CLOSED,TYPE-C
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-01907-JDB

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE v. TRUMP et al Assigned to: Judge John D. Bates Case: 1:17-cv-02325-JDB
Case in other court: USCA, 18-05243 Cause: 05:551 Administrative Procedure Act

Date Filed: 09/18/2017 Date Terminated: 08/23/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Plaintiff
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), National Headquarters

represented by Douglas James McNamara COHEN, MILSTEIN, SELLERS & TOLL 1100 New York Avenue NW Suite 500, West Tower Washington, DC 20005 (202) 408-4600 Email: dmcnamara@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Sellers COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower Washington, DC 20005 (202) 408-4604 Fax: (202) 408-4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Horwitz COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW Suite 500 East Tower

Plaintiff AMERICAN FEDERATION OF TEACHERS, AFL-CIO
Plaintiff UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFL-CIO, CLC

Washington, DC 20005 (202) 408-4600 Fax: (202) 408-4699 Email: jhorwitz@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie S. Selesnick COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave, NW Suite 500 Washington, DC 20815 (202) 408-4600 Fax: (202) 457-1678 Email: jselesnick@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie S. Selesnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph M. Sellers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie S. Selesnick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

DONALD J. TRUMP in his official capacity as President of the United States
Defendant JEFFERSON B. SESSIONS, III in his official capacity as Attorney General of the United States

represented by Kate Talmor U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514-9239 Fax: (202) 616-8460 Email: kate.talmor@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L St, NW Washington, DC 20005 202-514-1280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 (202) 305-8576 Fax: (202) 616-8470 Email: stephen.pezzi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kate Talmor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant ELAINE C. DUKE in her official capacity as acting Secretary of Homeland Security
Defendant U.S. CITIZENSHIP AND IMMIGRATION SERVICES
Defendant U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kate Talmor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kate Talmor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kate Talmor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland

Defendant DEPARTMENT OF HOMELAND SECURITY
Defendant UNITED STATES OF AMERICA

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kate Talmor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kate Talmor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Pezzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

09/18/2017
09/18/2017 09/19/2017 09/19/2017 09/19/2017
09/19/2017 09/20/2017

COMPLAINT by NAACP against DONALD TRUMP,

1

JEFFERSON BEAUREGARD SESSIONS III, ELAINE C. DUKE,

U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S.

IMMIGRATION AND CUSTOMS ENFORCEMENT,

DEPARTMENT OF HOMELAND SECURITY, UNITED

STATES OF AMERICA ( Filing fee $ 400 receipt number 0090-

5120614) filed by NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE. (Attachments:

# 1 Civil Cover Sheet, # 2 Summons US Attorneys Office)(Sellers,

Joseph) (Entered: 09/18/2017)

Case Assigned to Judge Christopher R. Cooper. (md) (Entered: 09/18/2017)

2 SUMMONS (1) Issued Electronically as to UNITED STATES OF AMERICA, non party U.S. Attorney (Attachments: # 1 Notice of Consent) (md) (Entered: 09/19/2017)
SUMMONS (6) Not Issued as to DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT. (SUMMONS WERE NOT SUBMITTED AT THE TIME COMPLAINT WAS FILED) (md) (Entered: 09/19/2017)
3 REQUEST FOR SUMMONS TO ISSUE 1) Donald Trump; 2) Jefferson Sessions; 3) Elaine Duke; 4) US Citizenship and Immigration Services; 5) US Immigration and Customs Enforcement; 6) Department of Homeland Security; and 7) US

Attorneys Office re 1 Complaint, filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED

PEOPLE. Related document: 1 Complaint, filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE.(Sellers, Joseph) (Entered: 09/19/2017)

4 NOTICE of Appearance by Julia Horwitz on behalf of NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Horwitz, Julia) (Entered: 09/19/2017)

SUMMONS (6) Issued Electronically as to DEPARTMENT OF

5

HOMELAND SECURITY, ELAINE C. DUKE, JEFFERSON

BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S.

CITIZENSHIP AND IMMIGRATION SERVICES, U.S.

IMMIGRATION AND CUSTOMS ENFORCEMENT, and U.S. Attorney General (znmw) (Entered: 09/20/2017)

09/20/2017 6

SUMMONS (1) Reissued Electronically as to UNITED STATES OF AMERICA/U.S. Attorney. (znmw) (Entered: 09/20/2017)

09/25/2017

7 NOTICE of Appearance by Douglas James McNamara on behalf of NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (McNamara, Douglas) (Entered: 09/25/2017)

10/23/2017

8 Consent MOTION for Leave to File Amended Complaint by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Exhibit A - Amended Complaint, # 2 Exhibit B - Proposed Order)(Sellers, Joseph) (Entered: 10/23/2017)

10/24/2017

MINUTE ORDER: Plaintiff NAACP's 8 Consent Motion for Leave to File Amended Complaint is GRANTED. Signed by Judge Christopher R. Cooper on 10/24/2017. (lccrc1) (Entered: 10/24/2017)

10/24/2017

9 MOTION for Scheduling Order by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A - N.D. Cal. Scheduling Order, # 3 Exhibit B - E.D.N.Y. Scheduling Order, # 4 Exhibit C - D. Md. Status Conference Order, # 5 Exhibit D McNamara Email, # 6 Exhibit E - Beckenhauser Email, # 7 Exhibit F - N.D. Cal. Hearing Transcript)(Sellers, Joseph). Added MOTION for Hearing on 10/25/2017 (znmw). (Entered: 10/24/2017)

10/24/2017 10

FIRST AMENDED COMPLAINT against DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA filed by NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFL-CIO, CLC.(znmw) (Entered: 10/25/2017)

10/26/2017

MINUTE ORDER: It is hereby ORDERED that, on or before October 30, 2017, Defendants shall respond to 9 Plaintiffs' Motion for Status Conference and Adoption of Case Management Order. That response shall include Defendants' positions on the statements made in Plaintiffs' Rule 26(f) report, which is attached to Plaintiffs'

10/26/2017 10/30/2017 10/30/2017
11/03/2017
11/08/2017
11/09/2017 11/09/2017 11/21/2017

motion. Signed by Judge Christopher R. Cooper on 10/26/2017. (lccrc1) (Entered: 10/26/2017)
11 NOTICE of Appearance by Rachael Lynn Westmoreland on behalf of All Defendants (Westmoreland, Rachael) (Entered: 10/26/2017)
12 NOTICE of Appearance by Kate Bailey on behalf of All Defendants (Bailey, Kate) (Entered: 10/30/2017)
13 RESPONSE re 9 MOTION for Scheduling Order MOTION for Hearing filed by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA. (Bailey, Kate) (Entered: 10/30/2017)
14 REPLY to opposition to motion re 9 MOTION for Scheduling Order MOTION for Hearing filed by AMERICAN FEDERATION OF TEACHERS, AFL-CIO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFLCIO, CLC. (Sellers, Joseph) (Entered: 11/03/2017)
15 MOTION to Dismiss , MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, UNITED STATES OF AMERICA (Attachments: # 1 Certified Index of Administrative Record, # 2 Text of Proposed Order)(Bailey, Kate) Modified event title on 11/9/2017 (znmw). (Entered: 11/08/2017)
MINUTE ORDER: The Court directs Plaintiffs to file any opposition to Defendants' Motion to Dismiss on or before November 29, 2017. Defendants' reply is due 14 days after Plaintiffs file their opposition. Signed by Judge Christopher R. Cooper on 11/9/2017. (lccrc3) (Entered: 11/09/2017)
Set/Reset Deadlines: Response to Dispositive Motions due by 11/29/2017. (lsj) (Entered: 11/09/2017)
16 Joint MOTION for Scheduling Order and Stipulation Regarding Use of Discovery by AMERICAN FEDERATION OF TEACHERS, AFL-CIO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, UNITED FOOD

11/22/2017 11/27/2017 12/15/2017 01/03/2018 01/10/2018 01/18/2018

AND COMMERCIAL INTERNATIONAL UNION, AFL-CIO, CLC (Sellers, Joseph) (Entered: 11/21/2017)
17 SCHEDULING ORDER: See Order for full briefing schedule. The Court will hold a motions hearing on January 31, 2017 at 10:00 AM in Courtroom 27A. Signed by Judge Christopher R. Cooper on 11/22/2017. (lccrc1) (Entered: 11/22/2017)
Set/Reset Deadlines/Hearings: Dispositive Motions due by 11/22/2017. Response to Dispositive Motions due by 12/15/2017. Reply to Dispositive Motions due by 1/10/2018. Replies due by 1/19/2018. Oral Arguments on Motions set for 1/31/2018 at 10:00 AM in Courtroom 27A before Judge Christopher R. Cooper. (lsj) (Entered: 11/27/2017)
18 MOTION for Nine Declarants to Proceed Pseudonymously by AMERICAN FEDERATION OF TEACHERS, AFL-CIO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFL-CIO, CLC (Attachments: # 1 Text of Proposed Order)(Sellers, Joseph) (Entered: 12/15/2017)
19 Case directly reassigned to Judge John D. Bates as related to 17cv2325 (JDB). Judge Christopher R. Cooper is no longer assigned to the case. (ztnr) (Entered: 01/03/2018)
20 NOTICE of Appearance by Julie S. Selesnick on behalf of AMERICAN FEDERATION OF TEACHERS, AFL-CIO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFL-CIO, CLC (Selesnick, Julie) (Entered: 01/10/2018)
MINUTE ORDER: On the Court's own motion, and upon consideration of the entire record herein, it is hereby ORDERED that this case is CONSOLIDATED with Civil Action No. 17-2325 for purposes of the dispositive motions currently pending in both cases; it is further ORDERED that all filings with respect to those motions shall be made jointly and shall be filed only in 17-2325; it is further ORDERED that counsel of record in both cases shall receive electronic notice of any filings made in either case; and it is further ORDERED that counsel in both cases shall determine how to divide their argument time at the motions hearing currently set for Friday, February 2, 2018 at 9:30 a.m. before Judge John D. Bates. SO ORDERED - by Judge John D. Bates on 1/18/2018. (tb) (Entered: 01/18/2018)

01/25/2018 01/26/2018 01/28/2018 03/14/2018
03/15/2018

Set/Reset Hearings: Telephone Conference set for 1/26/2018 at 02:30 PM in Courtroom 30A before Judge John D. Bates. (tb) (Entered: 01/26/2018)
Minute Entry for proceedings held before Judge John D. Bates: Telephone Conference call held on 1/26/2018. The Motions Hearing presently scheduled for Friday, February 2, 2018 is continued to a date and time to be determined. (Revised Scheduling Order to be Issued) (Court Reporter: Lisa Moreira) (jth) (Entered: 01/26/2018)
Set/Reset Deadlines: Plaintiffs' Reply in support of their 28
Motion for Summary Judgment is due by 2/6/2018. A Joint Status Report representing the parties' respective proposals for scheduling further proceedings in this case is due by 2/22/2018. (jth) (Entered: 01/28/2018)
Minute Entry: Motion Hearing held on 3/14/2018 before Judge John D. Bates re: 15 MOTION to Dismiss MOTION for Summary Judgment filed by JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE. Motion heard and taken under advisement. (Court Reporter Bryan Wayne) (tb) (Entered: 03/14/2018)
21 TRANSCRIPT OF 3/14/18 MOTIONS HEARING before Judge John D. Bates held on March 14, 2018; Page Numbers: 1-95. Date of Issuance: March 15, 2018. Court Reporter: Bryan A. Wayne. Transcripts may be ordered at www.dcd.uscourts.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, PDF or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 4/5/2018. Redacted Transcript Deadline set for 4/15/2018. Release of

04/24/2018 22
04/24/2018 23
06/27/2018 24
06/27/2018
07/11/2018 25
08/03/2018 26
08/03/2018 27
08/03/2018
08/06/2018 28

Transcript Restriction set for 6/13/2018.(Wayne, Bryan) (Entered: 03/15/2018)
ORDER granting in part, denying in part, and deferring in part 15 the government's motion to dismiss; granting in part and denying in part plaintiffs' motion for summary judgment; and disposing of the remaining motions pending in this case. See text of Order for details. Signed by Judge John D. Bates on 4/24/2018. (lcjdb1) (Entered: 04/24/2018)
MEMORANDUM OPINION. Signed by Judge John D. Bates on 4/24/2018. (lcjdb1) (Main Document 23 replaced on 4/26/2018) (ztd). (Entered: 04/24/2018)
SCHEDULING ORDER. See text of Order for details. Signed by Judge John D. Bates on 6/27/2018. (lcjdb1) (Entered: 06/27/2018)
Set/Reset Deadlines: Motion to revive 69 Order is due by 7/11/2018. Responses due by 7/23/2018 Reply due by 7/27/2018. (tb) (Entered: 06/27/2018)
NOTICE of Appearance by Stephen M. Pezzi on behalf of All Defendants (Pezzi, Stephen) (Entered: 07/11/2018)
ORDER denying defendants' motion to revise the Court's April 24, 2018 Order. See text of Order for details. Signed by Judge John D. Bates on 8/3/2018. (lcjdb1) (Entered: 08/03/2018)
MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/3/2018. (lcjdb1) (Entered: 08/03/2018)
Set/Reset Deadlines: The stay of the Court's 4/24/2018 Order vacating the DHS's 9/5/2017 decision rescinding the DACA program is continued until 8/23/2018. Defendants shall file by 8/23/2018 any motion seeking a further stay of the Court's Order pending appeal. (jth) (Entered: 08/03/2018)
NOTICE OF APPEAL TO DC CIRCUIT COURT as to 23
Memorandum & Opinion, 22 Order on Motion for Scheduling Order,, Order on Motion for Hearing,, Order on Motion to Dismiss,, Order on Motion for Summary Judgment,, Order on
Motion for Miscellaneous Relief, 26 Order, 27
Memorandum & Opinion by ELAINE C. DUKE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

08/07/2018 29
08/10/2018
08/15/2018 30
08/17/2018 31
08/17/2018 32
09/19/2019 33
07/23/2020 34

DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, DONALD TRUMP, UNITED STATES OF AMERICA, JEFFERSON BEAUREGARD SESSIONS, III. Fee Status: No Fee Paid. Parties have been notified. (Davis, Kathryn) (Entered: 08/06/2018)
Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because
the appeal was filed by the government re 28 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 08/07/2018)
USCA Case Number 18-5243 for 28 Notice of Appeal to DC Circuit Court,, filed by JEFFERSON BEAUREGARD SESSIONS, III, DONALD TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE. (zrdj) (Entered: 08/10/2018)
RESPONSE to Motion to Stay by AMERICAN FEDERATION OF TEACHERS, AFL-CIO, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, UNITED FOOD AND COMMERCIAL INTERNATIONAL UNION, AFL-CIO, CLC (Attachments: # 1 Exhibit A)(Sellers, Joseph) Modified event title on 8/17/2018 (znmw). (Entered: 08/15/2018)
ORDER granting the government's motion to clarify and granting in part and denying in part the government's motion to stay. See text of Order for details. Signed by Judge John D. Bates on 8/17/2018. (lcjdb1) (Entered: 08/17/2018)
MEMORANDUM OPINION. Signed by Judge John D. Bates on 8/17/2018. (lcjdb1) (Entered: 08/17/2018)
Certified and transmitted Record on Appeal to US Supreme Court
re appeal 28 (jf) (Additional attachment(s) added on 9/19/2019: # 1 Transmittal Letter) (jf). (Entered: 09/19/2019)
ORDER remanding to the Department of Homeland Security. See text of Order for details. Signed by Judge John D. Bates on 7/23/2020. (lcjdb1) (Entered: 07/23/2020)

07/23/2020 35
07/27/2020
07/27/2020

MANDATE of USCA as to (28 in 1:17-cv-01907-JDB) Notice of Appeal to DC Circuit Court,, filed by JEFFERSON B. SESSIONS, III, DONALD J. TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE, (79 in 1:17-cv-02325-JDB) Notice of Appeal to DC Circuit Court,,, filed by JEFFERSON B. SESSIONS, III, DONALD J. TRUMP, UNITED STATES OF AMERICA, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, ELAINE C. DUKE ; USCA Case Number 18-5243. (Attachment: # 1 USCA Order)(zsb) (Entered: 07/24/2020)
MINUTE ORDER: It is hereby ORDERED that the government shall file a status report by not later than August 11, 2020, informing the Court of (1) what steps the government has taken on remand to comply with the Supreme Court's opinion in Department of Homeland Security v. Regents of the University of California,
140 S. Ct. 1891 (2020), which affirmed this Court's 22 26
Orders; and (2) what actions the government has taken in response to other judicial orders bearing on the DACA program that have been issued since the Supreme Court's decision, including any relevant orders in Casa De Maryland v. U.S. Department of Homeland Security, No. 17-cv-2942-PWG (D. Md. 2020); it is further ORDERED that plaintiffs may file a status report by not later than August 11, 2020, informing the Court of any outstanding issues and whether this Court retains authority to address them in
light of its 34 Order remanding to the Department of Homeland Security. SO ORDERED. Signed by Judge John D. Bates on 7/27/2020. (lcjdb1) (Entered: 07/27/2020)
Set/Reset Deadlines: Status Reports due by 8/11/2020. (tb) (Entered: 07/27/2020)

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 Case 1:17-cv-01907-CRC Document 1 Filed 09/18/17 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), National Headquarters 4805 Mt. Hope Drive, Baltimore, MD 21215
Plaintiff,
vs.
DONALD J. TRUMP, in his official capacity as President of the United States, 1600 Pennsylvania Ave., N.W. Washington, D.C. 20006; JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as the Attorney General of the United States; ELAINE C. DUKE, in her official capacity as acting Secretary of Homeland Security, U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; DEPARTMENT OF HOMELAND SECURITY; AND THE UNITED STATES OF AMERICA,
Defendants.

Case No ____________

COMPLAINT I. INTRODUCTION
1. The National Association for the Advancement of Colored People (“NAACP”) brings this action in its organizational capacity against the President of the United States and the federal government for unlawfully reneging on their promise to protect young, undocumented immigrants of color living in the United States. This action alleges violations of the Due Process

Case 1:17-cv-01907-CRC Document 1 Filed 09/18/17 Page 2 of 17
Clause of the Fifth Amendment, the Administrative Procedure Act, and the Regulatory Flexibility Act. This action also seeks declaratory relief pursuant to 28 U.S.C. §2201.
2. The Deferred Action for Childhood Arrivals (“DACA”) refers to the United States’ immigration policy concerning undocumented immigrants who arrived in America as children. Under this policy, people who immigrated to the United States when they were younger than 16 and have lived in the United States continuously since 2007 were eligible to defer deportation indefinitely, attend school, and receive two-year work permits, among other benefits.
3. The vast majority of DACA registrants—approximately 95%—are people of color. The top 24 countries with the highest acceptance rates for DACA applicants include predominately Black countries in Africa and the Caribbean, predominately Latino countries in South and Central America, and countries in East and Southeast Asia.1
4. In exchange for providing the federal government with extensive biographic and biometric information, DACA registrants2 received the United States’ promise that they could build lives for themselves in the United States without fear of prosecution or deportation.
5. However, a little less than two weeks ago, the President of the United States and the United States Attorney General announced their intention to renege on those promises.
6. On September 5, 2017, Attorney General Jeff Sessions, on behalf of President Donald Trump, announced that the Trump Administration was rescinding the DACA program.
1 Eugene Scott, ‘Dreamers’ aren’t just coming from Latin America, WASH. POST (Sept. 7, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/09/07/dreamers-arent-justcoming-from-latin-america/?utm_term=.223e28c69e55.
2 The children of undocumented parents who were brought to this country and grew up here became known as DREAMers, after the DREAM Act, a piece of legislation meant to give them a path to citizenship that was first introduced in 2001. Approximately 1.3 million Dreamers were eligible to enroll in DACA, and to date approximately 800,000 have done so.
2

Case 1:17-cv-01907-CRC Document 1 Filed 09/18/17 Page 3 of 17
The same day, the Department of Homeland Security (“DHS”) issued a memorandum memorializing the rescission. The Attorney General announced that, effective immediately, DHS would stop processing or accepting new DACA applications, cease allowing DACA registrants to visit their families abroad and return to the United States, and issue renewals only for registrants whose terms expired before March 5, 2018 as long as they applied for renewal by October 5, 2018.
7. The Trump Administration announced this rescission without regard to the Due Process rights of the DACA registrants, and without engaging in the analysis or rulemaking procedures required by the Regulatory Flexibility Act and the Administrative Procedure Act, both of which were enacted to safeguard against government action taken without a legitimate and reasoned basis.
8. As a result, the NAACP, whose membership includes DACA registrants across the United States, respectfully requests that this Court declare the termination of the DACA program unlawful, and enjoin the Trump Administration from effectuating its rescission. II. JURISDICTION AND VENUE
9. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 10. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1). Defendants are United States agencies or officers sued in their official capacities. Several Defendant agencies are residents of this judicial district, and a substantial part of the events or omissions giving rise to this Complaint occurred within the District of Columbia. III. PARTIES 11. The National Association for the Advancement of Colored People (NAACP) is the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909, the mission of the NAACP has been to ensure the political, educational, social, and economic
3

Case 1:17-cv-01907-CRC Document 1 Filed 09/18/17 Page 4 of 17
equality of all persons and to eliminate race-based discrimination. The NAACP has fought in the courts for decades to protect the guarantee of equal protection under law. To advance its mission, the NAACP has represented parties in landmark civil rights cases, perhaps most famously in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which outlawed segregation in public schools. The NAACP also has filed numerous amicus briefs over its decades of existence in cases that significantly impact people of color.
12. NAACP has members throughout the country who are enrolled in the DACA Program. Accordingly, the NAACP brings this action on behalf of those members who are currently enrolled in, and who applied to enroll in, the DACA Program. NAACP members who are DACA registrants reside throughout the United States, including in California, Florida, New York, and Rhode Island, as well as other States.
13. Defendant Donald J. Trump is the President of the United States. He authorized the issuance of the Department of Homeland Security (“DHS”) Memorandum that purports to rescind DACA. He is being sued in his official capacity.
14. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States, and announced the rescission of the DACA Program on September 5, 2017. He has ultimate authority over prosecutions by the Department of Justice for violation of the immigration laws. He is being sued in his official capacity.
15. Defendant Elaine C. Duke is the Acting Secretary of the Department of Homeland Security (“DHS”). She is responsible for implementing and enforcing the Immigration and Nationality Act, and oversees the United States Citizenship and Immigration Service (“USCIS”) and the Immigration and Customs Enforcement (“ICE”). She is being sued in her official capacity.
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16. Defendant DHS is a federal cabinet agency responsible for implementing the DACA program. DHS is a Department of the Executive Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 552(f).
17. Defendant USCIS is an Operational and Support Component agency within DHS. USCIS is the sub-agency responsible for administering the DACA program.
18. Defendant ICE is an Operational and Support Component agency within DHS. ICE is responsible for enforcing federal immigration law, including identifying, apprehending, detaining, and removing non-citizens.
19. Defendant the United States of America includes all government agencies and departments responsible for the implementation and rescission of the DACA program. IV. FACTUAL ALLEGATIONS
A. The DACA Program Promised Young Immigrants Opportunities and Indefinite Deferral of Deportation in Exchange for Registration in the DACA Program and Disclosure of Their Immigration Status
20. On June 15, 2012, former Secretary of Homeland Security, Janet Napolitano, issued a memorandum establishing a deferred deportation program. She inveighed against “blindly enforc[ing]” immigration laws to deport those who came to the United States as children, and who have been productive Americans. As part of exercising prosecutorial discretion, the government developed a program that must be meet by Dreamers:
a. That they were under the age of 31 as of June 15, 2012; b. That they entered the United States prior to their 16th birthday; c. That they had resided in the United States since June 15, 2007 and were currently present in the U.S.; d. That they were in the United States on June 15, 2012 and physically in the U.S. at the time they requested deferred action;
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e. That they entered the United States without border inspection before June 15, 2012, or their immigration status expired prior to June 15, 2012; f. That they were currently in school, have graduated, or obtained an equivalent certificate of completion from high school, successfully obtained a general education development (GED) certificate, or must have been honorably discharged from the Armed Services of the United States; and g. That they must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and must not pose a threat to national security or public safety.3 21. In addition to meeting these requirements, DACA recipients must provide the following as part of the application process: financial records, medical records, school records (diploma, report card, GED certificate, high-school transcript), employment records, or military records (personnel records, health record). 22. Applicants are also required to provide biographical information, including the date of their arrival in the country, previous departures and previous addresses for both themselves and those with whom they traveled. 23. Applicants are required to send all the forms (including the I-821D form, the I765 form, the I-765 worksheet and the G-1145 notification) to the USCIS for processing. The Application Package Fee cost $170; processing the USCIS Application Fee cost $495. There is
3 Prepare Your Deferred Action for Childhood Arrivals (DACA) Application Online!, AM. IMMIGRATION CTR., https://www.us-immigration.com/deferred-action-application-I-821D.jsp (last visited Sept. 18, 2017).
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also a Biometrics Fee of $85.4 With over 800,000 DACA registrants, those fees exceeded $604,000,000 in revenue paid to the United States.
24. After submitting all documentation to USCIS, applicants are then scheduled for a “Biometric Services Appointment.” At this appointment, USCIS agents recorded applicants’ signatures, photographs, and fingerprints.5
25. USCIS Agents sometimes request samples of DNA for applicants from developing countries who did not have birth certificates, or “when there are suspicious discrepancies within the case.”6
26. The successful DACA registrant receives a “DACA Approval Notice” that lists only “fraud or misrepresentation” as a basis for revoking their “lawful presence” in the country.
27. Once accepted into the DACA Program, a registrant can only be removed from the program after being provided notice and only on grounds prescribed in the Program rules. The 2013 standard operating procedure (SOP) for the USCIS for the DACA Program states that removal was to be based upon criminal, national security, or public safety risks, or fraud. Furthermore, and consistent with due process, the DACA registrant had to receive a “Notice of Intent to Terminate” that would thoroughly explain why USCIS was intending to terminate the registrant from the program. The Notice would need to include a “fully documented SOF and any other relevant documents/information.” The DACA registrant then had 33 days to submit evidence to “overcome the grounds for termination.”
4 Id. 5 Preparing for Your Biometric Services Appointment, USCIS, https://www.uscis.gov/forms/forms-information/preparing-your-biometric-servicesappointment#What%20to%20Expect (last accessed Sept. 18, 2017). 6 What Happens at a USCIS Biometrics Appointment, CITIZEN PATH, https://citizenpath.com/uscis-biometrics-appointment (last accessed Sept. 18, 2017).
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28. The U.S. also promised DACA applicants that the information they provided would not be used against them in deportation proceedings, or against their family members whose undocumented status could also be revealed by applying to the program. 7
29. The commitment not to use biographical information against applicants was reiterated by then DHS Secretary Jeh Johnson in 2016: “Since DACA was announced in 2012, DHS has consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes. More specifically, the U.S. government represented to applicants that personal information they provided will not later be used for immigration enforcement purposes except where it independently determines that a case involves a national security threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law.”8
30. Secretary Johnson explained that this policy, articulated in connection with the DACA Program, was a “long-standing and consistent practice” followed by the predecessor INS to not use information submitted by people seeking deferred action in enforcement actions.
31. Relying on these promises, DACA Program applicants and registrants provided the federal government with extensive personal identifying information with the understanding it would not be used to deport them.
7 Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions, (last accessed Sept. 18, 2017).
8 Letter from Jeh Johnson, Sec’y, SEC, to Hon. Judy Chu (Dec. 30, 2016), https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response%20to%20 Chu%2012.30.16.pdf.
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B. DACA Program Registrants Relied on the Government’s Promises When They Invested in Their Futures in the United States
32. Assured of indefinite deferral of any risk of deportation, immigrants who enrolled
in DACA made investments in their education, property, and careers.
33. In an August 2017 survey, researcher Tom K. Wong found that:
• Annual earnings had increased 80 percent under DACA — from an average of $20,000 to an average of $36,000;
• 65 percent of DACA Program registrants had purchased a first car; • 16 percent had become homeowners; • 5 percent had started their own businesses; • 60 percent of DACA Program registrants above the age of 25 said that, relying on
deferral of deportation, they had been able to find jobs that better suited their education and training; and • 61 percent said they had been able to find jobs that suited the careers they wanted to have.9 34. In addition, about 900 DACA registrants are members of the military.10 These
enlistees are part of a Pentagon pilot project called Military Accessions Vital to the National
Interest. The program waives certain citizenship requirements for green card holders, refugees
and DACA Program registrants with skills that the military considers essential to the national
interest.
35. Some of the DACA registrants who are members of the military are also members
of the NAACP.
9 See Tom K. Wong, et al., Results from T. Wong, et al. 2017 National DACA Study, CTR FOR AM. PROGRESS, https://cdn.americanprogress.org/content/uploads/2017/08/27164928/WongEt-Al-New-DACA-Survey-2017-Codebook.pdf (last accessed Sept. 18, 2017).
10 Gregory Korte, Alan Gomez and Kevin Johnson, Trump administration struggles with fate of 900 DREAMers serving in the military, USA TODAY (Sept. 7, 2017, 3:10 p.m.), https://www.usatoday.com/story/news/politics/2017/09/07/trump-administration-struggles-fate900-dreamers-serving-military/640637001/.
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36. DACA registrants have thrived under the program’s protections, secure in the knowledge that the disclosures they made to the government would not be used to deport them.
C. DACA Registrants and Applicants Now Face Imminent Threat of Deportation
37. Despite the United States’ promises and DACA registrants’ reliance on those promises, on September 5, 2017, Defendant Sessions announced that the DACA program was being terminated, and the Trump administration began the countdown to deporting DACA registrants and applicants.
1. DACA Applicants 38. As of the date of Defendant Sessions’ announcement on September 5, 2017, no new DACA applications will be accepted or processed.11 39. Thus, potential registrants who have submitted an application, but whose application has not yet been processed, will not enjoy any DACA protection. 40. Nevertheless, because USCIS has access to personal identifying information of DACA Program applicants, including their immigration status, these applicants are subject to heightened risk of deportation.
2. DACA Registrants 41. Following the September 5, 2017 announcement, DACA and work permits will only remain valid for registrants until their expiration date.12 42. Registrants whose permits are set to expire before March 5, 2018 must apply for a two-year renewal by October 5, 2017. 13
11 Deferred Action for Childhood Arrivals 2017 Announcement, USCIS, https://www.uscis.gov/daca2017 (last accessed Sept. 18, 2017).
12 Id. 13 Id.
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43. Following the September 5, 2017 announcement, the Department of Homeland Security will no longer grant DACA registrants permission to travel abroad through DACA’s “Advance Parole” program. Moreover, any pending applications for Advance Parole will not be processed.14
D. DACA Registrants Consist Mostly of Immigrants of Color 44. Nearly all of the DACA registrants—more than 95%—are people of color. These 95% of DACA registrants come from Africa and the Caribbean, Central and South America, East Asia and Southeast Asia, and the Middle East. 45. The termination of the DACA Program will therefore disproportionately harm immigrants of color. V. CAUSES OF ACTION
COUNT I DECLARATORY RELIEF PURSUANT TO 28 U.S.C. §2201 46. Plaintiff realleges and incorporates by reference all of the allegations contained in the preceding paragraphs. 47. DACA applicants and registrants provided biographical and biometric information about themselves and family members to USCIS and DHS at the time of their application. 48. DACA applicants have been told that they must submit requests to renew work authorizations by October 5, 2017. 49. Defendants have made assurances that information provided to DHS by DACA Program applicants would not be used against them or their family in any deportation proceedings.
14 Id.
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50. As former DHS Secretary Jeh Johnson assured: “Since DACA was announced in 2012, DHS has consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes. More specifically, the U.S. government represented to applicants that personal information they provided will not later be used for immigration enforcement purposes except where it independently determine that a case involves a national security threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law.”
51. In the current version of Frequently Asked Questions published by USCIS and DHS, DACA applicants are told that “Individuals whose cases are deferred pursuant to DACA will not be referred to ICE,” and that, “information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians.”
52. Notwithstanding these assurances, termination of the DACA Program is accompanied by withdrawal of the guarantee that information provided by DACA applicants and registrants will not be used in deportation proceedings.
53. The NAACP, on behalf of its members who are DACA applicants and registrants, seeks a declaration that the Defendants may not use information about their immigration status and means of contacting them and their families in any deportation proceedings that may ensue after the DACA program has ended.
COUNT II VIOLATION OF THE DUE PROCESS CLAUSES OF THE FIFTH AMENDMENT
54. Plaintiff realleges and incorporates by reference all of the allegations contained in the preceding paragraphs.
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55. The Due Process Clause of the Fifth Amendment to the United States Constitution prohibits the Government from depriving any person of life, liberty, or property without due process of law.
56. All DACA registrants relied upon promises made by Federal immigration authorities and the Department of Justice. These included promises not to use information about their immigration status and other personal characteristics against them or family members in enforcement proceedings; promises not to terminate them from the DACA program without justification and notice; and a promise to provide employment authorization to those eligible.
57. As a result of the Defendants’ promises regarding the DACA program, DACA applicants voluntarily provided potentially incriminating information to the Defendants that they would not have otherwise provided.
58. As a result of the Defendants’ promises regarding the DACA Program, DACA registrants obtained employment authorizations, and purchased property, such as cars and homes. Some also paid college tuition with the expectation that it would eventually lead to graduation with a degree.
59. The Due Process Clause of the Fifth Amendment also requires that immigration enforcement actions taken by the federal government be fundamentally fair and neither arbitrary nor capricious.
60. Defendants will violate the Due Process Clause when they use in deportation proceedings any information provided by DACA applicants that the Defendants elicited through promises that such information would not be used for that purpose.
61. Defendants have also violated the Due Process Clause by reneging on promises that applicants allowed to register in the DACA program could only be deprived of their status as
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lawfully present if there was an issue of fraud, criminal, national security, or public safety issue. Moreover, termination required a “notice of an intent to terminate” that provided all reasons and documents supporting the determination. Further, DACA registrants were to be given an opportunity to submit evidence rebutting that determination. The DHS rescission memorandum removes the lawful presence status afforded the DACA registrant and subjects them to an imminent risk of deportation.
62. Defendants’ rescission of the DACA program and safeguards to immigrants who qualified as lawfully present residents, absent any cause or justification particular to them, renders this action arbitrary and capricious, in violation of the Due Process Clause of the Fifth Amendment.
63. Defendants’ rescission of the DACA program, and the imminent threat of deportation to its registrants and applicants, causes ongoing harm to those DACA program registrants and applicants who are members of the Plaintiff.
COUNT III VIOLATION OF THE ADMINISTRATIVE PROCEDURES ACT
5 U.S.C. § 706(2)(A) AND (D) 64. Plaintiff realleges and incorporates by reference all of the allegations contained in the preceding paragraphs. 65. Rescission of the DACA program is governed by the Administrative Procedure Act, as it constitutes an agency action, pursuant to 5 U.S.C. § 551(13), and constitutes a rule making, pursuant to 5 U.S.C. § 551(5). 66. As the action to rescind the DACA program fails to be supported by, or even accompanied by, a rationale that justifies the withdrawal of a longstanding program lawfully instituted and which engendered serious reliance interests by its participants, it is arbitrary,
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capricious and an abuse of discretion in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2).
67. In addition, the action to rescind the DACA program constitutes a rulemaking within the meaning of the Administrative Procedure Act because it forbids DHS from continuing to defer deportation of individuals who were lawful registrants of the DACA program.
68. As rescission of the DACA program was undertaken without first submitting the action for notice and public comment, it violates Section 553 of the Administrative Procedure Act and constitutes an unlawful rulemaking.
69. Defendants’ violation of the APA causes ongoing harm to the Plaintiff and DACA registrants and applicants that are members of Plaintiff’s organization.
COUNT IV VIOLATION OF THE REGULATORY FLEXIBILITY ACT, 5 U.S.C. § 601 70. Plaintiff realleges and incorporates by reference all of the allegations contained in the preceding paragraphs. 71. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal agencies to analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for public comment. 5 U.S.C. §§ 603-604. 72. “Small entities” for purposes of the RFA includes small businesses, small nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6). 73. The actions that DHS has taken to implement the DHS Memorandum are “rules” under the RFA. 5 U.S.C. § 601(2). 74. The actions that DHS has taken to implement the DACA rescission are likely to have a significant economic impact on a substantial number of small entities, like the Plaintiff. 5 U.S.C. § 602(a)(1).
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75. Defendants have not issued the required analyses of DHS’s new rules. 76. Defendants’ failure to issue the initial and final Regulatory Flexibility Analyses violates the RFA and is unlawful. 77. Defendants’ violation causes ongoing harm to the DACA registrants and applicants employed by or members of Plaintiff’s non-profit organization
PRAYER FOR RELIEF Wherefore, the Plaintiff prays that the Court: a) Declare that the DHS Memorandum rescinding the DACA program is
unauthorized by and contrary to the Constitution and laws of the United States; b) Declare that the actions that DHS has taken to implement the DHS Memorandum
rescinding the DACA program are procedurally unlawful under the APA; c) Declare that the actions that DHS has taken to implement the DHS Memorandum
rescinding the DACA program are substantively unlawful under the APA; d) Declare that the actions that DHS has taken to implement the DHS Memorandum
rescinding the DACA program are unlawful under the RFA; e) Enjoin Defendants from rescinding the DACA program, pending further orders
from this Court; f) Enjoin Defendants from using information obtained in any DACA application
or renewal request to identify, apprehend, detain, or deport any DACA registrant or applicant or member of any DACA applicant’s family, or take any action against a DACA applicant’s current or former employer; and
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g) Award such additional relief as deemed just and appropriate.

September 18, 2017

Respectfully submitted,

/s/ Joseph M. Sellers Joseph M. Sellers (DC # 318410) Douglas J. McNamara (DC # 494567) Julia A. Horwitz (DC # 1018561) Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW ● Fifth Floor Washington, DC 20005 Tel: (202) 408-4600 Fax: (202) 408-4699 Email: jsellers@cohenmilstein.com
dmcnamara@cohenmilstein.com jhorwitz@cohenmilstein.com

__/s/ Bradford Berry________________ Bradford Berry Janette Louard NAACP National Headquarters 4805 Mount Hope Drive Baltimore, MD 21215 Telephone: 410-580-5787 Email: bberry@naacpnet.org
jlouard@naacpnet.org
Attorneys for Plaintiff, NAACP

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 Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), AMERICAN FEDERATION OF TEACHERS, AFLCIO, AND THE UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC,
Plaintiffs,
vs.
DONALD J. TRUMP, in his official capacity as President of the United States, JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as the Attorney General of the United States, ELAINE C. DUKE, in her official capacity as acting Secretary of Homeland Security, U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; DEPARTMENT OF HOMELAND SECURITY; AND THE UNITED STATES OF AMERICA,
Defendants.

Case No.1:17-cv-01907

[PROPOSED] FIRST AMENDED COMPLAINT I. INTRODUCTION
1. The National Association for the Advancement of Colored People (“NAACP”), the American Federation of Teachers (“AFT”), and the United Food and Commercial Workers International Union, AFL-CIO, CLC (“UFCW”) bring this action in their organizational capacities against the President of the United States and the federal government for unlawfully

Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 2 of 20
reneging on their promise to protect young, undocumented immigrants of color living in the United States. This action alleges violations of the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and the Regulatory Flexibility Act. This action also seeks declaratory relief pursuant to 28 U.S.C. §2201.
2. The Deferred Action for Childhood Arrivals (“DACA”) refers to the United States’ immigration policy concerning undocumented immigrants who arrived in America as children. Under this policy, people who immigrated to the United States when they were younger than 16 and have lived in the United States continuously since 2007 were eligible to defer deportation indefinitely, attend school, and receive two-year work permits, among other benefits.
3. The vast majority of DACA registrants are people of color. More than 80% of registrants are of Mexican origin.
4. In exchange for providing the federal government with extensive biographic and biometric information, DACA registrants1 received the United States’ promise that they could build lives for themselves in the United States without fear of prosecution or deportation.
5. However, a little less than two weeks ago, the President of the United States and the United States Attorney General announced their intention to renege on those promises.
6. On September 5, 2017, Attorney General Jeff Sessions, on behalf of President Donald Trump, announced that the Trump Administration was rescinding the DACA program. The same day, the Department of Homeland Security (“DHS”) issued a memorandum memorializing the rescission. The Attorney General announced that, effective immediately, DHS
1 The children of undocumented parents who were brought to this country and grew up here became known as DREAMers, after the DREAM Act, a piece of legislation meant to give them a path to citizenship that was first introduced in 2001. Approximately 1.3 million Dreamers were eligible to enroll in DACA, and to date approximately 800,000 have done so.
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would stop processing or accepting new DACA applications, cease allowing DACA registrants to visit their families abroad and return to the United States, and issue renewals only for registrants whose terms expired before March 5, 2018 as long as they applied for renewal by October 5, 2018.
7. The Trump Administration announced this rescission without regards to the Due Process rights of the DACA registrants, and without engaging in the required analysis or rulemaking procedures required by the Regulatory Flexibility Act and the Administrative Procedure Act, both of which are laws put into place to safeguard the public against this very type of impulsiveness by leaders in powerful positions.
8. As a result, the NAACP, AFT, and UFCW, whose respective memberships include DACA registrants across the United States, respectfully requests that this Court declare the termination of the DACA program unlawful, and enjoin the Trump Administration from effectuating its rescission. II. JURISDICTION AND VENUE
9. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 10. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1). Defendants are United States agencies or officers sued in their official capacities. Several Defendant agencies are residents of this judicial district, and a substantial part of the events or omissions giving rise to this Complaint occurred within the District of Columbia. III. PARTIES 11. The National Association for the Advancement of Colored People is the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909, the mission of the NAACP has been to ensure the political, educational, social, and economic equality of all persons and to eliminate race-based discrimination. The NAACP has fought in the courts for
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decades to protect the guarantee of equal protection under law. To advance its mission, the NAACP has represented parties in landmark civil rights cases, perhaps most famously in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which outlawed segregation in public schools. The NAACP also has filed numerous amicus briefs over its decades of existence in cases that significantly impact people of color.
12. NAACP has members throughout the country who are enrolled in the DACA Program. Accordingly, the NAACP brings this action on behalf of those members who are currently enrolled in, and who applied to enroll in, the DACA Program. NAACP members who are DACA registrants reside throughout the United States, including in California, Florida, New York, and Rhode Island, as well as other States.
13. The American Federation of Teachers (“AFT”), an affiliate of the AFL-CIO, was founded in 1916, and today represents approximately 1.7 million members who are employed across the nation in K-12 and higher education, public employment, and healthcare. The AFT has a longstanding history of supporting and advocating for the civil rights of its members and the communities they serve.
14. The AFT has members throughout the country that have received work permits through the DACA program. These members have utilized DACA work permits to obtain employment in institutions that provide essential and necessary services, such as healthcare and education, to the public. AFT members also teach students who have received DACA benefits. These students are integral members of their educational institutions. They contribute to the diversity of experience and viewpoint in classrooms, engage in valuable research projects, and play leadership roles in student life.
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15. The United Food and Commercial Workers International Union, AFL-CIO, CLC is a labor organization which represents working men and women across the United States. UFCW’s 1.3 million members work in a range of industries, with the majority working in retail food, non-food retail, meatpacking and poultry, food processing, and manufacturing. UFCW is the largest union of young workers with 40% of its members under the age of 30. UFCW’s objective is the elevation of its members and other employees engaged in the performance of work through improving their wages, hours, benefits, and working conditions. More broadly, UFCW fights to advance and safeguard full employment, economic security, and social welfare of its members and their communities.
16. UFCW and its predecessor unions have represented immigrants from around the world since the beginning of the last century, particularly workers in the packinghouses and stockyards. Immigrant workers continue to form a vital part of these and other workforces that UFCW represents. In particular, UFCW has members who are DACA recipients across industries in which it represents employees. UFCW is proud that its representation enables DACA recipients to personally advance and contribute to their families and American society generally.
17. Defendant Donald J. Trump is the President of the United States. He authorized the issuance of the Department of Homeland Security Memorandum that purports to rescind DACA. He is being sued in his official capacity.
18. Defendant Jefferson Beauregard Sessions III is the Attorney General of the United States, and announced the purported rescission of DACA on September 5, 2017. He has ultimate authority over prosecutions by the Department of Justice for violation of the immigration laws. He is being sued in his official capacity.
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19. Defendant Elaine C. Duke is the Acting Secretary of the Department of Homeland Security. She is responsible for implementing and enforcing the Immigration and Nationality Act, and oversees the United States Citizenship and Immigration Service (“USCIS”) and the Immigration and Customs Enforcement (“ICE”). She is being sued in her official capacity.
20. Defendant DHS is a federal cabinet agency responsible for implementing the DACA program. DHS is a Department of the Executive Branch of the U.S. Government, and is an agency within the meaning of 5 U.S.C. § 552(f).
21. Defendant USCIS is an Operational and Support Component agency within DHS. USCIS is the sub-agency responsible for administering the DACA program.
22. Defendant ICE is an Operational and Support Component agency within DHS. ICE is responsible for enforcing federal immigration law, including identifying, apprehending, detaining, and removing non-citizens.
23. Defendant the United States of America includes all government agencies and departments responsible for the implementation and rescission of the DACA program. IV. FACTUAL ALLEGATIONS
A. The DACA Program Promised Young Immigrants Opportunities and Peace of Mind in Exchange for Extensive Personal Data
24. On June 15, 2012, former Secretary of Homeland Security, Janet Napolitano, issued a memorandum establishing a deferred prosecution program. She inveighed against “blindly enforc[ing]” immigration laws to deport those who came to the United States as children, and who have been productive Americans. As part of exercising prosecutorial discretion, the government developed extensive criteria that must be meet by Dreamers
a. That they were under the age of 31 as of June 15, 2012; b. That they entered the United States prior to their 16th birthday;
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c. That they had resided in the United States since June 15, 2007 and currently are present in the U.S.; d. That they were in the United States on June 15, 2012 and must be physically in the U.S. at the time of filing for your request for deferred action; e. That they entered the United States without border inspection before June 15, 2012, or their immigration status expired prior to June 15, 2012; f. That they must be currently in school, have graduated, or obtained an equivalent certificate of completion from high school, successfully obtained a general education development (GED) certificate, or must have been honorably discharged from the Armed Forces of the United States; and g. That they must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and must not pose a threat to national security or public safety.2 25. In addition to meeting these requirements, DACA recipients had to provide the following as part of the application process: financial records, medical records, school records (diploma, report card, GED certificate, high-school transcript), employment records, or military records (personnel records, health record). 26. Applicants are required to provide biographical information, including their arrival in the country, previous departures, previous addresses of both themselves and those they traveled with.
2 Prepare Your Deferred Action for Childhood Arrivals (DACA) Application Online!, Am. Immigration Ctr., https://www.us-immigration.com/deferred-action-application-I-821D.jsp (last visited Sept. 18, 2017).
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27. Applicants were required to send all the forms (including the I-821D form, the I765 form, the I-765 worksheet and the G-1145 notification) to the USCIS for processing. The Application Package Fee cost $170; processing the USCIS Application Fee cost $495. There was also a Biometrics Fee of $85.3 With over 800,000 DACA registrants, those fees exceeded $604,000,000 in revenue for the United States.
28. After submitting all documentation to USCIS, applicants were then scheduled for a “Biometric Services Appointment.” At this appointment, USCIS agents captured applicants’ signatures, photographs, and fingerprints, using special machines designed to collect these biometrics.4
29. USCIS Agents sometimes requested DNA testing from applicants from developing countries who did not have birth certificates, or “when there are suspicious discrepancies within the case.”5
30. The successful DACA registrant received a “DACA Approval Notice” that lists only “fraud or misrepresentation” as a basis for revoking their “lawful presence” in the country.
31. Once accepted into DACA, a registrant’s removal could not occur without justification and notice. The 2013 standard operating procedure (SOP) for the USCIS for DACA states that removal needed to be based upon criminal, national security, or public safety issues, or fraud. Furthermore, and consistent with due process, the DACA registrant had to receive a “Notice of Intent to Terminate” that would thoroughly explain why USCIS was intending to
3 Id. 4 Preparing for Your Biometric Services Appointment, USCIS, https://www.uscis.gov/forms/forms-information/preparing-your-biometric-servicesappointment#What%20to%20Expect (last accessed Sept. 18, 2017). 5 What Happens at a USCIS Biometrics Appointment, Citizen Path, https://citizenpath.com/uscis-biometrics-appointment (last accessed Sept. 18, 2017).
8

Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 9 of 20
terminate the registrant from the program. The Notice would need to include a “fully documented SOF and any other relevant documents/information.” The DACA registrant then had 33 days to submit any evidence that he or she felt could “overcome the grounds for termination.”
32. The U.S. also promised DACA applicants that the information they provided would not be used against them in deportation proceedings, or against their family members whose undocumented status could also be revealed by applying to the program. 6
33. The commitment not to use biographical information against applicants was reiterated by then DHS Secretary Jeh Johnson in 2016: “Since DACA was announced in 2012, DHS has consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes. More specifically, the U.S. government represented to applicants that personal information they provided will not later be used for immigration enforcement purposes except where it independently determines that a case involves a national security threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law.”7
34. Secretary Johnson explained that this was not just a DACA-related policy by DHS, but even its predecessor (INS) had a “long-standing and consistent practice” of not using information submitted by people seeking deferred action in enforcement actions.
35. Relying on these promises, DACA Program applicants and registrants provided
the federal government with extensive personal identifying information with the 6 Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions, (last accessed Sept. 18, 2017). 7 Letter from Jeh Johnson, Sec’y, SEC, to Hon. Judy Chu (Dec. 30, 2016), https://chu.house.gov/sites/chu.house.gov/files/documents/DHS.Signed%20Response%20to%20 Chu%2012.30.16.pdf.
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understanding it would not be used to deport them.
B. DACA Recipients Relied on the Government’s Promises When Investing in Their Own Futures
36. Assured of indefinite deferral of any risk of deportation, immigrants who enrolled
in DACA made investments in their education, property, and careers.
37. In an August 2017 survey, researcher Tom K. Wong found that:
 Annual earnings had increased 80 percent under DACA — from an average of $20,000 to an average of $36,000;
 65 percent of DACA recipients had purchased a first car;  16 percent had become homeowners;  5 percent had started their own businesses;  60 percent of DACA recipients above the age of 25 said that with DACA they’d
been able to find jobs that better suited the education and training they already had; and  61 percent said they’d been able to find jobs that suited the careers they wanted to have.8 38. In addition, about 900 DACA registrants are enrolled in the military.9 These
enlistees are part of a Pentagon pilot project called Military Accessions Vital to the National
Interest. The program waives certain citizenship requirements for green card holders, refugees
and DACA recipients with skills that the military considers essential to the national interest.
39. Some of the DACA registrants who are members of the military are also members
of the NAACP.
8 See Tom K. Wong, et al., Results from T. Wong, et al. 2017 National DACA Study, Ctr for Am Progress, https://cdn.americanprogress.org/content/uploads/2017/08/27164928/Wong-Et-AlNew-DACA-Survey-2017-Codebook.pdf (last accessed Sept. 18, 2017).
9 Gregory Korte, Alan Gomez and Kevin Johnson, Trump administration struggles with fate of 900 DREAMers serving in the military, USA Today (Sept. 7, 2017, 3:10 p.m.), https://www.usatoday.com/story/news/politics/2017/09/07/trump-administration-struggles-fate900-dreamers-serving-military/640637001/.
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40. DACA registrants have thrived under DACA’s protections, in reliance on the United States’ promises.
41. DACA-recipients will be unable to sustain the lives they have built once their ability to work legally is taken away with the rescission of DACA. In addition, the rescission will place severe burdens on employers, putting them in a position of having to terminate valuable and productive employees while scrambling to fill both high-skilled and entry-level vacancies in their labor force.
C. DACA Registrants and Applicants Now Face Imminent Threat of Deportation
42. Despite the United States’ promises and DACA registrants’ reliance on those promises, on September 5, 2017, Defendant Sessions announced that the DACA program was being terminated, and the Trump administration began the countdown to deportment for DACA registrants and applicants.
1. DACA Applicants 43. As of the date of Defendant Sessions’ announcement on September 5, 2017, no new DACA applications will be accepted or processed.10 44. Thus, potential registrants who have submitted an application, but whose application has not yet been processed, will not enjoy any DACA protection. 45. Nevertheless, because USCIS has access to an enormous amount of DACA applicants’ personally identifying information, including the fact that they are otherwise undocumented, these applicants are at a dramatically increased risk of deportation.
2. DACA Registrants
10 Deferred Action for Childhood Arrivals 2017 Announcement, USCIS, https://www.uscis.gov/daca2017 (last accessed Sept. 18, 2017).
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46. Following the September 5, 2017 announcement, DACA and work permits will only remain valid for registrants until their expiration date.11
47. Registrants whose permits are set to expire before March 5, 2018 must apply for a two-year renewal by October 5, 2017. 12
48. Following the September 5, 2017 announcement, the Department of Homeland Security will no longer grant DACA registrants permission to travel abroad through DACA’s “Advance Parole” program. Moreover, any pending applications for Advance Parole will not be processed.13
D. DACA Registrants Consist Mostly of Immigrants of Color 49. Nearly all of the DACA registrants—more than 95%—are people of color. These 95% of DACA registrants come from Africa and the Caribbean, Central and South America, East. 50. The termination of DACA will disproportionately affect immigrants of color.. V. CAUSES OF ACTION
COUNT I DECLARATORY RELIEF PURSUANT TO 28 U.S.C. §2201 51. Plaintiffs reallege and incorporate by reference all of the allegations contained in the preceding paragraphs. 52. DACA applicants and registrants provided biographical and biometric information about themselves and family members to USCIS and DHS at the time of their application.
11 Id. 12 Id. 13 Id.
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Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 13 of 20
53. DACA applicants have been told that they must provide any renewals for work authorizations by October 5, 2017.
54. Defendants have heretofore made assurances that information provided to them as part of the DACA program would not be used against them or their family in any deportation proceedings.
55. As former DHS Secretary Jeh Johnson assured: “Since DACA was announced in 2012, DHS has consistently made clear that information provided by applicants will be collected and considered for the primary purpose of adjudicating their DACA requests and would be safeguarded from other immigration-related purposes. More specifically, the U.S. government represented to applicants that personal information they provided will not later be used for immigration enforcement purposes except where it independently determine that a case involves a national security threat, criminal activity, fraud, or limited other circumstances where issuance of a notice to appear is required by law.”
56. In the current version of Frequently Asked Questions published by USCIS and DHS, DACA applicants are told that “Individuals whose cases are deferred pursuant to DACA will not be referred to ICE,” and that, “information related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians.”
57. Notwithstanding these assurances, termination of DACA Program is accompanied by withdrawal of the guarantee that information provided by DACA applicants and registrants in deportation proceedings.
58. Plaintiffs, on behalf of their respective members who are DACA applicants and registrants, seek a declaration that the Defendants may not use information about their
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immigration status and means of contacting them and their families in any deportation proceedings that may ensue after the DACA program has ended.
COUNT II VIOLATION OF THE DUE PROCESS CLAUSES OF THE FIFTH AMENDMENT
59. Plaintiffs reallege and incorporate by reference all of the allegations contained in the preceding paragraphs.
60. The Due Process Clause of the Fifth Amendment to the United States Constitution prohibits the Government from depriving any person of life, liberty, or property without due process of law.
61. All DACA registrants relied upon promises made by Federal immigration authorities and the Department of Justice. These included promises not to use information against them or family members in enforcement proceedings; promises not to terminate them from the DACA program without justification and notice; and a promise to provide employment authorization to those eligible.
62. As a result of the Defendants’ promises regarding the DACA program, DACA applicants voluntarily provided potentially incriminating information to the Defendants that they would not have otherwise provided.
63. As a result of the Defendants’ promises regarding the DACA Program, DACA registrants obtained employment authorizations, and purchased property, such as cars and homes. Some also paid college tuition with the expectation that it would eventually lead to graduation with a degree.
64. The Due Process Clause of the Fifth Amendment also requires that immigration enforcement actions taken by the federal government be fundamentally fair and neither arbitrary nor capricious.
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65. Defendants will violate the Due Process Clause when they use in deportation proceedings any information provided by DACA applicants that the Defendants elicited through promises that such information would not be used for that purpose.
66. Defendants have also violated the Due Process Clause by reneging on promises that applicants allowed to register in the DACA program could only be deprived of their status as lawfully present if there was an issue of fraud, criminal, national security, or public safety issue. Moreover, termination required a “notice of an intent to terminate” that provided all reasons and documents supporting the determination. Further, DACA registrants were to be given an opportunity to submit evidence rebutting that determination. The DHS rescission memorandum removes the lawful presence status afforded the DACA registrant and subjects them to an imminent risk of deportation.
67. Defendants’ rescission of the DACA program and safeguards to immigrants who qualified as lawfully present residents, absent any cause or justification particular to them, renders this action arbitrary and capricious, in violation of the guarantee of due process by the Fifth Amendment.
68. Defendants’ rescission of the DACA program, and the imminent threat of deportation to its registrants and applicants, causes ongoing harm to those DACA program registrants and applicants who are members of the Plaintiffs’ organizations.
COUNT III VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT 5 U.S.C. § 706(2)(A)
AND (D) 69. Plaintiffs reallege and incorporate by reference all of the allegations contained in the preceding paragraphs. 70. Rescission of the DACA program is governed by the Administrative Procedure Act, as it constitutes an agency action, pursuant to 5 U.S.C. § 551(13), and constitutes a rule
15

Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 16 of 20
making, pursuant to 5 U.S.C. § 551(5). 71. As the action to rescind the DACA program fails to be supported by, or even
accompanied by, a rationale that justifies the withdrawal of a longstanding program lawfully instituted and which engendered serious reliance interests by its participants, it is arbitrary, capricious and an abuse of discretion in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2).
72. In addition, the action to rescind the DACA program constitutes a rulemaking within the meaning of the Administrative Procedure Act because it forbids DHS from continuing to defer deportation of individuals who were lawful registrants of the DACA program.
73. As rescission of the DACA program was undertaken without first submitting the action for notice and public comment, it violates Section 553 of the Administrative Procedure Act and constitutes an unlawful rulemaking.
74. Defendants’ violation of the APA causes ongoing harm to the Plaintiffs and DACA registrants and applicants that are members of Plaintiffs’ organizations.
COUNT IV VIOLATION OF THE REGULATORY FLEXIBILITY ACT, 5 U.S.C. § 601 75. Plaintiffs reallege and incorporate by reference all of the allegations contained in the preceding paragraphs. 76. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal agencies to analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for public comment. 5 U.S.C. §§ 603-604. 77. “Small entities” for purposes of the RFA includes small businesses, small nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6). 78. The actions that DHS has taken to implement the DHS Memorandum are “rules”
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Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 17 of 20
under the RFA. 5 U.S.C. § 601(2). 79. The actions that DHS has taken to implement the DACA rescission are likely to
have a significant economic impact on a substantial number of small entities, like the Plaintiff organizations. 5 U.S.C. § 602(a)(1).
80. Defendants have not issued the required analyses of DHS’s new rules. 81. Defendants’ failure to issue the initial and final Regulatory Flexibility Analyses violates the RFA and is unlawful. 82. Defendants’ violation causes ongoing harm to the DACA registrants and applicants employed by or members of Plaintiffs’ non-profit organizations.
PRAYER FOR RELIEF Wherefore, the Plaintiffs pray that the Court: a) Declare that the DHS Memorandum rescinding the DACA program is
unauthorized by and contrary to the Constitution and laws of the United States; b) Declare that the actions that DHS has taken to implement the DHS Memorandum
rescinding the DACA program are procedurally unlawful under the APA; c) Declare that the actions that DHS has taken to implement the DHS Memorandum
rescinding the DACA program are substantively unlawful under the APA; d) Declare that the actions that DHS has taken to implement the DHS Memorandum
rescinding the DACA program are unlawful under the RFA; e) Enjoin Defendants from rescinding the DACA program, pending further orders
from this Court; f) Enjoin Defendants from using information obtained in any DACA application
or renewal request to identify, apprehend, detain, or deport any DACA registrant
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Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 18 of 20

or applicant or member of any DACA applicant’s family, or take any action against a DACA applicant’s current or former employer; and g) Award such additional relief as deemed just and appropriate.

October 23, 2017

Respectfully submitted,
/s/ Joseph M. Sellers Joseph M. Sellers (DC # 318410) Douglas J. McNamara (DC # 494567) Julia A. Horwitz (DC # 1018561) Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. NW ● Fifth Floor Washington, DC 20005 Telephone: (202) 408-4600 Fax: (202) 408-4699 Email: jsellers@cohenmilstein.com
dmcnamara@cohenmilstein.com jhorwitz@cohenmilstein.com

Bradford Berry (DC # 426326) Janette Louard NAACP National Headquarters 4805 Mount Hope Drive Baltimore, MD 21215 Telephone: (410) 580-5787 Email: bberry@naacpnet.org
jlouard@naacpnet.org

Attorneys for Plaintiff, NAACP

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Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 19 of 20
David J. Strom (DC # 376233) Channing Cooper Jessica Rutter American Federation of Teachers 555 New Jersey Ave. NW Washington, DC 20001 Telephone: 202-879-4400 Email: dstrom@aft.org
ccooper@aft.org jrutter@aft.org Attorneys for Plaintiff, AFT
Nicholas W. Clark, General Counsel Renee L. Bowser, Assistant General Counsel United Food & Commercial Workers International Union, AFL-CIO, CLC 1775 K Street, NW Washington, DC 20006 Telephone: (202) 466-1522 Email: nclark@ufcw.org
rbowser@ufcw.org Attorneys for Plaintiff, UFCW
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Case 1:17-cv-01907-CRC Document 10 Filed 10/24/17 Page 20 of 20
CERTIFICATE OF SERVICE I hereby certify that on October 23, 2017, I electronically filed Plaintiffs’ Amended Complaint with the Clerk of the Court using ECF, which in turn sent notice to all parties of record.

Dated: October 23, 2017

/s/ Julia A. Horwitz Julia A. Horwitz

20

 
 Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Civil Action No. 17-1907 (CRC)

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT For the reasons set forth in the accompanying memorandum of law, Defendants
respectfully move the Court to dismiss this action or, in the alternative, to grant summary judgment
to Defendants. See Fed. R. Civ. P. 12(b)(1), (6), 56.

Dated: November 8, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
BRETT A. SHUMATE Deputy Assistant Attorney General
JENNIFER D. RICKETTS Director
JOHN R. TYLER Assistant Branch Director

Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 2 of 58

/s/ Kate Bailey

.

KATE BAILEY

RACHAEL WESTMORELAND

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue NW

Washington, DC 20530

Phone: (202) 514-9239

Fax: (202) 616-8470

Email: kate.bailey@usdoj.gov

Member, MD Bar

Counsel for Defendants

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Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 3 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, et al.,
Defendants.

Civil Action No. 17-1907 (CRC)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

iii

Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 4 of 58

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................5

A. Deferred Action Generally.......................................................................................5

B. DACA and DAPA....................................................................................................6

C. The Texas Litigation ................................................................................................8

D. Rescission of DACA................................................................................................9

E. This Action.............................................................................................................10

LEGAL STANDARDS .................................................................................................................11

ARGUMENT .................................................................................................................................13

I.

THE COURT LACKS JURISDICTION BECAUSE PLAINTIFFS LACK STANDING.........................14

A. Plaintiffs Lack Article III Standing........................................................................14

1. Plaintiffs lack organizational standing.......................................................14

2. Plaintiffs lack representational standing ....................................................16

B. Plaintiffs Lack Prudential Standing .......................................................................17

II. THIS CASE IS NOT JUSTICIABLE ..........................................................................................18

A. The Rescission Policy Is Not Justiciable Because this Immigration Enforcement Policy Is a Matter Committed to Agency Discretion by Law ...................................................................................................................18

B. The INA Deprives District Courts of Jurisdiction over Challenges to Denials of Deferred Action ...................................................................................23

C. The Government’s Justiciability Objections Are Not Inconsistent with the Acting Secretary’s Reliance on the Fifth Circuit’s Decision ..........................25

III. PLAINTIFFS FAIL TO STATE A CLAIM ..................................................................................26

A. Plaintiffs Fail to State an APA Claim ....................................................................26

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Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 5 of 58
1. The Acting Secretary rationally explained her decision to wind down DACA, particularly given the imminent risk of a nationwide injunction ...................................................................................................26
2. The Rescission Policy is exempt from notice and comment .....................33 B. Plaintiffs Fail to State a Due Process Claim ..........................................................36
1. Plaintiffs identify no actual deprivation of liberty or property ..................36 2. There is no protected liberty or property interest in the receipt
of DACA ....................................................................................................39 3. Changes in agency policy do not require individualized process ..............41 C. Plaintiffs’ Regulatory Flexibility Act Claim Fails Because Notice-andComment Procedures Were Not Required.............................................................42 D. Plaintiffs’ Declaratory Relief “Claim” States No Independent Cause of Action .....................................................................................................................43 IV. NATIONWIDE DECLARATORY AND INJUNCTIVE RELIEF IS IMPERMISSIBLE.........................43 CONCLUSION ..............................................................................................................................44
v

Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 6 of 58

TABLE OF AUTHORITIES

CASES

PAGE(S)

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.C. Cir. 2007) ................................................................................................ 12

Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011) .................................................................................................. 43

Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810 (D.C. Cir. 2006) .................................................................................................. 16

Am. Legal Found. v. FCC, 808 F.2d 84 (D.C. Cir. 1987) .................................................................................................... 15

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).................................................................................................................... 39

Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137 (D.C. Cir. 2011) ................................................................................................ 11

*Arizona v. United States, 567 U.S. 387 (2012).............................................................................................................. 5, 20

*Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015), cert denied, 136 S. Ct. 900 (2016) ..................................................................................... passim

Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................................ 12, 43

Bates v. Donley, 935 F. Supp. 2d 14 (D.D.C. 2013) ............................................................................................ 12

Bd. of Regents v. Roth, 408 U.S. 564 (1972).................................................................................................................. 40

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................................................ 11, 12

Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915).................................................................................................................. 42

Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999) .............................................................................................. 24, 25
vi

Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 7 of 58
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974)............................................................................................................ 29, 30
Broadgate, Inc. v. USCIS, 730 F. Supp. 2d 240 (D.D.C. 2010) .......................................................................................... 43
Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002) .................................................................................................. 11
Califano v. Sanders, 430 U.S. 99 (1977).................................................................................................................... 20
Camp v. Pitts, 411 U.S. 138 (1973).................................................................................................................. 28
Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013) ...................................................................................................... 6
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002).................................................................................................................... 29
Chrysler Corp. v. Brown, 441 U.S. 281 (1979).................................................................................................................. 34
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)............................................................................................................ 20, 27
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).................................................................................................................. 14
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987).................................................................................................................. 18
Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) .................................................................................................. 34
Consumer Energy Council of Am. v. FERC, 673 F.2d 425 (D.C. Cir. 1982) .................................................................................................. 34
Davis v. Fed. Bureau of Prisons, 517 F. Supp. 2d 460 (D.D.C. 2007) .......................................................................................... 18
Davis v. Fed. Bureau of Prisons, 334 F. App’x 332 (D.C. Cir. 2009)........................................................................................... 18
vii

Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 8 of 58
De Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) .................................................................................................. 41
Decatur Liquors, Inc. v. Dist. of Columbia, 478 F.3d 360 (D.C. Cir. 2007) .................................................................................................. 42
Elgharib v. Napolitano, 600 F.3d 597 (6th Cir. 2010) .................................................................................................... 23
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)...................................................................................................................... 15
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)............................................................................................................ 27, 28
Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .................................................................................................... 18
Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985).................................................................................................................. 27
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990).................................................................................................................. 14
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).................................................................................................................. 15
*Heckler v. Chaney, 470 U.S. 821 (1985)........................................................................................................... passim
Herbert v. Nat’l Acad. of Scis., 974 F.2d 192 (D.C. Cir. 1992) .................................................................................................. 11
Humane Soc’y of U.S. v. Hodel, 840 F.2d 45 (D.C. Cir. 1988) .................................................................................................... 17
Hurd v. Dist. of Columbia, 864 F.3d 671 (D.C. Cir. 2017) .................................................................................................. 13
ICC v. Bhd. of Locomotive Eng’rs (BLE), 482 U.S. 270 (1987)...................................................................................................... 18, 21, 22
Interstate Nat. Gas Ass’n of Am. v. FERC, 494 F.3d 1092 (D.C. Cir. 2007) .......................................................................................... 16, 17
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Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 9 of 58
Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) .................................................................................................. 39
Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454 (1989).................................................................................................................. 40
Lexmark Int’l, Inc. v. Static Control Components, 134 S. Ct. 1377 (2014) .............................................................................................................. 15
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................. 44
Lincoln v. Vigil, 508 U.S. 182 (1993).................................................................................................................. 18
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)............................................................................................................ 11, 33
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) .................................................................................................. 21
Madsen v. Women’s Health Ctr., Inc, 512 U.S. 753 (1994).................................................................................................................. 44
Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) ................................................................................................ 12
Mississippi v. Johnson, 71 U.S. 475 (1867).................................................................................................................... 26
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).................................................................................................................. 44
Morgan v. United States, 304 U.S. 1 (1938)...................................................................................................................... 28
Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983).................................................................................................................... 27
N.W. Mining Ass’n v. Babbitt, 5 F. Supp. 2d 9 (D.D.C. 1998) .................................................................................................. 43
Nat’l Ass’n of Regulatory Util. Comm’rs v. U.S. Dep’t of Energy, 851 F.2d 1424 (D.C. Cir. 1988) ................................................................................................ 36
ix

Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 10 of 58
Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014) .................................................................................................. 34
Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428 (D.C. Cir. 1995) ............................................................................................ 14, 15
Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011) .................................................................................................... 40
Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33 (D.C. Cir. 1974) .............................................................................................. 34, 35
Patterson v. United States, 999 F. Supp. 2d 300 (D.D.C. 2013) .......................................................................................... 13
Perales v. Casillas, 903 F.2d 1043 (5th Cir. 1990) ............................................................................................ 21, 38
Process Gas Consumers Grp. v. Consumer Energy Council of Am., 463 U.S. 1216 (1983)................................................................................................................ 34
Rempfer v. Sharfstein, 583 F.3d 860 (D.C. Cir. 2009) ............................................................................................ 12, 13
*Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471 (1999)........................................................................................................... passim
San Luis Obispo Mothers for Peace v. U.S. N.R.C., 789 F.2d 26 (D.C. Cir. 1986) .................................................................................................... 28
Sierra Club v. Morton, 405 U.S. 727 (1972).................................................................................................................. 15
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................................................................................................... 15
Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C. Cir. 1990) .................................................................................................... 15
Summers v. Earth Island Inst., 555 U.S. 488 (2009).................................................................................................................. 16
Syncor Int’l Corp. v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) .................................................................................................... 35
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Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) .................................................................................................. 30
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007).................................................................................................................. 13
*Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ............................................................................................. passim
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005)............................................................................................................ 39, 40
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) .............................................................................................................. 44
Troy Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997) .................................................................................................. 28
U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) .................................................................................................... 43
United States v. Armstrong, 517 U.S. 456 (1996).................................................................................................................. 19
United States v. Morgan, 313 U.S. 409 (1941).................................................................................................................. 28
United States v. Texas, 136 S. Ct. 2271 (2016) ................................................................................................................ 8
United States v. Texas, 137 S. Ct. 285 (2016) .................................................................................................................. 8
Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438 (D.C. Cir. 1999) .................................................................................................. 13
Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 2016) .............................................................................................. 24
Velasco-Gutierrez v. Crossland, 732 F.2d 792 (10th Cir. 1984) ............................................................................................ 40, 41
Warth v. Seldin, 422 U.S. 490 (1975).................................................................................................................. 14
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Yancey v. Dist. of Columbia, 991 F. Supp. 2d 171 (D.D.C. Nov. 6, 2013) ............................................................................. 43
Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980) .................................................................................................. 42
STATUTES 5 U.S.C. § 553..................................................................................................................... 3, 33, 34 5 U.S.C. § 601............................................................................................................................... 43 5 U.S.C. § 603............................................................................................................................... 43 5 U.S.C. § 604............................................................................................................................... 43 5 U.S.C. § 611............................................................................................................................... 43 5 U.S.C. § 701............................................................................................................. 18, 19, 21, 25 5 U.S.C. § 702............................................................................................................................... 18 5 U.S.C. § 706............................................................................................................................... 27 6 U.S.C. § 202............................................................................................................................... 23 6 U.S.C. § 251............................................................................................................................... 23 6 U.S.C. § 557............................................................................................................................... 23 8 U.S.C. § 1103............................................................................................................................... 5 8 U.S.C. § 1154............................................................................................................................... 6 8 U.S.C. § 1158............................................................................................................................... 5 8 U.S.C. § 1182............................................................................................................................... 5 8 U.S.C. § 1227............................................................................................................................... 5 8 U.S.C. § 1229b............................................................................................................................. 5 8 U.S.C. § 1252(g) ........................................................................................................ 3, 23, 24, 25 8 U.S.C. § 1324a ........................................................................................................................... 37
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REGULATIONS 8 C.F.R. § 274a.12(c)(14) ..................................................................................................... 5, 6, 37
RULES Fed. R. Civ. P. 12 .................................................................................................................... 11, 12 CONSTITUTION U.S. Const. amend. V.................................................................................................................... 39 OTHER AUTHORITIES 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.2 (5th ed. 2010) .................................. 41 Attorney General’s Manual on the Administrative Procedure Act 30 (1947) .............................. 34 USCIS, Frequently Asked Questions (Oct. 6, 2017) (DHS DACA FAQ),
https://go.usa.gov/xngCd .................................................................................... 7, 37, 38, 39, 40 Press Release, DHS
Statement from Acting Secretary Duke on the Rescission of DACA (Sept. 5, 2017), https://go.usa.gov/xncuM.......................................................................................................... 29 U.S. Dep’t of Justice, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present, 38 Op. O.L.C. (Nov. 19, 2014), https://www.justice.gov/file/179206/download .................................................................... 6, 32 USCIS, Policy Memorandum (Nov. 7, 2011), https://go.usa.gov/xncPK. ........................................................................................................... 7
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INTRODUCTION In 2012, then-Secretary of Homeland Security Janet Napolitano adopted the policy now known as DACA, or Deferred Action for Childhood Arrivals. DACA made deferred action—a practice by which the Secretary exercises individualized enforcement discretion to issue a reversible notification that she does not intend to remove an alien for a set period of time— available to a class of unlawfully present aliens who came to the United States as children. In 2014, one of her successors expanded the parameters of DACA and adopted a similar policy known as DAPA, or Deferred Action for Parents of Americans. DAPA, if implemented, would have made deferred action available to unlawfully present aliens who were parents of U.S. citizens and lawful permanent residents. DAPA, including its expansion of DACA, was promptly challenged by a coalition of 26 states. Although then-Secretary of Homeland Security Jeh Johnson vigorously defended the policy, he was rebuffed at every turn: the U.S. District Court for the Southern District of Texas issued a nationwide preliminary injunction; the Fifth Circuit affirmed, declaring the policy “manifestly contrary” to the Immigration and Nationality Act (INA); and an equally divided Supreme Court affirmed, leaving the injunction in place. Armed with this victory, the states threatened to amend their complaint to challenge not just DAPA, but DACA as well, arguing that it suffers from the same infirmities. In view of the substantial similarities between the two policies, the significant litigation risk posed by the Supreme Court and Fifth Circuit decisions, and the Attorney General’s view that DACA was in fact unlawful, Acting Secretary of Homeland Security Elaine C. Duke was faced with two options. On the one hand, she could wind down DACA in an orderly fashion, minimizing the disruption to
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current recipients. On the other, continued litigation would in all likelihood result in a nationwide injunction abruptly ending the policy, plunging its nearly 800,000 recipients into uncertainty.
The Acting Secretary chose the less disruptive option: an orderly process that formally rescinds DACA but allows it to sunset. Under this Rescission Policy, no DACA recipient will have his or her deferred action abruptly terminated based solely on the Rescission Policy; instead, prior grants will remain valid for the remainder of their stated duration (generally two years) before ending consistent with their stated terms. Any DACA recipient whose deferred action was due to expire within six months was given a month to request another two-year renewal. And although the agency stopped accepting new DACA requests, it will finish processing those it had received when the rescission began.
In this case, Plaintiffs—the National Association for the Advancement of Colored People, the American Federation of Teachers, and the United Food and Commercial Workers International Union—challenge the Rescission Policy on a variety of statutory and constitutional grounds, urging the Court to invalidate the policy and enjoin the Acting Secretary from rescinding DACA. There is no basis to do so.
To begin, this case should be dismissed at the outset for lack of standing. Plaintiffs declare that they bring this case in their organizational capacities, yet they identify no injury whatsoever to their own interests as organizations, and their missions have no apparent nexus to the subject of the suit. And to the extent that Plaintiffs are suing in their representative capacities, they fail to name any of their members, much less one actually harmed by the Rescission Policy. Thus, Plaintiffs establish no cognizable injury, and they should not be heard to air their disagreements with the Acting Secretary’s policy choices here.
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In any event, this case is not justiciable. The Rescission Policy is a classic exercise of enforcement discretion “presumed immune from judicial review,” Heckler v. Chaney, 470 U.S. 821, 831–32 (1985), and particularly unfettered in the context of immigration, see Reno v. Am.Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 487–92 (1999). In fact, Congress has stripped district courts of jurisdiction to review “‘no deferred action’ decisions and similar discretionary determinations” such as the one here. Id. at 485; see 8 U.S.C. § 1252(g). The Court should not permit Plaintiffs to circumvent these bedrock limits on judicial review.
On the merits, Plaintiffs’ claims fail as a matter of law. Their claim that the Rescission Policy is arbitrary and capricious under the Administrative Procedure Act (APA) because it was inadequately supported on the record is fundamentally misguided. Agencies are always free to change course on policy matters so long as they provide a rational explanation. Here, the Acting Secretary’s explanation of her decision to rescind DACA amply meets that deferential standard, particularly given the adverse ruling from the Fifth Circuit and the Supreme Court’s affirmance, the evident similarities between DACA and the policy that expanded DACA and created DAPA, the Attorney General’s opinion that DACA was likewise unlawful, and the imminent risk of a nationwide injunction with potentially chaotic results. Because this claim can be resolved now based on the complaint, the documents incorporated therein by reference, and other judicially noticeable materials—including those in the administrative record, served contemporaneously herewith—the Court should either uphold the Rescission Policy and grant this motion if it agrees that the record supports Defendants’ position, or set aside the Rescission Policy if it disagrees.
Plaintiffs’ notice-and-comment claim is equally unavailing. The APA exempts “general statements of policy” from notice and comment, 5 U.S.C. § 553(b), and the Rescission Policy is a reordering of enforcement priorities that readily qualifies. Indeed, the Department of Homeland
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Security (DHS) and the former Immigration and Naturalization Service (INS) have adopted more than 20 deferred action or similar policies over the past 50 years. Few have gone through notice and comment, and there is no warrant for those procedures here. Nor does the Fifth Circuit’s ruling that the plaintiffs there established a likelihood of success on their claim that the promulgation of DAPA required notice and comment mean that the rescission of DACA and a return to the status quo ante must likewise meet these procedural demands. Plaintiffs’ Regulatory Flexibility Act claim fails for the same reason, as that Act applies only where notice and comment is required. And in any event, if DACA’s rescission required notice and comment, then DACA was void from the outset because its adoption would also have required notice and comment a fortiori.
Plaintiffs’ due process claim gets it no further. DACA recipients have no protected liberty or property interest in the continued receipt of deferred action, which is an exercise of prosecutorial discretion that confers no rights and is revocable at any time. Regardless, broad-based changes in agency policy like the Rescission Policy do not require individualized process. Finally, Plaintiffs’ separate “claim” for a declaratory judgment is a nonstarter, as a declaratory judgment is a form of relief, not an independent cause of action.
In sum, even if Plaintiffs’ challenge were somehow justiciable, the assumption underlying it would compel dismissal. DAPA—including its expansion of DACA—was enjoined by the Fifth Circuit, and that holding was affirmed by the Supreme Court. The original DACA policy is materially indistinguishable as a legal matter. At bottom, Plaintiffs’ argument is that, when making discretionary enforcement determinations, federal agencies must ignore the legal rulings and reasoning of federal courts. To state the premise of this claim is to refute it. This case should be dismissed.
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BACKGROUND A. Deferred Action Generally The Secretary of Homeland Security is charged “with the administration and enforcement” of the INA along with “all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Under these laws, individuals are subject to removal if, among other things, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012) (citation omitted); see 8 U.S.C. §§ 1182(a), 1227(a). Due to resource constraints, the federal government cannot remove every removable alien, which means that a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396 (citation omitted). DHS officials must first “decide whether it makes sense to pursue removal at all,” id., and once proceedings begin, they may decide to grant certain forms of discretionary relief expressly authorized by statute, such as asylum, parole, or cancellation of removal, 8 U.S.C. §§ 1158(b)(1)(A), 1182(d)(5)(A), 1229b. “At each stage” of the process, “the Executive has discretion to abandon the endeavor” entirely. AADC, 525 U.S. at 483. “One form of discretion the Secretary of Homeland Security exercises is ‘deferred action,’ which entails temporarily postponing the removal of individuals unlawfully present in the United States.” Arpaio v. Obama, 797 F.3d 11, 16 (D.C. Cir. 2015) (citation omitted), cert. denied, 136 S. Ct. 900 (2016). Deferred action is a practice by which the Acting Secretary exercises her “discretion to abandon” the removal process, and to notify an individual alien of a non-binding decision to forbear from seeking his removal for a set period. AADC, 525 U.S. at 483; see 8 C.F.R. § 274a.12(c)(14) (describing “deferred action” as “an act of administrative convenience to the
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government which gives some cases lower priority”). Although originally “developed without express statutory authorit[y],” AADC, 525 U.S. at 484, individualized deferred action has been recognized by Congress in certain circumstances inapplicable here, see, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligible for deferred action”), and described by the Supreme Court as an “exercise in administrative discretion,” AADC, 525 U.S. at 484. Deferred action (or a similar form of relief) dates back to the 1960s, Arpaio, 797 F.3d at 16, and DHS and the former INS have adopted over 20 such policies over the past 50 years—rarely through notice-and-comment rulemaking.1
A variety of consequences may flow from a decision to defer removal action, including the ability to apply for work authorization, under DHS regulations not challenged here. See, e.g., 8 C.F.R. § 274a.12(c)(14). That decision does not, however, confer lawful immigration status or provide any defense to removal. Cf. Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013) (discussing difference between “unlawful presence” and “unlawful status”). To the contrary, deferred action is “discretionary and reversible, and ‘confers no substantive right, immigration status or pathway to citizenship.’” Arpaio, 797 F.3d at 17 (citation omitted). DHS thus has discretion to revoke deferred action unilaterally, for any reason or no reason, with or without notice, and an individual with deferred action remains removable at any time. See AADC, 525 U.S. at 484–85.
B. DACA and DAPA On June 15, 2012, then-Secretary Napolitano announced the policy now known as DACA, or Deferred Action for Childhood Arrivals. See Admin. R. (AR) 1–3 (hereinafter DACA Memo).
1 See generally U.S. Dep’t of Justice, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present, 38 Op. O.L.C. 1, 12–20 (Nov. 19, 2014) (OLC Op.), https://www.justice.gov/file/179206/download.
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DACA made deferred action available to “certain young people who were brought to this country as children” in violation of the immigration laws. DACA Memo at 1 (AR 1). Following completion of a background check, successful requestors would receive deferred action for a period of two years, subject to indefinite renewal. Id. at 2–3 (AR 2–3).
The DACA Memo stated that deferred action was an “exercise of prosecutorial discretion,” id. at 1 (AR 1), and that requests for this relief would “be decided on a case by case basis,” id. at 2 (AR 2). Accordingly, the Memo provided that this grant of deferred action “confer[red] no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.” Id. at 3 (AR 3).
In public guidance published on its website, DHS also informed DACA requestors that information in their requests will be “protected from disclosure to [Immigration & Customs Enforcement (ICE)] and [Customs & Border Protection (CBP)] for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance” (for example, when issues of national security, public safety, or significant criminal activity are raised). USCIS, Frequently Asked Questions, (FAQ No. 19) (Oct. 6, 2017), [hereinafter DHS DACA FAQ], https://go.usa.gov/xngCd; see USCIS, Policy Memorandum, (Nov. 7, 2011), https://go.usa.gov/xncPK (Notice to Appear Guidance). DHS instructed, however, that this information-sharing policy creates no rights and “may be modified, superseded, or rescinded at any time without notice.” DHS DACA FAQ No. 19.
In 2014, then-Secretary Jeh Johnson expanded DACA and created a new, similar policy known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. See AR 37–41 (“DAPA Memo”). DAPA made deferred action available to certain unlawfully
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present aliens who were “parents of U.S. citizens or lawful permanent residents.” DAPA Memo at 3 (AR 39). The DAPA Memo also expanded DACA by relaxing the eligibility criteria and extending the DACA renewal period from two to three years. Id. at 3–4 (AR 39–40).
C. The Texas Litigation The DAPA Memo—including its expansion of DACA—was challenged by a coalition of 26 states, led by Texas, which sought to enjoin its implementation. Affirming the district court, the Fifth Circuit upheld a nationwide preliminary injunction against implementation of the DAPA Memo. Texas v. United States, 809 F.3d 134 (5th Cir. 2015). Like the U.S. District Court for the Southern District of Texas, the Fifth Circuit held that the promulgation of the DAPA Memo was justiciable, in part because it believed that “the INA’s intricate regulatory scheme for changing immigration classifications” allowed the court to determine whether DHS had exceeded its statutory authority. Id. at 168. It stressed, however, that “the denial of voluntary departure and work authorization” would be unreviewable. Id. Also like the district court, the Fifth Circuit held that the DAPA Memo failed to comply with the APA’s notice-and-comment requirement, but emphasized that “DAPA is much more than a nonenforcement policy,” and that “a traditional nonenforcement policy would not necessarily be subject to notice and comment.” Id. at 178 n.156. And going beyond the district court, the Fifth Circuit held that DAPA was “manifestly contrary” to the INA, in part because, unlike prior deferred-action policies that served as “bridges from one legal status to another,” DAPA awarded deferred action “to persons who have never had a legal status and may never receive one.” Id. at 184 (footnotes omitted). That decision was affirmed by an equally divided Supreme Court, United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam), which later denied the government’s request for a rehearing upon confirmation of a ninth Justice, 137 S. Ct. 285 (2016), leaving the preliminary injunction in
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place. On November 18, 2016, the parties jointly moved the district court to stay merits proceedings to allow them to evaluate “how they might choose to move forward” given the upcoming “change in Administration[s].” Joint Mot. to Stay Merits ¶ 2, Texas v. United States, No. 1:14-cv-254 (S.D. Tex. Nov. 18, 2016), ECF No. 430.
Faced with continued litigation over a policy that had been enjoined by the courts, DHS rescinded the DAPA Memo on June 15, 2017, including its provisions expanding DACA. See Memorandum for Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Prot., et al., from John F. Kelly, Sec’y of Homeland Sec. (June 15, 2017) (AR 235–37). Plaintiffs do not challenge that decision here.
On June 29, 2017, Texas and several other states threatened to amend their complaint to also challenge directly the DACA Memo, arguing that it suffers from the same legal infirmities as the DAPA Memo. See AR 238–40 (“Paxton Letter”).
D. Rescission of DACA Faced again with the prospect of continued litigation, Acting Secretary Duke decided on September 5, 2017, to wind down the DACA policy in an orderly fashion. See AR 252–56 (“Rescission Policy” or “Policy”). As the Acting Secretary explained, “[t]aking into consideration the Supreme Court’s and Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated.” Rescission Policy at 4 (AR 255). Specifically, she quoted the Attorney General’s September 4 recommendation to rescind DACA, which explained that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results.” Id. at 3 (AR 254). Invoking her “authority in establishing national immigration policies and priorities,” she rescinded the DACA
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Memo, id. at 4 (AR 255), and instructed that deferred action should instead be provided “only on

an individualized[,] case-by-case basis,” id. at 2 (AR 253).

At the same time, to facilitate an orderly transition, the Rescission Policy provides that:

•

For current DACA recipients, DHS “[w]ill not terminate the grants of

previously issued deferred action or revoke Employment Authorization

Documents solely based on the directives in this memorandum for the

remaining duration of their validity periods.” Id. at 4 (AR 255).

•

For initial DACA requests, DHS “[w]ill adjudicate—on an individual, case-

by-case basis—properly filed pending DACA initial requests and associated

applications for Employment Authorization Documents that have been

accepted by [DHS] as of” September 5, 2017, but “[w]ill reject all DACA

initial requests and associated applications for Employment Authorization

Documents filed after” that date. Id.

•

For DACA renewal requests, DHS “[w]ill adjudicate—on an individual,

case by case basis—properly filed pending DACA renewal requests and

associated applications for Employment Authorization Documents from

current beneficiaries that have been accepted by [DHS] as of” September 5,

2017. Further, DHS will similarly adjudicate such requests and applications

“from current beneficiaries whose [deferred action under DACA] will

expire between [September 5, 2017,] and March 5, 2018[,] that have been

accepted by the Department as of October 5, 2017.” Id.

Like the DACA and DAPA Memos, the Rescission Policy notes that it “is not intended to, does

not, and may not be relied upon to create any right or benefit, substantive or procedural,

enforceable at law by any party in any administrative, civil, or criminal matter.” Id. at 5 (AR 256).

Accordingly, DHS will “continue to exercise its discretionary authority to terminate or deny

deferred action at any time.” Id. at 4 (AR 255). The Rescission Policy says nothing about (and

makes no changes to) DHS’s information-sharing policy.

E. This Action

Plaintiffs’ amended complaint raises four claims. Count I seeks declaratory relief, but

asserts no substantive cause of action. See Am. Compl. ¶¶ 51–58, ECF No. 10. In Count II,

Plaintiffs claim that the Rescission Policy violates due process by “reneging on promises”

allegedly made to DACA recipients (a) not to use information from DACA applications in

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immigration enforcement proceedings, (b) not to terminate their DACA status without notice, and (c) to provide them with employment authorization documents. Id. ¶ 66; see id. ¶¶ 59–68. In Count III, Plaintiffs allege that the Rescission Policy violates the APA because (a) it was issued without notice and comment, and (b) it constitutes a change in agency policy without an adequate explanation. Id. ¶¶ 69–74. In Count IV, Plaintiffs allege that the Rescission Policy violates the Regulatory Flexibility Act because it was unaccompanied by a regulatory flexibility analysis assessing its impact on small businesses. Id. ¶¶ 75–82. Plaintiffs ask the Court to declare the Rescission Policy unlawful, see id. Prayer for Relief ¶¶ (a)–(d), and to “[e]njoin Defendants from rescinding the DACA” policy, id. ¶ (e).
LEGAL STANDARDS To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must establish the Court’s jurisdiction through sufficient allegations. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). When considering such a motion, the Court must accept all well-pleaded allegations as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). The Court need not, however, accept inferences that are unsupported by facts alleged in the complaint or that amount to mere legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject-matter jurisdiction, the court may, when necessary, look beyond the complaint to “undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “plausibility” standard “asks for more than a sheer possibility that
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a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). While the Court accepts well-pleaded factual allegations as true, “mere conclusory statements” and “legal conclusion[s] couched as ... factual allegation[s]” are “disentitle[d] ... to th[is] presumption of truth.” Id. at 678, 681 (citation omitted). Although the Court generally may not rely on material outside the pleadings under Rule 12(b)(6), it may consider materials incorporated into the complaint by reference, as well as judicially noticeable materials, without converting the motion into one for summary judgment. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
With respect to Plaintiffs’ APA claims, “a court may consider the administrative record and public documents without converting the motion into a motion for summary judgment, or it may convert the motion into a motion for summary judgment under Rule 12(d).” Bates v. Donley, 935 F. Supp. 2d 14, 17 (D.D.C. 2013) (internal citation omitted). “[W]hen a party seeks review of agency action under the APA [before a district court], the district judge sits as an appellate tribunal.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (alterations in original) (citation omitted); see also Bates, 935 F. Supp. 2d at 17. “The entire case on review is a question of law, and only a question of law. And because a court can fully resolve any purely legal question on a motion to dismiss, there is no inherent barrier to reaching the merits at the 12(b)(6) stage ... and there is no real distinction in this context between the question presented on a 12(b)(6) motion and a motion for summary judgment.” Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (citation omitted). Under these circumstances, review “is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously.”
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Rempfer, 583 F.3d at 865; see also Univ. Med. Ctr. of S. Nev. v. Shalala, 173 F.3d 438, 440 n.3 (D.C. Cir. 1999) (explaining that when reviewing agency action the question whether the agency acted in an arbitrary and capricious manner is a legal one which the district court can resolve on the agency record, regardless of whether it is presented in the context of a motion for judgment on the pleadings or in a motion for summary judgment).
Even outside the context of the APA, the Court may consider “matters of … judicial notice.” Hurd v. Dist. of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (citations omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may also consider exhibits that are submitted with the complaint, see Hurd, 864 F.3d at 678, as well as “documents upon which the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss,” such as when the complaint “quotes from and discusses a document extensively.” Patterson v. United States, 999 F. Supp. 2d 300, 306 (D.D.C. 2013) (internal citations and alterations omitted).
ARGUMENT In seeking to invalidate the Rescission Policy, Plaintiffs ask the Court to override the Acting Secretary’s judgment about how to exercise her discretion in enforcing the Nation’s immigration laws—a matter long regarded as the exclusive province of the Executive Branch. The Court need not consider this extraordinary request, however, because Plaintiffs lack standing to make it. They identify no injury to their own interests as organizations, name no members actually harmed by the policy, and have no mission with an apparent connection to this suit. And even if Plaintiffs could establish standing, this case is not justiciable. The exercise of enforcement discretion in the Rescission Policy is committed to agency discretion by law and is therefore unreviewable. In fact, Congress has gone so far as to strip district courts of jurisdiction over “no
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deferred action” decisions such as the one here. In any event, even if Plaintiffs could overcome

these hurdles, they fail to state a claim. This case should be dismissed.

I.

THE COURT LACKS JURISDICTION BECAUSE PLAINTIFFS LACK STANDING

A. Plaintiffs Lack Article III Standing

1. Plaintiffs lack organizational standing.

Plaintiffs open their complaint by declaring that they “bring this action in their

organizational capacities.” Am. Compl. ¶ 1. Yet they make no attempt to identify any injury

whatsoever to their own interests as organizations. Their allegations are patently insufficient to

establish standing.

To establish Article III standing, an organization suing on its own behalf must meet the

familiar standing requirements that apply to individuals: (1) injury in fact; (2) causation; and

(3) redressability. See, e.g., Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433

(D.C. Cir. 1995). As the parties invoking the Court’s jurisdiction, Plaintiffs bear the burden

“clearly to allege facts demonstrating” each of these three elements. Warth v. Seldin, 422 U.S.

490, 518 (1975). The necessary facts “must affirmatively appear in the record” and “cannot be

inferred argumentatively from averments in the pleadings.” FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 231 (1990). The standing inquiry is “‘especially rigorous’” where, as here, “reaching

the merits of the dispute would force [a court] to decide whether an action taken by one of the

other two branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 408 (2013) (citation omitted).

Plaintiffs’ complaint fails at the first step of the analysis. Here, Plaintiffs were not the

object of any government policy. Instead, a generous reading of the complaint reveals, at most,

dissatisfaction with the alleged effects of a policy decision on “undocumented immigrants of

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color.” Am. Compl. ¶ 1; see also id. ¶¶ 3, 12. But the federal courts do not sit to air arguments “at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences,” Sierra Club v. Morton, 405 U.S. 727, 740 (1972), or to resolve “generalized grievances more appropriately addressed in the representative branches,” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (citation omitted), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, 134 S. Ct. 1377 (2014). Thus, a “mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem,” is insufficient to create standing. Sierra Club, 405 U.S. at 739. Accordingly, an “organization’s abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art[icle] III.” Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 (1976)).
Nor can Plaintiffs show an injury to their own activities. To satisfy Article III under this theory of standing, an organization must demonstrate a “concrete and demonstrable injury to the organization’s activities—with [a] consequent drain on the organization’s resources— constitut[ing] ... more than simply a setback to the organization’s abstract social interests.” Nat’l Taxpayers Union, 68 F.3d at 1433 (alterations in original) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). “Such a showing requires ‘more than allegations of damage to an interest in “seeing” the law obeyed or a social goal furthered.’” Id. (quoting Am. Legal Found. v. FCC, 808 F.2d 84, 92 (D.C. Cir. 1987)). Rather, “the organization must allege that discrete programmatic concerns are being directly and adversely affected” by the challenged action. Id. (citation and alteration omitted). Here, Plaintiffs do not even try to meet this test. See Am. Compl. ¶¶ 11–16. They identify no history of immigration advocacy. They point to no
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interference with any immigration-related programming. And they allege no new expenditure of funds—not so much as a dime. Plaintiffs thus fall well short of their burden to establish a cognizable injury to their own interests. Their claim of organizational standing should be rejected out of hand.
2. Plaintiffs lack representational standing. While Plaintiffs do not expressly bring suit in their representational capacities, see id. ¶ 1, one of them—the NAACP—does allege in passing that it sues “on behalf of [their] members who are currently enrolled in, and who applied to enroll in, the DACA program,” id. ¶ 12. But it fails to identify any particular member allegedly harmed by the policy change, and that alone dooms any claim of representational standing. To establish “representational” (or “associational”) standing to sue on behalf of its members, an association must show that (1) at least one of its members has standing to sue in his own right; (2) the interests the association seeks to protect are germane to its purpose; and (3) neither litigation over the claim asserted nor the relief sought requires the participation of an individual member. Interstate Nat. Gas Ass’n of Am. v. FERC, 494 F.3d 1092, 1095 (D.C. Cir. 2007). To satisfy the first of these prongs, an association must at the very least name a specific member with standing for each claim it asserts. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (association must “name the individuals who were harmed”); Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 820 (D.C. Cir. 2006) (“identity” of injured member must be “firmly established”). Because the NAACP makes no effort to name any member allegedly harmed by the Rescission Policy, it lacks representational standing. Even if the NAACP could overcome these barriers, any claim of representational standing would flunk the second prong of the test, as the organization makes no showing that the interests
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it seeks to protect are “germane to its purpose.” Interstate Nat. Gas, 494 F.3d at 1095; see Humane
Soc’y of U.S. v. Hodel, 840 F.2d 45, 56–57 (D.C. Cir. 1988) (the germaneness requirement
mandates “that an organization’s litigation goals be pertinent to its special expertise and the
grounds that bring its membership together,” and serves to “prevent[] litigious organizations from
forcing the federal courts to resolve numerous issues as to which the organizations themselves
enjoy little expertise and about which few of their members demonstrably care”). The NAACP
alleges that, “[s]ince its founding in 1909, [its] mission ... has been to ensure the political,
educational, social, and economic equality of all persons,” and that it has filed “numerous amicus
briefs ... in cases that significantly impact people of color.” Am. Compl. ¶ 11. Conspicuously
absent from that description of its mission and activities is any mention of immigration—the focus
of this lawsuit. Indeed, immigration is not listed on the NAACP’s website as one of the “issues”
it pursues, and a search of its website for the term “DACA” returns just a handful of hits, all related
to the filing of this case. See http://www.naacp.org (last visited Nov. 8, 2017). Thus, the NAACP
fails to show that the interests at stake in this case are germane to its mission—an independently sufficient reason to reject any claim of representational standing.2
B. Plaintiffs Lack Prudential Standing
2 To the extent the allegations of the other two Plaintiffs—the American Federation of Teachers (“AFT”) and the United Food and Commercial Workers International Union (“UFCW”)—could be read to attempt to invoke representational standing, cf. Am. Compl. ¶¶ 13–16, any such claim would fail for the same reasons. Like the NAACP, neither AFT nor UFCW names any member allegedly harmed by the Rescission Policy. And neither makes any showing that the interests it seeks to protect are germane to its purpose. AFT is a teachers’ union, and it offers only the general allegation that it has a history of “advocating for the civil rights of its members and the communities they serve.” Id. ¶ 13. UFCW is a union representing mostly “retail, meatpacking and poultry, food processing, and manufacturing” employees, and it offers the similarly general allegation that it “fights to advance and safeguard full employment, economic security, and social welfare of its members.” Id. ¶ 15. While UFCW asserts that “immigrants from around the world” are among the workers it represents, id. ¶ 16, it alleges no particular expertise in immigration law or any connection between immigration law and its organizational mission.
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Even if Plaintiffs could establish Article III standing, they would lack prudential standing because they fall outside the zone of interests protected by the INA. The APA does not “allow suit by every person suffering [an] injury in fact.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 395 (1987). Rather, it provides a cause of action only to a plaintiff “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. To be “aggrieved” in this sense, “the interest sought to be protected by the complainant [must] be arguably within the zone of interests to be protected or regulated by the statute ... in question.” Clarke, 479 U.S. at 396 (brackets and citation omitted). Here, no provision of the INA protects the Plaintiff organizations from bearing any incidental effects of a denial of deferred action. Cf. Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 899 (D.C. Cir. 1996) (dismissing under zone-ofinterests a suit challenging parole of aliens into this country, where plaintiffs relied on incidental effects of that policy on workers). II. THIS CASE IS NOT JUSTICIABLE
A. The Rescission Policy Is Not Justiciable Because this Immigration Enforcement Policy Is a Matter Committed to Agency Discretion by Law
1. The APA bars judicial review of certain categories of decisions that “courts traditionally have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (quoting 5 U.S.C. § 701(a)(2)). These decisions are typically unreviewable because there exists “no meaningful standard against which to judge the agency’s exercise of discretion” in these areas. Chaney, 470 U.S. at 830; see Davis v. Fed. Bureau of Prisons, 517 F. Supp. 2d 460, 461 (D.D.C. 2007) (“The APA, however, also provides an exception to the waiver of sovereign immunity ... when ... agency action is committed to agency discretion.”), aff’d in part and remanded, 334 F. App’x 332 (D.C. Cir. 2009). This bar applies even when “the agency gives a ‘reviewable’ reason for otherwise unreviewable action.” ICC v. Bhd. of Locomotive Eng’rs (BLE), 482 U.S. 270, 283
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(1987). Among the decisions committed to executive discretion are “an agency’s exercise of
enforcement power.” Chaney, 470 U.S. at 833. Such judgments involve “a complicated balancing of … factors which are peculiarly within [an agency’s] expertise,” including “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall priorities, and, indeed, whether the agency has enough resources to undertake the action at all.” Id. at 831. As there is “no meaningful standard against which to judge the agency’s exercise of discretion” in weighing these factors, an agency’s exercise of enforcement powers is “presumed immune from judicial review under § 701(a)(2).” Id. at 830, 832.
For instance, an “agency [] decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Id. at 831. After all, “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” and it is “far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.” Id. at 831–32. Thus, for example, the Supreme Court in Chaney held that the FDA’s general policy of refusing to exercise jurisdiction over the states’ use of approved drugs in lethal injections was committed to the agency’s discretion under § 701(a)(2). See 470 U.S. at 824–25, 837–38.
An agency’s decision to enforce the law against a particular individual is likewise presumptively unreviewable. Just as “the decision whether or not to prosecute” presumptively “rests entirely in [the prosecutor’s] discretion,” United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation omitted), an agency’s decision to bring a civil enforcement action is generally not open to judicial scrutiny. Considerations such as “whether agency resources are best spent on this
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violation or another, whether the agency is likely to succeed if it acts, [and] whether the particular enforcement action requested best fits the agency’s overall policies” are equally present in enforcement decisions as in nonenforcement decisions, Chaney, 470 U.S. at 831, and judicial intrusion into the deliberative process is equally improper, see Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“there must be a strong showing of bad faith or improper behavior before” courts can engage in an “inquiry into the mental processes of administrative decisionmakers”), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
This presumption of nonreviewability applies with particular force when it comes to immigration. On top of the general concerns implicated in any enforcement decision, the enforcement of immigration laws “embraces immediate human concerns,” and the “dynamic nature of relations with other countries requires the Executive Branch to ensure that [immigration] enforcement policies are consistent with this Nation’s foreign policy.” Arizona, 567 U.S. at 396– 97. Given these realities, the “broad discretion exercised by immigration officials” has become a “principal feature of the removal system.” Id. at 396. One form of that broad discretion is deferred action, a “discretionary and reversible” decision to notify an alien that DHS has chosen not to seek his removal for a specific period of time. Arpaio, 797 F.3d at 17; see supra at 5–6. Like other agency nonenforcement decisions, grants of deferred action rest on a complex balancing of policy considerations that cannot serve as a “meaningful standard against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830. Such determinations are thus presumptively unreviewable. See Arpaio, 797 F.3d at 16.
The converse is equally true: denials of deferred action are also committed to agency discretion. See AADC, 525 U.S. at 485 (treating “‘no deferred action’ decisions” as “discretionary determinations”). Because “[g]ranting an illegally present alien permission to remain and work in
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this country” is fundamentally “a dispensation of mercy,” there are “no standards by which judges may patrol its exercise.” Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990) (INS’s decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens nonjusticiable). To be sure, a decision “not to grant deferred action status to a particular alien is not precisely a ‘decision not to take enforcement action,’” but that does not obscure the fact that “many of the same factors” underlying the latter determinations usually play a role in the former. MadaLuna v. Fitzpatrick, 813 F.2d 1006, 1011 n.4 (9th Cir. 1987) (“denials of deferred action status applications are not subject to judicial review” under § 701(a)(2)).
2. As an exercise of enforcement discretion, the Rescission Policy is a classic example of a discretionary determination that is entrusted to the agency alone. Indeed, any attempt to judge the Policy would quickly entangle this Court in the sort of complex and discretionary balancing that has been entrusted by Congress to the Executive Branch. For example, the judiciary is institutionally ill-equipped to assess whether the Acting Secretary’s decision to change “immigration policies and priorities” by rescinding DACA, Rescission Policy at 4 (AR 255), was an appropriate use of “the Department’s limited resources,” Arpaio, 797 F.3d at 16. Nor is this Court well suited to second-guess the Acting Secretary’s balancing of the costs and benefits of keeping the policy in place, on one hand, with the risk of “potentially imminent litigation” that could throw DACA into immediate turmoil, on the other. Rescission Policy at 3 (AR 254) (citation omitted).
To be sure, the Acting Secretary also gave substantive legal reasons for her decision, id. at 2–4 (AR 253–55), but that does not render it justiciable. That is because the Supreme Court has rejected the proposition that if an “agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” BLE, 482 U.S. at 283. For example, “a common reason
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for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction,” which “is surely an eminently ‘reviewable’ proposition, in the sense that courts are well qualified to consider the point.” Id. But that does not change the fact that “it is entirely clear that the refusal to prosecute cannot be the subject of judicial review.” Id. Likewise, the Acting Secretary’s discussion of the question of DACA’s legality does not transform her generally unreviewable exercise of enforcement discretion into a matter fit for judicial scrutiny.
Indeed, reviewing the Rescission Policy would be particularly inappropriate given the wide discretion the Secretary enjoys in the enforcement of the immigration laws. In AADC, the Supreme Court held that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation,” 525 U.S. at 488, subject to the “possib[le]” exception “of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome,” id. at 491. The reason for this highly restrictive rule is that the concerns raised by challenges to the Executive’s enforcement discretion “are greatly magnified in the deportation context.” Id. at 490. An alien subject to removal is, by definition, in continuing violation of the INA, and judicial interference with the Executive’s enforcement therefore would compel the Executive to disregard such ongoing violations. The “delay” associated with challenges to discretionary decisions not to forgo enforcement is more likely than in the criminal arena, as “[p]ostponing justifiable deportation (in the hope that the alien’s status will change … or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding,” and “the consequence is to permit and prolong a continuing violation” of the immigration laws. Id. at 490. For another, reviewing immigration decisions may involve “not merely the disclosure of normal domestic law
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enforcement priorities and techniques, but often the disclosure of foreign-policy objectives” or other sensitive matters as well. Id. at 490–91. Finally, the idea that “an ongoing violation of United States law ... must be allowed to continue because it has been improperly selected is not powerfully appealing.” Id. at 491 (emphasis omitted).
B. The INA Deprives District Courts of Jurisdiction over Challenges to Denials of Deferred Action
Not only is the denial of deferred action committed to agency discretion under the APA, but the INA itself deprives federal district courts of jurisdiction over challenges to such denials altogether. As the Supreme Court explained in AADC, the Executive’s “exercise of [its] discretion” in granting deferred action in some circumstances had “opened the door to litigation ... where” the Executive had “chose[n] not to exercise it.” 525 U.S. at 484. Specifically, some courts had entertained challenges to “the refusal to exercise such discretion” on various bases such as “selective prosecution,” the use of “arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.” Id. at 485 (citation omitted). To address what the Supreme Court referred to as this “particular evil”—i.e., “attempts to impose judicial constraints upon prosecutorial discretion”—Congress enacted 8 U.S.C. § 1252(g). Id. at 485 & n.9.
Section 1252(g) commands that, outside of petitions for review from final removal orders and certain other limited channels for review, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security3] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this [Act].” 8 U.S.C. § 1252(g). These were “the acts … that had prompted challenges to the … exercise of prosecutorial discretion” in denying deferred action, and thus
3 See 6 U.S.C. § 557; see also id. §§ 202, 251; Elgharib v. Napolitano, 600 F.3d 597, 607 (6th Cir. 2010) (“[U]nder 6 U.S.C. § 557, ... the statutory reference to the ‘Attorney General’ in § 1252(g) now means ‘Secretary of DHS.’”).
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§ 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed”—namely, an individual removal proceeding. AADC, 525 U.S. at 485 & n.9.
Denials of deferred action—including under DACA itself—thus fall outside the jurisdiction of the federal courts. See, e.g., Vasquez v. Aviles, 639 F. App’x 898, 901 (3d Cir. 2016) (“[Section] 1252(g) … deprives all courts of jurisdiction to review a denial of DACA relief because that decision involves the exercise of prosecutorial discretion not to grant a deferred action.”); Botezatu v. INS, 195 F.3d 311, 314 (7th Cir. 1999) (“Review of refusal to grant deferred action is … excluded from the jurisdiction of the district court.”).
To be sure, Plaintiffs brought this challenge to the Rescission Policy before any removal proceedings took place, but that is beside the point. The decision not to continue deferred action is an ingredient to the commencement of enforcement proceedings at some future date, and a person cannot circumvent the bar in 8 U.S.C. § 1252(g) by singling out that single step for a preemptive challenge. Indeed, if aliens (or entities suing on their behalf) could evade § 1252(g)’s bar simply by challenging the forthcoming expiration of deferred action before actual removal proceedings (if any) began, then jurisdiction would turn on a race to the courthouse. Such a framework would create the perverse incentive for DHS to begin removal proceedings immediately rather than to allow, as it did here, for rolling expirations of deferred action status over a two-and-a-half year period. There is no indication that Congress sought to enact such a nonsensical regime. Instead, § 1252(g) precludes review of either “the decision or action” by the Acting Secretary “to commence proceedings,” and thereby sweeps in the Rescission Policy
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(emphasis added). Moreover, at least one court has applied § 1252(g) to actions that are “not … on the list of
precluded items”—i.e., “decisions to commence proceedings, adjudicate cases, or execute removal orders”—in order to effectuate the object of this jurisdictional bar. Botezatu, 195 F.3d at 313–14. In Botezatu, the Seventh Circuit rejected an alien’s argument that a court could review the Executive’s “refusal to … grant him humanitarian parole or deferred action” simply because that denial occurred in “post-deportation procedures.” Id. at 313–14. As the Seventh Circuit explained, because AADC broadly held that “‘no deferred action’ decisions and similar discretionary determinations’ [were] governed by § 1252(g),” that jurisdictional bar should apply regardless of when such determinations occurred. Id. at 314 (quoting AADC, 525 U.S. at 485). Thus, just as an alien (or entity suing on his behalf) cannot circumvent § 1252(g) by bringing a challenge to a denial of deferred action on the back-end, Plaintiffs’ broad front-end assault on the Rescission Policy is beyond the jurisdiction of this Court. At the very least, 8 U.S.C. § 1252(g) reinforces the conclusion that enforcement discretion under the INA is at the core of unreviewable matters committed to agency discretion by law under the APA. 5 U.S.C. § 701(a)(2).
C. The Government’s Justiciability Objections Are Not Inconsistent with the Acting Secretary’s Reliance on the Fifth Circuit’s Decision
Although the Fifth Circuit in Texas included holdings that a challenge to the DAPA Memo was reviewable, 809 F.3d at 165–70, neither that decision nor Acting Secretary Duke’s reliance on it forecloses the government from arguing here that the DACA Rescission Policy is unreviewable. First, neither the Acting Secretary’s memo nor the Attorney General’s letter expressly relied upon or gave any indication that they agreed with the Fifth Circuit’s justiciability rulings, and it was far from arbitrary and capricious for the Acting Secretary to weigh litigation risk based on judicial decisions without regard to whether those courts had been correct to assert
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jurisdiction in the first place. Second, officers of the Executive Branch have an independent duty to consider the legality of their policies regardless of whether they are judicially reviewable; all swear an oath to uphold the United States Constitution. See Mississippi v. Johnson, 71 U.S. 475, 499 (1867) (Take Care Clause imposes a generally nonjusticiable duty on the Executive Branch). Finally, even if courts could have reviewed the adoption of DACA as “an abdication of [DHS’s] statutory responsibilities,” Chaney, 470 U.S. at 833 n.4, that would not make the Rescission Policy, a classic exercise of agency enforcement discretion, open to challenge. After all, the Fifth Circuit itself emphasized that “DAPA is much more than a nonenforcement policy, which presumptively would be committed to agency discretion,” Texas, 809 F.3d at 178 n.156, and pointed out that a “denial of voluntary departure and work authorization” by DHS would have been nonjusticiable, id. at 168. Denials of deferred action under a return to a more traditional enforcement policy should be treated no differently.
III. PLAINTIFFS FAIL TO STATE A CLAIM Even if Plaintiffs could establish standing and justiciability, the Court should dismiss this case in its entirety for failure to state a claim.4 A. Plaintiffs Fail to State an APA Claim
1. The Acting Secretary rationally explained her decision to wind down DACA, particularly given the imminent risk of a nationwide injunction.
Plaintiffs contend that the Rescission Policy is arbitrary and capricious because it constitutes a change in agency policy without an adequate explanation. Am. Compl. ¶¶ 69–74 (Count III). That argument misapprehends the nature of the inquiry under the APA. It is black-
4 In the alternative, however, the Court may if it wishes convert this motion to one for summary judgment. See Bates, 935 F. Supp. 2d at 17, 19.
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letter law that agencies are free to change course on policy matters so long as they provide a rational explanation. Here, the Acting Secretary’s explanation of her decision to rescind DACA readily meets this deferential standard, particularly in view of the imminent risk of a nationwide injunction, which could have prompted an immediate—and chaotic—end to the policy.
1. Under the APA, an agency’s decision must be upheld unless arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); see also id. § 706(2)(B). The agency’s decision is presumed valid under this standard, and the Court asks only whether it “was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416. A decision may be held to be arbitrary and capricious only when the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency,” or the decision “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). The Court may not “substitute its judgment for that of the agency.” Id. And when an agency changes policies, it “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Rather, “it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Id.
In assessing whether a decision was arbitrary and capricious, “[t]he task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729,
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743–44 (1985) (citation omitted). If the agency’s action “is not sustainable on the administrative record made,” then the administrative “decision must be vacated and the matter remanded to [the agency] for further consideration.” Camp v. Pitts, 411 U.S. 138, 143 (1973). This Court should therefore decide whether the Acting Secretary’s decision to wind down DACA was arbitrary and capricious on the administrative record she has produced. Contrary to Plaintiffs’ suggestion, see Pls.’ Mot. for Case Mgmt. Order, ECF No. 9, the Court cannot consider additional materials concerning her deliberative process. It is “not the function of the court to probe the mental processes” of the agency. Morgan v. United States, 304 U.S. 1, 18 (1938). “Just as a judge cannot be subjected to such a scrutiny ... so the integrity of the administrative process must be equally respected.” United States v. Morgan, 313 U.S. 409, 422 (1941) (citation omitted). Deliberative materials are therefore not merely protected from disclosure—they do not form part of the administrative record at all. See San Luis Obispo Mothers for Peace v. U.S. N.R.C., 789 F.2d 26, 45 (D.C. Cir. 1986) (en banc). Thus, while the government submits that the Acting Secretary’s decision was plainly not arbitrary and capricious under the record already before this Court, if this Court were to disagree, it should do no more than simply grant Plaintiffs the relief they seek by setting aside the Rescission Policy and remanding to her.
2. The Rescission Policy amply meets the “minimal standards of rationality” required by the APA. Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997) (citation omitted). Plaintiffs do not deny that “the new policy is permissible under the [INA].” Fox, 556 U.S. at 515. And there are eminently “good reasons for it,” id., particularly in view of the litigation risk posed by the proceedings in Texas. In the Rescission Policy, the Acting Secretary explained that, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA
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program should be terminated.” Rescission Policy at 4 (AR 255). Specifically, after summarizing the Texas litigation and the nationwide injunction against DAPA (and its expansion of DACA), she quoted the Attorney General’s conclusion in his letter that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results.” Id. at 3 (AR 254) (citation omitted). The Acting Secretary thus concluded that maintaining the DACA Policy would, in all likelihood, result in another nationwide injunction plunging the policy, and its nearly 800,000 recipients, into uncertainty.
The Acting Secretary was then “faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation; or allow the judiciary to potentially shut the program down completely and immediately.” Press Release, DHS, Statement from Acting Secretary Duke on the Rescission of DACA (Sept. 5, 2017), https://go.usa.gov/xncuM. She reasonably opted for an orderly rescission, which she considered “the least disruptive option.” Id.
There is nothing at all irrational about this choice or that explanation. Cf. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84 (2002) (“regulation reasonable” based on concerns about subjecting parties to “possible … liability”). Indeed, it is entirely sensible, given the turmoil that an abrupt, court-ordered shutdown would likely have provoked. The Acting Secretary balanced the litigation risk of keeping DACA in place with “the administrative complexities associated with ending the program,” and opted for a solution that would “wind it down in an efficient and orderly fashion” accounting for the interests of DACA recipients. Rescission Policy at 3 (AR 254). She explained her reasonable decision to rescind DACA, and the APA requires no more. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citation omitted) (APA
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satisfied where agency’s explanation is clear enough that its “path may reasonably be discerned”). And no matter whether her (or the Attorney General’s) judgment about the likely result of the Texas litigation would have turned out to be correct, it was surely not an irrational or arbitrary and capricious conclusion in light of the fact that at least the Fifth Circuit and four justices of the Supreme Court had already held that a materially indistinguishable policy was unlawful.
3. Plaintiffs’ assertion that the Rescission Policy “fails to be supported by, or even accompanied by, a rationale that justifies the withdrawal of a longstanding program lawfully instituted,” Am. Compl. ¶ 71, entirely ignores the Acting Secretary’s assessment of litigation risk, which is reason enough to reject their arbitrariness claim. To the extent Plaintiffs suggest that the Acting Secretary’s consideration of the Attorney General’s views about DACA’s legality somehow rendered her decision arbitrary and capricious, the argument suffers from three independent flaws.
First, the Acting Secretary did not rely on the Attorney General’s September 4 letter solely for its assessment of DACA’s legality. Instead, as discussed above, she concluded that DACA “should” be wound down after considering, among other things, his litigation-risk determination that it was “likely” that a legal challenge to DACA “would yield similar results” as the DAPA litigation under Fifth Circuit precedent. Rescission Policy at 3-4 (AR 254-55). That independent conclusion, based on a reasonable predictive judgment about litigation risk, is a sufficient basis for upholding the Acting Secretary’s decision to rescind DACA. See Bowman, 419 U.S. at 286.
Second, to the extent the Acting Secretary did rely on the proposition that DACA was unlawful, this Court need not agree with that determination to uphold her decision. If an agency’s constitutional analysis and policy judgment overlap, courts should presume an independent policy judgment to avoid constitutional questions, even if the two determinations are arguably
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“intertwined.” See Syracuse Peace Council v. FCC, 867 F.2d 654, 657–59 (D.C. Cir. 1989) (citation omitted) (if “even in the absence of constitutional problems the [agency] would have reached the same outcome,” “we must end our inquiry without reaching that issue”). Here, the Attorney General regarded DACA as unconstitutional in part because it was an “open-ended” policy that closely tracked “proposed legislation” that Congress had repeatedly rejected. Rescission Policy at 3 (AR 254) (citation omitted). But those same concerns equally support a policy judgment by the Acting Secretary that “deferred action” should “be applied only on an individualized case-by-case basis” rather than used as a tool “to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” Id. at 2 (AR 253). This Court should sustain her decision based on a reasonable policy judgment that immigration decisions of this magnitude should be left to Congress.
Third, although this Court need not decide the issue to resolve this case in favor of the government on the basis that the agency decision was at least rational, the Attorney General’s view that DACA was unlawful is strongly supported by the Fifth Circuit’s decision in Texas that was affirmed by the Supreme Court. The Fifth Circuit held not only that DAPA—including its proposed expansion of DACA—was likely unlawful, but also that DACA bore many “important similarities” to it. Texas, 809 F.3d at 174 & n.139 (noting that “the DAPA Memo’s plain language … equates the DACA and DAPA procedure[s],” making DACA an “apt comparator”). Indeed, given that DAPA was enjoined before its implementation, the Fifth Circuit’s decision was “informed by analysis of the implementation of DACA” itself. Id. at 172. On that score, while, “[l]ike the DAPA Memo, the DACA Memo instructed agencies to review applications on a caseby-case basis,” and thus “facially purport[ed] to confer discretion,” id. at 171–72, the court found that discretion to be illusory in practice: Because relatively few DACA requests were denied, the
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Fifth Circuit believed “there was evidence from DACA’s implementation that [this] discretionary language was pretextual,” id. at 172–73. Based on these findings by the Fifth Circuit, it would follow that DACA, like DAPA, did not “genuinely leave the agency and its employees free to exercise discretion” on a case-by-case basis, id. at 176—which supports the Attorney General’s view that DACA was unlawful. And it seems likely that at least four justices of the Supreme Court agree.
Regardless of whether the Office of Legal Counsel (OLC) was correct when it previously “orally advised” that its “preliminary view” was that the proposed version of DACA would be lawful, the reasoning in that opinion further confirms the invalidity of DACA as actually implemented in practice as found by the Fifth Circuit. OLC Op. 18 n.8. The “preliminary” conclusion was conditioned on the proviso that “it was critical that … the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis.” Id. Yet the Fifth Circuit found that DHS officials did not “genuinely” retain such discretion in practice. Texas, 809 F.3d at 176. Indeed, because deferred action continues to exist on an individualized basis, the only change made by the Acting Secretary is the elimination of the factors that, according to the Fifth Circuit, led to the policy being applied without sufficient case-by case discretion. See id. at 172–73 (noting testimony that, for DACA, requests were “simply rubberstamped if the applicants meet the necessary criteria” (footnote and citation omitted)). Further, the original DACA program largely shares the relevant defects of the proposed expansion of deferred action that OLC rejected, rather than the aspects of the new program that it approved.
4. Plaintiffs also allege that the Rescission Policy is arbitrary and capricious because the Acting Secretary failed to sufficiently consider the “serious reliance interests by [DACA] participants.” Am. Compl. ¶ 71. But as set forth in Part II.A, supra, the Rescission Memo is
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Case 1:17-cv-01907-CRC Document 15 Filed 11/08/17 Page 46 of 58 merely a statement of policy that—like the original DACA policy—does not create any enforceable rights and is subject to change at any time. And insofar as Plaintiffs suggest that the Acting Secretary failed to consider the reliance interests of DACA recipients more generally, that assertion ignores her calculus based on the looming risk of a nationwide injunction ending the DACA program altogether. Given her view that she faced an imminent, court-ordered end to DACA, the Acting Secretary opted for an orderly wind-down process that would protect the reliance interests of DACA recipients far more than would an immediate injunction terminating the program. See supra Part III.A. Finally, to the extent that she rationally concluded DACA was illegal, there would be no legitimate reliance interests at all.
In all events, the foregoing analysis confirms that the Acting Secretary’s decision was at a minimum reasonable and that Plaintiffs’ APA challenge can be resolved at this stage based on the record now before the Court. Indeed, whatever this Court decides, there is no basis for supplementing the record or discovery to assess the Acting Secretary’s explanation.
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2. The Rescission Policy is exempt from notice and comment. Plaintiffs likewise miss the mark in arguing that the Rescission Policy must be set aside because it is a substantive rule issued without notice and comment. See Am. Compl. ¶¶ 72–73; see also 5 U.S.C. § 553(b)–(c). If winding down the DACA policy is a “substantive rule,” then a fortiori so was enacting the policy in the first place. Critically, though, the DACA Memo itself also was not adopted through notice and comment. So even on Plaintiffs’ own theory, it would be void ab initio—leaving Plaintiffs without a remedy. That is reason enough to dismiss this claim. See Lujan, 504 U.S. at 561 (plaintiff must show “injury will be ‘redressed by a favorable decision’” to establish standing (citation omitted)).5 In any event, Plaintiffs’ claim is erroneous. DHS and INS have adopted over 20 deferred action or similar policies over the past 50 years—rarely through notice and comment. That is because such policies, like the Rescission Policy, are not substantive rules at all. Rather, they are classic examples of “general statements of policy” that are exempt from the APA’s notice-andcomment requirements. 5 U.S.C. § 553(b)(3)(A). A “substantive rule establishes a standard of conduct which has the force of law.” Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 38 (D.C. Cir. 1974). Thus, an “agency
5 To be sure, the D.C. Circuit has rejected the “argument that notice and comment requirements do not apply to ‘defectively promulgated regulations’” as “untenable because it would permit an agency to circumvent the requirements of § 553 merely by confessing that the regulations were defective in some respect and asserting that modification or repeal without notice and comment was necessary to correct the situation.” Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 447 n.79 (D.C. Cir. 1982) aff’d sub nom, Process Gas Consumers Grp. V. Consumer Energy Council of Am., 463 U.S. 1216 (1983). That holding, however, concerned the rescission of a rule promulgated after notice and comment that was allegedly defective on other grounds, not a rule that was defective precisely because it had failed to go through notice and comment in the first place. See id. at 445–46. When an agency has already “circumvent[ed] the requirements of § 553,” id. at 447 n.79, there is no reason why it must go through those procedures to cure the underlying defect.
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action that purports to impose legally binding obligations or prohibitions on regulated parties— and that would be the basis for an enforcement action for violations of those obligations or requirements—is a legislative rule.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014).
A statement of policy, by contrast, “advise[s] the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (quoting Attorney General’s Manual on the APA 30 n.3 (1947)). It “explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule.” McCarthy, 758 F.3d at 252. It serves to “appris[e] the regulated community of the agency’s intentions” and “inform[] the exercise of discretion by agents and officers in the field.” Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 949 (D.C. Cir. 1987). And “a general statement of policy, like a press release,” often “announces the course which the agency intends to follow in future adjudications.” Pac. Gas & Elec., 506 F.2d at 38. Accordingly, policy statements “are binding on neither the public nor the agency,” and the agency “retains the discretion and the authority to change its position … in any specific case.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (citations omitted).
As these principles make clear, the Rescission Policy is a quintessential policy statement— a point that its text reinforces again and again. It was issued as an “exercise of [the Secretary’s] authority in establishing national immigration policies and priorities.” Rescission Policy at 4 (AR 255). It explains how the agency intends to exercise its enforcement authority on a prospective basis, a matter that is “generally committed to an agency’s absolute discretion.” Chaney, 470 U.S. at 831 (citations omitted). It does not immediately deprive any DACA recipients of their current
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deferred action status, but describes how pending and future deferred action requests will be “adjudicate[d]—on an individual, case-by-case basis.” Rescission Policy at 4 (AR 255). It does not categorically forbid the agency from continuing to defer enforcement action against DACA recipients in the future, but instead acknowledges the background principle, recognized by Congress and the courts, that deferred action is “an act of prosecutorial discretion” that may be exercised “on an individualized case-by-case basis,” id. at 2 (AR 253), and that places “no limitations” on the agency’s exercise of such “otherwise lawful enforcement … prerogatives,” id. at 5 (AR 256). And it explains that it “does not … create any right or benefit, substantive or procedural, enforceable at law by any party.” Id. Thus, in the wake of the Rescission Policy, deferred action “remains discretionary and reversible,” Arpaio, 797 F.3d at 17—as with the 20odd deferred action or similar policies that DHS and INS have adopted over the past half-century, generally without going through the full notice-and-comment process.6
That is as it should be. An agency’s enforcement priorities will inevitably shift over time, whether due to changing circumstances or resource constraints. See Chaney, 470 U.S. at 831. Indeed, the DACA policy was originally adopted in part to set enforcement priorities in view of the agency’s limited resources. See Arpaio, 797 F.3d at 16; DACA Memo at 1 (AR 1); DAPA Memo at 1 (AR 37). Under Plaintiffs’ theory, however, even if Congress were to vastly increase appropriations for immigration enforcement, the agency’s hands would be tied: it would not be free to adjust its enforcement priorities without engaging in “cumbersome and time-consuming
6 The Fifth Circuit’s ruling that the adoption of the DAPA Memo required notice and comment does not imply that the rescission of DACA does as well. Unlike the DAPA or DACA Memos, the Rescission Policy announced a return to an enforcement policy of using deferred action on an individualized basis, which cannot be cast as a substantive rule. Indeed, the Fifth Circuit itself stressed that “DAPA is much more than a nonenforcement policy,” and that “a traditional nonenforcement policy would not necessarily be subject to notice and comment.” Texas, 809 F.3d at 178 n.156. In any event, if this Court agrees with the Fifth Circuit, then DACA was void ab initio and Plaintiffs lack a remedy.
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rulemaking proceedings.” Nat’l Ass’n of Regulatory Util. Comm’rs v. U.S. Dep’t of Energy, 851 F.2d 1424, 1430 (D.C. Cir. 1988). The Court should not endorse such an intrusion into matters that have “long been regarded as the special province of the Executive Branch.” Chaney, 470 U.S. at 832.
B. Plaintiffs Fail to State a Due Process Claim Plaintiffs claim that the Rescission Policy violates due process by “reneging on promises” allegedly made to DACA recipients. Am. Compl. ¶ 66. While Plaintiffs’ theory is a bit unclear, their allegations are clearly mistaken, and they identify no actual deprivation of liberty or process. In any event, this claim fails for the simple reason that DACA recipients have no protected liberty or property interest in deferred action entitling them to due process protections. Regardless, broadbased changes in agency policy like the Rescission Policy do not require individualized process.
1. Plaintiffs identify no actual deprivation of liberty or property. Plaintiffs’ key due process allegations are demonstrably false: They are flatly contradicted by documents incorporated by reference into the complaint, as well as by other publicly available, judicially noticeable documents. Moreover, Plaintiffs identify no member who has actually been harmed by any of these supposedly “broken promises.” For example, Plaintiffs assert—without citation—that DHS promised “not to terminate [recipients] from the DACA program without justification and notice.” Am. Compl. ¶ 61; see also id. ¶ 66. In fact, the DACA FAQs state that “DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” DHS DACA FAQ No. 27 (emphasis added). Regardless, the Rescission Policy does not “terminate” anyone’s DACA status—on the contrary, it provides that DHS generally “will not terminate the grants of previously issued deferred action ... for the remaining
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duration of their validity periods” as part of the rescission. Rescission Policy at 4 (AR 255) (emphasis added). Notably, Plaintiffs point to no member whose DACA status was allegedly terminated by the Rescission Policy.
Plaintiffs likewise claim—again without citation—that DHS promised “to provide employment authorization to those eligible.” Am. Compl. ¶ 61. But Congress vested the Acting Secretary with discretion to determine whether to grant work authorization to aliens accorded deferred action. See 8 U.S.C. § 1324a(h)(3) (defining “unauthorized alien” as, inter alia, an “alien [who] is not ... authorized to be so employed by this chapter or by the [Acting Secretary]”). And under DHS regulations, work authorization is not an independent guarantee, but a consequence that may flow from a grant of deferred action—one that ends when deferred action ends, which may occur at any time. See 8 C.F.R. § 274a.12(c)(14) (providing for work authorization for “[a]n alien who has been granted deferred action, an act of administrative convenience to the government”). These statutes and regulations are “completely permissive” and provide “no meaningful standards against which to judge the agency’s exercise of discretion.” Perales, 903 F.2d at 1047, 1049 (citation omitted) (decisions to deny work authorization to a particular class of aliens are committed to agency discretion by law). Regardless, the Rescission Policy does not rescind anyone’s work authorization—indeed, it states that DHS generally “will not ... revoke Employment Authorization Documents ... for the remaining duration of their validity periods.” Rescission Policy at 4 (AR 255) (emphasis added). Again, Plaintiffs identify no member claiming otherwise.
Finally, Plaintiffs contend that DHS withdrew a promise “not to use information” submitted by DACA applicants “against them or [their] family members in enforcement proceedings.” Am. Compl. ¶ 61; see also id. ¶ 57 (the “termination of the DACA program is
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accompanied by withdrawal of th[at] guarantee”). That is doubly wrong: not only does it misstate DHS’s information-sharing policy, but that policy has not in fact changed. Under that policy, information submitted in DACA requests “is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’[s] Notice to Appear guidance” (for example, when issues of national security, public safety, or significant criminal activity are raised). DHS DACA FAQ No. 19 (emphasis added);7 see Notice to Appear Guidance. While this policy “may be modified, superseded, or rescinded at any time” and creates no legal rights, DHS DACA FAQ No. 19, nothing in the Rescission Policy purports to change it, and it currently remains in effect. Notably, Plaintiffs once again point to no member who has been placed in enforcement proceedings, or whose information has been shared with ICE, contrary to this policy.
The Court should not defer to Plaintiffs’ obviously incorrect allegations, which identify no “broken promises” at all, much less a violation of due process. See Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004) (courts need not “accept as true the complaint’s factual allegations insofar as they contradict exhibits to the complaint or matters subject to judicial notice” (citation omitted)).
7 The information-sharing policy continues: “Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.” DHS DACA FAQ No. 19.
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2. There is no protected liberty or property interest in the receipt of DACA.
Even taking Plaintiffs’ allegations at face value, their due process claim fails as a threshold matter, for they cannot show that DACA recipients have a protected liberty or property interest in deferred action that would entitle them to due process protections.
The Fifth Amendment provides that “no person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Thus, the “first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citation omitted). The “Due Process Clause does not protect everything that might be described as a ‘benefit.’” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). Rather, “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). Such entitlements “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source”—e.g., statutes or regulations—“that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577.
A benefit “is not a protected entitlement” where, as here, “government officials may grant or deny it in their discretion.” Castle Rock, 545 U.S. at 756 (citation omitted). For due process purposes, statutes or regulations limit discretion only when they contain “explicitly mandatory language”—i.e., “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 462–63 (1989) (citation omitted).
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The DACA policy contains no such “explicitly mandatory language.” Id. at 463. The policy is codified in no statute or regulation. Its source—the DACA Memo—describes it as a “policy” for the “exercise of prosecutorial discretion.” DACA Memo 2, 3 (AR 2, 3); see Omar v. McHugh, 646 F.3d 13, 22 n.7 (D.C. Cir. 2011) (the “use of the word ‘policy’”—“rather than a word such as ‘right’—reinforces the conclusion that Congress did not intend to create an ‘entitlement’”). And the agency’s public guidance makes clear that, under DACA, deferred action “may be terminated at any time, with or without Notice of Intent to Terminate, at DHS’s discretion.” DHS DACA FAQ No. 27.
The D.C. Circuit has recognized that, under DACA, “deferred action remains discretionary and reversible, and ‘confers no substantive right, immigration status or pathway to citizenship.’” Arpaio, 797 F.3d at 17 (quoting DACA Memo 3). Thus, it is not a protected entitlement for due process purposes, and Plaintiffs’ claim fails as a matter of law. See also, e.g., Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir. 1984) (deferred action guidance “places no effective limitations on official discretion, and thus creates no protected liberty interest in deferred action”); De Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985) (because “deferred action” “vests the regional commissioner with unfettered discretion to determine whether to grant an informal administrative stay of deportation to an otherwise deportable alien, it creates no protectible liberty interest in deferred action, nor does it create a protectible interest in being considered for deferred action status”).
3. Changes in agency policy do not require individualized process. Even if DACA could be conceived of as an entitlement, Plaintiffs’ due process claim would fail because changes in agency policy do not require individualized process. Due process doctrine recognizes a “distinction between individualized deprivations, [which] are protected by procedural
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due process, and policy-based deprivations of the interests of a class, [which] are not protected by procedural due process.” 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.2 (5th ed. 2010). The rescission of DACA falls squarely in the latter category.
Plaintiffs allege that, under DACA, “termination required a ‘notice of an intent to terminate’ that provided all reasons and documents supporting the termination,” and that “registrants were to be given an opportunity to submit evidence rebutting that termination.” Am. Compl. ¶ 66. But Plaintiffs theory is not that individual DACA applications were adjudicated incorrectly (for example, due to factual error)—the sort of mistake that notice and a hearing could conceivably help correct. Instead, Plaintiffs’ claim appears to be that DHS cannot alter the DACA policy, even on a prospective basis, without providing individualized notice and hearings to nearly 800,000 recipients.
Such individualized process is not required. The Supreme Court held long ago that where a government policy “applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption,” and thus due process does not require individualized predeprivation notice. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915). This case presents “the classic Bi-Metallic scenario”—the challenged policy applies across-theboard to a large number of people, so “[n]ot only would individualized hearings be impractical, they would be unnecessary.” Decatur Liquors, Inc. v. Dist. of Columbia, 478 F.3d 360, 363 (D.C. Cir. 2007) (citing Bi-Metallic, 239 U.S. at 445).
The Ninth Circuit’s decision in Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980), is instructive in this regard. There, the INS had issued a policy directive granting “deferred voluntary departure”—a form of deferred action—to Iranian nationals who were unwilling to return home due to political instability. Id. at 1359. Then, in response to the Iranian hostage crisis, the INS
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issued another policy directive “rescinding the … deferred departure” and requiring its recipients to depart the country within 30 days. Id. Relying on Bi-Metallic, the Ninth Circuit rejected the plaintiff’s claim “that he should have had a prior opportunity to contest [the INS’s] decision to rescind deferred departure.” Yassini, 618 F.2d at 1363. “Where an agency action is not based on individual grounds, but is a matter of general policy,” the court explained, “no hearing is constitutionally required.” Id. (citing, inter alia, Bi-Metallic). So too here.
C. Plaintiffs’ Regulatory Flexibility Act Claim Fails Because Notice-andComment Procedures Were Not Required
Plaintiffs’ Regulatory Flexibility Act (RFA) claim fails for the same reasons as their notice-and-comment claim, and it can be quickly dispatched. See Am. Compl. ¶¶ 75–82 (Count IV). The RFA’s requirement that an agency publish analyses of a rule’s impact on small businesses applies only “when an agency promulgates a final rule under section 553 of … title [5], after being required by that section or any other law to publish a general notice of proposed rulemaking,” U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 42 (D.C. Cir. 2005) (quoting 5 U.S.C. § 604(a))—in other words, only where notice-and-comment procedures are required. Because those procedures were not required here, see supra at § II(A)(2), the RFA does not apply. See also, e.g., Broadgate, Inc. v. USCIS, 730 F. Supp. 2d 240, 243 (D.D.C. 2010) (the “Regulatory Flexibility Act ... only applies when an agency is required to publish general notice of proposed rulemaking” (citing 5 U.S.C. §§ 603(a), 604(a))).8
8 While Defendants have already addressed Plaintiffs’ general lack of standing, see supra at §I(A), (B), Plaintiffs lacks standing to raise an RFA claim for an additional reason: They allege no facts to demonstrate that they are “small entities” entitled to seek judicial review under the RFA. See 5 U.S.C. § 601(6) (defining “small entity”); id. § 611 (restricting judicial review to “a small entity that is adversely affected or aggrieved”); see also, e.g., N.W. Mining Ass’n v. Babbitt, 5 F. Supp. 2d 9, 13 (D.D.C. 1998) (“[T]he language of the RFA extends standing to seek judicial review only to a ‘small entity.’”). Plaintiffs’ conclusory assertions on this score, see Am. Compl. ¶ 79, should not be taken as true on a motion to dismiss. See Iqbal, 556 U.S. at 678, 681.
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D. Plaintiffs’ Declaratory Relief “Claim” States No Independent Cause of Action In Count I, Plaintiffs assert entitlement to declaratory relief, but no substantive cause of action. Am. Compl. ¶¶ 51–58. Because “[d]eclaratory relief is not an independent cause of action, and does not provide an independent source of federal jurisdiction,” Yancey v. Dist. of Columbia, 991 F. Supp. 2d 171, 180 n.6 (D.D.C. Nov. 6, 2013) (citing Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011)), this “claim” should also be dismissed. V. NATIONWIDE DECLARATORY AND INJUNCTIVE RELIEF IS IMPERMISSIBLE Plaintiffs also seek injunctive relief preventing “Defendants from rescinding the DACA program,” and “from using information obtained in any DACA application or renewal request to identify, apprehend, detain, or deport any DACA registrant … .” Am. Compl., Prayer for Relief. To the extent this Court ultimately concludes that Plaintiffs are entitled to any injunction, it should dismiss the request for nationwide relief. Both constitutional and equitable principles require that injunctive relief be limited to redressing a plaintiff’s own cognizable injuries. Article III demands that “a plaintiff must demonstrate standing … for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation omitted). “The remedy” sought thus must “be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). “The actual-injury requirement would hardly serve [its] purpose … of preventing courts from undertaking tasks assigned to the political branches[,] if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration.” Id. And equitable principles independently require that an injunction “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted); see also Monsanto Co. v. Geertson Seed
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Farms, 561 U.S. 139, 163 (2010) (narrowing injunction in part because the plaintiffs “do not

represent a class, so they could not seek to enjoin such an order on the ground that it might cause

harm to other parties”). Accordingly, any injunction here should be limited to particular individual

Plaintiffs found to have cognizable claims.

CONCLUSION

For the foregoing reasons, the Court should grant Defendants’ motion and dismiss this

case.

Dated: November 8, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

BRETT A. SHUMATE Deputy Assistant Attorney General

JENNIFER D. RICKETTS Director

JOHN R. TYLER Assistant Branch Director

/s/ Kate Bailey KATE BAILEY RACHAEL WESTMORELAND Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Phone: (202) 514-9239 Fax: (202) 616-8470 Email: kate.bailey@usdoj.gov Member, MD Bar

Counsel for Defendants

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 Case 1:17-cv-01907-CRC Document 18 Filed 12/15/17 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

THE NATIONAL ASSOCIATION FOR THE ) ASSOCIATION PLAINTIFFS’ MOTION

ADVANCEMENT OF COLORED PEOPLE ) FOR NINE DECLARANTS TO PROCEED

(NAACP), AMERICAN FEDERATION OF ) BY PSEUDONYM AND MEMORANDUM

TEACHERS, AFL-CIO, AND UNITED FOOD ) OF LAW IN SUPPORT THEREOF

AND COMMERCIAL WORKERS

)

INTERNATIONAL UNION, AFL-CIO, CLC, )

)

Plaintiffs,

)

v.

) Civil Action No. 17-cv-1907 (CRC) )

DONALD TRUMP, in his official capacity as )

President of the United States, JEFFERSON )

BEAUREGARD SESSIONS, III, in his official )

capacity as Attorney General of the United )

States, ELAINE C. DUKE, in her official

)

capacity as acting Secretary of Homeland

)

Security, U.S. CITIZENSHIP AND

)

IMMIGRATION SERVICES, U.S.

)

IMMIGRATION AND CUSTOMS

)

ENFORCEMENT, DEPARTMENT OF

)

HOMELAND SECURITY, UNITED STATES )

OF AMERICA,

)

)

Defendants.

)

_______________________________________ )

)

THE TRUSTEES OF PRINCETON

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

UNIVERSITY, MICROSOFT

)

CORPORATION, and

)

MARIA DE LA CRUZ PERALES SANCHEZ, )

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES OF AMERICA, U.S.

)

DEPARTMENT OF HOMELAND

)

SECURITY, and KRISTJEN NIELSON, in her )

official capacity as Secretary of the Department )

of Homeland Security,

)

)

Defendants.

)

Case 1:17-cv-01907-CRC Document 18 Filed 12/15/17 Page 2 of 19
Plaintiffs respectfully seek leave to submit declarations from nine declarants by pseudonym. Each declarant is a member of either the National Association for the Advancement of Colored People (“NAACP”), American Federation of Teachers, AFL-CIO ( “AFT”) or the United Food and Commercial Workers International Union, AFL-CIO, CLC (“UFCW”) (collectively, the “Association Plaintiffs”) who seeks to submit a declaration in support of Plaintiffs’ Motion for Summary Judgment and/or Preliminary Injunction. Defendants do not oppose the Association Plaintiffs’ request to file the declarations via pseudonym, but take the position that Defendants should be entitled to know the declarants’ identities. The Association Plaintiffs oppose disclosing their identities to Defendants for the reasons set forth below.
FACTUAL BACKGROUND Association Plaintiffs brought suit to challenge Defendants’ September 5, 2017 rescission of the Deferred Action for Childhood Arrival Program (DACA) under the Administrative Procedure Act (APA), the Regulatory Flexibility Act, and the U.S. Constitution. Pursuant to the Court’s November 22, 2017 Scheduling Order (Dkt. 7), Association Plaintiffs will file a motion for a preliminary injunction or for summary judgment on December 15, 2017. In connection with that motion, the Association Plaintiffs seeks to file declarations on behalf of nine declarants who wish to withhold their identities from Defendants and the public (hereinafter, the “Doe declarants”). The Doe declarants are DACA recipients who are currently members of either the NAACP, the AFT, or the UFCW. See Ex. 1-9 (Doe declarations). Their declarations describe the crucial role that DACA has played in the declarants’ lives and the consequences for them, and for the Association Plaintiffs stemming from DACA’s rescission. The declarations generally relate to the legal issues of standing, facts that Defendants failed to consider in deciding to
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rescind DACA, the irreparable harm the declarants will suffer if DACA is rescinded, and the public interest to be weighed in assessing Plaintiffs’ motion for injunctive relief.
The Doe declarants currently have protections arising from their DACA status. Barring injunctive relief, however, they will be subject to arrest, detention, and removal by immigration authorities once their DACA status expires.
The Government has “urge[d] DACA recipients to use the time remaining on their work authorizations to prepare for and arrange their departure from the United States.”1 Furthermore, the Government possesses the Doe declarants’ personal information, including their home addresses, which was collected from DACA applicants as part of the application process.2 Though it promised at the time not to use that information for enforcement purposes, the Government has asserted its ability to revise that information-sharing policy without notice at any time. Defs.’ Mem. in Support of Mot. to Dismiss the Association Plaintiffs at 38-39 (Dkt. 15). Thus, Defendants claim the right, and have the ability, to deport the Doe declarants and/or their family members.
The Doe declarants reasonably fear retaliation for submitting declarations in support of the Plaintiffs in this case. Specifically:
 Declarant Jane Doe II was brought to the United States when she was two years old. She is the first person in her family to attend college. Receiving DACA protection has allowed her to go to college and become a special education teacher. DACA’s rescission
1 Talking Points - DACA Rescission, MSNBC, http://msnbcmedia.msn.com/i/MSNBC/Sections/ NEWS/z-pdf-archive/170905-DACA-Talking-Points.pdf; see also Kristen Welker & Daniel Arkin, Trump Administration Memo: DACA Recipients Should Prepare for ‘Departure,’ NBC NEWS (Sept. 5, 2007), https://www.nbcnews.com/news/us-news/white-house-memodacarecipients-should-prepare-departure-n799026. 2 See Instructions for Consideration of Deferred Action for Childhood Arrivals, USCIS Form I821D at 13 (Jan. 9, 2017), https://www.uscis.gov/sites/default/files/files/form/i-821dinstr.pdf.
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would lead to a significant economic hardship for her, and for her students, as the District she teaches in has a shortage of teachers qualified to teach deaf students. Disclosure of her identity to the Government would cause her extreme mental stress; she is already exhausted from the fear and emotional turmoil of the uncertainty that now overwhelms her life.  Declarant Jane Doe III was brought to the United States when she was only eight years old. Before DACA, she never thought she would be able to go to college, as she would have no way of receiving financial aid. After graduating high school as the class salutatorian, she matriculated in the University of Texas, Austin. After graduating from college, Jane Doe III began teaching Spanish in a public high school, and also facilitates a program designed for students who are underrepresented in higher education. In addition to experiencing feelings of shame, fear, and not belonging since Attorney General Sessions announced the plan to end DACA on September 5, 2017, she is terrified that she will be deported and torn from the only community and home she has ever known. Disclosing her identity would compound that terror.  Declarant Jane Doe IV was brought to the United States when she was seven years old. She grew up without being able to go to the doctor, because her parents were afraid that her status would be discovered. She was overjoyed when she was finally old enough to receive DACA protection in 2014 and received employment authorization for the first time. She now lives in constant fear of deportation to a country she does not know, and of being torn from her brother and sister, who are U.S. Citizens. Disclosing her identity would cause her a tremendous amount of stress and anguish.
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 Declarant Jane Doe V was brought to this country at age nine, and has a brother who was later born here, as a U.S. Citizen. She excelled in school, but because she was undocumented, she could not obtain any academic scholarships so she could attend any of the elite institutions that tried to recruit her. She is currently a student at the City University of New York (“CUNY”), and she wants to become a lawyer. She is now fearful that she will be separated from her little brother, and that she will be unable to finish college or ever become a lawyer. She is also afraid of being deported to a country where she has no close family or friends and does not know the customs. Disclosing her identity would increase the fearfulness she feels now by magnitudes of order.
 Declarant Jane Doe VI was brought to the United States when she was four years old. She has lived in fear since the age of eight, when she first learned she did not have documents. She describes living in fear of begin caught as undocumented while trying to attend school and get a job. Before DACA, she could see no future for herself, and often worked two part-time jobs without benefits to make ends meet. Because of DACA, she was able to receive work authorization and a much better job, where she earns $15.20 per hour. This is enough for her to provide a home for her twin children, and health insurance, which she receives through her employer. Now that DACA is threatened, Jane Doe VI feels hopeless about her future goal of becoming a paralegal, and worried that she will no longer be able to financially assist her parents. She is terrified, because her twins are only 19 months old, and they are American citizens. She does not know what will happen if she is removed from the United States. Revealing her identity would add to her deep feelings of fear and the stress she is currently experiencing.
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 Declarant Jane Doe VII was brought to the United States when she was two years old; she is now 21 years old. Her parents are also undocumented, and she recalls growing up in fear of being caught by immigration. Before DACA, she was only able to secure low wage positions where she earned only $6.00 per hour; she often needed to work two jobs to pay her bills. Because of DACA, she now has a job making $15.50 per hour, plus health insurance, vision and dental coverage, and personal time. She is afraid that if her protections under DACA end, she will go back to having to work low level jobs, be unable to legally drive a car, and be unable to make ends meet. She most fears being removed from the United States and returned to a country she does not know, where she has no family and friends. Revealing her identity would intensify these fears.
 Declarant Jane Doe VIII was brought to the United States at the age of nine, and is a 24 year old single mother with two children, age 5 and 7, who are citizens of the United States. She did not learn she was undocumented until high school, when her parents told her why she could not take driver’s education or get a part time job, because I did not have the proper papers. After graduating high school, she was paid $4.00 per hour to work at a bakery, because the employer knew she was undocumented. She had no choice, because she was pregnant and had to support herself. Since 2013, she has been receiving DACA protection, and she began working at the same place she currently works, where she earns $15.75 per hour, with insurance for her and her children and other employee benefits. She is already very nervous and anxious about what is going to happen, and reports that the stress is negatively affecting her. This anxiety would be far worse if her identity is revealed.
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 Declarant Jane Doe IX was brought to the United States at age nine, and discovered she was undocumented at age 11, when she wanted to go to boarding school but was informed she could not receive financial aid without a social security card. Before DACA, she worked minimum wage jobs earning $8.25 per hour. She also attended college after high school, and received a scholarship. Once she became a DACA registrant, she was able to get a better paying job, earning $12 per hour, and move into student housing on campus. She is studying to receive a psychology degree. She is afraid that if her DACA protection is lost, she will no longer be able to finish school, live independently from her parents, drive, plan for her future, or help her parents when they are old. Revealing her identity would compound the concerns she is currently experiencing.
 Declarant John Doe III was brought to the United States when he was seven years old. He was told by his high school guidance counselor that being undocumented meant he had no real educational future, so he should either go to community college or work upon graduation. He went to community college, and then after registering with DACA, was able to transfer into UCLA in 2013. He is currently a member of the Teach for America Program and teaches 9th grade history in New York. He is very afraid that if his DACA is lost, he will have to leave his sister, who is a U.S. citizen and still in high school, that he will not be able to help his aging parents, and that all of his hard work will be down the drain. He also fears that his students will be detrimentally affected. Revealing his identity will add to the enormous amount of stress he is experiencing.
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LEGAL STANDARD Courts may exercise discretion to authorize the submission of materials by anonymous parties and declarants. Does I Through III v. District of Columbia, 216 F.R.D. 5, 6 n.1 (D.D.C. 2003) (noting that plaintiffs were granted leave to file via pseudonym); Oah v. Tabor, No. 901023, 1991 WL 120087, at *1 n.1 (D.D.C. June 18, 1991) (same). Courts authorize parties to proceed without disclosing their identity to the public in cases involving “matters of a sensitive and highly personal nature,” exercising their discretion in balancing the circumstances of each case with the tradition of openness in judicial proceedings. Doe v. Cabrera, 307 F.R.D. 1, 4 (D.D.C. 2014). Courts may also authorize parties to proceed without revealing their identities to the defendants when there is a particularly high risk of retaliation or harassment balanced against a low risk of prejudice to the defendants. See, e.g., Women Prisoners of the D.C. Dep’t of Corrs. v. District of Columbia, 877 F. Supp. 634, 639 n.1 (D.D.C. 1994) (allowing prisoners to proceed under pseudonyms due to the risk of retaliation by prison guards), vacated and modified in part on other grounds, 899 F. Supp. 659 (D.D.C. 1995); Campbell v. U.S. Dep’t of Agric., 515 F. Supp. 1239, 1246 (D.D.C. 1981) (allowing plaintiffs to proceed anonymously in an action challenging the agency’s interpretation of the Food Stamp Act); Gomez v. Buckeye Sugars, 60 F.R.D. 106, 107 (N.D. Ohio 1973) (allowing plaintiffs to proceed under pseudonyms in a Fair Labor Standards Act because the plaintiffs feared retaliation from defendants who were their employers; Yaman v. U.S. Dep’t of State, 786 F. Supp. 2d 148 (D.D.C. 2011) (allowing plaintiff to file her residential address under seal and ex parte to protect safety of her minor children) Although the District of Columbia Circuit has not articulated a precise test for whether to allow persons to proceed anonymously, courts have applied the following five factors:
(1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any
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litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. Nat’l Ass’n of Waterfront Emp’rs v. Chao, 587 F.Supp.2d 90, 99 (D.D.C. 2008); see also J.W. v. District of Columbia, 318 F.R.D. 196, 198 (D.D.C. 2016) (applying the same factors to parents’ request for anonymity for themselves while bringing a suit on behalf of their minor child); Doe v. Cabrera, 307 F.R.D. 1, 8 (D.D.C. 2014) (applying the same factors to a plaintiff alleging sexual assault). All of these factors are relevant in this case except for the one pertaining to the ages of the declarants, who are all adults over the age of eighteen. The remaining factors militate heavily in favor of allowing each of the Doe declarants in this case to proceed via pseudonym.
ARGUMENT The declarations submitted by nine Doe declarants contain highly sensitive and personal information, and each declarant faces a significant risk of retaliatory harm. Moreover, protecting their identities from the public and the Government—from whom they fear retaliatory immigration enforcement action—would not pose a risk of unfairness to Defendants. The Doe declarants are not parties to this case, and the Government has no need to know their identities in order to brief the legal matters before the Court.
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I. Anonymity is Necessary to Protect Highly Sensitive and Personal Information. The Doe declarants should be allowed to proceed via pseudonym because immigration
status is a highly sensitive and personal issue. Numerous federal courts have recognized that information related to immigration status
is highly sensitive and may warrant protection from disclosure. See, e.g., Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1247 & n.8 (11th Cir. 2012) (noting that revealing immigration status of school children could lead to “criminal prosecution, harassment and intimidation” and identifying cases in which courts allowed undocumented immigrant plaintiffs to proceed anonymously); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1169 (9th Cir. 2000) (crediting plaintiffs’ “highly vulnerable [immigration] status” as one of several factors weighing in favor of allowing plaintiffs to proceed anonymously); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (stating in a protective order ruling that allowing defendant employers to seek discovery regarding plaintiffs’ immigration status could inhibit them from pursuing their rights “because of possible collateral wholly unrelated consequences, [and] because of embarrassment and inquiry into their private lives”); Oah v. Tabor, 1991 WL 120087, at *1 n.1 (allowing an immigrant plaintiff to proceed anonymously).
The sensitivity of information relating to immigration status is further heightened when the action is against a governmental entity, which could use the information to arrest, detain, or even deport undocumented immigrants involved in the lawsuit (in case of the federal government) or facilitate those actions by the federal government (in cases of state or local governmental entities). For that reason, courts are especially inclined to shield the identity of immigrants with uncertain or undocumented status challenging laws that implicate their status. See, e.g., Lozano v. City of Hazelton, 620 F.3d 170, 195 (3d Cir. 2010), rev’d on other grounds,
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563 U.S. 1030 (2011) (mem.) (allowing plaintiffs to proceed without disclosing their identities to the defendants, because plaintiffs “could legitimately fear that defendant [municipality] was determined to expose their legal status to federal authorities”), aff’d in relevant part, 620 F.3d 170 (3d Cir. 2010), vacated and remanded on other grounds, 563 U.S. 1030 (2011); Puente Az. v. Arpaio, No. CV14-1356-PHX-DGC, 2014 U.S. Dist. LEXIS 166223, at *5 (D. Ariz. Dec. 1, 2014) (allowing undocumented immigrants to file Doe declarations in a challenge against state statutes criminalizing seeking employment without federal work authorization); Keller v. City of Fremont, No. 8:10-cv-270, 2011 WL 41902, at *1-*3 (D. Neb. Jan. 5, 2011) (allowing undocumented immigrants to proceed anonymously as plaintiffs in a case challenging a ballot initiative making it unlawful for any entity to knowingly or recklessly lease or rent property to undocumented immigrants); Order Granting Pltfs.’ Mot. to Proceed Under Pseudonyms, Hispanic Interest Coal. of Ala. v. Governor of Ala., No. 5:11-cv-2736-SLB (N.D. Ala. Aug. 12, 2011) (ECF No. 54) (allowing plaintiffs to proceed under pseudonyms and protecting their identities from the state government defendant because the challenged statute would enable state officials to detain undocumented immigrants on the basis of their immigration status). “[F]ederal courts have recognized that inquiries into immigration status can have an in terrorem effect, limiting the willingness of plaintiffs to pursue their rights out of fears of the consequences of an exposure of their position.” Keller, 2011 WL 41902, at *2.
Here, submitting a declaration in support of the Plaintiffs’ challenge against the administration could attract unwanted attention to the Doe declarants’ immigration status. Moreover, having the declarants’ names “in the public domain, especially in the Internet age,” could subject the declarants to “unnecessary interrogation, criticism, or psychological trauma,” in addition to the significant risk of retaliation they face, as discussed below. Cabrera, 307 F.R.D.
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at 7 (allowing a plaintiff alleging sexual assault to proceed anonymously). Given the risk of such scrutiny and harassment as recognized by numerous courts, disclosing the Doe declarants’ immigration status would lead to harm that is well beyond the “mere[] . . . annoyance and criticism that may attend any litigation.” J.W., 318 F.R.D. at 200 (internal quotation and citation omitted).
II. Disclosure of the Doe Declarants’ Identities Would Create a Significant Risk of Physical and Psychological Harm to Themselves and Their Families.
Disclosure of the Doe declarants’ identities would expose them to a heightened risk of arrest, detention, and removal. Since the rescission announcement on September 5, 2017, DACA recipients have been living in fear that they are no longer shielded from the threat of deportation—a threat of being separated from their families, workplaces, and communities.
Their fear is warranted. First, DACA recipients are particularly vulnerable to retaliation because they have furnished personal identification information to the Government as part of their DACA application process, and the Government has stated that it may modify its information-sharing policy at any moment, without any notice. Mem. in Support of Defs.’ Mot. to Dismiss the Association Plaintiffs at 38-39 (Dkt. 15). Second, the number of immigrationrelated arrests have increased by 40% in the fiscal year 2017.3 Third, the Government has “urge[d] DACA recipients to use the time remaining on their work authorizations to prepare for and arrange their departure from the United States”4; see also Batalla Vidal v. Duke, No. 16-cv-
3 U.S. Immigration & Customs Enforcement, DHS Announces Progress in Enforcing Immigration Laws, Protecting Americans (Dec. 5, 2017), available at https://www.ice.gov/news/releases/dhs-announces-progress-enforcing-immigration-lawsprotecting-americans. 4 Talking Points - DACA Rescission, MSNBC, http://msnbcmedia.msn.com/i/MSNBC/Sections/ NEWS/z-pdf-archive/170905-DACA-Talking-Points.pdf; Kristen Welker & Daniel Arkin, Trump Administration Memo: DACA Recipients Should Prepare for ‘Departure,’ NBC
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4756, 2017 WL 5201116, at *16 (E.D.N.Y. Nov. 9, 2017) (quoting a statement by Acting
Director of ICE Thomas Homan that undocumented immigrants “should be uncomfortable” and
“should look over [their] shoulder[s]” and “be worried”). When asked whether DACA recipients
are subject to deportation, Attorney General Jeff Sessions stated that “[w]e can’t promise people who are here unlawfully that they’re not going to be deported.”5 Fourth, at least one DACA recipient who had spoken out against the Trump Administration has been detained.6
In this context, revealing the Doe declarants’ identities would put their well-being and
safety, as well as that of their families, at risk, because it would entail disclosing their immigration status to the very source of that retaliatory threat.7 See Lozano, 620 F.3d at 195
(allowing plaintiffs to not reveal their identities to the defendant because plaintiffs would be
discouraged from vindicating their rights “if doing so would require alerting federal immigration
authorities to their presence”); Int’l Refugee Assistance Project (IRAP) v. Trump, No. TDC-17-
0361, 2017 WL 818255, at *2 (D. Md. Mar. 1, 2017) (allowing plaintiffs to proceed
anonymously partly because disclosure of plaintiffs’ identities to the Government could dissuade
them from pursuing their rights in court while their relatives’ visa applications were pending);
Puente Az., 2014 U.S. Dist. LEXIS 166223, at *5-*6 (finding that undocumented immigrant
NEWS (Sept. 5, 2007), https://www.nbcnews.com/news/us-news/white-house-memodacarecipients-should-prepare-departure-n799026. 5 Joel Achenbach, Trump Aides Struggle to Clarify Policy on ‘Dreamers’ and Deportation, WASH. POST, Apr. 23, 2017, https://www.washingtonpost.com/news/postpolitics/wp/2017/04/23/trump-aides-struggle-to-clarify-policy-on-dreamers-and-deportation. 6 Christine Hauser, A Young Immigrant Spoke Out About Her Deportation Fears. Then She Was Detained., N.Y. TIMES, Mar. 2, 2017, https://www.nytimes.com/2017/03/02/us/immigrantdacadetained.html. 7 The fact that one of the Plaintiffs in this case is a named DACA recipient and other named DACA recipients have submitted declarations in their own names does not undercut this argument: one person’s bravery in standing up for her rights should not be counted against other DACA recipients’ well-founded fear that public criticism of Defendants may lead to adverse immigration outcomes.
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declarants “reasonably fear serious consequences if their identities are disclosed” because defendants are seeking to prosecute the conduct discussed in the declarations); Keller, 2011 WL 41902, at *2 (allowing plaintiffs to not reveal their identities while challenging a local ordinance that would criminalize renting to undocumented immigrants).
III. This Action is Against the Government, Which Favors Anonymity. The fact that this action is against the Government and not against a private party weighs
in favor of allowing the Doe declarants to proceed via pseudonym. “[A]lthough the mere filing of a lawsuit against a private party may cause the defendant reputational and economic harm, such that fairness requires the identification of the plaintiffs, the government is not vulnerable to similar reputational harm, particularly in a case involving a challenge to the constitutional, statutory, or regulatory validity of government activity.” IRAP, 2017 WL 818255, at *3; see also J.W., 318 F.R.D at 201 (“Courts have concluded that anonymous litigation is more acceptable when the defendant is a governmental body because government defendants do not share the concerns about reputation that private individuals have when they are publicly charged with wrongdoing.” (internal quotation omitted)); S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979) (noting that, unlike anonymous lawsuits against private parties, suits “challenging the constitutional, statutory, or regulatory validity of government activity . . . involve no injury to the Government’s reputation”). Because there is no due process concern when the Government is the defendant, this factor weighs in Plaintiffs’ favor.
IV. Any Risk of Unfairness to Defendants is Minimal and Outweighed by the Doe Declarants’ Need for Anonymity.
Any risk of unfairness to Defendants is minimal and heavily outweighed by the Doe declarants’ need for anonymity. First, the Doe declarants are third parties. The tradition of public
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access and open proceedings is implicated to a much lesser degree when involving third-party declarants, rather than parties to the case. See Puente Az., No. CV14-1356 PHX DGC, No. 2016 WL 7743406, at *4 (D. Ariz. Jan. 22, 2016) (noting in a protective order ruling in favor of nonparty Doe declarants that “the public’s interest in an open and fair adjudication is not seriously impaired” when plaintiffs are openly identified and the proceedings would be public); cf. J.W., 318 F.R.D. at 201 (noting that courts are wary of permitting anonymous litigation when doing so would pose “litigation obstacles for defendants”). Here, the real parties-in-interest—Plaintiffs NAACP, AFT, and UFCW—are fully identified, so that allowing non-party declarants to proceed via pseudonym would not seriously hinder the Government’s defense.
Second, the issues in this case are primarily legal in nature and do not turn on individual DACA recipients’ background or credibility. In Campbell v. U.S. Dep’t of Agric., 515 F. Supp. 1239 (D.D.C. 1981), a dispute over the proper interpretation of the Food Stamp Act, the court found that because the issues in the case were primarily legal in nature, Jane Doe plaintiffs were not required to divulge their identities to the defendants in seeking declaratory and injunctive relief that would affect all social security disability recipients. Id. at 1246; see also Lozano, 620 F.3d at 195 (agreeing with the district court’s conclusion that “because the Doe Plaintiffs’ identity information was not central to their claims, restricting [the defendant’s] access to that information would not be prejudicial”); IRAP, 2017 WL 818255, at *3 (finding that “any prejudice to defendants” in a case with anonymous plaintiffs is “limited because the Doe Plaintiffs are challenging the constitutional and statutory validity of a governmental order, such that the questions presented in this case do not depend on identifying the specific parties but instead are purely legal” (internal quotations and citations omitted)).
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Here, the Doe declarants seek to provide the Court with information that contextualizes how DACA and its rescission have affected the Association Plaintiffs and their members. Defendants make primarily legal arguments about those issues, and have not seriously challenged the fact that DACA’s rescission will negatively impact DACA beneficiaries. To the contrary, Defendants now contend that they rescinded DACA in an “orderly” manner precisely to avoid the harm that would come from a more abrupt termination. See Defs.’ Mem. in Support of Mot. to Dismiss the Association Plaintiffs at 1-2 (Dkt. 15). Because the Plaintiffs’ claims against Defendants do not depend on the particularized facts and circumstances of the Doe declarants, but rather revolve around the question of the legality of Defendants’ decision to rescind DACA, the risk of unfairness from allowing the Doe declarants to proceed via pseudonym is minimal.
Third, the parties’ agreed briefing schedule contemplates no discovery or presentation of testimony at the motions hearing scheduled for January 31, 2018. Accordingly, Defendants have no present need for the identity of the Doe declarants. Any assertion of future prejudice would be wholly speculative. In the unlikely event that Defendants determine later in the litigation that they have an actual need for the declarants’ identities, they could then make a motion attempting to demonstrate such need, at which time Plaintiffs could move for a Protective Order.8
8 See Fed. R. Civ. P. 26(c); see also Order Granting Mot. for Protective Order, Doe 1 v. Trump, No. CV 17-1597 (D.D.C. Sept. 13, 2017) (ECF No. 38) (limiting disclosure of pseudonym plaintiffs’ identities to counsel for defendants and those in the employ of counsel for defendants in a suit challenging the presidential memorandum prohibiting accession of transgender military members); Alexander v. FBI, 186 F.R.D. 54 (D.D.C. 1998) (limiting disclosure of plaintiffs’ medical information to counsel of record and not the defendant agency); Alexander v. Falk, No. 16-cv-2268, 2017 WL 3749573 (D. Nev. Aug. 30, 2017) (ordering disclosure of plaintiffs’ identity to defendants’ counsel only, with a prohibition on disclosing plaintiffs’ identity to counsel’s clients); see also D’Onofrio v. SFX Sports Grp., 256 F.R.D. 277, 280 (D.D.C. 2009) (“[T]here need not be a great deal of harm to justify protecting information when doing so would not prejudice the party who will be prevented from seeing the information.”).
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CONCLUSION

The relevant factors weigh in favor of allowing the Doe declarants to proceed via

pseudonym. The Doe declarants would suffer significant harm if their identities were revealed,

and permitting them to proceed via pseudonym would not unfairly prejudice the Government.

The Association Plaintiffs therefore respectfully request that this Court permit the Doe declarants

to proceed via pseudonym.

December 15, 2017

Respectfully submitted,

/s/ Joseph M. Sellers

Joseph M. Sellers (DC # 318410)

Douglas J. McNamara (DC # 494567)

Julie S. Selesnick (DC #485558)

Julia A. Horwitz (DC # 1018561)

Cohen Milstein Sellers & Toll PLLC

1100 New York Ave. NW ● Fifth Floor

Washington, DC 20005

Telephone: 202/408-4600

Fax:

202/408-4699

Email: jsellers@cohenmilstein.com

dmcnamara@cohenmilstein.com

jhorwitz@cohenmilstein.com

jselesnick@cohenmilstein.com

__/s/ Bradford Berry________________ Bradford Berry Janette Louard NAACP National Headquarters 4805 Mount Hope Drive Baltimore, MD 21215 Telephone: 410-580-5787 Email: bberry@naacpnet.org
jlouard@naacpnet.org

Attorneys for Plaintiff, NAACP

David J. Strom (DC # 376233) Channing Cooper Jessica Rutter American Federation of Teachers

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555 New Jersey Ave. NW Washington, DC 20001 Telephone: 202-879-4400 Email: dstrom@aft.org ccooper@aft.org jrutter@aft.org Attorneys for Plaintiff, AFT Nicholas W. Clark, General Counsel Renee L. Bowser, Assistant General Counsel United Food & Commercial Workers International Union, AFL-CIO, CLC 1775 K Street, NW Washington, DC 20006 Telephone: (202) 466-1522 Email: nclark@ufcw.org rbowser@ufcw.org Attorneys for Plaintiff, UF
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CERTIFICATE OF SERVICE
I hereby certify that on December 15, 2017, I electronically filed the Plaintiffs’ Motion For Nine Declarants To Proceed By Pseudonym And Memorandum Of Law In Support Thereof with the Clerk of the Court using the ECF filing system.

Dated December 15, 2015

/s/ Julia Ann Horwitz Julia Ann Horwitz

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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

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

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

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

I.

THE IMPLEMENTATION AND RESCISSION OF DACA

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

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

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

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

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

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

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

these low priority cases.” AR 1.

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

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

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

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

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

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

1 Some courts, including the Supreme Court, have referred to aliens who are unlawfully present in the United States as “illegal” instead of “undocumented.” See, e.g., Texas v. United States, 809 F.3d 134, 148 n.14 (5th Cir. 2015) (explaining that this “is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law” (citation omitted)); but see Mohawk Indust., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (using the term “undocumented immigrants”). Because both terms appear in the record materials here, and because, as at least one court has noted, “there is a certain segment of the population that finds the phrase ‘illegal alien’ offensive,” Texas v. United States, 86 F. Supp. 3d 591, 605 n.2 (S.D. Tex. 2015), the Court will use the term “undocumented.”
2 Citations to “AR” refer to the administrative record. See Joint Appendix [ECF No. 60].
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removal from the United States. AR 2–3; see 8 C.F.R. § 274a.12(c)(14) (defining deferred action as “an act of administrative convenience to the government which gives some [removal] cases lower priority”). As the DACA Memo was careful to point out, however, the program “confer[red] no substantive right, immigration status or pathway to citizenship,” as “[o]nly the Congress, acting through its legislative authority, can confer these rights.” AR 3.
Individuals who received deferred action under DACA were also eligible for a host of other benefits under preexisting statutes and DHS regulations. These benefits included work authorization, 8 C.F.R. § 274a.12(a)(11), social security numbers, id. § 1.3(a)(4)(vi), advance parole (i.e., preauthorization to travel to the United States without a visa), id. § 212.5, and a limited class of public assistance, such as state and federal aid for medical emergencies, 8 U.S.C. §§ 1611(b)(1), 1621(b)(1). Benefits like these allowed DACA recipients to work, travel abroad, access credit, and otherwise lead productive lives during their periods of deferred action.
To be considered for deferred action under DACA, an applicant had to provide DHS with certain identifying information, including her name, mailing address, and contact information. See Decl. of Maria De La Cruz Perales Sanchez (“Perales Decl.”) [ECF No. 28-8] ¶ 11; see also Form I-821D, U.S. Citizenship and Immigration Servs., Consideration for Deferred Action for Childhood Arrivals, https://www.uscis.gov/i-821d. Although many applicants feared that this information would later be used to initiate removal proceedings against them, see Perales Decl. ¶¶ 10, 24, the Department assured applicants that their information would in most cases be “protected from disclosure to [U.S. Immigration and Customs Enforcement (“ICE”)] and U.S. Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings.” See U.S. Citizenship and Immigration Servs., Instructions for Consideration of Deferred Action for
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Childhood Arrivals, https://www.uscis.gov/i-821d. Relying on these representations, hundreds of thousands of undocumented aliens applied for and received deferred action under the DACA program. See, e.g., Perales Decl. ¶ 10; Decl. of John Doe #1 ¶ 6; Decl. of John Doe #2 ¶ 5. By late 2017, nearly 800,000 individuals had been granted deferred action under DACA. AR 242.
B. Deferred Action for Parents of Americans Two years after DACA’s implementation, DHS issued a second memorandum, this time purporting to establish a deferred-action program called Deferred Action for Parents of Americans (“DAPA”). AR 37–41. As its name suggests, DAPA would have offered deferred action to parents of U.S. citizens or lawful permanent residents who were themselves unlawfully present in the United States.3 AR 40–41. The DAPA memorandum also purported to expand the DACA program in certain respects: it would have removed the thirty-year age cap, made the deferredaction grants last for three years instead of two, and required that an alien need only have been present in the United States since January 1, 2010 to be eligible. AR 39–40. Before DAPA took effect, a coalition of states, led by Texas, sued to block its implementation on grounds that it violated both the APA and the Take Care Clause of the Constitution. See Texas, 86 F. Supp. 3d at 604 & n.1, 607 (citing U.S. Const. art. II, § 3). The district court granted the states’ motion for a preliminary injunction, concluding that they were likely to succeed on their procedural APA claim that DAPA (including its expansion of DACA) should have been promulgated using notice and comment. Id. at 671–72; see 5 U.S.C. § 553. In
3 DAPA would have applied to any alien who: (1) had a son or daughter who was a U.S. citizen or lawful permanent resident; (2) had continuously resided in the United States since before January 1, 2010; (3) was physically present in the United States both on November 20, 2014 and the date of her application; (4) had no lawful basis to be present in the United States on November 20, 2014; (5) did not meet certain enforcement priorities; and (6) did not otherwise raise concerns that would make deferred action inappropriate in the agency’s discretion. See AR 40.
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part, this was because the Department’s implementation of DACA suggested that DAPA would not “genuinely leave[] the agency and its employees free to exercise discretion.” Texas, 86 F. Supp. 3d at 604 at 670 (emphasis, alterations, and internal quotation marks omitted). The district court found that only about 5% of all DACA applications had been denied, and the government could not say how many of those had been denied for discretionary reasons. Id. at 609. This led the court to conclude that the DAPA Memo’s suggestion that immigration officers could exercise case-by-case discretion was “merely pretext.” Id. at 669 n. 101; see Texas, 809 F.3d at 173 (agreeing that although “[t]he DACA and DAPA Memos purport to grant discretion, . . . there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual”).
The Fifth Circuit affirmed, holding that the states had demonstrated a likelihood of success on the merits not only of their procedural APA claim, but also on their substantive APA claim, because DAPA seemed to conflict with the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.”4 Texas, 809 F.3d at 179. But the court expressly declined to address the states’ constitutional challenges. See id. at 146 n.3 (finding it “unnecessary” to address those claims “at this early stage of the proceedings”). It also rejected the government’s threshold arguments—similar to the ones offered here—that the states lacked standing, see id. at 150–63, that the INA deprived the court of subject-matter jurisdiction, see id. at 164–65, and that DAPA’s implementation was unreviewable under the APA, see id. at 165–72.5 The government petitioned for certiorari, and in June 2016, an eight-Justice
4 According to the Fifth Circuit, under the INA, the parent must generally “(i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate.” Texas, 809 F.3d at 179–80.
5 All parties agreed that DAPA was “committed to agency discretion by law,” 5 U.S.C. §701(a)(2), to the extent that it “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a
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Supreme Court affirmed the Fifth Circuit’s judgment by an equally divided vote. See United States v. Texas, 136 S. Ct. 2271 (2016) (mem).
On January 20, 2017, President Donald J. Trump was sworn into office, and his nominee for Secretary of Homeland Security, John F. Kelly, was confirmed that same day. Six months later, Secretary Kelly issued a memorandum rescinding DAPA, including its expansion of DACA, but leaving the original DACA program in place. AR 235–236. The Texas plaintiffs voluntarily dismissed their challenge to DAPA a few months later. See Pls.’ Stipulation of Voluntary Dismissal, Texas v. United States, No. 14-CV-254 (S.D. Tex. Sep. 12, 2017), ECF No. 473.
C. The Rescission of DACA On September 5, 2017, three months after DAPA’s rescission, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA (the “Rescission Memo”).6 See AR 252–56. The Rescission Memo began by canvassing the procedural history of the Texas litigation, and then noted that “[a]lthough the original DACA policy was not challenged in [that] lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum.” AR 253. Specifically, the memorandum noted that “[t]he Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary,” and that “[b]oth the district court and the Fifth Circuit concluded that implementation of the program did not comply with the [APA] because the Department did not implement it through notice-and-comment rulemaking.” AR 253–54.
class of what he deems to be low-priority illegal aliens,” Texas, 809 F.3d at 166 (“[Plaintiffs] have not challenged the priority levels [the Secretary] has established, and neither the [district court’s] preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities”). But the Fifth Circuit nonetheless found DAPA to be reviewable because it was “much more than nonenforcement: [i]t would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Id.
6 Secretary Kelly had since been appointed to serve as President Trump’s chief of staff.
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The memorandum also stated that in June 2017, after DAPA had been rescinded but before the Texas litigation was voluntarily dismissed, Texas and the other state plaintiffs in that case had sent a letter to Attorney General Jeff Sessions threatening to challenge DACA in court unless he rescinded the program by September 5, 2017. AR 254; see AR 238–240 (Texas’s demand letter). Attorney General Sessions then sent a one-page letter to Acting Secretary Duke (the “Sessions Letter”) instructing her to rescind DACA. AR 251. The Sessions Letter explained that the program had been “effectuated by the previous administration through executive action, without proper statutory authority and . . . after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result,” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id. The letter also noted that because DACA suffered from “the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Id. The letter instructed Acting Secretary Duke to “consider” implementing “an orderly and efficient wind-down process” for the program. Id.
In light of the Texas litigation and the Sessions Letter, the Rescission Memo concluded, “it is clear that the . . . DACA program should be terminated.” AR 255. Given “the complexities associated with winding down the program,” however, the Department decided to “provide a limited window in which it will adjudicate certain requests for DACA and associated applications.” Id. Thus, the Department would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018. It would also honor (in most cases) existing grants of
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deferred action, work authorization, and advance parole. But it would reject all other DACA applications, including any initial applications filed after September 5, 2017, and all pending and future applications for advance parole under the DACA program. Effectively, then, DACA benefits were made unavailable to any alien who had not already applied, and existing DACA grants would be allowed to expire permanently beginning in March 2018. Finally, like the earlier DACA and DAPA memorandums, the Rescission Memo stated that it “is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” AR 256. II. LEGAL CHALLENGES TO DACA’S RESCISSION
Since September 2017, legal challenges to DACA’s rescission have been filed in federal district courts throughout the country. Two of these challenges have made their way to the federal courts of appeals, and one has been to the Supreme Court. Because these challenges generally involve similar administrative and constitutional claims, the Court will not address the plaintiffs’ assertions in each case in detail. Nevertheless, a brief overview of this pending litigation landscape will be useful to understand the state of DACA’s rescission today.7
A. Regents of the University of California v. DHS The first set of challenges to DACA’s rescission was filed in September 2017 in federal district court in California. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1026 (N.D. Cal. 2018). The plaintiffs in those cases are the University of California, the State of California and several other states, a group of individual DACA recipients,
7 One case, Park v. Sessions, No. 17-cv-1332 (E.D. Va. filed Nov. 21, 2017), was dismissed pursuant to a stipulation by all parties on March 1, 2018, before any relief was granted. The Court will not discuss that case further.
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two California municipalities, and a labor union. See id. Though not formally consolidated, the cases were all assigned to U.S. District Judge William H. Alsup. See Case Management Scheduling Order, Regents, No. 17-5211 (N.D. Cal. Sept 22, 2017), ECF No. 49.
Shortly after the actions were filed, the government filed an administrative record consisting of “fourteen documents comprising 256 pages of which 187 consisted of published opinions from the DAPA litigation.” Regents, 279 F. Supp. 3d at 1028. “All non-public materials, some eighty-four documents, actually reviewed by the Acting Secretary remained withheld as privileged.” Id. (citation omitted). The district court ordered the government to complete the record, denying many of the government’s claims of privilege. Id. at 1028–29. The government petitioned the Ninth Circuit for a writ of mandamus, but the court of appeals denied the petition. See In re United States, 875 F.3d 1200 (9th Cir. 2017). The government then sought the same relief from the Supreme Court, which construed the government’s mandamus petition as a petition for a writ of certiorari, granted it, vacated the Ninth Circuit’s order, and directed the district court to “first resolve[] the Government’s threshold arguments,” since those arguments, “if accepted, likely would eliminate the need for the District Court to examine a complete administrative record.” In re United States, 138 S. Ct. 443, 444–45 (2017) (per curiam).
While the litigation over the administrative record was pending, the plaintiffs filed a motion for preliminary injunctive relief, and the government moved to dismiss the plaintiffs’ complaints both for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). See Regents, 279 F. Supp. 3d at 1029. Then, following the Supreme Court’s instruction to first address the government’s threshold arguments, the district court denied the government’s Rule 12(b)(1) motion and granted the plaintiffs’ motion for a preliminary
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injunction. Id. at 1036–37. The injunction directed DHS to resume accepting applications for the renewal of DACA benefits, although it did not require the agency to accept new DACA applications or to afford current DACA beneficiaries advance parole. See id. at 1048–49.
In a separate order entered a few days later, the district court denied the government’s Rule 12(b)(6) motion except as to the plaintiffs’ notice-and-comment and Regulatory Flexibility Act claims. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No 17-CV-05211, 2018 WL 401177, at *2 (N.D. Cal. Jan. 12, 2018). The government appealed both orders, and the Ninth Circuit set an expedited briefing schedule. See Order, Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 18-15068 (9th Cir. Jan. 17, 2018), ECF No. 2. The government also petitioned the Supreme Court for a writ of certiorari before judgment, but the Supreme Court denied the petition. See Order, Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 171003 (U.S. Feb. 26, 2018). The government’s appeal is currently pending before the Ninth Circuit.
B. Batalla Vidal v. Duke The second challenge also came about in September 2017 when Martin Batalla Vidal, an individual DACA beneficiary who was already engaged in litigation with the Department over the revocation of his employment authorization, amended his complaint to assert a challenge to DACA’s rescission. See Batalla Vidal v. Duke, No. 16-CV-4756, 2017 WL 5201116, at *4 (E.D.N.Y. Nov. 9, 2017). His challenge was later consolidated with two others before Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York. Id. The plaintiffs in the three cases include Mr. Batalla Vidal, the State of New York, fourteen other states and the District of Columbia, and Make the Road New York, a nonprofit. See id. at *4 & n.5. Shortly after the consolidation of the three actions, another dispute arose regarding the scope of the administrative record. The district court ordered the government to produce certain
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documents, see id. at *6–7, and, on the government’s petition for mandamus, the Second Circuit stayed discovery pending the district court’s resolution of “issues of jurisdiction and justiciability.” Id. at *8. The government then filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6). Id.
The district court denied the government’s Rule 12(b)(1) motion (except as to some plaintiffs that the court found lacked standing), see id. at *20, but it later certified its decision for an interlocutory appeal, see Batalla Vidal v. Nielsen, 16-CV-4756, 2018 WL 333515, at *1 (E.D.N.Y. Jan. 8, 2018). The Second Circuit then held the government’s petition for leave to file an interlocutory appeal in abeyance pending the district court’s resolution of the government’s Rule 12(b)(6) motion and the plaintiffs’ motion for a preliminary injunction, which the plaintiffs had filed while issues related to the interlocutory appeal were being litigated. See Certified Order, Nielsen v. Vidal, No. 18-122 (2d Cir. Jan. 31, 2018), ECF No. 46.
A few weeks later, the district court granted the plaintiffs’ motion for a preliminary injunction. See Batalla Vidal v. Nielsen, 279 F. Supp. 401, 437–38 (E.D.N.Y. 2018). The scope of the court’s injunction was the same as in Regents: it required the Department to resume consideration of renewal applications but did not require the consideration of initial applications or applications for advance parole. Id. at 437–38. The government took an interlocutory appeal, and the next day, the Second Circuit denied the mandamus petition that it had previously held in abeyance and vacated its earlier discovery stay. See Certified Order, In re Nielson, No. 17-3345 (2d Cir. Feb. 21, 2018), ECF No. 181. The Second Circuit thereafter granted the government’s motion to expedite the appeal, which is pending at this time. See Certified Order, Vidal v. Nielsen, No. 18-485 (2d Cir. Mar. 8, 2018), ECF No. 62.
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While the expedited appeal was pending, the district court granted in part and denied in part the government’s pending 12(b)(6) motion.8 See Batalla Vidal v. Nielsen, No. 16-cv-4756, 2018 WL 1532370, at *1 (E.D.N.Y. Mar. 29, 2018). The court denied the motion as to plaintiffs’ substantive APA claims for substantially the same reasons that it had previously found a substantial likelihood of success on the merits of those claims, id. at *3, but granted the motion as to their procedural APA and Regulatory Flexibility Act (“RFA”) claims. Id. at *5–6. The court also denied the motion as to the plaintiffs’ equal protection claims, id. at *6–10, although it granted the motion as to their information-sharing claim, concluding that the plaintiffs had “not plausibly alleged that DHS actually changed its information-sharing policy,” id. at *11. Finally, the court granted the motion as to plaintiffs’ procedural due process claim, except as to certain plaintiffs who alleged that their renewal applications had been improperly rejected as untimely or were erroneously deemed to contain minor clerical errors. Id. at *14.
C. Casa de Maryland v. DHS The plaintiffs in the third case, CASA de Maryland v. U.S. Dep’t of Homeland Security, 284 F. Supp. 3d 758 (D. Md. 2018), are individual DACA recipients and several nonprofit organizations. In March 2018, the district court (Judge Roger W. Titus) ruled that although DACA’s rescission was reviewable, it did not violate the APA or the Equal Protection or Due Process Clauses. See id. at 770, 773–77, 779. The district court summarized its decision to depart from the Regents and Batalla Vidal courts on the substantive APA claim as follows:
The decisions to date by courts in California and New York are premised on the legal conclusion that DACA is lawful, and therefore, a decision to rescind DACA on the basis of unlawfulness is necessarily arbitrary and capricious.
8 That motion also sought dismissal under Rule 12(b)(1) (on standing and mootness grounds) of the Batalla Vidal plaintiffs’ procedural due process claim, which had been presented for the first time in their third amended complaint. Batalla Vidal, 2018 WL 1532370, at *12–13. The court denied the motion to dismiss on that ground.
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Respectfully, this Court disagrees. Regardless of the lawfulness of DACA, the appropriate inquiry is whether or not DHS made a reasoned decision to rescind DACA based on the Administrative Record . . . . Given the fate of DAPA, the legal advice provided by the Attorney General, and the threat of imminent litigation, it was reasonable for DHS to have concluded—right or wrong—that DACA was unlawful and should be wound down in an orderly manner. Therefore, its decision to rescind DACA cannot be arbitrary and capricious. Id. at 767–768 (citation omitted). However, the district court did grant one form of relief not granted by the courts in Regents or Batalla Vidal: it enjoined DHS from “using information provided by Dreamers through the DACA program for enforcement purposes,” explaining that so doing would violate applicable principles of equitable estoppel. Id. at 779. As of the date of this decision, neither party has appealed the district court’s order, although the time in which to do so has not yet expired. See Fed. R. App. P. 4 (a)(1)(B). III. THE PRESENT CHALLENGES TO DACA’S RESCISSION The cases currently before this Court, NAACP v. Trump and Princeton v. United States, were filed in September and November 2017, respectively, and have been consolidated for purposes of the dispositive motions pending in each. The plaintiffs in the Princeton action are Princeton University, Microsoft Corporation, and Maria de la Cruz Perales Sanchez, a DACA beneficiary and Princeton undergraduate. See Compl. (“Princeton Compl.”) [ECF No. 1] at 12. The plaintiffs in the NAACP action are the National Association for the Advancement of Colored People (“NAACP”), the American Federation of Teachers (“AFT”), and the United Food and Commercial Workers International Union (“UFCW”). See First Amended Complaint at 3–5, NAACP, No. 17-cv-1907 (D.D.C. Oct. 24, 2017), ECF No. 10 (“NAACP FAC”). Both sets of plaintiffs challenge DACA’s rescission on various administrative and constitutional grounds, including that it was arbitrary and capricious, see Pls.’ Mem. in Supp. of Pls.’ Mot. for Summ. J.
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(“Princeton MSJ”) at 11–38; that it should have undergone notice-and-comment procedures, see id. at 38–41; that its effects on “small entities” should have been analyzed pursuant to the RFA, 5 U.S.C. §§ 601–12, see NAACP FAC 16–17; and that it violates the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments, see Princeton Compl. at 35–40.
The government has filed motions to dismiss in both actions. It argues: (1) that plaintiffs’ APA claims should be dismissed because DACA’s rescission was “committed to agency discretion by law” and is therefore unreviewable under 5 U.S.C. § 701(a)(2), see Mem. of Law in Supp. of Defs.’ Mot. to Dismiss (“Princeton MTD”) [ECF No. 8] at 14–21; (2) that a provision of the INA, 8 U.S.C. § 1252(g), deprives the Court of subject-matter jurisdiction, see id. at 21–24; (3) that all plaintiffs but Ms. Perales Sanchez lack Article III and prudential standing, see id. at 24–25; Mem. in Supp. of Defs.’ Mot. to Dismiss, No. 17-cv-1907 (D.D.C. Nov. 8, 2018) (“NAACP MTD”) at 14–18; and (4) that plaintiffs have failed to state a claim under the APA, the RFA, and the Constitution, Princeton MTD at 27–44.
Plaintiffs have moved for summary judgment only on their APA claims, or alternatively, for preliminary injunctive relief “[t]o the extent the Court wishes to see [the discovery] issues [in Regents and Batalla Vidal] litigated before granting final judgment to the Plaintiffs.” Princeton MSJ at 3 & n.1. Unlike the plaintiffs in Regents and Batalla Vidal, however, plaintiffs here have not challenged the completeness of the administrative record, see 5 U.S.C. § 706 (providing that, in reviewing agency action, “the court shall review the whole record or those parts of it cited by a party” (emphasis added)), and the government urges the Court to decide the pending motions on the current record, see Princeton MTD at 3 (“[T]he Court should either uphold the Rescission Policy and grant this motion if it agrees that the record supports Defendants’ position, or set aside
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the Rescission Policy if it disagrees.”). Finally, plaintiffs have also moved for a preliminary

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

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

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

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

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

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

for decision.

DISCUSSION

I.

SUBJECT-MATTER JURISDICTION

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

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

that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to commence proceedings, adjudicate cases,

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

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

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

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

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

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

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

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The government’s position contradicts not only the plain language of § 1252(g) but also the Supreme Court’s interpretation of that language in Reno v. American–Arab AntiDiscrimination Committee (“AAADC”), where the Court specifically rejected the argument that “the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.” 525 U.S. 471, 482 (1999). Rather, the Court explained, § 1252(g) applies “only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. (listing “part[s] of the deportation process” that fall outside of § 1252(g)’s scope, including “decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order”). Because the rescission of DACA is neither the commencement of a proceeding, the adjudication of a case, nor the execution of a removal order, § 1252(g) is inapplicable here pursuant to the provision’s plain language.
The government’s only response is that DACA’s rescission is a “step toward” the removal of specific aliens. See Defs.’ Reply at 10; but see id. at 2 (stressing elsewhere that rescission “does not, in itself, exert the agency’s coercive power over any individual”). True, the Supreme Court said in AAADC that § 1252(g) was “specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.” 525 U.S. at 487. But there is no allegation here that removal proceedings have yet been initiated against any DACA beneficiary, so there are no pending removal proceedings with which plaintiffs’ challenge might interfere. Cf. id. (concluding that § 1252(g) stripped jurisdiction over selective deportation claims brought by six aliens who were then in removal proceedings). Thus, the government’s reliance on AAADC is misplaced,
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and § 1252(g) does not bar review here. Accord Regents, 279 F. Supp. 3d at 1031–1033 (rejecting the government’s § 1252(g) argument); Batalla Vidal, 2017 WL 5201116, at *12–13 (same).
B. Article III Standing The government also asks the Court to dismiss the claims brought by Princeton and Microsoft, Princeton MTD at 24–25, and by all plaintiffs in the NAACP action, see NAACP MTD at 14–17, for lack of Article III standing. In so moving, the government urges the Court to conduct a “claim-by-claim analysis” of each plaintiff’s standing as to each claim. Defs.’ Reply 11. Such a detailed analysis is unnecessary, however, at least in Princeton. The government does not dispute that the individual plaintiff, Ms. Perales Sanchez, has Article III standing to assert each claim in the complaint.9 See Princeton MTD 24–25 (seeking dismissal only as to the “[n]on[i]ndividual [p]laintiffs”); Princeton Compl. 30–38 (listing Ms. Perales Sanchez as a plaintiff on each count). And as the Supreme Court has recently reaffirmed, Article III requires only that “[a]t least one plaintiff . . . have standing to seek each form of relief requested in the complaint.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). In Princeton, that “one plaintiff” is Ms. Perales Sanchez, and no further analysis of any other plaintiff’s standing is necessary.
9 Nor could they. Ms. Perales Sanchez clearly satisfies the “irreducible constitutional minimum” of standing as to DACA’s rescission: her inability to renew her DACA benefits is (1) an “injury in fact,” which is “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical”; it is (2) “fairly traceable” to DHS’s decision to rescind DACA; and it is (3) “likely to be redressed” by a decision of this Court invalidating DACA’s rescission. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016) (internal quotation marks omitted). And although the Court ultimately concludes that plaintiffs fail to state a claim as to DHS’s alleged plans to share DACA beneficiaries’ information with immigration enforcement agencies, the Court concludes—and the government does not dispute—that Ms. Perales Sanchez has standing to assert that claim as well. See Princeton Compl. ¶ 108 (alleging that DHS has “revised [its] assurances about information sharing” and now “offer[s] only to prevent personal information from being provided ‘proactively’ to agencies responsible for facilitating removal”); cf. Clapper v. Amnesty Int’l, 568 U.S. 398, 411 (2013) (finding that the plaintiffs’ asserted injury was too speculative when it relied on a hypothetical sequence of government actions that culminated in their communications being monitored).
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In NAACP, however, there is no individual plaintiff. The organizational plaintiffs—the NAACP and two labor unions—therefore must rely on their own standing to survive the government’s motion to dismiss. These plaintiffs assert that they have “associational standing,” which requires each of them to plead that “(1) at least one of its members would have standing to sue in his or her own right; (2) the interests it seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of an individual member of the organization in the suit.” AARP v. EEOC, 226 F. Supp. 3d 7, 16 (D.D.C. 2016) (citation omitted). As in Princeton, if one of the three NAACP plaintiffs has standing, then an analysis of the remaining plaintiffs’ standing is unnecessary.
The parties do not dispute that the NAACP plaintiffs meet the third prong of the test for representational standing—they do. See NAACP MTD at 16–17 (not arguing that the participation of individual members should be required). And although the government contends that the NAACP plaintiffs fail the first prong because their complaint does not “name a specific member with standing,” see id. at 16, each plaintiff provided an anonymous affidavit from at least one of its members stating that the member was a DACA beneficiary, see, e.g., Princeton MSJ, Ex. W [ECF No. 28-17] (declaration of NAACP member), and the government does not seriously dispute—nor could it—that these affidavits are sufficient.10 Thus, the only remaining issue is whether the rescission of DACA is germane to the organizational plaintiffs’ purposes.
10 The government initially argued that the organizational plaintiffs had to name these members. See NAACP MTD at 16. The authority for that proposition is tenuous, however, see Young Am.’s Found. v. Gates, 560 F. Supp. 2d 39, 49 (D.D.C. 2008) (“[I]t is not clear that [associational standing] actually requires a name-specific identification.”), aff’d, 573 F.3d 797 (D.C. Cir. 2009); Doe v. Stincer, 175 F.3d 879, 884 (11th Cir. 1999) (“[W]e have never held that a party suing as a representative must specifically name the individual on whose behalf the suit is brought . . . .”), and the government did not renew the argument in its reply brief, see Defs.’ Reply at 12–13.
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The germaneness requirement is “undemanding” and requires “mere pertinence between litigation subject and organizational purpose.” Humane Soc. of the U.S. v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). Here, the NAACP has alleged that its purpose is to “ensure the political, educational, social, and economic equality of all persons,” particularly “people of color.” NAACP Compl. at 3–4. This mission is “pertinent” to the subject of the litigation here, because plaintiffs have alleged that “[n]early all of the DACA registrants—more than 95%—are people of color,” id. at 12, and that DACA confers various educational, social, and economic benefits on those individuals, see id. at 2. At this stage of the litigation, these allegations are sufficient to establish the NAACP’s standing—which, in turn, is sufficient to establish the standing of the other two plaintiffs in the NAACP action. See Hodel, 840 F.2d at 59 (concluding that an association’s “members’ aesthetic interest in viewing live animals and birds” was sufficiently germane to a lawsuit whose purpose was “keeping animals and birds alive and well”). Thus, at least one plaintiff has standing to assert every claim in both of the actions currently before the Court, and the government’s motions to dismiss for lack of standing will be denied. II. ADMINISTRATIVE CHALLENGES
As noted above, plaintiffs assert various administrative challenges to DACA’s rescission, including that it was arbitrary and capricious, that it required notice and comment, and that it ran afoul of RFA’s requirement that an agency consider the effects of its actions on small entities. The government raises two threshold arguments that apply only to plaintiffs’ administrative claims: first, that DACA’s rescission was unreviewable under the APA’s carve-out for actions “committed
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to agency discretion by law,” 5 U.S.C. § 701(a)(2);11 and second, that plaintiffs fall outside the “zone of interests” protected by the APA and RFA. The Court will first address the government’s threshold arguments and then proceed to the merits of plaintiffs’ claims.
A. Reviewability The APA “applies, according to the provisions thereof, except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). The Supreme Court has explained the difference between § 701(a)(1) and (a)(2) as follows: The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (‘law’) can be taken to have ‘committed’ the decisionmaking to the agency’s judgment absolutely. Heckler v. Chaney, 470 U.S. 821, 828 (1985) (emphasis added). Thus, in determining whether a particular agency action is “committed to agency discretion by law,” courts ask whether “statutes are drawn in such broad terms that in a given case there is no law to apply.” Id. (citations and internal quotation marks omitted); see also Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002) (“[T]he ‘no law to apply’ formula has come to refer to the search for substantive legal criteria against which an agency’s conduct can be seriously evaluated.”). One category of agency action that the Court has held to be “presumptively unreviewable” under § 701(a)(2) is an agency’s decision “not to institute enforcement proceedings.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (citing Chaney, 470 U.S. at 831). The Supreme Court first
11 “[A] complaint seeking review of agency action ‘committed to agency discretion by law’ has failed to state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (citations omitted).
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identified this presumption in Chaney, a case in which a group of death-sentenced prisoners petitioned the Food and Drug Administration (“FDA”) to prevent the use in lethal injections of certain drugs that the agency had not approved for that purpose. See 470 U.S. at 823. The FDA refused, explaining not only that was it “unclear” that it had “jurisdiction over the unapproved use of approved drugs for human execution,” but also that given the absence of any “danger to the public health or a blatant scheme to defraud,” even if the agency did have jurisdiction, it would “decline to exercise [that jurisdiction] under [its] inherent discretion to decline to pursue certain enforcement matters.” Id. at 824–25. The plaintiffs filed suit, seeking an order directing the FDA to take enforcement action. The district court granted summary judgment for the agency, holding that its decision not to act was unreviewable under § 701(a)(2), but the court of appeals reversed with instructions to order the agency to “fulfill its statutory function.” Id. at 825–27.
The Supreme Court granted certiorari and reversed. “[A]gency decisions to refuse enforcement,” the Court explained, are “general[ly] unsuit[able] for judicial review” for several reasons. Id. at 831. Such decisions call for “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” including “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, [and] whether the particular enforcement action requested best fits the agency’s overall policies.” Id. Moreover, nonenforcement decisions generally do not involve the exercise of “coercive power over an individual’s liberty or property rights”; they provide no “focus for judicial review”; and they “share[] to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch.” Id. at 832. For these reasons, such decisions have “traditionally been ‘committed to
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agency discretion,’ and we believe that the Congress enacting the APA did not intend to alter that tradition.” Id. Thus, the Court concluded, “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” Id. The Court was careful to note, however, that this presumption of unreviewability “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 833. Critically for purposes of this case, moreover, the Court reserved judgment on whether the presumption applies where an agency “refuse[s] . . . to institute proceedings based solely on the belief that it lacks jurisdiction.” Id. at 833 n.4 (internal quotation marks omitted).
Although the Supreme Court has not yet answered the question reserved in Chaney, the D.C. Circuit has addressed it. In Crowley Caribbean Transport, Inc. v. Pena, for example, the issue was whether Chaney’s presumption of unreviewability applied to the Maritime Administration’s refusal to take an enforcement action under a provision of the Merchant Marine Act of 1936 (the “1936 Act”) that the agency thought was inapplicable as a matter of law. See 37 F.3d at 672–73. The D.C. Circuit began by noting that Chaney had reserved judgment on almost exactly this issue and then observed that two intervening circuit decisions seemed to have answered the question in contradictory ways. See id. at 675–76 (citing Safe Energy Coal. of Mich. v. U.S. Nuclear Regulatory Comm’n, 866 F.2d 1473, 1477 (D.C. Cir. 1989) (presumption of unreviewability applied to the agency’s refusal, based on its interpretation of its own regulations, to take enforcement action against a nuclear reactor); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 783 F.2d 237, 244–45 (D.C. Cir. 1986) (presumption of unreviewability did not apply to the Department of Labor’s refusal, based on its interpretation of the labor laws, to take enforcement action in response to a union complaint)).
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After noting that “[a]s a circuit, we seem to have no explicit rule on how to proceed when we have inconsistent precedents,” id. at 675, the court relied on language from an intervening Supreme Court decision, ICC v. Brotherhood of Locomotive Engineers (“BLE”), 482 U.S. 270 (1987), to resolve the intra-circuit split. BLE held that an agency’s refusal to reconsider a decision on the basis of “material error”—that is, because it was erroneous when made, not because of changed circumstances or newly discovered evidence—is “committed to agency discretion by law” under § 701(a)(2), even if it is based on the agency’s interpretation of a statute. Id. at 278– 84. In reaching this conclusion, the Supreme Court rejected what it took to be the concurrence’s suggestion that “if [an] agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.”12 Id. at 283. To refute this proposition, the Court explained,
it is enough to observe that a common reason for failure to prosecute an alleged criminal violation is the prosecutor’s belief (sometimes publicly stated) that the law will not sustain a conviction. That is surely an eminently “reviewable” proposition, in the sense that courts are well qualified to consider the point; yet it is entirely clear that the refusal to prosecute cannot be the subject of judicial review. Id. Citing this passage, the Crowley court concluded that BLE, “though not in the Chaney context, squarely rejects the notion of carving reviewable legal rulings out from the middle of nonreviewable actions.” Crowley, 37 F.3d at 676. Thus, the court held, there was “no basis for review of the Maritime Administrator’s single-shot non-enforcement decision.” Id. The D.C. Circuit in Crowley was careful to preserve another line of circuit precedent, however, which holds that Chaney’s presumption of unreviewability does not apply to “an
12 The concurrence disputed this characterization of its argument. See id. at 290 n.2 (Stevens, J., concurring in the judgment). Its point was that because an agency’s action can be sustained only on the grounds invoked by the agency, “when an agency explains that it has denied a petition for reopening based on . . . its reading of a statute or a constitutional provision, its decision cannot be sustained on the conjecture that it has the discretion to deny reopening on a variety of grounds.” BLE, 482 U.S. at 290–291 (Stevens, J., concurring in the judgment).
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agency’s announcement of its interpretation of a statute, even when that interpretation is advanced
in the context of a decision not to take enforcement action.” Edison Elec. Inst. v. EPA, 996 F.2d
326, 333 (D.C. Cir. 1993) (citations and internal quotation marks omitted).13 The key difference,
the Crowley court explained, was that while the case before it involved an agency’s refusal to act
on a single complaint, those prior cases involved “an agency’s statement of a general enforcement
policy” that was either “expressed . . . as a formal regulation after the full rulemaking
process . . . or . . . otherwise articulated . . . in some form of universal policy statement.” Crowley,
37 F.3d at 676. The court then pointed out the “ample reasons for distinguishing the two”:
[First,] general statements [of enforcement policy] . . . are more likely to be direct interpretations of the commands of the substantive statute rather than the sort of mingled assessments of fact, policy, and law that drive an individual enforcement decision and that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion. Second, an agency’s pronouncement of a broad policy against enforcement poses special risks that it ‘has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities,’ a situation in which the normal presumption of nonreviewability may be inappropriate. Finally, an agency will generally present a clearer (and more easily reviewable) statement of its reasons for acting when formally articulating a broadly applicable enforcement policy . . . .
Id. at 677 (quoting Chaney, 470 U.S. at 833 n.4). Thus, the court concluded in Crowley, an
individual nonenforcement decision is presumptively unreviewable even if it is based solely on
legal grounds, even though “an agency’s statement of a general enforcement policy may be
reviewable for legal sufficiency.” Id. at 676–677.
13 See id. (holding that the presumption of unreviewability did not apply to the agency’s determination that a statutory requirement applied to the plaintiffs, even though that determination was made in a policy statement that communicated the agency’s intent not to enforce that requirement); Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 773 (D.C. Cir. 1992) (“[T]he presumption of unreviewability of agency nonenforcement decisions is inapplicable or at least rebutted [where a plaintiff] raises a facial challenge to [an agency’s] statutory interpretation embodied in [a regulation] and does not contest a particular enforcement decision.”).
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The D.C. Circuit has applied Crowley only once, in OSG Bulk Ships, Inc. v. United States, 132 F.3d 808 (D.C. Cir. 1998). In that case, a plaintiff challenged the Maritime Administration’s longstanding policy of refusing to enforce a different provision of the 1936 Act against certain vessels. See id. at 811 (explaining that the agency had “long allowed” vessels built with the aid of a federal subsidy that was reserved for ships that would be operated exclusively in foreign trade to enter the domestic shipping market at the end of their economic lives). Citing Crowley for the proposition that while “agencies’ nonenforcement decisions are generally unreviewable . . . , an agency’s adoption of a general enforcement policy is subject to review,” the court concluded that the Maritime Administration’s policy was not presumptively unreviewable because it was not a “single-shot non-enforcement decision.” Id. at 812 (citation omitted).
The government contends that Chaney’s presumption of unreviewability applies here. See Princeton MTD at 17. Like the FDA’s refusal to take the enforcement actions at issue in Chaney, the government argues, DHS’s decision to rescind a deferred-action policy like DACA involves a “complicated balancing” of the agency’s enforcement and resource-allocation priorities, and it resembles the “[c]hanges in policy as to criminal prosecutorial discretion” that “regularly occur within and between presidential administrations.” Defs.’ Reply at 2–3, 26. Moreover, the Supreme Court has said that the concerns that counsel against judicial review in the criminal context are “greatly magnified in the deportation context,” where delaying removal “is often the principal object of resistance to a deportation proceeding” and where delays “permit and prolong a continuing violation” of the federal immigration laws. AAADC, 525 U.S. at 490. Nor do Crowley and OSG apply here, the government argues, because those cases involved an agency’s
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interpretation of a specific statutory provision, whereas this case involves the agency’s evaluation of its overall statutory authority.
Plaintiffs resist the application of Chaney’s presumption on two grounds. First, they argue, Chaney itself involved a decision not to enforce a statute, whereas DACA’s rescission was, in essence, a decision to resume enforcing the immigration laws. Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ Opp’n”) [ECF No. 23] at 6. This matters because two of Chaney’s reasons for its presumption apply “unique[ly] to non-enforcement decisions”: the absence of the exercise of “coercive power” over any person, and the lack of any “focus for judicial review.” Id.
This distinction is unpersuasive. For one thing, the rescission of DACA does not actually require the Department to initiate removal proceedings against any specific alien; rather, it simply removes a mechanism by which certain aliens otherwise could have been considered for deferred action. Thus, like the FDA’s nonenforcement decision in Chaney, there are no agency proceedings here to provide a “focus for judicial review,” 470 U.S. at 832, and DACA’s rescission does not itself involve the exercise of coercive power over any person.14
Moreover, Chaney’s remaining rationales apply here with equal force. An agency’s decision to revoke a nonenforcement policy involves the same prioritization and resourceallocation considerations as its decision to implement such a policy. See Chaney, 470 U.S. at 831.
14 True, there is an element of coercion in the revocation of work authorization and other benefits associated with DACA. But the revocation of those benefits is not itself an enforcement decision and is therefore not properly analyzed under Chaney. See 470 U.S. at 832. Indeed, at least one other court has concluded that the withholding of work authorization and similar discretionary benefits is unreviewable under § 701(a)(2) simply because “[t]here are no statutory standards . . . to apply.” See Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990) (holding that § 701(a)(2) precluded review of a categorical refusal by a district office of the then-Immigration and Naturalization Service to grant work authorization and pre-hearing voluntary departure to a certain class of eligible aliens over a three-year period); cf. Texas, 809 F.3d at 166–68 (holding that conferring such benefits, especially “in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization,” was a nondiscretionary determination sufficient to permit APA review).
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And both types of decisions are substantially immunized from judicial review in the criminal context. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (“[T]he decision whether or not to prosecute . . . generally rests entirely in [the prosecutor’s] discretion[,] . . . subject to constitutional constraints.” (citations omitted)). Thus, although the D.C. Circuit has at times warned against extending Chaney “outside of [the] context” of “decisions not to take enforcement action,” Robbins v. Reagan, 780 F.2d 37, 46 (D.C. Cir. 1985) (rejecting Chaney’s application to a decision to withhold federal funding from a homeless shelter), this Court has little difficulty concluding that Chaney extends to the revocation of nonenforcement decisions.
Second, plaintiffs contend that under Crowley and OSG, any general enforcement policy is exempt from Chaney’s presumption of unreviewability, regardless of whether it is premised on a legal interpretation. See Pls.’ Opp’n at 7; Tr. Of Mots. Hr’g [ECF No. 64] (“Oral Arg. Tr.”) at 21:6–11. Concededly, there is some language in the post-Crowley case law to support this view. See, e.g., OSG, 132 F.3d at 812 (stating that “an agency’s adoption of a general enforcement policy is subject to review”); Ass’n of Civilian Technicians, Inc. v. Fed. Labor Relations Auth., 283 F.3d 339, 343 (D.C. Cir. 2002) (noting “our assumption in Crowley that a district court might have jurisdiction over an agency’s articulation of its general enforcement policy”).
But plaintiffs’ reading of this language is unpersuasive for at least two reasons. First, it is in substantial tension with Chaney itself, where the plaintiffs had asked the FDA to take “various investigatory and enforcement actions” against drug manufacturers, state prisons, and “all those in the chain of distribution who knowingly distribute or purchase the drugs [at issue] with intent to use them for human execution.” 470 U.S. at 824; see id. at 842 (Marshall, J., concurring in the judgment) (noting that “the number of people currently affected by the alleged misbranding is
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around 200”). These facts suggest that the FDA’s refusal to act in that case was more than just a one-off nonenforcement decision.15 Second, plaintiffs’ broad reading of Crowley and OSG is unnecessary to support the holdings of those cases, which both involved nonenforcement decisions based solely on agency statutory interpretation. See Crowley, 37 F. 3d at 672–73; OSG, 132 F.3d at 810 Better, then, to adhere to the lines that the D.C. Circuit and the Supreme Court have actually drawn: between legal interpretations couched as broad enforcement policies (which are reviewable, as in OSG), individual enforcement decisions (which are presumptively unreviewable, as in Crowley), and discretionary enforcement policies (which are presumptively unreviewable, as in Chaney itself).
Indeed, the government’s reading of Crowley and OSG proceeds essentially along these lines. In the government’s view, those cases stand for the proposition that “if [an] agency’s interpretation of a statute is embedded in a non-reviewable enforcement policy, the former may be reviewable as such,” but “the enforcement policy itself” is presumptively insulated from review. Defs.’ Reply at 6 (emphasis added). Thus, according to the government, Crowley and OSG address the “flipside” of the Supreme Court’s dictum in BLE: just as an otherwise unreviewable agency action (like a refusal to reconsider an earlier decision, as in BLE, or a nonenforcement decision, as in Chaney and Crowley) does not become reviewable simply because the agency acts on the basis of its interpretation of a statute, an otherwise reviewable interpretation of a statute does not become presumptively unreviewable simply because the agency characterizes it as an exercise of enforcement discretion. See Oral Arg. Tr. at 15:5–13.
15 Justice Brennan joined the Court’s opinion on the understanding that it applied only to “[i]ndividual, isolated nonenforcement decisions.” Id. at 839 (Brennan, J., concurring). Seven other justices joined the majority opinion in full, however, and none of them took Justice Brennan’s view.
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The Court has no quarrel with this statement of the law as a general matter, but it is unpersuaded by the government’s attempt to apply that law to this case. The government contends that the Crowley/OSG exception does not apply here because the Rescission Memo “does not contain an embedded interpretation of the INA (or any other statute).” Defs.’ Reply at 6. But the Sessions Letter makes clear that DACA’s rescission was based (at least in significant part) on the Attorney General’s view that the program lacked “proper statutory authority.” AR 251.
As best the Court can tell, the government’s response is that Crowley and OSG are distinguishable because they involved an agency’s determination that a specific statutory provision applied to a particular course of conduct, whereas this case—like Chaney—involves an agency’s determination as to the scope of its statutory (and here, also constitutional) authority. See Oral Arg. Tr. at 57:24–58:9 (arguing that Crowley applies only “where there’s an interpretation of a substantive provision of the statute”); id. at 8:12–15 (“Plaintiffs nowhere point to any provision in the INA that would substantively constrain the Secretary’s decision . . . to rescind or discontinue DACA.”). But this strikes the Court as a distinction without a difference. To say that a particular agency action is “without statutory authority” is simply to say that no statutory provision authorizes that action; in a sense, therefore, it is a determination of the substantive content of each statutory provision that might plausibly apply. See, e.g., 6 U.S.C. § 202(5) (authorizing the Department to “[e]stablish[] national immigration enforcement policies and priorities”). The Court fails to perceive any meaningful difference between an agency’s conclusion that it lacks statutory authority and its interpretation of a specific statutory provision. See City of Arlington v. FCC, 569 U.S. 290, 299–300 (2013) (rejecting, for purposes of determining the proper standard of judicial review, a similar distinction between “jurisdictional” and “nonjurisdictional” agency
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interpretations and concluding that “there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has”). The government’s attempt to avoid Crowley and OSG on these grounds therefore fails.
The government’s reliance on BLE is equally unavailing. For one thing, as Crowley recognized, BLE addressed the reviewability of enforcement decisions only in dictum; its actual holding concerned the reviewability of an agency’s refusal to reconsider a prior decision. See Crowley, 37 F.3d at 676; BLE, 482 U.S. at 278–84. Moreover, the best account of BLE is the one that the D.C. Circuit actually gave in Crowley, where the court relied on BLE to conclude that Chaney’s presumption of unreviewability applies to individual nonenforcement decisions. See Crowley, 37 F.3d at 676–77. In the same breath, however, the D.C. Circuit reaffirmed its view that general enforcement policies are exempt from Chaney’s presumption of unreviewability where they are predicated solely on the agency’s view of what the law requires. See id. This treatment of BLE by the Crowley court is not only sensible—after all, BLE’s dictum concerned a prosecutor’s decision not to bring a single criminal charge—but it is also binding on this Court.
Nor do the concerns that counsel against judicial review in the immigration context carry much force where, as here, a party seeks judicial review of a legal judgment embedded in an immigration enforcement policy. Unlike judicial review of individual removal proceedings, review of an enforcement policy does not itself delay the removal of any specific alien. See AAADC, 525 U.S. at 490–91 (noting that delay “is often the principal object of resistance to a deportation proceeding” and that it prolongs “an ongoing violation of United States law”). And there is no danger of “chilling law enforcement by subjecting the [agency’s] motives . . . to outside
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inquiry,” since the court need only examine the immigration authority’s legal reasoning. Id. at 490 (alteration omitted). Although many immigration decisions touch on subjects that courts are illequipped to consider, such as diplomacy or national security, see id. at 491, an agency’s interpretation of a statute is a much more natural subject for judicial review. Thus, while immigration policies are generally “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference,” there are good reasons to scrutinize a policy more carefully when it is based solely on an agency’s reading of domestic statutory law. Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999).
Properly understood, then, the Crowley/OSG exception to Chaney’s presumption of unreviewability applies to a legal interpretation phrased as a general enforcement policy, even if that interpretation concerns the scope of the agency’s lawful enforcement authority. And that is essentially what we have here.
But the government has one final line of defense. According to the government, DACA was rescinded not only because of its supposed illegality, but also because of the Attorney General’s assessment of what the government now calls “litigation risk”—that is, the likelihood that DACA would have been invalidated had it been challenged in the Texas litigation. See Defs.’ Reply at 17; AR 254–55. At first blush, this seems to be a “discretionary” consideration that makes this case more like Chaney, where the agency refused to take enforcement action not only because it thought that it lacked jurisdiction (a legal reason), but also because the alleged violations did not implicate the agency’s enforcement priorities (a discretionary reason). See 470 U.S. at 824–25.
It is not difficult to imagine a case where a court’s preliminary disapproval of an agency’s nonenforcement policy could lead the agency to rescind that policy for bona fide discretionary
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reasons. See Chaney, 470 U.S. at 831 (identifying “whether the agency is likely to succeed if it acts” as one of several such reasons). For example, the agency could conclude that the costs of defending the policy in court would outweigh its benefits to the public, or that the negative publicity that would surround the litigation would undermine the policy’s effectiveness. In such cases, the decision to rescind would be “discretionary” in a meaningful sense: the agency would have weighed the policy’s costs and benefits and decided that the former outweighed the latter.
But where an agency asserts that a nonenforcement policy is unlawful and then asserts “litigation risk” as a separate ground for the policy’s rescission, there are reasons to be more suspicious. After all, if an agency could insulate from judicial review any legal interpretation simply by framing it as an enforcement policy and then offering as an additional, “discretionary” justification the assertion that a court would likely agree with the agency’s interpretation, then Crowley would be a dead letter. Moreover, because such an assertion would depend (at least in part) on the correctness of the agency’s view of the policy’s unlawfulness, it would be unlike the independent discretionary ground that triggered the presumption of unreviewability in Chaney itself. See 470 U.S. at 824–25 (noting the FDA’s statement that even if it had jurisdiction, it would still decline to act pursuant to its “inherent discretion to decline to pursue certain enforcement matters”). For these reasons, litigation-strategy justifications deserve closer scrutiny when they are accompanied by agency assertions of unlawfulness.
Here, the Department rescinded DACA for legal reasons—its purported statutory and constitutional defects—and then offered as an additional reason the fact that a federal court of appeals had held that DAPA, a related but distinct deferred-action program, likely suffered from similar defects. See Defs.’ Reply at 17 (citing the “litigation risk posed by the proceedings in
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Texas and the consequent potential for massive disruption were the policy [to be] immediately enjoined”). Although this additional justification was not a bare assertion that a court would likely agree with the agency’s view of the law—since it relied on an actual court’s view of a concededly similar legal issue—it nonetheless raises many of the same concerns. The Crowley/OSG rule would be seriously undermined if an agency could insulate from judicial review any legal interpretation stated as a general enforcement policy simply by pointing to one case where one court tentatively agreed with the agency on a similar legal issue. Moreover, the Department’s conclusion that the Fifth Circuit’s decision to uphold a preliminary injunction of DAPA suggests that a court would likely also impose a preliminary injunction of DACA necessarily relies on the Department’s legal analysis of the similarities between the two policies—which, like the Department’s view of DACA’s legality itself, does not qualify for Chaney’s presumption of unreviewability. Thus, the Court concludes that the Department’s litigation-risk justification was too closely bound up with its evaluation of DACA’s legality to trigger Chaney’s presumption of unreviewability here.
When the litigation-risk justification falls away, all that is left to support DACA’s rescission is the Department’s determination that the program was implemented without proper statutory and constitutional authority—a legal determination which, when made in the context of a general enforcement policy, is not subject to Chaney’s presumption of unreviewability. Thus, like every other court that has considered the question thus far, the Court concludes that DACA’s rescission was not “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see Regents, 279 F. Supp. 3d at 1029–31; Batalla Vidal, 2017 WL 5201116, at *9–12; Casa De Maryland, 284 F. Supp. 3d at 770. The Court will therefore proceed to the merits of plaintiffs’ APA claims.
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* * * To summarize: an agency’s decision whether to take an enforcement action is presumptively unreviewable, and that presumption can normally be rebutted only by pointing to statutory language that constrains the agency’s exercise of its enforcement discretion. See Chaney, 470 U.S. at 832–33. Under circuit precedent, however, an enforcement decision is exempt from the presumption of unreviewability if: (1) it is expressed as a general enforcement policy; and (2) it relies solely on the agency’s view of what the law requires. See OSG, 132 F.3d at 812; Crowley, 37 F.3d at 676–677. This rule not only accords with the applicable case law, but it also preserves the judiciary’s role as the ultimate arbiter of statutory meaning while at the same time affording agencies breathing space to adopt enforcement policies for discretionary reasons. Here, DACA’s rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted. And although the government has sought to cast the Department’s assessment of “litigation risk” as a discretionary justification that brings this case within Chaney’s ambit, that justification is insufficiently independent from the agency’s evaluation of DACA’s legality to trigger Chaney’s presumption of unreviewability. Thus, the Crowley/OSG exemption applies, and the government’s motions to dismiss will be denied to the extent that they assert § 701(a)(2) as a bar to APA review. B. Whether Plaintiffs Possess a Cause of Action Under the APA and RFA The government also argues that the non-individual plaintiffs “lack a cause of action under the APA” because they “cannot meet the zone-of-interest test” used to determine prudential standing. Defs.’ Reply at 13–14; see also NAACP MTD at 18 (framing this argument as one of “prudential standing”). However, “[f]or each claim, if constitutional and prudential standing can be shown for at least one plaintiff, [the Court] need not consider the standing of the other plaintiffs
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to raise that claim.” Mt. States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). Thus, because it is undisputed that Ms. Perales Sanchez’s interests fall within the zone regulated by the INA,16 the Court need not consider prudential standing in Princeton. And the NAACP plaintiffs have prudential standing for essentially the same reason as Ms. Perales Sanchez: each has members who are DACA beneficiaries and whose interests consequently fall within the zone of interests regulated by the INA. See Hodel, 840 F.2d at 61 (concluding that, “[f]or similar reasons [that the court found Article III standing], the interests of [the association’s] members also fall within the zone of interests protected by the Endangered Species Act”).
The NAACP plaintiffs’ RFA claims are another matter. See NAACP FAC 75–82 (alleging that the Department failed to conduct an analysis of the effect of DACA’s rescission on “small entities,” as required by the RFA). “The RFA provides that ‘a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review . . . .’” Nw. Min. Ass’n v. Babbitt, 5 F. Supp. 2d 9, 13 (D.D.C. 1998) (quoting 5 U.S.C. § 611(a)(1)); see also 5 U.S.C. § 601(6) (defining a “small entity” to mean, as relevant here, a “small organization”); id. § 601(4) (defining a “small organization” to be “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field”). Given this statutory language, “the RFA extends standing to seek judicial review only to a ‘small entity.’” Babbitt, 5 F. Supp. 2d at 13. But as the government points out, the NAACP plaintiffs’ complaint “contains only a single conclusory allegation that [they] fall within the statutory definition, and any factual support for that claim is
16 Nor could there be any dispute. As a DACA beneficiary, Ms. Perales Sanchez is “[her]self the subject of the contested regulatory action.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987) (“The ‘zone of interest’ test is a guide for deciding whether . . . a particular plaintiff should be heard to complain of a particular agency decision. . . . [It] denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”).
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missing from (and arguably contradicted by) the declarations submitted in support of their motion for summary judgment.” Defs.’ Reply at 14 (citation omitted) (quoting Princeton MSJ, Ex. R at 2595 [ECF No. 28-17] (declaration from the president of the AFT, stating that “[t]he AFT is a national labor union representing approximately 1.7 million members”); id. at 2618 (declaration from the president of the NAACP, stating that “[t]he NAACP is the nation’s largest . . . civil rights organization”); id. at 2639–40 (declaration from the president of the UFCW, stating that the union “is a labor organization” representing “1.3 million members”)). Thus, the NAACP plaintiffs have not established prudential standing on their RFA claim, and that claim will be dismissed.
C. Procedural Validity The Court turns now to the merits of plaintiffs’ administrative claims, beginning with their argument that DACA’s rescission should have undergone notice-and-comment rulemaking. The APA generally requires notice-and-comment procedures whenever an agency creates, amends, or repeals a rule.17 See 5 U.S.C §§ 551(5), 553(b)–(c). A rule is exempt from this requirement, however, if it is an “interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice.” Id. § 553(b)(A). Here, plaintiffs assert that DACA’s rescission was a “substantive” or “legislative” rule that should have undergone notice and comment, Princeton MSJ at 38–41, while the government contends that DACA’s rescission was “a general statement of policy regarding how DHS will exercise its enforcement discretion,” Defs.’ Reply at 27. On this point, the government has the better of the argument. Accord Regents, 2018
17 The parties do not dispute that DACA’s rescission is a “rule” for APA purposes. See 5 U.S.C. § 551(4) (defining a “rule,” in relevant part, as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency”); see also Texas, 809 F.3d at 171 n.122 (noting that the government likewise did not dispute that DAPA was a rule).
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WL 401177, at *2 (dismissing the notice-and-comment challenge to DACA’s rescission); Batalla Vidal, 2018 WL 1532370, at *5–6 (same); Casa De Maryland, 284 F. Supp. 3d at 772 (same).
The key question in distinguishing between legislative rules (which must undergo notice and comment) and general statements of policy (which need not) is whether the statement in question has a “present binding effect.” Elec. Privacy Info. Ctr. (EPIC) v. DHS, 653 F.3d 1, 7 (D.C. Cir. 2011). “An agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Id. (citation omitted); see Lincoln, 508 U.S. at 197 (describing general statements of policy as “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power” (citation omitted)).
Plaintiffs contend that DACA’s rescission has a present binding effect because it “presently bars DACA beneficiaries from obtaining advance parole or applying to renew DACA relief” and “presently bars DHS officials from exercising their prior discretion in reviewing DACA applications or advance-parole applications.” Princeton MSJ at 40. But this characterization of DACA’s rescission is misleading. The Rescission Memo states the Department’s intent to “reject all DACA initial requests” filed after September 5, 2017 and “not [to] approve any new . . . applications for advance parole,” AR 255; thus, its binding effect is “prospective[],” Lincoln, 508 U.S. at 197 (citation omitted), rather than “present,” EPIC, 653 F.3d at 7 (citation omitted).18 Moreover, the memo expressly states that it places “no limitations . . . on the otherwise lawful enforcement or litigation prerogatives of DHS,” AR 255, which further suggests that it is
18 Although technically the memo does “presently bar DHS officials” from considering DACA and advanceparole applications, Princeton MSJ at 40, this argument proves too much. Any general statement of agency policy will presently bind the agency’s employees; the question, rather, is whether the statement “purport[s] to bind those subject to it.” EPIC, 653 F.3d at 7 (citation omitted). The Rescission Memo does not.
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without present binding effect, cf. McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1319 (D.C. Cir. 1988) (“If a statement denies the decisionmaker discretion . . . so that he, she, or they will automatically decline to entertain challenges to the statement’s position, then the statement is binding . . . .”).
Finally, the fact remains that the Rescission Memo withdrew a prior memorandum, which was itself issued without notice and comment, regarding how DHS intended to “exercise [its] prosecutorial discretion.” AR 1. The Rescission Memo is therefore a clear example of a “statement[] by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Lincoln, 508 U.S. at 197 (citation omitted); see Regents, 2018 WL 401177, at *2 (“For the same reasons that the promulgation of DACA needed no notice and comment, its rescission needed no notice and comment.”). Hence, the rescission of DACA was exempt from notice and comment as a general statement of agency policy.19
D. Substantive Validity The APA provides that a court “shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To satisfy this standard, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.
19 Plaintiffs also argue that DACA’s rescission “‘alter[s] the rights or interests of parties’” (and hence is not a rule of “agency organization, procedure, or practice”) and “makes a ‘substantive change’ to the statutory or regulatory regime” (and hence is not an interpretive rule). Princeton MSJ at 39–40 (quoting EPIC, 653 F.3d at 5–7). The government does not contend that DACA falls under either of these alternative exceptions to the notice-andcomment requirement, however, and the Court therefore will not address these arguments.
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Ins. Co., 463 U.S. 29, 43 (1983)). “[I]f an agency relies on two grounds for a decision, a court may sustain it if one is valid and if the agency would clearly have acted on that ground even if the other were unavailable.” Syracuse Peace Council v. FCC, 867 F.2d 654, 657 (D.C. Cir. 1989). However, because “a reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency,” post hoc explanations that the agency did not articulate when it acted are insufficient. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
Here, the Department never stated, and the government does not now contend, that DACA’s rescission reflected a change in the agency’s immigration enforcement priorities. Instead, the government points to two reasons for DACA’s rescission: first, the Department’s legal conclusion that DACA was unconstitutional and without statutory authority; and second, its assessment of what it now calls “litigation risk”—the likelihood that DACA would have been abruptly enjoined in the Texas litigation. Because these were the only reasons given by the agency, DACA’s rescission can be sustained only on those grounds, even if the agency could have validly rescinded DACA as an exercise of its enforcement discretion. See Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 646 (D.C. Cir. 1998) (“An agency action, however permissible as an exercise of discretion, cannot be sustained ‘where it is based not on the agency’s own judgment but on an erroneous view of the law.’” (citation omitted)).
1. The Department’s Conclusion that DACA Was Unlawful Plaintiffs first attack DHS’s reliance on DACA’s purported unlawfulness as a reason to rescind DACA. They argue both that DHS failed adequately to explain its legal conclusion, see Princeton MSJ at 11–17, and that even if DHS’s explanation were adequate, its conclusion was erroneous, see id. at 17–27. The Court agrees that DHS’s decision was inadequately explained,
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and hence it need not address the alternative argument that DHS’s conclusion was substantively incorrect.
“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, 136 S. Ct. at 2125. Thus, when an agency reverses a prior decision, it must “provide a reasoned explanation for the change.” Id. That explanation need not be “more detailed . . . than what would suffice for a new policy created on a blank slate,” but it must address the “facts and circumstances that underlay or were engendered by the prior policy,” including any “serious reliance interests.” Id. at 2125–26 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)); see also id. at 2126 (“[A]n ‘unexplained inconsistency’ in agency policy ‘is a reason for holding an interpretation to be an arbitrary and capricious change . . . .’” (alterations and citation omitted)).
In concluding that DACA was unlawful, DHS purported to identify both statutory and constitutional defects with the program. For its part, the Rescission Memo pointed to “the Supreme Court’s and the Fifth Circuit’s rulings” in the Texas litigation and then cited the Sessions Letter, see AR 255, which stated that “DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’s repeated rejection of proposed legislation that would have accomplished a similar result.” AR 251. The Sessions Letter also stated that “[s]uch an open-ended circumvention of the immigration laws was an unconstitutional exercise of authority by the Executive Branch,” and later, in its concluding paragraph, it cited the Executive’s duty to “faithfully execute the laws passed by Congress.” Id. It also opined that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA.” Id.
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This scant legal reasoning was insufficient to satisfy the Department’s obligation to explain its departure from its prior stated view that DACA was lawful. In concluding that DACA was implemented “without statutory authority,” neither the Sessions Letter nor the Rescission Memo cited any statutory provision with which DACA was in conflict. Cf. Encino Motorcars, 136 S. Ct. at 2127 (rejecting as inadequate an agency’s statement that a particular statutory exemption “does not include [certain] positions and the [agency] recognizes that there are circumstances under which the requirements for the exemption would not be met”). True, both documents pointed to the Fifth Circuit’s decision in Texas, which held that DAPA likely conflicted with the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.” Texas, 809 F.3d at 179. But the government does not meaningfully dispute that, unlike DAPA, “DACA has ‘no analogue in the INA.’” Defs.’ Reply at 22 (quoting Regents, 279 F. Supp. 3d at 1042). Thus, the Fifth Circuit’s statutory analysis is inapposite.20 The Department’s conclusion that DACA was implemented without statutory authority—based only on an incongruous reference to the Fifth Circuit’s decision on DAPA— therefore cannot support the program’s rescission.
20 The Fifth Circuit also concluded that “there was evidence from DACA’s implementation that DAPA’s discretionary language was pretextual.” Texas, 809 F.3d at 173; see id. at 172–176 (upholding the district court’s factual finding that although “the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, . . . those statements were ‘merely pretext’ because only about 5% of [DACA] applications . . . had been denied” and because the government could not identify how many of those had been denied for discretionary reasons (footnote omitted)). But the Fifth Circuit relied on that finding only to conclude that DAPA should have been promulgated using notice-and-comment rulemaking, not that it conflicted substantively with the INA. See id. at 171–178. And although OLC had orally advised the Department that “it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria,” AR 21 n.8, neither the Rescission Memo nor the Sessions Letter identified this purported flaw as a reason for DACA’s invalidity.
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The Department’s explanation for its conclusion that DACA was unconstitutional was
equally opaque. The Sessions Letter made a fleeting reference to the Attorney General’s “duty
to . . . faithfully execute the laws passed by Congress,” AR 251, which could be read to invoke the
President’s constitutional duty to “take Care that the Laws be faithfully executed.” See U.S. Const. art. II, § 3. But the letter made no attempt to explain why DACA breached that duty.21 This failure
was particularly acute in light of a thirty-three page memorandum prepared in 2014 by the Office
of Legal Counsel (“OLC”), which deduced “from the nature of the Take Care duty” no fewer than
“four general . . . principles governing the permissible scope of enforcement discretion” and
concluded that DAPA, a similar deferred-action program, was consistent with all of them. AR 9– 10, 14–36.22 And although the Sessions Letter asserted that DACA suffered from “the
same . . . constitutional defects that the courts recognized as to DAPA,” AR 251, the Fifth Circuit’s
decision in Texas did not actually identify any such defects. Indeed, it expressly declined to
address the plaintiffs’ constitutional claims. See 809 F.3d at 146 n.3. Like its evaluation of its
statutory authority to implement DACA, then, the Department’s analysis of DACA’s
constitutionality was so barebones that the Court cannot “discern[]” the “path” that the agency
21 At least one commentator has identified a second possible constitutional argument in the Sessions Letter: “The Obama administration’s open-ended reading of certain definitional provisions of the Immigration and Nationality Act (INA) would run afoul of the nondelegation doctrine.” See Josh Blackman, Understanding Sessions’s Justification to Rescind DACA, Lawfare (Jan. 16, 2018, 8:00 AM) https://www.lawfareblog.com/understandingsessionss-justification-rescind-daca; see also Texas, 809 F.3d at 150 (noting that the plaintiffs there had asserted “constitutional claims under the Take Care Clause” and the “separation of powers doctrine”). The government does not raise these arguments, however, so the Court will not consider them.
22 The OLC memorandum did not directly address the Department’s authority to implement DACA. See AR 5–14 (discussing the agency’s authority to “prioritize the removal of certain categories of aliens over others”); AR 14–36 (discussing the agency’s authority to implement DAPA). However, the memo did state that OLC had “orally advised” the Department that DACA was lawful so long as “immigration officials retained discretion to evaluate each application on an individualized basis.” AR 21 n.8 (“[T]he concerns animating DACA were . . . consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.”).
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followed. Encino Motorcars, 136 S. Ct. at 2125 (citation omitted).23 Thus, it too cannot support
DACA’s rescission.
The Department’s failure to give an adequate explanation of its legal judgment was
particularly egregious here in light of the reliance interests involved. See Encino Motorcars, 136
S. Ct. at 2126. The Rescission Memo made no mention of the fact that DACA had been in place
for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of
whom had structured their education, employment, and other life activities on the assumption that
they would be able to renew their DACA benefits.24 The Supreme Court has set aside changes in
agency policy for failure to consider reliance interests that pale in comparison to the ones at stake
here. See, e.g., Encino Motorcars, 136 S. Ct. at 2126 (setting aside the Department of Labor’s
interpretation of a statutory exemption from the Fair Labor Standards Act’s overtime-pay
requirements, in part because the agency had failed to address “decades of industry reliance” on
its prior view that the exemption applied to a particular class of employees). Because DHS failed
23 Neither Encino Motorcars nor any of its predecessor cases explicitly required an agency to address its prior views on the legality of its prior policy. See, e.g., Fox, 556 U.S. at 515 (explaining that “[a]n agency may not . . . depart from a prior policy sub silentio” (first emphasis added)). But where, as here, the OLC provides an agency with an opinion that suggests a legal framework for evaluating the legality of a particular program and the agency later rescinds that policy on legal grounds, failure to even consider OLC’s thorough analysis is arbitrary and capricious. See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1464 (2010) (“OLC’s legal advice is treated as binding within the Executive Branch until withdrawn or overruled.”); Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 178 (D.D.C. 2017) (concluding that an “agency’s nonconsideration of [certain] OLC memoranda—whether deliberate or inadvertent—is all the more reason to consider them in reviewing the agency’s action,” because “[a] contrary result would permit agencies to toss aside OLC memoranda that contain legal conclusions contrary to the agency’s preferred policy choices”).
24 See, e.g., Perales Decl. ¶¶ 21–22 (if DACA were rescinded, Ms. Perales Sanchez would have to abandon her plans of conducting postgraduate research in Mexico and then applying to law school, because she could no longer travel abroad, take out student loans, or work lawfully in the United States); Decl. of Jane Doe #2, Ex. S to Princeton MSJ [ECF No. 28-17] ¶¶ 11–13 (current special education teacher and DACA beneficiary would lose her job and would have to abandon her plans of pursuing a doctorate in audiology); Decl. of Jane Doe #5, Ex. X to Princeton MSJ [ECF No. 28-17] ¶ 11 (current undergraduate student and DACA beneficiary would have to abandon her plans of attending law school). Plaintiffs filed a motion for leave to file pseudonymous declarations with their summary judgment motion. See Pls.’ Mot. for Leave to Allow Three Declarants to Proceed by Pseudonym [ECF No. 22]. The government did not oppose the motion, so the Court will treat it as conceded and grant it. See Local Civ. R. 7(b).
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to even acknowledge how heavily DACA beneficiaries had come to rely on the expectation that they would be able to renew their DACA benefits, its barebones legal interpretation was doubly insufficient and cannot support DACA’s rescission.
2. Litigation Risk The Department’s second justification for DACA’s rescission was its conclusion that, if DACA were challenged in the Texas litigation, the district court there would enter a “nationwide injunction” that “would have prompted an immediate—and chaotic—end to the policy.” Defs.’ Reply at 15. Plaintiffs contend that this “litigation risk” conclusion was arbitrary and capricious and hence cannot sustain DACA’s rescission. Princeton MSJ at 28–36. They are correct. As an initial matter, plaintiffs assert that the government’s litigation-risk argument is an “impermissible post hoc rationalization” of the Department’s decision to rescind DACA. Princeton MSJ at 28. Here, plaintiffs miss the mark. Although both the Rescission Memo and the Sessions Letter focused primarily on DACA’s statutory and constitutional defects, the Sessions Letter did state that DAPA was “enjoined on a nationwide basis” and that “it is likely that potentially imminent litigation would yield similar results with respect to DACA.” AR 251. Moreover, the Rescission Memo went on to cite this concern as grounds for its decision to “wind [DACA] down in an efficient and orderly manner.” AR 254. Together, these statements were sufficient to express the Department’s concern that a nationwide injunction in the Texas litigation would abruptly shut down the DACA program. See Chenery, 332 U.S. at 196. Nevertheless, this concern does not withstand review under the familiar arbitrary and capricious standard. See State Farm, 463 U.S. at 43. First, as already noted, there was good reason to doubt that the second of the Fifth Circuit’s holdings in Texas—that DAPA conflicted with the express provisions of the INA, see 809 F.3d at 178–86—would extend to DACA, because the INA
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does not prescribe a statutory naturalization process for DACA-eligible individuals. And although the Fifth Circuit’s holding that DAPA should have undergone notice-and-comment rulemaking likely would have extended to DACA,25 see id. at 170–78, it simply does not follow that the district court in Texas was likely to issue an injunction bringing DACA to an abrupt halt.
For one thing, it is black-letter administrative law that when a court sets aside an agency action as procedurally invalid, the proper remedy is to remand the action to allow the agency an opportunity to conduct the required notice-and-comment procedures. See Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002) (observing that “[w]e have previously remanded without vacating when the agency failed to follow notice-and-comment procedures”); C. & S.W. Services, Inc. v. EPA, 220 F.3d 683, 692 (5th Cir. 2000) (remanding without vacatur where the agency “may well be able to justify its decision . . . and it would be disruptive to vacate [the challenged] rule”). It is true, as the government points out, that in Texas the district court preliminarily enjoined DAPA based solely on the program’s failure to have undergone notice-andcomment rulemaking. See Texas, 86 F. Supp. 3d at 677. DAPA was challenged before it took effect, however. See Texas, 809 F.3d at 149. By contrast, as of September 5, 2017 (the date by which the Texas plaintiffs had threatened to challenge DACA, see AR 239), DACA would have been in place for over five years, and hundreds of thousands of applicants would have already been granted deferred action under the program. Thus, assuming that the district court in the Texas litigation would have found DACA defective only on procedural grounds (as a fair reading of the
25 Because DAPA had not yet been implemented, the Fifth Circuit relied in large part on “extrapolation” from evidence regarding DACA’s implementation to conclude that DAPA would not “genuinely leave the agency and its employees free to exercise discretion” and hence was a substantive rule that should have undergone notice and comment. Texas, 809 F.3d at 171–176. The government is correct that “[w]hile that finding had to be ‘extrapolated’ to invalidate DAPA, it directly dooms DACA itself,” at least as far as notice and comment are concerned. Defs.’ Reply at 22 (citations omitted).
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Fifth Circuit’s opinion would suggest), it seems doubtful that the court would have preliminarily enjoined DACA instead of remanding it to the Department, perhaps without vacatur, to undergo notice-and-comment rulemaking.
On the other hand, if the Texas district court were to find that DACA was substantively invalid—or indeed, unconstitutional—injunctive relief rather than remand may have been the more likely remedy. But it still does not follow that the district court’s injunction would have brought the DACA program to an “immediate” and “chaotic” halt. Defs.’ Reply at 15. As the Fifth Circuit has repeatedly recognized, district courts have “broad discretion” to “fashion[] equitable relief,” Crawford v. Silette, 608 F.3d 275, 278 (5th Cir. 2010), including injunctive relief, see ODonnell v. Harris County, 882 F.3d 528, 537 (5th Cir. 2018) (noting that a district court’s injunction is reviewed for abuse of discretion). In light of this discretion, it strains credulity to suggest that the district court would have enjoined DACA immediately and completely without allowing DHS any opportunity to wind the program down. Thus, regardless of the grounds on which the district court in Texas might have ultimately invalidated DACA, the Department’s insistence that an “immediate—and chaotic—end to the policy” would have resulted, Defs.’ Reply at 15, is “so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” State Farm, 463 U.S. at 43, and was therefore arbitrary and capricious.
* * * If, as the Court has concluded, see supra Part II.A, an agency’s general enforcement policy is reviewable to the extent that it is premised on a legal judgment, it follows that the agency must
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explain that judgment in sufficient detail to permit meaningful judicial review.26 See Encino
Motorcars, 136 S. Ct. at 2127. Here, the Department’s conclusory statements were insufficient to
explain the change in its view of DACA’s lawfulness.27 Moreover, the agency’s prediction
regarding the outcome of threatened litigation over DACA’s validity—specifically, that the district
court in the Texas litigation would immediately halt the program, without any opportunity for a
wind-down—was so implausible that it fails even under the deferential arbitrary and capricious
standard. DACA’s rescission will therefore be set aside.28
26 The parties dispute the standard of review that would apply to the agency’s statutory and constitutional analysis had it been adequately explained. The government maintains that it would be reviewed for a “clear error of judgment”—that is, under the ordinary test for arbitrary and capricious agency action. State Farm, 463 U.S. at 43 (citation omitted); see Oral Arg. Tr. at 68:5–18. Plaintiffs contend that review would be de novo. See Teva Pharm. USA, Inc. v. FDA, 441 F.3d 1, 5 (D.C. Cir. 2006) (finding agency action arbitrary and capricious where the agency “mistakenly thought itself bound” by certain D.C. Circuit precedent); Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985) (“An agency decision cannot be sustained, however, where it is based not on the agency's own judgment but on an erroneous view of the law.”). The district court in Batalla Vidal has suggested a third option: because “neither the Sessions Letter nor the DACA Rescission Memo carry the ‘force of law,’” that court concluded, the Department’s “interpretation of the legality of the DACA program is [not] entitled to formal or controlling deference.” Batalla Vidal, 279 F. Supp. 3d at 421 n.9 (E.D.N.Y. 2018) (quoting Mead, 533 U.S. at 226–27). Rather, it would be treated only as persuasive. See Mead, 533 U.S. at 234–35 (explaining that agency interpretations “contained in policy statements, agency manuals, and enforcement guidelines” are “beyond the Chevron pale” and instead deserve “respect proportional to [their] ‘power to persuade’” (quoting Christensen v. Harris Cty., 529 U.S. 576, 587 (2000); then Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Because the Court does not reach the merits of the Department’s conclusions that DACA lacked statutory and constitutional authority, however, it expresses no opinion as to what standard of review would apply.
27 The district court in Casa de Maryland reached the opposite conclusion. See 284 F. Supp. 3d at 772 (finding that DHS had a “reasonable basis” to conclude that DACA was unlawful based on “the DAPA litigation, the threatened legal challenge, and the Attorney General’s advisory letter”). But that court’s brief discussion of the issue failed to address the limited applicability of the Fifth Circuit’s Texas decision to DACA, the inadequacy of the Sessions Letter itself, DHS’s failure to address DACA beneficiaries’ reliance interests, and the implausibility of an injunction issuing in the Texas litigation that would put an immediate end to DACA. Therefore, this Court respectfully disagrees with the Casa de Maryland court’s analysis.
28 The government also urges the Court to construe the Department’s statement that DACA was “unconstitutional in part because it was an ‘open-ended’ policy that closely tracked ‘proposed legislation’ that Congress had repeatedly rejected” as an “independent policy judgment” that “immigration decisions of [DACA’s] magnitude should be left to Congress.” Defs.’ Reply at 21 (quoting AR 251 and citing Syracuse Peace Council, 867 F.2d at 657–58 (holding that if an agency offers two justifications for its decision, one constitutional and one discretionary, and if a court is “persuaded” that the agency would have reached the same result on discretionary grounds had it “foregone its ruminations on the constitutional issue,” the court may avoid the constitutional issue and uphold the agency action only on the discretionary ground)). But the government offers no support for the proposition that an agency’s view as to which branch of government ought to address a particular policy issue is an assessment appropriately committed to the agency’s discretion. Cf. Chaney, 470 U.S. at 831 (listing such assessments).
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E. Remedy Having concluded that DACA’s rescission violated the APA, the question of remedy remains. As an initial matter, the Court will reject the government’s invitation to confine its grant of relief strictly to the plaintiffs in this action. See Defs.’ Reply at 44–45. As plaintiffs point out, the D.C. Circuit has previously rejected an agency’s suggestion that “the named plaintiffs alone should be protected by [an] injunction,” explaining that “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989). Moreover, as the Fifth Circuit noted in Texas, the immigration context counsels strongly in favor of nationwide relief: “the Constitution requires ‘an uniform Rule of Naturalization,’” 809 F.3d at 187 (quoting U.S. Const. art. I, § 8), “Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly,’” id. at 187–88 (quoting Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 115(1), 100 Stat. 3359, 3384), “and the Supreme Court has described immigration policy as ‘a comprehensive and unified system,’” id. at 188 (quoting Arizona v. United States, 567 U.S. 387, 401 (2012)). Thus, the Court concludes that nationwide relief is appropriate here. The only remaining issue, then, is what form the Court’s relief should take. “[U]nsupported agency action normally warrants vacatur.” Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005). But courts have discretion to remand without vacatur if “there is at least a serious possibility that the [agency] will be able to substantiate its decision,” and if “vacating would be disruptive.” Radio-TV News Directors Ass’n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999) (alteration in original) (citation omitted); see AlliedSignal, Inc. v. U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (“The decision
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whether to vacate depends on the seriousness of the order’s deficiencies . . . and the disruptive consequences of an interim change that may itself be changed.” (citation omitted)). Alternatively, a court may vacate the unlawful action but stay its order of vacatur for a limited time to allow the agency to attempt to cure the defects that the court has identified. See Friends of Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006) (remanding to the district court with instructions to vacate an agency rule but noting that the district court possessed “remedial discretion . . . to stay [its] order on remand”); Nat. Res. Def. Council, Inc. v. EPA, Civ. Action No. 16-1861 (JDB), 2018 WL 1568882, at *8 (D.D.C. Mar. 30, 2018) (vacating a rule but staying the order of vacatur until such time as the agency promulgated a replacement); see also A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995) (remanding and providing for “automatic[]” vacatur unless the agency justified its decision within 90 days); Rodway v. USDA, 514 F.2d 809, 817–18 (D.C. Cir. 1975) (remanding and giving the agency 120 days to complete the rulemaking process).
Here, the first Allied-Signal factor—the seriousness of the action’s defects—favors remand without vacatur, although not unequivocally. On the one hand, it is certainly possible that the Department could articulate a valid reason for DACA’s rescission. For example, it could offer a coherent legal argument that DACA conflicts with the INA or violates the President’s duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, or it could explain why, as a matter of policy, DACA-eligible individuals should no longer be low-priority targets for removal. Accord Batalla Vidal, 279 F. Supp. 3d at 408 (“Defendants indisputably can end the DACA program.”). But there is some evidence in the record to suggest that the Department would not have rescinded DACA but for its supposed illegality. See, e.g., Ex. 119 to Princeton MSJ [ECF No. 28-15] at 2003 (congressional testimony of DHS officials that DACA beneficiaries are “a
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benefit to the country” and that “[w]e need to regularize their status through some legal means”). And although it seems that no court has yet passed judgment on DACA’s constitutionality, at least one court in this district has concluded that DACA was likely “consistent with, rather than contrary to, congressional policy.” Arpaio v. Obama, 27 F. Supp. 3d 185, 208–09 (D.D.C. 2014) (concluding that the plaintiff’s substantive APA challenge to DACA was unlikely to succeed on the merits), aff’d, 797 F.3d 11 (D.C. Cir. 2015) (affirming only on standing grounds). Thus, although the substantive flaws in DACA’s rescission are curable in theory, the Department may face practical obstacles when attempting to remedy them. Nonetheless, there remains a “nontrivial likelihood” that the agency could justify DACA’s rescission on remand, WorldCom, Inc. v. FCC, 288 F.3d 429, 434 (D.C. Cir. 2002), so the first Allied-Signal factor supports remand without vacatur.
The second Allied-Signal factor—the risk of disruption—also tips slightly in favor of remand without vactur. On the one hand, two courts have already preliminarily enjoined DACA’s rescission, see Regents, 279 F. Supp. 3d at 1047–50; Batalla Vidal, 279 F. Supp. 3d at 437–38, which suggests that vacatur would cause little disruption, at least initially.29 On the other hand, neither injunction applies to initial DACA applications, which the Department has stopped accepting. Thus, vacating DACA’s rescission could lead to “an interim change”—an influx of initial DACA applications—“that may itself be changed” if DHS later provides a sufficient
29 True, both preliminary injunctions are currently the subjects of expedited appeals. This fact actually favors vacatur, however, because if both injunctions are overturned, then this Court’s order of vacatur would preserve DACA pending the Department’s revised explanation for the program’s rescission, thereby maintaining the status quo.
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explanation for DACA’s rescission.30 Allied-Signal, 988 F.2d at 150–151 (citation omitted). On balance, therefore, the two Allied-Signal factors tend to favor remand without vacatur.
However, the Court is also mindful that, as several judges of the D.C. Circuit have noted, remand without vacatur “sometimes invites agency indifference.” In re Core Comm’n, Inc., 531 F.3d 849, 862 (D.C. Cir. 2008) (Griffith, J., concurring) (urging courts “to consider the alternatives to the open-ended remand without vacatur”); see Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such.”). This concern is particularly acute here, where each day that the agency delays is a day that aliens who might otherwise be eligible for initial grants of DACA benefits are exposed to removal because of an unlawful agency action. Moreover, although the preliminary injunctions in Regents and Batalla Vidal currently protect aliens who have already received DACA grants, those injunctions are both on expedited appeals and hence could be reversed in the not-too-distant future. These concerns suggest that time is of the essence here, and the Court need not ignore this reality in crafting a remedy. Cf. Rodway, 514 F.2d at 817–18 (ordering that regulations concerning the food stamp system be revised “with expedition”—that is, within 120 days—because “[i]n matters as vital as basic nutrition there is no excuse for delay”).
30 Nor would it be proper for the Court to vacate DACA’s rescission except as to initial applications. While a court has discretion to craft preliminary injunctive relief based on a number of equitable factors, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24 (2008), its discretion in fashioning administrative remedies is somewhat more limited, see Harmon, 878 F.2d at 494–95 (“Courts ordinarily do not attempt, even with the assistance of agency counsel, to fashion a valid regulation from the remnants of the old rule . . . [or to] draw[] a line which the agency itself has never drawn.”). Here, there is no principled basis to distinguish between initial DACA applications and renewal applications, since the Rescission Memo’s substantive invalidity stems chiefly from its inadequately explained rationale. The Court therefore will not fashion an ad hoc order of vacatur along these lines.
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In light of the Allied-Signal factors, which tip in favor of remand without vacatur, and the troubling humanitarian consequences of the delays that remedy might invite, the Court will adopt an intermediate course: it will vacate DACA’s rescission but stay its order of vacatur for 90 days. During that time, the Secretary of Homeland Security or her delegate may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the Rescission Memo will be vacated in its entirety, and the original DACA program will be restored in full. This means, among other things, that the agency will be required to resume accepting initial DACA applications and applications for advanced parole. III. CONSTITUTIONAL CHALLENGES
The government has also moved under Rule 12(b)(6) to dismiss the three constitutional claims asserted in plaintiffs’ complaints for failure to state a claim. See Princeton MTD 37–44; NAACP MTD 37–43. Two of these claims—one grounded in equal protection, see Pls.’ Opp’n at 24–27, and the other in due process, id. at 27–32—are challenges to DACA’s rescission itself. The third argues that the Department may not, consistent with applicable due process principles, use DACA beneficiaries’ personal identifying information to initiate immigration enforcement proceedings against them, and plaintiffs seek a preliminary injunction to that effect. Id. at 32–35.
In light of its decision to vacate DACA’s rescission, the Court will defer ruling on the government’s motion to dismiss plaintiffs’ first two constitutional challenges. Because plaintiffs have failed to plausibly allege facts to support their information-sharing claim, however, that claim will be dismissed without prejudice.
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A. Challenges to DACA’s Rescission As noted, plaintiffs’ constitutional challenges to DACA’s rescission proceed along two lines. First, plaintiffs argue that DACA’s rescission violates the equal protection guarantee of the Fifth and Fourteenth Amendments, because it deprives undocumented aliens of certain benefits that remain available to aliens who are lawfully present in the United States. Pls.’ Opp’n at 24– 27 (citing Plyler v. Doe, 457 U.S. 202 (1982); then Romer v. Evans, 517 U.S. 620 (1996)). Second, plaintiffs maintain that DACA’s rescission deprives existing DACA beneficiaries of their liberty and property interests in renewing their DACA benefits without due process of law. Id. at 27–31. The Court will defer ruling on the government’s motions to dismiss these two constitutional claims. To begin with, because the Court has already concluded that DACA’s rescission violates the APA, it is not necessary to address plaintiffs’ constitutional claims now. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (noting that courts generally avoid deciding constitutional issues unnecessarily); Texas, 809 F.3d at 146 n.3 (declining to reach plaintiffs’ constitutional challenges to DAPA and instead affirming only on APA grounds). Moreover, litigation over similar constitutional issues has either reached or progressed past the motion-to-dismiss stage in three other cases, see Regents, 2018 WL 401177, at *2–7; Batalla Vidal, 2018 WL 1532370, at *6–14; Casa de Maryland, 284 F. Supp. 3d at 773–777, and the Court is especially reluctant unnecessarily to address constitutional issues that have already been thoroughly considered by other courts. Finally, the Department could, on remand, alter DACA’s rescission in ways that might affect the merits of plaintiffs’ constitutional claims.31 At this stage
31 For example, the Department might provide for procedures through which an existing DACA recipient could contest the revocation of her DACA benefits—something that the current Rescission Memo does not do. Such procedures could, at least in theory, be relevant to plaintiffs’ procedural due process claim.
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of the proceedings, then, the Court will defer ruling on the government’s motion to dismiss plaintiffs’ constitutional challenges to DACA’s rescission.
B. Information-Sharing Claim Plaintiffs seek a preliminary injunction preventing DHS from sharing DACA beneficiaries’ personal information with immigration enforcement authorities or otherwise using it for immigration enforcement purposes. See Princeton MSJ at 48–53; Pls.’ Opp’n at 32–35. The government has moved to dismiss plaintiffs’ information-sharing claim, arguing primarily that DHS had previously stated its intent not to use DACA beneficiaries’ personal information in this way and that plaintiffs have not plausibly alleged that the agency has since changed its policy. See Princeton MTD at 41–42; Defs.’ Reply at 36–37. The government also contends that even if the Department had changed its information-sharing policy, there would be no due-process violation, because that policy has always stated that it “may be modified, superseded, or rescinded at any time.” Princeton MTD at 43 (citation omitted); Defs.’ Reply at 37–39 (citation omitted). To secure preliminary injunctive relief, plaintiffs “must establish (1) that [they are] likely to succeed on the merits, (2) that [they are] likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in [their] favor, and (4) that an injunction is in the public interest.” Winter, 555 U.S. at 20. Here, the third and fourth prongs of this test—the equities and the public interest—clearly favor plaintiffs, who allege that the Department intends to use DACA beneficiaries’ identifying information against them despite its earlier assurances that it would not do so, which induced the beneficiaries to provide the information in the first place. Plaintiffs have also demonstrated a likelihood of success on the merits—as least as to their legal theory. Plaintiffs rely on two cases, Cox v. Louisiana, 379 U.S. 536 (1965), and Raley v. Ohio, 360 U.S. 423 (1959), for the general proposition that “[d]ue process forbids the Government
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from making and then breaking promises about the legal consequences of a specific action.” Princeton MSJ at 48. In Raley, the Supreme Court found a due process violation where four individuals were convicted of failing to answer questions posed by Ohio’s Un-American Activities Commission after the chairman of that commission had specifically represented to the individuals that they could refuse to answer pursuant to a state-law privilege. See 360 U.S. at 437–38; see also id. at 438 (“[T]o sustain the judgment of the Ohio Supreme Court on such a basis after the Commission had acted as it did would be to sanction the most indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State clearly had told him was available to him.”). And in Cox, the Court, relying on Raley, held that it violated due process to convict demonstrators under a statute that prohibited demonstrating “near” a courthouse where “the highest police officials of the city . . . in effect told the demonstrators that they could meet where they did.” 379 U.S. at 571; see also Santobello v. New York, 404 U.S. 257, 262 (1971) (recognizing a substantive due process right to enforce the terms of a plea agreement). This argument is sufficiently persuasive to support preliminary injunctive relief.
The sticking point here is the second prong—the likelihood of irreparable harm. Several factors convince the Court that the harm to DACA beneficiaries of having their information shared with immigration enforcement authorities, though likely irreparable, is insufficiently imminent to justify preliminary injunctive relief. League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7– 8 (D.C. Cir. 2016) (harm is irreparable only if it is “so ‘imminent that there is a clear and present need for equitable relief . . . .’” (alterations and citation omitted)). For one thing, the Department has recently reaffirmed that its “information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017 memo starting a wind-down of the
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DACA policy.” USCIS, DHS, Frequently Asked Questions: Rejected DACA Requests Q5, https://www.uscis.gov/daca2017/mail-faqs (last updated Feb. 14, 2018).32 This fact was enough to persuade one other district court to dismiss a similar information-sharing claim. See Batalla Vidal, 2018 WL 1532370, at *10–11. On the other hand, two courts have reached the opposite conclusion, see Regents, 2018 WL 401177, at *4–5; Casa de Maryland, 284 F. Supp. 3d at 777– 79, and one of those courts has already granted the injunctive relief that plaintiffs seek here, see Amended Order, Casa de Maryland, No. 17-cv-2942 (D. Md. Mar. 15, 2018), ECF No. 49 (enjoining the Department from (1) using or sharing DACA beneficiaries’ personal information except as originally specified on the DACA application forms and instructions and (2) changing its information-sharing policy without the Court’s preapproval). But that injunction now in place further belies any suggestion that irreparable harm to DACA beneficiaries is imminent—their information cannot now be used as they fear. Hence, the Court concludes that plaintiffs have failed to demonstrate that they are entitled to preliminary injunctive relief on their information-sharing claim, and their motion for preliminary injunctive relief will be denied.
The Court also concludes that plaintiffs have failed to state a claim. See Fed. R. Civ. P. 12(b)(6). Plaintiffs point to a discrepancy between a prior statement by the Department that DACA beneficiaries’ information would be “protected from disclosure” and a later statement issued on the date of DACA’s rescission that the information would not be “proactively” provided to immigration enforcement authorities. See Princeton Compl. ¶ 51. Even if this discrepancy were sufficient to plausibly allege that DACA beneficiaries’ information has
32 This document does not appear in the administrative record, but the Court takes judicial notice of it. See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”).
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been or will be used inconsistently with DHS’s stated information-sharing policy, the agency has since reaffirmed its commitment to that prior policy, and the Court may take judicial notice of that fact in ruling on the government’s motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Vasser v. McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016) (“Courts may take judicial notice of matters of a general public nature without converting the motion to dismiss into one for summary judgment.” (alterations and citation omitted)).33 Thus, the government’s Rule 12(b)(6) motion will be granted as to plaintiffs’ information-sharing claim.
CONCLUSION Executive Branch officials possess relatively unconstrained authority to enforce the law against certain violators but not others. Ordinarily, the exercise of that authority is subject to review not in a court of law, but rather in the court of public opinion: members of the public know how their elected officials have used their enforcement powers, and they can hold those officials accountable by speaking out, by petitioning their representatives, or ultimately at the ballot box. When an official claims that the law requires her to exercise her enforcement authority in a certain way, however, she excuses herself from this accountability. Moreover, if her view of the law is incorrect, she may needlessly forego the opportunity to implement appropriate enforcement priorities and also to demonstrate those priorities to the public.
33 For similar reasons, the Court will not address the argument made by amici LatinoJustice PRLDEF (and others) that DHS’s breach of the information-sharing policy would violate the Privacy Act of 1974, 5 U.S.C. § 552a, and the agency’s own privacy rules. See Br. of LatinoJustice PRLDEF, et al., as Amicus Curiae [ECF No. 36-2].
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Fortunately, neither Supreme Court nor D.C. Circuit precedent compels such a result. Rather, the cases are clear that courts have the authority to review an agency’s interpretation of the law if it is relied on to justify an enforcement policy, even when that interpretation concerns the lawful scope of the agency’s enforcement discretion. See Chaney, 470 U.S. at 832–33; OSG, 132 F.3d at 812; Crowley, 37 F.3d at 676–77. Under this rule, an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both.
Here, the Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.
For the reasons given above, then, the Court will vacate the Department’s September 5, 2017 decision to rescind the DACA program. The Court will stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful. The Court will also deny the government’s motion to dismiss for lack of subject-matter jurisdiction, its motion to dismiss plaintiffs’ APA claims on reviewability grounds, and its motion to dismiss plaintiffs’ substantive APA claim; grant the government’s motion to dismiss plaintiffs’ procedural APA claim, the NAACP plaintiffs’ RFA claim, and plaintiffs’ information-sharing claim; and defer ruling on the government’s motion to dismiss plaintiffs’ remaining constitutional claims.
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Finally, the Court will also grant plaintiffs’ motion for partial summary judgment as to their substantive APA claim, deny that motion as to their procedural APA claim, and deny their motion for preliminary injunctive relief on their information-sharing claim. A separate order has been issued on this date.

Dated: April 24, 2018

/s/
JOHN D. BATES United States District Judge

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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

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

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

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decision. Mem. from Sec’y Kirstjen M. Nielsen (“Nielsen Memo”) [ECF No. 71-1] at 3.1 Also, the government has now moved the Court to revise its April 2018 order, arguing that the Nielsen Memo demonstrates that DACA’s rescission was neither unlawful nor subject to judicial review. See Defs.’ Mot. to Revise the Court’s April 24, 2018 Order (“Gov’t’s Mot.”) [ECF No. 74].
For the reasons explained below, the government’s motion will be denied. Although the Nielsen Memo purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. NAACP, 298 F. Supp. 3d at 235. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA’s rescission, but this reason was articulated nowhere in DHS’s prior explanation for its decision, and therefore cannot support that decision now.
By choosing to stand by its September 2017 rescission decision, DHS has placed itself in a dilemma. On the one hand, it cannot rely on the reasons it previously gave for DACA’s rescission, because the Court has already rejected them. On the other, because “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself,” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983), DHS also cannot rely on new reasons that it now articulates for the first time. The government’s attempt to thread this
1 Although NAACP v. Trump, Civil Action No. 17-1907, was filed first, at the Court’s direction most of the papers in these two cases were filed in Princeton v. United States, Civil Action No. 17-2325. See Min. Order, Princeton (D.D.C. Jan. 18, 2018). Thus, unless otherwise noted, references to the docket refer to the Princeton action.
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needle fails. The motion to revise the Court’s April 2018 order will therefore be denied, and the Court’s vacatur of DACA’s rescission will stand.
BACKGROUND2 The DACA program offers renewable, two-year grants of deferred action to certain undocumented aliens who were brought to the United States as children. See NAACP, 298 F. Supp. 3d at 216 (describing DACA’s eligibility criteria in greater detail). A grant of deferred action under DACA guarantees not only that the recipient will not be removed from the United States during the relevant time period, but also that she will be able to live, work, and contribute to society in various ways. See id. at 216–17 (discussing DACA’s ancillary benefits). Since DACA’s implementation in 2012, nearly 800,000 individuals have received grants of deferred action under the program. Id. at 17. In 2014, DHS implemented a similar program, Deferred Action for Parents of Americans (“DAPA”), which would have offered renewable grants of deferred action to the noncitizen parents of U.S. citizens or lawful permanent residents. Id. at 217. Before DAPA could take effect, however, several states—led by Texas—challenged it in federal court. Id. A district court preliminarily enjoined DAPA in 2015, and the following year the Supreme Court affirmed the district court’s preliminary injunction by an equally divided vote. See id. at 217–18 (citing United States v. Texas, 136 S. Ct. 2271 (2016) (mem)). Litigation over DAPA continued until June 2017, when, following the election of President Trump, DHS rescinded the program. Id. at 18. On September 5, 2017, purportedly in response to threats from the plaintiffs in the Texas litigation, DHS rescinded the DACA program as well. Id. at 218–19. A flurry of court challenges
2 Because the facts and procedural history of this case were recounted at length in the Court’s prior opinion, see NAACP, 298 F. Supp. 3d at 216–223, the Court will review them here only briefly.
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followed, each of whose procedural history is described more fully in the Court’s prior opinion. See id. at 219–22. For present purposes, it suffices to say that DACA’s rescission has been preliminarily enjoined by two district courts, one in California and one in New York, and that the government’s appeals of those injunctions are currently pending. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1048 (N.D. Cal. 2018), appeal docketed, No. 18-15068 (9th Cir. Jan. 16, 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 437–38 (E.D.N.Y. 2018), appeal docketed, No. 18-485 (2d Cir. Feb. 20, 2018). Also currently pending before the Fourth Circuit is an appeal of a Maryland district court’s dismissal of a challenge to DACA’s rescission. Casa De Maryland v. U.S. Dep’t of Homeland Sec., 284 F. Supp. 3d 758, 779 (D. Md. 2018), appeal docketed, No. 18-1522 (4th Cir. May 8, 2018).
The cases before this Court, which present challenges to DACA’s rescission on both administrative and constitutional grounds, were filed in late 2017 and consolidated for purposes of the dispositive motions filed in each. See NAACP, 298 F. Supp. 3d at 222–23. After holding a hearing on those motions, the Court entered judgment in plaintiffs’ favor on their APA claims. See id. at 223, 249. The Court held, among other things, that: (1) DHS’s September 5, 2017 decision to rescind DACA was reviewable under the APA because it was predicated chiefly on the agency’s legal judgment that DACA was unlawful, see id. at 226–235; and (2) the decision was arbitrary and capricious because (a) DHS’s legal judgment was inadequately explained, see id. at 238–240, and (b) the other reasons offered for DACA’s rescission—mainly, the purported “litigation risk” that DACA would be preliminarily enjoined by the district court in Texas—were insufficiently reasoned, see id. at 241–243. Hence, the Court vacated DACA’s rescission on
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administrative grounds, see id. at 243–46, and deferred ruling on the bulk of plaintiffs’
constitutional claims, id. at 246.
However, because the Court’s decision was based in large part on its conclusion that DHS’s
legal judgment was “virtually unexplained,” the Court stayed its order of vacatur for 90 days to
allow DHS “to better explain its view that DACA is unlawful.” Id. at 249. During that 90-day
period, the Court explained,
the Secretary of Homeland Security or her delegate may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the Rescission Memo will be vacated in its entirety, and the original DACA program will be restored in full.
Id. at 245–46. The order accompanying the Court’s opinion directed the parties to inform the
Court before the stay expired as to “whether DHS has issued a new decision rescinding DACA
and whether the parties contemplate the need for further proceedings in this case.” Apr. 24, 2018
Order [ECF No. 69] at 2.3
3 Soon after this Court issued its decision, several of the plaintiffs in the Texas litigation filed a new case challenging DACA in a federal district court in Texas. See Texas v. United States, No. 1:18-cv-68 (S.D. Tex. filed May 1, 2018) (“Texas II”). The Texas II plaintiffs assert that DACA is procedurally and substantively invalid under the APA and that it violates the Constitution’s Take Care Clause, U.S. Const. art. II, § 3. See Compl. ¶¶ 351–56, Texas II (S.D. Tex. May 1, 2018). The plaintiffs have filed a motion for a preliminary injunction in that case, see Pls.’ Mot. for a Prelim. Inj., Texas II (S.D. Tex. May 2, 2018), which is currently pending. The government opposes the motion only insofar as it seeks nationwide relief. See Fed. Defs.’ Response to Pls.’ Mot. for a Prelim. Inj. at 17, Texas II (S.D. Tex. June 8, 2018). Otherwise, although the government acknowledges that “[i]n similar situations, courts have typically held that the appropriate course is for a district court to refrain from issuing a conflicting injunction,” id. at 17 (citations omitted), it nonetheless suggests that, assuming “that preliminary injunctive relief is appropriate,” the district court should stay its order for fourteen days to allow the government to seek emergency relief from the Supreme Court, id. at 17–18. Other parties, including the State of New Jersey, have intervened as defendants and opposed the plaintiffs’ preliminary injunction motion in full. See, e.g., Def.–Intervenor State of N.J.’s Mem. of Law in Opp’n to Pls.’ Mot. for Prelim. Inj., Texas II (S.D. Tex. July 21, 2018). A hearing on the plaintiffs’ motion is currently set for Wednesday, August 8, 2018.
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In late June, Secretary of Homeland Security Kirstjen M. Nielsen issued a memorandum responding to the Court’s order. See Nielsen Memo at 1. Instead of issuing a new decision rescinding DACA, as the Court’s order had contemplated, Secretary Nielson simply “declin[ed] to disturb” the earlier decision to rescind the program by then-Acting Secretary of Homeland Security Elaine C. Duke.4 Id. Secretary Nielsen then went on to offer several reasons why “the decision to rescind the DACA policy was, and remains, sound.” Id.
Specifically, Secretary Nielsen opined that: (1) “the DACA policy was contrary to law”; (2) regardless of whether DACA was in fact contrary to law, the program “was appropriately rescinded . . . because there are, at a minimum, serious doubts about its legality”; and (3) other “sound reasons of enforcement policy” supported DACA’s rescission. Id. at 2. The reasons in this last category included that: (a) DHS “should not adopt public policies of non-enforcement of [federal] laws for broad classes and categories of aliens,” particularly aliens whom “Congress has repeatedly considered but declined to protect”; (b) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-by-case basis”; and (c) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws,” particularly given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” Id. at 2–3. Finally, Secretary Nielsen wrote that although she was “keenly aware that DACA recipients have availed themselves of the policy in continuing their presence in this country,” she nonetheless “do[es] not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy and the other reasons [given] for ending [it].” Id. at 3.
4 Secretary Nielsen replaced Acting Secretary Duke as Secretary of Homeland Security on December 6, 2017.
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In July, following the issuance of the Nielsen Memo, the government filed the instant motion to revise the Court’s April 24, 2018 order. According to the government, the Nielsen Memo demonstrates that DHS’s September 2017 decision to rescind DACA was neither subject to judicial review nor arbitrary and capricious. See Gov’t’s Mot. at 1–2. This is so, the government contends, because Secretary Nielsen’s articulation of “serious doubts” regarding DACA’s legality, see id. at 5–13, as well as her “additional” discussion of enforcement-policy concerns, see id. at 14–16, “confirm[]” that the rescission was both an exercise of enforcement discretion (as opposed to a legal judgment) and, at a minimum, reasonable, id. at 1. Thus, the government asks the Court either to dismiss all of plaintiffs’ claims (including their constitutional claims) or to enter judgment in its favor. See id. at 18–19. Finally, the government states that, if the Court denies the motion, it intends to seek “a further continuation of the stay of the vacatur order,” either “to consider seeking a stay pending appeal or to give DHS time to appropriately prepare” to accept new DACA applications, “which DHS has generally not accepted since September 5, 2017.” Id. at 19 n.4.
Plaintiffs offer several arguments in response. First, they contend, the Court should not even consider Secretary Nielsen’s memorandum, because it is not “the new agency action [the] Court anticipated [DHS] might take” during the ninety-day stay-of-vacatur period. See Pls.’ Opp’n to Defs.’ Mot. to Revise the Court’s Apr. 24, 2018 Order (“Pls.’ Opp’n”) [ECF No. 75] at 3–8. Second, they argue that if the Court considers the Nielsen Memo at all, it should consider only the memorandum’s legal analysis, because the remainder of the memorandum offers impermissible post hoc rationalizations of DHS’s rescission decision. See id. at 8–10 (citing Food Mktg. Inst. v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978)). Third, they contend that even if the Court considers the Nielsen Memo in full, its arguments present no reason to reconsider the Court’s prior
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determination that DACA’s rescission was both judicially reviewable, see id. at 10–14, and

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

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

ANALYSIS

I.

THE COURT WILL CONSIDER THE NIELSEN MEMO

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

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

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

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

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

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

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

will therefore consider the Nielsen Memo.

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

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

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

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

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

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

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

5 Plaintiffs brand DHS’s failure to issue a new agency action as a “litigation tactic” that seeks to avoid “major consequences for the litigation pending in the Second and Ninth Circuits—which could potentially include, among other things, triggering remands to the district courts or raising possible mootness questions and prompting new complaints.” Pls.’ Opp’n at 1, 8.
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(“[W]hile courts do sometimes solicit further explanation of an action before deciding whether it is arbitrary and capricious, that is not what this Court did here.”).
But neither Judge Silberman’s opinion in Checkosky nor any of the other cases on which plaintiffs rely go so far. Rather, Judge Silberman explained that “courts will often . . . pause before exercising full judicial review and remand to the agency for a more complete explanation” and noted that “[i]n many of these cases”—but not all of them—courts “make clear” that they “have not found the agency action to be arbitrary and capricious.” Checkosky, 23 F.3d at 463 (opinion of Silberman, J.) (emphasis added); see, e.g., City of Charlottesville v. FERC, 661 F.2d 945, 954 (D.C. Cir. 1981) (reversing an agency’s orders because they “were not based upon substantial evidence” and remanding for further proceedings); id. at 955 (Wald, J., concurring) (urging the agency “on remand to attempt a clearer articulation and reconciliation of its” apparently contradictory explanations for its orders). Thus, although it may be true that courts usually consider additional explanation before invalidating an agency’s action, plaintiffs cite no authority for the proposition that courts must maintain this order of operations. Indeed, such a rule would be inconsistent with the district courts’ broad discretion to reconsider their decisions before they become final. See Fed. R. Civ. P. 54(b); AARP v. EEOC, 292 F. Supp. 3d 238, 241 n.1 (D.D.C. 2017) (“[A] district court order remanding a case to an agency for significant further proceedings is not final.” (quoting Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000))).
Here, the Court gave DHS ninety days to remedy the deficiencies in its September 2017 rescission decision. Although plaintiffs are correct that the Court’s opinion and order anticipated
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that DHS would do so by way of a new agency action (if it did so at all),6 the Court will not disregard Secretary Nielsen’s memorandum simply because she chose a somewhat different path. Instead, the Court will treat the memo as what it purports to be: a “further explanation” of the rescission decision, Nielsen Memo at 1, which the government contends forms a basis for revising the Court’s April 2018 order. Likewise, the Court will construe the government’s motion for a revised order as a motion for reconsideration of the Court’s April 2018 decision. See Gov’t’s Reply at 3 n.2 (proposing that, “[a]t a minimum, the Court could simply reconsider its [April 2018] Order”); Fed. R. Civ. P. 54(b) (district courts may “revise[]” nonfinal decisions “at any time” prior to the entry of final judgment). II. MOST OF THE NIELSEN MEMO’S ARGUMENTS ARE NOT POST HOC RATIONALIZATIONS
Next, plaintiffs contend that the Court should disregard “nearly the entire Nielsen Memo” because none of the justifications it offers—aside from DACA’s purported illegality—were articulated by Acting Secretary Duke in her initial September 5, 2017 memorandum rescinding the DACA program (the “Duke Memo”), J.A. [ECF No. 60] at 252–56. Pls.’ Opp’n at 8–10. With one notable exception, the Court disagrees. Although many of the Nielsen Memo’s rationales are quite attenuated from those offered in the Duke Memo and its supporting documentation, only one is so far afield as to constitute an impermissibly post hoc rationalization for DACA’s rescission.
Although “post hoc rationalizations ‘have traditionally been found to be an inadequate basis for review’ of agency decisions,” the D.C. Circuit has clarified that this rule “does not
6 See Apr. 24, 2018 Order at 2 (directing the parties to inform the court as to whether DHS had “issued a new decision rescinding DACA”); NAACP, 298 F. Supp. 3d at 246 (deferring ruling on plaintiffs’ constitutional claims in part because DHS “could, on remand, alter DACA’s rescission in ways that might affect the merits of plaintiffs’ constitutional claims”); see also Pls.’ Opp’n at 5 (“[T]he import of this Court’s stay was not that the agency should take another crack at defending the Duke Memo, but that the agency should be afforded an opportunity to replace its void decision seamlessly with a new one.”).
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prohibit [an agency] from submitting an amplified articulation” of the reasons for its decision following a remand. Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations omitted). Indeed, the rule’s purpose is simply to prevent courts from considering “rationales offered by anyone other than the proper decisionmakers,” such as those appearing “for the first time in litigation affidavits and arguments of counsel”; it is not meant to be “a time barrier which freezes an agency’s exercise of its judgment . . . and bars it from further articulation of its reasoning.” Id. (citation omitted). Hence, when faced with an explanation offered for the first time on remand, a court must determine whether it is an “amplified articulation” of the agency’s prior reasoning (which must be considered), Alpharma, 460 F.3d at 6 (citation omitted), or instead “a new reason for why the agency could have” taken the action (which must be disregarded), Delta Air Lines, Inc. v. Export–Import Bank of U.S., 85 F. Supp. 3d 436, 453 (D.D.C. 2015); see Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 217 n.8 (D.C. Cir. 2013) (stating that an agency’s further explanation on remand “must be more than a barren exercise of supplying reasons to support a pre-ordained result” (citation omitted)).
Here, plaintiffs argue that the bulk of the Nielsen Memo falls in the latter category. Specifically, they contend, Secretary Nielsen’s assertion of “serious doubts” about DACA’s legality “does not amplify or explicate” the Duke Memo’s prediction that DACA would be abruptly enjoined in the Texas litigation; rather, “it silently abandons it.” Pls.’ Opp’n at 10. Similarly, plaintiffs argue that the various “purported ‘reasons of enforcement policy’” raised in the Nielsen Memo “have no foundation in the Duke Memo at all.” See id.
Plaintiffs overstate the novelty of the Nielsen Memo’s arguments. Although the Nielsen Memo certainly expands on the Duke Memo’s points, most of its arguments are not so detached
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from the earlier document as to appear post hoc. For example, the Nielsen Memo contends that “serious doubts” about DACA’s legality could “undermine public confidence in . . . the rule of law” and lead to “burdensome litigation.” Nielsen Memo at 2. Similarly, the Duke Memo expressly relied on a September 4, 2017 letter from Attorney General Jeff Sessions (the “Sessions Letter”), see J.A. at 254–55, which cited “the costs and burdens” associated with rescinding DACA in response to “potentially imminent litigation,” and opined that “[p]roper enforcement of our immigration laws is . . . critical . . . to the restoration of the rule of law in our country,” J.A. at 251. The Nielsen Memo’s “serious doubts” rationale strikes this Court as a permitted amplification, rather than a prohibited post hoc rationalization, of these statements in the Sessions Letter.
The same is true of the Nielsen Memo’s remaining “policy” justifications (again, save one). Like the Nielsen Memo, which faults DACA for protecting a class of aliens whom Congress has “repeatedly considered but declined to protect,” Nielsen Memo at 2, the Duke Memo relied on “Congress’s repeated rejection of proposed legislation that would have accomplished a similar result” as DACA, J.A. at 254. Similarly, the Nielsen Memo’s concerns about “individualized, case-by-case” discretion, Nielsen Memo at 3, parallel the Duke Memo’s observation that DACA was “meant to be applied only on an individualized case-by-case basis” and that DHS “has not been able to identify specific denial cases . . . based solely upon discretion,” J.A. at 253.
The same cannot be said, however, about the Nielsen Memo’s concern with “project[ing] a message” to noncitizen children (and their parents) who would attempt to enter the United States unlawfully. Nielsen Memo at 3. Nothing in the Duke Memo or the Sessions Letter even remotely parallels the Nielsen Memo’s discussion of a “pattern” of illegal immigration by minors, and neither document mentions the “tens of thousands of minor aliens [who] have illegally crossed or
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been smuggled across our border in recent years,” id. Indeed, the closest either document comes is the Sessions Letter’s assertion that “[p]roper enforcement of our immigration laws is . . . critical to the national interest,” J.A. at 251, but this statement is far too vague—on some level, nearly any policy statement could be seen as an explication of an agency’s view of the “national interest.” Consequently, the Court will decline to consider the Nielsen Memo’s “messaging” rationale, which appears for the first time on remand and is therefore impermissibly post hoc. See Food Mktg. Inst., 587 F.2d at 1290 (“Post-hoc rationalizations by the agency on remand are no more permissible than are such arguments when raised by appellate counsel during judicial review.”).7
In sum, although none of the Nielsen Memo’s rationales for DACA’s rescission relate back perfectly to the Duke Memo’s, only one—the messaging rationale—is so attenuated as to comprise “a new reason for why the agency could have” rescinded DACA. Delta Air Lines, 85 F. Supp. 3d at 453. The Court will therefore consider all of the Nielsen Memo except its messaging rationale. III. THE NIELSEN MEMO PROVIDES NO REASON TO REVISE THE COURT’S EARLIER
DETERMINATION THAT DACA’S RESCISSION WAS SUBJECT TO JUDICIAL REVIEW This Court previously held that DHS’s September 2017 decision to rescind the DACA program was subject to judicial review despite the APA’s exception for “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see NAACP, 298 F. Supp. 3d at 234. This was so, the Court explained, because although the Supreme Court has held enforcement decisions to be “presumptively unreviewable,” NAACP, 298 F. Supp. 3d at 234 (citing Heckler v. Chaney, 470 U.S. 821, 832–33 (1985)), the D.C. Circuit recognizes an exception for “general enforcement polic[ies]” that “rel[y] solely on the agency’s view of what the law requires,” id. (first
7 Of course, had Secretary Nielsen opted to issue a new decision rescinding DACA, the explanations offered in her memorandum would be contemporaneous and, consequently, not post hoc. She did not do this, however.
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citing OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 812 (D.C. Cir. 1998); and then citing Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994)).8 This rule
reflects the commonsense notion that “an otherwise reviewable” legal interpretation “does not
become presumptively unreviewable simply because the agency characterizes it as an exercise of
enforcement discretion.” Id. at 231.
The Court held that DACA’s rescission was reviewable under this exception because it was
“predicated on DHS’s legal determination that the program was invalid when it was adopted.” Id.
at 233. The Court rejected what it took to be the government’s attempt to distinguish between an
agency’s “interpretation of a specific statutory provision” (which the government conceded was
reviewable) and its “conclusion that it lacks statutory authority” (which the government contended
was unreviewable), explaining that “[t]o say that a particular agency action is ‘without statutory
authority’ is simply to say that no statutory provision authorizes that action.” Id. at 232 (citing City of Arlington v. FCC, 569 U.S. 290, 299–300 (2013)).9 The Court also rejected the
government’s reliance on what it had termed “litigation risk”—that is, the adverse consequences
that would follow if DACA were struck down in litigation—explaining that “Crowley would be a
dead letter” if an agency “could insulate from judicial review any legal determination simply by
8 The D.C. Circuit’s recent decision in CREW v. FEC confirms this Court’s reading of Circuit law. See 892 F.3d 434, 441 n.11 (D.C. Cir. 2018) (“[I]f [an agency] declines to bring an enforcement action on the basis of its interpretation of [a statute], the [agency’s] decision is subject to judicial review.”).
9 In its present motion, DHS attempts to relitigate this issue, contending that “Secretary Nielsen’s further explanation of DACA’s questionable legality also underscores why Crowley does not permit judicial review of an enforcement decision simply because that decision rests on a legal rationale.” Gov’t’s Mot. at 7. Once again, DHS attempts to draw a “distinction between the non-reviewability of an enforcement decision, and the potential reviewability of the supporting rationale on its own terms,” id. at 8, and contends that “even if a general legal rationale in the Duke or Nielsen Memos could be carved out for review on its own terms, that would not justify reviewing the enforcement decision to rescind DACA itself,” id. at 9. But the Court rejects this novel proposition. As the D.C. Circuit has recently confirmed, although “[t]he law of this circuit ‘rejects the notion of carving reviewable legal rulings out from the middle of non-reviewable actions,” CREW, 892 F.3d at 442 (citation omitted), an agency action is not “non-reviewable” in the first place if it is “based entirely on its interpretation of the statute,” id. at 441 n.11.
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framing it as an enforcement policy” and then tacking on a boilerplate assertion that “a court would likely agree with the agency’s interpretation.” Id. at 233.
Neither the Nielsen Memo nor the government’s motion provides a sufficient basis for reconsidering the Court’s earlier determination that DACA’s rescission was judicially reviewable. To start with, Secretary Nielsen makes clear that her decision not to disturb DACA’s rescission is predicated first and foremost on her view that “the DACA policy was contrary to law.” Nielsen Memo at 2. Thus, this case continues to be like Crowley and OSG: at bottom, it involves an enforcement policy that is predicated on the agency’s view of what the law requires.
Nor do the Nielsen Memo’s remaining rationales immunize from judicial review DHS’s decision to rescind DACA. The first of these revolves around Secretary Nielsen’s “serious doubts about [DACA’s] legality,” which she says would lead her to rescind the policy regardless of “whether the courts would ultimately uphold it or not.” Id. These doubts, Secretary Nielsen explains, raise concerns like “the risk that such policies may undermine public confidence in and reliance on the agency and the rule of law, and the threat of burdensome litigation that distracts from the agency’s work.” Id. According to the government, this rationale renders DACA’s rescission unreviewable because it “cannot be meaningfully distinguished from other ‘bona fide discretionary reasons’ that this Court found acceptable” in its prior opinion, “such as an agency’s fear that ‘negative publicity . . . would undermine the policy’s effectiveness.’” Gov’t’s Mot. at 7 (quoting NAACP, 298 F. Supp. 3d at 233).
But as the Court’s opinion explained in the very next paragraph, it is difficult to conclude that such policy assertions are “bona fide” when they are accompanied by an assertion from the
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agency that its longstanding policy is “unlawful.” NAACP, 298 F. Supp. 3d at 233.10 In this respect, the “serious doubts” rationale suffers from the same defect as the “litigation risk” rationale: accepting it here would permit agencies to insulate their legal judgments from judicial review simply by couching them as enforcement policies and then adding a boilerplate assertion that any other course of action would lead to litigation and undermine confidence in the rule of law. Judicial review of agency legal determinations cannot be so easily evaded.
Next, the Nielsen Memo asserts a handful of “sound reasons of enforcement policy” that it argues would justify DACA’s rescission “regardless of whether . . . the DACA policy [is] illegal or legally questionable.” Nielsen Memo at 2. First among these is the memo’s claim that, “if a policy concerning the ability of this class of aliens to remain in the United States is to be adopted, it should be enacted legislatively.” Id. at 3. But the Court rejected the government’s reliance on this argument in its prior opinion, concluding that the government had failed to explain why “an agency’s view as to which branch of government ought to address a particular policy issue is an assessment appropriately committed to the agency’s discretion.” NAACP, 298 F. Supp. 3d at 243 n.28. Like the litigation-risk and substantial-doubts rationales, then, this legislative-inaction rationale is simply another legal determination dressed up as a policy judgment, and it cannot render DACA’s rescission immune from judicial review.
The memo’s second “policy” justification asserts that “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-bycase basis.” Nielsen Memo at 3. This is so, Secretary Nielsen claims, not because “a categorical
10 While the Court’s opinion did not suggest that an agency cannot rescind a policy in response to an adverse court judgment notwithstanding the agency’s continued belief in the policy’s legality, it did suggest that where (as here) the agency rescinds a policy after doing an about-face as to its legality, “there are reasons to be more suspicious.” NAACP, 298 F. Supp. 3d at 233.
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deferred-action policy” like DACA raises legal or constitutional concerns—as previously argued—but rather because such a policy “tilts the scales significantly and has the practical effect of inhibiting assessments of whether deferred action is appropriate in a particular case.” Id. In essence, the Secretary claims that even though DACA “on its face . . . allow[s] for individual considerations,” id., it should nonetheless be rescinded because its programmatic nature somehow misleads those charged with its implementation into applying it categorically.
As an initial matter, this rationale strikes the Court as specious. It would be one thing for a challenger other than DHS to claim that although DACA calls for case-by-case discretion in theory, its application is categorical in practice. Indeed, this argument was made by the plaintiffs in the Texas litigation. See Texas v. United States, 809 F.3d 134, 171–72 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem). But when made by the agency itself, the argument becomes a non sequitur: if Secretary Nielsen believes that DACA is not being implemented as written, she can simply direct her employees to implement it properly. An agency head cannot point to her own employees’ misapplication of a program as a reason for its invalidity.
Specious though it may be, this rationale nonetheless presents as the sort of policy consideration that, when offered as an independent reason for adopting a general enforcement policy, might foreclose judicial review. When viewed in the broader context of this litigation, however, this rationale reveals itself to be yet another attempt to disguise an objection to DACA’s legality as a policy justification for its rescission.
Throughout the litigation over DAPA and DACA, the programs’ challengers have consistently claimed that although DACA “facially purports to confer discretion,” in practice deferred action was categorically granted to anyone who met the program’s eligibility criteria.
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Texas, 809 F.3d at 171–72. This argument was offered by the Texas plaintiffs as a reason that DAPA should have undergone notice-and-comment rulemaking, see id., and by the government in this case as a reason to uphold DHS’s conclusion that DACA was unlawful, see Reply in Supp. of Defs.’ Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. [ECF No. 55] at 22 (“While [the Fifth Circuit’s] finding [that DACA was applied categorically] had to be ‘extrapolated’ to invalidate DAPA, it directly dooms DACA itself . . . .” (citation omitted)). Likewise, the Duke Memo cast DACA’s alleged categorical application as an issue of lawfulness, explaining that deferred action was “meant to be applied only on an individualized case-by-case basis,” not to “confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” See J.A. at 253. Even a 2014 memorandum by the Office of Legal Counsel (the “OLC Memo”) cautioned that “it was critical that . . . the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.” J.A. at 21 n.8.
Taken in context, then, Secretary Nielsen’s claim that rescinding DACA would further her policy objective of ensuring the distribution of deferred action grants on a “case-by-case” basis is simply a repackaging in policy terms of an oft-repeated objection to DACA’s lawfulness. And while a remand provides an agency the opportunity to elaborate on its prior positions in good faith, it is not an opportunity for the agency to alter those positions—particularly where the chief design of doing so appears to be to defeat judicial review. The Court therefore concludes that the Nielsen Memo’s individualized-discretion rationale does not preclude judicial review here.
Finally, the memo asserts that “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration
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laws,” particularly given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” Nielsen Memo at 3. As the Court has already explained, this rationale is a post hoc rationalization and hence is not entitled to consideration on remand. See Food Mktg. Inst., 587 F.2d at 1290. But even if the Court were to consider this rationale, it would not immunize DACA’s rescission from judicial review.
With this messaging rationale, Secretary Nielsen finally articulates (albeit in a single sentence) what might be properly characterized as a policy reason for DACA’s rescission: a judgment that DACA’s benefits—whatever they may be—are outweighed by the fact that, in Secretary Nielsen’s view, the policy encourages noncitizen children and their parents to enter the United States illegally. Of course, this rationale is not without its logical difficulties: after all, DACA is available only to those individuals who have lived in the United States since 2007, see NAACP, 298 F. Supp. 3d at 216, so the “tens of thousands of minor aliens” who Secretary Nielsen asserts have illegally entered the United States “in recent years” would not even be eligible under the program. But no matter. The question for reviewability purposes is not whether the rationale makes sense, but rather whether it transforms DACA’s rescission from a decision based “solely on [DHS’s] belief that it lacks jurisdiction,” Chaney, 470 U.S. at 833 n.4, into a decision based on “factors which are peculiarly within [DHS’s] expertise,” such as “whether the particular enforcement action requested best fits the agency’s overall policies,” id. at 831.
Even if the messaging rationale were sufficiently grounded in the Duke Memo so as to be an amplification rather than a post hoc rationalization, ultimately it would still be too little, too late. Although the Nielsen Memo states several paragraphs earlier that each of its reasons is “separate and independently sufficient” to support DACA’s rescission, Nielsen Memo at 1, the
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document’s cursory discussion of the messaging rationale—which is articulated in a single sentence on the last page of the three-page memorandum—does not support this assertion. See NAACP, 298 F. Supp. 3d at 233–34 (noting that, in Chaney, the agency took the position that “even if it had jurisdiction, it would still decline to act pursuant to its ‘inherent discretion to decline to pursue certain enforcement matters’” (quoting Chaney, 470 U.S. at 824–25)). The Court would not conclude that this solitary sentence in the Nielsen Memo wholly transmutes the explanation for DACA’s rescission from an issue of law into an issue of policy.
In any case, the Court need not reach this conclusion because, as it has already explained, the messaging rationale is merely a post hoc rationalization of DACA’s rescission. And because, as explained above, the other rationales offered by the Nielsen Memo are “insufficiently independent from the agency’s evaluation of DACA’s legality” to defeat review, id. at 235, the Court declines to reverse its prior conclusion that DACA’s rescission is reviewable. The government’s motion for reconsideration will therefore be denied as to reviewability. IV. THE NIELSEN MEMO PROVIDES NO REASON TO REVISE THE COURT’S EARLIER
DETERMINATION THAT DACA’S RESCISSION WAS ARBITRARY AND CAPRICIOUS The Court now turns to whether the Nielsen Memo provides a basis for revising the Court’s prior determination that DACA’s rescission was arbitrary and capricious. See id. at 237–43. As explained below, it does not. Most glaringly, the Nielsen Memo provides almost no meaningful elaboration on the Duke Memo’s assertion that DACA is unlawful. The Nielsen Memo again ignores the 2014 OLC Memo laying out a comprehensive framework for evaluating the lawfulness of nonenforcement policies in the immigration context, see J.A. at 4–36—an omission that plaintiffs properly characterize as “mystifying,” Pls.’ Opp’n at 18, given the Court’s prior emphasis on the document, see NAACP,
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298 F. Supp. 3d at 239 & n. 22.11 Instead, like the Duke Memo before it, the Nielsen Memo relies
primarily on the one-page Sessions Letter and on the Fifth Circuit’s ruling in the DAPA litigation.
See Nielsen Memo at 2. But as this Court has already said, the Sessions Letter’s conclusory legal
assertions are themselves inadequately explained, and the Fifth Circuit’s analysis in the DAPA
case is “inapposite” here given the meaningful distinctions between DAPA and DACA, which
include DAPA’s open-ended nature, broad scope, and apparent conflict with express provisions of
the INA. See NAACP, 298 F. Supp. 3d at 238–40 (citing Texas, 809 F.3d at 179).
In response, Secretary Nielsen states that “[a]ny arguable distinctions between the DAPA
and DACA policies are not sufficiently material to convince me that the DACA policy is lawful.”
Nielsen Memo at 2. But she does not explain why. Secretary Nielsen also asserts that the Fifth
Circuit’s DAPA ruling was based not on any particular statutory conflict, but rather on DAPA’s
“incompatibility . . . with the INA’s comprehensive scheme.” Id. But as plaintiffs correctly point
out, see Pls.’ Opp’n at 15–16, even if this were an accurate characterization of the Fifth Circuit’s
opinion,12 the Nielsen Memo offers no clue as to how an agency official, a court, or anyone else
would go about determining whether a particular nonenforcement policy meets Secretary Nielsen’s
11 As was true with respect to the Duke Memo, the mere fact that the OLC Memo appears in the administrative record, even when combined with the Nielsen Memo’s statement that Secretary Nielsen has “considered . . . the administrative record,” Nielsen Memo at 1, does not amount to meaningful consideration for purposes of the APA. Nor does the Court agree that “the OLC Memo has little significance, especially given that its analysis as to DAPA was later rejected by the Fifth Circuit (in a decision affirmed by an equally divided Supreme Court) as well as by the Attorney General.” Gov’t’s Mot. at 13. For one thing, the Fifth Circuit did not expressly disapprove the OLC Memo; indeed, the one time it mentioned the memo, it cited it as an authoritative source. See Texas, 809 F.3d at 184 n.197. And in any case, to the extent that the panel majority’s analysis in Texas was inconsistent with OLC Memo, its decision was affirmed by an equally divided Supreme Court and so is not binding outside of the Fifth Circuit. See Nichols v. United States, 511 U.S. 738, 750 (1994) (Souter, J., concurring in the judgment) (noting that “a decision . . . by an equally divided [Supreme] Court” is “entitled to no precedential value”). Similarly, the one-page Sessions Letter did not directly address the OLC Memo or expressly overrule its analysis. J.A. at 251.
12 But see Texas, 809 F.3d at 184 n. 197 (“[O]ur conclusion turns on whether the INA gives DHS the power to create and implement a sweeping class-wide rule changing the immigration status of the affected aliens without full notice-and-comment rulemaking, especially where—as here—the directive is flatly contrary to the statutory text.” (emphasis added)).
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test for “compatibility” with the overall statutory scheme. Thus, like the Duke Memo before it, the Nielsen Memo offers nothing even remotely approaching a considered legal assessment that this Court could subject to judicial review.
Nor do the Nielsen Memo’s remaining rationales persuade the Court to revise its prior conclusion that DACA’s rescission was arbitrary and capricious. As the Court has already indicated, those rationales carry varying degrees of persuasive force, and some may fall below the APA’s standard of rationality. But as the D.C. Circuit has explained, “[w]here . . . an agency has set out multiple independent grounds for a decision,” courts will uphold that decision “so long as any one of the grounds is valid, unless it is demonstrated that the agency would not have acted on that basis if the alternative grounds were unavailable.” Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (citation omitted).
Here, Secretary Nielsen states in a somewhat conclusory fashion that each of the grounds offered in her memo is “independently sufficient” to support DACA’s rescission. Nielsen Memo at 1. The Court is skeptical of this assertion, particularly given its conclusion that three of those grounds—the substantial-doubts, legislative-inaction, and individualized-discretion rationales— simply recapitulate the Secretary’s inadequately explained legal assessment, and that the remaining ground—projecting a message to would-be illegal immigrants—appears nowhere in the Duke Memo and is therefore post hoc. Even assuming that these rationales are indeed independent and that at least one is sufficiently rational to survive APA review, however, DACA’s rescission would still be arbitrary and capricious because the Nielsen Memo—like the Duke Memo before it—fails to engage meaningfully with the reliance interests and other countervailing factors that weigh against ending the program. See NAACP, 298 F. Supp. 3d at 240.
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Although this time around the Nielsen Memo at least “acknowledge[s] how heavily DACA beneficiaries had come to rely on” the program, id., it does little more than that. Instead of considering DACA’s benefits to DACA recipients and to society at large, see Pls.’ Opp’n at 19– 20, Secretary Nielsen simply states that “the asserted reliance interests” are outweighed by DACA’s “questionable legality . . . and the other reasons for ending the policy,” and then goes on to suggest that she should not even have to consider those interests. See id. (asserting that “issues of reliance would be best considered by Congress”). However, it is not up to Secretary Nielsen— or even to this Court—to decide what she should or should not consider when reversing agency policy. Rather, the requirements are set by the APA, as interpreted by the Supreme Court: “When an agency changes its existing position, it . . . must . . . be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016).
Like the Duke Memo, the Nielsen Memo demonstrates no true cognizance of the serious reliance interests at issue here—indeed, it does not even identify what those interests are. “It would be arbitrary and capricious to ignore such matters,” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015) (citation omitted), and it is so here. Nor, given the inadequacy of the Nielsen Memo’s explanation of why DACA is unlawful, can the Court accept as sufficient its bare determination that any reliance interests are outweighed by “the questionable legality of the DACA policy and the other” fatally intertwined reasons listed in the memo. Nielsen Memo at 3. Because the Nielsen Memo fails to provide an adequate justification for the decision to rescind DACA— much less the “more substantial justification” that the APA requires when an agency’s “prior
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policy has engendered serious reliance interests,” Perez, 135 S. Ct. at 1209—the Court sees no reason to change its earlier determination that DACA’s rescission was arbitrary and capricious.
CONCLUSION For the foregoing reasons, the Court again concludes that DHS’s September 2017 decision to rescind the DACA program, as now explained in the Duke and Nielsen Memos, was both subject to judicial review and arbitrary and capricious. The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again. Consequently, the government’s motion to reconsider the Court’s April 24, 2018 order will be denied. Per the government’s request, however, the Court will continue the stay of its order of vacatur for a brief period—twenty days—to permit the government to determine whether it intends to appeal the Court’s decision and, if so, to seek a stay pending appeal. In all other respects, the Court’s April 24, 2018 order will remain in force. Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not
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do. The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.13 A separate order has been issued on this date.

Dated: August 3, 2018

/s/
JOHN D. BATES United States District Judge

13 The Court also notes that the propriety of so-called nationwide injunctions, such as the ones issued by district courts in California and New York in related litigation, has recently been called into question. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (noting but declining to address the issue); City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018) (concluding that the district court did not “abuse[] its discretion in determining that the scope of the injunction should be nationwide”), reh’g granted, No. 17-2991 (7th Cir. June 4, 2018) (granting rehearing en banc “only as to the geographic scope of the preliminary injunction entered by the district court”). That debate is not implicated here, however, where the Court is vacating an agency action pursuant to the APA, as opposed to enjoining it as a violation of the Constitution or other applicable law. See 5 U.S.C. § 706(2)(A) (“The reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).
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 Case 1:17-cv-01907-JDB Document 32 Filed 08/17/18 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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

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

MEMORANDUM OPINION Before the Court is [82] the government’s motion for a stay pending appeal of [69] the April 24, 2018 order vacating the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program and [77] the August 3, 2018 order denying reconsideration of the April 24, 2018 order. Also before the Court is [81] the government’s unopposed motion for clarification that the August 3, 2018 order was a final, appealable judgment. The government seeks a stay of the Court’s orders in their entirety or, in the alternative, at least insofar as they require the Department of Homeland Security (“DHS”) to begin accepting applications for initial grants of DACA benefits and for advance parole under the DACA program. See Defs.’ Mot. for a Stay Pending Appeal (“Gov’t’s Mot.”) [ECF No. 82] at 1–2. Plaintiffs

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oppose the government’s motion in part, urging the Court not to stay its orders in their entirety,

but agreeing that a stay as to initial DACA applications would be proper. See Pls.’ Partial Opp’n

to Defs.’ Mot. for Stay Pending Appeal (“Pls.’ Opp’n”) [ECF No. 83] at 1 (recognizing that “an

imperfect ‘status quo’—no new applicants, but renewals continue—has developed”). For the

reasons that follow, the government’s motion to clarify will be granted, and its motion for a stay

pending appeal will be granted in part. The Court will stay its order as to new DACA applications

and applications for advance parole, but not as to renewal applications.

The Court is mindful that continuing the stay in this case will temporarily deprive certain

DACA-eligible individuals, and plaintiffs in these cases, of relief to which the Court has concluded

they are legally entitled. But the Court is also aware of the significant confusion and uncertainty

that currently surrounds the status of the DACA program, which is now the subject of litigation in

multiple federal district courts and courts of appeals. Because that confusion would only be

magnified if the Court’s order regarding initial DACA applications were to take effect now and

later be reversed on appeal, the Court will grant a limited stay of its order and preserve the status

quo pending appeal, as plaintiffs themselves suggest.

I.

MOTION FOR STAY PENDING APPEAL

Under Federal Rule of Civil Procedure 62(c), district courts generally have the authority to

stay their orders pending appeal. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In determining

whether to grant such a stay, courts consider four factors: “(1) whether the stay applicant has made

a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other

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parties interested in the proceeding; and (4) where the public interest lies.” Id.; see also Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 842–43 (D.C. Cir. 1977).
Traditionally, courts in this Circuit have considered these factors on a “‘sliding scale,’ whereby ‘a strong showing on one factor could make up for a weaker showing on another.’” Cigar Ass’n of Am. v. FDA, Civil Action No. 16-1460, 2018 WL 3304627, at *3 (D.D.C. July 5, 2018) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)). Although recent decisions of the Supreme Court have called this approach into question,1 “the district judges in this Circuit continue to adhere to binding precedent and apply the sliding scale approach to determine whether a movant is entitled to an injunction pending resolution of its appeal,” id. (collecting cases), and plaintiffs do not dispute the propriety of that approach here, see Pls.’ Opp’n at 2 n.1. Thus, if “the three other factors strongly favor issuing” a stay, then the government “need only raise a ‘serious legal question’ on the merits” for that stay to issue. Cigar Ass’n of Am., 2018 WL 3304627, at *3 (quoting Aamer, 742 F.3d at 1043); see also Holiday Tours, 559 F.2d at 843 (“[A] court, when confronted with a case in which the other three factors strongly favor interim relief[,] may exercise its discretion to grant a stay if the movant has made a substantial case on the merits.”).
As to the first factor, the Court finds that the government’s appeal raises “serious legal question[s].” Aamer, 742 F.3d at 1043. Those questions include whether DHS’s decision to rescind DACA was subject to judicial review under the Administrative Procedure Act (“APA”), see 5 U.S.C. § 701(a)(2) (exempting from APA review “agency action [that] is committed to agency discretion by law”), and, if so, whether that decision was arbitrary and capricious, see 5
1 See id. (noting that, following the Supreme Court’s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), a case that dealt with preliminary injunctive relief, “it remains an open question whether the ‘likelihood of success’ factor is an ‘independent, free-standing requirement’” (quoting Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014)).
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U.S.C. § 706(2)(A). Of course, this Court has already answered both questions in the affirmative: as the Court has explained at length elsewhere, DACA’s rescission was both reviewable and unlawful because it was based chiefly on a “virtually unexplained” conclusion that DACA was unlawful. NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 2018). Nevertheless, the government has assembled a “substantial case on the merits,” Holiday Tours, 559 F.2d at 843, and the fact that the Court has thus far been unpersuaded by that case does not preclude the issuance of a stay, see id. (“The court . . . may grant a stay even though its own approach may be contrary to [the] movant’s view of the merits.”); see also Jewish War Veterans of the U.S., Inc. v. Gates, 522 F. Supp. 2d 73, 79 (D.D.C. 2007) (granting a stay pending appeal where the nonmovant argued that a D.C. Circuit decision was “directly on point and controls the outcome of this case”).2
The remaining factors lend sufficient support to plaintiffs’ proposal for a limited stay pending appeal (i.e., as to initial DACA applications and applications for advance parole only) to render that stay appropriate in light of the government’s “substantial” legal case. See Cigar Ass’n of Am., 2018 WL 3304627, at *4. But they do not support the government’s request for a stay of the Court’s order in its entirety.
2 Many of the defects in the government’s merits case are apparent even in its motion for a stay pending appeal. For example, the government reiterates its illogical reading of Crowley Caribbean Transport, Inc. v. Peña, 37 F.3d 671 (D.C. Cir. 1994), whereby a court could reject “an enforcement decision’s supporting rationale” and yet be powerless to remedy the unlawful “enforcement decision itself,” Gov’t’s Mot. at 6. Similarly, the government relies on United Automobile Workers v. Brock, a decision that expressly acknowledged that “review might be available even for a nonenforcement decision” where, as here, “that decision is predicated solely on the agency’s interpretation of a statute” or other law. 783 F.2d 237, 245 n.10 (D.C. Cir. 1986) (emphasis added); see id. at 245 n.9 (declining to review the decision at issue in that case because there, unlike here, the agency’s “decision not to take enforcement action . . . was predicated on a combination of both statutory and discretionary grounds”). The government also continues to advance the flawed premise that Texas v. United States, 809 F.3d 134 (5th Cir. 2015), supports DACA’s rescission, this time “direct[ing]” the Court to the Fifth Circuit’s opinion as though it were somehow that court’s responsibility—and not DHS’s—to explain DHS’s decision to rescind the DACA program. Gov’t’s Mot. at 7.
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The second factor—the risk of irreparable injury to DHS—favors a stay, but only as to initial DACA applications and applications for DACA-based advance parole. The Court is unmoved by the government’s assertion of injury resulting from its being “enjoined from implementing an act of Congress.” Gov’t’s Mot. at 8. As the Court has already explained, DHS has been implementing that act of Congress (the Immigration and Nationality Act) under an illconsidered (and hence possibly incorrect) understanding of its enforcement authority. See NAACP, 298 F. Supp. 3d at 249. Unlike an injunction prohibiting the exercise of statutory authority altogether, see New Motor Veh. Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (concluding “that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury”), this Court’s order simply corrects the improper exercise of that authority. To the extent that such an injury is cognizable at all, it is insufficient to justify staying the Court’s order here.
The Court accepts, however, that the additional staff and other resources required for DHS to process initial DACA applications would constitute a cognizable injury. DHS estimates that full implementation of the Court’s order would lead to the filing of over 100,000 initial DACA applications and 30,000 requests for advance parole, which would in turn require the hiring of 72 temporary employees and the reassignment or hiring of 60 full-time employees. See Gov’t’s Mot. at 9–10. But these burdens apply only as to initial DACA applications, since DHS has been accepting renewal applications since mid-2012, with the exception of a brief period in late 2017
5

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and early 2018. See NAACP, 298 F. Supp. 3d at 218–20.3 The second factor therefore favors plaintiffs’ proposed limited stay, not the government’s full stay.
The third factor, the risk of injury to plaintiffs, again favors continuing the stay as to initial DACA applications and applications for advance parole, but not as to renewal applications. Although the government maintains that the termination of existing DACA benefits—which would immediately end DACA beneficiaries’ work authorizations and could lead to their removal from the United States—is not an irreparable harm, this untenable proposition has been rejected by this Court and by several others. See NAACP, 298 F. Supp. 3d at 245 (noting in the stay-of-vacatur context that “each day that the agency delays is a day that aliens who might otherwise be eligible for initial grants of DACA benefits are exposed to removal because of an unlawful agency action”); see also Regents of the U. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1046–47 (N.D. Cal. 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 434–35 (E.D.N.Y. 2018). And although there are currently two preliminary injunctions in place requiring DHS to continue accepting renewal applications, as the Court has previously noted, “those injunctions are both on expedited appeals and hence could be reversed in the not-too-distant future.” NAACP, 298 F. Supp. 3d at 245. This Court’s order—which, unlike the preliminary injunctions entered in parallel litigation, is a final judgment—will therefore prevent irreparable harm to plaintiffs and all current DACA beneficiaries should those other injunctions be reversed. Hence, it will not be stayed as to renewal applications.
By contrast, the Court agrees with the district court in Regents that “while plaintiffs have demonstrated that DACA recipients . . . are likely to suffer substantial, irreparable harm as a result
3 When DHS rescinded DACA in September 2017, it immediately stopped accepting new DACA applications but continued to accept certain renewal applications that were filed within the next thirty days. Id. at 218. Then, in January 2018, a district court in California ordered DHS to resume accepting renewal applications. Id. at 220.
6

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of the rescission, they have not made a comparable showing as to individuals who have never applied for or obtained DACA” benefits. 279 F. Supp. 3d at 1049; accord Batalla Vidal, 279 F. Supp. 3d at 437 (“As in Regents, . . . the court finds that the irreparable harms identified by Plaintiffs largely result from Defendants’ expected failure to renew existing grants of deferred action and especially work authorization, not from Defendants’ refusal to adjudicate new initial DACA applications.”). The same is true of advance parole. See Regents, 279 F. Supp. 3d at 1049 (concluding that “inability to travel abroad . . . do[es] not amount to [a] hardship[] justifying a provisional injunction requiring DHS to resume accepting applications for advance parole”); Batalla Vidal, 279 F. Supp. 3d at 437 (citing Regents, 279 F. Supp. 3d at 1048–49). Thus, like the second factor, the third factor supports a stay as to initial DACA applications and applications for advance parole, but not as to renewal applications.
The fourth and final factor—the public interest—also favors this limited stay. The Court has already recognized the disruption that would ensue if DHS were to begin accepting initial DACA applications pursuant to the Court’s order but that order were later reversed on appeal. See NAACP, 298 F. Supp. 3d at 244–45 (citing Allied–Signal, Inc. v. U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)). Just as this potential for disruption previously counseled in favor of a 90-day stay of the Court’s order of vacatur, see id., it now suggests that the public interest would be served by a stay pending appeal as to initial DACA applications. Like the second and third factors, however, this fourth factor does not support a stay as to renewal applications, since DHS is already accepting those applications.
In sum, because the government’s appeal raises “serious legal questions,” and because the remaining factors—harm to DHS, harm to DACA beneficiaries, and the public interest—favor a
7

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stay of the Court’s order of vacatur as to initial DACA applications and applications for DACAbased advance parole, the Court will grant the government’s request for a stay as to those applications. But because the three equitable factors do not favor a stay as to applications for the renewal of DACA benefits, pursuant to the “sliding scale” approach employed in this Circuit, Cigar Ass’n of Am., 2018 WL 3304627, at *3, the Court will not stay its order as to renewal applications. And the Court notes again that plaintiffs agree to this limited stay of the Court’s order pending appeal. See Pls.’ Opp’n at 15–16.
II. MOTION FOR CLARIFICATION Finally, the government has moved for clarification that the Court’s August 3, 2018 order was a final, appealable judgment. See Defs.’ Mot. for Clarification Regarding Entry of Final Judgment (“Gov’t’s Mot. for Clarification”) [ECF No. 81] at 2–3. The government also seeks an order dismissing plaintiffs’ constitutional challenges to DACA’s rescission as moot. See id. at 3. Plaintiffs oppose the dismissal of their constitutional claims but agree that the Court’s August 3, 2018 order is final and appealable. See id. at 3 n.2. Initially, the Court deferred ruling on plaintiffs’ constitutional challenges to DACA’s rescission pending DHS’s response to the April 24, 2018 order vacating DACA’s rescission on administrative grounds. See NAACP, 298 F. Supp. 3d at 246 (explaining that DHS “could, on remand, alter DACA’s rescission in ways that might affect the merits of plaintiffs’ constitutional claims”). Because the Court has since declined to reconsider its April 24, 2018 order, a decision on plaintiffs’ constitutional challenges to DACA’s rescission is unnecessary. See Alabama Power Co. v. EPA, 40 F.3d 450, 456 (D.C. Cir. 1994) (declining to address a claim rendered moot by the court’s vacatur of the agency’s action). Moreover, the Court has already entered final judgment
8

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on plaintiffs’ remaining administrative and constitutional claims. See NAACP, 298 F. Supp. 3d at 249. Thus, the Court’s August 3, 2018 order denying reconsideration “adjudicat[ed] all the claims and all the parties’ rights and liabilities” in this action and was therefore a final, appealable order. Fed. R. Civ. P. 54(b).
* * * For the foregoing reasons, the government’s motion for a stay pending appeal will be granted in part, and the Court will stay its order of vacatur as it applies to initial DACA applications and applications for DACA-based advance parole. The government’s motion to clarify will also be granted. A separate order has been issued on this date.

Dated: August 17, 2018

/s/
JOHN D. BATES United States District Judge

9

 
 No.
In the Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS
v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE D.C. CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
NOEL J. FRANCISCO Solicitor General Counsel of Record
JOSEPH H. HUNT Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
JONATHAN Y. ELLIS Assistant to the Solicitor General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTIONS PRESENTED
This dispute concerns the policy of immigration enforcement discretion known as Deferred Action for Childhood Arrivals (DACA). In 2016, this Court affirmed, by an equally divided Court, a decision of the Fifth Circuit holding that two related Department of Homeland Security (DHS) discretionary enforcement policies, including an expansion of the DACA policy, were likely unlawful and should be enjoined. See United States v. Texas, 136 S. Ct. 2271 (per curiam). In September 2017, DHS determined that the original DACA policy was unlawful and would likely be struck down by the courts on the same grounds as the related policies. DHS thus instituted an orderly wind-down of the DACA policy. The questions presented are as follows:
1. Whether DHS’s decision to wind down the DACA policy is judicially reviewable.
2. Whether DHS’s decision to wind down the DACA policy is lawful.
(I)

PARTIES TO THE PROCEEDING
Petitioners are Donald J. Trump, President of the United States; Jefferson B. Sessions III, Attorney General of the United States; Kirstjen M. Nielsen, Secretary of Homeland Security; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; the U.S. Department of Homeland Security; and the United States.
Respondents are the Trustees of Princeton University; Microsoft Corporation; Maria De La Cruz Perales Sanchez; National Association for the Advancement of Colored People; American Federation of Teachers, AFL-CIO; and the United Food and Commercial Workers International Union, AFL-CIO, CLC.
(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statutory provisions involved...................................................... 2 Statement ...................................................................................... 2 Reasons for granting the petition ............................................. 13
A. The questions presented warrant the Court’s immediate review ............................................................ 14
B. These cases squarely present the reviewability and the lawfulness of DACA’s rescission ............................. 15
C. The Court should grant each of the government’s petitions and consolidate the cases for consideration this Term .......................................................................... 16
Conclusion ................................................................................... 17 Appendix A — District court memorandum opinion
(Apr. 24, 2018).............................................. 1a Appendix B — District court order (Apr. 24, 2018) ............ 75a Appendix C — District court order (Apr. 24, 2018) ............ 77a Appendix D — District court memorandum opinion
(Aug. 3, 2018) ............................................. 80a Appendix E — District court order (Aug. 3, 2018) ........... 110a Appendix F — Notice of appeal (Aug. 6, 2018).................. 112a Appendix G — Notice of appeal (Aug. 6, 2018) .................. 114a

Cases:

TABLE OF AUTHORITIES

Arizona v. United States, 567 U.S. 387 (2012) ..................... 2
Casa de Maryland v. Department of Homeland Sec., 284 F. Supp. 3d 758 (D. Md. 2018) ...................................... 8
Department of Homeland Sec. v. Regents of the Univ. of Cal., 138 S. Ct. 1182 (2018).................................. 14
Heckler v. Chaney, 470 U.S. 821 (1985)................................. 3
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ................................................. 3

(III)

IV

Cases—Continued:

Page

Texas v. United States: 86 F. Supp. 3d 591 (S.D. Tex.), aff ’d, 809 F.3d 134 (5th Cir. 2015), aff  ’d, 136 S. Ct. 2271 (2016) ............. 5 809 F.3d 134 (5th Cir. 2015), aff ’d, 136 S. Ct. 2271 (2016)............................................................................. 5
United States v. Texas, 136 S. Ct. 2271 (2016) ..................... 6

Statutes, regulation, and rules:

Administrative Procedure Act, 5 U.S.C. 551 et seq.............. 5 5 U.S.C. 701(a)(2)........................................................... 8, 9
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. ...................................................................................... 2 8 U.S.C. 1103(a)(1)............................................................. 2 8 U.S.C. 1158(b)(1)(A) ....................................................... 2 8 U.S.C. 1182(a) (2012 & Supp. V 2017) .......................... 2 8 U.S.C. 1227(a) (2012 & Supp. V 2017) .......................... 2 8 U.S.C. 1229b.................................................................... 2 8 U.S.C. 1252...................................................................... 8
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ................... 7 6 U.S.C. 202(5) (2012 & Supp. V 2017) .................................. 3 8 C.F.R. 274a.12(c)(14) ............................................................ 3 Fed. R. Civ. P.:
Rule 12(b)(1) ...................................................................... 8 Rule 12(b)(6) ...................................................................... 8
Miscellaneous:
S. 1291, 107th Cong., 1st Sess. (2001) .................................... 4 S. 1545, 108th Cong., 1st Sess. (2003) .................................... 4 S. 2075, 109th Cong., 1st Sess. (2005) .................................... 4 S. 2205, 110th Cong., 1st Sess. (2007) .................................... 4 S. 3827, 111th Cong., 2d Sess. (2010) ..................................... 4

V

Miscellaneous—Continued:

Page

U.S. Citizenship & Immigration Servs., U.S. Dep’t of Homeland Sec.:
Deferred Action for Childhood Arrivals: Frequently Asked Questions (Mar. 8, 2018), https://go.usa.gov/xngCd ............................................ 4
Frequently Asked Questions: Rescission of DACA (Sept. 5, 2017), https://go.usa.gov/ xPVmE ......................................................................... 7
Guidance on Rejected DACA Requests (Feb. 14, 2018), https://go.usa.gov/xPVmG ............... 7

In the Supreme Court of the United States
No. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE D.C. CIRCUIT
PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
The Solicitor General, on behalf of the President of the United States, Donald J. Trump, and other federal parties, respectfully petitions for a writ of certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit.
OPINIONS BELOW
The order of the district court granting respondents summary judgment (App. 1a-74a) is reported at 298 F. Supp. 3d 209. The order of the district court declining to reconsider its prior order (App. 80a-109a) is reported at 315 F. Supp. 3d 457.
JURISDICTION
On April 24, 2018, the district court granted respondents summary judgment (App. 1a-74a). The district court declined to reconsider its prior order and entered
(1)

2
final judgment on August 3, 2018 (App. 80a-109a). The government filed its notice of appeal on August 6, 2018 (App. 112a-115a). The court of appeals’ jurisdiction over the appeal of the district court’s final judgment rests on 28 U.S.C. 1291. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 28 U.S.C. 2101(e).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are set forth in the appendix to the petition for a writ of certiorari before judgment in United States Department of Homeland Security v. Regents of the University of California, also filed today. Regents App. 127a-143a.
STATEMENT
1. a. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security “with the administration and enforcement” of the immigration laws. 8 U.S.C. 1103(a)(1). Individual aliens are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. V 2017); see also 8 U.S.C. 1227(a) (2012 & Supp. V 2017). As a practical matter, however, the federal government cannot remove every removable alien, and a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 567 U.S. at 396.
For any alien subject to removal, Department of Homeland Security (DHS) officials must first “decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. After removal proceedings begin, government officials may decide to grant discretionary relief, such as asylum or cancellation of removal. See 8 U.S.C. 1158(b)(1)(A), 1229b. And, “[a]t each stage” of

3
the process, “the Executive has discretion to abandon the endeavor.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (AADC). In making these decisions, like other agencies exercising enforcement discretion, DHS must engage in “a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Recognizing the need for such balancing, Congress has provided that the “Secretary [of Homeland Security] shall be responsible for * * * [e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5) (2012 & Supp. V 2017).
b. In 2012, DHS announced the policy known as Deferred Action for Childhood Arrivals (DACA). See Regents App. 97a-101a. Deferred action is a practice in which the Secretary exercises discretion to notify an alien of her decision to forbear from seeking his removal for a designated period. AADC, 525 U.S. at 484. Under DHS regulations, aliens granted deferred action may apply for and receive work authorization for the duration of the deferred-action grant if they establish economic necessity. 8 C.F.R. 274a.12(c)(14). A grant of deferred action does not confer lawful immigration status or provide any defense to removal. DHS retains discretion to revoke deferred action unilaterally, and the alien remains removable at any time.
DACA made deferred action available to “certain young people who were brought to this country as children.” Regents App. 97a. The INA does not provide any exemptions or special relief from removal for such individuals. And, dating back to at least 2001, bipartisan efforts to provide such relief legislatively had

4
failed.1 Under the DACA policy, following successful completion of a background check and other review, an alien would receive deferred action for a period of two years, subject to renewal. Id. at 99a-100a. The policy made clear that it “confer[red] no substantive right, immigration status or pathway to citizenship,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” Id. at 101a.
DHS explained that information provided in the DACA request process would be protected from disclosure for the purpose of immigration enforcement proceedings unless certain criteria related to national security or public safety were satisfied, or the individual met the requirements for a Notice to Appear. USCIS, DHS, Deferred Action for Childhood Arrivals: Frequently Asked Questions (Mar. 8, 2018), https://go.usa.gov/ xngCd. DHS also stated, however, that this informationsharing policy “may be modified, superseded, or rescinded at any time without notice,” and that it “may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” Id. at 6.
Later, in 2014, DHS created a new policy of enforcement discretion referred to as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). See Regents App. 102a-110a. Through a process expressly designed to be “similar to DACA,” DAPA made deferred action available for certain individuals who had a child who was a U.S. citizen or lawful permanent resident. Id. at 107a. At the same time,
1 See, e.g., S. 1291, 107th Cong., 1st Sess. (2001); S. 1545, 108th Cong., 1st Sess. (2003); S. 2075, 109th Cong., 1st Sess. (2005); S. 2205, 110th Cong., 1st Sess. (2007); S. 3827, 111th Cong., 2d Sess. (2010).

5
DHS also expanded DACA by extending the deferredaction period from two to three years and by loosening the age and residency criteria. Id. at 106a-107a.
c. Soon thereafter, Texas and 25 other States brought suit in the Southern District of Texas to enjoin DAPA and the expansion of DACA. The district court issued a nationwide preliminary injunction, finding a likelihood of success on the claim that the DAPA and expanded DACA memorandum was a “ ‘substantive’ rule that should have undergone the notice-and-comment rule making procedure” required by the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Texas v. United States, 86 F. Supp. 3d 591, 671 (S.D. Tex. 2015); see id. at 607, 647, 664-678.
The Fifth Circuit affirmed the injunction, holding that the DAPA and expanded DACA policies likely violated both the APA and the INA. Texas v. United States, 809 F.3d 134, 146, 170-186 (2015). The court of appeals concluded that plaintiffs had “established a substantial likelihood of success on the merits of their procedural claim” that DAPA and expanded DACA were invalidly instituted without notice and comment. Id. at 178. The court also concluded, “as an alternate and additional ground,” that the policies were substantively contrary to law. Ibid. The court observed that the INA contains an “intricate system of immigration classifications and employment eligibility,” and “does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens.” Id. at 184, 186 n.202. It also noted that Congress had repeatedly declined to enact legislation “closely resembl[ing] DACA and DAPA.” Id. at 185.

6
After briefing and argument, this Court affirmed the Fifth Circuit’s judgment by an equally divided Court, United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (per curiam), leaving the nationwide injunction in place.
d. In June 2017, Texas and other plaintiff States in the Texas case announced their intention to amend their complaint to challenge the original DACA policy. D. Ct. Doc. 60, at 238-240 (Feb. 16, 2018).2 They asserted that “[f ]or the[] same reasons that DAPA and Expanded DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful, the original June 15, 2012 DACA memorandum is also unlawful.” Id. at 239.
On September 5, 2017, rather than confront litigation challenging DACA on essentially the same grounds that had succeeded in Texas before the same court for the DAPA and expanded DACA policies, DHS decided to wind down DACA in an orderly fashion. Regents App. 111a-119a. In the rescission memorandum, thenActing Secretary of Homeland Security Elaine Duke explained that, “[t]aking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation,” as well as the Attorney General’s view that the DACA policy was unlawful and that the “potentially imminent” challenge to DACA would “likely * * * yield similar results” as the Texas litigation, “it is clear that the June 15, 2012 DACA program should be terminated.” Id. at 116a-117a. The Acting Secretary accordingly announced that, “[i]n the exercise of [her] authority in establishing national immigration policies and priorities,” the original DACA memorandum was “rescind[ed].” Id. at 117a.
2 Citations to the district court docket are to Trustees of Princeton University v. United States, No. 17-cv-2325.

7
The rescission memorandum stated, however, that the government “[w]ill not terminate the grants of previously issued deferred action * * * solely based on the directives in this memorandum” for the remaining twoyear periods. Regents App. 118a. The memorandum also explained that DHS would “provide a limited window in which it w[ould] adjudicate certain requests for DACA.” Id. at 117a. Specifically, DHS would “adjudicate —on an individual, case by case basis—properly filed pending DACA renewal requests * * * from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.” Id. at 117a-118a.
DHS has also made clear that the “information-sharing policy has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017” DACA rescission. USCIS, DHS, Guidance on Rejected DACA Requests (Feb. 14, 2018), https://go.usa.gov/ xPVmG; see USCIS, DHS, Frequently Asked Questions: Rescission of DACA (Sept. 5, 2017), https://go.usa.gov/ xPVmE.
e. Shortly after DHS’s decision to rescind DACA, respondents brought these two related suits in the District of Columbia challenging the rescission of DACA. Collectively, they allege that the termination of DACA is unlawful because it is arbitrary and capricious under the APA; violates the APA’s requirement for noticeand-comment rulemaking as well as the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.; denies respondents equal protection and due process; and permits the government to use information obtained through DACA in

8
a manner that is inconsistent with due-process principles. See App. 17a-18a. Similar challenges were filed in the Eastern District of New York and in the Northern District of California. See Batalla Vidal v. Nielsen, No. 16-cv-4756 (E.D.N.Y. filed Sept. 19, 2017); Regents of the Univ. of Cal. v. DHS, No. 17-cv-5211 (N.D. Cal. filed Sept. 8, 2017). A summary of the proceedings in the District of Columbia (NAACP) follows in this petition. A summary of the proceedings in the other district courts can be found in the government’s petitions in those cases, filed simultaneously with this one.3
2. In NAACP, the government filed motions to dismiss both suits under Federal Rule of Civil Procedure 12(b)(1) and (6). D. Ct. Doc. 15 (Nov. 8, 2017). At the threshold, the government argued that respondents’ claims are not reviewable because DHS’s decision to rescind DACA is committed to agency discretion by law, see 5 U.S.C. 701(a)(2); and because judicial review of the denial of deferred action, if available at all, is barred under the INA prior to the issuance of a final removal order, see 8 U.S.C. 1252. The government also argued that respondents’ arbitrary-and-capricious claims fail because DHS rationally explained the decision to wind down the discretionary DACA policy given the Acting Secretary’s conclusion that the policy is unlawful and the imminent risk of its being invalidated in the Texas case. Finally, the government argued that respondents’ other claims are without merit because the rescission of DACA is exempt from notice-and-comment requirements; does not violate principles of equal protection or
3 The government largely prevailed in a similar challenge to the rescission filed in the District of Maryland. See Casa de Maryland v. DHS, 284 F. Supp. 3d 758 (2018). An appeal of that decision is pending before the Fourth Circuit.

9
due process; and does not change or affect the policies governing the use of aliens’ personal information.
Respondents opposed the government’s motions to dismiss and filed a motion for summary judgment or, in the alternative, a preliminary injunction preventing the government from rescinding the DACA policy and from modifying its information-sharing policy. D. Ct. Docs. 23, 28 (Dec. 15, 2017).
3. On April 24, 2018, the district court entered an order granting respondents summary judgment and vacating the agency’s rescission of DACA. App. 1a-74a.
The district court first rejected the government’s justiciability arguments. The court concluded that the INA did not preclude review of respondents’ claims before a final order of removal on the ground that “there is no allegation here that removal proceedings have yet been initiated against any DACA beneficiary, so there are no pending removal proceedings with which [respondents’] challenge might interfere.” App. 21a. And the court determined that the rescission of DACA was not “committed to agency discretion by law,” 5 U.S.C 701(a)(2), on the ground that Section 701(a)(2) does not apply to an agency’s rescission of “a general enforcement policy predicated on [a] legal determination that the program was invalid.” App. 43a. The court also reasoned that litigation risk “is insufficiently independent from the agency’s evaluation of DACA’s legality to trigger Chaney’s presumption of unreviewability.” Ibid.
On the merits, the district court concluded that the rescission was arbitrary and capricious under the APA because the rescission memorandum’s “legal reasoning was insufficient to satisfy the Department’s obligation to explain its departure from its prior stated view that DACA was lawful.” App. 51a. The court acknowledged

10
that the memorandum cited the Fifth Circuit’s decision in Texas. Ibid. But the court interpreted that decision as holding only that “DAPA likely conflicted with the INA’s ‘intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.’ ” Ibid. (citation omitted). The court reasoned that, “unlike DAPA, ‘DACA has “no analogue in the INA,” ’ ” and thus the Fifth Circuit’s analysis was “inapposite.” Ibid. (citations omitted). The court also concluded that DHS had failed to adequately consider reliance interests of DACA recipients who had structured their affairs “on the assumption that they would be able to renew their DACA benefits.” App. 54a. Finally, the court determined that DHS’s litigation-risk concern was arbitrary and capricious because, if a court were to find DACA unlawful under the Texas decision, it would have had “ ‘broad discretion’ to ‘fashion[] equitable relief,’ ” such as allowing DHS an “opportunity to wind the program down.” App. 58a (citation omitted; brackets in original).
The district court rejected respondents’ claim that the rescission should have undergone notice-and-comment rulemaking, explaining that the rescission was “exempt from notice and comment as a general statement of agency policy.” App. 48a. And the court dismissed the respondents’ claim against DHS’s alleged change in its information-sharing policy. App. 71a-72a. The court reasoned that, in light of DHS’s recent public statements that the policy was unchanged, respondents had not “plausibly allege[d] that DACA beneficiaries’ information has been or will be used inconsistently with DHS’s stated information-sharing policy.” App. 72a.

11
Finally, the court deferred ruling on respondents’ equal-protection and due-process challenges to the rescission of DACA. App. 66a-67a. And the court stayed its order for 90 days to permit the Secretary of Homeland Security to “reissue a memorandum rescinding DACA, this time providing a fuller explanation.” App. 66a.
4. On June 22, 2018, current Secretary of Homeland Security Kirstjen Nielsen issued a memorandum in response to the district court’s invitation. Regents App. 120a-126a. In her memorandum, Secretary Nielsen concluded that “the DACA policy properly was—and should be—rescinded, for several separate and independently sufficient reasons.” App. 122a. First, the Secretary agreed that “the DACA policy was contrary to law” and explained that “[a]ny arguable distinctions between the DAPA and DACA policies” were not “sufficiently material” to convince her otherwise. Ibid.; see App. 122a-123a. Second, the Secretary reasoned that, in any event, “[l]ike Acting Secretary Duke, [she] lack[s] sufficient confidence in the DACA policy’s legality to continue this non-enforcement policy, whether the courts would ultimately uphold it or not.” App. 123a. She noted that “[t]here are sound reasons for a law enforcement agency to avoid discretionary policies that are legally questionable.” App. 122a-123a. Third, the Secretary offered several “reasons of enforcement policy to rescind the DACA policy,” regardless of whether the policy is “illegal or legally questionable.” App. 123a. The Secretary also explained that, although she “do[es] not come to these conclusions lightly,” “neither any individual’s reliance on the expected continuation of the DACA policy nor the sympathetic circumstances of DACA recipients as a class” outweigh the reasons to end the policy. App. 125a.

12
5. On August 3, 2018, the district court denied the government’s motion to reconsider its prior order in light of Secretary Nielsen’s memorandum. App. 80a109a. The court largely accepted that the Nielsen memorandum provided a relevant “ ‘further explanation’ ” for DHS’s decision, rather than (as respondents’ urged) an impermissible “post hoc rationalization.” App. 91a (citation omitted).4 But it concluded that the memorandum did not provide a basis to revisit its reviewability or merits determinations. App. 95a-108a.
On reviewability, the district court observed that the Nielsen memorandum, like the rescission memorandum, was based in part on the view that “the DACA policy was contrary to law.” App. 97a (citation omitted). And the court reasoned that “ ‘an otherwise reviewable’ legal interpretation ‘does not become presumptively unreviewable simply because the agency characterizes it as an exercise of enforcement discretion.’ ” App. 95a-96a (citation omitted). It rejected the independent non-legal policy reasons offered by Secretary Nielsen as simply an “attempt to disguise an objection to DACA’s legality as a policy justification for its rescission.” App. 100a.
On the merits, the district court reaffirmed its conclusion that the rescission of DACA is arbitrary and capricious because it did not find DHS’s explanation to include a sufficient “legal assessment that th[e] [c]ourt
4 The district court refused to consider one of the several enforcement-policy reasons offered by the Secretary on the ground that it was a post hoc rationalization—namely, the importance for DHS to “project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens,” Regents App. 124a. See App. 94a.

13
could subject to judicial review.” App. 105a. As for Secretary Nielsen’s other rationales, the court expressed skepticism that the Secretary actually considered them to be “ ‘independently sufficient’ ” given the court’s conclusion that “three of those grounds—the substantialdoubts, legislative-inaction, and individualized-discretion rationales—simply recapitulate the Secretary’s inadequately explained legal assessment.” App. 106a (citation omitted). In any event, the court reasoned that the Secretary’s memorandum “fails to engage meaningfully with the reliance interests and other countervailing factors that weigh against ending the program.” Ibid. In the court’s view, Secretary Nielsen “demonstrates no true cognizance of the serious reliance interests at issue here” and therefore the court refused to “accept as sufficient” her determination that “any reliance interests are outweighed” by the Secretary’s other concerns about the DACA policy. App. 107a.
The government filed notices of appeal from the district court’s final judgment on August 6, 2018. App. 112a-115a. On August 17, the district court stayed its order vacating the rescission of DACA insofar as the order granted relief beyond that already granted by the district courts in Regents and Batalla Vidal. D. Ct. Doc. 31.
REASONS FOR GRANTING THE PETITION
These cases concern the Executive Branch’s authority to revoke a discretionary policy of non-enforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens. The DACA policy is materially indistinguishable from the related policies that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this Court voted to affirm. No one contends that the policy is required by federal law. And, in fact, consistent with

14
the view of the Department of Justice, DHS has decided that the policy is unlawful and should be adopted only by legislative action, not unilateral executive action. Yet as a result of nationwide preliminary injunctions issued by the District Courts in the Northern District of California and the Eastern District of New York, DHS has been required to keep the policy in place, now more than a year since the agency’s decision.
The government today is filing petitions for writs of certiorari before judgment to the Second, Ninth, and D.C. Circuits, each of which has before it a decision concluding that the rescission of DACA either is or likely is unlawful. As explained in the Regents petition, those decisions are wrong and they warrant this Court’s immediate review. The government presents each of these petitions to ensure that the Court has an adequate vehicle in which to resolve the questions presented in a timely and definitive manner. The government respectfully submits that the Court should grant each petition for a writ of certiorari before judgment, consolidate these cases for decision, and consider this important dispute this Term.
A. The Questions Presented Warrant The Court’s Immediate
Review
The government’s petition in Regents explains in detail why a grant of certiorari is necessary in order to obtain an appropriately prompt resolution of this important dispute. Regents Pet. 15-17. More than eight months ago, this Court recognized the need for an “expeditious[]” resolution of this dispute in its order dismissing without prejudice the government’s petition for a writ of certiorari before judgment in Department of Homeland Sec. v. Regents of the University of California, 138 S. Ct. 1182 (2018). Absent certiorari before

15
judgment, even if a losing party were immediately to seek certiorari from a decision of one of the courts of appeals, this Court would not be able to review that decision in the ordinary course until next Term at the earliest. In the interim, the government would be required to retain a discretionary non-enforcement policy that DHS and the Attorney General have correctly concluded is unlawful and that sanctions the ongoing violation of federal law by more than half a million people. And the very existence of this litigation (and resulting uncertainty) would continue to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy.
B. These Cases Squarely Present The Reviewability And
The Lawfulness Of DACA’s Rescission
The cases pending before the D.C. Circuit squarely present both of the questions presented. The respondents raise all of the principal challenges to the lawfulness of the rescission of DACA, including that it is arbitrary and capricious, that it should have gone through notice-and-comment rulemaking, and that it violates equal-protection and due-process principles. The government moved to dismiss all of respondents’ claims on justiciability and merits grounds. Respondents opposed dismissal for all of their claims and moved for summary judgment on the arbitrary-and-capricious and notice-and-comment claims. And the district court’s final judgment rests on essentially the same arbitraryand-capricious claim on which the district courts in Regents and Batalla Vidal rest their nationwide preliminary injunctions.
These cases, moreover, present at least one advantage over the cases at issue in Regents and Batalla Vidal. Secretary Nielsen issued her memorandum,

16
which provides further explanation for DHS’s decision to rescind DACA, in response to an order from the district court in these cases. And she did so after the decisions in Regents and Batalla Vidal were on appeal. As a result, the district court here is the only court to have addressed the effect of that memorandum on the questions presented (including by considering and rejecting respondents’ arguments that Secretary Nielsen’s explanation should be disregarded in its entirety as post hoc rationalization).
A grant of certiorari before judgment to the D.C. Circuit would therefore ensure that the district court’s analysis of Secretary Nielsen’s memorandum is before this Court, and it would allow the Court to resolve, at a minimum, the government’s justiciability arguments and the arbitrary-and-capricious claim after a final judgment.
C. The Court Should Grant Each Of The Government’s
Petitions And Consolidate The Cases For Consideration
This Term
To ensure an adequate vehicle for the timely and definitive resolution of this dispute, in addition to granting the government’s petition in these cases, the Court should also grant the petitions for a writ of certiorari before judgment in Regents and Batalla Vidal, and consolidate the cases for further review. Although respondents here present the principal challenges against the rescission of DACA, they do not present some of the more tangential claims against the rescission, including, for example, that the rescission violates principles of equitable estoppel, and their equal-protection challenge is premised on DHS’ alleged discrimination on the basis of DACA recipients’ unlawful immigration status, not their race. The district court in these cases, moreover, did not pass on any constitutional challenges to the rescission.

17

The government thus respectfully submits that the Court should grant all three petitions and consolidate the cases for this Court’s review. In so doing, the Court would ensure that no intervening developments in the lower courts—for example, a reversal by the Second or Ninth Circuits of one of the preliminary injunctions— would impede or complicate the Court’s ability to reach all of the claims against the rescission of DACA on which respondents have prevailed in the lower courts and thus provide a definitive resolution of this dispute this Term.
CONCLUSION
The petition for a writ of certiorari before judgment should be granted.
Respectfully submitted.

NOVEMBER 2018

NOEL J. FRANCISCO Solicitor General
JOSEPH H. HUNT Assistant Attorney
General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney
General
JONATHAN Y. ELLIS Assistant to the Solicitor
General
MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM
Attorneys

 
 Nos. 18-587, 18-588, & 18-589
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.
ON PETITION FOR A 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 v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS
FOR THE D.C. CIRCUIT
KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERS v.
MARTIN JONATHAN BATALLA VIDAL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE STATES OF TEXAS, ALABAMA, ARIZONA, ARKANSAS, FLORIDA, LOUISIANA, NEBRASKA, SOUTH CAROLINA, AND WEST VIRGINIA, AND GOVERNOR PHIL BRYANT OF
THE STATE OF MISSISSIPPI, AS AMICI CURIAE IN SUPPORT OF PETITIONERS
Counsel Listed on Inside Cover

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant
Attorney General

KYLE D. HAWKINS Solicitor General
Counsel of Record
ARI CUENIN JOHN C. SULLIVAN Assistant Solicitors General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 kyle.hawkins@oag.texas.gov (512) 936-1700

QUESTIONS PRESENTED
1. Whether the decision of the Department of Homeland Security (DHS) to wind down the DACA policy is judicially reviewable.
2. Whether the DHS’s decision to wind down the DACA policy is lawful.
(I)

II

III
TABLE OF CONTENTS
Page
Questions Presented ............................................................ I Table of Authorities ...........................................................IV Interest of Amici Curiae...................................................... 1 Summary of Argument ........................................................ 3 Argument .............................................................................. 5 I. Review Is Needed to Correct a Fundamental
Misunderstanding of APA Review.............................. 5 A. A new administration’s decision to reverse
its predecessor’s discretionary policies does not merit special scrutiny...................................... 5 B. DACA’s wind-down satisfies APA review........... 8 II. DACA’s Obvious Unlawfulness Is Further Reason to Grant Review............................................. 17 A. DACA contravenes federal law. ......................... 17 B. DACA is procedurally unlawful because it was promulgated contrary to the APA’s requirements. ....................................................... 18 III. Granting Certiorari to Allow Resolution of All Three DACA-Rescission Challenges This Term Is Warranted.................................................................... 23 Conclusion ........................................................................... 24

IV

TABLE OF AUTHORITIES

Page(s)

Cases:
Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) ......................................................... 7
Brewer v. Arizona Dream Act Coalition, No. 16-1180 (U.S. May 1, 2017) ................................... 11
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ....................................................... 18
FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760 (2016) ....................................................... 8
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................................. 6, 7, 8
Heckler v. Chaney, 470 U.S. 821 (1985) ......................................................... 8
McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988) .................................... 18
Morton v. Ruiz, 415 U.S. 199 (1974) ........................................... 18, 19, 22
Motor Vehicles Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 103 S. Ct. 2856 (1983) ..................................................... 7
Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032 (D.C. Cir. 2012) ...................................... 6
Nielsen v. Batalla Vidal, No. 18-589 (U.S. filed Nov. 5, 2018).............................. 5

V
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) ................................................. 6, 7
Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) .......................................... 18
Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) ...................................... 3, 5
Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018) (Texas II) ............................................................. passim
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam) (Texas I) ............................. passim
Trump v. Nat’l Ass’n for the Advancement of Colored People, No. 18-588 (U.S. filed Nov. 5, 2018).............................. 5
U.S. Dep’t of Homeland Sec. v. Regents of Univ. of Cal., No. 18-587 (U.S. filed Nov. 5, 2018).............................. 3
Constitutional Provisions, Statutes, and Rules:
U.S. Const. art. II, § 3....................................................... 7
5 U.S.C. § 551(4)........................................................................... 18 § 701(a)(2) ........................................................................ 8
8 U.S.C. § 1611(b)(2)-(3)........................................................ 20, 22 § 1621(d) .................................................................. 20, 22

VI
Sup. Ct. R. 37 ..................................................................... 1
Miscellaneous:
3d Am. Complaint, Batalla Vidal v. Nielsen, No. 1:16-cv-4756 (E.D.N.Y. Dec. 11, 2017), ECF No. 113 ....................................... 21
AG Paxton Leads 10-State Coalition Urging Trump Administration to Phase Out Unlawful Obama-Era DACA Program, https://www.texasattorneygeneral.gov/ news/releases/ag-paxton-leads-10state-coalition-urging-trumpadministration-to-phase-out (June 29, 2017)................................................................................. 9
Br. for the State Respondents, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 1213267 ........... 11, 17, 18
Br. for the States of Texas et al., Brewer v. Ariz. Dream Act Coalition, No. 16-1180, 2017 WL 1629324 (U.S. May 1, 2017) .......................................................... 11, 12
Complaint, Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 3:17cv-5211 (N.D. Cal. Sept. 8, 2017), ECF No. 1............................................................................... 19
Complaint, California v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-05235WHA (N.D. Cal. Sept. 11, 2017), ECF No. 1............................................................................... 21

VII
Complaint, Garcia v. United States, No. 3:17-cv-5380 (N.D. Cal. Sept. 18, 2017), ECF No. 1 ..................................................................... 21
Complaint, NAACP v. Trump, No. 1:17cv-1907 (D.D.C. Sept. 18, 2017), ECF No. 1............................................................................... 21
Complaint, New York v. Trump, No. 1:17-cv-5228 (E.D.N.Y. Sept. 6, 2017), ECF. No. 1 .............................................................. 21, 22
Complaint, Trs. of Princeton Univ. v. United States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017), ECF No. 1............................................. 21
H.R. Rep. No. 99-682(I), at 46, 51-52 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650, 5655-56 ....................................................... 12
Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Geo. L.J. Online 96 (2015)............................................ 17
Notice of Filing Administrative Record, Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-05211 (N.D. Cal. Oct. 6, 2017)................................................................................. 2
Oral Arg., Texas v. United States, 787 F.3d 733 (5th Cir. 2015) (No. 15-40238), http://www.ca5.uscourts.gov /OralArgRecordings/15/15-40238_4-172015.mp3........................................................................ 11

VIII
Pls.’ Stip. Of Voluntary Dismissal, Texas v. United States, No. 1:14-cv-00254 (S.D. Tex. Sept. 12, 2017)................................................................................. 2

INTEREST OF AMICI CURIAE
Amici curiae are the States of Texas, Alabama, Arizona, Arkansas, Florida, Louisiana, Nebraska, South Carolina, and West Virginia, and Phil Bryant, Governor of Mississippi.1
In these lawsuits, Plaintiffs asks courts to force the federal Executive Branch to retain a “deferred action” program (DACA) that the administration believes violates the Constitution. The administration is correct: DACA affirmatively confers “lawful presence” status and work-authorization eligibility on over half a million aliens. DACA is thus materially identical to two programs (Expanded DACA and DAPA) that were invalidated by the Fifth Circuit in a ruling affirmed by an equally divided vote of this Court. See Texas v. United States, 809 F.3d 134, 172, 184-86 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam) (Texas I). DACA is procedurally and substantively unlawful for much of the same reasons this Court affirmed in that case.
Texas led the group of States successfully challenging Expanded DACA and DAPA. Texas then led the group of States notifying the federal government that they would challenge DACA on the same grounds if
1 No counsel for any party authored this brief, in whole or in part. No person or entity other than amici contributed monetarily to its preparation or submission. The parties received timely notice of filing, and consents have been provided to amici. See Sup. Ct. R. 37.
(1)

2 DACA was not wound down. A.R. 238-40.2 It was because of the Executive’s September 2017 DACA-winddown memorandum that Texas and other States agreed to dismiss their pending lawsuit. Pls.’ Stip. of Voluntary Dismissal at 1, Texas v. United States, No. 1:14-cv00254 (S.D. Tex. Sept. 12, 2017), ECF No. 473. And because DACA’s rescission was enjoined, the Amici States ultimately filed suit seeking a declaration that DACA was unlawful. Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018) (Texas II).
The petition thus directly implicates the States’ efforts to bring about an orderly end to DACA.
2 A.R. cites the Administrative Record, filed as Notice of Filing Administrative Record, Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-05211 (N.D. Cal. Oct. 6, 2017), ECF No. 64-1.

3
SUMMARY OF ARGUMENT
I.A. When a new presidential administration decides to change—or even reverse—the discretionary policies of the previous one, its decision is not subject to any special scrutiny beyond that set out in the Administrative Procedure Act (APA). The APA forbids the administration from acting in an arbitrary and capricious manner. That remains true both for the implementation of new policies and the rescission of old policies. The decision to terminate the previous administration’s policy must meet that standard—and no other.
B. The plaintiffs in these three cases join a litany of litigants around the nation who seek to upend that principle. They argue that rescinding DACA was not lawful—and the Ninth Circuit has agreed. Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 510 (9th Cir. 2018). But that argument seeks to impose on the administration a burden the APA does not. The Executive does not act arbitrarily or capriciously by rescinding a prior administration’s policy that is not required by law and that the Executive concludes is substantively unlawful.
That is especially so here. The Executive decided to wind down DACA after a new administration reexamined its lawfulness and concluded that DACA would likely be held unlawful. Pet. App. 114a-18a.3 Nothing in the Immigration and Nationality Act (INA) or any oth-
3 Pet. App. cites the Appendix to the Petition for a Writ of Certiorari Before Judgment in U.S. Dep’t of Homeland Sec. v. Regents of Univ. of Cal., No. 18-587 (S. Ct. filed Nov. 5, 2018).

4
er federal law requires DACA, so its cancellation contravenes no law. Moreover, in response to a lawsuit brought by Texas and a coalition of States, one district court already has concluded that DACA is likely unlawful as both a substantive and procedural matter. Under these circumstances, the Executive’s decision satisfies APA review.
This case thus presents an opportunity for the Court to clarify that the cancellation of DACA, like many other discretionary policy decisions, does not merit some special scrutiny beyond that set out in the APA. Applying the correct scrutiny, the plaintiffs’ challenge fails.
II.A. The Executive’s decision to wind down DACA is especially justified because DACA is substantively and procedurally unlawful. DACA is unlawful for the same reasons that Expanded DACA and DAPA were held unlawful in the previous Texas I litigation. See 809 F.3d at 172, 184-86. It is substantively flawed because it goes further than mere “prosecutorial discretion” not to deport individuals. DACA confers legal status on individuals, contravening congressional authority to make such determinations.
B. DACA is also procedurally unlawful. The pleadings in the DACA-rescission litigation confirm that it altered substantive rights, yet was issued without APA notice and comment. The Executive cannot be ordered to maintain such an unlawful program. Thus, even on plaintiffs’ view of notice-and-comment requirements, injunctions forcing the Executive Branch to continue with DACA cannot be justified.
III. The Court should grant certiorari and reverse all orders enjoining the Executive from winding down

5
DACA. Although the Ninth Circuit ruled in Regents of the University of California after petitioners filed their petition for a writ of certiorari before judgment, 908 F.3d 476, amici agree that granting certiorari in that case is appropriate, Supp. Pet. Br. 9-10. The Ninth Circuit’s ruling strengthens the case for granting certiorari before judgment in Trump v. National Ass’n for the Advancement of Colored People, No. 18-588 (filed Nov. 5, 2018), and Nielsen v. Batalla Vidal, No. 18-589 (filed Nov. 5, 2018), and consolidating the cases for consideration this Term. Only this Court can provide definitive resolution to the dispute over DACA’s rescission.
Immediate review is especially warranted here because of the ongoing irreparable harm that DACA inflicts on the States. “[B]ecause DACA increases the total number of aliens in the States by disincentivizing those already present from leaving, the States must provide more . . . social services, which cost more.” Texas II, 328 F. Supp. 3d at 700. And DACA “allow[s] its recipients to compete with legally present residents” for jobs. Id.
ARGUMENT
I. Review Is Needed to Correct a Fundamental Misunderstanding of APA review.
A. A new administration’s decision to reverse its predecessor’s discretionary policies does not merit special scrutiny.
The arguments against DACA’s rescission reflect plaintiffs’ fundamental misunderstanding of APA review. Under their view, a court may rely on policy differences and supposed reliance interests to secondguess an agency determination that seeks to change a

6
policy from a prior administration. And all this even though the agency acts in the same manner to amend the policy as the agency did to enact it in the first instance.
That is not the law. New presidential administrations bring changes in policy and agency priorities. So long as an agency acts within its realm of authority, its decision to alter a policy determination—or even reverse course—is not subject to an enhanced standard of review. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009); Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1036-37 (D.C. Cir. 2012) (describing the argument that agency reversal is subject to more searching review as “largely foreclosed” by Fox Television Stations). This flows from the APA’s narrow scope of review that limits the judicial inquiry. Fox Television Stations, Inc., 556 U.S. at 514. Critically, courts must not impose substantive judgments on the contested issue and review those policy shifts only for fidelity to APA procedures—even when reliance interests are at issue. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1207 (2015).
As this Court admonished in Mortgage Bankers, courts have no authority to impose procedural requirements beyond those stated in the APA. Id. Procedural fairness does not prevent an agency from “unilaterally and unexpectedly” adopting a different interpretation of a regulation the agency is charged with implementing. Id. at 1209. Although agencies cannot simply ignore when the new policy “rests upon factual findings that contradict those which underlay its prior policy,” they need only provide a reasoned explanation and justify

7
the change. Id. The APA sets the maximum procedural obligations for which agencies must adhere. Id. at 1207.
Fundamentally, an agency’s policy change need satisfy only the standard it would be held to in the first instance under the APA. Fox Television Stations, 556 U.S. at 515. “This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” Id. There is “no basis . . . for a requirement that all agency change be subjected to more searching review.” Id. at 514. The Court made clear that Motor Vehicles Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 103 S. Ct. 2856 (1983), “neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.” Id.
Applying the APA in a contrary manner would intrude on the President’s Article II obligation to ensure “that the Laws be faithfully executed.” U.S. Const. art. II, § 3; see Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011) (“The legislative and executive departments of the Federal Government, no less than the judicial department, have a duty to defend the Constitution.”). When the Executive determines that a prior unilateral executive action is unconstitutional and discontinues it, judicial review cannot involve a freeranging inquiry beyond the specific standard written into the APA.
This is not to say an agency should act beyond the scope of its statutorily defined authority or that such actions can never be reviewed. If agency policy was “not in accordance with the law” in the first place, it is owed

8
no deference. Courts, however, are not permitted to apply heightened standards of review to pass on agency policy decisions. In reviewing agency action, a court is prohibited from substituting its policy judgments for those of the agency, whose change in policy must be sustained when it passes muster under the same standard it would have been held to in the first instance. FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016); Fox Television Stations, 556 U.S. at 513-14.
B. DACA’s wind-down satisfies APA review.
As explained above, DACA’s wind-down may be enjoined only if Plaintiffs can overcome APA review.4 The order winding down DACA satisfies that standard easily, for the reasons the petition describes. The Executive has correctly concluded that DACA is unlawful. No law mandates the policy choices DACA embodies. That was why several States, led by Texas, threatened to sue (and then did sue) to enjoin its continuation. The courts below were thus wrong to block DACA’s rescission.
1. The administration prudently decided to wind down DACA in part because of the multi-State legal challenge to DACA’s lawfulness. On June 29, 2017, the
4 The Executive’s decisions to create and, later, to wind down DACA are reviewable agency actions under the APA. The APA contains a limited exception barring judicial review when an agency decision is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This exception is “very narrow.” Heckler v. Chaney, 470 U.S. 821, 830 (1985). Unreviewability under Heckler applies only to “an agency’s refusal to take . . . action,” such as “an agency’s decision not to take enforcement action.” Id. at 831, 832. In contrast, “when an agency does act,” the “action itself provides a focus for judicial review” and “can be reviewed to determine whether the agency exceeded its statutory powers.” Id. at 832.

9
Texas Attorney General, nine other State Attorneys General, and one Governor sent a letter to the federal Executive Branch proposing a DACA wind-down to end the Texas I litigation challenging the Executive’s ability to unilaterally confer lawful presence and work authorization. A.R. 238-40. The coalition promised to voluntarily dismiss the lawsuit challenging unlawful deferredaction programs if the Executive Branch agreed, by September 5, 2017, to rescind DACA and not renew or issue any new DACA permits in the future. A.R. 240.5
The letter explained why DACA was unlawful, given that “[c]ourts blocked DAPA and Expanded DACA from going into effect, holding that the Executive Branch does not have the unilateral power to confer lawful presence and work authorization on unlawfully present aliens simply because the Executive chooses not to remove them.” A.R. 238. Rather, “[i]n specific and detailed provisions, the [Immigration and Nationality Act] expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.” A.R. 238 (quoting Texas I, 809 F.3d at 179). “Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA.” A.R. 238 (quoting Texas I, 809 F.3d at 179). Likewise, “[t]he INA also
5 On the same day that the Texas Attorney General sent the letter, he also issued a press release publicly announcing the letter. AG Paxton Leads 10-State Coalition Urging Trump Administration to Phase Out Unlawful Obama-Era DACA Program, https://www.texasattorneygeneral.gov/news/releases/agpaxton-leads-10-state-coalition-urging-trump-administrationto-phase-out (June 29, 2017).

10
specifies classes of aliens eligible and ineligible for work authorization,” but makes “no mention of the class of persons whom DAPA would make eligible for work authorization.” A.R. 238-39 (quoting Texas I, 809 F.3d at 180-81). DAPA was “foreclosed by Congress’s careful plan.” A.R. 238-39 (quoting Texas I, 809 F.3d at 186).
Thus,
For these same reasons that DAPA and Expanded DACA’s unilateral Executive Branch conferral of eligibility for lawful presence and work authorization was unlawful, the original June 15, 2012 DACA memorandum is also unlawful. The original 2012 DACA program covers over one million otherwise unlawfully present aliens. Id. at 147. And just like DAPA, DACA unilaterally confers eligibility for work authorization, id., and lawful presence without any statutory authorization from Congress.
A.R. 238-39. This letter thus threatened litigation over DACA
and provided legal arguments, based on precedent, explaining why DACA was unlawful. Even if this letter were the only cited reason for the challenged Executive action, it would provide a non-arbitrary, non-capricious, and valid basis for ending DACA.
2. Texas has explained for years how DACA is unlawful. The June 2017 letter’s explanation of DACA’s illegality was based on Texas’s victory, leading a 27State coalition, in challenging the materially identical Expanded DACA and DAPA programs. See, e.g., Texas I, 809 F.3d at 174 n.139 (“DACA is an apt comparator to DAPA.”). In that litigation, counsel of record told the

11
Fifth Circuit that DACA was required to go through APA notice-and-comment procedure. Oral Arg. at 1:16:01-10, Texas v. United States, 787 F.3d 733 (5th Cir. 2015) (No. 15-40238), http://www.ca5.uscourts.gov /OralArgRecordings/15/15-40238_4-17-2015.mp3. DACA was instituted without that procedure.
Texas also filed a brief for a 14-State coalition urging the Court to grant certiorari in Brewer v. Arizona Dream Act Coalition, No. 16-1180 (U.S. May 1, 2017). See Br. for the States of Texas et al., Brewer v. Ariz. Dream Act Coalition, No. 16-1180, 2017 WL 1629324 (U.S. May 1, 2017) (“Texas Brewer Br.”). Those amici States explained that DACA was unlawful—based on the same substantive and procedural arguments successfully made by the 27-State coalition in Texas I regarding Expanded DACA and DAPA. See Br. for the State Respondents at 44-70, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 1213267 (“Texas DAPA Br.”).
The Brewer amici explained that DACA is unlawful because “[d]eferred action under DACA is much more than just a decision not to pursue removal of the alien.” Texas Brewer Br. at 3. The Executive deems deferred action under DACA to confer “lawful presence.” Id. Conferring that legal status is more than mere inaction. As the States highlighted, Congress used “lawful presence” status (or “unlawful presence”) as the predicate for numerous results, such as removability, id. at 9; a 3year or 10-year reentry bar, id. at 10-11; eligibility for “advance parole,” id. at 11; and eligibility for numerous federal benefits, id. at 12-13. Those consequences turn on the “lawful presence” status conferred unilaterally

12
by the Executive under DACA and DAPA. And that conferral contravenes federal law. See id.
Similarly, the States explained that DACA violated statutes governing which aliens are authorized to work in this country:
[W]hen Congress wanted to provide workauthorization eligibility to four narrow classes of deferred-action recipients, it did so by statute. Otherwise, the 1986 IRCA “prohibit[s] the employment of aliens who are unauthorized to work in the United States because they either entered the country illegally, or are in an immigration status which does not permit employment.” H.R. Rep. No. 99-682(I), at 46, 51-52 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650, 5655-56 (emphasis added).
Id. at 15-16 (footnote omitted). And the States surveyed various historical practices, explaining how they could not support DACA’s unilateral conferral of lawful presence and work authorization. Id. at 18-20.
At a minimum, this substantial background merited legitimate doubts that DACA was lawful. The Executive properly deemed it “likely that potentially imminent litigation would yield similar results with respect to DACA” as with respect to Expanded DACA and DAPA, which were already enjoined. Pet. App. 116a.
3. Ultimately, after their warnings went unheeded, Texas and several other States filed suit on May 1, 2018, seeking a declaration that DACA was unlawful and a preliminary injunction. See Texas II, 328 F. Supp. 3d 707.

13
Following extensive discovery and an extended hearing on the State’s motion for injunctive relief, the district court found that DACA was unlawful for substantially the same reasons as described above. “DACA prevents the removal of its recipients—whom Congress has deemed removable.” Id. at 714. The court, “guided by Fifth Circuit precedent,” held that “none of the claimed statutory provisions [in the INA] give the DHS the authority to implement DACA.” Id. at 715. “Ultimately, ‘the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present,’ and Congress has not granted the Executive Branch free rein to grant lawful presence to such a large class of persons outside the ambit of the statutory scheme.” Id. at 716.
Regarding work authorization, the court also found that the INA “describes specific groups of aliens for whom Congress intended work authorization to be available,” but “make[s] no mention of the group of aliens described by DACA.” Id. at 716-17 (citation omitted). “Congress has in other places specified groups of aliens to be ineligible for work authorization,” yet DACA “contradicts Congress’s intent, as it enables those aliens to apply for work authorizations.” Id. at 717 (citation omitted). Thus, “[p]ermitting the [Executive] to allow 1.5 million aliens to receive work authorization contradicts the clear congressional purpose of preserving employment opportunities for those persons legally residing in the United States.” Id. at 718.
The court also noted the path to citizenship that DACA facilitates. DACA, through advance parole, “enable[s] certain individuals to change their inadmissible status (due to unlawful entry) into an admitted/paroled

14
category and in some cases provide a clearer pathway to citizenship.” Id. at 720. DACA thus “directly undermines the intent and deterrent effect intended by Congress, and contradicts the express wording of the DACA program’s instituting memorandum.” Id.
Moreover, the court rejected various grounds on which DACA’s supporters have attempted to justify it. DACA, like DAPA, “is far from any program conducted in the past.” Id. at 721. “DACA is ‘manifestly contrary’ to the statutory scheme promulgated by Congress,” and “usurps the power of Congress to dictate a national scheme of immigration laws, and it is therefore contrary to the INA and unreasonable.” Id. at 722-23. “As were DAPA and Expanded DACA, DACA is ‘foreclosed by Congress’s careful plan.’ The fact that DAPA was three times the size of DACA is of no legal significance.” Id. at 724 (citation omitted). Ultimately, DACA
contradicts statutory law and violates the APA because the INA directly addresses the issues of lawful presence and work authorization for aliens in this country but does not include those designated by DACA. Furthermore, the award of lawful presence and an entire array of federal, state, and local rights and benefits to aliens Congress has deemed inadmissible flies in the face of the INA’s goals of deciding who comes to and stays in the United States, who works in the United States, and who qualifies for government-funded benefits.
Id. at 735. The court also explained that DACA was procedur-
ally invalid under the APA. It rejected the premise that

15
DACA was a procedural rule based on the same reasoning in Texas I. Id. at 728. “An agency rule that modifies substantive rights and interests can only be nominally procedural, and the exemption for such rules of agency procedure cannot apply.’’ Id. (quoting Texas I, 809 F.3d at 176). DACA failed that test because
[o]ver 800,000 individuals have already received the benefit of lawful presence. Most have received work authorization, and over half a million more individuals are or will be eligible to apply. . . . No matter which party’s briefs and exhibits one reviews, each stresses the impact of the DACA program. . . . Although the DACA program has conferred lawful presence on a smaller number of people than DAPA would have, it has nonetheless impacted the Plaintiff States and affected individuals in an equally important manner.
Id. at 728. Just as with DAPA and Expanded DACA in Texas
I, DACA was not a procedural rule because DACA “established ‘the substantive standards by which the [agency] evaluate[d] applications which [sought] a benefit that the agency [purportedly] ha[d] the power to provide.’” Id. at 728-79 (quoting Texas I, 809 F.3d at 177). The “five criteria by which DACA applicants are evaluated are clearly substantive standards and are no different than the DAPA criteria at issue in Texas I.” Id. at 729.
Nor could DACA be defended as a general policy statement exempt from notice and comment. “[W]hile labels are not unimportant, the true test is how the pro-

16
gram is actually administered and whether it affects rights and obligations.” Id. Just as in Texas I, “[a] general statement of policy ‘genuinely leaves the agency and its decision-makers free to exercise discretion,’” and “does not impose any rights and obligations,” which cannot be said of DACA. Id. at 730 (quoting Texas I, 809 F.3d at 171).
The court found it “clear” that “the DACA program confers rights and imposes obligations.” Id. at 731. DACA recipients receive “lawful presence, the right to apply for work authorization, Social Security, Medicare, access to advance parole, and an array of other federal and state benefits.” Id. “DACA also impacts the obligations of the individual States” by forcing them “to spend money on various social services.” Id. And DACA “obligates the Government to forebear from implementing immigration enforcement proceedings.” Id. “These are certainly the kinds of rights and obligations that give a program ‘binding effect’ such that the notice-andcomment procedures are required.” Id.
Nor could APA notice and comment be avoided by purported discretion in conferring DACA benefits. There was “overwhelming evidence concerning the rights conferred and the obligations imposed.” Id. at 735. As with Texas I, “‘this case is about the [DHS] Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis.’” Id. at 735 (quoting Texas I, 809 F.3d at 170). As Executive action, DACA “must at least undergo the formalities of notice and comment.” Id. at 736.
* * *

17
In short, the Southern District of Texas, has confirmed that DACA is unlawful. That is further reason to conclude that the administration did not violate the APA by ending a discretionary—and unconstitutional— program.
II. DACA’s Obvious Unlawfulness Is Further Reason to Grant Review.
A. DACA contravenes federal law.
DACA is substantively unlawful for the reasons that the Fifth Circuit held Expanded DACA and DAPA unlawful. See supra Part I. Purported differences between DAPA and DACA cannot justify the latter.
First, the fact that DACA applies to a smaller number of aliens than DAPA does not make DACA lawful. DAPA and DACA’s unlawfulness turns on those programs unilaterally conferring lawful presence and access to work authorization—not on their comparative size. Texas, 809 F.3d at 178-86. Moreover, even were it relevant, DACA and DAPA both far exceed the size of any prior deferred-action program. See Texas DAPA Br. 53-59.
Nor can DACA be defended on the basis that Congress has provided a (demanding) path to lawful presence for some aliens covered by DAPA, while not providing any path at all for the aliens covered by DACA. That argument only undermines the position of DACA’s supporters. It means that DACA has even fewer arguments to support it than did DAPA. See Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Geo. L.J. Online 96, 116 (2015). Whereas past instances of deferred action had been defended on the ground that

18
they were stop-gap measures to ultimate lawful status theoretically obtainable under existing law, see Texas, 809 F.3d at 184-85 & n.197, DACA flouts Congress’s scheme for conferring lawful presence and cannot possibly be defended on that basis.
B. DACA is procedurally unlawful because it was promulgated contrary to the APA’s requirements.
Plaintiffs’ own pleadings in the various challenges to DACA’s rescission confirm that DACA is procedurally unlawful (even assuming arguendo executive power to create it) because DACA was a substantive rule subject to APA notice-and-comment procedure.
DACA is indisputably a “rule” for APA purposes. 5 U.S.C. §  551(4). Accordingly, DACA had to be issued through notice-and-comment procedure if it was a substantive rule rather than a mere “general statement[] of policy.” Texas, 809 F.3d at 171 (alteration in original). The key distinction between policy statements and substantive rules is that policy statements cannot be “binding.” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); see Texas DAPA Br. at 61-62.
A rule is binding if it creates or modifies “rights and obligations.” E.g., Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995), McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988). In Morton v. Ruiz, 415 U.S. 199 (1974), this Court held that a vastly more modest rule concerning benefits eligibility “affect[ed] individual rights and obligations” and therefore had to be treated as a substantive rule. Id. at 232. The same is true of DACA, under plaintiffs’ own pleadings.

19
1. This case involves orders entered in multiple actions and, therefore, multiple plaintiffs. The University of California plaintiffs, for example, contend that the DACA-wind-down memorandum “constitutes a substantive rule subject to APA’s notice-and-comment requirements.” Complaint at 14 ¶ 61, Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-05211 (N.D. Cal. Sept. 8, 2017), ECF No. 1.
But that could be true only if the creation of DACA was itself a substantive rule—one “affecting individual rights and obligations.” Ruiz, 415 U.S. at 232. If DACA were not a substantive rule that changed the rights of recipients, then winding down this program also could not be a substantive rule changing rights. Plaintiffs, however, allege that DACA is just such a substantive rule. First, plaintiffs admit that DACA purports to unilaterally confer lawful presence:
Individuals with DACA status were “not considered to be unlawfully present during the period in which deferred action [was] in effect.” USCIS FAQs.
Complaint at 8 ¶ 31, Regents of Univ. of Cal., No. 3:17cv-05211, ECF No. 1. And plaintiffs admit that aliens with DACA status would not have been able—but for DACA—to lawfully “obtain jobs and access to certain Social Security and Medicare benefits.” Id. at 2. The necessary implication of those pleadings is that DACA was unlawful all along, as it issued without notice and comment.
There is no requirement that the government must use notice-and-comment procedure to rescind a policy whose issuance needed but did not receive that proce-

20
dure. If the APA somehow required the federal Executive Branch to continue enforcing an unlawful policy while notice-and-comment procedure was used for the first time to rescind the policy, then the APA would be unconstitutional as applied to that unlawful policy.
2. The State of California plaintiffs likewise essentially plead that DACA’s attributes meet the test for a substantive rule requiring APA notice-and-comment procedure. For instance, these plaintiffs plead that “DACA Provides Numerous Benefits”:
82. DACA grantees are provided with numerous benefits. Most importantly, they are granted the right not to be arrested or detained based solely on their immigration status during the designated period of their deferred action.
83. DACA grantees are granted eligibility to receive employment authorization.
84. DACA also opened the door to allow travel for DACA grantees. For example, DACA grantees were allowed to briefly depart the U.S. and legally return . . . .
85. Unlike other undocumented immigrants, DACA grantees are not disqualified on the basis of their immigration status from receiving certain public benefits. These include federal Social Security, retirement, and disability benefits. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d). . . .
86. DACA grantees are able to secure equal access to other benefits and opportunities . . . .
Complaint at 17-18, California v. U.S. Dep’t of Home-

21
land Sec., No. 3:17-cv-05235-WHA (N.D. Cal. Sept. 11, 2017), ECF No. 1 (emphases added; citations omitted). The Garcia plaintiffs here admit the same thing. Complaint at 9 ¶ 27, Garcia v. United States, No. 3:17-cv5380 (N.D. Cal. Sept. 18, 2017), ECF No. 1 (“DACA confers numerous important benefits on those who apply for and are granted DACA status.”) (emphases added).6
3. In addition to the five challenges pending in the Northern District of California, several other lawsuits, pending in the Second and D.C. Circuits challenge the DACA-wind-down memorandum. Complaint, Trs. of Princeton Univ. v. United States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017), ECF No. 1; Complaint, NAACP v. Trump, No. 1:17-cv-1907 (D.D.C. Sept. 18, 2017), ECF No. 1; 3d Am. Complaint, Batalla Vidal v. Nielsen, No. 1:16-cv-4756 (E.D.N.Y. Dec. 11, 2017), ECF No. 113; Complaint, New York v. Trump, No. 1:17-cv5228 (E.D.N.Y. Sept. 6, 2017), ECF. No. 1. Plaintiffs in those cases similarly have pleaded, in substance, that DACA was unlawful from the outset because it confers substantive rights yet was issued without notice-andcomment procedure.
Plaintiffs in New York, for example, plead that DACA affirmatively confers benefits:
6 Furthermore, the California plaintiffs state that the APA does not allow policies to remain in effect when they are “predicated on an incorrect legal premise.” Complaint at 22 ¶ 106, California, No. 3:17-cv-5235, ECF No. 1. Since DACA rests on an incorrect legal premise in that it issued without notice-and-comment procedure, plaintiffs cannot obtain the relief they seek of DACA’s continued operation.

22
[¶] 218. DACA confers numerous benefits on DACA grantees. Notably, DACA grantees are granted the right not to be arrested or detained based solely on their immigration status . . . .
[¶] 220. DACA grantees are eligible to receive certain public benefits. These include Social Security, retirement, and disability benefits, and, in certain states, benefits such as driver’s licenses or unemployment insurance. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d).
Complaint at 41, New York, No. 1:17-cv-5228, ECF No. 1 (emphases added; citations omitted).
Accordingly, these plaintiffs essentially admit that DACA needed to go through APA notice-and-comment procedure because it was a substantive rule:
[¶] 289. In implementing the DHS Memorandum, federal agencies have changed the substantive criteria by which individual DACA grantees work, live, attend school, obtain credit, and travel in the United States. Federal agencies did not follow the procedures required by the APA before taking action impacting these substantive rights.
Id. at 54 (emphases added). If DACA’s rescission “affect[ed] individual rights
and obligations,” Ruiz, 415 U.S. at 232, then DACA’s creation did so, too, and was always unlawful.

23
III. Granting Certiorari to Allow Resolution of All Three DACA-Rescission Challenges This Term Is Warranted.
Without this Court’s prompt intervention, the orders enjoining the Executive from winding down DACA could last more than another year—frustrating the purpose of the Executive’s decision to promptly terminate disputes about DACA’s legality. Indeed, because the litigation challenging the DACA wind-down memorandum has persisted, Texas was forced to sue to challenge the June 15, 2012 memorandum creating DACA and its continued implementation.
The district court in Texas II found that Texas continues to suffer ongoing and irreparable harm from DACA. The States “bear the costs of providing [healthcare, education, and law-enforcement] social services required by federal law, and the DACA program increases the volume of individuals to whom they must provide these services.” 328 F. Supp. 3d at 700. Even the expert for parties defending DACA in Texas II opined that Texas alone “incurs more than $250,000,000 in total direct costs from DACA recipients per year.” Id. at 700-01. And DACA “increases the total number of individuals using Texas's social services.” Id. at 701. Additionally, DACA harms the States’ interests in protecting the economic well-being of their citizens through increased competition “with legally present individuals for available jobs, which can result in DACA recipients being hired for jobs for which legally present individuals have applied and otherwise would have been hired.” Id. at 693.

24
Granting certiorari to allow for prompt resolution of all the disputed aspects of DACA’s rescission would reduce the present burdens to the courts from the existing litigation. Moreover, the Texas II litigation could result in a ruling abruptly ending DACA, rather than winding it down as directed by the Executive in the memorandum challenged here.
CONCLUSION
The petition for a writ of certiorari should be granted.

KEN PAXTON Attorney General of
Texas
JEFFREY C. MATEER First Assistant
Attorney General
STEVE MARSHALL Attorney General of
Alabama
MARK BRNOVICH Attorney General of
Arizona
LESLIE RUTLEDGE Attorney General of
Arkansas

Respectfully submitted.
KYLE D. HAWKINS Solicitor General
Counsel of Record
ARI CUENIN JOHN C. SULLIVAN Assistant Solicitors General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 kyle.hawkins@oag.texas.gov (512) 936-1700

25
PAMELA JO BONDI Attorney General of
Florida
JEFF LANDRY Attorney General of
Louisiana
PHIL BRYANT Governor of
Mississippi
DOUG PETERSON Attorney General of
Nebraska
ALAN WILSON Attorney General of
South Carolina
PATRICK MORRISEY Attorney General of
West Virginia
DECEMBER 2018

 
 No. 18-588
IN THE
Supreme Court of the United States
_________
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., Petitioners, v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL., Respondents. ________
On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals
for the District of Columbia Circuit ________
BRIEF IN OPPOSITION ________

JOSEPH M. SELLERS JULIE S. SELESNICK COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., N.W. Fifth Floor Washington, DC 20005 (202) 408-4600
Counsel for Respondents NAACP; American Federation of Teachers, AFLCIO; and United Food and Commercial Workers International Union, AFLCIO, CLC

THOMAS J. PERRELLI LINDSAY C. HARRISON
Counsel of Record SAM HIRSCH JENNER & BLOCK LLP 1099 New York Ave., N.W. Suite 900 Washington, DC 20001 (202) 639-6000 lharrison@jenner.com
Counsel for Respondents The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez

(Additional Counsel Listed on Inside Cover)

RAMONA E. ROMERO WESLEY MARKHAM PRINCETON UNIVERSITY New South Building Fourth Floor Princeton, NJ, 08544 (609) 258-2500
Counsel for Respondent The Trustees of Princeton University
CYNTHIA L. RANDALL MICROSOFT CORPORATION One Microsoft Way Redmond, WA 98052 (425) 538-3176
Counsel for Respondent Microsoft Corporation
BRADFORD M. BERRY NAACP 4805 Mount Hope Drive Baltimore, MD 21215 (410) 580-5797
Counsel for Respondent NAACP

ISHAN BHABHA ALEX S. TREPP JENNER & BLOCK LLP 1099 New York Ave., N.W. Suite 900 Washington, DC 20001 (202) 639-6000
Counsel for Respondents The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez
DAVID J. STROM AMERICAN FEDERATION OF TEACHERS, AFL-CIO 555 New Jersey Ave. N.W. Washington D.C. (202) 393-7472
Counsel for Respondent American Federation of Teachers, AFL-CIO
PETER J. FORD UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC 1775 K Street. N.W. Washington D.C. 20006 (202) 223-3111
Counsel for Respondent United Food & Commercial Workers International Union, AFL-CIO, CLC

i
QUESTIONS PRESENTED
The questions presented are as follows:
1. Whether the Department of Homeland Security’s rescission of the Deferred Action for Childhood Arrivals (DACA) program is immune from judicial review.
2. Whether the rescission of the DACA program is lawful under the Administrative Procedure Act.

ii
PARTIES TO THE PROCEEDING
Respondents are The Trustees of Princeton University; Microsoft Corporation; Maria De La Cruz Perales Sanchez; the National Association for the Advancement of Colored People; American Federation of Teachers, AFL-CIO; and United Food and Commercial Workers International Union, AFL-CIO, CLC.
Petitioners are Donald J. Trump, President of the United States; Matthew Whitaker, Acting Attorney General of the United States; Kirstjen M. Nielsen, Secretary of Homeland Security; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; the U.S. Department of Homeland Security; and the United States.

iii TABLE OF CONTENTS QUESTIONS PRESENTED ........................................... i
PARTIES TO THE PROCEEDING ............................. ii
TABLE OF AUTHORITIES ......................................... iv
INTRODUCTION ............................................................. 1
STATEMENT OF THE CASE ....................................... 2
I. DACA....................................................................... 2
II. Proceedings Below ................................................. 8
REASONS FOR DENYING THE WRIT .................. 10
I. Review of the Regents Case Is Premature.............................................................. 10
II. The Petition for Certiorari Before Judgment in this Case Should Be Denied......... 13
III. The District Court’s Decision Is Correct.......... 18
A. The Rescission of DACA Is Subject to Judicial Review...................... 18
B. The District Court Correctly Held that the Rescission of DACA Was Arbitrary and Capricious. ....................... 27
CONCLUSION ................................................................ 35

iv
TABLE OF AUTHORITIES
CASES
Aaron v. Cooper, 357 U.S. 566 (1958) ........................ 18
Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir. 2006) ................................................................. 30
American Construction Co. v. Jacksonville, Tampa & Key West Railway Co., 148 U.S. 372 (1893) ................................................................ 12
Ashcroft v. ACLU, 542 U.S. 656 (2004) ..................... 12
Beame v. Friends of the Earth, 434 U.S. 1310 (1977) ....................................................................... 15
Brown v. Chote, 411 U.S. 452 (1973) .......................... 12
Camp v. Pitts, 411 U.S. 138 (1973) ............................. 31
Casa De Maryland v. United States Department of Homeland Security, 284 F. Supp. 3d 758 (D. Md. 2018), appeal docketed, No. 18-1522 (8th Cir. May 8, 2018)......................................................................... 19
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977) ............. 19
Coleman v. Paccar Inc., 424 U.S. 1301 (1976) ..............................................................2, 13-14
Consumer Energy Council of America v. FERC, 673 F.2d 425 (D.C. Cir. 1982), aff’d sub nom. Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216 (1983)............................................... 32

v
Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ................................. 21
Dames & Moore v. Regan, 453 U.S. 654 (1981) ........ 13
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) .................................................. 27, 28, 33
Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)................ 16
Heckler v. Chaney, 470 U.S. 821 (1985) ............................................... 19, 20, 21, 22, 24
ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987)................................................. 23
International Union, UAW v. Brock, 783 F.2d 237 (D.C. Cir. 1986)................................................ 25
Judulang v. Holder, 565 U.S. 42 (2011) ..................... 25
Lincoln v. Vigil, 508 U.S. 182 (1993) .......................... 21
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) ................................................................... 8, 19
Massachusetts v. EPA, 549 U.S. 497 (2007) ....... 21, 22
Mistretta v. United States, 488 U.S. 361 (1989)........ 13
Motor Vehicle Manufacturers Ass’n of United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) ..................................................... 25, 29, 31, 33
National Ass’n of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018) ..................................................................15-16

vi
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990)..................................... 31
Ex parte Quirin, 317 U.S. 1 (1942) ............................. 13
Reno v. American–Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) ..................... 26, 27
Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) ....................................................................... 15
SEC v. Chenery Corp., 318 U.S. 80 (1943) ................ 34
Spears v. United States, 555 U.S. 261 (2009) ............ 11
Texas v. United States, 328 F. Supp. 3d 662 (S.D. Tex. 2018) ...................................................... 14
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) .............................................. 6
United States v. Nixon, 418 U.S. 683 (1974) ............. 13
United States v. Texas, 136 S. Ct. 2271 (2016)............ 6
United States v. Texas, 137 S. Ct. 285 (2016).............. 6
Virginia Military Institute v. United States, 508 U.S. 946 (1993)................................................. 12
Volpe v. District of Columbia Federation of Civic Ass’ns, 405 U.S. 1030 (1972) ...................... 18
Weyerhaeuser Co. v. United States Fish & Wildlife Service, 139 S. Ct. 361 (2018) ................ 19
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)........................................................ 13

vii STATUTES
5 U.S.C. § 701(a)(2) ..................................................18-19 6 U.S.C. § 202(5) ............................................................ 33 8 U.S.C. § 1103(a)(1) ..................................................... 34 8 U.S.C. § 1252(g).......................................................... 26 8 U.S.C. § 1324a(h)(2) ................................................... 34 8 U.S.C. § 1611(b)(2) ....................................................... 4 8 U.S.C. § 1611(b)(3) ....................................................... 4 8 U.S.C. § 1621(d)............................................................ 4 28 U.S.C. § 2101(e) .......................................................... 2 LEGISLATIVE MATERIALS Hearing on Kirstjen M. Nielsen to be
Homeland Security Secretary Before the S. Comm. on Homeland Sec. and Gov’t Affairs, 115th Cong. (2017) .................................. 16 Hearing on Oversight of the United States Department of Homeland Security Before the S. Comm. on the Judiciary, 115th Cong. (2018) ............................................................ 17 OTHER AUTHORITIES 8 C.F.R. § 274a.12(c)(14) ................................................ 4 8 C.F.R. § 212.5(f) ........................................................... 4 42 C.F.R. § 417.422(h) .................................................... 4 42 C.F.R. § 422.50(a)(7) .................................................. 4

viii
Scott Clement & David Nakamura, Survey Finds Strong Support for ‘Dreamers’, Wash. Post (Sept. 25, 2017), https://tinyurl.com/ybqvqajx ................................. 4
NPR Poll: 2 in 3 Support Legal Status for DREAMers; Majority Oppose Building a Wall, NPR: All Things Considered (Feb. 6, 2018), https://tinyurl.com/yblhrs2d ................... 4
READ: President Trump’s Full Exchange With Reporters, CNN.com (Jan. 24, 2018), https://tinyurl.com/ydcafdtr ................................. 15
Sup. Ct. R. 11......................................................... 13, 14

1
INTRODUCTION
The government seeks certiorari before judgment in this case based primarily on the pendency of its petition in a different case that is itself a poor candidate for review.1 That case, United States Department of Homeland Security v. Regents of the University of California, No. 18-587, arrives to the Court on an interlocutory posture without a circuit split. And the government makes no credible case for interlocutory review. The DACA program has been in place since 2012. The program was essentially unchallenged through the past administration, and the current administration voluntarily maintained the program for more than eight months before rescinding it. Even upon rescission, the administration allowed many recipients to renew their status once more, effectively continuing the program into 2020. The government has not sought to stay the preliminary injunctions issued by various courts while the parties litigate the Regents respondents’ claims. Those injunctions are limited to allowing existing DACA recipients to renew their status; they do not compel the government to consider new DACA applications, and they do not allow DACA recipients to leave the country and return using
1 Although Respondents brought two separate cases, they were litigated in the district court as one, and are treated in the Petition as one. Respondents submit a single Brief in Opposition and will refer to their related cases in the singular. Respondents will likewise refer to the three related Regents cases in the singular, and to the two related Batalla Vidal cases in the singular. See Kirstjen M. Nielsen v. Martin Jonathan Batalla Vidal, No. 18589.

2
advance parole. In short, the government’s actions in this case demonstrate a lack of urgency in rescinding DACA that belies its current assertion that this Court should review the Regents decision immediately. These and other arguments are set forth in the briefs in opposition submitted by the respondents in the Regents case, and Respondents adopt them in full.
Stripped of the false sense of urgency created by the government’s invocation of the Regents decision, there is nothing left of the government’s petition for certiorari before judgment here, and it should be denied. This case is presently being briefed before the D.C. Circuit and will likely be argued in early 2019. Under this Court’s rules, certiorari before judgment is warranted only where the petitioner establishes that “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Sup. Ct. R. 11. It is thus the “extremely rare” case that is appropriate for such review. Coleman v. Paccar Inc., 424 U.S. 1301, 1304 n.* (1976) (Rehnquist, J., in chambers); see 28 U.S.C. § 2101(e). This case does not meet that standard. And even if it did, the Court should deny review because the district court correctly held that DACA’s rescission was reviewable and unlawful.
STATEMENT OF THE CASE
I. DACA
Prior to 2012, millions of young people raised in this country were compelled by circumstances beyond their control to live in the shadows. Brought here as children, they attended American schools, contributed to

3
American communities, and strived to achieve American dreams. But because they were not lawfully present, their lives did not resemble those of their American classmates: They often could not secure government-issued identification and, accordingly, could not travel by plane to visit family or attend college far from home; they could not secure work authorization; they generally could not open bank accounts, obtain credit cards, or engage in commercial activity requiring access to credit; they could not access public benefits and, in many cases, health insurance; they could not enlist in the Armed Forces; and they lived in constant fear of law enforcement, with whom any interaction might mean deportation to a country that was foreign to them.
Despite these hardships, many of these young people triumphed. They worked hard and excelled in school, developed talents and professional skills, and contributed to their families and communities. Known as “Dreamers,” they achieved these accomplishments notwithstanding their status under the immigration laws. From the perspective of immigration authorities, they were—and still are—a low priority for enforcement. AR 1; infra pp. 16-17.2 From the perspective of most Americans, regardless of political affiliation, they were—and still are—individuals with the values and work ethic America cherishes, and they
2 “AR” refers to the administrative record filed by the government in these proceedings. Dkt. 8-3; see also Regents of the University of California, et al. v. DHS, et al., Case No. 3:17-cv05211 (N.D. Cal.), ECF No. 64-1. All references to “Dkt.” are to documents filed in the district court in No. 17-cv-2325.

4
deserve to live their lives in the only country many have known.3
In 2012, the Department of Homeland Security (DHS) sought to address the plight of the Dreamers. Consistent with its longstanding authority to establish deferred-action programs. Pet. App. 3a-4a; AR 15-23. DHS thus established the Deferred Action for Childhood Arrivals program (DACA). Pet. App. 5a.
By statute and regulation separate and distinct from the DACA program, all persons subject to deferred action—whether under DACA or any other program—may access certain benefits in recognition of their continued presence in the United States. They may seek work authorization. 8 C.F.R. § 274a.12(c)(14). They may request advance parole to travel abroad and re-enter the United States. Id. § 212.5(f). And they are eligible for driver’s licenses, health insurance, and certain public programs. 8 U.S.C. § 1611(b)(2)-(3) (Social Security and Medicare); id. § 1621(d) (state benefits); 42 C.F.R. §§ 417.422(h), 422.50(a)(7) (health insurance).
Before the DACA program was instituted, the Office of Legal Counsel (OLC) advised DHS that DACA was lawful so long as “immigration officials retained discretion to evaluate each application on an individualized basis.” Pet. App. 53a n.22 (quotation
3NPR Poll: 2 in 3 Support Legal Status for DREAMers; Majority Oppose Building a Wall, NPR: All Things Considered (Feb. 6, 2018), https://tinyurl.com/yblhrs2d; Scott Clement & David Nakamura, Survey Finds Strong Support for ‘Dreamers’, Wash. Post (Sept. 25, 2017), https://tinyurl.com/ybqvqajx.

5
marks omitted). OLC later memorialized its analysis in a 33-page memorandum that primarily addressed a 2014 proposed program known as “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA). Pet. App. 52a-53a. In its memorandum addressing DAPA, the OLC noted, “[t]he concerns animating DACA were . . . consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.” Pet. App. 53a n.22 (quotation marks omitted; ellipsis in original).
DACA went into force in 2012, and by all accounts, DACA has been successful in enabling hundreds of thousands of young people to pursue higher education and work legally, without the fear of deportation. Pet. App. 54a. Today, DACA recipients make substantial contributions to the U.S. economy, in addition to serving their communities and in this nation’s military.
Separately, DHS sought to implement DAPA. DAPA would have extended eligibility for deferred action to approximately 4 million parents of U.S. citizens or lawful permanent residents who were themselves unlawfully present in the United States. AR 33. DAPA also purported to expand the DACA program in certain minor respects. AR 39-40 (changing from two to three-year extension terms, adjusting date-of-entry requirement, and removing age cap). DAPA never went into effect, however, because a coalition of states led by Texas secured a preliminary injunction based on the agency’s failure to follow the

6
APA’s notice-and-comment rulemaking requirements.4 Pet. App. 6a. The Fifth Circuit affirmed, holding that the states had demonstrated a likelihood of success on the merits not only of their procedural APA claim, but also of their substantive APA claim, because DAPA appeared to conflict with the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.” Texas v. United States, 809 F.3d 134, 146, 179 (5th Cir. 2015). This Court granted a petition for a writ of certiorari but divided evenly, thereby affirming the preliminary injunction. See United States v. Texas, 136 S. Ct. 2271 (2016). The government sought rehearing, noting that the country lacked a “definitive ruling” on DAPA’s legality. Dkt. 28-16 at 2504. That petition was denied. United States v. Texas, 137 S. Ct. 285 (2016).
Even after President Trump took office, DHS opted to maintain DACA. In February 2017, then-Secretary of Homeland Security Kelly repealed a broad array of immigration directives but specifically exempted DACA. AR 230. As he later explained, he viewed “DACA status” as a “commitment … by the government towards the DACA person.” Dkt. 28-15 at 1922. In June 2017, Secretary Kelly rescinded DAPA, but again left DACA in place. AR 235-37. Likewise, in public comments the President said “dreamers should rest easy,” characterizing the “policy of [his] administration . . . to allow the dreamers to stay.” Dkt. 28-15 at 1939-40.

4 The states expressly declined to challenge DACA, which had already been in place for two years.


7
In June 2017, approximately the time Secretary Kelly made his second decision to leave DACA in place, Attorney General Sessions and other members of the Justice Department communicated with attorneys general from several of the states that had challenged DAPA in the Texas case. Dkt. 28-15 at 1951-52. Those conversations culminated in a letter from the state attorneys general to Attorney General Sessions on June 29, 2017. AR 238-40. Although the states had not challenged DACA in the five years since it had been implemented, the letter asserted that DACA was unlawful and asked Defendants to “phase out the DACA program”; if Defendants did not do so, the states said, they would amend their years-old complaint against DAPA to challenge DACA for the first time. AR 239.
On September 4, 2017, Attorney General Sessions announced, in a one-page letter, that DACA was “unconstitutional” and lacked “statutory authority.” AR 251. The letter provided no legal analysis, but simply referenced the Texas DAPA litigation and the “potentially imminent litigation” over DACA. AR 251. The next day, Acting Secretary of Homeland Security Duke issued a memorandum rescinding DACA (the “Duke Memorandum”). AR 252-56. After describing the course of the Texas litigation and reciting the Attorney General’s conclusion that DACA was unlawful, Acting Secretary Duke simply announced that it was “clear” that DACA should be terminated. AR 255.
The Duke Memorandum instructed DHS to stop accepting new initial DACA applications and approving new applications for advance parole; to accept renewal

8
applications from individuals whose current deferred action would expire by March 5, 2018; and to accept such renewals until October 5, 2017. AR 255.
II. Proceedings Below
Respondents sued in the United States District Court for the District of Columbia to challenge the decision to rescind DACA. In April 2018, Judge John D. Bates granted Respondents’ motion for summary judgment, holding the agency’s decision unlawful and setting it aside. Judge Bates concluded that the rescission of DACA was reviewable and that the reasons given to support it were inadequate under the Administrative Procedure Act (APA). Pet. App. 72a74a. In particular, Judge Bates held that the government could not overcome the “strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (internal quotation marks omitted). And he held that DACA’s rescission was arbitrary and capricious because the government “failed adequately to explain its conclusion that the program was unlawful.” Pet. App. 2a. Judge Bates stayed the order of vacatur for ninety days to allow DHS to attempt to remedy the Duke Memorandum’s inadequacies. Pet. App. 66a.
In June 2018, Secretary Kirstjen M. Nielsen issued a new memorandum “concur[ring] with and declin[ing] to disturb” the Duke Memorandum. Pet. App. 81a, 86a. The government then moved Judge Bates to revise the April 2018 order and uphold the Duke Memorandum. Pet. App. 81a.

9
In August 2018, Judge Bates issued an opinion denying the government’s motion to revise. The opinion was narrow: “The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision.” Pet. App. 108a-109a (citing 5 U.S.C. § 706(2)). Judge Bates found, once again, that DHS had failed to satisfy the bare minimum of rational decisionmaking required by the APA. Pet. App. 108a109a.
The government filed a notice of appeal to the United States Court of Appeals for the D.C. Circuit. Pet. App. 112a, 114a. The government then moved Judge Bates for a stay of the vacatur pending appeal. Judge Bates granted the government’s motion in part, aligning the vacatur order with relief granted by other courts and maintaining a stable status quo: DHS did not have to begin accepting initial DACA applications or applications for advance parole, but the government had to continue processing DACA renewals. Dkt. 86 at 2. The government has not sought a stay before the D.C. Circuit.
The government’s opening brief was filed in the D.C. Circuit on November 26, 2018. Briefing will be complete in the D.C. Circuit on January 22, 2019.
On November 5, 2018, the government filed a petition for a writ for certiorari before judgment in this case and two others: Regents No. 18-587 as well as Nielsen v. Batalla Vidal, No. 18-589. On November 8,

10
2018, the Ninth Circuit issued its opinion in the Regents case. Two judges affirmed the district court in full, holding that the rescission was reviewable and likely unlawful. Regents Supp. Pet. App. 5a-78a. One judge believed that the rescission was not reviewable under the APA, but that the Regents respondents were likely to prevail on their equal protection claim. Regents Supp. Pet. App. 79a-87a.
On November 19, 2018, the government filed a supplemental brief in this Court in the Regents case, seeking to convert its petition for certiorari before judgment into a petition for certiorari and arguing that the Ninth Circuit opinion strengthened the case for certiorari in all three cases. The government filed a second supplemental brief on November 27, 2018, correcting its prior supplemental brief and maintaining the same position that certiorari before judgment should be granted in this case.
REASONS FOR DENYING THE WRIT
Petitioners seek the extraordinary action of this Court granting certiorari before any court of appeals has reviewed a final judgment on the questions presented—and before this case has been fully briefed before the D.C. Circuit. Petitioners come nowhere near satisfying this Court’s standards for a grant of certiorari before judgment, and thus the petition should be denied.
I. Review of the Regents Case Is Premature.
As the respondents in the Regents case explain, notwithstanding the issuance of the Ninth Circuit’s decision, the petition in that case does not meet the

11
standard for this Court’s review. That case does not involve a circuit split. Nor does the petition present an important question of federal law that should be resolved now.
The first question presented asks only whether the district court misapplied the long-settled legal standard governing when agency action is exempt from judicial review. Applying that standard, all courts that have considered the matter have concluded that the agency’s rescission of DACA is reviewable.
The second question presented addresses the legality of DHS’s rescission of DACA. While that question may ultimately merit this Court’s review, granting certiorari at this stage would short-circuit the development of these issues in the lower courts. “[T]his is exactly the sort of issue that could benefit from further attention in the courts of appeals.” Spears v. United States, 555 U.S. 261, 270 (2009) (Roberts, C.J., dissenting). The D.C. Circuit, in particular, has valuable expertise on questions of administrative law. It, along with the Second and Fourth Circuits, will soon pass on both issues presented by the petition, and the courts of appeals will likely issue their decisions on these cases in 2019. Granting the petitions before those courts have ruled would unnecessarily deprive the Court of their analysis.
Additionally, the Ninth Circuit addressed the questions presented in an interlocutory posture, holding that the Regents respondents “are likely to succeed in demonstrating that the rescission must be set aside.” Regents Supp. Pet. App. 57a; see also Regents Supp. Pet. App. 77a & n.31. This Court reviews

12
that determination solely for “abuse of discretion” and “uphold[s] the injunction” if “the underlying … question is close.” Ashcroft v. ACLU, 542 U.S. 656, 66465 (2004) (internal quotation marks omitted). For this very reason, ordinarily this Court awaits final judgment before granting a petition for review.5 See, e.g., Va. Military Institute v. United States, 508 U.S. 946 (1993) (Scalia, J., concurring in denial of certiorari); Am. Constr. Co. v. Jacksonville, Tampa & Key W. Ry. Co., 148 U.S. 372, 384 (1893).
Moreover, the Regents respondents present a distinct equal protection claim that the Ninth Circuit found credible, but which had not been fully developed. That claim was not the basis for the district court’s entry of a preliminary injunction. Regents Supp. Pet. App. 84a. Thus, it is not squarely presented for this Court’s review. See Brown v. Chote, 411 U.S. 452, 457 (1973). As all three Ninth Circuit judges recognized, however, if presented to the district court, that claim may result in the entry of an identical preliminary injunction, should the existing injunction be vacated. See Regents Supp. Pet. App. 77a n.31, 84a-87a.
For these reasons, and those set forth in greater detail by the Regents respondents, review of the
5 While this Court granted United States v. Texas on an interlocutory posture, circumstances there were materially different. DAPA had not yet been implemented, thus there were no reliance interests to weigh in the balance of factors. See AR 183 (“The interest the government has identified can be effectively vindicated after a trial on the merits. The interest the states have identified cannot be, given the difficulty of restoring the status quo ante if DAPA were to be implemented.”).

13
questions presented in that case is premature.
II. The Petition for Certiorari Before Judgment in this Case Should Be Denied.
Even leaving aside that the district court’s decision below was correct on the merits, see infra pp. 18-34, the petition for certiorari before judgment should be denied for numerous reasons.
First, this case does not meet the standard for review before judgment. Sup. Ct. R. 11. It does not involve exigent circumstances remotely comparable to those at issue in cases where the standard was met, such as the legality of a military commission at a time of war, Ex parte Quirin, 317 U.S. 1, 20 (1942); the wartime seizure of a steel mill, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583-84 (1952); an impending deadline involving the breach of an international treaty, Dames & Moore v. Regan, 453 U.S. 654, 660 (1981); or grand jury proceedings involving the sitting President, United States v. Nixon, 418 U.S. 683, 686-87 (1974). Nor is there “disarray among the Federal District Courts” that might justify this Court’s expedited review. Mistretta v. United States, 488 U.S. 361, 371 (1989). Each case in which certiorari before judgment has been granted involved emergent issues of national security or issues that “touch fundamentally upon the manner in which our Republic is to be governed.” Dames & Moore, 453 U.S. at 659. Even if the questions of administrative law in this case may ultimately be appropriate for the Court’s review, there is no comparable emergency here. Simply put, this is not the “extremely rare” case that justifies “deviation from normal appellate practice.” Coleman,

14
424 U.S. at 1304 n.* (Rehnquist, J., in chambers); Sup. Ct. R. 11.
Second, the government’s own actions belie its newly-minted claim of urgency. DACA has been in place since 2012. The current administration continued the program for more than eight months before deciding to discontinue it in response to threats from certain states. See Pet. App. 8a-9a. Even then, the administration allowed some DACA recipients to renew their deferred status, in effect extending the program for an additional two and a half years. Because the preliminary injunctions in other cases are limited and the vacatur in this case is partially stayed, no new applicants may receive deferred action under the DACA program. Given this status, the district court in the Southern District of Texas, the court which invalidated DAPA, denied the states’ motion for a preliminary injunction against DACA. Texas v. United States, 328 F. Supp. 3d 662, 741-42 (S.D. Tex. 2018). No exigency exists necessitating immediate review of a policy that has been in place since 2012 and that the government itself opted to extend in part through March 2020.
The administration’s statements provide further proof that immediate review is unwarranted. The President has indicated that it is his “policy” to “allow the dreamers to stay,” Dkt. 28-15 at 1939-40, and senior officials have issued other statements in support of DACA recipients, see, e.g., Dkt. 28-15 at 1922. Contrary to Petitioners’ arguments, the President also has asserted that he “certainly [has] the right” to keep DACA in place and indicated he “might” decide to do

15
so. See READ: President Trump’s Full Exchange With Reporters, CNN.com (Jan. 24, 2018), https://tinyurl. com/ydcafdtr (CNN Statement).
Third, the government’s litigation conduct confirms that immediate review is unnecessary. The government has never sought to stay the preliminary injunctions issued in the Northern District of California or the Eastern District of New York. Nor did the government seek a stay of Judge Bates’ decision to allow portions of the vacatur to take effect consistent with those preliminary injunctions. A stay request would require Petitioners to demonstrate irreparable harm, and to show that the balance of hardships favors a stay, something Petitioners have never attempted to articulate—and could not do, even if they tried. Petitioners’ litigation choices “blunt [the government’s] claim of urgency,” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317-18 (1983) (Blackmun, J., in chambers), and “vitiate[] much of the force” of its claimed harm, Beame v. Friends of the Earth, 434 U.S. 1310, 1313 (1977) (Marshall, J., in chambers).
Fourth, the government faces no concrete harm from allowing this case to be decided first by the D.C. Circuit. The government suggests that review is necessary because it is being required to retain a policy it believes is unlawful. Pet. 14-15. But the government need not grant any new DACA applications. And the asserted harm with respect to existing DACA recipients does not warrant premature review: courts regularly maintain the status quo while the government litigates the extent of its authority or legality of its conduct. E.g., Nat’l Ass’n of Mfrs. v. Dep’t

16
of Defense, 138 S. Ct. 617, 627 (2018) (noting the “nationwide stay of the [Waters of the United States] Rule pending further proceedings”); Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423 (2006) (affirming injunction against enforcement of Controlled Substances Act). Indeed, an alteration of the status quo pending final judgment is the exception, not the norm. The purported harm of maintaining in place a program that has existed since 2012, in the face of an attempt at rescission deemed unlawful by Judge Bates, does not justify circumventing the normal process for appellate review.
The alleged harm of permitting current DACA recipients to maintain their status while this litigation is pending is further discredited by Secretary Nielsen’s testimony before Congress that DACA recipients would not be an enforcement priority following DACA’s rescission.6 See Hearing on Kirstjen M. Nielsen to be Homeland Security Secretary Before the S. Comm. on Homeland Sec. and Gov’t Affairs, 115th Cong. (2017) (exchange with Senator Harris); accord
6 Even if DACA recipients are not likely to be immediately removed, without DACA they will lose their authorization to work. As described in detail in Respondents’ submissions to the district court, the consequences for DACA recipients will be disastrous, effectively cutting short promising careers and educational programs and terminating DACA recipients’ ability to support themselves and their families. See Dkts. 28-8, 28-17; Regents Pet. App. 62a-66a (recognizing catastrophic consequences of rescission and concluding that consequences for DACA recipients and other affected parties outweigh government’s asserted interest in initiating wind-down); Batalla Vidal Pet. App. 123a-126a (same).

17
Hearing on Oversight of the United States Department of Homeland Security Before the S. Comm. on the Judiciary, 115th Cong. (2018) (exchange with Senator Harris). Moreover, the district court’s order does not compel the government to “sanction” the unlawful presence of anyone. Under DACA’s plain terms, each renewal application is evaluated “on a case by case basis,” AR 2, and DHS can initiate removal proceedings against DACA recipients determined to present a risk to national security or public safety. AR 1-3; see also Regents Pet. App. 45a. As Judge Bates noted, this litigation “does not itself delay the removal of any specific alien.” Pet. App. 38a.
Fifth, for similar reasons, the continuation of DACA causes no harm to the public. DACA recipients were subjected to rigorous background checks and heavy scrutiny to ensure they did not pose a “threat to national security or public safety,” had not “been convicted of certain criminal offenses,” and fulfilled educational and work-related criteria. Pet. App. 4a. Under the terms of the DACA program itself, the government can terminate deferred action if, for example, a DACA recipient is convicted of a disqualifying crime. Sensibly, the government does not even contend that the public might somehow be harmed by the continued lawful presence of DACA recipients during this litigation.
Sixth, the government is incorrect that the pendency of this litigation may stymie legislative resolutions to these issues. Pet. at 15. As the government concedes, the challenge of achieving legislative compromise long predates this litigation.

18
Pet. at 4, 15. And with a new Congress set to convene, there is a renewed possibility of a legislative solution. Congressional action could render the matter moot. This possibility counsels against premature consideration by this Court. See, e.g., Volpe v. D.C. Fed’n of Civic Ass’ns, 405 U.S. 1030, 1030 (1972) (Burger, C.J., concurring in denial of certiorari).
Finally, denying certiorari will not preclude consideration of the questions presented. The government’s demand that the Court abandon the ordinary, time-tested appellate process is simply a means to rush the case to the Court this Term—all in a context where the government has never identified any concrete harms caused by addressing this case in the normal course. It is virtually certain that the D.C. Circuit will issue a decision in plenty of time for a petition to be considered next Term. See Aaron v. Cooper, 357 U.S. 566, 566-67 (1958) (per curiam) (denying petition for certiorari before judgment). If the Court believes the questions merit review at that time, it will have the benefit of additional circuit opinions. It will also have the option of deciding these issues through a vehicle that is not interlocutory.
III. The District Court’s Decision Is Correct.
The Court should also deny certiorari because Judge Bates’ decision is correct on the merits.
A. The Rescission of DACA Is Subject to Judicial Review.
As every court to consider the first question presented has agreed, DACA’s rescission is neither “committed to agency discretion by law,” 5 U.S.C.

19
§ 701(a)(2), nor an action “to commence proceedings, adjudicate cases, or executive removal orders,” 8 U.S.C. § 1252(g). See Pet. App. 25a-43a; Regents Pet. App. 26a-30a; Batalla Vidal Pet. App. at 25a-31a; see also Casa De Maryland v. U.S. Homeland Sec., 284 F. Supp. 3d 758, 770 (D. Md. 2018), appeal docketed, No. 18-1522 (4th Cir. May 8, 2018).
1. There is a “strong presumption favoring judicial review of administrative action,” that the government “bears a heavy burden” to overcome. Mach Mining, 135 S. Ct. at 1651 (internal quotation marks omitted); see also Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 369-70 (2018) (slip op. at 11). Section 701(a)(2) offers a “very narrow exception” to that strong presumption, triggered only when “in a given case there is no law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). That is not the case here.
a. The government’s lead argument is that “Section 701(a)(2) precludes review of an agency’s decision not to institute enforcement actions” under Heckler v. Chaney, 470 U.S. 821, 831 (1985). Regents Pet. 18. But the government does not even contend that DACA’s rescission is such a decision; rather, it seeks to expand Chaney to make unreviewable all agency decisions about whether and how to enforce federal statutes—no matter the scope and formality of the agency’s decision, no matter whether the decision reflects an erroneous view of the agency’s legal authority, and no matter whether the agency action at issue is a nonenforcement decision at all. Such an expansion—which


20
would encourage politically unaccountable agencies to make policy in the guise of unreviewable legal determinations—is unwarranted, unwise, and without basis in law.
In Chaney, death-row inmates filed a petition asking the FDA to initiate enforcement proceedings to stop two states from using certain drugs in their executions. See 470 U.S. at 823-24. The FDA responded by letter, explaining that the agency’s enforcement authority in the area was “generally unclear” and that, in any event, the agency had decided that the particular facts alleged did not meet the agency’s criteria for initiating enforcement. See id. at 824-25. The inmates sought judicial review, arguing that the FDA did have authority to act and that it had misapplied its own enforcement criteria. Id. at 825-26.
This Court held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” Id. at 832. But the Court’s decision was limited in two critical respects. First, the Court was careful to note that “[w]e do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction.” Id. at 833 n.4. In such a case, “the statute conferring authority on the agency” might suffice to indicate that the agency’s decision to tie its own hands was not “committed to agency discretion.” Id. (internal quotation marks omitted). Second, the Court addressed only an agency’s refusal to undertake a “particular enforcement action” in a given instance. Id. at 831. The Court referred throughout its opinion to an individual “refusal to institute proceedings,” which it analogized

21
to an individual prosecutor’s decision “not to indict” a given offender. Id. at 832; see id. at 827-38.
i. The government seeks to expand Chaney’s narrow presumption of unreviewability from individual non-enforcement decisions to “broad enforcement polic[ies].” Regents Pet. 20 (quotation marks omitted). But Chaney does not apply to general enforcement policies at all. This Court has previously declined to extend Chaney to decisions not to institute a rulemaking. See Massachusetts v. EPA, 549 U.S. 497, 527 (2007). The Court noted as “key differences” the fact that “agency refusals to initiate rulemaking ‘are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation.’” Id. (quoting Am. Horse Protection Ass’n v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987)). There are similar “ample reasons for distinguishing” between broad enforcement policies and “single-shot” nonenforcement decisions like in Chaney. See Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676-77 (D.C. Cir. 1994).7
To be clear, Respondents do not suggest that all challenges to broad enforcement policies are necessarily amenable to review, but simply that they are, as a class, outside Chaney’s narrow reversal of the presumption of reviewability. In some cases, there may 
7 For similar reasons, the lump sum appropriation held unreviewable in Lincoln v. Vigil, 508 U.S. 182 (1993), is distinguishable from a broad enforcement policy. Like a singleshot enforcement decision, the decision not to fund a program for handicapped Indian children in the Southwest is not as amenable to judicial review as a broad enforcement policy. Id. at 192-93.
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22
be no “law to apply.” See infra pp. 24-26. And in many cases, review of agency policies will be highly deferential. See Massachusetts, 549 U.S. at 527 (holding that review of a refusal to initiate rulemaking should be deferential). But broad discretion is not the same as unreviewable discretion, and neither Chaney nor any of this Court’s other cases suggest that a general enforcement policy is presumptively immune from review under the APA.
ii. At a minimum, a general enforcement policy predicated on a misconception of an agency’s legal authority is presumptively reviewable. Agency interpretations of law, by definition, are not “committed to agency discretion,” as it is ultimately the role of the courts to determine what the law is. DACA’s rescission was predicated entirely—or, at a minimum, overwhelmingly—on a legal judgment about the scope of the Secretary’s authority. Supra p. 7. The district court held that “Chaney’s presumption of unreviewability” did not apply “to a legal interpretation phrased as a general enforcement policy,” including an interpretation that “concerns the scope of the agency’s lawful enforcement authority.” Pet. App. 39a. This holding is correct.
An agency action premised on the belief that it is compelled by law does not involve “a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Chaney, 470 U.S. at 831. Indeed, the premise of Petitioners’ rescission is that they lacked discretion to maintain DACA, so there were no factors to balance. And for that reason, no legitimate interest is served by insulating the agency’s

23
legal judgment from review. Barring review of an agency policy based on the value of “enforcement discretion” is nonsensical when the very legal error at issue is the agency’s too-narrow definition of its own enforcement discretion. As the district court put it, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her.” Pet. App. 73a.
This rule also draws powerful support from the core purposes of the APA. If an agency’s narrow assessment of its legal authority were immune from review, an agency could avoid political accountability for a major policy choice by insisting that the law forced its hand— just as the government has repeatedly claimed here— while also evading any review of the legal judgment As the district court underscored, approving that result would thwart the APA’s commitment to ensuring that agencies are subject to meaningful checks—“in the court of public opinion” or, if not, in a court of law. Pet. App. 72a-73a. ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987), is not to the contrary. There, the denial of a petition to reconsider certain labor conditions was exactly the sort of single-shot decision not to act that was held unreviewable in Chaney. Id. at 282. And the agency did not contend it was without authority to act—it simply did not believe the petition had merit. The Court’s statement that an agency action is not reviewable simply where “the agency gives a ‘reviewable’ reason for otherwise unreviewable action,” id. at 283, is beside the point where, as here, the agency action is reviewable.
iii. Chaney is also inapposite because the rescission

24
of DACA is not “an agency’s refusal to take requested enforcement action.” 470 U.S. at 831 (emphasis added). Rather, the agency has affirmatively terminated a significant program that provided a form of protection against removal to hundreds of thousands of people and offered them the opportunity to work, go to school, obtain driver’s licenses, and seek other benefits. Supra p. 4. Indeed, Chaney expressly distinguished nonenforcement decisions from affirmative government actions:
[W]hen an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.
470 U.S. at 832 (emphasis in original).
Termination of a substantial program providing access to important benefits undoubtedly addresses an “area that courts often are called upon to protect.” Because Chaney does not apply to affirmative actions of that sort, DACA’s rescission is subject to the ordinary presumption of reviewability, and the government bears the burden to show that there is “no law to apply.”
b. There are judicially manageable standards to apply in resolving Respondents’ claims, and the government makes little effort to contend otherwise.

25
First, the basis for the agency’s decision was a determination that DHS lacks the statutory authority to continue DACA. That is a purely legal judgment, and, of course, legal standards exist to resolve legal questions. See Int’l Union, UAW v. Brock, 783 F.2d 237, 246 (D.C. Cir. 1986) (noting that it is “almost ludicrous to suggest that there is ‘no law to apply’ in reviewing whether an agency has reasonably interpreted a law”).
Second, in many cases, this Court has invalidated agency action because it failed to “cogently explain why it has exercised its discretion in a given manner.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48-49 (1983). In Judulang v. Holder, 565 U.S. 42 (2011), for example, the Court unanimously rejected the government’s policy for determining eligibility for discretionary immigration relief as arbitrary and capricious, explaining that the agency’s chosen approach was not “tied, even … loosely, to the purposes of the immigration laws or the appropriate operation of the immigration system.” Id. at 55. Because the agency did not “exercise its discretion in a reasoned manner,” its policy could not “pass muster under ordinary principles of administrative law.” Id. at 53, 64. The Court had no difficulty making that judgment, even without a statutory definition of the “appropriate operation of the immigration system,” because the agency’s rationale failed on its own terms. Id. at 55. The district court undertook the equivalent inquiry in this case, ruling not based on the wisdom of the particular immigration policy at issue, but on the irrationality of the agency’s

26 decisionmakingandthelackofexplanation.Pet. App. 48a-60a.
2. The government also argues that 8 U.S.C. § 1252(g) strips the courts of jurisdiction to hear this case. Section 1252(g) states that “[e]xcept as provided inthissection[i.e.,throughtheremovalprocess] …no courtshallhavejurisdictiontohearanycauseorclaim byoronbehalfofanyalienarisingfromthedecisionor action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under[the INA].” That provision does not apply here.
As the district court explained, the government’s argument“contradictsnotonlytheplainlanguageof §1252(g) but also the Court’sinterpretation of that language in Reno v. American–Arab AntiDiscrimination Committee (“AAADC”), where the Court specifically rejected the argument that‘the mention ofthree discrete events alongthe roadto deportation was a shorthand way of referringto all claims arising from deportation proceedings.’” Pet. App.20a(quoting AAADC,525 U.S.471,482(1999)). Asthis Court explained, § 1252(g) applies “onlyto three discrete actionsthatthe Attorney General may take:her‘decisionoraction’to‘commenceproceedings, adjudicatecases, or executeremoval orders.’” Id. (quoting525 U.S.at482).Bycontrast,itdoesnotapply to other “part[s] of the deportation process,” such as “decisions to open aninvestigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse

27
reconsideration of that order.” Id. (quoting 525 U.S. at 482). Here, as the district court explained, “there are no pending removal proceedings with which plaintiffs’ challenge might interfere.” Pet. App. 21a.8 Accordingly, § 1252(g) does not bar review of Respondents’ claims.
B. The District Court Correctly Held that the Rescission of DACA Was Arbitrary and Capricious.
1. The district court held that DHS failed to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Pet. App. 48a. (quoting Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016)); see also Pet. App. 59a-60a. That narrow holding, which does not rest on DACA’s legality, is well grounded in this Court’s APA decisions.
First, the district court found the agency’s “scant legal reasoning” contrary to this Court’s clear articulation in Encino Motorcars of what the APA requires. Pet. App. 49a-51a. The agency’s assertion that DACA violated the INA was “based only on an incongruous reference to the Fifth Circuit’s decision on DAPA,” Pet. App. 52a, while its “analysis of DACA’s

8 In addition, § 1252(g) could not bar the claims brought by Respondents Microsoft and Princeton, neither of whom is an alien or suing solely “on behalf of” an alien. Rather, each has alleged that the rescission of DACA will hamper its own operations—in Princeton’s case as a university, in Microsoft’s case as a corporation. See Dkt. 1, ¶¶ 61, 62; see also Batalla Vidal Pet. App. 38a-39a.
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28
constitutionality was so barebones that the Court cannot ‘discern[]’ the ‘path’ that the agency followed,” Pet. App. 53a-54a (quoting Encino Motorcars, 136 S. Ct. at 2125). Those failures were “particularly egregious here in light of the reliance interests involved.” Pet. App. 54a (citing Encino Motorcars, 136 S. Ct. at 2126); see also id. (“DACA had been in place for five years and had engendered the reliance of hundreds of thousands of beneficiaries, many of whom had structured their education, employment, and other life activities on the assumption that they would be able to renew their DACA benefits.”). The district court noted that this Court “has set aside changes in agency policy for failure to consider reliance interests that pale in comparison to the ones at stake here.” Pet. App. 54a55a (citing, e.g., Encino Motorcars, 136 S. Ct. at 2126).9
Second, the district court correctly found inadequate the government’s explanation for its “litigation risk” basis to rescind DACA. Pet. App. 55a59a. In the district court, the government argued that if DACA were challenged in litigation brought by Texas, “the district court there would enter a ‘nationwide injunction’ that ‘would have prompted an immediate— and chaotic—end to the policy.’” Pet. App. 55a (quoting Defs.’ Reply at 15). The district court appropriately
9 The government suggests that it did consider these interests in that it allowed DACA recipients to maintain their status until it expired. Regents Pet. 26-27. But the Duke Memo belies that argument: It does not so much as mention the interests of DACA recipients, instead linking the choice to “wind [DACA] down in an efficient and orderly fashion” to the “administrative complexities” for the agency in ending the program. AR 254.

29
held this rationale “so implausible that it fails even under the deferential arbitrary and capricious standard.” Pet. App. 60a. In light of the discretion available to a district court in Texas, “it strains credulity” that such a court “would have enjoined DACA immediately and completely without allowing DHS any opportunity to wind the program down.”10 Pet. App. 58a. Because the agency failed even to acknowledge the range of options available to a district court, much less analyze and weigh them against the benefits of maintaining the DACA program, the court found this rationale arbitrary and capricious. Pet. App. 58a-59a.11
2. Relying on the Nielsen Memo, the government seeks to morph its rationale for rescinding DACA into an argument that it did so based on “serious doubts” about DACA’s legality. To the extent that rationale

10 As expected, the Southern District of Texas denied Texas’s motion for a preliminary injunction. Texas, 328 F. Supp. 3d at 74142.
11 For the exact reasons given by the district court, amici’s argument that “threatened litigation” alone provided a “valid basis for ending DACA,”—even absent any analysis of the likely outcome of the litigation or of the costs of rescinding DACA—is baseless. Texas, Amicus Br. at 10. Moreover, Respondents identified additional failures of explanation, but the district court did not reach them in light of its central ruling that the rationales provided for rescission were themselves inadequate. Nevertheless, DACA’s rescission could equally be invalidated for failing to consider alternatives, such as enhancements to the individualized review of DACA applications, or failing to explain the reasoning underlying the agency’s idiosyncratic and haphazard “wind-down” process. See State Farm, 463 U.S. at 50-51.
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30
differs in substance from the rationale in the Duke Memo, it may not be used to justify, retroactively, Acting Secretary Duke’s rescission of DACA. And, in any event, it too fails arbitrary and capricious review.
a. The Duke Memo articulates only one independent rationale for DACA’s rescission: the claim that DACA is illegal. Both Attorney General Sessions’ letter and the Duke Memo are framed in purely legal terms. AR 251-256. Indeed, after declaring DACA “unconstitutional” and lacking in “proper statutory authority,” Attorney General Sessions invoked the “duty to defend the Constitution and faithfully execute the laws passed by Congress” and touted the “restoration of the rule of law” that DACA’s rescission would purportedly bring about. AR 251. In this context, the Attorney General’s passing assertion that a court would “likely” agree with him about DACA, AR 251, cannot plausibly be viewed as a freestanding basis for rescission. And the Duke Memo that followed the next day added nothing of substance to the Attorney General’s analysis, and certainly nothing resembling a policy assessment.
The new justifications for the rescission of DACA contained in the Nielsen Memo cannot retroactively bolster the prior decision. Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citing Overton Park, 401 U.S. at 420).12 As the district court put it, there is a
12 As the district court observed: “[H]ad Secretary Nielsen opted to issue a new decision rescinding DACA, the explanations offered in her memorandum would be contemporaneous and, consequently, not post hoc. She did not do this, however.” Pet. App. 94a n.7. Moreover, if Secretary Nielsen had taken a separate

31
critical distinction between “an ‘amplified articulation’ of the agency’s prior reasoning (which must be considered),” and “‘a new reason for why the agency could have’ taken the action (which must be disregarded).” Pet. App. 92a (citations omitted).
Camp v. Pitts, 411 U.S. 138 (1973), is instructive. There, an agency declined to approve a bank charter, and the court of appeals held that the agency’s explanation for that decision was deficient. This Court held that under Overton Park, the court could obtain “such additional explanation of the reasons for the agency decision as may prove necessary.” 411 U.S. at 143. But the Court stressed a “caveat”: “Unlike Overton Park, in the present case there was contemporaneous explanation of the agency decision” to deny the bank charter; and while that explanation “may have been curt,” it “surely indicated the determinative reason for the final action taken.” Id. Accordingly, the Court said, the validity of the agency’s action “must … stand or fall on the propriety of that finding.” Id. If the pivotal finding could not be sustained even with the benefit of further explanation from the relevant personnel, the agency would need to make a fresh decision on remand. Id. (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)); see also Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990) (reaffirming that Overton Park authorizes “a remand to the agency for a fuller explanation of the 
administrative action, Respondents would be entitled to review the administrative record to assess whether Secretary Nielsen weighed all of the relevant interests, “look[ing] at the costs as well as the benefits.” State Farm, 463 U.S. at 52, 54.
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32
agency’s reasoning at the time of the agency action” (emphasis added)); Pet. App. 82a.
Thus, while the Nielsen Memo’s legal analysis may be considered, its other arguments—and certainly its “policy” arguments, to the extent they exist—may not be used to uphold the rescission.
b. Even if a court could consider the Nielsen Memo’s “serious doubts about DACA’s legality,” that justification is arbitrary and capricious.
First, the Nielsen Memo no more explains its “doubts” about DACA’s legality than did the Duke Memo explain its conclusion. Pet. App. 106a. Secretary Nielsen asserts that DACA “was contrary to law” without specifying which law,13 saying only that the Fifth Circuit’s DAPA decision turned on the “incompatibility of such a major non-enforcement policy with the INA’s comprehensive scheme.” Regents Pet. App. 122a. But she does not articulate when a nonenforcement policy becomes sufficiently “major” that it is incompatible with the INA. For example, Secretary Nielsen does not say which of the myriad past deferred action programs would pass muster under this novel, 
13 To the extent the government contends that DACA was improper because it would have required notice and comment, that itself would not be sufficient to uphold the rescission because the government would have needed notice and comment to undo the program. See Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 446 (D.C. Cir. 1982) (“[T]he APA expressly contemplates that notice and an opportunity to comment will be provided prior to agency decisions to repeal a rule.”), aff’d sub nom. Process Gas Consumers Grp. v. Consumer Energy Council of Am., 463 U.S. 1216 (1983).
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33
barely-articulated standard. Dkt. 28-16 at 2158-60. And even though her analysis appears to turn on whether a non-enforcement policy is sufficiently “major,” Secretary Nielsen does not address the significant differences between DACA and DAPA as to scope and size: both that DAPA, unlike DACA, was an “openended” policy “with no established end-date,” AR 251, and that there were almost four persons eligible for DAPA for each person eligible for DACA. Even combining the efforts of the Duke and Nielsen Memos, it remains true that “[w]hatever potential reasons [Defendants] might have given, [they] in fact gave almost no reasons at all.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016).
The Nielsen Memo’s discussion of reliance interests also remains inadequate. Secretary Nielsen notes her awareness “that DACA recipients have availed themselves of the policy” and states that the “asserted reliance interests” do not “outweigh the questionable legality of the DACA policy and [the] other reasons for ending the policy discussed above.” Regents Pet. App. 125a. But acknowledging that DACA has existed is not the same thing as weighing the real effects of its rescission. Thus, like the Duke Memo, the Nielsen Memo “entirely failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43.
Second, even if Secretary Nielsen had provided an adequate explanation, it would be incorrect. DACA is a lawful exercise of DHS’s broad statutory authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and to carry out the “administration and enforcement of [the INA] and all
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34 other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a)(1), including by providing for work authorization, 8 U.S.C. § 1324a(h)(2). As the United States itself has previously argued, the government has long used deferred action to effectuate its enforcement priorities. See Dkt. 28-16 at 2152-74.14 Because the government is incorrect about DACA’s legality, rescission based on that rationale is arbitrary and capricious. SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[A]n order may not stand if the agency has misconceived the law.”).
Accordingly, Secretary Duke’s rescission of DACA remains arbitrary and capricious and cannot be saved by the Nielsen Memo. Because the district court’s narrow and well-reasoned decision is correct, the petition should be denied.
14 In arguing that DACA is illegal, amici entirely ignore not only the well-established history of deferred action programs, but also the 2014 OLC Memorandum explicitly determining that DACA was a lawful exercise of executive discretion. See Texas, Amicus Br. 12. But failing to acknowledge evidence contrary to its position does not render that evidence invalid.

35 CONCLUSION The petition for a writ of certiorari before judgment should be denied.
Respectfully submitted,

JOSEPH M. SELLERS JULIE S. SELESNICK COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., N.W. Fifth Floor Washington, DC 20005 (202) 408-4600
Counsel for Respondents NAACP; American Federation of Teachers, AFL-CIO; United Food and Commercial International Union, AFL-CIO

THOMAS J. PERRELLI LINDSAY C. HARRISON
Counsel of Record SAM HIRSCH ISHAN BHABHA ALEX S. TREPP JENNER & BLOCK LLP 1099 New York Ave., N.W. Suite 900 Washington, DC 20001 (202) 639-6000 lharrison@jenner.com
Counsel for Respondents The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez

36

RAMONA E. ROMERO WESLEY MARKHAM Princeton University New South Building Fourth Floor Princeton, NJ, 08544 (609) 258-2500
Counsel for Respondent The Trustees of Princeton University
DAVID J. STROM AMERICAN FEDERATION OF TEACHERS, AFL-CIO 555 New Jersey Ave. N.W. Washington D.C. (202) 393-7472
Counsel for Respondent American Federation of Teachers, AFL-CIO

CYNTHIA L. RANDALL MICROSOFT CORPORATION One Microsoft Way Redmond, WA 98052 (425) 538-3176
Counsel for Respondent Microsoft Corporation
BRADFORD M. BERRY NAACP 4805 Mount Hope Drive Baltimore, MD 21215 (410) 580-5797
Counsel for Respondent NAACP
PETER J. FORD UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC 1775 K Street. N.W. Washington D.C. 20006 (202) 223-3111

Counsel for Respondent United Food & Commercial Workers International Union, AFL-CIO, CLC

 
 No. 18-588
In the Supreme Court of the United States
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT OF APPEALS FOR THE D.C. CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF AUTHORITIES

Cases:

Page

Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir. 2006) ................................................................. 4, 6
Camp v. Pitts, 411 U.S. 138 (1973)......................................... 5 DHS v. Regents of the Univ. of Cal., 138 S. Ct. 1182
(2018) ...................................................................................... 2 Florida Power & Light Co. v. Lorion, 470 U.S. 729
(1985) ...................................................................................... 5 Gratz v. Bollinger, 537 U.S. 1044 (2002) ............................... 3 Grutter v. Bollinger, 539 U.S. 306 (2003) .............................. 3 Pension Benefit Guaranty Corp. v. LTV Corp.,
496 U.S. 633 (1990)................................................................ 5 United States v. Booker, 543 U.S. 220 (2005) ....................... 3 United States v. Fanfan, 542 U.S. 956 (2004)....................... 3

Statute and rules:
6 U.S.C. 202(5) (2012 & Supp. V 2017) .................................. 1 Sup. Ct. R.:
Rule 10................................................................................ 3 Rule 11................................................................................ 3

Miscellaneous:
Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ....................................................................... 3

(I)

In the Supreme Court of the United States
No. 18-588 DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., PETITIONERS v.
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT
REPLY BRIEF FOR THE PETITIONERS
1. In September 2017, the Department of Homeland Security (DHS) determined, in accordance with the views of the Attorney General, that the non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA) was likely unlawful and should be wound down in an orderly fashion. Such a quintessential exercise of the Secretary of Homeland Security’s authority to establish “national immigration enforcement policies and priorities,” 6 U.S.C. 202(5) (2012 & Supp. V 2017), is not judicially reviewable and was eminently reasonable in any event. See Pet. 17-31, United States DHS v. Regents of the Univ. of Cal., No. 18-587 (Nov. 5, 2018); Reply Br. 6-11, Regents, supra (No. 18-587). Yet DHS has been compelled by two nationwide preliminary injunctions to retain the unlawful policy and thereby sanction the continuing violation of federal immigration law by nearly 700,000 aliens.
(1)

2
Last February, this Court declined to review the first of those injunctions before the court of appeals could pass on its validity. See DHS v. Regents of the Univ. of Cal., 138 S. Ct. 1182 (2018) (No. 17-1003). The Court made clear its expectation, however, that the court of appeals “w[ould] proceed expeditiously to decide th[e] case,” at which time the government could renew its request. Id. at 1182. More than ten months later, the court of appeals’ judgment is here and the Court is presented the opportunity it anticipated in February. For the reasons stated in the government’s reply brief filed today in Regents, supra (No. 18-587), the Court should now grant the government’s Regents petition, and resolve this important dispute this Term.
2. In addition to granting certiorari in Regents, the Court should also grant certiorari before judgment in this case. Such an order would be consistent with this Court’s past practices in similar circumstances. And it would ensure that the Court both receives a comprehensive presentation of the relevant issues and has an adequate vehicle for the timely and definitive resolution of this dispute. See Pet. 16-17; Supp. Br. 11, Regents, supra (No. 18-587). Respondents’ arguments to the contrary are unpersuasive.
a. Respondents argue at length (Br. in Opp. 13) that this case “does not involve exigent circumstances” that would justify granting certiorari before judgment. But that is not the right standard. When the government filed its petitions in these cases, no court of appeals had addressed the questions presented. The government therefore explained that this dispute met the Court’s heightened standard for certiorari before judgment because the issues here are of such “imperative public importance as to * * * require immediate determination

3
in this Court.” Sup. Ct. R. 11; see Pet. 14-15; Regents Pet. 15-17. By virtue of the Ninth Circuit’s intervening judgment, however, the certiorari decision in these cases is no longer governed by that standard—and thus the bulk of respondent’s opposition is moot.
Most obviously, the certiorari decision in the Regents cases is now governed by the Court’s ordinary standard under Rule 10. As explained more fully in the briefing in those cases, further review is plainly warranted under the Rule 10 standard. See Regents Reply Br. 1-11. The Ninth Circuit’s judgment, however, also affects the standard for determining whether certiorari before judgment is appropriate here. As the government explained in its supplemental briefing, this Court has granted certiorari before judgment “not only in cases of great public emergency but also in situations where similar or identical issues of importance were already pending before the Court and where it was considered desirable to review simultaneously the questions posed in the case still pending in the court of appeals.” Stephen M. Shapiro et al., Supreme Court Practice § 2.4, at 86 (10th ed. 2013); see Regents Supp. Br. 11 (citing United States v. Fanfan, 542 U.S. 956 (2004) (No. 04-105) (granting certiorari before judgment in companion case to United States v. Booker, 543 U.S. 220 (2005) (No. 04-104)); Gratz v. Bollinger, 537 U.S. 1044 (2002) (No. 02-516) (granting certiorari before judgment in companion case to Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241))).
Respondents ignore these precedents, but similar considerations strongly counsel in favor of granting the government’s petition here. Specifically, in granting certiorari in this case alongside the Regents petition, the Court would eliminate any argument that Secretary

4
Nielsen’s June 22 memorandum is not part of the record before this Court and would bring directly before the Court the district court’s consideration of the impact of that memorandum on the resolution of this dispute. See Pet. 15-17. The Ninth Circuit’s refusal to undertake that analysis and the Regents respondents’ refusal to address the contents of the Nielsen memorandum in their briefs in opposition only underscores the wisdom of that approach.
b. Contrary to respondents’ assertion (Br. in Opp. 30-33), moreover, the entire Nielsen memorandum is relevant to the Court’s consideration of the questions presented. Respondents insist that the Court ignore the bulk of that memorandum because they claim it was not a “separate administrative action.” Id. at 30 n.12; cf. Regents Indiv. Br. in Opp. 33 (arguing that the Nielsen memorandum is irrelevant because it was not a “ ‘fresh agency action’ (a Rescission 2.0)”) (citation omitted). Respondents would apparently require DHS to reset this protracted litigation by issuing a “new” independent agency decision on DACA before the current Secretary could offer any further explanation of the rescission. But where, as here, a court determines that an agency’s initial explanation is insufficient and requests further explanation, “it is incumbent upon the court to consider that explanation when it arrives.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006). That is particularly appropriate here, given that every court to have addressed the question has agreed that the rescission did not require notice-and-comment rulemaking and therefore the Nielsen memorandum itself satisfies the procedural requirements for a new agency action in any event.
To be sure, unlike the respondents in Regents, respondents here now concede (Br. in Opp. 32) that the

5
Court can and should consider certain aspects of the Nielsen memorandum. They nevertheless contend that only “amplifi[cations]” of previously offered rationales may be considered after remand, not “new reason[s] for why the agency could have taken the action”—which they argue means that only Secretary Nielsen’s “legal analysis may be considered.” Id. at 31-32 (citation and internal quotation marks omitted). On a remand for insufficient explanation, however, an agency is free to engage in and offer to the reviewing court “additional investigation or explanation” for its action. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (emphasis added).
Camp v. Pitts, 411 U.S. 138 (1973) (per curiam), is not to the contrary. In the passage on which respondents rely, the Court discussed the appropriate scope of “affidavits or testimony” that could be offered directly to the reviewing court to allow it to properly assess agency action. Id. at 143. The Court placed no limitations on the explanation an agency might offer if the court found that the reasons offered at the time of the decision were insufficient and the decision was remanded to the agency for further consideration. Ibid. And the Court’s ambiguous dicta in Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990), about the scope of any remand is similarly inapposite. See id. at 654 (noting that, where an agency’s initial explanation is insufficient, “the preferred course” “ ‘except in rare circumstances, is to remand to the agency for additional investigation or explanation’ ”) (quoting Florida Power & Light Co., 470 U.S. at 744).
The rule against post hoc rationalizations generally “forbids judges to uphold agency action on the basis of rationales offered by anyone other than the proper

6

decisionmakers.” Alpharma, 460 F.3d at 6. It “applies to rationalizations offered for the first time in litigation affidavits and arguments of counsel.” Ibid. An official memorandum offered by the Secretary of Homeland Security explaining why DHS’s decision to rescind DACA “was, and remains, sound,” Regents Pet. App. 121a, is neither. For that reason, the Court should grant the government’s petition in this case alongside the Regents petition to eliminate any argument that it may not consider the implications of Secretary Nielsen’s memorandum on the resolution of this dispute.
* * * * * For the foregoing reasons and those stated in the petition, the petition for a writ of certiorari before judgment should be granted and the case consolidated with United States DHS v. Regents of the University of California, No. 18-587 (filed Nov. 5, 2018), for the Court’s consideration this Term.
Respectfully submitted.

JANUARY 2019

NOEL J. FRANCISCO Solicitor General

 
 (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.

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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

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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

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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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Syllabus

was not required to “consider all policy alternatives,” ibid., deferred action was “within the ambit of the existing” policy, ibid.; indeed, it was the centerpiece of the policy. In failing to consider the option to retain deferred action, Duke “failed to supply the requisite ‘reasoned analysis.’ ” Id., at 57.
That omission alone renders Duke’s decision arbitrary and capricious, but it was not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742. Certain features of the DACA policy may affect the strength of any reliance interests, but those features are for the agency to consider in the first instance. DHS has flexibility in addressing any reliance interests and could have considered various accommodations. While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious. Pp. 17–26.
THE CHIEF JUSTICE, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded in Part IV that respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment. Pp. 27–29.

ROBERTS, C. J., delivered the opinion of the Court, except as to Part IV. GINSBURG, BREYER, and KAGAN, JJ., joined that opinion in full, and SOTOMAYOR, J., joined as to all but Part IV. SOTOMAYOR, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which ALITO and GORSUCH, JJ., joined. ALITO, J., and KAVANAUGH, J., filed opinions concurring in the judgment in part and dissenting in part.

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1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589

_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part IV.
In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.
Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision. For the reasons that follow, we conclude that the Acting Secretary did violate the APA, and that the rescission must be vacated.
I A
In June 2012, the Secretary of Homeland Security issued a memorandum announcing an immigration relief program for “certain young people who were brought to this country as children.” App. to Pet. for Cert. in No. 18–587, p. 97a (App. to Pet. for Cert.). Known as DACA, the program applies to childhood arrivals who were under age 31 in 2012; have continuously resided here since 2007; are current students, have completed high school, or are honorably discharged veterans; have not been convicted of any serious crimes; and do not threaten national security or public

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Opinion of the Court
safety. Id., at 98a. DHS concluded that individuals who meet these criteria warrant favorable treatment under the immigration laws because they “lacked the intent to violate the law,” are “productive” contributors to our society, and “know only this country as home.” Id., at 98a–99a.
“[T]o prevent [these] low priority individuals from being removed from the United States,” the DACA Memorandum instructs Immigration and Customs Enforcement to “exercise prosecutorial discretion[ ] on an individual basis . . . by deferring action for a period of two years, subject to renewal.” Id., at 100a. In addition, it directs U. S. Citizenship and Immigration Services (USCIS) to “accept applications to determine whether these individuals qualify for work authorization during this period of deferred action,” id., at 101a, as permitted under regulations long predating DACA’s creation, see 8 CFR §274a.12(c)(14) (2012) (permitting work authorization for deferred action recipients who establish “economic necessity”); 46 Fed. Reg. 25080–25081 (1981) (similar). Pursuant to other regulations, deferred action recipients are considered “lawfully present” for purposes of, and therefore eligible to receive, Social Security and Medicare benefits. See 8 CFR §1.3(a)(4)(vi); 42 CFR §417.422(h) (2012).
In November 2014, two years after DACA was promulgated, DHS issued a memorandum announcing that it would expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to three years. App. to Pet. for Cert. 106a–107a. In the same memorandum, DHS created a new, related program known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful permanent residents. These parents were to enjoy the same forbearance, work eligibility, and other benefits as DACA

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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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whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim.
II
The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so.
The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U. S. 788, 796 (1992). It requires agencies to engage in “reasoned decisionmaking,” Michigan v. EPA, 576 U. S. 743, 750 (2015) (internal quotation marks omitted), and directs that agency actions be “set aside” if they are “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 513 (2009) (internal quotation marks omitted), but instead to assess only whether the decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971).
But before determining whether the rescission was arbitrary and capricious, we must first address the Government’s contentions that DHS’s decision is unreviewable under the APA and outside this Court’s jurisdiction.
A
The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action.’ ” Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (quoting §702). That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review,

10

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

§701(a)(1), or that the “agency action is committed to
agency discretion by law,” §701(a)(2). The latter exception is at issue here.
To “honor the presumption of review, we have read the
exception in §701(a)(2) quite narrowly,” Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 586 U. S. ___, ___
(2018) (slip op., at 12), confining it to those rare “administrative decision[s] traditionally left to agency discretion,” Lincoln v. Vigil, 508 U. S. 182, 191 (1993). This limited cat-
egory of unreviewable actions includes an agency’s decision not to institute enforcement proceedings, Heckler v.
Chaney, 470 U. S. 821, 831–832 (1985), and it is on that exception that the Government primarily relies.
In Chaney, several death-row inmates petitioned the Food and Drug Administration (FDA) to take enforcement
action against two States to prevent their use of certain drugs for lethal injection. The Court held that the FDA’s denial of that petition was presumptively unreviewable in
light of the well-established “tradition” that “an agency’s decision not to prosecute or enforce” is “generally commit-
ted to an agency’s absolute discretion.” Id., at 831. We identified a constellation of reasons that underpin this tradition. To start, a non-enforcement decision “often involves
a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise,” such as
“whether the particular enforcement action requested best fits the agency’s overall policies.” Ibid. The decision also
mirrors, “to some extent,” a prosecutor’s decision not to indict, which has “long been regarded as the special province of the Executive Branch.” Id., at 832. And, as a practical
matter, “when an agency refuses to act” there is no action to “provide[ ] a focus for judicial review.” Ibid.
The Government contends that a general non-enforcement policy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government
argues, the agency must balance factors peculiarly within

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its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government argues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable.
But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are effectively “adjudicat[ions].” Id., at 117a. And the result of these adjudications—DHS’s decision to “grant deferred action,” Brief for Petitioners 45—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,” Chaney, 470 U. S., at 831–832. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.” Id., at 832.
The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare. See supra, at 3. Unlike an agency’s refusal to take requested enforcement action, access to these

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

types of benefits is an interest “courts often are called upon
to protect.” Chaney, 470 U. S., at 832. See also Barnhart v. Thomas, 540 U. S. 20 (2003) (reviewing eligibility determi-
nation for Social Security benefits). Because the DACA program is more than a non-enforce-
ment policy, its rescission is subject to review under the
APA.

B
The Government also invokes two jurisdictional provisions of the INA as independent bars to review. Neither applies.
Section 1252(b)(9) bars review of claims arising from “action[s]” or “proceeding[s] brought to remove an alien.” 66 Stat. 209, as amended, 8 U. S. C. §1252(b)(9). That targeted language is not aimed at this sort of case. As we have said before, §1252(b)(9) “does not present a jurisdictional bar” where those bringing suit “are not asking for review of an order of removal,” “the decision . . . to seek removal,” or “the process by which . . . removability will be determined.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 10–11); id., at ___ (BREYER, J., dissenting) (slip op., at 31). And it is certainly not a bar where, as here, the parties are not challenging any removal proceedings.
Section 1252(g) is similarly narrow. That provision limits review of cases “arising from” decisions “to commence proceedings, adjudicate cases, or execute removal orders.” §1252(g). We have previously rejected as “implausible” the Government’s suggestion that §1252(g) covers “all claims arising from deportation proceedings” or imposes “a general jurisdictional limitation.” Reno v. American-Arab AntiDiscrimination Comm., 525 U. S. 471, 482 (1999). The rescission, which revokes a deferred action program with associated benefits, is not a decision to “commence proceedings,” much less to “adjudicate” a case or “execute” a

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removal order. With these preliminary arguments out of the way, we
proceed to the merits.
III A
Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation. The natural starting point here is the explanation provided by Acting Secretary Duke when she announced the rescission in September 2017. But the Government urges us to go on and consider the June 2018 memorandum submitted by Secretary Nielsen as well. That memo was prepared after the D. C. District Court vacated the Duke rescission and gave DHS an opportunity to “reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority.” 298 F. Supp. 3d, at 245. According to the Government, the Nielsen Memorandum is properly before us because it was invited by the District Court and reflects the views of the Secretary of Homeland Security—the official responsible for immigration policy. Respondents disagree, arguing that the Nielsen Memorandum, issued nine months after the rescission, impermissibly asserts prudential and policy reasons not relied upon by Duke.
It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.” Michigan, 576 U. S., at 758. If those grounds are inadequate, a court may remand for the agency to do one of two things: First, the agency can offer “a fuller explanation of the agency’s reasoning at the time of the agency action.” Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 654 (1990) (emphasis added). See also Alpharma, Inc. v.

14

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Leavitt, 460 F. 3d 1, 5–6 (CADC 2006) (Garland, J.) (per-
mitting an agency to provide an “amplified articulation” of a prior “conclusory” observation (internal quotation marks omitted)). This route has important limitations. When an
agency’s initial explanation “indicate[s] the determinative reason for the final action taken,” the agency may elaborate
later on that reason (or reasons) but may not provide new ones. Camp v. Pitts, 411 U. S. 138, 143 (1973) (per curiam). Alternatively, the agency can “deal with the problem
afresh” by taking new agency action. SEC v. Chenery Corp., 332 U. S. 194, 201 (1947) (Chenery II). An agency taking
this route is not limited to its prior reasons but must comply with the procedural requirements for new agency action.
The District Court’s remand thus presented DHS with a choice: rest on the Duke Memorandum while elaborating on its prior reasoning, or issue a new rescission bolstered by
new reasons absent from the Duke Memorandum. Secretary Nielsen took the first path. Rather than making a new
decision, she “decline[d] to disturb the Duke memorandum’s rescission” and instead “provide[d] further explanation” for that action. App. to Pet. for Cert. 121a. Indeed,
the Government’s subsequent request for reconsideration described the Nielsen Memorandum as “additional expla-
nation for [Duke’s] decision” and asked the District Court to “leave in place [Duke’s] September 5, 2017 decision to rescind the DACA policy.” Motion to Revise Order in No. 17–
cv–1907 etc. (D DC), pp. 2, 19. Contrary to the position of the Government before this Court, and of JUSTICE
KAVANAUGH in dissent, post, at 4 (opinion concurring in judgment in part and dissenting in part), the Nielsen Memorandum was by its own terms not a new rule implementing
a new policy. Because Secretary Nielsen chose to elaborate on the rea-
sons for the initial rescission rather than take new administrative action, she was limited to the agency’s original reasons, and her explanation “must be viewed critically” to

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Opinion of the Court
ensure that the rescission is not upheld on the basis of impermissible “post hoc rationalization.” Overton Park, 401 U. S., at 420. But despite purporting to explain the Duke Memorandum, Secretary Nielsen’s reasoning bears little relationship to that of her predecessor. Acting Secretary Duke rested the rescission on the conclusion that DACA is unlawful. Period. See App. to Pet. for Cert. 117a. By contrast, Secretary Nielsen’s new memorandum offered three “separate and independently sufficient reasons” for the rescission, id., at 122a, only the first of which is the conclusion that DACA is illegal.
Her second reason is that DACA is, at minimum, legally questionable and should be terminated to maintain public confidence in the rule of law and avoid burdensome litigation. No such justification can be found in the Duke Memorandum. Legal uncertainty is, of course, related to illegality. But the two justifications are meaningfully distinct, especially in this context. While an agency might, for one reason or another, choose to do nothing in the face of uncertainty, illegality presumably requires remedial action of some sort.
The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum. That document makes no mention of a preference for legislative fixes, the superiority of case-bycase decisionmaking, the importance of sending a message of robust enforcement, or any other policy consideration. Nor are these points included in the legal analysis from the Fifth Circuit and the Attorney General. They can be viewed only as impermissible post hoc rationalizations and thus are not properly before us.
The Government, echoed by JUSTICE KAVANAUGH, protests that requiring a new decision before considering Nielsen’s new justifications would be “an idle and useless formality.” NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766,

16

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

n. 6 (1969) (plurality opinion). See also post, at 5. Proce-
dural requirements can often seem such. But here the rule serves important values of administrative law. Requiring a new decision before considering new reasons promotes
“agency accountability,” Bowen v. American Hospital Assn., 476 U. S. 610, 643 (1986), by ensuring that parties and the
public can respond fully and in a timely manner to an agency’s exercise of authority. Considering only contemporaneous explanations for agency action also instills confi-
dence that the reasons given are not simply “convenient litigating position[s].” Christopher v. SmithKline Beecham
Corp., 567 U. S. 142, 155 (2012) (internal quotation marks omitted). Permitting agencies to invoke belated justifica-
tions, on the other hand, can upset “the orderly functioning of the process of review,” SEC v. Chenery Corp., 318 U. S.
80, 94 (1943), forcing both litigants and courts to chase a moving target. Each of these values would be markedly undermined were we to allow DHS to rely on reasons offered
nine months after Duke announced the rescission and after three different courts had identified flaws in the original explanation.
JUSTICE KAVANAUGH asserts that this “foundational principle of administrative law,” Michigan, 576 U. S., at
758, actually limits only what lawyers may argue, not what agencies may do. Post, at 5. While it is true that the Court
has often rejected justifications belatedly advanced by advocates, we refer to this as a prohibition on post hoc ration-
alizations, not advocate rationalizations, because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with
equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency
or by agency officials themselves. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 539 (1981)
(“[T]he post hoc rationalizations of the agency . . . cannot serve as a sufficient predicate for agency action.”); Overton

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Opinion of the Court
Park, 401 U. S., at 419 (rejecting “litigation affidavits” from agency officials as “merely ‘post hoc’ rationalizations”).3
Justice Holmes famously wrote that “[m]en must turn square corners when they deal with the Government.” Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that “the Government should turn square corners in dealing with the people.” St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.
B
We turn, finally, to whether DHS’s decision to rescind DACA was arbitrary and capricious. As noted earlier, Acting Secretary Duke’s justification for the rescission was succinct: “Taking into consideration” the Fifth Circuit’s conclusion that DAPA was unlawful because it conferred benefits in violation of the INA, and the Attorney General’s conclusion that DACA was unlawful for the same reason, she concluded—without elaboration—that the “DACA program should be terminated.” App. to Pet. for Cert. 117a.4
—————— 3 JUSTICE KAVANAUGH further argues that the contemporaneous expla-
nation requirement applies only to agency adjudications, not rulemakings. Post, at 5–6 (opinion concurring in judgment in part and dissenting in part). But he cites no authority limiting this basic principle— which the Court regularly articulates in the context of rulemakings—to adjudications. The Government does not even raise this unheralded argument.
4 The Government contends that Acting Secretary Duke also focused on litigation risk. Although the background section of her memo references a letter from the Texas Attorney General threatening to challenge DACA, the memo never asserts that the rescission was intended to avert litigation. And, given the Attorney General’s conclusion that the policy was unlawful—and thus presumably could not be maintained or defended in its current form—it is difficult to see how the risk of litigation

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Respondents maintain that this explanation is deficient
for three reasons. Their first and second arguments work in tandem, claiming that the Duke Memorandum does not adequately explain the conclusion that DACA is unlawful,
and that this conclusion is, in any event, wrong. While those arguments carried the day in the lower courts, in our
view they overlook an important constraint on Acting Secretary Duke’s decisionmaking authority—she was bound by the Attorney General’s legal determination.
The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and en-
force immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.” 8
U. S. C. §1103(a)(1). Respondents are aware of this constraint. Indeed they emphasized the point in the reviewa-
bility sections of their briefs. But in their merits arguments, respondents never addressed whether or how this unique statutory provision might affect our review. They
did not discuss whether Duke was required to explain a legal conclusion that was not hers to make. Nor did they dis-
cuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking
the Attorney General’s legal conclusion. Because of these gaps in respondents’ briefing, we do not
evaluate the claims challenging the explanation and cor-
rectness of the illegality conclusion. Instead we focus our attention on respondents’ third argument—that Acting Sec-
retary Duke “failed to consider . . . important aspect[s] of the problem” before her. Motor Vehicle Mfrs. Assn. of
United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983).

—————— carried any independent weight.

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Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General. But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.
Acting Secretary Duke plainly exercised such discretionary authority in winding down the program. See App. to Pet. for Cert. 117a–118a (listing the Acting Secretary’s decisions on eight transition issues). Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid.
But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. The Attorney General concluded that “the DACA policy has the same legal . . . defects that the courts recognized as to DAPA.” App. 878. So, to understand those defects, we look to the Fifth Circuit, the highest court to offer a reasoned opinion on the legality of DAPA. That court described the “core” issue before it as the “Secretary’s decision” to grant “eligibility for benefits”— including work authorization, Social Security, and Medicare—to unauthorized aliens on “a class-wide basis.” Texas, 809 F. 3d, at 170; see id., at 148, 184. The Fifth Circuit’s focus on these benefits was central to every stage of its analysis. See id., at 155 (standing); id., at 163 (zone of interest); id., at 164 (applicability of §1252(g)); id., at 166 (reviewability); id., at 176–177 (notice and comment); id., at 184 (substantive APA). And the Court ultimately held that DAPA was “manifestly contrary to the INA” precisely because it “would make 4.3 million otherwise removable aliens” eligible for work authorization and public benefits. Id., at 181–182 (internal quotation marks omitted).5
—————— 5 As the Fifth Circuit noted, DAPA recipients were eligible for Social

20

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

But there is more to DAPA (and DACA) than such bene-
fits. The defining feature of deferred action is the decision to defer removal (and to notify the affected alien of that decision). See App. to Pet. for Cert. 99a. And the Fifth Circuit
was careful to distinguish that forbearance component from eligibility for benefits. As it explained, the “challenged por-
tion of DAPA’s deferred-action program” was the decision to make DAPA recipients eligible for benefits. See Texas, 809 F. 3d, at 168, and n. 108. The other “[p]art of DAPA,”
the court noted, “involve[d] the Secretary’s decision—at least temporarily—not to enforce the immigration laws as
to a class of what he deem[ed] to be low-priority illegal aliens.” Id., at 166. Borrowing from this Court’s prior description of deferred action, the Fifth Circuit observed that
“the states do not challenge the Secretary’s decision to ‘decline to institute proceedings, terminate proceedings, or de-
cline to execute a final order of deportation.’ ” Id., at 168 (quoting Reno, 525 U. S., at 484). And the Fifth Circuit un-
derscored that nothing in its decision or the preliminary injunction “requires the Secretary to remove any alien or to alter” the Secretary’s class-based “enforcement priorities.”
Texas, 809 F. 3d, at 166, 169. In other words, the Secretary’s forbearance authority was unimpaired.
Acting Secretary Duke recognized that the Fifth Circuit’s holding addressed the benefits associated with DAPA. In her memorandum she explained that the Fifth Circuit con-

—————— Security and Medicare benefits because they had been designated “lawfully present.” Texas, 809 F. 3d, at 168. Lawful presence is a statutory prerequisite for receipt of certain benefits. See id., at 148 (citing 8 U. S. C. §1611). It is not the same as forbearance nor does it flow inexorably from forbearance. Thus, while deferred action recipients have been designated lawfully present for purposes of Social Security and Medicare eligibility, see 8 CFR §1.3; 42 CFR §417.422(h), agencies can also exclude them from this designation, see 45 CFR §152.2(8) (2019) (specifying that DACA recipients are not considered lawfully present for purposes of coverage under the Affordable Care Act).

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cluded that DAPA “conflicted with the discretion authorized by Congress” because the INA “ ‘flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’ ” App. to Pet. for Cert. 114a (quoting Texas, 809 F. 3d, at 184). Duke did not characterize the opinion as one about forbearance.
In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116 Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.
That reasoning repeated the error we identified in one of our leading modern administrative law cases, Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. There, the National Highway Traffic Safety Administration (NHTSA) promulgated a requirement that motor vehicles produced after 1982 be equipped with one of two passive restraints: airbags or automatic seatbelts. 463 U. S., at 37–38, 46. Four years later, before the requirement went into effect, NHTSA concluded that automatic seatbelts, the restraint of choice for most manufacturers, would not provide effective protection. Based on that premise, NHTSA rescinded the passive restraint requirement in full. Id., at 38.
We concluded that the total rescission was arbitrary and capricious. As we explained, NHTSA’s justification supported only “disallow[ing] compliance by means of ” automatic seatbelts. Id., at 47. It did “not cast doubt” on the

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

“efficacy of airbag technology” or upon “the need for a
passive restraint standard.” Ibid. Given NHTSA’s prior judgment that “airbags are an effective and cost-beneficial lifesaving technology,” we held that “the mandatory
passive restraint rule [could] not be abandoned without any consideration whatsoever of an airbags-only requirement.”
Id., at 51. While the factual setting is different here, the error is the
same. Even if it is illegal for DHS to extend work authori-
zation and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits. Id., at 47. It
did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to child-
hood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children
and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be re-
scinded in full “without any consideration whatsoever” of a forbearance-only policy, State Farm, 463 U. S., at 51.6
The Government acknowledges that “[d]eferred action
coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists,
however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the

—————— 6 The three-page memorandum that established DACA is devoted en-
tirely to forbearance, save for one sentence directing USCIS to “determine whether [DACA recipients] qualify for work authorization.” App. to Pet. for Cert. 101a. The benefits associated with DACA flow from a separate regulation. See 8 CFR §1.3(a)(4)(vi); see also 42 CFR §417.422(h) (cross-referencing 8 CFR §1.3). Thus, DHS could have addressed the Attorney General’s determination that such benefits were impermissible under the INA by amending 8 CFR §1.3 to exclude DACA recipients from those benefits without rescinding the DACA Memorandum and the forbearance policy it established. But Duke’s rescission memo shows no cognizance of this possibility.

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two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.
The lead dissent acknowledges that forbearance and benefits are legally distinct and can be decoupled. Post, at 21– 22, n. 14 (opinion of THOMAS, J). It contends, however, that we should not “dissect” agency action “piece by piece.” Post, at 21. The dissent instead rests on the Attorney General’s legal determination—which considered only benefits—“to supply the ‘reasoned analysis’ ” to support rescission of both benefits and forbearance. Post, at 22 (quoting State Farm, 463 U. S., at 42). But State Farm teaches that when an agency rescinds a prior policy its reasoned analysis must consider the “alternative[s]” that are “within the ambit of the existing [policy].” Id., at 51. Here forbearance was not simply “within the ambit of the existing [policy],” it was the centerpiece of the policy: DACA, after all, stands for “Deferred Action for Childhood Arrivals.” App. to Pet. for Cert. 111a (emphasis added). But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits. Duke “entirely failed to consider [that] important aspect of the problem.” State Farm, 463 U. S., at 43.
That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’ ” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016)

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DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

(slip op., at 9) (quoting Fox Television, 556 U. S., at 515). “It
would be arbitrary and capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did.
For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the
lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and pro-
vided benefits only in two-year increments. Reply Brief 16– 17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opin-
ion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such fea-
tures automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that
consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such
consideration in the Duke Memorandum. Respondents and their amici assert that there was much
for DHS to consider. They stress that, since 2012, DACA
recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even
married and had children, all in reliance” on the DACA program. Brief for Respondent Regents of Univ. of California et al. in No. 18–587, p. 41 (Brief for Regents). The conse-
quences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including
their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. See id., at
41–42; Brief for Respondent State of New York et al. in No. 18–589, p. 42 (Brief for New York). See also Brief for 143
Businesses as Amici Curiae 17 (estimating that hiring and training replacements would cost employers $6.3 billion).

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25

Opinion of the Court
In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Brief for Regents 6. Meanwhile, States and local governments could lose $1.25 billion in tax revenue each year. Ibid.
These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum. Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight. And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider. DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.
DHS has considerable flexibility in carrying out its responsibility. The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” App. to Pet. for Cert. 116a–118a. She should have considered whether she had similar flexibility in addressing any reliance interests of DACA recipients. The lead dissent contends that accommodating such interests would be “another exercise of unlawful power,” post, at 23 (opinion of THOMAS, J.), but the Government does not make that argument and DHS has already extended benefits for purposes other than reliance, following consultation with the Office of the Attorney General. App. to Pet. for Cert. 116a.

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of the Court

Had Duke considered reliance interests, she might, for
example, have considered a broader renewal period based on the need for DACA recipients to reorder their affairs. Alternatively, Duke might have considered more accommo-
dating termination dates for recipients caught in the middle of a time-bounded commitment, to allow them to, say,
graduate from their course of study, complete their military service, or finish a medical treatment regimen. Or she might have instructed immigration officials to give salient
weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.
To be clear, DHS was not required to do any of this or to
“consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51. Agencies are not compelled to
explore “every alternative device and thought conceivable by the mind of man.” Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense Council, Inc., 435 U. S. 519, 551 (1978). But, because DHS was “not writing on a blank
slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such
interests against competing policy concerns. The lead dissent sees all the foregoing differently. In its
view, DACA is illegal, so any actions under DACA are themselves illegal. Such actions, it argues, must cease immediately and the APA should not be construed to impede that
result. See post, at 19–23 (opinion of THOMAS, J.). The dissent is correct that DACA was rescinded because
of the Attorney General’s illegality determination. See ante, at 20. But nothing about that determination fore-
closed or even addressed the options of retaining forbearance or accommodating particular reliance interests. Acting Secretary Duke should have considered those matters
but did not. That failure was arbitrary and capricious in violation of the APA.

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27

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.
IV
Lastly, we turn to respondents’ claim that the rescission violates the equal protection guarantee of the Fifth Amendment.
The parties dispute the proper framing of this claim. The Government contends that the allegation that the Executive, motivated by animus, ended a program that disproportionately benefits certain ethnic groups is a selective enforcement claim. Such a claim, the Government asserts, is barred by our decision in Reno v. American-Arab AntiDiscrimination Committee. See 525 U. S., at 488 (holding that “an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation”). Respondents counter that their claim falls outside the scope of that precedent because they are not challenging individual enforcement proceedings. We need not resolve this debate because, even if the claim is cognizable, the allegations here are insufficient.
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized

28

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

OpOinpiionnioonf oRfOtBhEeRCTSo,uCrt. J.

share of recipients of any cross-cutting immigration relief
program. See B. Baker, DHS, Office of Immigration Statistics, Population Estimates, Illegal Alien Population Residing in the United States: January 2015, Table 2 (Dec.
2018), https://www.dhs.gov/sites/default/files/publications/ 18_1214_PLCY_pops-est-report.pdf. Were this fact suffi-
cient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as
recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the
June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did
not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that
DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identified
problem. Finally, the cited statements are unilluminating. The
relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements
by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respond-
ents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these state-
ments—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of
the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to

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29

Opinion of the Court
raise a plausible inference that the rescission was motivated by animus.
* * *
We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.
The judgment in NAACP, No. 18–588, is affirmed.7 The judgment in Regents, No. 18–587, is vacated in part and reversed in part. And in Batalla Vidal, No. 18–589, the February 13, 2018 order granting respondents’ motion for a preliminary injunction is vacated, the November 9, 2017 order partially denying the Government’s motion to dismiss is affirmed in part, and the March 29, 2018 order partially denying the balance of the Government’s motion to dismiss is reversed in part. All three cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

—————— 7 Our affirmance of the NAACP order vacating the rescission makes it
unnecessary to examine the propriety of the nationwide scope of the injunctions issued by the District Courts in Regents and Batalla Vidal.

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1

SOOpTiOnMioAnYOofRS, JO.T,OcMonAcYuOrRr,inJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE SOTOMAYOR, concurring in part, concurring in the judgment in part, and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

The majority rightly holds that the Department of Home-
land Security (DHS) violated the Administrative Procedure Act in rescinding the Deferred Action for Childhood Arrivals (DACA) program. But the Court forecloses any chal-
lenge to the rescission under the Equal Protection Clause. I believe that determination is unwarranted on the existing
record and premature at this stage of the litigation. I would instead permit respondents to develop their equal protection claims on remand.
Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that
would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared
this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F.
Supp. 3d 260, 274 (EDNY 2018). I too would permit respondents’ claims to proceed on re-
mand. The complaints each set forth particularized facts that plausibly allege discriminatory animus. The plurality disagrees, reasoning that “[n]one of these points, either sin-
gly or in concert, establishes a plausible equal protection claim.” Ante, at 27. But it reaches that conclusion by dis-
counting some allegations altogether and by narrowly viewing the rest.
First, the plurality dismisses the statements that President Trump made both before and after he assumed office. The Batalla Vidal complaints catalog then-candidate
Trump’s declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals,
drug dealers, [and] rapists.” 291 F. Supp. 3d, at 276 (internal quotation marks omitted). The Regents complaints ad-

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3

Opinion of SOTOMAYOR, J.
ditionally quote President Trump’s 2017 statement comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” 298 F. Supp. 3d 1304, 1314 (ND Cal. 2018) (internal quotation marks omitted). The plurality brushes these aside as “unilluminating,” “remote in time,” and having been “made in unrelated contexts.” Ante, at 28.
But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, 585 U. S. ___, ___, n. 3 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 11, n. 3). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Cf. ibid. (noting that Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017), which barred entry of individuals from several Muslim-majority countries, was an outgrowth of the President’s campaign statements about Muslims). Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” 585 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 13). This perception provides respondents with grounds to litigate their equal protection claims further.
Next, the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation. Ante, at 28 (“Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds”). But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of SOTOMAYOR, J.

stage, I would not so readily dismiss the allegation that an
executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.
Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged deci-
sion.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to
DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Perma-
nent Residents. App. 718–720. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termi-
nation. The abrupt change in position plausibly suggests that something other than questions about the legality of
DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Depart-
ment of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plural-
ity conclude otherwise.

* * *
The facts in respondents’ complaints create more than a “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U. S., at 678. Whether they ultimately amount to actionable discrimination should be determined only after factual development on remand. Because the Court prematurely disposes of respondents’ equal protection claims by overlooking the strength of their complaints, I join all but Part IV of the opinion and do not concur in the corresponding part of the judgment.

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

1

TOHpOinMiAoSn, oJf.,TdHisOsMeAnSti,nJg.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

Between 2001 and 2011, Congress considered over two
dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the
wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters
into its own hands. Without any purported delegation of authority from Congress and without undertaking a rulemaking, DHS unilaterally created a program known as
Deferred Action for Childhood Arrivals (DACA). The threepage DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary
lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Act-
ing Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded
DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.
Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging
in the routine application of standard principles of administrative law. On the contrary, this is anything but a stand-
ard administrative law case. DHS created DACA during the Obama administration
without any statutory authorization and without going
through the requisite rulemaking process. As a result, the program was unlawful from its inception. The majority
does not even attempt to explain why a court has the authority to scrutinize an agency’s policy reasons for rescinding an unlawful program under the arbitrary and capri-
cious microscope. The decision to countermand an unlawful agency action is clearly reasonable. So long as the agency’s
determination of illegality is sound, our review should be at an end.

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3

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.
Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. I respectfully dissent in part.1
I A
In 2012, after more than two dozen attempts by Congress to grant lawful status to aliens who were brought to this country as children,2 the then-Secretary of Homeland Security Janet Napolitano announced, by memorandum, a new
—————— 1 I concur in the judgment insofar as the majority rejects respondents’
equal protection claim. 2 See Immigrant Children’s Educational Advancement and Dropout

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

“prosecutorial discretion” policy known as DACA. App. to
Pet. for Cert. in No. 18–587, p. 97a. The memorandum directed immigration enforcement officers not to remove “certain young people who were brought to this country as chil-
dren” that met delineated criteria. Id., at 97a–98a. In the Secretary’s view, the program was consistent with “the
framework of the existing law.” Id., at 101a. DACA granted a renewable 2-year period of “deferred ac-
tion” that made approximately 1.7 million otherwise remov-
able aliens eligible to remain in this country temporarily.3 By granting deferred action, the memorandum also made
recipients eligible for certain state and federal benefits, including Medicare and Social Security. See 8 U. S. C. §§1611(b)(2)–(4); 8 CFR §1.3(a)(4)(vi) (2020); 45 CFR
§152.2(4)(vi) (2019). In addition, deferred action enabled the recipients to seek work authorization. 8 U. S. C.

—————— Prevention Act of 2001, H. R. 1582, 107th Cong., 1st Sess.; Student Adjustment Act of 2001, H. R. 1918, 107th Cong., 1st Sess.; DREAM Act, S. 1291, 107th Cong., 1st Sess. (2001); DREAM Act, S. 1545, 108th Cong., 1st Sess. (2003); Student Adjustment Act of 2003, H. R. 1684, 108th Cong., 1st Sess.; DREAM Act, S. 2863, 108th Cong., 2d Sess., Tit. XVIII (2003); DREAM Act of 2005, S. 2075, 109th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong., 2d Sess., Tit. VI, Subtitle C; American Dream Act, H. R. 5131, 109th Cong., 2d Sess. (2006); DREAM Act of 2007, S. 774, 110th Cong., 1st Sess.; DREAM Act of 2007, S. 2205, 110th Cong., 1st Sess.; STRIVE Act of 2007, H. R. 1645, 110th Cong., 1st Sess., Tit. VI, Subtitle B; Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong., 1st Sess., Tit. VI, Subtitle C; DREAM Act of 2009, S. 729, 111th Cong., 1st Sess.; American Dream Act, H. R. 1751, 111th Cong., 1st Sess.; Comprehensive Immigration Reform Act of 2010, S. 3932, 111th Cong., 2d Sess., Tit. V, Subtitle D; DREAM Act of 2010, S. 3827, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3962, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3963, 111th Cong., 2d Sess.; DREAM Act of 2010, S. 3992, 111th Cong., 2d Sess.; DREAM Act of 2010, H. R. 6497, 111th Cong., 2d Sess.; DREAM Act of 2011, S. 952, 112th Cong., 1st Sess.
3 See J. Passel & M. Lopez, Pew Research Center, Up to 1.7 Million Unauthorized Immigrant Youth May Benefit From New Deportation Rules (Aug. 14, 2012).

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5

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
§1324a(h)(3)(B); 8 CFR §274a.12(c)(14). Despite these changes, the memorandum contradictorily claimed that it “confer[red] no substantive right [or] immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer these rights.” App. to Pet. for Cert. in No. 18–587, at 101a.
In 2014, then-Secretary of Homeland Security Jeh Johnson broadened the deferred-action program in yet another brief memorandum. This 2014 memorandum expanded DACA eligibility by extending the deferred-action period to three years and by relaxing other criteria. It also implemented a related program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA allowed unlawfully present parents to obtain deferred action derivatively through their children who were either citizens or lawful permanent residents. Approximately 4.3 million aliens qualified for DAPA and, as with DACA, these individuals would have become eligible for certain federal and state benefits upon the approval of their DAPA applications. See Texas v. United States, 809 F. 3d 134, 181 (CA5 2015). Nevertheless, the 2014 memorandum repeated the incongruous assertion that these programs “d[id] not confer any form of legal status in this country” and added that deferred action “may be terminated at any time at the agency’s discretion.” App. to Pet. for Cert. in No. 18–587, at 104a.
B
Twenty-six States filed suit to enjoin the implementation of these new programs, DAPA and “expanded DACA,” maintaining that they violated the Constitution, the Administrative Procedure Act (APA), and the Immigration and Naturalization Act (INA). The States contended that, because the 2014 memorandum allowed aliens to receive deferred action and other benefits, it amounted to a legislative rule that had to comply with the APA’s notice and

6

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

comment procedures. The States also argued that DHS’ de-
cision to recategorize an entire class of aliens from “unlawfully present” to “lawfully present” exceeded its statutory authority under the federal immigration laws. According
to the States, these defects rendered the 2014 memorandum arbitrary, capricious, or otherwise not in accordance
with law. The District Court preliminarily enjoined DAPA and ex-
panded DACA. The Fifth Circuit affirmed, rejecting DHS’
claim that the programs were an exercise of prosecutorial discretion. Texas, 809 F. 3d, at 167, 188. The court con-
cluded that the States were likely to succeed on their claim that the 2014 memorandum was a legislative rule that had to be adopted through notice and comment rulemaking. Id.,
at 171–178. The court further concluded that the 2014 memorandum was “substantively contrary to law” because
the INA did not grant DHS the statutory authority to implement either program. Id., at 170, 178–186.
This Court affirmed the Fifth Circuit’s judgment by an equally divided vote. United States v. Texas, 579 U. S. ___ (2016) (per curiam).

C
The 2014 memorandum was rescinded on June 15, 2017, before taking effect. Shortly after that rescission, several of the plaintiff States sent a letter to then-Attorney General Jefferson Sessions III. They contended that the 2012 DACA memorandum was also legally defective because, “just like DAPA, DACA unilaterally confers eligibility for . . . lawful presence without any statutory authorization from Congress.” App. 873. The States wrote that they would amend their complaint to challenge DACA if the administration did not rescind the 2012 memorandum creating DACA by September 5, 2017.
On September 4, then-Attorney General Sessions wrote to then-Acting Secretary of Homeland Security Elaine

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7

THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
Duke, advising her to rescind DACA. Sessions stated that, in his legal opinion, DACA took effect “through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id., at 877. The letter also stated that DACA was infected with the “same legal . . . defects that the courts recognized as to DAPA,” id., at 878, and thus DACA would likely be enjoined as well.
Then-Acting Secretary Duke rescinded DACA the next day, also through a memorandum. Her memorandum began by noting that DACA “purported to use deferred action . . . to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.” App. to Pet. for Cert. in No. 18–587, at 112a. It described the history of the Fifth Circuit litigation, noting that the court had concluded that DAPA “conflicted with the discretion authorized by Congress” because “the [INA] flatly does not permit the reclassification of millions of illegal aliens as lawfully present.” Id., at 114a (internal quotation marks omitted). Finally, the memorandum accepted then-Attorney General Sessions’ legal determination that DACA was unlawful for the same reasons as DAPA. See §1103(a)(1). In light of the legal conclusions reached by the Fifth Circuit and the Attorney General, then-Acting Secretary Duke set forth the procedures for winding down DACA.
These three cases soon followed. In each, respondents claimed, among other things, that DACA’s rescission was arbitrary and capricious under the APA. Two District Courts granted a preliminary nationwide injunction, while the third vacated the rescission.
II
“ ‘[A]n agency literally has no power to act . . . unless and

8

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

until Congress confers power upon it.’ ” Arlington v. FCC,
569 U. S. 290, 317 (2013) (ROBERTS, C. J., dissenting) (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355,
374 (1986)). When an agency exercises power beyond the bounds of its authority, it acts unlawfully. See, e.g., SAS Institute Inc. v. Iancu, 584 U. S. ___, ___, n. (2018) (slip op.,
at 11, n.). The 2012 memorandum creating DACA provides a poignant illustration of ultra vires agency action.
DACA alters how the immigration laws apply to a certain class of aliens. “DACA [recipients] primarily entered the country either by overstaying a visa or by entering without
inspection, and the INA instructs that aliens in both classes are removable.” Texas v. United States, 328 F. Supp. 3d
662, 713 (SD Tex. 2018) (footnote omitted). But DACA granted its recipients deferred action, i.e., a decision to “de-
cline to institute [removal] proceedings, terminate [removal] proceedings, or decline to institute a final order of [removal].” Reno v. American-Arab Anti-Discrimination
Comm., 525 U. S. 471, 484 (1999) (internal quotation marks omitted). Under other regulations, recipients of deferred
action are deemed lawfully present for purposes of certain federal benefits. See supra, at 4. Thus, DACA in effect cre-
ated a new exception to the statutory provisions governing removability and, in the process, conferred lawful presence on an entire class of aliens.
To lawfully implement such changes, DHS needed a grant of authority from Congress to either reclassify remov-
able DACA recipients as lawfully present, or to exempt the entire class of aliens covered by DACA from statutory removal procedures. No party disputes that the immigration
statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immi-
gration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA
is substantively unlawful.

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This conclusion should begin and end our review. The decision to rescind an unlawful agency action is per se lawful. No additional policy justifications or considerations are necessary. And, the majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.
A
Congress has not authorized DHS to reclassify an entire class of removable aliens as lawfully present or to categorically exempt aliens from statutory removal provisions.
1
I begin with lawful presence. As just stated, nothing in the federal immigration laws expressly delegates to DHS the unfettered discretion to create new categories of lawfully present aliens. And, there is no basis for concluding that Congress implicitly delegated to DHS the power to reclassify categories of aliens as lawfully present. The immigration statutes provide numerous ways to obtain lawful presence, both temporary and permanent. The highly detailed nature of these provisions indicates that Congress has exhaustively provided for all of the ways that it thought lawful presence should be obtainable, leaving no discretion to DHS to add new pathways.
For example, federal immigration laws provide over 60 temporary nonimmigrant visa options, including visas for ambassadors, full-time students and their spouses and children, those engaged to marry a United States citizen within 90 days of arrival, athletes and performers, and aliens with specialized knowledge related to their employers. See §§1101(a)(15)(A)–(V), 1184; 8 CFR §214.1; see also Congressional Research Service, J. Wilson, Nonimmigrant and Immigrant Visa Categories: Data Brief 1–6 (2019) (Table 1). In addition, the statutes permit the Attorney General to grant temporary “parole” into the United States “for urgent

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humanitarian reasons or [a] significant public benefit,” 8
U. S. C. §1182(d)(5)(A); provide for temporary protected status when the Attorney General finds that removal to a country with an ongoing armed conflict “would pose a seri-
ous threat to [an alien’s] personal safety,” §1254a(b)(1)(A); and allow the Secretary of Homeland Security (in consulta-
tion with the Secretary of State) to waive visa requirements for certain aliens for up to 90 days, §§1187(a)–(d).
The immigration laws are equally complex and detailed
when it comes to obtaining lawful permanent residence. Congress has expressly specified numerous avenues for obtaining an immigrant visa, which aliens may then use
to become lawful permanent residents. §§1201, 1255(a). Among other categories, immigrant visas are available to
specified family-sponsored aliens, aliens with advanced degrees or exceptional abilities, certain types of skilled and unskilled workers, “special immigrants,” and those enter-
ing the country to “engag[e] in a new commercial enterprise.” §§1153(a)–(b), 1154; see also Congressional Re-
search Service, Nonimmigrant and Immigrant Visa Categories, at 6–7 (Table 2). Refugees and asylees also may receive lawful permanent residence under certain condi-
tions, §1159; 8 CFR §§209.1, 209.2.4 As with temporary lawful presence, each avenue to lawful permanent resi-
dence status has its own set of rules and exceptions.5 As the Fifth Circuit held in the DAPA litigation, a conclu-
sion with which then-Attorney General Sessions agreed,
“specific and detailed provisions[ of] the INA expressly and

—————— 4 The immigration statutes also provide for conditional lawful perma-
nent residence status. See §1186a(b)(1)(A)(i) (two years for spouses to demonstrate that the marriage “was [not] entered into for the purpose of procuring an alien’s admission as an immigrant”); §1186b (qualifying business entrepreneurs).
5 For instance, Congress has carved out rules for aliens who served in the Armed Forces, §§1438–1440, and alien spouses who have been subject to domestic abuse, §§1186a(c)(4)(C)–(D).

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carefully provid[e] legal designations allowing defined classes of aliens to be lawfully present.” Texas, 809 F. 3d, at 179. In light of this elaborate statutory scheme, the lack of any similar provision for DACA recipients convincingly establishes that Congress left DHS with no discretion to create an additional class of aliens eligible for lawful presence. Congress knows well how to provide broad discretion, and it has provided open-ended delegations of authority in statutes too numerous to name. But when it comes to lawful presence, Congress did something strikingly different. Instead of enacting a statute with “broad general directives” and leaving it to the agency to fill in the lion’s share of the details, Mistretta v. United States, 488 U. S. 361, 372 (1989), Congress put in place intricate specifications governing eligibility for lawful presence. This comprehensive scheme indicates that DHS has no discretion to supplement or amend the statutory provisions in any manner, least of all by memorandum. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 125 (2000) (An agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted” (internal quotation marks omitted)); see also ETSI Pipeline Project v. Missouri, 484 U. S. 495, 509–510 (1988).
2
The relief that Congress has extended to removable aliens likewise confirms that DACA exceeds DHS’ delegated authority. Through deferred action, DACA grants temporary relief to removable aliens on a programmatic scale. See Texas, 328 F. Supp. 3d, at 714. But as with lawful presence, Congress did not expressly grant DHS the authority to create categorical exceptions to the statute’s removal requirements. And again, as with lawful presence, the intricate level of detail in the federal immigration laws regarding relief from removal indicates that DHS has no discretionary authority to supplement that relief with an

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entirely new programmatic exemption.
At the outset, Congress clearly knows how to provide for classwide deferred action when it wishes to do so. On multiple occasions, Congress has used express language to
make certain classes of individuals eligible for deferred action. See 8 U. S. C. §§1154(a)(1)(D)(i)(II), (IV) (certain indi-
viduals covered under the Violence Against Women Act are “eligible for deferred action”); Victims of Trafficking and Violence Protection Act of 2000, 114 Stat. 1522 (“ ‘Any individ-
ual described in subclause (I) is eligible for deferred action’ ”); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Ter-
rorism (USA PATRIOT ACT) Act of 2001, §423(b), 115 Stat. 361 (“Such spouse, child, son, or daughter may be eligible
for deferred action”); National Defense Authorization Act for Fiscal Year 2004, §§1703(c)(1)(A), (2), 117 Stat. 1694– 1695 (“Such spouse or child shall be eligible for deferred ac-
tion”).6 Congress has failed to provide similar explicit provisions for DACA recipients, and the immigration laws con-
tain no indication that DHS can, at will, create its own categorical policies for deferred action.
Other provisions pertaining to relief from removal fur-
ther demonstrate that DHS lacked the delegated authority

—————— 6 In the DAPA litigation, DHS noted that some deferred-action pro-
grams have been implemented by the Executive Branch without explicit legislation. But “ ‘past practice does not, by itself, create [executive] power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981)). If any of these programs had been challenged, it would seem that they would be legally infirm for the same reasons as DACA. Moreover, if DHS had the authority to create new categories of aliens eligible for deferred action, then all of Congress’ deferred-action legislation was but a superfluous exercise. Duncan v. Walker, 533 U. S. 167, 174 (2001). Finally, whereas some deferred-action programs were followed by legislation, DACA has existed for eight years, and Congress is no closer to a legislative solution than it was in 2012. See, e.g., American Dream and Promise Act of 2019, H. R. 6, 116th Cong., 1st Sess.

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to create DACA. As with lawful presence, Congress has provided a plethora of methods by which aliens may seek relief from removal. For instance, both permanent and temporary residents can seek cancellation of removal if they meet certain residency requirements and have not committed certain crimes. §§1229b(a)–(b). And certain nonpermanent residents may have their status adjusted to permanent residence during these proceedings. §1229b(b)(2). Aliens can apply for asylum or withholding of removal during removal proceedings unless they have committed certain crimes. §§1158, 1231(b)(3). Applicants for certain nonimmigrant visas may be granted a stay of removal until the visa application is adjudicated. §1227(d). And, aliens may voluntarily depart rather than be subject to an order of removal. §1229c.
In sum, like lawful presence, Congress has provided for relief from removal in specific and complex ways. This nuanced detail indicates that Congress has provided the full panoply of methods it thinks should be available for an alien to seek relief from removal, leaving no discretion to DHS to provide additional programmatic forms of relief.7
3
Finally, DHS could not appeal to general grants of authority, such as the Secretary’s ability to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter,” §1103(a)(3), or to “[e]stablis[h] national immigration enforcement policies and priorities,” 6 U. S. C. §202(5). See also 8 U. S. C. §1103(g)(2). Because we must interpret the statutes “as a
—————— 7 It is uncontested that deferred action frequently occurs on a case-by-
case basis, often justified on the grounds that the agency lacks resources to remove all removable aliens. Even assuming that these ad hoc exercises of discretion are permissible, however, we have stated that “[a]n agency confronting resource constraints may change its own conduct, but it cannot change the law.” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 327 (2014).

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

symmetrical and coherent regulatory scheme,” Gustafson v.
Alloyd Co., 513 U. S. 561, 569 (1995), these grants of authority must be read alongside the express limits contained
within the statute. Basing the Secretary’s ability to completely overhaul immigration law on these general grants of authority would eviscerate that deliberate statutory
scheme by “allow[ing the Secretary of DHS] to grant lawful presence . . . to any illegal alien in the United States.” Texas, 809 F. 3d, at 184. Not only is this “an untenable po-
sition in light of the INA’s intricate system,” ibid., but it would also render many of those provisions wholly super-
fluous due to DHS’ authority to disregard them at will, Duncan v. Walker, 533 U. S. 167, 174 (2001). And in addi-
tion to these fatal problems, adopting a broad interpretation of these general grants of authority would run afoul of
the presumption that “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 468 (2001). And it would also conflict with the major questions doctrine, which is based
on the expectation that Congress speaks clearly when it delegates the power to make “decisions of vast economic and political significance.” Utility Air Regulatory Group v. EPA,
573 U. S. 302, 324 (2014) (UARG) (internal quotation marks omitted); see also Texas, 787 F. 3d, at 760–761.
Read together, the detailed statutory provisions governing temporary and lawful permanent resident status, relief
from removal, and classwide deferred-action programs lead ineluctably to the conclusion that DACA is “inconsisten[t] with the design and structure of the statute as a whole.”
University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 353 (2013). As the District Court stated in
the DAPA litigation and as then-Attorney General Sessions agreed, “[i]nstead of merely refusing to enforce the INA’s
removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence . . . to

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individuals Congress has deemed deportable or removable.” Texas v. United States, 86 F. Supp. 3d 591, 654 (SD Tex. 2015). The immigration statutes contain a level of granular specificity that is exceedingly rare in the modern administrative state. It defies all logic and common sense to conclude that a statutory scheme detailed enough to provide conditional lawful presence to groups as narrowly defined as “alien entrepreneurs,” §1186b, is simultaneously capacious enough for DHS to grant lawful presence to almost two million illegal aliens with the stroke of a Cabinet secretary’s pen.
B
Then-Attorney General Sessions concluded that the initial DACA program suffered from the “same legal . . . defects” as DAPA and expanded DACA, finding that, like those programs, DACA was implemented without statutory authority. App. 877–878. Not only was this determination correct, but it is also dispositive for purposes of our review. “It is axiomatic that an administrative agency’s power . . . is limited to the authority granted by Congress.” Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208 (1988). DHS had no authority here to create DACA, and the unlawfulness of that program is a sufficient justification for its rescission.
The majority opts for a different path, all but ignoring DACA’s substantive legal defect. See ante, at 18–19. On the majority’s understanding of APA review, DHS was required to provide additional policy justifications in order to rescind an action that it had no authority to take. This rule “has no basis in our jurisprudence, and support for [it] is conspicuously absent from the Court’s opinion.” Massachusetts v. EPA, 549 U. S. 497, 536 (2007) (ROBERTS, C. J., dissenting).
The lack of support for the majority’s position is hardly

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surprising in light of our Constitution’s separation of pow-
ers. No court can compel Executive Branch officials to exceed their congressionally delegated powers by continuing a program that was void ab initio. Cf. Clinton v. City of New
York, 524 U. S. 417 (1998); INS v. Chadha, 462 U. S. 919 (1983); see also EPA v. EME Homer City Generation, L. P.,
572 U. S. 489, 542, n. 5 (2014) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U. S. 440, 487 (1989)
(Kennedy, J., concurring in judgment). In reviewing agency action, our role is to ensure that Executive Branch officials
do not transgress the proper bounds of their authority, Arlington, 569 U. S., at 327 (ROBERTS, C. J., dissenting), not
to perpetuate a decision to unlawfully wield power in direct contravention of the enabling statute’s clear limits, see UARG, 573 U. S., at 327–328; Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 462 (2002). Under our precedents, DHS can only exercise the author-
ity that Congress has chosen to delegate to it. See UARG, 573 U. S., at 327. In implementing DACA, DHS under the Obama administration arrogated to itself power it was not
given by Congress. Thus, every action taken by DHS under DACA is the unlawful exercise of power. Now, under the
Trump administration, DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it car-
ried the program forward.

III
The majority’s demanding review of DHS’ decisionmaking process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decisionmaking. Even if DHS were authorized to create DACA, it could not do so without undertaking an administrative rulemaking. The fact that DHS did not engage in this process likely provides an independent basis for rescinding

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DACA. But at the very least, this procedural defect compounds the absurdity of the majority’s position in these cases.
As described above, DACA fundamentally altered the immigration laws. It created a new category of aliens who, as a class, became exempt from statutory removal procedures, and it gave those aliens temporary lawful presence. Both changes contravened statutory limits. DACA is thus what is commonly called a substantive or legislative rule.8 As the name implies, our precedents state that legislative rules are those that “have the force and effect of law.” Chrysler Corp. v. Brown, 441 U. S. 281, 295 (1979) (internal quotation marks omitted).
Our precedents allow the vast majority of legislative rules to proceed through so-called “informal” notice and comment rulemaking. See United States v. Florida East Coast R. Co., 410 U. S. 224, 237–238 (1973).9 But under our precedents, an agency must engage in certain procedures mandated by the APA before its rule carries legal force. Kisor v. Wilkie, 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 23) (“[A] legislative rule, . . . to be valid[,] must go through notice and comment”); id., at ___ (GORSUCH, J., concurring in judgment) (slip op., at 17) (same); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 96 (2015); cf. Azar v. Allina Health Services, 587 U. S. ___, ___ (2019) (slip op., at 1) (same with respect to materially identical procedures under the Medicare Act). These procedures specify that the agency “shall” publish a notice of proposed rulemaking in
—————— 8 The majority tacitly acknowledges as much, as it must. See ante, at
11–12. Otherwise, the majority would have to accept that DACA was nothing more than a policy of prosecutorial discretion, which would make its rescission unreviewable. See Heckler v. Chaney, 470 U. S. 821, 831 (1985).
9 As I have previously pointed out, “the APA actually contemplated a much more formal process for most rulemaking.” Perez v. Mortgage Bankers Assn., 575 U. S. 92, 128, n. 5 (2015) (opinion concurring in judgment).

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

the Federal Register, justify the rule by reference to legal
authority, describe “the subjects and issues involved” in the rule, and allow interested parties to submit comments. 5 U. S. C. §§553(b)–(c); see also Kisor, 588 U. S., at ___ (opin-
ion of GORSUCH, J.) (slip op., at 17). As we have recognized recently, use of the word “shall” indicates that these proce-
dures impose mandatory obligations on the agency before it can adopt a valid binding regulation. See Maine Community Health Options v. United States, 590 U. S. ___, ___
(2020) (slip op., at 12). After undergoing notice and comment, the agency then publishes the final rule, which must
“articulate a satisfactory explanation for [the] action including a rational connection between the facts found and
the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463
U. S. 29, 43 (1983) (internal quotation marks omitted). Only after completing this process is the legislative rule a valid law. See Kisor, 588 U. S., at ___ (opinion of GORSUCH,
J.) (slip op., at 17).10 Because DACA has the force and effect of law, DHS was
required to observe the procedures set out in the APA if it wanted to promulgate a legislative rule. It is undisputed, however, that DHS did not do so. It provided no oppor-
tunity for interested parties to submit comments regarding the effect that the program’s dramatic and very significant
change in immigration law would have on various aspects of society. It provided no discussion of economic considerations or national security interests. Nor did it provide any
substantial policy justifications for treating young people

—————— 10 The APA also provides certain exceptions from notice and comment
rulemaking. For example, an agency may promulgate a legally binding rule without notice and comment if good cause exists to do so. 5 U. S. C. §553(b)(B). This text would become a nullity if the agency could achieve the same effect by simply dispensing with notice and comment procedures altogether.

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brought to this country differently from other classes of aliens who have lived in the country without incident for many years. And, it did not invoke any law authorizing DHS to create such a program beyond its inexplicable assertion that DACA was consistent with existing law. Because DHS failed to engage in the statutorily mandated process, DACA never gained status as a legally binding regulation that could impose duties or obligations on third parties. See id., at ___ (plurality opinion) (slip op., at 23); id., at ___ (opinion of GORSUCH, J.) (slip op., at 17).
Given this state of affairs, it is unclear to me why DHS needed to provide any explanation whatsoever when it decided to rescind DACA. Nothing in the APA suggests that DHS was required to spill any ink justifying the rescission of an invalid legislative rule, let alone that it was required to provide policy justifications beyond acknowledging that the program was simply unlawful from the beginning. And, it is well established that we do not remand for an agency to correct its reasoning when it was required by law to take or abstain from an action. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 544–545 (2008). Here, remand would be futile, because no amount of policy explanation could cure the fact that DHS lacked statutory authority to enact DACA in the first place.
Instead of recognizing this, the majority now requires the rescinding Department to treat the invalid rule as though it were legitimate. As just explained, such a requirement is not supported by the APA.11 It is also absurd, as evidenced by its application to DACA in these cases. The majority insists that DHS was obligated to discuss its choices regarding benefits and forbearance in great detail, even

—————— 11 Thus, it is not that the APA “should not” be construed to support the
majority’s result, ante, at 26 (emphasis added), it is that the APA does not and cannot support that result.

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though no such detailed discussion accompanied DACA’s is-
suance. And, the majority also requires DHS to discuss reliance interests at length, even though deferred action traditionally does not take reliance interests into account and
DHS was not forced to explain its treatment of reliance interests in the first instance by going through notice and
comment. See infra, at 23–24. The majority’s demand for such an explanation here simply makes little sense.
At bottom, of course, none of this matters, because DHS
did provide a sufficient explanation for its action. DHS’ statement that DACA was ultra vires was more than suffi-
cient to justify its rescission.12 By requiring more, the majority has distorted the APA review process beyond recognition, further burdening all future attempts to rescind
unlawful programs. Plaintiffs frequently bring successful challenges to agency actions by arguing that the agency has
impermissibly dressed up a legislative rule as a policy statement and must comply with the relevant procedures before functionally binding regulated parties. See, e.g., Mendoza
v. Perez, 754 F. 3d 1002 (CADC 2014); Natural Resources Defense Council v. EPA, 643 F. 3d 311 (CADC 2011); Na-
tional Family Planning & Reproductive Health Assn., Inc. v. Sullivan, 979 F. 2d 227 (CADC 1992). But going forward,
when a rescinding agency inherits an invalid legislative rule that ignored virtually every rulemaking requirement
of the APA, it will be obliged to overlook that reality. Instead of simply terminating the program because it did not go through the requisite process, the agency will be com-
pelled to treat an invalid legislative rule as though it were legitimate.13

—————— 12 I express no view on what other reasons would justify an agency’s
decision to rescind a procedurally unlawful action. I merely point out that correctly concluding that the program was illegal is sufficient.
13 In my view, even if DACA were permitted under the federal immigration laws and had complied with the APA, it would still violate the Constitution as an impermissible delegation of legislative power. See

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IV
Even if I were to accept the majority’s premise that DACA’s rescission required additional policy justifications, the majority’s reasons for setting aside the agency’s decision still fail.
A
First, the majority claims that the Fifth Circuit discussed only the legality of the 2014 memorandum’s conferral of benefits, not its “forbearance component”—i.e., the decision not to place DACA recipients into removal proceedings. Ante, at 20. The majority, therefore, claims that, notwithstanding the then-Attorney General’s legal conclusion, then-Acting Secretary Duke was required to consider revoking DACA recipients’ lawful presence and other attendant benefits while continuing to defer their removal. Ante, at 22–23. Even assuming the majority correctly characterizes the Fifth Circuit’s opinion, it cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element to determine whether it would independently violate the law, rather than just to rescind the entire program.14
—————— Department of Transportation v. Association of American Railroads, 575 U. S. 43, 77 (2015) (THOMAS, J., concurring in judgment). Putting aside this constitutional concern, however, the notice and comment process at least attempts to provide a “surrogate political process” that takes some of the sting out of the inherently undemocratic and unaccountable rulemaking process. Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 708 (1999).
14 The majority’s interpretation of the Fifth Circuit’s opinion is highly questionable. Because a grant of deferred action renders DACA recipients eligible for certain benefits and work authorization, it is far from clear that the Department could separate DACA’s “forbearance component” from the major benefits it conferred without running into yet another APA problem. The majority points to the fact that, under the Patient Protection and Affordable Care Act of 2010, relevant regulations exclude those receiving deferred action through DACA from coverage.

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DEPARTMENT OF HOMELAND SECURITY v.

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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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THOMAS, J., concurring iOnptihneiojnudogfmTeHnOtMiAnSp, aJr. t and dissenting in part
of Deferred Action for Childhood Arrivals Process, 89 Interpreter Releases 1557, App. 4, p. 2 (Aug. 20, 2012). In fact, DHS repeatedly argued in court that the 2014 memorandum was a valid exercise of prosecutorial discretion in part because deferred action created no rights on which recipients could rely. Before the Fifth Circuit, DHS stated that “DHS may revoke or terminate deferred action and begin removal proceedings at any time at its discretion.” Brief for Appellants in Texas v. United States, No. 15–40238, p. 7; see also id., at 45–46. And before this Court, in that same litigation, DHS reiterated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Brief for United States in United States v. Texas, O. T. 2015, No. 15–674, p. 5; see also id., at 37. If that treatment of reliance interests was incorrect, it provides yet one more example of a deficiency in DACA’s issuance, not its rescission.
* * *
President Trump’s Acting Secretary of Homeland Security inherited a program created by President Obama’s Secretary that was implemented without statutory authority and without following the APA’s required procedures. Then-Attorney General Sessions correctly concluded that this ultra vires program should be rescinded. These cases could—and should—have ended with a determination that his legal conclusion was correct.
Instead, the majority today concludes that DHS was required to do far more. Without grounding its position in either the APA or precedent, the majority declares that DHS was required to overlook DACA’s obvious legal deficiencies and provide additional policy reasons and justifications before restoring the rule of law. This holding is incorrect, and it will hamstring all future agency attempts to undo actions that exceed statutory authority. I would

26

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

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

therefore reverse the judgments below and remand with instructions to dissolve the nationwide injunctions.

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

1

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE ALITO, concurring in the judgment in part and dissenting in part.
Anyone interested in the role that the Federal Judiciary

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of ALITO, J.

now plays in our constitutional system should consider
what has happened in these cases. Early in the term of the current President, his administration took the controversial step of attempting to rescind the Deferred Action for
Childhood Arrivals (DACA) program. Shortly thereafter, one of the nearly 700 federal district court judges blocked
this rescission, and since then, this issue has been mired in litigation. In November 2018, the Solicitor General filed petitions for certiorari, and today, the Court still does not
resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again. What this means is that the Federal Judiciary, with-
out holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term.
Our constitutional system is not supposed to work that way. I join JUSTICE THOMAS’s opinion. DACA presents a deli-
cate political issue, but that is not our business. As JUSTICE
THOMAS explains, DACA was unlawful from the start, and that alone is sufficient to justify its termination. But even
if DACA were lawful, we would still have no basis for overturning its rescission. First, to the extent DACA represented a lawful exercise of prosecutorial discretion, its re-
scission represented an exercise of that same discretion, and it would therefore be unreviewable under the Adminis-
trative Procedure Act. 5 U. S. C. §701(a)(2); see Heckler v. Chaney, 470 U. S. 821, 831–832 (1985). Second, to the ex-
tent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by JUSTICE KAVANAUGH. See post, at 4–6 (opinion concurring in the
judgment in part and dissenting in part).

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

1

Opinion of KAVANAUGH, J.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 18–587, 18–588, and 18–589
_________________

DEPARTMENT OF HOMELAND SECURITY,

ET AL., PETITIONERS

18–587

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL., PETITIONERS

18–588

v.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.; AND

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

CHAD WOLF, ACTING SECRETARY OF HOMELAND

SECURITY, ET AL., PETITIONERS

18–589

v.

MARTIN JONATHAN BATALLA VIDAL, ET AL.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 18, 2020]

JUSTICE KAVANAUGH, concurring in the judgment in part and dissenting in part.

2

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.
In 2012, exercising its view of the Executive’s prosecutorial discretion under Article II and the immigration laws, President Obama’s administration unilaterally instituted a program known as Deferred Action for Childhood Arrivals, or DACA. Under DACA, eligible young immigrants may apply for and receive deferred action. They must renew their DACA status every two years. Under the program, the Executive Branch broadly forbears from enforcing certain immigration removal laws against DACA recipients. And by virtue of the forbearance, DACA recipients also become eligible for work authorization and other benefits.
Since 2017, President Trump’s administration has sought to rescind DACA based on its different and narrower understanding of the Executive’s prosecutorial discretion under Article II and the immigration laws. In its view, the Executive Branch legally may not, and as a policy matter should not, unilaterally forbear from enforcing the immigration laws against such a large class of individuals. The current administration has stated that it instead wants to work with Congress to enact comprehensive legislation that would address the legal status of those immigrants together with other significant immigration issues.
The question before the Court is whether the Executive Branch acted lawfully in ordering rescission of the ongoing DACA program. To begin with, all nine Members of the Court accept, as do the DACA plaintiffs themselves, that

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

3

Opinion of KAVANAUGH, J.
the Executive Branch possesses the legal authority to rescind DACA and to resume pre-DACA enforcement of the immigration laws enacted by Congress. Having previously adopted a policy of prosecutorial discretion and nonenforcement with respect to a particular class of offenses or individuals, the Executive Branch has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress. The Executive Branch’s exercise of that rescission authority is subject to constitutional constraints and may also be subject to statutory constraints. The narrow legal dispute here concerns a statutory constraint— namely, whether the Executive Branch’s action to rescind DACA satisfied the general arbitrary-and-capricious standard of the Administrative Procedure Act, or APA.
The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. As the Court has long stated, judicial review under that standard is deferential to the agency. The Court may not substitute its policy judgment for that of the agency. The Court simply ensures that the agency has acted within a broad zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. See FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983).
The Executive Branch explained its decision to rescind DACA in two sequential memorandums by successive Secretaries of Homeland Security: the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The Duke Memorandum focused on DACA’s perceived legal flaws. The Court today finds the Duke Memorandum insufficient under the APA’s arbitrary-and-capricious standard.
But regardless of whether the Court is correct about the Duke Memorandum, the Nielsen Memorandum more fully explained the Department’s legal reasons for rescinding

4

DEPARTMENT OF HOMELAND SECURITY v.

REGENTS OF UNIV. OF CAL.

Opinion of KAVANAUGH, J.

DACA, and clarified that even if DACA were lawful, the Department would still rescind DACA for a variety of policy reasons. The Nielsen Memorandum also expressly addressed the reliance interests of DACA recipients. The question under the APA’s deferential arbitrary-and-capricious standard is not whether we agree with the Department’s decision to rescind DACA. The question is whether the Nielsen Memorandum reasonably explained the decision to rescind DACA. Under ordinary application of the arbitrary-and-capricious standard, the Nielsen Memorandum—with its alternative and independent rationales and its discussion of reliance—would pass muster as an explanation for the Executive Branch’s action.
The Nielsen Memorandum was issued nine months after the Duke Memorandum. Under the Administrative Procedure Act, the Nielsen Memorandum is itself a “rule” setting forth “an agency statement of general . . . applicability and future effect designed to implement . . . policy.” 5 U. S. C. §551(4). Because it is a rule, the Nielsen Memorandum constitutes “agency action.” §551(13). As the Secretary of Homeland Security, Secretary Nielsen had the authority to decide whether to stick with Secretary Duke’s decision to rescind DACA, or to make a different decision. Like Secretary Duke, Secretary Nielsen chose to rescind DACA, and she provided additional explanation. Her memorandum was akin to common forms of agency action that follow earlier agency action on the same subject—for example, a supplemental or new agency statement of policy, or an agency order with respect to a motion for rehearing or reconsideration. Courts often consider an agency’s additional explanations of policy or additional explanations made, for example, on agency rehearing or reconsideration, or on remand from a court, even if the agency’s bottom-line decision itself does not change.
Yet the Court today jettisons the Nielsen Memorandum by classifying it as a post hoc justification for rescinding

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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

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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.