic

24 life, including by working legally, attending college (and receiving financial aid to do so), opening

25 bank accounts, paying taxes, and living free of the daily fear of deportation. The families of DACA

26 recipients benefit from the higher wages many recipients are able to earn and the stability of

27 knowing that loved ones will not be separated. The communities in which DACA recipients live

28 benefit not only from the taxes paid by recipients as they work legally and report income, but also

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 3 of 28

1 from DACA recipients’ increased willingness to interact with government institutions, such as by

2 contacting and cooperating with law enforcement.

3

4. To induce individuals to apply for DACA, the federal government assured potential

4 applicants that the information they provided in connection with the program would not be used for

5 immigration enforcement. These representations, made consistently throughout the life of the

6 DACA program, were crucial to encouraging participation. The government asked DACA

7 applicants to take a leap of faith in identifying themselves and, indirectly, their families, to the very

8 government agency that possesses the authority to detain them and ultimately to deport them from

9 the country. DACA applicants were asked to provide information concerning, among other things,

10 their names, addresses, places of birth, dates of entry to the United States, and any criminal histories.

11 Because of the huge risk undertaken by DACA applicants in providing this information to the

12 federal government, most were willing to do so only in reliance on the government’s repeated

13 assurances that this information would not be used for immigration enforcement purposes.

14

5. The DACA program also provided recipients the opportunity to renew their deferred

15 action status at the end of each two-year period for which status is granted. From the time that

16 DACA was implemented until Defendants’ recent actions, the federal government has consistently

17 assured DACA applicants that they will remain eligible for renewed status and work authorization as

18 long as they comply with all of the conditions of the program. This opportunity to renew is a critical

19 aspect of the program because it would make little sense for individuals to risk coming forward to

20 identify themselves as lacking regular immigration status in exchange for a temporary benefit.

21 Similarly, it would make little sense for employers, like the County, to expend the time and

22 resources to hire and train DACA recipients if their work authorization were so limited.

23

6. Despite the program’s extensive benefits, on September 5, 2017, Acting Secretary

24 Duke issued a memorandum formally rescinding DACA. The memorandum stated that DHS would

25 not consider any initial DACA applications received after September 5, 2017 and explained that

26 those individuals who currently have DACA status and work authorization would no longer be able

27 to renew that status after October 5, 2017. Unlike the administrative actions creating the DACA

28 program, which afforded officials significant discretion to decide on a case-by-case basis when it is

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
2

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 4 of 28

1 appropriate to grant deferred action status and work authorization, the policy announced by Acting

2 Secretary Duke’s September 5 memorandum is categorical – the DACA program is discontinued and

3 no individual, no matter how deserving, will be able to apply for deferred action and work

4 authorization pursuant to DACA. Acting Secretary Duke’s memorandum did not explain the

5 administration’s reasons for rescinding DACA (other than to speculate that it may be held unlawful,

6 despite the federal government’s previous position to the contrary), and gave no indication that the

7 administration had considered the benefits of the program before ending it so abruptly.

8

7. Defendants’ actions in rescinding the DACA program are unlawful. First, they

9 violate the Due Process Clause of the Fifth Amendment because they deprive Plaintiffs of

10 constitutionally protected interests, including Plaintiffs’ interests in their mutual employment

11 agreements and DACA recipients’ interest in the continuation of the DACA program, upon which

12 they have been induced to rely. Indeed, the DACA program permitted recipients to work legally, to

13 participate in other government programs, to open bank accounts, and to participate in civic life in

14 myriad ways which will now be unavailable to them. Each of these activities gives rise to an interest

15 protected by the Due Process Clause. Yet, deprivation of these interests has been accomplished

16 without the due process required by law. Moreover, insofar as the government uses the information

17 provided by DACA applicants for immigration enforcement purposes – and having broken one

18 promise, there is no reason to believe that Defendants intend to keep this subsidiary promise – such

19 use will independently violate the Due Process Clause. Under the Due Process Clause the

20 government may not induce vulnerable individuals to share information to obtain a benefit with the

21 promise that such information will not be used against them, only to turn around and use that

22 information against them. Immigration enforcement, like all government law enforcement, must be

23 fundamentally fair.

24

8. Second, Defendants’ actions violate the Administrative Procedure Act (“APA”), 5

25 U.S.C. §706(2)(A), because they constitute arbitrary and capricious decision-making. Indeed, this

26 case presents an archetypal example of arbitrary decision-making in that Defendants have terminated

27 a program implemented five years ago, and upon which millions of Americans (DACA recipients,

28 their families, and employers) have come to rely, with no explanation whatsoever for the abrupt

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
3

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 5 of 28

1 about-face, much less the type of careful analysis one would expect before such a consequential

2 action is taken. The APA requires that administrative agencies provide a reasoned explanation for

3 their actions, and this obligation is especially important where the agency action in question reverses

4 a prior policy that has engendered reliance by affected parties. Defendants’ total disregard for

5 Plaintiffs’ and similarly situated parties’ reliance on the DACA program is evident in their failure to

6 provide any reasoned explanation for the rescission that takes into account the program’s benefits.

7

9. Third, Defendants’ actions violate the Equal Protection component of the Fifth

8 Amendment. The Fifth Amendment requires that the federal government afford all individuals equal

9 protection of the laws and refrain from discriminating against disfavored classes. In this case, it is

10 inarguable that the rescission of DACA falls most heavily on two historically persecuted minorities,

11 Latinos and Mexican immigrants. Indeed, 93% of the approved DACA applications (initial and

12 renewal) since the program was implemented are from immigrants from Latin America and almost

13 80% are from immigrants from Mexico. Moreover, there is extensive evidence, not least of which

14 are the President’s own statements, that the rescission was motivated by impermissible animus. Two

15 years ago, the President launched his campaign by announcing: “When Mexico sends its people,

16 they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re

17 bring those problems with us [sic]. They’re bringing drugs. They’re bringing crime. They’re

18 rapists.” This hostility toward immigrants, and particularly Mexican immigrants, remained a theme

19 throughout his campaign and the first months of his administration. Coupled with the lack of a

20 legitimate explanation for the rescission and the irregular (and unlawful) process by which the

21 rescission was accomplished, the President’s repeated statements of animus show that the rescission

22 was motivated by animus in violation of the Fifth Amendment.

23

10. For all of these reasons, Plaintiffs ask this Court to declare the rescission of DACA

24 unlawful and unenforceable, and to enjoin and restrain Defendants from taking further steps to

25 rescind the program. Further, the Court should declare that Defendants are equitably estopped from

26 rescinding the program or using information provided in connection with DACA applications for

27 purposes of immigration enforcement, and should enjoin and restrain Defendants from doing so.

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
4

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 6 of 28

1 The DACA program has worked to the benefit of DACA recipients, their employers, local

2 communities, and American society as a whole. All of these stakeholders deserve better.

3

JURISDICTION AND VENUE

4

11. This Court has jurisdiction pursuant to 28 U.S.C. §§1331, 1361, and 2201-2202,

5 because this action arises under the Due Process Clause and Equal Protection component of the Fifth

6 Amendment and the Administrative Procedure Act, 5 U.S.C. §551 et seq. This Court has additional

7 remedial authority under the APA, 5 U.S.C. §§701-06.

8

12. There exists an actual and justiciable controversy between Plaintiffs and Defendants

9 requiring resolution by this Court. Plaintiffs have no adequate remedy at law.

10

13. Venue is proper in the Northern District of California because Plaintiff County of

11 Santa Clara is a public entity in this judicial district and a substantial part of the events or omissions

12 giving rise to this action have occurred or will occur in this District. 28 U.S.C. §§1391(b)(2),

13 1391(e)(1). Plaintiff Local 521 is located in the Northern District of California and many of its

14 members, on behalf of whom it brings this lawsuit, reside and are employed within the Northern

15 District of California. This is a civil action in which Defendants are agencies of the United States or

16 officers thereof and no real property is involved in this action.

17

14. Intra-district assignment is proper in San Jose pursuant to Local Rules 3-2(c) and (e)

18 because a substantial part of the events or omissions which give rise to Plaintiffs’ claims occurred in

19 Santa Clara County.

20

PARTIES

21

15. Plaintiff County of Santa Clara is a charter county organized and existing under the

22 laws of the State of California. With an estimated population of more than 1.9 million people, Santa

23 Clara County is the largest county in the Bay Area and the sixth largest county in California. As a

24 county of immigrants, the County has especially benefited from DACA and is especially harmed by

25 the program’s rescission. Thirty-eight percent of Santa Clara County residents are foreign born, and

26 approximately sixty percent of children in the county have at least one parent who is foreign born.

27 Santa Clara County has the highest percentage of foreign-born residents of all counties in California.

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
5

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 7 of 28

1 More than half of county residents speak a language other than English at home, and more than 100

2 languages and dialects are spoken within the county.

3

16. The County is the level of government tasked with provision of core safety-net

4 services to this diverse community; it employs a workforce of more than 18,000, and must ensure

5 that this workforce possesses the skills necessary to effectively serve this community. The County

6 employs DACA recipients in key positions throughout the organization, providing upward mobility

7 to young people who deserve the opportunity to serve their communities through the public sector,

8 and leveraging the unique experience and skills these employees bring to the County government.

9

17. The County also operates the In-Home Supportive Services (“IHSS”) program, which

10 provides in-home care in the form of assistance with activities of daily living, to eligible aged, blind,

11 and disabled individuals who would otherwise be unable to remain safely in their own homes. The

12 IHSS program is funded through a combination of federal, state, and county funds, and provides

13 services to over 22,000 IHSS beneficiaries in Santa Clara County.

14

18. Plaintiff Service Employees International Union Local 521 is a labor union that

15 represents approximately 40,000 public- and private-sector workers in the central Bay Area and

16 California’s Central Valley, including more than 10,000 who are employed by the County of Santa

17 Clara. Local 521 is an affiliate of the Service Employees International Union (“SEIU”), which

18 represents 2.2 million working men and women around the world. A large percentage of Local

19 521’s membership is Latino and many are first-generation immigrants. The primary mission of

20 Local 521 is to organize, represent, and empower employees.

21

19. In addition, Local 521 works in partnership with SEIU and other groups to combat

22 discrimination and mobilize for immigration reform at the national level. Local 521’s efforts include

23 its Committee on Comprehensive Immigration Reform, a member-based committee that engages in

24 organizing, advocacy, and education to help undocumented workers. Local 521 has conducted

25 “know your rights” information sessions and workshops, engaged in legislative advocacy on

26 immigration-related bills at the state level, held community forums on DACA and Deferred Action

27 for Parents of Americans and Lawful Permanent Residents in conjunction with the California

28 Attorney General, and participated as an amicus in litigation brought by the County of Santa Clara

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
6

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 8 of 28

1 and others challenging the Trump administration’s threat to cut off federal funding to sanctuary cities

2 and counties. Local 521 has members who are DACA recipients, including members who work for

3 the County of Santa Clara. These members are able to work and, thus, to be Local 521 members,

4 because of the work authorization they obtain through the DACA program.

5

20. Local 521 brings this action as an associational plaintiff on behalf of its members who

6 are DACA recipients, asserting claims on behalf of those members. Local 521 also brings this

7 lawsuit to protect the rights and interests of its members and prospective members, to preserve its

8 ability to organize new members who are DACA recipients, and to preserve its representational

9 relationship with current DACA recipients.

10

21. Defendant Donald J. Trump is the President of the United States. President Trump

11 made the decision to rescind the DACA program and is sued in his official capacity.

12

22. Defendant Jefferson Beauregard Sessions is the Attorney General of the United

13 States. Attorney General Sessions announced the rescission of the DACA program and has ultimate

14 authority over the Department of Justice’s prosecution of violations of immigration laws. He is sued

15 in his official capacity.

16

23. Defendant Elaine Duke is the Acting Secretary of the Department of Homeland

17 Security (“DHS”). Acting Secretary Duke is responsible for managing DHS, and oversees the

18 United States Citizenship and Immigration Service (“USCIS”) and the Immigration and Customs

19 Enforcement (“ICE”). Her responsibilities include the administration and enforcement of policies

20 and practices related to DACA. She is sued in her official capacity.

21

24. Defendant DHS is a federal agency responsible for implementing, administering and

22 enforcing the nation’s immigration laws and policies, including the DACA program. DHS is a

23 Department of the Executive Branch and is an agency within the meaning of 5 U.S.C. §552(f)(1).

24

FACTUAL BACKGROUND

25 The DACA Program

26

25. DHS announced the DACA program in 2012, in a memorandum issued by former

27 DHS Secretary Janet Napolitano. The reasoning behind the program was that it made no sense to

28 punish individuals who were brought to the United States as children, through no fault of their own,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
7

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 9 of 28

1 and who had proven themselves to be trustworthy, contributing members of their communities.

2 DACA was also intended to generate the wide-reaching benefits that would accrue to recipients, their

3 families and their communities, as undocumented individuals were permitted to live and work

4 without the ever-present threat of deportation.

5

26. DACA allows people who were brought to the United States as children and who

6 meet certain criteria to apply for temporary deferral of deportation (sometimes referred to as

7 “deferred action”) and for work authorization. According to USCIS, as of March 31, 2017,

8 approximately 800,000 young people have been granted deferred action under DACA in the five

9 years the program has been in place. Applicants are eligible for deferred action status under DACA

10 only if they: (i) were under the age of 31 on June 15, 2012; (ii) were brought to the United States

11 before their 16th birthday; (iii) continuously resided in the United States since June 15, 2007 to the

12 present; (iv) were physically present in the United States on June 15, 2012, and at the time they made

13 their DACA application; (v) did not have lawful immigration status on June 15, 2012; (vi) are

14 currently in school, have graduated or obtained a GED, or were honorably discharged from the

15 United States military or Coast Guard; and (vii) have not been convicted of a felony, significant

16 misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public

17 safety.

18

27. To apply for deferred action status under DACA, applicants are required to pay a

19 substantial fee of $495, submit a detailed application, and submit to a background check and any

20 other screening that DHS deems necessary.

21

28. Pursuant to DACA, deferred action status, as well as work authorization, is granted

22 for two-year periods. From the time DACA was first implemented, however, applicants were told

23 that they would have the opportunity to apply for renewal of deferred action status and were given

24 detailed instructions for doing so. In particular, recipients were instructed that they should apply for

25 renewal approximately 120 days (but no more than 150 days) before the expiration of their 2-year

26 period. Recipients were told that they would be eligible for renewal if they met the requirements for

27 an initial DACA application and also: (i) had not departed the United States on or after June 15,

28 2007; (ii) continuously resided in the United States since submission of their most recent DACA

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 10 of 28

1 application; and (iii) had not in the interim been convicted of a disqualifying crime or otherwise

2 posed a threat to national security or public safety. The opportunity to renew is a crucial aspect of

3 the DACA program. There is little reason for eligible individuals to run the risk of identifying

4 themselves as lacking regular immigration status for a temporary benefit and, similarly, there is little

5 reason for employers to take the time and effort to hire and train DACA recipients who have

6 received work authorization unless there is some assurance that those individuals will be eligible to

7 renew that authorization.

8

29. As part of the DACA application process, Defendants solicited extensive information

9 from DACA recipients, including names, addresses, birthdates, country of origin, and educational

10 and criminal history. Most significantly, by issuing an open invitation to apply for DACA, the

11 government asked undocumented immigrants to take a leap of faith and identify themselves and,

12 indirectly, their families to the federal government and acknowledge their undocumented status. To

13 assuage fears that the DACA program was a cynical trap, Defendants expressly promised that the

14 information provided by DACA applicants would not be used against them or their families for

15 immigration enforcement purposes, except in narrow, specified circumstances that would not

16 normally apply to individuals eligible for DACA.

17

30. The DACA program has been tremendously successful, creating much-needed

18 stability for DACA recipients, their families and their communities, which has resulted in extensive

19 benefits to all of those groups. Under DACA, law-abiding, long-term U.S. residents who lack legal

20 immigration status have access to better jobs and improved working conditions. Because

21 undocumented immigrants who lack work authorization must seek jobs that minimize their risk of

22 being identified and deported, they often do not work in jobs that best fit their education, skills, and

23 abilities, or those that would maximize their earning potential. Patrick Oakford, Center for

24 American Progress, Administrative Action on Immigration Reform, The Fiscal Benefits of Temporary

25 Work Permits, at 6 (September 2014), available at: https://cdn.americanprogress.org/wp-

26 content/uploads/2014/09/OakfordAdminRelief.pdf (last visited Oct. 9, 2017). Making workers

27 eligible to apply for deferred action and work permits allows them greater occupational mobility,

28 enabling them to seek out a wider range of potential career opportunities. Moreover, “[t]he

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1 interaction between our broken immigration system and employment and labor laws have made

2 undocumented workers more susceptible to exploitation in the workplace, leading them to earn lower

3 wages than they otherwise could.” Id. at 5. Eliminating the fear of retaliatory reporting of

4 immigration violations and potential deportation allows these workers to better protect their own

5 workplace rights and those of their co-workers, leading to higher real wages and fewer violations of

6 employment and labor laws and regulations.

7

31. Those who have received DACA status enjoy increased earning potential, producing a

8 positive multiplier effect on local economies. Fiscal Policy Institute, President’s Immigration Action

9 Expected to Benefit Economy (Nov. 21, 2014), available at: http://bit.ly/1FbnS7q (last visited Oct. 9,

10 2017) (estimating that wages for those eligible for work authorization will increase by five to 10

11 percent); Oakford, Administrative Action on Immigration Reform, The Fiscal Benefits of Temporary

12 Work Permits, at 3 (“Temporary work permits would increase the earnings of undocumented

13 immigrants by about 8.5 percent as they are able to work legally and find jobs that match their

14 skills.”). Indeed, the upward mobility afforded by DACA is apparent from the results of a national

15 survey of 1,402 young adults who were approved for DACA through June 2013:

16

Since receiving DACA, young adult immigrants have become more integrated into

the nation’s economic institutions. Approximately 61% of DACA recipients

17

surveyed have obtained a new job since receiving DACA. Meanwhile, over half have

opened their first bank account, and 38% have obtained their first credit card. 18

19 Roberto G. Gonzales and Veronica Terriquez, American Immigration Council, How DACA is

20 Impacting the Lives of Those who are now DACAmented: Preliminary Findings from the National

21 UnDACAmented Research Project (Aug. 15, 2013), available at: http://bit.ly/1jaS0tq (last visited

22 Oct. 9, 2017). In short, DACA created significant economic benefits for qualifying individuals and

23 for the nation at large by permitting greater levels of contribution to the workforce by educated

24 individuals who previously had limited employment opportunities.

25 The County’s Employment Relationships With DACA Recipients

26

32. The County is one of the largest employers in the region, with more than 18,000

27 employees performing a vast array of functions to meet the needs of this diverse community. One of

28 the main ways in which the County has benefited from the DACA program is through its

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1 employment relationships with DACA recipients. In particular, the County currently employs many

2 DACA recipients as full-time employees. The County has expended significant resources, both time

3 and money, in training these employees and relies upon them to provide County services. Because

4 DACA recipients are under no obligation to identify themselves as such when they apply for a job,

5 and they present the same form of work authorization card as other categories of immigrants, the

6 County cannot determine with certainty the total number of DACA recipients it employs.

7

33. DACA recipients are also employed through the County’s In-Home Supportive Services

8 program, which is funded through a combination of federal, state, and county funds.

9

34. DACA recipients have special skills that make them especially valuable employees of

10 the County. For example, over ninety-five percent of DACA recipients are bilingual. The County

11 values this skill because it must employ a workforce that is able to meet residents’ language needs to

12 ensure meaningful access to County services, programs, and benefits. See County of Santa Clara,

13 Board Policy 3.58. Indeed, forty-six percent of clients currently receiving health, financial, or

14 employment assistance through the County Department of Employment and Benefit Services speak a

15 primary language other than English. Santa Clara Valley Medical Center, a public hospital owned

16 and operated by the County, is required by law to provide qualified interpreters to limited-English-

17 proficient individuals and relies on medical interpreters to satisfy that requirement. It takes an

18 average of five to six months to fill interpreter vacancies for the County’s hospital and clinics, and

19 the County has had difficulty filling several open positions.

20

35. If the DACA recipients currently employed by the County were to lose their work

21 authorization, the County would be forced to expend significant resources to temporarily cover those

22 employees’ responsibilities, conduct searches for replacements, and train new employees. On

23 average, it takes the County 81 days to fill a vacancy. Nearly all County employees, including Local

24 521 members, are covered by merit system rules and collective bargaining agreements that protect

25 them against arbitrary dismissal and other adverse employment actions, and that include anti-

26 discrimination provisions. Despite these protections, County employment is contingent on valid

27 work authorization. Without the DACA program, these valued employees will be unable to work for

28

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1 the County or, indeed, to work in any legal capacity for any employer, public or private, within Santa

2 Clara County or the United States.

3

36. The County also employs at least three DACA recipients in its New Americans

4 Fellowship Program. This program aims to identify, recruit, develop, and equip DACA-eligible

5 youth with the skills and tools to serve as ambassadors to the Santa Clara County community.

6 Fellows commit to working at least 20 hours per week, for a period of no less than 10 weeks, on a

7 project-based fellowship under the supervision of a County Department, the County Office of

8 Immigrant Relations, or a Member of the Board of Supervisors’ Office. Examples of the types of

9 projects on which fellows work include:

10

 Research on improving/bridging relationships between law enforcement and the

immigrant community;

11

 Developing a plan for a “Community Safety Initiative” focused on establishing problem-

12

solving relationships between the immigrant and refugee population and local law

enforcement; 13

 Developing the framework for a “Civics Empowerment Education Program” to establish

14

the curriculum for immigrants and refugees who want to learn more about law and

15

policy;

16

 Creating a training in civic participation to inform the community about federal, state, and county government structures and delivering presentations to decision-making

17

bodies;

18

 Providing information to the undocumented population, including the following: know

your rights at home, in the work place, and when seeking services via immigration

19

consultants;

20

 Fraud prevention and education;

21

 Drafting or updating existing resources on family emergency plans;

22

 Increasing awareness of public services programs such as Medi-Cal, CalFresh, and

Covered California; 23

 Launching a countywide campaign to promote financial literacy among immigrants and

24

refugees; and

25

 Collaborating with banking institutions on providing financial planning tools for

26

immigrants and refugees.

27

37. The County began the New Americans Fellowship Program in July 2017. Since that

28 time, 20 fellows have participated in the program and contributed significantly to the County and

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1 their communities. The County assigned ten fellows to County departments and community-based

2 organizations throughout Santa Clara County and ten fellows participated in the “Silicon Valley

3 Dream Summer,” a fellowship program that places immigrant youth at community-based and social

4 justice organizations. The County has allocated funding to support additional fellows during the

5 2017-2018 fiscal year, but planning for the next cohort of fellows has been put on hold due to

6 Defendants’ actions. Like other forms of County employment, the New Americans Fellowship

7 Program cannot survive Defendants’ rescission of DACA, for once existing work authorizations

8 expire, DACA participant-employees will no longer be able to work for the County and the County

9 will lose this bridge to their communities.

10 Reliance on the DACA Program and the Government’s Representations

11

38. Trusting the federal government’s representations about the program, hundreds of

12 thousands of young people from across the country have applied for and received DACA status since

13 the program was initiated in 2012. The DACA program has changed the lives of DACA recipients.

14 Prior to DACA, many law-abiding undocumented young people saw little purpose to completing

15 higher education because they would be unable to work legally upon graduation. DACA gave them

16 the ability to attend college, work to earn money to pay for higher education, and to utilize their

17 degrees to attain high-skilled jobs. It also gave them access to health care, and the opportunity to

18 become more integrated into their communities. DACA gave these young people hope that a better

19 life was possible, and allowed them to emerge from the shadows of society to serve their

20 communities, including through work for government agencies like the County of Santa Clara.

21

39. Loss of DACA status and work authorization would be devastating for County

22 workers who depend on the DACA program to maintain employment, health insurance, and other

23 benefits. Indeed, several County employees with DACA status desired to join as individual plaintiffs

24 in this litigation challenging the DACA rescission, but ultimately chose not to come forward out of

25 fear that Defendants would retaliate against them or their families.

26

40. The County has also relied on the government’s representations concerning the

27 DACA program. The County has expended significant time and financial resources in hiring and

28 training DACA recipients for various positions in County. Those employees carry out important

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1 functions in County government and make significant contributions in providing services to County

2 residents. There is little reason for employers like the County to take the time and effort to hire and

3 train DACA recipients who have received work authorization unless there is some assurance that

4 those individuals will be eligible to renew that authorization.

5 Other Benefits to the County from the DACA Program

6

41. Santa Clara County is home to Silicon Valley, where many of the country’s leading

7 high-tech and Internet-based companies are located. Technology companies based in the county,

8 including Apple and Google, employ tens of thousands of workers. Similarly, health care providers,

9 including Kaiser Permanente, Stanford Hospital and Clinics, and the County’s own hospital and

10 clinics, employ additional tens of thousands. Many of these organizations employ DACA recipients.

11 For example, Tim Cook, CEO of Apple, recently noted that 250 Apple employees are “Dreamers,”

12 or DACA recipients. Silicon Valley is projected to face a shortfall of 72,500 private sector workers

13 by the year 2020, and immigration policies such as DACA, which increase the availability of skilled

14 workers, help address this shortfall. Indeed, Silicon Valley has long been reliant on the contributions

15 of immigrants. One study noted that immigrants launched a quarter of all engineering and

16 technology companies in the United States from 1995 to 2005, Vivek Wadhwa et al., America’s New

17 Immigrant Entrepreneurs: Part I, Duke Science, Tech. & Innovation Paper No. 23 (Jan. 4, 2007),

18 available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=990152## (last visited Oct. 9,

19 2017), and over half of Silicon Valley start-ups in the same period count at least one immigrant as a

20 key founder, Richard T. Herman, Immigrant, Inc.: Why Immigrant Entrepreneurs Are Driving the

21 New Economy (and how they will save the American worker) 5 (2009).

22

42. In 2016, the Migration Policy Institute (MPI) estimated that there were 23,000 DACA-

23 eligible individuals in Santa Clara County, including 15,000 who were immediately eligible. MPI,

24 Deferred Action for Childhood Arrivals Data Tools, available at:

25 http://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles

26 (last visited Oct. 9, 2017). According to MPI’s estimates, Santa Clara County has the twelfth largest

27 DACA-eligible population among counties nationwide, and the largest DACA-eligible population of

28 all northern California counties. MPI, National and County Estimates of Populations Eligible for

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1 Deferred Action for Childhood Arrivals Program, 2016, available at:

2 http://www.migrationpolicy.org/sites/default/files/datahub/State-County-DACA-Estimates.xlsx (last

3 visited Oct. 9, 2017).

4

43. Ninety-one percent of DACA recipients are employed. John W. Schoen, DACA

5 Deportations Could Cost US Economy More than $400 Billion, CNBC.com (Sept. 5, 2017),

6 available at: https://www.cnbc.com/2017/09/05/daca-deportations-could-cost-us-economy-more-

7 than-400-billion.html (last visited Oct. 9, 2017). It is estimated that if DACA recipients lose the

8 ability to work legally, California alone would suffer a GDP loss of approximately $11.3 billion a

9 year. Id. As one of the counties with the largest number of DACA recipients, much of this negative

10 economic effect will be felt in Santa Clara County.

11

44. Moreover, because they are able to work legally, DACA recipients are employed in

12 more highly compensated jobs and contribute more in state and local taxes than they would without

13 DACA. One recent study estimates that the 1.3 million young people immediately eligible for

14 DACA contribute $2 billion a year in state and local taxes. Institute on Taxation and Economic

15 Policy, State & Local Tax Contributions of Young Undocumented Immigrants (Apr. 25, 2017),

16 available at: https://itep.org/state-local-tax-contributions-of-young-undocumented-immigrants/ (last

17 visited Oct. 9, 2017). Indeed, “DACA-eligible individuals pay on average 8.9 percent of their

18 income in state and local taxes. Their effective tax rate is higher than the average rate paid by the

19 top 1% of taxpayers in state and local taxes . . . .” Id. “Repealing the temporary legal status and

20 work authorizations permitted by DACA would reduce estimated state and local revenues by nearly

21 $800 million . . . .” Id. The same study estimates that DACA eligible individuals contribute more

22 than $530 million in state and local taxes in California alone and, because Santa Clara County has a

23 large number of DACA-eligible residents, the County stands to lose significant tax revenue because

24 of the rescission of DACA.

25

45. In addition to its broad negative effects on the County’s economy and fisc, the

26 rescission of DACA will make it more difficult and expensive for the County to provide services to

27 its residents. For example, DACA recipients who do not have employer-sponsored insurance and

28 who satisfy income-eligibility requirements qualify for “full-scope” coverage under Medi-Cal,

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1 California’s Medicaid program. Through Medi-Cal, DACA recipients receive coverage for a core

2 set of health benefits, including preventative care, doctor’s visits, immunizations, prescriptions, and

3 mental health and substance abuse services. If these individuals lose deferred action status, they will

4 be eligible only for very limited Medi-Cal coverage of emergency and pregnancy-related services,

5 increasing their reliance on other safety-net health care services provided by the County.

6

46. The County operates the Santa Clara Valley Medical Center (“SCVMC”), a public

7 safety-net Level I trauma hospital that provides critical health care services to poor and uninsured

8 County residents. Payments from these patients and from public insurance programs such as Medi-

9 Cal do not cover the costs of services they receive at SCVMC. As a result, each year the County

10 provides a substantial subsidy to SCVMC to cover deficits incurred by SCVMC in serving these

11 patients. During the first three quarters of Fiscal Year 2017, SCVMC operated at a deficit of well

12 over $90 million. Rescission of the DACA program will negatively affect SCVMC. Because

13 DACA recipients who are now employed pursuant to work authorization granted under the program

14 will lose their jobs – and their employer-sponsored health insurance – former DACA recipients, and

15 family members who were covered by the recipient’s insurance, are more likely to fall back on

16 safety-net hospitals like SCVMC. Additionally, lacking employer-sponsored health insurance,

17 unable to access full-scope Medi-Cal, and burdened with a fear of detention and deportation, these

18 individuals are less likely to obtain regular check-ups and routine, preventative care. As a result,

19 they will be more likely to seek medical care only when health problems worsen – often at

20 SCVMC’s Emergency Department – at which point care becomes more difficult and more

21 expensive. The rescission of DACA will increase the County’s costs in subsidizing free and below-

22 cost care at SCVMC.

23

47. In addition to health care, the County provides (and is often required to provide)

24 many other services to community members regardless of immigration status, and it will become

25 more difficult to provide these services to DACA recipients after they lose deferred action status

26 because of their renewed hesitancy to interact with the government for fear of detention and

27 deportation. At the same time, it will be even more critical for individuals who lose DACA status to

28 access County services – and the County will need to spend more to support them – because the

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1 same individuals will be losing work authorization and, thus, the ability to work legally to support

2 themselves and their families.

3

48. For example, the County invests significant resources in programs to provide housing

4 to the homeless and to prevent homelessness. In fiscal year (FY) 2015, the County allocated over

5 $73.8 million in resources to housing and related services countywide and, in 2015, the Board of

6 Supervisors approved increasing these expenditures by a total of $33.9 million over FY 2016-2018.

7 In addition to providing housing to homeless individuals and families who utilize other County

8 services, the County also funds homelessness prevention and emergency housing programs,

9 including homeless shelters, a cold weather shelter program, interim housing for the chronically

10 homeless, and 24-hour care shelter placements. Because DACA recipients are able to obtain work

11 authorization and work legally, the program has helped recipients support themselves and their

12 families, greatly reducing their risk of homelessness and reliance on County services. These benefits

13 are lost with rescission of the DACA program.

14

49. The DACA program also reduces reliance on the County’s safety-net services by

15 keeping families together. Twenty-five percent of DACA recipients have at least one U.S.-born

16 child. Dara Lind, 9 facts that explain DACA, the immigration program Trump is threatening to end,

17 Vox.com (Sept. 5, 2017), available at: https://www.vox.com/policy-and-

18 politics/2017/8/31/16226934/daca-trump-dreamers-immigration (last visited Oct. 9, 2017). If these

19 parents lose DACA status and are subject to deportation, some of their U.S. citizen children may

20 enter the foster care system. The County provides financial support to foster parents to meet the

21 basic needs of foster youth placed in their care. In the 2017 fiscal year, the County invested $25

22 million in foster care youth, and rescission of the DACA program could bring more young people

23 into the system, increasing costs and placing greater strains on County resources.

24

50. Rescission of DACA would also hinder the County’s ability to protect the public

25 health and the safety of its residents. The County’s Public Health Department (“PHD”) runs

26 numerous programs that protect the health not only of the individual served, but of the wider

27 community. PHD provides immunization clinics, tuberculosis testing, STD testing, and other

28 services that prevent the spread of communicable diseases. DACA has improved PHD’s ability to

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1 provide these critical services to immigrant communities by alleviating the fear of deportation that

2 often prevents undocumented immigrants from seeking government services. If DACA recipients

3 lose their deferred action status, they – and their U.S. citizen children – may be less likely to receive

4 necessary immunizations and testing, thereby increasing health risks for the community as a whole.

5

51. For similar reasons, DACA has had a positive effect on the relationship between

6 immigrant communities and local law enforcement. Because of a justified fear of detention and

7 deportation, undocumented individuals are often hesitant to contact law enforcement even when they

8 are victims of crimes. By providing an assurance that they are protected from immigration

9 enforcement actions, DACA has permitted recipients to be more willing to report crimes, act as

10 witnesses, and otherwise cooperate with local law enforcement, as well as with other emergency

11 services and first responders. This improved relationship is invaluable not just to DACA recipients

12 themselves, but also to their communities and the County.

13

52. DACA has had a similar effect on the County’s Code Enforcement Division, which

14 enforces zoning and building ordinances to ensure safe living conditions for county residents. The

15 County has received reports that some tenants are reluctant to come forward with reports of code

16 violations because landlords have threatened to report immigrants to ICE. DACA status

17 substantially reduces that threat, thereby helping the County ensure that unsafe or unsanitary housing

18 conditions are abated for the safety and benefit of the entire community.

19

53. DACA’s benefits to the County are also evidenced by the County’s willingness to

20 invest in DACA recipients. For example, the County previously allocated $200,000 for outreach and

21 education concerning the DACA program, to ensure that eligible County residents know of and have

22 support necessary to apply for DACA status. Just after the administration’s announcement that

23 DACA would be rescinded, the County allocated an additional $200,000 from its emergency reserve

24 to establish an emergency program to help DACA recipients submit renewal applications before the

25 administration’s arbitrary October 5, 2017 deadline. Additionally, the County has allocated

26 $400,000 to the New Americans Fellowship Program, described above.

27

54. In light of the many ways in which the County has benefited from the DACA

28 program, on August 15, 2017, the County’s Board of Supervisors unanimously adopted a resolution

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1 affirming its support for the DACA program and its commitment to immigrant youth and young

2 adults.

3 Rescission of the DACA Program

4

55. The administration’s decision to rescind the DACA program was announced by

5 Attorney General Jefferson Sessions at a press conference on September 5, 2017. In his statement,

6 Attorney General Sessions made a number of factual assertions concerning the DACA program that

7 are demonstrably false, including the statement that DACA had “denied jobs to hundreds of

8 thousands of Americans” and that DACA “contributed to a surge of unaccompanied minors on the

9 southern border that yielded terrible humanitarian consequences.” Notably, the Attorney General

10 provided no evidence to support these assertions and gave no indication that the administration had

11 studied DACA or its effects in any meaningful or systematic fashion. Rather, he simply assumed

12 that DACA had negative effects, completely ignored the program’s positive effects, and concluded

13 that “[o]ur collective wisdom is that the policy is vulnerable to the same legal and constitutional

14 challenges that the courts recognized with respect to the [Deferred Action for Parents of Americans

15 and Lawful Permanent Residents] program.”

16

56. Shortly after the press conference, Acting Secretary Duke issued a memorandum

17 formally rescinding DACA. The memorandum stated that DHS would not consider any initial

18 DACA applications received after September 5, 2017. As for individuals who currently have DACA

19 status and work authorization, the memorandum stated that DHS would adjudicate pending renewal

20 requests properly filed and accepted by DHS as of September 5, 2017, and renewal requests properly

21 filed and accepted by DHS by October 5, 2017 from individuals whose DACA benefits expire

22 between September 5, 2017 and March 5, 2018. All other DACA renewal requests, including any

23 requests received after October 5, 2017, would be rejected.

24

57. Acting Secretary Duke’s memorandum did not explain the administration’s reasons

25 for rescinding DACA and gave no indication that the administration had considered the benefits of

26 the program before abruptly ending it. Rather, the memorandum simply refers to the Attorney

27 General’s speculation that the DACA program may be held unlawful, explaining that the Fifth

28 Circuit had held different programs (Deferred Action for the Parents of Americans and Lawful

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1 Permanent Residents (“DAPA”) and an expansion of the DACA) to be unlawful, and that this

2 decision was affirmed by an equally divided Supreme Court. Secretary Duke’s memorandum cites a

3 September 4, 2017 letter from Attorney General Sessions, which provides no legal analysis

4 whatsoever and simply concludes that “it is likely that potentially imminent litigation would yield

5 similar results with respect to DACA.”

6

58. On the same day that Attorney General Sessions announced the rescission of DACA,

7 DHS published guidance in the form of “frequently asked questions” (“FAQs”) concerning the

8 rescission of DACA. These FAQs reflect a changed orientation toward the use of DACA applicants’

9 information for immigration enforcement. Previously, applicants had been told that “Information

10 provided in [a DACA] request is protected from disclosure to ICE and CBP [U.S. Customs and

11 Border Protection] for the purpose of immigration enforcement proceedings unless the requestor

12 meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set

13 forth in USCIS’ Notice to Appear guidance . . . .” USCIS, DACA Frequently Asked Questions,

14 available at: https://www.uscis.gov/archive/frequently-asked-questions (last visited Oct. 9, 2017).

15 By contrast, the September 5, 2017 guidance provides: “Information provided to USCIS in DACA

16 requests will not be proactively provided to ICE and CBP for the purpose of immigration

17 enforcement proceedings, unless the requestor meets the criteria for the issuance of a Notice to

18 Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance . . . .”

19 DHS, Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals (Sept. 5,

20 2017) (emphasis added), available at: https://www.dhs.gov/news/2017/09/05/frequently-asked-

21 questions-rescission-deferred-action-childhood-arrivals-daca (last visited Oct. 9, 2017). This change

22 appears to indicate that information provided by DACA applicants will be used for immigration

23 enforcement purposes, and made available to ICE and CBP upon request, even if not “proactively

24 provided.”

25

26

27

59.

28 Complaint.

FIRST CLAIM FOR RELIEF Violation of Due Process U.S. Const. amend. V
Plaintiffs re-allege and incorporate by reference all the allegations set forth in this

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1

60. The County has a constitutionally protected interest in its employment relationships

2 with its employees, including DACA recipients, as well as protected interests in the benefits that

3 flow from those relationships. The County employs DACA recipients as full-time and part-time

4 employees, and as fellows in the County’s New Americans Fellowship Program. The County has

5 made significant investments of employee-time and money to hire and train those employees. The

6 rescission of the DACA program, and DACA recipients’ consequent inability to apply for renewed

7 work authorization, will necessarily result in the termination of those employment relationships.

8 The County will therefore lose not only its investment in these employees, but also the benefit of

9 their expertise and experience.

10

61. County employees and others who participate in the DACA program, including Local

11 521 members, have a constitutionally protected interest in their jobs. As a result of the rescission,

12 when their current two-year authorization expires, employees who participate in the DACA program

13 will no longer be able to keep their jobs with the County or with other employers.

14

62. The County has a constitutionally protected interest in the programs and services it

15 offers to County residents, including the funds expended to support those programs. It will become

16 more difficult to provide these services to DACA recipients after they lose deferred action status

17 because of their renewed hesitancy to interact with the government for fear of detention and

18 deportation. At the same time, it will be even more critical for individuals who lose DACA status to

19 access County services – and the County will need to spend more to support them – because the

20 same individuals will be losing work authorization and, thus, the ability to work legally to support

21 themselves and their families.

22

63. Rescission of the DACA program and Defendants’ actions in accordance therewith

23 unlawfully deprive the County, its employees and its residents of these and other constitutionally

24 protected interests without due process of law. Such deprivation occurred with no notice or

25 opportunity to be heard.

26

64. Moreover, to the extent that Defendants seek to use for purposes of immigration

27 enforcement the information that DACA recipients provided in connection with their applications,

28 such use would also violate due process. The Due Process Clause of the Fifth Amendment requires

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1 that the federal government’s immigration enforcement actions be fundamentally fair. Defendants

2 induced DACA applicants to provide this information with the express promise that it would not be

3 used against the applicant in immigration enforcement proceedings. For Defendants to turn around

4 and now use this information as they previously promised they would not, would abuse DACA

5 applicants’ trust in government and offend fundamental principles of fairness and justice.

6

65. Rescission of the DACA program violated the Due Process Clause of the Fifth

7 Amendment to the United States Constitution. Likewise, use of the information DACA recipients

8 provided to Defendants as part of their DACA applications to target DACA recipients or their

9 families for removal or to support removal proceedings would violate the Due Process Clause of the

10 Fifth Amendment.

11

66. The County, its employees and its residents, and Local 521 and its members have

12 been harmed and continue to be harmed by these unlawful acts.

13

SECOND CLAIM FOR RELIEF

14

Violation of Administrative Procedure Act

Arbitrary and Capricious Agency Action

15

5 U.S.C. §706

16

67. Plaintiffs re-allege and incorporate by reference all the allegations set forth in this

17 Complaint.

18

68. The Department of Homeland Security is subject to the requirements of the APA.

19 See 5 U.S.C. §703. The termination of the DACA program is final agency action subject to judicial

20 review because it marks the “consummation of the . . . decisionmaking process” and is one “from

21 which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotation

22 marks omitted).

23

69. Under 5 U.S.C. §706(2), courts shall “hold unlawful and set aside” agency action

24 found to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law;

25 contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction,

26 authority, or limitations, or short of statutory right; without observance of procedure required by law.

27

70. Rescission of the DACA program is final agency action subject to APA review by

28 this Court.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
22

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 24 of 28

1

71. Defendants’ actions rescinding DACA are arbitrary and capricious, an abuse of

2 discretion, and not in accordance with law because, among other things, Defendants have not

3 identified a reasonable explanation for their decision to do so. Nor in rescinding the DACA program

4 did Defendants consider all relevant factors, including the benefits provided by the program. Not

5 only have Defendants failed to meaningfully assess the benefits of the DACA program, but they

6 have not addressed the comprehensive legal arguments previously developed by DHS itself and the

7 Department of Justice’s Office of Legal Counsel as to why the DACA program is a lawful exercise

8 of prosecutorial discretion. The failure to address these legal opinions, or offer any legal reasoning,

9 is especially egregious in this case, given that the only rationale for rescinding DACA offered in

10 Defendant Duke’s September 5 memorandum is that the program is likely to be found unlawful.

11 Defendants have committed a clear error in judgment.

12

72. Defendants also disregarded the serious reliance interests created by the DACA

13 program, including those of the County and DACA recipients. On the basis of Defendants’

14 representations that the DACA program would provide them an avenue to come out of the shadows

15 and participate more fully in their communities, and that the information they provided to

16 Defendants would not be used against them in immigration proceedings, DACA recipients applied

17 for deferred action status and organized their lives around the expectation that they would be

18 permitted to maintain that status as long as they were in compliance with program requirements.

19 Where “longstanding policies may have ‘engendered serious reliance interests,’” those interests

20 “must be taken into account.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)

21 (quoting FCC v. Fox Tele. Stations, Inc., 556 U.S. 502, 515 (2009)). “[A] reasoned explanation is

22 needed for disregarding facts and circumstances that underlay or were engendered by the prior

23 policy,” id. (quoting Fox, 556 U.S. at 516), and “[i]t follows that an ‘[u]nexplained inconsistency’ in

24 agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from

25 agency practice.” Id. (quoting Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S.

26 967, 981 (2005)).

27

73. The County, its employees, and its residents, and Local 521 and its members have

28 been harmed and continue to be harmed by these unlawful acts.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
23

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 25 of 28

THIRD CLAIM FOR RELIEF

1

Violation of Equal Protection

2

U.S. Const. amend. V

3

74. Plaintiffs re-allege and incorporate by reference all of the allegations set forth in this

4 Complaint.

5

75. Defendants’ actions rescinding DACA target Latinos and, specifically, immigrants

6 from Mexico, and are motivated by animus toward these groups. Of the approximately 1.59 million

7 DACA applications (both initial and renewal) that were approved from the beginning of the program

8 through March 2017, approximately 1.48 million, or approximately 93%, were submitted by people

9 from countries in Latin America and approximately, 1.24 million, or approximately 80%, were from

10 Mexican immigrants. Accordingly, the overwhelming majority of the direct beneficiaries of the

11 DACA program have been Latinos and Mexican immigrants. There is no question but that

12 rescission of the DACA program imposes a disproportionate burden on Latinos generally and,

13 specifically, persons from Mexico.

14

76. The rescission is motivated by impermissible animus. From the moment he launched

15 his campaign, President Trump has publicly announced his animus toward Latinos and Mexican

16 immigrants. Indeed, such animus was a feature of his campaign, in which President Trump

17 distinguished himself with his hardline stance on immigration, highlighted by harsh rhetoric

18 disparaging Mexican immigrants. In the speech in which he announced his candidacy, President

19 Trump stated: “When Mexico sends its people, they’re not sending their best. . . . They’re sending

20 people that have lots of problems, and they’re bring those problems with us [sic]. They’re bringing

21 drugs. They’re bringing crime. They’re rapists.” As an afterthought, he added, “[a]nd some, I

22 assume, are good people.” Later, then-candidate Trump repeatedly disparaged the federal district

23 judge presiding over a case brought by students alleging they were defrauded by Trump University,

24 calling the judge a “hater” who is “very hostile” to President Trump because, as the President has

25 explained on different occasions, he “happens to be Spanish,” is “Hispanic,” or “happens to be, we

26 believe, Mexican.” More recently, in August 2017, at a rally in Phoenix, President Trump referred

27 to undocumented immigrants as “animals” who are responsible for “the drugs, the gangs, the cartels,

28 the crisis of smuggling and trafficking.” Throughout his campaign and in his first months in office,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
24

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 26 of 28

1 the President has maintained this attitude, culminating in the decision to rescind the DACA program.

2

77. Moreover, other factors indicative of an intent to discriminate are present in this case.

3 In rescinding the DACA program, Defendants departed significantly from normal procedures. In

4 particular, Defendants elected to entirely forego the APA procedures required for implementation of

5 a categorical rule such as the rescission of DACA. Additionally, the purported justifications offered

6 for the rescission are plainly pretextual. The September 5, 2017 memorandum from Defendant

7 Secretary Duke announcing the rescission explains only that the Fifth Circuit had held the different

8 DAPA program and an expansion of DACA to be unlawful, and that this decision was affirmed by

9 an equally divided Supreme Court. Secretary Duke’s memorandum cites a September 4, 2017 letter

10 from Attorney General Sessions, which provides no legal analysis whatsoever and simply concludes

11 that “it is likely that potentially imminent litigation would yield similar results with respect to

12 DACA.” No court has considered the lawfulness of the DACA program at issue here.

13

78. As such, the rescission of DACA deprives Latino DACA recipients of equal

14 protection of the laws, guaranteed by the Fifth Amendment. The County, Local 521, and its

15 members are harmed and continue to be harmed by Defendants’ actions.

16

FOURTH CLAIM FOR RELIEF

17

Declaratory Relief – Equitable Estoppel

18

79. Plaintiffs re-allege and incorporate by reference all of the allegations set forth in this

19 Complaint.

20

80. The federal government, by its conduct and explicit statements, represented to

21 eligible applicants that the information applicants provided in connection with applications for

22 deferred action status would not be used in immigration enforcement proceedings, except in certain

23 limited circumstances, and that DACA recipients would have the opportunity to apply for renewed

24 deferred action status at the end of their respective two-year authorization periods.

25

81. In reliance on these assurances, DACA applicants identified themselves to the

26 government, acknowledging their undocumented status, and provided important information about

27 themselves and their family members that exposed them to the risk of deportation.

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
25

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 27 of 28

1

82. From the initial implementation of DACA to the announcement rescinding the

2 program, the government continuously made representations about the validity and legality of the

3 program, the use of information provided by applicants, and the continuing opportunity to apply for

4 renewal of deferred action status.

5

83. DACA recipients rearranged their lives, daring to become more visible and more

6 integrated into the fabric of their communities, including by seeking employment, pursuing higher

7 education, and paying taxes. But now they are at a heightened risk of removal and deportation

8 because of their reliance on the government’s prior statements.

9

84. Therefore, Defendants should be equitably estopped from terminating the DACA

10 program and from using information provided pursuant to DACA for immigration enforcement

11 purposes, except as previously authorized under DACA.

12

85. An actual controversy between Plaintiffs and Defendants exists as to whether

13 Defendants should be equitably estopped.

14

86. Plaintiffs are entitled to a declaration that Defendants are equitably estopped.

15

PRAYER FOR RELIEF

16 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

17

A. Vacate and set aside the rescission of the DACA program and any other action taken

18 by Defendants in furtherance of the rescission;

19

B. Declare that the rescission of DACA and Defendants’ actions in connection therewith

20 are void and without legal force or effect;

21

C. Declare that the rescission of DACA and Defendants’ actions in connection therewith

22 are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and without

23 observance of procedure required by law in violation of 5 U.S.C. §§702-06;

24

D. Declare that the rescission of DACA and Defendants’ action in connection therewith

25 violate the Constitution and laws of the United States;

26

E. Declare that Defendants are equitably estopped from terminating the DACA program

27 or from using information provided pursuant to DACA for immigration enforcement purposes,

28 except as previously authorized under the program;

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
26

Case 5:17-cv-05813 Document 1 Filed 10/10/17 Page 28 of 28

1

F. Preliminarily and permanently enjoin and restrain Defendants, their agents, servants,

2 employees, attorneys, and all persons in active concert or participation with any of them, from

3 implementing or enforcing the rescission of DACA and from taking any other action that is not in

4 compliance with applicable law;

5

G. Preliminarily and permanently enjoin and restrain Defendants, their agents, servants,

6 employees, attorneys, and all persons in active concert or participation with any of them, from

7 sharing or otherwise using information provided pursuant to the DACA program for immigration

8 enforcement purposes, except as previously authorized under the program;

9

H. Award Plaintiffs reasonable attorneys’ fees and costs; and

10

I. Grant Plaintiffs such further and additional relief as the Court deems just and proper.

11 Dated: October 10, 2017

Respectfully submitted,

12

/s/ James R. Williams

13

JAMES R. WILLIAMS, County

Counsel

14

GRETA S. HANSEN

LAURA S. TRICE

15

MARCELO QUIÑONES

OFFICE OF THE COUNTY COUNSEL

16

COUNTY OF SANTA CLARA

70 West Hedding Street

17

East Wing, Ninth Floor

San Jose, CA 95110-1770

18

Telephone: (408) 299-5900

Facsimile: (408) 292-7240

19

laura.trice@cco.sccgov.org

marcelo.quinones@cco.sccgov.org

20 Attorneys for Plaintiff County of Santa

21

Clara

22

/s/ Eric P. Brown

JONATHAN WEISSGLASS

23

STACEY M. LEYTON

ERIC P. BROWN

24

ALTSHULER BERZON LLP 177 Post St., Suite 300

25

San Francisco, CA 94108 Telephone: (415) 421-7151

26

jweissglass@altber.com; sleyton@altber.com;

27

ebrown@altber.com

28

Attorneys for all Plaintiffs

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
27

 
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Cite as: 583 U. S. ____ (2017)

1

Per Curiam

SUPREME COURT OF THE UNITED STATES
IN RE UNITED STATES, ET AL.
ON PETITION FOR WRIT OF MANDAMUS
No. 17–801. Decided December 20, 2017
PER CURIAM.
This case arises from five related lawsuits that challenge a determination adopted by the Acting Secretary of the Department of Homeland Security (DHS). The determination, announced by the Acting Secretary, is to take immediate steps to rescind a program known as Deferred Action for Childhood Arrivals, or DACA, by March 5, 2018. The Acting Secretary stated that her determination was based in part on the Attorney General’s conclusion that DACA is unlawful and likely would be enjoined in potentially imminent litigation.
The five suits were filed in the United States District Court for the Northern District of California, and the plaintiffs in those actions are the respondents in the matter now before this Court. The defendants in the District Court, and the petitioners here, include the Government of the United States, the Acting Secretary, and the President of the United States, all referred to here as the Government.
In the District Court litigation respondents argue that the Acting Secretary’s determination to rescind DACA in the near future is unlawful because, among other reasons, it violates the Administrative Procedure Act (APA) and the Due Process Clause of the Fifth Amendment, including the equal protection guarantee implicit in that Clause.
The issue to be considered here involves respondents’ contention that the administrative record the Government filed to support the Acting Secretary’s determination to rescind DACA is incomplete. The record consists of 256

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2

IN RE UNITED STATES

Per Curiam
pages of documents, and the Government contends that it contains all of the nondeliberative material considered by the Acting Secretary in reaching her determination. (Nearly 200 pages consist of published opinions from various federal courts.)
On October 17, the District Court, on respondents’ motion, ordered the Government to complete the administrative record. See Regents of Univ. of Cal. v. Department of Homeland Security, App. C to Pet. for Mandamus, 2017 WL 4642324 (ND Cal., Oct. 17, 2017) (District Court Order). The details of that order are recounted further below. See infra, at 3.
The Government petitioned for a writ of mandamus in the Court of Appeals for the Ninth Circuit. The Court of Appeals, in a divided opinion, denied the Government’s petition. See 875 F. 3d 1200 (2017).
On November 19, three days after the Court of Appeals issued its opinion, respondents moved the District Court to stay its order requiring completion of the administrative record until after the District Court resolved the Government’s motion to dismiss and respondents’ motion for a preliminary injunction. See Motion to Stay in No. 17–cv–5211 (Nov. 19, 2017), Doc. 190. The District Court did not grant respondents’ request, instead staying its order for one month.
Still objecting to the District Court’s order, the Government now seeks relief in this Court. It has filed here a petition for a writ of mandamus to the District Court, or, in the alternative, for a writ of certiorari to the Court of Appeals.
The Court now grants the petition for a writ of certiorari, vacates the order of the Court of Appeals for the Ninth Circuit, and remands the case.
The District Court’s October 17 order requires the Government to turn over all “emails, letters, memoranda, notes, media items, opinions and other materials” that fall

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Cite as: 583 U. S. ____ (2017)

3

Per Curiam
within the following categories:
“(1) all materials actually seen or considered, however briefly, by Acting Secretary [Elaine] Duke in connection with the potential or actual decision to rescind DACA . . . , (2) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with written advice or input regarding the actual or potential rescission of DACA, (3) all DACA-related materials considered by persons (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input regarding the actual or potential rescission of DACA, (4) all comments and questions propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual or potential rescission of DACA and their responses, and (5) all materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA.” District Court Order, 2017 WL 4642324, at *8.
The Government makes serious arguments that at least portions of the District Court’s order are overly broad. (The Government appears to emphasize certain materials in categories 2, 3, and 4.) Under the specific facts of this case, the District Court should have granted respondents’ motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government’s threshold arguments (that the Acting Secretary’s determination to rescind DACA is unreviewable because it is “committed to agency discretion,” 5 U. S. C. §701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction). Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.

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4

IN RE UNITED STATES

Per Curiam
On remand of the case, the Court of Appeals shall take appropriate action so that the following steps can be taken. The District Court should proceed to rule on the Government’s threshold arguments and, in doing so, may consider certifying that ruling for interlocutory appeal under 28 U. S. C. §1292(b) if appropriate. Thereafter, the Court of Appeals or the District Court in the first instance may consider whether narrower amendments to the record are necessary and appropriate. In any event, the District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue.
This order does not suggest any view on the merits of respondents’ claims or the Government’s defenses, or that the District Court’s rulings on the Government’s motion to dismiss and respondents’ motion for preliminary injunction should be delayed.
The judgment of the Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

 
 Case 3:17-cv-05813-WHA Document 48 Filed 01/09/18 Page 1 of 49

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

NIELSEN, in her official capacity as Secretary of the Department of Homeland Security,

17

Defendants.

18

/

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA
ORDER DENYING FRCP 12(b)(1) DISMISSAL AND GRANTING PROVISIONAL RELIEF

19

INTRODUCTION

20

In these challenges to the government’s rescission of the Deferred Action for Childhood

21 Arrivals program, plaintiffs move for provisional relief while the government moves to dismiss

22 for lack of jurisdiction. For the reasons below, dismissal is DENIED and some provisional relief

23 is GRANTED.

24

STATEMENT

25

In 2012, the United States Department of Homeland Security adopted a program to

26 postpone deportation of undocumented immigrants brought to America as children and, pending

27 action in their cases, to assign them work permits allowing them to obtain social security

28 numbers, pay taxes, and become part of the mainstream economy. This program received the

Case 3:17-cv-05813-WHA Document 48 Filed 01/09/18 Page 2 of 49

United States District Court For the Northern District of California

1 title “Deferred Action for Childhood Arrivals” — DACA for short. In 2017, however, after the

2 national election and change in administrations, the agency eventually reversed itself and began

3 a phase-out of DACA. All agree that a new administration is entitled to replace old policies

4 with new policies so long as they comply with the law. One question presented in these related

5 actions is whether the new administration terminated DACA based on a mistake of law rather

6 than in compliance with the law.

7

1.

HISTORY OF DEFERRED ACTION.

8

At the core of these cases is an administrative practice known as “deferred action.”

9 A primary question presented concerns the extent to which the Department of Homeland

10 Security could lawfully use deferred action to implement DACA, and so it is important to review

11 the history of deferred action as well as of other features of the DACA program.

12

Congress has the constitutional power to “establish an uniform Rule of Naturalization.”

13 Art. I, § 8, cl. 4. Pursuant thereto, Congress has established a comprehensive scheme governing

14 immigration and naturalization through the Immigration and Nationality Act. 8 U.S.C. §§ 1101,

15 et seq. The Secretary of Homeland Security is “charged with the administration and enforcement

16 of [the INA] and all other laws relating to the immigration and naturalization of aliens.”

17 8 U.S.C. § 1103(a)(1). The Secretary is further charged with “establishing national immigration

18 enforcement policies and priorities.” 6 U.S.C. § 202(5).

19

One of the key enforcement tools under the INA is removal, i.e., deportation. In turn,

20 “[a] principal feature of the removal system is the broad discretion exercised by immigration

21 officials.” Arizona v. United States, 567 U.S. 387, 396 (2012). As an initial matter, in any given

22 case, immigration officials “must decide whether it makes sense to pursue removal at all.” Ibid.

23 At each stage of the removal process, they have “discretion to abandon the endeavor.” Reno v.

24 Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”).

25

Beginning as early as 1975, one way to exercise this discretion became “deferred action.”

26 By deferred action, immigration officials could postpone, seemingly indefinitely, the removal of

27 individuals unlawfully present in the United States “for humanitarian reasons or simply for [the

28

2

Case 3:17-cv-05813-WHA Document 48 Filed 01/09/18 Page 3 of 49

United States District Court For the Northern District of California

1 Executive’s] own convenience.” Id. at 483–84. Immigration officials could also grant parole,

2 temporary protected status, deferred enforced departure, or extended voluntary departure.

3

Some of these discretionary powers have flowed from statute. Parole, for example,

4 has allowed otherwise inadmissible aliens to temporarily enter the United States “for urgent

5 humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Temporary

6 protected status, also created by statute, has been available to nationals of designated foreign

7 states affected by armed conflicts, environmental disasters, and other extraordinary conditions.

8 8 U.S.C. § 1254a.

9

Some of these discretionary powers, however, have flowed from nonstatutory powers.

10 Deferred enforced departure had no statutory basis but, instead, grew out of “the President’s

11 constitutional powers to conduct foreign relations.” USCIS, Adjudicator’s Field Manual

12 § 38.2(a) (2014). Nor has extended voluntary departure been anchored in any statute. Rather,

13 it has been recognized as part of the discretion of the Attorney General. Hotel & Restaurant

14 Employees Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc).

15

Deferred action, originally known as “nonpriority” status, also began “without express

16 statutory authorization” but has since been recognized by the Supreme Court as a “regular

17 practice.” AADC, 525 U.S. at 484. Congress has also acknowledged deferred action by explicit

18 reference to it in the INA (8 U.S.C. § 1227(d)(2)):

19

The denial of a request for an administrative stay of removal under

this subsection shall not preclude the alien from applying for a stay

20

of removal, deferred action, or a continuance or abeyance of

removal proceedings under any other provision of the immigration

21

laws of the United States.

22

Another federal statute, the REAL ID Act, also acknowledged deferred action. REAL ID

23 Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. This law provided that states could issue

24 a temporary driver’s license or identification card to persons who can demonstrate an

25 “authorized stay in the United States.” Id. §§ 202(c)(2)(C)(i)–(ii). Persons with “approved

26 deferred action status” were expressly identified as being present in the United States during a

27 “period of authorized stay,” for the purpose of issuing state identification cards. Id. §§

28 202(c)(2)(B)(viii), (C)(ii).

3

Case 3:17-cv-05813-WHA Document 48 Filed 01/09/18 Page 4 of 49

United States District Court For the Northern District of California

1

Congress has also given the Executive Branch broad discretion to determine when

2 noncitizens may work in the United States. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,

3 1062 (9th Cir. 2014) (“Brewer I”); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien”

4 not entitled to work in the United States as an alien who is neither a legal permanent resident

5 nor “authorized to be . . . employed by [the INA] or by the [Secretary of Homeland Security]”).

6 Pursuant to this statutory authority, regulations promulgated in the 1980s allowed recipients of

7 deferred action to apply for work authorization if they could demonstrate an “economic necessity

8 for employment.” 8 C.F.R. § 274a.12(c)(14).

9

The George W. Bush Administration began to use deferred action to mitigate a harsh

10 statutory provision involving “unlawful presence.” The Illegal Immigration Reform and

11 Immigrant Responsibility Act of 1996 created three- and ten-year bars on the admission of

12 aliens who departed or were removed from the United States after periods of “unlawful

13 presence” of between 180 days and one year, or more than one year, respectively. 8 U.S.C.

14 § 1182(a)(9)(B)(i). It also imposed a permanent bar on the admission of any alien who,

15 without being admitted, entered or attempted to reenter the United States after having been

16 unlawfully present for an aggregate period of more than one year. 8 U.S.C. § 1182(a)(9)(C)(i).

17 Beginning in 2007, however, DHS regulations and policy guidance provided that deferred action

18 recipients did not accrue “unlawful presence” for purposes of the INA’s bars on re-entry.

19 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership,

20 from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS,

21 Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections

22 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009). DHS excluded recipients

23 of deferred action from being “unlawfully present” because their deferred action is a period of

24 stay authorized by the government. Brewer I, 757 F.3d at 1059 (citing 8 U.S.C.

25 § 1182(a)(9)(B)(ii)). This nonaccrual practice arose well before DACA.1

26

27
1 Undocumented aliens do not begin to accrue “unlawful presence” for purposes of
28 Section 1182(a)(9)(B)(i) until they reach the age of eighteen. 8 U.S.C. § 1182(a)(9)(B)(iii).

4

Case 3:17-cv-05813-WHA Document 48 Filed 01/09/18 Page 5 of 49

United States District Court For the Northern District of California

1

DACA grew out of a long agency history of discretionary relief programs. In 1956, the

2 Eisenhower Administration paroled roughly one thousand foreign-born orphans who had been

3 adopted by American citizens but were precluded from entering the United States because of

4 statutory quotas. That same administration later granted parole to tens of thousands of

5 Hungarian refugees after the unsuccessful Hungarian revolution. Both programs flowed from

6 presidential statements, and the programs later ended (in 1959 and 1958, respectively) when

7 Congress passed laws enabling the paroled individuals to become lawful permanent residents

8 (App. 1602–03, 1948–57; AR 33).2

9

In 1987, President Ronald Reagan instituted the Family Fairness Program, a non-

10 statutory program that provided extended voluntary departure to children whose parents were in

11 the process of legalizing their immigration status under the Immigration Reform and Control Act

12 of 1986. President George H.W. Bush extended the non-statutory program in 1990 to cover

13 spouses of such legalized aliens, and the program ultimately provided immigration relief to

14 approximately 1.5 million people. The need for the program ended with the passage of the

15 Immigration Act of 1990 (App. 1607, 1612–13, 1703).

16

On at least four occasions prior to the creation of DACA, immigration officials have

17 extended deferred action programs to certain classes of aliens, none of which programs was

18 expressly authorized by statute:

19

•

In 1997, INS established a deferred action program for individuals

20

self-petitioning for relief under the Violence Against Women Act of

21

1994. This program is still in place today. As originally enacted, the

22

Act did not mention deferred action, but instead provided a pathway

23

to lawful permanent residency. Deferred action allowed applicants

24

to remain in the country pending a decision on their applications.

25

26

2 “App.” refers to the appendix submitted in support of plaintiffs’ motion for provisional relief (Dkt.

Nos. 113, 117–19, 121, 124). In connection with their motion for provisional relief, plaintiffs seek judicial
27 notice of thirty-nine exhibits submitted with the appendix (Dkt. No. 111-2). The request is unopposed.

These exhibits consist of congressional testimony and government publications, memoranda, and press releases.
28 Plaintiffs’ request for judicial notice is GRANTED.

5

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United States District Court For the Northern District of California

1

Congress later expanded the deferred action program in the 2000

2

VAWA reauthorization legislation (App. at 1640–46).

3

•

In 2002 and 2003, INS issued memoranda instructing officers to make

4

deferred action assessments for T visa applicants (victims of human

5

trafficking) and U visa applicants (victims of crimes such as domestic

6

violence) (App. 1650–58). These programs have since been codified in

7

regulations promulgated by INS and DHS. 8 C.F.R. §§ 214.11(k)(1),

8

(k)(4), (m)(2); 8 C.F.R. § 214.14(d)(2).

9

•

After Hurricane Katrina in 2005, USCIS announced a deferred action

10

program for certain foreign students (F-1 visa holders) who, because of

11

the hurricane, could not satisfy the requirements of their student visas.

12

In announcing the program, USCIS stated that “[t]he interim relief

13

[would] remain in effect until February 1, 2006” (App. 1661–62).

14

•

In 2009, to fill a gap under the law, USCIS established a deferred

15

action program for widowed spouses who had been married to United

16

States citizens for less than two years. Congress later eliminated the

17

statutory requirement that an alien be married to a United States citizen

18

for at least two years at the time of the citizen’s death to retain

19

eligibility for lawful immigration status, and USCIS accordingly

20

withdrew the deferred action program as “obsolete” (App. 1664–82).

21

In sum, by the time DACA arrived in 2012, deferred action programs had become a

22 well-accepted feature of the executive’s enforcement of our immigration laws, recognized as

23 such by Congress and the Supreme Court.

24

2. DACA.

25

On June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a

26 memorandum establishing Deferred Action for Childhood Arrivals. Under DACA, immigrants

27 brought to the United States as children could apply for deferred action for a two-year period,

28 subject to renewal. To qualify for DACA, an individual must: (1) have come to the United

6

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1 States before the age of sixteen and been under the age of thirty-one on June 15, 2012;

2 (2) have been present in the United States on June 15, 2012; (3) have been continuously residing

3 in the United States for at least the prior five years; (4) have been enrolled in school, graduated

4 from high school, obtained a GED, or been honorably discharged from the United States military

5 or Coast Guard; and (5) not pose a threat to national security or public safety (AR 1).

6

The 2012 DACA memo described the program as an exercise of “prosecutorial

7 discretion.” Secretary Napolitano found leniency “especially justified” for the DACA-eligible,

8 whom she described as “productive young people” who “have already contributed to our country

9 in significant ways.” The memo further stated that these individuals “lacked the intent to violate

10 the law” and were low priority cases for deportation (AR 1–2).

11

DACA applicants had to pass a DHS background check and applications had to be

12 “decided on a case by case basis.” To apply for DACA, eligible individuals completed USCIS

13 Form I-821D. The application called for substantial personal information, such as biographical

14 information, date of entry into the United States, immigration status or lack thereof, educational

15 history, and all prior residential addresses since entering the United States.

16

Form I-821D also required substantial documentary support, including proof of identity

17 and proof of continuous residence in the United States through rent receipts, utility bills,

18 employment documents, or similar records. Applicants also appeared at a USCIS field office

19 to provide fingerprints, photographs, and signatures. The form’s instructions stated (App. 1820):

20

Information provided in this request is protected from disclosure

to ICE and U.S. Customs and Border Protection (CBP) for the

21

purpose of immigration enforcement proceedings unless the

requestor meets the criteria for the issuance of a Notice To Appear

22

or a referral to ICE under the criteria set forth in USCIS’ Notice to

Appear guidance (www.uscis.gov/NTA). The information may be

23

shared with national security and law enforcement agencies,

including ICE and CBP, for purposes other than removal,

24

including for assistance in the consideration of deferred action for

childhood arrivals request itself, to identify or prevent fraudulent

25

claims, for national security purposes, or for the investigation or

prosecution of a criminal offense. The above information sharing

26

clause covers family members and guardians, in addition to the

requestor.

27

28

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1

The form’s instructions also stated (App. 1808):

2

Individuals who receive deferred action will not be placed into

removal proceedings or removed from the United States for a

3

specified period of time, unless the Department of Homeland

Security (DHS) chooses to terminate the deferral.

4

DACA applicants also submitted a Form I-765, Application for Employment

5

Authorization, a Form I-765WS, Worksheet, and the accompanying fees. To determine an

6

applicant’s eligibility for work authorization, USCIS reviewed the applicant’s current annual

7

income, current annual expenses, and the total current value of his or her assets (App. 1762,

8

1801–21, 2067–87).

9

If approved, the recipient received a Form I-797, Notice of Action, stating (App. 585):

10

USCIS, in the exercise of its prosecutorial discretion, has decided

11

to defer action in your case. Deferred action is an exercise of

prosecutorial discretion by USCIS not to pursue the removal of an

12

individual from the United States for a specific period. Deferred

action does not confer or alter any immigration status.

13

Significantly, DHS could terminate a recipient’s deferred action at any time, at the

14

agency’s discretion, and DACA paved no pathway to lawful permanent residency, much less

15

citizenship (App. 1774, 1808). Secretary Napolitano concluded her DACA memorandum

16

(AR 1–3):

17

This memorandum confers no substantive right, immigration status

18

or pathway to citizenship. Only the Congress, acting through its

legislative authority, can confer these rights. It remains for the

19

executive branch, however, to set forth policy for the exercise of

discretion within the framework of the existing law. I have done

20

so here.

21

But DACA did provide important benefits. First, under pre-existing regulations, DACA

22 recipients became eligible to receive employment authorization for the period of deferred action,

23 thereby allowing them to obtain social security numbers and to become legitimate taxpayers and

24 contributing members of our open economy. 8 C.F.R. § 274a.12(c)(14). Second, deferred action

25 provided a measure of safety for a period of two years from detention and removal, albeit always

26 subject to termination at any time in any individual case. Third, DACA recipients could apply

27 for “advance parole” to obtain permission to travel overseas and be paroled back into the United

28 States. 8 C.F.R. § 212.5(f). Fourth, also pursuant to pre-existing regulations, DACA recipients

8

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1 avoided accrual of time for “unlawful presence” under the INA’s bar on re-entry. 8 U.S.C.

2 § 1182(a)(9)(B)–(C) (establishing three-year, ten-year, and permanent bars on the admission

3 of aliens after specified periods of “unlawful presence”).

4

USCIS “strongly encourage[d]” DACA recipients to submit renewal requests between

5 120 and 150 days before the expiration date-stamped on the recipient’s Form I-797. According

6 to the “Frequently Asked Questions” posted on the agency’s website, recipients were eligible for

7 renewal under DACA so long as they: (1) did not depart the United States on or after August 15,

8 2012, without advance parole; (2) continuously resided in the United States since submitting

9 their most recent DACA request; and (3) had not received criminal convictions (with minor

10 exceptions). Renewal requests did not require additional documentary support (App. 1756–57).

11

The agency adopted DACA without any notice or opportunity for public comment.

12

According to data published by USCIS, 793,026 applicants received deferred action

13 under DACA since its inception. As of September 2017, there remained approximately 689,800

14 active DACA recipients. Their average age was 23.8. Based on a survey completed by

15 Associate Professor Tom K. Wong in August 2017, 91 percent of DACA recipients had jobs,

16 and 45 percent of DACA recipients were enrolled in school (App. 1494–1522, 1533–52).

17

3. THE DAPA LITIGATION.

18

In 2014, DHS announced a different deferred action program for parents of United States

19 citizens or lawful permanent residents, titled “Deferred Action for Parents of Americans and

20 Lawful Permanent Residents” — shortened to the confusingly-similar acronym DAPA.

21

For our purposes, DAPA is important because the United States Court of Appeals for

22 the Fifth Circuit promptly held that DAPA exceeded the statutory authority of DHS, a holding

23 that eventually moved Attorney General Jeff Sessions to rule that DACA too had exceeded the

24 agency’s authority. Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

25

The 2014 DAPA memo directed USCIS “to establish a process, similar to DACA, for

26 exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,”

27 for aliens who had a son or daughter who was a United States citizen or lawful permanent

28 resident and: (1) were not an enforcement priority under DHS policy; (2) had continuously

9

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1 resided in the United States since before January 1, 2010; (3) had been physically present in the

2 United States both when DHS announced DAPA and at the time of application to the program;

3 and (4) presented “no other factors that, in the exercise of discretion, [made] the grant of

4 deferred action inappropriate” (AR 37–41).

5

That same 2014 announcement also expanded DACA in three minor ways: (1) allowing

6 otherwise eligible immigrants to apply for DACA even if they were older than 31 on the day

7 DACA was earlier announced; (2) extending DACA renewals and work authorizations from

8 two- to three-year periods; and (3) adjusting DACA’s date-of-entry requirement from June 15,

9 2007, to January 1, 2010 (AR 37–41).

10

DAPA was also adopted without notice or opportunity for public comment.

11

A coalition of twenty-six states immediately filed suit in the United States District Court

12 for the Southern District of Texas to challenge DAPA. The district court preliminarily enjoined

13 its implementation on the ground that DHS had failed to comply with the APA’s

14 notice-and-comment requirements. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

15 The district court’s order stated that “with three minor exceptions,” the case did not involve

16 DACA (id. at 606):

17

The Complaint in this matter does not include the actions taken by

Secretary Napolitano, which have to date formalized the status of

18

approximately 700,000 teenagers and young adults. Therefore,

those actions are not before the Court and will not be addressed

19

by this opinion. Having said that, DACA will necessarily be

discussed in this opinion as it is relevant to many legal issues in

20

the present case. For example, the States maintain that the DAPA

applications will undergo a process identical to that used for

21

DACA applications and, therefore, DACA’s policies and

procedures will be instructive for the Court as to DAPA’s

22

implementation.

23

In holding that DAPA violated notice-and-comment procedures, the district court held

24 that it constituted “a new rule that substantially change[d] both the status and employability of

25 millions” and inflicted “major costs on both states and federal government.” It therefore should

26 have been issued, the district court held, after notice and opportunity for public comment. Id. at

27 671. Though the order focused on DAPA, it also preliminarily enjoined everything in the 2014

28

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1 memorandum, including the three minor ways in which DACA had been modified (but left alone

2 the 2012 DACA program).

3

The Fifth Circuit affirmed in a split decision but added a further ground for affirmance.

4 Texas, 809 F.3d at 178. Over a dissent, the appellate panel added the ground that DAPA was

5 substantively foreclosed by statute because the INA contained “an intricate process for illegal

6 aliens to derive a lawful immigration classification from their children’s immigration status,”

7 and that DAPA, by providing “the benefits of lawful presence” to undocumented immigrants

8 “solely on account of their children’s immigration status,” was inconsistent with this statutory

9 scheme, which provided its own pathway for lawful presence to parents of children lawfully

10 in the United States. Id. at 179–80, 186. The Fifth Circuit’s holding was also based on its

11 observation that “the INA does not grant the Secretary discretion to grant deferred action and

12 lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 186

13 n.202. The decision was later affirmed without opinion by an equally divided Supreme Court.

14 United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).3

15

In February 2017, DHS Secretary John Kelly issued guidance regarding the Trump

16 Administration’s immigration enforcement priorities. Although the guidance rescinded “all

17 existing conflicting directives, memoranda, or field guidance regarding the enforcement of our

18 immigration laws and priorities for removal,” the 2012 DACA memo and 2014 DAPA memo

19 were explicitly left in place. The guidance also said that the 2014 DAPA memo would “be

20 addressed in future guidance” (AR 229–34).

21

In June 2017, Secretary Kelly rescinded the 2014 DAPA memo, which rescission

22 included the 2014 expansions of DACA. He explained:

23

I have considered a number of factors, including the preliminary

injunction in this matter, the ongoing litigation, the fact that DAPA

24

never took effect, and our new immigration enforcement priorities.

After consulting with the Attorney General, and in the exercise of

25

my discretion in establishing national immigration enforcement

policies and priorities, I hereby rescind the November 20, 2014,

26

memorandum.

27

28

3 Such an affirmance has no precedential value. Neil v. Biggers, 409 U.S. 188, 192 (1972).

11

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1 Again, however, Secretary Kelly declared that the 2012 DACA memo would remain in effect

2 (AR 235–37).

3

4. RESCISSION OF DACA.

4

Also in June 2017, ten of the twenty-six plaintiffs from the DAPA litigation wrote to

5 Attorney General Jeff Sessions to demand rescission of the 2012 DACA memo. Their letter

6 stated that if DACA was rescinded by September 5, they would dismiss the still-pending DAPA

7 litigation. Otherwise, the letter threatened to try to amend their complaint to additionally

8 challenge the legality of DACA (AR 238–40).

9

A day before the deadline, the Attorney General advised Acting Secretary of Homeland

10 Security Elaine Duke via a short letter that the Obama Administration had created DACA

11 “without proper statutory authority and with no established end-date, after Congress’ repeated

12 rejection of proposed legislation that would have accomplished a similar result,” and that

13 therefore the program was an “unconstitutional exercise of authority by the Executive Branch.”

14 The Attorney General’s letter also referenced the preliminary injunction against DAPA, then

15 stated that “[b]ecause the DACA policy has the same legal and constitutional defects that the

16 courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar

17 results with respect to DACA” (AR 251).

18

The following day, without prior notice, the Acting Secretary rescinded DACA.

19 The rescission was not based on any policy criticism. Instead, it was based on the legal

20 determination by the Attorney General. The Acting Secretary explained that after “[t]aking into

21 consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and

22 the September 4, 2017, letter from the Attorney General, it is clear that the June 15, 2012,

23 DACA program should be terminated.” She said that “[r]ecognizing the complexities associated

24 with winding down the program,” DHS would “provide a limited window” in which it would

25 adjudicate certain requests, but that new DACA requests and applications for employment

26 authorization would be rejected starting immediately. DHS would adjudicate, on a case-by-case

27 basis, DACA renewal requests received within thirty days from beneficiaries whose DACA

28 status would expire before March 5, 2018. She also instructed DHS to immediately stop

12

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1 approving new applications for advance parole. The rescission left in place all extant grants of

2 deferred action and work authorizations for the remainder of their validity periods (AR 252–56).

3 Consequently, starting in March 2018, the DACA population will, over two years, dwindle down

4 to zero.

5

On the night of the rescission, President Trump called upon Congress specifically to

6 enact DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

7 Administration was unable to do). If they can’t, I will revisit this issue!” During an interview

8 earlier in 2017, President Trump had stated “we are not after the dreamers, we are after the

9 criminals” and that “the dreamers should rest easy” (App. 1852–53, 1958).

10

In sum, the new administration didn’t terminate DACA on policy grounds. It terminated

11 DACA over a point of law, a pithy conclusion that the agency had exceeded its statutory and

12 constitutional authority. An important question now presented is whether that conclusion was a

13 mistake of law.

14

5.

THE INSTANT LITIGATION.

15

Plaintiffs herein filed five related non-class lawsuits in this district, all now before the

16 undersigned judge. The first commenced on September 8, brought by The Regents of the

17 University of California, on its own behalf and on behalf of its students, and Janet Napolitano,

18 in her official capacity as President of the University. UC Plaintiffs allege they have invested

19 considerable resources in recruiting students and staff who are DACA recipients, and that these

20 individuals make important contributions to the University. As DACA recipients lose their work

21 authorizations, UC Plaintiffs allege that the University will lose significant intellectual capital

22 and productivity. They further allege that students who lose DACA protections will be unable

23 “to plan for the future, apply for and obtain internships and certain financial aid and

24 scholarships, study abroad, or work to pay their tuition and other expenses,” and as a result may

25 withdraw from the University altogether (UC Compl. ¶¶ 4–6, 34–37, 48–49).4

26

27

4 Two additional DACA lawsuits proceed in the Eastern District of New York before Judge Nicholas

Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case No. 16-cv-04756
28 NGG.

13

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1

On September 11, the States of California, Maine, Maryland, and Minnesota filed suit.

2 Plaintiff States allege that they are home to more than 238,000 DACA recipients, and that the

3 loss of their residents’ DACA status and work authorizations will injure their public colleges

4 and universities, upset the States’ workforces, disrupt the States’ statutory and regulatory

5 interests, cause harm to hundreds of thousands of their residents, damage their economies,

6 and hurt companies based in Plaintiff States (States Compl. ¶¶ 1–10).

7

The City of San Jose, on its own behalf and on behalf of its employees who are DACA

8 recipients, filed its action on September 14. San Jose alleges that it has hired DACA recipients

9 into vital City jobs, that substantial resources were invested in training these employees, and that

10 the City will be harmed when these employees are forced to leave the workforce (when they lose

11 their work authorizations). San Jose further alleges that it will continue to lose tax revenue as

12 DACA recipients lose work authorizations and can no longer contribute to the City’s tax base

13 (San Jose Compl. ¶¶ 10, 28, 49–51).

14

On September 18, Individual DACA recipients Dulce Garcia, Miriam Gonzalez Avila,

15 Saul Jimenez Suarez, Viridiana Chabolla Mendoza, Norma Ramirez, and Jirayut

16 Latthivongskorn brought suit to challenge the termination of DACA. Individual Plaintiffs work

17 and study in the fields of law, medicine, education, and psychology. They allege that the loss of

18 DACA will frustrate their professional goals and accomplishments. They further allege that as a

19 result of the rescission, they will lose access to numerous federal and state benefits, and may not

20 be able to reside in the United States with their families. They applied for DACA in reliance on

21 the government’s representations that information provided under the program would not be

22 used for purposes of immigration enforcement (Garcia Compl. ¶¶ 4–9, 55, 59, 72, 78, 85, 95,

23 128).

24

Finally, the County of Santa Clara and the Service Employees International Union Local

25 521 filed their complaint on October 10. The County alleges that it employs DACA recipients,

26 including union members, in key positions, such as in its In-Home Supportive Services Program

27 and New Americans Fellowship Program. The County alleges that it has expended time and

28 money in training these employees, and that it relies on them to provide important services.

14

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1 As DACA recipients leave the workforce, the County will lose important employees, will incur

2 harm to its economy and suffer decreased tax revenue, and will incur the costs of increased

3 dependency on subsidized health care and other County services. Local 521 sues as an

4 associational plaintiff on behalf of its members who are DACA recipients, and alleges that the

5 Union’s organizational mission is to organize, represent, and empower employees, as well as

6 mobilize immigration reform (Santa Clara Compl. ¶¶ 1, 15–20, 32, 37, 43–52).

7

Collectively, plaintiffs assert the following claims:

8

•

The rescission violated the Administrative Procedure Act because it

9

was arbitrary, capricious, an abuse of discretion, and otherwise not in

10

accordance with law (UC Compl. ¶¶ 50–58; State Compl. ¶¶ 152–55;

11

Garcia Compl. ¶¶ 165–84; Santa Clara Compl. ¶¶ 67–73).

12

•

The rescission violated the APA because it was a substantive rule that

13

did not comply with the APA’s notice-and-comment requirements or

14

the Regulatory Flexibility Act’s mandate under 5 U.S.C. § 604 that

15

an agency publish analysis of a rule’s impact on small businesses

16

(UC Compl. ¶¶ 59–66; State Compl. ¶¶ 146–63; San Jose Compl.

17

¶¶ 59–63; Garcia Compl. ¶¶ 177–84).

18

•

The rescission deprived DACA recipients of constitutionally-protected

19

property and liberty interests without due process of law. Plaintiffs also

20

allege that the rescission violated due process because the government

21

changed its policy regarding agency use of DACA-related information

22

(UC Compl. ¶¶ 67–73; State Compl. ¶¶ 141–45; Garcia Compl.

23

¶¶ 133–47; Santa Clara Compl. ¶¶ 59–66).

24

•

The rescission violates equal protection of the law because it was

25

motivated by discriminatory animus and because it deprived DACA

26

grantees of their substantial interests in supporting themselves and

27

furthering their education (State Compl. ¶¶ 172–77; San Jose Compl.

28

¶¶ 52–58; Garcia Compl. ¶¶ 148–59; Santa Clara Compl. ¶¶ 74–78).

15

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1

•

The rescission violates equitable estoppel. DACA recipients provided

2

detailed personal information to the government and rearranged their

3

lives based on the government’s representations, but now face the

4

possibility of removal. Plaintiffs argue that the government should

5

therefore be equitably estopped from terminating DACA or from using

6

their DACA information for immigration enforcement purposes (State

7

Compl. ¶¶ 164–71; Garcia Compl. ¶¶ 192–99; Santa Clara Compl.

8

¶¶ 79–86).

9

•

Plaintiffs seek a declaration that the rescission was unlawful and an

10

order restoring DACA (UC Compl. at 16, State Compl. at 35–36;

11

San Jose Compl. at 15–16; Garcia Compl. at 43; Santa Clara Compl.

12

at 26–27).

13

On September 21, an initial case management conference occurred for all DACA actions

14 in our district. At the conference, all counsel, including government counsel, presented a joint

15 proposal whereby the government would file the administrative record by October 13.

16 Significantly, although the government argued that discovery would be premature, it agreed to

17 submit the administrative record without any condition that it be done before any decision on its

18 threshold jurisdictional motion (presumably because it knew its jurisdictional motion would be

19 premised on the administrative record) (see Dkt. No. 114 at 16; Tr. at 17:3, 22:2). The Court

20 made only slight revisions to the joint proposal, all in aid of a stated goal of providing a full

21 record and final decision for our court of appeals prior to the March 5 expiration date. Pursuant

22 to FRCP 26, a case management order then set a October 6 deadline for the government to file

23 the administrative record, set a briefing schedule for the parties’ motions to dismiss, for

24 provisional relief, or for summary judgment, and permitted the parties to proceed with

25 reasonable, limited, and narrowly-directed discovery (Dkt. No. 49).

26

The government filed an administrative record on October 6. It was merely, however,

27 fourteen documents comprising 256 pages of which 187 consisted of published opinions from

28 the DAPA litigation, and all of which already resided in the public domain. All non-public

16

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1 materials, some eighty-four documents, actually reviewed by the Acting Secretary remained

2 withheld as privileged (Dkt. No. 71). In other words, of the ninety-eight DACA-related

3 documents personally considered by the decisionmaker, all but the fourteen already known to

4 the public were withheld as privileged. Although government counsel further indicated, upon

5 inquiry by the district judge, that the decisionmaker had also likely received verbal input,

6 nothing was included in the administrative record to capture this input. Nor were there any

7 materials regarding the agency’s earlier, recent decisions to leave DACA in place.

8

On October 9, plaintiffs moved to require the government to complete the administrative

9 record, seeking all materials considered directly or indirectly by the Acting Secretary in

10 reaching her decision to rescind DACA, which motion was granted in part and denied in part.

11 The government, having earlier consented to filing the administrative record, was ordered to

12 keep its word and to file a complete administrative record (Dkt. Nos. 65, 79–80).

13

Instead, the government filed a petition for writ of mandamus with our court of appeals,

14 seeking relief from having to complete the administrative record until after its jurisdictional

15 arguments were determined, a turnabout from its earlier voluntary proposal and stipulation to

16 file the administrative record as part of an agreed-upon schedule. After full briefing and oral

17 argument, our court of appeals denied the government’s mandamus petition and vacated the

18 stay (over one dissent).5

19

The government was again ordered to complete the administrative record, this time by

20 November 22, later extended to December 22 to accommodate the government’s claim of

21 burden. On December 1, however, the government filed a petition for writ of mandamus and

22 application for a stay in the United States Supreme Court. Ultimately, the Supreme Court did

23 not reach the merits of the government’s petition but required that defendants’ jurisdictional

24 defenses be adjudicated prior to consideration of discovery or completing the administrative

25
5 Recently, the United States Court of Appeals for the Second Circuit denied the government’s petition
26 for a writ of mandamus to stay an order to supplement the same administrative record. The court of appeals
found that there was “a strong suggestion that the record before the District Court was not complete” and, noting
27 that nearly 200 pages of the record consisted of published opinions from various federal courts, “[i]t is difficult
to imagine that a decision as important as whether to repeal DACA would be made based upon a factual record
28 of little more than 56 pages, even accepting that litigation risk was the reason for repeal.” In Re: Kirstjen M.
Nielsen, No. 17-3345 (2d. Cir. Dec. 27, 2017).

17

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1 record (Dkt. Nos. 86, 188, 197, 214, 224), a decision the district judge himself might have made

2 at the outset save for the government’s own proposal and agreement to file the administrative

3 record in October.

4

Consequently, this action has proceeded on the incomplete administrative record

5 initially filed by the government. Plaintiffs have been forced to draw on other materials.

6 Ironically, even the government in these motions relies on material outside of the administrative

7 record to defend the agency decision (Dkt. No. 204 at 10, 12, 19–20). The parties have now

8 fully briefed motions to dismiss and a motion for provisional relief, all argued on December 20

9 (Dkt. Nos. 111, 114). This order now follows.

10

ANALYSIS

11

1.

MOTION TO DISMISS.

12

Defendants raise three jurisdictional arguments under FRCP 12(b)(1). First, they argue

13 that the decision to rescind DACA was a discretionary act barred from judicial review under

14 the APA. Second, they contend that the INA bars judicial review. Third, although defendants

15 concede that Individual Plaintiffs have standing, they contend that no others do. Each is

16 now addressed in turn. A separate order will consider defendants’ motion to dismiss under

17 FRCP 12(b)(6).

18

A. The DACA Rescission Was Not Committed

To Agency Discretion by Law.

19

Congress has instructed our district courts to review and set aside agency action found

20

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

21

5 U.S.C. § 706(2)(A). Under the APA, however, our district courts lack subject-matter

22

jurisdiction to review agency action that is “committed to agency discretion by law.” 5 U.S.C.

23

§ 701(a)(2).

24

In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the

25

Supreme Court explained that the jurisdictional bar of Section 701(a)(2) is “very narrow” and

26

“applicable in those rare instances where statutes are drawn in such broad terms that in a given

27

case there is no law to apply.” The Supreme Court held that because the statute there at issue

28

contained “clear and specific directives” guiding the agency’s decision, there was “‘law to

18

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1 apply,’ so the exemption for action ‘committed to agency discretion’ [was] inapplicable.” Id. at

2 411–13 (quotations and citations omitted).

3

When it next revisited the exception in Heckler v. Chaney, 470 U.S. 821, 830 (1985),

4 the Supreme Court reiterated that the exception applies only where “the statute is drawn so

5 that a court would have no meaningful standard against which to judge the agency’s exercise

6 of discretion.” There, condemned inmates asked the FDA to bring an enforcement action to

7 prevent purported violations of the Federal Food, Drug, and Cosmetic Act through the

8 administration of death-penalty drugs. The FDA Commissioner, however, refused to do so on

9 the ground that the FDA lacked jurisdiction and otherwise should not interfere with the state

10 criminal justice system. Skipping over the agency jurisdiction issue, the Supreme Court held

11 that such decisions not to prosecute or initiate enforcement actions are generally not reviewable

12 as they are “committed to an agency’s absolute discretion.” Id. at 824–25, 831.

13

Chaney identified several characteristics of non-enforcement decisions as key to

14 its holding. First, non-enforcement decisions require a complicated balancing of factors

15 “peculiarly within [the agency’s] expertise,” including whether “resources are best spent on

16 this violation or another, whether the agency is likely to succeed if it acts, whether the particular

17 enforcement action requested best fits the agency’s overall policies, and . . . whether the agency

18 has enough resources to undertake the action at all.” Id. at 831. Second, in refusing to act,

19 an agency “does not exercise its coercive power over an individual’s liberty” and accordingly

20 “does not infringe upon areas that courts often are called upon to protect.” Id. at 832. When an

21 agency does act to enforce, however, that action itself provides a focus for judicial review,

22 inasmuch as the agency must have exercised its power in some manner. Third, a refusal to

23 institute enforcement proceedings is similar to a prosecutor’s decision not to indict, which

24 decision “has long been regarded as the special province of the Executive Branch.” Ibid.

25

Our case is different from Chaney. There, the agency simply refused to initiate an

26 enforcement proceeding. Here, by contrast, the agency has ended a program which has existed

27 for five years affecting 689,800 enrollees. Importantly, major policy decisions are “quite

28 different from day-to-day agency nonenforcement decisions.” National Treasury Employees

19

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1 Union v. Horner, 854 F.2d 490, 496 (D.C. Cir. 1988). Rather, broad enforcement policies “are

2 more likely to be direct interpretations of the commands of the substantive statute rather than

3 the sort of mingled assessments of fact, policy, and law that drive an individual enforcement

4 decision.” Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).

5 Even defendants concede that where “the agency’s interpretation of a statute is embedded in a

6 non-reviewable enforcement policy, the former may be reviewable as such” (Dkt. No. 218 at 3

7 n.4). Although they contend that the rescission memorandum “does not contain an embedded

8 interpretation of the INA,” that assertion is incompatible with the Acting Secretary’s explicit

9 references to the INA and the Attorney General’s determination that DACA was effectuated

10 without “statutory authority.” The first and third Chaney factors, accordingly, do not apply to

11 the instant case.6

12

Chaney is also distinguishable because, unlike there, here the government reversed

13 course after five years of inviting DACA recipients out of the shadows. In contrast to

14 nonenforcement decisions, “rescissions of commitments, whether or not they technically

15 implicate liberty and property interests as defined under the fifth and fourteenth amendments,

16 exert much more direct influence on the individuals or entities to whom the repudiated

17 commitments were made.” Robbins v. Reagan, 780 F.2d 37, 47 (D.C. Cir. 1985). Through

18 DACA, the government has invited undocumented aliens who meet threshold criteria to step

19 forward, disclose substantial personal information, pay a hefty fee, and comply with ongoing

20 conditions, all in expectation of (though not a right to) continued deferred action. DACA

21 allows enrollees to better plan their careers and lives with a reduced fear of removal. DACA

22 work authorizations, for example, allow recipients to join in the mainstream economy (and pay

23 taxes). DACA covers a class of immigrants whose presence, seemingly all agree, pose the least,

24 if any, threat and allows them to sign up for honest labor on the condition of continued good

25 behavior. This has become an important program for DACA recipients and their families, for

26
6 Contrary to defendants, Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990), is distinguishable
27 on its facts. There, the Fifth Circuit addressed a class action stemming from the Immigration and Naturalization
Service’s failure to adjudicate requests for voluntary departure. The court of appeals determined that the district
28 court had improperly issued an injunction directing INS to consider particular grounds in deciding individual
requests for voluntary departure and employment authorization. Id. at 1046.

20

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1 the employers who hire them, for our tax treasuries, and for our economy. An agency action to

2 terminate it bears no resemblance to an agency decision not to regulate something never before

3 regulated.

4

Finally, there is law to apply. The main, if not exclusive, rationale for ending DACA

5 was its supposed illegality. But determining illegality is a quintessential role of the courts.7

6

B. The INA Does Not Bar Review.

7

The principle that courts owe substantial deference to the immigration determinations of

8 the political branches is important and undisputed. Washington v. Trump, 847 F.3d 1151, 1162

9 (9th Cir. 2017). That deference, however, does not remove the decision to rescind DACA from

10 the ambit of judicial review. Rather, the Supreme Court has applied the “strong presumption

11 in favor of judicial review of administration action” in the immigration context. See INS v.

12 St. Cyr, 533 U.S. 289, 298–99 (2001).

13

In this connection, defendants raise two arguments. First, they contend that review

14 of discretionary enforcement decisions results in the inappropriate delay of removal, and

15 accordingly prolongs violations of our immigration laws. This argument, however, again

16 ignores that plaintiffs do not challenge any particular removal but, rather, challenge the abrupt

17 end to a nationwide deferred-action and work-authorization program. In any individual case,

18 DACA allows DHS to revoke deferred status and to deport. Second, defendants assert that

19 review of such decisions may involve disclosure of law enforcement priorities and

20 foreign-policy objectives. Neither concern is implicated here, as defendants’ stated reasons

21 for the rescission all relate to the across-the-board cancellation of DACA based on supposed

22 illegality, not to the facts particular to any proposed removal.

23

24

25

26
7 Defendants are correct, of course, that a presumptively unreviewable agency action does not become
27 reviewable simply because “the agency gives a reviewable reason for otherwise unreviewable action.” ICC v.
Bhd. of Locomotive Eng’s, 482 U.S. 270, 283 (1987). As discussed above, however, the rescission of DACA
28 was not such an unreviewable decision.

21

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1

Nor does Section 1252(g) bar judicial review of the agency action in question. 8 U.S.C.

2 § 1252(g) provides:

3

Except as provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory) . . . no court shall have

4

jurisdiction to hear any cause or claim by or on behalf of any alien

arising from the decision or action by the Attorney General to

5

commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.

6

As explained by the Supreme Court, this provision applies only to the three discrete

7

decisions or actions named in Section 1252(g). AADC, 525 U.S. at 482. Plaintiffs’ claims do

8

not involve such decisions, but rather the challenge here is to the across-the-board cancellation

9

of a nationwide program.8

10

Defendants recognize that these actions were brought prior to the commencement of

11

any removal proceedings. Nevertheless, they argue that Section 1252(g) precludes review of

12

plaintiffs’ claims because the decision to discontinue deferred action is “an ingredient to the

13

commencement of enforcement proceedings.” It is true that eliminating DACA draws its

14

enrollees one step closer to deportation, but the Supreme Court rejected the argument that

15

Section 1252(g) somehow precludes review of the “many other decisions or actions that may be

16

part of the deportation process.” As AADC emphasized, “[i]t is implausible that the mention of

17

three discrete events along the road to deportation was a shorthand way of referring to all claims

18

arising from deportation proceedings.” Ibid.

19

Defendants cite two decisions. Importantly, however, both stemmed from already-

20

commenced deportation or removal proceedings. See Botezatu v. I.N.S., 195 F.3d 311, 312

21

(7th Cir. 1999) (declining to review a decision to deny deferred action after plaintiff had been

22

found deportable); Vasquez v. Aviles, 639 F. App’x 898, 899–900 (3d Cir. 2016) (district court

23

lacked jurisdiction to hear habeas corpus petition that claimed plaintiff was improperly denied

24

DACA relief).

25

By comparison, our court of appeals has held, following AADC, that Section 1252(g)

26

does not bar review of actions that occur “prior to any decision to ‘commence proceedings.’”

27

28

8 The district court in Batalla Vidal also concluded that Section 1252(g) did not bar judicial review of

challenges to the DACA rescission. Batalla Vidal v. Duke, 2017 WL 5201116, at *13.

22

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1 Kwai Fun Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004). The claims in Kwai Fun

2 Wong challenged the revocation of the plaintiff’s parole without first deciding her application

3 for immigration relief, conduct which “resulted in the INS’s decision to commence removal

4 proceedings and ultimately to remove” the plaintiff from the United States. Id. at 959, 964.

5 Contrary to defendants, it is immaterial that Kwai Fun Wong did not involve deferred action,

6 as both the revocation of parole and the revocation of deferred action are “an ingredient” to the

7 commencement of enforcement proceedings. The jurisdictional limits of Section 1252(g) were

8 instead “directed at the deconstruction, fragmentation, and hence prolongation of removal

9 proceedings.” AADC, 525 U.S. at 482.

10

C. Most Plaintiffs Have Standing.

11

To establish standing, Article III of the United States Constitution requires plaintiffs

12 to show “(1) they suffered an injury in fact, (2) that is fairly traceable to the challenged conduct

13 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

14 Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

15 560–61 (1992)). The standing inquiry is focused on whether the plaintiff has a sufficient

16 personal stake in the outcome of the controversy to ensure that the parties will be truly adverse

17 and their legal presentations sharpened. Massachusetts v. EPA, 549 U.S. 497 (2007). Standing

18 must be assessed on a claim-by-claim basis. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

19 (2006).

20

Defendants do not dispute that the Individual Plaintiffs have standing. Rather, they argue

21 in brief that the entity plaintiffs (the state and local governments, UC Plaintiffs, and SEIU Local

22 521) lack Article III standing because the rescission does not regulate or restrict them in any

23 way. Defendants therefore posit that the entity plaintiffs’ claimed injuries are due only to

24 “incidental effects” of the rescission, which defendants contend are insufficient to establish

25 injury-in-fact. As set forth below, these arguments lack merit.

26

First, California, Maryland, the City of San Jose, and the County of Santa Clara each

27 employ DACA recipients, in connection with whom they have invested substantial resources

28 in hiring and training. Plaintiffs allege that they will not only lose these employees as work

23

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1 authorizations expire, but that they will also need to expend additional resources to hire and train

2 replacements. San Jose further alleges that as a result of the rescission, the City has had

3 decreased productivity, and that it has had to expend time and resources to deal with decreased

4 employee morale (States Compl. ¶¶ 26–27, 32, 53; San Jose Compl. ¶¶ 49–50; Santa Clara

5 Compl. ¶¶ 32–37; App. 11, 95–97, 706–07, 798, 1575–76).

6

Second, Plaintiff States, including Maine and Maryland, stand to lose significant tax

7 revenue as a result of the rescission (States Compl. ¶¶ 28–30, 37, 49–50, 70–71). Although

8 general allegations of injury to a state’s economy and the associated decline in general tax

9 revenues may not be sufficient to establish standing, here, Plaintiff States sufficiently allege a

10 “direct injury in the form of a loss of specific tax revenues.” Wyoming v. Oklahoma, 502 U.S.

11 437, 448 (1992). They allege, for example, that Maine stands to lose $96,000 in annual state

12 and local taxes as DACA recipients leave the workforce (States Compl. ¶¶ 30, 38). Evidence

13 submitted by plaintiffs supports these allegations, and demonstrates that DACA’s rescission

14 would reduce state and local tax contributions by DACA-eligible individuals by at least half

15 (App. 68–74, 218–30).

16

Third, the University of California has also established that it will suffer injury to its

17 proprietary interests. As declarations submitted by the University demonstrate, the rescission

18 has harmed the University in multiple ways. Because DACA recipients can no longer seek

19 advance parole, these students are unable to travel outside of the United States for research and

20 educational conferences. DACA recipients have also decided to cancel their enrollment in the

21 University, and additional recipients are at risk of dropping out, because they would not be able

22 to pay the cost of attendance without work authorizations. The University has also invested

23 resources in recruiting and retaining DACA recipients as employees in various roles, including

24 as teaching assistants and health care providers. Such investments would be lost should these

25 employees lose their ability to work in the United States.

26

California, Maryland, and Minnesota also allege injury to their public universities

27 through harm to their educational missions and the loss of students and teachers. According to

28 the declarations filed by plaintiffs, the rescission, and the resulting loss of work authorization

24

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1 and potential for deportation, will adversely impact the diversity of the talent pool of potential

2 students, which will make it more difficult for the universities to fulfill their missions of

3 increasing diversity (States Compl. ¶¶ 27, 55, 64–66; App. 12–16, 496–514, 884–90). Our court

4 of appeals recently affirmed the standing of two state governments to challenge an immigration

5 policy that similarly harmed the plaintiffs’ public universities. Washington v. Trump, 847 F.3d

6 1151, 1160–01 (9th Cir. 2017). These injuries accordingly give the University of California and

7 the States of California, Maryland, and Minnesota Article III standing. Ibid. (citing Singleton v.

8 Wulff, 428 U.S. 106, 114–16 (1976)).9

9

Fourth, State Plaintiffs Maryland and Minnesota further allege that the rescission will

10 negatively impact their public health programs. In particular, Maryland and Minnesota allege

11 that rescinding DACA will cause many DACA grantees to lose their employer-based health

12 insurance, imposing higher healthcare costs on the state (State Compl. ¶¶ 51, 62). These injuries

13 are also sufficient to confer Article III standing.10

14

Finally, SEIU Local 521 has associational standing to bring its claims on behalf of its

15 members who are DACA recipients. An association has standing to bring suit on behalf of its

16 members when: (1) its members would otherwise have standing to sue in their own right;

17 (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the

18 claim asserted nor the relief requested requires the participation of individual members in the

19 lawsuit. Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock,

20

21

9 The public universities of California, Maryland, and Minnesota are branches of the states under state

law. Campbell v. Regents of Univ. of California, 35 Cal. 4th 311, 321 (2005); Hanauer v. Elkins, 217 Md. 213,
22 219, 141 A.2d 903, 906 (Md. 1958); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

23

10 Although not discussed by the parties, the District of Columbia Circuit held that Joe Arpaio, Sheriff

of Maricopa County, Arizona, lacked Article III standing to challenge DACA. Arpaio v. Obama, 797 F.3d 11
24 (D.C. Cir. 2015). While the court of appeals found that the plaintiff’s alleged harm — increased spending on

criminal investigation, apprehension, and incarceration — was sufficiently concrete, his theory that DACA 25 would lead to an increased number of undocumented immigrants committing crimes in his jurisdiction was too

speculative. Id. at 19–20. Here, by contrast, plaintiffs allege that the rescission will cause DACA recipients to
26 lose their work authorizations, and that plaintiffs will lose employees and students, suffer decreased tax revenue,

and otherwise incur increased costs as a direct result. This case is also different from Crane v. Johnson,
27 783 F.3d 244, 252 (5th Cir. 2015), where the Fifth Circuit held that Mississippi lacked standing to challenge

DACA because it failed to submit evidence that DACA eligible immigrants resided in the state. Defendants do
28 not dispute State Plaintiffs’ allegations that hundreds of thousands of DACA recipients live in Plaintiff States.

25

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1 477 U.S. 274, 282 (1986) (quoting Hunt v. Washington State Apple Advertising Comm’n,

2 432 U.S. 333, 343 (1977)). SEIU has established all three elements here. SEIU has members

3 who are DACA recipients. Its constitution states that part of its mission is to provide its

4 members with a voice in the larger community, and that its members should be treated equally

5 with dignity regardless of immigration status or national origin. SEIU has also formed a

6 Committee on Comprehensive Immigration Reform, a member-based committee that engages in

7 organizing, advocacy, and education to help undocumented workers. Its members’ interests in

8 these actions are therefore germane to SEIU’s stated purpose (App. 801–09). Furthermore, this

9 action does not require the participation of SEIU’s individual members.

10

Defendants, in arguing that the entity plaintiffs lack standing, rely solely on Linda R.S. v.

11 Richard D., 410 U.S. 614, 619 (1973). There, the plaintiff lacked standing to challenge a Texas

12 state court’s interpretation of a child support statute. Ibid. The Supreme Court held that,

13 although the plaintiff had alleged an injury, she had not shown “a direct nexus between the

14 vindication of her interest and the enforcement of the State’s criminal laws” because the

15 relationship between the state’s decision not to prosecute and the father’s decision not to pay

16 under the statute could “at best, be termed only speculative.” Id. at 618–19. Linda R.S. has no

17 application here. As explained above, the entity plaintiffs have alleged harm to their proprietary

18 interests as a direct result of defendants’ decision to terminate the DACA program, most notably

19 through its termination of work authorizations. Accordingly, the entity plaintiffs have

20 sufficiently alleged injury-in-fact traceable to the termination of DACA, and have demonstrated

21 that these harms are redressable by their requested relief.11

22

Turning to prudential standing under the APA, a plaintiff must show that it has suffered

23 or will suffer sufficient injury-in-fact, and that “the interest[s] sought to be protected by the

24 complainant [are] arguably within the zone of interests to be protected or regulated by the

25 statute . . . in question.” Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S.

26 479, 488 (1998).

27
11 Because defendants’ conduct imposes direct injury on the State Plaintiffs’ proprietary interests, this
28 order need not reach defendants’ argument that the State Plaintiffs lack standing as parens patriae.

26

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1

A plaintiff that is not itself the subject of the contested regulatory action lacks prudential

2 standing only where its interests “are so marginally related to or inconsistent with the purposes

3 implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the

4 suit.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). This test is “not meant to be

5 especially demanding,” and must be applied “in keeping with Congress’s evident intent when

6 enacting the APA to make agency action presumably reviewable.” Match-E-Be-Nash-She-Wish

7 Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (quotations and citations

8 omitted).

9

The parties’ briefs include only a cursory discussion of plaintiffs’ prudential standing

10 under the APA. Again, defendants do not dispute that the Individual Plaintiffs also have

11 statutory standing. SEIU, which asserts the rights of its members who are DACA recipients,

12 likewise seeks the protection of interests regulated by the INA. Not all of the entity plaintiffs,

13 however, have established prudential standing to proceed on their APA claims.

14

Plaintiffs primarily rely on our court of appeals’ recent decision in Hawaii v. Trump,

15 859 F.3d 741, 765 (9th Cir. 2017), as well as on various provisions of the INA which provide for

16 student- and employment-related immigrant visas. Plaintiffs do not contend, however, that their

17 DACA-recipient students or employees qualify for such visas. Nor do plaintiffs point to

18 any provisions of the INA which indicate a protected interest in enrolling students with deferred

19 action in their schools or universities. Plaintiffs are also unable to point to any provision of the

20 INA indicating that Congress intend to protected Plaintiff States’ interests in maintaining income

21 tax revenue or avoiding increased healthcare costs.

22

By contrast, local and state governments San Jose, Santa Clara, California, and

23 Maryland, as well as the University of California, have all identified injuries resulting from their

24 status as employers, and allege harm caused by their employees’ future loss of deferred action

25 and associated work authorization. The INA gives the Executive Branch broad discretion to

26 determine when noncitizens may work in the United States, 8 U.S.C. § 1324a(h)(3), and

27 regulations promulgated pursuant to this authority allow recipients of deferred action to apply

28 for work authorization if they can demonstrate an “economic necessity for employment.”

27

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1 8 C.F.R. § 274a.12(c)(14). Moreover, the INA contains detailed provisions which subject

2 employers to criminal and civil liability for knowingly hiring unauthorized aliens, see 8 U.S.C.

3 § 1324a(a)(1)(A), and for “continu[ing] to employ the alien in the United States knowing

4 the alien is (or has become) an unauthorized alien with respect to such employment,” id.

5 § 1324a(a)(2). The work authorization document that the agency issues to DACA recipients

6 is one of the documents that is acceptable for Form I-9, Employment Eligibility Verification,

7 which employers must complete and retain for each individual they hire for employment in the

8 United States (App. 2061–62). Plaintiffs’ interest in their employees’ continued authorization

9 to work in the United States is therefore “arguably within the zone of interests” that the INA

10 protects. Hawaii, 859 F.3d at 765; Nat’l Credit Union Admin., 522 U.S. at 488.12

11

Accordingly, even though the zone of interests inquiry is not demanding, this order

12 concludes that Maine and Minnesota’s interests are “so marginally related” to the purposes

13 implicit in the INA that it cannot reasonably be assumed that Congress intended to permit the

14 suit. Maine and Minnesota’s APA claims are accordingly DISMISSED WITH LEAVE TO AMEND.

15 The remaining entity plaintiffs, however, have established that their interests that support

16 Article III standing also satisfy the APA’s zone of interests test.

17

*

*

*

18

Apart from the holding that Maine and Minnesota do not have statutory standing, the

19 foregoing rejects all of the government’s jurisdictional arguments to dismiss plaintiffs’

20 challenges under the Administrative Procedure Act.

21

2.

PROVISIONAL RELIEF.

22

Plaintiffs seek a preliminary injunction to restore DACA. To support a preliminary

23 injunction, plaintiffs must establish four elements: (1) likelihood of success on the merits;

24 (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in

25

26

12 Defendants’ sole argument against the entity plaintiffs’ prudential standing is that no provision

of the INA protects the entity plaintiffs from “bearing the incidental effects” of a denial of deferred action.
27 The case on which defendants rely, however, dealt with a private anti-immigration organization whose members

were not impacted by the immigration policy at issue. See Fed’n for Am. Immigration Reform, Inc. v. Reno,
28 93 F.3d 897, 899 (D.C. Cir. 1996).

28

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1 their favor; and (4) that the injunction is in the public interest. Winter v. Natural Resources

2 Defense Council Inc., 555 U.S. 7, 20 (2008). As now explained, the record warrants most of the

3 provisional relief requested.

4

A. Likelihood of Success on the Merits.

5

Plaintiffs have shown a likelihood of success on their claim that the rescission

6 was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law.

7 Specifically, plaintiffs are likely to succeed on their claims that: (1) the agency’s decision to

8 rescind DACA was based on a flawed legal premise; and (2) government counsel’s supposed

9 “litigation risk” rationale is a post hoc rationalization and would be, in any event, arbitrary and

10 capricious.

11

(1) The Rescission was Based on a Flawed Legal Premise.

12

The agency action was “not in accordance with law” because it was based on the flawed

13 legal premise that the agency lacked authority to implement DACA. When agency action is

14 based on a flawed legal premise, it may be set as aside as “arbitrary, capricious, an abuse of

15 discretion, or otherwise not in accordance with law.” See Massachusetts, 549 U.S. at 532

16 (setting aside the EPA’s denial of a petition for rulemaking under the Clean Air Act for

17 supposed lack of authority); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1101 (9th Cir. 2007).

18 This order holds that DACA fell within the agency’s enforcement authority. The contrary

19 conclusion was flawed and should be set aside.

20

The administrative record includes the 2014 determination of the Office of Legal Counsel

21 of the United States Department of Justice that programmatic deferred action is a permissible

22 exercise of DHS’s enforcement discretion. OLC noted that deferred action programs such as

23 DACA are permissible so long as immigration officials retain discretion to evaluate each

24 application on an individualized basis and so long as the concerns animating the program were

25 consistent with the types of concerns that have customarily guided the exercise of immigration

26 enforcement discretion. OLC recognized that the “practice of granting deferred action date[d]

27 back several decades,” and that “Congress has long been aware of the practice of granting

28 deferred action, including in its categorical variety, and of its salient features; and it has never

29

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1 acted to disapprove or limit the practice.” Indeed, not only has Congress not limited the practice,

2 but it has “enacted several pieces of legislation that have either assumed that deferred action

3 would be available in certain circumstances, or expressly directed that deferred action be

4 extended to certain categories of aliens” (AR 15–27).

5

As explained in OLC’s opinion, each feature of the DACA program is anchored in

6 authority granted or recognized by Congress or the Supreme Court. Because this is the heart

7 of the problem, and with apology for some repetition, this order will now examine each feature

8 in turn.

9

The Secretary of Homeland Security is responsible under the INA for “establishing

10 national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). The Secretary is

11 also charged with the administration and enforcement of the INA. 8 U.S.C. § 1103. In making

12 immigration enforcement decisions, the executive “considers a variety of factors such as the

13 danger posed to the United States of an individual’s unlawful presence, the impact of removal

14 on the nation’s international relations, and the ‘human concerns’ of whether the individual ‘has

15 children born in the United States, long ties to the community, or a record of distinguished

16 military service.’” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citing Arizona v. United

17 States, 132 S. Ct. 2492, 2499 (2012)). In instituting DACA, Secretary Napolitano explained that

18 the program was “necessary to ensure that [DHS’s] enforcement resources are not expended on

19 [] low priority cases but are instead appropriately focused on people who meet our enforcement

20 priorities” (AR 1).13

21

As set forth above, deferred action originated without any statutory basis apart from the

22 discretion vested by Congress in connection with the agency’s enforcement of the immigration

23 laws. Over the decades, however, deferred action became such a fixture that Congress referred

24 to it by name in several INA amendments. See, e.g., 8 U.S.C. § 1227(d)(2) (stating that U visa

25 and T visa applicants who were denied an administrative stay of removal were not precluded

26 from applying for “deferred action”); 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that eligible

27
13 The United States Court of Appeals for the District of Columbia Circuit did not reach the merits of
28 Sheriff Joe Arpaio’s challenges to DACA and DAPA but instead dismissed the case for lack of Article III
standing. Arpaio, 797 F.3d at 15.

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1 derivatives of VAWA petitioners were eligible for “deferred action” and work authorization); 8

2 U.S.C. § 1151 note (stating that certain immediate family members of certain United States

3 citizens “shall be eligible for deferred action”). Congress has also acknowledged deferred action

4 in enactments outside of the INA. See, e.g., 49 U.S.C. § 30301 note (specifying that evidence of

5 lawful status includes proof of “deferred action status”); USA PATRIOT Act of 2001, Pub. L.

6 No. 107-56, § 423(b), 115 Stat. 272, 361 (stating that immediate family members of legal

7 permanent residents killed on September 11, 2001 “may be eligible for deferred action”).

8 Congress has been free to constrain DHS’s discretion with respect to granting deferred action,

9 but it has yet to do so.

10

The Supreme Court has recognized the authority of DHS to grant relief from removal,

11 Arizona, 567 U.S. at 396, and has specifically recognized deferred action as a way to exercise

12 that discretion — “for humanitarian reasons or simply for [the Executive’s] own convenience.”

13 AADC, 525 U.S. at 484. Notably, our court of appeals has said that “the exercise of

14 prosecutorial discretion in deferred action flows from the authority conferred on the Secretary by

15 the INA.” Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 968 (9th Cir. 2017) (“Brewer

16 II”).14

17

In extending programmatic deferred action to DACA enrollees, the agency acted within

18 the scope of this long and recognized practice. In the exercise of its enforcement discretion and

19 policy-making, the agency simply found that DACA enrollees represented low priority cases

20 for removal and instituted DACA to manage that population while it redirected its resources

21 elsewhere. Even for enrollees approved under the program, DHS expressly retained the

22 authority to terminate their deferred action at any time, in the agency’s discretion. DACA

23 provided no guarantee against removal.

24

Nevertheless, DACA has provided recipients with a major benefit, namely work

25 authorizations for the period of deferral upon a demonstration of economic need. This has

26

27

14 In Brewer II, our court of appeals denied a petition for rehearing en banc. Circuit Judge Kozinski,

joined by five other Circuit Judges, filed a dissent to the denial of the petition, expressing the view that DACA
28 did not preempt Arizona’s law refusing to issue drivers’ licenses to DACA recipients. 855 F.3d at 958–62.

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1 allowed DACA recipients to become part of the mainstream workforce and contribute openly

2 to our economy. Significantly, Section 1324a(h)(3) defines an “unauthorized alien” not entitled

3 to work in the United States as an alien who is neither a legal permanent resident nor “authorized

4 to be . . . employed by [the INA] or by the [Secretary of Homeland Security].” In turn, the

5 Secretary of Homeland Security has allowed work authorizations in cases of deferred action

6 under 8 C.F.R. § 274a.12(c)(14). As our court of appeals has stated, “the Executive Branch has

7 determined that deferred action recipients — including DACA recipients — are ordinarily

8 authorized to work in the United States.” See Brewer I, 757 F.3d at 1062.

9

It is also within the lawful authority of the agency to determine that DACA recipients

10 do not accrue “unlawful presence” for purposes of the INA’s bars on re-entry. Pursuant to

11 pre-existent DHS regulations and policy guidance, deferred action recipients already avoided

12 accrual of “unlawful presence.” 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2);

13 Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic

14 Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence

15 for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(i) of the Act at 42 (May 6, 2009).

16 Importantly, DHS excludes recipients of deferred action from being “unlawfully present”

17 because their deferred action is considered a period of stay authorized by the government. See 8

18 U.S.C. § 1182(a)(9)(B)(ii) (an alien is deemed to be unlawfully present if the alien is present “in

19 the United States after the expiration of the period of stay authorized by the Attorney General

20 [and now the Secretary of Homeland Security]”); Brewer I, 757 F.3d at 1059.

21

Allowing DACA recipients to apply for and obtain advance parole to travel overseas and

22 return to the United States is also in accord with pre-existing regulations. 8 C.F.R. § 212.5(f);

23 8 U.S.C. § 1182(d)(5)(A) (the Attorney General [and now the Secretary of Homeland Security]

24 may “in his discretion parole into the United States temporarily under such conditions as he

25 may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public

26 benefit”).

27

In short, what exactly is the part of DACA that oversteps the authority of the agency?

28 Is it the granting of deferred action itself? No, deferred action has been blessed by both the

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1 Supreme Court and Congress as a means to exercise enforcement discretion. Is it the granting

2 of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic

3 deferred action has been in use since at least 1997, and other forms of programmatic

4 discretionary relief date back to at least 1956. Is it granting work authorizations coextensive

5 with the two-year period of deferred action? No, aliens receiving deferred action have been able

6 to apply for work authorization for decades. Is it granting relief from accruing “unlawful

7 presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the George

8 W. Bush Administration for those receiving deferred action. Is it allowing recipients to apply for

9 and obtain advance parole? No, once again, granting advance parole has all been in accord

10 with pre-existing law. Is it combining all these elements into a program? No, if each step is

11 within the authority of the agency, then how can combining them in one program be outside its

12 authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case

13 basis?

14

Significantly, the government makes no effort in its briefs to challenge any of the

15 foregoing reasons why DACA was and remains within the authority of the agency. Nor does the

16 government challenge any of the statutes and regulations under which deferred action recipients

17 obtain the foregoing benefits.

18

Instead, the administrative record shows that the Attorney General told the Acting

19 Secretary that DACA was illegal. First, the Attorney General said that DACA had been

20 improperly adopted by the Obama Administration after “Congress’ repeated rejection of

21 proposed legislation that would have accomplished a similar result.” But the proposals rejected

22 by Congress markedly differ from DACA. Importantly, while the proposed legislation would

23 have offered Dreamers the ability to become lawful permanent residents, no comparable

24 pathway was offered by DACA. Our court of appeals recognized this distinction, noting that “the

25 DREAM Act and the DACA program are not interchangeable policies because they provided

26 different forms of relief.” Brewer II, 855 F.3d at 976 n.10. In fact, the 2012 DACA memo

27 made explicit that DACA offered no pathway to lawful permanent residency, much less

28 citizenship. Secretary Napolitano concluded her memo by stating that DACA “confer[ed] no

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1 substantive right, immigration status or pathway to citizenship.” To claim that DACA was

2 rejected by Congress, therefore, is unfair.15

3

Second, another criticism of DACA was that applications received mechanical, routine

4 approval without individualized consideration. In her rescission memorandum, the Acting

5 Secretary indicated that “[United States Citizenship and Immigration Services] has not been

6 able to identify specific denial cases where an applicant appeared to satisfy the programmatic

7 categorical criteria as outlined in the [original DACA] memorandum, but still had his or her

8 application denied based solely upon discretion.” The simple answer to this, if true, would be

9 for the agency to instruct its adjudicators to exercise discretion, on a individualized basis, to

10 make sure applicants do not pose a threat to national security or public safety and are otherwise

11 deserving of deferred action.

12

It appears, moreover, that the Acting Secretary was in error when she said that USCIS

13 has been unable to identify discretionary denials of DACA applications. She cited no evidence

14 for this fact, and none is found in the administrative record. Possibly, the Acting Secretary relied

15 on findings made in the DAPA litigation. There, the majority panel noted that USCIS could not

16 produce any applications that satisfied the guidelines of the original DACA memorandum but

17 were nonetheless refused through an exercise of discretion. Texas, 809 F.3d at 172. As the

18 dissent pointed out, however, the district court may have conflated rejections of DACA

19 applications with denials, and as a result suggested that most denials were made for mechanical,

20 administrative reasons. Id. at 210 (King, J., dissenting). A declaration submitted in that case by

21 Donald Neufeld, then-Associate Director for Service Center Operations for USCIS, pointed to

22 several instances of discretionary denials. Id. at 175. That same declaration explained that while

23 a DACA application was rejected when it was “determined upon intake that the application [had]

24 a fatal flaw,” an application was denied when a USCIS adjudicator, on a case-by-case basis,

25 determined that the requestor either had not demonstrated that they satisfied the guidelines for

26
15 See, e.g., S. 1291, 107th Congress (2001); S. 1545, 108th Congress (2003); S. 2075, 109th Congress
27 (2005); H.R. 5131, 109th Congress (2006); H.R. 1275, 110th Congress (2007); S. 2205, 110th Congress (2007);
H.R. 1751, 111th Congress (2009); S. 3827, 111th Congress (2010); S. 3962, 111th Congress (2010); S. 3992,
28 111th Congress (2010); H.R. 6497, 111th Congress (2010); S. 952, 112th Congress (2011).

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1 DACA or when an adjudicator determined that deferred action should be denied even though

2 the threshold guidelines were met. Id. at 210–11 (dissent). The United States District Court

3 for the District of Columbia, in addressing nearly identical statistics, recognized the distinction.

4 The district court noted that as of December 2014, 36,860 requests for deferred action under

5 DACA were denied and another 42,632 applicants were rejected as not eligible, and concluded

6 that such statistics “reflect that [] case-by-case review is in operation.” Arpaio, 27 F. Supp. 3d

7 at 209 n.13. The administrative record tendered in our case completely fails to explain this

8 apparent discrepancy.

9

Third, the main ground given by the Attorney General for illegality was the Fifth

10 Circuit’s decision in the DAPA litigation. DACA, the Attorney General said, suffered from the

11 same “legal and constitutional defects” leveled against DAPA in Texas v. United States, 809

12 F.3d 134 (5th Cir. 2015). Upon consideration of the full history of that case, however, this was

13 an overstatement.

14

In the DAPA litigation, the district court held that DAPA violated the APA’s notice-and-

15 comment procedures because it constituted “a new rule that substantially change[d] both the

16 status and employability of millions” and inflicted “major costs on both states and federal

17 government.” The district court found that the discretionary aspects of DAPA were “merely

18 pretext,” based on its finding that DACA had been implemented in such a mechanical way

19 as to prevent the exercise of discretion on a case-by-case basis, and DAPA would therefore be

20 implemented in the same manner. Notice and opportunity for public comment, it held, should

21 have accordingly been given. Texas, 86 F. Supp. 3d at 671.

22

Although the Fifth Circuit recognized that “there was conflicting evidence on the degree

23 to which DACA allowed discretion,” because the government had failed to produce any

24 applications that satisfied all of the criteria but were refused deferred action by an exercise of

25 discretion, it was “not error — clear or otherwise —” for the district court to have concluded that

26 DHS had only issued denials under mechanical formulae. The appellate court also pointed to

27 DACA’s Operating Procedures, which contained “nearly 150 pages of specific instructions for

28

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1 granting or denying deferred action,” as supporting the conclusion that DACA did not leave the

2 agency free to exercise discretion.

3

It cautioned, however, that “[f]or a number of reasons, any extrapolation from DACA

4 must be done carefully.” Texas, 809 F.3d at 173 (emphasis added). In particular, the appellate

5 court recognized that DACA involved self-selecting applicants, and those who expected to be

6 denied relief were unlikely to apply. Id. at 174. The court also recognized that “DACA and

7 DAPA are not identical” and that because eligibility for DACA was restricted to a younger and

8 less numerous population, DACA applicants were less likely to have backgrounds that would

9 warrant a discretionary denial. Ibid.

10

In addition to affirming the notice-and-comment holding (over one dissent), two of the

11 judges on the Fifth Circuit panel went a large step further and held that DAPA conflicted with

12 the INA. The majority pointed out that the INA already had a specific provision through which

13 aliens could derive lawful status from their children’s immigration status. Id. at 180 n.167

14 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255). DAPA, the majority

15 said, circumvented this statutory pathway.

16

The Fifth Circuit also pointed out that the INA had specific provisions through which

17 aliens could be classified as “lawfully present,” could obtain discretionary relief from removal,

18 or could obtain eligibility for work authorization. Because DAPA could make 4.3 million

19 removable aliens eligible for lawful presence, employment authorization, and associated

20 benefits, the Fifth Circuit concluded that DAPA implicated “questions of deep ‘economic and

21 political significance’ that are central to [the INA’s] statutory scheme,” and therefore had

22 Congress wished to assign that decision to an agency, “it surely would have done so expressly.”

23

The Fifth Circuit rejected the argument that various provisions of the INA, such as the

24 broad grant of authority to the agency in 6 U.S.C. § 202(5) (providing that the Secretary “shall

25 be responsible for establishing national immigration enforcement policies and priorities”),

26 provided the authority to implement DAPA. Rather, it found that such grants of authority could

27 not reasonably be construed as assigning the agency decisions of such massive “economic and

28 political significance.” Such an interpretation, the majority said, would allow the agency to

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1 grant lawful presence and work authorization to any illegal alien in the United States. It

2 concluded that “even with ‘special deference’ to the Secretary,” the INA did not permit the

3 reclassification of 4.3 million aliens as “lawfully present,” thereby making them newly eligible

4 for a host of federal and state benefits, including work authorization.

5

The majority also rejected the argument that DAPA was moored in historical practice,

6 finding that such historical practice “does not, by itself, create power,” and that in any event,

7 previous deferred-action programs were not analogous to DAPA because most discretionary

8 deferrals had been done on a country-specific basis, usually in response to war, civil unrest, or

9 natural disasters, or had been bridges from one legal status to another. It found that “[n]othing

10 like DAPA, which alters the status of more than four million aliens, has ever been contemplated

11 absent direct statutory authorization.”

12

The majority concluded that Congress had “directly addressed the precise question

13 at issue” in DAPA because the INA “prescribes how parents may derive an immigration

14 classification on the basis of their child’s status and which classes of aliens can achieve deferred

15 action and eligibility for work authorization.” Texas, 809 F.3d at 186. Because it found that

16 DAPA was foreclosed by Congress’s “careful plan,” the majority held that the program was

17 “manifestly contrary to the statute.”

18

While at least some of the majority’s reasons for holding DAPA illegal would apply to

19 DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion

20 stated. An important criticism against DAPA would not apply against DACA, namely the fact

21 that Congress had already established a pathway to lawful presence for alien parents of citizens

22 (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no

23 such analogue in the INA. And, there is a difference between 4.3 million and 689,800. Finally,

24 the criticism that DACA had been mechanically administered without the exercise of discretion

25 in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum,

26 the DAPA litigation was not a death knell for DACA.

27

This order holds that, in light of our own court of appeals’ reasoning in Brewer I and

28 Brewer II, in light of the analysis of the Office of Legal Counsel of the United States Department

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1 of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA

2 was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed

3 on the merits of their claim that the rescission was based on a flawed legal premise and must be

4 set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

5 law.” Massachusetts, 549 U.S. at 528; Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94

6 (1943); Safe Air for Everyone, 488 F.3d at 1101.16

7

(2) Government Counsel’s Alternative Rationale

Is Post Hoc and, in Any Event, Arbitrary,

8

Capricious, and an Abuse of Discretion.

9

Government counsel now advances an alternative rationale for the Secretary’s decision to

10 rescind DACA. Counsel contends that DHS acted within its discretion in managing its litigation

11 exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the

12 program so as to avoid a potentially disastrous injunction in the Fifth Circuit. This, they say,

13 constituted a reasonable judgment call involving management of litigation risk and agency

14 resources.

15

Courts, of course, may not accept post hoc rationalizations for agency action, see

16 Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962), nor may they “supply a

17 reasoned basis for the agency’s action that the agency itself has not given.” Bowman Transp.,

18 Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 285–86 (1974); see also Cal. Pub. Util. Comm’n v.

19 Fed. Energy Regulatory Comm’n, No. 16-70481 at 15 (9th Cir. Jan. 8, 2018). Rather, “an

20 agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor

21 Vehicle Mfrs. Ass’n. of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50

22 (1983).

23

24
16 Defendants argue that if the Acting Secretary had relied on DACA’s purported illegality in
25 terminating the program, that reliance should be presumed to be a “reasonable policy judgment that immigration
decisions of this magnitude should be left to Congress.” This argument finds no support in the administrative
26 record. In Syracuse Peace Council v. F.C.C., upon which defendants rely, the agency explicitly based its
decision on the independent grounds that a policy was both unconstitutional and contrary to the public interest.
27 867 F.2d 654, 656 (D.C. Cir. 1989). Although the court of appeals elected to review only the agency’s policy
determination under the APA, it noted that “if the Commission had written its opinion in purely constitutional
28 terms, we would have no choice but to address the constitutional issue.” Id. at 659.

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1

The reason actually given in the administrative record for the rescission was DACA’s

2 purported illegality. The Attorney General’s letter and the Acting Secretary’s memorandum can

3 only be reasonably read as stating DACA was illegal and that, given that DACA must, therefore,

4 be ended, the best course was “an orderly and efficient wind-down process,” rather than a

5 potentially harsh shutdown in the Fifth Circuit. Nowhere in the administrative record did

6 the Attorney General or the agency consider whether defending the program in court would

7 (or would not) be worth the litigation risk. The new spin by government counsel is a classic

8 post hoc rationalization. That alone is dispositive of the new “litigation risk” rationale.

9

Significantly, the INA itself makes clear that once the Attorney General had determined

10 that DACA was illegal, the Acting Secretary had to accept his ruling as “controlling.” Section

11 1103(a)(1) of Title 8, a provision that allocates immigration power and duties among the

12 Secretary of Homeland Security, the Secretary of State, and the Attorney General, provides that

13 “determinations and rulings by the Attorney General with respect to all questions of law shall be

14 controlling.” Therefore, once the Attorney General advised the Acting Secretary that DACA

15 was illegal, that ruling became “controlling” upon her. She had no choice other than to end

16 DACA. She had no room to push back with arguments for the program, to weigh litigation risks,

17 or to consider whether DACA recipients warranted fighting for. The ruling of law by the

18 Attorney General, controlling upon her, made all such considerations moot. Therefore, the new

19 spin by government counsel that the decisionmaker here indulged in a litigation risk assessment

20 and, out of caution, chose not to fight for the program in favor of an orderly wind-down is

21 foreclosed by the INA itself. Her wind-down references plainly presuppose that DACA had to

22 end and the only question was how.

23

Nevertheless, this order now indulges government counsel’s new explanation and

24 addresses whether it holds up even if taken as authentic. In that event, two major criticisms can

25 and should be made of the “litigation risk management” rationale.

26

First, even as to the risk in the Fifth Circuit, the administrative record mentions only

27 similarities between DAPA and DACA (and even then only in an exceedingly conclusory way).

28 No mention appears concerning the differences between DAPA and DACA that might have led

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1 to a different result. In addition to the distinctions made above, one powerful consideration

2 should have been the doctrine of laches. Unlike the DAPA challenge filed immediately after

3 DAPA was announced, the threatened DACA challenge by ten states would have come five

4 years after the program began and after hundreds of thousands of young adults had enrolled and

5 entered the workforce. See Abbott Labs., Inc. v. Gardner, 387 U.S. 136, 155 (1967) (adopting

6 laches in APA context); see also Arpaio v. Obama, 27 F. Supp. 3d 185, 210 (D.D.C. 2014),

7 aff’d, 797 F.3d 11 (D.C. Cir. 2015) (noting that even if plaintiff did have standing he could not

8 demonstrate irreparable harm since he waited two years to challenge DACA). Another

9 difference was that DACA was precisely the kind of interstitial program of deferred action

10 seemingly approved even by the Fifth Circuit, Texas, 809 F.3d at 185, given that both sides of

11 the aisle and our two most recent presidents have called for Dreamer legislation. Nor was there

12 any mention of our own circuit’s more recent decision in Brewer II that favored DACA, or of

13 recognition by the district court in the District of Columbia that DACA had, contrary to the

14 Fifth Circuit, involved discretionary denials of DACA relief.

15

Second, if we are to indulge the spin that the decision to end DACA rested on a

16 litigation-management assessment (rather than on a ruling of illegality), then the Acting

17 Secretary committed a serious error. Against the litigation risk the Acting Secretary should

18 have — but did not — weigh DACA’s programmatic objectives as well as the reliance interests

19 of DACA recipients. Encino Motorcars, LLC v. Navarro, — U.S. —, 136 S. Ct. 2117, 2126–27

20 (2016). This responsibility lay with the Acting Secretary, not the Attorney General. That is,

21 once the Acting Secretary was informed of the supposed litigation risk, it remained her

22 responsibility to balance it against competing policy considerations. It remained her

23 responsibility to recognize the litigation risk, yet still ask whether the program was worth

24 fighting for. The administrative record is utterly silent in this regard.

25

The agency reversed over five years of DHS policy, did so only one day after the

26 Attorney General’s letter, and did so just three months after Secretary Kelly had continued the

27 program (despite the Fifth Circuit’s decision and affirmance). The Acting Secretary failed to

28 provide a “reasoned explanation” as to why she was “disregarding facts and circumstances

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1 which underlay or were engendered by the prior policy.” See F.C.C. v. Fox Television Stations,

2 Inc., 556 U.S. 502, 516 (2009).

3

Encino Motorcars seems very close on point. There, the Supreme Court addressed the

4 Department of Labor’s reversal of an interpretive regulation construing the Fair Labor Standard

5 Act’s minimum wage and overtime provisions for car dealership employees. Our court of

6 appeals gave Chevron deference to the new interpretation. The Supreme Court reversed.

7 In determining whether the regulation was “procedurally defective” — and accordingly whether

8 the agency’s regulation warranted Chevron deference — the Supreme Court evaluated whether

9 the agency had given adequate reasons for its decision to reverse course. Encino Motorcars,

10 136 S. Ct. at 2125 (citing Motor Vehicle Mfrs. Ass’n., 463 U.S. at 43). The Supreme Court

11 explained (at page 2126) that while agencies are free to change their existing policies, they must

12 provide a reasoned explanation for a change (quotes and citations omitted):

13

In explaining its changed position, an agency must also be

cognizant that longstanding policies may have engendered serious

14

reliance interests that must be taken into account. In such cases

it is not that further justification is demanded by the mere fact

15

of policy change; but that a reasoned explanation is needed for

disregarding facts and circumstances that underlay or were

16

engendered by the prior policy. It follows that an unexplained

inconsistency in agency policy is a reason for holding an

17

interpretation to be an arbitrary and capricious change from agency

practice.

18

Because the agency “gave almost no reason at all” for its change in position, the Supreme Court

19

concluded that the agency had failed to provide the sort of reasoned explanation required in light

20

of the “significant reliance issues involved.” Id. at 2126–27.

21

So too here.

22

As there, the agency here reversed its interpretation of its statutory authority. As there,

23

the administrative record here includes no analysis of the “significant reliance issues involved.”

24

The parallel is striking. In terminating DACA, the administrative record failed to address the

25

689,800 young people who had come to rely on DACA to live and to work in this country.

26

These individuals had submitted substantial personal identifying information to the government,

27

paid hefty fees, and planned their lives according to the dictates of DACA. The administrative

28

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1 record includes no consideration to the disruption a rescission would have on the lives of DACA

2 recipients, let alone their families, employers and employees, schools and communities.17

3

Ironically, government counsel now cite material outside of the administrative record in

4 an attempt to show the Acting Secretary considered the plight of DACA recipients (Dkt. 204 at

5 10, 12, 19–20). This press release came after the fact and was not part of the administrative

6 record, and therefore cannot now rescue the agency. In that respect, Cal. Pub. Util. Comm’n,

7 No. 16-70481 at 17 n.4 is analogous. There, our court appeals refused to consider an agency’s

8 position which was not advanced in connection with the decision under review but, rather, was

9 offered for the first time afterwards.

10

Defendants next argue that because no statute here dictated the factors for an agency to

11 consider in granting or rescinding deferred action, the agency need not have given weight to the

12 benefits of the DACA program or the harm that would be caused to its recipients upon its

13 rescission. The Supreme Court has recognized, however, that “[c]onsideration of cost reflects

14 the understanding that reasonable regulation ordinarily requires paying attention to the

15 advantages and the disadvantages of agency decision.” Michigan v. EPA, — U.S. —, 135 S. Ct.

16 2699, 2707 (2015). While defendants attempt to distinguish Michigan on the ground that the

17 text of the statute required regulation there to be “appropriate and necessary,” they ignore that a

18 change in agency policy requires the agency to have “good reasons for it.” Fox TV Stations,

19 Inc., 556 U.S. at 515.

20

Defendants, of course, are correct that when an agency reverses policy it “need not

21 demonstrate to a court’s satisfaction that the reasons for the new policy are better than the

22 reasons for the old one.” Ibid. Where, however, an agency abruptly changes course and

23 terminates a program on which so many people rely, the APA requires “a more detailed

24 justification.” Ibid. Indeed, “[i]t would be arbitrary and capricious to ignore such matters.”

25 Ibid. In such cases, “it is not that further justification is demanded by the mere fact of policy

26 change; but that a reasoned explanation is needed for disregarding facts and circumstances that

27
17 Here, perhaps in light of Encino Motors, the government does not argue that Chevron deference
28 should be afforded to the Attorney General’s legal conclusion that DACA exceeded the agency’s authority.

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1 underlay or were engendered by the prior policy.” Id. at 515–16. Defendants’ attempt to portray

2 DACA as a program that did not generate reliance interests is unconvincing. As plaintiffs’

3 evidence shows, DACA recipients, their employers, their colleges, and their communities all

4 developed expectations based on the possibility that DACA recipients could renew their deferred

5 action and work authorizations for additional two-year periods.

6

In sum, government counsel’s alternative spin on the administrative record is just a post

7 hoc rationalization. But, even if it had been the actual rationale, it was arbitrary, capricious, and

8 an abuse of discretion under Encino Motors.

9

*

*

*

10

Accordingly, plaintiffs have shown that they are likely to succeed on the merits of their

11 claim that the rescission was arbitrary and capricious and must be set aside under the APA.

12

B. Irreparable Harm.

13

Plaintiffs have clearly demonstrated that they are likely to suffer serious irreparable harm

14 absent an injunction. Before DACA, Individual Plaintiffs, brought to America as children, faced

15 a tough set of life and career choices turning on the comparative probabilities of being deported

16 versus remaining here. DACA gave them a more tolerable set of choices, including joining the

17 mainstream workforce. Now, absent an injunction, they will slide back to the pre-DACA era and

18 associated hardship.

19

The University of California and other entity plaintiffs have also demonstrated that they

20 face irreparable harm as they begin to lose valuable students and employees in whom they have

21 invested, and that loss of DACA recipients from the workforce will have a detrimental impact on

22 their organization interests, economic output, public health, and safety.

23

Our court of appeals recently confirmed that “prolonged separation from family

24 members” and “constraints to recruiting and retaining faculty members to foster diversity and

25 quality within the University community” are harms which are not compensable with monetary

26 damages and therefore weigh in favor of finding irreparable harm. Hawaii v. Trump,

27 No. 17-17168, 2017 WL 6554184, at *22 (9th Cir. Dec. 22, 2017). These showings accordingly

28

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1 demonstrate that preliminary relief is appropriate. Ibid.; see also Valle del Sol Inc. v. Whiting,

2 732 F.3d 1006, 1029 (9th Cir. 2013).

3

Defendants do not dispute that plaintiffs are likely to suffer such harms. Rather, they

4 argue that these harms will not happen before the phase-out begins on March 5, 2018, the date

5 by which the undersigned judge had wanted to present a final record and final decision for

6 appellate review.

7

Delays in this case, however, have made it impossible to send a final judgment to our

8 court of appeals by March 5. To take only one example, it would be unfair to reach a conclusion

9 without giving plaintiffs an opportunity to examine the complete administrative record.

10 Government counsel, however, succeeded in obtaining an order from the Supreme Court

11 postponing proceedings on completing the administrative record until after ruling on its

12 FRCP 12(b)(1) motion to dismiss. As a result, we have yet to receive a complete administrative

13 record. Although plaintiffs are likely to prevail on even the truncated administrative record, as

14 set forth above, our appellate court might disagree with that conclusion or the agency might seek

15 to cure the flaws in its process via a fresh agency action. Plaintiffs are entitled to learn of all

16 flaws, if any more there be, lurking in the whole record. One such possibility suggested by

17 plaintiffs is that the rescission was contrived to give the administration a bargaining chip to

18 demand funding for a border wall in exchange for reviving DACA. A presidential tweet after

19 our hearing gives credence to this claim. Another possibility raised by plaintiffs is racial animus.

20 These theories deserve the benefit of the full administrative record. It will be impossible to

21 litigate this case to a fair and final conclusion before March 5.18

22

23

24

25
18 On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully
26 understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an
END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc. We must protect our
27 Country at all cost!” (Dkt. No. 227-2). Plaintiffs separately request judicial notice of this tweet. Defendants
object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial
28 notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly GRANTED.

44

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1

C. Balance of Equities and Public Interest.

2

On provisional relief motions, district judges must consider whether (or not) such relief

3 would be in the public interest. On this point, we seem to be in the unusual position wherein the

4 ultimate authority over the agency, the Chief Executive, publicly favors the very program the

5 agency has ended. In September, President Trump stated his support for DACA, tweeting:

6 “Does anybody really want to throw out good, educated and accomplished young people who

7 have jobs, some serving in the military? Really! . . . .” He has also called upon Congress to

8 ratify DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama

9 Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958).

10

For the reasons DACA was instituted, and for the reasons tweeted by President Trump,

11 this order finds that the public interest will be served by DACA’s continuation (on the conditions

12 and exceptions set out below). Beginning March 5, absent an injunction, one thousand

13 individuals per day, on average, will lose their DACA protection. The rescission will result in

14 hundreds of thousands of individuals losing their work authorizations and deferred action status.

15 This would tear authorized workers from our nation’s economy and would prejudice their being

16 able to support themselves and their families, not to mention paying taxes to support our nation.

17 Too, authorized workers will lose the benefit of their employer-provided healthcare plans and

18 thus place a greater burden on emergency healthcare services.

19

On provisional relief motions, district judges must also weigh the balance of hardships

20 flowing from a grant versus denial of provisional relief. The hardship to plaintiffs need not be

21 repeated. The only hardship raised by defendants is interference with the agency’s judgment on

22 how best to allocate its resources in keeping our homeland secure, as well as its judgment in

23 phasing out DACA. Significantly, however, the agency’s judgment here was not based on a

24 policy change. It was based on a mistake of law. If the instant order is correct that DACA fell

25 within the statutory and constitutional powers of the Executive Branch, then a policy supported

26

27

28

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1 as high up as our Chief Executive has been the victim of a colossal blunder. A preliminary

2 injunction will set that right without imposing any policy unwanted by the Executive Branch.19

3

D. Scope of Provisional Relief.

4

For the foregoing reasons, defendants ARE HEREBY ORDERED AND ENJOINED, pending

5 final judgment herein or other order, to maintain the DACA program on a nationwide basis on

6 the same terms and conditions as were in effect before the rescission on September 5, 2017,

7 including allowing DACA enrollees to renew their enrollments, with the exceptions (1) that new

8 applications from applicants who have never before received deferred action need not be

9 processed; (2) that the advance parole feature need not be continued for the time being for

10 anyone; and (3) that defendants may take administrative steps to make sure fair discretion is

11 exercised on an individualized basis for each renewal application.

12

Nothing in this order prohibits the agency from proceeding to remove any individual,

13 including any DACA enrollee, who it determines poses a risk to national security or public

14 safety, or otherwise deserves, in its judgment, to be removed. Nor does this order bar the agency

15 from granting advance parole in individual cases it finds deserving, or from granting deferred

16 action to new individuals on an ad hoc basis.

17

The agency shall post reasonable public notice that it will resume receiving DACA

18 renewal applications and prescribe a process consistent with this order. The agency shall keep

19 records of its actions on all DACA-related applications and provide summary reports to the

20 Court (and counsel) on the first business day of each quarter.20

21

22

19 If a likelihood of irreparable injury is shown and an injunction is in the public interest, a preliminary

injunction is also appropriate when a plaintiff demonstrates that serious questions going to the merits are raised
23 and the balance of hardships tips sharply in the plaintiff’s favor. Alliance for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1134–35 (9th Cir. 2011). Because plaintiffs have clearly demonstrated a likelihood of
24 irreparable injury and that the balance of hardships tips sharply in plaintiffs’ favor, preliminary relief would also

be appropriate under this alternative standard of review.
25

20 A mandatory injunction orders a responsible party to take action, while “[a] prohibitory injunction
26 prohibits a party from taking action and preserves the status quo pending a determination of the action on the

merits.” Brewer I, 757 F.3d at 1060. The relevant status quo is the legally relevant relationship between the
27 parties before the controversy arose. Id. at 1061. Here, plaintiffs contest the validity of defendants’ rescission

of DACA, the status quo before which was that DACA was fully implemented. Accordingly, plaintiffs’
28 requested preliminary injunction is not mandatory. But even if it were, plaintiffs have demonstrated that

sufficiently serious irreparable harm would result to warrant even a mandatory injunction.

46

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1

By way of explanation, while plaintiffs have demonstrated that DACA recipients,

2 as well as their families, schools, employers, and communities, are likely to suffer substantial,

3 irreparable harm as a result of the rescission, they have not made a comparable showing as to

4 individuals who have never applied for or obtained DACA.

5

This order will not require advance parole. Unlike the widespread harm to plaintiffs and

6 our economy that would result were the 689,800 DACA enrollees to lose their ability to work in

7 this country, plaintiffs have not demonstrated that comparable harm will occur as a result of

8 DACA recipients’ inability to travel abroad. True, Individual Plaintiffs Jirayut Latthivongskorn

9 and Norma Ramirez describe professional disadvantages that may result if they are unable to

10 travel internationally. These, however, do not amount to hardships justifying a provisional

11 injunction requiring DHS to resume accepting applications for advance parole. However, as

12 stated, nothing in this order would bar individuals from asking for such agency relief or bar the

13 agency from granting it in deserving cases.

14

With respect to geographical scope, this order finds a nationwide injunction is

15 appropriate. Our country has a strong interest in the uniform application of immigration law

16 and policy. Plaintiffs have established injury that reaches beyond the geographical bounds

17 of the Northern District of California. The problem affects every state and territory of the

18 United States.

19

In February 2017, our court of appeals considered this very issue in Washington v.

20 Trump, 847 F.3d 1151, 1167 (9th Cir. 2017), and upheld a nationwide injunction imposed by a

21 single district court, observing that limiting the geographic scope of an injunction on an

22 immigration enforcement policy “would run afoul of the constitutional and statutory

23 requirements for uniform immigration law and policy” and that, as here, “the government ha[d]

24 not proposed a workable alternative.” Indeed, the Fifth Circuit reached the same conclusion in

25 determining the appropriate scope of an injunction over DAPA, Texas, 809 F.3d at 187–88,

26

27

28

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1 holding that uniform application of the immigration laws justified a nationwide injunction. So

2 too here.21

3

Limiting relief to the States in suit or the Individual Plaintiffs would result in

4 administrative confusion and simply provoke many thousands of individual lawsuits all over the

5 country. The most practical relief is to maintain DACA in the same manner to which the agency

6 and recipients are accustomed, subject to the exceptions above noted.

7

CONCLUSION

8

Defendants’ motion to dismiss under FRCP 12(b)(1) is GRANTED IN PART only to the

9 limited extent stated above and is otherwise DENIED. Maine and Minnesota’s APA claims are

10 hereby DISMISSED. Maine or Minnesota may seek leave to amend and will have 21 CALENDAR

11 DAYS from the date of this order to file a motion, noticed on the normal 35-day track, for leave to

12 file an amended complaint. A proposed amended complaint must be appended to the motion and

13 plaintiffs must plead their best case. Any such motion should clearly explain how the

14 amendments to the complaint cure the deficiencies identified herein. To the extent stated above,

15 plaintiffs’ motion for provisional relief is GRANTED. A separate order will address defendants’

16 motion to dismiss pursuant to FRCP 12(b)(6).

17

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

18

Pursuant to our court of appeals’ order dated December 21, 2017, the district court

19 hereby certifies for interlocutory appeal the issues decided herein (i) whether (or not) the

20 rescission of DACA is unreviewable as committed to agency discretion or by reason of 8 U.S.C.

21 § 1252(g), (ii) whether (or not) plaintiffs have standing, and (iii) all other questions interposed

22 by the government in its motion to dismiss under FRCP 12(b)(1). This order finds that these are

23 controlling questions of law as to which there is substantial ground for difference of opinion and

24

25

21 Oddly, the government’s contrary authority is Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir.

1987), a decision in which our court of appeals upheld a nationwide injunction and held, “[t]here is no general
26 requirement that an injunction affect only the parties in the suit,” and “nationwide relief in federal district or

circuit court [is permitted] when it is appropriate.” Bresgal merely observed that “[w]here relief can be
27 structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.” Id. at 1170.

Here, it cannot be so structured. Nor are any of the government’s other authorities, which restate the general
28 proposition that a remedy should match the injury alleged, see, e.g., Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017), to the contrary.

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1 that their resolution by the court of appeals will materially advance the litigation. This order

2 realizes that the same issues are reviewable upon appeal of this injunction. Nevertheless, out of

3 caution and to avoid any problem concerning scope of review, the district court so certifies.

4

5

IT IS SO ORDERED.

6

7 Dated: January 9, 2018. 8

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

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22

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27

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1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

14

v.

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA No. C 17-05813 WHA

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN

16

NIELSEN, in her official capacity as Secretary of the Department of Homeland

17 Security,

ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6)

18

Defendants.

/

19

20

INTRODUCTION

21

In these challenges to the government’s rescission of the Deferred Action for Childhood

22 Arrivals program, the government moves to dismiss plaintiffs’ complaints for failure to state a

23 claim. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

This order incorporates the statement set forth in the order dated January 9, 2018,

26 largely denying dismissal under FRCP 12(b)(1) and largely granting plaintiffs’ motion for

27 provisional relief (Dkt. No. 234). This order, however, addresses a separate motion by the

28 government to dismiss all claims for failure to state a claim for relief under FRCP 12(b)(6).

This order sustains three claims for relief but finds that the rest fall short.

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1

ANALYSIS

2

1. APA CLAIMS UNDER 5 U.S.C. § 706(2)(A).

3

For the same reasons that plaintiffs are likely to succeed on their claim that the

4 rescission of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in

5 accordance with law” in violation of the Administrative Procedure Act, as explained in the

6 January 9 order, the government’s motion to dismiss plaintiffs’ APA claims under 5 U.S.C. §

7 706(2)(A) is DENIED.

8

2. APA CLAIMS UNDER 5 U.S.C. § 706(2)(D).

9

The original DACA program began in 2012 without any notice or opportunity for public

10 comment. Likewise, the rescission in question ended DACA without notice or opportunity for

11 public comment. One issue now presented is whether the rescission is invalid for having been

12 carried out without notice-and-comment procedures.

13

Under the APA, an agency action must be set aside if it was done “without observance

14 of procedure required by law.” 5 U.S.C. § 706(2)(D). An agency is required to follow

15 prescribed notice-and-comment procedures before promulgating certain rules. 5 U.S.C. § 553.

16 The Regulatory Flexibility Act further requires that notice-and-comment rulemaking include

17 an assessment of the impact on small entities. 5 U.S.C. § 604(a). These requirements do not

18 apply, however, to general statements of policy. 5 U.S.C. § 553(b)(A).

19

A general statement of policy “advis[es] the public prospectively of the manner in which

20 the agency proposes to exercise a discretionary power.” Mada-Luna v. Fitzpatrick, 813 F.2d

21 1006, 1012–13 (9th Cir. 1987). Such policies also “serve to educate and provide direction to

22 the agency’s personnel in the field, who are required to implement its policies and exercise its

23 discretionary power in specific cases.” Id. at 1013 (quotes and citations omitted). “The critical

24 factor” in determining whether a directive constitutes a general statement of policy is “the

25 extent to which the challenged [directive] leaves the agency, or its implementing official, free to

26 exercise discretion to follow, or not to follow, the [announced] policy in an individual case.”

27 Ibid. Thus, to qualify as a statement of policy two requirements must be satisfied: (1) the

28 policy operates only prospectively, and (2) the policy does “not establish a binding norm,” and

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1 is not “finally determinative of the issues or rights to which [it] address[es],” but instead leaves

2 officials “free to consider the individual facts in the various cases that arise.” Id. at 1014

3 (quotes and citations omitted). Under this standard, the rescission memorandum is a general

4 statement of policy.

5

This order rejects plaintiffs’ contention that the rescission could only be done through

6 notice and comment. For the same reasons that the promulgation of DACA needed no notice

7 and comment, its rescission needed no notice and comment.

8

Almost this exact problem was addressed in Mada-Luna. There, our court of appeals

9 held that the repeal of an INS policy under which applicants could seek deferred action was not

10 subject to notice and comment. It rejected the argument that the repeal could not constitute a

11 general statement of policy because it diminished the likelihood of receiving deferred action for

12 a class of individuals. Id. at 1016. Rather, because the original policy allowed for discretion

13 and failed to establish a “binding norm,” the repeal of that policy also did not require notice and

14 comment. Id. at 1017. So too here. The DACA program allowed but did not require the

15 agency to grant deferred action, and upon separate application, travel authorization, on a case-

16 by-case basis at the agency’s discretion. Therefore, neither its promulgation nor its rescission

17 required notice and comment.

18

Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), on which plaintiffs heavily rely,

19 does not warrant the conclusion that the rescission policy is a substantive rule. Parco also

20 addressed whether the rescission of an INS policy required notice and comment. Notably, the

21 government in Parco stipulated that the policy’s precipitous rescission was the sole reason for

22 denial of the plaintiff’s application for immigration relief. Id. at 984. The district court

23 determined that the repeal therefore left no discretion, explaining that “discretion” was stripped

24 of all meaning where “one contends that under a certain regulation ‘discretion’ was exercised

25 favorably in all cases of a certain kind and then, after repeal of the regulation, unfavorably in

26 each such case.” Ibid. Here, by contrast, plaintiffs do not allege that all deferred action

27 applications under DACA were approved but now, after the rescission, all requests for deferred

28 action will be denied.

3

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1

Plaintiffs argue that the rescission memorandum is more than a policy because it creates

2 a blanket prohibition against granting deferred action to DACA applicants. Plaintiffs are

3 correct that the rescission policy contains mandatory language on its face. It is also true that the

4 rescission memorandum categorically eliminates advance parole for DACA recipients.

5 This comes closer to resembling a substantive rule. However, it remains the case that because

6 the original promulgation of the discretionary program did not require notice and comment,

7 a return to the status quo ante also does not require notice and comment. Mada-Luna, 813 F.2d

8 at 1017.

9

Defendants’ motion to dismiss plaintiffs’ claims pursuant to Section 706(2)(D) of the

10 APA and the Regulatory Flexibility Act is accordingly GRANTED.

11

3.

DUE PROCESS CLAIMS.

12

To assert a due process claim, a plaintiff must first show that he or she has an interest in

13 liberty or property protected by the Constitution. See Bd. of Regents v. Roth, 408 U.S. 564, 569

14 (1972). Plaintiffs fail to make the threshold showing that they have a protected interest in the

15 continuation of DACA and, accordingly, their due process claims based on the rescission must

16 be dismissed. Plaintiffs have adequately alleged, however, that the agency’s changes to its

17 information-sharing policy are “fundamentally unfair.”

18

A. Deferred Action.

19

Because discretionary immigration relief “is a privilege created by Congress, denial of

20 such relief cannot violate a substantive interest protected by the Due Process clause.” Munoz v.

21 Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (citing INS v. Yang, 519 U.S. 26, 30 (1996)).

22 Moreover, “aliens have no fundamental right to discretionary relief from removal” for purposes

23 of due process. Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Our court of

24 appeals has accordingly held there is no protected interest in temporary parole, since such relief

25 is “entirely within the discretion of the Attorney General.” Kwai Fun Wong v. United States,

26 373 F.3d 952, 967–68 (9th Cir. 2004). Nor did an INS policy which allowed the agency to

27 recommend deferred action as “an act of administrative choice” create substantive liberty

28 interests. Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985). These authorities

4

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1 foreclose any argument that plaintiffs have a protected interest in continued deferred action or

2 advance parole under DACA.1

3

Plaintiffs reply that even absent a protected interest in the initial, discretionary grant of

4 deferred action, there is a protected interest in the renewal of DACA and its associated benefits.

5 Yet a benefit is not a “protected entitlement” where “government officials may grant or deny it

6 in their discretion.” Castle Rock, 545 U.S. 748, 756 (2005). Rather, an individual has a

7 protected property right in public benefits where the rules conferring those benefits “greatly

8 restrict the discretion” of the people who administer them. Nozzi v. Hous. Auth. of City of Los

9 Angeles, 806 F.3d 1178, 1191 (9th Cir. 2015). Plaintiffs’ authorities confirm that the same

10 principle applies in the context of renewing or retaining existing benefits. Wedges/Ledges of

11 California, Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 64 (9th Cir. 1994); Stauch v. City of

12 Columbia Heights, 212 F.3d 425, 430 (8th Cir. 2000). No such limitations on agency discretion

13 are alleged to have applied under DACA. Rather, the USCIS DACA FAQs referenced by

14 plaintiffs in their complaints make clear that “USCIS retain[ed] the ultimate discretion to

15 determine whether deferred action [was] appropriate in any given case even if the guidelines

16 [were] met” (Garcia Compl. ¶ 24 n.16; Santa Clara Compl. ¶ 58; UC Compl., Exh. B; State

17 Compl., Exh. E).

18

Next, plaintiffs argue that once DACA status was conferred, and recipients organized

19 their lives in reliance on the program’s protections and benefits, they developed interests

20 protected by the Constitution. Plaintiffs’ authorities, however, stand only for the

21 uncontroversial proposition that once in possession of a particular benefit, the alteration,

22 revocation or suspension of that benefit may implicate due process.2 Such a principle has no

23 application where, as here, extant benefits are not impacted by a change in policy. Indeed, there

24 is no dispute that the rescission acts only prospectively. That is, all existing DACA recipients

25
1 Plaintiffs’ attempt to distinguish Romeiro de Silva on the ground that the INS policy there involved
26 “unfettered discretion,” whereas the exercise of prosecutorial discretion under DACA was guided by standard
operating procedures, is unconvincing.
27
2 See Bell v. Burson, 402 U.S. 535, 539 (1971); Gallo v. U.S. Dist. Court For Dist. of Arizona,
28 349 F.3d 1169, 1179 (9th Cir. 2003); Medina v. U.S. Dep’t of Homeland Sec., 2017 WL 5176720, at *9
(W.D. Wash. Nov. 8, 2017).

5

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1 will receive deferred action through the end of their two-year terms. What they will not receive,

2 if the rescission endures, will be DACA renewal, thereafter. For this reason, Ixcot v. Holder,

3 646 F.3d 1202 (9th Cir. 2011), and Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003), which

4 addressed whether amendments to the INA were impermissibly retroactive, do not compel a

5 different result.

6

Plaintiffs contend that the government’s communications with plaintiffs regarding

7 renewals, its operation of the program, and the public promises of government officials

8 “together created an understanding that DACA recipients were entitled to the continued benefits

9 of the program so long as they met the renewal criteria” (Dkt. No. 205 at 29). Plaintiffs are

10 correct, of course, that claims of entitlement can be defined by “rules or mutually explicit

11 understandings.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). Importantly, however, a

12 person’s belief of entitlement to a government benefit, no matter how sincerely or reasonably

13 held, does not create a protected right if that belief is not mutually held by the government.

14 Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1020 (9th Cir. 2011). An agency’s past practice of

15 generally granting a government benefit is also insufficient to establish a legal entitlement.

16 Ibid.

17

This order empathizes with those DACA recipients who have built their lives around

18 the expectation that DACA, and its associated benefits, would continue to be available to them

19 if they played by the rules. That expectation, however, remains insufficient to give rise to a

20 constitutional claim under the Fifth Amendment. Because plaintiffs have failed to allege facts

21 demonstrating a protected interest in DACA’s continuation or the renewal of benefits

22 thereunder, defendants’ motion to dismiss plaintiffs’ due process claims based on the rescission

23 must be GRANTED.

24

B. Information-Sharing Policy.

25

Plaintiffs fare better with their substantive due process claim that DHS allegedly

26 changed its policy with respect to the personal information provided by DACA recipients

27 during the application process. Plaintiffs allege that the government repeatedly represented

28 that information provided by DACA applicants would not be used for immigration enforcement

6

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1 purposes absent special circumstances, and that DACA recipients relied on these promises in

2 submitting the extensive personal information needed to meet the program’s requirements.

3

Defendants insist that the agency’s information-sharing policy remains unchanged.

4 On a motion to dismiss, however, the well-pled factual allegations in a complaint must be

5 accepted as true. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.

6 2008). Plaintiffs have clearly alleged that DHS changed its information-sharing policy such

7 that now, rather than affirmatively protecting DACA recipients’ information from disclosure,

8 the government will only refrain from “proactively” providing their information for purposes of

9 immigration enforcement proceedings (Garcia Compl. ¶ 126; Santa Clara Compl. ¶ 58; State

10 Compl. ¶ 122).

11

Plaintiffs have also adequately alleged a “mutually explicit understanding” giving rise

12 to a protected interest in the confidentiality of DACA recipients’ personal information.

13 They allege that throughout DACA’s existence, DHS made affirmative representations as to

14 how this information would (and would not) be used. The policy stated (Garcia Compl. ¶ 126;

15 Santa Clara Compl. ¶ 58; State Compl. ¶ 121 (citing USCIS DACA FAQs)):

16

Information provided in this request is protected from disclosure

to ICE and CBP for the purpose of immigration enforcement

17

proceedings unless the requestor meets the criteria for the issuance

of a Notice to Appear or a referral to ICE under the criteria set

18

forth in USCIS’ Notice to Appear guidance

(www.uscis.gov/NTA). Individuals whose cases are deferred

19

pursuant to DACA will not be referred to ICE. The information

may be shared with national security and law enforcement

20

agencies, including ICE and CBP, for purposes other than removal,

including for assistance in the consideration of DACA, to identify

21

or prevent fraudulent claims, for national security purposes, or for

the investigation or prosecution of a criminal offense. The above

22

information sharing policy covers family members and guardians,

in addition to the requestor. This policy, which may be modified,

23

superseded, or rescinded at any time without notice, is not intended

to, does not, and may not be relied upon to create any right or

24

benefit, substantive or procedural, enforceable by law by any party

in any administrative, civil, or criminal matter.

25

The language contained in the policy’s caveat, that it could “be modified, superseded,

26

or rescinded at any time,” is ambiguous. One reading advanced by the government is that this

27

caveat allows the agency to change how it treats information already received from DACA

28

applicants. Another reading, however, is that it simply allows the government to change its

7

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1 policy in connection with future applicants. Secretary of Homeland Security Jeh Johnson’s

2 December 2016 letter to United States Representative Judy Chu supports the later reading.

3 He stated that, “[s]ince DACA was announced in 2012, DHS has consistently made clear that

4 information provided by applicants . . . will not later be used for immigration enforcement

5 purposes except where it is independently determined that a case involves a national security

6 or public safety threat, criminal activity, fraud, or limited other circumstances where issuance

7 of a notice to appear is required by law” (Garcia Compl. ¶¶ 36–37; State Compl. ¶ 98, Exh. F).

8 This ambiguity presents a question of fact that cannot be resolved on the pleadings.

9

Taken as true at this stage, as must be done on a FRCP 12(b)(6) motion, plaintiffs’

10 allegations regarding the government’s broken promise as to how DACA recipients’ personal

11 information will be used — and its potentially profound consequences — “shock[s] the

12 conscience and offend[s] the community’s sense of fair play and decency.” Marsh v. County of

13 San Diego, 680 F.3d 1148, 1154 (9th Cir. 2012) (quotes and citations omitted). Defendants’

14 motion to dismiss plaintiffs’ due process claims based on changes to the government’s

15 information-use policy is DENIED.

16

4.

EQUITABLE ESTOPPEL.

17

Plaintiffs bring claims for equitable estoppel, arguing that the government should not be

18 permitted to terminate DACA or use the information collected from applicants for immigration

19 enforcement purposes.

20

Defendants first contend that plaintiffs’ equitable estoppel claims fail because there is no

21 recognized claim for relief based on estoppel. The Supreme Court has refused to adopt,

22 however, “a flat rule that estoppel may not in any circumstances run against the Government,”

23 noting that “the public interest in ensuring that the Government can enforce the law free from

24 estoppel might be outweighed by the countervailing interest of citizens in some minimum

25 standard of decency, honor, and reliability in their dealings with their Government.” Heckler v.

26 Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60–61 (1984). Moreover, our court of

27 appeals has addressed such claims on the merits, and has held that the government may be

28

8

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1 subject to equitable estoppel if it has engaged in “affirmative misconduct.” Watkins v. U.S.

2 Army, 875 F.2d 699, 706–07 (9th Cir. 1989).

3

To state an equitable estoppel claim against the government, a party must show

4 (1) that the government engaged in “affirmative conduct going beyond mere negligence”; and

5 (2) “the government’s wrongful act will cause a serious injustice, and the public’s interest will

6 not suffer undue damage” if the requested relief is granted. Id. at 707. “Neither the failure to

7 inform an individual of his or her legal rights nor the negligent provision of misinformation

8 constitute affirmative misconduct.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir. 2000).

9 Moreover, our court of appeals has defined “affirmative misconduct” to mean a “deliberate lie”

10 or “a pattern of false promises.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1184 (9th Cir. 2001).

11 The allegations in the complaints fail to meet this standard, inasmuch as no affirmative instances

12 of misrepresentation or concealment have been plausibly alleged.

13

Plaintiffs are correct that estoppel “does not require that the government intend to

14 mislead a party,” Watkins, 875 F.2d 707, but plaintiffs fail to explain how contradictory policies

15 under two different administrations add up to “affirmative misconduct beyond mere negligence.”

16 Plaintiffs fail to allege, for example, that the government’s past statements regarding DACA’s

17 legality were a “deliberate lie” or more than mere negligence. Nor have plaintiffs pleaded that

18 the alleged change in the agency’s information-use policy was the result of an affirmative

19 misrepresentation. Rather, they have merely alleged a change in policy. Under plaintiffs’ theory

20 new administrations would almost never be able to change prior policies because someone could

21 always assert reliance upon the old policy. Defendants’ motion to dismiss plaintiffs’ equitable

22 estoppel claims is GRANTED.

23

5.

EQUAL PROTECTION CLAIMS.

24

To state an equal protection claim plaintiffs must show that the rescission was motivated

25 by a discriminatory purpose. Arce v. Douglas, 793 F.3d 968, 977 (2015) (citing Vill. of

26 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). Determining

27 whether discrimination is a motivating factor “demands a sensitive inquiry into such

28 circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at

9

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1 266. A plaintiff need not show that the discriminatory purpose was the sole purpose of the

2 challenged action, but only that it was a “motivating factor.” Ibid. In analyzing whether a

3 facially-neutral policy was motivated by a discriminatory purpose, district courts must consider

4 factors such as whether the policy creates a disparate impact, the historical background and

5 sequence of events leading up to the decision, and any relevant legislative or administrative

6 history. Id. at 266–68.3

7

First, Individual Plaintiffs and Santa Clara clearly allege that the rescission had a

8 disproportionate impact on Latinos and Mexican nationals. Indeed, such individuals account

9 for 93 percent of DACA recipients (Garcia Compl. ¶¶ 100, 151; Santa Clara Compl. ¶¶ 9, 75).

10 Defendants reply that this disparate impact is an accident of geography, not evidence of

11 discrimination. True, a disparate impact of a facially-neutral rule, standing alone, cannot

12 establish discriminatory intent. See Washington v. Davis, 426 U.S. 229, 242 (1976). Individual

13 Plaintiffs and Santa Clara, however, have alleged a discriminatory impact only as a starting

14 point. They also allege a history of bias leading up to the rescission of DACA in the form of

15 campaign statements and other public comments by President Trump, as next discussed.4

16

Second, plaintiffs allege that President Trump has, on multiple occasions since he

17 announced his presidential campaign, expressed racial animus towards Latinos and Mexicans.

18 When President Trump announced his candidacy on June 16, 2015, for example, he

19 characterized Mexicans as criminals, rapists, and “people that have lots of problems.” Three

20 days later, President Trump tweeted that “[d]ruggies, drug dealers, rapists and killers are coming

21 across the southern border,” and asked, “When will the U.S. get smart and stop this travesty?”

22

23

3 The Supreme Court’s decision in United States v. Armstrong, 517 U.S. 456 (1996), which addressed

the showing necessary for a defendant to be entitled to discovery on a selective-prosecution claim, has no
24 application here. Plaintiffs’ claims cannot fairly be characterized as selective-prosecution claims because they

do not “implicate the Attorney General’s prosecutorial discretion — that is, in this context, his discretion to
25 choose to deport one person rather than another among those who are illegally in the country.” Kwai Fun

Wong, 373 F.3d at 970. Rather, plaintiffs allege that the agency’s decision to end a nationwide deferred action
26 program was motivated by racial animus towards a protected class.

27

4 The City of San Jose’s equal protection claim falls a little short. Rather than alleging a disparate

impact on a protected class, it alleges only that “[d]efendants’ actions target individuals for discriminatory
28 treatment based on their national origin, without lawful justification” (San Jose Compl. ¶ 54). For this reason,

defendants’ motion to dismiss San Jose’s equal protection claim is GRANTED.

10

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1 During the first Republican presidential debate, President Trump claimed that the Mexican

2 government “send[s] the bad ones over because they don’t want to pay for them.” And in

3 August 2017, he referred to undocumented immigrants as “animals” who are responsible for “the

4 drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS 13” (Garcia Compl. ¶¶

5 102–13, 124; Santa Clara Compl. ¶¶ 75–76).

6

Circumstantial evidence of intent, including statements by a decisionmaker, may be

7 considered in evaluating whether government action was motivated by a discriminatory purpose.

8 Arlington Heights, 429 U.S. at 266–68. These statements were not about the rescission (which

9 came later) but they still have relevance to show racial animus against people south of our

10 border.

11

Should campaign rhetoric be admissible to undermine later agency action by the victors?

12 This order recognizes that such admissibility can readily lead to mischief in challenging the

13 policies of a new administration. We should proceed with caution and give wide berth to the

14 democratic process. Yet are clear cut indications of racial prejudice on the campaign trail to be

15 forgotten altogether?

16

Our court of appeals recently confirmed that “evidence of purpose beyond the face of the

17 challenged law may be considered in evaluating Establishment and Equal Protection Clause

18 claims.” Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017). Washington found that

19 President Trump’s statements regarding a “Muslim ban” raised “serious allegations and

20 presented significant constitutional questions,” although it ultimately reserved consideration of

21 plaintiffs’ equal protection claim. Id. at 1167–68. Citing to Washington, at least two district

22 courts have since considered President Trump’s campaign statements in finding a likelihood of

23 success on Establishment Clause claims. See, e.g., Aziz v. Trump, 234 F. Supp. 3d 724, 736

24 (E.D. Va. 2017) (Judge Leonie Brinkema); Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1236 (D.

25 Haw. 2017) (Judge Derrick Watson). This order will follow these decisions and hold that, at

26 least at the pleading stage, campaign rhetoric so closely tied to the challenged executive action is

27 admissible to show racial animus.

28

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1

Third, a final consideration is the unusual history behind the rescission. DACA received

2 reaffirmation by the agency as recently as three months before the rescission, only to be

3 hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality).

4 This strange about-face, done at lightning speed, suggests that the normal care and consideration

5 within the agency was bypassed (Garcia Compl. ¶ 154; Santa Clara Compl. ¶¶ 8, 77).

6

That President Trump has at other times shown support for DACA recipients cannot wipe

7 the slate clean as a matter of law at the pleading stage. Although the government argues that

8 these allegations fail to suggest that the Acting Secretary (as the purported decisionmaker)

9 terminated DACA due to racial animus, plaintiffs have alleged that it was President Trump

10 himself who, in line with his campaign rhetoric, directed the decision to end the program

11 (Garcia Compl. ¶¶ 11, 124; Santa Clara Compl. ¶ 21).

12

Construed in the light most favorable to plaintiffs, as must be done at the pleading stage,

13 these allegations raise a plausible inference that racial animus towards Mexicans and Latinos

14 was a motivating factor in the decision to end DACA. The fact-intensive inquiry needed to

15 determine whether defendants acted with discriminatory intent cannot be made on the pleadings.

16 Accordingly, defendants’ motion to dismiss Santa Clara’s and Individual Plaintiffs’ equal

17 protection claims must be DENIED.

18

State Plaintiffs allege an equal protection claim on the alternative theory that the

19 rescission “violates fundamental conceptions of justice by depriving DACA grantees, as a class,

20 of their substantial interests in pursuing a livelihood to support themselves and further their

21 education” (State Compl. ¶¶ 172–77). Plaintiffs do not respond to the government’s arguments

22 that this theory fails to state a claim under FRCP 12(b)(6). Defendants’ motion to dismiss State

23 Plaintiffs’ equal protection claim is accordingly GRANTED.

24

6.

DECLARATORY RELIEF.

25

Defendants move to dismiss the Individual Plaintiffs’ claim for declaratory relief.

26 Individual Plaintiffs’ request for declaratory relief is also contained in their prayer for relief and,

27 accordingly, the standalone claim is superfluous. Defendants’ motion to dismiss this claim is

28 GRANTED.

12

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United States District Court For the Northern District of California

1

CONCLUSION

2

Consistent with the foregoing, defendants’ motion to dismiss is GRANTED IN PART and

3 DENIED IN PART as follows:

4

•

Plaintiffs’ APA claims are sustained, except for the following: Garcia

5

Complaint – Fifth Claim for Relief; UC Complaint – Second Claim for

6

Relief; State Complaint – Second Claim for Relief; San Jose Complaint

7

– Second Claim for Relief.

8

•

Plaintiffs’ Regulatory Flexibility Act claims are dismissed.

9

•

Plaintiffs’ due process claims are sustained, except for the following:

10

UC Complaint – Third Claim for Relief; Garcia Complaint –

11

First Claim for Relief (to the extent based on the rescission);

12

Santa Clara Complaint – First Claim for Relief (to the extent based on

13

the rescission).

14

•

Plaintiffs’ equal protection claims are sustained, except for the

15

following: State Complaint – Sixth Claim for Relief; San Jose

16

Complaint – First Claim for Relief.

17

•

Plaintiffs’ equitable estoppel claims are dismissed.

18

•

Individual Plaintiffs’ declaratory relief claim is dismissed.

19

Plaintiffs may seek leave to amend and will have 21 CALENDAR DAYS from the date of

20 this order to file motions, noticed on the normal 35-day track, seeking leave to amend solely

21 as to the claims dismissed above. Proposed amended complaints must be appended to each

22 motion and plaintiffs must plead their best case. Any such motion should clearly explain how

23 the amendments to the complaints cure the deficiencies identified herein and should include as

24 an exhibit a redlined or highlighted version of the complaints identifying all changes.

25

CERTIFICATION UNDER 28 U.S.C. § 1292(b)

26

The district court hereby certifies for interlocutory appeal the issues of whether

27 (i) President Trump’s campaign statements are properly considered in evaluating plaintiffs’

28 equal protection claims, (ii) whether the Individual Plaintiffs’ and County of Santa Clara’s

13

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United States District Court For the Northern District of California

1 allegations as pleaded state an equal protection claim, (iii) whether plaintiffs’ allegations

2 concerning changes to the government’s information-sharing policy state a due process claim;

3 (iv) whether plaintiffs have failed to state a claim under 5 U.S.C. § 553; and (v) whether

4 plaintiffs have failed to state a due process claim based on the rescission of DACA. This order

5 finds that these are controlling questions of law as to which there is substantial ground for

6 difference of opinion and that their resolution by the court of appeals will materially advance the

7 litigation.

8

9

IT IS SO ORDERED.

10

11 Dated: January 12, 2018. 12

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

 
 IN RE: UNITED STATES of America; Donald J. Trump; U.S. Department of Homeland Security; Elaine C. Duke. United States of America; Donald J. Trump; U.S. Department of Homeland Security; Elaine C. Duke, in her
official capacity as Acting Secretary of the Department of Homeland Security, Petitioners, v.
United States District Court for the Northern District of California, San Francisco, Respondent,
Regents of the University of California; Janet Napolitano, In her official capacity as President of the University of California; State of California; State of Maine; State of Minnesota; State of Maryland; City of San Jose;
Dulce Garcia; Miriam Gonzalez Avila; Viridiana Chabolla Mendoza; Norma Ramirez; County of Santa Clara; Service Employees International
Union Local 521; Jirayut Latthivongskorn; Saul Jimenez Suarez, Real Parties in Interest. 1201*1201
No. 17-72917.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 7, 2017 Pasadena, California. FILED November 16, 2017.
Petition for Writ of Mandamus, D.C. Nos. 3:17-cv-05211-WHA 3:17-cv-05235-WHA 3:17-cv-05329WHA 3:17-cv-05380-WHA 3:17-cv-05813-WHA.
Hashim M. Mooppan, Office of the Solicitor General, United States Department of Justice, Thomas G. Pulham, Attorney, Mark B. Stern, Abby Christine Wright, Attorney, DOJ — U.S. Department of Justice, Washington, DC, for Petitioners.
Jeffrey Michael Davidson, Esquire, Covington & Burling, LLP, San Francisco, CA, Charles Furlonge Robinson, General Counsel, The Regents of the University of California, Office of the General Counsel, Oakland, CA, for Real Parties in Interest Regents of the University of California and Janet Napolitano.
Kathleen Vermazen Radez, Associate Deputy Solicitor General, James Fred Zahradka, II, Deputy Attorney General, AGCA — Office of the Attorney General, Oakland, CA, Michael J. Mongan, Attorney, California Department of Justice, San Francisco, CA, for Real Party in Interest State of California.
1204*1204 James Fred Zahradka, II, Deputy Attorney General, AGCA — Office of the Attorney General, Oakland, CA, for Real Parties in Interest State of Maine and State of Minnesota.
Steven Sullivan, Esquire, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Baltimore, MD, for Real Party in Interest State of Maryland.

J. Richard Doyle, San Jose City Attorney's Office, San Jose, CA, Nancy L. Fineman, Attorney, Cotchett, Pitre & McCarthy, LLP, Burlingame, CA, for Real Party in Interest City of San Jose.
Theodore J. Boutrous, Jr., Esquire, Attorney, Gibson, Dunn & Crutcher LLP, Judy London, Attorney, Mark D. Rosenbaum, Attorney, Public Counsel Law Center, Los Angeles, CA, Erwin Chemerinsky, UCI School of Law, Irvine, CA, for Real Parties in Interest Dulce Garcia, Miriam Gonzalez Avila, Viridiana Chabolla Mendoza, Norma Ramirez, Jirayut Latthivongskorn and Saul Jimenez Suarez.
Greta Suzanne Hansen, Esquire, Deputy County Counsel, Laura S. Trice, County of Santa Clara, Office of the County Counsel, James Robyzad Williams, Esquire, Attorney, SANTA CLARA COUNTY COUNSEL'S OFFICE, County Government Center, East Wing, San Jose, CA, Eric P. Brown, Stacey Leyton, Attorney, Jonathan Weissglass, Attorney, Altshuler Berzon LLP, San Francisco, CA, for Real Party in Interest County of Santa Clara.
Greta Suzanne Hansen, Esquire, Deputy County Counsel, County of Santa Clara, Office of the County Counsel, James Robyzad Williams, Esquire, Attorney, SANTA CLARA COUNTY COUNSEL'S OFFICE, County Government Center, East Wing, San Jose, CA, Eric P. Brown, Stacey Leyton, Attorney, Jonathan Weissglass, Attorney, Altshuler Berzon LLP, San Francisco, CA, for Real Party in Interest Service Employees International Union Local 521.
Michael E. Wall, Attorney, Natural Resources Defense Council, San Francisco, CA, for Amicus Curiae Natural Resources Defense Council.
Peter Karanjia, Davis Wright Tremaine LLP, Washington, DC, for Amicus Curiae United We Dream.
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.
1203*1203 ORDER
WARDLAW and GOULD, Circuit Judges:
On September 5, 2017, the Acting Secretary of the Department of Homeland Security ("DHS"), Elaine Duke, announced the end of DHS's Deferred Action for Childhood Arrivals policy ("DACA"), effective March 5, 2018. Begun in 2012, DACA provided deferred action for certain individuals without lawful immigration status who had entered the United States as children. Several sets of plaintiffs sued to enjoin the rescission of DACA under the Administrative Procedure Act ("APA") and under various constitutional theories not relevant here.
The merits of those claims are not before us today. The only issue is a procedural one, raised by the government's petition for a writ of mandamus. The government asks us to permanently stay the district court's order of October 17, 2017, which required it to complete the administrative record.[1] See Order re Motion to Complete Administrative Record, Regents of the 1205*1205 Univ. of Cal. v. U.S. Dep't of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324 (October 17, 2017) ("Order"). We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. Because the district court did not clearly err by ordering the completion of the administrative record, we hold that the government has not met the high bar required for mandamus relief.
One note at the outset: We are not unmindful of the separation-of-powers concerns raised by the government. However, the narrow question presented here simply does not implicate those concerns. We consider only whether DHS failed to comply with its obligation under the APA to provide a complete administrative record to the court — or, more precisely, whether the district court

clearly erred in so holding. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ("[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision."). This obligation is imposed to ensure that agency action does not become effectively unreviewable, for "[i]f the record is not complete, then the requirement that the agency decision be supported by `the record' becomes almost meaningless." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993). Assuring that DHS complies with this requirement — imposed by the APA on all agencies and embodied in decades of precedent — is undoubtedly a proper judicial function.
1. "The writ of mandamus is a drastic and extraordinary remedy reserved only for really extraordinary cases." In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947) (internal quotation marks omitted)). Indeed, "only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy." Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (internal quotation marks and citations omitted). Ultimately, the issuance of the writ is "in large measure ... a matter of the court's discretion." Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014) (quoting United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978)).
Our discretion is guided by the five factors laid out in Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977). However, we need not consider four of those five factors here, because "the absence of factor three — clear error as a matter of law — will always defeat a petition for mandamus." In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (quoting In re United States, 791 F.3d 945, 955 (9th Cir. 2015)). This factor — whether "[t]he district court's order is clearly erroneous as a matter of law," Bauman, 557 F.2d at 654-55 — "is significantly deferential and is not met unless the reviewing court is left with a definite and firm conviction that a mistake has been committed." In re Bundy, 840 F.3d at 1041 (quoting In re United States, 791 F.3d at 955).
2. The district court's order is not clearly erroneous as a matter of law. APA § 706 provides that arbitrary and capricious review shall be based upon "the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The whole record "includes everything that was before the agency pertaining to the merits of its decision." Portland Audubon, 984 F.2d at 1548; see also, e.g., James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) ("The administrative record includes all materials compiled by the agency that were before the agency at the time 1206*1206 the decision was made.") (internal quotation marks and citations omitted). More specifically, we have explained that the whole administrative record "consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal quotation marks omitted); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (same). The record is thus not necessarily limited to "those documents that the agency has compiled and submitted as `the' administrative record." Thompson, 885 F.2d at 555 (internal quotation marks omitted).
At the initial case management conference before the district court, the government agreed to produce the complete administrative record on October 6, 2017. On that date, the government submitted as "the" administrative record fourteen documents comprising a mere 256 pages, all of which are publicly available on the internet. Indeed, all of the documents in the government's proffered record had previously been included in filings in the district court in this case, and 192 of its 256 pages consist of the Supreme Court, Fifth Circuit, and district court opinions in the Texas v. United States litigation.[2]

Faced with this sparse record, and on the plaintiffs' motion (opposed by the government), the district court ordered the government to complete the record to include, among other things, all DACArelated materials considered by subordinates or other government personnel who then provided written or verbal input directly to Acting Secretary Duke. The district court excluded from the record documents that it determined in camera are protected by privilege. Order at *8.
3. The administrative record submitted by the government is entitled to a presumption of completeness which may be rebutted by clear evidence to the contrary. Bar MK Ranches, 994 F.2d at 740; see also Thompson, 885 F.2d at 555 (noting that the administrative record "is not necessarily those documents that the agency has compiled and submitted as `the' administrative record."). The district court correctly stated this legal framework and concluded that the presumption of completeness had been rebutted here. Order at *5. This conclusion was not clear legal error: Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people[3] based solely on 256 pages of publicly available documents is not credible, as the district court concluded.[4]
The district court identified several specific categories of materials that were likely considered by the Acting Secretary or those advising her, but which were not included in the government's proffered record. For example, the record contains no materials from the Department of Justice or the White House — other than a 1207*1207 one-page letter from Attorney General Jefferson B. Sessions — despite evidence that both bodies were involved in the decision to end DACA, including the President's own press release taking credit for the decision.[5] Nor does the proffered record include any documents from Acting Secretary Duke's subordinates; we agree with the district court that "it strains credulity" to suggest that the Acting Secretary decided to terminate DACA "without consulting one advisor or subordinate within DHS." Order at *4. And the proffered record contains no materials addressing the change of position between February 2017 — when then-Secretary John Kelly affirmatively decided not to end DACA — and Acting Secretary Duke's September 2017 decision to do the exact opposite, despite the principle that reasoned agency decision-making "ordinarily demand[s] that [the agency] display awareness that it is changing position" and "show that there are good reasons for the new policy." F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009).
At oral argument, the government took the position that because the Acting Secretary's stated justification for her decision was litigation risk, materials unrelated to litigation risk need not be included in the administrative record. Simply put, this is not what the law dictates. The administrative record consists of all materials "considered by agency decision-makers," Thompson, 885 F.2d at 555 (emphasis added), not just those which support or form the basis for the agency's ultimate decision. See also, e.g., Amfac Resorts, LLC v. U.S. Dep't of Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001) ("[A] complete administrative record should include all materials that `might have influenced the agency's decision,' and not merely those on which the agency relied in its final decision.") (quoting Bethlehem Steel v. EPA, 638 F.2d 994, 1000 (7th Cir. 1980)). And even if the record were properly limited to materials relating to litigation risk, the district court did not clearly err in concluding that it is implausible that the Acting Secretary would make a litigation-risk decision "without having generated any materials analyzing the lawsuit or other factors militating in favor of and against the switch in policy." Order at *4.
It was therefore not clear error for the district court to conclude that the presumption of regularity that attaches to the government's proffered record is rebutted, and that ordering completion of the record was necessary and appropriate.
4. Nor did the district court clearly err in identifying the materials that should have been included within the scope of the complete administrative record. The government challenges the decision to

include materials considered by subordinates who then briefed the Acting Secretary, but this decision was not clear legal error. We have held that the record properly includes "all documents and materials directly or indirectly considered by agency decision-makers," Thompson, 885 F.2d at 555, but have not yet clarified the exact scope of "indirectly considered." District courts in this and other circuits, however, have interpreted that phrase to include materials relied on by subordinates who directly advised the ultimate decision-maker. See, e.g., Nat. Res. Def. Council v. Gutierrez, No. C 01-0421 JL, 2008 WL 11358008, at *6 (N.D. Cal. Jan. 14, 2008) ("To the extent 1208*1208 [the government argues] that only those documents that reached [the agency's] most senior administrators were in fact `considered,' courts have rejected that view as contrary to the Ninth and other Circuits' pronouncements...."); GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng'rs, 212 F.Supp.3d 1348, 1352 (N.D. Ga. 2016) ("Documents and materials indirectly considered by agency decision-makers are those that may not have literally passed before the eyes of the decisionmakers, but were so heavily relied on in the recommendation that the decisionmaker constructively considered them."); Amfac Resorts, 143 F.Supp.2d at 12 ("[I]f the agency decisionmaker based his decision on the work and recommendations of subordinates, those materials should be included as well.").[6]
Moreover, as noted in the district court's October 17 order, a Department of Justice guidance document directs agencies compiling the administrative record to "[i]nclude all documents and materials prepared, reviewed, or received by agency personnel and used by or available to the decision-maker, even though the final decision-maker did not actually review or know about the documents and materials." U.S. Dep't of Justice, Env't and Nat. Res. Div., Guidance to Federal Agencies on Compiling the Administrative Record 3 (Jan. 1999) (emphasis added). It further provides that the administrative record should include "communications the agency received from other agencies ... documents and materials that support or oppose the challenged agency decision ... minutes of meetings or transcripts thereof... [and] memorializations of telephone conversations and meetings, such as a memorandum or handwritten notes." Id. at 3-4. The district court's October 17 order complies with this Department of Justice guidance; the government's proffered record does not.
We recognize that such guidance is not binding; we nevertheless find it persuasive as a statement by the Department of Justice as to what should be included in a complete administrative record. We also note that the guidance document DHS failed to comply with here was inexplicably rescinded the very same day that the government filed this petition for a writ of mandamus.
Given that the district court's interpretation of Thompson is consistent with the rulings of other district courts, comports with the Department of Justice's guidance on administrative records, and is not foreclosed by Ninth Circuit authority, we cannot say that the district court's interpretation was clearly erroneous as a matter of law. See In re Swift Transp. Co., 830 F.3d 913, 916-17 (9th Cir. 2016) ("It is well established that `[t]he absence of controlling precedent weighs strongly against a finding of clear error [for mandamus purposes].'") (quoting In re Van Dusen, 654 F.3d at 845).[7]
1209*1209 5. The district court's order that the government complete the record with documents considered by former DHS Secretary John Kelly in the course of deciding not to terminate DACA in February 2017 also withstands mandamus scrutiny. This is not because of some freestanding requirement that all the materials underlying a previous decision on a similar subject are always part of the administrative record; rather, it simply recognizes that both decisions were part of an ongoing decision-making process regarding deferred action: In February 2017, Secretary Kelly ended other prioritization programs, but left DACA and DAPA in place; in June 2017, Secretary Kelly ended DAPA but left DACA intact; finally, in September 2017, Acting Secretary Duke ended DACA. The materials considered by Secretary Kelly in the course of deciding against ending DACA in February 2017 did not cease to be "before the agency" for purposes of the administrative record during that

seven-month evolution in policy. Thompson, 885 F.2d at 555-56. The district court's decision to order their inclusion in the record was therefore not clear legal error.
6. Finally, the government makes two categorical arguments with respect to privilege.[8] First, it contends that Cheney v. U.S. District Court, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004), bars the completion of the administrative record with any White House materials, because requiring White House officials to search for and assert privilege as to individual documents would be an unwarranted intrusion into executive decision-making. Cheney, of course, did not involve an administrative agency's obligation under the APA to provide the court with the record underlying its decision-making. It instead involved civil discovery requests that the Supreme Court described variously as "overbroad" and as "ask[ing] for everything under the sky." Id. at 383, 387, 124 S.Ct. 2576. We do not read Cheney as imposing a categorical bar against requiring DHS to either include White House documents in a properly-defined administrative record or assert privilege individually as to those documents.
Moreover, the reasoning of Cheney appears to be based substantially on the fact that the Vice President himself was the subject of discovery. See id. at 381, 124 S.Ct. 2576 ("Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders."), 382 ("These separation-of-powers considerations should inform a court of appeals' evaluation of a mandamus petition involving the President or the Vice President."). Here, although the government is of course correct that the President is named as a defendant in some of the underlying lawsuits, there is no indication that either his documents or those of the Vice President would fall within the completed administrative record as ordered by the district court. Cheney therefore does not render the district court's order clearly erroneous.
1210*1210 Second, the government argues that it was clear legal error to require a privilege log and to evaluate documents allegedly protected by the deliberative process privilege on an individual basis, since "deliberative" materials are not properly within the administrative record at all. As noted above, the district court reviewed in camera each of the documents as to which the government asserted the deliberative process privilege, and ordered the inclusion of only those documents that met the balancing standard laid out in FTC v. Warner Commc'ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The court stated that it would similarly review in camera any additional documents as to which the government claims privilege in the future. Order at *8.
As the government acknowledges, we have not previously addressed whether assertedly deliberative documents must be logged and examined or whether the government may exclude them from the administrative record altogether. However, many district courts within this circuit have required a privilege log and in camera analysis of assertedly deliberative materials in APA cases. See, e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL 1709318, at *5 (N.D. Cal. May 3, 2017); Inst. for Fisheries Res. v. Burwell, No. 16-cv-01574 VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017); California ex rel. Lockyer v. U.S. Dep't of Agric., No. C05-03508 EDL, 2006 WL 708914, at *4 (N.D. Cal. March 16, 2008). Again, "the absence of controlling precedent" and the practice of the district courts "weigh[] strongly against a finding of clear error" for purposes of mandamus. In re Swift Transp. Co., 830 F.3d at 916-17 (citation omitted).
We further note that the "deliberative" materials at issue in the main case cited by the government, San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm'n, 789 F.2d 26 (D.C. Cir. 1986) (en banc), were transcripts of literal deliberations among the members of a multimember agency board. See id. at 44. Where — as in Mothers for Peace — an agency is headed by a multi-member board, the deliberations among those members are analogous to the internal mental processes of the sole head of an agency, and thus are generally not within the scope of the administrative record. Cf. Portland Audubon, 984 F.2d at 1549 (distinguishing Mothers for Peace as

involving "the internal deliberative processes of the agency [and] the mental processes of individual agency members") (emphases added). No such deliberations among a multi-member agency are at issue here. The district court's decision to require a privilege log and evaluate claims of privilege on an individual basis before including documents in the record was not clearly erroneous as a matter of law.
* * *
The district court's October 17, 2017 order represents a reasonable approach to managing the conduct and exigencies of this important litigation — exigencies which were dictated by the government's March 5, 2018 termination date for DACA. In order for the government to prevail in its request for the extraordinary remedy of mandamus, we must be "left with a definite and firm conviction that a mistake has been committed." In re Bundy, 840 F.3d at 1041 (quoting In re United States, 791 F.3d at 955). We are left with no such conviction here, and mandamus relief is therefore not appropriate.
Accordingly, the stay of proceedings entered on October 24, 2017 is lifted.
PETITION DENIED.
WATFORD, Circuit Judge, dissenting:
I understand why the district court ordered the Department of Homeland Security (DHS) to provide a more fulsome administrative record. The agency's decision 1211*1211 to rescind DACA will profoundly disrupt the lives of hundreds of thousands of people, and a policy shift of that magnitude presumably would not have been made without extensive study and analysis beforehand. But the desire for greater insight into how DHS arrived at its decision is not a legitimate basis for ordering the agency to expand the administrative record, unless the plaintiffs make a threshold factual showing justifying such action. They have not done so here. As a result, I think the district court's order constitutes "a clear abuse of discretion," and the burden imposed by the order is exceptional enough to warrant the extraordinary remedy of mandamus. Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).
The district court's order violates two well-settled principles governing judicial review of agency action under the Administrative Procedure Act. The first is that a court ordinarily conducts its review "based on the record the agency presents to the reviewing court." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam). If the record compiled by the agency is inadequate to support the challenged action, the reviewing court will usually be required to vacate the agency's action and remand for additional investigation or explanation. Florida Power, 470 U.S. at 744, 105 S.Ct. 1598. So in most cases the agency bears the risk associated with filing an incomplete record, not the challengers.
The second principle is that documents reflecting an agency's internal deliberative processes are ordinarily not part of the administrative record. See In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998); Kansas State Network, Inc. v. FCC, 720 F.2d 185, 191 (D.C. Cir. 1983). An agency generally has no obligation to include documents that were prepared to assist the decision-maker in arriving at her decision, such as memos or emails containing opinions, recommendations, or advice. These pre-decisional materials are not deemed part of the administrative record because they are irrelevant to the reviewing court's task. The court's function is to assess the lawfulness of the agency's action based

on the reasons offered by the agency, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), not to "probe the mental processes" of agency decision-makers in reaching their conclusions. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). Requiring routine disclosure of deliberative process materials would also chill the frank discussions and debates that are necessary to craft well-considered policy. See Assembly of the State of California v. Department of Commerce, 968 F.2d 916, 920 (9th Cir. 1992); San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 789 F.2d 26, 45 (D.C. Cir. 1986) (en banc) (plurality opinion).
There are exceptions to these general rules. First, expansion of the record may be required when the agency fails to make formal findings and thus leaves the reviewing court unable to discern the agency's reasons for taking the action that it did. See Public Power Council v. Johnson, 674 F.2d 791, 793-94 (9th Cir. 1982). (This exception doesn't apply here because the memo issued by the Acting Secretary explicitly states her asserted reason for rescinding DACA: concern that the program would be invalidated in threatened litigation.) Second, the record may be expanded if there is evidence that the agency cherry-picked the materials it included by omitting factual information undermining the 1212*1212 conclusions it reached. See Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir. 1993). And third, documents reflecting an agency's internal deliberations may on occasion be made part of the record, but only if the challengers make "a strong showing of bad faith or improper behavior" on the part of agency decision-makers. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); In re Subpoena Duces Tecum, 156 F.3d at 1279-80.
The plaintiffs have not made the showing necessary to trigger either of the latter two exceptions. They have not shown any likelihood that factual information considered by the Acting Secretary and relevant to her decision has been omitted from the record. Indeed, it would be implausible to think that any such material exists, given the nature of the reason asserted by the Acting Secretary for rescinding DACA. Concern over the program's vulnerability to legal challenge would rest not on factual information but on the legal analysis of lawyers. Documents analyzing DACA's potential legal infirmities, prepared to assist the Acting Secretary in assessing the gravity of the litigation risk involved, fall squarely within the category of deliberative process materials mentioned above. They are presumptively outside the scope of what must be included in the administrative record (and may be privileged in any event).
Nor have the plaintiffs attempted at this stage of the case to show bad faith or improper behavior on the part of the Acting Secretary. To be sure, they assert in their brief that they suspect her stated reason for rescinding DACA is pretextual. But bare assertions of that sort fall far short of the showing needed to overcome the presumption that agency decision-makers have acted for the reasons they've given.
Because the plaintiffs have failed to establish that any of these exceptions apply, I don't think the district court's order can stand. The court directed DHS to include in the administrative record all DACA-related "emails, letters, memoranda, notes, media items, opinions, and other materials" considered by the Acting Secretary, and all such materials considered by any other government official — including officials from the Department of Justice and the White House — who provided the Acting Secretary with written or verbal input on the decision to rescind DACA. The court further expanded the record to include "all comments and questions propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual or potential rescission of DACA and their responses."

In my view, the district court exceeded the scope of its lawful authority to expand the administrative record. The order sweeps far beyond materials related to the sole reason given for rescinding DACA — its supposed unlawfulness and vulnerability to legal challenge. The order requires the inclusion of all documents mentioning DACA-related issues of any sort, and is overbroad for that reason alone. But even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be made part of the administrative record absent a showing of bad faith or improper behavior. And to the extent the order will compel the production of communications between the Acting Secretary and high-level officials in the White House — including, potentially, the President himself — the order raises the same sensitive separation-of-powers concerns that made mandamus relief appropriate in Cheney. See 542 U.S. at 389-90, 124 S.Ct. 2576.
1213*1213 These departures from settled principles are enough to establish that the district court's order is "clearly erroneous as a matter of law," which is the most important of the factors we consider when deciding whether to grant mandamus relief. In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016). The other factors weigh in favor of granting relief as well. The order isn't immediately appealable, and if relief is denied the harm inflicted will be immediate and irreparable. As the declarations submitted by the government attest, the search for documents responsive to the court's order will be burdensome and intrusive, given the large number of government officials who may have provided written or verbal input to the Acting Secretary. And the damage caused by public disclosure of otherwise privileged materials can't be undone following an appeal from the final judgment.
This strikes me as a classic case in which mandamus relief is warranted, and I would therefore grant the writ.
[1] Issues regarding supplementation — as opposed to completion — of the record and the propriety of discovery on the non-APA claims, including the propriety of depositions, are not properly before us at this time, and we do not address them here.
[2] That lawsuit challenged a related but distinct deferred action policy, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. See United States v. Texas, ___ U.S. ___, 136 S.Ct. 2271, 195 L.Ed.2d 638 (2016); Texas v. United States, 809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015).
[3] See U.S. Citizenship and Immigration Services, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (June 30) (Sept. 20, 2017), goo.gl/UcGJww.
[4] The dissent agrees that "a policy shift of that magnitude presumably would not have been made without extensive study and analysis beforehand." Dissent at 1211.
[5] See Press Release, White House Office of the Press Secretary, President Donald J. Trump Restores Responsibility and the Rule of Law to Immigration (Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/president-donald-jtrump-restores-responsibility-and-rule-law.
[6] We also note that the government has conceded in other cases that documents relied on by subordinates are properly part of the administrative record. See Oceana, Inc. v. Pritzker, No. 16-cv-06784-LHK (SVK), 2017 WL 2670733, at *4 (N.D. Cal. June 21, 2017) ("Defendants acknowledge ... that a decision-maker can be deemed to have `constructively considered' materials that, for example, were relied on by subordinates....").
[7] There is tension within our decisions about whether controlling Ninth Circuit precedent is a necessary precondition to finding clear error as a matter of law. Compare In re Swift Transp. Co., 830 F.3d at 917 ("If `no prior Ninth Circuit authority prohibited the course taken by the district court, its ruling is not clearly erroneous.'") (quoting In re Morgan, 506 F.3d 705, 713 (9th Cir. 2007)), with Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010) ("[T]he necessary clear error factor does not require that the issue be one as to which there is established precedent.") (emphasis added). At a minimum, however, the lack of such authority "weighs strongly" against finding clear error. In re Swift Transp. Co., 830 F.3d at 916.

[8] The government also appears to challenge the district court's individual privilege determinations, but it has provided little in the way of argument regarding the specific documents ordered disclosed by the district court. We are unable to conclude that the government has met its burden of showing that the district court's privilege analysis was clearly erroneous as a matter of law.

 
 Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 1 of 14

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9

10 THE REGENTS OF THE UNIVERSITY OF

11

CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the

12 University of California,

13

Plaintiffs,

No. C 17-05211 WHA No. C 17-05235 WHA No. C 17-05329 WHA No. C 17-05380 WHA

14

v.

15

UNITED STATES DEPARTMENT OF HOMELAND SECURITY and ELAINE

16

DUKE, in her official capacity as Acting Secretary of the Department of Homeland

17 Security,

ORDER RE MOTION TO COMPLETE ADMINISTRATIVE RECORD

18

Defendants. /

19

20

INTRODUCTION

21

Under the Administrative Procedure Act, plaintiffs seek to compel completion of the

22 administrative record. Federal defendants oppose. For the reasons herein, plaintiffs’ motion is

23 GRANTED IN PART and DENIED IN PART.

24

STATEMENT

25

On June 15, 2012, the Secretary of the Department of Homeland Security issued a

26 memorandum promulgating a deferred action policy for those without lawful immigration status

27 who came to the United States as children, were continuous residents in the United States for at

28 least five years, had graduated from high school, obtained a GED, or served in the military, and

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 2 of 14

United States District Court For the Northern District of California

1 met certain other criteria — a memorandum and policy known as Deferred Action for

2 Childhood Arrivals, “DACA” for short (Dkt. No. 64-1 at 1–3).1

3

After the change in administrations in 2017, the new Secretary of DHS, John Kelly,

4 announced that DACA would be continued notwithstanding the rescission of other immigration

5 policies (id. at 230). This was done despite, and with the knowledge of, the decision of the

6 Court of Appeals for the Fifth Circuit in Texas v. United States, 809 F.3d 134 (5th Cir. 2015),

7 invalidating a different deferred action policy and the Supreme Court’s affirmance of that

8 decision by an equally divided vote, United States v. Texas, 136 S. Ct. 2271 (2016) (per

9 curiam).

10

On September 5, 2017, however, the Acting Secretary of DHS, Elaine Duke, reversed

11 the agency’s position and announced DACA’s end, effective March 5, 2018.

12

We now have five lawsuits in this district challenging that rescission.2 Each action is

13 proceeding on a parallel track and on the same schedule, which schedule was designed to reach

14 a decision on the merits and to allow appellate review by the March 5 deadline.3

15

Pursuant to the scheduling order, the federal defendants filed the administrative record

16 on October 6. It consisted of fourteen documents spanning 256 pages, each of which was

17 already available to the public, and had, in fact, already been filed in this action (Dkt. No. 49

18 ¶ 3; Dkt. No. 64-1).

19

In unison, plaintiffs now move to require completion of the administrative record in

20 accordance with Section 706 of Title 5 of the United States Code. They argue that the current

21 record is incomplete because it contains only documents personally considered by the Acting

22 Secretary (and then only some considered by her) and excludes any and all other documents that

23 indirectly led to the rescission.

24

25

1 All docket numbers herein refer to the docket in Case No. C 17-05211 WHA.

26

2 There are two additional DACA lawsuits proceeding in the Eastern District of New York before

Judge Nicholas Garaufis, State of New York v. Trump, Case No. 17-cv-05228 NGG, and Vidal v. Baran, Case
27 No. 16-cv-04756 NGG.

28

3 The fifth lawsuit, County of Santa Clara v. Trump, Case No. 17-cv-05813 HRL, was related after

plaintiffs’ motion was fully briefed and argued.

2

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 3 of 14

United States District Court For the Northern District of California

1

The federal defendants oppose, arguing that they have already filed a complete

2 administrative record, which they contend is properly limited to unprivileged documents

3 actually considered by the “decision-maker,” here, the Acting Secretary (Opp. at 8–9).

4

This order follows full briefing and oral argument and the Court’s review of all

5 materials in camera that appeared on the government’s privilege log.

6

ANALYSIS

7

1.

SCOPE OF THE ADMINISTRATIVE RECORD.

8

Section 706 of the APA provides that judicial review of agency action shall be based

9 on “the whole record.” The administrative record “is not necessarily those documents that the

10 agency has compiled and submitted as the administrative record” but rather “consists of all

11 documents and materials directly or indirectly considered by agency decision-makers and

12 includes evidence contrary to the agency’s position.” Thompson v. United States Dep’t of

13 Labor, 885 F.2d 551, 555–56 (9th Cir. 1989). This includes not only documents that “literally

14 pass[ed] before the eyes of the final agency decision maker” but also documents that were

15 considered and relied upon by subordinates who provided recommendations to the decision-

16 maker. People of State of Cal. ex rel. Lockyer v. United States Dep’t of Agriculture, Nos.

17 C05-3508 & C05-4038, 2006 WL 708914, at *2 (N.D. Cal. Mar. 16, 2006) (Magistrate Judge

18 Elizabeth Laporte) (internal citations and quotations omitted); see also Amfac Resorts, L.L.C. v.

19 United States Dep’t of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (Judge Royce

20 Lamberth).

21

The requirement that a reviewing court consider “the whole record” before rendering a

22 decision “ensures that neither party is withholding evidence unfavorable to its position and that

23 the agencies are not taking advantage of post hoc rationalizations for administrative decisions.

24 Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984).

25

While it is presumed that the administrative record submitted by defendants is complete,

26 plaintiffs can rebut this presumption with “clear evidence to the contrary.” Cook Inletkeeper v.

27 EPA, 400 F. App’x 239, 240 (9th Cir. 2010) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735,

28 740 (10th Cir. 1993)).

3

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 4 of 14

United States District Court For the Northern District of California

1

Defendants contend a showing of bad faith or impropriety is required in order to compel

2 a complete production of the administrative record. This is incorrect. True, bad faith is one

3 basis for requiring supplementation of an administrative record, but it is not the exclusive basis.

4 Our court of appeals has repeatedly recognized other grounds for requiring supplementation,

5 including where it appears the “agency relied on documents not [already] included in the

6 record.” Pub. Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982); Fence Creek

7 Cattle Co. v. United States Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010); see also Lands

8 Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).

9

The “bad faith” standard of Overton Park applies where, though an administrative

10 record exists, plaintiffs ask to go beyond the record that was before the agency and inquire into

11 the thought processes of decision-makers — in Overton Park, by taking the testimony of

12 agency officials. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)

13 abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

14

Our plaintiffs are not seeking materials beyond what were already considered, directly

15 or indirectly, by the decision-maker, and therefore need not show bad faith. Supplementation

16 is appropriate if they show, by clear evidence, that the agency relied on materials not already

17 included in the record. See Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d

18 1534, 1548 (9th Cir. 1993) (distinguishing between materials “never presented to the agency”

19 and materials that were “allegedly [] before the agency”); Fence Creek Cattle Co., 602 F.3d at

20 1131.

21

Nor is defendants’ contention that it need only produce documents directly considered

22 by the Acting Secretary correct. Documents reviewed by subordinates, or other agencies

23 who informed her on the issues underlying the decision to rescind DACA, either verbally or

24 in writing, should be in the administrative record. See Lockyer, 2006 WL 708914, at *2.

25 The threshold question is whether plaintiffs have shown, by clear evidence, that the record

26

27

28

4

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 5 of 14

United States District Court For the Northern District of California

1 defendants produced is missing documents that were considered, directly or indirectly, by DHS

2 in deciding to rescind DACA.4

3

2.

PLAINTIFFS’ SHOWING OF INCOMPLETENESS.

4

Here, the tendered administrative record consists merely of fourteen documents

5 spanning 258 pages, which defendants contend constitute the entire record considered in

6 making the decision to rescind DACA. These are plainly pertinent materials, although all were

7 publicly known and already part of the pleadings herein.

8

Plaintiffs seek additional materials including emails, departmental memoranda, policy

9 directives, meeting minutes, materials considered by Secretary Duke’s subordinates,

10 communications from White House officials or staff, communications from the Department of

11 Justice, and communications between DHS and state authorities, which they contend should

12 necessarily be part of the administrative record (Br. at 9–10).

13

Plaintiffs drew this list, in part, from a United States Department of Justice Guidance,

14 which sets forth non-binding recommendations for how to compile an administrative record and

15 what to include. United States Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to Federal

16 Agencies on Compiling the Administrative Record (Jan. 1999). Specifically, the Guidance

17 states that the administrative record should “[i]nclude all documents and materials prepared,

18 reviewed, or received by agency personnel and used by or available to the decision-maker,

19 even though the final decision-maker did not actually review or know about the documents

20 and materials.” Id. at 3. It further provides that the record should include “communications

21 the agency received from other agencies . . . documents and materials that support or oppose

22 the challenged agency decision . . . minutes of meetings or transcripts thereof . . . [and]

23

24

25

4 Defendants also argue that they should not be required to produce any administrative record

whatsoever because the Department of Homeland Security’s decision to end DACA was an exercise of
26 prosecutorial discretion not subject to judicial review (Opp. at 1). Earlier in these actions, our defendants

agreed to produce the administrative record by October 6, and were then ordered to do so. They may not now
27 renege on that commitment. At this stage, defendants are required to produce an administrative record. Should

they prevail on this argument on their eventual motion to dismiss, it will be with the benefit of a proper
28 administrative record.

5

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 6 of 14

United States District Court For the Northern District of California

1 memorializations of telephone conversations and meetings, such as memorandum or

2 handwritten notes.”5

3

Plaintiffs contend that communications from DOJ and the White House are a critical

4 part of “the whole record” due to their significant public participation in the process of

5 rescinding DACA. Plaintiffs first point to Attorney General Sessions’ September 4 letter,

6 which DHS expressly relied upon in its memorandum terminating the program (see Dkt. No.

7 64-1 at 251, 255). Despite this critical and publicly disclosed role in the decision, the only DOJ

8 document defendants include in the record is this one-page September 4 letter. This, plaintiffs

9 contend, is clear evidence that defendants omitted documents supporting (or contradicting) the

10 opinions set forth in Attorney General Sessions’ letter, in particular the opinion that DACA was

11 unlawfully implemented.

12

Additionally, the White House has repeatedly emphasized the President’s direct role

13 in decisions concerning DACA. For example, a September 5 White House press release

14 announced “President Donald J. Trump Restores Responsibility and the Rule of Law to

15 Immigration” by rescinding DACA, and repeatedly stated that “President Trump” had acted to

16 end the program. Press Release, The White House Office of the Press Secretary, President

17 Donald J. Trump Restores Responsibility and the Rule of Law to Immigration (Sept. 5, 2017),

18 https://www.whitehouse.gov/thepress-office/2017/09/05/president-donald-j-trump-restores-

19 responsibility-and-rule-law. Other articles likewise emphasize White House officials’ roles

20 in decision-making regarding DACA. See, e.g., Michael D. Shear & Julie Hirschfeld Davis,

21 Trump Moves to End DACA and Calls on Congress to Act, New York Times (Sept. 5, 2017).

22 Moreover, defendants concede in their response that Secretary Duke “received advice from

23 other members of the executive branch” in making her decision (Opp. at 17) and refer to “White

24 House memorandum” in their privilege log (Dkt. No. 71-2). And at oral argument, counsel for

25
5 A 2008 DOJ memorandum specifically notes that the 1999 Guidance is a non-binding internal
26 document, which does not “limit the otherwise lawful prerogatives of the Department of Justice or any other
federal agency” (Dkt. No. 71-1 at 3). In particular, the 2008 memorandum takes issue with outside parties’ use
27 of the Guidance in litigation to advocate for a particular composition of the administrative record or process for
its assembly (ibid.). Recognizing that the 1999 Guidance is not binding upon agencies, this order finds that the
28 Guidance nevertheless provides helpful insight into the types of documents and materials an agency should
consider when assembling an administrative record.

6

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United States District Court For the Northern District of California

1 defendants said it was likely Secretary Duke had received verbal input before making her

2 decision. Despite this, defendants have failed to provide even a single document from any

3 White House officials or staff.

4

Plaintiffs further observe that not a single document from one of Secretary Dukes’

5 subordinates is in the record. It strains credulity to suggest that the Acting Secretary of DHS

6 decided to rescind a program covering 800,000 enrollees without consulting one advisor or

7 subordinate within DHS. Again, at oral argument, government counsel represented that she

8 had likely received verbal input. The government’s in camera submission confirms that she

9 did receive substantial DACA input.

10

Finally, former DHS Secretary John Kelly issued a memorandum in February 2017,

11 in which he rescinded all DHS memoranda that conflicted with newly stated immigration

12 enforcement policies — but expressly declined to rescind DACA (Dkt. No. 64-1 at 229–30).

13 This decision, of course, is directly contrary to that taken by Acting Secretary Duke seven

14 months later. The administrative record, however, omits all materials explaining the change

15 in position from February to September, with two exceptions — (1) a June 29 letter from Ken

16 Paxton, the Attorney General of Texas, to Attorney General Sessions, in which he threatens

17 to amend the suit challenging DAPA to also challenge DACA if it is not rescinded by

18 September 5, and (2) Attorney General Sessions’ September 4 letter to Secretary Duke

19 expressing the opinion that DHS should rescind DACA. Reasoned agency decision-making

20 ordinarily “demand[s] that [the agency] display awareness that it is changing position” and

21 “show that there are good reasons for the new policy.” F.C.C. v. Fox Television Stations, Inc.,

22 556 U.S. 502, 515 (2009). Accordingly, “the whole record” would ordinarily contain materials

23 giving a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or

24 were engendered by the prior policy.” Ibid. It is simply not plausible that DHS reversed policy

25 between February and September because of one threatened lawsuit (never actually filed)

26 without having generated any materials analyzing the lawsuit or other factors militating in favor

27 of and against the switch in policy.

28

7

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United States District Court For the Northern District of California

1

Based on the foregoing, plaintiffs have clearly shown that defendants excluded highly

2 relevant materials from the administrative record and in doing so have rebutted the presumption

3 that the record is complete.

4

Defendants’ argument to the contrary is unpersuasive. Their position that only selected

5 documents that Acting Secretary Duke personally reviewed need be part of the administrative

6 record must yield to legal authority requiring both directly and indirectly considered documents

7 be included in the record, see, e.g., Thompson, 885 F.2d at 555–56, and by public statements

8 illustrating both DOJ and the White House’s direct involvement in the decision to rescind

9 DACA. The rule that government counsel advocates would allow agencies to contrive a record

10 that suppresses information actually considered by decision-makers and by those making

11 recommendations to the decision-makers, information that might undercut the claimed rationale

12 for the decision.

13

As stated, privilege log entries reveal several documents that were considered in arriving

14 at the decision to rescind DACA. For example, at least seven entries refer to commentary in

15 media articles regarding DACA. At oral argument, government counsel admitted that the

16 Acting Secretary had seen several media items on the issue. There were not, however, any

17 media articles on DACA in the administrative record, but those that came to the Acting

18 Secretary should, of course, be included.6

19

Here, plaintiffs have rebutted the presumption of completeness. It is evident that Acting

20 Secretary Duke considered information directly, or indirectly, through the advice of other

21 agencies and others within her own agency. These documents, as set forth in detail below,

22 should be made part of the administrative record and must be produced by defendants in an

23 amended administrative record by NOON ON OCTOBER 27.

24
6 Many documents were evidently excluded in their entirety based on an assertion of “deliberative-
25 process” privilege. Any “[f]actual portions of documents covered by the deliberative process privilege,
[however], must be segregated and disclosed unless they are so interwoven with the deliberative material” that
26 they are not segregable. See Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir 2008) (citations
and quotations omitted). Accordingly, to the extent that media articles or other non-privileged factual materials
27 were considered, they should have been included in the administrative record, and shall be filed as part of the
amended administrative record, even if passages are redacted as deliberative, and called out as such in the
28 privilege log.

8

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 9 of 14

United States District Court For the Northern District of California

1

3.

WAIVER OF ATTORNEY-CLIENT PRIVILEGE.

2

Plaintiffs next argue that defendants have waived attorney-client privilege because they

3 have put their attorneys’ legal opinions at issue by arguing that the rescission was required due

4 to concerns over DACA’s legality (Br. at 15–16). Indeed, one of DHS’s primary rationales for

5 rescinding DACA was its purported illegality (see Dkt. No. 64-1 at 253–56 (Rescission

6 Memorandum)).

7

Parties are not permitted to advance conclusions that favor their position in litigation,

8 and at the same time shield the information that led to those conclusions from discovery.

9 See Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992). Put differently, “[t]he

10 privilege which protects attorney-client communications may not be used both as a sword and a

11 shield.” Ibid. Where a party raises a claim, which in fairness to its adversary requires it to

12 reveal the information or communication that claim is predicated upon, it has implicitly waived

13 any privilege over that communication.

14

Here, defendants argue that DHS had to rescind DACA because it exceeded the lawful

15 authority of the agency. They cannot, therefore, simultaneously refuse to disclose the legal

16 research that led to that conclusion. Defendants indeed, have included the September 4 legal

17 opinion of the Attorney General, pithy as it may be — yet they seek to conceal all other legal

18 analysis available to the Acting Secretary and to the Attorney General.

19

Significantly, defendants slide into a backup argument that the agency’s legal worry was

20 “reasonable” even if wrong. If this backup argument comes into play (as government counsel

21 posits) then the “reasonableness” of taking an incorrect legal position would heavily turn on the

22 underlying legal analysis so far withheld from view. In other words, assessing the

23 reasonableness of the Secretary’s legal rationale would turn, in part, on how consistent the

24 analysis has been in the runup to the rescission.

25

Defendants’ arguments to the contrary are unavailing. They first argue, without citation

26 to any legal authority, that “[w]ere plaintiffs’ argument accepted, the government would be

27 deemed to have waived all privileges any time an assessment of the legal landscape informed an

28 agency’s decisionsmaking” (Opp. at 21). This argument vastly exaggerates plaintiffs’ position,

9

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 10 of 14

United States District Court For the Northern District of California

1 and misrepresents the position defendants have staked out in this litigation. DHS specifically

2 relied upon DOJ’s assessment that DACA “was effectuated . . . without proper statutory

3 authority,” “was an unconstitutional exercise of authority by the Executive Branch” and “has

4 the same legal and constitutional defects that courts recognized as to DAPA” (Dkt. No. 64-1 at

5 254). Plaintiffs are entitled to challenge whether this was a reasonable legal position and thus a

6 reasonable basis for rescission. In making that challenge, plaintiffs are entitled to review the

7 internal analyses that led up to this change in position.

8

Defendants further argue that the decisions cited by plaintiffs are inapplicable because

9 they arose in different contexts than the present action. True, the decisions plaintiffs cite did

10 not arise in identical circumstances. E.g. Chevron Corp., 974 F.2d at 1162 (defendant

11 prohibited from relying on legal opinion that tax position was reasonable while refusing to

12 disclose the attorney communications leading to that conclusion). They still, however, stand for

13 the widely-accepted proposition that it is unfair for a litigant to defend his action with a

14 selective disclosure of evidence. This principle carries no less force here.

15

In the related context of FOIA, the Court of Appeals for the Second Circuit held that

16 “the attorney-client privilege may not be invoked to protect a document adopted as, or

17 incorporated by reference into an agency’s policy.” Nat’l Council of La Raza v. Dep't of

18 Justice, 411 F.3d 350, 360 (2d Cir. 2005). There, DOJ invoked the reasoning of an OLC

19 memorandum to justify its new position on an immigration issue. Id. at 357. The court held

20 that the agency’s “view that it may adopt a legal position while shielding from public view the

21 analysis that yielded that position is offensive to FOIA.” Id. at 360. So too here.

22

Defendants have waived attorney-client privilege over any materials that bore on

23 whether or not DACA was an unlawful exercise of executive power and therefore should be

24 rescinded.

25

4.

DELIBERATIVE-PROCESS PRIVILEGE BALANCING.

26

Defendants further assert the deliberative-process privilege over many documents.

27

The deliberative-process privilege, however, is qualified and will yield when the need

28 for materials and accurate fact-finding “override the government’s interest in non-disclosure.”

10

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 11 of 14

United States District Court For the Northern District of California

1 F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Among factors to

2 be considered in making this determination are: (1) the relevance of the evidence; (2) the

3 availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to

4 which disclosure would hinder frank and independent discussion regarding contemplated

5 policies and decisions.” Ibid.

6

As set forth below, the judge has personally reviewed in camera all materials on the

7 privilege log and applied the foregoing test to each document for which the deliberative-process

8 privilege is claimed.7

9

5.

PRIVILEGE LOG REQUIREMENT.

10

While defendants did not file a privilege log with their original production, they have

11 since, pursuant to order, filed a privilege log claiming attorney-client or deliberative-process

12 privilege over 84 documents considered by Secretary Duke but not included in the

13 administrative record (Dkt. Nos. 67; 71-2). Nevertheless, defendants argue that privilege logs

14 are not generally required in connection with an administrative record and that one should not

15 be required here.

16

Our court of appeals has not spoken on the issue. Every court in this district

17 considering the issue, however, has required administrative agencies to provide a privilege log.

18 See, e.g., Ctr. for Food Safety v. Vilsack, No. 15CV01590HSGKAW, 2017 WL 1709318, at *5

19 (N.D. Cal. May 3, 2017) (Magistrate Judge Kandis Westmore) (“[C]ourts in this district have

20 required parties withholding documents on the basis of the deliberative process privilege to, at a

21 minimum, substantiate those claims in a privilege log.”); Inst. for Fisheries Res. v. Burwell, No.

22 16-CV-01574-VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017) (Judge Vince Chhabria);

23 Lockyer, 2006 WL 708914, at *4.

24

25

26

27

7 Although not addressed in the brief or at oral argument, the privilege log referenced personal privacy

and executive privilege objections for certain documents. No substantial privacy interest is implicated in any of
28 the documents ordered to be produced below, nor do any of these documents fall within the executive privilege.

11

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 12 of 14

United States District Court For the Northern District of California

1

“If a privilege applies, the proper strategy isn’t pretending the protected material wasn’t

2 considered, but withholding or redacting the protected material and then logging the privilege.”

3 Inst. for Fisheries Res., 2017 WL 89002 at *1.8

4

Courts outside this district that have determined no privilege log was required have done

5 so on the grounds that the defendants’ judgment of what constitutes the administrative record is

6 entitled to a presumption of correctness. See San Luis & Delta-Mendota Water Auth. v. Jewell,

7 No. 115CV01290LJOGSA, 2016 WL 3543203, at *19 (E.D. Cal. June 23, 2016) (Judge

8 Lawrence O’Neill); Nat’l Ass’n of Chain Drug Stores v. United States Dep't of Health &

9 Human Servs., 631 F. Supp. 2d 23, 27 (D.D.C. 2009). Here, however, that presumption has

10 been overcome by plaintiffs’ showing that defendants failed to include documents considered in

11 arriving at the final decision to rescind DACA in the administrative record. Therefore, even

12 applying those courts’ logic, a privilege log would still be appropriate here.

13

Going forward, defendants shall comply with the standing order in this case and provide

14 a privilege log for all documents withheld on grounds of privilege, which log shall include all

15 authors and recipients of privileged documents, as well as other information set forth in the rule

16 (see Dkt. No. 23 ¶ 18).

17

RELIEF ORDERED

18

Plaintiffs’ motion to complete the administrative record is GRANTED to the extent now

19 stated. Defendants are directed to complete the administrative record by adding to it all emails,

20 letters, memoranda, notes, media items, opinions and other materials directly or indirectly

21 considered in the final agency decision to rescind DACA, to the following extent: (1) all

22 materials actually seen or considered, however briefly, by Acting Secretary Duke in connection

23 with the potential or actual decision to rescind DACA (except as stated in the next paragraph

24 below), (2) all DACA-related materials considered by persons (anywhere in the government)

25 who thereafter provided Acting Secretary Duke with written advice or input regarding the

26
8 In a memorandum opinion, our court of appeals denied a plaintiff’s request to require a privilege log.
27 See Cook Inletkeeper v. EPA, 400 F. App'x 239, 240 (2010). In that decision, however, our court of appeals
first denied a motion to supplement the record, and finding that the plaintiffs had not presented evidence that the
28 agency had considered the documents the plaintiffs sought to compel, only then denied the accompanying
motion for preparation of a privilege log without further explanation.

12

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 13 of 14

United States District Court For the Northern District of California

1 actual or potential rescission of DACA, (3) all DACA-related materials considered by persons

2 (anywhere in the government) who thereafter provided Acting Secretary Duke with verbal input

3 regarding the actual or potential rescission of DACA, (4) all comments and questions

4 propounded by Acting Secretary Duke to advisors or subordinates or others regarding the actual

5 or potential rescission of DACA and their responses, and (5) all materials directly or indirectly

6 considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum

7 not to rescind DACA.

8

The undersigned judge has balanced the deliberative-process privilege factors and

9 determined in camera that the following materials from the government’s in camera

10 submission, listed by tab number, shall be included in the administrative record: 1–6, 7 (only

11 the header and material on pages 3–4 concerning DACA), 12, 14, 17–25, 27–30, 36, 39, 44, 47,

12 49 (only the first paragraph, and the paragraph captioned “General”), 69–70, 73–74, 77, 79, 81,

13 84. The remainder of the in camera submission need not be included.

14

If the government redacts or withholds any material based on deliberative-process, or

15 any other privilege in its next filing, it shall simultaneously lodge full copies of all such

16 materials, indicating by highlighting (or otherwise) the redactions and withholdings together

17 with a log justification for each. The judge will review and rule on each item.

18

Plaintiffs’ insistence that defendants scour the Department of Justice and the White

19 House for documents for inclusion in the administrative record is overruled except to the

20 limited extent that DOJ or White House personnel fall within the category described in the first

21 paragraph above as someone who gave verbal or written input to the Acting Secretary. Nor do

22 defendants have to search for DACA materials below the agency levels indicated in the first

23 paragraph above. These are intended as practical limits on what would otherwise be a bone-

24 crushing expedition to locate needles in haystacks.

25

This order, however, is not intended to limit the scope of discovery (as opposed to the

26 scope of the administrative record). The scope of discovery over and above the administrative

27 record continues to be managed by Magistrate Judge Sallie Kim.

28

13

Case 3:17-cv-05813-WHA Document 12 Filed 10/17/17 Page 14 of 14

United States District Court For the Northern District of California

1

The federal defendants shall file an amended administrative record in conformity with

2 this order by NOON ON OCTOBER 27.

3

If any party plans to seek a writ of mandate and wants a stay pending appellate review,

4 then a fresh motion to that effect must be made very promptly.

5

6

IT IS SO ORDERED.

7

8 Dated: October 17, 2017. 9

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

10

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14

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14

 
 Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 1 of 40

1 JAMES R. WILLIAMS, County Counsel (SBN 271253) GRETA S. HANSEN (SBN 251471)
2 LAURA S. TRICE (SBN 284837) MARCELO QUIÑONES (SBN 279132)
3 HANNAH KIESCHNICK (SBN 319011) OFFICE OF THE COUNTY COUNSEL
4 70 West Hedding Street, East Wing, Ninth Floor San José, California 95110
5 Telephone: (408) 299-5900 Facsimile: (408) 292-7240
6 laura.trice@cco.sccgov.org marcelo.quinones@cco.sccgov.org
7 hannah.kieschnick@cco.sccgov.org

8 Attorneys for Plaintiff County of Santa Clara

9 STACEY M. LEYTON (SBN 203827) ALTSHULER BERZON LLP
10 177 Post St., Suite 300 San Francisco, CA 94108
11 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
12 sleyton@altber.com

13 Attorney for all Plaintiffs

14

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

17 COUNTY OF SANTA CLARA and SERVICE EMPLOYEES INTERNATIONAL UNION
18 LOCAL 521

19

Plaintiffs,

Case No. 3:17-cv-05813-WHA
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20 v.

21 DONALD J. TRUMP, in his official capacity as President of the United States; CHAD F.
22 WOLF, in his official capacity as Acting Secretary of the Department of Homeland
23 Security; U.S. DEPARTMENT OF HOMELAND SECURITY; JOSEPH EDLOW,
24 in his official capacity as Deputy Director of Policy of USCIS; and U.S. CITIZENSHIP AND
25 IMMIGRATION SERVICES,

26

Defendants.

27

28

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 2 of 40

1

INTRODUCTION

2

1. Plaintiffs County of Santa Clara (“County”) and Service Employees International

3 Union Local 521 (“Local 521”), acting in its capacity as the representative of more than 11,000

4 County employees, challenge the unlawful actions of the President of the United States and the

5 federal government related to their attempts to terminate or curtail the Deferred Action for

6 Childhood Arrivals (“DACA”) program.

7

2. Since 2012, DACA has protected from deportation and extended work authorization

8 to more than 800,000 young people who were brought to this country as children through no fault of

9 their own. Under its original terms, the DACA program affords recipients a two-year period of

10 “deferred action,” meaning they are not subject to immigration enforcement actions during that time,

11 and work authorization, allowing them to work legally, report income, and pay taxes.

12

3. The DACA program has been hugely successful. Recipients have been able to come

13 out of the shadows of American life, work legally to support themselves and their families, go to

14 school, pay taxes, and participate more fully in their communities. Their families have benefitted

15 from the higher wages many recipients are able to earn and the stability of knowing that loved ones

16 will not be separated. And the communities in which DACA recipients live—including the County

17 of Santa Clara—have benefitted not only from the taxes paid by recipients as they work legally and

18 report income, but also from DACA recipients’ increased willingness to interact with government

19 institutions, such as by contacting and cooperating with law enforcement and public health officials.

20

4. Despite these extensive benefits, Defendants have sought to rescind or undermine key

21 components of the DACA program for arbitrary and inconsistent reasons.

22

5. On September 5, 2017, Defendants attempted to categorically terminate the DACA

23 program, through a U.S. Department of Homeland Security (“DHS”) Memorandum issued by former

24 Acting Secretary Elaine Duke (“Duke Memorandum”). The Duke Memorandum stated that DHS

25 would not consider any initial DACA applications received after September 5, 2017, and explained

26 that current DACA recipients would no longer be able to renew after October 5, 2017. The Duke

27 Memorandum gave no explanation for rescinding DACA other than that the Attorney General had

28 concluded that the program was unlawful, and gave no indication that the Administration had

2
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Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 3 of 40

1 considered the benefits of the program, changes that could be made to the program to address any

2 unlawful aspects, or the reliance interests of recipients, their families, communities, and employers,

3 before ending it so abruptly.

4

6. In January 2018, this Court entered a preliminary injunction requiring DHS to

5 continue processing renewal applications; the Ninth Circuit affirmed; and ultimately, on June 18,

6 2020, the Supreme Court set aside the Duke Memorandum rescinding DACA as arbitrary and

7 capricious under the Administrative Procedure Act. The Supreme Court also denied the federal

8 government’s then-pending petition for certiorari from a ruling of the U.S. Court of Appeals for the

9 Fourth Circuit, which likewise concluded that the Duke Memorandum was arbitrary and capricious

10 and must be set aside. Shortly thereafter, the Fourth Circuit issued the mandate associated with its

11 ruling.

12

7. Notwithstanding the Supreme Court’s decision and the Fourth Circuit’s mandate,

13 DHS did not return to the status quo ante and restore the DACA program on its original terms.

14 Instead of complying with its legal obligations under the Supreme Court and Fourth Circuit

15 decisions, it “generally held” initial DACA applications starting June 18, 2020, and requests for

16 advance parole starting July 24, 2020, both “in anticipation of potential policy changes” to the

17 program. DHS has represented that it continued to process and grant DACA renewal requests during

18 this period.

19

8. The anticipated policy changes came July 28, 2020, when Defendant Chad Wolf—the

20 purported Acting Secretary of Homeland Security—issued without authority a memorandum (the

21 “Wolf Memorandum”) directing DHS to make immediate “interim” changes to DACA while he

22 considered whether to fully rescind the program. The Wolf Memorandum orders DHS to reject all

23 new initial DACA applications, to reject all advance parole applications absent exceptional

24 circumstances, and to reduce the renewal period for current DACA recipients from two years to one

25 year. The Wolf Memorandum unlawfully applies these changes retroactively to all applications

26 submitted after the Supreme Court’s June 18, 2020 decision.

27

9. Defendant Joseph Edlow, in his purported capacity as Deputy Director of Policy of

28 Defendant United States Citizenship and Immigration Services (“USCIS”), issued a policy directive

3
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Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 4 of 40

1 purporting to implement the Wolf Memorandum (the “Edlow Directive”) and instructing USCIS

2 staff to reject DACA renewal requests received more than 150 days prior to the expiration of the

3 DACA recipients’ current renewal period.

4

10. Defendants’ latest actions to diminish or rescind core components of the DACA

5 program are unlawful and must be set aside, for multiple independent reasons.

6

11. Because Defendant Wolf was, and continues to be, improperly serving in the role of

7 Acting Secretary of Homeland Security in violation of the Federal Vacancies Reform Act of 1998

8 (“FVRA”), 5 U.S.C. § 3341 et seq., and the Homeland Security Act of 2002, 6 U.S.C. § 111 et seq.

9 (“HSA”), he lacked the authority to direct changes to the DACA program or to appoint Defendant

10 Edlow as Deputy Director of Policy of Defendant USCIS. Accordingly, the Wolf Memorandum and

11 the Edlow Directive are void and must be set aside as unlawful under the FVRA and HSA, and as in

12 excess of statutory authority under the Administrative Procedure Act (“APA”), 5 U.S.C.

13 § 702(2)(A). Moreover, even if Defendant Wolf had been lawfully serving under the FVRA and

14 HSA, both his unreasonably long tenure as Acting Secretary and his appointment by another inferior

15 officer violate the Appointments Clause, and the actions he has taken in that role are unlawful.

16

12. In addition, the Wolf Memorandum and the Edlow Directive constitute arbitrary and

17 capricious decision making under the APA. They make immediate, interim changes to DACA based

18 on policy justifications that are not supported by evidence and that are, in any event, untethered to

19 the interim actions taken. And they are based on a concededly incomplete consideration of the

20 relevant factors, including the reliance interests engendered by the program and the harms or legality

21 of applying any interim changes retroactively.

22

13. For these reasons, Plaintiffs ask this Court to declare the Wolf Memorandum and

23 Edlow Directive unlawful and unenforceable, and to enjoin and restrain Defendants from taking

24 further steps to modify the DACA program pursuant to those unlawful actions. The DACA program

25 has worked to the benefit of DACA recipients, their families, their employers, local communities,

26 and American society as a whole. These stakeholders deserve, and the law demands, better.

27

JURISDICTION AND VENUE

28

14. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, and 2201–02,

4
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 5 of 40

1 because this action arises under the Appointments Clause of the U.S. Constitution, U.S. Const. art.

2 II, § 2, cl. 2; the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; the Federal Vacancies

3 Reform Act of 1998, 5 U.S.C. § 3345 et seq.; and the Homeland Security Act of 2002, 6 U.S.C.

4 §§ 112–13. This Court has additional remedial authority under the APA, 5 U.S.C. §§ 701–06.

5

15. There exists an actual and justiciable controversy between Plaintiffs and Defendants

6 requiring resolution by this Court. Plaintiffs have no adequate remedy at law.

7

16. Venue is proper in the Northern District of California. Plaintiff County of Santa Clara

8 is a public entity in this judicial district and a substantial part of the events or omissions giving rise to

9 this action have occurred or will occur in this District. 28 U.S.C. §§ 1391(b)(2), 1391(e)(1).

10 Plaintiff Local 521 is located in the Northern District of California and many of its members, on

11 whose behalf it brings this lawsuit, reside and are employed within the Northern District of

12 California. This is a civil action in which Defendants are agencies of the United States or officers

13 thereof and no real property is involved in this action.

14

PARTIES

15

17. Plaintiff County of Santa Clara is a charter county organized and existing under the

16 laws of the State of California. With an estimated population of more than 1.9 million people, Santa

17 Clara County is the largest county in the Bay Area and the sixth largest county in California. As a

18 county of immigrants, the County has especially benefited from DACA and is especially harmed by

19 the “interim” changes to the program. Thirty-eight percent of Santa Clara County residents are

20 foreign born, and approximately sixty percent of children in the County have at least one parent who

21 is foreign born. Santa Clara County has the highest percentage of foreign-born residents of all

22 counties in California. More than half of County residents speak a language other than English at

23 home, and more than 100 languages and dialects are spoken within the County.

24

18. The County is the level of government tasked with provision of core safety-net

25 services to this diverse community. It employs a workforce of more than 23,000 and must ensure

26 that this workforce possesses the skills necessary to effectively serve this community. The County

27 employs DACA recipients in key positions throughout the organization, providing upward mobility

28 to young people who deserve the opportunity to serve their communities through the public sector,

5
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1 and leveraging the unique experience and skills these employees bring to the County government.

2

19. Plaintiff Service Employees International Union Local 521 is a labor union that

3 represents approximately 40,000 public- and private-sector workers in the Bay Area and California’s

4 Central Valley, including more than 11,000 who are employed by the County of Santa Clara. Local

5 521 is an affiliate of the Service Employees International Union (“SEIU”), which represents 2.2

6 million working men and women around the world. A large percentage of Local 521’s membership

7 is Latino and many are first-generation immigrants. The primary mission of Local 521 is to

8 organize, represent, and empower employees.

9

20. In addition, Local 521 works in partnership with SEIU and other groups to combat

10 discrimination and mobilize for immigration reform at the national level. Local 521’s efforts include

11 its Committee on Comprehensive Immigration Reform, a member-based committee that engages in

12 organizing, advocacy, and education to help undocumented workers. Local 521 has conducted

13 “know your rights” information sessions and workshops, engaged in legislative advocacy on

14 immigration-related bills at the state level, held community forums on DACA and Deferred Action

15 for Parents of Americans and Lawful Permanent Residents in conjunction with the California

16 Attorney General, and participated as an amicus in litigation brought by the County of Santa Clara

17 and others challenging the Trump administration’s threat to cut off federal funding to sanctuary

18 cities and counties. Local 521 has members who are DACA recipients, including members who

19 work for the County of Santa Clara. These members are able to work and, thus, to be Local 521

20 members, because of the work authorization they obtain through the DACA program. These

21 members would be unable to work should their deferred action and work authorization lapse due to

22 the shortened renewal period. In addition, Local 521 members have children, siblings, and other

23 relatives who would have been eligible to apply for DACA between the time that Defendants

24 terminated accepting DACA applications in September 2017 and the present, and who would have

25 applied for DACA or would now apply for DACA but for Defendants’ unlawful actions.

26

21. Local 521 brings this action as an associational plaintiff on behalf of its members who

27 are DACA recipients, asserting claims on behalf of those members. Local 521 also brings this

28 lawsuit to protect the rights and interests of its members and prospective members, to preserve its

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1 ability to organize new members who are DACA recipients, and to preserve its representational

2 relationship with current DACA recipients.

3

22. Defendant Donald J. Trump is the President of the United States. President Trump

4 made the decisions to rescind the DACA program and is sued in his official capacity.

5

23. Defendant Chad F. Wolf is the purported Acting Secretary of Homeland Security.

6 The Acting Secretary is responsible for managing DHS, and oversees the United States Citizenship

7 and Immigration Service (“USCIS”) and the Immigration and Customs Enforcement (“ICE”). The

8 Acting Secretary’s responsibilities include the administration and enforcement of policies and

9 practices related to immigration, including the DACA program. Defendant Wolf is sued in his

10 official capacity.

11

24. Defendant Department of Homeland Security (“DHS”) is a federal agency

12 responsible for implementing, administering, and enforcing the nation’s immigration laws and

13 policies, including the DACA program. DHS is a Department of the Executive Branch and is an

14 agency within the meaning of 5 U.S.C. § 552(f)(1).

15

25. Defendant Joseph Edlow is serving as the Deputy Director of Policy of USCIS.

16 Defendant Wolf purported to appoint Defendant Edlow as Deputy Director of USCIS on February

17 19, 2020, and addressed his July 28, 2020 Memorandum to Defendant Edlow, among others.

18 Defendant Edlow issued the challenged Edlow Directive in his purported capacity as USCIS Deputy

19 Director of Policy. He is sued in his official capacity.

20

26. Defendant USCIS is a component of DHS, 6 U.S.C. § 271, and an agency within the

21 meaning of 5 U.S.C. § 551(1). USCIS is the agency responsible for processing and adjudicating

22 DACA applications.

23

FACTUAL BACKGROUND

24 The DACA Program

25

27. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a

26 memorandum establishing the DACA program. According to the memorandum, the purpose of the

27 program was to appropriately allocate resources to individuals who were higher priorities for

28 immigration enforcement. In addition, the memorandum recognized that it made little sense to

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1 punish individuals who were brought to the United States as children, through no fault of their own,

2 and who had proven themselves to be trustworthy, contributing members of their communities.

3 Finally, DACA was intended to generate wide-reaching benefits that would accrue to recipients,

4 their families, and their communities, as undocumented individuals would be permitted to live and

5 work without the ever-present threat of deportation.

6

28. DACA allows people who were brought to the United States as children and who

7 meet certain criteria to apply for temporary deferral of deportation (“deferred action”) and for work

8 authorization. According to USCIS, as of March 31, 2017, approximately 800,000 young people

9 had been granted deferred action under DACA in the five years the program had been in place. As

10 of March 31, 2020, there were 639,850 current DACA recipients. There are currently an estimated

11 1,326,000 individuals who would be eligible to apply for DACA under the program’s original terms.

12 Of those, an estimated 56,000 individuals became eligible for DACA since Defendants’ unlawful

13 rescission in 2017.

14

29. Under the DACA program’s original terms, applicants are eligible for deferred action

15 under DACA only if they: (i) were under the age of 31 on June 15, 2012; (ii) were brought to the

16 United States before their 16th birthday; (iii) have continuously resided in the United States since

17 June 15, 2007; (iv) were physically present in the United States on June 15, 2012, and at the time

18 they made their DACA application; (v) did not have lawful immigration status on June 15, 2012; (vi)

19 are currently in school, have graduated or obtained a GED, or were honorably discharged from the

20 United States military or Coast Guard; and (vii) have not been convicted of a felony, significant

21 misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public

22 safety.

23

30. To apply for deferred action under DACA, applicants were required to pay a

24 substantial fee of $495, submit a detailed application, and submit to a background check and any

25 other screening that DHS deems necessary.

26

31. Pursuant to the program’s original terms, deferred action and related work

27 authorizations were granted for two-year periods. From the time DACA was first implemented,

28 applicants were told that they would have the opportunity to apply for renewal of deferred action and

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1 were given detailed instructions for doing so. In particular, recipients were instructed that they

2 should apply for renewal approximately 120 days (but no more than 150 days) before the expiration

3 of their two-year period. Recipients were told that they would be eligible for renewal if they met the

4 requirements for an initial DACA application and also: (i) had not departed the United States on or

5 after June 15, 2007; (ii) had continuously resided in the United States since submission of their most

6 recent DACA application; and (iii) had not in the interim been convicted of a disqualifying crime or

7 otherwise posed a threat to national security or public safety. The opportunity to renew is a crucial

8 aspect of the DACA program. There is little reason for eligible individuals to run the risk of

9 identifying their immigration status for a temporary benefit, and there is little reason for employers

10 such as the County to take the time and resources to hire and train DACA recipients who have

11 received work authorization unless there is some assurance that those individuals will be eligible to

12 renew that authorization.

13

32. Defendants solicited extensive information from applicants for DACA, including

14 names, addresses, birthdates, country of origin, and educational and criminal history. By issuing an

15 open invitation to apply for DACA, the government asked undocumented immigrants to take a leap

16 of faith and identify themselves and, indirectly, their families to the federal government and

17 acknowledge their undocumented status. To assuage fears about disclosing this and other sensitive

18 information, Defendants expressly promised that the information provided by DACA applicants

19 would not be used against them or their families for immigration enforcement purposes, except in

20 narrow, specified circumstances that would not normally apply to individuals eligible for DACA.

21

33. The DACA program has been tremendously successful, creating much-needed

22 stability for DACA recipients, their families, and their communities, and resulting in extensive

23 benefits to all of these groups. Under DACA, law-abiding, long-term U.S. residents who lack legal

24 immigration status have access to better jobs and improved working conditions. Because

25 undocumented immigrants who lack work authorization must seek jobs that minimize their risk of

26 being identified and deported, they often do not work in jobs that best fit their education, skills, and

27 abilities, or those that would maximize their earning potential. See Patrick Oakford, Center for

28 American Progress, Administrative Action on Immigration Reform, The Fiscal Benefits of

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1 Temporary Work Permits, at 6 (September 2014), available at https://tinyurl.com/y24q7msf (last

2 visited Nov. 2, 2020). Making workers eligible to apply for deferred action and work permits allows

3 them greater occupational mobility, enabling them to seek out a wider range of potential career

4 opportunities. Moreover, “[t]he interaction between our broken immigration system and

5 employment and labor laws have made undocumented workers more susceptible to exploitation in

6 the workplace, leading them to earn lower wages than they otherwise could.” Id. at 5. Eliminating

7 the fear of retaliatory reporting of immigration violations and potential deportation allows these

8 workers to better protect their own workplace rights and those of their co-workers, leading to higher

9 real wages and fewer violations of employment and labor laws and regulations.

10

34. Those who have received deferred action under DACA and related work

11 authorization enjoy increased earning potential, producing a positive multiplier effect on local

12 economies. Fiscal Policy Institute, President’s Immigration Action Expected to Benefit Economy

13 (Nov. 21, 2014), available at http://bit.ly/1FbnS7q (last visited Nov. 2, 2020) (estimating that wages

14 for those eligible for work authorization will increase by five to 10 percent); Oakford, Administrative

15 Action on Immigration Reform, The Fiscal Benefits of Temporary Work Permits, at 3 (“Temporary

16 work permits would increase the earnings of undocumented immigrants by about 8.5 percent as they

17 are able to work legally and find jobs that match their skills.”). Indeed, the upward mobility

18 afforded by DACA is apparent from the results of a national survey of 1,402 young adults who were

19 approved for DACA through June 2013:

20

Since receiving DACA, young adult immigrants have become more integrated

into the nation’s economic institutions. Approximately 61% of DACA recipients

21

surveyed have obtained a new job since receiving DACA. Meanwhile, over half

22

have opened their first bank account, and 38% have obtained their first credit card.

23 Roberto G. Gonzales and Veronica Terriquez, American Immigration Council, How DACA is
24 Impacting the Lives of Those who are now DACAmented: Preliminary Findings from the National
25 UnDACAmented Research Project (Aug. 15, 2013), available at https://tinyurl.com/yykybgnx (last
26 visited Nov. 2, 2020). In short, DACA created significant economic benefits for qualifying
27 individuals and for the nation at large by permitting greater levels of contribution to the workforce
28

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1 by educated individuals who previously had limited employment opportunities.

2 The County’s Employment Relationship with DACA Recipients

3

35. The County is one of the largest employers in the region, with more than 23,000

4 employees performing a vast array of functions to meet the needs of this diverse community. One of

5 the main ways in which the County has benefited from the DACA program is through its

6 employment relationships with DACA recipients. In particular, the County currently employs

7 DACA recipients as full-time employees. The County has expended significant resources, both time

8 and money, in recruiting, hiring, and training these employees and relies on them to provide County

9 services. Because DACA recipients are under no obligation to identify themselves as such when

10 they apply for a job, and they present the same form of work authorization card as other categories

11 of immigrants, the County cannot determine with certainty the total number of DACA recipients it

12 employs.

13

36. As one example, DACA recipients are employed through the County’s In-Home

14 Supportive Services (“IHSS”) program, which provides in-home care in the form of assistance with

15 activities of daily living, to eligible aged, blind, and disabled individuals who would otherwise be

16 unable to remain safely in their own homes. The County’s IHSS program is funded through a

17 combination of federal, state, and county funds, and provides services to over 22,000 IHSS

18 beneficiaries in Santa Clara County.

19

37. The County also currently employs at least three DACA recipients who are alumni of

20 the County’s New Americans Fellowship Program. This program provides a summer career

21 development opportunity for DACA recipients in order to develop valuable professional skills and

22 serve as ambassadors to the County of Santa Clara community. The program is also intended to

23 introduce DACA recipients to various aspects of local government work, and to provide

24 opportunities for participants to gain the experience and skills necessary to ultimately work for local

25 governments like the County. Fellows receive a stipend and commit to working at least 20 hours per

26 week, for a period of no less than 10 weeks, on a project-based fellowship under the supervision of a

27 County Department, the County Office of Immigrant Relations, or a Member of the Board of

28 Supervisors’ Office. The fellowship culminates in a final research project and presentation.

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1 Examples of the types of projects on which fellows work include improving the relationships

2 between law enforcement and the immigrant community, and launching a countywide campaign to

3 promote financial literacy among immigrants and refugees.

4

38. The County began the New Americans Fellowship Program in July 2017. The

5 County has hosted 49 fellows over the past four summers. Fourteen DACA recipients participated in

6 the fourth annual New Americans Fellowship Program, which began in June 2020. Final research

7 projects for the 2020 Program included “Immigrant Students’ Access to K-12 Education During

8 COVID-19,” “COVID-19 Impacts on Immigrant Community,” and “Culturally Competent Services

9 Provided to Immigrant Clients in Pre-Trial Process.” Three Program alumni who currently work for

10 the County assisted with the 2020 Program by, for example, hosting fellows at their County

11 Department sites and/or co-hosting workshops and events for the fellows.

12

39. DACA recipients have special skills that make them especially valuable employees of

13 the County. For example, over ninety-five percent of DACA recipients are bilingual. The County

14 values this skill because it must employ a workforce that is able to meet residents’ language needs to

15 ensure meaningful access to County services, programs, and benefits. See County of Santa Clara,

16 Board Policy 3.58. Indeed, forty-five percent of clients currently receiving health, financial, or

17 employment assistance through the County Department of Employment and Benefit Services speak a

18 primary language other than English. Santa Clara Valley Medical Center, a public hospital owned

19 and operated by the County, is required by law to provide qualified interpreters to limited-English-

20 proficient individuals and relies on medical interpreters to satisfy that requirement. It frequently

21 takes months to fill interpreter vacancies for the County’s hospital and clinics, and the County has

22 had difficulty filling several open positions. For example, it recently took Language Services for the

23 Santa Clara Health System ten months to complete the hiring process for a qualified interpreter.

24

40. If the DACA recipients currently employed by the County were to lose their work

25 authorization, these valued employees would be unable to work for the County or, indeed, to work in

26 any legal capacity for any employer, public or private, within Santa Clara County or the United

27 States. The County would be forced to expend significant resources to temporarily cover those

28 employees’ responsibilities, conduct searches for replacements, and train new employees. On

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1 average, it takes the County nearly three months to fill a vacancy. Nearly all County employees,

2 including Local 521 members, are covered by merit system rules and collective bargaining

3 agreements that protect them against arbitrary dismissal and other adverse employment actions, and

4 that include anti-discrimination provisions. Despite these protections, County employment is

5 contingent on valid work authorization.

6 Reliance on the DACA Program and the Federal Government’s Representations

7

41. Trusting the federal government’s representations about the program, hundreds of

8 thousands of young people from across the country have applied for and received deferred action

9 under DACA since the program was initiated in 2012. The DACA program has changed the lives of

10 DACA recipients. Prior to DACA, many law-abiding undocumented young people saw little

11 purpose to completing higher education because they would be unable to work legally upon

12 graduation. DACA gave them the ability to attend college, work to earn money to pay for higher

13 education, and to utilize their degrees to attain high-skilled and higher-paid jobs. It also gave them

14 access to health care, medical benefits, credit, and the opportunity to become more integrated into

15 their communities. DACA gave these young people hope that a better life was possible, and allowed

16 them to emerge from the shadows of society to serve their communities, including through work for

17 government agencies like the County of Santa Clara.

18

42. Loss of DACA and work authorization would be devastating for County workers who

19 depend on the DACA program to maintain employment, health insurance, and other benefits.

20 Indeed, several County employees who are DACA recipients desired to join as individual plaintiffs

21 in this litigation, but ultimately chose not to come forward out of fear that Defendants would

22 retaliate against them or their families.

23

43. Shortening the renewal period from two years to one year will also result in a

24 significant reduction in the number of DACA recipients who are able to renew and thus maintain

25 both deferred action and work authorization. As detailed in a recent survey of 1,760 DACA

26 recipients conducted by the Presidents’ Alliance on Higher Education and Immigration and

27 TheDream.US, 62% of current DACA recipients surveyed responded that a one-year grant period

28 would constitute “a substantial barrier” to renewal. Lora Adams et al., Discouraging and Denying

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1 Renewals, THEDREAM.US, PRESIDENTS’ ALLIANCE ON HIGHER EDUCATION AND IMMIGRATION (Sept.

2 29, 2020) at 4. Survey respondents cited as one barrier the increased legal fees and application fees

3 associated with filing for renewal twice as often. Id. at 4–5. Administrative backlog may also

4 interfere with DACA recipients’ ability to timely renew. For example, the survey found that eleven

5 percent of respondents received approval for their DACA renewal more than 150 days after they

6 applied. Id. at 5. And USCIS currently estimates processing times for DACA applications and

7 renewals to range from eight to eleven months at certain service centers. Id. But DACA recipients

8 cannot try to avoid a lapse in work authorization by applying even earlier because the Edlow

9 Directive requires DHS staff to “generally reject DACA renewal requests received more than 150

10 days prior to the expiration of the DACA recipient’s current DACA validity period.” This Catch-22

11 means that many DACA recipients may regularly experience lapses even if they timely apply,

12 leading to at least a temporary a loss of work authorization.

13

44. The County has also relied on the government’s representations concerning the

14 DACA program. The County has expended significant time and financial resources in recruiting,

15 hiring, and training DACA recipients for various positions in County. Those employees carry out

16 important functions in County government and make significant contributions in providing services

17 to County residents. Shortening the renewal period under DACA from two years to one year will

18 harm the County in at least four ways.

19

45. First, halving the work authorization period to one year threatens the significant

20 investments in recruiting, hiring, and training of DACA recipients that the County have made. And

21 unfortunately, employers like the County have less incentive to take the time and effort to train

22 employees with shorter-term work authorizations, particularly if there is a possibility that some of

23 those authorizations may lapse despite employees’ best efforts to timely renew.

24

46. Second, the shorter renewal period also imposes additional administrative burdens on

25 the Employee Benefits Department of the Santa Clara County Services Agency. The Employee

26 Benefits Department verifies employee I-9 Forms and work authorizations, tracks the expiration

27 dates of all employees’ work authorizations, and follows up with employees to ensure the County

28 has active work authorizations on file. Shortening the renewal period for DACA means that the

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1 Employee Benefits Department will have to more frequently follow up with employees regarding

2 expiring work authorizations and more frequently process and verify I-9 Forms and update the

3 corresponding employee files.

4

47. Third, because the halved renewal period will likely result in more lapses in deferred

5 action under DACA and loss of work authorizations, the Employee Benefits Department will need to

6 process more termination paperwork when former DACA recipients separate from the County and,

7 in turn, more new-hire paperwork when those employees are eventually replaced.

8

48. Fourth, County Agencies and Departments may also incur the administrative burden

9 of terminating the employment of individuals whose work authorizations expire and in turn expend

10 resources in recruiting, hiring, and training their replacements.

11 Other Benefits to the County from the DACA Program

12

49. Santa Clara County is home to Silicon Valley, where many of the country’s leading

13 high-tech and Internet-based companies are located. Technology companies based in the County,

14 including Apple and Google, employ tens of thousands of workers. Similarly, health care providers,

15 including Kaiser Permanente, Stanford Hospital and Clinics, and the County’s own hospitals and

16 clinics, employ additional tens of thousands. Many of these organizations employ DACA recipients.

17 For example, Tim Cook, CEO of Apple, noted in 2017 that 250 Apple employees are “Dreamers,” or

18 DACA recipients. In 2019, Mr. Cook announced that that number had increased to 443 DACA

19 recipients. Silicon Valley has long been reliant on the contributions of immigrants. One study noted

20 that immigrants launched a quarter of all engineering and technology companies in the United States

21 from 1995 to 2005, Vivek Wadhwa et al., America’s New Immigrant Entrepreneurs: Part I, Duke

22 Science, Tech. & Innovation Paper No. 23 (Jan. 4, 2007), available at

23 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=990152## (last visited Nov. 2, 2020), and over

24 half of Silicon Valley start-ups in the same period count at least one immigrant as a key founder,

25 Richard T. Herman, IMMIGRANT, INC.: WHY IMMIGRANT ENTREPRENEURS ARE DRIVING THE NEW

26 ECONOMY (AND HOW THEY WILL SAVE THE AMERICAN WORKER) 5 (2009).

27

50. In 2016, the Migration Policy Institute (MPI) estimated that there were 23,000

28 DACA-eligible individuals in Santa Clara County, including 15,000 who were immediately eligible.

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1 MPI, Deferred Action for Childhood Arrivals Data Tools, available at

2 http://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles

3 (last visited Nov. 2, 2020). According to MPI’s estimates, Santa Clara County has the twelfth

4 largest DACA-eligible population among counties nationwide, and the largest DACA-eligible

5 population of all northern California counties. MPI, National and County Estimates of Populations

6 Eligible for Deferred Action for Childhood Arrivals Program, 2016, available at:

7 http://www.migrationpolicy.org/sites/default/files/datahub/State-County-DACA-Estimates.xlsx (last

8 visited Nov. 2, 2020).

9

51. In September 2017, ninety-one percent of DACA recipients were employed. John W.

10 Schoen, DACA Deportations Could Cost US Economy More than $400 Billion, CNBC.com (Sept. 5,

11 2017), available at https://tinyurl.com/y7xnpfpg (last visited Nov. 2, 2020). It is estimated that if

12 DACA recipients lose the ability to work legally, California alone would suffer a GDP loss of

13 approximately $11.3 billion a year. Id. As one of the counties with the largest number of DACA

14 recipients, much of this negative economic effect will be felt in Santa Clara County.

15

52. Moreover, because they are able to work legally, DACA recipients are employed in

16 more highly compensated jobs and contribute more in state and local taxes than they would without

17 DACA. One 2017 study estimated that the 1.3 million young people immediately eligible for

18 DACA contribute $2 billion a year in state and local taxes. Institute on Taxation and Economic

19 Policy, State & Local Tax Contributions of Young Undocumented Immigrants (Apr. 25, 2017),

20 available at https://tinyurl.com/y7ohqagb (last visited Nov. 2, 2020). Indeed, “DACA-eligible

21 individuals pay on average 8.9 percent of their income in state and local taxes. Their effective tax

22 rate is higher than the average rate paid by the top 1% of taxpayers in state and local taxes . . . .” Id.

23 “Repealing the temporary legal status and work authorizations permitted by DACA would reduce

24 estimated state and local revenues by nearly $800 million . . . .” Id. The same study estimated that

25 DACA eligible individuals contribute more than $530 million in state and local taxes in California

26 alone and, because Santa Clara County has a large number of DACA-eligible residents, the County

27 stands to lose significant tax revenue because of the “interim” modifications to DACA.

28

53. In addition to its broad negative effects on the County’s economy and fisc, the

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1 “interim” modifications to DACA will make it more difficult and expensive for the County to

2 provide services to its residents. It is all the more critical that the County be able to provide key

3 services, such as health care and public health services, to all residents during the current COVID-19

4 pandemic. For example, DACA recipients who do not have employer-sponsored insurance and who

5 satisfy income-eligibility requirements qualify for “full-scope” coverage under Medi-Cal,

6 California’s Medicaid program. Through Medi-Cal, DACA recipients receive coverage for a core

7 set of health benefits, including preventative care, doctor’s visits, immunizations, prescriptions, and

8 mental health and substance abuse services. If these individuals lose deferred action, many of them

9 will be eligible only for very limited Medi-Cal coverage of emergency and pregnancy-related

10 services, increasing their reliance on other safety-net health care services provided by the County.

11

54. The County operates the County of Santa Clara Health System, which is the only

12 public safety-net health care provider in Santa Clara County and the second largest such provider in

13 the State of California. The Health System includes, among other things, the Santa Clara Valley

14 Medical Center (“SCVMC”), a Level I trauma hospital; O’Connor Hospital; St. Louise Hospital; and

15 a network of clinics—all of which provide critical health care services to poor and uninsured County

16 residents. Payments from these patients and from public insurance programs such as Medi-Cal do

17 not cover the costs of services they receive through the County Health System. As a result, each

18 year the County provides a substantial subsidy to cover deficits incurred in serving the Health

19 System’s patients. During the first three quarters of Fiscal Year 2017, SCVMC operated at a deficit

20 of well over $90 million. During Fiscal Year 2020, the Health System required over $198 million in

21 County General Fund subsidy to maintain operations for that year. Restriction of the DACA

22 program will negatively affect the County Health System, and likely increase its operational deficit.

23 Because DACA recipients who are now employed pursuant to work authorization granted under the

24 program may lose their work authorization and their jobs as well as their employer-sponsored health

25 insurance, former DACA recipients, and family members who were covered by the recipient’s

26 insurance, are more likely to fall back on safety-net providers like the Health System. Additionally,

27 lacking employer-sponsored health insurance, potentially unable to access full-scope Medi-Cal, and

28 burdened with a fear of detention and deportation, these individuals are less likely to obtain regular

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1 check-ups and routine, preventative care. As a result, they will be more likely to seek medical care

2 only when health problems worsen—often at the Health System’s Emergency Departments—at

3 which point care becomes more difficult and more expensive. Gutting key components of the

4 DACA program—such as accepting new applications and granting a two-year renewal period—will

5 increase the County’s costs in subsidizing free and below-cost care through its Health System.

6

55. In addition to health care, the County provides (and is often required to provide)

7 many other services to community members regardless of immigration status, and it will become

8 more difficult to provide these services to DACA recipients if they lose deferred action because of

9 their renewed hesitancy to interact with the government for fear of detention and deportation. At the

10 same time, it will be even more critical for individuals who lose DACA to access County services—

11 and the County will need to spend more to support them—because the same individuals will be

12 losing work authorization and, thus, the ability to work legally to support themselves and their

13 families.

14

56. For example, the County invests significant resources in programs to provide housing

15 to the homeless and to prevent homelessness. In Fiscal Year 2015, the County allocated over $73.8

16 million in resources to housing and related services countywide and, in 2015, the Board of

17 Supervisors approved increasing these expenditures by a total of $33.9 million over Fiscal Years

18 2016–2018. For Fiscal Year 2021, the County allocated to housing and related services $316.4

19 million, including $116.2 million from an affordable housing bond. In addition to providing housing

20 to homeless individuals and families who utilize other County services, the County also funds

21 homelessness prevention and emergency housing programs, including homeless shelters, a cold

22 weather shelter program, interim housing for the chronically homeless, and 24-hour care shelter

23 placements. DACA recipients are less likely to rely on these County and/or other services because

24 they can work legally and provide for their families. If DACA recipients are no longer able to work

25 legally, they may be more likely to rely on County and/or other services. And individuals who

26 would have been eligible to apply for DACA and receive work authorization but for the Wolf

27 Memorandum’s “interim” modifications likewise may more be more likely to rely on these services.

28

57. The DACA program also reduces reliance on the County’s safety-net services by

18
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1 keeping families together. Twenty-five percent of DACA recipients have at least one U.S.-born

2 child. Dara Lind, 9 facts that explain DACA, the immigration program Trump is threatening to end,

3 Vox.com (Sept. 5, 2017), available at https://tinyurl.com/y8eweo2h (last visited Nov. 2, 2020). If

4 these parents are subject to deportation without DACA, some of their U.S. citizen children may enter

5 the foster care system. The County provides financial support to foster parents to meet the basic

6 needs of foster youth placed in their care. In the 2017 Fiscal Year, the County invested $25 million

7 in foster care youth, and the Wolf Memorandum’s limitations on the DACA program could bring

8 more young people into the system, increasing costs and placing greater strains on County resources.

9

58. Modifying key components of the DACA program, even on an “interim” basis, would

10 also hinder the County’s ability to protect the public health and the safety of its residents. The

11 County’s Public Health Department (“PHD”) runs numerous programs that protect the health not

12 only of the individual served, but of the wider community. PHD provides immunization clinics,

13 tuberculosis testing, STD testing, COVID-19 testing, and other services that prevent the spread of

14 communicable diseases. DACA has improved PHD’s ability to provide these critical services to

15 immigrant communities by alleviating the fear of deportation that often prevents undocumented

16 immigrants from seeking government services.

17

59. Trust between immigrant communities and public health officials is especially critical

18 during the current COVID-19 pandemic. Crowded and multi-generation housing, employment as

19 essential workers, and hesitancy to seek government services can contribute to high rates of COVID-

20 19 transmission among immigrant communities in the County. PHD has partnered with numerous

21 community organizations in the County to build trust with immigrant populations and ensure access

22 to COVID-19 testing and other critical services during the pandemic. For example, contact tracing

23 is a key public health program that helps slow the spread of infectious disease like COVID-19. PHD

24 workers and other government employees serving as contact tracers will interview someone who

25 tests positive for COVID-19 in order to determine who they have recently been in contact with and

26 notify those contacts that they may have been exposed, should get tested for COVID-19, and then

27 isolate themselves for a period of time. Contact tracers must gain the trust of whomever they

28 interview because they may ask for personal information like name, age, address, contact

19
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1 information, places the person recently visited, and people the person recently spent time with.

2 Because participation in contact tracing efforts is voluntary, it is imperative that immigrant

3 communities trust the public health workers, including those from PHD.

4

60. If DACA recipients lose deferred action, they—and their U.S. citizen children—may

5 be less likely to receive necessary immunizations and testing or participate in key public health

6 measures, such as contact tracing, during the COVID-19 pandemic, thereby increasing health risks

7 for the community as a whole. And individuals who would have been eligible to apply for DACA

8 but for the Wolf Memorandum’s unlawful “interim” modifications likewise may be less likely to risk

9 revealing their lack of immigration status and receive necessary services from PHD.

10

61. For similar reasons, DACA has had a positive effect on the relationship between

11 immigrant communities and local law enforcement. Because of a justified fear of detention and

12 deportation, undocumented individuals are often hesitant to contact law enforcement even when they

13 are victims of crimes. By providing an assurance that they are protected from immigration

14 enforcement actions, DACA has permitted recipients to be more willing to report crimes, act as

15 witnesses, and otherwise cooperate with local law enforcement, as well as with other emergency

16 services and first responders. This improved relationship is invaluable not just to DACA recipients

17 themselves, but also to their communities and the County

18

62. DACA has had a similar effect on the County’s Code Enforcement Division, which

19 enforces zoning and building ordinances to ensure safe living conditions for Santa Clara County

20 residents. The County has received reports that some tenants are reluctant to come forward with

21 reports of code violations because landlords have threatened to report immigrants to ICE. DACA

22 substantially reduces that threat, thereby helping the County ensure that unsafe or unsanitary housing

23 conditions are abated for the safety and benefit of the entire community.

24

63. DACA’s benefits to the County are also evidenced by the County’s willingness to

25 invest in DACA recipients.

26

64. The County has allocated on an annual basis at least $200,000 to the New Americans

27 Fellowship Program, described above.

28

65. In addition, in Fiscal Year 2017, the County allocated $200,000 for outreach and

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1 education concerning the DACA program, to ensure that eligible County residents know of and have

2 support necessary to apply for DACA. In Fiscal Year 2019, the County allocated another $200,000

3 to five agencies that specifically provide DACA-related services.

4

66. The County has invested in DACA recipients beyond these annual allocations. For

5 example, just after Defendants announced that DACA would be rescinded in 2017, the County

6 allocated an additional $200,000 from its emergency reserve to establish an emergency program to

7 help DACA recipients submit renewal applications before the Administration’s arbitrary October 5,

8 2017 deadline. Using these funds, a total of 453 DACA recipients received scholarship grants in

9 order to pay their renewal application fees. The County has continued this financial support for

10 renewal applications, executing in 2019 a $200,000 grant agreement with the Santa Clara County

11 DACA Collaborative to administer funding for DACA scholarships to pay for renewal application

12 fees. Between January and May 2020, this County funding supported 405 scholarships to pay the

13 $495 renewal application fee for 405 low-income DACA recipients, including some who lost their

14 employment as a result of the COVID-19 pandemic. In Fiscal Year 2020, County funding also

15 supported the provision of free legal services for 916 DACA recipients who were able to apply for

16 and receive DACA renewal. With renewals occurring each year instead of every two, demand for

17 these types of assistance will only increase.

18

67. In light of the many ways that the County has benefited from the DACA program, on

19 August 15, 2017, the County’s Board of Supervisors unanimously adopted a resolution affirming its

20 support for the DACA program and its commitment to immigrant youth and young adults.

21 The Administration’s 2017 Attempt to Rescind the DACA Program

22

68. On September 5, 2017—more than five years after DHS encouraged individuals to

23 come out of the shadows and apply for DACA, and despite the program’s success—then-Acting

24 Secretary Elaine Duke issued a memorandum formally rescinding DACA (“Duke Memorandum”).

25 The Duke Memorandum stated that DHS would not consider any initial DACA applications received

26 after September 5, 2017. As for then-current DACA recipients, the Duke Memorandum stated that

27 DHS would adjudicate pending renewal requests properly filed and accepted by DHS as of

28 September 5, 2017, and renewal requests properly filed and accepted by DHS by October 5, 2017

21
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1 from individuals whose DACA benefits would expire between September 5, 2017 and March 5,

2 2018. All other DACA renewal requests, including any requests received after October 5, 2017,

3 would be rejected.

4

69. Former Acting Secretary Duke’s memorandum did not explain the Administration’s

5 reasons for departing from prior agency statements regarding the DACA program and rescinding the

6 program. In its single explanatory paragraph, the Duke Memorandum gave no indication that DHS

7 had considered the benefits of the program, or the reliance interests of DACA recipients, their

8 families, communities, or employers, before abruptly ending it. Rather, it simply referred to the

9 then-Attorney General’s conclusion that the DACA program was unlawful, explaining that the Fifth

10 Circuit had held different programs (Deferred Action for the Parents of Americans and Lawful

11 Permanent Residents (“DAPA”) and an expansion of the DACA) to be unlawful, and that this

12 decision had been affirmed by an equally divided Supreme Court. The Duke Memorandum cited a

13 September 4, 2017 letter from the then-Attorney General, which provided no legal analysis

14 whatsoever and simply concluded that “it is likely that potentially imminent litigation would yield

15 similar results with respect to DACA.” The Duke Memorandum also did not indicate that the Acting

16 Secretary had given any consideration to measures that would have addressed the Attorney

17 General’s legal concerns without completely rescinding the program.

18

70. Pursuant to the Duke Memorandum, the federal government announced that it would

19 limit renewals for those DACA recipients whose benefits were set to expire before March 5, 2018,

20 provided they applied for renewal by October 5, 2017. DHS immediately stopped accepting all new

21 applications under DACA.

22

71. In January 2018, this Court entered a preliminary injunction requiring DHS to

23 continue processing renewal applications. See Regents of the Univ. of Cal. v. U.S. Dep’t of

24 Homeland Sec. (“Regents I”), 279 F. Supp. 3d 1011 (N.D. Cal. 2018). The U.S. Court of Appeals

25 for the Ninth Circuit affirmed this Court’s preliminary injunction in November 2018. See Regents of

26 the Univ. of Cal. U.S. Dep’t of Homeland Sec. (“Regents II”), 908 F.3d 476 (9th Cir. 2018). The

27 federal government petitioned for certiorari, and the Supreme Court granted that petition along with

28 the federal government’s petitions for certiorari in parallel litigation in the U.S. District Court for the

22
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1 District of Columbia and the U.S. District Court for the Eastern District of New York.

2

72. On June 18, 2020, the Supreme Court held that the Duke Memorandum rescinding

3 DACA was unlawful, arbitrary, and capricious under the Administrative Procedure Act. See Dep’t

4 of Homeland Sec. v. Regents of the Univ. of Cal. (“Regents III”), 140 S. Ct. 1891 (2020). The

5 Supreme Court concluded that the Duke Memorandum had failed to address the reliance interests of

6 DACA recipients, their communities, and their employers, id. at 1915–16, and had failed to

7 adequately consider or explain the decision to terminate the deferred action aspect of the DACA

8 program rather than only the program’s work authorization and other benefits, id. at 1910–15. The

9 Supreme Court expressly affirmed in full the U.S. District Court for the District of Columbia’s

10 vacatur of the rescission of the DACA program. Id. at 1916 & n.17 (affirming summary judgment

11 ruling in NAACP v. Trump, 315 F. Supp. 3d 457 (D.D.C. 2018)); see also NAACP, 315 F. Supp. 3d

12 at 473 (holding that DACA’s rescission was unlawful and must be set aside).

13

73. Shortly thereafter, the Supreme Court denied the federal government’s pending

14 petition for certiorari from a U.S. Court of Appeals for the Fourth Circuit ruling, which likewise set

15 aside the 2017 Duke Memorandum as arbitrary and capricious under the APA. See Casa de Md. v.

16 U.S. Dep’t of Homeland Sec., 924 F.3d 684, 706 (4th Cir. 2019), cert. denied 2020 WL 3492650

17 (Mem.) (U.S. June 29, 2020) (No. 18-1469).

18

74. On June 30, 2020, the Fourth Circuit issued the mandate associated with its ruling.

19 See Mandate, Casa de Md., 18-1521, ECF No. 71 (4th Cir. June 30, 2020). The effect of this

20 mandate was to vacate the 2017 Duke Memorandum rescinding DACA, to the extent it had not

21 already been vacated by the U.S. Supreme Court’s Regents III decision.

22 The Administration’s 2020 “Interim” Modifications to the DACA Program

23

75. Following the Supreme Court’s decision in Regents III, DHS was required to return to

24 the status quo ante, restore the DACA program to its original terms, and resume processing

25 applications including from those who had aged into eligibility for the program during the pendency

26 of the unlawful Duke Memorandum. DHS did not. Instead, it unlawfully “generally held” initial

27 DACA applications and requests for advance parole “in anticipation of potential policy changes.”

28 See Mem. from Chad F. Wolf, Acting Sec’y of Homeland Security, to Mark Morgan, Senior Official

23
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1 Performing the Duties of Comm’r, U.S. Customs and Border Protection, et al., Reconsideration of

2 the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to

3 Individuals Who Came to the United States as Children” (July 28, 2020) (“Wolf Memorandum”).

4

76. Those policy changes came approximately six weeks after the Regents III opinion.

5 The Wolf Memorandum, issued on July 28, 2020, announces that Defendant Wolf is “considering

6 anew the DACA policy.” Id. at 4. The Wolf Memorandum “rescind[s] the Nielsen Memorandum

7 and the Duke Memorandum, and mak[es] certain immediate changes to the DACA policy to mitigate

8 [Defendant Wolf’s] enforcement policy concerns while [he] conduct[s] a full and careful

9 consideration of the full rescission.” Id. The Wolf Memorandum directs DHS to make three

10 “immediate changes”: to reject all new initial applications, to reject all advance parole applications

11 absent “exceptional circumstances,” and to halve the renewal period for current DACA recipients

12 from two years to one year. Id. at 7–8. The Wolf Memorandum unlawfully applies these changes

13 retroactively to all applications submitted after the Supreme Court’s June 18, 2020 Regents III

14 decision. Id. at 7.

15

77. As justification, the Wolf Memorandum alludes to “significant questions of law and

16 legal policy,” but does not elaborate further on those questions of law. Id. at 4. Instead, Defendant

17 Wolf focuses on several “serious policy concerns that may warrant [the DACA program’s] full

18 rescission.” Id. He cites four enforcement policy concerns, none of which provides a reasoned basis

19 for the “interim” modifications his Memorandum imposes. First, Defendant Wolf states that the

20 DACA program was intended as a temporary “stopgap measure” while Congress considered various

21 proposals for the individuals covered by the program. Id. at 4–5. He hypothesizes that “rescinding

22 DACA entirely may well create a more pressing need for Congress” to enact immigration reform.

23 Id. Even assuming that using the DACA program as a political pawn to pressure another branch of

24 government to enact immigration reform were a legitimate rationale, the Wolf Memorandum fails to

25 explain how its “interim” measures may spur legislative action. Second, he expresses general

26 concerns about general policies of non-enforcement. Id. at 5. Third, and relatedly, he expresses

27 concern that DHS may be sending “mixed messages” about the agency’s “intention to consistently

28 enforce the immigration laws as Congress has written them.” Id. And fourth, he guesses that

24
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1 “rescinding the DACA policy”—which he concedes “would not apply to children who are sent or

2 brought to this country today”—“may further DHS’s efforts to discourage illegal immigration

3 involving children going forward.” Id. The Memorandum provides no indication that Defendant

4 Wolf relied on any evidence demonstrating that the DACA program has had any impact on rates of

5 migration of children and again provides no explanation of how its chosen policy changes, such as

6 halving the renewal period, mitigates this policy concern.

7

78. The Wolf Memorandum minimizes the reliance interests engendered by the DACA

8 program. It asserts, for example, that reliance interests are not “significantly affected” by halving

9 the renewal period because this change could potentially lessen the impact should Defendant Wolf

10 ultimately rescind DACA in full. Id. at 6. The Memorandum likewise dismisses the reliance

11 interests of individuals who would be eligible to apply for deferred action under DACA but for the

12 Memorandum’s prohibition on new applications. The Memorandum says it “makes sense” to

13 “continue” the “status quo for more than two years” of not processing new DACA applications, but

14 completely ignores that this was the “status quo” only because of Defendants’ unlawful rescission in

15 2017. Under the Supreme Court’s Regents III decision, DHS was required to return to the status quo

16 ante before the unlawful rescission and begin processing anew initial DACA applications.

17

79. On August 21, 2020, Defendant Edlow, the purported Deputy Director of Policy of

18 Defendant USCIS, issued a policy directive purporting to implement the Wolf Memorandum,

19 instructing USCIS officials to take the actions directed by the Wolf Memorandum. Mem. from

20 Joseph Edlow, Deputy Dir. For Pol’y, to Assoc. Dirs. And Program Off. Chiefs, Implementing

21 Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2012

22 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the

23 United States as Children’” (Aug. 21, 2020) (“Edlow Directive”). In addition, the Edlow Directive

24 directs USCIS staff to “generally reject DACA renewal requests received more than 150 days prior

25 the expiration of the DACA recipient’s current DACA validity period.” Id. at 3–4.

26 The Unlawful Designation of Defendant Wolf as Acting Secretary of Homeland Security and

27 Defendant Edlow as Deputy Director of Policy of USCIS

28

80. At the time he issued the Wolf Memorandum, and continuing to this date, Defendant

25
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1 Wolf was unlawfully serving as Acting Secretary of Homeland Security and lacked authority to

2 exercise the powers of the office of the Secretary.

3

81. There has been no Senate-confirmed Secretary of Homeland Security since April 10,

4 2019, when former Secretary Kirstjen Nielsen resigned. Upon Nielsen’s resignation, then-Customs

5 and Border Patrol (“CBP”) Commissioner Kevin McAleenan assumed the office of Acting

6 Secretary. His appointment contravened the order of succession previously designated by the

7 Secretary under the Homeland Security Act. Nonetheless, McAleenan purported to exercise the

8 Acting Secretary’s powers, including, among other things, to amend the designated order of

9 succession. When McAleenan resigned on November 13, 2019, Defendant Wolf purported to take

10 office as Acting Secretary of Homeland Secretary pursuant to McAleenan’s amendment to the

11 succession order.

12

82. Defendant Wolf’s tenure as Acting Secretary of Homeland Security is contrary to the

13 Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. § 3345 et seq., the Homeland Security Act

14 (“HSA”), 6 U.S.C. § 101 et seq., and the Appointments Clause, for three primary and independent

15 reasons. First, Defendant Wolf’s predecessor, McAleenan, was not the lawful successor to former

16 Secretary Nielsen, and therefore lacked the authority to amend DHS’s order of succession and make

17 Defendant Wolf next in line to serve as Acting Secretary. Because McAleenan’s amendment to the

18 order of succession was performed without lawful authority under the HSA or the FVRA, it had “no

19 force and effect,” 5 U.S.C. § 3348(d)(1), and also must be set aside as in excess of statutory

20 authority, 5 U.S.C. § 706(2). This means that Defendant Wolf’s accession to the role of Acting

21 Secretary based on McAleenan’s amendment was likewise unlawful. Second, because more than

22 210 days had passed since former Secretary Nielsen’s resignation, the office of the Secretary was

23 required to “remain vacant” until the President submitted a new nominee for Senate confirmation.

24 Id. §§ 3346, 3347(b)(1). Third, beyond statutory requirements, Defendant Wolf’s unreasonably long

25 service in the role of Acting Secretary and appointment to that role by another inferior officer

26 violated the Appointments Clause. As a result of each of these legal infirmities, Defendant Wolf

27 lacked the authority to issue his Memorandum rescinding key components of the DACA program.

28 //

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1

The Federal Vacancies Reform Act and the Homeland Security Act

2

83. Two federal statutes govern the order of succession for Acting Secretary of Homeland

3 Security: the FVRA, 5 U.S.C. § 3345 et seq., and HSA, 6 U.S.C. § 101 et seq.

4

84. In addition, both the HSA and the Appointments Clause of the U.S. Constitution

5 require the Secretary of Homeland Security to be appointed by the President with the advice and

6 consent of the Senate. See 6 U.S.C. § 112(a)(1); Fin. Oversight & Mgmt. Bd. for Puerto Rico v.

7 Aurelius Inv., LLC, 140 S. Ct. 1649, 1657 (2020) (Heads of Departments are principal officers

8 subject to the Appointments Clause).

9

85. Under the Appointments Clause of the U.S. Constitution, the President “shall

10 nominate, and by and with Advice and Consent of the Senate, shall appoint . . . Officers, of the

11 United States.” U.S. Const., art. II, § 2, cl. 2. Offices requiring Presidential appointment and Senate

12 confirmation (“PAS offices”) wield critical power in the federal government. The advice-and-

13 consent requirement therefore represents a “significant structural safeguard[] of the constitutional

14 scheme.” Edmond v. United States, 520 U.S. 651, 659 (1997).

15

86. The FVRA establishes a default framework for temporarily filling vacant PAS

16 offices. Under the FVRA, the “first assistant to the officer” of a vacant office becomes the acting

17 official by default, 5 U.S.C. § 3345(a)(1), unless the President appoints someone who already serves

18 in a different Senate-confirmed position or authorizes an officer or employee of the relevant agency

19 if they satisfy certain other conditions, id. §§ 3345(a)(2), (a)(3).

20

87. The FVRA framework is the “exclusive means” for authorizing acting officials

21 unless, as relevant here, an agency-specific statute expressly designates the succession order or

22 authorizes the President, a court, or head of an Executive department to designate the succession

23 order. Id. §§ 3347(a)(1)(A), (a)(1)(B).

24

88. The HSA is such an agency-specific statute because it establishes an order of

25 succession for the position of Acting Secretary of Homeland Security. 6 U.S.C. § 113(g). Under 6

26 U.S.C. § 113(a)(1)(A), the Deputy Secretary of Homeland Security is the “first assistant” to the

27 Secretary for purposes of the FVRA and automatically assumes her office if it is vacant. Under 6

28 U.S.C. § 113(g)(1), the Under Secretary for Management of the Department of Homeland Security

27
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1 assumes the office of Acting Secretary in the event neither the Secretary nor the Deputy Secretary is

2 available to exercise the functions and duties of the Secretary.

3

89. The HSA authorizes the Secretary to designate a further order of succession in the

4 event that neither the Secretary nor the Deputy Secretary nor the Under Secretary for Management is

5 available to exercise the functions and duties of the Secretary. Id. § 113(g)(2).

6

90. Regardless of the method by which an acting official assumes office, a vacant office

7 may not be occupied by acting officials “for longer than 210 days beginning on the day the vacancy

8 occurs.” 5 U.S.C. § 3346(a). And a person who has been nominated to permanently hold that

9 position may not serve as an acting officer, except under specified circumstances not applicable here.

10 Id. § 3345(b)(1)(B).

11

91. Unless an officer is performing the functions and duties of the vacant office

12 consistent with the FVRA or an agency-specific statute as authorized by section 3347 of the FVRA,

13 “the office shall remain vacant.” 5 U.S.C. § 3348(b)(1).

14

92. An agency action taken by an unlawfully serving acting official in the performance of

15 a “function or duty” of the vacant office “shall have no force and effect” and “may not be ratified.”

16 Id. §§ 3348(d)(1), (d)(2). A “function or duty” is any function or duty that is established by statute

17 or regulation that is required by statute or regulation “to be performed by the applicable officer (and

18 only that officer).” Id. § 3348(a)(2).

19

93. Establishing national immigration enforcement policies and priorities is a function of

20 the Secretary of Homeland Security. 6 U.S.C. § 202(5). Defendant Wolf relied on section 202 when

21 issuing the Wolf Memorandum, which purports to set enforcement priorities. See Wolf

22 Memorandum at 4.

23

The DHS Succession Order

24

94. Since December 2016, the further order of succession for the Secretary of Homeland

25 Security under the HSA has been governed by Executive Order 13753 and DHS Delegation Number

26 00106 (“Directive 00106”), issued by then-Secretary Jeh Johnson. Together, these documents set

27 forth two orders of succession depending on the reason the Secretary is unavailable.

28

95. Executive Order 13753, issued pursuant to the President’s authority under section

28
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1 3345 of the FVRA, designated the order of DHS officials who would become Acting Secretary

2 “during any period in which the Secretary has died, resigned, or otherwise become unable to perform

3 the functions and duties of the office of Secretary.” Exec. Order 13753 § 1, Amending the Order of

4 Succession in the Department of Homeland Security, 81 Fed. Reg. 90,667, 90,667 (Dec. 9, 2016).

5 Section II.A of Directive 00106 adopted the order of succession laid out in Executive Order 13753

6 “[i]n case of the Secretary’s death, resignation, or inability to perform the functions of the Office.”

7 Section II.B of Directive 00106, by contrast, set forth a separate order of succession for a different

8 set of circumstances: when the Secretary becomes “unavailable to act during a disaster or

9 catastrophic emergency.” Annex A to the Directive set forth this alternative order of succession

10 under Section II.B. In other words, there were two separate orders for the office of the Secretary of

11 Homeland Security: one that applied when the Secretary had “died, resigned, or otherwise become

12 unable to perform” her duties (Section II.A and Executive Order 13753) and one that applied when

13 the Secretary was “unavailable to act during a disaster or catastrophic emergency” (Section II.B and

14 Annex A).

15

96. On April 7, 2019, then-Secretary Nielsen announced on Twitter that she had resigned

16 office effective that day. She later tweeted that day that she had agreed to stay on as Secretary

17 through April 10 “to assist with an orderly transition.” On April 9, 2019, then-Secretary Nielsen

18 signed a memorandum that amended Directive 00106 to replace Annex A’s order referenced in

19 Section II.B of Directive 00106, which applied only when the Secretary become unavailable due to

20 an disaster or catastrophic emergency. The Amendment to Annex A identified that document not as

21 an “order of succession,” but rather as an “order of delegation of authority.” The April 2019

22 memorandum did not, however, amend the language in Section II.A of Directive 00106, which

23 applied when the Secretary died, resigned, or became unable to perform her functions.

24

97. The effect of then-Secretary Nielsen’s memorandum was to leave intact the separate

25 orders of succession for the Secretary in case of her “death, resignation, or inability to perform the

26 functions of the Office” and her “unavailab[ility] to act during a disaster or catastrophic emergency”

27 respectively. Thus, at the time she resigned on April 10, 2019, the relevant order of succession

28 under Section II.A, which adopted Executive Order 13753, for the acting position was: Deputy

29
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1 Secretary, Under Secretary for Management, the Administrator of the Federal Emergency

2 Management Agency (“FEMA”), the Under Secretary for National Protection and Programs, the

3 Under Secretary for Science and Technology, the Under Secretary for Intelligence and Analysis, and

4 Commissioner of U.S. Customs and Border Protection.

5

98. On April 10, 2019, four of the six offices in the line of succession when the

6 Secretary’s office becomes vacant due to resignation were vacant (Deputy Secretary of Homeland

7 Security, Under Secretary for Management, FEMA Administrator, and Under Secretary for Science

8 and Technology). Two offices in the line of succession were not vacant—the Under Secretary for

9 National Protection and Programs and the Under Secretary for Intelligence and Analysis—but

10 neither of the individuals holding these offices assumed the office of Acting Secretary. Instead, CBP

11 Commissioner Kevin McAleenan assumed the office of Acting Secretary. While the CBP

12 Commissioner would have been next in line to serve as Acting Secretary in the event of the

13 Secretary’s unavailability “to act during a disaster or catastrophic emergency” under Section II.B of

14 Directive 00106 and Annex A, the CBP Commissioner was not next in line in case of death,

15 resignation, or inability to perform the functions of the office under Section II.A of Directive 00106.

16 Because the need for an Acting Secretary arose due to Secretary Nielsen’s resignation,

17 Commissioner McAleenan’s accession to the office of Acting Secretary was contrary to Directive

18 00106 and Executive Order 13753.

19

99. On November 8, 2019 (212 days after Nielsen resigned), Commissioner McAleenan

20 issued an order in his purported capacity as Acting Secretary to further amend Directive 00106.

21 These amendments (1) provided that Annex A would also govern the order of succession in cases of

22 death, resignation, or inability to perform the functions of the office, and (2) replaced Annex A’s

23 order of succession with a new one under which the CBP Commissioner would be third in line to

24 serve as Acting Secretary and the Under Secretary for Strategy, Policy, and Plans would be fourth in

25 line. However, because Commissioner McAleenan was not the lawful Acting Secretary following

26 Secretary Nielsen’s resignation, and also because the office of the Secretary had been vacant for

27 more than 210 days, he did not have lawful authority to amend the DHS order of succession.

28

100. Defendant Wolf was confirmed as Under Secretary for Strategy, Policy, and Plans on

30
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1 November 13, 2019.

2

101. Also on November 13, 2019 (217 days after Nielsen resigned), Commissioner

3 McAleenan resigned as Acting Secretary of Homeland Secretary. Defendant Wolf purported to take

4 office as Acting Secretary of Homeland Secretary pursuant to Commissioner McAleenan’s

5 November 8, 2019 amendments to Directive 00106. Because Defendant Wolf’s installation as

6 Acting Secretary was based on the amendments to the order of succession that McAleenan lacked

7 the authority to make, it was likewise unlawful.

8

102. When Defendant Wolf appointed Defendant Edlow to the office of Deputy Director

9 of Policy of USCIS on February 19, 2020, the office of the Secretary had been vacant for 315 days.

10

103. When Defendant Wolf issued the Wolf Memorandum on July 28, 2020, the office of

11 the Secretary had been vacant for 475 days and Defendant Wolf had been unlawfully serving as

12 Acting Secretary for 258 days.

13

The Government Accountability Office Concludes that Defendant Wolf Is Not Lawfully

14

Serving as Acting Secretary

15

104. On November 15, 2019, the Chairman of the House Committee on Homeland

16 Security and the Acting Chairwoman of the House Committee on Oversight and Reform wrote the

17 United States Comptroller General, who is head of the United States Government Accountability

18 Office (“GAO”). Their letter expressed doubt that Commissioner McAleenan had lawfully assumed

19 office as Acting Secretary consistent with section 113(g) of the HSA, that Commissioner McAleenan

20 had lawfully amended Directive 00106 on November 8, 2019, and that Defendant Wolf had lawfully

21 succeeded Commissioner McAleenan as Acting Secretary pursuant to Directive 00106.

22

105. On August 14, 2020, the GAO’s General Counsel concluded that Defendant Wolf had

23 never lawfully served in the role of Acting Secretary because his assumption of that role—based on

24 amendments McAleenan had no authority to make—had violated the FVRA and HSA. See U.S.

25 Gov’t Accountability Office, B-3321650, Decision Letter on Legality of Service of Acting Secretary

26 of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of

27 Homeland Security (Aug. 14, 2020), available at https://www.gao.gov/assets/710/708830.pdf

28 (“GAO Opinion”). The GAO opinion did not address who instead should be serving as the Acting

31
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1 Secretary and the “consequences of actions taken by” improperly serving officials, but referred these

2 questions to the DHS Inspector General. Id. at 2 n.1

3

106. DHS requested that the GAO reconsider and rescind its report, but the GAO denied

4 the request, concluding that DHS had not shown that the report contained any material errors of fact

5 or law. See U.S. Gov’t Accountability Office, B-332451, Decision Letter on Legality of Service of

6 Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of

7 Deputy Secretary of Homeland Security—Reconsideration (Aug. 21, 2020), available at

8 https://www.gao.gov/assets/710/708944.pdf; see also Office of the General Counsel, DHS, Letter to

9 Thomas A. Armstrong, General Counsel, GAO (Aug. 17, 2020), available at

10 https://www.dhs.gov/sites/default/files/publications/20_0817_ogc_gao-as1-succession-response.pdf.

11

Further Actions by the Department of Homeland Security

12

107. On August 25, 2020, President Trump announced on Twitter that he intended to

13 nominate Defendant Wolf as the permanent Secretary of Homeland Security.

14

108. On September 10, 2020, President Trump formally nominated Defendant Wolf to be

15 Secretary of Homeland Security.

16

109. Also on September 10, 2020, FEMA Administrator Peter T. Gaynor re-issued the

17 order of succession first issued by Commissioner McAleenan in November 2019. Peter T. Gaynor,

18 Order Designating the Order of Succession for the Secretary of Homeland Security (Sept. 10, 2020)

19 (“Gaynor Order”). The Gaynor Order did not concede that the orders of succession issued by former

20 Secretary Nielsen and Commissioner McAleenan were unlawful, but acknowledged the GAO

21 Opinion’s conclusion that “no Secretary has ever properly invoked 6 U.S.C. § 113(g)(2)” to issue a

22 “further order of succession.” According to the Gaynor Order, if that were the case, the FVRA

23 “would provide an alternative basis for an official to exercise the functions and duties of the

24 Secretary in an acting capacity,” and under Executive Order 13753, the next-in-line official under

25 the FVRA would be the FEMA Administrator—Mr. Gaynor. Exercising “any authority [he] may

26 have been granted by the FVRA,” and “out of an abundance of caution,” Mr. Gaynor re-issued

27 pursuant to § 113(g)(2) the same order of succession previously issued by Commissioner

28 McAleenan. According to Mr. Gaynor, under his reissuance of the order of succession, Defendant

32
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1 Wolf became Acting Secretary.

2

110. Although the FVRA bars—subject to exceptions not applicable here—officials who

3 have been formally nominated for a position from serving in that role in an acting capacity, see 5

4 U.S.C. 3345(b)(1)(B), and President Trump formally nominated Defendant Wolf on September 10,

5 2020, Defendant Wolf has continued to claim to be Acting Secretary of Homeland Security.

6

111. On September 17, 2020, Defendant Wolf issued a memorandum purporting to ratify

7 actions he took as Acting Secretary prior to the Gaynor Order. See Ratification of Department

8 Actions, 89 Fed. Reg. 59651, 59652–54 (Sept. 23, 2020) (“First Ratification Memorandum”). Like

9 the Gaynor Order, the First Ratification Memorandum did not concede that Defendant Wolf’s

10 service as Acting Secretary was unlawful, and instead affirmed that Defendant Wolf “remain[s] the

11 Acting Secretary notwithstanding [his] nomination” and the FVRA’s time limits. But “out of an

12 abundance of caution,” the First Ratification Memorandum relied on “alternate scenario” set forth in

13 the Gaynor Order as another basis for Wolf’s authority.

14

112. The First Ratification Memorandum also asserted that the FVRA’s prohibition on

15 nominees serving in an acting capacity during the pendency of the nomination does not apply to the

16 office of the Secretary under the HSA, and that Defendant Wolf’s nomination “restarted the FVRA’s

17 time limits” to the extent they applied to the office of the Secretary.

18

113. The First Ratification Memorandum then purported to exercise the authority of the

19 Acting Secretary to “affirm and ratify any and all actions involving delegable duties” taken by

20 Defendant Wolf “from November 13, 2019, through September 10, 2020.”

21

114. Defendant Wolf issued another ratification memorandum on October 7, 2020, this

22 one purporting to ratify, among other actions, “one delegable action taken by U.S. Citizenship and

23 Immigration Services (USCIS) Deputy Directive for Policy Edlow,” including the August 21, 2020

24 Edlow Directive. See Ratification of Department Actions, 89 Fed. Reg. 65653, 65653–56 (Oct. 16,

25 2020) (“Second Ratification Memorandum”).

26 //

27 //

28 //

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1

FIRST CLAIM FOR RELIEF

2

Violation of Administrative Procedure Act, 5 U.S.C. § 706

3

The Wolf Memorandum and the Edlow Directive

4

115. Plaintiffs re-allege and incorporate by reference all the allegations set forth in this

5 Amended Complaint.

6

116. The Wolf Memorandum and Edlow Directive are final agency actions subject to

7 judicial review under the APA.

8

117. Under the APA, courts shall “hold unlawful and set aside” agency action “found to be

9 arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law; contrary to a

10 constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or

11 limitations, or short of statutory right; without observance of procedure required by law.” 5 U.S.C.

12 § 706(2).

13

118. The Wolf Memorandum is arbitrary and capricious, an abuse of discretion, contrary

14 to law, and in excess of statutory authority. Instead of reasoned explanation, the Wolf Memorandum

15 is based on asserted policy justifications that are not supported by evidence and that are, in any

16 event, untethered to the interim actions taken. Some are also improper. For example, the Wolf

17 Memorandum effectively concedes that it is temporarily rescinding core components of the DACA

18 program in order to spur congressional action on immigration reform. But wielding DACA—a

19 hugely successful program on which hundreds of thousands of DACA recipients, their families, and

20 their communities—as a political pawn reveals the Wolf Memorandum’s lack of reasoned

21 justification.

22

119. What is more, although the Wolf Memorandum and Edlow Directive have immediate

23 consequences for Plaintiffs and numerous DACA recipients and DACA-eligible individuals,

24 Defendants characterize their actions as an “interim” measure, effectively conceding that they did

25 not conduct a full consideration of the contemplated changes as required by the APA and by the

26 Supreme Court’s Regents III decision.

27

120. The Wolf Memorandum also fails to consider all the relevant factors, including those

28 set out by the Supreme Court. For example, the Memorandum fails to fully consider the reliance

34
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1 interests of those who have participated in or in other ways benefited from the DACA program or

2 the reliance interests of those who would be eligible to apply for DACA but for the Memorandum,

3 including those who the law required to be allowed to apply after the Regents III decision. It also

4 fails to assess the arbitrariness or harms of applying its policies retroactively.

5

121. In addition, the retroactive application of the Wolf Memorandum’s new policies

6 violates the legal obligations imposed by the Supreme Court’s Regents III decision and the Fourth

7 Circuit’s mandate to return to the status quo ante before Defendants’ unlawful rescission in 2017.

8

122. Finally, the Wolf Memorandum was issued by an agency official who lacked legal

9 authority to do so because Defendant Wolf was not lawfully serving as Acting Secretary of

10 Homeland Security. The Wolf Memorandum is thus contrary to law in violation of the Homeland

11 Security Act, Federal Vacancies Reform Act, and the Appointments Clause, and is invalid and void.

12

123. The Edlow Directive is also arbitrary and capricious, an abuse of discretion, and

13 otherwise not in accordance with law because, among other reasons, it purports to implement the

14 unlawful Wolf Memorandum and unreasonably instructs USCIS staff to reject renewal applications

15 filed more than 150 days before the expiration of current DACA recipients’ validity period even

16 though USCIS’ current estimates of processing times for DACA applications far exceed 150 days.

17 In addition, the Directive was issued by an individual who did not have legal authority to do so:

18 Defendant Edlow was designated to serve in his position by Defendant Wolf, who was and still is

19 unlawfully serving as Acting Secretary of Homeland Security.

20

124. The Wolf Memorandum and the Edlow Directive implementing it are therefore

21 arbitrary and capricious, contrary to law, and in excess of statutory authority in violation of 5 U.S.C.

22 § 706(2)(A) & (C), and must be held unlawful and set aside.

23

125. The County, its employees, and its residents, and Local 521 and its members have

24 been harmed and continue to be harmed by these unlawful acts.

25

SECOND CLAIM FOR RELIEF

26 Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq., and Homeland Security Act, 6 U.S.C.

27

§§ 112–13

28

126. Plaintiffs re-allege and incorporate by reference all the allegations set forth in this

35
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1 Amended Complaint.

2

127. The Secretary of Homeland Security must be appointed by the President with the

3 advice and consent of the Senate. 6 U.S.C. § 112(a)(1).

4

128. When the office of the Secretary is vacant, only a valid Acting Secretary may perform

5 the functions or duties of the Secretary.

6

129. Commissioner McAleenan lacked the authority to amend the order of succession

7 which purported to make Defendant Wolf next in line for Acting Secretary for at least three

8 independent reasons.

9

130. First, Commissioner McAleenan improperly assumed the position of Acting Secretary

10 in violation of the order of succession under the HSA, 6 U.S.C. § 113(g)(2), and so was not lawfully

11 serving as Acting Secretary.

12

131. Second, section 113(g)(2) of the HSA authorizes only the Secretary, not an Acting

13 Secretary, to establish a further order of succession to that office. See Nw. Immgr. Rts. Project v.

14 U.S. Citizenship & Immigr. Servs., No. 19-cv-03283-RDM, slip op. at 38–42, 52 (D.D.C. Oct. 8.

15 2020) (Moss, J.) (“The Court therefore concludes that ‘Secretary’ in § 113(g)(2) does not include an

16 Acting Secretary, but instead means the Secretary and only the Secretary.”).

17

132. And third, by the time Commissioner McAleenan purported to amend the DHS order

18 of succession, he had already been serving for longer than the FVRA’s limit of 210 days. See 5

19 U.S.C. § 3346(a). Because the office of the Secretary had been vacant for more than 210 days, the

20 FVRA required that it “remain vacant” until the President submitted a nominee to the Senate. Id.

21 § 3348(b)(1).

22

133. Thus, for these reasons, Commissioner McAleenan amended the order of succession

23 without lawful authority, and his actions “have no force or effect.” 5 U.S.C. § 3348(d)(1). Because

24 Defendant Wolf assumed the position of Acting Secretary pursuant to Commissioner McAleenan’s

25 unlawful amendments, his service in that role is unlawful under both the HSA and FVRA.

26

134. Besides these defects in Commissioner McAleenan’s authority, by the time

27 Defendant Wolf assumed the role of Acting Secretary on November 13, 2019, the office of the

28 Secretary had been vacant for 217 days, a week past the total 210 days an office can by occupied by

36
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Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 37 of 40

1 acting officials before it must remain vacant under the FVRA. See 5 U.S.C. § 3346(a). And by the

2 time Defendant Wolf issued the Wolf Memorandum on July 28, 2020, the office of the Secretary had

3 been vacant for 475 days and Defendant Wolf had been serving as Acting Secretary for 258 days.

4 For these reasons as well, Defendant Wolf’s assumption of the office and issuance of the Wolf

5 Memorandum were unlawful.

6

135. As a result of these separate and independent legal infirmities, Defendant Wolf was

7 not lawfully serving as the Acting Secretary and did not have the legal authority to issue the Wolf

8 Memorandum or appoint Defendant Edlow to serve as Deputy Director of Policy of USCIS. In fact,

9 at that time, no officer could perform the functions of Acting Secretary and no officer had legal

10 authority to issue a memorandum even temporarily rescinding or modifying key components of the

11 DACA program.

12

136. Because the Wolf Memorandum was issued by an officer unlawfully serving as

13 Acting Secretary, it “shall have no force and effect” and “may not be ratified.” 5 U.S.C.

14 §§ 3348(d)(1), (d)(2). Defendant Wolf’s First and Second Ratification Memoranda are therefore

15 contrary to the plain terms of the FVRA and cannot remedy the legal defects of the Wolf

16 Memorandum or the Edlow Directive. Even if the plain text of the FVRA did not bar ratification,

17 Defendant Wolf could not have issued his Ratification Memoranda because, as already explained,

18 the office of the Secretary has been vacant for far more than 210 days and must “remain vacant,” 5

19 U.S.C. § 3346(a); the FVRA prohibits nominees from serving in an acting capacity the role for

20 which they have been nominated, see id. § 3345(b)(1); and, in any event, the Gaynor Order did not

21 and could not cure the defects in Wolf’s unlawful assumption of the role of Acting Secretary.

22

137. The County, its employees, and its residents, and Local 521 and its members have

23 been harmed and continue to be harmed by these unlawful acts.

24

THIRD CLAIM FOR RELIEF

25

Violation of the Appointments Clause, U.S. Const., art. II, § 2, cl. 2

26

138. Plaintiffs re-allege and incorporate by reference all the allegations set forth in this

27 Amended Complaint.

28

139. Under the Appointments Clause of the U.S. Constitution, the President “shall

37
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Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 38 of 40

1 nominate, and by and with Advice and Consent of the Senate, shall appoint . . . Officers, of the

2 United States.” U.S. Const., art. II, § 2, cl. 2. As a limited exception, Congress may authorize the

3 President, a court of law, or “Heads of Departments” to appoint inferior officers without the advice

4 and consent of the Senate. Id.

5

140. The Department of Homeland Security is an Executive Department. 5 U.S.C. § 101.

6 As a Head of Department, the Secretary of Homeland Security is a principal officer subject to the

7 Appointments Clause. See Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S.

8 Ct. 1649, 1657 (2020).

9

141. An inferior officer may perform the functions of a vacant principal office but only

10 “for a limited time, and under special and temporary conditions.” United States v. Eaton, 169 U.S.

11 331, 338 (1898) (emphasis added). In other words, the Appointments Clause does not tolerate an

12 acting official or acting officials serving for an unreasonably long period of time in a vacant position

13 that requires Senate confirmation.

14

142. Defendant Wolf has not been confirmed by the Senate for the position of Secretary of

15 Homeland Security.

16

143. When he appointed Defendant Edlow to the office of Deputy Director for Policy of

17 USCIS on February 19, 2020, Defendant Wolf had not been nominated by the President or

18 confirmed by the Senate for the position of Secretary of Homeland Security. By February 19, 2020,

19 the office of the Secretary had been vacant for 315 days.

20

144. When he issued his Memorandum on July 28, 2020, Defendant Wolf had not been

21 nominated by the President or confirmed by the Senate for the position of Secretary of Homeland

22 Security. By July 28, 2020, the office of the Secretary had been vacant for 475 days.

23

145. Even if Defendant Wolf’s service as Acting Secretary of Homeland Security were

24 consistent with the HSA and FVRA, his unreasonably long service in that role would violate the

25 Appointments Clause.

26

146. In addition, Defendant Wolf’s appointment as Acting Secretary by another inferior

27 officer violates the Appointments Clause.

28

147. Under the Appointments Clause, a “Head of Department” is a principal officer who

38
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Case 3:17-cv-05813-WHA Document 87 Filed 11/02/20 Page 39 of 40

1 may be authorized to appoint inferior officers. But an acting official is an inferior officer, not

2 principal officer. Eaton, 169 U.S. at 338. Thus, although an acting secretary performs the functions

3 or duties of the secretary of a department, that acting secretary is not a “Head of Department” and

4 cannot appoint another inferior officer. To allow otherwise would permit acting secretaries to

5 appoint their replacements seriatim, avoiding indefinitely the strictures of the Appointments Clause.

6

148. When Commissioner McAleenan amended DHS’s order of succession, he was an

7 inferior officer purportedly serving as Acting Secretary. Because Commissioner McAleenan was

8 not a Head of Department within the meaning of the Appointments Clause, he did not have authority

9 to amend DHS’s order of succession and thus appoint another inferior officer to serve in an acting

10 capacity. Therefore, even if McAleenan had lawfully served as Acting Secretary, Defendant Wolf

11 could not have properly assumed the role of Acting Secretary based on Commissioner McAleenan’s

12 amendments.

13

149. Because Defendant Wolf was not serving legally as the Acting Secretary of

14 Homeland Security, he did not have legal authority to issue the Wolf Memorandum or to appoint

15 Defendant Edlow to serve as Deputy Director of Policy of USCIS.

16

150. Because they were issued by officials without the authority to do so, the Wolf

17 Memorandum and Edlow Directive are invalid and must be vacated.

18

151. The County, its employees, and its residents, and Local 521 and its members have

19 been harmed and continue to be harmed by these unlawful acts.

20

PRAYER FOR RELIEF

21 WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:

22

A. Vacate and set aside the Wolf Memorandum and Edlow Directive;

23

B. Declare that the Wolf Memorandum and Edlow Directive and Defendants’ actions in

24 connection therewith were issued in violation of the Homeland Security Act and the Federal

25 Vacancies Reform Act and are void and without legal force or effect;

26

C. Declare that the Wolf Memorandum and Edlow Directive were issued in violation of

27 the Appointments Clause of the U.S. Constitution;

28

D. Declare that the Wolf Memorandum and Edlow Directive and Defendants’ actions in

39
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1 connection therewith are arbitrary, capricious, an abuse of discretion, and otherwise not in

2 accordance with law required by law in violation of 5 U.S.C. §§ 702–06;

3

E. Preliminarily and permanently enjoin and restrain Defendants, their agents, servants,

4 employees, attorneys, and all persons in active concert or participation with any of them, from

5 implementing or enforcing the Wolf Memorandum and Edlow Directive or from taking any other

6 action to rescind DACA that is not in compliance with applicable law;

7

F. Grant Plaintiffs further relief as necessary to remedy the injuries caused by the

8 unlawful actions taken by Defendants, including by allowing those individuals who would have been

9 eligible to apply for deferred action under DACA were it not for the unlawful rescission in 2017 to

10 apply for DACA now;

11

G. Award Plaintiffs reasonable attorneys’ fees and costs; and

12

H. Grant Plaintiffs such further and additional relief as the Court deems just and proper.

13

14 Dated: November 2, 2020

Respectfully submitted,

15

/s/ James R. Williams

JAMES R. WILLIAMS, County Counsel

16

GRETA S. HANSEN

LAURA S. TRICE

17

MARCELO QUIÑONES

HANNAH KIESCHNICK

18

OFFICE OF THE COUNTY COUNSEL

70 West Hedding Street

19

East Wing, Ninth Floor

San José, California 95110

20

Telephone: (408) 299-5900

Facsimile: (408) 292-7240

21

laura.trice@cco.sccgov.org

marcelo.quinones@cco.sccgov.org

22

hannah.kieschnick@cco.sccgov.org

23

Attorneys for Plaintiff County of Santa Clara

24

/s/ Stacey M. Leyton

STACEY M. LEYTON

25

ALTSHULER BERZON LLP

177 Post St., Suite 300

26

San Francisco, CA 94108

Telephone: (415) 421-7151

27

Facsimile: (415) 362-8064

sleyton@altber.com

28

Attorney for all Plaintiffs

40
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
DEPARTMENT OF HOMELAND SECURITY ET AL. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 18–587. Argued November 12, 2019—Decided June 18, 2020*
In 2012, the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity. Two years later, DHS expanded DACA eligibility and created a related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If implemented, that program would have made 4.3 million parents of U. S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients. Texas, joined by 25 other States, secured a nationwide preliminary injunction barring implementation of both the DACA expansion and DAPA. The Fifth Circuit upheld the injunction, concluding that the program violated the Immigration and Nationality Act (INA), which carefully defines eligibility for benefits. This Court affirmed by an equally divided vote, and
—————— * Together with No. 18–588, Trump, President of the United States, et
al. v. National Association for the Advancement of Colored People et al., on certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit, and No. 18–589, Wolf, Acting Secretary of Homeland Security, et al. v. Batalla Vidal et al., on certiorari before judgment to the United States Court of Appeals for the Second Circuit.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

the litigation then continued in the District Court. In June 2017, following a change in Presidential administrations,
DHS rescinded the DAPA Memorandum, citing, among other reasons, the ongoing suit by Texas and new policy priorities. That September, the Attorney General advised Acting Secretary of Homeland Security Elaine C. Duke that DACA shared DAPA’s legal flaws and should also be rescinded. The next day, Duke acted on that advice. Taking into consideration the Fifth Circuit and Supreme Court rulings and the Attorney General’s letter, Duke decided to terminate the program. She explained that DHS would no longer accept new applications, but that existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal.
Several groups of plaintiffs challenged Duke’s decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. District Courts in California (Regents, No. 18–587), New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588) all ruled for the plaintiffs. Each court rejected the Government’s arguments that the claims were unreviewable under the APA and that the INA deprived the courts of jurisdiction. In Regents and Batalla Vidal, the District Courts further held that the equal protection claims were adequately alleged, and they entered coextensive nationwide preliminary injunctions based on the conclusion that the plaintiffs were likely to succeed on their APA claims. The District Court in NAACP took a different approach. It deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding that the rescission was inadequately explained. The court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA, this time with a fuller explanation of the conclusion that DACA was unlawful. Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded to the court’s order. She declined to disturb or replace Duke’s rescission decision and instead explained why she thought her predecessor’s decision was sound. In addition to reiterating the illegality conclusion, she offered several new justifications for the rescission. The Government moved for the District Court to reconsider in light of this additional explanation, but the court concluded that the new reasoning failed to elaborate meaningfully on the illegality rationale.
The Government appealed the various District Court decisions to the Second, Ninth, and D. C. Circuits, respectively. While those appeals were pending, the Government filed three petitions for certiorari

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

3

Syllabus

before judgment. Following the Ninth Circuit affirmance in Regents, this Court granted certiorari.
Held: The judgment in No. 18–587 is vacated in part and reversed in part; the judgment in No. 18–588 is affirmed; the February 13, 2018 order in No. 18–589 is vacated, the November 9, 2017 order is affirmed in part, and the March 29, 2018 order is reversed in part; and all of the cases are remanded.
No. 18–587, 908 F. 3d 476, vacated in part and reversed in part; No. 18– 588, affirmed; and No. 18–589, February 13, 2018 order vacated, November 9, 2017 order affirmed in part, and March 29, 2018 order reversed in part; all cases remanded. THE CHIEF JUSTICE delivered the opinion of the Court, except as to Part IV, concluding: 1. DHS’s rescission decision is reviewable under the APA and is within this Court’s jurisdiction. Pp. 9–13. (a) The APA’s “basic presumption of judicial review” of agency action, Abbott Laboratories v. Gardner, 387 U. S. 136, 140, can be rebutted by showing that the “agency action is committed to agency discretion by law,” 5 U. S. C. §701(a)(2). In Heckler v. Chaney, the Court held that this narrow exception includes an agency’s decision not to institute an enforcement action. 470 U. S. 821, 831–832. The Government contends that DACA is a general non-enforcement policy equivalent to the individual non-enforcement decision in Chaney. But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Therefore, unlike the non-enforcement decision in Chaney, DACA’s creation—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832. In addition, by virtue of receiving deferred action, 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest “courts often are called upon to protect.” Ibid. DACA’s rescission is thus subject to review under the APA. Pp. 9–12. (b) The two jurisdictional provisions of the INA invoked by the Government do not apply. Title 8 U. S. C. §1252(b)(9), which bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien,” is inapplicable where, as here, the parties do not challenge any removal proceedings. And the rescission is not a decision “to commence proceedings, adjudicate cases, or execute removal orders” within the meaning of §1252(g). Pp. 12–13. 2. DHS’s decision to rescind DACA was arbitrary and capricious under the APA. Pp. 13–26. (a) In assessing the rescission, the Government urges the Court to consider not just the contemporaneous explanation offered by Acting Secretary Duke but also the additional reasons supplied by Secretary

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Syllabus

Nielsen nine months later. Judicial review of agency action, however, is limited to “the grounds that the agency invoked when it took the action.” Michigan v. EPA, 576 U. S. 743, 758. If those grounds are inadequate, a court may remand for the agency to offer “a fuller explanation of the agency’s reasoning at the time of the agency action,” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (emphasis added), or to “deal with the problem afresh” by taking new agency action, SEC v. Chenery Corp., 332 U. S. 194, 201. Because Secretary Nielsen chose not to take new action, she was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible “post hoc rationalization.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 420. The rule requiring a new decision before considering new reasons is not merely a formality. It serves important administrative law values by promoting agency accountability to the public, instilling confidence that the reasons given are not simply convenient litigating positions, and facilitating orderly review. Each of these values would be markedly undermined if this Court allowed DHS to rely on reasons offered nine months after the rescission and after three different courts had identified flaws in the original explanation. Pp. 13–17.
(b) Acting Secretary Duke’s rescission memorandum failed to consider important aspects of the problem before the agency. Although Duke was bound by the Attorney General’s determination that DACA is illegal, see 8 U. S. C. §1103(a)(1), deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion. The Attorney General concluded that the legal defects in DACA mirrored those that the courts had recognized in DAPA. The Fifth Circuit, the highest court to offer a reasoned opinion on DAPA’s legality, found that DAPA violated the INA because it extended eligibility for benefits to a class of unauthorized aliens. But the defining feature of DAPA (and DACA) is DHS’s decision to defer removal, and the Fifth Circuit carefully distinguished that forbearance component from the associated benefits eligibility. Eliminating benefits eligibility while continuing forbearance thus remained squarely within Duke’s discretion. Yet, rather than addressing forbearance in her decision, Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy. 463 U. S. 29, 51. While DHS

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was not required to “consider all policy alternatives,” ibid., deferred action was “within the ambit of the existing” policy, ibid.; indeed, it was the centerpiece of the policy. In failing to consider the option to retain deferred action, Duke “failed to supply the requisite ‘reasoned analysis.’ ” Id., at 57.
That omission alone renders Duke’s decision arbitrary and capricious, but it was not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain features of the DACA policy may affect the strength of any reliance interests, but those features are for the agency to consider in the first instance. DHS has flexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious. Pp. 17–26.
THE CHIEF JUSTICE, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded in Part IV that respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. Pp. 27–29.

ROBERTS, C. J., delivered the opinion of the Court, except as to Part IV. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SOTOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.

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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part IV.
In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.
Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.
I A
In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for “certain young people who were brought to this country as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public

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safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they “lacked the intent to violate the law,” are “productive” contributors to our society, and “know only this country as home.” Id., at 98a–99a.
“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion[ ] on an individual basis . . . by deferring action for a period of two years, subject to renewal.” Id., at 100a. In addition, it directs U. S. Citizenship and Immigration Services (USCIS) to “accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,” id., at 101a, as permitted under regulations long predating DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish “economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred action recipients are considered “lawfully present” for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR §1.3(a)(4)(vi); 42 CFR §417.422(h) (2012).
In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

recipients.
Before the DAPA Memorandum was implemented, 26 States, led by Texas, filed suit in the Southern District of Texas. The States contended that DAPA and the DACA
expansion violated the APA’s notice and comment requirement, the Immigration and Nationality Act (INA), and the
Executive’s duty under the Take Care Clause of the Constitution. The District Court found that the States were likely to succeed on the merits of at least one of their claims and
entered a nationwide preliminary injunction barring implementation of both DAPA and the DACA expansion. See Texas v. United States, 86 F. Supp. 3d 591, 677–678 (2015).
A divided panel of the Court of Appeals for the Fifth Circuit affirmed the preliminary injunction. Texas v. United
States, 809 F. 3d 134, 188 (2015). In opposing the injunction, the Government argued that the DAPA Memorandum
reflected an unreviewable exercise of the Government’s enforcement discretion. The Fifth Circuit majority disagreed.
It reasoned that the deferred action described in the DAPA Memorandum was “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated
benefits on a class of unlawfully present aliens.” Id., at 166. From this, the majority concluded that the creation of the
DAPA program was not an unreviewable action “committed to agency discretion by law.” Id., at 169 (quoting 5 U. S. C. §701(a)(2)).
The majority then upheld the injunction on two grounds. It first concluded the States were likely to succeed on their
procedural claim that the DAPA Memorandum was a substantive rule that was required to undergo notice and comment. It then held that the APA required DAPA to be set
aside because the program was “manifestly contrary” to the INA, which “expressly and carefully provides legal designa-
tions allowing defined classes” to “receive the benefits” associated with “lawful presence” and to qualify for work

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Opinion of the Court
authorization, 809 F. 3d, at 179–181, 186 (internal quotation marks omitted). Judge King dissented.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote, which meant that no opinion was issued. United States v. Texas, 579 U. S. ___ (2016) (per curiam). For the next year, litigation over DAPA and the DACA expansion continued in the Southern District of Texas, while implementation of those policies remained enjoined.
Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary injunction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities.
Three months later, in September 2017, Attorney General Jefferson B. Sessions III sent a letter to Acting Secretary of Homeland Security Elaine C. Duke, “advis[ing]” that DHS “should rescind” DACA as well. App. 877. Citing the Fifth Circuit’s opinion and this Court’s equally divided affirmance, the Attorney General concluded that DACA shared the “same legal . . . defects that the courts recognized as to DAPA” and was “likely” to meet a similar fate. Id., at 878. “In light of the costs and burdens” that a rescission would “impose[ ] on DHS,” the Attorney General urged DHS to “consider an orderly and efficient wind-down process.” Ibid.
The next day, Duke acted on the Attorney General’s advice. In her decision memorandum, Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the Attorney General’s letter. App. to Pet. for Cert. 111a–117a. “Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings” and the “letter from the Attorney General,” she concluded that the “DACA program should be terminated.” Id., at 117a.

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Duke then detailed how the program would be wound
down: No new applications would be accepted, but DHS would entertain applications for two-year renewals from DACA recipients whose benefits were set to expire within
six months. For all other DACA recipients, previously issued grants of deferred action and work authorization
would not be revoked but would expire on their own terms, with no prospect for renewal. Id., at 117a–118a.

B
Within days of Acting Secretary Duke’s rescission announcement, multiple groups of plaintiffs ranging from individual DACA recipients and States to the Regents of the University of California and the National Association for the Advancement of Colored People challenged her decision in the U. S. District Courts for the Northern District of California (Regents, No. 18–587), the Eastern District of New York (Batalla Vidal, No. 18–589), and the District of Columbia (NAACP, No. 18–588). The relevant claims are that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause.1
All three District Courts ruled for the plaintiffs, albeit at different stages of the proceedings.2 In doing so, each court rejected the Government’s threshold arguments that the

—————— 1 Plaintiffs also raised notice and comment claims, which uniformly
failed below, and assorted due process challenges, some of which survived motions to dismiss. Those claims are not before us.
2 In a related challenge not at issue here, the District Court for the District of Maryland granted partial summary judgment in favor of the Government. Casa de Maryland v. United States Dept. of Homeland Security, 284 F. Supp. 3d 758 (2018). After the Government filed petitions for certiorari in the instant cases, the Fourth Circuit reversed that decision and vacated Acting Secretary Duke’s rescission as arbitrary and capricious. Casa de Maryland v. United States Dept. of Homeland Security, 924 F. 3d 684 (2019), cert. pending, No. 18–1469. The Fourth Circuit has since stayed its mandate.

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Opinion of the Court
claims were unreviewable under the APA and that the INA deprived the court of jurisdiction. 298 F. Supp. 3d 209, 223–224, 234–235 (DC 2018); 279 F. Supp. 3d 1011, 1029– 1033 (ND Cal. 2018); 295 F. Supp. 3d 127, 150, 153–154 (EDNY 2017).
In Regents and Batalla Vidal, the District Courts held that the equal protection claims were adequately alleged. 298 F. Supp. 3d 1304, 1315 (ND Cal. 2018); 291 F. Supp. 3d 260, 279 (EDNY 2018). Those courts also entered coextensive nationwide preliminary injunctions, based on the conclusion that the plaintiffs were likely to succeed on the merits of their claims that the rescission was arbitrary and capricious. These injunctions did not require DHS to accept new applications, but did order the agency to allow DACA recipients to “renew their enrollments.” 279 F. Supp. 3d, at 1048; see 279 F. Supp. 3d 401, 437 (EDNY 2018).
In NAACP, the D. C. District Court took a different course. In April 2018, it deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Secretary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawfulness.” 298 F. Supp. 3d, at 243. The District Court stayed its order for 90 days to permit DHS to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” Id., at 245.
Two months later, Duke’s successor, Secretary Kirstjen M. Nielsen, responded via memorandum. App. to Pet. for Cert. 120a–126a. She explained that, “[h]aving considered the Duke memorandum,” she “decline[d] to disturb” the rescission. Id., at 121a. Secretary Nielsen went on to articulate her “understanding” of Duke’s memorandum, identifying three reasons why, in Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” Ibid. First, she reiterated that, “as the Attorney

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

General concluded, the DACA policy was contrary to law.”
Id., at 122a. Second, she added that, regardless, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questiona-
ble” policies. Id., at 123a. Third, she identified multiple policy reasons for rescinding DACA, including (1) the belief
that any class-based immigration relief should come from Congress, not through executive non-enforcement; (2) DHS’s preference for exercising prosecutorial discretion on
“a truly individualized, case-by-case basis”; and (3) the importance of “project[ing] a message” that immigration laws
would be enforced against all classes and categories of aliens. Id., at 123a–124a. In her final paragraph, Secretary
Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “outweigh the questionable legality of the DACA policy and the
other reasons” for the rescission discussed in her memorandum. Id., at 125a.
The Government asked the D. C. District Court to revise its prior order in light of the reasons provided by Secretary Nielsen, but the court declined. In the court’s view, the new
memorandum, which “fail[ed] to elaborate meaningfully” on the agency’s illegality rationale, still did not provide an
adequate explanation for the September 2017 rescission. 315 F. Supp. 3d 457, 460, 473–474 (2018).
The Government appealed the various District Court de-
cisions to the Second, Ninth, and D. C. Circuits, respectively. In November 2018, while those appeals were pend-
ing, the Government simultaneously filed three petitions for certiorari before judgment. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F. 3d
476 (2018), but before rulings from the other two Circuits, we granted the petitions and consolidated the cases for ar-
gument. 588 U. S. ___ (2019). The issues raised here are (1) whether the APA claims are reviewable, (2) if so,

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Opinion of the Court
whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim.
II
The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.
The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971).
But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction.
A
The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’ ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (quoting §702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review,

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

§701(a)(1), or that the “agency action is committed to
agency discretion by law,” §701(a)(2). The latter exception is at issue here.
To “honor the presumption of review, we have read the
exception in §701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___
(2018) (slip op., at 12), confining it to those rare “administrative decision[s] traditionally left to agency discretion,” Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited cat-
egory of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v.
Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government primarily relies.
In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement
action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA’s denial of that petition was presumptively unreviewable in
light of the well-established “tradition” that “an agency’s decision not to prosecute or enforce” is “generally commit-
ted to an agency’s absolute discretion.” Id., at 831. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision “often involves
a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” such as
“whether the particular enforcement action requested best fits the agency’s overall policies.” Ibid. The decision also
mirrors, “to some extent,” a prosecutor’s decision not to indict, which has “long been regarded as the special province of the Executive Branch.” Id., at 832. And, as a practical
matter, “when an agency refuses to act” there is no action to “provide[ ] a focus for judicial review.” Ibid.
The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government
argues, the agency must balance factors peculiarly within

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Opinion of the Court
its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable.
But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” Id., at 117a. And the result of these adjudications—DHS’s decision to “grant deferred action,” Brief for Petitioners 45—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” Chaney, 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832.
The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

types of benefits is an interest “courts often are called upon
to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determi-
nation for Social Security benefits). Because the DACA program is more than a non-enforce-
ment policy, its rescission is subject to review under the
APA.

B
The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies.
Section 1252(b)(9) bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien.” 66 Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, §1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision . . . to seek removal,” or “the process by which . . . removability will be determined.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 10–11); id., at ___ (BREYER, J., dissenting) (slip op., at 31). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.
Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders.” §1252(g). We have previously rejected as “implausible” the Government’s suggestion that §1252(g) covers “all claims arising from deportation proceedings” or imposes “a general jurisdictional limitation.” Reno v. American-Arab AntiDiscrimination Comm., 525 U. S. 471, 482 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a

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Opinion of the Court
removal order. With these preliminary arguments out of the way, we
proceed to the merits.
III A
Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” 298 F. Supp. 3d, at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security—the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke.
It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan, 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of the agency action.” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v.

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REGENTS OF UNIV. OF CAL.

Opinion of the Court

Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per-
mitting an agency to provide an “amplified articulation” of a prior “conclusory” observation (internal quotation marks omitted)). This route has important limitations. When an
agency’s initial explanation “indicate[s] the determinative reason for the final action taken,” the agency may elaborate
later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam). Alternatively, the agency can “deal with the problem
afresh” by taking new agency action. SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) (Chenery II). An agency taking
this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action.
The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by
new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new
decision, she “decline[d] to disturb the Duke memorandum’s rescission” and instead “provide[d] further explanation” for that action. App. to Pet. for Cert. 121a. Indeed,
the Government’s subsequent request for reconsideration described the Nielsen Memorandum as “additional expla-
nation for [Duke’s] decision” and asked the District Court to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” Motion to Revise Order in No. 17–
cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of JUSTICE
KAVANAUGH in dissent, post, at 4 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing
a new policy. Because Secretary Nielsen chose to elaborate on the rea-
sons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to

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15

Opinion of the Court
ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.” Overton Park, 401 U. S., at 420. But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal.
Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort.
The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-bycase decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.
The Government, echoed by JUSTICE KAVANAUGH, protests that requiring a new decision before considering Nielsen’s new justifications would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766,

16

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

n. 6 (1969) (plurality opinion). See also post, at 5. Proce-
dural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes
“agency accountability,” Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the
public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confi-
dence that the reasons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham
Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifica-
tions, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U. S.
80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered
nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation.
JUSTICE KAVANAUGH asserts that this “foundational principle of administrative law,” Michigan, 576 U. S., at
758, actually limits only what lawyers may argue, not what agencies may do. Post, at 5. While it is true that the Court
has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc ration-
alizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with
equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency
or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981)
(“[T]he post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action.”); Overton

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17

Opinion of the Court
Park, 401 U. S., at 419 (rejecting “litigation affidavits” from agency officials as “merely ‘post hoc’ rationalizations”).3
Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.
B
We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission was succinct: “Taking into consideration” the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” App. to Pet. for Cert. 117a.4
—————— 3 JUSTICE KAVANAUGH further argues that the contemporaneous expla-
nation requirement applies only to agency adjudications, not rulemakings. Post, at 5–6 (opinion concurring in judgment in part and dissenting in part). But he cites no authority limiting this basic principle— which the Court regularly articulates in the context of rulemakings—to adjudications. The Government does not even raise this unheralded argument.
4 The Government contends that Acting Secretary Duke also focused on litigation risk. Although the background section of her memo references a letter from the Texas Attorney General threatening to challenge DACA, the memo never asserts that the rescission was intended to avert litigation. And, given the Attorney General’s conclusion that the policy was unlawful—and thus presumably could not be maintained or defended in its current form—it is difficult to see how the risk of litigation

18

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Respondents maintain that this explanation is deficient
for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful,
and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our
view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority—she was bound by the Attorney General’s legal determination.
The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and en-
force immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8
U. S. C. §1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewa-
bility sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They
did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they dis-
cuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking
the Attorney General’s legal conclusion. Because of these gaps in respondents’ briefing, we do not
evaluate the claims challenging the explanation and cor-
rectness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Sec-
retary Duke “failed to consider . . . important aspect[s] of the problem” before her. Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983).

—————— carried any independent weight.

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Opinion of the Court
Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.
Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions on eight transition issues). Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid.
But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. The Attorney General concluded that “the DACA policy has the same legal . . . defects that the courts recognized as to DAPA.” App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secretary’s decision” to grant “eligibility for benefits”— including work authorization, Social Security, and Medicare—to unauthorized aliens on “a class-wide basis.” Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of §1252(g)); id., at 166 (reviewability); id., at 176–177 (notice and comment); id., at 184 (substantive APA). And the Court ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work authorization and public benefits. Id., at 181–182 (internal quotation marks omitted).5
—————— 5 As the Fifth Circuit noted, DAPA recipients were eligible for Social

20

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

But there is more to DAPA (and DACA) than such bene-
fits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit
was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the “challenged por-
tion of DAPA’s deferred-action program” was the decision to make DAPA recipients eligible for benefits. See Texas, 809 F. 3d, at 168, and n. 108. The other “[p]art of DAPA,”
the court noted, “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as
to a class of what he deem[ed] to be low-priority illegal aliens.” Id., at 166. Borrowing from this Court’s prior description of deferred action, the Fifth Circuit observed that
“the states do not challenge the Secretary’s decision to ‘decline to institute proceedings, terminate proceedings, or de-
cline to execute a final order of deportation.’ ” Id., at 168 (quoting Reno, 525 U. S., at 484). And the Fifth Circuit un-
derscored that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary’s class-based “enforcement priorities.”
Texas, 809 F. 3d, at 166, 169. In other words, the Secretary’s forbearance authority was unimpaired.
Acting Secretary Duke recognized that the Fifth Circuit’s holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit con-

—————— Security and Medicare benefits because they had been designated “lawfully present.” Texas, 809 F. 3d, at 168. Lawful presence is a statutory prerequisite for receipt of certain benefits. See id., at 148 (citing 8 U. S. C. §1611). It is not the same as forbearance nor does it flow inexorably from forbearance. Thus, while deferred action recipients have been designated lawfully present for purposes of Social Security and Medicare eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies can also exclude them from this designation, see 45 CFR §152.2(8) (2019) (specifying that DACA recipients are not considered lawfully present for purposes of coverage under the Affordable Care Act).

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Opinion of the Court
cluded that DAPA “conflicted with the discretion authorized by Congress” because the INA “ ‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’ ” App. to Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at 184). Duke did not characterize the opinion as one about forbearance.
In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.
That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U. S., at 37–38, 46. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38.
We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only “disallow[ing] compliance by means of ” automatic seatbelts. Id., at 47. It did “not cast doubt” on the

22

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

“efficacy of airbag technology” or upon “the need for a
passive restraint standard.” Ibid. Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory
passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.”
Id., at 51. While the factual setting is different here, the error is the
same. Even if it is illegal for DHS to extend work authori-
zation and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. Id., at 47. It
did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to child-
hood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children
and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be re-
scinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm, 463 U. S., at 51.6
The Government acknowledges that “[d]eferred action
coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists,
however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the

—————— 6 The three-page memorandum that established DACA is devoted en-
tirely to forbearance, save for one sentence directing USCIS to “determine whether [DACA recipients] qualify for work authorization.” App. to Pet. for Cert. 101a. The benefits associated with DACA flow from a separate regulation. See 8 CFR §1.3(a)(4)(vi); see also 42 CFR §417.422(h) (cross-referencing 8 CFR §1.3). Thus, DHS could have addressed the Attorney General’s determination that such benefits were impermissible under the INA by amending 8 CFR §1.3 to exclude DACA recipients from those benefits without rescinding the DACA Memorandum and the forbearance policy it established. But Duke’s rescission memo shows no cognizance of this possibility.

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Opinion of the Court
two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.
The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post, at 21– 22, n. 14 (opinion of THOMAS, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 21. The dissent instead rests on the Attorney General’s legal determination—which considered only benefits—“to supply the ‘reasoned analysis’ ” to support rescission of both benefits and forbearance. Post, at 22 (quoting State Farm, 463 U. S., at 42). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].” Id., at 51. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm, 463 U. S., at 43.
That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’ ” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016)

24

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

(slip op., at 9) (quoting Fox Television, 556 U. S., at 515). “It
would be arbitrary and capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did.
For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the
lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and pro-
vided benefits only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opin-
ion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such fea-
tures automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that
consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such
consideration in the Duke Memorandum. Respondents and their amici assert that there was much
for DHS to consider. They stress that, since 2012, DACA
recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even
married and had children, all in reliance” on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The conse-
quences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including
their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at
41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143
Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion).

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Opinion of the Court
In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid.
These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.
DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” App. to Pet. for Cert. 116a–118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be “another exercise of unlawful power,” post, at 23 (opinion of THOMAS, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a.

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Had Duke considered reliance interests, she might, for
example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommo-
dating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say,
graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient
weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.
To be clear, DHS was not required to do any of this or to
“consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to
explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank
slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such
interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its
view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that
result. See post, at 19–23 (opinion of THOMAS, J.). The dissent is correct that DACA was rescinded because
of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination fore-
closed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters
but did not. That failure was arbitrary and capricious in violation of the APA.

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27

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.
IV
Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment.
The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab AntiDiscrimination Committee. See 525 U. S., at 488 (holding that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation”). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient.
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized

28

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.

share of recipients of any cross-cutting immigration relief
program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec.
2018), https://www.dhs.gov/sites/default/files/publications/ 18_1214_PLCY_pops-est-report.pdf. Were this fact suffi-
cient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as
recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the
June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did
not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that
DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identified
problem. Finally, the cited statements are unilluminating. The
relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements
by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respond-
ents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these state-
ments—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of
the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to

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29

Opinion of the Court
raise a plausible inference that the rescission was motivated by animus.
* * *
We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.
The judgment in NAACP, No. 18–588, is affirmed.7 The judgment in Regents, No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

—————— 7 Our affirmance of the NAACP order vacating the rescission makes it
unnecessary to examine the propriety of the nationwide scope of the injunctions issued by the District Courts in Regents and Batalla Vidal.

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1

SOOpTiOnMioAnYOofRS, JO.T,OcMonAcYuOrRr,inJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE SOTOMAYOR, concurring in part, concurring in the judgment in part, and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

The majority rightly holds that the Department of Home-
land Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any chal-
lenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing
record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand.
Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that
would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared
this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F.
Supp. 3d 260, 274 (EDNY 2018). I too would permit respondents’ claims to proceed on re-
mand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either sin-
gly or in concert, establishes a plausible equal protection claim.” Ante, at 27. But it reaches that conclusion by dis-
counting some allegations altogether and by narrowly viewing the rest.
First, the plurality dismisses the statements that President Trump made both before and after he assumed office. The Batalla Vidal complaints catalog then-candidate
Trump’s declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals,
drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (internal quotation marks omitted). The Regents complaints ad-

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3

Opinion of SOTOMAYOR, J.
ditionally quote President Trump’s 2017 statement comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” 298 F. Supp. 3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted). The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.” Ante, at 28.
But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, 585 U. S. ___, ___, n. 3 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 11, n. 3). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017), which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President’s campaign statements about Muslims). Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” 585 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 13). This perception provides respondents with grounds to litigate their equal protection claims further.
Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. Ante, at 28 (“Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds”). But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss

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DEPARTMENT OF HOMELAND SECURITY v.

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Opinion of SOTOMAYOR, J.

stage, I would not so readily dismiss the allegation that an
executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.
Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged deci-
sion.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to
DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Perma-
nent Residents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termi-
nation. The abrupt change in position plausibly suggests that something other than questions about the legality of
DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Depart-
ment of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plural-
ity conclude otherwise.

* * *
The facts in respondents’ complaints create more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U. S., at 678. Whether they ultimately amount to actionable discrimination should be determined only after factual development on remand. Because the Court prematurely disposes of respondents’ equal protection claims by overlooking the strength of their complaints, I join all but Part IV of the opinion and do not concur in the corresponding part of the judgment.

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1

TOHpOinMiAoSn, oJf.,TdHisOsMeAnSti,nJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

Between 2001 and 2011, Congress considered over two
dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the
wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters
into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as
Deferred Action for Childhood Arrivals (DACA). The threepage DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary
lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Act-
ing Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded
DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.
Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging
in the routine application of standard principles of administrative law. On the contrary, this is anything but a stand-
ard administrative law case. DHS created DACA during the Obama administration
without any statutory authorization and without going
through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority
does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capri-
cious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s
determination of illegality is sound, our review should be at an end.

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THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.
Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part.1
I A
In 2012, after more than two dozen attempts by Congress to grant lawful status to aliens who were brought to this country as children,2 the then-Secretary of Homeland Security Janet Napolitano announced, by memorandum, a new
—————— 1 I concur in the judgment insofar as the majority rejects respondents’
equal protection claim. 2 See Immigrant Children’s Educational Advancement and Dropout

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

“prosecutorial discretion” policy known as DACA. App. to
Pet. for Cert. in No. 18–587, p. 97a. The memorandum directed immigration enforcement officers not to remove “certain young people who were brought to this country as chil-
dren” that met delineated criteria. Id., at 97a–98a. In the Secretary’s view, the program was consistent with “the
framework of the existing law.” Id., at 101a. DACA granted a renewable 2-year period of “deferred ac-
tion” that made approximately 1.7 million otherwise remov-
able aliens eligible to remain in this country temporarily.3 By granting deferred action, the memorandum also made
recipients eligible for certain state and federal benefits, including Medicare and Social Security. See 8 U. S. C. §§1611(b)(2)–(4); 8 CFR §1.3(a)(4)(vi) (2020); 45 CFR
§152.2(4)(vi) (2019). In addition, deferred action enabled the recipients to seek work authorization. 8 U. S. C.

—————— Prevention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C; DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V, Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess.
3 See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From New Deportation Rules (Aug. 14, 2012).

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§1324a(h)(3)(B); 8 CFR §274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101a.
In 2014, then-Secretary of Homeland Security Jeh Johnson broadened the deferred-action program in yet another brief memorandum. This 2014 memorandum expanded DACA eligibility by extending the deferred-action period to three years and by relaxing other criteria. It also implemented a related program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA allowed unlawfully present parents to obtain deferred action derivatively through their children who were either citizens or lawful permanent residents. Approximately 4.3 million aliens qualified for DAPA and, as with DACA, these individuals would have become eligible for certain federal and state benefits upon the approval of their DAPA applications. See Texas v. United States, 809 F. 3d 134, 181 (CA5 2015). Nevertheless, the 2014 memorandum repeated the incongruous assertion that these programs “d[id] not confer any form of legal status in this country” and added that deferred action “may be terminated at any time at the agency’s discretion.” App. to Pet. for Cert. in No. 18–587, at 104a.
B
Twenty-six States filed suit to enjoin the implementation of these new programs, DAPA and “expanded DACA,” maintaining that they violated the Constitution, the Administrative Procedure Act (APA), and the Immigration and Naturalization Act (INA). The States contended that, because the 2014 memorandum allowed aliens to receive deferred action and other benefits, it amounted to a legislative rule that had to comply with the APA’s notice and

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

comment procedures. The States also argued that DHS’ de-
cision to recategorize an entire class of aliens from “unlawfully present” to “lawfully present” exceeded its statutory authority under the federal immigration laws. According
to the States, these defects rendered the 2014 memorandum arbitrary, capricious, or otherwise not in accordance
with law. The District Court preliminarily enjoined DAPA and ex-
panded DACA. The Fifth Circuit affirmed, rejecting DHS’
claim that the programs were an exercise of prosecutorial discretion. Texas, 809 F. 3d, at 167, 188. The court con-
cluded that the States were likely to succeed on their claim that the 2014 memorandum was a legislative rule that had to be adopted through notice and comment rulemaking. Id.,
at 171–178. The court further concluded that the 2014 memorandum was “substantively contrary to law” because
the INA did not grant DHS the statutory authority to implement either program. Id., at 170, 178–186.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote. United States v. Texas, 579 U. S. ___ (2016) (per curiam).

C
The 2014 memorandum was rescinded on June 15, 2017, before taking effect. Shortly after that rescission, several of the plaintiff States sent a letter to then-Attorney General Jefferson Sessions III. They contended that the 2012 DACA memorandum was also legally defective because, “just like DAPA, DACA unilaterally confers eligibility for . . . lawful presence without any statutory authorization from Congress.” App. 873. The States wrote that they would amend their complaint to challenge DACA if the administration did not rescind the 2012 memorandum creating DACA by September 5, 2017.
On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine

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THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
Duke, advising her to rescind DACA. Sessions stated that, in his legal opinion, DACA took effect “through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id., at 877. The letter also stated that DACA was infected with the “same legal . . . defects that the courts recognized as to DAPA,” id., at 878, and thus DACA would likely be enjoined as well.
Then-Acting Secretary Duke rescinded DACA the next day, also through a memorandum. Her memorandum began by noting that DACA “purported to use deferred action . . . to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conflicted with the discretion authorized by Congress” because “the [INA] flatly does not permit the reclassification of millions of illegal aliens as lawfully present.” Id., at 114a (internal quotation marks omitted). Finally, the memorandum accepted then-Attorney General Sessions’ legal determination that DACA was unlawful for the same reasons as DAPA. See §1103(a)(1). In light of the legal conclusions reached by the Fifth Circuit and the Attorney General, then-Acting Secretary Duke set forth the procedures for winding down DACA.
These three cases soon followed. In each, respondents claimed, among other things, that DACA’s rescission was arbitrary and capricious under the APA. Two District Courts granted a preliminary nationwide injunction, while the third vacated the rescission.
II
“ ‘[A]n agency literally has no power to act . . . unless and

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

until Congress confers power upon it.’ ” Arlington v. FCC,
569 U. S. 290, 317 (2013) (ROBERTS, C. J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355,
374 (1986)). When an agency exercises power beyond the bounds of its authority, it acts unlawfully. See, e.g., SAS Institute Inc. v. Iancu, 584 U. S. ___, ___, n. (2018) (slip op.,
at 11, n.). The 2012 memorandum creating DACA provides a poignant illustration of ultra vires agency action.
DACA alters how the immigration laws apply to a certain class of aliens. “DACA [recipients] primarily entered the country either by overstaying a visa or by entering without
inspection, and the INA instructs that aliens in both classes are removable.” Texas v. United States, 328 F. Supp. 3d
662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its recipients deferred action, i.e., a decision to “de-
cline to institute [removal] proceedings, terminate [removal] proceedings, or decline to institute a final order of [removal].” Reno v. American-Arab Anti-Discrimination
Comm., 525 U. S. 471, 484 (1999) (internal quotation marks omitted). Under other regulations, recipients of deferred
action are deemed lawfully present for purposes of certain federal benefits. See supra, at 4. Thus, DACA in effect cre-
ated a new exception to the statutory provisions governing removability and, in the process, conferred lawful presence on an entire class of aliens.
To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify remov-
able DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures. No party disputes that the immigration
statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immi-
gration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA
is substantively unlawful.

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This conclusion should begin and end our review. The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.
A
Congress has not authorized DHS to reclassify an entire class of removable aliens as lawfully present or to categorically exempt aliens from statutory removal provisions.
1
I begin with lawful presence. As just stated, nothing in the federal immigration laws expressly delegates to DHS the unfettered discretion to create new categories of lawfully present aliens. And, there is no basis for concluding that Congress implicitly delegated to DHS the power to reclassify categories of aliens as lawfully present. The immigration statutes provide numerous ways to obtain lawful presence, both temporary and permanent. The highly detailed nature of these provisions indicates that Congress has exhaustively provided for all of the ways that it thought lawful presence should be obtainable, leaving no discretion to DHS to add new pathways.
For example, federal immigration laws provide over 60 temporary nonimmigrant visa options, including visas for ambassadors, full-time students and their spouses and children, those engaged to marry a United States citizen within 90 days of arrival, athletes and performers, and aliens with specialized knowledge related to their employers. See §§1101(a)(15)(A)–(V), 1184; 8 CFR §214.1; see also Congressional Research Service, J. Wilson, Nonimmigrant and Immigrant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” into the United States “for urgent

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

humanitarian reasons or [a] significant public benefit,” 8
U. S. C. §1182(d)(5)(A); provide for temporary protected status when the Attorney General finds that removal to a country with an ongoing armed conflict “would pose a seri-
ous threat to [an alien’s] personal safety,” §1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consulta-
tion with the Secretary of State) to waive visa requirements for certain aliens for up to 90 days, §§1187(a)–(d).
The immigration laws are equally complex and detailed
when it comes to obtaining lawful permanent residence. Congress has expressly specified numerous avenues for obtaining an immigrant visa, which aliens may then use
to become lawful permanent residents. §§1201, 1255(a). Among other categories, immigrant visas are available to
specified family-sponsored aliens, aliens with advanced degrees or exceptional abilities, certain types of skilled and unskilled workers, “special immigrants,” and those enter-
ing the country to “engag[e] in a new commercial enterprise.” §§1153(a)–(b), 1154; see also Congressional Re-
search Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful permanent residence under certain condi-
tions, §1159; 8 CFR §§209.1, 209.2.4 As with temporary lawful presence, each avenue to lawful permanent resi-
dence status has its own set of rules and exceptions.5 As the Fifth Circuit held in the DAPA litigation, a conclu-
sion with which then-Attorney General Sessions agreed,
“specific and detailed provisions[ of] the INA expressly and

—————— 4 The immigration statutes also provide for conditional lawful perma-
nent residence status. See §1186a(b)(1)(A)(i) (two years for spouses to demonstrate that the marriage “was [not] entered into for the purpose of procuring an alien’s admission as an immigrant”); §1186b (qualifying business entrepreneurs).
5 For instance, Congress has carved out rules for aliens who served in the Armed Forces, §§1438–1440, and alien spouses who have been subject to domestic abuse, §§1186a(c)(4)(C)–(D).

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carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.” Texas, 809 F. 3d, at 179. In light of this elaborate statutory scheme, the lack of any similar provision for DACA recipients convincingly establishes that Congress left DHS with no discretion to create an additional class of aliens eligible for lawful presence. Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful presence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the agency to fill in the lion’s share of the details, Mistretta v. United States, 488 U. S. 361, 372 (1989), Congress put in place intricate specifications governing eligibility for lawful presence. This comprehensive scheme indicates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memorandum. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125 (2000) (An agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted” (internal quotation marks omitted)); see also ETSI Pipeline Project v. Missouri, 484 U. S. 495, 509–510 (1988).
2
The relief that Congress has extended to removable aliens likewise confirms that DACA exceeds DHS’ delegated authority. Through deferred action, DACA grants temporary relief to removable aliens on a programmatic scale. See Texas, 328 F. Supp. 3d, at 714. But as with lawful presence, Congress did not expressly grant DHS the authority to create categorical exceptions to the statute’s removal requirements. And again, as with lawful presence, the intricate level of detail in the federal immigration laws regarding relief from removal indicates that DHS has no discretionary authority to supplement that relief with an

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

entirely new programmatic exemption.
At the outset, Congress clearly knows how to provide for classwide deferred action when it wishes to do so. On multiple occasions, Congress has used express language to
make certain classes of individuals eligible for deferred action. See 8 U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain indi-
viduals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1522 (“ ‘Any individ-
ual described in subclause (I) is eligible for deferred action’ ”); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Ter-
rorism (USA PATRIOT ACT) Act of 2001, §423(b), 115 Stat. 361 (“Such spouse, child, son, or daughter may be eligible
for deferred action”); National Defense Authorization Act for Fiscal Year 2004, §§1703(c)(1)(A), (2), 117 Stat. 1694– 1695 (“Such spouse or child shall be eligible for deferred ac-
tion”).6 Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws con-
tain no indication that DHS can, at will, create its own categorical policies for deferred action.
Other provisions pertaining to relief from removal fur-
ther demonstrate that DHS lacked the delegated authority

—————— 6 In the DAPA litigation, DHS noted that some deferred-action pro-
grams have been implemented by the Executive Branch without explicit legislation. But “ ‘past practice does not, by itself, create [executive] power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had been challenged, it would seem that they would be legally infirm for the same reasons as DACA. Moreover, if DHS had the authority to create new categories of aliens eligible for deferred action, then all of Congress’ deferred-action legislation was but a superfluous exercise. Duncan v. Walker, 533 U. S. 167, 174 (2001). Finally, whereas some deferred-action programs were followed by legislation, DACA has existed for eight years, and Congress is no closer to a legislative solution than it was in 2012. See, e.g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong., 1st Sess.

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to create DACA. As with lawful presence, Congress has provided a plethora of methods by which aliens may seek relief from removal. For instance, both permanent and temporary residents can seek cancellation of removal if they meet certain residency requirements and have not committed certain crimes. §§1229b(a)–(b). And certain nonpermanent residents may have their status adjusted to permanent residence during these proceedings. §1229b(b)(2). Aliens can apply for asylum or withholding of removal during removal proceedings unless they have committed certain crimes. §§1158, 1231(b)(3). Applicants for certain nonimmigrant visas may be granted a stay of removal until the visa application is adjudicated. §1227(d). And, aliens may voluntarily depart rather than be subject to an order of removal. §1229c.
In sum, like lawful presence, Congress has provided for relief from removal in specific and complex ways. This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discretion to DHS to provide additional programmatic forms of relief.7
3
Finally, DHS could not appeal to general grants of authority, such as the Secretary’s ability to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” §1103(a)(3), or to “[e]stablis[h] national immigration enforcement policies and priorities,” 6 U. S. C. §202(5). See also 8 U. S. C. §1103(g)(2). Because we must interpret the statutes “as a
—————— 7 It is uncontested that deferred action frequently occurs on a case-by-
case basis, often justified on the grounds that the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exercises of discretion are permissible, however, we have stated that “[a]n agency confronting resource constraints may change its own conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 327 (2014).

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REGENTS OF UNIV. OF CAL.

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

symmetrical and coherent regulatory scheme,” Gustafson v.
Alloyd Co., 513 U. S. 561, 569 (1995), these grants of authority must be read alongside the express limits contained
within the statute. Basing the Secretary’s ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory
scheme by “allow[ing the Secretary of DHS] to grant lawful presence . . . to any illegal alien in the United States.” Texas, 809 F. 3d, at 184. Not only is this “an untenable po-
sition in light of the INA’s intricate system,” ibid., but it would also render many of those provisions wholly super-
fluous due to DHS’ authority to disregard them at will, Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addi-
tion to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of
the presumption that “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 468 (2001). And it would also conflict with the major questions doctrine, which is based
on the expectation that Congress speaks clearly when it delegates the power to make “decisions of vast economic and political significance.” Utility Air Regulatory Group v. EPA,
573 U. S. 302, 324 (2014) (UARG) (internal quotation marks omitted); see also Texas, 787 F. 3d, at 760–761.
Read together, the detailed statutory provisions governing temporary and lawful permanent resident status, relief
from removal, and classwide deferred-action programs lead ineluctably to the conclusion that DACA is “inconsisten[t] with the design and structure of the statute as a whole.”
University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013). As the District Court stated in
the DAPA litigation and as then-Attorney General Sessions agreed, “[i]nstead of merely refusing to enforce the INA’s
removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence . . . to

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individuals Congress has deemed deportable or removable.” Texas v. United States, 86 F. Supp. 3d 591, 654 (SD Tex. 2015). The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as “alien entrepreneurs,” §1186b, is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary’s pen.
B
Then-Attorney General Sessions concluded that the initial DACA program suffered from the “same legal . . . defects” as DAPA and expanded DACA, finding that, like those programs, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but it is also dispositive for purposes of our review. “It is axiomatic that an administrative agency’s power . . . is limited to the authority granted by Congress.” Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988). DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its rescission.
The majority opts for a different path, all but ignoring DACA’s substantive legal defect. See ante, at 18–19. On the majority’s understanding of APA review, DHS was required to provide additional policy justifications in order to rescind an action that it had no authority to take. This rule “has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court’s opinion.” Massachusetts v. EPA, 549 U. S. 497, 536 (2007) (ROBERTS, C. J., dissenting).
The lack of support for the majority’s position is hardly

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

surprising in light of our Constitution’s separation of pow-
ers. No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio. Cf. Clinton v. City of New
York, 524 U. S. 417 (1998); INS v. Chadha, 462 U. S. 919 (1983); see also EPA v. EME Homer City Generation, L. P.,
572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U. S. 440, 487 (1989)
(Kennedy, J., concurring in judgment). In reviewing agency action, our role is to ensure that Executive Branch officials
do not transgress the proper bounds of their authority, Arlington, 569 U. S., at 327 (ROBERTS, C. J., dissenting), not
to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute’s clear limits, see UARG, 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 462 (2002). Under our precedents, DHS can only exercise the author-
ity that Congress has chosen to delegate to it. See UARG, 573 U. S., at 327. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not
given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the
Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it car-
ried the program forward.

III
The majority’s demanding review of DHS’ decisionmaking process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decisionmaking. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely provides an independent basis for rescinding

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DACA. But at the very least, this procedural defect compounds the absurdity of the majority’s position in these cases.
As described above, DACA fundamentally altered the immigration laws. It created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence. Both changes contravened statutory limits. DACA is thus what is commonly called a substantive or legislative rule.8 As the name implies, our precedents state that legislative rules are those that “have the force and effect of law.” Chrysler Corp. v. Brown, 441 U. S. 281, 295 (1979) (internal quotation marks omitted).
Our precedents allow the vast majority of legislative rules to proceed through so-called “informal” notice and comment rulemaking. See United States v. Florida East Coast R. Co., 410 U. S. 224, 237–238 (1973).9 But under our precedents, an agency must engage in certain procedures mandated by the APA before its rule carries legal force. Kisor v. Wilkie, 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 23) (“[A] legislative rule, . . . to be valid[,] must go through notice and comment”); id., at ___ (GORSUCH, J., concurring in judgment) (slip op., at 17) (same); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96 (2015); cf. Azar v. Allina Health Services, 587 U. S. ___, ___ (2019) (slip op., at 1) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in
—————— 8 The majority tacitly acknowledges as much, as it must. See ante, at
11–12. Otherwise, the majority would have to accept that DACA was nothing more than a policy of prosecutorial discretion, which would make its rescission unreviewable. See Heckler v. Chaney, 470 U. S. 821, 831 (1985).
9 As I have previously pointed out, “the APA actually contemplated a much more formal process for most rulemaking.” Perez v. Mortgage Bankers Assn., 575 U. S. 92, 128, n. 5 (2015) (opinion concurring in judgment).

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

the Federal Register, justify the rule by reference to legal
authority, describe “the subjects and issues involved” in the rule, and allow interested parties to submit comments. 5 U. S. C. §§553(b)–(c); see also Kisor, 588 U. S., at ___ (opin-
ion of GORSUCH, J.) (slip op., at 17). As we have recognized recently, use of the word “shall” indicates that these proce-
dures impose mandatory obligations on the agency before it can adopt a valid binding regulation. See Maine Community Health Options v. United States, 590 U. S. ___, ___
(2020) (slip op., at 12). After undergoing notice and comment, the agency then publishes the final rule, which must
“articulate a satisfactory explanation for [the] action including a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor, 588 U. S., at ___ (opinion of GORSUCH,
J.) (slip op., at 17).10 Because DACA has the force and effect of law, DHS was
required to observe the procedures set out in the APA if it wanted to promulgate a legislative rule. It is undisputed, however, that DHS did not do so. It provided no oppor-
tunity for interested parties to submit comments regarding the effect that the program’s dramatic and very significant
change in immigration law would have on various aspects of society. It provided no discussion of economic considerations or national security interests. Nor did it provide any
substantial policy justifications for treating young people

—————— 10 The APA also provides certain exceptions from notice and comment
rulemaking. For example, an agency may promulgate a legally binding rule without notice and comment if good cause exists to do so. 5 U. S. C. §553(b)(B). This text would become a nullity if the agency could achieve the same effect by simply dispensing with notice and comment procedures altogether.

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brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable assertion that DACA was consistent with existing law. Because DHS failed to engage in the statutorily mandated process, DACA never gained status as a legally binding regulation that could impose duties or obligations on third parties. See id., at ___ (plurality opinion) (slip op., at 23); id., at ___ (opinion of GORSUCH, J.) (slip op., at 17).
Given this state of affairs, it is unclear to me why DHS needed to provide any explanation whatsoever when it decided to rescind DACA. Nothing in the APA suggests that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifications beyond acknowledging that the program was simply unlawful from the beginning. And, it is well established that we do not remand for an agency to correct its reasoning when it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 544–545 (2008). Here, remand would be futile, because no amount of policy explanation could cure the fact that DHS lacked statutory authority to enact DACA in the first place.
Instead of recognizing this, the majority now requires the rescinding Department to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA.11 It is also absurd, as evidenced by its application to DACA in these cases. The majority insists that DHS was obligated to discuss its choices regarding benefits and forbearance in great detail, even

—————— 11 Thus, it is not that the APA “should not” be construed to support the
majority’s result, ante, at 26 (emphasis added), it is that the APA does not and cannot support that result.

20

DEPARTMENT OF HOMELAND SECURITY v.

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

though no such detailed discussion accompanied DACA’s is-
suance. And, the majority also requires DHS to discuss reliance interests at length, even though deferred action traditionally does not take reliance interests into account and
DHS was not forced to explain its treatment of reliance interests in the first instance by going through notice and
comment. See infra, at 23–24. The majority’s demand for such an explanation here simply makes little sense.
At bottom, of course, none of this matters, because DHS
did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than suffi-
cient to justify its rescission.12 By requiring more, the majority has distorted the APA review process beyond recognition, further burdening all future attempts to rescind
unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has
impermissibly dressed up a legislative rule as a policy statement and must comply with the relevant procedures before functionally binding regulated parties. See, e.g., Mendoza
v. Perez, 754 F. 3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA, 643 F. 3d 311 (CADC 2011); Na-
tional Family Planning & Reproductive Health Assn., Inc. v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward,
when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement
of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be com-
pelled to treat an invalid legislative rule as though it were legitimate.13

—————— 12 I express no view on what other reasons would justify an agency’s
decision to rescind a procedurally unlawful action. I merely point out that correctly concluding that the program was illegal is sufficient.
13 In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See

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IV
Even if I were to accept the majority’s premise that DACA’s rescission required additional policy justifications, the majority’s reasons for setting aside the agency’s decision still fail.
A
First, the majority claims that the Fifth Circuit discussed only the legality of the 2014 memorandum’s conferral of benefits, not its “forbearance component”—i.e., the decision not to place DACA recipients into removal proceedings. Ante, at 20. The majority, therefore, claims that, notwithstanding the then-Attorney General’s legal conclusion, then-Acting Secretary Duke was required to consider revoking DACA recipients’ lawful presence and other attendant benefits while continuing to defer their removal. Ante, at 22–23. Even assuming the majority correctly characterizes the Fifth Circuit’s opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program.14
—————— Department of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 708 (1999).
14 The majority’s interpretation of the Fifth Circuit’s opinion is highly questionable. Because a grant of deferred action renders DACA recipients eligible for certain benefits and work authorization, it is far from clear that the Department could separate DACA’s “forbearance component” from the major benefits it conferred without running into yet another APA problem. The majority points to the fact that, under the Patient Protection and Affordable Care Act of 2010, relevant regulations exclude those receiving deferred action through DACA from coverage.

22

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

The then-Attorney General reviewed the thorough deci-
sions of the District Court and the Fifth Circuit. Those courts exhaustively examined the INA’s text and structure, the relevant provisions of other federal immigration stat-
utes, the historical practice of deferred action, and the general grants of statutory authority to set immigration policy.
Both decisions concluded that DAPA and expanded DACA violated the carefully crafted federal immigration scheme, that such violations could not be justified through reference
to past exercises of deferred action, and that the general grants of statutory authority did not give DHS the power to enact such a sweeping nonenforcement program. Based on
the reasoning of those decisions, then-Attorney General Sessions concluded that DACA was likewise implemented
without statutory authority. He directed DHS to restore the rule of law. DHS followed the then-Attorney General’s legal analysis and rescinded the program. This legal con-
clusion more than suffices to supply the “reasoned analysis” necessary to rescind an unlawful program. State Farm, 463
U. S., at 42. The majority has no answer except to suggest that this
approach is inconsistent with State Farm. See ante, at 21– 22. But in doing so, the majority ignores the fact that, unlike the typical “prior policy” contemplated by the Court in

—————— Ante, at 19, n. 5. But that misses the point. Those regulations were promulgated before “anyone with deferred action under the DACA process applie[d]” for those benefits. See 77 Fed. Reg. 52616 (2012). By contrast, DACA recipients have been eligible for and have received Medicare, Social Security, and work authorization for years. DHS therefore is not writing on a blank slate. Under the majority’s rule, DHS would need to amend all relevant regulations and explain why all recipients of deferred action who have previously received such benefits may no longer receive them. Alternatively and perhaps more problematically, it would need to provide a reason why other recipients of deferred action should continue to qualify, while DACA recipients should not. It thus seems highly likely that the majority’s proposed course of action would be subject to serious arbitrary and capricious challenges.

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State Farm, DACA is unlawful. Neither State Farm nor any other decision cited by the majority addresses what an agency must do when it has inherited an unlawful program. It is perhaps for this reason that, rather than responding with authority of its own, the majority simply opts to excise the “unlawful policy” aspect from its discussion.
B
Second, the majority claims that DHS erred by failing to take into account the reliance interests of DACA recipients. Ante, at 23–26. But reliance interests are irrelevant when assessing whether to rescind an action that the agency lacked statutory authority to take. No amount of reliance could ever justify continuing a program that allows DHS to wield power that neither Congress nor the Constitution gave it. Any such decision would be “not in accordance with law” or “in excess of statutory . . . authority.” 5 U. S. C. §§706(2)(A), (C). Accordingly, DHS would simply be engaging in yet another exercise of unlawful power if it used reliance interests to justify continuing the initially unlawful program, and a court would be obligated to set aside that action.15
Even if reliance interests were sometimes relevant when rescinding an ultra vires action, the rescission still would not be arbitrary and capricious here. Rather, as the majority does not dispute, the rescission is consistent with how deferred action has always worked. As a general matter, deferred action creates no rights—it exists at the Government’s discretion and can be revoked at any time. See App.

—————— 15 The majority contends that this argument does not carry force be-
cause the rescission implemented a winddown period during which recipients would continue to receive benefits. But whether DHS’ decision to wind down DACA was lawful is a separate question from whether DHS was required to consider reliance interests before discontinuing an unlawful program.

24

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

to Pet. for Cert. in No. 18–587, at 104a (DACA and ex-
panded DACA); 8 CFR §214.11(j)(3) (T visas); §214.14(d)(2) (U visas); 62 Fed. Reg. 63249, 63253 (1997) (discussing Exec. Order No. 12711 for certain citizens of the People’s
Republic of China). The Government has made clear time and again that, because “deferred action is not an immigra-
tion status, no alien has the right to deferred action. It is used solely in the discretion of the [Government] and confers no protection or benefit upon an alien.” DHS Immigra-
tion and Customs Enforcement Office of Detention and Removal, Detention and Deportation Officers’ Field Manual §20.8 (Mar. 27, 2006); see also Memorandum from D. Meiss-
ner, Comm’r, INS, to Regional Directors et al., pp. 11–12 (Nov. 17, 2000); Memorandum from W. Yates, Assoc. Direc-
tor of Operations, DHS, Citizenship and Immigration Servs., to Director, Vt. Serv. Center, p. 5 (2003). Thus, contrary to the majority’s unsupported assertion, ante, at 23,
this longstanding administrative treatment of deferred action provides strong evidence and authority for the proposi-
tion that an agency need not consider reliance interests in this context.16
Finally, it is inconceivable to require DHS to study reliance interests before rescinding DACA considering how the program was previously defended. DHS has made clear
since DACA’s inception that it would not consider such reliance interests. Contemporaneous with the DACA memo, DHS stated that “DHS can terminate or renew deferred ac-
tion at any time at the agency’s discretion.” Consideration

—————— 16 The majority’s approach will make it far more difficult to change
deferred-action programs going forward, which is hardly in keeping with this Court’s own understanding that deferred action is an “exercise in administrative discretion” used for administrative “convenience.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 484 (1999). Agencies will likely be less willing to grant deferred action knowing that any attempts to undo it will require years of litigation and time-consuming rulemakings.

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of Deferred Action for Childhood Arrivals Process, 89 Interpreter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact, DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part because deferred action created no rights on which recipients could rely. Before the Fifth Circuit, DHS stated that “DHS may revoke or terminate deferred action and begin removal proceedings at any time at its discretion.” Brief for Appellants in Texas v. United States, No. 15–40238, p. 7; see also id., at 45–46. And before this Court, in that same litigation, DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Brief for United States in United States v. Texas, O. T. 2015, No. 15–674, p. 5; see also id., at 37. If that treatment of reliance interests was incorrect, it provides yet one more example of a deficiency in DACA’s issuance, not its rescission.
* * *
President Trump’s Acting Secretary of Homeland Security inherited a program created by President Obama’s Secretary that was implemented without statutory authority and without following the APA’s required procedures. Then-Attorney General Sessions correctly concluded that this ultra vires program should be rescinded. These cases could—and should—have ended with a determination that his legal conclusion was correct.
Instead, the majority today concludes that DHS was required to do far more. Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.

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

1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE ALITO, concurring in the judgment in part and dissenting in part.
Anyone interested in the role that the Federal Judiciary

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of ALITO, J.

now plays in our constitutional system should consider
what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for
Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked
this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not
resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, with-
out holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term.
Our constitutional system is not supposed to work that way. I join JUSTICE THOMAS’s opinion. DACA presents a deli-
cate political issue, but that is not our business. As JUSTICE
THOMAS explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination. But even
if DACA were lawful, we would still have no basis for overturning its rescission. First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its re-
scission represented an exercise of that same discretion, and it would therefore be unreviewable under the Adminis-
trative Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v. Chaney, 470 U. S. 821, 831–832 (1985). Second, to the ex-
tent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by JUSTICE KAVANAUGH. See post, at 4–6 (opinion concurring in the
judgment in part and dissenting in part).

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

1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE KAVANAUGH, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.
In 2012, exercising its view of the Executive’s prosecutorial discretion under Article II and the immigration laws, President Obama’s administration unilaterally instituted a program known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, eligible young immigrants may apply for and receive deferred action. They must renew their DACA status every two years. Under the program, the Executive Branch broadly forbears from enforcing certain immigration removal laws against DACA recipients. And by virtue of the forbearance, DACA recipients also become eligible for work authorization and other benefits.
Since 2017, President Trump’s administration has sought to rescind DACA based on its different and narrower understanding of the Executive’s prosecutorial discretion under Article II and the immigration laws. In its view, the Executive Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws against such a large class of individuals. The current administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would address the legal status of those immigrants together with other significant immigration issues.
The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that

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3

Opinion of KAVANAUGH, J.
the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress. The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint— namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA.
The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that standard is deferential to the agency. The Court may not substitute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. See FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).
The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard.
But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA’s deferential arbitrary-and-capricious standard is not whether we agree with the Department’s decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch’s action.
The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Procedure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general . . . applicability and future effect designed to implement . . . policy.” 5 U. S. C. §551(4). Because it is a rule, the Nielsen Memorandum constitutes “agency action.” §551(13). As the Secretary of Homeland Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke’s decision to rescind DACA, or to make a different decision. Like Secretary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Courts often consider an agency’s additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency’s bottom-line decision itself does not change.
Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding

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

5

Opinion of KAVANAUGH, J.
DACA. Ante, at 14–16. Under our precedents, however, the post hoc justification doctrine merely requires that courts assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by agency lawyers during litigation (or by judges). See, e.g., State Farm, 463 U. S., at 50 (“courts may not accept appellate counsel’s post hoc rationalizations for agency action”); FPC v. Texaco Inc., 417 U. S. 380, 397 (1974) (same); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443–444 (1965) (same); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168–169 (1962) (same). As the D. C. Circuit has explained, the post hoc justification doctrine “is not a time barrier which freezes an agency’s exercise of its judgment after an initial decision has been made and bars it from further articulation of its reasoning. It is a rule directed at reviewing courts which forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 F. 3d 1, 6 (2006) (Garland, J.) (internal quotation marks omitted).
Indeed, the ordinary judicial remedy for an agency’s insufficient explanation is to remand for further explanation by the relevant agency personnel. It would make little sense for a court to exclude official explanations by agency personnel such as a Cabinet Secretary simply because the explanations are purportedly post hoc, and then to turn around and remand for further explanation by those same agency personnel. Yet that is the upshot of the Court’s application of the post hoc justification doctrine today. The Court’s refusal to look at the Nielsen Memorandum seems particularly mistaken, moreover, because the Nielsen Memorandum shows that the Department, back in 2018, considered the policy issues that the Court today says the Department did not consider. Ante, at 20–26.
To be sure, cases such as Overton Park and Camp v. Pitts suggest that courts reviewing certain agency adjudications

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

may in some circumstances decline to examine an after-thefact agency explanation. See Camp v. Pitts, 411 U. S. 138, 142–143 (1973) (per curiam); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419–421 (1971). But agency adjudications are “concerned with the determination of past and present rights and liabilities,” Attorney General’s Manual on the Administrative Procedure Act 14 (1947), and implicate the due process interests of the individual parties to the adjudication. Judicial review of an adjudication therefore ordinarily focuses on what happened during the agency’s adjudication process of deciding that individual case.
Even if certain agency adjudications have a slightly more stringent restriction on post hoc explanations, the APA is “based upon a dichotomy between rule making and adjudication,” ibid., and this case involves an ongoing agency rule that has future effect—the rescission of DACA. The Nielsen Memorandum implements and explains the rescission of DACA. I am aware of no case from this Court, and the Court today cites none, that has employed the post hoc justification doctrine to exclude an agency’s official explanation of an agency rule. For purposes of arbitrary-and-capricious review, it does not matter whether the latest official explanation was two years ago or three years ago. What matters is whether the explanation was reasonable and followed the requisite procedures. In my view, the Court should consider the Nielsen Memorandum in deciding whether the Department’s rescission of DACA satisfies the APA’s arbitrary-and-capricious standard.
Because the Court excludes the Nielsen Memorandum, the Court sends the case back to the Department of Homeland Security for further explanation. Although I disagree with the Court’s decision to remand, the only practical consequence of the Court’s decision to remand appears to be some delay. The Court’s decision seems to allow the Department on remand to relabel and reiterate the substance

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

7

Opinion of KAVANAUGH, J.
of the Nielsen Memorandum, perhaps with some elaboration as suggested in the Court’s opinion. Ante, at 23–26.*
* * *
The Court’s resolution of this narrow APA issue of course cannot eliminate the broader uncertainty over the status of the DACA recipients. That uncertainty is a result of Congress’s inability thus far to agree on legislation, which in turn has forced successive administrations to improvise, thereby triggering many rounds of relentless litigation with the prospect of more litigation to come. In contrast to those necessarily short-lived and stopgap administrative measures, the Article I legislative process could produce a sturdy and enduring solution to this issue, one way or the other, and thereby remove the uncertainty that has persisted for years for these young immigrants and the Na-

—————— * Because I conclude that the Executive Branch satisfied the APA’s ar-
bitrary-and-capricious standard, I need not consider whether its prosecutorial enforcement policy was “committed to agency discretion by law” and therefore not subject to APA arbitrary-and-capricious review in the first place. 5 U. S. C. §701(a)(2). Several judges have advanced arguments suggesting that DACA—at least to the extent it was simply an exercise of forbearance authority—and the repeal of DACA are decisions about whether and to what extent to exercise prosecutorial discretion against a class of offenses or individuals, and are therefore unreviewable under the APA as “committed to agency discretion by law.” Ibid.; see Casa De Maryland v. United States Dept. of Homeland Security, 924 F. 3d 684, 709–715 (CA4 2019) (Richardson, J., concurring in part and dissenting in part); Regents of Univ. Cal. v. United States Dept. of Homeland Security, 908 F. 3d 476, 521–523 (CA9 2018) (Owens, J., concurring in judgment); see also Texas v. United States, 809 F. 3d 134, 196–202 (CA5 2015) (King, J., dissenting); Texas v. United States, 787 F. 3d 733, 770– 776 (CA5 2015) (Higginson, J., dissenting); cf. Heckler v. Chaney, 470 U. S. 821, 831–835 (1985); ICC v. Locomotive Engineers, 482 U. S. 270, 277–284 (1987); United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); In re Aiken County, 725 F. 3d 255, 262–264 (CADC 2013).

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

tion’s immigration system. In the meantime, as to the narrow APA question presented here, I appreciate the Court’s careful analysis, but I ultimately disagree with its treatment of the Nielsen Memorandum. I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.

 
 Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 1 of 8

1 JEFFREY M. DAVIDSON (SBN 248620)

MATTHEW RODRIQUEZ

ALAN BERSIN (SBN 63874)

Acting Attorney General of California

2 COVINGTON & BURLING LLP

CHRISTINE CHUANG

One Front Street, 35th Floor

JAMES F. ZAHRADKA II (SBN 196822)

3 San Francisco, CA 94111-5356

Supervising Deputy Attorneys General

Telephone: (415) 591-6000

1515 Clay Street, 20th Floor

4 Facsimile: (415) 591-6091

Oakland, CA 94612-0550

Email: jdavidson@cov.com,

Telephone: (510) 879-1247

5 abersin@cov.com

Email: James.Zahradka@doj.ca.gov

Attorneys for Plaintiff The Regents of the

Attorneys for Plaintiff State of California

6 University of California

JOSEPH W. COTCHETT (SBN 36324)

7 THEODORE J. BOUTROUS, JR. (SBN 132099) JUSTIN T. BERGER (SBN 250346)

ETHAN D. DETTMER (SBN 196046)

COTCHETT, PITRE & McCARTHY, LLP

8 GIBSON, DUNN & CRUTCHER LLP

San Francisco Airport Office Center

333 South Grand Avenue

840 Malcolm Road, Suite 200

9 Los Angeles, CA 90071-3197

Burlingame, CA 94010

Telephone: (213) 229-7000

Telephone: (650) 697-6000

10 Facsimile: (213) 229-7520

Facsimile: (650) 697-0577

Email: tboutrous@gibsondunn.com,

Email: jberger@cpmlegal.com

11 edettmer@gibsondunn.com

Attorneys for Plaintiff City of San Jose

Attorneys for Plaintiffs Dulce Garcia, Miriam

12 Gonzalez Avila, Saul Jimenez Suarez, Norma

STACEY M. LEYTON (SBN 203827)

Ramirez, Jirayut Latthivongskorn, Marco

ALTSHULER BERZON LLP

13 Antonio Salinas Munoz, Dulce Berenice Vargas 177 Post Street, Suite 300

Baltazar, Ericka Lisseth Daniel Santellan, Grisel San Francisco, CA 94108

14 Guadalupe Chavez Diaz, and Felipe Alvarez

Telephone: (415) 421-7151

Carrillo

Facsimile: (415) 362-8064

15

Email: sleyton@altber.com

Attorneys for Plaintiffs County of Santa Clara and

16

Service Employees International Union Local 521

17

(Additional counsel listed on signature page)

18 UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

20 THE REGENTS OF THE UNIVERSITY OF

CASE NO. 17-CV-05211-WHA

21 CALIFORNIA,

STIPULATION RE: VACATION OF

22

Plaintiff,

DEADLINES AND STAY OF

23

v.

PROCEEDINGS PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20,

24 U.S. DEPARTMENT OF HOMELAND

2021 PRESIDENTIAL MEMORANDUM RE: DACA

25 SECURITY and ALEJANDRO MAYORKAS,1 in his official capacity as
26 Secretary of the Department of Homeland Security,

Judge:

Hon. William Alsup

Trial Date: None set

Action Filed: September 8, 2017

27
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary of Homeland Security Alejandro 28 Mayorkas is automatically substituted as a Defendant in his official capacity for former Acting Secretary

of Homeland Security David Pekoske.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 2 of 8

1 Defendants.
2 STATE OF CALIFORNIA, STATE OF MAINE, STATE OF MARYLAND, and
3 STATE OF MINNESOTA,

CASE NO. 17-CV-05235-WHA

4

Plaintiffs,

5

v.

6 U.S. DEPARTMENT OF HOMELAND
7 SECURITY; ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland
8 Security; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; JOSEPH
9 EDLOW, in his purported official capacity as Deputy Director for Policy of the U.S.
10 Citizenship and Immigration Services2; and UNITED STATES OF AMERICA,
11 Defendants.
12
CITY OF SAN JOSE, a municipal corporation, CASE NO. 17-CV-05329-WHA 13
Plaintiffs, 14
v. 15
JOSEPH R. BIDEN, President of the United 16 States, in his official capacity,3 ALEJANDRO
MAYORKAS, in his official capacity, and the 17 UNITED STATES OF AMERICA,

18

Defendants.

19

CASE NO. 17-CV-05380-WHA

DULCE GARCIA; MIRIAM GONZALEZ 20 AVILA; SAUL JIMENEZ SUAREZ;

NORMA RAMIREZ; JIRAYUT 21 LATTHIVONGSKORN; MARCO ANTONIO

SALINAS MUNOZ; DULCE BERENICE 22 VARGAS BALTAZAR; ERICKA LISSETH

DANIEL SANTELLAN; GRISEL 23 GUADALUPE CHAVEZ DIAZ; and FELIPE

ALVAREZ CARRILLO, 24

Plaintiffs, 25

v. 26

27

2 Joseph Edlow left the Department of Homeland Security in January of 2021, and the office he

formerly occupied is currently vacant.

28

3 Pursuant to Federal Rule of Civil Procedure 25(d), President Joseph R. Biden is automatically

substituted as a Defendant in his official capacity for former President Donald J. Trump.

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 3 of 8

1 UNITED STATES OF AMERICA; U.S.
2 DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS, in
3 his official capacity as Secretary of Homeland Security; JOSEPH EDLOW, in his official
4 capacity as purported DHS Deputy Director of Policy; and UNITED STATES CITIZENSHIP
5 AND IMMIGRATION SERVICES,

6

Defendants.

7
COUNTY OF SANTA CLARA and 8 SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521, 9
Plaintiffs, 10
v. 11
JOSEPH R. BIDEN, in his official capacity as 12 President of the United States; ALEJANDRO
MAYORKAS, in his official capacity as 13 Secretary of the Department of Homeland
Security; U.S. DEPARTMENT OF 14 HOMELAND SECURITY; JOSEPH
EDLOW, in his official capacity as Deputy 15 Director of Policy of USCIS; and U.S.
CITIZENSHIP AND IMMIGRATION 16 SERVICES,

17

Defendants.

18

19

20

21

22

23

24

25

26

27

28

CASE NO. 17-CV-05813-WHA

STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 4 of 8

1

STIPULATION RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS

PENDING DEFENDANTS’ ACTIONS PURSUANT TO JANUARY 20, 2021

2

PRESIDENTIAL MEMORANDUM RE: DACA

3

Per Defendants’ filing on January 21, 2021, ECF No. 315, on January 20, 2021, President

4 Biden issued a memorandum entitled “Preserving and Fortifying Deferred Action for Childhood

5 Arrivals (DACA).” 86 Fed. Reg. 7053 (Jan. 25, 2021). In that memorandum, the President

6 instructed the Secretary of Homeland Security, in consultation with the Attorney General, to “take

7 all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

8 Id. at 7053. The Secretary of Homeland Security, in consultation with the Attorney General, is

9 currently working to implement the recent Presidential Memorandum, which may result in further

10 agency action that impacts the substantive and procedural aspects of this litigation.

11

In light of the above, to prevent the unnecessary expenditure of public resources, and to

12 promote judicial economy, the parties hereby stipulate to the following, and request that the

13 Court:

14

 Vacate all pending deadlines in this matter;

15

 Stay further proceedings in this matter pending further court order; and

16

 Order the parties to submit joint status reports every 60 days pending further court order,

17

with the first joint status report to be filed on May 24, 2021.

18 IT IS SO STIPULATED THIS 22 DAY OF MARCH, 2021

19

20

21

22

23

24

25

26

27

28
1
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 5 of 8

1 Dated: March 22, 2021

Respectfully submitted,

2 COVINGTON & BURLING LLP

MATTHEW RODRIQUEZ

Acting Attorney General of California

3 /s/ Jeffrey M. Davidson

4

JEFFREY M. DAVIDSON Attorneys for Plaintiffs The Regents of the

/s/ James F. Zahradka II JAMES F. ZAHRADKA II

5

University of California and Janet Napolitano, in Supervising Deputy Attorney General her official capacity as President of the University Attorneys for Plaintiff State of California

6

of California

AARON FREY

7 GIBSON, DUNN & CRUTCHER LLP

Attorney General of Maine KIMBERLY L. PATWARDHAN (pro hac

8 /s/ Ethan D. Dettmer ETHAN D. DETTMER
9

vice) Deputy Attorney General Attorneys for Plaintiff State of Maine

PUBLIC COUNSEL 10

BRIAN E. FROSH

11

/s/ Mark D. Rosenbaum MARK D. ROSENBAUM

Attorney General of Maryland STEVEN M. SULLIVAN (pro hac vice)

12 Attorneys for Plaintiffs Dulce Garcia, Miriam Solicitor General

Gonzalez Avila, Saul Jimenez Suarez, Norma

Attorneys for Plaintiff State of Maryland

13 Ramirez, Jirayut Latthivongskorn, Marco Antonio

Salinas Munoz, Dulce Berenice Vargas Baltazar, KEITH ELLISON

14 Ericka Lisseth Daniel Santellan, Grisel

Attorney General State of Minnesota

15 Guadalupe Chavez Diaz, and Felipe Alvarez Carrillo

JULIANNA F. PASSE (pro hac vice) Attorneys for Plaintiff State of Minnesota

16 COTCHETT, PITRE & McCARTHY, LLP
17

/s/ Justin T. Berger 18 JUSTIN T. BERGER
Attorneys for Plaintiff City of San Jose 19

20

21

22

23

24

25

26

27

28
2
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 6 of 8

1

ALTSHULER BERZON LLP

2

/s/ Stacey M. Leyton

STACEY M. LEYTON

3

Attorneys for Plaintiffs COUNTY OF

SANTA CLARA AND SERVICE

4

EMPLOYEES INTERNATIONAL

UNION LOCAL 521

5

JAMES R. WILLIAMS (SBN 271253)

6

County Counsel

GRETA S. HANSEN (SBN 251471)

7

LAURA S. TRICE (SBN 284837)

MARCELO QUIÑONES (SBN 279132)

8

HANNAH KIESCHNICK (SBN 319011)

OFFICE OF THE COUNTY COUNSEL

9

70 West Hedding Street, East Wing, Ninth

Floor

10

San Jose, California 95110

Telephone: (408) 299-5900

11

Facsimile: (408) 292-7240

Email: laura.trice@cco.sccgov.org,

12

marcelo.quinones@cco.sccgov.org,

hannah.kieschnick@cco.sccgov.org

13

/s/ Hannah Kieschnick

14

HANNAH KIESCHNICK

Attorneys for Plaintiff COUNTY OF

15

SANTA CLARA

16

17

BRIAN M. BOYNTON

Acting Assistant Attorney General

18

BRAD P. ROSENBERG

19

Assistant Branch Director

20 /s/ Stephen M. Pezzi

21

STEPHEN M. PEZZI (DC Bar #995500)

Trial Attorney

22

United States Department of Justice

Civil Division, Federal Programs Branch

23

1100 L Street, N.W.

24

Washington, DC 20005

Telephone: (202) 305-8576

25

Facsimile: (202) 616-8460

E-mail: stephen.pezzi@usdoj.gov 26

27

Attorneys for Defendants

28
3
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 7 of 8

1

[PROPOSED] ORDER

2

Pursuant to the parties’ stipulation, this Court hereby issues the following ORDER:

3

•

All pending deadlines in this matter are hereby VACATED;

4

•

All further proceedings in this matter are hereby STAYED pending further court

5 order; and

6

•

The parties are hereby ORDERED to submit joint status reports every 60 days

7 pending further court order, with the first joint status report due on May 24, 2021.

8

IT IS SO ORDERED.

9

10

____________________________

11

WILLIAM ALSUP UNITED STATES DISTRICT

12

JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)

Case 3:17-cv-05211-WHA Document 318 Filed 03/22/21 Page 8 of 8

1

ATTESTATION OF SIGNATURES

2 I, James F. Zahradka II, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
3 District of California that concurrence in the filing of this document has been obtained from each
4 signatory hereto.
5

6 Dated: March 22, 2021 7 8

/s/ James F. Zahradka II JAMES F. ZAHRADKA II Supervising Deputy Attorney General Attorney for State of California

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
5
STIP. RE: VACATION OF DEADLINES AND STAY OF PROCEEDINGS All DACA Cases (Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813)