U.S. District Court SOUTHERN DISTRICT OF TEXAS (Brownsville)
CIVIL DOCKET FOR CASE #: 1:18-cv-00068

STAYED

State of Texas et al v. United States of America et al Assigned to: Judge Andrew S Hanen Related Case: 1:14-cv-00254 Cause: 05:551 Administrative Procedure Act

Date Filed: 05/01/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of Texas

represented by Todd Lawrence Disher Office of the Attorney General of Texas 209 W 14th St 8th Floor Austin, TX 78701 512-936-0677 Email: todd.disher@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs Office of the Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512-463-2120 Email: adam.biggs@oag.texas.gov TERMINATED: 12/03/2020

Adam Nicholas Bitter Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 512-475-4055 Fax: 512-320-0667 Email: adam.bitter@oag.texas.gov TERMINATED: 01/07/2019

Brantley Starr Office of the Attorney General of Texas

209 W 14th St Austin, TX 78701 512-936-8160 Email: brantley.starr@texasattorneygeneral.gov TERMINATED: 08/02/2019
Cristina Maria Moreno Office of the Attorney General PO Box 12548 Capital Station Austin, TX 78711-2548 512-463-2120 Email: cristina.moreno@oag.texas.gov TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson Germer PLLC 1501 S. Mopac Expressway, Ste. A400 Austin, TX 78746 512-4823540 Fax: 713-739-7420 Email: ehudson@germer.com ATTORNEY TO BE NOTICED
Michael Christopher Toth Office of the Texas Attorney General Special Litigation Division 209 W 14th St 8th Fl Austin, TX 78701 512-936-0631 Email: michael.toth@oag.texas.gov ATTORNEY TO BE NOTICED
Philip Trent Peroyea Office of the Attorney General PO Box 12548 Austin, TX 78701 512-463-2080 Email: trent.peroyea@oag.texas.gov TERMINATED: 11/09/2020
Ryan L Bangert Office of the Attorney General

Plaintiff State of Alabama
Plaintiff

P.O. Box 12548 (MC-001) Austin, TX 78711-2548 (512) 936-1414 Fax: (512) 936-0545 Email: ryan.bangert@oag.texas.gov TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020

State of Arkansas
Plaintiff State of Louisiana

represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019 ATTORNEY TO BE NOTICED
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs

Plaintiff State of Nebraska

(See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019

Plaintiff State of South Carolina

Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021

Plaintiff State of West Virginia

ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth

Plaintiff State of Kansas

(See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020

Plaintiff Governor Phil Bryant State of Mississippi TERMINATED: 08/21/2020
Plaintiff Governor Paul R. LePage State of Maine

Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Todd Lawrence Disher (See above for address) TERMINATED: 02/25/2020 LEAD ATTORNEY
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Michael Christopher Toth (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
Ryan L Bangert (See above for address) TERMINATED: 12/03/2020
represented by Paul R. LePage PRO SE
Todd Lawrence Disher (See above for address) TERMINATED: 02/25/2020

Plaintiff State of Mississippi
V. Defendant United States of America

LEAD ATTORNEY
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Adam Nicholas Bitter (See above for address) TERMINATED: 01/07/2019
Brantley Starr (See above for address) TERMINATED: 08/02/2019
Cristina Maria Moreno (See above for address) TERMINATED: 02/17/2021 ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
represented by Todd Lawrence Disher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) TERMINATED: 12/03/2020
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
Philip Trent Peroyea (See above for address) TERMINATED: 11/09/2020
represented by Jeffrey S Robins U.S. Department of Justice

Office of Immigration Litigation PO Box 868 Washington, DC 20044 202-616-1246 Email: jeffrey.robins@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Aaron Steven Goldsmith US Dept of Justice PO Box 868 Ben Franklin Station Washington, DC 200044 202-532-4393 Email: aaron.goldsmith@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Brett A Shumate United States Department of Justice 950 Pennsylvania Ave. Washington, DC 20530 202-514-2331 Email: brett.a.shumate@usdoj.gov TERMINATED: 04/26/2019
Daniel David Hu Office of the US Attorneys Office 1000 Louisiana Ste 2300 Houston, TX 77002 713-567-9518 Fax: 713-718-3303 Email: daniel.hu@usdoj.gov ATTORNEY TO BE NOTICED
James Joseph Walker U S Dept of Justice Civil Division, Office of Imm. Lit. 450 4th Street, NW Washington, DC 20001 202-532-4468 Email: james.walker3@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Kirstjen M. Nielsen Secretary of the U.S. Department of Homeland Security

represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Aaron Steven Goldsmith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kevin K. McAleenan Commissioner of U.S. Customs and Border Protection

James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John Coghlan US Dept. of Justice TERMINATED: 02/05/2021 LEAD ATTORNEY

Aaron Steven Goldsmith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED

Defendant

James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED

Thomas D. Homan Deputy Director and Acting Director of U.S. Immigration and Customs Enforcement
Defendant L. Francis Cissna Director of U.S. Citizenship and Immigration Services

represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Coghlan (See above for address) TERMINATED: 02/05/2021 LEAD ATTORNEY
Aaron Steven Goldsmith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED
James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Coghlan (See above for address) TERMINATED: 02/05/2021 LEAD ATTORNEY
Aaron Steven Goldsmith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED
James Joseph Walker

Defendant
Carla L. Provost Acting Chief of U.S. Border Control

(See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S Robins (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John Coghlan (See above for address) TERMINATED: 02/05/2021 LEAD ATTORNEY

Daniel David Hu (See above for address) ATTORNEY TO BE NOTICED

Defendant
Houston Hispanic Chamber of Commerce

James Joseph Walker (See above for address) ATTORNEY TO BE NOTICED
represented by Houston Hispanic Chamber of Commerce PRO SE

Defendant Texas Association of Business

John Coghlan (See above for address) TERMINATED: 02/05/2021 LEAD ATTORNEY
represented by Texas Association of Business PRO SE

Defendant San Antonio Hispanic Chamber of Commerce
Intervenor Defendant

John Coghlan (See above for address) TERMINATED: 02/05/2021 LEAD ATTORNEY

Karla Perez

represented by Nina Perales MALDEF 110 Broadway Ste 300 San Antonio, TX 78205 210-224-5476 Fax: 210-224-5382 Email: nperales@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila MALDEF 110 Broadway Suite 300 San Antonio, TX 78205 210-224-5476 Email: aavila@maldef.org TERMINATED: 08/02/2019
Carlos Moctezuma Garcia Garcia & Garcia Attorneys at Law P.O. Box 4545 McAllen, TX 78502 956-630-3889 Fax: 956-630-3899 Email: cgarcia@garciagarcialaw.com ATTORNEY TO BE NOTICED
Celina Ysela Moreno MALDEF 110 Broadway Ste 300 San Antonio, TX 78205 210-224-5476 Email: cmoreno@maldef.org TERMINATED: 01/07/2019
Denise Hulett Mexican American Legal Defense & Educ. Fund 1512 14th St Sacremento, CA 95814 916-642-6352 Email: dhulett@maldef.org ATTORNEY TO BE NOTICED

Douglas H Hallward-Driemeier Ropes & Gray LLP 2099 Pennsylvania Avenue, NW Washington, DC 20006-6807 202-508-4776 Email: douglas.hallwarddriemeier@ropesgray.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera MALDEF 110 Broadway Suite 300 San Antonio, TX 78205 210-224-5476 Email: eherrera@maldef.org TERMINATED: 11/09/2020
John Paul Salmon 1801 San Pedro Ave. San Antonio, TX 78212 (469) 226-8741 Email: jacksalmon02@yahoo.com TERMINATED: 04/26/2019
Mary Kelly Persyn Persyn Law and Policy 912 Cole Street PMB 124 San Francisco, CA 94117 628-400-1254 Email: marykelly@persynlaw.com TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta Mexican American Legal Defense 11 East Adams Ste 700 Chicago, IL 60603 312-427-0701 Email: porta@maldef.org TERMINATED: 06/04/2019 PRO HAC VICE

Intervenor Defendant Maria Rocha

Ramon Andres Soto Mexican American Legal Defense & Educational Fund 110 Broadway Ste 300 San Antonio, TX 78205 210-224-5476 Email: rsoto@maldef.org TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon

Intervenor Defendant Jose Magana-Salgado

(See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE

Intervenor Defendant Nanci J Palacios Godinez

ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett

Intervenor Defendant Elly Marisol Estrada

(See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address)

Intervenor Defendant Karina Ruiz De Diaz

ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021

Intervenor Defendant Carlos Aguilar Gonzalez

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta

Intervenor Defendant Karla Lopez

(See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019

Intervenor Defendant Luis A Rafael

Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera

Intervenor Defendant Darwin Velasquez

(See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Jin Park

Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020

Intervenor Defendant Oscar Alvarez

ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant Nancy Adossi

Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila

(See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Denise Romero

represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE

Intervenor Defendant Pratishtha Khanna

Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019

Intervenor Defendant Jung Woo Kim

PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address)

Intervenor Defendant Angel Silva

TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn

Intervenor Defendant Moses Kamau Chege

(See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address)

Intervenor Defendant Hyo-Won Jeon

TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED

Intervenor Defendant Elizabeth Diaz

Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address)

Intervenor Defendant Maria Diaz

TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019

Intervenor Defendant

Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE
Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED

Blanca Gonzalez

represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alejandra Avila (See above for address) TERMINATED: 08/02/2019
Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED
Celina Ysela Moreno (See above for address) TERMINATED: 01/07/2019
Denise Hulett (See above for address) TERMINATED: 02/13/2020 ATTORNEY TO BE NOTICED
Douglas H Hallward-Driemeier (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ernest I. Herrera (See above for address) TERMINATED: 11/09/2020
John Paul Salmon (See above for address) TERMINATED: 04/26/2019
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Priscilla Orta (See above for address) TERMINATED: 06/04/2019 PRO HAC VICE

Intervenor Defendant
Proposed Amici New Jersey Businesses

Ramon Andres Soto (See above for address) TERMINATED: 02/05/2021 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew J Pincus Mayer Brown LLP 1999 K Street, NW Washington, DC 200006-1101 (202) 263-3220 Email: apincus@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Craig Dashiell Lownstein Sandler LLP One Lowenstein Drive Roseland, NJ 07068 973-597-2500 Email: cdashiell@lowenstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David Leit Lowenstein Sandler LLP One Lowenstein Dr Roseland, NJ 07068 973-597-2500 Email: dleit@lowenstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gavin J Rooney Lowenstein Sandler, LLP One Lowenstein Drive Roseland, NJ 07068 973-597-2500 Email: grooney@lowenstein.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Stephen P Wallace
V. Amicus U.S. Rep. Steve King

Lauren Goldman Mayer Brown LLP 1221 Avenue of the Americas 14th Floor New York, NY 10020 (212) 506-2647 Email: irgoldman@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Stephen P Wallace 1116 Sheffer Road Apt F Aurora, IL 60505 630-995-1195 PRO SE
represented by Andrew L Schlafly Attorney at Law 939 Old Chester Road Far Hills, NJ 07931 908-719-8608 Email: aschlafly@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Ave NW Ste 700-1A Washington, DC 20036 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Proposed Amici Institutions of Higher Education

Sofia A Ramon RAMON WORTHINGTON, PLLC 900 Kerria Ave. McAllen, TX 78501 9562944800 Email: sramon@ramonworthington.com ATTORNEY TO BE NOTICED
represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ishan K Bhabha Jenner & Block, LLP 1099 New York Avenue, NW Ste 900 Washington, DC 20001-4412 202-637-6327 Email: IBhabha@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J Yun Jenner & Block LLP 1099 New York Avenue NW Ste 900 Washington, DC 20001 202-637-6334 Email: JYun@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lindsay C Harrison Jenner Block, LLP

Amicus
Proposed Amici Religious Organizations

1099 New York Avenue NW Washington, DC 20001-4412 2026396865 Email: LHarrison@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas J Perrelli Jenner Block LLP 1099 New York Avenue NW Washington, DC 20001-4412 202-639-6004 Email: TPerrelli@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Adeel A Mangi Patterson Belknap Webb Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2563 Email: aamangi@pbwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Johnathan James Smith Muslim Advocates P.O. Box 66408 Washington, DC 20035 202-897-1897 Email: johnathan@muslimadvocates.org

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Juvaria Khan Muslim Advocates P.O. Box 66408 Washington, DC 20035 202-897-1896 Email: juvaria@muslimadvocates.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael N Fresco Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2542 Email: mfresco@pbwt.com TERMINATED: 05/29/2020 LEAD ATTORNEY PRO HAC VICE
Sirine Shebaya Muslim Advocates P.O. Box 66408 Washington, DC 20035 202-897-1894 Email: sirine@muslimadvocates.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Kolodin Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2642 Email: zkolodin@pbwt.com

Amicus Proposed Amici Health Care Professionals
Amicus The Legal Aid Society

TERMINATED: 06/04/2019 LEAD ATTORNEY PRO HAC VICE
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lawrence S Lustberg Gibbons P.C. One Gateway Center Newark, NY 07102 973-596-4731 Email: LLustberg@gibbonslaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Hasan Shafiqullah The Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 212-577-3965 Email: hhshafiqullah@legal-aid.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Proposed Amici Legal Services Organization

Jessa Irene DeGroote Cleary Gottlieb et al One Liberty Plaza New York, NY 10006 212-225-2646 Email: jdegroote@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Kolodner Cleary Gotlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 212 225-2690 Email: jkolodner@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joan R. Li Cooley LLP 3175 Hanover St Palo Alto, CA 94304 650 843-5000 Email: jli@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Maureen Alger Cooley LLP

Amicus
Proposed Amicus United We Dream

3175 Hanover St Palo Alto, CA 94304 650 843-5000 Email: malger@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael McMahon Cooley LLP 500 Boylston Street Boston, MA 02116 617 937-2300 Email: mmcmahon@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monique Sherman Cooley LLP 3175 Hanover Palo Alto, CA 94304 650 843-5000 Email: msherman@cooley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Geoffrey Stuart Brounell Davis Wright et al 1251 Ave of the Americas, 21st Floor New York, NY 10020

Amicus Proposed Amici States
Amicus

212-489-8230 Email: geoffreybrounell@dwt.com ATTORNEY TO BE NOTICED
Peter Karanjia DLA Piper LLP 500 Eighth Street, NW Washington, DC 20004 (202) 799-4135 Email: peter.karanjia@dlapiper.com ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew William Amend New York Office of the Attorney General 28 Liberty St 14th Fl New York, NY 10005 212 416-8022 Email: andrew.amend@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED

Proposed Amicus Kevin Johnson
Amicus Proposed Amici Public Interest Groups

represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey M Davidson Covington Burling LLP One Front Street San Francisco, CA 94111 415 591-7021 Email: jdavidson@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark H Lynch Covington & Burling LLP One City Center 850 Tenth Street, NW Washington, DC 20001-4956 202-662-5544 Email: mlynch@cov.com ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jose Garza Texsa Riogrande Legal Aid 1111 N Main Ave San Antonio, TX 78212 210-212-3700

Email: garzpalm@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Martin L. Saad Venable LLP 575 7th St NW Washington, DC 2000 202-344-4345 Email: mlsaad@venable.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sameer P Sheikh Venable LLP 600 Massachusetts Ave NW Washington, DC 20001 202-344-4168 Email: SPSheikh@venable.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William D Coston Venable LLP 600 Massachusetts Ave. NW Washngton, DC 20001 202-344-4813 Email: wdcoston@venable.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alper T Ertas Venable LLP 505 Montgomery St Ste 1400 San Francisco, CA 94111 415-343-3214 Email: atertas@venable.com ATTORNEY TO BE NOTICED

Amicus United We Dream
Amicus Brown University
Amicus California Institute of Technology

Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Karanjia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky O'Melveny Myers, LLP 7 Times Square New York, NY 10036 (212) 326-2000 Email: ametlitsky@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ryan Ken Yagura O'Melveny and Myers LLP 400 S Hope St Los Angeles, CA 90071 213-430-6189 Email: ryagura@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler O'Melveny Myers, LLP 7 Times Square

Amicus Columbia University
Amicus Cornell University

New York, NY 10036 (212) 326-2000 Email: jsokoler@omm.com TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler

Amicus Dartmouth College
Amicus Duke University

(See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020

Amicus Emory University
Amicus Georgetown University

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE

Amicus George Washington University
Amicus Harvard University

ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura

Amicus Massachusetts Institute of Technology
Amicus Northwestern University

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY

Amicus Princeton University
Amicus Stanford University

ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus University of Chicago
Amicus University of Pennsylvania

Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon

Amicus Vanderbilt University
Amicus Washington University in St. Louis

(See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED

Amicus Yale University
Amicus Proposed Amici Companies and Associations

represented by Anton Metlitsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sokoler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ryan Ken Yagura (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J Pincus (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Karen W Lin MAYER BROWN LLP 1221 Avenue of the Americas, 14th floor New York, NY 10020 212-506-2538 Email: klin@mayerbrown.com TERMINATED: 03/06/2020 LEAD ATTORNEY
Kevin Scott Ranlett Mayer Brown LLP 1999 K Street, NW Washington, DC 20006 202-263-3000 Email: kranlett@mayerbrown.com LEAD ATTORNEY

Amicus Texas Association of Business
Amicus Houston Hispanic Chamber of Commerce
Amicus Brazoria County Hispanic Chamber of Commerce
Amicus El Paso Hispanic Chamber of Commerce
Amicus Greater Austin Hispanic Chamber of Commerce
Amicus

ATTORNEY TO BE NOTICED
Lauren Goldman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sofia A Ramon (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury Vinson Elkins LLP 2001 Ross Ave Suite 3900 Dallas, TX 75201 214-220-7792 Fax: 214-999-7792 Email: tleatherbury@velaw.com ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED

International Bancshares Corporation
Amicus Marek Brothers Construction, Inc.
Amicus Midland Hispanic Chamber of Commerce
Amicus Rio Grande Valley Hispanic Chamber of Commerce
Amicus San Antonio Hispanic Chamber of Commerce
Amicus Southwest Airlines
Amicus Texas Border Coalition
Amicus United Airlines, Inc.
Amicus Current and Former Prosecutors and Law Enforcement Leaders

represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Chirag G. Badlani Hughes Socol Piers Resnick & Dym, Ltd. 70 W. Madison St. Ste. 4000 Chicago, IL 60602 312-604-2776

Amicus National Immigrant Justice Center National Immigrant Justice Center, et al. Amicus Proposed Amici Current and Former Prosecutors and Law Enforcement Leaders
Amicus American Business Immigration Coalition
Amicus Ascension Texas
Amicus Dallas Regional Chamber
Amicus Dallas Hispanic Chamber of Commerce
Amicus Irving-Las Colinas Chamber of Commerce
Amicus Health Management Systems
Amicus

Email: cbadlani@hsplegal.com ATTORNEY TO BE NOTICED
represented by Chirag G. Badlani (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED

National Association for Latino Community Asset Builders
Amicus San Antonio Chamber of Commerce
Amicus Texas Opportunity Roundtable
Amicus Texas Restaurant Association
Amicus VisitDallas
Amicus William F. Reade, Jr.
Amicus Christine Timmon Amicus Ad Hoc New Yorker Republican Committee c/o Christopher Earl Strunk, Trustee for Ad Hoc New Yorker Republican Committee 141 Harris Avenue Lake Luzerne, NY 12846-1721 Amicus Charles A Breiterman

represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Shawn Leatherbury (See above for address) ATTORNEY TO BE NOTICED
represented by William F. Reade, Jr. 55 Captain Nickerson Road South Yarmouth, MA 022664 PRO SE
represented by Charles Andrew Breiterman 45 East 89 Street #24B New York, NY 10128

Amicus Congressman Paul A Gosar, D.D.S Amicus City of Los Angeles
Amicus Proposed Amici Local Governments and Local Government Advocacy Organizations
V. Intervenor State of New Jersey

917-528-0474 Email: BreitermanLaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Joseph Dundas Los Angeles City Attorney's Office 200 N. Main St CHE, Ste 700 Los Angeles, CA 90012 213-978-8100 Email: mike.dundas@lacity.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Daniel R Suvor O'Melveny & Myers, LLP ATTORNEY TO BE NOTICED
Margaret Carter O'Melveny & Myers, LLP ATTORNEY TO BE NOTICED
represented by Glenn J Moramarco Richard J. Hughes, Justice Complex 25 Market Street, 1st Floor Trenton, NJ 08625-0116 609-376-3232 Email: Glenn.Moramarco@law.njoag.gov TERMINATED: 05/29/2020 LEAD ATTORNEY
Jeremy M Feigenbaum Office of the New Jersey Attorney General

RJ Hughes Justice Complex 25 Market Street Trenton, NJ 80625 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian De Vito New Jersey Attorney General's Office 124 Halsey Street, 5th Floor Neward, NJ 07101 973-877-1405 Email: brian.devito@law.njoag.gov TERMINATED: 08/21/2020 PRO HAC VICE
Elspeth L. Faiman Hans New Jersey Office of the Attorney General ATTORNEY TO BE NOTICED
Eric L Apar Office of the New Jersey Attorney General ATTORNEY TO BE NOTICED
Jeremy Hollander Office of Attorney General 124 Halsey St Newark, NJ 07101 973-648-7453 Email: jeremy.hollander@law.njoag.gov ATTORNEY TO BE NOTICED
Katherine Anne Gregory New Jersey Attorney General Office 124 Halsey St Newark, NJ 07101 973-648-2500 Email: Katherine.Gregory@law.njoag.gov TERMINATED: 08/25/2019 ATTORNEY TO BE NOTICED
Kenneth S Levine New Jersey Office of Attorney General

124 Halsey St 5th Fl Newark, NJ 07101 973-648-2881 Email: kenneth.levine@law.njoag.gov ATTORNEY TO BE NOTICED
Mary Kelly Persyn (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Medoway New Jersey Office of the Attorney General 124 Halsey Street 5th Floor Newark, NJ 07101 609-575-4958 Email: melissa.medoway@njoag.gov ATTORNEY TO BE NOTICED
Nicholas J Dolinsky New Jersey Attorney General Office 124 Halsey St Newark, NJ 07101 973-648-2500 Email: nicholas.dolinsky@law.njoag.gov TERMINATED: 08/21/2020
Paul H. Juzdan New Jersy Attorney General's Office 124 Halsey St Newark, NJ 07101 973-648-3183 Email: paul.juzdan@law.njoag.gov TERMINATED: 08/25/2019 ATTORNEY TO BE NOTICED
Rachel Wainer Apter New Jersey Office of the Attorney General 25 Market St 8th Fl

Trenton, NJ 08625 609-376-2702 Email: Rachel.Apter@njoag.gov ATTORNEY TO BE NOTICED
Tim Sheehan New Jersey Office of the Attorney General 25 Market St Trenton, NJ 08625 609-815-2604 Email: tim.sheehan@law.njoag.gov ATTORNEY TO BE NOTICED
Mayur P Saxena Office of the New Jersey Attorney General Division of Law 124 Halsey Street 5th Floor Newark, NJ 07101 609-775-5846 Email: mayur.saxena@law.njoag.gov ATTORNEY TO BE NOTICED

Date Filed 05/01/2018
05/01/2018 05/01/2018 05/02/2018

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541-19989656) filed by State of Nebraska, State Of Texas, State of Arkansas, State of South Carolina, State or Alabama, State of Louisiana, State of West Virginia. (Attachments: # 1 Civil Cover Sheet)(Disher, Todd) (Entered: 05/01/2018)
2 ORDER TRANSFERRING CASE. Case reassigned to Judge Andrew S Hanen for all further proceedings. Judge Rolando Olvera no longer assigned to the case(Signed by Judge Rolando Olvera) Parties notified.(bcampos, 1) (Entered: 05/01/2018)
3 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 7/31/2018 at 01:30 PM in Courtroom 6 before Judge Andrew S Hanen(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 05/01/2018)
4 Unopposed MOTION for Leave to File Excess Pages by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion

05/02/2018 05/02/2018 05/02/2018 05/02/2018 05/02/2018 05/04/2018 05/07/2018 05/07/2018 05/08/2018

Docket Date 5/23/2018. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 05/02/2018)
5 MOTION for Preliminary Injunction by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 5/23/2018. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 05/02/2018)
6 First APPENDIX re: 5 MOTION for Preliminary Injunction by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Supplement Table of Contents)(Disher, Todd) (Entered: 05/02/2018)
7 Second APPENDIX re: 5 MOTION for Preliminary Injunction by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 05/02/2018)
8 Third APPENDIX re: 5 MOTION for Preliminary Injunction by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 05/02/2018)
9 Fourth APPENDIX re: 5 MOTION for Preliminary Injunction by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 05/02/2018)
10 MOTION for Jeffrey S. Robins to Appear Pro Hac Vice by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 5/25/2018. (Robins, Jeffrey) (Additional attachment(s) added on 5/4/2018: # 1 Attorney Verification) (bcampos, 1). (Entered: 05/04/2018)
11 Request for Issuance of Summons as to All Defendants, filed. (Attachments: # 1 Kirstjen M. Nielsen, # 2 Kevin K. McLeenan, # 3 Thomas D. Homan, # 4 L. Francis Cissna, # 5 Carla L. Provost)(Disher, Todd) (Entered: 05/07/2018)
12 ORDER granting 10 Motion for Jeffrey S. Robins to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 05/07/2018)
Summons Issued as to 1.) L. Francis Cissna, 2.) Thomas D. Homan, 3.) Kevin K. McAleenan, 4.) Kirstjen M. Nielsen, 5.) Carla L. Provost, 6.) U.S. Attorney General. Issued summons returned to plaintiff by Firstclass mail, filed.(bcampos, 1) (Entered: 05/08/2018)

05/08/2018
05/08/2018
05/09/2018 05/09/2018 05/09/2018 05/10/2018 05/14/2018 05/14/2018 05/14/2018

13 MOTION to Intervene by Karla Perez, Maria Rocha, Jose MaganaSalgado, Nanci J Palacios Godinez, Elly Marisol Estrada, Karina Ruiz De Diaz, Carlos Aguilar Gonzalez, Karla Lopez, Luis A Rafael, Darwin Velasquez, Jin Park, Oscar Alvarez, Nancy Adossi, Denise Romero, Pratishtha Khanna, Jung Woo Kim, Angel Silva, Moses Kamau Chege, Hyo-Won Jeon, Elizabeth Diaz, Maria Diaz, Blanca Gonzalez, filed. Motion Docket Date 5/29/2018. (Attachments: # 1 Exhibit Proposed Answer, # 2 Proposed Order)(Perales, Nina) (Entered: 05/08/2018)
14 MEMORANDUM in Support re: 13 MOTION to Intervene by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Appendix A, # 2 Appendix B)(Perales, Nina) (Entered: 05/08/2018)
15 ORDER entered by the Court. The Court will hold a Scheduling Conference set for 5/15/2018 at 10:30 AM before Judge Andrew S Hanen. The District Clerk's Office will provide each counsel with the appropriate call-in-number. (Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 05/09/2018)
16 ORDER granting 4 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 05/09/2018)
*** Emailed sent to parties with the appropriate call-in number as per 15 Order., filed. (csustaeta, 1) (Entered: 05/09/2018)
17 NOTICE of Appearance by Daniel D. Hu on behalf of L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Hu, Daniel) (Entered: 05/10/2018)
18 NOTICE of Appearance by Adam Arthur Biggs on behalf of State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Biggs, Adam) (Entered: 05/14/2018)
19 NOTICE of Appearance by Brantley Starr on behalf of State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Starr, Brantley) (Entered: 05/14/2018)
20 MOTION for Brett A. Shumate to Appear Pro Hac Vice by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date

05/15/2018
05/15/2018 05/15/2018 05/15/2018
05/15/2018 05/16/2018

6/4/2018. (Robins, Jeffrey) (Additional attachment(s) added on 5/15/2018: # 1 Verified membership status) (bcampos, 1). (Entered: 05/14/2018)
Minute Entry for proceedings held before Judge Andrew S Hanen. TELEPHONE CONFERENCE held on 5/15/2018. Appearances: Attys for Plaintiff: T.Disher, A.Biggs, B.Starr; Attys for Defts: J. Robins, D. Hu, B.Shumate; Attys for Intervenos: N.Perales, C. Moreno, J. Salmon;(Court Reporter: S. Perales)(10:30-10:40). 13 Motion to Intervene not opposed by parties-GRANTED. 20 Motion for Brett A. Shumate to Appear Pro Hac Vice-GRANTED. Parties are to submit an agreed scheduling order as to 5 Preliminary Injuction by 05/25/18. If parties do not agree to a scheduling order each party is to submit their own scheduling order by 05/25/18. Scheduling Conference set for 05/30/18 at 11:00 am in Brownsville., filed.(csustaeta, 1) (Entered: 05/15/2018)
21 ORDER granting 20 Motion for Brett A. Shumate to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 05/15/2018)
***Set/Reset Hearings: Scheduling Conference set for 5/30/2018 at 11:00 AM in Courtroom 6 before Judge Andrew S Hanen in Brownsville, Tx. (csustaeta, 1) (Entered: 05/15/2018)
22 ORDER granting 13 Motion to Intervene. The Court having considered the papers submitted in connection with said motion, and such other relevant information and evidence as was presented to this Court, and good cause appearing, it is hereby ordered that: (1) Motion for Leave to Intervene is granted; (2) Movants be entered as Defendant-Intervenors and their counsel served with all relevant papers in the above-captioned action; and (3) The Clerk of Court shall docket Movants' Answer to Plaintiffs' Complaint, attached as Exhibit 1 to Movants' Motion for Leave to Intervene..(Signed by Judge Andrew S Hanen) Parties notified.(jtabares, 1) (Entered: 05/16/2018)
23 ANSWER to 1 Complaint, by Defendants-Intervenors Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed.(jtabares, 1) (Entered: 05/16/2018)
24 CERTIFICATE OF INTERESTED PARTIES by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 05/16/2018)

05/17/2018 05/17/2018 05/17/2018 05/17/2018 05/17/2018 05/17/2018 05/17/2018
05/17/2018 05/17/2018 05/18/2018
05/21/2018 05/21/2018

25 RETURN of Service of SUMMONS Executed as to United States of America served on 5/16/2018, answer due 7/16/2018, filed.(Disher, Todd) (Entered: 05/17/2018)
26 RETURN of Service of SUMMONS Executed as to Kirstjen M. Nielsen served on 5/16/2018, answer due 7/16/2018, filed.(Disher, Todd) (Entered: 05/17/2018)
27 RETURN of Service of SUMMONS Executed as to Kevin K. McAleenan served on 5/16/2018, answer due 7/16/2018, filed.(Disher, Todd) (Entered: 05/17/2018)
28 RETURN of Service of SUMMONS Executed as to Thomas D. Homan served on 5/16/2018, answer due 7/16/2018, filed.(Disher, Todd) (Entered: 05/17/2018)
29 RETURN of Service of SUMMONS Executed as to L. Francis Cissna served on 5/16/2018, answer due 7/16/2018, filed.(Disher, Todd) (Entered: 05/17/2018)
30 RETURN of Service of SUMMONS Executed as to Carla L. Provost served on 5/16/2018, answer due 7/16/2018, filed.(Disher, Todd) (Entered: 05/17/2018)
31 AO 435 TRANSCRIPT REQUEST by Nina Perales for Transcript of Scheduling Conference by phone on 05/15/18 before Judge Hanen. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Perales, Nina) (Entered: 05/17/2018)
32 MOTION for Kenneth S. Levine to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 6/7/2018. (scastillo, 1) (Entered: 05/18/2018)
33 MOTION for Rachel Wainer Apter to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 6/7/2018. (scastillo, 1) (Entered: 05/18/2018)
34 TRANSCRIPT re: Telephonic Conference held on May 15, 2018 before Judge Andrew S Hanen. Court Reporter/Transcriber sperales. Ordering Party Ms. Karen C. Tumlin Release of Transcript Restriction set for 8/16/2018., filed. (sperales, ) (Entered: 05/18/2018)
35 Notice of Filing of Official Transcript as to 34 Transcript. Party notified, filed. (scastillo, 1) (Entered: 05/21/2018)
36 MOTION for Scheduling Order by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 6/11/2018. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 05/21/2018)

05/21/2018 05/21/2018
05/21/2018 05/21/2018 05/21/2018 05/22/2018 05/22/2018 05/22/2018 05/22/2018 05/22/2018 05/23/2018

37 NOTICE of Appearance by Adam N. Bitter on behalf of State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Bitter, Adam) (Entered: 05/21/2018)
38 RESPONSE in Opposition to 36 MOTION for Scheduling Order, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 05/21/2018)
39 MOTION to Intervene by State of New Jersey, filed. Motion Docket Date 6/11/2018. (hler, 4) (Entered: 05/22/2018)
40 MEMORANDUM re: 39 MOTION to Intervene by State of New Jersey, filed.(hler, 4) (Entered: 05/22/2018)
41 MOTION for Paul H Juzdan to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 6/11/2018. (hler, 4) (Entered: 05/22/2018)
42 AMENDED MEMORANDUM In Support of Proposed Defendant Intervenor's 39 Motion to Intervene by State of New Jersey, filed.(gkelner, 4) (Entered: 05/22/2018)
43 ORDER granting 32 Motion for Kenneth S. Levine to Appear Pro Hac Vice for State of New Jersey. (Signed by Judge Andrew S Hanen) Parties notified.(sanderson, 4) (Entered: 05/22/2018)
44 ORDER granting 33 Motion for Rachel Walner Apter to Appear Pro Hac Vice for State of New Jersey. (Signed by Judge Andrew S Hanen) Parties notified.(sanderson, 4) (Entered: 05/22/2018)
45 ORDER granting 41 Motion for Paul H. Juzdan to Appear Pro Hac Vice for State of New Jersey. (Signed by Judge Andrew S Hanen) Parties notified.(sanderson, 4) (Entered: 05/22/2018)
46 REPLY in Support of 36 MOTION for Scheduling Order, filed by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Bitter, Adam) (Entered: 05/22/2018)
47 ORDER re: 39 Motion to Intervene as a Defendant. Lead counsel for the proposed defendant-interveners is hereby ordered to attend the status conference scheduled for 11:00 AM, Wednesday, May 30th, 2018.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 05/23/2018)

05/25/2018 05/25/2018 05/25/2018 05/29/2018
05/29/2018
05/30/2018

48 Opposed PROPOSED ORDER by Proposed Defendant-Intervenor State of New Jersey, filed. (Attachments: # 1 Proposed Order Exhibit 1 Proposed Order)(Apter, Rachel) (Entered: 05/25/2018)
49 STATUS REPORT by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed.(Robins, Jeffrey) (Entered: 05/25/2018)
50 ADVISORY by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Proposed Order)(Salmon, John) (Entered: 05/25/2018)
51 Opposed MOTION to Dismiss Without Prejudice or, in the Alternative, to Transfer or Stay Proceedings by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/19/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 05/29/2018)
52 MEMORANDUM re: 51 Opposed MOTION to Dismiss Without Prejudice or, in the Alternative, to Transfer or Stay Proceedings by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Appendix, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Perales, Nina) (Entered: 05/29/2018)
Minute Entry for proceedings held before Judge Andrew S Hanen. SCHEDULING CONFERENCE held on 5/30/2018. Appearances: Attys for Plaintiffs: T. Disher, A. Biggs, B. Starr; Attys for Defendants: J. Robbins, D. Hu, B. Shumate; Attys for Intervenor Defendants: N. Perales, C. Garcia, J. Salmon; Atty for Proposed Defendant-Intervenor: R. Apter. (Court Reporter: S. Perales)(11:05-12:05). Oral argument as to 39 Motion to Intervene by State of New Jersey - objected by Plaintiffs and Defendants; Intervenor Defendants No Objections. 39 under advisement by Court. As to 39 Plaintiffs Response Brief due June 6,

05/30/2018
05/30/2018 05/30/2018 05/31/2018 05/31/2018 05/31/2018 05/31/2018

2018 and Proposed Defendant-Intervenor reply due June 11, 2018. Oral argument as to 51 Opposed Motion to Dismiss filed by Intervenors Defendants - DENIED w/o prejudice and leave is given by court allowing Intervenors Defendants to bring up motion at a later time. Oral argument as to 36 Motion for Scheduling Order heard. Hearing set for 7/17/2018 at 11:00 AM at Courtroom 6 before Judge Andrew S Hanen. Court order will follow. filed.(csustaeta, 1) (Entered: 05/30/2018)
53 ORDER denying 51 Motion to Dismiss; Response to New Jersey's motion to intervene is due 6/6/2018; response to plaintiff's motion for preliminary injunction due 6/8/2018; reply to response to New Jersey's motion to intervene due 6/11/2018; experts must be disclosed by 6/15/2018; discovery must be completed by 6/29/2018; post-discovery briefing is due 7/7/2018; responses to post-discovery briefings are due 7/13/2018; Preliminary Injunction Hearing is set for 11:00 AM in Brownsville unless changed by subsequent order on 7/17/2018.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 05/30/2018)
***Set/Reset Deadlines as to 39 MOTION to Intervene : Deft Expert Report due by 6/15/2018. Deft Expert Witness List due by 6/15/2018. Discovery due by 6/29/2018. Pltf Expert Report due by 6/15/2018. Pltf Expert Witness List due by 6/15/2018. Preliminary Injunction Hearing set for 7/17/2018 at 11:00 AM in Courtroom 6 before Judge Andrew S Hanen Responses due by 6/6/2018. (dnoriega, 1) (Entered: 05/30/2018)
***Set/Reset Deadlines as to 39 MOTION to Intervene, 5 MOTION for Preliminary Injunction : Responses due by 6/8/2018. Replies due by 6/11/2018 (dnoriega, 1) (Entered: 05/30/2018)
54 AO 435 TRANSCRIPT REQUEST by Todd Lawrence Disher for Transcript of Initial Pretrial Conference on 05/30/18 before Hon. Andrew S. Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Disher, Todd) (Entered: 05/31/2018)
55 AO 435 TRANSCRIPT REQUEST by Nina Perales for Transcript of Initial Pretrial Conference on 05/30/2018 before Hon. Andrew S. Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Perales, Nina) (Entered: 05/31/2018)
56 AO 435 TRANSCRIPT REQUEST by Daniel Hu for Transcript of Initial Pretrial Conference on 5/30/18 before Judge Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Hu, Daniel) (Entered: 05/31/2018)
57 AO 435 TRANSCRIPT REQUEST by Proposed Defendant Intervenor State of New Jersey/Rachel Wainer Apter for Transcript of Scheduling Conference on 5/30/18 before Judge Hanen. Expedited (7 days)

06/05/2018 06/05/2018 06/06/2018 06/06/2018 06/07/2018 06/07/2018 06/07/2018 06/07/2018
06/08/2018

turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Apter, Rachel) (Entered: 05/31/2018)
58 MOTION for Lawrence J. Joseph to Appear Pro Hac Vice on behalf of party U.S. Rep. Steve King et al (amicus coalition of Members of Congress), filed. Motion Docket Date 6/26/2018. (dbenavides, 1) (Entered: 06/05/2018)
59 ORDER granting 58 Motion for Lawrence J. Joseph to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 06/05/2018)
60 RESPONSE in Opposition to 39 MOTION to Intervene, filed by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 06/06/2018)
61 RESPONSE in Opposition to 39 MOTION to Intervene, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Robins, Jeffrey) (Entered: 06/06/2018)
62 MOTION for Jeremy E. Hollander to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 6/28/2018. (Levine, Kenneth) (Additional attachment(s) added on 6/11/2018: # 1 Vertified Status of Bar Membership for Motion Pro Hac Vice)) (jtabares, 1). (Entered: 06/07/2018)
63 NOTICE of Appearance by Andrew L. Schlafly on behalf of U.S. Rep. Steve King, et al., filed. (Schlafly, Andrew) (Entered: 06/07/2018)
64 MOTION for Leave to File Amicus Brief by U.S. Rep. Steve King, et al., filed. Motion Docket Date 6/28/2018. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Schlafly, Andrew) (Entered: 06/07/2018)
65 Opposed MOTION for Discovery by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/28/2018. (Attachments: # 1 Exhibit Exhibit 1 - Email Exchange, # 2 Proposed Order Proposed Granted Leave to Defendant-Intervenors to Conduct Discovery of Federal Defendants)(Perales, Nina) (Entered: 06/07/2018)
66 RESPONSE to 5 MOTION for Preliminary Injunction , filed by State of New Jersey. (Levine, Kenneth) (Entered: 06/08/2018)

06/08/2018
06/08/2018
06/08/2018 06/08/2018 06/08/2018 06/11/2018 06/11/2018 06/12/2018

67 MOTION for Denise Hulett to Appear Pro Hac Vice by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/29/2018. (Perales, Nina) (Additional attachment(s) added on 6/11/2018: # 1 Atty License Verifification) (rnieto, 1). (Entered: 06/08/2018)
68 RESPONSE in Opposition to 5 MOTION for Preliminary Injunction, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 06/08/2018)
69 ORDER granting 64 Motion for Leave to File.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 06/08/2018)
70 MEMORANDUM of Law re: 5 MOTION for Preliminary Injunction by U.S. Rep. Steve King, et al., filed.(dnoriega, 1) (Entered: 06/08/2018)
71 RESPONSE to 5 MOTION for Preliminary Injunction , filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Appendix Unreported Authorities)(Robins, Jeffrey) (Entered: 06/08/2018)
72 ORDER granting 67 Motion for Denise Hulett to Appear Pro Hac Vice. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 06/11/2018)
73 REPLY in Support of 39 MOTION to Intervene, filed by State of New Jersey. (Levine, Kenneth) (Entered: 06/11/2018)
74 MOTION for Priscilla Orta to Appear Pro Hac Vice by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/3/2018. (Perales, Nina) (Additional attachment(s) added on 6/13/2018: # 1 Atty License Verification) (rnieto, 1). (Entered: 06/12/2018)

06/12/2018 06/12/2018
06/12/2018 06/13/2018 06/13/2018 06/13/2018
06/14/2018 06/14/2018 06/14/2018

75 MOTION for Nicholas Dolinsky to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 7/3/2018. (Levine, Kenneth) (Additional attachment(s) added on 6/13/2018: # 1 Atty License Verification) (rnieto, 1). (Entered: 06/12/2018)
76 NOTICE of Appearance by Ernest I. Herrera on behalf of Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Perales, Nina) (Entered: 06/12/2018)
77 ORDER granting 62 Motion for Jeremy Hollander to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 06/12/2018)
78 MOTION for Katherine Gregory to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 7/5/2018. (Levine, Kenneth) (Additional attachment(s) added on 6/13/2018: # 1 Atty License Verification) (rnieto, 1). (Entered: 06/13/2018)
79 ORDER, entered. Defendant-Intervenors are hereby ordered to file with the Court those discovery devices, and any others for which they request court intervention. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 06/13/2018)
80 Supplemental MOTION for Discovery by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/5/2018. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Perales, Nina) (Entered: 06/13/2018)
81 ORDER granting 75 Motion for Nicholas Dolinsky to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Main Document 81 replaced on 6/14/2018) (bcampos, 1). (Entered: 06/14/2018)
82 ORDER granting 74 Motion for Priscilla Orta to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 06/14/2018)
83 ORDER granting 78 Motion for Katherine Gregory to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 06/14/2018)

06/14/2018 06/14/2018 06/15/2018
06/15/2018 06/15/2018 06/15/2018 06/15/2018
06/17/2018

84 MOTION for Leave to File Amended Complaint by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 7/5/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Bitter, Adam) (Entered: 06/14/2018)
85 RESPONSE in Opposition to 80 Supplemental MOTION for Discovery, 65 Opposed MOTION for Discovery, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Robins, Jeffrey) (Entered: 06/14/2018)
86 Opposed MOTION for Discovery by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/6/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Perales, Nina) (Entered: 06/15/2018)
87 EMERGENCY MOTION, MOTION to Quash Deposition Notices and Subpoenas( Motion Docket Date 7/6/2018.) by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Robins, Jeffrey) (Entered: 06/15/2018)
88 NOTICE of Setting. Parties notified. Telephone Conference set for 6/18/2018 at 03:30 PM by telephone before Judge Andrew S Hanen, filed. RE: Discovery Motions. Case Manager will send an email as to the telephone number to call in. (csustaeta, 1) (Entered: 06/15/2018)
89 ORDER entered. Motion-related deadline set re: 84 MOTION for Leave to File Amended Complaint. Defendant-Intervenors Responses due by 6/21/2018.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 06/15/2018)
90 Exhibit List by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez(Perales, Nina) (Entered: 06/15/2018)
91 Opposed MOTION for Discovery by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha

06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018
06/18/2018
06/20/2018

Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/9/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Proposed Order Granting Leave to Submit Testimony)(Perales, Nina) (Entered: 06/17/2018)
92 NOTICE of Appearance by Cristina M. Moreno on behalf of State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Disher, Todd) (Entered: 06/18/2018)
93 NOTICE of Appearance by P. Trent Peroyea on behalf of State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Disher, Todd) (Entered: 06/18/2018)
94 RESPONSE in Opposition to 80 Supplemental MOTION for Discovery, 65 Opposed MOTION for Discovery, filed by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 06/18/2018)
95 RESPONSE to 91 Opposed MOTION for Discovery filed by State of New Jersey. (Apter, Rachel) (Entered: 06/18/2018)
96 RESPONSE in Opposition to 87 EMERGENCY MOTION MOTION to Quash Deposition Notices and Subpoenas, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 06/18/2018)
Minute Entry for proceedings held before Judge Andrew S Hanen. TELEPHONE CONFERENCE held on 6/18/2018. Appearances: Plaintiffs Attys: T.Disher, A.Biggs, T. Peroyea; Defendants Attys: J. Robbins; Intervenor Defendants Attys: N. Perales, E. Herrera; Proposed Defendant Intervenor Attys: K.Levine, R. Wainer Apter, J. Hollander;(Court Reporter: S. Perales)(03:30-03:55). Discussion held as to discovery motions. Court order will follow., filed.(csustaeta, 1) (Entered: 06/18/2018)
97 ORDER entered. The federal defendants are not required to respond to the defendant-intervenors' first set of discovery requests; the federal defendants are ordered to respond to defendant-intervenors third set of discovery requests by 7/6/2018; the defendant-intervenors may depose Mr. Kenneth Palinkas; the federal defendants have until the end of

06/21/2018
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06/25/2018 06/25/2018

Friday, 6/22/2018, to respond to defendant-intervenors' motion for leave to submit teestimony.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 06/20/2018)
98 RESPONSE in Opposition to 84 MOTION for Leave to File Amended Complaint, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 06/21/2018)
99 RESPONSE in Opposition to 91 Opposed MOTION for Discovery, filed by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A)(Bitter, Adam) (Entered: 06/22/2018)
100 NOTICE of Filing by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, filed. (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 06/22/2018)
101 RESPONSE in Opposition to 91 Opposed MOTION for Discovery, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Robins, Jeffrey) (Entered: 06/22/2018)
102 REPLY in Support of 91 Opposed MOTION for Discovery, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 06/25/2018)
103 ORDER granting 84 Motion for Leave to File Amended Complaint and granting the States of New Jersey's Amended Motion for leave to Intervene 42 .(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 06/25/2018)
104 AMENDED COMPLAINT against All Defendants filed by State of Texas, State of Louisiana, State of Nebraska, State of West Virginia, State of Arkansas, State of South Carolina, State of Alabama. Related document: 1 Complaint, filed by State of Alabama, State of Texas, State of Arkansas, State of Nebraska, State of West Virginia, State of South Carolina, State of Louisiana.(dbenavides, 1) (Entered: 06/25/2018)

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06/28/2018

105 Opposed MOTION to Exclude Testimony from Untimely Designated Witnesses by State of Alabama, State of Arkansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 7/16/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Disher, Todd) (Entered: 06/25/2018)
106 MOTION for Aaron S. Goldsmith to Appear Pro Hac Vice by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, United States of America, filed. Motion Docket Date 7/17/2018. (Goldsmith, Aaron) (Additional attachment(s) added on 6/28/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 06/26/2018)
107 Opposed MOTION for Extension of Time Post-discovery briefing by State of New Jersey, filed. Motion Docket Date 7/18/2018. (Attachments: # 1 Exhibit Order in NAACP v. Trump, # 2 Proposed Order)(Apter, Rachel) (Entered: 06/27/2018)
108 MOTION for Brian DeVito to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 7/19/2018. (Levine, Kenneth) (Additional attachment(s) added on 6/28/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 06/28/2018)
109 Cross MOTION to Exclude Plaintiffs' Evidence of Non-Disclosed Witnesses by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/19/2018. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Perales, Nina) (Entered: 06/28/2018)
Minute Entry for proceedings held before Judge Andrew S Hanen. TELEPHONE CONFERENCE held on 6/28/2018. Appearances: T. Disher, Atty f/Plaintiffs; A. Goldsmith, Atty f/Defendants; N. Perales, Atty f/Intervenor Defendants; R. Apter, Atty f/State of New Jersey;(ERO:Juanita Tabares)(02:00-02:23) All Parties participated telephonically. Plaintiffs Attorney T.Disher said no pending motions to be addressed today. 109 Cross Motion to Exclude Plaintiffs Evidence of Non-Disclosed Witnesses addressed. Denied depositions as to certain witnesses depending on answers w/o prejudice. 106 Motion for Aaron S. Goldsmith-GRANTED. 107 Opposed Motion for Extension of Time Post-discovery briefing by State of New Jersey-GRANTED. Court adopts the dates on on motion 107 Discovery Cutoff- due 07/13/18; Postdiscovery briefing due 07/21818; Responses to post-discovery briefing due 07/27/18 and Hearing reset to 08/08/18. Court is interested in certain things and those items where discussed. Discussion held as to deposition. Telephone conference ended., filed.(csustaeta, 1) (Entered: 06/28/2018)

06/29/2018 06/29/2018 06/29/2018
06/29/2018
07/02/2018 07/02/2018 07/02/2018
07/02/2018 07/02/2018

110 AO 435 TRANSCRIPT REQUEST by Judge Hanen for Transcript of Telephonic Conference held on 6-28-18 before Judge Andrew S. Hanen. Hourly turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (rnieto, 1) (Entered: 06/29/2018)
111 TRANSCRIPT re: TELEPHONE CONFERENCE held on 6/28/18 before Judge Andrew S Hanen. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party JUDGE ANDREW S. HANEN Release of Transcript Restriction set for 9/27/2018., filed. (thudson, ) (Entered: 06/29/2018)
112 AO 435 TRANSCRIPT REQUEST by Nina Perales for Transcript of Telephone Conference, 06/28/2018, Judge Andrew Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Perales, Nina) Modified on 7/2/2018 (dnoriega, 1). Electronically forwarded to Exceptional on 7/2/2018. Transcript Completion Date: 7/6/2018. (Entered: 06/29/2018)
113 AO 435 TRANSCRIPT REQUEST by United States of America et al for Transcript of 06/28/2018. 3-Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Goldsmith, Aaron) Modified on 7/2/2018 (dnoriega, 1). Electronically forwarded to Exceptional on 7/2/2018. Estimated Transcript Completion Date: 7/2/2018. (Entered: 06/29/2018)
114 Notice of Filing of Official Transcript as to 111 Transcript. Party notified, filed. (JenniferLongoria, 1) (Entered: 07/02/2018)
115 MOTION for Extension of Time File an Answer by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, United States of America, filed. Motion Docket Date 7/23/2018. (Attachments: # 1 Proposed Order)(Goldsmith, Aaron) (Entered: 07/02/2018)
116 ORDER denying 91 Motion for Discovery; granting 107 Motion for Extension of Time. Discovery from the Federal Defendants must be completed by 7/13/2018. The Preliminary Injunction hearing will be on 8/8/2018 at 10:00 AM. The hearing will be held in Brownsville, Texas unless counsel are notified otherwise..(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/02/2018)
***Set/Reset Deadlines/Hearings: Injunction Hearing set for 8/8/2018 at 10:00 AM in Courtroom 3 before Judge Andrew S Hanen (dnoriega, 1) (Entered: 07/02/2018)
117 ORDER granting 115 Motion for Extension of Time. It is hereby ordered that the date for defendants to respond to plaintiffs' amended complaint, filed 6/25/2018, is hereby extended to 7/23/2018.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/02/2018)

07/05/2018
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118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/26/2018. (Attachments: # 1 Memorandum in Support of Motion, # 2 Proposed Order)(Perales, Nina) (Entered: 07/05/2018)
119 MOTION for Douglas H. Hallward-Driemeier to Appear Pro Hac Vice by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 7/26/2018. (Perales, Nina) (Additional attachment(s) added on 7/6/2018: # 1 Attorney Verification) (scastillo, 1). (Entered: 07/05/2018)
120 ORDER entered ; Motion-related deadline set re: 118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction Responses due by 7/20/2018.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/06/2018)
121 MOTION for Thomas J. Perrelli to Appear Pro Hac Vice by Proposed Amici Institutions of Higher Education, filed. Motion Docket Date 7/30/2018. (verified) (dbenavides, 1) Modified on 7/9/2018 (dbenavides, 1). (Entered: 07/09/2018)
122 MOTION for Ishan K Bhahba to Appear Pro Hac Vice by Proposed Amici Institutions of Higher Education, filed. Motion Docket Date 7/30/2018. (verified) (dbenavides, 1) Modified on 7/9/2018 (dbenavides, 1). (Entered: 07/09/2018)
123 MOTION for Lindsay C. Harrison to Appear Pro Hac Vice by Proposed Amici Institutions of Higher Education, filed. Motion Docket Date 7/30/2018. (verified) (dbenavides, 1) Modified on 7/9/2018 (dbenavides, 1). (Entered: 07/09/2018)
124 MOTION for Jennifer J. Yun to Appear Pro Hac Vice by Proposed Amici Institutions of Higher Education, filed. Motion Docket Date 7/30/2018. (verified) (dbenavides, 1) Modified on 7/9/2018 (dbenavides, 1). (Entered: 07/09/2018)
125 ORDER granting 119 Motion for Douglas H. Hallward-Driemeier to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/10/2018)

07/10/2018 07/10/2018 07/10/2018 07/10/2018 07/11/2018 07/11/2018 07/11/2018 07/11/2018 07/11/2018 07/11/2018
07/11/2018 07/11/2018

126 ORDER granting 124 Motion for Jennifer J. Yun to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/10/2018)
127 ORDER granting 121 Motion for Thomas J. Perrelli to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/10/2018)
128 ORDER granting 122 Motion for Ishan K. Bhabha to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/10/2018)
129 ORDER granting 123 Motion for Lindsay C. Harrison to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/10/2018)
130 MOTION for Gavin J. Rooney to Appear Pro Hac Vice by Proposed Amici New Jersey Businesses, filed. (verified) Motion Docket Date 8/1/2018. (dbenavides, 1) (Entered: 07/11/2018)
131 MOTION for Craig Dashiell to Appear Pro Hac Vice by Proposed Amici New Jersey Businesses, (verified) filed. Motion Docket Date 8/1/2018. (dbenavides, 1) (Entered: 07/11/2018)
132 MOTION for David Leit to Appear Pro Hac Vice by Proposed Amici New Jersey Businesses filed. (verified) Motion Docket Date 8/1/2018. (dbenavides, 1) (Entered: 07/11/2018)
133 ORDER granting 106 Motion for Aaron S. Goldsmith to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/11/2018)
134 ORDER granting 108 Motion for Brian De Vito to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/11/2018)
135 MOTION to Enforce July 2, 2018 Order and Quash Subpoena to the President of the National Citizenship and Immigration Council of the AFGE, AFL-CIO as to 116 Order on Motion for Discovery,, Order on Motion for Extension of Time, by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 8/1/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Disher, Todd) (Entered: 07/11/2018)
136 ORDER granting 135 Motion to Enforce. (Signed by Judge Andrew S Hanen) Parties notified.(csustaeta, 1) (Entered: 07/11/2018)
137 RESPONSE in Opposition to 135 MOTION to Enforce July 2, 2018 Order and Quash Subpoena to the President of the National Citizenship

07/11/2018
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and Immigration Council of the AFGE, AFL-CIO as to 116 Order on Motion for Discovery,, Order on Motion for Extension of Time,, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Exhibit A)(Perales, Nina) (Entered: 07/11/2018)
138 Renewed MOTION for Discovery by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/1/2018. (Attachments: # 1 Exhibit A)(Perales, Nina) (Entered: 07/11/2018)
139 RESPONSE in Opposition to 138 Renewed MOTION for Discovery, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Robins, Jeffrey) (Entered: 07/12/2018)
140 MOTION for Zachary Kolodin to Appear Pro Hac Vice by Proposed Amici Religious Organizations, filed. (verified) Motion Docket Date 8/3/2018. (dbenavides, 1) (Entered: 07/13/2018)
141 MOTION for Adeel A. Mangi to Appear Pro Hac Vice by Proposed Amici Religious Organizations, filed. (verified) Motion Docket Date 8/3/2018. (dbenavides, 1) (Entered: 07/13/2018)
142 MOTION for Michael N Fresco to Appear Pro Hac Vice by Proposed Amici Religious Organizations, filed. (verified) Motion Docket Date 8/3/2018. (dbenavides, 1) (Entered: 07/13/2018)
143 MOTION for Lawrence S. Lustberg to Appear Pro Hac Vice by Proposed Amici Health Care Professionals, filed. (Verified) Motion Docket Date 8/3/2018. (dbenavides, 1) (Entered: 07/13/2018)
144 MOTION for Hasan Shafiqullah to Appear Pro Hac Vice by The Legal Aid Society, filed. Motion Docket Date 8/6/2018. Verified Status of Bar Membership for Motion Pro Hac Vice.(JenniferLongoria, 1) (Entered: 07/16/2018)
145 MOTION for Jessa Irene DeGroote to Appear Pro Hac Vice by The Legal Aid Society, filed. Motion Docket Date 8/6/2018. Verified Status

07/16/2018
07/16/2018
07/16/2018
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of Bar Membership for Motion Pro Hac Vice.(JenniferLongoria, 1) (Entered: 07/16/2018)
146 MOTION for Maureen P. Alger to Appear Pro Hac Vice by Proposed Amici Legal Services Organization, filed. Motion Docket Date 8/6/2018. (Attanasio, Michael) (Additional attachment(s) added on 7/18/2018: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jtabares, 1). (Entered: 07/16/2018)
147 MOTION for Monique R. Sherman to Appear Pro Hac Vice by Proposed Amici Legal Services Organization, filed. Motion Docket Date 8/6/2018. (Attanasio, Michael) (Additional attachment(s) added on 7/18/2018: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jtabares, 1). (Entered: 07/16/2018)
148 MOTION for Michael J. McMahon to Appear Pro Hac Vice by Proposed Amici Legal Services Organization, filed. Motion Docket Date 8/6/2018. (Attanasio, Michael) (Additional attachment(s) added on 7/18/2018: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jtabares, 1). (Entered: 07/16/2018)
149 MOTION for Joan R. Li to Appear Pro Hac Vice by Proposed Amici Legal Services Organization, filed. Motion Docket Date 8/6/2018. (Attanasio, Michael) (Additional attachment(s) added on 7/18/2018: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jtabares, 1). (Entered: 07/16/2018)
150 MOTION for Peter Karanjia to Appear Pro Hac Vice by Proposed Amicus United We Dream, filed. Motion Docket Date 8/6/2018. (dbenavides, 1) (Entered: 07/16/2018)
151 MOTION for Geoffrey S. Brounell to Appear Pro Hac Vice by Proposed Amicus United We Dream, filed. Motion Docket Date 8/6/2018. (DesireeSillas, 4) (Entered: 07/16/2018)
152 ORDER granting 130 Motion for Gavin J. Rooney to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
153 ORDER granting 131 Motion for Craig Dashiell to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
154 ORDER granting 132 Motion for David Leit to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
155 ORDER granting 140 Motion for Zachary Kolodin to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)

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156 ORDER granting 141 Motion for Adeel A. Mangi to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
158 ORDER granting 143 Motion for Lawrence S. Lustberg to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
159 ORDER granting 144 Motion for Hasan Shafiqullah to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
160 ORDER granting 145 Motion for Jessa DeGroote to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
157 ORDER granting 142 Motion for Michael N. Fresco to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
161 ORDER entered. The Preliminary Injunction Hearing scheduled to take place on 8/8/2018 at 10:00 AM will now be held in Houston, Texas, in Courtroom 9C before Judge Andrew S Hanen. In light of the Preliminary Injunction hearing, the initial pretrial conference scheduled for 7/31/2018, is hereby canceled. No joint case management plan need be filed.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/17/2018)
162 ORDER granting 151 Motion for Geoffrey S. Brounell to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/17/2018)
163 ORDER granting 150 Motion for Peter Karanjia to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/17/2018)
164 Unopposed MOTION for Leave to File Excess Pages by State of New Jersey, filed. Motion Docket Date 8/7/2018. (Attachments: # 1 Proposed Order)(Levine, Kenneth) (Entered: 07/17/2018)
165 REPLY in Support of 138 Renewed MOTION for Discovery, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 07/17/2018)
166 Unopposed MOTION for Leave to File Excess Pages by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth

07/18/2018 07/18/2018 07/18/2018 07/18/2018 07/18/2018
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Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/8/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 07/18/2018)
167 ORDER entered. Should any party wish to respond to this motion, any such response shall be filed on or before 7/20/2018 at 5:00 PM, Central Daylight Time.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 07/18/2018)
168 Unopposed MOTION for Extension of Time Answer by Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, filed. Motion Docket Date 8/8/2018. (Attachments: # 1 Proposed Order)(Goldsmith, Aaron) (Entered: 07/18/2018)
169 MOTION for Andrew W. Amend to Appear Pro Hac Vice by Proposed Amici States, filed. Motion Docket Date 8/8/2018. (jtabares, 1) (Entered: 07/18/2018)
170 MOTION for Jeffrey M. Davidson to Appear Pro Hac Vice by Proposed Amicus Kevin Johnson, filed. Motion Docket Date 8/8/2018. (jtabares, 1) (Entered: 07/18/2018)
171 RESPONSE in Opposition to 168 Unopposed MOTION for Extension of Time Answer, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 07/18/2018)
172 MOTION for Jonathan Samuel Kolodner to Appear Pro Hac Vice by Proposed Amicus Curia The Legal Aid Society, filed. Motion Docket Date 8/9/2018. (jtabares, 1) (Entered: 07/19/2018)
173 MOTION for Mark H. Lynch to Appear Pro Hac Vice by Proposed Amicus Kevin Johnson, filed. Motion Docket Date 8/9/2018. (jtabares, 1) (Entered: 07/19/2018)
174 MOTION for William D. Coston to Appear Pro Hac Vice by Proposed Amici Public Interest Groups, filed. Motion Docket Date 8/9/2018. (jdav, 4) (Entered: 07/20/2018)
175 MOTION for Martin L. Saad to Appear Pro Hac Vice by Proposed Amici Public Interest Groups, filed. Motion Docket Date 8/9/2018. (jdav, 4) (Entered: 07/20/2018)

07/19/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018
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176 MOTION for Sameer P. Sheikh to Appear Pro Hac Vice by Proposed Amici Public Interest Groups, filed. Motion Docket Date 8/9/2018. (jdav, 4) (Entered: 07/20/2018)
177 ORDER granting 169 Motion for Andrew W. Amend to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
178 ORDER granting 170 Motion for Jeffrey M. Davidson to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
179 ORDER granting 173 Motion for Mark H. Lynch to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
180 ORDER granting 174 Motion for William D. Coston to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
181 ORDER granting 172 Motion for Jonathan Samuel Kolodner to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
182 ORDER granting 176 Motion for Sameer P Sheikh to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
183 ORDER granting 175 Motion for Martin L. Saad to Appear Pro Hac Vice.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4) (Entered: 07/20/2018)
184 Unopposed MOTION for Leave to File Amicus brief by United We Dream, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Amicus brief, # 2 Proposed Order)(Karanjia, Peter) (Entered: 07/20/2018)
185 Unopposed MOTION for Leave to File Excess Pages by Phil Bryant, Paul R. LePage, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 07/20/2018)
186 Amicus Curiae APPEARANCE by The Legal Aid Society, filed.(Kolodner, Jonathan) (Entered: 07/20/2018)
187 Amicus Curiae APPEARANCE by The Legal Aid Society, filed.(DeGroote, Jessa) (Entered: 07/20/2018)
188 RESPONSE in Opposition to 118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of

07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018 07/20/2018
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Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Disher, Todd) (Entered: 07/20/2018)
189 RESPONSE to 138 Renewed MOTION for Discovery filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 07/20/2018)
190 Unopposed MOTION for Leave to File Amicus Brief by U.S. Rep. Steve King, et al., filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Schlafly, Andrew) (Entered: 07/20/2018)
191 Unopposed MOTION for Leave to File Amicus brief by Proposed Amici Religious Organizations, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Declaration of Adeel A. Mangi, # 2 Exhibit A, (proposed) Amicus brief)(Mangi, Adeel) (Entered: 07/20/2018)
192 MOTION for Leave to File Amici Brief by Proposed Amici New Jersey Businesses, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Leit, David) (Entered: 07/20/2018)
193 RESPONSE to 118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction filed by State of New Jersey. (Attachments: # 1 Appendix)(Juzdan, Paul) (Entered: 07/20/2018)
194 RESPONSE to 118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Robins, Jeffrey) (Entered: 07/20/2018)
195 MOTION for Leave to File Amici Curiae Brief (Legal Services Organizations) by Proposed Amici Legal Services Organization, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Exhibit Exhibit A Amici Curiae Brief (Legal Services Organizations), # 2 Appendix Appendix of Amici Curiae Brief, # 3 Proposed Order)(Attanasio, Michael) (Entered: 07/20/2018)
196 NOTICE of Appearance by Ryan K. Yagura on behalf of Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Georgetown University, George Washington University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt

07/20/2018
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University, Washington University in St. Louis, Yale University, filed. (Yagura, Ryan) (Entered: 07/20/2018)
197 Unopposed MOTION for Leave to File Brief of Amici Curiae Nineteen Universities in Support of Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Memorandum of Law, # 2 Proposed Order)(Yagura, Ryan) (Entered: 07/20/2018)
198 MOTION for Jennifer Sokoler to Appear Pro Hac Vice by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University, filed. Motion Docket Date 8/10/2018. (Yagura, Ryan) (Additional attachment(s) added on 7/23/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 07/20/2018)
199 MOTION for Anton Metlitsky to Appear Pro Hac Vice by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University, filed. Motion Docket Date 8/10/2018. (Yagura, Ryan) (Additional attachment(s) added on 7/23/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 07/20/2018)
200 Amicus Curiae APPEARANCE by Proposed Amici Companies and Associations, filed.(Ranlett, Kevin) (Entered: 07/21/2018)
201 MOTION for Andrew J. Pincus to Appear Pro Hac Vice by Proposed Amici Companies and Associations, filed. Motion Docket Date 8/13/2018. (Ranlett, Kevin) (Additional attachment(s) added on 7/23/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 07/21/2018)

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202 MOTION for Lauren Goldman to Appear Pro Hac Vice by Proposed Amici Companies and Associations, filed. Motion Docket Date 8/13/2018. (Ranlett, Kevin) (Additional attachment(s) added on 7/23/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 07/21/2018)
203 MOTION for Karen W. Lin to Appear Pro Hac Vice by Proposed Amici Companies and Associations, filed. Motion Docket Date 8/13/2018. (Ranlett, Kevin) (Additional attachment(s) added on 7/23/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 07/21/2018)
204 Unopposed MOTION for Leave to File Amici Curiae Brief by Proposed Amici Companies and Associations, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Appendix of Amici Curiae Brief - Table of Contents, # 3 Appendix of Amici Curiae Brief - Volume 1, # 4 Appendix of Amici Curiae Brief Volume 2, # 5 Appendix of Amici Curiae Brief - Volume 3, # 6 Proposed Order re Motion for Leave to File Amici Curiae Brief)(Ranlett, Kevin) (Entered: 07/21/2018)
205 Unopposed AMENDED 166 MOTION by Darwin Velasquez, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 07/21/2018)
206 Unopposed MOTION for Leave to File to File Brief as Amici Curiae by Proposed Amici Institutions of Higher Education, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Exhibit BRIEF FOR AMICI CURIAE RICE UNIVERSITY AND OTHER INSTITUTIONS OF HIGHER EDUCATION IN SUPPORT OF DEFENDANT-INTERVENORS, # 2 Proposed Order)(Ramon, Sofia) Modified on 7/23/2018 (JenniferLongoria, 1). (Entered: 07/21/2018)
207 Unopposed MOTION for Leave to File Amici Curiae Brief by Proposed Amicus Kevin Johnson, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order Granting Motion for Leave)(Davidson, Jeffrey) (Entered: 07/21/2018)
208 NOTICE of Appearance by Andrew W. Amend on behalf of Proposed Amici States, filed. (Amend, Andrew) (Entered: 07/21/2018)
209 Unopposed MOTION for Leave to File Memorandum of Law as Amici Curiae, Unopposed MOTION for Leave to File Excess Pages( Motion Docket Date 8/13/2018.) by Proposed Amici States, filed. (Attachments: # 1 Memorandum of Law, # 2 Appendix, # 3 Proposed Order)(Amend, Andrew) (Entered: 07/21/2018)
210 NOTICE of Appearance by Lawrence S. Lustberg on behalf of Proposed Amici Health Care Professionals, filed. (Lustberg, Lawrence) (Entered: 07/21/2018)

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211 RESPONSE to 5 MOTION for Preliminary Injunction filed by Proposed Amici Public Interest Groups. (Garza, Jose) (Entered: 07/21/2018)
212 Unopposed MOTION for Leave to File Amici Curiae Brief by Proposed Amici Health Care Professionals, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order)(Lustberg, Lawrence) (Entered: 07/21/2018)
213 Unopposed MOTION for Leave to File Amicus Brief by Proposed Amici Public Interest Groups, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Ertas, Alper) (Entered: 07/21/2018)
214 Unopposed MOTION for Leave to File Amicus Brief by The Legal Aid Society, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Amicus Brief, # 2 Appendix to Proposed Amicus Brief, # 3 Proposed Order)(Kolodner, Jonathan) (Entered: 07/21/2018)
215 Opposed RESPONSE in Opposition to 5 MOTION for Preliminary Injunction, filed by State of New Jersey. (Attachments: # 1 Appendix)(Juzdan, Paul) (Entered: 07/21/2018)
216 Unopposed MOTION for Leave to File Amici Curiae Brief by Proposed Amici Health Care Professionals, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order)(Lustberg, Lawrence) (Entered: 07/21/2018)
217 Supplemental RESPONSE to 5 MOTION for Preliminary Injunction filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Robins, Jeffrey) (Entered: 07/21/2018)
218 BRIEF Post-Discovery Brief in Support of Motion for Preliminary Injunction re: 5 MOTION for Preliminary Injunction by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 07/21/2018)
219 Supplemental APPENDIX re: 5 MOTION for Preliminary Injunction by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Exhibit 21, # 2 Exhibit 22, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 25, # 6 Exhibit 26, # 7 Exhibit 27, # 8 Exhibit 28, # 9 Exhibit 29, # 10 Exhibit 30, # 11 Exhibit 31, # 12 Exhibit 32, # 13 Exhibit 33, # 14 Exhibit 34, # 15 Exhibit 35, # 16 Exhibit 36, # 17 Exhibit 37, # 18 Exhibit 38, # 19 Exhibit 39, # 20 Exhibit 40, # 21 Exhibit 41, # 22 Exhibit 42)(Disher, Todd) (Entered: 07/21/2018)

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220 NOTICE of Appearance by Thomas S. Leatherbury on behalf of Houston Hispanic Chamber of Commerce, Texas Association of Business, Brazoria County Hispanic Chamber of Commerce, El Paso Hispanic Chamber of Commerce, Greater Austin Hispanic Chamber of Commerce, International Bancshares Corporation, Marek Brothers Construction, Inc., Midland Hispanic Chamber of Commerce, Rio Grande Valley Hispanic Chamber of Commerce, San Antonio Hispanic Chamber of Commerce, Southwest Airlines, Texas Border Coalition, United Airlines, Inc., filed. (Leatherbury, Thomas) (Entered: 07/21/2018)
221 Unopposed MOTION for Leave to File Amici Curiae Brief by Brazoria County Hispanic Chamber of Commerce, El Paso Hispanic Chamber of Commerce, Greater Austin Hispanic Chamber of Commerce, Houston Hispanic Chamber of Commerce, International Bancshares Corporation, Marek Brothers Construction, Inc., Midland Hispanic Chamber of Commerce, Rio Grande Valley Hispanic Chamber of Commerce, San Antonio Hispanic Chamber of Commerce, Southwest Airlines, Texas Association of Business, Texas Border Coalition, United Airlines, Inc., filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Appendix of Amici Curiae Brief, # 3 Proposed Order re Motion for Leave to File Amici Curiae Brief)(Leatherbury, Thomas) (Entered: 07/21/2018)
222 Unopposed MOTION for Leave to File Brief of Amici Curiae by Current and Former Prosecutors and Law Enforcement Leaders, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Exhibit Proposed Brief, # 2 Proposed Order)(Badlani, Chirag) (Entered: 07/21/2018)
223 MOTION for Chirag G. Badlani to Appear Pro Hac Vice by Current and Former Prosecutors and Law Enforcement Leaders, filed. Motion Docket Date 8/13/2018. (Badlani, Chirag) (Additional attachment(s) added on 7/23/2018: # 1 Atty License Verification) (csustaeta, 1). (Entered: 07/21/2018)
224 RESPONSE in Opposition to 5 MOTION for Preliminary Injunction, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Appendix Table of Contents, # 2 Affidavit Volume 1)(Perales, Nina) (Entered: 07/21/2018)
225 Supplemental APPENDIX re: 224 Response in Opposition to Motion,, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla

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Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Volume 2, # 2 Volume 3, # 3 Volume 4, # 4 Volume 5, # 5 Volume 6, # 6 Volume 7)(Perales, Nina) (Entered: 07/22/2018)
226 Supplemental APPENDIX re: 224 Response in Opposition to Motion,, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Volume 8, # 2 Volume 9, # 3 Volume 10)(Perales, Nina) (Entered: 07/22/2018)
227 Supplemental APPENDIX re: 224 Response in Opposition to Motion,, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Volume 11, # 2 Volume 12, # 3 Volume 13)(Perales, Nina) (Entered: 07/22/2018)
228 ORDER granting 185 Plaintiff States' Unopposed Motion to Exceed Page Limits.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/23/2018)
229 ORDER granting 166 Defendant-Intervenors' Unopposed Motion to Exceed Page Limits.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/23/2018)
230 MOTION for Mary Kelly Persyn to Appear Pro Hac Vice by Karla Perez-Defendant-Intervenors and State of New Jersey-DefendantIntervenor, filed. Motion Docket Date 8/13/2018. (rnieto, 1) (verified) Modified on 7/23/2018 (rnieto, 1). (Entered: 07/23/2018)
231 MOTION for Johnathan James Smith to Appear Pro Hac Vice by Proposed Amici Religious Organizations, filed. Motion Docket Date 8/13/2018. (rnieto, 1) (verified) Modified on 7/23/2018 (rnieto, 1). (Entered: 07/23/2018)
232 MOTION for Juvaria Khan to Appear Pro Hac Vice by Proposed Amici Religious Organizations, filed. Motion Docket Date 8/13/2018. (rnieto, 1) (verified) Modified on 7/23/2018 (rnieto, 1). (Entered: 07/23/2018)
233 MOTION for Sirine Shebaya to Appear Pro Hac Vice by Proposed Amici Religious Organizations, filed. Motion Docket Date 8/13/2018. (rnieto, 1) (verified) Modified on 7/23/2018 (rnieto, 1). (Entered: 07/23/2018)

07/23/2018 07/23/2018 07/23/2018 07/23/2018
07/23/2018 07/23/2018 07/23/2018 07/24/2018 07/24/2018
07/24/2018

234 ANSWER to 104 Amended Complaint/Counterclaim/Crossclaim etc., by State of New Jersey, filed.(Juzdan, Paul) (Entered: 07/23/2018)
235 Amicus Curiae APPEARANCE by National Immigrant Justice Center, filed.(Roth, Charles) (Entered: 07/23/2018)
236 Unopposed MOTION Leave to Appear Amicus Curiae by National Immigrant Justice Center, filed. Motion Docket Date 8/13/2018. (Attachments: # 1 Memorandum of Law, # 2 Appendix Appendix of Authorities)(Roth, Charles) (Entered: 07/23/2018)
237 ANSWER to 104 Amended Complaint/Counterclaim/Crossclaim etc., by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed.(Perales, Nina) (Entered: 07/23/2018)
240 ORDER denying 168 Motion for Extension of Time.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
247 ORDER granting 205 Motion to exceed page limits.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
254 MEMORANDUM of law of American Professional Society of the Abuse of Children in support of unopposed motion for leave to file a brief Amicus Curiae in support of defendant -intervenors, filed.(scastillo, 1) (Entered: 07/24/2018)
238 ORDER granting 230 Motion for MARY KELLY PERSYN to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) Modified on 7/24/2018 (scastillo, 1). (Entered: 07/24/2018)
239 Second REPLY in Support of 91 Opposed MOTION for Discovery, 138 Renewed MOTION for Discovery, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 07/24/2018)
241 ORDER granting 198 Motion for Jennifer Sokoler to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)

07/24/2018 07/24/2018 07/24/2018
07/24/2018
07/24/2018 07/24/2018 07/24/2018 07/24/2018 07/24/2018 07/24/2018 07/24/2018

242 ORDER granting 199 Motion for Anton Metitsky to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
243 ORDER granting 201 Motion for Andrew J. Pincus to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
244 ORDER granting 190 Motion for Leave to File; 191 Motion for Leave to File; 192 Motion for Leave to File; 195 Motion for Leave to File; 197 Motion for Leave to File; 204 Motion for Leave to File; 206 Motion for Leave to File; 207 Motion for Leave to File; 209 Motion for Leave to File 213 Motion for Leave to File; 214 Motion for Leave to File; 216 Motion for Leave to File 221 Motion for Leave to File; 222 Motion for Leave to File; 236 Motion.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
245 ORDER granting 164 Motion. Defendant-Intervenor State of New Jersey shall be permitted to file a "Post- Discovery" Memorandum of Law in Opposition to Plaintiffs' Motion for Preliminary Injunction of up to 49 pages.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) Modified on 7/24/2018 (scastillo, 1). (Entered: 07/24/2018)
246 ORDER granting 202 Motion for Lauren Goldman to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
248 ORDER granting 223 Motion for Chirag G. Badlani to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
249 ORDER granting 231 Motion for Johnathan James Smith to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
250 ORDER granting 232 Motion for Juvaria Khan to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
251 ORDER granting 233 Motion for Sirine Shebaya to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
252 ORDER granting 184 Motion for Leave to File.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 07/24/2018)
253 BRIEF in support of defendant-intervenor's Opposition to Plaintiff's Motion for a preliminary Injuction by United We Dream, filed.(scastillo, 1) (Entered: 07/24/2018)

07/25/2018
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07/26/2018
07/26/2018 07/26/2018
07/26/2018

255 Opposed MOTION for Protective Order by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/15/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 07/25/2018)
256 Sealed Event, filed. (With attachments) (Entered: 07/25/2018)
257 ORDER granting 138 Motion for Discovery.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/25/2018)
263 ORDER granting 148 Motion for Michael McMahon to Appear Pro Hac Vice as to Proposed Amici Legal Services Orgainzation.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 07/26/2018)
258 RESPONSE in Opposition to 255 Opposed MOTION for Protective Order, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Disher, Todd) (Entered: 07/26/2018)
259 MOTION for Extension of Time to Extend the Post-Discovery Response Brief Filing Deadline by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/16/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 07/26/2018)
260 ORDER granting 203 Motion for Karen W. Lin to Appear Pro Hac Vice as to Proposed Amici Companies and Associations.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 07/26/2018)
261 RESPONSE in Opposition to 259 MOTION for Extension of Time to Extend the Post-Discovery Response Brief Filing Deadline, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 07/26/2018)
262 ORDER granting 149 Motion for Joan Li to Appear Pro Hac Vice for Proposed Amici Legal Services Organization.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 07/26/2018)

07/26/2018 07/26/2018 07/26/2018 07/26/2018
07/26/2018 07/27/2018
07/27/2018 07/27/2018

264 ORDER granting 146 Motion for Maureen Alger to Appear Pro Hac Vice as to Proposed Amici Legal Services Organization..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 07/26/2018)
265 ORDER granting 147 Motion for Monique Sherman to Appear Pro Hac Vice as to Proposed Amici Legal Services Organization.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 07/26/2018)
266 ORDER denying 259 Motion for Extension of Time. The Court hereby denies Defendant-Intervenors motion without prejudice for failing to include a certificate of conference. Defendant-Intervenors shall confer with counsel for each other party in the case before refiling the motion.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 07/26/2018)
267 Renewed MOTION for Extension of Time by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/16/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 07/26/2018)
268 RESPONSE in Opposition to 267 Renewed MOTION for Extension of Time, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Bitter, Adam) (Entered: 07/26/2018)
269 REPLY in Support of 255 Opposed MOTION for Protective Order, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 07/27/2018)
270 ORDER granting 267 Joint Motion for Extending the Post-Discovery Response Brief Filing Deadline Responses due by 8/3/2018. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 07/27/2018)
271 ORDER denying 255 Motion for Entry of Protective Order. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 07/27/2018)

07/27/2018 07/29/2018
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08/01/2018
08/02/2018 08/03/2018 08/03/2018

272 Opposed MOTION for Extension of Time Respond to Plaintiffs' Amended Complaint by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 8/17/2018. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 07/27/2018)
273 RESPONSE in Opposition to 272 Opposed MOTION for Extension of Time Respond to Plaintiffs' Amended Complaint, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 07/29/2018)
274 ORDER. The date for Defendants to respond to Plaintiffs' Amended Complaint is hereby extended 30 days after the Court rules on the pending Application for Preliminary Injunction. (Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 07/30/2018)
275 REPLY in Support of 118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 07/30/2018)
276 Unopposed MOTION for Leave to Join Brief of Amici Curiae by American Business Immigration Coalition, Ascension Texas, Dallas Regional Chamber, Dallas Hispanic Chamber of Commerce, Irving-Las Colinas Chamber of Commerce, Health Management Systems, National Association for Latino Community Asset Builders, San Antonio Chamber of Commerce, Texas Opportunity Roundtable, Texas Restaurant Association, VisitDallas, filed. Motion Docket Date 8/22/2018. (Attachments: # 1 Proposed Order)(Leatherbury, Thomas) (Entered: 08/01/2018)
277 TRANSCRIPT re: Scheduling Conference Hearing held on May 30, 2018 before Judge Andrew S Hanen. Court Reporter/Transcriber sperales. Release of Transcript Restriction set for 10/31/2018., filed. (sperales, ) (Entered: 08/02/2018)
278 Notice of Filing of Official Transcript as to 277 Transcript. Party notified, filed. (jtabares, 1) (Entered: 08/03/2018)
279 ORDER GRANTING 276 UNOPPOSED MOTION FOR LEAVE TO JOIN BRIEF OF AMICI CURIAE IN OPPOSITION TO PLAINTIFFS'

08/03/2018 08/03/2018
08/03/2018 08/03/2018 08/03/2018
08/03/2018 08/03/2018

MOTION FOR PRELIMINARY INJUNCTION. (Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/03/2018)
280 MOTION for Leave to File Excess Pages by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 8/24/2018. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 08/03/2018)
281 Unopposed MOTION for Leave to File Excess Pages by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/24/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 08/03/2018)
282 BRIEF Post-Discovery Response Brief re: 5 MOTION for Preliminary Injunction by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 08/03/2018)
283 NOTICE of Filing by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 08/03/2018)
284 APPENDIX re: 282 Brief, by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Exhibit 43, # 2 Exhibit 44, # 3 Exhibit 45, # 4 Exhibit 46, # 5 Exhibit 47, # 6 Exhibit 48, # 7 Exhibit 49, # 8 Exhibit 50, # 9 Exhibit 51, # 10 Exhibit 52, # 11 Exhibit 53, # 12 Exhibit 54, # 13 Exhibit 55, # 14 Exhibit 56, # 15 Exhibit 57, # 16 Exhibit 58, # 17 Exhibit 59, # 18 Exhibit 60, # 19 Exhibit 61, # 20 Exhibit 62, # 21 Exhibit 63, # 22 Exhibit 64, # 23 Exhibit 65, # 24 Exhibit 66, # 25 Exhibit 67)(Disher, Todd) (Entered: 08/03/2018)
285 Unopposed MOTION for Leave to File Excess Pages by State of New Jersey, filed. Motion Docket Date 8/24/2018. (Attachments: # 1 Proposed Order)(Levine, Kenneth) (Entered: 08/03/2018)
286 Opposed REPLY to Response to 5 MOTION for Preliminary Injunction, filed by State of New Jersey. (Attachments: # 1 Appendix)(Juzdan, Paul) (Entered: 08/03/2018)

08/03/2018 08/03/2018 08/04/2018 08/04/2018 08/04/2018 08/06/2018

287 Opposed MOTION Motion to Deny or Defer Consideration of Summary Judgment by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/24/2018. (Attachments: # 1 Exhibit A - Declaration, # 2 Proposed Order)(Perales, Nina) (Entered: 08/03/2018)
288 Supplemental RESPONSE in Opposition to 5 MOTION for Preliminary Injunction, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 08/04/2018)
289 APPENDIX re: 288 Response in Opposition to Motion, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Volume 1, # 2 Volume 2, # 3 Volume 3, # 4 Volume 4, # 5 Volume 5)(Perales, Nina) (Entered: 08/04/2018)
290 Supplemental APPENDIX re: 5 MOTION for Preliminary Injunction by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Exhibit 68)(Disher, Todd) (Entered: 08/04/2018)
291 Supplemental EXHIBITS by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez (Attachments: # 1 Exhibit 151, # 2 Exhibit 306)(Perales, Nina) (Entered: 08/04/2018)
292 Unopposed MOTION to Withdraw by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J

08/06/2018 08/06/2018 08/06/2018 08/06/2018 08/07/2018 08/08/2018 08/08/2018
08/08/2018 08/08/2018

Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/27/2018. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 08/06/2018)
293 NOTICE of Filing by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Robins, Jeffrey) (Entered: 08/06/2018)
295 Mail Returned Undeliverable as to attorney Mark H Lynch as to Proposed Amicus Kevin Johnson re: 178 Order on Motion to Appear Pro Hac Vice, filed. (dnoriega, 1) (Entered: 08/07/2018)
296 Mail Returned Undeliverable as to attorney Mark H Lynch re: 181 Order on Motion to Appear Pro Hac Vice, filed. (jmarks, 2) (Entered: 08/07/2018)
297 Mail Returned Undeliverable as to attorney Mark H Lynch as to Proposed Amicus Kevin Johnson re: 183 Order on Motion to Appear Pro Hac Vice, filed. (bmendoza, 5) (Entered: 08/07/2018)
294 RESPONSE in Opposition to 287 Opposed MOTION Motion to Deny or Defer Consideration of Summary Judgment, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 08/07/2018)
298 Mail Returned Undeliverable as to attorney Mark H Lynch as to Proposed Amicus Kevin Johnson re: 182 Order on Motion to Appear Pro Hac Vice, filed. (rguerrero, 4) (Entered: 08/08/2018)
Minute Entry for proceedings held before Judge Andrew S Hanen. Preliminary INJUNCTION HEARING held on 8/8/2018. The Court made an opening statement. The Court heard the opening statements of the parties, followed by argument of the parties. The Court ordered the parties to file further briefing not to exceed 5 pages by close of business 8/13/2018. Hearing concluded. Appearances: Todd Disher, Brantley Starr, Adam Biggs, Adam Bitter, Kyle Hawkins, Cristina Moreno, Trent Peroyea, Nina Perales, Rachel Apter, Ken Levine, Celina Moreno, Alejandra Avila, Emerson Siegle, Douglas Hallward-Driemeier, Carlos Garcia, Brett Shumate, Jeffrey Robins, Daniel Hu.(Court Reporter: K. Miller), filed.(rhawkins) (Entered: 08/08/2018)
299 AO 435 TRANSCRIPT REQUEST by Daniel Hu for Transcript of Hearing on 8/08/18. 3-Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Hu, Daniel) (Entered: 08/08/2018)
300 AO 435 TRANSCRIPT REQUEST by State of New Jersey/Katherine Anne Gregory for Transcript of Preliminary INJUNCTION HEARING

08/09/2018
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08/14/2018 08/15/2018

held on 8/8/2018 before Judge Andrew S. Hanen. 3-Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Gregory, Katherine) (Entered: 08/08/2018)
301 AO 435 TRANSCRIPT REQUEST by Texas, et al./Todd Lawrence Disher for Transcript of Preliminary Injunction Hearing on 08/08/18 before Judge Hanen. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Disher, Todd) (Entered: 08/09/2018)
302 TRANSCRIPT re: Hearing held on August 8, 2018 before Judge Andrew S Hanen. Court Reporter/Transcriber Kathleen Miller. Ordering Party Daniel Hu Release of Transcript Restriction set for 11/8/2018., filed. (kmiller, ) (Entered: 08/10/2018)
303 Notice of Filing of Official Transcript as to 302 Transcript. Party notified, filed. (dnoriega, 1) (Entered: 08/13/2018)
304 Mail Returned Undeliverable as to attorney Mark H Lynch re: 180 Order on Motion to Appear Pro Hac Vice, filed. (bmendoza, 5) (Entered: 08/13/2018)
305 SUPPLEMENT by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed.(Robins, Jeffrey) (Entered: 08/13/2018)
306 Supplemental BRIEF by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 08/13/2018)
307 SUPPLEMENT by State of New Jersey, filed. (Attachments: # 1 Appendix)(Levine, Kenneth) (Entered: 08/13/2018)
308 Supplemental RESPONSE in Opposition to 5 MOTION for Preliminary Injunction, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 08/13/2018)
309 Amicus Curiae Brief by William F. Reade, Jr.(pro se), filed.(dbenavides, 1) (Entered: 08/14/2018)
310 NOTICE of Filing by L. Francis Cissna, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Exhibit)(Robins, Jeffrey) (Entered: 08/15/2018)

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08/31/2018

311 NOTICE of Filing by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Exhibit 1)(Perales, Nina) (Entered: 08/16/2018)
314 Amicus BRIEF by Christine Timmons, filed.(jdav, 4) (Entered: 08/21/2018)
312 RESPONSE to 311 Notice (Other), Plaintiff States' Response to Defendant-Intervenors' Notice of Filing, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 08/17/2018)
313 NOTICE of Filing by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Robins, Jeffrey) (Entered: 08/17/2018)
315 Mail Returned Undeliverable as to attorney Mark H Lynch as to Proposed Amicus Kevin Johnson re: 179 Order on Motion to Appear Pro Hac Vice, filed. (agarcia, 7) (Entered: 08/27/2018)
321 Letter from Christine Timmon, filed. (SamanthaWarda, 4) (Entered: 08/31/2018)
316 ORDER. The Court GRANTS the Unopposed Motion to Withdraw Exhibit 76 and ORDERS the Clerk's Office to withdraw DefendantIntervenors' Exhibit 76, filed under Dkt. 225-3 at 183-204, from the record.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/31/2018)
317 ORDER GRANTING Plaintiff States' Motion to Exclude Testimony from Untimely Designated Witnesses. Exhibits 12, 15, 26-51, 59 and 60 on Defendant-Intervenors exhibit list (see ECF No. 90) are EXCLUDED.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/31/2018)
318 ORDER GRANTING Defendant-Intervenors' Cross Motion to Exclude Plaintiffs' Evidence of Non-Disclosed Witnesses. Plaintiffs' declarations of undisclosed witnesses, found at Dkt. 6 at 332-36, 335-403, 414-21, 474-91, are EXCLUDED from the evidence in this case.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/31/2018)
319 MEMORANDUM OPINION AND ORDER. The Court DENIES the request for preliminary injunctive relief.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/31/2018)

08/31/2018 09/04/2018 09/05/2018
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09/17/2018 09/18/2018 09/26/2018
09/28/2018

320 INTERLOCUTORY APPEAL ORDER (Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/31/2018)
322 Letter from Christine Timmon re: immigration, filed. (dwilkerson, 3) (Entered: 09/06/2018)
323 EMERGENCY MOTION to Intervene to Settle the Courts Underlying Order, MOTION to Compel that Invervenor's "DACA Solution Underwriting" be Submitted to President Trump for Urgent Review/Execution, with Brief in Support( Motion Docket Date 9/26/2018.) by Stephen P Wallace, filed. (dperez, 3) (Entered: 09/06/2018)
324 MOTION to Lift Stay by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 10/3/2018. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 09/12/2018)
325 Second EMERGENCY MOTION to Intervene by Stephen P Wallace, filed. Motion Docket Date 10/5/2018. (SamanthaWarda, 4) (Entered: 09/14/2018)
326 RESPONSE in Opposition to 324 MOTION to Lift Stay, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 09/17/2018)
327 RESPONSE to 324 MOTION to Lift Stay , filed by State of New Jersey. (Attachments: # 1 Exhibit A (email))(Levine, Kenneth) (Entered: 09/17/2018)
328 Letter, filed. (mmarquez, 5) (Entered: 09/21/2018)
329 RESPONSE in Opposition to 325 EMERGENCY MOTION, 323 MOTION to Intervene MOTION to Compel that Invervenor's "DACA Solution Underwriting" be Submitted to President Trump for Urgent Review/Execution, with Brief in Support, filed by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 09/26/2018)
330 MOTION for Glenn Moramarco to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 10/19/2018. (Levine, Kenneth) (Additional attachment(s) added on 10/1/2018: # 1 Attorney Verification) (scastillo, 1). (Entered: 09/28/2018)

10/01/2018 10/01/2018 10/10/2018 10/22/2018 10/31/2018 11/13/2018 11/14/2018
11/14/2018
11/15/2018

331 ORDER granting 330 Motion for Glenn J. Moramarco to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 10/01/2018)
332 ANSWER to 104 Amended Complaint/Counterclaim/Crossclaim etc., by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed.(Robins, Jeffrey) (Entered: 10/01/2018)
333 NOTICE of Setting. Parties notified. Initial Conference set for 11/14/2018 at 10:00 AM in Courtroom 704 before Magistrate Judge Frances H Stacy, filed. (bwhite, 4) (Entered: 10/10/2018)
334 Opposed MOTION to Strike 332 Answer to Amended Complaint by State of New Jersey, filed. Motion Docket Date 11/13/2018. (Attachments: # 1 Appendix Unreported Cases, # 2 Proposed Order)(Levine, Kenneth) (Entered: 10/22/2018)
335 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 10/31/2018)
336 RESPONSE in Opposition to 334 Opposed MOTION to Strike 332 Answer to Amended Complaint , filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Appendix)(Robins, Jeffrey) (Entered: 11/13/2018)
337 Minute Entry for proceedings held before Magistrate Judge Frances H Stacy. SCHEDULING CONFERENCE held on 11/14/2018. Scheduling/ Docket Control Order issued. All pending motions will be ripe by Thanksgiving. Appearances:Raishay Lin, John Paul Salmon, Alejandra Avila, Douglas H Hallward-Driemeier, Nina Perales, Todd Lawrence Disher, Adam Arthur Biggs, Adam Nicholas Bitter, Glenn J Moramarco, Kenneth S Levine.(Digital # 10:14-10:28)(ERO:P. Yebernetsky), filed.(gclair, 4) (Entered: 11/14/2018)
***Set/Reset Scheduling Order and Trial Settings: Amended Pleadings and Joinder of Parties due by 1/15/2019. Pltf Expert Report due by 2/28/2019. Deft Expert Report due by 4/30/2019. Deft Intervenors Expert Report due by 6/30/2019. Discovery due by 8/21/2019. Dispositive and Non-Dispositive Motion Filing due by 11/14/2019. Joint Pretrial Order due by 5/5/2020. Docket Call set for 5/15/2020 at 01:30 PM before Judge Andrew S Hanen. Trial is set for the two weeks starting 5/18/2020. (gclair, 4) (Entered: 11/14/2018)
338 AO 435 TRANSCRIPT REQUEST by Nina Perales for Transcript of Scheduling Conference, 11/14/18, Magistrate Judge Frances Stacy.

11/21/2018 11/26/2018 11/27/2018 11/28/2018
11/30/2018 12/03/2018

Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Digital Scroll Transcription Services, filed. (Perales, Nina) Electronically forwarded to JTT (Digital Scroll not accepting orders at this time). Estimated completion date is November 23.Modified on 11/16/2018 (JenniferOlson, 4). (Entered: 11/15/2018)
339 REPLY in Support of 334 Opposed MOTION to Strike 332 Answer to Amended Complaint , filed by State of New Jersey. (Attachments: # 1 Exhibit A (email chain), # 2 Appendix unpublished cases)(Levine, Kenneth) (Entered: 11/21/2018)
340 TRANSCRIPT re: Initial Conference held on November 14, 2018 before Magistrate Judge Frances H Stacy. Court Reporter/Transcriber Judicial Transcribers of Texas, LLC. Ordering Party Nina Perales Release of Transcript Restriction set for 2/25/2019., filed. (mahenry, ) (Entered: 11/26/2018)
341 Notice of Filing of Official Transcript as to 340 Transcript,. Party notified, filed. (dnoriega, 1) (Entered: 11/27/2018)
342 ORDER denying as moot 287 Opposed MOTION Motion to Deny or Defer Consideration of Summary Judgment, 281 Unopposed MOTION for Leave to File Excess Pages, 109 Cross MOTION to Exclude Plaintiffs' Evidence of Non-Disclosed Witnesses, 39 MOTION to Intervene, 87 EMERGENCY MOTION MOTION to Quash Deposition Notices and Subpoenas, 86 Opposed MOTION for Discovery, 292 Unopposed MOTION to Withdraw, 65 Opposed MOTION for Discovery, 212 Unopposed MOTION for Leave to File Amici Curiae Brief, 280 MOTION for Leave to File Excess Pages, 80 Supplemental MOTION for Discovery, 118 MOTION to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction, 36 MOTION for Scheduling Order, 285 Unopposed MOTION for Leave to File Excess Pages, 105 Opposed MOTION to Exclude Testimony from Untimely Designated Witnesses, 272 Opposed MOTION for Extension of Time Respond to Plaintiffs' Amended Complaint (Signed by Judge Andrew S Hanen) Parties notified.(rhawkins, 4) (Entered: 11/28/2018)
343 ORDER denying 323 Motion to Intervene; denying 323 Motion to Compel; denying as moot 324 Motion to Lift Stay; denying 325 Motion for Emergency.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/30/2018)
344 Unopposed MOTION for Adam N. Bitter to Withdraw as Attorney by Phil Bryant, Paul R. LePage, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 12/24/2018. (Attachments: # 1 Proposed Order)(Bitter, Adam) (Entered: 12/03/2018)

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345 MOTION for Celina Moreno to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 12/26/2018. (Attachments: # 1 Proposed Order)(Salmon, John) (Entered: 12/05/2018)
346 ORDER granting 344 Motion to Withdraw as Attorney. Attorney Adam Nicholas Bitter terminated..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 01/07/2019)
347 ORDER granting 345 Motion to Withdraw as Attorney. Attorney Celina Ysela Moreno terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 01/08/2019)
348 ORDER granting in part and denying in part 334 Motion to Strike. Federal Defendants are ordered to replead their answer by February 15, 2019..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 01/09/2019)
349 Opposed MOTION to Postpone All Deadlines in Rule 16 Scheduling Order by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 2/1/2019. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Proposed Order)(Avila, Alejandra) (Entered: 01/11/2019)
350 NOTICE of Appearance by Michael Toth on behalf of Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Toth, Michael) (Entered: 01/22/2019)
351 Joint RESPONSE in Opposition to 349 Opposed MOTION to Postpone All Deadlines in Rule 16 Scheduling Order, filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 01/22/2019)
352 Unopposed MOTION to Dismiss Janet Mills, Governor of Maine by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas,

01/29/2019 02/01/2019 02/04/2019 02/04/2019 02/04/2019 02/04/2019
02/05/2019

State of West Virginia, filed. Motion Docket Date 2/15/2019. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 01/25/2019)
353 Opposed MOTION for Extension of Time Replead Answer by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 2/19/2019. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 01/29/2019)
354 RESPONSE in Opposition to 349 Opposed MOTION to Postpone All Deadlines in Rule 16 Scheduling Order, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Robins, Jeffrey) (Entered: 02/01/2019)
355 Unopposed MOTION for Leave to File Excess Pages by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 2/25/2019. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 02/04/2019)
356 MOTION for Summary Judgment by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 2/25/2019. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 02/04/2019)
357 BRIEF in Support re: 356 MOTION for Summary Judgment by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 02/04/2019)
358 APPENDIX re: 356 MOTION for Summary Judgment by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33)(Disher, Todd) (Entered: 02/04/2019)
359 MOTION for James J Walker to Appear Pro Hac Vice, filed. Motion Docket Date 2/26/2019. (ccassady, 4) (Additional attachment(s) added on 2/6/2019: # 1 Atty License Verification) (rnieto, 1). (Entered: 02/05/2019)

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360 ORDER granting 352 Motion to Dismiss Janet Mills, Governor of Main; granting 353 Motion for Extension of Time. Federal Defendants' have until March 6, 2019 to replead their answer..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/06/2019)
361 ORDER granting 355 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/08/2019)
362 REPLY in Support of 349 Opposed MOTION to Postpone All Deadlines in Rule 16 Scheduling Order, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Exhibit A)(Avila, Alejandra) (Entered: 02/11/2019)
363 Opposed MOTION to Deny or Defer Consideration of Summary Judgment, or in the Alternative to Grant Defendant-Intervenors an Extension of Time to Respond by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 3/7/2019. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Perales, Nina) (Entered: 02/14/2019)
364 Unopposed MOTION for Leave to File Amicus Brief in Support of Pls Mot Summ J by U.S. Rep. Steve King, filed. Motion Docket Date 3/13/2019. (Attachments: # 1 Exhibit Proffered Amicus Brief, # 2 Proposed Order Proposed Order)(Joseph, Lawrence) (Entered: 02/20/2019)
365 ORDER granting 359 Motion for James J. Walker to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/22/2019)
366 RESPONSE to 356 MOTION for Summary Judgment filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Robins, Jeffrey) (Entered: 02/25/2019)
368 ORDER granting 364 Motion for Leave to File a memorandum of law as amici curiae in support of Plaintiffs' Motion for Summary Judgment..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/27/2019)

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367 ORDER granting 349 Opposed motion to postpone all deadlines for 19 days..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/27/2019)
369 MEMORANDUM Of Law In Support re: 357 Brief in support re: entry # 356 Motion for Summary Judgment by U.S. Rep. Steve King, filed.(jdav, 4) (Entered: 02/27/2019)
370 AMENDED ANSWER to 104 Amended Complaint/Counterclaim/Crossclaim etc., by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Robins, Jeffrey) (Entered: 03/06/2019)
371 REPLY in Support of 356 MOTION for Summary Judgment , filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 03/07/2019)
372 RESPONSE in Opposition to 363 Opposed MOTION to Deny or Defer Consideration of Summary Judgment, or in the Alternative to Grant Defendant-Intervenors an Extension of Time to Respond, filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 03/07/2019)
373 RESPONSE in Opposition to 363 Opposed MOTION to Deny or Defer Consideration of Summary Judgment, or in the Alternative to Grant Defendant-Intervenors an Extension of Time to Respond, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Robins, Jeffrey) (Entered: 03/07/2019)
374 REPLY in Support of 363 Opposed MOTION to Deny or Defer Consideration of Summary Judgment, or in the Alternative to Grant Defendant-Intervenors an Extension of Time to Respond, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Exhibit 1)(Salmon, John) (Entered: 03/18/2019)
375 MOTION for Jack Salmon to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez,

04/12/2019 04/26/2019 05/01/2019 05/01/2019 05/02/2019 05/13/2019 05/14/2019
05/14/2019

filed. Motion Docket Date 4/26/2019. (Attachments: # 1 Proposed Order)(Salmon, John) (Entered: 04/05/2019)
376 MOTION for Brett A. Shumate to Withdraw as Attorney by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 5/3/2019. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 04/12/2019)
377 ORDER granting 375 Motion to Withdraw as Attorney. Attorney John Paul Salmon and Brett A Shumate terminated; granting 376 Motion to Withdraw as Attorney. Attorney John Paul Salmon and Brett A Shumate terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 04/26/2019)
378 ORDER Setting Hearing on Motion 356 MOTION for Summary Judgment : Motion Hearing set for 7/8/2019 at 10:00 AM in Courtroom 9C before Judge Andrew S Hanen. Those who wish to respond to the Motion for Summary Judgment must do so by June 14, 2019, the Plaintiff-States replies due by June 28, 2019. (Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 05/02/2019)
379 Mail Returned Undeliverable as to attorney James Joseph Walker re: 367 Order on Motion for Miscellaneous Relief, filed. (mmarquez, 5) (Entered: 05/02/2019)
380 Mail Returned Undeliverable as to attorney James Joseph Walker as to Defendants re: 368 Order on Motion for Leave to File, filed. (mmarquez, 5) (Entered: 05/02/2019)
381 MOTION for James J. Walker to Appear Pro Hac Vice by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 6/3/2019. (Walker, James) (Additional attachment(s) added on 5/14/2019: # 1 Verified Motion) (dnoriega, 1). (Entered: 05/13/2019)
382 MOTION for Priscilla Orta to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/4/2019. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 05/14/2019)
383 MOTION to Compel Discovery from Plaintiff State of Texas and to Dismiss all Other Plaintiff States by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J

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05/29/2019
06/04/2019 06/04/2019

Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/4/2019. (Attachments: # 1 Appendix, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Proposed Order)(Avila, Alejandra) (Entered: 05/14/2019)
384 MOTION for Zachary Kolodin to Withdraw as Attorney by Proposed Amici Religious Organizations, filed. Motion Docket Date 6/5/2019. (Mangi, Adeel) (Entered: 05/15/2019)
385 ORDER. Plaintiffs are ordered to respond to 383 Motion to Compel by May 29, 2019. (Signed by Judge Andrew S Hanen) Parties notified. (LaurenWebster, 4) (Entered: 05/17/2019)
386 MOTION to Compel Discovery from Federal Defendants by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/7/2019. (Attachments: # 1 Appendix, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Proposed Order)(Avila, Alejandra) (Entered: 05/17/2019)
387 RESPONSE to 383 MOTION to Compel Discovery from Plaintiff State of Texas and to Dismiss all Other Plaintiff States filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order)(Disher, Todd) (Entered: 05/29/2019)
388 ORDER granting 381 Motion for James J. Walker to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 06/04/2019)
389 ORDER granting 382 Motion to Withdraw as Attorney. Attorney Zachary Kolodin and Priscilla Orta terminated; granting 384 Motion to Withdraw as Attorney. Attorney Zachary Kolodin and Priscilla Orta terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 06/05/2019)

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06/07/2019
06/07/2019 06/10/2019 06/10/2019 06/14/2019 06/14/2019

390 MOTION to Strike Plaintiffs' Experts by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 6/26/2019. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Avila, Alejandra) (Entered: 06/05/2019)
391 REPLY in Support of 383 MOTION to Compel Discovery from Plaintiff State of Texas and to Dismiss all Other Plaintiff States, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Avila, Alejandra) (Entered: 06/07/2019)
392 RESPONSE in Opposition to 386 MOTION to Compel Discovery from Federal Defendants, filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Exhibit Renaud Declaration, # 2 Exhibit Monica Declaration, # 3 Exhibit Hoefer Declaration, # 4 Exhibit Bellisime Declaration)(Robins, Jeffrey) (Entered: 06/07/2019)
393 Opposed MOTION for Protective Order by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 6/28/2019. (Robins, Jeffrey) (Entered: 06/08/2019)
394 NOTICE of Errata re: 392 Response in Opposition to Motion, by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Appendix)(Robins, Jeffrey) (Entered: 06/10/2019)
395 NOTICE of Errata re: 393 Opposed MOTION for Protective Order by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Appendix)(Robins, Jeffrey) (Entered: 06/10/2019)
396 Unopposed MOTION for Leave to File Excess Pages by State of New Jersey, filed. (Levine, Kenneth) (Entered: 06/14/2019)
397 RESPONSE in Opposition to 356 MOTION for Summary Judgment , filed by State of New Jersey. (Attachments: # 1 Appendix)(Levine, Kenneth) (Entered: 06/14/2019)

06/14/2019 06/14/2019 06/15/2019
06/17/2019 06/18/2019 06/18/2019

398 Unopposed MOTION for Leave to File Excess Pages by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Avila, Alejandra) (Entered: 06/14/2019)
399 RESPONSE in Opposition to 356 MOTION for Summary Judgment , filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Jung Woo Kim, Karla Lopez, Jose MaganaSalgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Avila, Alejandra) (Entered: 06/14/2019)
400 APPENDIX re: 399 Response in Opposition to Motion, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Exhibit 1-6, # 2 Exhibit 7-12, # 3 Exhibit 13-18, # 4 Exhibit 19-29, # 5 Exhibit 30-34, # 6 Exhibit 35, # 7 Exhibit 36-48, # 8 Exhibit 49-61, # 9 Exhibit 62)(Avila, Alejandra) (Entered: 06/15/2019)
401 REPLY in Support of 386 MOTION to Compel Discovery from Federal Defendants, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Avila, Alejandra) (Entered: 06/17/2019)
402 NOTICE OF ERRATA re: 399 Response in Opposition to Motion, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Exhibit 62-J)(Perales, Nina) (Entered: 06/18/2019)
403 Notice of Telephone Hearing set for 6/20/2019 at 01:30 PM before Judge Andrew S Hanen. (Signed by Judge Andrew S Hanen) Parties notified.(EdnitaPonce, 1) (Entered: 06/18/2019)

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06/21/2019
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06/24/2019

404 NOTICE of Setting. Parties notified. Telephone Conference set for 6/20/2019 at 01:30 PM before Judge Andrew S Hanen, filed. (rhawkins) (Entered: 06/18/2019)
405 NOTICE of Setting. Parties notified. Miscellaneous Hearing set for 6/24/2019 at 01:30 PM in Courtroom 9C before Judge Andrew S Hanen, filed. (rhawkins) (Entered: 06/19/2019)
406 NOTICE of Appearance by Ryan L. Bangert on behalf of Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Bangert, Ryan) (Entered: 06/20/2019)
407 ADVISORY by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed.(Perales, Nina) (Entered: 06/21/2019)
408 RESPONSE in Opposition to 393 Opposed MOTION for Protective Order, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Avila, Alejandra) (Entered: 06/21/2019)
409 ORDER granting 396 Motion for Leave to File Excess Pages; granting 398 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 06/24/2019)
Minute Entry for proceedings held before Judge Andrew S Hanen. MOTION HEARING held on 6/24/2019. The Court held discussions with counsel off the record after which rulings regarding discovery issues were made as indicated on the record. The Court will cancel the hearing on the motion for summary judgment and reset it to 10/28/2019 at 10:00 a.m. Notice to follow. Appearances: Alejandra Avila, Nina Perales, Ryan L Bangert, Todd Lawrence Disher, Philip Trent Peroyea, Jeffrey S Robins, Daniel David Hu, Glenn J Moramarco.(Court Reporter: F. Warner), filed.(rhawkins) (Entered: 06/24/2019)
410 NOTICE of Resetting. Parties notified. Motion Hearing set for 10/28/2019 at 10:00 AM in Courtroom 9C before Judge Andrew S Hanen, filed. (rhawkins) (Entered: 06/24/2019)

06/26/2019 06/26/2019
06/28/2019 07/01/2019 07/08/2019
07/18/2019 07/18/2019

411 RESPONSE to 390 MOTION to Strike Plaintiffs' Experts , filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Disher, Todd) (Entered: 06/26/2019)
412 ORDER, denying without prejudice 393 Opposed MOTION for Protective Order, denying without prejudice 363 Opposed MOTION to Deny or Defer Consideration of Summary Judgment, or in the Alternative to Grant Defendant-Intervenors an Extension of Time to Respond, denying without prejudice 383 MOTION to Compel Discovery from Plaintiff State of Texas and to Dismiss all Other Plaintiff States, denying without prejudice 386 MOTION to Compel Discovery from Federal Defendants ; The hearing on Plaintiff-States' 356 MOTION for Summary Judgment previously scheduled for July 8, 2019 at 10:00 AM is RE-SET, for 10/28/2019 at 10:00 AM in Courtroom 9C before Judge Andrew S Hanen) (Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 06/27/2019)
413 REPLY in Support of 356 MOTION for Summary Judgment , filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 06/28/2019)
414 AO 435 TRANSCRIPT REQUEST by Jeffrey Robins for Transcript of Motion Hearing on 6/24/2019 before Judge Andrew S. Hannen. 3-Day turnaround requested. Court Reporter/Transcriber: Fred Warner, filed. (Hu, Daniel) (Entered: 07/01/2019)
415 REPLY in Support of 390 MOTION to Strike Plaintiffs' Experts, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Avila, Alejandra) (Entered: 07/08/2019)
416 Joint MOTION to Modify June 24 Order as to Federal Defendants by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 8/8/2019. (Attachments: # 1 Proposed Order)(Robins, Jeffrey) (Entered: 07/18/2019)
417 LETTER OF AGREEMENT re: Modification of Scheduling Deadlines by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 07/18/2019)

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08/15/2019 08/22/2019

418 Unopposed MOTION for Alejandra Avila to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, filed. Motion Docket Date 8/16/2019. (Avila, Alejandra) (Entered: 07/26/2019)
419 Unopposed MOTION for Brantley Starr to Withdraw as Attorney by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 8/21/2019. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 07/31/2019)
420 Second MOTION to Compel Discovery from Federal Defendants by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 8/23/2019. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Perales, Nina) (Entered: 08/02/2019)
421 ORDER granting 416 Joint MOTION to Modify June 24 Order as to Federal Defendants, granting 418 Unopposed MOTION for Alejandra Avila to Withdraw as Attorney,granting 419 Unopposed MOTION for Brantley Starr to Withdraw as Attorney. (Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/05/2019)
422 MOTION for Ramon A. Soto to Appear Pro Hac Vice by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 9/5/2019. (Perales, Nina) (Additional attachment(s) added on 8/16/2019: # 1 verified status) (dbenavides, 1). (Entered: 08/15/2019)
423 Unopposed MOTION for Katherine Gregory and Paul Juzdan to Withdraw as Attorney by State of New Jersey, filed. Motion Docket Date 9/5/2019. (Attachments: # 1 Proposed Order)(Levine, Kenneth) (Entered: 08/15/2019)
424 NOTICE Withdrawing Perez Defendant-Intervenors' Second Motion to Compel Discovery (Doc. 420) re: 420 Second MOTION to Compel Discovery from Federal Defendants by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria

08/25/2019 08/25/2019 08/28/2019 09/18/2019
09/23/2019
09/26/2019 09/26/2019 10/01/2019

Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Perales, Nina) (Entered: 08/22/2019)
425 ORDER granting 423 Motion to Withdraw as Attorney. Attorney Katherine Anne Gregory and Paul H. Juzdan terminated..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/26/2019)
426 ORDER granting 422 Motion for Ramon A. Soto to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/26/2019)
427 Opposed MOTION to Stay by State of New Jersey, filed. Motion Docket Date 9/18/2019. (Attachments: # 1 Proposed Order, # 2 Appendix)(Levine, Kenneth) (Entered: 08/28/2019)
428 RESPONSE in Opposition to 427 Opposed MOTION to Stay , filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 09/18/2019)
429 Opposed MOTION for Discovery by Nancy Adossi, Carlos Aguilar Gonzalez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 10/15/2019. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Perales, Nina) (Entered: 09/23/2019)
430 REPLY in Support of 427 Opposed MOTION to Stay , filed by State of New Jersey. (Levine, Kenneth) (Entered: 09/26/2019)
431 NOTICE of Setting as to 429 Opposed MOTION for Discovery, 427 Opposed MOTION to Stay . Parties notified. Motion Hearing set for 10/8/2019 at 01:30 PM in Courtroom 9C before Judge Andrew S Hanen, filed. (rhawkins) (Entered: 09/26/2019)
432 MOTION for Leave to File Supplemental Briefing and to Continue Hearing Set for October 28, 2019 by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez,

10/07/2019 10/07/2019
10/08/2019
10/08/2019 10/09/2019 10/09/2019 10/09/2019

filed. Motion Docket Date 10/22/2019. (Attachments: # 1 Affidavit of Nina Perales, # 2 Proposed Order)(Perales, Nina) (Entered: 10/01/2019)
433 RESPONSE to 429 Opposed MOTION for Discovery filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Proposed Order)(Disher, Todd) (Entered: 10/07/2019)
434 REPLY in Support of 429 Opposed MOTION for Discovery, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Perales, Nina) (Entered: 10/07/2019)
Minute Entry for proceedings held before Judge Andrew S Hanen. MOTION HEARING held on 10/8/2019. The Court heard argument on 427 Motion to Stay and 429 Motion for Discovery. The Court denies as moot 429 Motion for Discovery. The Court further cancelled the motion hearing set for 10/28/2019 and will enter an order for further briefing. Appearances: Ramon A Soto, Nina Perales, Todd Lawrence Disher, Adam Arthur Biggs, Philip Trent Peroyea, Daniel David Hu, Glenn J Moramarco.(Court Reporter: J. Sanchez), filed.(rhawkins) (Entered: 10/08/2019)
435 ORDER denying as moot 429 Motion for Discovery. The parties are instructed to submit briefing to the Court by October 28, 2019 on the issue of whether the Court may consider evidence outside of the administrative record in its ruling on Plaintiffs' Motion for Summary Judgment (DE 356 ). (Signed by Judge Andrew S Hanen) Parties notified.(LaurenWebster, 4) (Entered: 10/08/2019)
436 AO 435 TRANSCRIPT REQUEST by Daniel D. Hu for Transcript of Motion to Stay Hearing 427 10/8/2019 Judge Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Johnny Sanchez, filed. (Hu, Daniel) (Entered: 10/09/2019)
437 AO 435 TRANSCRIPT REQUEST by Nina Perales for Transcript of Motion to Stay & Motion for Discovery, October 8, 2019, Judge Andrew Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Johnny Sanchez, filed. (Perales, Nina) (Entered: 10/09/2019)
438 AO 435 TRANSCRIPT REQUEST by Todd Lawrence Disher for Transcript of Motion to Stay & Motion for Discovery Hearing; October

10/22/2019 10/28/2019
10/28/2019 10/28/2019 10/28/2019 11/01/2019
11/05/2019

8, 2019; Judge Andrew Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Johnny Sanchez, filed. (Disher, Todd) (Entered: 10/09/2019)
439 RESPONSE to 432 MOTION for Leave to File Supplemental Briefing and to Continue Hearing Set for October 28, 2019 , filed by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A)(Disher, Todd) (Entered: 10/22/2019)
440 Supplemental BRIEF Regarding the Administrative Record re: 435 Order on Motion for Discovery, by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Attachments: # 1 Appendix)(Perales, Nina) (Entered: 10/28/2019)
441 BRIEF Regarding the Scope of the Court's Review re: 435 Order on Motion for Discovery, by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Disher, Todd) (Entered: 10/28/2019)
442 BRIEF re: 435 Order on Motion for Discovery, by State of New Jersey, filed.(Levine, Kenneth) (Entered: 10/28/2019)
443 RESPONSE to 435 Order on Motion for Discovery, , filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Robins, Jeffrey) (Entered: 10/28/2019)
444 REPLY in Support of 432 MOTION for Leave to File Supplemental Briefing and to Continue Hearing Set for October 28, 2019, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 11/01/2019)
445 TRANSCRIPT re: Motion Hearing held on October 8, 2019 before Judge Andrew S Hanen. Court Reporter J. Sanchez. Ordering Party Daniel Hu Release of Transcript Restriction set for 2/3/2020., filed. (jsanchez, ) (Entered: 11/05/2019)

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446 Notice of Filing of Official Transcript as to 445 Transcript. Party notified, filed. (scastillo, 1) (Entered: 11/06/2019)
447 ORDER granting 427 Motion to Stay.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 11/22/2019)
448 ORDER granting 432 Motion for Leave to File Supplemental Briefing, denying as moot motion to continue hearing set for October 28, 2019. Deadline to file supplemental briefing to be set when a new docket control order is entered..(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 11/22/2019)
449 Unopposed MOTION for Denise Hulett to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 3/3/2020. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 02/11/2020)
450 ORDER granting 449 Motion to Withdraw as Attorney. Attorney Denise Hulett terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jguajardo, 4) (Entered: 02/13/2020)
451 Unopposed MOTION for Todd Lawrence Disher to Withdraw as Attorney by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 3/5/2020. (Attachments: # 1 Proposed Order)(Bangert, Ryan) (Entered: 02/13/2020)
452 ORDER denying 390 Motion to Strike without prejudice. (Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 02/14/2020)
453 ORDER granting 451 Motion to Withdraw as Attorney. Attorney Todd Lawrence Disher terminated, Ryan L. Bangert added as Attorney in Charge for Plaintiff States..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/25/2020)
454 MOTION for Karen Lin to Withdraw as Attorney by Proposed Amici Companies and Associations, filed. Motion Docket Date 3/20/2020. (Attachments: # 1 Proposed Order)(Ranlett, Kevin) (Entered: 02/28/2020)
455 NOTICE OF WITHDRAWAL OF COUNSEL Re: Jennifer B. Sokoler by Brown University, California Institute of Technology, Columbia University, Cornell University, Dartmouth College, Duke University,

03/06/2020 03/16/2020 05/01/2020 05/29/2020 05/29/2020 06/18/2020
06/18/2020 07/24/2020 07/24/2020

Emory University, George Washington University, Georgetown University, Harvard University, Massachusetts Institute of Technology, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Washington University in St. Louis, Yale University, filed. (Yagura, Ryan) (Entered: 02/28/2020)
456 ORDER granting 454 Motion to Withdraw as Attorney. Attorney Karen W Lin terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 03/06/2020)
457 MOTION for Michael N. Fresco to Withdraw as Attorney by Proposed Amici Religious Organizations, filed. Motion Docket Date 4/6/2020. (Mangi, Adeel) (Entered: 03/16/2020)
458 Unopposed MOTION for Glenn J. Moramarco to Withdraw as Attorney by State of New Jersey, filed. Motion Docket Date 5/22/2020. (Attachments: # 1 Proposed Order)(Levine, Kenneth) (Entered: 05/01/2020)
459 ORDER granting 458 Motion to Withdraw as Attorney. Attorney Glenn J Moramarco terminated. Jeremy E. Hollander is designated as Attorney in Charge for New Jersey in this case..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 06/01/2020)
460 ORDER granting 457 Motion to Withdraw as Attorney. Attorney Michael N Fresco terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 06/01/2020)
461 ORDER. Pursuant to this Court's stay order (DE 447 ), parties are to file a joint status report and an agreed schedule by July 24, 2020 given the Supreme Court's ruling today in Dep't of Homeland Sec. v. Regents of Univ. of Cal. (Signed by Judge Andrew S Hanen) Parties notified.(LaurenWebster, 4) (Entered: 06/18/2020)
462 NOTICE of Appearance by Todd Lawrence Disher on behalf of State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Disher, Todd) (Entered: 06/18/2020)
463 STATUS REPORT by Phil Bryant, State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed.(Disher, Todd) (Entered: 07/24/2020)
464 MOTION to Substitute Party State of Mississippi in place of Phil Bryant by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, State of Mississippi, filed. Motion Docket Date

07/27/2020
08/03/2020 08/04/2020 08/05/2020 08/14/2020
08/17/2020 08/19/2020

8/14/2020. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 07/24/2020)
465 Affirmation in Support of MOTION to Intervene Under FRcvP Rule 24 by the Trustees of the Ad Hoc New Yorker Republican Committee by Christopher Earl Strunk, filed. Motion Docket Date 8/17/2020. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Cover Letter)(JenniferLongoria, 1) (Additional attachment(s) added on 7/27/2020: # 9 Unredacted attachment Exhibit 5) (JenniferLongoria, 1). (Entered: 07/27/2020)
466 VERIFICATION AFFIDAVIT of INTERVENER Van Allen, filed.(JenniferLongoria, 1) (Entered: 08/03/2020)
467 ORDER. Federal Defendant will file a certified copy of the administrative record concerning DACA memorandum by 8/25/2020 along with a printed courtesy copy to the Court if over 100 pages. (Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 08/04/2020)
468 NOTICE of related litigation by United States of America, filed. (Hu, Daniel) (Entered: 08/05/2020)
469 NOTICE Perez Defendant-Intervenors' Consent to Plaintiff States' Motion to Substitute State of Mississippi by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. (Perales, Nina) (Entered: 08/14/2020)
470 RESPONSE in Opposition to 465 MOTION to Intervene, filed by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 08/17/2020)
471 Unopposed MOTION for Mayur P. Saxena, Melissa L. Medoway, Eric L. Apar, Elspeth L. Faiman Hans, and Tim Sheehan to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 9/9/2020. (Attachments: # 1 Affidavit Mayur Saxena (pro hac vice), # 2 Affidavit Melissa Medoway (pro hac vice), # 3 Affidavit Eric Apar (pro hac vice), # 4 Affidavit Elspeth L. Faiman Hans (pro hac vice), # 5 Affidavit Tim Sheehan (pro hac vice), # 6 Proposed Order Proposed Order)(Levine, Kenneth) (Additional attachment(s) added on 8/20/2020: # 7 Verified Status of Bar Membership) (EdnitaPonce, 1). (Entered: 08/19/2020)

08/21/2020 08/21/2020
08/21/2020 08/21/2020 08/21/2020 08/21/2020 08/31/2020

472 NOTICE Filing of Administrative Record re: 467 Order by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 AR part 1, # 2 AR part 2, # 3 AR part 3, # 4 AR part 4, # 5 AR part 5, # 6 AR part 6)(Walker, James) (Entered: 08/21/2020)
473 ORDER denying without prejudice 356 MOTION for Summary Judgment . Plaintiff States are given leave to re-file the motion for summary judgment, due by October 2, 2020. The Federal Defendants and the Defendant-Intervenors response due by October 30, 2020. The Plaintiff States reply due by November 6, 2020. Defendant or any of the Intervenors response due by November 6, 2020. Discovery deadline: September 30, 2020. (Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/24/2020)
474 ORDER granting 464 Motion to Substitute Party. State of Mississippi added, Tate Reeves, Governor of Mississippi terminated..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/24/2020)
475 ORDER denying 465 Motion to Intervene as to the Trustees of the Ad Hoc New Yorker Republican Committee. The Trustees are welcome to participate as amicus curiae..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/24/2020)
476 ORDER granting 471 Motion for Mayur P. Saxena, Melissa Medoway, Eric L. Apar, Elspeth L. Faiman Hans and Tim Sheehan to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) (Attachments: # 1 Order Granting Melissa Medoway to Proceed Pro Hac Vice, # 2 Order Granting Eric L. Apar to Proceed Pro Hac Vice, # 3 Order Granting Elspeth L. Faiman Hans to Proceed Pro Hac Vice, # 4 Order Granting Tim Sheehan to Proceed Pro Hac Vice) Parties notified.(jdav, 4) (Entered: 08/24/2020)
477 ORDER, Jeremy E. Hollander, Nicholas Dolinsky and Brian De Vito are withdrawn as counsel of record for the State of New Jersey in this case; Mayur P. Saxena is designated as Attorney in Charge for the State of New Jersey in this case. Nicholas Dolinsky and Brian De Vito are removed from all further electronic notifications regarding this case. (Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/24/2020)
478 Unopposed MOTION for Ernest I. Herrera to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 9/21/2020. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 08/31/2020)

09/29/2020 09/30/2020
09/30/2020 10/01/2020 10/06/2020 10/07/2020
10/09/2020 10/09/2020

479 ORDER granting Motion to Appear Pro Hac Vice as to Charles A. Breiterman.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 09/29/2020)
480 Opposed MOTION for Extension of Time Schedule by One Week by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 10/21/2020. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Perales, Nina) (Entered: 09/30/2020)
481 PROPOSED ORDER re: 480 Opposed MOTION for Extension of Time Schedule by One Week, filed.(Perales, Nina) (Entered: 09/30/2020)
482 ORDER granting 480 Motion for Extension of Time. All deadlines in docket entry no. 473 are extended by 7 days..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 10/01/2020)
483 Notice of Motion for Reconsideration by Ad Hoc New Yorker Republican Committee/ Christopher Earl Strunk, Trustee, filed. (Attachments: # 1 Notice of Motion, # 2 Memorandum in Support of Motion to Reconsider, # 3 Proposed Order, # 4 Certificate of Service, # 5 Affirmation In Support of Notice of Motion to Reconsider, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(jdav, 4) (Entered: 10/07/2020)
484 Opposed MOTION to Compel and Extend Discovery Period, or in the Alternative, to Exclude Evidence by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Jin Park, Karla Perez, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 10/28/2020. (Attachments: # 1 Proposed Order to Compel, # 2 Proposed Order to Exclude, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G)(Perales, Nina) (Entered: 10/07/2020)
485 Unopposed MOTION for Leave to File Excess Pages by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 10/30/2020. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 10/09/2020)
486 MOTION for Summary Judgment by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West

10/09/2020
10/13/2020 10/16/2020 10/16/2020 10/21/2020 10/23/2020 10/28/2020

Virginia, filed. Motion Docket Date 10/30/2020. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 10/09/2020)
487 APPENDIX re: 486 MOTION for Summary Judgment by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35)(Disher, Todd) (Entered: 10/09/2020)
488 ORDER granting 485 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 10/14/2020)
489 First MOTION for Leave to File Excess Pages by Charles A Breiterman, filed. Motion Docket Date 11/6/2020. (Breiterman, Charles) (Entered: 10/16/2020)
490 Unopposed MOTION for P. Trent Peroyea to Withdraw as Attorney by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 11/6/2020. (Attachments: # 1 Proposed Order)(Peroyea, Philip) (Entered: 10/16/2020)
491 AFFIDAVIT of Ad Hoc New York Republican Committee Trustee Christopher Ear Strunk Amicus, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(ckrus, 4) (Entered: 10/23/2020)
492 Unopposed MOTION for Leave to File Amicus Brief in Support of Plaintiffs by U.S. Rep. Steve King, filed. Motion Docket Date 11/13/2020. (Attachments: # 1 Exhibit Proposed Amicus Memo of Law, # 2 Proposed Order proposed order)(Joseph, Lawrence) (Entered: 10/23/2020)
493 RESPONSE to 484 Opposed MOTION to Compel and Extend Discovery Period, or in the Alternative, to Exclude Evidence filed by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Disher, Todd) (Entered: 10/28/2020)

10/29/2020 10/29/2020 10/30/2020 10/30/2020 11/03/2020
11/05/2020

494 MOTION for Leave to File Amicus Curiae Brief by Charles A Breiterman, filed. Motion Docket Date 11/19/2020. (Breiterman, Charles) (Entered: 10/29/2020)
495 Brief of Charles A. Breiterman as Amicus Curiae in Support of Plaintiffs' Motion for Summary Judgment, filed.(Breiterman, Charles) (Entered: 10/29/2020)
496 REPLY in Support of 484 Opposed MOTION to Compel and Extend Discovery Period, or in the Alternative, to Exclude Evidence, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Jin Park, Karla Perez, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Perales, Nina) (Entered: 10/30/2020)
497 ORDER denying 483 Motion for Reconsideration. As previously stated, the Trustees are welcome to participate in this case as amicus curiae..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/02/2020)
500 AMICUS DECLARATION SUPPLEMENT SUPPORT TO DOCKET ITEMS #491 and #483 OPPOSES ITEMS #209 and #492: RE SCOTUS RULING IN NO. 18- 587 AND DOCKET ITEM #461 STAY ORDER WITH LOCAL RULE 5-2 RELATED CASES OF AMICUS CHRISTOPHER EARL STRUNK, THE NATURAL-BORN-CITIZEN (NBC) BIRTHER TRUSTEE FOR THE AD BOC NEW YORKER REPUBLICAN COMMITTEE, STATUS RECONSIDERATION MOTION FOR FRCvP RULE 6S(b) RELIEF AT DOCKET ITEM #483, AFFIRMATION IN OPPOSITION TO THE STATES AMICI CURIAE MOTION FOR RELIEF AT DOCKET ITEM #209 BY: NEW YORK, CALIFORNIA, CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA, MAINE, MARYLAND, MASSACHUSETTS, MINNESOTA, NEW MEXICO, NORTH CAROLINA, OREGON, PENNSYLVANIA, RHODE ISLAND, VIRGINIA, VERMONT, WASHINGTON, AND THE DISTRICT OF COLUMBIA IN OPPOSITION TO PLAINTIFFS' REQUEST FOR INJUNCTION AGAINST THE DEFERRED ACTION FOR CHILDHOOD ARRIVAL (DACA) by Christopher Earl Strunk, Trustee for the Ad Hoc New Yorker Republican Committee, filed.(jdav, 4) (Entered: 11/06/2020)
498 Unopposed MOTION for Leave to File Excess Pages by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha,

11/06/2020 11/06/2020 11/06/2020 11/06/2020 11/06/2020
11/09/2020 11/09/2020

Denise Romero, Karina Ruiz De Diaz, Angel Silva, filed. Motion Docket Date 11/27/2020. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 11/05/2020)
499 MOTION Unopposed Motion for Leave to Exceed Page Limit by State of New Jersey, filed. Motion Docket Date 11/27/2020. (Attachments: # 1 Proposed Order)(Medoway, Melissa) (Entered: 11/06/2020)
501 RESPONSE to 486 MOTION for Summary Judgment filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Attachments: # 1 Exhibit Exhibits)(Walker, James) (Entered: 11/06/2020)
502 RESPONSE in Opposition to 486 MOTION for Summary Judgment , filed by State of New Jersey. (Attachments: # 1 Appendix NJ Appendix Vol. I, # 2 Appendix NJ Appendix - Vol. 2, # 3 Appendix NJ Appendix Vol. 3, # 4 Proposed Order Order Denying Summary Judgment)(Medoway, Melissa) (Entered: 11/06/2020)
503 MOTION for Summary Judgment by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 11/27/2020. (Perales, Nina) (Entered: 11/06/2020)
504 RESPONSE in Opposition to 486 MOTION for Summary Judgment , filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Attachments: # 1 Exhibit 1 - Nina Perales Declaration, # 2 Exhibit 2 - Appendix Vol. 1, # 3 Exhibit 3 Appendix Vol. 2)(Perales, Nina) (Entered: 11/06/2020)
505 Unopposed MOTION for Extension of Time to Reply in Support of Motion for Summary Judgment by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 11/30/2020. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 11/09/2020)
506 NOTICE of Setting. Parties notified. Motion Hearing set for 12/22/2020 at 10:00 AM in Courtroom 9C before Judge Andrew S Hanen, filed. (rhawkins) (Entered: 11/09/2020)

11/09/2020
11/09/2020 11/09/2020 11/09/2020 11/09/2020 11/09/2020 11/10/2020 11/10/2020 11/10/2020 11/10/2020 11/11/2020

507 Unopposed MOTION for Extension of Time to Respond to DefendantIntervenors' Responses by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 11/30/2020. (Attachments: # 1 Proposed Order)(Walker, James) (Entered: 11/09/2020)
509 ORDER granting 489 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/10/2020)
510 ORDER granting 478 Motion to Withdraw as Attorney. Attorney Ernest I. Herrera terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/10/2020)
511 ORDER granting 492 Motion for Leave to File a memorandum of law as amici curiae in support of plaintiffs' motion for summary judgment..(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/10/2020)
512 Memorandum of Law by Congressman Steve King and Congressman Paul A. Gosar, D.D.S, as Amici Curiae in support of Plaintiffs' 486 MOTION for Summary Judgment , filed. (jdav, 4) (Entered: 11/10/2020)
513 ORDER granting 490 Motion to Withdraw as Attorney. Attorney Philip Trent Peroyea terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/10/2020)
508 NOTICE of Errata re: 501 Response to Motion by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. (Attachments: # 1 Appendix of Unpublished Authorities)(Walker, James) (Entered: 11/10/2020)
514 MOTION for Michael Joseph Dundas to Appear Pro Hac Vice for City of Los Angeles, filed. Motion Docket Date 12/1/2020. (mmapps, 4) (Entered: 11/10/2020)
515 ORDER granting 507 Motion for Extension of Time.(Signed by Judge Andrew S Hanen) Parties notified.(LaurenWebster, 4) (Entered: 11/10/2020)
516 ORDER granting 505 Motion for Extension of Time.(Signed by Judge Andrew S Hanen) Parties notified.(LaurenWebster, 4) (Entered: 11/10/2020)
517 Unopposed MOTION for Extension of Time to File Response to Federal Defendants' Response to Plaintiff States' Motion for Summary Judgment by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla

11/12/2020 11/12/2020 11/12/2020 11/13/2020
11/13/2020
11/13/2020 11/13/2020
11/16/2020 11/16/2020 11/20/2020

Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 12/2/2020. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 11/11/2020)
518 ORDER granting 517 Motion for Extension of Time.(Signed by Judge Andrew S Hanen) Parties notified.(LaurenWebster, 4) (Entered: 11/12/2020)
519 ORDER granting 514 Motion for Michael Dundas to Appear Pro Hac Vice for the City of Los Angeles.(Signed by Judge Andrew S Hanen) Parties notified.(LaurenWebster, 4) (Entered: 11/12/2020)
520 NOTICE of Appearance by Michael Dundas on behalf of City of Los Angeles, filed. (Dundas, Michael) (Entered: 11/12/2020)
521 MOTION for Margaret L. Carter to Appear Pro Hac Vice by Proposed Amici Local Governments and Local Government Advocacy Organizations, filed. Motion Docket Date 12/4/2020. (Whilt, Nicholas) (Additional attachment(s) added on 11/16/2020: # 1 Attorney Verification) (dnoriega, 1). (Entered: 11/13/2020)
522 MOTION for Daniel R. Suvor to Appear Pro Hac Vice by Proposed Amici Local Governments and Local Government Advocacy Organizations, filed. Motion Docket Date 12/4/2020. (Whilt, Nicholas) (Additional attachment(s) added on 11/16/2020: # 1 Attorney Verification) (dnoriega, 1). (Entered: 11/13/2020)
523 NOTICE of Appearance by Nicholas Whilt on behalf of Proposed Amici Local Governments and Local Government Advocacy Organizations, filed. (Whilt, Nicholas) (Entered: 11/13/2020)
524 Unopposed MOTION for Leave to File Amici Curiae Brief by Proposed Amici Local Governments and Local Government Advocacy Organizations, filed. Motion Docket Date 12/4/2020. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Proposed Order)(Whilt, Nicholas) (Entered: 11/13/2020)
525 ORDER granting 521 Motion for Margaret L. Carter to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/16/2020)
526 ORDER granting 522 Motion for Daniel R. Suvor to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/16/2020)
527 RESPONSE to 503 MOTION for Summary Judgment filed by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Walker, James) (Entered: 11/20/2020)

11/20/2020
11/20/2020 11/23/2020 11/24/2020 11/30/2020
12/02/2020 12/03/2020 12/03/2020

528 RESPONSE to 501 Response to Motion for Summary Judgment, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 11/20/2020)
529 REPLY in Support of 486 MOTION for Summary Judgment , filed by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Disher, Todd) (Entered: 11/20/2020)
530 MOTION for Jeremy M. Feigenbaum to Appear Pro Hac Vice by State of New Jersey, filed. Motion Docket Date 12/14/2020. (Medoway, Melissa) (Additional attachment(s) added on 11/24/2020: # 1 Attorney Verification) (scastillo, 1). (Entered: 11/23/2020)
531 ORDER granting 530 Motion for Jeremy M. Feigenbaum to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 11/25/2020)
532 REPLY in Support of 503 MOTION for Summary Judgment , filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 11/30/2020)
533 NOTICE of Appearance by Eric A. Hudson on behalf of State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. (Hudson, Eric) (Entered: 12/02/2020)
534 Unopposed MOTION for Ryan L. Bangert to Withdraw as Attorney by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 12/24/2020. (Attachments: # 1 Proposed Order)(Disher, Todd) (Entered: 12/03/2020)
535 Unopposed MOTION for Adam Arthur Biggs to Withdraw as Attorney by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia, filed. Motion Docket Date 12/24/2020. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 12/03/2020)

12/03/2020 12/03/2020 12/07/2020
12/08/2020 12/10/2020
12/15/2020 12/16/2020 12/16/2020

536 ORDER granting 534 Motion to Withdraw Ryan L. Bangers. Attorney Ryan L Bangert terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 12/03/2020)
537 ORDER granting 535 Motion to Withdraw Adam Arthur Biggs. Attorney Adam Arthur Biggs terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 12/03/2020)
538 Opposed MOTION for Continuance of Hearing Set for December 22, 2020 or to Hear Argument Remotely by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 12/28/2020. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order)(Perales, Nina) (Entered: 12/07/2020)
539 RESPONSE to 538 Opposed MOTION for Continuance of Hearing Set for December 22, 2020 or to Hear Argument Remotely filed by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Disher, Todd) (Entered: 12/08/2020)
540 REPLY in Support of 538 Opposed MOTION for Continuance of Hearing Set for December 22, 2020 or to Hear Argument Remotely, filed by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez. (Perales, Nina) (Entered: 12/10/2020)
541 MOTION Appear on Behalf of the Attorney-in-Charge by State of New Jersey, filed. Motion Docket Date 1/5/2021. (Attachments: # 1 Proposed Order NJ Proposed Order)(Medoway, Melissa) (Entered: 12/15/2020)
542 MOTION for John Coghlan to Appear Pro Hac Vice by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 1/6/2021. (Walker, James) (Additional attachment(s) added on 12/17/2020: # 1 Motion for Pro Hac) (rnieto, 1). (Entered: 12/16/2020)
543 Unopposed MOTION to Appear on Behalf of Attorney-in-Charge by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 1/6/2021. (Walker, James) (Entered: 12/16/2020)

12/16/2020 12/18/2020 12/18/2020 12/22/2020
01/07/2021 01/07/2021
01/21/2021 01/21/2021 01/22/2021

544 ORDER denying 538 Motion for Continuance.(Signed by Judge Andrew S Hanen) Parties notified.(rhawkins) (Entered: 12/16/2020)
545 ORDER Granting 542 Motion for John Coghlan to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified.(jguajardo, 4) (Entered: 12/18/2020)
546 ORDER granting 541 Motion for Jeremy M. Feigenbaum.(Signed by Judge Andrew S Hanen) Parties notified.(jguajardo, 4) (Entered: 12/18/2020)
Minute Entry for proceedings held before Judge Andrew S Hanen. MOTION HEARING held on 12/22/2020. The Court heard the argument of counsel as to 503 Motion for Summary Judgment. The Court will take the matter under advisement and make a ruling in due course. Appearances: Todd Disher, Eric Hudson, Elizabeth Murrill, Nina Perales, Douglas Hallward-Driemer, Jeffrey Feigenbaum, John Coghlan, Daniel Hu(Court Reporter: L. Smith), filed.(rhawkins) (Entered: 12/22/2020)
547 AO 435 TRANSCRIPT REQUEST by Nina Perales for Transcript of Motion Hearing on 12/22/2020 before Judge Andrew Hanen. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Lanie Smith, filed. (Perales, Nina) (Entered: 01/07/2021)
548 Unopposed MOTION for Ramon A. Soto to Withdraw as Attorney by Nancy Adossi, Carlos Aguilar Gonzalez, Oscar Alvarez, Moses Kamau Chege, Elizabeth Diaz, Maria Diaz, Elly Marisol Estrada, Blanca Gonzalez, Hyo-Won Jeon, Pratishtha Khanna, Jung Woo Kim, Karla Lopez, Jose Magana-Salgado, Nanci J Palacios Godinez, Jin Park, Karla Perez, Luis A Rafael, Maria Rocha, Denise Romero, Karina Ruiz De Diaz, Angel Silva, Darwin Velasquez, filed. Motion Docket Date 1/28/2021. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 01/07/2021)
549 Unopposed MOTION for John V. Coghlan to Withdraw as Attorney by L. Francis Cissna, Thomas D. Homan, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America, filed. Motion Docket Date 2/11/2021. (Attachments: # 1 Proposed Order)(Walker, James) (Entered: 01/21/2021)
550 NOTICE of Presidential Memorandum by Nancy Adossi, filed. (Attachments: # 1 Exhibit A)(Perales, Nina) (Entered: 01/21/2021)
551 TRANSCRIPT re: Motion proceedings held on 12/22/2020 before Judge Andrew S Hanen. Court Reporter/Transcriber Lanie Smith. Ordering Party Defendant Release of Transcript Restriction set for 4/22/2021., filed. (LanieSmith, ) (Entered: 01/22/2021)

01/22/2021 01/25/2021 01/26/2021
02/05/2021 02/05/2021 02/12/2021 02/17/2021

552 RESPONSE to 550 Notice (Other) , filed by L. Francis Cissna, Kevin K. McAleenan, Kirstjen M. Nielsen, Carla L. Provost, United States of America. (Walker, James) (Entered: 01/22/2021)
553 Notice of Filing of Official Transcript as to 551 Transcript. Party notified, filed. (rnieto, 1) (Entered: 01/25/2021)
554 RESPONSE to 550 Notice (Other) of Presidential Memorandum, filed by State of Alabama, State of Arkansas, State of Kansas, State of Louisiana, State of Mississippi, State of Nebraska, State of South Carolina, State of Texas, State of West Virginia. (Disher, Todd) (Entered: 01/26/2021)
555 ORDER granting 549 Motion to Withdraw as Attorney. Attorney John Coghlan terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/05/2021)
556 ORDER granting 548 Motion to Withdraw as Attorney. Attorney Ramon Andres Soto terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/05/2021)
557 Unopposed MOTION for Cristina M. Moreno to Withdraw as Attorney by State of Texas, filed. Motion Docket Date 3/5/2021. (Attachments: # 1 Proposed Order)(Moreno, Cristina) (Entered: 02/12/2021)
558 ORDER granting 557 Motion to Withdraw as Attorney. Attorney Cristina Maria Moreno terminated.(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 02/17/2021)

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 Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 1 of 137

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

)

STATE OF TEXAS;

)

)

STATE OF ALABAMA;

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STATE OF ARKANSAS;

)

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STATE OF LOUISIANA;

)

)

STATE OF NEBRASKA;

)

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STATE OF SOUTH CAROLINA; and

)

)

STATE OF WEST VIRGINIA;

)

Plaintiffs, )

)

v.

)

)

UNITED STATES OF AMERICA;

)

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KIRSTJEN M. NIELSEN, Secretary of the U.S.

)

Department of Homeland Security;

)

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KEVIN K. MCALEENAN, Commissioner of U.S.

)

Customs and Border Protection;

)

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THOMAS D. HOMAN, Deputy Director and Acting

)

Director of U.S. Immigration and Customs

)

Enforcement;

)

)

L. FRANCIS CISSNA, Director of U.S. Citizenship and )

Immigration Services; and

)

)

CARLA L. PROVOST, Acting Chief of U.S. Border

)

Patrol;

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Defendants. )

)

Case No.

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 2 of 137
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. In 2012 and again in 2014, unilateral executive action by the Obama Administration created far-reaching, class-based “deferred action” programs to grant to millions of unlawfully present aliens the legal classification of “lawful presence” in this country and numerous attendant benefits—without congressional authorization. 2. In a decision affirmed by the divided Supreme Court, the Fifth Circuit upheld this Court’s preliminary injunction of the 2014 executive action that created “DAPA” and “Expanded DACA.” The Fifth Circuit held this executive action invalid as lacking notice-and-comment procedure and, in any event, contrary to federal law. As the Fifth Circuit noted, the Executive’s claim of authority to create these programs “would allow [the Executive] to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.” Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015) (emphasis added), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (per curiam). 3. In June 2017, after the Supreme Court’s ruling, the Executive Branch rescinded prospectively its 2014 executive action creating DAPA and Expanded DACA. 4. Later that month, Texas and other Plaintiffs proposed to resolve the then-pending litigation if the Executive Branch also rescinded prospectively its 2012 executive action creating “DACA.” Otherwise, Plaintiffs wrote, they would amend their complaint in that pending litigation to challenge DACA on the same bases that they challenged DAPA and Expanded DACA.
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5. On the September 2017 deadline for accepting Plaintiffs’ proposal, the Executive Branch issued a memorandum rescinding DACA by directing that DACA permits would not be issued or renewed starting March 5, 2018. Accordingly, Plaintiffs voluntarily dismissed their then-pending litigation in this Court.
6. Yet DACA is still in force and will remain in force for the indefinite future. In January 2018, a California district court issued a preliminary injunction of the Executive’s 2017 decision to rescind DACA, allowing several challenges to that 2017 executive action to proceed.
7. In another challenge in the District of Columbia, the district court on April 24, 2018, vacated the Executive’s decision to rescind DACA, granted summary judgment that the executive action was substantively unlawful under the APA, and ordered the Executive to continue issuing new DACA applications, staying that order a mere 90 days. NAACP v. Trump, No. 1:17-cv-1907, 2018 WL 1920079, at *1, *28 (D.D.C. Apr. 24, 2018).
8. Plaintiffs abided DACA while the controlling legal issues were decided in the prior litigation and while the Executive reweighed DACA’s legality. But the recent injunctions of the 2017 executive action undermine Plaintiffs’ express basis for dismissing their prior litigation—and means that Plaintiffs will suffer ongoing harm from DACA for the indefinite future.
9. Plaintiffs thus bring this lawsuit challenging the 2012 executive action creating DACA in the first place. This lawsuit does not call on this Court to resolve any of the challenges pending in California or elsewhere about the validity of
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executive action in 2017. Rather, this lawsuit challenges whether the 2012 executive action unilaterally creating DACA was itself lawful.
10. This lawsuit also does not challenge the Executive Branch’s ability to prioritize removal resources. It does not seek an injunction requiring the Executive to remove any alien from the country. As the Fifth Circuit has noted, those matters are distinct from programs like that here, which grant lawful-presence status.
11. This lawsuit is emphatically about the rule of law. The policy merits of immigration laws are debated in and decided by Congress. The Executive Branch does not exercise a lawmaking role. Its duty is to take care that the law is faithfully executed—substantive immigration law and procedural administrative law alike.
12. Under the Fifth Circuit’s controlling precedent, DACA is unlawful for the same reasons as DAPA and Expanded DACA were unlawful. See Texas, 809 F.3d 134. This lawsuit seeks declaratory and injunctive relief to that effect.
13. Indeed, Plaintiffs’ challenge to the Obama Administration’s class-based deferred-action programs has only become stronger since the prior suit challenging DAPA and Expanded DACA. Each memorandum creating DACA, Expanded DACA, or DAPA promised that “[t]his memorandum confers no . . . pathway to citizenship.” See infra ¶¶ 84, 151. But, as of August 21, 2017, as many as 39,514 aliens had used their DACA status to obtain a pathway to citizenship, through the conferral of lawfulpermanent-resident status (commonly known as “LPR” or “green card” status), and
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approximately 1,056 alien DACA recipients with LPR status had obtained United States citizenship.1
14. If ever there were a violation of the President’s duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, this is it. The Executive unilaterally conferred lawful presence and work authorization on otherwise unlawfully present aliens, and then the Executive used that lawful-presence “dispensation” to unilaterally confer United States citizenship. Arizona v. United States, 567 U.S. 387, 435 (2012) (Scalia, J., concurring in part and dissenting in part).
15. The Attorney General of the United States has announced that DACA suffers from the same legal defects as DAPA and that, if DACA were challenged, “the likeliest outcome is that it would be enjoined just as was DAPA.”2
16. That is precisely what the Court should do here. This Court has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful. However, Plaintiffs are amenable to a remedy that enjoins Defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.
1 See Press Release, Office of Sen. Chuck Grassley, Data Indicate Unauthorized Immigrants Exploited Loophole to Gain Legal Status, Pathway to Citizenship (Sept. 1, 2017), https://www.grassley.senate.gov/news/news-releases/data-indicateunauthorized-immigrants-exploited-loophole-gain-legal-status. “A valid, unexpired Form I-551, Permanent Resident Card (also known as a ‘green card’), is the primary evidence of an alien’s status as a Lawful Permanent Resident (LPR) of the United States.” U.S. Dep’t of State, 9 Foreign Affairs Manual 202.2-6(a)(1) (2018).
2 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017), https://www.justice.gov/opa/speech/attorneygeneral-sessions-delivers-remarks-daca.
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JURISDICTION AND VENUE 17. The Court has federal-question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, art. II, § 3, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. The Court also has jurisdiction under 28 U.S.C. § 1346(a)(2) because this is a civil action or claim against the United States. Finally, the Court has jurisdiction to compel an officer or employee of the above-named federal agencies to perform his or her duty under 28 U.S.C. § 1361. 18. Venue is proper in this District under 28 U.S.C. § 1391(e) because the State of Texas is a resident of this judicial district, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District. 19. This Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the APA, 5 U.S.C. § 706; and 28 U.S.C. § 1361.
THE PARTIES 20. Plaintiffs are the States of Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia. 21. The Plaintiff States have interests that fall within the zone of interests of federal statutes on immigration policy. “The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States,” which “bear[ ] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397.
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22. Defendant United States of America is sued under the APA. See 5 U.S.C. § 703 (“[T]he action for judicial review may be brought against the United States . . . .”).
23. Defendant Kirstjen M. Nielsen is the Secretary of the U.S. Department of Homeland Security (“DHS”). Defendant Nielsen and DHS are responsible for U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”). Defendant Nielsen also is responsible for the continued administration of DACA and Expanded DACA.
24. Defendant Kevin K. McAleenan is the Commissioner of CBP. Defendant McAleenan shares responsibility for the administration of DACA and Expanded DACA.
25. Defendant Thomas D. Homan is the Deputy Director and Acting Director for ICE. ICE administers a formal program for allowing unlawfully present aliens to apply for deferred action and to appeal for reconsideration if deferred action is denied.
26. Defendant L. Francis Cissna is the Director of USCIS. Cissna and USCIS administer the DACA program. USCIS is the principal agency responsible for the continued administration of DACA and Expanded DACA.
27. Defendant Carla L. Provost is Acting Chief of the U.S. Border Patrol. Provost and the U.S. Border Patrol are responsible for enforcing immigration laws and the detection, interdiction and apprehension of those who attempt to illegally
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enter or smuggle people or contraband across U.S. borders between official ports of entry.
FACTUAL BACKGROUND I. Congress Created an Extensive Statutory Framework in the Area of
Immigration, and Congress Has Not Given the Executive Unilateral Power to Confer Lawful Presence and Work Authorization on Unlawfully Present Aliens Simply Because the Executive Chooses Not to Remove Them. 28. “Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress.” Arizona, 567 U.S. at 409 (alteration in original) (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). 29. Congress has accordingly enacted “extensive and complex” statutes governing “immigration and alien status.” Id. at 395. 30. Title 8 of the United States Code, dealing with immigration, functions as a “single integrated and all-embracing system” governing the presence of aliens in the country. Id. at 400 (quoting Hines v. Davidowitz, 312 U.S. 52, 74 (1941)). 31. Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., Congress has delineated “specifi[c] categories of aliens” who may be admitted into and lawfully present in the country as well as the consequences for unlawful presence. Arizona, 567 U.S. at 395. 32. Congress has enacted complex provisions detailing how over forty different classes of immigrants, nonimmigrants, refugees, and other aliens can attain lawful presence in the country. See Texas, 809 F.3d at 179.
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33. Moreover, under the Immigration Reform and Control Act of 1986 (“IRCA”), Congress created “a comprehensive framework for ‘combating the employment of illegal aliens.’” Arizona, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)).
34. Congress reinforced immigration laws with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), responding to the States’ concerns about the effects of extending benefits to unlawfully present aliens. E.g., 142 Cong. Rec. 26,680 (1996) (statement of Sen. Kyl) (“With this immigration bill, we have the opportunity to lift this financial burden off the States by forcing the Federal Government to take responsibility for reducing illegal immigration . . . .”).
35. Congress never gave the Executive Branch carte blanche to sidestep these statutes and unilaterally permit unlawfully present aliens to be lawfully present or obtain attendant benefits and work authorization simply because the Executive chooses not to remove them.
36. Lawful presence is an immigration classification created by Congress. 37. Unlawful presence is an immigration classification created by Congress. 38. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for Social Security. See 8 U.S.C. § 1611(b)(2). 39. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for Medicare. See id. § 1611(b)(3).
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40. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for a retirement benefit in PRWORA. See id. § 1611(b)(4).
41. The classification of unlawful presence makes time spent in that status count towards a reentry ban un IIRIRA, subject to statutory exception. See id. § 1182(a)(9)(B)(i) (3-year reentry ban for aliens “unlawfully present in the United States for a period of more than 180 days but less than 1 year”; 10-year reentry ban for aliens “unlawfully present in the United States for one year or more”).
42. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for the Earned Income Tax Credit. See 26 U.S.C. § 32(c)(1)(A), (c)(1)(E), (m) (eligibility based on an individual having a valid Social Security number). II. Congress Has Declined to Pass the DREAM Act.
43. On August 1, 2001, the Development, Relief, and Education for Alien Minors (DREAM) Act was first introduced in Congress. See S. 1291, 107th Cong. (2001).
44. The DREAM Act has been introduced in some form in each Congress since then. See, e.g., S. 1545, 108th Cong. (2003); S. 2075, 109th Cong. (2005); S. 2205, 110th Cong. (2007); S. 729, 111th Cong. (2009); H.R. 1751, 111th Cong. (2009); S. 952, 112th Cong. (2011); S. 744, 113th Cong. (2013); S. 3542, 114th Cong. (2016); H.R. 496, 115th Cong. (2017).
45. The proposed DREAM Act would have allowed unlawfully present aliens to apply for lawful presence through conditional-permanent-resident status if, among
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other things, (1) they entered the United States before the age of 16, and (2) they had been in the United States continuously for five years.
46. Congress has repeatedly declined to enact the DREAM Act. 47. Features of the DREAM Act closely resemble DACA and DAPA. 48. The DREAM Act’s coverage criteria are substantially similar to DACA’s and Expanded DACA’s coverage criteria, as DACA’s and Expanded DACA’s coverage criteria also require entry into the United States before the age of 16 and at least five years of continuous residence in the United States. 49. Former President Obama repeatedly urged Congress to pass the DREAM Act. 50. Former President Obama consistently asserted that he could not achieve the goals of the DREAM Act on his own through unilateral Executive action. He said, for instance:  “Comprehensive reform, that’s how we’re going to solve this problem. . . .
Anybody who tells you . . . [that] I can wave a magic wand and make it happen hasn’t been paying attention [to] how this town works.” President Barack Obama, Remarks on Comprehensive Immigration Reform (May 5, 2010), https://obamawhitehouse.archives.gov/blog/2010/05/05/cinco-demayo-a-call-comprehensive-immigration-reform.  “I am president, I am not king. I can’t do these things just by myself. . . . [T]here’s a limit to the discretion that I can show because I am obliged to execute the law. . . . I can’t just make the laws up by myself.” President
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Barack Obama, Interview with Univision (Oct. 25, 2010), http://latimesblogs.latimes.com/washington/2010/10/transcript-ofpresident-barack-obama-with-univision.html.  In response to a question about whether he could stop deportation of unlawfully present students with an executive order: “Well, first of all, temporary protective status historically has been used for special circumstances where you have immigrants to this country who are fleeing persecution in their countries, or there is some emergency situation in their native land that required them to come to the United States. So it would not be appropriate to use that just for a particular group that came here primarily . . . for economic opportunity. With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed . . . . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.” President Barack Obama, Remarks at Univision Town Hall (Mar. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/03/28/remarks-president-univision-town-hall (emphasis added).  “I can’t solve this problem by myself. . . . We’re going to have to change the laws in Congress.” President Barack Obama, Remarks at a Facebook Town
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Hall (Apr. 20, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/04/20/remarks-president-facebook-town-hall.  “I know some here wish that I could just bypass Congress and change the law myself. But that’s not how democracy works. See, democracy is hard. But it’s right. Changing our laws means doing the hard work of changing minds and changing votes, one by one.” President Barack Obama, Remarks at Miami Dade College Commencement (Apr. 29, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/04/29/remarks-president-miami-dade-college-commencement.  “And sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself. But that’s not how a democracy works. What we really need to do is to keep up the fight to pass genuine, comprehensive reform. That is the ultimate solution to this problem.” President Barack Obama, Remarks on Comprehensive Immigration Reform in El Paso, Texas (May 10, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/05/10/remarks-president-comprehensive-immigration-reformel-paso-texas.  “[B]elieve me, the idea of doing things on my own is very tempting. . . . But that’s not how . . . our system works. . . . That’s not how our democracy functions. That’s not how our Constitution is written.” President Barack Obama, Remarks to the National Council of La Raza (July 25, 2011),
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https://obamawhitehouse.archives.gov/the-pressoffice/2011/07/25/remarks-president-national-council-la-raza.  “Administratively, we can’t ignore the law. . . . We are doing everything we can administratively. But the fact of the matter is there are laws on the books that I have to enforce.” President Barack Obama, Remarks in an “Open for Questions” Roundtable (Sept. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/09/28/remarks-president-open-questions-roundtable. 51. Despite former President Obama’s statements, Congress refused to pass the DREAM Act. III. The Obama Administration Unilaterally Created DACA, Which Confers Eligibility for Lawful Presence, Work Authorization, and a Host of Attendant Benefits. 52. On June 15, 2012, former President Obama’s Secretary of Homeland Security Napolitano announced the unilateral creation of a program that has become known as Deferred Action for Childhood Arrivals (“DACA”). See Exhibit 1. 53. This Department of Homeland Security memorandum creating DACA was issued without APA notice-and-comment procedure. 54. Through Secretary Napolitano’s DACA memo, the Executive Branch ordered federal immigration officials to make qualifying unlawfully present aliens eligible to receive “deferred action” status if they (1) entered the United States before the age of 16; (2) had been in the United States continuously for at least five years; (3) met certain educational standards or were veterans; (4) had not been convicted of a felony, a “significant” misdemeanor or “multiple” misdemeanors, or otherwise posed
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a threat to national security or public safety; and (5) were not above the age of thirty. Id. at 1.
55. DACA’s “deferred action” terms last for 2 years. Id. at 2. 56. DACA’s “deferred action” terms are renewable. Id. 57. DACA’s criteria would cover approximately 1.7 million otherwise unlawfully present aliens. 58. As of September 30, 2017, DACA relief had been conferred on approximately 800,000 aliens. See USCIS, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Fiscal Year 2012-2017, attached as Exhibit 2 (798,980 initial applications and 1,002,810 renewal applications approved from 2012 through September 2017). 59. As of September 30, 2017, DACA relief had been conferred on approximately 125,000 aliens in Texas alone. See id. at 2 (125,239 initial applications and 128,812 renewal applications approved for Texas residents from 2012 through September 2017). 60. According to USCIS, deferred action under DACA “may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit 16, Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14-cv-254), ECF No. 38-6. 61. DACA’s conferral of “deferred action” entails much more than the Executive simply choosing not to remove an alien with DACA. 62. The Executive Branch treats DACA’s conferral of “deferred action” as
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also conferring lawful presence: “An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.” See, e.g., Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions (last visited May 1, 2018).
63. Thus, “while [a DACA recipient’s] deferred action is in effect and, for admissibility purposes, [the DACA recipient is] considered to be lawfully present in the United States during that time.” Id. This has been true since 2012.
64. The Executive’s implementation of DACA as conferring lawful presence tracks the Executive’s practice stated in the 2014 DAPA and Expanded DACA memorandum (the “DAPA Memo”) issued by former DHS Secretary Johnson, which stated: “Deferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” Exhibit 3 at 2.
65. The United States has also confirmed in court that DACA “approved deferred action status is lawful status that affords a period of authorized stay.” See United States’ Brief as Amicus Curiae in Opposition to rehearing En Banc at 16, Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) (No. 13-16248), ECF No. 75 (internal quotation marks omitted).
66. DACA’s conferral of lawful presence creates eligibility for a host of benefits.
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67. DACA’s conferral of lawful presence appears to eliminate predicates necessary under the INA to pursue proceedings to remove an alien from the United States.
68. An alien is removable if he is “present in the United States in violation of [federal law].” 8 U.S.C. § 1227(a)(1)(B).
69. An alien may also be removed if he cannot establish that he “is lawfully present in the United States pursuant to a prior admission.” Id. § 1229a(c)(2)(B).
70. DACA’s conferral of lawful presence negates the removability charge that an alien is “present in the United States in violation of [federal law].” Id. § 1227(a)(1)(B).
71. DACA’s conferral of lawful presence negates the removability charge that an alien is present “without being admitted or paroled,” id. § 1182(a)(6)(A)(i), as the Executive maintains that an alien granted lawful presence is not considered “present in the United States without being admitted or paroled,” Pet. Br. at 9 n.3, Texas, 136 S. Ct. 2271 (No. 15-674), 2016 WL 836758.
72. DACA’s conferral of lawful presence means a DACA recipient satisfies the lawful-presence prerequisite for the alien to be eligible for Social Security. See 8 U.S.C. § 1611(b)(2).
73. DACA’s conferral of lawful presence means a DACA recipient satisfies the lawful-presence prerequisite for the alien to be eligible for Medicare. See id. § 1611(b)(3).
74. DACA’s conferral of lawful presence means a DACA recipient satisfies
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the lawful-presence prerequisite for the alien to be eligible for a retirement benefit in

PRWORA. See id. § 1611(b)(4).

75. DACA’s conferral of lawful presence means a DACA recipient is eligible

for tolling of the IIRIRA reentry-ban clock that accrues during periods of unlawful

presence. See id. § 1182(a)(9)(B).

76. DACA’s conferral of lawful presence also creates eligibility for various

State benefits—including a driver’s license in most States.

77. Additionally, the Executive Branch treats DACA’s conferral of “deferred

action” as conferring eligibility for “work authorization.” Exhibit 1 at 3.

78. The Executive has consistently told aliens that their DACA applications

must be accompanied by applications for a Form I-765 application for work

authorization.

See

Frequently

Asked

Questions,

USCIS,

https://www.uscis.gov/archive/frequently-asked-questions (last visited May 1, 2018).

79. Work authorization has been granted to the substantial majority of

DACA recipients.

80. “The United States concedes that ‘[a]n alien with work authorization

may obtain a Social Security Number,’ ‘accrue quarters of covered employment,’ and

‘correct wage records to add prior covered employment within approximately three

years of the year in which the wages were earned or in limited circumstances

thereafter.’” Texas, 809 F.3d at 149 (citation omitted).

81. DACA recipients are eligible for earned income tax credits once they

received a Social Security number.

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Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 19 of 137
82. Some DACA recipients have received Earned Income Tax Credits. 83. The nonpartisan congressional Joint Committee on Taxation estimated that, over a 10-year period, DAPA recipients could have received $1.7 billion in Earned Income Tax Credit payments alone. Press Release, Office of Sen. Chuck Grassley, Senators Introduce Bill Disallowing Tax Credit Under 2014 Executive Actions (Mar. 10, 2015), https://www.grassley.senate.gov/news/newsreleases/senators-introduce-bill-disallowing-tax-credit-under-2014-executiveactions. 84. The June 15, 2012 DACA memo stated that “[t]his memorandum confers no . . . pathway to citizenship.” Exhibit 1 at 3. 85. However, the Executive’s implementation of DACA has conferred United States citizenship and a pathway to citizenship on some DACA recipients. 86. The Executive has given some DACA recipients “advance parole.” 87. The “advance parole” granted to aliens because of their receipt of DACA has resulted in some of those aliens obtaining adjustment to LPR status, for which they would otherwise be ineligible. 88. LPR status is commonly referred to as possessing a “green card.” See supra ¶ 13 & n.1. 89. LPR status provides a pathway to United States citizenship. See 8 U.S.C. § 1427(a). 90. By allowing advance parole, which satisfies a requisite for a green card under the Executive’s practice, DACA allowed aliens to obtain citizenship when their
19

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unlawful entry into the United States would otherwise foreclose this pathway to citizenship.
91. The “advance parole” granted to aliens because of their receipt of DACA has resulted in some of those aliens obtaining United States citizenship.
92. “Advance parole” is an Executive practice that allows aliens to leave the country and reenter. USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit, supra, 23-24; Letter from León Rodríguez, Dir., USCIS, to Hon. Charles Grassley 34 (Oct. 9, 2014), Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 64-48; Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions (last visited May 1, 2018).
93. The Executive has deemed DACA and Expanded DACA recipients who obtain “advance parole” from the Executive—and then leave and reenter the United States—as being lawfully “admitted or paroled into the United States” upon reentry. 8 U.S.C. § 1255(a).
94. Congressional statutes, however, generally impose a reentry ban for aliens who were unlawfully present in the country for more than 180 days as an adult. See id. § 1182(a)(9)(B)(i) (3-year reentry ban for aliens “unlawfully present in the United States for a period of more than 180 days but less than 1 year”; 10-year reentry ban for aliens “unlawfully present in the United States for one year or more”); id. § 1182(a)(9)(B)(iii)(I) (unlawful presence before 18 is not counted).
95. Under DACA’s criteria, an alien must have been in the United States for more than 180 days to possibly qualify for DACA.
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Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 21 of 137
96. Thus, Congress’s reentry ban applies to all DACA recipients over 18.5 years of age.
97. The Executive’s discretion to waive this reentry ban is significantly limited, as that waiver authority only applies “in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” Id. § 1182(a)(9)(B)(v) (emphases added).
98. Congressional statutes also significantly limit the Executive’s authority to grant aliens temporary “parole” into the country: “The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Id. § 1182(d)(5)(A) (emphases added).
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99. The Executive considers “advance parole” an exercise of its humanitarian-parole authority. E.g., DHS, DACA National Standard Operating Procedures 125, Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 64-17.
100. Unlike other categories of aliens seeking advance parole, the Executive has not required DACA recipients to qualify for the “urgent humanitarian reasons” or “significant public benefit” statutory requirements for parole. 8 U.S.C. § 1182(d)(5)(A). See USCIS, Instructions for Application for Travel Document 4-5 (expires Dec. 31, 2018), https://www.uscis.gov/system/files_force/files/form/i131instr.pdf?download=1.
101. Instead, the Executive has considered DACA recipients eligible for advance parole based on its own far broader criteria:
 “humanitarian purposes,” such as “travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative”;
 “educational purposes,” such as participating in “semester-abroad programs” or “academic research”; or
 “employment purposes,” including “overseas assignments, interviews, conferences or, training, or meetings with clients overseas.”
Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions (last visited May 1, 2018).
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102. The Executive’s conferral of advance parole on DACA recipients did not invoke the limited “extreme hardship” exception to the reentry ban that applies to DACA recipients. 8 U.S.C. § 1182(a)(9)(B)(v).
103. To the contrary, the Executive considers an alien with advance parole not to have made a “departure” from the United States by physically leaving the country, so there would never be a triggering of the reentry bar when that alien returns to the United States and seeks parole into the country at the port of entry. 7 USCIS, Policy Manual, pt. M, ch. 3 (last updated Aug. 23, 2017), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartMChapter3.html (citing In re Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)).
104. Advance parole is unlawful as applied to DACA recipients over 18.5 years of age because those aliens are reentry-barred under 8 U.S.C. § 1182(a)(9)(B) and the Executive has not purported to excuse that bar under the limited exception of § 1182(a)(9)(B)(v).
105. Independently, advance parole is unlawful as it has been applied to all DACA recipients because the Executive has not required DACA recipients to qualify for the “urgent humanitarian reasons” or “significant public benefit” statutory requirements for parole. Id. § 1182(d)(5)(A).
106. For an alien to be eligible to adjust to lawful-permanent-resident status (and thus obtain a pathway to United States citizenship), the alien must be lawfully “admitted or paroled into the United States.” Id. § 1255(a).
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107. Thus, leaving and reentering the United States with advance parole removes a significant impediment for some otherwise unlawfully present aliens to seek adjustment to LPR status (which entails a pathway to United States citizenship). See Immigrant Legal Res. Ctr., Practice Advisory: DACA, Advance Parole, and Family Petitions 2-3, 7 (June 2016), https://www.ilrc.org/sites/default/ files/resources/prac_adv-daca_advance_parole_fam_pet-20160531.pdf.
108. Indeed, DACA recipients have successfully adjusted their status after being paroled back into the United States. See, e.g., id. at 7.
109. As of December 31, 2015, at least 2,994 DACA recipients were approved for adjustment to LPR status. See Letter from León Rodríguez, Dir., USCIS, to Hon. Charles E. Grassley (June 29, 2016), https://www.judiciary.senate.gov/imo/media/ doc/2016-06-29%20USCIS%20to%20CEG%20-%20DACA%20Advance%20Parole%20 Program.pdf.
110. As of August 21, 2017, approximately 39,514 DACA recipients were adjusted to LPR status. See Press Release, Office of Sen. Chuck Grassley, Data Indicate Unauthorized Immigrants Exploited Loophole to Gain Legal Status, Pathway to Citizenship (Sept. 1, 2017), https://www.grassley.senate.gov/news/newsreleases/data-indicate-unauthorized-immigrants-exploited-loophole-gain-legal-status.
111. Thus, some individuals now have a previously unavailable pathway to United States citizenship on account of receiving DACA, even though the June 15, 2012 DACA memo said that DACA would confer no pathway to United States citizenship.
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112. Of those aliens, as of August 21, 2017, approximately 2,181 DACA recipients have applied for United States citizenship, and approximately 1,056 DACA recipients have been granted United States citizenship. See id.
113. By enabling this pathway to citizenship, DACA provided an additional incentive for unlawfully present aliens, who would otherwise be subject to up to a tenyear reentry ban, to remain in the United States rather than return to their country of nationality. Cf. Texas, 86 F. Supp. 3d at 635.
114. For an alien whose pathway to citizenship (for example, through an immigrant visa from marriage to a United States citizen) is foreclosed by his accrued unlawful presence, traveling to the alien’s home country and returning with advance parole is likely preferable to returning to the alien’s home country and waiting out a ten-year unlawful-presence reentry bar.
115. Because it is unlawful to grant advance parole premised on DACA status, it is unlawful for the Executive to adjust an alien’s status to lawfulpermanent-resident status based on that advance parole.
116. Consequently, it is unlawful for the Executive to confer lawfulpermanent-resident status or United States citizenship on DACA recipients who were ineligible to adjust their status but for advance parole.
117. Before the 2012 DACA memo issued, former President Obama asked the Department of Justice’s Office of Legal Counsel (“OLC”) whether DACA “would be legally permissible.” Memorandum Opinion for the Secretary of Homeland Security
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and the Counsel to the President 18 n.8 (Nov. 19, 2014) (“OLC Memo”), attached as Exhibit 4.
118. The OLC Memo never mentioned that DACA or Expanded DACA confers lawful presence.
119. The OLC Memo never mentioned that DACA or Expanded DACA could confer a pathway to citizenship.
120. OLC’s “preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis.” Id.
121. OLC explained that “extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Id.
122. OLC “advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-bycase basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.” Id. IV. The Obama Administration’s Refusal to Follow Immigration Laws
Caused a Humanitarian Crisis. 123. The Executive Branch did not stop at DACA with dispensing with the Nation’s immigration laws. Rather, the former Presidential Administration adopted a policy that encouraged international child smuggling across the Texas-Mexico
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border. See Order at 2, United States v. Nava-Martinez, No. 1:13-cr-00441 (S.D. Tex. Dec. 13, 2013), ECF No. 37.
124. The defendant in Nava-Martinez, an admitted human trafficker, was caught attempting to smuggle a ten-year-old Salvadoran girl into the United States. Id. at 1.
125. In Nava-Martinez, the district court noted that this was “the fourth case with the same factual situation this Court has had in as many weeks.” Id. at 3. Although the human traffickers were apprehended in each case, “the DHS completed the criminal conspiracy . . . by delivering the minors to the custody of the parent.” Id.
126. This was done pursuant to DHS’s “apparent policy . . . of completing the criminal mission of individuals who are violating the border security of the United States.” Id. at 2. As the district court observed, “[t]his DHS policy is a dangerous course of action.” Id. Under the policy, “instead of enforcing the laws of the United States, the Government [takes] direct steps to help the individuals who violated it.” Id. at 3.
127. Moreover, the district court found that DHS’s policy promotes human trafficking, which in turn “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico.” Id. at 6. The district court explained that citizens of the United States bear the economic brunt of this policy, because DHS “fund[s] these evil ventures with their tax dollars.” Id. at 8. In addition, the policy harms the citizens of each country that suffers from the “nefarious activities of the cartels.” Id.
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128. DACA and the policy described in Nava-Martinez have had and continue to have dire consequences in Plaintiff States. In the summer of 2014, an enormous wave of unlawfully present aliens surged across the Texas-Mexico border, creating what President Obama described as a “humanitarian crisis.” Nick Miroff & Joshua Partlow, Central American Migrants Overwhelm Border Patrol Station in Texas, WASH. POST (June 12, 2014).
129. Law enforcement officers reported “picking up children as young as 4 without their parents and other children with Hello Kitty backpacks, cellphones and the telephone numbers of U.S. relatives on note cards.” Miroff & Partlow, supra.
130. But the humanitarian crisis is by no means limited to unaccompanied children. “[A]n unprecedented surge of families crossing illegally into the U.S.” has also been recognized. Cindy Carcamo, Rumors of U.S. Haven for Families Spur Rise in Illegal Immigration, L.A. TIMES (June 6, 2014). While immigration officials do not have an official count of such families, they have acknowledged that “the numbers appear to be substantial.” Id.
131. This wave of immigration was concentrated in the Rio Grande Valley of South Texas. Miroff & Partlow, supra. A June 2014 report noted that “[e]very day, hundreds of Central American migrants, in groups as large as 250 people, are wading across the muddy Rio Grande.” Id.
132. The crisis has imposed enormous law enforcement costs on Plaintiff States. For example, the Texas Department of Public Safety estimated in 2014 that it spent $1.3 million a week on troopers and resources to deal with the immigration
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surge; in addition, former Governor Perry deployed 1,000 National Guard troops to the border at a cost of $38 million.
133. This crisis was caused by the immigration policies of the federal government, including the policy already held to be unlawful. As Ronald D. Vitiello, then serving as Deputy Chief of U.S. Border Patrol, reportedly explained in a 2014 memorandum (“Vitiello Memorandum”), “[i]f the U.S. government fails to deliver adequate consequences to deter aliens from attempting to illegally enter the U.S., the result will be an even greater increase in the rate of recidivism and first-time illicit entries.” The Obama Administration acknowledged that there was a “growing perception minors are crossing the border because they feel they will not be deported by the administration.” Brett LoGiurato, There’s a Staggering Humanitarian Crisis on the US Border, and It’s Only Going to Get Worse, BUS. INSIDER (June 16, 2014). Indeed, a research report commissioned by DHS revealed that “[w]ord had spread in Central America about a ‘lack of consequences’ for illegal entry” and that “[s]mugglers were exploiting the system.” Susan Carroll, Report Warned of Child Migrant Crisis, HOUSTON CHRON. (June 17, 2014).
134. Former President Obama himself predicted this outcome. On July 1, 2010, he explained that it would be “both unwise and unfair” to “ignore the laws on the books and put an end to deportation” because it “would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision.” That in turn, President Obama recognized, “could lead to a surge in more illegal immigration.” As President Obama concluded, “no matter how decent they are, no
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matter their reasons, the 11 million who broke these laws should be held accountable.” President Barack Obama, Remarks on Comprehensive Immigration Reform (July 1, 2010), https://obamawhitehouse.archives.gov/the-pressoffice/remarks-president-comprehensive-immigration-reform.
135. The Obama Administration, however, contributed to the surge of illegal immigration by refusing to enforce the laws on the books. On average, only 1,600 unaccompanied children are removed each year; in 2013, there were over 20,000 detentions of unaccompanied children from Guatemala, Honduras, and El Salvador, but only 496 unaccompanied children from those countries were repatriated. Carroll, supra. The total number of unlawfully present children deported by the Obama Administration in 2013 was only 1,669—an 80 percent reduction from 2008. Brian Bennett, Deportation Data Won’t Dispel Rumors Drawing Migrant Minors to U.S., L.A. TIMES (July 5, 2014).
136. By fiscal year 2016, the number of unaccompanied children captured at the border spiked to nearly 60,000. See Press Release, United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016: Statement by Secretary Johnson on Southwest Border Security (Oct. 18, 2016), https://www.cbp.gov/newsroom/stats/southwest-borderunaccompanied-children/fy-2016.
137. Similarly, adults with children who are detained at the border are routinely released and allowed to travel within the United States. Carcamo, supra. And while they may be instructed to show up for a follow-up appointment, “ICE
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officials said they couldn’t guarantee that they would pursue all cases in which immigrants do not show up for follow-up appointments.” Id. Tellingly, the immigrants arrested for illegally entering the U.S. refer to ICE’s Notice to Appear documents as “permisos,” or permits. Byron York, On Immigrant Surge, White House Story Falls Apart, WASH. EXAMINER (June 16, 2014).
138. Unsurprisingly, the unlawfully present aliens crossing the border are motivated primarily by the belief that they will not be deported. The federal government’s own analysis demonstrates as much. When Border Patrol agents recently questioned 230 unlawfully present aliens about why they came, “[t]he results showed overwhelmingly that the immigrants, including those classified as . . . unaccompanied children, were motivated by the belief that they would be allowed to stay in the United States.” Id.
139. Multiple reports indicate that unlawfully present aliens are counting on federal officials for help in reuniting with their friends or family in the U.S. According to a June 2014 report, hundreds of Central American migrants were “turni n g themselves in to the Border Patrol” on a daily basis. Miroff & Partlow, supra. One unlawfully present alien stated that she and her group “had looked forward to being caught . . . at one point even waving down federal helicopters . . . because of the welcoming treatment they had assumed they would receive.” Carcamo, supra. Another planned to surrender to Border Patrol because she had heard “that the Americans are helping Hondurans right now,” especially women and children. Miroff & Partlow, supra. All of the 230 unlawfully present aliens interviewed by Border
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Patrol agents for their report “stated that they had family members or, to a lesser extent, friends already living in the U.S.” York, supra.
140. The Obama Administration conceded that its failure to enforce the federal immigration laws increased the flow of illegal immigration across the TexasMexico border. See Vitiello Memorandum, supra.
141. The effects of that failure have caused acute crises in Plaintiff States. V. Former President Obama “Change[d] the Law” Again—Through the
2014 DHS Memorandum Creating Expanded DACA and DAPA. 142. Between the unveiling of the 2012 DACA memorandum and the midterm elections in November 2014, former President Obama repeatedly stated that any extension of DACA would be unlawful and would have to be accomplished by legislation. He said, for instance:  “[A]s the head of the executive branch, there’s a limit to what I can do. . . .
[U]ntil we have a law in place that provides a pathway for legalization and/or citizenship for the folks in question, we’re going to . . . continue to be bound by the law.” President Barack Obama, Remarks at Univision Town Hall with Jorge Ramos and Maria Elena Salinas (Sept. 20, 2012), https://obamawhitehouse.archives.gov/the-pressoffice/2012/09/20/remarks-president-univision-town-hall-jorge-ramos-andmaria-elena-salina.  “We are a nation of immigrants. . . . But we’re also a nation of laws. So what I’ve said is we need to fix a broken immigration system. And I’ve done everything I can on my own.” President Barack Obama, Remarks at Second
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Presidential

Debate

(Oct.

16,

2012),

https://obamawhitehouse.archives.gov/the-press-

office/2012/10/17/remarks-president-and-governor-romney-second-

presidential-debate.

 In response to a question about the possibility of a moratorium on

deportations for non-criminals: “I’m not a king. I am the head of the

executive branch of government. I’m required to follow the law.” President

Barack Obama, Interview with Univision (Jan. 30, 2013),

http://abcnews.go.com/ABC_Univision/Politics/transcript-president-

barack-obama-interview-univisions-maria-elena/story?id=18365068.

 In response to the question whether he could do for “an undocumented

mother of three” what he did for DACA recipients: “I’m not a king. . . . [W]e

can’t simply ignore the law. When it comes to the dreamers– we were able

to identify that group . . . . But to sort through all the possible cases– of

everybody who might have a sympathetic story to tell is very difficult to do.

This is why we need comprehensive immigration reform. . . . [I]f this was

an issue that I could do unilaterally I would have done it a long time ago. .

. . The way our system works is Congress has to pass legislation. I then get

an opportunity to sign it and implement it.” President Barack Obama,

Interview

with

Telemundo

(Jan.

30,

2013),

http://nbclatino.com/2013/01/30/obama-tells-telemundo-he-hopes-for-

immigration-overhaul-within-6-months/.

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 “[T]his is something I’ve struggled with throughout my presidency. The problem is that . . . I’m the president of the United States. I’m not the emperor of the United States. . . . And what that means is that we have certain obligations to enforce the laws that are in place . . . . [W]e’ve kind of stretched our administrative flexibility as much as we can.” President Barack Obama, Remarks on Immigration Reform (Feb. 14, 2013), https://www.youtube.com/watch?v=-e9lmy_8FZM&feature=youtu.be.
 “I think that it is very important for us to recognize that the way to solve this problem has to be legislative. . . . And we’ve been able to provide help through deferred action for young people and students . . . . But this is a problem that needs to be fixed legislatively.” President Barack Obama, Interview with Univision (July 16, 2013), http://communicationsunivisionnews.tumblr.com/post/55694544539/univision-news-transcriptadriana-vargas.
 “[M]y job in the executive branch is supposed to be to carry out the laws that are passed. Congress has said ‘here is the law’ when it comes to those who are undocumented, and they’ve allocated a whole bunch of money for enforcement. . . . What we can do is then carve out the DREAM Act, saying young people who have basically grown up here are Americans that we should welcome. . . . But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option. . . . What I’ve said is . . . there’s a path to get
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this done, and that’s through Congress.” President Barack Obama,

Interview

with

Telemundo

(Sept.

17,

2013),

https://www.realclearpolitics.com/video/2013/09/17/obama_halting_deport

ations_not_an_option_would_be_ignoring_the_law.html (emphasis added).

 “[I]f, in fact, I could solve all these problems without passing laws in

Congress, then I would do so. But we’re also a nation of laws. That’s part of

our tradition. And so the easy way out is to try to yell and pretend like I can

do something by violating our laws. And what I’m proposing is the harder

path, which is to use our democratic processes to achieve the same goal that

you want to achieve.” President Barack Obama, Remarks on Immigration

Reform in San Francisco, California (Nov. 25, 2013),

https://obamawhitehouse.archives.gov/the-press-

office/2013/11/25/remarks-president-immigration-reform-san-francisco-ca.

 “[W]hat I’ve said in the past remains true, which is until Congress passes a

new law, then I am constrained in terms of what I am able to do. What I’ve

done is to use my prosecutorial discretion . . . . What we’ve said is focus on

folks who are engaged in criminal activity, focus on people who are engaged

in gang activity. Do not focus on young people, who we’re calling DREAMers

. . . . That already stretched my administrative capacity very far. But I was

confident that that was the right thing to do. But at a certain point the

reason that these deportations are taking place is, Congress said, [‘]you

have to enforce these laws.[’] They fund the hiring of officials at the

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department that’s charged with enforcing. And I cannot ignore those laws

any more than I could ignore, you know, any of the other laws that are on

the books.” President Barack Obama, Interview with Univision (Mar. 6,

2014),

http://communications-

univisionnews.tumblr.com/post/79266471431/univision-news-transcript-

interview-with (emphasis added).

143. Former President Obama repeatedly called on Congress to pass an

immigration reform bill. Congress did not do so.

144. After being rebuffed by Congress again, former President Obama

announced that he would unilaterally create a program conferring lawful presence

and work authorizations for an additional estimated 4 million unlawfully present

aliens.

145. On November 20, 2014, former DHS Secretary Johnson issued the

DAPA memo creating Expanded DACA and DAPA. See Texas, 809 F.3d at 146-48;

Exhibit 3.

146. Like the DACA memo, the DAPA memo again created a class-based

deferred-action program—that confers eligibility for lawful presence and work

authorization—without congressional authorization or notice-and-comment

procedure.

147. The DAPA memo first expanded the class eligible for DACA relief by:

(1) eliminating the DACA criteria’s age cap, (2) increasing the DACA term from two

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years to three years, and (3) pushing the DACA date-of-entry deadline from 2007 to 2010. Exhibit 3 at 3-4.
148. The DAPA memo then directed USCIS “to establish a process, similar to DACA,” for granting three-year terms of deferred action to a new class of aliens: unlawfully present aliens who were parents of United States citizens and other lawful permanent residents who were not enforcement priorities. Id. at 4.
149. Together, the coverage criteria for DAPA and Expanded DACA would have covered approximately 40% of the country’s known population of unlawfully present aliens.
150. The 2014 DAPA and Expanded DACA—like the original 2012 DACA— did not merely forbear from removing aliens who qualified. All three affirmatively granted lawful presence and eligibility for work authorization to those who would otherwise be unlawfully present and unauthorized to work.
151. The November 20, 2014 DAPA memo stated that “[t]his memorandum confers no . . . pathway to citizenship.” Id. at 5.
152. The DAPA memo stated that “deferred action . . . may be terminated at any time at the agency’s discretion.” Id. at 2.
153. Former President Obama candidly admitted that his plan, through these programs, was unilateral legislation: “What you’re not paying attention to is, I just took an action to change the law.” Steven T. Dennis, Obama on Immigration: “I Just Took an Action to Change the Law,” ROLL CALL (Nov. 25, 2014) (emphasis added),
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http://www.rollcall.com/news/home/immigration-reform-news-obama-immigrationaction-law.
154. Former President Obama further admitted that he was changing the law because Congress chose not to: “[T]o those members of Congress who question my authority to make our immigration system work better . . . I have one answer: Pass a bill. . . . And the day I sign that bill into law, the actions I take will no longer be necessary.” President Barack Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014), https://obamawhitehouse.archives.gov/thepress-office/2014/11/20/remarks-president-address-nation-immigration.
155. Former President Obama also made clear that he was “offer[ing] the following deal” to unlawfully present aliens: “[I]f you’ve taken responsibility, you’ve registered, undergone a background check, you’re paying taxes, you’ve been here for five years, you’ve got roots in the community—you’re not going to be deported. . . . If you meet the criteria, you can come out of the shadows, you can get right with the law.” President Barack Obama, Remarks by the President on Immigration (Nov. 21, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/11/21/remarkspresident-immigration.
156. Through the creation of Expanded DACA and DAPA, the Obama Administration again dispensed with certain of the Nation’s immigration laws without congressional approval.
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VI. Courts Rule that Expanded DACA and DAPA are Unlawful, Stopping Former President Obama’s Unlawful Executive Overreach. 157. On December 3, 2014, Plaintiffs and other States filed a lawsuit in this
district court seeking to immediately halt the implementation of Expanded DACA and DAPA.
158. On February 16, 2015, the district court granted the requested relief and issued a preliminary injunction of Expanded DACA and DAPA. In its opinion, the district court explained, despite the Defendants’ claims to the contrary, that the plaintiffs were likely to succeed on the merits of their claim and that they would suffer irreparable harm if Expanded DACA and DAPA went into effect. Texas, 86 F. Supp. 3d at 671-72, 674.
159. The Defendants issued Expanded DACA permits both before and after the district court entered the preliminary injunction of the 2014 memorandum. Texas v. United States, No. 1:14-cv-254, 2016 WL 3211803 (S.D. Tex. May 19, 2016).
160. The district court, see Texas v. United States, No. 1:14-cv-254, 2015 WL 1540022, at *8 (S.D. Tex. Apr. 7, 2015), and the Fifth Circuit, Texas v. United States, 787 F.3d 733, 769, 784 (5th Cir. 2015), denied a stay of the preliminary injunction.
161. The Defendants appealed from the district court’s preliminary injunction. The Fifth Circuit affirmed, finding that the plaintiffs had standing to challenge the Executive’s class-based deferred-action programs that grant lawful presence and work authorization, that such programs are judicially reviewable, that Expanded DACA and DAPA were unlawful both procedurally (as promulgated without notice and comment) and substantively (as foreclosed by substantive federal
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statutes), and that the plaintiffs satisfied the equitable requirements for a preliminary injunction. Texas, 809 F.3d at 150-88.
162. On June 23, 2016, the Supreme Court affirmed the Fifth Circuit’s judgment by an equally divided Court. Texas, 136 S. Ct. 2271. VII. On June 15, 2017, DHS Secretary Kelly Rescinded the 2014 DAPA and
Expanded DACA Memo, But the Secretary Left in Effect the 2012 DACA Program and Some Expanded DACA Permits Granted Under the Rescinded 2014 Memo. 163. On July 18, 2016, the Defendants filed a petition for rehearing in the Supreme Court. The parties to the DAPA litigation agreed to continue to stay all merits proceedings before the district court until the Supreme Court ruled on the petition. Texas, No. 1:14-cv-254 (S.D. Tex. Aug. 31, 2016) (Text Order). 164. On October 3, 2016, the Supreme Court denied the Defendants’ petition for rehearing. United States v. Texas, 137 S. Ct. 285 (2016). 165. On November 18, 2016, the parties to the DAPA lawsuit filed a joint motion to stay the merits proceedings until February 20, 2017, to allow the new Presidential Administration time to consider its position. Joint Motion to Stay Merits Proceedings, Texas, No. 1:14-cv-254 (S.D. Tex. Nov. 18, 2016), ECF No. 430. 166. On January 19, 2017, the district court granted a stay of merits proceedings in the DAPA litigation until March 17, 2017. Texas, No. 1:14-cv-254 (S.D. Tex. Jan. 19, 2017) (Order), ECF No. 435. 167. On March 17, 2017, the Defendants filed another unopposed motion to stay district court proceedings in the DAPA lawsuit—this time seeking until June 15, 2017 to propose a scheduling order. Unopposed Motion to Stay Merits Proceedings,
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Texas, No. 1:14-cv-254 (S.D. Tex. Mar. 17, 2016), ECF No. 438. 168. On March 22, 2017, the district court granted the stay of the DAPA
litigation and ordered the parties to propose a discovery schedule by June 15, 2017. Texas, No. 1:14-cv-254 (S.D. Tex. Mar. 22, 2017) (Order), ECF No. 439.
169. On June 15, 2017, the Defendants again requested a two-week stay of merits proceedings in the DAPA lawsuit. Unopposed Motion to Stay Merits Proceedings, Texas, No. 1:14-cv-254 (S.D. Tex. June 15, 2017), ECF No. 444.
170. On that same date—June 15, 2017—former DHS Secretary Kelly issued a new memorandum “rescind[ing] the November 20, 2014 DAPA memorandum and the policies announced therein.” Exhibit 5 at 2.
171. Secretary Kelly added that “[t]he June 15, 2012 DACA memorandum, however, will remain in effect.” Id.
172. Secretary Kelly also explained that his memorandum did “not alter the remaining periods of deferred action under the Expanded DACA policy granted between issuance of the November 20, 2014 Memorandum and the February 16, 2015 preliminary injunction order in the Texas litigation, nor does it affect the validity of related Employment Authorization Documents (EADs) granted during the same span of time.” Id. at 2 n.3.
173. Secretary Kelly “remind[ed] [USCIS] officers that (1) deferred action, as an act of prosecutorial discretion, may only be granted on a case-by-case basis.” Id.
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174. This reminder echoes the DACA memo language that the district court found pretextual in Texas’s challenge to DAPA and Expanded DACA. See Texas, 86 F. Supp. 3d at 669 n.101. VIII. On September 5, 2017, DHS Withdrew the 2012 DACA Memorandum in
Response to an Imminent Legal Challenge Threatened by Plaintiffs and Other States. 175. On June 29, 2017, Texas Attorney General Ken Paxton, the attorneys general of nine other states (including Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia), and the governor of Idaho sent a letter to the federal Executive Branch urging the Trump Administration to phase out DACA. See Exhibit 6. 176. Plaintiffs’ June 29, 2017 letter requested “that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future.” Id. at 2. 177. Plaintiffs’ letter explained how DACA is unlawful under the Fifth Circuit’s decision in Texas. Id. at 1-2. 178. Plaintiffs’ letter proposed a resolution of the then-pending lawsuit, and avoiding additional litigation relating to DACA: “If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or Expanded DACA permits in the future, then the plaintiffs that successfully challenged DAPA and Expanded DACA will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas. Otherwise,
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the complaint in that case will be amended to challenge both the DACA program and

the remaining Expanded DACA permits.” Id. at 2.

179. On September 4, 2017, United States Attorney General Sessions wrote

the DHS Acting Secretary, advising that DHS should rescind DACA. Letter from

Attorney

General

Sessions

to

Acting

Secretary

Duke,

https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-

DACA.pdf.

180. Attorney General Sessions noted that “DACA was effectuated by the

previous administration through executive action, without proper statutory authority

and with no established end-date, after Congress’ repeated rejection of proposed

legislation that would have accomplished a similar result.” Id.

181. Attorney General Sessions advised: “Because the DACA policy has the

same legal and constitutional defects that the courts recognized as to DAPA, it is

likely that potentially imminent litigation would yield similar results with respect to

DACA.” Id.

182. On September 5, 2017, United States Attorney General Sessions

publicly announced that DHS would rescind the 2012 DACA memorandum. U.S.

Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5,

2017),

https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-

remarks-daca.

183. During his remarks, Attorney General Sessions stated that by

implementing DACA the Obama Administration had “deliberately sought to achieve

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what the legislative branch specifically refused to authorize on multiple occasions” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id.
184. Attorney General Sessions further explained that DACA was “vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program” and that if DHS decided to maintain DACA, “the likeliest outcome is that it would be enjoined just as was DAPA.” Id.
185. Attorney General Sessions also observed that “[t]he effect of [DACA], among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.” Id.
186. On September 5, 2017, DHS issued a memorandum rescinding the 2012 DACA memorandum. See Exhibit 7.
187. The September 2017 memorandum initiated the DACA wind-down process. The memorandum provided that DHS would “adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of [September 5, 2017], 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 5.
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188. The September 2017 memorandum allowed for the orderly phase-out of DACA.
189. DHS’s September 2017 memorandum and the impending wind-down of DACA thus satisfied the condition proposed by Plaintiffs’ June 29, 2017 letter for ending the then-pending lawsuit and avoiding additional litigation regarding DACA.
190. The Plaintiffs therefore did not file an amended complaint challenging DACA in September 2017.
191. Instead, the parties to the then-pending DAPA/Expanded DACA lawsuit filed a stipulation of dismissal on September 12, 2017, in that suit. Stipulation of Dismissal, Texas, No. 1:14-cv-254 (S.D. Tex. Sept. 12, 2017), ECF No. 473, IX. Following the September 2017 Memorandum, Numerous Parties Seek
to Halt the Recession of DACA—Acknowledging, in the Process, that DACA Was Never Lawful. 192. Following DHS’s September 2017 DACA rescission memorandum, lawsuits were filed claiming that the decision to rescind DACA was itself unlawful. Five of these actions were filed in the U.S. District Court for the Northern District of California, and at least four other lawsuits were filed in other federal district courts. See Complaint, Trs. of Princeton Univ. v. United States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017), ECF No. 1; Complaint, NAACP, No. 1:17-cv-1907 (D.D.C. Apr. 24, 2018), ECF No. 1; 2d Am. Complaint, Vidal v. Nielsen, No. 1:16-cv-4756 (E.D.N.Y. Sept. 29, 2017), ECF No. 29; Complaint, New York v. Trump, No. 1:17-cv-5228 (E.D.N.Y. Sept. 6, 2017), ECF No. 1.
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193. In those challenges to the 2017 executive action, the plaintiffs’ own pleadings essentially concede that DACA itself was unlawful because—as Plaintiff States allege in this suit—it was a substantive rule that modified rights and was thus required to go through APA notice-and-comment procedures.
194. For example, in a challenge brought by the University of California, the plaintiffs claim that the September 2017 rescission memorandum “constitutes a substantive rule subject to APA’s notice-and-comment requirements.” Complaint 14, Regents of Univ. of Cal. v. Dep’t of Homeland Sec., No. 3:17-cv-5211 (N.D. Cal. Sept. 8, 2017), ECF No. 1. This statement could be true only if DACA, the program being rescinded, was itself a substantive rule.
195. The University of California plaintiffs further admit that DACA unilaterally modified rights by conferring 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. Id. at 8. 196. In the same litigation, the State of California concedes that “DACA Provides Numerous Benefits,” which they describe in detail: 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 under certain circumstances, such as to visit an ailing relative, attend funeral services for a family member, seek medical treatment, or further educational or employment purposes. 8 U.S.C. § 1182(a)(9)(B)(i); see also Ex. E,
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USCIS, Frequently Asked Questions, DHS DACA FAQs (“DACA FAQs”) (Apr. 25, 2017) Q57. Travel for vacation is not permitted.
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). As a result, and in reliance on DHS’s oft-stated position that DACA and similar programs are a lawful exercise of the agency’s authority, Plaintiff States have structured some schemes around DACA which allow, for example, applicants to demonstrate eligibility for state programs by producing documentation that they have been approved under DACA. The rescission of DACA undermines such regulatory frameworks.
86. DACA grantees are able to secure equal access to other benefits and opportunities on which Americans depend, including opening bank accounts, obtaining credit cards, starting businesses, purchasing homes and cars, and conducting other aspects of daily life that are otherwise often unavailable for undocumented immigrants.
Complaint at 17-18, California v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-5235 (N.D.
Cal. Sept. 11, 2017), ECF No. 1 (emphases added).
197. In the New York lawsuit, the plaintiffs similarly allege that DACA
affirmatively confers benefits—that is, that DACA alters substantive rights:
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 during the time period their deferred action is in effect. See Ex. 14, Question 9. . . . .
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). In the State of Washington, DACA holders also are eligible for certain state financial aid programs and state-funded food assistance. See Wash. Rev. Code § 28B.92.010; Wash. Admin.
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Code §§ 388-400-0050, 388-424-0001, 388-424-0030. In the State of New York, DACA holders are eligible for teaching and nursing licenses. See Comm. of Educ. Regs. §§ 59.4; 80-1.3; Ex. 78 (NYS Board of Regents Press Release, Feb. 24, 2016). Complaint at 41, New York, No. 1:17-cv-5228, ECF No. 1 (emphases added). 198. Like the California plaintiffs, the New York plaintiffs have likewise tacitly admitted that DACA was a substantive rule because it modified rights: 289. In implementing the DHS Memorandum, federal agencies have changed the substantive criteria by which individuals 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. 199. If DACA’s rescission affected substantial rights, as the challengers to DHS’s September 2017 memorandum claim, then DACA also affected substantial rights and was unlawful in the first place as alleged in the instant lawsuit. X. The Northern District of California Enjoins DHS’s Wind-Down of DACA. 200. On January 9, 2018, the U.S. District Court for the Northern District of California issued an injunction in the challenge brought by the University of California and other plaintiffs to the 2017 executive action rescinding DACA. See Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018). The Northern District of California ordered DHS, “pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5,
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2017, including allowing DACA enrollees to renew their enrollments,” subject to several exceptions. See id. at 1048-49.
201. The Northern District of California’s order stated that “new applications from applicants who have never before received deferred action need not be processed.” Id. at 1048.
202. The Northern District of California further indicated that “the advance parole feature need not be continued for the time being for anyone,” id., and that this injunction order “will not require advance parole,” id. at 1049.
203. The Northern District of California concluded that DHS “may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.” Id. at 1048.
204. DHS also was ordered to “post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with” the Northern District of California’s order. Id.
205. On April 24, 2018, the U.S. District Court for the District of Columbia issued an order in the challenge brought by the NAACP and other plaintiffs to the 2017 executive action rescinding DACA. See NAACP, 2018 WL 1920079, at *1-28. The district court ordered that it would “vacate the Department’s September 5, 2017 decision to rescind the DACA program” and “grant plaintiffs’ motion for partial summary judgment as to their substantive APA claim.” Id. at *28.
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206. The district court found that the “[v]acatur of DACA’s rescission will mean that DHS must accept and process new as well as renewal DACA applications.” Id. at *1.
207. The District of Columbia district court stated that it would “stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful.” Id. at *28.
208. The Northern District of California’s injunction of the Executive’s 2017 decision to wind down DACA and the District of Columbia’s vacatur of the wind-down decision forced this lawsuit to declare whether the Executive had authority to promulgate DACA in the first place. Because DACA is still in effect, the basis upon which Plaintiffs agreed to resolve the prior litigation has been frustrated, and Plaintiffs therefore effectuate their previously stated plans “to challenge both the DACA program and [any] remaining Expanded DACA permits.” Exhibit 6 at 2.
THEORIES OF RELIEF 209. Because permits issued under the Executive’s unlawful class-based “deferred action” programs created by the former Presidential Administration remain in existence, Plaintiffs file this Complaint challenging those unlawful acts. 210. DACA is unlawful for the same reasons that courts held Expanded DACA and DAPA unlawful: The Executive does not have the unilateral power to confer eligibility for lawful presence or work authorization on unlawfully present aliens simply because the Executive chooses not to remove them. See Texas, 809 F.3d at 179-81.
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211. But for the Executive’s implementation of DACA, aliens covered by that program would not be eligible for lawful presence, and would be removable under the INA.
212. But for the Executive’s implementation of DACA, aliens covered by that program would not be eligible for work authorization.
213. But for the Executive’s implementation of the program, many DACA recipients would not be eligible for lawful-permanent-resident status by obtaining advance parole.
214. But for the Executive’s implementation of the program, many DACA recipients would not be eligible for United States citizenship by obtaining advance parole.
215. Thus, Plaintiffs challenge, at a minimum, (1) the 2012 DACA memo issued by former Secretary Napolitano, (2) the implementation of that 2012 DACA memo, (3) the part of former Secretary Kelly’s June 2017 memo retaining the 2012 DACA memo, and (4) any DACA permits that remain in effect.
216. On belief, no three-year Expanded DACA permits currently remain in effect or will be issued, because such three-year permits were last issued on or before March 2015 (over three years ago) and have not been renewed since that time because of this Court’s February 2015 preliminary injunction of Expanded DACA and the Executive Branch’s later June 2017 memorandum rescinding Expanded DACA.
217. If that belief regarding Expanded DACA permits is incorrect, however, Plaintiffs also challenge (1) any part of former Secretary Johnson’s 2014 memo
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creating Expanded DACA that may remain in effect when combined with former Secretary Kelly’s June 2017 memo retaining a subset of previously granted Expanded DACA permits, (2) the part of former Secretary Kelly’s June 2017 memo retaining a subset of previously granted Expanded DACA permits, and (3) any Expanded DACA permits that remain in effect. All arguments below concerning DACA equally apply to Expanded DACA.
218. DACA violates the APA’s notice-and-comment requirements, is contrary to law under the APA, and violates the Take Care Clause. I. The Plaintiffs Have Standing.
219. The Plaintiff States have standing because they have a “personal stake” in the outcome of this litigation. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014).
220. The Plaintiff States have suffered, and will continue to suffer, concrete injuries that are traceable to DACA, and an injunction of DACA will redress those injuries.
221. DACA imposes significant costs on Plaintiff States. As the Supreme Court has explained, States “bear[] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397.
222. Only one plaintiff needs standing for an Article III case or controversy to exist. See Texas, 809 F.3d at 151 (citing Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)).
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223. Once a concrete injury is shown, the magnitude of that injury is irrelevant to the standing inquiry. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 52526 (2007).
224. Both the district court and the Fifth Circuit already have concluded that Plaintiff States have standing to challenge the Executive’s unilateral actions conferring class-based deferred action to grant lawful presence and work authorizations.
225. DACA’s conferral of lawful presence triggers eligibility for benefits— some of which are paid for by Plaintiff States. Id. at 148-49 (explaining lawful presence status qualifies recipients for Social Security, disability benefits, Medicare, work authorization, unemployment benefits, and driver’s licenses).
226. If Plaintiff States sought to change their benefits programs to prevent DACA recipients from being eligible, Plaintiff States would be threatened with federal preemption through the operation of DACA as it relates to their benefits programs. The Ninth Circuit enjoined—as preempted by federal law—Arizona’s state law that prevented the State of Arizona from issuing driver’s licenses to DACA recipients. Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 975 (9th Cir. 2017), cert. denied, 138 S. Ct. 1279 (2018). The Ninth Circuit purported to rest its ruling on the basis that the INA’s alien classifications preempted Arizona’s law, id., and that is just another way of ruling that DACA is lawful and its lawful-presence designation is lawful as consonant with the INA. DACA’s lawful-presence designation, in turn, is what the Ninth Circuit held preempted Arizona’s law. After all, without the DACA
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program, DACA recipients would not be deemed lawfully present. The Plaintiff States’ benefits programs are threatened by such alleged preemption, thus representing an injury imposed by DACA.
227. Other financial injuries to Plaintiff States are caused by DACA’s granting of lawful presence and work authorization. For instance, federal work authorization functions as a precondition for certain professional licenses in Plaintiff States. See, e.g., 16 Tex. Admin. Code § 33.10 (requiring applicants for an alcoholic beverage license to be “legally authorized to work in the United States”); Tex. Bd. of Law Exam’rs, Rules Governing Admission to the Bar of Tex., R. II(a)(5)(J) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).
228. Additionally, Plaintiff States have incurred considerable financial injuries on education, healthcare, and law-enforcement costs caused by DACA.
229. The Plaintiff States would not otherwise incur certain costs associated with education, healthcare, and law enforcement but for DACA. See Texas, 86 F. Supp. 3d at 628-30.
230. DACA incentivizes aliens—who would otherwise be unlawfully present and unauthorized to work without these programs—to remain in the country. Id. at 634-35.
231. Because additional aliens will remain in Plaintiff States, those aliens will cause Plaintiff States to incur additional financial costs—particularly education, healthcare, and law-enforcement costs.
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232. States are required by federal law to incur some of these costs. For example, the Supreme Court has held that States are constitutionally obligated to provide free education to children of unlawfully present aliens. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of lawful-presence status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.255.
233. As the district court found in Plaintiffs’ challenge to DAPA and Expanded DACA, Texas pays about $9,473 per year to educate each unlawfully present alien in its school system. See Texas, 86 F. Supp. 3d at 630.
234. In a single year, “Texas absorbed additional education costs of at least $58,531,100 stemming from illegal immigration.” Id.
235. Other expenditures are required by preexisting state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Tex. Health & Safety Code §§ 61.001 et seq. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See id. § 311.043. “Evidence in the record . . . shows that in 2008, Texas incurred $716,800,000 in uncompensated medical care provided to illegal aliens.” Texas, 86 F. Supp. 3d at 630.
236. Other States besides Texas have similar financial injuries caused by DACA.
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237. Under the Article III standing inquiry, courts do not examine whether financial injuries incurred are “offset” by other policies reducing other expenditures. Texas, 809 F.3d at 155-56.
238. So any hypothetical financial gains to Plaintiff States caused by DACA are irrelevant for determining whether Plaintiff States have standing.
239. Moreover, Plaintiff States have parens patriae standing to protect the quasi-sovereign interest in “the health and well-being” of their citizens. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).
240. Specifically, Plaintiff States seek to protect their citizens’ “economic and commercial interests” from labor-market distortion caused by the continued existence of DACA. Id.at 609.
241. The Plaintiff States seek the enforcement of federal law “to assure [their] residents that they will have the full benefit of federal laws designed to address th[e] problem” of illegal immigration and labor-market distortion. Id. at 609-10.
242. The Plaintiff States also possess “special solicitude” in the Article III standing analysis under Massachusetts v. EPA, 549 U.S. at 520. See Texas, 809 F.3d at 151.
243. The Plaintiff States do not need special solicitude to establish standing, but Massachusetts v. EPA’s special solicitude makes standing an easy question.
244. Just as the Supreme Court found in Massachusetts v. EPA, the federal government here has “abdicated its responsibility” to enforce federal statutes. Texas,
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86 F. Supp. 3d at 663 (“DAPA does not represent mere inadequacy; it is complete abdication.”).
245. The Plaintiff States face a more certain risk of harm than the state plaintiffs who had standing in Massachusetts v. EPA. Id. at 629; see Texas, 809 F.3d at 159 (“Texas is entitled to the same ‘special solicitude’ as was Massachusetts, and the causal link is even closer here.”).
246. The Plaintiff States also seek to vindicate a procedural right—namely, the right to be heard under the APA’s notice-and-comment procedures.
247. Separately, Plaintiff States have standing to challenge federal agency action that dispenses with congressional enactments when those congressional enactments preempt state prerogatives.
248. A State is “an institutional plaintiff.” Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015).
249. An “institutional plaintiff” has standing when it suffers a mere “institutional injury.” Id.
250. An “institutional injury” includes when a government’s powers are “strip[ped]” or “nullif[ied].” Id. at 2663, 2665.
251. When a federal statute preempts state prerogatives, the State’s powers are stripped or nullified.
252. “When a State enters the Union, it surrenders certain sovereign prerogatives” that become “lodged in the Federal Government.” Massachusetts v. EPA, 549 U.S. at 519.
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253. A State’s agreement to have its authority preempted on such sovereign matters—for instance, determining the citizenship or lawful presence of individuals within its borders—is premised on the understanding that Congress’s enactments serve to “protect” the States. Id.
254. Due to the preemption of their sovereign prerogatives, States also have a “quasi-sovereign,” if not purely sovereign, interest in the enforcement of federal laws that preempt surrendered prerogatives. Id. at 520.
255. When the Executive Branch “has abdicated its responsibility under [federal statutes],” it negates the basis on which the States agreed to allow federal preemption of their sovereign prerogatives. Id. at 505.
256. States therefore also have “abdication standing” to challenge federal Executive agency action that dispenses with statutes passed by Congress when those statutes preempt state prerogatives. Texas, 86 F. Supp. 3d at 636-43.
257. The Plaintiff States thus have standing to maintain all their claims. II. This Action Is Timely.
258. The Plaintiff States have commenced this action within the applicable limitations periods.
259. “Unless another statute provides otherwise, civil claims against the United States—including those brought pursuant to the APA—are subject to the statute of limitations contained in 28 U.S.C. § 2401.” Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014) (addressing, inter alia, APA notice-and-comment claim).
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260. Under this provision, a party must commence an action within six years of the right of action accruing. 28 U.S.C. § 2401(a).
261. Congress has not adopted a special statute of limitations for the type of claims Plaintiff States bring herein.
262. The Plaintiff States commenced this action within six years of the promulgation of DACA.
263. The Plaintiff States commenced this action within six years of the implementation of DACA.
264. The Plaintiff States’ request for injunctive relief preventing the Executive from renewing or issuing any new DACA permits in the future is not barred by any statute of limitations. III. The Plaintiff States’ Interests Are At Least Arguably Within the Zone
of Interests Protected by Immigration Statutes and the APA. 265. The Plaintiff States’ interests are at least arguably within the zone of interests protected by immigration statutes. See Texas, 809 F.3d at 163. 266. The Plaintiff States’ interests are arguably within the zone of interests protected by the APA. IV. DACA Is Reviewable Agency Actions. 267. The creation of DACA—and its conferral of lawful presence and work authorization—is affirmative agency action, not mere enforcement-discretion inaction. Id. at 166-67. 268. This lawsuit does not challenge the DHS Secretary’s separate February 20, 2017 memorandum setting immigration enforcement priorities. Memorandum
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from John Kelly, Secretary, DHS, to Kevin McAleenan, Acting Comm’r, CBP, et al, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-ofthe-Immigration-Laws-to-Serve-the-National-Interest.pdf.
269. This lawsuit does not challenge the Executive’s “discretion to abandon” the “initiation or prosecution of various stages in the deportation process.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999).
270. Deferred action under DACA “is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Texas, 809 F.3d at 166.
271. “Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” Id. at 167.
272. In contrast to enforcement discretion, DACA confers eligibility for a change in immigration classification that triggers eligibility for attendant benefits.
273. The Defendants unilaterally deem DACA recipients “lawfully present.” 274. The congressional-created classification of “lawful presence” confers eligibility for Social Security, Medicare, the Earned Income Tax Credit, a driver’s license, and a host of other benefits. 275. DACA also unilaterally confers the ability to obtain work authorization. 276. DACA has even provided some recipients with United States citizenship or a pathway to citizenship.
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277. Justice Scalia correctly explained that DACA cannot be justified as mere nonenforcement discretion: “the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement.” Arizona, 567 U.S. at 435 (Scalia, J., concurring in part and dissenting in part) (emphasis in original).
278. The Defendants cannot identify any “clear and convincing evidence of legislative intention to preclude review” of DACA. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986).
279. The Defendants have indicated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Pet. Br. at 5, supra, 2016 WL 836758, at *5.
280. “Revocability, however, is not the touchstone for whether agency . . . action is reviewable.” Texas, 809 F.3d at 167. V. DACA Is Unlawful.
A. DACA Is Unlawful Because It Was Issued Without the Required APA Notice-and-Comment Procedure.
281. DACA is a substantive rule, not exempt from the Administrative Procedure Act’s notice-and-comment requirements as an interpretive rule, as a general statement of policy, or as a rule of agency organization, procedure, or practice, 5 U.S.C. § 553(b)(A). See Texas, 809 F.3d at 171-78.
282. No exceptions to the APA’s notice-and-comment requirements are applicable to DACA.
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283. DACA, Expanded DACA, and DAPA are some of the largest immigration policy changes in our Nation’s history.
284. The APA requires this Court to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
285. DHS is an “agency” under the APA. Id. § 551(1). 286. The memorandum creating (or continuing) DACA is a “rule” under the APA. Id. § 551(4). 287. The DACA memorandum required notice-and-comment procedure because it is a binding rule. 288. DACA required notice-and-comment procedure because it modifies substantive rights and interests, as it confers on recipients a legal status (lawful presence) and eligibility for attendant benefits. See Texas, 809 F.3d at 176. 289. Additionally, DACA required notice-and-comment procedure because it does not genuinely leave the agency and its decisionmaker free to exercise discretion. 290. As the district court found in the DAPA lawsuit, “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion.’” Id. at 171-72 & n.127 (quoting Texas, 86 F. Supp. 3d at 670 (emphasis and second alteration in district court opinion)). 291. In the DAPA lawsuit, the district court’s finding regarding the lack of genuine discretion afforded to USCIS and its employees under DAPA “was partly informed by analysis of the implementation of DACA, the precursor to DAPA.” Id. at 172 & n.128 (citing Texas, 86 F. Supp. 3d at 669-70).
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292. “Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were ‘merely pretext’ . . . .” Id. at 172 & n.129 (quoting Texas, 86 F. Supp. 3d at 669 n.101).
293. As the Fifth Circuit recognized, “only about 5% of the 723,000 [DACA] applications accepted for evaluation [through the end of 2014] had been denied.” Id. at 172 & n.130 (citing Texas, 86 F. Supp. 3d at 609).
294. As the Fifth Circuit explained, “‘[d]espite a request by the [district] [c]ourt, the [g]overnment’s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria.’” Id. at 172 & n.131 (quoting Texas, 86 F. Supp. 3d at 609 (alterations in Fifth Circuit opinion)).
295. The district court’s “finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that ‘DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria.’” Id. at 172-73 & n.132 (quoting Texas, 86 F. Supp. 3d at 60910).
296. The district court’s “finding of pretext was also based on . . . DACA’s Operating Procedures, which ‘contain[] nearly 150 pages of specific instructions for granting or denying deferred action.’” Id. at 172-73 & n.133 (quoting Texas, 86 F. Supp. 3d at 669 (alteration in Fifth Circuit opinion)).
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297. DACA “[d]enials are recorded in a ‘check the box’ standardized form, for which USCIS personnel are provided templates.” Id. at 175 (quoting Texas, 86 F. Supp. 3d at 669 (alteration in Fifth Circuit opinion)).
298. “Certain denials of [DACA] must be sent to a supervisor for approval[, and] there is no option for granting [DACA] to an individual who does not meet each criterion.” Id. (quoting Texas, 86 F. Supp. 3d at 669 (alteration in Fifth Circuit opinion)).
299. “‘[R]outing [DACA] applications through service centers instead of field offices . . . created an application process that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers’ and ‘prevents officers from conducting case-by-case investigations, undermines officers’ abilities to detect fraud and national-security risks, and ensures that applications will be rubberstamped.’” Id. (quoting Texas, 86 F. Supp. 3d at 609-10 (alteration and omission in Fifth Circuit op.)); see Decl. of Kenneth Palinkas ¶ 10, Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 64-42.
300. DACA relief confers a stamp of approval from the government and encodes a substantive value judgment. See Texas, 809 F.3d at 176-77.
301. DACA does not clearly and directly relate to “public benefits” as that term is used in 5 U.S.C. § 553(a)(2), because the agency administering DACA (USCIS) is not an agency managing benefit programs, much less the kind of public benefit that has been recognized under § 553(a)(2). See Texas, 809 F.3d at 178.
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302. Although OLC cautioned the Executive that it was “critical” to DACA’s legality that the Executive Branch evaluate every application on a case-by-case basis, Exhibit 4 at 18 n.8, the President and DHS ignored that advice by granting deferred action mechanically to all applicants who satisfy the threshold criteria specified in the DACA memo.
303. DHS officials who implement the DACA program exercise, in practice, effectively no discretion to deny DACA to applicants who meet the eligibility criteria in the DACA memo and the administrative application requirements, such as a background check and application fee.
B. DACA Is Contrary to Law, Because It Violates Congressional Statutes.
304. DACA is contrary to law because it is “not authorized by statute,” Texas, 809 F.3d at 184, and is “foreclosed by Congress’s careful plan,” id. at 186.
305. The APA requires this Court to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
306. “In specific and detailed provisions, the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.” Texas, 809 F.3d at 179.
307. “Entirely absent from those specific classes is the group of . . . illegal aliens who would be eligible for lawful presence under” DACA. Id.
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308. “The INA also specifies classes of aliens eligible and ineligible for work authorization.” Id. at 180-81 (footnotes omitted).
309. Federal statutes defining which aliens are eligible for work authorization make “no mention of the class of persons whom” DACA “would make eligible for work authorization.” Id. at 181.
310. “[T]he INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them eligible for a host of federal and state benefits, including work authorization.” Id. at 184.
311. “[H]istorical practice . . . ‘does not, by itself, create power.’” Id. at 184 & n.193 (quoting Medellin v. Texas, 552 U.S. 491, 532 (2008)).
312. “[I]n any event, previous deferred-action programs are not analogous to [DACA].” Id. at 184.
313. “[M]any of the previous programs were bridges from one legal status to another, whereas [DACA] awards lawful presence to persons who have never had a legal status and may never receive one.” Id. (footnotes omitted).
314. DACA has even provided some recipients with United States citizenship or a pathway to citizenship—without any statutory authorization to do so from Congress.
C. DACA Violates the Take Care Clause. 315. DACA violates the Take Care Clause because it dispenses with certain immigration statutes by declaring as lawful conduct that Congress established as unlawful.
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316. DACA violates the Take Care Clause because it dispenses with certain immigration statutes by granting United States citizenship or a pathway to citizenship to aliens who would otherwise be unlawfully present but for DACA.
317. The Take Care Clause has its roots in the dispute between Parliament and King James II, who was overthrown in the Glorious Revolution of 1688. Parliament was infuriated at King James’s use of his purported power to suspend or dispense with Parliament’s laws. Zachary Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 676, 690-91 (2014). The subsequent monarchs, William and Mary, agreed to the English Bill of Rights, which stripped the monarchy of all suspending and dispensing authority. See English Bill of Rights of 1689, art. 1.
318. The Framers of the U.S. Constitution unanimously rejected a proposal to grant dispensing powers to the President.
319. The Supreme Court has held that the Take Care Clause does not grant the President a power to dispense with statutes: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the [C]onstitution, and entirely inadmissible.” Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838). Any other conclusion would “vest[] in the President a dispensing power.” Id.
320. DACA dispenses with certain immigration statutes. 321. Just as King James attempted to make unlawful office-holding lawful, Price, supra, at 691, the Executive through DACA, Expanded DACA, and DAPA sought to make unlawful presence lawful.
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322. Even worse than that, after the Executive made unlawful presence lawful through DACA, the Executive then used that lawful-presence dispensation to affirmatively confer United States citizenship or a pathway to citizenship on some DACA recipients.
323. As Justice Scalia correctly noted, DACA is a program that involves “biennial requests for dispensation” from immigration statutes. Arizona, 567 U.S. at 435 (Scalia, J., concurring in part and dissenting in part) (emphasis added).
324. OLC recognized that class-based deferred-action programs like DACA “raise particular concerns about whether immigration officials have undertaken to substantively change” immigration statutes, Exhibit 4 at 22, and “effectively rewrite the laws to match the Executive’s policy preferences,” id. at 24.
325. DACA is unlawful even under the four-part test established by the OLC Memo under the Obama Administration delineating limitations imposed by “the nature of the Take Care duty.” Id. at 6-7.
326. First, OLC stated that a class-based deferred-action program must reflect the agency’s expert judgment about resource allocation, id. at 6, and must not confer legal status, id. at 20-21.
327. But DACA deems unlawful presence lawful—a fact never mentioned by the OLC Memo.
328. DACA has even provided some recipients with United States citizenship or a pathway to citizenship—a fact never mentioned by the OLC Memo.
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329. DACA is a programmatic decision to confer benefits on hundreds of thousands of aliens.
330. Second, OLC stated that a class-based deferred-action program must be “consonant with, rather than contrary to, the congressional policy underlying the [relevant] statutes.” Id. at 6.
331. DACA is “incompatible with the express or implied will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
332. DACA violates explicit and implicit congressional objectives. 333. Third, OLC stated that a class-based deferred-action program cannot be an “[a]bdication of the duties assigned to the agency by statute.” Exhibit 4 at 7. 334. But DACA is an “abdication” of immigration statutes enumerating in careful detail which aliens may be lawfully present and obtain work authorization. Texas, 86 F. Supp. 3d at 663. 335. DACA also is an “abdication” of immigration statutes enumerating in careful detail which aliens may obtain United States citizenship or a pathway to citizenship. Id. 336. Fourth, OLC stated that a class-based deferred-action program must allow for “case-by-case” discretion. Exhibit 4 at 7. 337. As explained above, see supra ¶¶ 289-303, DACA does not allow for caseby-case discretion.
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VI. The Court Should Declare that DACA Is Unlawful and Enjoin the Defendants Nationwide from Issuing or Renewing DACA Permits. 338. For the reasons explained above, the Court should enter a declaratory
judgment that DACA is unlawful. 339. While the Court would have the power to enter an injunction
immediately rescinding all DACA permits that confer lawful presence and work authorization, Plaintiff States are amenable to an injunction that prospectively enjoins Defendants in the future from renewing or issuing any new DACA permits that confer lawful presence and work authorization, but does not require the Executive to immediately rescind any existing DACA permits that confer lawful presence or work authorization. Such an injunction would effectively phase out the DACA program within two years.
340. Such an injunction would account for any alleged reliance interests that aliens claim in DACA permits already received. Any such reliance interest, however, could not possibly extend beyond the existing two-year terms of those permits. The memorandum announcing DACA itself explicitly stated that “DHS cannot provide any assurance that relief will be granted.” Exhibit 1 at 2.
341. An injunction prohibiting the Executive from issuing or renewing DACA permits should apply to Defendants wherever they may act.
342. Both the Constitution and Congress have directed that the Nation needs a uniform, nationwide immigration policy. See Texas, 809 F.3d at 187-88.
343. Additionally, the Court should grant any and all other relief to which Plaintiff States may be entitled.
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VII. The Deferred-Action Work-Authorization Regulation Is Invalid as Applied to DACA and Expanded DACA Recipients. 344. An executive regulation declares that “an alien who has been granted
deferred action” can obtain employment authorization from the federal government. 8 C.F.R. § 274a.12(c)(14).
345. Defendants have previously asserted that 8 C.F.R. § 274a.12(c)(14) authorizes the federal government to grant work authorization to recipients of DAPA and Expanded DACA. See Defs.’ Mem. P. & A. in Opp’n to Pls.’ Mot. for Prelim. Inj. 7-8, Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 38.
346. There is no statutory authorization for the regulation to be applied in this manner. Although 8 C.F.R. § 274a.12(c)(14) may be valid as applied to the four, narrow types of deferred action authorized by statute, it is not valid as applied to recipients of DACA, Expanded DACA, or DAPA—which are not statutorily authorized. VIII. The Federal Benefits Triggered by Lawful Presence Cannot Be Validly
Extended to DACA Recipients. 347. The classification of lawful presence is a requirement for myriad federal benefits, including Social Security, Medicare, and PRWORA-restricted benefits. See supra ¶¶ 38-40. 348. Conversely, time during which an alien lacks the classification of lawful presence counts towards lengths of time that trigger a reentry bar. See supra ¶ 41. 349. DACA confers lawful presence on individuals whose presence in this country is not lawful under the Nation’s immigration laws.
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350. The statutory provisions conferring eligibility for benefits based on lawful presence cannot be validly applied to DACA recipients.
FIRST CAUSE OF ACTION Violation of the Take Care Clause 351. The allegations in paragraphs 1-351 are reincorporated herein. 352. Defendants’ actions here in creating and implementing DACA violate the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. To the extent Expanded DACA permits remain in effect, they also violate the same duty.
SECOND CAUSE OF ACTION Violation of the APA’s Procedural Requirements, 5 U.S.C. § 553 353. The allegations in paragraphs 1-353 are reincorporated herein. 354. Defendants have violated the APA by promulgating, implementing, and relying upon the DACA program without using the required APA notice-andcomment procedure. To the extend Expanded DACA permits remain in effect, they violate the same procedural law.
THIRD CAUSE OF ACTION Violation of the APA’s Substantive Requirements, 5 U.S.C. § 706 355. The allegations in paragraphs 1-355 are reincorporated herein. 356. Defendants have acted contrary to law and have violated 5 U.S.C. § 706 by creating and implementing DACA. To the extent Expanded DACA permits remain in effect, they violate the same substantive law.
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PRAYER FOR RELIEF Underlying DACA is a dangerously broad conception of Executive power—one that if left unchecked, could allow future Executives to dismantle other duly enacted laws. The Court must not allow that to occur. Plaintiff States respectfully request that the Court issue the following relief regarding DACA (and Expanded DACA, to the extent any permits remain in effect): A. An order enjoining Defendants from issuing or renewing any DACA
permits in the future; B. A declaratory judgment that DACA violates the Take Care Clause; C. A declaratory judgment that DACA is procedurally unlawful under the
APA; D. A declaratory judgment that DACA is substantively unlawful under the
APA; and E. Any and all other relief to which Plaintiff States may be entitled.
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Respectfully submitted.

STEVE MARSHALL Attorney General of Alabama

KEN PAXTON Attorney General of Texas

LESLIE RUTLEDGE Attorney General of Arkansas

JEFFREY C. MATEER First Assistant Attorney General

JEFF LANDRY Attorney General of Louisiana
DOUGLAS J. PETERSON Attorney General of Nebraska
ALAN WILSON Attorney General of South Carolina
PATRICK MORRISEY Attorney General of West Virginia

BRANTLEY STARR Deputy First Assistant Attorney General Tx. State Bar No. 24046904 Southern District of Texas No. 2972033 Tel.: (512) 463-2100; Fax: (512) 936-0545 brantley.starr@oag.texas.gov P.O. Box 12548 Austin, Texas 78711-2548
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
/s/ Todd Lawrence Disher TODD LAWRENCE DISHER Attorney-in-Charge Special Counsel for Civil Litigation Tx. State Bar No. 24081854 Southern District of Texas No. 2985472 Tel.: (512) 463-2100; Fax: (512) 936-0545 todd.disher@oag.texas.gov P.O. Box 12548 Austin, Texas 78711-2548

ADAM ARTHUR BIGGS Special Counsel for Civil Litigation Tx. State Bar No. 24077727 Southern District of Texas No. 2964087 Tel.: (512) 463-2100; Fax: (512) 936-0545 adam.biggs@oag.texas.gov P.O. Box 12548 Austin, Texas 78711-2548

Dated this 1st day of May, 2018.

COUNSEL FOR PLAINTIFF STATES 74

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TABLE OF CONTENTS

Exhibit Document

1.

June 15, 2012, Memo from Janet Napolitano, former Secretary of

Homeland Security, titled “Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States as Children”

(“DACA Memo”)

2.

U. S. Citizenship and Immigration Services Number of Form I-821D,

Consideration of Deferred Action for Childhood Arrivals, Fiscal Year

2012-2017

3.

November 20, 2014, Memo from Jeh Charles Johnson, former Secretary

of Homeland Security, titled “Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States as Children and

with Respect to Certain Individuals Who Are the Parents of U.S.

Citizens or Permanent Residents” (“DAPA Memo”)

4.

U.S. Department of Justice’s November 19, 2014, Memorandum

Opinion for the Secretary of Homeland Security and the Counsel to the

President (“OLC Memo”)

5.

June 15, 2017, Memo from former Secretary of U.S. Department of

Homeland Security John F. Kelly titled “Rescission of November 20,

2014 Memorandum Providing for Deferred Action for Parents of

Americans and Lawful Permanent Residents” (“DAPA Rescission

Memo”)

6.

June 29, 2017, Letter from Texas Attorney General Ken Paxton and ten

other states to the U.S. Attorney General, urging the Trump

Administration to phase out DACA

7.

September 5, 2017, Memorandum from Elaine C. Duke, Acting

Secretary of U. S. Department of Homeland Security Titled “Rescission

of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United States

as Children” (“DACA Rescission Memo”)

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Exhibit 1

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Exhibit 2

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Exhibit 3

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Exhibit 4

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The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
in the United States and to Defer Removal of Others
The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of DHS’s discretion to enforce the immigration laws.
The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws.
The Department of Homeland Security’s proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS’s enforcement discretion.
November 19, 2014
MEMORANDUM OPINION FOR THE SECRETARY OF HOMELAND SECURITY AND THE COUNSEL TO THE PRESIDENT
You have asked two questions concerning the scope of the Department of Homeland Security’s discretion to enforce the immigration laws. First, you have asked whether, in light of the limited resources available to the Department (“DHS”) to remove aliens unlawfully present in the United States, it would be legally permissible for the Department to implement a policy prioritizing the removal of certain categories of aliens over others. DHS has explained that although there are approximately 11.3 million undocumented aliens in the country, it has the resources to remove fewer than 400,000 such aliens each year. DHS’s proposed policy would prioritize the removal of aliens who present threats to national security, public safety, or border security. Under the proposed policy, DHS officials could remove an alien who did not fall into one of these categories provided that an Immigration and Customs Enforcement (“ICE”) Field Office Director determined that “removing such an alien would serve an important federal interest.” Draft Memorandum for Thomas S. Winkowski, Acting Director, ICE, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants at 5 (Nov. 17, 2014) (“Johnson Prioritization Memorandum”).
Second, you have asked whether it would be permissible for DHS to extend deferred action, a form of temporary administrative relief from removal, to certain aliens who are the parents of children who are present in the United States. Specifically, DHS has proposed to implement a program under which an alien could apply for, and would be eligible to receive, deferred action if he or she is not a DHS removal priority under the policy described above; has continuously resided in the United States since before January 1, 2010; has a child who is either a U.S. citizen or a lawful permanent resident; is physically present in the United
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Opinions of the Office of Legal Counsel in Volume 38
States both when DHS announces its program and at the time of application for deferred action; and presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Draft Memorandum for Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., from Jeh Charles Johnson, Secretary of Homeland Security, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and Others at 4 (Nov. 17, 2014) (“Johnson Deferred Action Memorandum”). You have also asked whether DHS could implement a similar program for parents of individuals who have received deferred action under the Deferred Action for Childhood Arrivals (“DACA”) program.
As has historically been true of deferred action, these proposed deferred action programs would not “legalize” any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time. See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999) (describing deferred action). Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants—may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “economic necessity for employment”); see also 8 C.F.R. § 109.1(b)(7) (1982). Under DHS policy guidance, a grant of deferred action also suspends an alien’s accrual of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I), provisions that restrict the admission of aliens who have departed the United States after having been unlawfully present for specified periods of time. A grant of deferred action under the proposed programs would remain in effect for three years, subject to renewal, and could be terminated at any time at DHS’s discretion. See Johnson Deferred Action Memorandum at 2, 5.
For the reasons discussed below, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be permissible exercises of DHS’s discretion to enforce the immigration laws. We further conclude that, as it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion.
I.
We first address DHS’s authority to prioritize the removal of certain categories of aliens over others. We begin by discussing some of the sources and limits of
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DHS’s enforcement discretion under the immigration laws, and then analyze DHS’s proposed prioritization policy in light of these considerations.
A.
DHS’s authority to remove aliens from the United States rests on the Immigration and Nationality Act of 1952 (“INA”), as amended, 8 U.S.C. §§ 1101 et seq. In the INA, Congress established a comprehensive scheme governing immigration and naturalization. The INA specifies certain categories of aliens who are inadmissible to the United States. See 8 U.S.C. § 1182. It also specifies “which aliens may be removed from the United States and the procedures for doing so.” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). “Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Id. (citing 8 U.S.C. § 1227); see 8 U.S.C. § 1227(a) (providing that “[a]ny alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien” falls within one or more classes of deportable aliens); see also 8 U.S.C. § 1182(a) (listing classes of aliens ineligible to receive visas or be admitted to the United States). Removal proceedings ordinarily take place in federal immigration courts administered by the Executive Office for Immigration Review, a component of the Department of Justice. See id. § 1229a (governing removal proceedings); see also id. §§ 1225(b)(1)(A), 1228(b) (setting out expedited removal procedures for certain arriving aliens and certain aliens convicted of aggravated felonies).
Before 2003, the Department of Justice, through the Immigration and Naturalization Service (“INS”), was also responsible for providing immigration-related administrative services and generally enforcing the immigration laws. In the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, Congress transferred most of these functions to DHS, giving it primary responsibility both for initiating removal proceedings and for carrying out final orders of removal. See 6 U.S.C. §§ 101 et seq.; see also Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (noting that the immigration authorities previously exercised by the Attorney General and INS “now reside” in the Secretary of Homeland Security and DHS). The Act divided INS’s functions among three different agencies within DHS: U.S. Citizenship and Immigration Services (“USCIS”), which oversees legal immigration into the United States and provides immigration and naturalization services to aliens; ICE, which enforces federal laws governing customs, trade, and immigration; and U.S. Customs and Border Protection (“CBP”), which monitors and secures the nation’s borders and ports of entry. See Pub. L. No. 107-296, §§ 403, 442, 451, 471, 116 Stat. 2135, 2178, 2193, 2195, 2205; see also Name Change From the Bureau of Citizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 Fed. Reg. 60938, 60938 (Oct. 13, 2004); Name Change of Two DHS Components, 75 Fed. Reg. 12445, 12445 (Mar. 16, 2010). The Secretary of Homeland Security is thus now “charged with the administration and
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enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1).
As a general rule, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action. This discretion is rooted in the President’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and it reflects a recognition that the “faithful[]” execution of the law does not necessarily entail “act[ing] against each technical violation of the statute” that an agency is charged with enforcing. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Rather, as the Supreme Court explained in Chaney, the decision whether to initiate enforcement proceedings is a complex judgment that calls on the agency to “balanc[e] . . . a number of factors which are peculiarly within its expertise.” Id. These factors include “whether agency resources are best 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 policies, and . . . whether the agency has enough resources to undertake the action at all.” Id. at 831; cf. United States v. Armstrong, 517 U.S. 456, 465 (1996) (recognizing that exercises of prosecutorial discretion in criminal cases involve consideration of “‘[s]uch factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan’” (quoting Wayte v. United States, 470 U.S. 598, 607 (1985))). In Chaney, the Court considered and rejected a challenge to the Food and Drug Administration’s refusal to initiate enforcement proceedings with respect to alleged violations of the Federal Food, Drug, and Cosmetic Act, concluding that an agency’s decision not to initiate enforcement proceedings is presumptively immune from judicial review. See 470 U.S. at 832. The Court explained that, while Congress may “provide[] guidelines for the agency to follow in exercising its enforcement powers,” in the absence of such “legislative direction,” an agency’s non-enforcement determination is, much like a prosecutor’s decision not to indict, a “special province of the Executive.” Id. at 832–33.
The principles of enforcement discretion discussed in Chaney apply with particular force in the context of immigration. Congress enacted the INA against a background understanding that immigration is “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (internal quotation marks omitted). Consistent with this understanding, the INA vested the Attorney General (now the Secretary of Homeland Security) with broad authority to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the statute. 8 U.S.C. § 1103(a)(3). Years later, when Congress created the Department of Homeland Security, it expressly charged DHS with responsibility for “[e]stablishing national immigration enforcement policies and
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priorities.” Homeland Security Act of 2002, Pub. L. No. 107-296, § 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. § 202(5)).
With respect to removal decisions in particular, the Supreme Court has recognized that “the broad discretion exercised by immigration officials” is a “principal feature of the removal system” under the INA. Arizona, 132 S. Ct. at 2499. The INA expressly authorizes immigration officials to grant certain forms of discretionary relief from removal for aliens, including parole, 8 U.S.C. § 1182(d)(5)(A); asylum, id. § 1158(b)(1)(A); and cancellation of removal, id. § 1229b. But in addition to administering these statutory forms of relief, “[f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Arizona, 132 S. Ct. at 2499. And, as the Court has explained, “[a]t each stage” of the removal process—“commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders”—immigration officials have “discretion to abandon the endeavor.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483 (quoting 8 U.S.C. § 1252(g) (alterations in original)). Deciding whether to pursue removal at each of these stages implicates a wide range of considerations. As the Court observed in Arizona:
Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. . . . The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.
132 S. Ct. at 2499. Immigration officials’ discretion in enforcing the laws is not, however, unlim-
ited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587– 88 (1952). These limits, however, are not clearly defined. The open-ended nature of the inquiry under the Take Care Clause—whether a particular exercise of discretion is “faithful[]” to the law enacted by Congress—does not lend itself easily to the application of set formulas or bright-line rules. And because the exercise of enforcement discretion generally is not subject to judicial review, see
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Chaney, 470 U.S. at 831–33, neither the Supreme Court nor the lower federal courts have squarely addressed its constitutional bounds. Rather, the political branches have addressed the proper allocation of enforcement authority through the political process. As the Court noted in Chaney, Congress “may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.” Id. at 833. The history of immigration policy illustrates this principle: Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various forms of immigration relief to categories of aliens for humanitarian, foreign policy, and other reasons. When Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.1
Nonetheless, the nature of the Take Care duty does point to at least four general (and closely related) principles governing the permissible scope of enforcement discretion that we believe are particularly relevant here. First, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” Chaney, 470 U.S. at 831. Those factors may include considerations related to agency resources, such as “whether the agency has enough resources to undertake the action,” or “whether agency resources are best spent on this violation or another.” Id. Other relevant considerations may include “the proper ordering of [the agency’s] priorities,” id. at 832, and the agency’s assessment of “whether the particular enforcement action [at issue] best fits the agency’s overall policies,” id. at 831.
Second, the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency “‘has relied on factors which Congress had not intended it to consider’” (quoting
1 See, e.g., Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 503–05 (2009) (describing Congress’s response to its dissatisfaction with the Executive’s use of parole power for refugee populations in the 1960s and 1970s); see also, e.g., infra note 5 (discussing legislative limitations on voluntary departure and extended voluntary departure).
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Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).
Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion’”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws—including the Constitution, which takes precedence over other forms of law”).
Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis. See, e.g., Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Crowley Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676–77 (D.C. Cir. 1994). That reading of Chaney reflects a conclusion that case-by-case enforcement decisions generally avoid the concerns mentioned above. Courts have noted that “single-shot nonenforcement decisions” almost inevitably rest on “the sort of mingled assessments of fact, policy, and law . . . that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion.” Crowley Caribbean Transp., 37 F.3d at 676– 77 (emphasis omitted). Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute “general polic[ies] that [are] so extreme as to amount to an abdication of [the agency’s] statutory responsibilities.” Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all “general policies” respecting non-enforcement are categorically forbidden: Some “general policies” may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining that an agency’s use of “reasonable presumptions and generic rules” is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses “special risks” that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677.
B.
We now turn, against this backdrop, to DHS’s proposed prioritization policy. In their exercise of enforcement discretion, DHS and its predecessor, INS, have long
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employed guidance instructing immigration officers to prioritize the enforcement of the immigration laws against certain categories of aliens and to deprioritize their enforcement against others. See, e.g., INS Operating Instructions § 103(a)(1)(i) (1962); Memorandum for All Field Office Directors, ICE, et al., from John Morton, Director, ICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); Memorandum for All ICE Employees, from John Morton, Director, ICE, Re: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011); Memorandum for Regional Directors, INS, et al., from Doris Meissner, Commissioner, INS, Re: Exercising Prosecutorial Discretion (Nov. 17, 2000). The policy DHS proposes, which is similar to but would supersede earlier policy guidance, is designed to “provide clearer and more effective guidance in the pursuit” of DHS’s enforcement priorities; namely, “threats to national security, public safety and border security.” Johnson Prioritization Memorandum at 1.
Under the proposed policy, DHS would identify three categories of undocumented aliens who would be priorities for removal from the United States. See generally id. at 3–5. The highest priority category would include aliens who pose particularly serious threats to national security, border security, or public safety, including aliens engaged in or suspected of espionage or terrorism, aliens convicted of offenses related to participation in criminal street gangs, aliens convicted of certain felony offenses, and aliens apprehended at the border while attempting to enter the United States unlawfully. See id. at 3. The second-highest priority would include aliens convicted of multiple or significant misdemeanor offenses; aliens who are apprehended after unlawfully entering the United States who cannot establish that they have been continuously present in the United States since January 1, 2014; and aliens determined to have significantly abused the visa or visa waiver programs. See id. at 3–4. The third priority category would include other aliens who have been issued a final order of removal on or after January 1, 2014. See id. at 4. The policy would also provide that none of these aliens should be prioritized for removal if they “qualify for asylum or another form of relief under our laws.” Id. at 3–5.
The policy would instruct that resources should be directed to these priority categories in a manner “commensurate with the level of prioritization identified.” Id. at 5. It would, however, also leave significant room for immigration officials to evaluate the circumstances of individual cases. See id. (stating that the policy “requires DHS personnel to exercise discretion based on individual circumstances”). For example, the policy would permit an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations to deprioritize the removal of an alien falling in the highest priority category if, in her judgment, “there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.” Id. at 3. Similar discretionary provisions would apply to
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aliens in the second and third priority categories.2 The policy would also provide a non-exhaustive list of factors DHS personnel should consider in making such deprioritization judgments.3 In addition, the policy would expressly state that its terms should not be construed “to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities,” and would further provide that “[i]mmigration officers and attorneys may pursue removal of an alien not identified as a priority” if, “in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.” Id. at 5.
DHS has explained that the proposed policy is designed to respond to the practical reality that the number of aliens who are removable under the INA vastly exceeds the resources Congress has made available to DHS for processing and carrying out removals. The resource constraints are striking. As noted, DHS has informed us that there are approximately 11.3 million undocumented aliens in the country, but that Congress has appropriated sufficient resources for ICE to remove fewer than 400,000 aliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country. See E-mail for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from David Shahoulian, Deputy General Counsel, DHS, Re: Immigration Opinion (Nov. 19, 2014) (“Shahoulian E-mail”). The proposed policy explains that, because DHS “cannot respond to all immigration violations or remove all persons illegally in the United States,” it seeks to “prioritize the use of enforcement personnel, detention space, and removal assets” to “ensure that use of its limited resources is devoted to the pursuit of” DHS’s highest priorities. Johnson Prioritization Memorandum at 2.
In our view, DHS’s proposed prioritization policy falls within the scope of its lawful discretion to enforce the immigration laws. To begin with, the policy is based on a factor clearly “within [DHS’s] expertise.” Chaney, 470 U.S. at 831. Faced with sharply limited resources, DHS necessarily must make choices about which removals to pursue and which removals to defer. DHS’s organic statute itself recognizes this inevitable fact, instructing the Secretary to establish “national
2 Under the proposed policy, aliens in the second tier could be deprioritized if, “in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.” Johnson Prioritization Memorandum at 4. Aliens in the third tier could be deprioritized if, “in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.” Id. at 5.
3 These factors include “extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child or a seriously ill relative.” Johnson Prioritization Memorandum at 6.
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immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). And an agency’s need to ensure that scarce enforcement resources are used in an effective manner is a quintessential basis for the use of prosecutorial discretion. See Chaney, 470 U.S. at 831 (among the factors “peculiarly within [an agency’s] expertise” are “whether agency resources are best spent on this violation or another” and “whether the agency has enough resources to undertake the action at all”).
The policy DHS has proposed, moreover, is consistent with the removal priorities established by Congress. In appropriating funds for DHS’s enforcement activities—which, as noted, are sufficient to permit the removal of only a fraction of the undocumented aliens currently in the country—Congress has directed DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Department of Homeland Security Appropriations Act, 2014, Pub. L. No. 113-76, div. F, tit. II, 128 Stat. 5, 251 (“DHS Appropriations Act”). Consistent with this directive, the proposed policy prioritizes individuals convicted of criminal offenses involving active participation in a criminal street gang, most offenses classified as felonies in the convicting jurisdiction, offenses classified as “aggravated felonies” under the INA, and certain misdemeanor offenses. Johnson Prioritization Memorandum at 3–4. The policy ranks these priority categories according to the severity of the crime of conviction. The policy also prioritizes the removal of other categories of aliens who pose threats to national security or border security, matters about which Congress has demonstrated particular concern. See, e.g., 8 U.S.C. § 1226(c)(1)(D) (providing for detention of aliens charged with removability on national security grounds); id. § 1225(b) & (c) (providing for an expedited removal process for certain aliens apprehended at the border). The policy thus raises no concern that DHS has relied “on factors which Congress had not intended it to consider.” Nat’l Ass’n of Home Builders, 551 U.S. at 658.
Further, although the proposed policy is not a “single-shot non-enforcement decision,” neither does it amount to an abdication of DHS’s statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676–77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases. Given that the resources Congress has allocated to DHS are sufficient to remove only a small fraction of the total population of undocumented aliens in the United States, setting forth written guidance about how resources should presumptively be allocated in particular cases is a reasonable means of ensuring that DHS’s severely limited resources are systematically directed to its highest priorities across a large and diverse agency, as well as ensuring consistency in the administration of the removal system. The proposed policy’s identification of categories of aliens who constitute removal
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priorities is also consistent with the categorical nature of Congress’s instruction to prioritize the removal of criminal aliens in the DHS Appropriations Act.
And, significantly, the proposed policy does not identify any category of removable aliens whose removal may not be pursued under any circumstances. Although the proposed policy limits the discretion of immigration officials to expend resources to remove non-priority aliens, it does not eliminate that discretion entirely. It directs immigration officials to use their resources to remove aliens in a manner “commensurate with the level of prioritization identified,” but (as noted above) it does not “prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities.” Johnson Prioritization Memorandum at 5. Instead, it authorizes the removal of even non-priority aliens if, in the judgment of an ICE Field Office Director, “removing such an alien would serve an important federal interest,” a standard the policy leaves open-ended. Id. Accordingly, the policy provides for case-by-case determinations about whether an individual alien’s circumstances warrant the expenditure of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials. For these reasons, the proposed policy avoids the difficulties that might be raised by a more inflexible prioritization policy and dispels any concern that DHS has either undertaken to rewrite the immigration laws or abdicated its statutory responsibilities with respect to non-priority aliens.4
II.
We turn next to the permissibility of DHS’s proposed deferred action programs for certain aliens who are parents of U.S. citizens, lawful permanent residents (“LPRs”), or DACA recipients, and who are not removal priorities under the proposed policy discussed above. We begin by discussing the history and current practice of deferred action. We then discuss the legal authorities on which deferred
4 In Crane v. Napolitano, a district court recently concluded in a non-precedential opinion that the INA “mandates the initiation of removal proceedings whenever an immigration officer encounters an illegal alien who is not ‘clearly and beyond a doubt entitled to be admitted.’” Opinion and Order Respecting Pl. App. for Prelim. Inj. Relief, No. 3:12-cv-03247-O, 2013 WL 1744422, at *5 (N.D. Tex. Apr. 23) (quoting 8 U.S.C. § 1225(b)(2)(A)). The court later dismissed the case for lack of jurisdiction. See Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 WL 8211660, at *4 (N.D. Tex. July 31). Although the opinion lacks precedential value, we have nevertheless considered whether, as it suggests, the text of the INA categorically forecloses the exercise of enforcement discretion with respect to aliens who have not been formally admitted. The district court’s conclusion is, in our view, inconsistent with the Supreme Court’s reading of the INA as permitting immigration officials to exercise enforcement discretion at any stage of the removal process, including when deciding whether to initiate removal proceedings against a particular alien. See Arizona, 132 S. Ct. at 2499; Am.-Arab Anti-Discrim. Comm., 525 U.S. at 483–84. It is also difficult to square with authority holding that the presence of mandatory language in a statute, standing alone, does not necessarily limit the Executive Branch’s enforcement discretion, see, e.g., Chaney, 470 U.S. at 835; Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973).
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action relies and identify legal principles against which the proposed use of deferred action can be evaluated. Finally, we turn to an analysis of the proposed deferred action programs themselves, beginning with the program for parents of U.S. citizens and LPRs, and concluding with the program for parents of DACA recipients.
A.
In immigration law, the term “deferred action” refers to an exercise of administrative discretion in which immigration officials temporarily defer the removal of an alien unlawfully present in the United States. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (citing 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998)); see USCIS, Standard Operating Procedures for Handling Deferred Action Requests at USCIS Field Offices at 3 (2012) (“USCIS SOP”); INS Operating Instructions § 103.1(a)(1)(ii) (1977). It is one of a number of forms of discretionary relief—in addition to such statutory and non-statutory measures as parole, temporary protected status, deferred enforced departure, and extended voluntary departure—that immigration officials have used over the years to temporarily prevent the removal of undocumented aliens.5
5 Parole is available to aliens by statute “for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Among other things, parole gives aliens the ability to adjust their status without leaving the United States if they are otherwise eligible for adjustment of status, see id. § 1255(a), and may eventually qualify them for Federal means-tested benefits, see id. §§ 1613, 1641(b)(4). Temporary protected status is available to nationals of designated foreign states affected by armed conflicts, environmental disasters, and other extraordinary conditions. Id. § 1254a. Deferred enforced departure, which “has no statutory basis” but rather is an exercise of “the President’s constitutional powers to conduct foreign relations,” may be granted to nationals of appropriate foreign states. USCIS, Adjudicator’s Field Manual § 38.2(a) (2014). Extended voluntary departure was a remedy derived from the voluntary departure statute, which, before its amendment in 1996, permitted the Attorney General to make a finding of removability if an alien agreed to voluntarily depart the United States, without imposing a time limit for the alien’s departure. See 8 U.S.C. §§ 1252(b), 1254(e) (1988 & Supp. II 1990); cf. 8 U.S.C. § 1229c (current provision of the INA providing authority to grant voluntary departure, but limiting such grants to 120 days). Some commentators, however, suggested that extended voluntary departure was in fact a form of “discretionary relief formulated administratively under the Attorney General’s general authority for enforcing immigration law.” Sharon Stephan, Cong. Research Serv., 85-599 EPW, Extended Voluntary Departure and Other Grants of Blanket Relief from Deportation at 1 (Feb. 23, 1985). It appears that extended voluntary departure is no longer used following enactment of the Immigration Act of 1990, which established the temporary protected status program. See U.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 33446, 33457 (June 11, 2010) (proposed rule) (noting that “since 1990 neither the Attorney General nor the Secretary have designated a class of aliens for nationality-based ‘extended voluntary departure,’ and there no longer are aliens in the United States benefiting from such a designation,” but noting that deferred enforced departure is still used); H.R. Rep. No. 102-123, at 2 (1991) (indicating that in establishing temporary protected status, Congress was “codif[ying] and supersed[ing]” extended voluntary departure). See generally Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 5–10 (July 13, 2012) (“CRS Immigration Report”).
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The practice of granting deferred action dates back several decades. For many years after the INA was enacted, INS exercised prosecutorial discretion to grant “non-priority” status to removable aliens who presented “appealing humanitarian factors.” Letter for Leon Wildes, from E. A. Loughran, Associate Commissioner, INS at 2 (July 16, 1973) (defining a “non-priority case” as “one in which the Service in the exercise of discretion determines that adverse action would be unconscionable because of appealing humanitarian factors”); see INS Operating Instructions § 103.1(a)(1)(ii) (1962). This form of administrative discretion was later termed “deferred action.” Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484; see INS Operating Instructions § 103.1(a)(1)(ii) (1977) (instructing immigration officers to recommend deferred action whenever “adverse action would be unconscionable because of the existence of appealing humanitarian factors”).
Although the practice of granting deferred action “developed without express statutory authorization,” it has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court. Am.-Arab Anti-Discrim. Comm., 525 U.S. at 484 (internal quotation marks omitted); see id. at 485 (noting that a congressional enactment limiting judicial review of decisions “to commence proceedings, adjudicate cases, or execute removal orders against any alien under [the INA]” in 8 U.S.C. § 1252(g) “seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations”); see also, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (providing that certain individuals are “eligible for deferred action”). Deferred action “does not confer any immigration status”—i.e., it does not establish any enforceable legal right to remain in the United States— and it may be revoked by immigration authorities at their discretion. USCIS SOP at 3, 7. Assuming it is not revoked, however, it represents DHS’s decision not to seek the alien’s removal for a specified period of time.
Under longstanding regulations and policy guidance promulgated pursuant to statutory authority in the INA, deferred action recipients may receive two additional benefits. First, relying on DHS’s statutory authority to authorize certain aliens to work in the United States, DHS regulations permit recipients of deferred action to apply for work authorization if they can demonstrate an “economic necessity for employment.” 8 C.F.R. § 274a.12(c)(14); see 8 U.S.C. § 1324a(h)(3) (defining an “unauthorized alien” not entitled to work in the United States as an alien who is neither an LPR nor “authorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security]”). Second, DHS has promulgated regulations and issued policy guidance providing that aliens who receive deferred action will temporarily cease accruing “unlawful presence” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act at 42
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(May 6, 2009) (“USCIS Consolidation of Guidance”) (noting that “[a]ccrual of unlawful presence stops on the date an alien is granted deferred action”); see 8 U.S.C. § 1182(a)(9)(B)(ii) (providing that an alien is “unlawfully present” if, among other things, he “is present in the United States after the expiration of the period of stay authorized by the Attorney General”).6
Immigration officials today continue to grant deferred action in individual cases for humanitarian and other purposes, a practice we will refer to as “ad hoc deferred action.” Recent USCIS guidance provides that personnel may recommend ad hoc deferred action if they “encounter cases during [their] normal course of business that they feel warrant deferred action.” USCIS SOP at 4. An alien may also apply for ad hoc deferred action by submitting a signed, written request to USCIS containing “[a]n explanation as to why he or she is seeking deferred action” along with supporting documentation, proof of identity, and other records. Id. at 3.
For decades, INS and later DHS have also implemented broader programs that make discretionary relief from removal available for particular classes of aliens. In many instances, these agencies have made such broad-based relief available through the use of parole, temporary protected status, deferred enforced departure, or extended voluntary departure. For example, from 1956 to 1972, INS implemented an extended voluntary departure program for physically present aliens who were beneficiaries of approved visa petitions—known as “Third Preference” visa petitions—relating to a specific class of visas for Eastern Hemisphere natives. See United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979–80 (E.D. Pa. 1977). Similarly, for several years beginning in 1978, INS granted extended voluntary departure to nurses who were eligible for H-1 visas. Voluntary Departure for Outof-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978). In addition, in more than two dozen instances dating to 1956, INS and later DHS granted parole, temporary protected status, deferred enforced departure, or extended voluntary departure to large numbers of nationals of designated foreign states. See, e.g., CRS Immigration Report at 20–23; Cong. Research Serv., ED206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 12– 14 (1980). And in 1990, INS implemented a “Family Fairness” program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99603, 100 Stat. 3359 (“IRCA”). See Memorandum for Regional Commissioners,
6 Section 1182(a)(9)(B)(i) imposes three- and ten-year bars on the admission of aliens (other than aliens admitted to permanent residence) who departed or were removed from the United States after periods of unlawful presence of between 180 days and one year, or one year or more. Section 1182(a)(9)(C)(i)(I) imposes an indefinite bar on the admission of any alien who, without being admitted, enters or attempts to reenter the United States after previously having been unlawfully present in the United States for an aggregate period of more than one year.
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INS, from Gene McNary, Commissioner, INS, Re: Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (“Family Fairness Memorandum”); see also CRS Immigration Report at 10.
On at least five occasions since the late 1990s, INS and later DHS have also made discretionary relief available to certain classes of aliens through the use of deferred action:
1. Deferred Action for Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of self-petitioners under the Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized certain aliens who have been abused by U.S. citizen or LPR spouses or parents to self-petition for lawful immigration status, without having to rely on their abusive family members to petition on their behalf. Id. § 40701(a) (codified as amended at 8 U.S.C. § 1154(a)(1)(A)(iii)–(iv), (vii)). The INS program required immigration officers who approved a VAWA self-petition to assess, “on a case-by-case basis, whether to place the alien in deferred action status” while the alien waited for a visa to become available. Memorandum for Regional Directors et al., INS, from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Re: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997). INS noted that “[b]y their nature, VAWA cases generally possess factors that warrant consideration for deferred action.” Id. But because “[i]n an unusual case, there may be factors present that would militate against deferred action,” the agency instructed officers that requests for deferred action should still “receive individual scrutiny.” Id. In 2000, INS reported to Congress that, because of this program, no approved VAWA self-petitioner had been removed from the country. See Battered Women Immigrant Protection Act: Hearings on H.R. 3083 Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 106th Cong. at 43 (July 20, 2000) (“H.R. 3083 Hearings”).
2. Deferred Action for T and U Visa Applicants. Several years later, INS instituted a similar deferred action program for applicants for nonimmigrant status or visas made available under the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464. That Act created two new nonimmigrant classifications: a “T visa” available to victims of human trafficking and their family members, and a “U visa” for victims of certain other crimes and their family members. Id. §§ 107(e), 1513(b)(3) (codified at 8 U.S.C. § 1101(a)(15)(T)(i), (U)(i)). In 2001, INS issued a memorandum directing immigration officers to locate “possible victims in the above categories,” and to use “[e]xisting authority and mechanisms such as parole, deferred action, and stays of removal” to prevent those victims’ removal “until they have had the opportunity to avail themselves of the provisions of the VTVPA.” Memorandum
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for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Re: Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2—“T” and “U” Nonimmigrant Visas at 2 (Aug. 30, 2001). In subsequent memoranda, INS instructed officers to make “deferred action assessment[s]” for “all [T visa] applicants whose applications have been determined to be bona fide,” Memorandum for Johnny N. Williams, Executive Associate Commissioner, INS, from Stuart Anderson, Executive Associate Commissioner, INS, Re: Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status at 1 (May 8, 2002), as well as for all U visa applicants “determined to have submitted prima facie evidence of [their] eligibility,” Memorandum for the Director, Vermont Service Center, INS, from William R. Yates, USCIS, Re: Centralization of Interim Relief for U Nonimmigrant Status Applicants at 5 (Oct. 8, 2003). In 2002 and 2007, INS and DHS promulgated regulations embodying these policies. See 8 C.F.R. § 214.11(k)(1), (k)(4), (m)(2) (promulgated by New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 67 Fed. Reg. 4784, 4800–01 (Jan. 31, 2002)) (providing that any T visa applicant who presents “prima facie evidence” of his eligibility should have his removal “automatically stay[ed]” and that applicants placed on a waiting list for visas “shall maintain [their] current means to prevent removal (deferred action, parole, or stay of removal)”); id. § 214.14(d)(2) (promulgated by New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53014, 53039 (Sept. 17, 2007)) (“USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list” for visas.).
3. Deferred Action for Foreign Students Affected by Hurricane Katrina. As a consequence of the devastation caused by Hurricane Katrina in 2005, several thousand foreign students became temporarily unable to satisfy the requirements for maintaining their lawful status as F-1 nonimmigrant students, which include “pursuit of a ‘full course of study.’” USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) (quoting 8 C.F.R. § 214.2(f)(6)), available at http//www.uscis.gov/sites/default/files/USCIS/Humanitarian/Special%20Situati ons/Previous%20Special%20Situations%20By%20Topic/faq-interim-student-relie f-hurricane-katrina.pdf (last visited Nov. 19, 2014). DHS announced that it would grant deferred action to these students “based on the fact that [their] failure to maintain status is directly due to Hurricane Katrina.” Id. at 7. To apply for deferred action under this program, students were required to send a letter substantiating their need for deferred action, along with an application for work authorization. Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina at 1–2 (Nov. 25, 2005), available at http://www.uscis.gov/sites/default/files/files/pressrelease/F1Student_ 11_25_05_PR.pdf (last visited Nov. 19, 2014). USCIS explained that such
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requests for deferred action would be “decided on a case-by-case basis” and that it could not “provide any assurance that all such requests will be granted.” Id. at 1.
4. Deferred Action for Widows and Widowers of U.S. Citizens. In 2009, DHS implemented a deferred action program for certain widows and widowers of U.S. citizens. USCIS explained that “no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen’s death” and USCIS had not yet adjudicated a visa petition on the spouse’s behalf. Memorandum for Field Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Re: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009). “In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens,” USCIS issued guidance permitting covered surviving spouses and “their qualifying children who are residing in the United States” to apply for deferred action. Id. at 2, 6. USCIS clarified that such relief would not be automatic, but rather would be unavailable in the presence of, for example, “serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons.” Id. at 6.7
5. Deferred Action for Childhood Arrivals. Announced by DHS in 2012, DACA makes deferred action available to “certain young people who were brought to this country as children” and therefore “[a]s a general matter . . . lacked the intent to violate the law.” Memorandum for David Aguilar, Acting Commissioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1 (June 15, 2012) (“Napolitano Memorandum”). An alien is eligible for DACA if she was under the age of 31 when the program began; arrived in the United States before the age of 16; continuously resided in the United States for at least 5 years immediately preceding June 15, 2012; was physically present on June 15, 2012; satisfies certain educational or military service requirements; and neither has a serious criminal history nor “poses a threat to national security or public safety.” See id. DHS evaluates applicants’ eligibility for DACA on a case-by-case basis. See id. at 2; USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 11 (“DACA Toolkit”). Successful DACA applicants receive deferred action for a
7 Several months after the deferred action program was announced, Congress eliminated the requirement that an alien be married to a U.S. citizen “for at least 2 years at the time of the citizen’s death” to retain his or her eligibility for lawful immigration status. Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 568(c), 123 Stat. 2142, 2186 (2009). Concluding that this legislation rendered its surviving spouse guidance “obsolete,” USCIS withdrew its earlier guidance and treated all pending applications for deferred action as visa petitions. See Memorandum for Executive Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, et al., Re Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children (REVISED) at 3, 10 (Dec. 2, 2009).
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period of two years, subject to renewal. See DACA Toolkit at 11. DHS has stated that grants of deferred action under DACA may be terminated at any time, id. at 16, and “confer[] no substantive right, immigration status or pathway to citizenship,” Napolitano Memorandum at 3.8
Congress has long been aware of the practice of granting deferred action, including in its categorical variety, and of its salient features; and it has never acted to disapprove or limit the practice.9 On the contrary, it has enacted several pieces of legislation that have either assumed that deferred action would be available in certain circumstances, or expressly directed that deferred action be extended to certain categories of aliens. For example, as Congress was considering VAWA reauthorization legislation in 2000, INS officials testified before Congress about their deferred action program for VAWA self-petitioners, explaining that “[a]pproved [VAWA] self-petitioners are placed in deferred action status,” such that “[n]o battered alien who has filed a[n approved] self petition . . . has been deported.” H.R. 3083 Hearings at 43. Congress responded by not only acknowledging but also expanding the deferred action program in the 2000 VAWA reauthorization legislation, providing that children who could no longer selfpetition under VAWA because they were over the age of 21 would nonetheless be “eligible for deferred action and work authorization.” Victims of Trafficking and
8 Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.
9 Congress has considered legislation that would limit the practice of granting deferred action, but it has never enacted such a measure. In 2011, a bill was introduced in both the House and the Senate that would have temporarily suspended DHS’s authority to grant deferred action except in narrow circumstances. See H.R. 2497, 112th Cong. (2011); S. 1380, 112th Cong. (2011). Neither chamber, however, voted on the bill. This year, the House passed a bill that purported to bar any funding for DACA or other class-wide deferred action programs, H.R. 5272, 113th Cong. (2014), but the Senate has not considered the legislation. Because the Supreme Court has instructed that unenacted legislation is an unreliable indicator of legislative intent, see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969), we do not draw any inference regarding congressional policy from these unenacted bills.
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Violence Protection Act of 2000, Pub. L. No. 106-386, § 1503(d)(2), 114 Stat. 1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)).10
Congress demonstrated a similar awareness of INS’s (and later DHS’s) deferred action program for bona fide T and U visa applicants. As discussed above, that program made deferred action available to nearly all individuals who could make a prima facie showing of eligibility for a T or U visa. In 2008 legislation, Congress authorized DHS to “grant . . . an administrative stay of a final order of removal” to any such individual. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 204, 122 Stat. 5044, 5060 (codified at 8 U.S.C. § 1227(d)(1)). Congress further clarified that “[t]he denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for . . . deferred action.” Id. It also directed DHS to compile a report detailing, among other things, how long DHS’s “specially trained [VAWA] Unit at the [USCIS] Vermont Service Center” took to adjudicate victim-based immigration applications for “deferred action,” along with “steps taken to improve in this area.” Id. § 238. Representative Berman, the bill’s sponsor, explained that the Vermont Service Center should “strive to issue work authorization and deferred action” to “[i]mmigrant victims of domestic violence, sexual assault and other violence crimes . . . in most instances within 60 days of filing.” 154 Cong. Rec. 24603 (2008).
In addition, in other enactments, Congress has specified that certain classes of individuals should be made “eligible for deferred action.” These classes include certain immediate family members of LPRs who were killed on September 11, 2001, USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361, and certain immediate family members of certain U.S. citizens killed in combat, National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694. In the same legislation, Congress made these individuals eligible to obtain lawful status as “family-sponsored immigrant[s]” or “immediate relative[s]” of U.S. citizens. Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361; Pub. L. No. 108-136, § 1703(c)(1)(A), 117 Stat. 1392, 1694; see generally Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2197 (2014) (plurality opinion) (explaining which aliens typically qualify as familysponsored immigrants or immediate relatives).
Finally, Congress acknowledged the practice of granting deferred action in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (codified at
10 Five years later, in the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, Congress specified that, “[u]pon the approval of a petition as a VAWA self-petitioner, the alien . . . is eligible for work authorization.” Id. § 814(b) (codified at 8 U.S.C. § 1154(a)(1)(K)). One of the Act’s sponsors explained that while this provision was intended to “give[] DHS statutory authority to grant work authorization . . . without having to rely upon deferred action . . . [t]he current practice of granting deferred action to approved VAWA selfpetitioners should continue.” 151 Cong. Rec. 29334 (2005) (statement of Rep. Conyers).
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49 U.S.C. § 30301 note), which makes a state-issued driver’s license or identification card acceptable for federal purposes only if the state verifies, among other things, that the card’s recipient has “[e]vidence of [l]awful [s]tatus.” Congress specified that, for this purpose, acceptable evidence of lawful status includes proof of, among other things, citizenship, lawful permanent or temporary residence, or “approved deferred action status.” Id. § 202(c)(2)(B)(viii).
B.
The practice of granting deferred action, like the practice of setting enforcement priorities, is an exercise of enforcement discretion rooted in DHS’s authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed. It is one of several mechanisms by which immigration officials, against a backdrop of limited enforcement resources, exercise their “broad discretion” to administer the removal system—and, more specifically, their discretion to determine whether “it makes sense to pursue removal” in particular circumstances. Arizona, 132 S. Ct. at 2499.
Deferred action, however, differs in at least three respects from more familiar and widespread exercises of enforcement discretion. First, unlike (for example) the paradigmatic exercise of prosecutorial discretion in a criminal case, the conferral of deferred action does not represent a decision not to prosecute an individual for past unlawful conduct; it instead represents a decision to openly tolerate an undocumented alien’s continued presence in the United States for a fixed period (subject to revocation at the agency’s discretion). Second, unlike most exercises of enforcement discretion, deferred action carries with it benefits in addition to nonenforcement itself; specifically, the ability to seek employment authorization and suspension of unlawful presence for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I). Third, class-based deferred action programs, like those for VAWA recipients and victims of Hurricane Katrina, do not merely enable individual immigration officials to select deserving beneficiaries from among those aliens who have been identified or apprehended for possible removal—as is the case with ad hoc deferred action—but rather set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status.
While these features of deferred action are somewhat unusual among exercises of enforcement discretion, the differences between deferred action and other exercises of enforcement discretion are less significant than they might initially appear. The first feature—the toleration of an alien’s continued unlawful presence—is an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully present alien—even through an exercise of routine enforcement discretion—necessarily carries with it a tacit acknowledgment that the alien will continue to be present in the United States without legal status. Deferred action arguably goes beyond such tacit acknowledgment by expressly communicating to the alien that his or her unlawful
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presence will be tolerated for a prescribed period of time. This difference is not, in our view, insignificant. But neither does it fundamentally transform deferred action into something other than an exercise of enforcement discretion: As we have previously noted, deferred action confers no lawful immigration status, provides no path to lawful permanent residence or citizenship, and is revocable at any time in the agency’s discretion.
With respect to the second feature, the additional benefits deferred action confers—the ability to apply for work authorization and the tolling of unlawful presence—do not depend on background principles of agency discretion under DHS’s general immigration authorities or the Take Care Clause at all, but rather depend on independent and more specific statutory authority rooted in the text of the INA. The first of those authorities, DHS’s power to prescribe which aliens are authorized to work in the United States, is grounded in 8 U.S.C. § 1324a(h)(3), which defines an “unauthorized alien” not entitled to work in the United States as an alien who is neither an LPR nor “authorized to be . . . employed by [the INA] or by the Attorney General [now the Secretary of Homeland Security].” This statutory provision has long been understood to recognize the authority of the Secretary (and the Attorney General before him) to grant work authorization to particular classes of aliens. See 8 C.F.R. § 274a.12; see also Perales v. Casillas, 903 F.2d 1043, 1048–50 (5th Cir. 1990) (describing the authority recognized by section 1324a(h)(3) as “permissive” and largely “unfettered”).11 Although the INA
11 Section 1324a(h)(3) was enacted in 1986 as part of IRCA. Before then, the INA contained no provisions comprehensively addressing the employment of aliens or expressly delegating the authority to regulate the employment of aliens to a responsible federal agency. INS assumed the authority to prescribe the classes of aliens authorized to work in the United States under its general responsibility to administer the immigration laws. In 1981, INS promulgated regulations codifying its existing procedures and criteria for granting employment authorization. See Employment Authorization to Aliens in the United States, 46 Fed. Reg. 25079, 25080–81 (May 5, 1981) (citing 8 U.S.C. § 1103(a)). Those regulations permitted certain categories of aliens who lacked lawful immigration status, including deferred action recipients, to apply for work authorization under certain circumstances. 8 C.F.R. § 109.1(b)(7) (1982). In IRCA, Congress introduced a “comprehensive scheme prohibiting the employment of illegal aliens in the United States,” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002), to be enforced primarily through criminal and civil penalties on employers who knowingly employ an “unauthorized alien.” As relevant here, Congress defined an “unauthorized alien” barred from employment in the United States as an alien who “is not . . . either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3) (emphasis added). Shortly after IRCA was enacted, INS denied a petition to rescind its employment authorization regulation, rejecting an argument that “the phrase ‘authorized to be so employed by this Act or the Attorney General’ does not recognize the Attorney General’s authority to grant work authorization except to those aliens who have already been granted specific authorization by the Act.” Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46092, 46093 (Dec. 4, 1987). Because the same statutory phrase refers both to aliens authorized to be employed by the INA and aliens authorized to be employed by the Attorney General, INS concluded that the only way to give effect to both references is to conclude “that Congress, being fully aware of the Attorney General’s authority to promulgate regulations, and approving of the manner in which he has exercised that authority in this matter, defined ‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the
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requires the Secretary to grant work authorization to particular classes of aliens, see, e.g., 8 U.S.C. § 1158(c)(1)(B) (aliens granted asylum), it places few limitations on the Secretary’s authority to grant work authorization to other classes of aliens. Further, and notably, additional provisions of the INA expressly contemplate that the Secretary may grant work authorization to aliens lacking lawful immigration status—even those who are in active removal proceedings or, in certain circumstances, those who have already received final orders of removal. See id. § 1226(a)(3) (permitting the Secretary to grant work authorization to an otherwise work-eligible alien who has been arrested and detained pending a decision whether to remove the alien from the United States); id. § 1231(a)(7) (permitting the Secretary under certain narrow circumstances to grant work authorization to aliens who have received final orders of removal). Consistent with these provisions, the Secretary has long permitted certain additional classes of aliens who lack lawful immigration status to apply for work authorization, including deferred action recipients who can demonstrate an economic necessity for employment. See 8 C.F.R. § 274a.12(c)(14); see also id. § 274a.12(c)(8) (applicants for asylum), (c)(10) (applicants for cancellation of removal); supra note 11 (discussing 1981 regulations).
The Secretary’s authority to suspend the accrual of unlawful presence of deferred action recipients is similarly grounded in the INA. The relevant statutory provision treats an alien as “unlawfully present” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (a)(9)(C)(i)(I) if he “is present in the United States after the expiration of the period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii). That language contemplates that the Attorney General (and now the Secretary) may authorize an alien to stay in the United States without accruing unlawful presence under section 1182(a)(9)(B)(i) or section 1182(a)(9)(C)(i). And DHS regulations and policy guidance interpret a “period of stay authorized by the Attorney General” to include periods during which an alien has been granted deferred action. See 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2); USCIS Consolidation of Guidance at 42.
The final unusual feature of deferred action programs is particular to classbased programs. The breadth of such programs, in combination with the first two features of deferred action, may raise particular concerns about whether immigration officials have undertaken to substantively change the statutory removal system rather than simply adapting its application to individual circumstances. But the salient feature of class-based programs—the establishment of an affirmative application process with threshold eligibility criteria—does not in and of itself cross the line between executing the law and rewriting it. Although every classwide deferred action program that has been implemented to date has established
regulatory process, in addition to those who are authorized employment by statute.” Id.; see Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986) (stating that “considerable weight must be accorded” an agency’s “contemporaneous interpretation of the statute it is entrusted to administer”).
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certain threshold eligibility criteria, each program has also left room for case-bycase determinations, giving immigration officials discretion to deny applications even if the applicant fulfills all of the program criteria. See supra pp. 15–18. Like the establishment of enforcement priorities discussed in Part I, the establishment of threshold eligibility criteria can serve to avoid arbitrary enforcement decisions by individual officers, thereby furthering the goal of ensuring consistency across a large agency. The guarantee of individualized, case-by-case review helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief. See Crowley Caribbean Transp., 37 F.3d at 676–77; see also Chaney, 470 U.S. at 833 n.4. Furthermore, while permitting potentially eligible individuals to apply for an exercise of enforcement discretion is not especially common, many law enforcement agencies have developed programs that invite violators of the law to identify themselves to the authorities in exchange for leniency.12 Much as is the case with those programs, inviting eligible aliens to identify themselves through an application process may serve the agency’s law enforcement interests by encouraging lowerpriority individuals to identify themselves to the agency. In so doing, the process may enable the agency to better focus its scarce resources on higher enforcement priorities.
Apart from the considerations just discussed, perhaps the clearest indication that these features of deferred action programs are not per se impermissible is the fact that Congress, aware of these features, has repeatedly enacted legislation appearing to endorse such programs. As discussed above, Congress has not only directed that certain classes of aliens be made eligible for deferred action programs—and in at least one instance, in the case of VAWA beneficiaries, directed the expansion of an existing program—but also ranked evidence of approved deferred action status as evidence of “lawful status” for purposes of the REAL ID Act. These enactments strongly suggest that when DHS in the past has decided to grant deferred action to an individual or class of individuals, it has been acting in a manner consistent with congressional policy “‘rather than embarking on a frolic of its own.’” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139
12 For example, since 1978, the Department of Justice’s Antitrust Division has implemented a “leniency program” under which a corporation that reveals an antitrust conspiracy in which it participated may receive a conditional promise that it will not be prosecuted. See Dep’t of Justice, Frequently Asked Questions Regarding the Antitrust Division’s Leniency Program and Model Leniency Letters (November 19, 2008), available at http://www.justice.gov/atr/public/criminal/239583.pdf (last visited Nov. 19, 2014); see also Internal Revenue Manual § 9.5.11.9(2) (Revised IRS Voluntary Disclosure Practice), available at http://www.irs.gov/uac/Revised-IRS-Voluntary-Disclosure-Practice (last visited Nov. 19, 2014) (explaining that a taxpayer’s voluntary disclosure of misreported tax information “may result in prosecution not being recommended”); U.S. Marshals Service, Fugitive Safe Surrender FAQs, available at http://www.usmarshals.gov/safesurrender/faqs.html (last visited Nov. 19, 2014) (stating that fugitives who surrender at designated sites and times under the “Fugitive Safe Surrender” program are likely to receive “favorable consideration”).
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(1985) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 375 (1969)); cf. id. at 137–39 (concluding that Congress acquiesced in an agency’s assertion of regulatory authority by “refus[ing] . . . to overrule” the agency’s view after it was specifically “brought to Congress’[s] attention,” and further finding implicit congressional approval in legislation that appeared to acknowledge the regulatory authority in question); Dames & Moore v. Regan, 453 U.S. 654, 680 (1981) (finding that Congress “implicitly approved the practice of claim settlement by executive agreement” by enacting the International Claims Settlement Act of 1949, which “create[d] a procedure to implement” those very agreements).
Congress’s apparent endorsement of certain deferred action programs does not mean, of course, that a deferred action program can be lawfully extended to any group of aliens, no matter its characteristics or its scope, and no matter the circumstances in which the program is implemented. Because deferred action, like the prioritization policy discussed above, is an exercise of enforcement discretion rooted in the Secretary’s broad authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed, it is subject to the same four general principles previously discussed. See supra pp. 6–7. Thus, any expansion of deferred action to new classes of aliens must be carefully scrutinized to ensure that it reflects considerations within the agency’s expertise, and that it does not seek to effectively rewrite the laws to match the Executive’s policy preferences, but rather operates in a manner consonant with congressional policy expressed in the statute. See supra pp. 6–7 (citing Youngstown, 343 U.S. at 637, and Nat’l Ass’n of Home Builders, 551 U.S. at 658). Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion. See supra p. 7 (citing Chaney, 470 U.S. at 833 n.4). And any new deferred action program should leave room for individualized evaluation of whether a particular case warrants the expenditure of resources for enforcement. See supra p. 7 (citing Glickman, 96 F.3d at 1123, and Crowley Caribbean Transp., 37 F.3d at 676–77).
Furthermore, because deferred action programs depart in certain respects from more familiar and widespread exercises of enforcement discretion, particularly careful examination is needed to ensure that any proposed expansion of deferred action complies with these general principles, so that the proposed program does not, in effect, cross the line between executing the law and rewriting it. In analyzing whether the proposed programs cross this line, we will draw substantial guidance from Congress’s history of legislation concerning deferred action. In the absence of express statutory guidance, the nature of deferred action programs Congress has implicitly approved by statute helps to shed light on Congress’s own understandings about the permissible uses of deferred action. Those understandings, in turn, help to inform our consideration of whether the proposed deferred action programs are “faithful[]” to the statutory scheme Congress has enacted. U.S. Const. art. II, § 3.
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C.
We now turn to the specifics of DHS’s proposed deferred action programs. DHS has proposed implementing a policy under which an alien could apply for, and would be eligible to receive, deferred action if he or she: (1) is not an enforcement priority under DHS policy; (2) has continuously resided in the United States since before January 1, 2010; (3) is physically present in the United States both when DHS announces its program and at the time of application for deferred action; (4) has a child who is a U.S. citizen or LPR; and (5) presents “no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Johnson Deferred Action Memorandum at 4. You have also asked about the permissibility of a similar program that would be open to parents of children who have received deferred action under the DACA program. We first address DHS’s proposal to implement a deferred action program for the parents of U.S. citizens and LPRs, and then turn to the permissibility of the program for parents of DACA recipients in the next section.
1.
We begin by considering whether the proposed program for the parents of U.S. citizens and LPRs reflects considerations within the agency’s expertise. DHS has offered two justifications for the proposed program for the parents of U.S. citizens and LPRs. First, as noted above, severe resource constraints make it inevitable that DHS will not remove the vast majority of aliens who are unlawfully present in the United States. Consistent with Congress’s instruction, DHS prioritizes the removal of individuals who have significant criminal records, as well as others who present dangers to national security, public safety, or border security. See supra p. 10. Parents with longstanding ties to the country and who have no significant criminal records or other risk factors rank among the agency’s lowest enforcement priorities; absent significant increases in funding, the likelihood that any individual in that category will be determined to warrant the expenditure of severely limited enforcement resources is very low. Second, DHS has explained that the program would serve an important humanitarian interest in keeping parents together with children who are lawfully present in the United States, in situations where such parents have demonstrated significant ties to community and family in this country. See Shahoulian E-mail.
With respect to DHS’s first justification, the need to efficiently allocate scarce enforcement resources is a quintessential basis for an agency’s exercise of enforcement discretion. See Chaney, 470 U.S. at 831. Because, as discussed earlier, Congress has appropriated only a small fraction of the funds needed for full enforcement, DHS can remove no more than a small fraction of the individuals who are removable under the immigration laws. See supra p. 9. The agency must therefore make choices about which violations of the immigration laws it
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will prioritize and pursue. And as Chaney makes clear, such choices are entrusted largely to the Executive’s discretion. 470 U.S. at 831.
The deferred action program DHS proposes would not, of course, be costless. Processing applications for deferred action and its renewal requires manpower and resources. See Arizona, 132 S. Ct. at 2521 (Scalia, J., concurring in part and dissenting in part). But DHS has informed us that the costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees. See Shahoulian E-mail; see also 8 U.S.C. § 1356(m); 8 C.F.R. § 103.7(b)(1)(i)(C), (b)(1)(i)(HH). DHS has indicated that the costs of administering the deferred action program would therefore not detract in any significant way from the resources available to ICE and CBP—the enforcement arms of DHS—which rely on money appropriated by Congress to fund their operations. See Shahoulian E-mail. DHS has explained that, if anything, the proposed deferred action program might increase ICE’s and CBP’s efficiency by in effect using USCIS’s fee-funded resources to enable those enforcement divisions to more easily identify non-priority aliens and focus their resources on pursuing aliens who are strong candidates for removal. See id. The proposed program, in short, might help DHS address its severe resource limitations, and at the very least likely would not exacerbate them. See id.
DHS does not, however, attempt to justify the proposed program solely as a cost-saving measure, or suggest that its lack of resources alone is sufficient to justify creating a deferred action program for the proposed class. Rather, as noted above, DHS has explained that the program would also serve a particularized humanitarian interest in promoting family unity by enabling those parents of U.S. citizens and LPRs who are not otherwise enforcement priorities and who have demonstrated community and family ties in the United States (as evidenced by the length of time they have remained in the country) to remain united with their children in the United States. Like determining how best to respond to resource constraints, determining how to address such “human concerns” in the immigration context is a consideration that is generally understood to fall within DHS’s expertise. Arizona, 132 S. Ct. at 2499.
This second justification for the program also appears consonant with congressional policy embodied in the INA. Numerous provisions of the statute reflect a particular concern with uniting aliens with close relatives who have attained lawful immigration status in the United States. See, e.g., Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977); INS v. Errico, 385 U.S. 214, 220 n.9 (1966) (“‘The legislative history of the Immigration and Nationality Act clearly indicates that the Congress . . . was concerned with the problem of keeping families of United States citizens and immigrants united.’” (quoting H.R. Rep. No. 85-1199, at 7 (1957)). The INA provides a path to lawful status for the parents, as well as other immediate relatives, of U.S. citizens: U.S. citizens aged twenty-one or over may petition for parents to obtain visas that would permit them to enter and permanently reside
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in the United States, and there is no limit on the overall number of such petitions that may be granted. See 8 U.S.C. § 1151(b)(2)(A)(i); see also Cuellar de Osorio, 134 S. Ct. at 2197–99 (describing the process for obtaining a family-based immigrant visa). And although the INA contains no parallel provision permitting LPRs to petition on behalf of their parents, it does provide a path for LPRs to become citizens, at which point they too can petition to obtain visas for their parents. See, e.g., 8 U.S.C. § 1427(a) (providing that aliens are generally eligible to become naturalized citizens after five years of lawful permanent residence); id. § 1430(a) (alien spouses of U.S. citizens become eligible after three years of lawful permanent residence); Demore v. Kim, 538 U.S. 510, 544 (2003).13 Additionally, the INA empowers the Attorney General to cancel the removal of, and adjust to lawful permanent resident status, aliens who have been physically present in the United States for a continuous period of not less than ten years, exhibit good moral character, have not been convicted of specified offenses, and have immediate relatives who are U.S. citizens or LPRs and who would suffer exceptional hardship from the alien’s removal. 8 U.S.C. § 1229b(b)(1). DHS’s proposal to focus on the parents of U.S. citizens and LPRs thus tracks a congressional concern, expressed in the INA, with uniting the immediate families of individuals who have permanent legal ties to the United States.
At the same time, because the temporary relief DHS’s proposed program would confer to such parents is sharply limited in comparison to the benefits Congress has made available through statute, DHS’s proposed program would not operate to circumvent the limits Congress has placed on the availability of those benefits. The statutory provisions discussed above offer the parents of U.S. citizens and LPRs the prospect of permanent lawful status in the United States. The cancellation of removal provision, moreover, offers the prospect of receiving such status
13 The INA does permit LPRs to petition on behalf of their spouses and children even before they have attained citizenship. See 8 U.S.C. § 1153(a)(2). However, the exclusion of LPRs’ parents from this provision does not appear to reflect a congressional judgment that, until they attain citizenship, LPRs lack an interest in being united with their parents comparable to their interest in being united with their other immediate relatives. The distinction between parents and other relatives originated with a 1924 statute that exempted the wives and minor children of U.S. citizens from immigration quotas, gave “preference status”—eligibility for a specially designated pool of immigrant visas—to other relatives of U.S. citizens, and gave no favorable treatment to the relatives of LPRs. Immigration Act of 1924, Pub. L. No. 68-139, §§ 4(a), 6, 43 Stat. 153, 155–56. In 1928, Congress extended preference status to LPRs’ wives and minor children, reasoning that because such relatives would be eligible for visas without regard to any quota when their LPR relatives became citizens, granting preference status to LPRs’ wives and minor children would “hasten[]” the “family reunion.” S. Rep. No. 70-245, at 2 (1928); see Act of May 29, 1928, ch. 914, 45 Stat. 1009, 1009–10. The special visa status for wives and children of LPRs thus mirrored, and was designed to complement, the special visa status given to wives and minor children of U.S. citizens. In 1965, Congress eliminated the basis on which the distinction had rested by exempting all “immediate relatives” of U.S. citizens, including parents, from numerical restrictions on immigration. Pub. L. No. 89-236, § 1, 79 Stat. 911, 911. But it did not amend eligibility for preference status for relatives of LPRs to reflect that change. We have not been able to discern any rationale for this omission in the legislative history or statutory text of the 1965 law.
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immediately, without the delays generally associated with the family-based immigrant visa process. DHS’s proposed program, in contrast, would not grant the parents of U.S. citizens and LPRs any lawful immigration status, provide a path to permanent residence or citizenship, or otherwise confer any legally enforceable entitlement to remain in the United States. See USCIS SOP at 3. It is true that, as we have discussed, a grant of deferred action would confer eligibility to apply for and obtain work authorization, pursuant to the Secretary’s statutory authority to grant such authorization and the longstanding regulations promulgated thereunder. See supra pp. 13, 21–22. But unlike the automatic employment eligibility that accompanies LPR status, see 8 U.S.C. § 1324a(h)(3), this authorization could be granted only on a showing of economic necessity, and would last only for the limited duration of the deferred action grant, see 8 C.F.R. § 274a.12(c)(14).
The other salient features of the proposal are similarly consonant with congressional policy. The proposed program would focus on parents who are not enforcement priorities under the prioritization policy discussed above—a policy that, as explained earlier, comports with the removal priorities set by Congress. See supra p. 10. The continuous residence requirement is likewise consistent with legislative judgments that extended periods of continuous residence are indicative of strong family and community ties. See IRCA, Pub. L. No. 99-603, § 201(a), 100 Stat. 3359, 3394 (1986) (codified as amended at 8 U.S.C. § 1255a(a)(2)) (granting lawful status to certain aliens unlawfully present in the United States since January 1, 1982); id. § 302(a) (codified as amended at 8 U.S.C. § 1160) (granting similar relief to certain agricultural workers); H.R. Rep. No. 99-682, pt. 1, at 49 (1986) (stating that aliens present in the United States for five years “have become a part of their communities[,] . . . have strong family ties here which include U.S. citizens and lawful residents[,] . . . have built social networks in this country[, and] . . . have contributed to the United States in myriad ways”); S. Rep. No. 99-132, at 16 (1985) (deporting aliens who “have become well settled in this country” would be a “wasteful use of the Immigration and Naturalization Service’s limited enforcement resources”); see also Arizona, 132 S. Ct. at 2499 (noting that “[t]he equities of an individual case” turn on factors “including whether the alien has . . . long ties to the community”).
We also do not believe DHS’s proposed program amounts to an abdication of its statutory responsibilities, or a legislative rule overriding the commands of the statute. As discussed earlier, DHS’s severe resource constraints mean that, unless circumstances change, it could not as a practical matter remove the vast majority of removable aliens present in the United States. The fact that the proposed program would defer the removal of a subset of these removable aliens—a subset that ranks near the bottom of the list of the agency’s removal priorities—thus does not, by itself, demonstrate that the program amounts to an abdication of DHS’s responsibilities. And the case-by-case discretion given to immigration officials under DHS’s proposed program alleviates potential concerns that DHS has
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abdicated its statutory enforcement responsibilities with respect to, or created a categorical, rule-like entitlement to immigration relief for, the particular class of aliens eligible for the program. An alien who meets all the criteria for deferred action under the program would receive deferred action only if he or she “present[ed] no other factors that, in the exercise of discretion,” would “make[] the grant of deferred action inappropriate.” Johnson Deferred Action Memorandum at 4. The proposed policy does not specify what would count as such a factor; it thus leaves the relevant USCIS official with substantial discretion to determine whether a grant of deferred action is warranted. In other words, even if an alien is not a removal priority under the proposed policy discussed in Part I, has continuously resided in the United States since before January 1, 2010, is physically present in the country, and is a parent of an LPR or a U.S. citizen, the USCIS official evaluating the alien’s deferred action application must still make a judgment, in the exercise of her discretion, about whether that alien presents any other factor that would make a grant of deferred action inappropriate. This feature of the proposed program ensures that it does not create a categorical entitlement to deferred action that could raise concerns that DHS is either impermissibly attempting to rewrite or categorically declining to enforce the law with respect to a particular group of undocumented aliens.
Finally, the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past, which provides some indication that the proposal is consonant not only with interests reflected in immigration law as a general matter, but also with congressional understandings about the permissible uses of deferred action. As noted above, the program uses deferred action as an interim measure for a group of aliens to whom Congress has given a prospective entitlement to lawful immigration status. While Congress has provided a path to lawful status for the parents of U.S. citizens and LPRs, the process of obtaining that status “takes time.” Cuellar de Osorio, 134 S. Ct. at 2199. The proposed program would provide a mechanism for families to remain together, depending on their circumstances, for some or all of the intervening period.14 Immigration officials have on several
14 DHS’s proposed program would likely not permit all potentially eligible parents to remain together with their children for the entire duration of the time until a visa is awarded. In particular, undocumented parents of adult citizens who are physically present in the country would be ineligible to adjust their status without first leaving the country if they had never been “inspected and admitted or paroled into the United States.” 8 U.S.C. § 1255(a) (permitting the Attorney General to adjust to permanent resident status certain aliens present in the United States if they become eligible for immigrant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate abroad. See id. § 1201(a); Cuellar de Osorio, 134 S. Ct. at 2197–99. But once such parents left the country, they would in most instances become subject to the 3- or 10-year bar under 8 U.S.C. § 1182(a)(9)(B)(i) and therefore unable to obtain a visa unless they remained outside the country for the duration of the bar. DHS’s proposed program would nevertheless enable other families to stay together without regard to the 3- or 10-year bar. And even as to those families with parents who would become subject to that bar, the proposed deferred action program would have the effect of reducing the
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occasions deployed deferred action programs as interim measures for other classes of aliens with prospective entitlements to lawful immigration status, including VAWA self-petitioners, bona fide T and U visa applicants, certain immediate family members of certain U.S. citizens killed in combat, and certain immediate family members of aliens killed on September 11, 2001. As noted above, each of these programs has received Congress’s implicit approval—and, indeed, in the case of VAWA self-petitioners, a direction to expand the program beyond its original bounds. See supra pp. 18–20.15 In addition, much like these and other programs Congress has implicitly endorsed, the program serves substantial and particularized humanitarian interests. Removing the parents of U.S. citizens and LPRs—that is, of children who have established permanent legal ties to the United States—would separate them from their nuclear families, potentially for many years, until they were able to secure visas through the path Congress has provided. During that time, both the parents and their U.S. citizen or LPR children would be deprived of both the economic support and the intangible benefits that families provide.
We recognize that the proposed program would likely differ in size from these prior deferred action programs. Although DHS has indicated that there is no reliable way to know how many eligible aliens would actually apply for or would be likely to receive deferred action following individualized consideration under the proposed program, it has informed us that approximately 4 million individuals could be eligible to apply. See Shahoulian E-mail. We have thus considered whether the size of the program alone sets it at odds with congressional policy or the Executive’s duties under the Take Care Clause. In the absence of express statutory guidance, it is difficult to say exactly how the program’s potential size bears on its permissibility as an exercise of executive enforcement discretion. But because the size of DHS’s proposed program corresponds to the size of a population to which Congress has granted a prospective entitlement to lawful status
amount of time the family had to spend apart, and could enable them to adjust the timing of their separation according to, for example, their children’s needs for care and support.
15 Several extended voluntary departure programs have been animated by a similar rationale, and the most prominent of these programs also received Congress’s implicit approval. In particular, as noted above, the Family Fairness policy, implemented in 1990, authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens granted legal status under IRCA—aliens who would eventually “acquire lawful permanent resident status” and be able to petition on behalf of their family members. Family Fairness Memorandum at 1; see supra pp. 14–15. Later that year, Congress granted the beneficiaries of the Family Fairness program an indefinite stay of deportation. See Immigration Act of 1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978, 5030. Although it did not make that grant of relief effective for nearly a year, Congress clarified that “the delay in effectiveness of this section shall not be construed as reflecting a Congressional belief that the existing family fairness program should be modified in any way before such date.” Id. § 301(g). INS’s policies for qualifying Third Preference visa applicants and nurses eligible for H-1 nonimmigrant status likewise extended to aliens with prospective entitlements to lawful status. See supra p. 14.
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without numerical restriction, it seems to us difficult to sustain an argument, based on numbers alone, that DHS’s proposal to grant a limited form of administrative relief as a temporary interim measure exceeds its enforcement discretion under the INA. Furthermore, while the potential size of the program is large, it is nevertheless only a fraction of the approximately 11 million undocumented aliens who remain in the United States each year because DHS lacks the resources to remove them; and, as we have indicated, the program is limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. There is thus little practical danger that the program, simply by virtue of its size, will impede removals that would otherwise occur in its absence. And although we are aware of no prior exercises of deferred action of the size contemplated here, INS’s 1990 Family Fairness policy, which Congress later implicitly approved, made a comparable fraction of undocumented aliens—approximately four in ten— potentially eligible for discretionary extended voluntary departure relief. Compare CRS Immigration Report at 22 (estimating the Family Fairness policy extended to 1.5 million undocumented aliens), with Office of Policy and Planning, INS, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population of 3.5 million in 1990); see supra notes 5 & 15 (discussing extended voluntary departure and Congress’s implicit approval of the Family Fairness policy). This suggests that DHS’s proposed deferred action program is not, simply by virtue of its relative size, inconsistent with what Congress has previously considered a permissible exercise of enforcement discretion in the immigration context.
In light of these considerations, we believe the proposed expansion of deferred action to the parents of U.S. citizens and LPRs is lawful. It reflects considerations—responding to resource constraints and to particularized humanitarian concerns arising in the immigration context—that fall within DHS’s expertise. It is consistent with congressional policy, since it focuses on a group—law-abiding parents of lawfully present children who have substantial ties to the community— that Congress itself has granted favorable treatment in the immigration process. The program provides for the exercise of case-by-case discretion, thereby avoiding creating a rule-like entitlement to immigration relief or abdicating DHS’s enforcement responsibilities for a particular class of aliens. And, like several deferred action programs Congress has approved in the past, the proposed program provides interim relief that would prevent particularized harm that could otherwise befall both the beneficiaries of the program and their families. We accordingly conclude that the proposed program would constitute a permissible exercise of DHS’s enforcement discretion under the INA.
2.
We now turn to the proposed deferred action program for the parents of DACA recipients. The relevant considerations are, to a certain extent, similar to those
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Opinions of the Office of Legal Counsel in Volume 38
discussed above: Like the program for the parents of U.S. citizens and LPRs, the proposed program for parents of DACA recipients would respond to severe resource constraints that dramatically limit DHS’s ability to remove aliens who are unlawfully present, and would be limited to individuals who would be unlikely to be removed under DHS’s proposed prioritization policy. And like the proposed program for LPRs and U.S. citizens, the proposed program for DACA parents would preserve a significant measure of case-by-case discretion not to award deferred action even if the general eligibility criteria are satisfied.
But the proposed program for parents of DACA recipients is unlike the proposed program for parents of U.S. citizens and LPRs in two critical respects. First, although DHS justifies the proposed program in large part based on considerations of family unity, the parents of DACA recipients are differently situated from the parents of U.S. citizens and LPRs under the family-related provisions of the immigration law. Many provisions of the INA reflect Congress’s general concern with not separating individuals who are legally entitled to live in the United States from their immediate family members. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i) (permitting citizens to petition for parents, spouses and children); id. § 1229b(b)(1) (allowing cancellation of removal for relatives of citizens and LPRs). But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status) in the United States with their families. DACA recipients unquestionably lack lawful status in the United States. See DACA Toolkit at 8 (“Deferred action . . . does not provide you with a lawful status.”). Although they may presumptively remain in the United States, at least for the duration of the grant of deferred action, that grant is both time-limited and contingent, revocable at any time in the agency’s discretion. Extending deferred action to the parents of DACA recipients would therefore expand family-based immigration relief in a manner that deviates in important respects from the immigration system Congress has enacted and the policies that system embodies.
Second, as it has been described to us, the proposed deferred action program for the parents of DACA recipients would represent a significant departure from deferred action programs that Congress has implicitly approved in the past. Granting deferred action to the parents of DACA recipients would not operate as an interim measure for individuals to whom Congress has given a prospective entitlement to lawful status. Such parents have no special prospect of obtaining visas, since Congress has not enabled them to self-petition—as it has for VAWA self-petitioners and individuals eligible for T or U visas—or enabled their undocumented children to petition for visas on their behalf. Nor would granting deferred action to parents of DACA recipients, at least in the absence of other factors, serve interests that are comparable to those that have prompted implementation of deferred action programs in the past. Family unity is, as we have discussed, a significant humanitarian concern that underlies many provisions of the INA. But a concern with furthering family unity alone would not justify the
32

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DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
proposed program, because in the absence of any family member with lawful status in the United States, it would not explain why that concern should be satisfied by permitting family members to remain in the United States. The decision to grant deferred action to DACA parents thus seems to depend critically on the earlier decision to make deferred action available to their children. But we are aware of no precedent for using deferred action in this way, to respond to humanitarian needs rooted in earlier exercises of deferred action. The logic underlying such an expansion does not have a clear stopping point: It would appear to argue in favor of extending relief not only to parents of DACA recipients, but also to the close relatives of any alien granted deferred action through DACA or any other program, those relatives’ close relatives, and perhaps the relatives (and relatives’ relatives) of any alien granted any form of discretionary relief from removal by the Executive.
For these reasons, the proposed deferred action program for the parents of DACA recipients is meaningfully different from the proposed program for the parents of U.S. citizens and LPRs. It does not sound in Congress’s concern for maintaining the integrity of families of individuals legally entitled to live in the United States. And unlike prior deferred action programs in which Congress has acquiesced, it would treat the Executive’s prior decision to extend deferred action to one population as justifying the extension of deferred action to additional populations. DHS, of course, remains free to consider whether to grant deferred action to individual parents of DACA recipients on an ad hoc basis. But in the absence of clearer indications that the proposed class-based deferred action program for DACA parents would be consistent with the congressional policies and priorities embodied in the immigration laws, we conclude that it would not be permissible.
III.
In sum, for the reasons set forth above, we conclude that DHS’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, but that the proposed deferred action program for parents of DACA recipients would not be permissible.
KARL R. THOMPSON Principal Deputy Assistant Attorney General
Office of Legal Counsel
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Exhibit 5

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 124 of 137

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 125 of 137

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 126 of 137

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 127 of 137
Exhibit 6

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 128 of 137
June 29, 2017
The Honorable Jeff Sessions Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001
Re: Texas, et al. v. United States, et al., No. 1:14-cv-00254 (S.D. Tex.)
Dear Attorney General Sessions:
The State plaintiffs that successfully challenged the Obama Administration’s DAPA and Expanded DACA programs commend the Secretary of Homeland Security for issuing his June 15, 2017 memorandum rescinding, in large part, his predecessor’s November 20, 2014 memorandum creating those DAPA and Expanded DACA programs.
As you know, this November 20, 2014 memorandum creating DAPA and Expanded DACA would have granted eligibility for lawful presence and work authorization to over four million unlawfully present aliens. Courts 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. 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.” Texas v. United States, 809 F.3d 134, 179 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) (per curiam). “Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA.” Id. Likewise, “[t]he INA also specifies classes of aliens eligible and ineligible for work authorization . . . with no mention of the class of persons whom DAPA would make eligible for work authorization.” Id. at 180-81. Thus, “DAPA is not authorized by statute,” id. at 184, and “DAPA is foreclosed by Congress’s careful plan,” id. at 186.
P os t Offic e B ox 12548 , Aust in, Texa s 78711-2548 • (512) 463-2100 • www. t exa satt orn eygen era l. gov

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 129 of 137
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.1
Nevertheless, the Secretary of Homeland Security’s June 15, 2017 memorandum provided that “[t]he June 15, 2012 DACA memorandum, however, will remain in effect,” and some “Expanded DACA” permits will also remain in effect.
We respectfully request that the Secretary of Homeland Security phase out the DACA program. Specifically, we request that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future. This request does not require the Executive Branch to immediately rescind DACA or Expanded DACA permits that have already been issued. This request does not require the Secretary to alter the immigration enforcement priorities contained in his separate February 20, 2017 memorandum.2 And this request does not require the federal government to remove any alien.
If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or Expanded DACA permits in the future, then the plaintiffs that successfully challenged DAPA and Expanded DACA will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas. Otherwise, the complaint in that case will be amended to challenge both the DACA program and the remaining Expanded DACA permits.
1 See, e.g., USCIS, DACA Frequently Asked Questions, https://www.uscis.gov/humanitarian/consideration-deferred-action-childhoodarrivals-process/frequently-asked-questions (last visited June 29, 2017) (DACA recipients “are considered to be lawfully present”).
2 See DHS, Enforcement of Immigration Laws to Serve the National Interest, https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-ofthe-Immigration-Laws-to-Serve-the-National-Interest.pdf.
P os t Offic e B ox 12548 , Aust in, Texa s 78711-2548 • (512) 463-2100 • www. t exa satt orn eygen era l. gov

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 130 of 137

We appreciate the opportunity to continue working with you, and the entire Presidential Administration, to cooperatively enforce federal immigration laws.
Sincerely,

Ken Paxton Attorney General of Texas
Steve Marshall Attorney General of Alabama
Leslie Rutledge Attorney General of Arkansas

Jeff Landry Attorney General of Louisiana
Doug Peterson Attorney General of Nebraska
Alan Wilson Attorney General of South Carolina

Lawrence G. Wasden Attorney General of Idaho
C.L. “Butch” Otter Governor of Idaho
Derek Schmidt Attorney General of Kansas

Herbert Slatery III Attorney General and Reporter of Tennessee
Patrick Morrisey Attorney General of West Virginia

P os t Offic e B ox 12548 , Aust in, Texa s 78711-2548 • (512) 463-2100 • www. t exa satt orn eygen era l. gov

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Exhibit 7

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 132 of 137
Official website of the Department of Homeland Security
U.S. Department of Homeland Security
Archived Content
In an effort to keep DHS.gov current, the archive contains outdated information that may not reflect current policy or programs.
Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)
Release Date: September 5, 2017
MEMORANDUM FOR:
James W. McCament Acting Director U.S. Citizenship and Immigration Services
Thomas D. Homan Acting Director U.S. Immigration and Customs Enforcement
Kevin K. McAleenan Acting Commissioner U.S. Customs and Border Protection
Joseph B. Maher Acting General Counsel
Ambassador James D. Nealon Assistant Secretary, International Engagement

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 133 of 137 Julie M. Kirchner Citizenship and Immigration Services Ombudsman
FROM:
Elaine C. Duke Acting Secretary
SUBJECT:
Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”
This memorandum rescinds the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” which established the program known as Deferred Action for Childhood Arrivals (“DACA”). For the reasons and in the manner outlined below, Department of Homeland Security personnel shall take all appropriate actions to execute a wind-down of the program, consistent with the parameters established in this memorandum.
Background
The Department of Homeland Security established DACA through the issuance of a memorandum on June 15, 2012. The program purported to use deferred action—an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis—to confer certain benefits to illegal aliens that Congress had not otherwise acted to provide by law.[1] (# ftn1) Specifically, DACA provided certain illegal aliens who entered the United States before the age of sixteen a period of deferred action and eligibility to request employment authorization.
On November 20, 2014, the Department issued a new memorandum, expanding the parameters of DACA and creating a new policy called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). Among other things—such as the expansion of the coverage criteria under the 2012 DACA policy to encompass aliens with a wider range of ages and arrival dates, and lengthening the period of deferred action and work authorization from two years to three—the November 20, 2014 memorandum directed USCIS “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” to certain aliens who have “a son or daughter who is a U.S. citizen or lawful permanent resident.”

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 134 of 137 Prior to the implementation of DAPA, twenty-six states—led by Texas—challenged the policies announced in the November 20, 2014 memorandum in the U.S. District Court for the Southern District of Texas. In an order issued on February 16, 2015, the district court preliminarily enjoined the policies nationwide.[2] (# ftn2) The district court held that the plaintiff states were likely to succeed on their claim that the DAPA program did not comply with relevant authorities.
The United States Court of Appeals for the Fifth Circuit affirmed, holding that Texas and the other states had demonstrated a substantial likelihood of success on the merits and satisfied the other requirements for a preliminary injunction.[3] (#_ftn3) The Fifth Circuit concluded that the Department’s DAPA policy conflicted with the discretion authorized by Congress. In considering the DAPA program, the court noted that the Immigration and Nationality Act “flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” According to the court, “DAPA is foreclosed by Congress’s careful plan; the program is ‘manifestly contrary to the statute’ and therefore was properly enjoined.”
Although the original DACA policy was not challenged in the lawsuit, both the district and appellate court decisions relied on factual findings about the implementation of the 2012 DACA memorandum. The Fifth Circuit agreed with the lower court that DACA decisions were not truly discretionary,[4] (#_ftn4) and that DAPA and expanded DACA would be substantially similar in execution. Both the district court and the Fifth Circuit concluded that implementation of the program did not comply with the Administrative Procedure Act because the Department did not implement it through notice-and-comment rulemaking.
The Supreme Court affirmed the Fifth Circuit’s ruling by equally divided vote (4-4).[5] (# ftn5) The evenly divided ruling resulted in the Fifth Circuit order being affirmed. The preliminary injunction therefore remains in place today. In October 2016, the Supreme Court denied a request from DHS to rehear the case upon the appointment of a new Justice. After the 2016 election, both parties agreed to a stay in litigation to allow the new administration to review these issues.
On January 25, 2017, President Trump issued Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.” In that Order, the President directed federal agencies to “[e]nsure the faithful execution of the immigration laws . . . against all removable aliens,” and established new immigration enforcement priorities. On February 20, 2017, then Secretary of Homeland Security John F. Kelly issued an implementing memorandum, stating “the Department no longer will exempt classes or categories of removable aliens from potential enforcement,” except as provided in the Department’s June 15, 2012 memorandum

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 135 of 137 establishing DACA,[6] (# ftn6) and the November 20, 2014 memorandum establishing DAPA and expanding DACA.[7] (#_ftn7)
On June 15, 2017, after consulting with the Attorney General, and considering the likelihood of success on the merits of the ongoing litigation, then Secretary John F. Kelly issued a memorandum rescinding DAPA and the expansion of DACA—but temporarily left in place the June 15, 2012 memorandum that initially created the DACA program.
Then, on June 29, 2017, Texas, along with several other states, sent a letter to Attorney General Sessions asserting that the original 2012 DACA memorandum is unlawful for the same reasons stated in the Fifth Circuit and district court opinions regarding DAPA and expanded DACA. The letter notes that if DHS does not rescind the DACA memo by September 5, 2017, the States will seek to amend the DAPA lawsuit to include a challenge to DACA.
The Attorney General sent a letter to the Department on September 4, 2017, articulating his legal determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” The letter further stated that because DACA “has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” Nevertheless, in light of the administrative complexities associated with ending the program, he recommended that the Department wind it down in an efficient and orderly fashion, and his office has reviewed the terms on which our Department will do so.
Rescission of the June 15, 2012 DACA Memorandum
Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum.
Recognizing the complexities associated with winding down the program, the Department will provide a limited window in which it will adjudicate certain requests for DACA and associated applications meeting certain parameters specified below. Accordingly, effective immediately, the Department:
Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 136 of 137 that have been accepted by the Department as of the date of this memorandum.
Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of 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.
Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.
This document is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.
[1] (# ftnref1) Significantly, while the DACA denial notice indicates the decision to deny is made in the unreviewable discretion of USCIS, USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as

Case 1:18-cv-00068 Document 1 Filed in TXSD on 05/01/18 Page 137 of 137 outlined in the June 15, 2012 memorandum, but still had his or her application denied based solely upon discretion.
[2] (# ftnref2) Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).
[3] (#_ftnref3) Texas v. United States, 809 F.3d 134 (5th Cir. 2015).
[4] (# ftnref4) Id.
[5] (# ftnref5) United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam).
[6] (# ftnref6) Memorandum from Janet Napolitano, Secretary, DHS to David Aguilar, Acting Comm’r, CBP, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012).
[7] (# ftnref7) Memorandum from Jeh Johnson, Secretary, DHS, to Leon Rodriguez, Dir., USCIS, et al., “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents” (Nov. 20, 2014).
Topics: Border Security (/topics/border-security) , Deferred Action (/topics/deferred-action) Keywords: DACA (/keywords/daca) , Deferred Action for Childhood Arrivals (/keywords/deferred-action-childhood-arrivals) Last Published Date: September 5, 2017

 
 CCaassee 11::1188--ccvv--0000006688 DDooccuummeenntt 8140-41 FFiilleedd iinn TTXXSSDD oonn 0066//2154//1188 PPaaggee 11 ooff 7755

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

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STATE OF TEXAS;

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STATE OF ALABAMA;

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STATE OF ARKANSAS;

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STATE OF LOUISIANA;

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STATE OF NEBRASKA;

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STATE OF SOUTH CAROLINA;

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STATE OF WEST VIRGINIA;

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STATE OF KANSAS;

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GOVERNOR PHIL BRYANT, State of Mississippi; and )

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GOVERNOR PAUL R. LEPAGE, State of Maine,

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Plaintiffs, )

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v.

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UNITED STATES OF AMERICA, et al.,

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Defendants, )

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and

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KARLA PEREZ, et al.,

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Defendant-Intervenors. )

Case No. 1:18-cv-00068

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. In 2012 and again in 2014, unilateral executive action by the Obama Administration created far-reaching, class-based “deferred action” programs to grant to millions of unlawfully present aliens the legal classification of “lawful presence” in this country and numerous attendant benefits—without congressional authorization. 2. In a decision affirmed by the divided Supreme Court, the Fifth Circuit upheld this Court’s preliminary injunction of the 2014 executive action that created “DAPA” and “Expanded DACA.” The Fifth Circuit held this executive action invalid as lacking notice-and-comment procedure and, in any event, contrary to federal law. As the Fifth Circuit noted, the Executive’s claim of authority to create these programs “would allow [the Executive] to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.” Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015) (emphasis added), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (per curiam). 3. In June 2017, after the Supreme Court’s ruling, the Executive Branch rescinded prospectively its 2014 executive action creating DAPA and Expanded DACA. 4. Later that month, Texas and other Plaintiffs proposed to resolve the then-pending litigation if the Executive Branch also rescinded prospectively its 2012 executive action creating “DACA.” Otherwise, Plaintiffs wrote, they would amend their complaint in that pending litigation to challenge DACA on the same bases that they challenged DAPA and Expanded DACA.
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5. On the September 2017 deadline for accepting Plaintiffs’ proposal, the Executive Branch issued a memorandum rescinding DACA by directing that DACA permits would not be issued or renewed starting March 5, 2018. Accordingly, Plaintiffs voluntarily dismissed their then-pending litigation in this Court.
6. Yet DACA is still in force and will remain in force for the indefinite future. In January 2018, a California district court issued a preliminary injunction of the Executive’s 2017 decision to rescind DACA, allowing several challenges to that 2017 executive action to proceed.
7. In another challenge in the District of Columbia, the district court on April 24, 2018, vacated the Executive’s decision to rescind DACA, granted summary judgment that the executive action was substantively unlawful under the APA, and ordered the Executive to continue issuing new DACA applications, staying that order a mere 90 days. NAACP v. Trump, No. 1:17-cv-1907, 2018 WL 1920079, at *1, *28 (D.D.C. Apr. 24, 2018).
8. Plaintiffs abided DACA while the controlling legal issues were decided in the prior litigation and while the Executive reweighed DACA’s legality. But the recent injunctions of the 2017 executive action undermine Plaintiffs’ express basis for dismissing their prior litigation—and means that Plaintiffs will suffer ongoing harm from DACA for the indefinite future.
9. Plaintiffs thus bring this lawsuit challenging the 2012 executive action creating DACA in the first place. This lawsuit does not call on this Court to resolve any of the challenges pending in California or elsewhere about the validity of
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executive action in 2017. Rather, this lawsuit challenges whether the 2012 executive action unilaterally creating DACA was itself lawful.
10. This lawsuit also does not challenge the Executive Branch’s ability to prioritize removal resources. It does not seek an injunction requiring the Executive to remove any alien from the country. As the Fifth Circuit has noted, those matters are distinct from programs like that here, which grant lawful-presence status.
11. This lawsuit is emphatically about the rule of law. The policy merits of immigration laws are debated in and decided by Congress. The Executive Branch does not exercise a lawmaking role. Its duty is to take care that the law is faithfully executed—substantive immigration law and procedural administrative law alike.
12. Under the Fifth Circuit’s controlling precedent, DACA is unlawful for the same reasons as DAPA and Expanded DACA were unlawful. See Texas, 809 F.3d 134. This lawsuit seeks declaratory and injunctive relief to that effect.
13. Indeed, Plaintiffs’ challenge to the Obama Administration’s class-based deferred-action programs has only become stronger since the prior suit challenging DAPA and Expanded DACA. Each memorandum creating DACA, Expanded DACA, or DAPA promised that “[t]his memorandum confers no . . . pathway to citizenship.” See infra ¶¶ 84, 151. But, as of August 21, 2017, as many as 39,514 aliens had used their DACA status to obtain a pathway to citizenship, through the conferral of lawfulpermanent-resident status (commonly known as “LPR” or “green card” status), and
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approximately 1,056 alien DACA recipients with LPR status had obtained United States citizenship.1
14. If ever there were a violation of the President’s duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, this is it. The Executive unilaterally conferred lawful presence and work authorization on otherwise unlawfully present aliens, and then the Executive used that lawful-presence “dispensation” to unilaterally confer United States citizenship. Arizona v. United States, 567 U.S. 387, 435 (2012) (Scalia, J., concurring in part and dissenting in part).
15. The Attorney General of the United States has announced that DACA suffers from the same legal defects as DAPA and that, if DACA were challenged, “the likeliest outcome is that it would be enjoined just as was DAPA.”2
16. That is precisely what the Court should do here. This Court has authority to immediately rescind and cancel all DACA permits currently in existence because they are unlawful. However, Plaintiffs are amenable to a remedy that enjoins Defendants from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.
1 See Press Release, Office of Sen. Chuck Grassley, Data Indicate Unauthorized Immigrants Exploited Loophole to Gain Legal Status, Pathway to Citizenship (Sept. 1, 2017), https://www.grassley.senate.gov/news/news-releases/data-indicateunauthorized-immigrants-exploited-loophole-gain-legal-status. “A valid, unexpired Form I-551, Permanent Resident Card (also known as a ‘green card’), is the primary evidence of an alien’s status as a Lawful Permanent Resident (LPR) of the United States.” U.S. Dep’t of State, 9 Foreign Affairs Manual 202.2-6(a)(1) (2018).
2 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017), https://www.justice.gov/opa/speech/attorneygeneral-sessions-delivers-remarks-daca.
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JURISDICTION AND VENUE 17. The Court has federal-question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, art. II, § 3, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. The Court also has jurisdiction under 28 U.S.C. § 1346(a)(2) because this is a civil action or claim against the United States. Finally, the Court has jurisdiction to compel an officer or employee of the above-named federal agencies to perform his or her duty under 28 U.S.C. § 1361. 18. Venue is proper in this District under 28 U.S.C. § 1391(e) because the State of Texas is a resident of this judicial district, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District. 19. This Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the APA, 5 U.S.C. § 706; and 28 U.S.C. § 1361.
THE PARTIES 20. Plaintiffs are the States of Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and the Governors of Mississippi and Maine. 21. The Plaintiff States have interests that fall within the zone of interests of federal statutes on immigration policy. “The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States,” which “bear[ ] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397.
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22. Defendant United States of America is sued under the APA. See 5 U.S.C. § 703 (“[T]he action for judicial review may be brought against the United States . . . .”).
23. Defendant Kirstjen M. Nielsen is the Secretary of the U.S. Department of Homeland Security (“DHS”). Defendant Nielsen and DHS are responsible for U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”). Defendant Nielsen also is responsible for the continued administration of DACA and Expanded DACA.
24. Defendant Kevin K. McAleenan is the Commissioner of CBP. Defendant McAleenan shares responsibility for the administration of DACA and Expanded DACA.
25. Defendant Thomas D. Homan is the Deputy Director and Acting Director for ICE. ICE administers a formal program for allowing unlawfully present aliens to apply for deferred action and to appeal for reconsideration if deferred action is denied.
26. Defendant L. Francis Cissna is the Director of USCIS. Cissna and USCIS administer the DACA program. USCIS is the principal agency responsible for the continued administration of DACA and Expanded DACA.
27. Defendant Carla L. Provost is Acting Chief of the U.S. Border Patrol. Provost and the U.S. Border Patrol are responsible for enforcing immigration laws and the detection, interdiction and apprehension of those who attempt to illegally
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enter or smuggle people or contraband across U.S. borders between official ports of entry.
FACTUAL BACKGROUND I. Congress Created an Extensive Statutory Framework in the Area of
Immigration, and Congress Has Not Given the Executive Unilateral Power to Confer Lawful Presence and Work Authorization on Unlawfully Present Aliens Simply Because the Executive Chooses Not to Remove Them. 28. “Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress.” Arizona, 567 U.S. at 409 (alteration in original) (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)). 29. Congress has accordingly enacted “extensive and complex” statutes governing “immigration and alien status.” Id. at 395. 30. Title 8 of the United States Code, dealing with immigration, functions as a “single integrated and all-embracing system” governing the presence of aliens in the country. Id. at 400 (quoting Hines v. Davidowitz, 312 U.S. 52, 74 (1941)). 31. Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., Congress has delineated “specifi[c] categories of aliens” who may be admitted into and lawfully present in the country as well as the consequences for unlawful presence. Arizona, 567 U.S. at 395. 32. Congress has enacted complex provisions detailing how over forty different classes of immigrants, nonimmigrants, refugees, and other aliens can attain lawful presence in the country. See Texas, 809 F.3d at 179.
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33. Moreover, under the Immigration Reform and Control Act of 1986 (“IRCA”), Congress created “a comprehensive framework for ‘combating the employment of illegal aliens.’” Arizona, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)).
34. Congress reinforced immigration laws with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), responding to the States’ concerns about the effects of extending benefits to unlawfully present aliens. E.g., 142 Cong. Rec. 26,680 (1996) (statement of Sen. Kyl) (“With this immigration bill, we have the opportunity to lift this financial burden off the States by forcing the Federal Government to take responsibility for reducing illegal immigration . . . .”).
35. Congress never gave the Executive Branch carte blanche to sidestep these statutes and unilaterally permit unlawfully present aliens to be lawfully present or obtain attendant benefits and work authorization simply because the Executive chooses not to remove them.
36. Lawful presence is an immigration classification created by Congress. 37. Unlawful presence is an immigration classification created by Congress. 38. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for Social Security. See 8 U.S.C. § 1611(b)(2). 39. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for Medicare. See id. § 1611(b)(3).
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40. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for a retirement benefit in PRWORA. See id. § 1611(b)(4).
41. The classification of unlawful presence makes time spent in that status count towards a reentry ban un IIRIRA, subject to statutory exception. See id. § 1182(a)(9)(B)(i) (3-year reentry ban for aliens “unlawfully present in the United States for a period of more than 180 days but less than 1 year”; 10-year reentry ban for aliens “unlawfully present in the United States for one year or more”).
42. The classification of lawful presence is a necessary prerequisite for aliens to be eligible for the Earned Income Tax Credit. See 26 U.S.C. § 32(c)(1)(A), (c)(1)(E), (m) (eligibility based on an individual having a valid Social Security number). II. Congress Has Declined to Pass the DREAM Act.
43. On August 1, 2001, the Development, Relief, and Education for Alien Minors (DREAM) Act was first introduced in Congress. See S. 1291, 107th Cong. (2001).
44. The DREAM Act has been introduced in some form in each Congress since then. See, e.g., S. 1545, 108th Cong. (2003); S. 2075, 109th Cong. (2005); S. 2205, 110th Cong. (2007); S. 729, 111th Cong. (2009); H.R. 1751, 111th Cong. (2009); S. 952, 112th Cong. (2011); S. 744, 113th Cong. (2013); S. 3542, 114th Cong. (2016); H.R. 496, 115th Cong. (2017).
45. The proposed DREAM Act would have allowed unlawfully present aliens to apply for lawful presence through conditional-permanent-resident status if, among
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other things, (1) they entered the United States before the age of 16, and (2) they had been in the United States continuously for five years.
46. Congress has repeatedly declined to enact the DREAM Act. 47. Features of the DREAM Act closely resemble DACA and DAPA. 48. The DREAM Act’s coverage criteria are substantially similar to DACA’s and Expanded DACA’s coverage criteria, as DACA’s and Expanded DACA’s coverage criteria also require entry into the United States before the age of 16 and at least five years of continuous residence in the United States. 49. Former President Obama repeatedly urged Congress to pass the DREAM Act. 50. Former President Obama consistently asserted that he could not achieve the goals of the DREAM Act on his own through unilateral Executive action. He said, for instance: x “Comprehensive reform, that’s how we’re going to solve this problem. . . .
Anybody who tells you . . . [that] I can wave a magic wand and make it happen hasn’t been paying attention [to] how this town works.” President Barack Obama, Remarks on Comprehensive Immigration Reform (May 5, 2010), https://obamawhitehouse.archives.gov/blog/2010/05/05/cinco-demayo-a-call-comprehensive-immigration-reform. x “I am president, I am not king. I can’t do these things just by myself. . . . [T]here’s a limit to the discretion that I can show because I am obliged to execute the law. . . . I can’t just make the laws up by myself.” President
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Barack Obama, Interview with Univision (Oct. 25, 2010), http://latimesblogs.latimes.com/washington/2010/10/transcript-ofpresident-barack-obama-with-univision.html. x In response to a question about whether he could stop deportation of unlawfully present students with an executive order: “Well, first of all, temporary protective status historically has been used for special circumstances where you have immigrants to this country who are fleeing persecution in their countries, or there is some emergency situation in their native land that required them to come to the United States. So it would not be appropriate to use that just for a particular group that came here primarily . . . for economic opportunity. With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed . . . . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.” President Barack Obama, Remarks at Univision Town Hall (Mar. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/03/28/remarks-president-univision-town-hall (emphasis added). x “I can’t solve this problem by myself. . . . We’re going to have to change the laws in Congress.” President Barack Obama, Remarks at a Facebook Town
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Hall (Apr. 20, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/04/20/remarks-president-facebook-town-hall. x “I know some here wish that I could just bypass Congress and change the law myself. But that’s not how democracy works. See, democracy is hard. But it’s right. Changing our laws means doing the hard work of changing minds and changing votes, one by one.” President Barack Obama, Remarks at Miami Dade College Commencement (Apr. 29, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/04/29/remarks-president-miami-dade-college-commencement. x “And sometimes when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself. But that’s not how a democracy works. What we really need to do is to keep up the fight to pass genuine, comprehensive reform. That is the ultimate solution to this problem.” President Barack Obama, Remarks on Comprehensive Immigration Reform in El Paso, Texas (May 10, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/05/10/remarks-president-comprehensive-immigration-reformel-paso-texas. x “[B]elieve me, the idea of doing things on my own is very tempting. . . . But that’s not how . . . our system works. . . . That’s not how our democracy functions. That’s not how our Constitution is written.” President Barack Obama, Remarks to the National Council of La Raza (July 25, 2011),
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https://obamawhitehouse.archives.gov/the-pressoffice/2011/07/25/remarks-president-national-council-la-raza. x “Administratively, we can’t ignore the law. . . . We are doing everything we can administratively. But the fact of the matter is there are laws on the books that I have to enforce.” President Barack Obama, Remarks in an “Open for Questions” Roundtable (Sept. 28, 2011), https://obamawhitehouse.archives.gov/the-pressoffice/2011/09/28/remarks-president-open-questions-roundtable. 51. Despite former President Obama’s statements, Congress refused to pass the DREAM Act. III. The Obama Administration Unilaterally Created DACA, Which Confers Eligibility for Lawful Presence, Work Authorization, and a Host of Attendant Benefits. 52. On June 15, 2012, former President Obama’s Secretary of Homeland Security Napolitano announced the unilateral creation of a program that has become known as Deferred Action for Childhood Arrivals (“DACA”). See Exhibit 1. 53. This Department of Homeland Security memorandum creating DACA was issued without APA notice-and-comment procedure. 54. Through Secretary Napolitano’s DACA memo, the Executive Branch ordered federal immigration officials to make qualifying unlawfully present aliens eligible to receive “deferred action” status if they (1) entered the United States before the age of 16; (2) had been in the United States continuously for at least five years; (3) met certain educational standards or were veterans; (4) had not been convicted of a felony, a “significant” misdemeanor or “multiple” misdemeanors, or otherwise posed
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a threat to national security or public safety; and (5) were not above the age of thirty. Id. at 1.
55. DACA’s “deferred action” terms last for 2 years. Id. at 2. 56. DACA’s “deferred action” terms are renewable. Id. 57. DACA’s criteria would cover approximately 1.7 million otherwise unlawfully present aliens. 58. As of September 30, 2017, DACA relief had been conferred on approximately 800,000 aliens. See USCIS, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, Fiscal Year 2012-2017, attached as Exhibit 2 (798,980 initial applications and 1,002,810 renewal applications approved from 2012 through September 2017). 59. As of September 30, 2017, DACA relief had been conferred on approximately 125,000 aliens in Texas alone. See id. at 2 (125,239 initial applications and 128,812 renewal applications approved for Texas residents from 2012 through September 2017). 60. According to USCIS, deferred action under DACA “may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.” USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit 16, Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14-cv-254), ECF No. 38-6. 61. DACA’s conferral of “deferred action” entails much more than the Executive simply choosing not to remove an alien with DACA. 62. The Executive Branch treats DACA’s conferral of “deferred action” as
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also conferring lawful presence: “An individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.” See, e.g., Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions (last visited May 1, 2018).
63. Thus, “while [a DACA recipient’s] deferred action is in effect and, for admissibility purposes, [the DACA recipient is] considered to be lawfully present in the United States during that time.” Id. This has been true since 2012.
64. The Executive’s implementation of DACA as conferring lawful presence tracks the Executive’s practice stated in the 2014 DAPA and Expanded DACA memorandum (the “DAPA Memo”) issued by former DHS Secretary Johnson, which stated: “Deferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” Exhibit 3 at 2.
65. The United States has also confirmed in court that DACA “approved deferred action status is lawful status that affords a period of authorized stay.” See United States’ Brief as Amicus Curiae in Opposition to rehearing En Banc at 16, Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) (No. 13-16248), ECF No. 75 (internal quotation marks omitted).
66. DACA’s conferral of lawful presence creates eligibility for a host of benefits.
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67. DACA’s conferral of lawful presence appears to eliminate predicates necessary under the INA to pursue proceedings to remove an alien from the United States.
68. An alien is removable if he is “present in the United States in violation of [federal law].” 8 U.S.C. § 1227(a)(1)(B).
69. An alien may also be removed if he cannot establish that he “is lawfully present in the United States pursuant to a prior admission.” Id. § 1229a(c)(2)(B).
70. DACA’s conferral of lawful presence negates the removability charge that an alien is “present in the United States in violation of [federal law].” Id. § 1227(a)(1)(B).
71. DACA’s conferral of lawful presence negates the removability charge that an alien is present “without being admitted or paroled,” id. § 1182(a)(6)(A)(i), as the Executive maintains that an alien granted lawful presence is not considered “present in the United States without being admitted or paroled,” Pet. Br. at 9 n.3, Texas, 136 S. Ct. 2271 (No. 15-674), 2016 WL 836758.
72. DACA’s conferral of lawful presence means a DACA recipient satisfies the lawful-presence prerequisite for the alien to be eligible for Social Security. See 8 U.S.C. § 1611(b)(2).
73. DACA’s conferral of lawful presence means a DACA recipient satisfies the lawful-presence prerequisite for the alien to be eligible for Medicare. See id. § 1611(b)(3).
74. DACA’s conferral of lawful presence means a DACA recipient satisfies
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the lawful-presence prerequisite for the alien to be eligible for a retirement benefit in

PRWORA. See id. § 1611(b)(4).

75. DACA’s conferral of lawful presence means a DACA recipient is eligible

for tolling of the IIRIRA reentry-ban clock that accrues during periods of unlawful

presence. See id. § 1182(a)(9)(B).

76. DACA’s conferral of lawful presence also creates eligibility for various

State benefits—including a driver’s license in most States.

77. Additionally, the Executive Branch treats DACA’s conferral of “deferred

action” as conferring eligibility for “work authorization.” Exhibit 1 at 3.

78. The Executive has consistently told aliens that their DACA applications

must be accompanied by applications for a Form I-765 application for work

authorization.

See

Frequently

Asked

Questions,

USCIS,

https://www.uscis.gov/archive/frequently-asked-questions (last visited May 1, 2018).

79. Work authorization has been granted to the substantial majority of

DACA recipients.

80. “The United States concedes that ‘[a]n alien with work authorization

may obtain a Social Security Number,’ ‘accrue quarters of covered employment,’ and

‘correct wage records to add prior covered employment within approximately three

years of the year in which the wages were earned or in limited circumstances

thereafter.’” Texas, 809 F.3d at 149 (citation omitted).

81. DACA recipients are eligible for earned income tax credits once they

received a Social Security number.

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82. Some DACA recipients have received Earned Income Tax Credits. 83. The nonpartisan congressional Joint Committee on Taxation estimated that, over a 10-year period, DAPA recipients could have received $1.7 billion in Earned Income Tax Credit payments alone. Press Release, Office of Sen. Chuck Grassley, Senators Introduce Bill Disallowing Tax Credit Under 2014 Executive Actions (Mar. 10, 2015), https://www.grassley.senate.gov/news/newsreleases/senators-introduce-bill-disallowing-tax-credit-under-2014-executiveactions. 84. The June 15, 2012 DACA memo stated that “[t]his memorandum confers no . . . pathway to citizenship.” Exhibit 1 at 3. 85. However, the Executive’s implementation of DACA has conferred United States citizenship and a pathway to citizenship on some DACA recipients. 86. The Executive has given some DACA recipients “advance parole.” 87. The “advance parole” granted to aliens because of their receipt of DACA has resulted in some of those aliens obtaining adjustment to LPR status, for which they would otherwise be ineligible. 88. LPR status is commonly referred to as possessing a “green card.” See supra ¶ 13 & n.1. 89. LPR status provides a pathway to United States citizenship. See 8 U.S.C. § 1427(a). 90. By allowing advance parole, which satisfies a requisite for a green card under the Executive’s practice, DACA allowed aliens to obtain citizenship when their
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unlawful entry into the United States would otherwise foreclose this pathway to citizenship.
91. The “advance parole” granted to aliens because of their receipt of DACA has resulted in some of those aliens obtaining United States citizenship.
92. “Advance parole” is an Executive practice that allows aliens to leave the country and reenter. USCIS, Deferred Action for Childhood Arrivals (DACA) Toolkit, supra, 23-24; Letter from León Rodríguez, Dir., USCIS, to Hon. Charles Grassley 34 (Oct. 9, 2014), Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 64-48; Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions (last visited May 1, 2018).
93. The Executive has deemed DACA and Expanded DACA recipients who obtain “advance parole” from the Executive—and then leave and reenter the United States—as being lawfully “admitted or paroled into the United States” upon reentry. 8 U.S.C. § 1255(a).
94. Congressional statutes, however, generally impose a reentry ban for aliens who were unlawfully present in the country for more than 180 days as an adult. See id. § 1182(a)(9)(B)(i) (3-year reentry ban for aliens “unlawfully present in the United States for a period of more than 180 days but less than 1 year”; 10-year reentry ban for aliens “unlawfully present in the United States for one year or more”); id. § 1182(a)(9)(B)(iii)(I) (unlawful presence before 18 is not counted).
95. Under DACA’s criteria, an alien must have been in the United States for more than 180 days to possibly qualify for DACA.
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96. Thus, Congress’s reentry ban applies to all DACA recipients over 18.5 years of age.
97. The Executive’s discretion to waive this reentry ban is significantly limited, as that waiver authority only applies “in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.” Id. § 1182(a)(9)(B)(v) (emphases added).
98. Congressional statutes also significantly limit the Executive’s authority to grant aliens temporary “parole” into the country: “The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Id. § 1182(d)(5)(A) (emphases added).
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99. The Executive considers “advance parole” an exercise of its humanitarian-parole authority. E.g., DHS, DACA National Standard Operating Procedures 125, Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 64-17.
100. Unlike other categories of aliens seeking advance parole, the Executive has not required DACA recipients to qualify for the “urgent humanitarian reasons” or “significant public benefit” statutory requirements for parole. 8 U.S.C. § 1182(d)(5)(A). See USCIS, Instructions for Application for Travel Document 4-5 (expires Dec. 31, 2018), https://www.uscis.gov/system/files_force/files/form/i131instr.pdf?download=1.
101. Instead, the Executive has considered DACA recipients eligible for advance parole based on its own far broader criteria:
x “humanitarian purposes,” such as “travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative”;
x “educational purposes,” such as participating in “semester-abroad programs” or “academic research”; or
x “employment purposes,” including “overseas assignments, interviews, conferences or, training, or meetings with clients overseas.”
Frequently Asked Questions, USCIS, https://www.uscis.gov/archive/frequently-askedquestions (last visited May 1, 2018).
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102. The Executive’s conferral of advance parole on DACA recipients did not invoke the limited “extreme hardship” exception to the reentry ban that applies to DACA recipients. 8 U.S.C. § 1182(a)(9)(B)(v).
103. To the contrary, the Executive considers an alien with advance parole not to have made a “departure” from the United States by physically leaving the country, so there would never be a triggering of the reentry bar when that alien returns to the United States and seeks parole into the country at the port of entry. 7 USCIS, Policy Manual, pt. M, ch. 3 (last updated Aug. 23, 2017), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartMChapter3.html (citing In re Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)).
104. Advance parole is unlawful as applied to DACA recipients over 18.5 years of age because those aliens are reentry-barred under 8 U.S.C. § 1182(a)(9)(B) and the Executive has not purported to excuse that bar under the limited exception of § 1182(a)(9)(B)(v).
105. Independently, advance parole is unlawful as it has been applied to all DACA recipients because the Executive has not required DACA recipients to qualify for the “urgent humanitarian reasons” or “significant public benefit” statutory requirements for parole. Id. § 1182(d)(5)(A).
106. For an alien to be eligible to adjust to lawful-permanent-resident status (and thus obtain a pathway to United States citizenship), the alien must be lawfully “admitted or paroled into the United States.” Id. § 1255(a).
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107. Thus, leaving and reentering the United States with advance parole removes a significant impediment for some otherwise unlawfully present aliens to seek adjustment to LPR status (which entails a pathway to United States citizenship). See Immigrant Legal Res. Ctr., Practice Advisory: DACA, Advance Parole, and Family Petitions 2-3, 7 (June 2016), https://www.ilrc.org/sites/default/ files/resources/prac_adv-daca_advance_parole_fam_pet-20160531.pdf.
108. Indeed, DACA recipients have successfully adjusted their status after being paroled back into the United States. See, e.g., id. at 7.
109. As of December 31, 2015, at least 2,994 DACA recipients were approved for adjustment to LPR status. See Letter from León Rodríguez, Dir., USCIS, to Hon. Charles E. Grassley (June 29, 2016), https://www.judiciary.senate.gov/imo/media/ doc/2016-06-29%20USCIS%20to%20CEG%20-%20DACA%20Advance%20Parole%20 Program.pdf.
110. As of August 21, 2017, approximately 39,514 DACA recipients were adjusted to LPR status. See Press Release, Office of Sen. Chuck Grassley, Data Indicate Unauthorized Immigrants Exploited Loophole to Gain Legal Status, Pathway to Citizenship (Sept. 1, 2017), https://www.grassley.senate.gov/news/newsreleases/data-indicate-unauthorized-immigrants-exploited-loophole-gain-legal-status.
111. Thus, some individuals now have a previously unavailable pathway to United States citizenship on account of receiving DACA, even though the June 15, 2012 DACA memo said that DACA would confer no pathway to United States citizenship.
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112. Of those aliens, as of August 21, 2017, approximately 2,181 DACA recipients have applied for United States citizenship, and approximately 1,056 DACA recipients have been granted United States citizenship. See id.
113. By enabling this pathway to citizenship, DACA provided an additional incentive for unlawfully present aliens, who would otherwise be subject to up to a tenyear reentry ban, to remain in the United States rather than return to their country of nationality. Cf. Texas, 86 F. Supp. 3d at 635.
114. For an alien whose pathway to citizenship (for example, through an immigrant visa from marriage to a United States citizen) is foreclosed by his accrued unlawful presence, traveling to the alien’s home country and returning with advance parole is likely preferable to returning to the alien’s home country and waiting out a ten-year unlawful-presence reentry bar.
115. Because it is unlawful to grant advance parole premised on DACA status, it is unlawful for the Executive to adjust an alien’s status to lawfulpermanent-resident status based on that advance parole.
116. Consequently, it is unlawful for the Executive to confer lawfulpermanent-resident status or United States citizenship on DACA recipients who were ineligible to adjust their status but for advance parole.
117. Before the 2012 DACA memo issued, former President Obama asked the Department of Justice’s Office of Legal Counsel (“OLC”) whether DACA “would be legally permissible.” Memorandum Opinion for the Secretary of Homeland Security
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and the Counsel to the President 18 n.8 (Nov. 19, 2014) (“OLC Memo”), attached as Exhibit 4.
118. The OLC Memo never mentioned that DACA or Expanded DACA confers lawful presence.
119. The OLC Memo never mentioned that DACA or Expanded DACA could confer a pathway to citizenship.
120. OLC’s “preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis.” Id.
121. OLC explained that “extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Id.
122. OLC “advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-bycase basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.” Id. IV. The Obama Administration’s Refusal to Follow Immigration Laws
Caused a Humanitarian Crisis. 123. The Executive Branch did not stop at DACA with dispensing with the Nation’s immigration laws. Rather, the former Presidential Administration adopted a policy that encouraged international child smuggling across the Texas-Mexico
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border. See Order at 2, United States v. Nava-Martinez, No. 1:13-cr-00441 (S.D. Tex. Dec. 13, 2013), ECF No. 37.
124. The defendant in Nava-Martinez, an admitted human trafficker, was caught attempting to smuggle a ten-year-old Salvadoran girl into the United States. Id. at 1.
125. In Nava-Martinez, the district court noted that this was “the fourth case with the same factual situation this Court has had in as many weeks.” Id. at 3. Although the human traffickers were apprehended in each case, “the DHS completed the criminal conspiracy . . . by delivering the minors to the custody of the parent.” Id.
126. This was done pursuant to DHS’s “apparent policy . . . of completing the criminal mission of individuals who are violating the border security of the United States.” Id. at 2. As the district court observed, “[t]his DHS policy is a dangerous course of action.” Id. Under the policy, “instead of enforcing the laws of the United States, the Government [takes] direct steps to help the individuals who violated it.” Id. at 3.
127. Moreover, the district court found that DHS’s policy promotes human trafficking, which in turn “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico.” Id. at 6. The district court explained that citizens of the United States bear the economic brunt of this policy, because DHS “fund[s] these evil ventures with their tax dollars.” Id. at 8. In addition, the policy harms the citizens of each country that suffers from the “nefarious activities of the cartels.” Id.
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128. DACA and the policy described in Nava-Martinez have had and continue to have dire consequences in Plaintiff States. In the summer of 2014, an enormous wave of unlawfully present aliens surged across the Texas-Mexico border, creating what President Obama described as a “humanitarian crisis.” Nick Miroff & Joshua Partlow, Central American Migrants Overwhelm Border Patrol Station in Texas, WASH. POST (June 12, 2014).
129. Law enforcement officers reported “picking up children as young as 4 without their parents and other children with Hello Kitty backpacks, cellphones and the telephone numbers of U.S. relatives on note cards.” Miroff & Partlow, supra.
130. But the humanitarian crisis is by no means limited to unaccompanied children. “[A]n unprecedented surge of families crossing illegally into the U.S.” has also been recognized. Cindy Carcamo, Rumors of U.S. Haven for Families Spur Rise in Illegal Immigration, L.A. TIMES (June 6, 2014). While immigration officials do not have an official count of such families, they have acknowledged that “the numbers appear to be substantial.” Id.
131. This wave of immigration was concentrated in the Rio Grande Valley of South Texas. Miroff & Partlow, supra. A June 2014 report noted that “[e]very day, hundreds of Central American migrants, in groups as large as 250 people, are wading across the muddy Rio Grande.” Id.
132. The crisis has imposed enormous law enforcement costs on Plaintiff States. For example, the Texas Department of Public Safety estimated in 2014 that it spent $1.3 million a week on troopers and resources to deal with the immigration
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surge; in addition, former Governor Perry deployed 1,000 National Guard troops to the border at a cost of $38 million.
133. This crisis was caused by the immigration policies of the federal government, including the policy already held to be unlawful. As Ronald D. Vitiello, then serving as Deputy Chief of U.S. Border Patrol, reportedly explained in a 2014 memorandum (“Vitiello Memorandum”), “[i]f the U.S. government fails to deliver adequate consequences to deter aliens from attempting to illegally enter the U.S., the result will be an even greater increase in the rate of recidivism and first-time illicit entries.” The Obama Administration acknowledged that there was a “growing perception minors are crossing the border because they feel they will not be deported by the administration.” Brett LoGiurato, There’s a Staggering Humanitarian Crisis on the US Border, and It’s Only Going to Get Worse, BUS. INSIDER (June 16, 2014). Indeed, a research report commissioned by DHS revealed that “[w]ord had spread in Central America about a ‘lack of consequences’ for illegal entry” and that “[s]mugglers were exploiting the system.” Susan Carroll, Report Warned of Child Migrant Crisis, HOUSTON CHRON. (June 17, 2014).
134. Former President Obama himself predicted this outcome. On July 1, 2010, he explained that it would be “both unwise and unfair” to “ignore the laws on the books and put an end to deportation” because it “would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision.” That in turn, President Obama recognized, “could lead to a surge in more illegal immigration.” As President Obama concluded, “no matter how decent they are, no
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matter their reasons, the 11 million who broke these laws should be held accountable.” President Barack Obama, Remarks on Comprehensive Immigration Reform (July 1, 2010), https://obamawhitehouse.archives.gov/the-pressoffice/remarks-president-comprehensive-immigration-reform.
135. The Obama Administration, however, contributed to the surge of illegal immigration by refusing to enforce the laws on the books. On average, only 1,600 unaccompanied children are removed each year; in 2013, there were over 20,000 detentions of unaccompanied children from Guatemala, Honduras, and El Salvador, but only 496 unaccompanied children from those countries were repatriated. Carroll, supra. The total number of unlawfully present children deported by the Obama Administration in 2013 was only 1,669—an 80 percent reduction from 2008. Brian Bennett, Deportation Data Won’t Dispel Rumors Drawing Migrant Minors to U.S., L.A. TIMES (July 5, 2014).
136. By fiscal year 2016, the number of unaccompanied children captured at the border spiked to nearly 60,000. See Press Release, United States Border Patrol Southwest Family Unit Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016: Statement by Secretary Johnson on Southwest Border Security (Oct. 18, 2016), https://www.cbp.gov/newsroom/stats/southwest-borderunaccompanied-children/fy-2016.
137. Similarly, adults with children who are detained at the border are routinely released and allowed to travel within the United States. Carcamo, supra. And while they may be instructed to show up for a follow-up appointment, “ICE
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officials said they couldn’t guarantee that they would pursue all cases in which immigrants do not show up for follow-up appointments.” Id. Tellingly, the immigrants arrested for illegally entering the U.S. refer to ICE’s Notice to Appear documents as “permisos,” or permits. Byron York, On Immigrant Surge, White House Story Falls Apart, WASH. EXAMINER (June 16, 2014).
138. Unsurprisingly, the unlawfully present aliens crossing the border are motivated primarily by the belief that they will not be deported. The federal government’s own analysis demonstrates as much. When Border Patrol agents recently questioned 230 unlawfully present aliens about why they came, “[t]he results showed overwhelmingly that the immigrants, including those classified as . . . unaccompanied children, were motivated by the belief that they would be allowed to stay in the United States.” Id.
139. Multiple reports indicate that unlawfully present aliens are counting on federal officials for help in reuniting with their friends or family in the U.S. According to a June 2014 report, hundreds of Central American migrants were “turni n g themselves in to the Border Patrol” on a daily basis. Miroff & Partlow, supra. One unlawfully present alien stated that she and her group “had looked forward to being caught . . . at one point even waving down federal helicopters . . . because of the welcoming treatment they had assumed they would receive.” Carcamo, supra. Another planned to surrender to Border Patrol because she had heard “that the Americans are helping Hondurans right now,” especially women and children. Miroff & Partlow, supra. All of the 230 unlawfully present aliens interviewed by Border
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Patrol agents for their report “stated that they had family members or, to a lesser extent, friends already living in the U.S.” York, supra.
140. The Obama Administration conceded that its failure to enforce the federal immigration laws increased the flow of illegal immigration across the TexasMexico border. See Vitiello Memorandum, supra.
141. The effects of that failure have caused acute crises in Plaintiff States. V. Former President Obama “Change[d] the Law” Again—Through the
2014 DHS Memorandum Creating Expanded DACA and DAPA. 142. Between the unveiling of the 2012 DACA memorandum and the midterm elections in November 2014, former President Obama repeatedly stated that any extension of DACA would be unlawful and would have to be accomplished by legislation. He said, for instance: x “[A]s the head of the executive branch, there’s a limit to what I can do. . . .
[U]ntil we have a law in place that provides a pathway for legalization and/or citizenship for the folks in question, we’re going to . . . continue to be bound by the law.” President Barack Obama, Remarks at Univision Town Hall with Jorge Ramos and Maria Elena Salinas (Sept. 20, 2012), https://obamawhitehouse.archives.gov/the-pressoffice/2012/09/20/remarks-president-univision-town-hall-jorge-ramos-andmaria-elena-salina. x “We are a nation of immigrants. . . . But we’re also a nation of laws. So what I’ve said is we need to fix a broken immigration system. And I’ve done everything I can on my own.” President Barack Obama, Remarks at Second
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Presidential

Debate

(Oct.

16,

2012),

https://obamawhitehouse.archives.gov/the-press-

office/2012/10/17/remarks-president-and-governor-romney-second-

presidential-debate.

x In response to a question about the possibility of a moratorium on

deportations for non-criminals: “I’m not a king. I am the head of the

executive branch of government. I’m required to follow the law.” President

Barack Obama, Interview with Univision (Jan. 30, 2013),

http://abcnews.go.com/ABC_Univision/Politics/transcript-president-

barack-obama-interview-univisions-maria-elena/story?id=18365068.

x In response to the question whether he could do for “an undocumented

mother of three” what he did for DACA recipients: “I’m not a king. . . . [W]e

can’t simply ignore the law. When it comes to the dreamers– we were able

to identify that group . . . . But to sort through all the possible cases– of

everybody who might have a sympathetic story to tell is very difficult to do.

This is why we need comprehensive immigration reform. . . . [I]f this was

an issue that I could do unilaterally I would have done it a long time ago. .

. . The way our system works is Congress has to pass legislation. I then get

an opportunity to sign it and implement it.” President Barack Obama,

Interview

with

Telemundo

(Jan.

30,

2013),

http://nbclatino.com/2013/01/30/obama-tells-telemundo-he-hopes-for-

immigration-overhaul-within-6-months/.

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x “[T]his is something I’ve struggled with throughout my presidency. The problem is that . . . I’m the president of the United States. I’m not the emperor of the United States. . . . And what that means is that we have certain obligations to enforce the laws that are in place . . . . [W]e’ve kind of stretched our administrative flexibility as much as we can.” President Barack Obama, Remarks on Immigration Reform (Feb. 14, 2013), https://www.youtube.com/watch?v=-e9lmy_8FZM&feature=youtu.be.
x “I think that it is very important for us to recognize that the way to solve this problem has to be legislative. . . . And we’ve been able to provide help through deferred action for young people and students . . . . But this is a problem that needs to be fixed legislatively.” President Barack Obama, Interview with Univision (July 16, 2013), http://communicationsunivisionnews.tumblr.com/post/55694544539/univision-news-transcriptadriana-vargas.
x “[M]y job in the executive branch is supposed to be to carry out the laws that are passed. Congress has said ‘here is the law’ when it comes to those who are undocumented, and they’ve allocated a whole bunch of money for enforcement. . . . What we can do is then carve out the DREAM Act, saying young people who have basically grown up here are Americans that we should welcome. . . . But if we start broadening that, then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally. So that’s not an option. . . . What I’ve said is . . . there’s a path to get
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this done, and that’s through Congress.” President Barack Obama,

Interview

with

Telemundo

(Sept.

17,

2013),

https://www.realclearpolitics.com/video/2013/09/17/obama_halting_deport

ations_not_an_option_would_be_ignoring_the_law.html (emphasis added).

x “[I]f, in fact, I could solve all these problems without passing laws in

Congress, then I would do so. But we’re also a nation of laws. That’s part of

our tradition. And so the easy way out is to try to yell and pretend like I can

do something by violating our laws. And what I’m proposing is the harder

path, which is to use our democratic processes to achieve the same goal that

you want to achieve.” President Barack Obama, Remarks on Immigration

Reform in San Francisco, California (Nov. 25, 2013),

https://obamawhitehouse.archives.gov/the-press-

office/2013/11/25/remarks-president-immigration-reform-san-francisco-ca.

x “[W]hat I’ve said in the past remains true, which is until Congress passes a

new law, then I am constrained in terms of what I am able to do. What I’ve

done is to use my prosecutorial discretion . . . . What we’ve said is focus on

folks who are engaged in criminal activity, focus on people who are engaged

in gang activity. Do not focus on young people, who we’re calling DREAMers

. . . . That already stretched my administrative capacity very far. But I was

confident that that was the right thing to do. But at a certain point the

reason that these deportations are taking place is, Congress said, [‘]you

have to enforce these laws.[’] They fund the hiring of officials at the

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department that’s charged with enforcing. And I cannot ignore those laws

any more than I could ignore, you know, any of the other laws that are on

the books.” President Barack Obama, Interview with Univision (Mar. 6,

2014),

http://communications-

univisionnews.tumblr.com/post/79266471431/univision-news-transcript-

interview-with (emphasis added).

143. Former President Obama repeatedly called on Congress to pass an

immigration reform bill. Congress did not do so.

144. After being rebuffed by Congress again, former President Obama

announced that he would unilaterally create a program conferring lawful presence

and work authorizations for an additional estimated 4 million unlawfully present

aliens.

145. On November 20, 2014, former DHS Secretary Johnson issued the

DAPA memo creating Expanded DACA and DAPA. See Texas, 809 F.3d at 146-48;

Exhibit 3.

146. Like the DACA memo, the DAPA memo again created a class-based

deferred-action program—that confers eligibility for lawful presence and work

authorization—without congressional authorization or notice-and-comment

procedure.

147. The DAPA memo first expanded the class eligible for DACA relief by:

(1) eliminating the DACA criteria’s age cap, (2) increasing the DACA term from two

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years to three years, and (3) pushing the DACA date-of-entry deadline from 2007 to 2010. Exhibit 3 at 3-4.
148. The DAPA memo then directed USCIS “to establish a process, similar to DACA,” for granting three-year terms of deferred action to a new class of aliens: unlawfully present aliens who were parents of United States citizens and other lawful permanent residents who were not enforcement priorities. Id. at 4.
149. Together, the coverage criteria for DAPA and Expanded DACA would have covered approximately 40% of the country’s known population of unlawfully present aliens.
150. The 2014 DAPA and Expanded DACA—like the original 2012 DACA— did not merely forbear from removing aliens who qualified. All three affirmatively granted lawful presence and eligibility for work authorization to those who would otherwise be unlawfully present and unauthorized to work.
151. The November 20, 2014 DAPA memo stated that “[t]his memorandum confers no . . . pathway to citizenship.” Id. at 5.
152. The DAPA memo stated that “deferred action . . . may be terminated at any time at the agency’s discretion.” Id. at 2.
153. Former President Obama candidly admitted that his plan, through these programs, was unilateral legislation: “What you’re not paying attention to is, I just took an action to change the law.” Steven T. Dennis, Obama on Immigration: “I Just Took an Action to Change the Law,” ROLL CALL (Nov. 25, 2014) (emphasis added),
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http://www.rollcall.com/news/home/immigration-reform-news-obama-immigrationaction-law.
154. Former President Obama further admitted that he was changing the law because Congress chose not to: “[T]o those members of Congress who question my authority to make our immigration system work better . . . I have one answer: Pass a bill. . . . And the day I sign that bill into law, the actions I take will no longer be necessary.” President Barack Obama, Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014), https://obamawhitehouse.archives.gov/thepress-office/2014/11/20/remarks-president-address-nation-immigration.
155. Former President Obama also made clear that he was “offer[ing] the following deal” to unlawfully present aliens: “[I]f you’ve taken responsibility, you’ve registered, undergone a background check, you’re paying taxes, you’ve been here for five years, you’ve got roots in the community—you’re not going to be deported. . . . If you meet the criteria, you can come out of the shadows, you can get right with the law.” President Barack Obama, Remarks by the President on Immigration (Nov. 21, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/11/21/remarkspresident-immigration.
156. Through the creation of Expanded DACA and DAPA, the Obama Administration again dispensed with certain of the Nation’s immigration laws without congressional approval.
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VI. Courts Rule that Expanded DACA and DAPA are Unlawful, Stopping Former President Obama’s Unlawful Executive Overreach. 157. On December 3, 2014, Plaintiffs and other States filed a lawsuit in this
district court seeking to immediately halt the implementation of Expanded DACA and DAPA.
158. On February 16, 2015, the district court granted the requested relief and issued a preliminary injunction of Expanded DACA and DAPA. In its opinion, the district court explained, despite the Defendants’ claims to the contrary, that the plaintiffs were likely to succeed on the merits of their claim and that they would suffer irreparable harm if Expanded DACA and DAPA went into effect. Texas, 86 F. Supp. 3d at 671-72, 674.
159. The Defendants issued Expanded DACA permits both before and after the district court entered the preliminary injunction of the 2014 memorandum. Texas v. United States, No. 1:14-cv-254, 2016 WL 3211803 (S.D. Tex. May 19, 2016).
160. The district court, see Texas v. United States, No. 1:14-cv-254, 2015 WL 1540022, at *8 (S.D. Tex. Apr. 7, 2015), and the Fifth Circuit, Texas v. United States, 787 F.3d 733, 769, 784 (5th Cir. 2015), denied a stay of the preliminary injunction.
161. The Defendants appealed from the district court’s preliminary injunction. The Fifth Circuit affirmed, finding that the plaintiffs had standing to challenge the Executive’s class-based deferred-action programs that grant lawful presence and work authorization, that such programs are judicially reviewable, that Expanded DACA and DAPA were unlawful both procedurally (as promulgated without notice and comment) and substantively (as foreclosed by substantive federal
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statutes), and that the plaintiffs satisfied the equitable requirements for a preliminary injunction. Texas, 809 F.3d at 150-88.
162. On June 23, 2016, the Supreme Court affirmed the Fifth Circuit’s judgment by an equally divided Court. Texas, 136 S. Ct. 2271. VII. On June 15, 2017, DHS Secretary Kelly Rescinded the 2014 DAPA and
Expanded DACA Memo, But the Secretary Left in Effect the 2012 DACA Program and Some Expanded DACA Permits Granted Under the Rescinded 2014 Memo. 163. On July 18, 2016, the Defendants filed a petition for rehearing in the Supreme Court. The parties to the DAPA litigation agreed to continue to stay all merits proceedings before the district court until the Supreme Court ruled on the petition. Texas, No. 1:14-cv-254 (S.D. Tex. Aug. 31, 2016) (Text Order). 164. On October 3, 2016, the Supreme Court denied the Defendants’ petition for rehearing. United States v. Texas, 137 S. Ct. 285 (2016). 165. On November 18, 2016, the parties to the DAPA lawsuit filed a joint motion to stay the merits proceedings until February 20, 2017, to allow the new Presidential Administration time to consider its position. Joint Motion to Stay Merits Proceedings, Texas, No. 1:14-cv-254 (S.D. Tex. Nov. 18, 2016), ECF No. 430. 166. On January 19, 2017, the district court granted a stay of merits proceedings in the DAPA litigation until March 17, 2017. Texas, No. 1:14-cv-254 (S.D. Tex. Jan. 19, 2017) (Order), ECF No. 435. 167. On March 17, 2017, the Defendants filed another unopposed motion to stay district court proceedings in the DAPA lawsuit—this time seeking until June 15, 2017 to propose a scheduling order. Unopposed Motion to Stay Merits Proceedings,
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Texas, No. 1:14-cv-254 (S.D. Tex. Mar. 17, 2016), ECF No. 438. 168. On March 22, 2017, the district court granted the stay of the DAPA
litigation and ordered the parties to propose a discovery schedule by June 15, 2017. Texas, No. 1:14-cv-254 (S.D. Tex. Mar. 22, 2017) (Order), ECF No. 439.
169. On June 15, 2017, the Defendants again requested a two-week stay of merits proceedings in the DAPA lawsuit. Unopposed Motion to Stay Merits Proceedings, Texas, No. 1:14-cv-254 (S.D. Tex. June 15, 2017), ECF No. 444.
170. On that same date—June 15, 2017—former DHS Secretary Kelly issued a new memorandum “rescind[ing] the November 20, 2014 DAPA memorandum and the policies announced therein.” Exhibit 5 at 2.
171. Secretary Kelly added that “[t]he June 15, 2012 DACA memorandum, however, will remain in effect.” Id.
172. Secretary Kelly also explained that his memorandum did “not alter the remaining periods of deferred action under the Expanded DACA policy granted between issuance of the November 20, 2014 Memorandum and the February 16, 2015 preliminary injunction order in the Texas litigation, nor does it affect the validity of related Employment Authorization Documents (EADs) granted during the same span of time.” Id. at 2 n.3.
173. Secretary Kelly “remind[ed] [USCIS] officers that (1) deferred action, as an act of prosecutorial discretion, may only be granted on a case-by-case basis.” Id.
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174. This reminder echoes the DACA memo language that the district court found pretextual in Texas’s challenge to DAPA and Expanded DACA. See Texas, 86 F. Supp. 3d at 669 n.101. VIII. On September 5, 2017, DHS Withdrew the 2012 DACA Memorandum in
Response to an Imminent Legal Challenge Threatened by Plaintiffs and Other States. 175. On June 29, 2017, Texas Attorney General Ken Paxton, the attorneys general of nine other states (including Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia), and the governor of Idaho sent a letter to the federal Executive Branch urging the Trump Administration to phase out DACA. See Exhibit 6. 176. Plaintiffs’ June 29, 2017 letter requested “that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future.” Id. at 2. 177. Plaintiffs’ letter explained how DACA is unlawful under the Fifth Circuit’s decision in Texas. Id. at 1-2. 178. Plaintiffs’ letter proposed a resolution of the then-pending lawsuit, and avoiding additional litigation relating to DACA: “If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or Expanded DACA permits in the future, then the plaintiffs that successfully challenged DAPA and Expanded DACA will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas. Otherwise,
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the complaint in that case will be amended to challenge both the DACA program and

the remaining Expanded DACA permits.” Id. at 2.

179. On September 4, 2017, United States Attorney General Sessions wrote

the DHS Acting Secretary, advising that DHS should rescind DACA. Letter from

Attorney

General

Sessions

to

Acting

Secretary

Duke,

https://www.dhs.gov/sites/default/files/publications/17_0904_DOJ_AG-letter-

DACA.pdf.

180. Attorney General Sessions noted that “DACA was effectuated by the

previous administration through executive action, without proper statutory authority

and with no established end-date, after Congress’ repeated rejection of proposed

legislation that would have accomplished a similar result.” Id.

181. Attorney General Sessions advised: “Because the DACA policy has the

same legal and constitutional defects that the courts recognized as to DAPA, it is

likely that potentially imminent litigation would yield similar results with respect to

DACA.” Id.

182. On September 5, 2017, United States Attorney General Sessions

publicly announced that DHS would rescind the 2012 DACA memorandum. U.S.

Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5,

2017),

https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-

remarks-daca.

183. During his remarks, Attorney General Sessions stated that by

implementing DACA the Obama Administration had “deliberately sought to achieve

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what the legislative branch specifically refused to authorize on multiple occasions” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Id.
184. Attorney General Sessions further explained that DACA was “vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program” and that if DHS decided to maintain DACA, “the likeliest outcome is that it would be enjoined just as was DAPA.” Id.
185. Attorney General Sessions also observed that “[t]he effect of [DACA], among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.” Id.
186. On September 5, 2017, DHS issued a memorandum rescinding the 2012 DACA memorandum. See Exhibit 7.
187. The September 2017 memorandum initiated the DACA wind-down process. The memorandum provided that DHS would “adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of [September 5, 2017], 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 5.
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188. The September 2017 memorandum allowed for the orderly phase-out of DACA.
189. DHS’s September 2017 memorandum and the impending wind-down of DACA thus satisfied the condition proposed by Plaintiffs’ June 29, 2017 letter for ending the then-pending lawsuit and avoiding additional litigation regarding DACA.
190. The Plaintiffs therefore did not file an amended complaint challenging DACA in September 2017.
191. Instead, the parties to the then-pending DAPA/Expanded DACA lawsuit filed a stipulation of dismissal on September 12, 2017, in that suit. Stipulation of Dismissal, Texas, No. 1:14-cv-254 (S.D. Tex. Sept. 12, 2017), ECF No. 473, IX. Following the September 2017 Memorandum, Numerous Parties Seek
to Halt the Recession of DACA—Acknowledging, in the Process, that DACA Was Never Lawful. 192. Following DHS’s September 2017 DACA rescission memorandum, lawsuits were filed claiming that the decision to rescind DACA was itself unlawful. Five of these actions were filed in the U.S. District Court for the Northern District of California, and at least four other lawsuits were filed in other federal district courts. See Complaint, Trs. of Princeton Univ. v. United States, No. 1:17-cv-2325 (D.D.C. Nov. 3, 2017), ECF No. 1; Complaint, NAACP, No. 1:17-cv-1907 (D.D.C. Apr. 24, 2018), ECF No. 1; 2d Am. Complaint, Vidal v. Nielsen, No. 1:16-cv-4756 (E.D.N.Y. Sept. 29, 2017), ECF No. 29; Complaint, New York v. Trump, No. 1:17-cv-5228 (E.D.N.Y. Sept. 6, 2017), ECF No. 1.
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193. In those challenges to the 2017 executive action, the plaintiffs’ own pleadings essentially concede that DACA itself was unlawful because—as Plaintiff States allege in this suit—it was a substantive rule that modified rights and was thus required to go through APA notice-and-comment procedures.
194. For example, in a challenge brought by the University of California, the plaintiffs claim that the September 2017 rescission memorandum “constitutes a substantive rule subject to APA’s notice-and-comment requirements.” Complaint 14, Regents of Univ. of Cal. v. Dep’t of Homeland Sec., No. 3:17-cv-5211 (N.D. Cal. Sept. 8, 2017), ECF No. 1. This statement could be true only if DACA, the program being rescinded, was itself a substantive rule.
195. The University of California plaintiffs further admit that DACA unilaterally modified rights by conferring 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. Id. at 8. 196. In the same litigation, the State of California concedes that “DACA Provides Numerous Benefits,” which they describe in detail: 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 under certain circumstances, such as to visit an ailing relative, attend funeral services for a family member, seek medical treatment, or further educational or employment purposes. 8 U.S.C. § 1182(a)(9)(B)(i); see also Ex. E,
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USCIS, Frequently Asked Questions, DHS DACA FAQs (“DACA FAQs”) (Apr. 25, 2017) Q57. Travel for vacation is not permitted.
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). As a result, and in reliance on DHS’s oft-stated position that DACA and similar programs are a lawful exercise of the agency’s authority, Plaintiff States have structured some schemes around DACA which allow, for example, applicants to demonstrate eligibility for state programs by producing documentation that they have been approved under DACA. The rescission of DACA undermines such regulatory frameworks.
86. DACA grantees are able to secure equal access to other benefits and opportunities on which Americans depend, including opening bank accounts, obtaining credit cards, starting businesses, purchasing homes and cars, and conducting other aspects of daily life that are otherwise often unavailable for undocumented immigrants.
Complaint at 17-18, California v. U.S. Dep’t of Homeland Sec., No. 3:17-cv-5235 (N.D.
Cal. Sept. 11, 2017), ECF No. 1 (emphases added).
197. In the New York lawsuit, the plaintiffs similarly allege that DACA
affirmatively confers benefits—that is, that DACA alters substantive rights:
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 during the time period their deferred action is in effect. See Ex. 14, Question 9. . . . .
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). In the State of Washington, DACA holders also are eligible for certain state financial aid programs and state-funded food assistance. See Wash. Rev. Code § 28B.92.010; Wash. Admin.
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Code §§ 388-400-0050, 388-424-0001, 388-424-0030. In the State of New York, DACA holders are eligible for teaching and nursing licenses. See Comm. of Educ. Regs. §§ 59.4; 80-1.3; Ex. 78 (NYS Board of Regents Press Release, Feb. 24, 2016). Complaint at 41, New York, No. 1:17-cv-5228, ECF No. 1 (emphases added). 198. Like the California plaintiffs, the New York plaintiffs have likewise tacitly admitted that DACA was a substantive rule because it modified rights: 289. In implementing the DHS Memorandum, federal agencies have changed the substantive criteria by which individuals 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. 199. If DACA’s rescission affected substantial rights, as the challengers to DHS’s September 2017 memorandum claim, then DACA also affected substantial rights and was unlawful in the first place as alleged in the instant lawsuit. X. The Northern District of California Enjoins DHS’s Wind-Down of DACA. 200. On January 9, 2018, the U.S. District Court for the Northern District of California issued an injunction in the challenge brought by the University of California and other plaintiffs to the 2017 executive action rescinding DACA. See Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018). The Northern District of California ordered DHS, “pending final judgment herein or other order, to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5,
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2017, including allowing DACA enrollees to renew their enrollments,” subject to several exceptions. See id. at 1048-49.
201. The Northern District of California’s order stated that “new applications from applicants who have never before received deferred action need not be processed.” Id. at 1048.
202. The Northern District of California further indicated that “the advance parole feature need not be continued for the time being for anyone,” id., and that this injunction order “will not require advance parole,” id. at 1049.
203. The Northern District of California concluded that DHS “may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.” Id. at 1048.
204. DHS also was ordered to “post reasonable public notice that it will resume receiving DACA renewal applications and prescribe a process consistent with” the Northern District of California’s order. Id.
205. On April 24, 2018, the U.S. District Court for the District of Columbia issued an order in the challenge brought by the NAACP and other plaintiffs to the 2017 executive action rescinding DACA. See NAACP, 2018 WL 1920079, at *1-28. The district court ordered that it would “vacate the Department’s September 5, 2017 decision to rescind the DACA program” and “grant plaintiffs’ motion for partial summary judgment as to their substantive APA claim.” Id. at *28.
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206. The district court found that the “[v]acatur of DACA’s rescission will mean that DHS must accept and process new as well as renewal DACA applications.” Id. at *1.
207. The District of Columbia district court stated that it would “stay its order of vacatur for 90 days, however, to afford DHS an opportunity to better explain its view that DACA is unlawful.” Id. at *28.
208. The Northern District of California’s injunction of the Executive’s 2017 decision to wind down DACA and the District of Columbia’s vacatur of the wind-down decision forced this lawsuit to declare whether the Executive had authority to promulgate DACA in the first place. Because DACA is still in effect, the basis upon which Plaintiffs agreed to resolve the prior litigation has been frustrated, and Plaintiffs therefore effectuate their previously stated plans “to challenge both the DACA program and [any] remaining Expanded DACA permits.” Exhibit 6 at 2.
THEORIES OF RELIEF 209. Because permits issued under the Executive’s unlawful class-based “deferred action” programs created by the former Presidential Administration remain in existence, Plaintiffs file this Complaint challenging those unlawful acts. 210. DACA is unlawful for the same reasons that courts held Expanded DACA and DAPA unlawful: The Executive does not have the unilateral power to confer eligibility for lawful presence or work authorization on unlawfully present aliens simply because the Executive chooses not to remove them. See Texas, 809 F.3d at 179-81.
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211. But for the Executive’s implementation of DACA, aliens covered by that program would not be eligible for lawful presence, and would be removable under the INA.
212. But for the Executive’s implementation of DACA, aliens covered by that program would not be eligible for work authorization.
213. But for the Executive’s implementation of the program, many DACA recipients would not be eligible for lawful-permanent-resident status by obtaining advance parole.
214. But for the Executive’s implementation of the program, many DACA recipients would not be eligible for United States citizenship by obtaining advance parole.
215. Thus, Plaintiffs challenge, at a minimum, (1) the 2012 DACA memo issued by former Secretary Napolitano, (2) the implementation of that 2012 DACA memo, (3) the part of former Secretary Kelly’s June 2017 memo retaining the 2012 DACA memo, and (4) any DACA permits that remain in effect.
216. On belief, no three-year Expanded DACA permits currently remain in effect or will be issued, because such three-year permits were last issued on or before March 2015 (over three years ago) and have not been renewed since that time because of this Court’s February 2015 preliminary injunction of Expanded DACA and the Executive Branch’s later June 2017 memorandum rescinding Expanded DACA.
217. If that belief regarding Expanded DACA permits is incorrect, however, Plaintiffs also challenge (1) any part of former Secretary Johnson’s 2014 memo
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creating Expanded DACA that may remain in effect when combined with former Secretary Kelly’s June 2017 memo retaining a subset of previously granted Expanded DACA permits, (2) the part of former Secretary Kelly’s June 2017 memo retaining a subset of previously granted Expanded DACA permits, and (3) any Expanded DACA permits that remain in effect. All arguments below concerning DACA equally apply to Expanded DACA.
218. DACA violates the APA’s notice-and-comment requirements, is contrary to law under the APA, and violates the Take Care Clause. I. The Plaintiffs Have Standing.
219. The Plaintiff States have standing because they have a “personal stake” in the outcome of this litigation. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014).
220. The Plaintiff States have suffered, and will continue to suffer, concrete injuries that are traceable to DACA, and an injunction of DACA will redress those injuries.
221. DACA imposes significant costs on Plaintiff States. As the Supreme Court has explained, States “bear[] many of the consequences of unlawful immigration.” Arizona, 567 U.S. at 397.
222. Only one plaintiff needs standing for an Article III case or controversy to exist. See Texas, 809 F.3d at 151 (citing Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)).
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223. Once a concrete injury is shown, the magnitude of that injury is irrelevant to the standing inquiry. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 52526 (2007).
224. Both the district court and the Fifth Circuit already have concluded that Plaintiff States have standing to challenge the Executive’s unilateral actions conferring class-based deferred action to grant lawful presence and work authorizations.
225. DACA’s conferral of lawful presence triggers eligibility for benefits— some of which are paid for by Plaintiff States. Id. at 148-49 (explaining lawful presence status qualifies recipients for Social Security, disability benefits, Medicare, work authorization, unemployment benefits, and driver’s licenses).
226. If Plaintiff States sought to change their benefits programs to prevent DACA recipients from being eligible, Plaintiff States would be threatened with federal preemption through the operation of DACA as it relates to their benefits programs. The Ninth Circuit enjoined—as preempted by federal law—Arizona’s state law that prevented the State of Arizona from issuing driver’s licenses to DACA recipients. Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 975 (9th Cir. 2017), cert. denied, 138 S. Ct. 1279 (2018). The Ninth Circuit purported to rest its ruling on the basis that the INA’s alien classifications preempted Arizona’s law, id., and that is just another way of ruling that DACA is lawful and its lawful-presence designation is lawful as consonant with the INA. DACA’s lawful-presence designation, in turn, is what the Ninth Circuit held preempted Arizona’s law. After all, without the DACA
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program, DACA recipients would not be deemed lawfully present. The Plaintiff States’ benefits programs are threatened by such alleged preemption, thus representing an injury imposed by DACA.
227. Other financial injuries to Plaintiff States are caused by DACA’s granting of lawful presence and work authorization. For instance, federal work authorization functions as a precondition for certain professional licenses in Plaintiff States. See, e.g., 16 Tex. Admin. Code § 33.10 (requiring applicants for an alcoholic beverage license to be “legally authorized to work in the United States”); Tex. Bd. of Law Exam’rs, Rules Governing Admission to the Bar of Tex., R. II(a)(5)(J) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).
228. Additionally, Plaintiff States have incurred considerable financial injuries on education, healthcare, and law-enforcement costs caused by DACA.
229. The Plaintiff States would not otherwise incur certain costs associated with education, healthcare, and law enforcement but for DACA. See Texas, 86 F. Supp. 3d at 628-30.
230. DACA incentivizes aliens—who would otherwise be unlawfully present and unauthorized to work without these programs—to remain in the country. Id. at 634-35.
231. Because additional aliens will remain in Plaintiff States, those aliens will cause Plaintiff States to incur additional financial costs—particularly education, healthcare, and law-enforcement costs.
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232. States are required by federal law to incur some of these costs. For example, the Supreme Court has held that States are constitutionally obligated to provide free education to children of unlawfully present aliens. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of lawful-presence status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.255.
233. As the district court found in Plaintiffs’ challenge to DAPA and Expanded DACA, Texas pays about $9,473 per year to educate each unlawfully present alien in its school system. See Texas, 86 F. Supp. 3d at 630.
234. In a single year, “Texas absorbed additional education costs of at least $58,531,100 stemming from illegal immigration.” Id.
235. Other expenditures are required by preexisting state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Tex. Health & Safety Code §§ 61.001 et seq. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See id. § 311.043. “Evidence in the record . . . shows that in 2008, Texas incurred $716,800,000 in uncompensated medical care provided to illegal aliens.” Texas, 86 F. Supp. 3d at 630.
236. Other States besides Texas have similar financial injuries caused by DACA.
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237. Under the Article III standing inquiry, courts do not examine whether financial injuries incurred are “offset” by other policies reducing other expenditures. Texas, 809 F.3d at 155-56.
238. So any hypothetical financial gains to Plaintiff States caused by DACA are irrelevant for determining whether Plaintiff States have standing.
239. Moreover, Plaintiff States have parens patriae standing to protect the quasi-sovereign interest in “the health and well-being” of their citizens. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).
240. Specifically, Plaintiff States seek to protect their citizens’ “economic and commercial interests” from labor-market distortion caused by the continued existence of DACA. Id.at 609.
241. The Plaintiff States seek the enforcement of federal law “to assure [their] residents that they will have the full benefit of federal laws designed to address th[e] problem” of illegal immigration and labor-market distortion. Id. at 609-10.
242. The Plaintiff States also possess “special solicitude” in the Article III standing analysis under Massachusetts v. EPA, 549 U.S. at 520. See Texas, 809 F.3d at 151.
243. The Plaintiff States do not need special solicitude to establish standing, but Massachusetts v. EPA’s special solicitude makes standing an easy question.
244. Just as the Supreme Court found in Massachusetts v. EPA, the federal government here has “abdicated its responsibility” to enforce federal statutes. Texas,
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86 F. Supp. 3d at 663 (“DAPA does not represent mere inadequacy; it is complete abdication.”).
245. The Plaintiff States face a more certain risk of harm than the state plaintiffs who had standing in Massachusetts v. EPA. Id. at 629; see Texas, 809 F.3d at 159 (“Texas is entitled to the same ‘special solicitude’ as was Massachusetts, and the causal link is even closer here.”).
246. The Plaintiff States also seek to vindicate a procedural right—namely, the right to be heard under the APA’s notice-and-comment procedures.
247. Separately, Plaintiff States have standing to challenge federal agency action that dispenses with congressional enactments when those congressional enactments preempt state prerogatives.
248. A State is “an institutional plaintiff.” Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2664 (2015).
249. An “institutional plaintiff” has standing when it suffers a mere “institutional injury.” Id.
250. An “institutional injury” includes when a government’s powers are “strip[ped]” or “nullif[ied].” Id. at 2663, 2665.
251. When a federal statute preempts state prerogatives, the State’s powers are stripped or nullified.
252. “When a State enters the Union, it surrenders certain sovereign prerogatives” that become “lodged in the Federal Government.” Massachusetts v. EPA, 549 U.S. at 519.
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253. A State’s agreement to have its authority preempted on such sovereign matters—for instance, determining the citizenship or lawful presence of individuals within its borders—is premised on the understanding that Congress’s enactments serve to “protect” the States. Id.
254. Due to the preemption of their sovereign prerogatives, States also have a “quasi-sovereign,” if not purely sovereign, interest in the enforcement of federal laws that preempt surrendered prerogatives. Id. at 520.
255. When the Executive Branch “has abdicated its responsibility under [federal statutes],” it negates the basis on which the States agreed to allow federal preemption of their sovereign prerogatives. Id. at 505.
256. States therefore also have “abdication standing” to challenge federal Executive agency action that dispenses with statutes passed by Congress when those statutes preempt state prerogatives. Texas, 86 F. Supp. 3d at 636-43.
257. The Plaintiff States thus have standing to maintain all their claims. II. This Action Is Timely.
258. The Plaintiff States have commenced this action within the applicable limitations periods.
259. “Unless another statute provides otherwise, civil claims against the United States—including those brought pursuant to the APA—are subject to the statute of limitations contained in 28 U.S.C. § 2401.” Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014) (addressing, inter alia, APA notice-and-comment claim).
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260. Under this provision, a party must commence an action within six years of the right of action accruing. 28 U.S.C. § 2401(a).
261. Congress has not adopted a special statute of limitations for the type of claims Plaintiff States bring herein.
262. The Plaintiff States commenced this action within six years of the promulgation of DACA.
263. The Plaintiff States commenced this action within six years of the implementation of DACA.
264. The Plaintiff States’ request for injunctive relief preventing the Executive from renewing or issuing any new DACA permits in the future is not barred by any statute of limitations. III. The Plaintiff States’ Interests Are At Least Arguably Within the Zone
of Interests Protected by Immigration Statutes and the APA. 265. The Plaintiff States’ interests are at least arguably within the zone of interests protected by immigration statutes. See Texas, 809 F.3d at 163. 266. The Plaintiff States’ interests are arguably within the zone of interests protected by the APA. IV. DACA Is Reviewable Agency Actions. 267. The creation of DACA—and its conferral of lawful presence and work authorization—is affirmative agency action, not mere enforcement-discretion inaction. Id. at 166-67. 268. This lawsuit does not challenge the DHS Secretary’s separate February 20, 2017 memorandum setting immigration enforcement priorities. Memorandum
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from John Kelly, Secretary, DHS, to Kevin McAleenan, Acting Comm’r, CBP, et al, Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-ofthe-Immigration-Laws-to-Serve-the-National-Interest.pdf.
269. This lawsuit does not challenge the Executive’s “discretion to abandon” the “initiation or prosecution of various stages in the deportation process.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999).
270. Deferred action under DACA “is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” Texas, 809 F.3d at 166.
271. “Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” Id. at 167.
272. In contrast to enforcement discretion, DACA confers eligibility for a change in immigration classification that triggers eligibility for attendant benefits.
273. The Defendants unilaterally deem DACA recipients “lawfully present.” 274. The congressional-created classification of “lawful presence” confers eligibility for Social Security, Medicare, the Earned Income Tax Credit, a driver’s license, and a host of other benefits. 275. DACA also unilaterally confers the ability to obtain work authorization. 276. DACA has even provided some recipients with United States citizenship or a pathway to citizenship.
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277. Justice Scalia correctly explained that DACA cannot be justified as mere nonenforcement discretion: “the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement.” Arizona, 567 U.S. at 435 (Scalia, J., concurring in part and dissenting in part) (emphasis in original).
278. The Defendants cannot identify any “clear and convincing evidence of legislative intention to preclude review” of DACA. Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986).
279. The Defendants have indicated that “DHS has absolute discretion to revoke deferred action unilaterally, without notice or process.” Pet. Br. at 5, supra, 2016 WL 836758, at *5.
280. “Revocability, however, is not the touchstone for whether agency . . . action is reviewable.” Texas, 809 F.3d at 167. V. DACA Is Unlawful.
A. DACA Is Unlawful Because It Was Issued Without the Required APA Notice-and-Comment Procedure.
281. DACA is a substantive rule, not exempt from the Administrative Procedure Act’s notice-and-comment requirements as an interpretive rule, as a general statement of policy, or as a rule of agency organization, procedure, or practice, 5 U.S.C. § 553(b)(A). See Texas, 809 F.3d at 171-78.
282. No exceptions to the APA’s notice-and-comment requirements are applicable to DACA.
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283. DACA, Expanded DACA, and DAPA are some of the largest immigration policy changes in our Nation’s history.
284. The APA requires this Court to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
285. DHS is an “agency” under the APA. Id. § 551(1). 286. The memorandum creating (or continuing) DACA is a “rule” under the APA. Id. § 551(4). 287. The DACA memorandum required notice-and-comment procedure because it is a binding rule. 288. DACA required notice-and-comment procedure because it modifies substantive rights and interests, as it confers on recipients a legal status (lawful presence) and eligibility for attendant benefits. See Texas, 809 F.3d at 176. 289. Additionally, DACA required notice-and-comment procedure because it does not genuinely leave the agency and its decisionmaker free to exercise discretion. 290. As the district court found in the DAPA lawsuit, “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion.’” Id. at 171-72 & n.127 (quoting Texas, 86 F. Supp. 3d at 670 (emphasis and second alteration in district court opinion)). 291. In the DAPA lawsuit, the district court’s finding regarding the lack of genuine discretion afforded to USCIS and its employees under DAPA “was partly informed by analysis of the implementation of DACA, the precursor to DAPA.” Id. at 172 & n.128 (citing Texas, 86 F. Supp. 3d at 669-70).
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292. “Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were ‘merely pretext’ . . . .” Id. at 172 & n.129 (quoting Texas, 86 F. Supp. 3d at 669 n.101).
293. As the Fifth Circuit recognized, “only about 5% of the 723,000 [DACA] applications accepted for evaluation [through the end of 2014] had been denied.” Id. at 172 & n.130 (citing Texas, 86 F. Supp. 3d at 609).
294. As the Fifth Circuit explained, “‘[d]espite a request by the [district] [c]ourt, the [g]overnment’s counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria.’” Id. at 172 & n.131 (quoting Texas, 86 F. Supp. 3d at 609 (alterations in Fifth Circuit opinion)).
295. The district court’s “finding of pretext was also based on a declaration by Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that ‘DHS management has taken multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet the necessary criteria.’” Id. at 172-73 & n.132 (quoting Texas, 86 F. Supp. 3d at 60910).
296. The district court’s “finding of pretext was also based on . . . DACA’s Operating Procedures, which ‘contain[] nearly 150 pages of specific instructions for granting or denying deferred action.’” Id. at 172-73 & n.133 (quoting Texas, 86 F. Supp. 3d at 669 (alteration in Fifth Circuit opinion)).
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297. DACA “[d]enials are recorded in a ‘check the box’ standardized form, for which USCIS personnel are provided templates.” Id. at 175 (quoting Texas, 86 F. Supp. 3d at 669 (alteration in Fifth Circuit opinion)).
298. “Certain denials of [DACA] must be sent to a supervisor for approval[, and] there is no option for granting [DACA] to an individual who does not meet each criterion.” Id. (quoting Texas, 86 F. Supp. 3d at 669 (alteration in Fifth Circuit opinion)).
299. “‘[R]outing [DACA] applications through service centers instead of field offices . . . created an application process that bypasses traditional in-person investigatory interviews with trained USCIS adjudications officers’ and ‘prevents officers from conducting case-by-case investigations, undermines officers’ abilities to detect fraud and national-security risks, and ensures that applications will be rubberstamped.’” Id. (quoting Texas, 86 F. Supp. 3d at 609-10 (alteration and omission in Fifth Circuit op.)); see Decl. of Kenneth Palinkas ¶ 10, Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 64-42.
300. DACA relief confers a stamp of approval from the government and encodes a substantive value judgment. See Texas, 809 F.3d at 176-77.
301. DACA does not clearly and directly relate to “public benefits” as that term is used in 5 U.S.C. § 553(a)(2), because the agency administering DACA (USCIS) is not an agency managing benefit programs, much less the kind of public benefit that has been recognized under § 553(a)(2). See Texas, 809 F.3d at 178.
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302. Although OLC cautioned the Executive that it was “critical” to DACA’s legality that the Executive Branch evaluate every application on a case-by-case basis, Exhibit 4 at 18 n.8, the President and DHS ignored that advice by granting deferred action mechanically to all applicants who satisfy the threshold criteria specified in the DACA memo.
303. DHS officials who implement the DACA program exercise, in practice, effectively no discretion to deny DACA to applicants who meet the eligibility criteria in the DACA memo and the administrative application requirements, such as a background check and application fee.
B. DACA Is Contrary to Law, Because It Violates Congressional Statutes.
304. DACA is contrary to law because it is “not authorized by statute,” Texas, 809 F.3d at 184, and is “foreclosed by Congress’s careful plan,” id. at 186.
305. The APA requires this Court to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
306. “In specific and detailed provisions, the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present.” Texas, 809 F.3d at 179.
307. “Entirely absent from those specific classes is the group of . . . illegal aliens who would be eligible for lawful presence under” DACA. Id.
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308. “The INA also specifies classes of aliens eligible and ineligible for work authorization.” Id. at 180-81 (footnotes omitted).
309. Federal statutes defining which aliens are eligible for work authorization make “no mention of the class of persons whom” DACA “would make eligible for work authorization.” Id. at 181.
310. “[T]he INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them eligible for a host of federal and state benefits, including work authorization.” Id. at 184.
311. “[H]istorical practice . . . ‘does not, by itself, create power.’” Id. at 184 & n.193 (quoting Medellin v. Texas, 552 U.S. 491, 532 (2008)).
312. “[I]n any event, previous deferred-action programs are not analogous to [DACA].” Id. at 184.
313. “[M]any of the previous programs were bridges from one legal status to another, whereas [DACA] awards lawful presence to persons who have never had a legal status and may never receive one.” Id. (footnotes omitted).
314. DACA has even provided some recipients with United States citizenship or a pathway to citizenship—without any statutory authorization to do so from Congress.
C. DACA Violates the Take Care Clause. 315. DACA violates the Take Care Clause because it dispenses with certain immigration statutes by declaring as lawful conduct that Congress established as unlawful.
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316. DACA violates the Take Care Clause because it dispenses with certain immigration statutes by granting United States citizenship or a pathway to citizenship to aliens who would otherwise be unlawfully present but for DACA.
317. The Take Care Clause has its roots in the dispute between Parliament and King James II, who was overthrown in the Glorious Revolution of 1688. Parliament was infuriated at King James’s use of his purported power to suspend or dispense with Parliament’s laws. Zachary Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 676, 690-91 (2014). The subsequent monarchs, William and Mary, agreed to the English Bill of Rights, which stripped the monarchy of all suspending and dispensing authority. See English Bill of Rights of 1689, art. 1.
318. The Framers of the U.S. Constitution unanimously rejected a proposal to grant dispensing powers to the President.
319. The Supreme Court has held that the Take Care Clause does not grant the President a power to dispense with statutes: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the [C]onstitution, and entirely inadmissible.” Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838). Any other conclusion would “vest[] in the President a dispensing power.” Id.
320. DACA dispenses with certain immigration statutes. 321. Just as King James attempted to make unlawful office-holding lawful, Price, supra, at 691, the Executive through DACA, Expanded DACA, and DAPA sought to make unlawful presence lawful.
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322. Even worse than that, after the Executive made unlawful presence lawful through DACA, the Executive then used that lawful-presence dispensation to affirmatively confer United States citizenship or a pathway to citizenship on some DACA recipients.
323. As Justice Scalia correctly noted, DACA is a program that involves “biennial requests for dispensation” from immigration statutes. Arizona, 567 U.S. at 435 (Scalia, J., concurring in part and dissenting in part) (emphasis added).
324. OLC recognized that class-based deferred-action programs like DACA “raise particular concerns about whether immigration officials have undertaken to substantively change” immigration statutes, Exhibit 4 at 22, and “effectively rewrite the laws to match the Executive’s policy preferences,” id. at 24.
325. DACA is unlawful even under the four-part test established by the OLC Memo under the Obama Administration delineating limitations imposed by “the nature of the Take Care duty.” Id. at 6-7.
326. First, OLC stated that a class-based deferred-action program must reflect the agency’s expert judgment about resource allocation, id. at 6, and must not confer legal status, id. at 20-21.
327. But DACA deems unlawful presence lawful—a fact never mentioned by the OLC Memo.
328. DACA has even provided some recipients with United States citizenship or a pathway to citizenship—a fact never mentioned by the OLC Memo.
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329. DACA is a programmatic decision to confer benefits on hundreds of thousands of aliens.
330. Second, OLC stated that a class-based deferred-action program must be “consonant with, rather than contrary to, the congressional policy underlying the [relevant] statutes.” Id. at 6.
331. DACA is “incompatible with the express or implied will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
332. DACA violates explicit and implicit congressional objectives. 333. Third, OLC stated that a class-based deferred-action program cannot be an “[a]bdication of the duties assigned to the agency by statute.” Exhibit 4 at 7. 334. But DACA is an “abdication” of immigration statutes enumerating in careful detail which aliens may be lawfully present and obtain work authorization. Texas, 86 F. Supp. 3d at 663. 335. DACA also is an “abdication” of immigration statutes enumerating in careful detail which aliens may obtain United States citizenship or a pathway to citizenship. Id. 336. Fourth, OLC stated that a class-based deferred-action program must allow for “case-by-case” discretion. Exhibit 4 at 7. 337. As explained above, see supra ¶¶ 289-303, DACA does not allow for caseby-case discretion.
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VI. The Court Should Declare that DACA Is Unlawful and Enjoin the Defendants Nationwide from Issuing or Renewing DACA Permits. 338. For the reasons explained above, the Court should enter a declaratory
judgment that DACA is unlawful. 339. While the Court would have the power to enter an injunction
immediately rescinding all DACA permits that confer lawful presence and work authorization, Plaintiff States are amenable to an injunction that prospectively enjoins Defendants in the future from renewing or issuing any new DACA permits that confer lawful presence and work authorization, but does not require the Executive to immediately rescind any existing DACA permits that confer lawful presence or work authorization. Such an injunction would effectively phase out the DACA program within two years.
340. Such an injunction would account for any alleged reliance interests that aliens claim in DACA permits already received. Any such reliance interest, however, could not possibly extend beyond the existing two-year terms of those permits. The memorandum announcing DACA itself explicitly stated that “DHS cannot provide any assurance that relief will be granted.” Exhibit 1 at 2.
341. An injunction prohibiting the Executive from issuing or renewing DACA permits should apply to Defendants wherever they may act.
342. Both the Constitution and Congress have directed that the Nation needs a uniform, nationwide immigration policy. See Texas, 809 F.3d at 187-88.
343. Additionally, the Court should grant any and all other relief to which Plaintiff States may be entitled.
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VII. The Deferred-Action Work-Authorization Regulation Is Invalid as Applied to DACA and Expanded DACA Recipients. 344. An executive regulation declares that “an alien who has been granted
deferred action” can obtain employment authorization from the federal government. 8 C.F.R. § 274a.12(c)(14).
345. Defendants have previously asserted that 8 C.F.R. § 274a.12(c)(14) authorizes the federal government to grant work authorization to recipients of DAPA and Expanded DACA. See Defs.’ Mem. P. & A. in Opp’n to Pls.’ Mot. for Prelim. Inj. 7-8, Texas, 86 F. Supp. 3d 591 (No. 1:14-cv-254), ECF No. 38.
346. There is no statutory authorization for the regulation to be applied in this manner. Although 8 C.F.R. § 274a.12(c)(14) may be valid as applied to the four, narrow types of deferred action authorized by statute, it is not valid as applied to recipients of DACA, Expanded DACA, or DAPA—which are not statutorily authorized. VIII. The Federal Benefits Triggered by Lawful Presence Cannot Be Validly
Extended to DACA Recipients. 347. The classification of lawful presence is a requirement for myriad federal benefits, including Social Security, Medicare, and PRWORA-restricted benefits. See supra ¶¶ 38-40. 348. Conversely, time during which an alien lacks the classification of lawful presence counts towards lengths of time that trigger a reentry bar. See supra ¶ 41. 349. DACA confers lawful presence on individuals whose presence in this country is not lawful under the Nation’s immigration laws.
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350. The statutory provisions conferring eligibility for benefits based on lawful presence cannot be validly applied to DACA recipients.
FIRST CAUSE OF ACTION Violation of the Take Care Clause 351. The allegations in paragraphs 1-351 are reincorporated herein. 352. Defendants’ actions here in creating and implementing DACA violate the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. To the extent Expanded DACA permits remain in effect, they also violate the same duty.
SECOND CAUSE OF ACTION Violation of the APA’s Procedural Requirements, 5 U.S.C. § 553 353. The allegations in paragraphs 1-353 are reincorporated herein. 354. Defendants have violated the APA by promulgating, implementing, and relying upon the DACA program without using the required APA notice-andcomment procedure. To the extend Expanded DACA permits remain in effect, they violate the same procedural law.
THIRD CAUSE OF ACTION Violation of the APA’s Substantive Requirements, 5 U.S.C. § 706 355. The allegations in paragraphs 1-355 are reincorporated herein. 356. Defendants have acted contrary to law and have violated 5 U.S.C. § 706 by creating and implementing DACA. To the extent Expanded DACA permits remain in effect, they violate the same substantive law.
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PRAYER FOR RELIEF Underlying DACA is a dangerously broad conception of Executive power—one that if left unchecked, could allow future Executives to dismantle other duly enacted laws. The Court must not allow that to occur. Plaintiff States respectfully request that the Court issue the following relief regarding DACA (and Expanded DACA, to the extent any permits remain in effect): A. An order enjoining Defendants from issuing or renewing any DACA
permits in the future; B. A declaratory judgment that DACA violates the Take Care Clause; C. A declaratory judgment that DACA is procedurally unlawful under the
APA; D. A declaratory judgment that DACA is substantively unlawful under the
APA; and E. Any and all other relief to which Plaintiff States may be entitled.
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STEVE MARSHALL Attorney General of Alabama
LESLIE RUTLEDGE Attorney General of Arkansas
JEFF LANDRY Attorney General of Louisiana
DOUGLAS J. PETERSON Attorney General of Nebraska
ALAN WILSON Attorney General of South Carolina
PATRICK MORRISEY Attorney General of West Virginia

Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General Tx. State Bar No. 24046904 Southern District of Texas No. 2972033 Tel.: (512) 463-2100; Fax: (512) 936-0545 brantley.starr@oag.texas.gov P.O. Box 12548 Austin, Texas 78711-2548
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
/s/ Todd Lawrence Disher TODD LAWRENCE DISHER Attorney-in-Charge Special Counsel for Civil Litigation Tx. State Bar No. 24081854 Southern District of Texas No. 2985472 Tel.: (512) 463-2100; Fax: (512) 936-0545 todd.disher@oag.texas.gov P.O. Box 12548 Austin, Texas 78711-2548
ADAM ARTHUR BIGGS Special Counsel for Civil Litigation Tx. State Bar No. 24077727 Southern District of Texas No. 2964087 Tel.: (512) 463-2100; Fax: (512) 936-0545 adam.biggs@oag.texas.gov P.O. Box 12548 Austin, Texas 78711-2548

Dated this 14th day of June, 2018.

COUNSEL FOR PLAINTIFF STATES 74

CCaassee 11::1188--ccvv--0000006688 DDooccuummeenntt 8140-41 FFiilleedd iinn TTXXSSDD oonn 0066//2154//1188 PPaaggee 7755 ooff 7755 CERTIFICATE OF SERVICE
I certify that on June 14, 2018, this document was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.
/s/ Todd Lawrence Disher TODD LAWRENCE DISHER Special Counsel for Civil Litigation COUNSEL FOR PLAINTIFF STATES
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 Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

Page 1 of 117
United States District Court Southern District of Texas
ENTERED
August 31, 2018
David J. Bradley, Clerk

State of Texas, et al., Plaintiffs,
V.
The United States of America, et al., Defendants,
Karla Perez, et al., Defendant-Intervenors,
and
State ofNew Jersey, Defendant-Intervenor.

§

§

§

§

§

§

§

Civil Action No. 1:18-CV-00068

§

§

§

§

§

§

§

§

MEMORANDUM OPINION AND ORDER Eight states and two governors 1 are seeking declaratory and injunctive relief and ask this

Court to hold that the Deferred Action for Childhood Arrivals ("DACA") program is illegal

because its creation and continued existence violate the procedural and substantive aspects of the

Administrative Procedure Act ("APA"). 5 U.S.C. § 500 et seq. Plaintiffs also seek relief based on their claim that DACA violates the Take Care Clause2 of the United States Constitution. U.S.

Const. art. II, § 3. This order addresses the States' request for a preliminary injunction.

The Defendants in this matter are the United States, Secretary of the Department of

Homeland Security ("DHS") Kirstjen M. Nielsen, Commissioner of the Customs and Border

Protection ("CBP") Kevin K. McAleenan, Deputy Director of the United States Immigration and

1 The Plaintiffs are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and the governors of Mississippi and Maine. They will be referred to collectively as "Plaintiff States" or "States."
2 This Court will refer to the Take Care Clause with initial capital letters, although many authorities use a lower case initial letter in the word "take," as that is how it appears in the Constitution.

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 2 of 117

Customs Enforcement Agency ("ICE") Thomas D. Homan,3 Director of the United States

Citizenship and Immigration Services ("USCIS") L. Francis Cissna, and Chief of the United States Border Patrol Carla L. Provost.4 After the case was filed but before any substantive

activity had taken place, twenty-two DACA recipients intervened as Defendants. The State of New Jersey also requested and received permission to intervene as a Defendant.5 Finally,

numerous other groups and entities have asked for and received this Court's permission to act as

.

.

am1cus cunae.

The Plaintiff States have asked this Court to preliminarily enjoin the Government from

issuing or renewing any DACA permits in the future. If this relief is granted, and ultimately if

this relief becomes permanent, it could have the effect of terminating the DACA program-a

result the Defendant-Intervenors vehemently oppose. The Plaintiff States also request a

declaratory judgment that DACA is contrary to the standards of the APA, as well as the Take

Care Clause of the United States Constitution, findings which, if upheld, would also require the

termination of the DACA program.

I. What Is and Is Not Before the Court

The Court is not faced with questions about a duly enacted statute or a duly enacted

federal regulation or even an order by the President. DACA was a program instituted pursuant to

the orders of then-Secretary of Homeland Security, Janet Napolitano. Those instructions were set

forth in a memorandum dated June 15, 2012, and remained in force without amendment until

2014 when her successor, Secretary Jeh Johnson, attempted to create a sister program, Deferred

3 Thomas D. Homan was named as a Defendant when this lawsuit was filed. He has since retired and Ronald D. Vitiello now serves as the Deputy Director and Senior Official Performing the Duties of Director.
4 These Defendants will be collectively referred to as "the Government" or "the Defendants."
5 The DACA recipients and New Jersey will be collectively referred to as the "Defendant-Intervenors." When necessary to refer to one group specifically, the Court will use the terms "individual Defendant-Intervenors" and "New Jersey."
2

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Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). At that time, Secretary Johnson also attempted to put into place certain expansions of the DACA program ("Expanded DACA"). Both the implementation of the DAPA program and Expanded DACA were enjoined by this Court in 2015. Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015). This injunction was affirmed by the Fifth Circuit Court of Appeals, Texas v. United
States, 809 F.3d 134 (5th Cir. 2015), and then later by a split vote in the Supreme Court of the United States. United States v. Texas, 136 S. Ct. 2271 (2016) (this litigation will be referred to as Texas I).
Upon remand, the parties asked this Court to postpone entering a scheduling order that would have otherwise governed the proceedings to a final conclusion on the merits. Throughout this time, the original 2012 DACA memorandum remained in force. Ultimately, the parties all agreed to dismiss the case:
Plaintiffs' Stipulation ofVoluntary Dismissal On June 15, 2017, the U.S. Department of Homeland Security released a memorandum entitled Rescission ofNovember 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA "). On September 5, 2017, the Department released a memorandum entitled Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. " Given these memoranda rescinding the DAPA program and phasing out the DACA and Expanded DACA programs, Plaintiffs file this stipulation ofvoluntary dismissal. See Fed. R. Civ. P. 41(a)(l)(A)(ii) (allowing plaintiffs to dismiss an action, without court order, by filing a stipulation of dismissal by all parties who have appeared). Texas I, [Doc No. 473] (emphasis added). This stipulation of dismissal was signed by the attorneys for the plaintiffs (a group that included all of the Plaintiff States in this case), the United States and the federal government defendants, and the putative DAPA recipients who had intervened. As is evident from its text,
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the stipulation was clearly based in part upon the Government "phasing out the DACA and Expanded DACA programs." It is also clear that all parties agreed to the stipulation, which otherwise would have required court action. As per its very language, the stipulation was based upon Fed. R. Civ. P. 41(a)(l)(A)(ii), which requires the dismissal to be signed by counsel for all parties who have appeared in order to be effective.
While this Court has no way of knowing the decision-making process exercised by the parties in Texas I, it seems that at least the Plaintiff States here seek the same result they thought they had achieved with the stipulation of dismissal. The Government has attempted to phase out DACA, as it represented to the Plaintiff States it would, but it is prevented from doing so by various orders of other courts around the nation that have enjoined or vacated the attempt to end the program. The Government is thus thrust into the position of a somewhat reluctant warriorhaving to defend a program (in order to comply with court orders) that it had agreed to phase out in order to rid itself of the 2014 lawsuit that was pending in this Court. As stated earlier, the Defendant-Intervenors are DACA recipients who wish to prevent the abolition of this program and who have been joined in this effort by the State of New Jersey. They are clearly not reluctant warriors and are squarely pitted against the propositions argued by the Plaintiff States.
A. What Issues Are Before the Court Thus, this Court is faced with only three primary issues involving the DACA program in the context of a request for a preliminary injunction: 1) Did the creation of DACA, and its continued operation, violate the Take Care Clause
of the Constitution? 2) Does the DACA program violate the substantive standards of the APA? 3) Did the manner in which DACA was created violate the procedural requirements of
the APA?
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While these three primary issues have many elements and ancillary questions that will be addressed, the parties have raised many extraneous issues with their arguments, evidence, and pleadings that will not be discussed.
B. What Issues Are Not Before the Court Consequently, all other issues, including the following, are not before the Court: 1) This Court is not commenting on or deciding the popularity of or the relative wisdom
of Secretary Napolitano's decision to implement the DACA program or the DHS's decision to phase out the DACA program. 2) This order does not and should not be read to suggest or require the DHS or the Department of Justice to prosecute or initiate immigration or deportation proceedings against any individual or group of individuals. 3) This Court is not deciding whether the DACA recipients are ultimately beneficial or detrimental to the well-being of the States, nor is it deciding if they ultimately benefit or burden the States' economies. 4) This opinion does not address, nor should be read as a comment upon, the relative merits of immigration, legal or otherwise, except insofar as it must to decide whether the DACA program itself (and the manner in which it was instituted) is legal. 5) The DACA program was not created as an asylum program, and nothing herein should be read as affecting the rules and laws governing asylum. While there seem to be differences of opinion as to what constitutes an "amnesty" program, nothing herein should be read as favoring or disfavoring the concept of asylum or amnesty. 6) The Court is not called upon to, nor will it, create or substitute its own notion of an immigration policy, as Courts are not the vehicles to enact the legislative policies that
5

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control immigration. That is the sole province of Congress.6 7) This Court cannot and will not weigh or critique the attributes and qualities of any of
the individual DACA recipients, including the Defendant-Intervenors herein. For purposes of this order concerning injunctive relief, the Court accepts as true the testimony and affidavits of the individual Defendant-Intervenors, assumes they are individuals of sound character, and relies in toto on the representations made by their counsel as to each one being a person of good repute. 8) Since the DACA program is one of non-enforcement of the laws enacted by Congress and since it is one allegedly predicated on the Executive Branch's historical right to exercise prosecutorial discretion, this Court may necessarily need to discuss certain aspects of law enforcement. Nevertheless, nothing herein should be interpreted as representing this Court's opinion either in favor of, or in opposition to, the means or methods of law enforcement being utilized by this or any prior administration. Further, nothing in this opinion should be read as ordering law-enforcement officials how to prioritize objectives, deploy individuals, or marshal their resources. It is not within this or any other court's purview to dictate to the Executive Branch what means or methods it should use to enforce the law-as long as the means and methods are legal and the Executive Branch is actually enforcing the law. II. Factual Background For many years, Congress has considered granting legal status to the so-called "Dreamers" (typically defined as aliens who came to or were brought to the United States as
6 See Arizona v. United States, 567 U.S. 387, 394-95 (2012) (citing U.S. Const. art. I,§ 8, cl. 4 ['The Congress ... shall have Power ... To establish an uniform Rule ofNaturalization"] and explaining that "[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens").
6

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 7 of 117
children). Nevertheless, for whatever reason, Congress has failed or refused to pass any such
legislation. In June of 2012, the DHS adopted such a program by means of a memorandum
issued by then-Secretary Janet Napolitano. Memorandum from Janet Napolitano, Exercising
Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children
(June 15, 2012) [Doc. No. 5, Ex. 1]. An illegal alien7 applicant can qualify for the DACA
program if he or she:
• came to the United States under the age of sixteen; • has continuously resided in the United States for at least five years preceding
[June 15, 2012] and is present in the United States on [June 15, 2012]; • is currently in school, has graduated from high school, has obtained a general
education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and • is not above the age of thirty.
!d. Instead of just using its power of prosecutorial discretion not to enforce the national
immigration laws as to these qualifying individuals, the DHS, as an integral part of the DACA
7 The Court understands that some people find the phrase "illegal alien" offensive. The Court uses this term because it is the tem1 used by the Supreme Court in its latest pronouncement pertaining to this area of law. See Arizona v. United States, 567 U.S. 387, 397 (2012). Furthermore, the Fifth Circuit in the Texas I opinion explains why "illegal alien" is a preferable label in a case like this:
"The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as near-gobbledygook. The problem with undocumented is that it is intended to mean, by those who use it in this phrase, 'not having the requisite documents to enter or stay in the country legally.' But the word strongly suggests 'unaccounted for' to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the mean mg. More than one writer has argued in favor of undocumented alien ... [to] avoid[] the implication that one's unauthorized presence in the United States is a crime .... Moreover, it is wrong to equate illegality with criminality, since many illegal acts are not criminal. Illegal alien is not an opprobrious epithet: it describes one present in a country in violation of the immigration laws (hence 'illegal')." (quoting Bryan A. Gamer, Gamer's Dictionary of Legal Usage 912 (Oxford 3d ed. 2011)). "[Il]legal alien has going for it both history and well-documented, generally accepted use." Matthew Salzwedel, The Lawyer's Struggle to Write, 16 Scribes Journal of Legal Writing 69, 76 (20 15).
Texas I, 809 F.3d at 148 n.14. 7

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 8 of 117
program, went further and conferred "lawful presence" on them. Not only does DACA effectively exempt its recipients from prosecution and placement into immigration proceedings for a renewable two-year period, but it also makes the recipients eligible for numerous federal and state benefits, despite the INA's general rule that unlawfully present aliens are "not eligible for any Federal public benefit." 8 U.S.C. § 1611(a). For example, unlawfully present aliens would normally be barred from receiving Social Security retirement benefits, Social Security disability benefits, and health insurance under Part A of the Medicare program because these are federal public benefits. DACA, however, by making its recipients lawfully present, removes an otherwise insurmountable roadblock to their receipt of Social Security, Medicare, and other benefits.8 Id. § 1611(b)(2)-(4); see also Texas I, 809 F.3d at 148-49.
Additionally, DACA not only allows, but requires its recipients to apply for work authorization. [Doc. No. 6, at 5] (instructing USCIS to consider DACA applicants for work authorization); [Doc. No 5, Ex. 20, at 23] (requiring DACA applicants to submit an application for work authorization). Once a recipient has work authorization, he or she can become eligible for a Social Security number, along with its attendant benefits. 9 20 C.F.R. §§ 422.104(a)(2), 422.105(a); 8 C.F.R. § 1.3(a)(4)(vi). Further, DACA recipients are also eligible for certain state benefits, such as a Texas driver's license and access to Texas's state-subsidized work-study program. See Tex. Transp. Code§ 521.142(a); Tex. Educ. Code§ 56.075(a)(l); 19 Tex. Admin. Code§ 22.128(12); id. § 21.24(d)(5).
8 DACA recipients must still meet the normal criteria to qualify for these benefits. Without lawful presence, however, even an alien who met those criteria would still be ineligible for the benefits. Texas I, 809 F.3d at 148-49. In addition to Social Security and Medicare benefits, DACA recipients also can become eligible for benefits under the Railroad Retirement Act of 1974 and the Railroad Unemployment Insurance Act. 8 U.S.C. § 16Il(b)(4). 9 Among these benefits are earned income tax credits, which require a Social Security number. See 26 U.S.C. § 32(c)(l)(E), (m); see also Texas I, 809 F.3d at 149.
8

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An estimated population of 1.5 million people10-greater than the populations of at least
ten states-potentially qualify for these benefits. The Napolitano memorandum, however,
specifically concluded by stating that:
This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these n"ghts. II
Over the years, more than 800,000 individuals have applied for and received "lawful
presence" via DACA which, despite the Secretary's statement, is a form of status, as it prevents
one from being put into removal proceedings and qualifies an individual for a variety of benefits
or privileges under state and federal law. This status and its exact parameters have led to
confusion even at the highest levels. For example, during the appeal of Texas I, the following
exchange took place during the Supreme Court argument:
10 Evidence provided to the Court differs in its estimates of the total number of actual and potential DACA recipients. See Decl. of DouglasS. Massey [Doc. No. 225, Ex. 73, at 7] ("According to the latest statistics from U.S. Citizen and Immigrant Services (2018), there are 814,000 young people registered for DACA."); Decl. of M. Ray Perryman [Doc. No. 225, Ex. 74, at 6] ("As of March 31, 2018, there were 693,850 persons across the country emolled in DACA ... .");see also Gustavo Lopez & Jens Manuel Krogstad, Pew Research Center, Key Facts About Unauthorized Immigrants Enrolled in DACA (Sept. 25, 2017), http://www.pewresearch.org/facttank/20 17/09/25/key-facts-about-unauthorized-immigrants-emolled-in-daca/ ("About 70,000 former DACA participants did not renew their benefits or had their renewal applications denied. Another 40,000 have adjusted their legal status and obtained green cards, which grant lawful permanent residence."). At oral argument, counsel for Defendant-Intervenors suggested that the current total of individuals holding DACA status is approximately 702,000, down from a number exceeding 800,000 due to either the failure to renew or the adjustment of status. Hearing Tr. 100:24 (Aug. 8, 2018) [Doc. No. 302]. These numbers do not include those people who have not yet applied for DACA, which may bring the total number of eligible persons as high as 1.9 million, according to evidence provided by Defendant-Intervenors. See Decl. ofM. Ray Perryman [Doc. No. 225, Ex. 74, at 6] (estimating "1.3 million people nationwide are eligible to apply for DACA"); Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, Cato at Liberty (Jan. 18, 2017, 3:00PM) [Doc. No. 225, Ex. 113] ("[I]t is estimated that there could be another one million eligible residents who have not yet applied [in addition to an estimate of 750,000 current participants]."); Roberto G. Gonzales et a!., Ctr. for Am. Progress, Taking Giant Leaps Forward: Experiences ofa Range ofDACA Beneficiaries at the 5-Year Mark (2017) [Doc. No. 225, Ex. 125, at 1] (describing DACA as "a policy that temporarily defers deportations ... for up to an estimated 1.9 million eligible unauthorized young adults"). Rather than relying on extrinsic sources or arguments of counsel, the Court instead will consider the evidence presented in this case. Based on that evidence, the Court will use a midrange number of approximately 1.5 million eligible people. 11 Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) [Doc. No.5, Ex. 1].
9

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Chief Justice John Roberts: Lawfully present does not mean you're legally present?
Solicitor General Verrilli: Correct.
* * *
Justice Samuel Alito: How can you- how can it be lawful to work here but not lawful to be here? 12
The DACA program started with approximately 152,431 approvals in 2012, 427,616 in 2013, and 238,899 in 2014. 13 In late November of 2014, then-Secretary of DHS, Jeh Johnson,
attempted to expand the DACA program and implement a new lawful presence program entitled
Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA.
Projections varied about the size of the population that would have been eligible under these
proposed amendments, but most projections for Expanded DACA and the DAPA program
estimated they would give an additional 4.3 million individuals lawful presence. Thus, the
possible population of illegal aliens with lawful presence due to DACA, Expanded DACA, and
DAPA would have been raised to just under 6 million (or more than 50% of the estimated 11.3 million illegal aliens in the country). 14
Twenty-six states, including all of the Plaintiff States in this case, filed the Texas I
lawsuit to stop the implementation of the DAPA program and the expansion of the DACA
program. In Texas I, all parties agreed that DAPA would be run like DACA and that the Court
could assume as much for purposes of considering the request for an injunction. After extensive
12 Transcript of Oral Argument at 28, United States v. Texas, 136 S. Ct. 2271 (No. 15-674). 13 U.S. Citizenship and Immigration Services, Number of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, by FY, Quarter, Intake, Biometrics and Case Status FY 2012-2017 (March 31, 2018) [Doc. No. 225,Ex.23]. 14 Most parties, many experts, and most governmental units rely on an estimate of 11.3 million illegal aliens. It originates with a study done by the Pew Research Center that estimated the illegal alien population as of March 2013. See Jeffrey S. Passel et al., Pew Research Center, As Growth Stalls, Unauthorized Immigrant Population Becomes More Settled (Sept. 3, 2014) [Doc. No. 225, Ex. 52, at 4]. Given the nature of being in the country illegally, no person, entity, or governmental unit really knows how many aliens are illegally in the country.
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briefing and a full hearing, this Court entered a preliminary injunction based upon the likelihood
that the DAPA and Expanded DACA programs should have, at the very least, undergone the
notice-and-comment procedures required by the APA.
After the order issued, the Government explained all of its known law-enforcement
objectives that to its mind undergirded the creation of the two deferred action programs. In a
later hearing, this Court pointed out that the injunction did not enjoin any of those functions. The
injunction only prohibited the DHS from giving lawful status (and many other benefits) to
millions whom Congress had categorized as illegal. The DHS then explained that the reason they
wanted to award lawful presence was not to support any direct law-enforcement goal, but was instead to incentivize aliens to participate in the program. 15 After this Court ruled, the
Government chose to appeal in lieu of beginning the notice-and-comment procedures. The Fifth
Circuit affirmed this Court's ruling regarding DAPA and Expanded DACA and the procedural
APA violation, but it went further and ruled that the programs also violated the substantive
requirements of the APA. It stated in pertinent part:
The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States-an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility. Even with "special deference" to the Secretary, 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.
* * *
Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. Although prosecutorial discretion is broad, it is not 'unfettered.' Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for
15 Texas !Hearing Tr. 28-30 (Mar. 19, 2015). 11

Case 1:18-cv-00068 Document 319 Filed in TXSD on 08/31/18 Page 12 of 117
participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.
* * *
In summary, the states have established a substantial likelihood of success on the merits of their procedural claim. 16 The Supreme Court not only undertook to review Texas I on both APA grounds, but actually entered an order expanding the appeal: The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: "Whether the Guidance violates the Take Care Clause of the Constitution, Art. II§ 3."17 Ultimately, after the death of Justice Antonin Scalia, which left the Supreme Court with only eight justices, the Court affirmed the Fifth Circuit with a one-sentence opinion, indicating that the eight remaining justices were deadlocked and that the judgment was affirmed by an equally divided Court. 18 Texas I was returned to this Court for a trial on the merits but was ultimately dismissed with all parties signing the stipulation quoted above. As is evident, the Plaintiff States in Texas I dismissed that case with the understanding that DACA was to be dissolved. The Government's attempt to phase out the program has been blocked by two injunctions from district courts in California and New York. Those injunctions only applied to people already enrolled in the DACA program. In late April, however, a District of Columbia district court indicated that it intended to block the DHS 's attempts to rescind any aspect of DACA, which would effectively require the Government to accept even new DACA applications. This order has since been stayed in part, but it seems to have prompted the Plaintiff States to file this action.
16 Texas I, 809 F.3d at 184, 167, 178. 17 Order Granting Certiorari, Texas v. United States, 136 S. Ct. 906 (2016) (No. 15-674). 18 Texas v. United States, 136 S.Ct. 2271 (2016).
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III. The Other Recent DACA Decisions Do Not Suggest That This Court Should Refrain From Ruling.
The Defendant-Intervenors moved for dismissal or alternatively asked this Court to defer
ruling in this case based upon other ongoing cases that deal with the decision of the DHS to
phase out DACA. Their primary argument was that those courts were the first to address the
program and that this Court should therefore defer to their rulings as a matter of comity.
This Court denied the request for several reasons. First, this Court need not defer to the
rulings in the four cases discussed below because those decisions involve the legality of the
DACA rescission memorandum-an issue this Court does not address. Second, the argument's
primary premise is incorrect. This Court was the first to address these issues-well before any of the courts in question. This can be seen quite clearly when one reviews the transcript of one of
the very first hearings of the earliest case in question, Batalla Vidal v. Trump, 279 F. Supp. 3d
401 (E.D.N.Y. 2018). As the following exchange indicates, the main thrust of the September 22,
2016 hearing was based upon this Court's injunction in Texas 1: The Court: ... So, tell me why are you here after my colleague down in the Southern District of Texas, that erudite jurist, has issued nationwide preliminary injunction and you want me to carve out what you might call the Second Circuit exception to that, if you will?
* * *
The Court: That's why you feel you can be here and that the preliminary injunctive relief that was granted in the Southern District of Texas and affirmed by the Fifth Circuit would not reach his situation here in New York? Is that it? Mr. Bloom: Yes.
* * *
The Court: I understand. I know you have a problem. Understood. But then, again, I have a problem which is the rights of this individual, all right, and whoever else comes along. So I understand that and maybe perhaps I'll decide whatever I decide. Someone will take it up to the Second Circuit and guess what?
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There might be a circuit split or the circuit will say they agree with the Fifth Circuit or we should give full faith and credit and comity, whatever you want to call it, to the actions ofthe Fifth Circuit in order to avoid placing the government in an untenable position.
By that time there will be a new president and there will be a new Congress and it may be an issue in the political branches and we may not have anything to do here. I have no idea. But right now the question is the plaintiff has brought this problem to me and, as sympathetic as I am to the government's predicament, the plaintiff has brought the issue to the court and I should be dealing with the issue if I can. Maybe I can't, and we're going to find out ifl should. That's all.
So I understand your problem. I sympathize with your problem, but I do not sympathize with the idea that I am hamstrung in dealing with an issue involving individual rights and including the right to go make a living and have a life as an immigrant in the United States. Sa I don't know what's going on out there in Texas on the border but I know what's going on in New York. And I'm very concerned about it and have absolutely no intention ofsimply marching behind in the parade that's going on out there in Texas, if this person has rights here. 19
This exchange is important for multiple reasons. First, it illustrates the point that those
cases involved some of the same issues as those involved in Texas I. The first plaintiff in the first
case was seeking an order to avoid this Court's injunction. Second, it illustrates that neither
comity nor a nationwide injunction prevents a district court from hearing a case. Third, to a
casual reader, the New York court's comments may seem off-hand, as the judge was just getting
into the case; however, the point the judge was making concerning circuit splits has gained more
and more interest among commentators and courts.
Justice Clarence Thomas recently questioned the advisability of a district court entering a
nationwide injunction. Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Thomas, J., concurring).
Similar questions have been raised in the lay press as well. See, e.g., Jason, L. Riley, When
District Judges Try to Run the Country, Wall Street J. (July 18, 2018), at A17. This Court agrees
with the overall tenor of both Justice Thomas's concurrence and Mr. Riley's thoughtful opinion
piece. Moreover, several recent law review articles have addressed the pros and cons of
19 [Doc. No. 188, Ex. 3, at 3-4, 12-13] (emphasis added). 14

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nationwide injunctions. See Samuel Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017); Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2) and the Remedial Powers ofLower Courts, 97 B.U. L. Rev. 611 (2017); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095 (2017); Gretzel Burger, Note, Nationwide Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. Rev. 1068 (2017). Some of these authors have suggested that some of the advantages of nationwide injunctions are uniformity, judicial efficiency, and the ability of a court to award complete relief. They have also suggested that some of the disadvantages include a premature freezing of the law, the weakening of the certiorari process by preventing circuit splits, territorial clashes between courts, plaintiffs filing cases until they find a court that will rule in their favor, and forum shopping. Each of these reasons for and against such an injunction is not without some degree of merit.
Most of those same authors have suggested a variety of remedies such as: limiting relief to the physical limits of the court's jurisdiction, limiting relief to highly significant questions, limiting relief to issues involving questions of general applicability, limiting relief to the circuit in which each court sits, and giving the narrowest relief possible. All of these proposed solutions merit consideration as well.
The problem that a district court encounters is how to craft an order that gives the appropriate relief to the prevailing party, but also makes sense in an immigration context. Interestingly, after noting the recent concern over nationwide injunctions, the New York court eventually entered one. The court encountered some of the same problematic and practical factors this Court faced in Texas I. It wrote:
Nevertheless, the court finds that a nationwide injunction is warranted in these cases. First, it is hard to conceive of how the court would craft a narrower
15

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injunction that would adequately protect Plaintiffs' interests. Plaintiffs include not only several individuals and a nonprofit organization, but also sixteen states and the District of Columbia. To protect the State Plaintiffs' interests, the court would presumably need to enjoin Defendants from rescinding the DACA program with respect to the State Plaintiffs' residents and employees, including the employees of any instrumentalities of the state, such as public hospitals, schools, and universities. Such an injunction would be unworkable, partly in light of the simple fact that people move from state to state and job to job, and would likely create administrative problems for Defendants. Furthermore, there is a strong federal interest in the uniformity of federal immigration law. See U.S. Const. art. I, § 8, cl. 4 (empowering Congress to "establish a uniform Rule of Naturalization"); Texas, 809 F.3d at 187-88. Because the decision to rescind the DACA program had a "systemwide impact," the court will preliminarily impose a "systemwide remedy." Lewis v. Casey, 518 U.S. 343, 359, 116 S. Ct. 2174, 135 L.Ed.2d 606 (1996) (quoting Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977)).20
These are many of the same factors pointed out in Texas I by this Court and the Fifth Circuit.
The court in New York could not envision any effective relief narrower than a nationwide
injunction in part because it had sixteen states as plaintiffs. Texas I involved twenty-six states
from eleven different circuits, so fashioning a circuit-based remedy was, for all practical
purposes, impossible. These states ranged from North Dakota to Texas and from North Carolina
to Nevada. Limiting an injunction to those twenty-six states or a geographic area was a virtual
impossibility when an individual can freely travel. Such an injunction would have been
ineffective. The DAPA and Expanded DACA programs would have gone into effect in less than
half of the country. Could a DAPA recipient with lawful presence in New York travel to Texas,
have an encounter with immigration officers in Texas, and be placed in immigration proceedings
because there was an injunction forbidding its rollout in Texas? The court in Batalla Vidal, like
this one in Texas I, clearly gave consideration to limiting the relief it awarded, and it too could
not conceive of a narrower path to follow:
20 Batalla Vidal, 279 F. Supp. 3d at 437-38. 16

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The court enjoins rescission of the DACA program on a universal or "nationwide" basis. Again, it does not do so lightly. As Defendants correctly note, equitable principles provide that the court should not enter an injunction that is broader than "necessary to provide complete relief to the plaintiffs." (Defs. Opp'n at 50 (quoting Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994)).) See also Church & Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 72 (2d Cir. 2016) ("[I]njunctive relief should be no broader than necessary to cure the effects of the harm caused by the violation...." (internal quotation marks and citations omitted) ). Moreover, several academic commentators have insightfully observed various problems with the practice of granting nationwide injunctions against the Government, including that such injunctions thwart the development of law in different courts, encourage forum-shopping, and create the possibility that different courts will issue conflicting nationwide injunctions.21
While not referenced in Justice Thomas's Trump v. Hawaii concurrence, the broad grant of
standing articulated in Massachusetts v. EPA and its progeny further complicates the national
injunction issue, as does the imperative that immigration policy be uniform. Broad grants of
standing for states, municipalities, and groups combine with the requirement that immigration
policy be uniform, and together they create a perfect storm that results in remedies no one
prefers-not judges, not lawyers, not lay people.
The third reason this Court will not defer to the other courts is that it is not entering an
order that is contrary to any of the quartet of orders discussed below. While this opinion certainly
expresses views contrary to some of those expressed by the other courts, its ruling herein does
not leave the parties facing conflicting injunctions.
Finally, there are four decisions concerning the DACA phase out, and they did not reach
the same result on the issues they addressed.22 Their results are inconsistent; consequently, a
21 Batalla Vidal, 279 F. Supp. 3d at 437-38. 22 Actually, Defendant-Intervenors claim this Court is either bound by or should defer to Regents of Univ. of Cal. v. U.S. Dept. ofHomeland Sec., 279 F.Supp.3d 1011 (N.D. Cal. 2018), Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 2018), and/or NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) that, of course, issued rulings favorable to their positions. They did not argue that this Court should follow the ruling in Casa de Maryland v. U.S. Dept. of Homeland Sec., 284 F. Supp. 3d 758 (D. Md. 2018), a case that ruled contrary to the continuation of the DACA program.
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different result here certainly would not disrupt any sense of uniformity. This Court has reviewed each of those opinions carefully and finds none to be
controlling. While various aspects of each opinion are informative, none were decided by a court that is bound to follow Fifth Circuit precedent. Additionally, each court worked with records different from the record in Texas I and the record now before this Court. As one would expect given different records, each ultimate ruling could also be different. The Court will briefly recount each case in chronological order of their actual decisions.
The first decision from the quartet was issued in January of this year in Regents of the University of California v. U.S. Department ofHomeland Security. 279 F. Supp. 3d 1011 (N.D. Cal. 2018). That court was asked whether the decision of the DHS to rescind DACA, as articulated by the September 5, 2017 memorandum of Acting DHS Secretary Elaine C. Duke, was effective. That court held that it was not, as the court found the memorandum's reasoning to be insufficient and flawed, and therefore ineffective. Id. at 1037--43. It further ruled that the additional reasons proffered by Government lawyers were ''post hoc rationalizations" and refused to consider them. Id. at 1043--46. While conceding that "at least some of the [Fifth Circuit] majority reasons for holding DAPA illegal would apply [to DACA]," in large part it found a memorandum from the Office of Legal Counsel ("OLC memorandum"), 23 written about DAPA two years after DACA was instituted, to be more persuasive. Regents, 279 F. Supp. 3d at 1042. The California court ultimately entered an order enjoining the rescission of any DACA status already granted and any renewals for existing DACA recipients. Id. at 1048--49. It held
23 U.S. Department of Justice's November 19, 2014, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President (Nov. 19, 2014) [Doc. No. 5, Ex. 19]. In the OLC memorandum, DACA was discussed as a blueprint for DAPA and Expanded DACA. Nevertheless, given the ruling in Regents and the other cases discussed herein, this Court assumes those judges who relied on the OLC memorandum concerning DAPA did so in part due to the OLC footnote that actually recounts advice given as to DACA's legality.
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that new DACA applications need not be processed and that DHS could stop allotting advance parole (which provides an easier pathway to legal status for some DACA recipients). !d.
One month later in the case discussed above, a district court in New York awarded substantially the same relief in Batalla Vidal v. Trump. 279 F. Supp. 3d 401 (E.D.N.Y. 2018). The court disagreed with the assertion that DACA might violate the APA, basing its decision on many of the same factors discussed above. !d. at 420-29. While acknowledging that the Fifth Circuit had ruled on DAPA, it did not mention or give any credence to the fact that the Fifth Circuit had also ruled against Expanded DACA and the fact that both DAPA and those amendments were instituted in the same manner as the original DACA program. !d. Ultimately, the Batalla Vidal court concluded that DACA did not conflict with the INA and, like the California court, arrived at that conclusion by citing the OLC memorandum, as well as the briefs filed by the Solicitor General in the Supreme Court and the Fifth Circuit dissent in Texas I. !d. at 426-27.
Next, a district court in Maryland reached a decision in Casa de Maryland v. US. Department of Homeland Security. 284 F. Supp. 3d 758 (D. Md. 2018). It ruled that "the decision to rescind DACA was neither arbitrary nor capricious, but rather was a carefully crafted decision supported by the Administrative Record." !d. at 772.
The rescission of a policy relating to prosecutorial discretion does not shock the conscience of this Court. Absent congressional action, the benefits given to Dreamers by DACA were in potential violation of congressional immigration laws; the only thing that has changed is that deferred status will expire, and enforcement of immigration laws may recommence in the absence of action by Congress, which the President has requested. There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle. Furthermore, the election process, and not federal litigation, is the appropriate methodfor resolving any fairness implicated in DA CA 's rescission. 24
24 !d. at 777 (emphasis added). 19

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Both the California and New York decisions were cited as authority by the plaintiffs in
the Maryland case, but the court rejected their conclusions:
All courts reviewing the DACA rescission would benefit from a pnor generation's wisdom regarding the separation of powers: "A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to 'take Care that the Laws be faithfully executed."' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 709, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
The decisions to date by courts in California and New York are premised on the legal conclusion that DACA is lawful, and therefore, a decision to rescind DACA on the basis of unlawfulness is necessarily arbitrary and capricious. Respectfully, this Court disagrees. Regardless of the lawfulness of DACA, the appropriate inquiry is whether or not DHS made a reasoned decision to rescind DACA based on the Administrative Record. Any alternative inquiry would impermissibly require a court to "substitute its judgment for that of the agency. " See Motor Vehicle Mfrs. Ass 'n of US. v. State Farm Mut. Auto. Ins. Co., 463 US. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Given the fate ofDAPA, 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.25
The Maryland court concluded that the Government was free to rescind DACA, but it
enjoined the Government from using any information provided by a DACA recipient during the
DACA application process against that recipient. Id. at 779.
Finally, a district court in Washington, D.C. ruled in a fourth DACA-rescission case,
NAACP v. Trump. 298 F. Supp. 3d 209 (D.D.C. 2018). It originally indicated that it would vacate
the Government's memorandum rescinding DACA (including all new applications and renewals)
but temporarily suspended that ruling to allow a supplementation of the record:
25 Jd. at 767-68 (internal footnote omitted). 20

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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?6
The court realized the DHS decision was based upon its review of the Fifth Circuit's decision on DAPA and Expanded DACA, but concluded:
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.27
Thereafter, the D.C. court analyzed a subsequent memorandum from DHS Secretary Kirstjen Nielsen and found it equally deficient. NAACP v. Trump, No. 17-1907, 2018 WL 3702588 (D.D.C. Aug. 3, 2018). The court, instead of refusing to consider the memorandum at all, as urged by the plaintiffs, elected to treat part of the June 2018 memorandum as a "further explanation" of the original rescission memorandum. !d. at *5. It declined to consider the DHS's claim that DACA encourages more illegal immigration because it appeared "for the first time on remand and is therefore impermissibly post hoc." !d. at *7. It analyzed the remaining portions of the Nielsen memorandum and found that they were "legal determination[s] dressed up as a policy judgment." !d. at *9. It further rejected the Government's concession that the DHS was not using individualized discretion in the implementation ofDACA because the court concluded,
26 !d. at 249. 27 !d. at 239.
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quite reasonably, that this was a problem that Secretary Nielsen herself could fix. 28 !d.
On the actual merits of the second memorandum, the court found it to be a mere
rehashing of the original September 5, 2017 Duke memorandum with no "meaningful
elaboration on the Duke Memo's assertion that DACA is unlawful." !d. at *11. Ultimately, the
second memorandum provided no convincing rationale to persuade the court to revise its prior
conclusion that DACA's rescission was "arbitrary and capricious." !d. at *12-13. The court
explained its decision in its closing paragraph:
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 do. The Court therefore reaffirms its conclusion that DACA's rescission was unlawful and must be set aside.29
The NAACP court also relied upon the OLC memorandum as authority to dispute the Attorney General's conclusion that DACA might also violate the Constitution.30 NAACP, 2018
WL 3702588, at *11. The Government has appealed the D.C. court's order vacating the
rescission of DACA. In its most recent ruling, the D.C. court stayed its earlier order in part and
will not require the Government to accept new initial applications or applications for advance
parole during the pendency of the appeal. It ordered that the DHS rescission decision as to
28 While this Court agrees with the conclusion that the DHS Secretary might be able to exert pressure to actually effectuate individual discretion, it carries with it the basic assumption that no court will subsequently enjoin the DACA processors from actually exercising that discretion. 29 Id. at *13. 30 The OLC memorandum analyzed the concepts of prosecutorial discretion and deferred action in the context of the Take Care Clause. See U.S. Department of Justice's November 19, 2014, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President (Nov. 19, 2014) [Doc. No. 5, Ex. 19]. The OLC memorandum did not address potential procedural and substantive violations of the APA by name, although certain passages can be read as referring to the APA.
22

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current DACA recipients and renewals was vacated. Thus, its current orders effectively match
the rulings in California and New York. [Doc. No. 313, Exs. 1-2.]
Overall, there is little to be gleaned from these prior DACA decisions that is applicable to
the questions posed in this case. Three courts found the DRS rescission ineffective and enjoined
or vacated it, and one found it legal and did not enjoin the rescission but did enjoin any use of
DACA recipient information. Only the Casa De Maryland court seemed to give any credence to
the fact that the original 2014 challenge to DAPA and Expanded DACA was only dismissed due
to the DRS's decision to rescind DACA, which seems at least relevant to the DRS's claim that it
considered the litigation risk prior to its decision:
DAPA-an analogous program, promulgated by the analogous means-had been defeated less than a year prior. The litigation that stopped DAPA included expansions of DACA itself. The same plaintiffs who defeated DAPA threatened to challenge DACA imminently. The Attorney General of the United States-the nation's chief legal officer-provided legal advice that DACA was likewise unlawful and likely ill-fated against a legal challenge. All of this is in the Administrative Record-the remnants of the DAPA litigation, the threatened legal challenge, and the Attorney General's advisory letter.
Therefore, what did the Acting Secretary of DHS do? She opted for a six-month wind-down period instead of the chaotic possibility of an immediate termination, which would come at a time known only to the judge resolving a future challenge to the DACA program. This decision took control of a pell-mell situation and provided Congress-the branch of government charged with determining immigration policy-an opportunity to remedy it. Given the reasonable beliefthat DACA was unlawful, the decision to wind down DACA in an orderly manner was rational. 31
As stated above, it is important to note that these courts were primarily faced with the
issue of the Government's rescission of DACA-not its creation and implementation. Second,
one must note that none of these courts are bound by Fifth Circuit precedent. In fact, more than
31 Casa de Maryland, 284 F. Supp. 3d at 772-73 (emphasis added and internal footnotes omitted). 23

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one judge referred to the dissent in the Fifth Circuit's opinion with approval. Obviously, being a court in the Fifth Circuit, this Court cannot adopt and follow a Fifth Circuit dissent. Third, some courts seem to assume that DACA's use of program-wide discretion was sufficient. For example, both of the courts in Regents and Batalla Vidal took issue with the Fifth Circuit's conclusion in Texas I that the APA requires the actual personnel reviewing DACA applications to be the individuals exercising discretion. Those courts felt that the agency exercised its discretion by setting out the criteria in the 2012 memorandum and that "exercise" was all that was necessary. In other words, a "programmatic" exercise of discretion would suffice. See Regents, 279 F. Supp. 3d at 1039; Batalla Vidal, 279 F. Supp. 3d at 424-25 (suggesting that discretion at the agency level, as opposed to the individual officer level, would suffice to exempt DACA from notice and comment).
This Court ruled differently for many reasons, but it will mention three. This approach is contrary to the very essence of prosecutorial discretion. Under that approach, the Secretary could have given lawful presence to every alien unlawfully in the country. Further, that procedure is contrary to the very OLC memorandum upon which those courts rely. That memorandum specifically recounted an oral warning the OLC gave the DHS regarding DACA:
Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred
24

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action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. 32 Thus, it advised that an exercise of program-wide discretion by the Secretary was problematic. The record in Texas I compelled this Court's finding that no individual discretion was being exercised by those actually evaluating applications. Consequently, the DHS could find no support from the OLC memorandum. Finally, given the benefits DAPA was to confer, and the binding programmatic protocols issued by the Secretary of the DHS, the conclusion that there must be compliance with the notice-and-comment requirements of the APA was unassailable. These decisions also gloss over the fact that the Fifth Circuit affirmed an injunction not just against DAPA, but also against Expanded DACA. Finally, all three courts that actually ruled against the DHS's decision to rescind DACA seemed to put heavy reliance on the OLC memorandum. That memorandum did not address the advice given concerning the legality of DACA,33 except for the footnote quoted above. What was more important for this Court, and no doubt for the Fifth Circuit in Texas I, was the fact that the OLC memorandum did not include an in-depth APA analysis. The decisions enjoining DAPA and Expanded DACA were based on those programs' failure to comply with the requirements of the APA, not on the other legal challenges. Perhaps the only common thread between all four of these decisions, at least as analyzed by this Court, was aptly expressed by the court in Casa de Maryland: The result of this case is not one that this Court would choose if it were a member
32 U.S. Department of Justice's November 19, 2014, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President (Nov. 19, 2014) [Doc. No.5, Ex. 19, at 18 n.8] (emphasis added). 33 The OLC memorandum addressed an expansion of deferred action to include parents of United States citizens and of lawful permanent residents and parents of DACA recipients, the latter of which it found impermissible because "[t]he logic underlying such an expansion does not have a clear stopping point ...." !d. at 33. Ultimately, no counsel defending the DAPA or Expanded DACA programs could articulate any reason that the criteria could not be expanded to include the entire illegal alien population.
25

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of a different branch of our government. An overwhelming percentage of Americans support protections for "Dreamers," yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, "a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels."
This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.34
Although the other courts reached different conclusions, given the tenor of their decisions, this Court feels safe assuming that each would agree with the hope for a legislative fix. Having found that there is no reason to defer to the decisions governing the DRS's rescission of DACA, this Court proceeds to address the merits. IV. This Case Unquestionably Presents a Case or Controversy.
Separate from the preliminary injunction motion, the Defendant-Intervenors have filed a motion to dismiss this case for lack of subject matter jurisdiction. [Doc. No. 118]. In the motion, they argue that this case does not meet Article III's case-or-controversy requirement and is therefore not justiciable. See U.S. Const. art. III, § 2. As Defendant-Intervenors suggest the case should be dismissed without reaching the merits of the preliminary injunction motion, the Court addresses this issue first.
To be justiciable under Article III, a case must present a genuine controversy between adverse parties. See INS v. Chadha, 462 U.S. 919, 939 (1983). The Defendant-Intervenors argue that this case does not present such a controversy, as the Plaintiff States and the Government "take the same position" regarding DACA's legality and "desire the same result-that it be
34 Casa de Maryland, 284 F. Supp. 3d at 779 (internal footnotes omitted). 26

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rescinded." [Doc. No. 188, Ex. 1, at 13]. Even under this framing, however, the Supreme Court's modem pronouncements on the case-and-controversy requirement indicate that this case presents a justiciable controversy.
In United States v. Windsor, 570 U.S. 744 (2013), the Supreme Court considered whether a justiciable controversy existed where the Executive Branch continued to enforce a statute against an individual despite agreeing with her that the statute was unconstitutional. Edith Windsor and Thea Spyer married as a same-sex couple outside the United States?5 Windsor, 570 U.S. at 753. They lived in New York, which recognized their marriage. !d. After Spyer died and left her estate to Windsor, Windsor paid federal estate taxes on the property she received. !d. Windsor sought a refund of those taxes under the marital exemption from the estate tax, but the Internal Revenue Service denied her the refund because the Defense of Marriage Act ("DOMA") prevented same-sex couples from being considered "spouses" for purposes of the marital exemption. !d. Windsor sued, arguing that DOMA violated the Fifth Amendment's guarantee of equal protection. !d.
During the pendency of the suit, the United States Attorney General notified Congress that the Department of Justice did not intend to defend the constitutionality of DOMA because the President concluded the statute was unconstitutional. !d. Despite that conclusion, the President instructed the Department of Justice to continue enforcing the statute, recognizing "the judiciary as the final arbiter of the constitutional claims raised." !d. at 754 (citation omitted). The district court ultimately held that Windsor was entitled to a refund because DOMA was unconstitutional, and the Second Circuit affirmed that conclusion. !d. at 754-55. The United
35 At the time, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which recognized a fundamental right to marry for couples of the same sex, had not yet been decided.
27

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States continued to withhold the tax refund, however, and the Supreme Court granted certiorari
to review the judgment. !d. at 755.
Due to the case's posture, the Supreme Court appointed an amicus curiae to argue against
the Court's jurisdiction over the case. The amicus argued that the suit was no longer adverse
after the district court had ordered payment and the United States and Windsor agreed on the
issue of the illegality of DOMA. Id. at 756. In that sense, both sides had prevailed in the lower
courts. Id. Granting certiorari and ruling on the merits was therefore inappropriate, according to
the argument, because neither party actually sought any true redress from the tax-refund
judgment. !d.
The Supreme Court, however, took a broader view of adverseness and controversy.
Under the majority's reasoning, the United States "retain[ed] a stake sufficient to support Article
III jurisdiction":
The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is "a real and immediate economic injury," Hein, 551 U.S., at 599, 127 S.Ct. 2553, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court's order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with § 3 of DOMA, which results in Windsor's liability for the tax. Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court's ruling. 36
Thus, the Supreme Court found that even where "the Government largely agree[s] with the
opposing party on the merits of the controversy," the Government's intent to enforce the
36 !d. at 757-58. 28

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challenged law provided sufficient adverseness to maintain jurisdiction over the suit. Id. at 759 (quoting Chadha, 462 U.S. at 940 n.12).
The dispute between the Plaintiff States and the Government easily fits within the fact pattern affirmed by Windsor. Though they "largely agree ... on the merits" of DACA's legality, the Government continues to administer the program to comply with the California, New York, and D.C. courts' injunctions/vacatur.37 The Government's promulgation and continued operation of the DACA program is the alleged source of the Plaintiff States' injuries, which is true regardless of whether the Government agrees with the States on the merits. Due to the fact that the Government continues to operate the DACA program and indicates they will continue to operate it in the future to the detriment of the Plaintiff States, this case presents an Article III controversy between adverse parties under Windsor.
In addition to the jurisdictional requirements discussed above, the Court must also consider the prudence of exercising its jurisdiction here. Windsor, 570 U.S. at 760. Situations where opposing parties in a lawsuit take the same position on the primary legal issues in the case present a great risk of judicial misstep, as the suit may "lack the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Given how the proceedings have unfolded to date, however, that risk does not exist here. The parties have more than ably illuminated the challenging issues upon which this case turns. Though they
37 The fact that the Government continues DACA because of these injunctions does not change the Article III caseor-controversy analysis. See INS v. Chadha, 462 U.S. 919, 940 n.l2 (1983) (citing Bob Jones Univ. v. United States, 461 U.S. 574, 585 n.9 (1983)) ("[In Bob Jones University v. United States], the United States agreed with Bob Jones University and Goldsboro Christian Schools that certain Revenue Rulings denying tax exempt status to schools that discriminated on the basis of race were invalid. Despite its agreement with the schools, however, the United States was complying with a court order enjoining it from granting tax-exempt status to any school that discriminated on the basis of race. Even though the government largely agreed with the opposing party on the merits of the controversy, we found an adequate basis for jurisdiction in the fact that the government intended to enforce the challenged law against that party." (emphasis added)).
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happen to agree on many of the legal aspects of the DACA program, it is clear that the Government is vigorously guarding its own interests rather than serving in a "friendly, nonadversary" role relative to the Plaintiff States. See, e.g., [Doc. No. 305, at 4-5] (Government arguing-in contradiction to the Plaintiff States' position-that the DACA memorandum did not modify substantive rights and benefits in a way that would require notice and comment).
Further, the presence of the Defendant-Intervenors and the State ofNew Jersey-each of which vehemently opposes the legal positions taken by the Plaintiff States-adds additional clarity to the Court's consideration of the issues in this case. The Supreme Court in Windsor noted that one consideration that may assist in determining the appropriateness of exercising jurisdiction is "the extent to which adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor" the legal issues at hand. Windsor, 570 U.S. at 760. The Defendant-Intervenors surely fill this role-perhaps even better than an amicus as suggested by Windsor-due to their demonstrated, concrete interest in the outcome of the litigation. Even if their participation was considered insufficient for some reason, this Court has also been provided with numerous amicus curiae briefs that buoy their position. Consequently, this case is much more adverse than Windsor.
For these reasons, the Court is assured that this case presents a justiciable, adverse controversy and that there are minimal prudential concerns with its exercise ofjurisdiction.38 The Court turns next to consider whether the Plaintiff States have standing. V. The Plaintiff States Have Standing.
Article III of the Constitution limits the judicial power of the United States to "Cases" and "Controversies." U.S. Const. art. III, § 2. Though these terms are not self-defining, they have
38 In the same motion to dismiss, the Defendant-Intervenors present an additional jurisdictional argument-that the Plaintiff States' injuries are not redressable. The Court discusses that argument in its standing analysis below.
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long been understood to confine "the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). Federal courts have deduced certain requirements from the text and structure of the Constitution that ensure they act only within their proper adjudicatory role. Lexmark Int 'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). Among those requirements is standing.
Article III standing has three elements. A plaintiff must show that he or she has suffered (1) an injury in fact, (2) that is fairly traceable to the defendant's challenged conduct, (3) which is likely to be redressed by a favorable judicial decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). An injury in fact must be "concrete, particularized, and actual or imminent." Clapper v. Amnesty Int'l USA, 568 U.S. 398,409 (2013).
Defendant-Intervenors contend that this case should be dismissed for lack of standing. As the parties invoking federal jurisdiction, the States bear the burden of proving standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). At the preliminary injunction stage, satisfying this burden requires the States to make a "clear showing that they have standing to maintain the preliminary injunction." Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (citations and internal quotation marks omitted). A single plaintiff with standing satisfies the case-orcontroversy requirement of Article III. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006). As the States have centered their standing arguments around DACA's impact in Texas, the Court's analysis focuses on whether Texas has standing to sue.
The States assert multiple independent theories of standing. Additionally, they claim they are entitled to special solicitude when this Court makes its standing determination due to the
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Supreme Court's decision in Massachusetts v. EPA. This Court first considers whether Texas is entitled to special solicitude in the standing analysis, then considers whether any of the proffered theories support standing.
A. Special Solicitude The Court first considers whether Texas is entitled to special solicitude. The Supreme Court in Massachusetts did not precisely explain what effect special solicitude has on the standing analysis,39 but at the very least, it appears to shore up weaknesses presented by attenuated causation and redressability arguments. See Massachusetts, 549 U.S. at 523 (finding causation and redressability despite the agency's arguments that "its decision not to regulate greenhouse gas emissions ... contribute[d) so insignificantly to petitioners' injuries that [it could not] be haled into federal court to answer for them" and that there was not "any realistic possibility ... that the relief petitioners [sought] would mitigate global climate change and remedy their injuries"). The Fifth Circuit interpreted special solicitude to lessen the certainty needed in the traditional causation and redressability analysis, and this Court must give effect to that interpretation, as it is binding precedent. See Texas I, 809 F.3d at 159 ("In addition to its notion that Texas could avoid injury, the government theorizes that Texas's injury is not fairly traceable to DAPA because it is merely an incidental and attenuated consequence of the program. But Massachusetts v. EPA establishes that the causal connection is adequate. Texas is entitled to the same 'special solicitude' as was Massachusetts, and the causal link is even closer here."). Under the law set forth in Massachusetts v. EPA and Texas I, the Court finds that Texas is entitled to special solicitude.
39 See Massachusetts, 549 U.S. at 540 (Roberts, C.J., dissenting) ("It is not at all clear how the Court's 'special solicitude' for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms.")
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In Massachusetts v. EPA, the State of Massachusetts challenged the decision of the Environmental Protection Agency ("EPA") not to regulate certain vehicle emissions. 549 U.S. at 505. The EPA sought dismissal of the case on the ground that Massachusetts lacked standing to sue. !d. In deciding that Massachusetts did have standing, the Supreme Court's analysis turned in part on Massachusetts's status as a state. !d. at 518-20. Unlike most private parties, the majority reasoned, "[s]tates are not norma1litigants for the purposes of invoking federal jurisdiction." !d. at 518. Certain circumstances may entitle them to special solicitude in the Court's standing analysis because of their unique position in the federal system. !d. at 520.
The Court focused on two factors in its standing analysis before granting special solicitude to Massachusetts. First, it noted that Congress had provided Massachusetts a procedural right to challenge the action in question. !d. at 519-20. Through the Clean Air Act, Congress had ordered the EPA to protect Massachusetts and others against air pollution by prescribing emissions standards for motor vehicles. !d. Alongside this command came a procedural right by which Massachusetts could challenge the rejection of its rulemaking petition as arbitrary and capricious. !d. at 520. The Court suggested that this type of litigation, which "tum[ed] on the proper construction of a congressional statute," presented "a question eminently suitable to resolution in federal court." !d. at 516.
Second, the Court focused on Massachusetts's desire to protect its quasi-sovereign interest in its territory. !d. at 518-19. According to the majority, early twentieth-century case law recognized that a state's "independent interest 'in all the earth and air within its domain"' could "support[] federal jurisdiction." !d. (quoting Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)). The Court recognized that Massachusetts similarly desired to preserve its sovereign territory, specifically its coastline from the threat of rising sea levels. !d. at 518-19, 522. Due to
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its status as a state in the union, however, Massachusetts had "surrender[ed] certain sovereign
prerogatives" that would otherwise afford it the ability to protect its own interest. Id. at 519. As
stated by the Court:
Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motorvehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rei. Barez, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) ("One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers").40
Since those prerogatives "are now lodged in the Federal Government," rendering
Massachusetts unable to regulate the harms associated with air pollutants, the Court stressed
Congress's command to the EPA to protect Massachusetts from those harms. Id. at 519-20. In
light of these two factors-Massachusetts's procedural right to challenge the EPA's (in)action
and its quasi-sovereign interest in protecting its territory-the Court found that Massachusetts
was "entitled to special solicitude" in the Court's standing analysis. Id. at 520.
For purposes of this analysis, this Court does not write on a clean slate. The Fifth Circuit
in the DAPA litigation analyzed the special solicitude question on facts substantially similar to
the ones here. See Texas I, 809 F.3d at 151-55. First, it found Texas's procedural right to
challenge the DHS's DAPA guidelines to be analogous to Massachusetts's right to challenge the
EPA's decision not to promulgate emissions standards:
Like Massachusetts, the instant plaintiffs-the states-"are not normal litigants for the purposes of invoking federal jurisdiction," id. at 518, 127 S.Ct. 1438 and the same two additional factors are present. First, "[t]he parties' dispute turns on the proper construction of a congressional statute," the APA, which authorizes challenges to "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Similarly, the disagreement in Massachusetts v. EPA
40 Id. 34

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concerned the interpretation of the Clean Air Act, which provides for judicial review of "final action taken[ ] by the Administrator." 42 U.S.C. § 7607(b)(1 ).41
Additionally, though the Clean Air Act provided a more specific procedural right than the
APA's, the Fifth Circuit found that the difference did not change Massachusetts v. EPA's
applicability:
In enacting the APA, Congress intended for those "suffering legal wrong because of agency action" to have judicial recourse, and the states fall well within that definition. The Clean Air Act's review provision is more specific than the APA's, but the latter is easily adequate to justify "special solicitude" here. The procedural right to challenge EPA decisions created by the Clean Air Act provided important support to Massachusetts because the challenge Massachusetts sought to bring-a challenge to an agency's decision not to act-is traditionally the type for which it is most difficult to establish standing and a justiciable issue. Texas, by contrast, challenges DRS's affirmative decision to set guidelines for granting lawful presence to a broad class of illegal aliens. Because the states here challenge DHS 's decision to act, rather than its decision to remain inactive, a procedural right similar to that created by the Clean Air Act is not necessary to support standing. See 5 U.S.C. § 704.42
The Fifth Circuit's analysis applies equally to Texas's procedural right to challenge
DACA. As such, Texas satisfies the first factor to qualify for special solicitude.
The Fifth Circuit's analysis of the second factor-affecting the States' quasi-sovereign
interests-does not translate to this case as easily as the first factor. The majority opinion in the
DAPA litigation focused on DAPA's "imposing substantial pressure on [the plaintiff states] to
change their laws, which provide for issuing driver's licenses to some aliens and subsidizing
those licenses." !d. at 153. Texas in this litigation has not asserted standing on the basis of driver's-license costs. Nevertheless, as explained more fully in this Court's parens patriae
standing analysis, Texas has demonstrated a quasi-sovereign interest in the economic well-being
41 ld. at 152. 42 ld.
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of its citizens, which amply supports Texas's entitlement to special solicitude in the standing analysis.
The Supreme Court in Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez recognized that a state has a "quasi-sovereign interest in the health and well-being-both physical and economic-of its residents in general." 458 U.S. 592, 607 (1982). The Court noted that the challenged conduct or program, whether by its direct or indirect effects, must injure "a sufficiently substantial segment of [the state's] population." Id. In other words, "more must be alleged than injury to an identifiable group of individual residents." Id. A helpful indicator of whether such an injury suffices, the Court remarked, is "whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers." Id.
Texas has certainly demonstrated such an interest. The States accurately allege that the DACA program bypasses Congress's comprehensive immigration framework to grant unlawfully present individuals lawful presence and thereafter work authorizations. DACA recipients in turn may compete 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. The States further argue that the Patient Protection and Affordable Care Act, 26 U.S.C. § 4980H ("ACA"), exacerbates this problem. As explained in the Court's parens patriae analysis, businesses are not required to provide health insurance to DACA recipients like they are to legally present employees. This makes DACA recipients less costly to employ, incentivizing employers to hire DACA recipients over similarly qualified Texas residents. Taken together, these elements create a more competitive labor market in which it is more difficult for legal residents ofTexas to obtain jobs.
In its quasi-sovereign interest analysis in Texas I, the Fifth Circuit found that the States'
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interests also implicated the same sorts of sovereignty concerns as Massachusetts's interests did in Massachusetts v. EPA:
When the states joined the union, they surrendered some of their sovereign prerogatives over immigration. They cannot establish their own classifications of aliens, just as "Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or India."
Texas I, 809 F.3d at 153 (quoting Massachusetts, 549 U.S. at 519); see also Arizona v. United
States, 567 U.S. 387 (2012) (discussing the ways in which federal law preempts state law in the area of immigration).
As in Massachusetts v. EPA and Texas I, the States "rely on the federal government to
protect their interests," and Congress has provided them a procedural vehicle-the APA-to do so. Texas I, 809 F.3d at 154.43 That being the case, the Plaintiff States have shown that Texas is
entitled to special solicitude in this Court's standing analysis.
B. Parens Patriae Standing
The States assert their standing to sue on the basis of the parens patriae doctrine. Parens
patriae standing allows a state to sue a defendant to protect the interests of its citizens at large.
Alfred L. Snapp & Son, 458 U.S. at 600-02. To do so, however, the state must have its own specific type of interest-separate from that of its citizens-that has been injured. In Supreme
Court parlance, this type of interest has been termed a "quasi-sovereign" interest. !d. at 601. The concept of a quasi-sovereign interest is "a judicial construct that does not lend itself
43 In addition to its quasi-sovereign interest in preserving its sovereign territory, Massachusetts also directly owned some of the coastal land it alleged would be harmed by rising sea levels. Massachusetts, 549 U.S. at 519. The majority found this fact significant to the special solicitude analysis, though apparently not dispositive. See id. ("That Massachusetts does in fact own a great deal of the 'territory alleged to be affected' only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power." (emphasis added)). To the extent direct injury to a State's interests is relevant, the Court finds that DACA causes direct financial injuries to Texas in the form of increased social services costs. That finding is discussed in detail below in Section V.C.
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to a simple or exact definition." !d. Recognizing the imprecision inherent in the term, the Supreme Court in Alfred L. Snapp & Son sought to explain what could qualify as a quasisovereign interest. The Court first defined quasi-sovereign interests by describing what they were not. "They are not sovereign interests," such as the power to write and enforce a legal code or maintain a border. !d. They are not a state's "proprietary interests, or private interests pursued by the State as a nominal party." !d. at 602. Instead, quasi-sovereign interests "consist of a set of interests that the State has in the well-being of its populace." !d.
Not all such interests count, however. A quasi-sovereign interest must also be "sufficiently concrete to create an actual controversy between the State and the defendant," a concept that "[could] only be filled in by turning to individual cases." !d. After surveying the case law, two general categories of quasi-sovereign interests emerge: a state's interest "in the health and well-being-both physical and economic-of its residents in general" and a state's "interest in not being discriminatorily denied its rightful status within the federal system." !d. at 607.
The States seek standing under the first category. Under their theory, DACA injures the economic well-being of their citizens because those citizens are forced to compete in distorted labor markets in which it is more difficult to obtain a job. This is true for two reasons. First, DACA recipients receive work authorization under the program, which Texas argues allows them to compete with a state's legal residents for jobs. See Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children (June 15, 2012) [Doc. No.6, Ex. 1, at 5]; Decl. ofDonald Deere [Doc. No.7, Ex. 11, at 92] ("[T]he addition of some 683,000 work-eligible individuals nationwide, with 112,000 of these in Texas ... make it more difficult for some U.S. citizens to find employment."). Second,
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Texas alleges DACA recipients actually have a competitive advantage over those citizens because they may cost less to employ. Under the ACA, employers with fifty or more employees are required to offer health insurance to each of their full-time employees, and employers who do not offer insurance incur a monetary penalty. The additional cost of providing coverage (or paying the penalty), however, does not apply when the employee is a DACA recipient. All else being equal, an employer wishing to minimize costs may rationally prefer to hire a DACA recipient as opposed to someone legally in the state because employing the DACA recipient costs less.
Evidence m the preliminary injunction record supports this theory. For instance, in response to a question asking whether low-skilled DACA recipients "would increase competition with other people who are citizens who are also competing for those low skilled jobs," Defendant-Intervenors' expert, Dr. Ike Brannon, replied that they would. Dep. of Ike Brannon [Doc. No. 289, Ex. 3, at 141]. Further, the record demonstrates that some DACA individuals have been selected over other candidates for highly competitive positions.44
In addition to the arguments brought forth by the parties, many businesses appearing as amici curiae in this case have indicated they would hire non-DACA employees if the DACA program ceased. See [Doc. No. 221, Ex. 1, at 20] ("[T]he Texas business community, including many Amici and their members, stand to suffer substantial and irreparable injury if DACA is enjoined because Texas businesses will ... incur additional costs to fill positions now occupied by Dreamers."); [Doc. No. 204, Ex. 1, at 18] ("If this Court were to enjoin DACA and thereby
44 Although not in Texas, one DACA recipient was selected over other applicants for positions in Harvard University's Financial Aid Initiative and its Office of Equity, Diversity, and Inclusion. [Doc. No. 219, Ex. 19, at 56]. Another was selected over other applicants for a competitive internship, and ultimately a full-time position, as a social worker in New Jersey's Department of Children and Families. [Doc. No. 40, at 170-72]; [Doc. No. 219, Ex. 20, at 5]. At this stage, the record does not indicate why these candidates were chosen. It could be they were better qualified, cheaper to hire, or due to any number of other reasons. The Court does not need to resolve every factual controversy to make a standing determination.
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permit Dreamers' work authorizations to expire, companies will face an estimated $6.3 billion in costs to replace Dreamers ...."); [Doc. No. 192, Ex. 1, at 5] (explaining that New Jersey businesses would incur substantial costs related to hiring and training new workers if DACA were terminated). In other words, but for DACA, these businesses would need work-authorized individuals to meet their business needs, and they would have to hire applicants from a pool consisting of those legally in the United States. This market imbalance undoubtedly supports Texas's claim that an injury to the economic well-being of those legally in Texas exists and the economic well-being of its residents is a quasi-sovereign interest sufficient to support standing. Both courts in Regents of California and Batalla Vidal, which are cited favorably by the Defendant-Intervenors, found that states or state agencies that were plaintiffs in their cases had standing to protect their work force. Regents, 279 F. Supp. 3d at 1033-35 (finding two states and two cities had standing); see also Batalla Vidal, 279 F. Supp. 3d at 437-38 (entering an injunction in favor of sixteen plaintiff states).
Though the States have demonstrated a quasi-sovereign interest, Defendant-Intervenors argue that parens patriae cannot apply here because the applicable case law states that "[a] State does not have standing as parens patriae to bring an action against the Federal Government." [Doc. No. 224, at 35] (quoting Alfred L. Snapp & Son, 458 U.S. at 610 n.l6). As an initial matter, the Court notes that the cited language is dictum, as the federal government was not a defendant in the case. Nevertheless, there are undoubtedly limits on a state's ability to sue the federal government as parens patriae, as evidenced by case law from nearly a century ago. See Massachusetts v. Mellon, 262 U.S. 447 (1923). The question this Court must answer is whether those limits forbid parens patriae standing under the circumstances of this case. The Court finds they do not.
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The language cited from the Snapp case by the Defendant-Intervenors finds its origins in Massachusetts v. Mellon. In Mellon, the Supreme Court considered the justiciability of an action between the State of Massachusetts and the United States Secretary of the Treasury Andrew Mellon. !d. at 479-80. Massachusetts challenged the constitutionality of the Maternity Act, which funded state agencies seeking to reduce maternal and infant mortality rates. !d. To participate in the program, states were required to structure their programs according to federal guidelines. !d. at 479. Failing to do so could result in the federal government withholding funds. !d. Massachusetts sued, arguing (among other things) that the Act exceeded Congress's legislative authority prescribed by the Constitution-in other words, Congress acted unconstitutionally by legislating "for purposes not national, but local to the states." !d. at 479-80. The Supreme Court considered Massachusetts's alleged bases for the invocation of judicial power and, finding them unsatisfactory, dismissed the case. !d. at 480.
After canvassing its precedent on what types of cases were justiciable, the Court considered Massachusetts's arguments for justiciability, of which there were two. First, Massachusetts sought to sue in its own behalf. The Court rejected the argument, on the basis that Massachusetts had not called upon the Court to adjudicate concrete rights, such as those of "person or property," "dominion over physical domain," or "quasi sovereign rights actually invaded or threatened." !d. at 484-85. Rather, Massachusetts was seeking to invoke the power of the judiciary for nothing more than an "abstract question[] of political power." !d. at 485. Since "[n]o rights of the state falling within the scope of the judicial power" were presented for adjudication, Massachusetts could not invoke the power of the judiciary to pass judgment on the Maternity Act. !d.
Massachusetts also argued that it could bring suit "as the representative of its citizens"-
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in other words, as their parens patriae. Id. Under the facts of the case, the Supreme Court held that Massachusetts could not "institute judicial proceedings to protect citizens of the United States from the operation of [federal statutes]." !d. (emphasis added). Since "the citizens of Massachusetts are also citizens of the United States," it was not part of Massachusetts's "duty or power to enforce their rights in respect of their relations with the federal government." !d. at 485-86. "In that field," the Court declared, "it is the United States, and not the state, which represents them as parens patriae." !d. at 486. In other words, because the United States was the superior parens patriae to Massachusetts, the state could not sue on behalf of its citizens to protect them from the operation of a federal statute.
It was against this backdrop that the Supreme Court in Alfred L. Snapp & Son noted that "[a] State does not have standing as parens patriae to bring an action against the Federal Government." 458 U.S. at 610 n.16 (citing Mellon, 262 U.S. 485-86). That statement, however, is dictum relegated to a closing footnote in the case, unnecessary to the Court's holding that Puerto Rico had parens patriae standing to sue private businesses in Virginia. !d. Furthermore, subsequent development in the case law makes clear that states can sue the federal government on a parens patriae theory, at least in some circumstances.
In Massachusetts v. EPA, the Court specifically rejected the argument that state parens patriae standing is categorically barred in suits against the federal government. Justice John Paul Stevens, writing for the majority, stated that Massachusetts v. Mellon had "disavowed" a "broad reading" of the limits on parens patriae standing because the Court was not "called upon to adjudicate ... quasi-sovereign rights actually invaded or threatened." Massachusetts v. EPA, 549 U.S. at 520 n.17. Bolstering the argument, he added that the Court's holding in Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 447 (1945), recognized a "critical difference between
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allowing a State 'to protect her citizens from the operation of federal statutes' (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do)." Id. Relating those principles to the case at hand, the majority stated that "Massachusetts does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its right under the Act." Id. In a dissent accusing the Court of "devis[ing] a new doctrine of state standing," Chief Justice Roberts wrote that the majority overlooked Supreme Court precedentMassachusetts v. Mellon and Alfred L. Snapp & Son-that "cast significant doubt on a State's standing to assert a quasi-sovereign interest. . . against the Federal Government." Id. Nevertheless, in sum, after Massachusetts v. EPA, parens patriae standing is prohibited where a state seeks to "protect her citizens from the operation of federal statutes," but permitted where a state wishes "to assert its rights under federal law."
Applying that framework to the present lawsuit, Texas is asserting rights under federal law rather than attempting to protect its citizens from the operation of federal statutes. Like Massachusetts "asserting its rights under [the Clean Air] Act," Texas brings this APA action to assert its right to comment on what it alleges to be a legislative rule, its right to challenge agency action it alleges to be outside ofthe DHS's statutory authority, and its right to enforce the INA's protections for American workers. Id. Texas has not submitted "abstract questions of political power" to this Court. Mellon, 262 U.S. at 485. It has demonstrated a concrete injury to its quasisovereign interest in the economic well-being of its citizens, "assur[ing] that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian Col!. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464,472 (1982). Texas has demonstrated a judicially cognizable injury.
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It is also clear the alleged injuries were caused by DACA. Without the lawful presence and work authorizations conferred by the program, DACA recipients would be unable to compete with legally present Texas residents for many jobs in the state. Since the benefits derived from the DACA program allow its recipients to compete with legally present residents, the causation element is satisfied.
The final issue the Court must address is whether there is redressability-"a likelihood that the requested relief will redress the alleged injury."45 Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 103 (1998). The redressability inquiry turns on whether the plaintiff "personally would benefit in a tangible way from the court's intervention." !d. at 103 n.5 (quoting Warth v. Seldin, 422 U.S. 490, 508 (1975)). Since the States' quasi-sovereign interest in the economic well-being of lawful residents is the injury under consideration, the Court considers whether the requested relief is likely to redress that injury.
The States seek an order enjoining the Government from issuing or renewing all future DACA permits, as well as a declaratory judgment that DACA violates the Take Care Clause and the APA. If the Court were to declare that DACA violated law and enjoin or vacate the program, DACA recipients would no longer be entitled to work authorization. Without work authorization, they could not compete with the States' citizens and other legally present residents in the labor market, thereby reducing the labor market distortions about which the States complain.
45 Typically, when a litigant seeks to vindicate a procedural right, "that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." Texas I, 809 F.3d at 150-51 (citing Massachusetts v. EPA, 549 U.S. 497 (2007)). Under most circumstances, a procedural right relaxes standing requirements, but that framework does not apply precisely here. The "injury-causing party," the Government, continues administering the DACA program because they have been ordered to, rather than by their own volition. It therefore seems inaccurate to say that judicial relief will cause the Government to "reconsider" their decision to continue DACA-it has already reconsidered the decision by attempting twice to rescind the program. Since it is in this posture, the Court will analyze redressability under the traditional test.
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Accordingly, the States "personally would benefit in a tangible way from the court's intervention." Steel Co., 523 U.S. at 103 n.5 (quoting Warth, 422 U.S. at 508).
In their motion to dismiss for lack of subject matter jurisdiction, the DefendantIntervenors argue that the States cannot satisfy the redressability requirement. [Doc. No. 118]. They argue that any order by this Court would not be able to redress the States' injuries because the Government is enjoined by other court orders from ending the DACA program and this Court's order could not relieve the Government of its obligation to comply with the other courts' injunctions.
The Court is unpersuaded that other courts' injunctions deprive this Court of jurisdiction for at least four reasons. First, those courts were not asked to determine the lawfulness ofDACA; rather, they were asked to determine the lawfulness of its rescission. Second, as a general matter, redressability does not tum on the likelihood that a defendant will comply with a court's injunction. In fact, courts typically assume as much, and with good reason: were that not the rule, a defendant could thwart a court's jurisdiction simply by announcing the intention to not follow the court's order. Courts properly do not engage in this inquiry and instead determine whether an injunction would redress the plaintiff's injury, assuming the defendant complies with the injunction. Third, the injunctions do not bar this Court from awarding declaratory relief vacating the 2012 DACA memorandum. Finally, the States seek relief from some injuries that are wholly outside the activity enjoined by other courts. The States have asked this Court to enjoin both DACA renewals and new DACA applications. See Pis.' First Am. Compl. [Doc. No. 104, at 73]. As of the date of this opinion, the California, New York, and D.C. courts' injunctions/vacatur only require the Government to process DACA renewals, leaving the Government free to decide whether to accept new DACA applications. Thus, were this Court to enjoin the Government from
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processing new DACA applications, that relief would certainly redress some of the States' injuries, without implicating any of the Defendant-Intervenors' concerns related to conflicting injunctions.
The Defendant-Intervenors argue that any injunction granted by this Court would not "unquestionably" redress the States' harm because the order of"another court would continue to stand between Plaintiffs and their desired outcome." [!d. at 16-17]; [!d. at 17 (quoting Texas I, 86 F. Supp. 3d 591, 624 (S.D. Tex. 2015))]. First of all, that premise is incorrect-nothing prevents this Court from granting a declaratory judgment giving them complete relief. Further, it is not the States' burden to show that this Court's order would "unquestionably" redress the States' harm; rather, the States must only show that the injury is "likely" to be redressed by a favorable decision. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976). A declaratory judgment that DACA was implemented illegally or that it was contrary to law could require the Government to cease the program, the very result the Plaintiff States are seeking. Further, if this Court were to grant an injunction, it could redress all ofTexas's concerns.
Fifth Circuit case law supports this result. In Hanson v. Veterans Administration, the Fifth Circuit found redressability on facts less certain than those in this case. 800 F.2d 1381, 1385-86 (5th Cir. 1986). Hanson concerned the Veterans Administration's ("VA") Home Loan Guaranty Program, which allowed veterans to obtain home loans under favorable terms from private lenders. !d. at 1383. Lenders were incentivized to issue such loans because, among other things, the VA would guarantee up to sixty percent of each loan. !d. Before the VA would guarantee a loan, however, it hired an appraiser to determine the value of the home. !d. The appraisal was to be based in part on the value of recently sold comparable homes, which would then be submitted to a VA review appraiser who could adopt, modify, or reject the appraisal. !d.
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The VA would not guarantee any loan for more than the figure approved by the VA review appraiser. !d.
The plaintiffs in the case were a number of individual veterans seeking home loans under the program. !d. They alleged that the VA appraisers injured their ability to receive a guaranteed loan by discriminatorily adjusting the appraisals of certain properties downwards because they were in a racially mixed neighborhood. !d. at 1384. The Fifth Circuit found that one plaintiff, Professor Otis King, had standing. !d. at 1385. King contracted to buy a house for $46,950, but he was unable to complete the sale because the VA had issued an appraisal for only $40,000, "thereby limiting the amount of the loan they would guarantee." !d. King was unable to personally finance the difference and therefore was unable to purchase the house due to the low appraisal.
The court considered whether enjoining the discriminatory appraisal practices would redress King's injury. !d. The question to be asked, the court explained, is whether "the prospect of obtaining relief from the injury as a result of a favorable ruling is too speculative[.]" !d. (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). Despite the lack of certainty as to whether a discrimination-free appraisal would have allowed King to purchase the house, the Fifth Circuit found that he had shown redressability, as the injunction "might permit [King] to purchase" the house. !d. at 1386. Like in Hanson, an injunction of DACA or a favorable declaratory ruling "might permit" the States to have redress of their injuries. This is particularly true in light of the special solicitude this Court must afford Texas under Massachusetts v. EPA.46
46 As stated earlier, two of the four DACA rescission cases included states as plaintiffs. It is difficult to conceive how states could have standing to challenge the rescission of the DACA program but not have standing to challenge its enactment.
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C. Standing for Healthcare, Education, and Law-Enforcement Costs The States also assert standing on the basis of the costs they incur providing DACA recipients with healthcare, education, and law-enforcement services. The award of lawful presence triggers many state and federal benefits. Additionally, there are other costs implicated by DACA. For example, by its own terms, the DACA memorandum does not require the States to provide educational services, but other aspects of federal law do. The States are required under Plyler v. Doe, 457 U.S. 202 (1982), to educate all children, regardless of their immigration status. Similarly, as a condition to participate in federal Medicare and Medicaid, states must provide emergency services to all individuals, also regardless of immigration status. See 42 U.S.C. § 1395dd; 42 C.P.R. § 440.255. The States argue that DACA increases these costs because it "incentivize[s] aliens-who would otherwise be unlawfully present and unauthorized to work without these programs-to remain in the country, including in the Plaintiff States." [Doc. No. 218, at 42]. In other words, because DACA increases the total number of aliens in the States by disincentivizing those already present from leaving, the States must provide more of these social services, which cost more. The States have demonstrated both aspects of this causal chain: they bear the costs of providing these social services required by federal law, and the DACA program increases the volume of individuals to whom they must provide these services. First, as explained above, federal law requires the States to provide certain social services to individuals regardless of their immigration status. For example, Texas alleges it spent more than $375,000,000 over the past eleven years providing emergency Medicaid services to illegal aliens. Decl. of Monica Smoot [Doc. No. 7, at 28]. While that figure also captures the expenses borne from non-DACA aliens, DACA recipients certainly constitute some of those expenses, too. This is corroborated by the Defendant-Intervenors' expert, who opined that Texas incurs
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more than $250,000,000 in total direct costs from DACA recipients per year. [Doc. No. 219, Ex. 1, at 4].
Second, the DACA program increases the total number of individuals using Texas's social services. DACA relief has been conferred on approximately 115,000 individuals in Texas as of September 2017. [Doc. No. 1, at 82]; [Doc. No. 302, at 93]. Texas argues that some percentage of these recipients would leave the country if DACA ends. The State Demographer of Texas, Lloyd B. Potter, found that some DACA recipients "could be expected to migrate out of the U.S." if they did not have permission to work, and that it was "reasonable to conclude that some DACA participants would return to their country of origin if they lose or are not given permission to work in the U.S." Decl. of Lloyd B. Potter [Doc. No. 7, at 5-7]. This claim is supported by the empirical findings of the Defendant-Intervenors' expert, who conducted a survey of over 3,000 DACA recipients that found over twenty-two percent of survey respondents were either likely or very likely to leave the United States ifDACA ended. [Doc. No. 219, Ex. 2, at 4] (survey of Tom K. Wong). Since enjoining DACA would invalidate DACA recipients' deferred action status and work authorization, this study shows that a quantifiable percentage of individuals would likely leave the United States. Under those circumstances, Texas would no longer be obliged to pay for those DACA recipients' social services costs, thereby reducing some of its financial losses.
Speaking broadly, Defendant-Intervenors have three responses to this argument: first, that there is no evidence of injury to Texas nor evidence that DACA recipients would leave the United States if DACA ended; second, that Texas's purported injuries are not traceable to DACA; and third, that the revenues generated by DACA recipients offset any purported injuries to Texas.
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The Defendant-Intervenors' first argument-that there is no evidence of injury-focuses on the fact that the States rely on cost estimates that the Defendant-Intervenors claim are inaccurate or methodologically flawed. First, for purposes of the Plaintiff States' standing vis-avis their declaratory judgment action, the Court accepts the States' allegations from their pleadings that invalidating DACA would reduce the number of DACA recipients using the States' social services. Cf Venator Grp. Specialty, Inc. v. Matthew/Muniot Family, LLC, 322 F.3d 835, 841 (5th Cir. 2003) (assuming the truth of plaintiffs pleaded allegations to review a motion to dismiss plaintiffs declaratory action for lack of justiciability). Second, even with respect to the preliminary injunction, the Court finds that the States have carried their burden regarding standing. Though the Defendant-Intervenors lodge attacks against the evidence supporting each type of cost-education, healthcare, and law-enforcement services-the Court need not address those arguments line-by-line because the States only must show some injury, as opposed to a "substantial" injury. See OCA-Greater Houston v. Texas, 867 F.3d 604, 612 (5th Cir. 2017) ("To be sure, OCA's injury was not large. But the injury alleged as an Article III injury-in-fact need not be substantial; 'it need not measure more than an "identifiable trifle."' This is because 'the injury in fact requirement under Article III is qualitative, not quantitative, in nature."' (internal citations omitted)).
The Court is satisfied that Texas's evidence demonstrates an injury. Texas has established that it bears hundreds of millions of dollars in costs providing emergency Medicaid services to illegal aliens. As discussed above, Texas's estimates include the costs of providing emergency services to both DACA recipients and those who do not have DACA status. The Defendant-Intervenors argue that these costs cannot constitute any "direct evidence that even a single DACA recipient benefitted from these programs" because the costs are estimated and
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because Texas does not inquire about residency or citizenship when providing these services. [Doc. No. 224, at 27]. For standing purposes, Texas need not plead damages from a particular individual when it pleads and has proof that it is being damaged by the entire program. In the scope of a program the size of DACA, with over 115,000 recipients in Texas alone, it is virtually certain that at least some DACA recipients utilize the emergency Medicaid services Texas is required to provide them. The Court is not deciding a motion on the merits, rather it is only determining standing. Finally, and perhaps most importantly for this topic, DefendantIntervenors' own witness directly connected the dots for the Plaintiff States. See [Doc. No. 219, Ex. 1, at 4] (estimate of M. Ray Perryman that DACA recipients impose over $250,000,000 in costs to Texas annually).
The Defendant-Intervenors' own evidence not only cures any flaws of which they complain, it also supports the Plaintiff States' arguments in other ways as well. They cite a national survey that found approximately fifty-seven percent of DACA recipients have employer-based, private health insurance. [Doc. No. 224, at 28]. Their same expert who discusses that survey also notes that "[w]ithout private health insurance, DACA recipients would become more reliant on emergency Medicaid and community-based uncompensated care." Decl. of Leighton Ku [Doc. No. 225, Ex. 3, at 121] (emphasis added). Provided these are both true, the forty-three percent of DACA recipients who do not have employer-based, private health insurance are likely "more reliant on emergency Medicaid."47 [Id.]; see also Decl. of Leighton Ku [Id. at 124] ("2016 NHIS data indicates that DACA-type adults who are not working have a 19 percent probability of using emergency room care in the last 12 months."); Dep. of M. Ray
47 That is not to say that forty-three percent ofDACA recipients rely on emergency Medicaid services. It is possible that the DACA recipients without employer-based health insurance acquire their own insurance, rely on communitybased uncompensated care, or self-finance their medical expenses. The point is not that every DACA recipient contributes to these costs-it is sufficient that some do. OCA-Greater Houston, 867 F.3d at 612 ("[T]he injury in fact requirement under Article III is qualitative, not quantitative, in nature." (citations omitted)).
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Perryman [Doc. No. 219, Ex. 8, at 15] (Question: "You don't dispute that the State ofTexas does
indeed incur a cost to provide health care to DACA recipients?" Answer: "... I assume there
would be some people in the DACA population who are likely to have some type of care that is
reimbursed in some way by the state."). This is a sufficient showing of injury for purposes of
demonstrating standing at this stage.
The Defendant-Intervenors' second argument, that Texas's purported injuries are not
traceable to DACA, is also unpersuasive. The States argue that DACA disincentivizes self-
deportation, thereby causing the States injury because more people use the States' social
services. The Defendant-Intervenors contest the factual basis of this theory, arguing that DACA
does not encourage DACA recipients to stay in the States. They do so primarily by attacking the
credibility of the States' expert on the subject. Even totally discounting the declaration of the
States' expert, however, the Defendant-Intervenors' own expert sufficiently demonstrates the
causal link between DACA and Texas's injuries; as mentioned above, Dr. Tom K. Wong's
survey found that just over twenty-two percent of DACA recipients were either likely or very likely to leave if the DACA program ended.48 [Doc. No. 219, Ex. 2, at 4]. The Defendant-
Intervenors' response to this finding is to challenge their own expert's survey. They claim that
Dr. Wong's question required DACA recipients to "predict future behavior," that it concerned
48 This evidence is also related to another argument made by the Defendant-Intervenors~that there is no redressability (and thus no standing) when an injury stems from the independent actions of third parties rather than a government policy. See [Doc. No. 224, at 28-29] (citing Texas v. United States, No. B-94-228, at *7 (S.D. Tex. Aug. 7, 1995), for the proposition that "the decision to cross the border without documented status results from the 'conscious actions of aliens,' rather than a policy decision of the U.S. government"). The Court rejects this argument for two reasons. First, this is not a case where causation and redressability depend on the unmediated and untethered wills of DACA recipients. Their decisions are, in fact, both mediated by and tethered to DACA, as many DACA recipients have indicated that their decision to stay or leave the country turns on the continued existence of the DACA program. In that sense, the injury Plaintiff States complain about is caused by the DACA program and would be redressed, at least to some extent, if the program were to end. Second, the dissolution of DACA would void the DACA recipients' deferred action, making them removable. Though not every individual would be removed, some might, which would reduce the social services costs of which the Plaintiff States complain. Particularly under the relaxed causation and redressability standards this Court must afford the Plaintiff States under Massachusetts v. EPA, the Court finds that this argument does not undermine the Plaintiff States' case for standing.
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complex decisions that are "inherently speculative," and that the question order might have "inaccurately bias[ed]" the survey takers, all leading to the conclusion that there are "strong reasons to doubt those answers are predictive" of whether former DACA recipients would leave. [Doc. No. 288, at 16].
These arguments are unavailing at least for standing purposes. People routinely "predict [their] future behavior," even in the face of considerable contingencies. [!d.] Although it is possible that some of the study's participants might change their minds, that does not destroy standing for Texas. Further, if some former recipients were to change their minds, more might decide to leave than to stay. No one can know the answer to this question. What is evident, however, is that it was the Defendant-Intervenors who decided to seek Dr. Wong's expert assistance and submitted his survey for consideration in this lawsuit. Had they taken issue with the survey's methodology or results, they could have expressed those concerns to Dr. Wong or simply not introduced his survey into the preliminary injunction record. Instead, the DefendantIntervenors chose an expert with this opinion, knowing from the beginning of the suit that the States were asserting this basis for standing. See [Doc. No. 5, at 10] ("DACA, Expanded DACA, and DAPA cause those costs because these programs incentivize aliens-who would otherwise be unlawfully present and unauthorized to work without these programs-to remain in the country, including in the Plaintiff States."). While Defendant-Intervenors seem to complain about the evidence which emanates from their own experts, which they are entitled to do, those complaints do not change the facts established by those individuals.49
49 Defendant-Intervenors make three additional arguments attempting to undermine the results of their own expert's survey. They may be dispatched quickly. First, the Defendant-Intervenors argue that even if that entire twenty-two percent-the 683 DACA recipients who reported they would likely or very likely leave if DACA ended-lived in Texas, their impact on Texas's social services costs would be de minimis. [Doc. No. 288, at 16 n.4]. Defendant-Intervenors do not cite a case supporting the proposition that a de minimis injury is not an injury for Article III purposes. In fact, the opposite is true. See
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The Defendant-Intervenors' third argument is that "any purported costs" borne by Texas
as a result of DACA "would be more than offset by the positive impacts DACA recipients have
on the economy." [Doc. No. 224, at 32]. The offsetting-benefit theory to defeat standing was
rejected in Texas !by the Fifth Circuit. See Texas I, 809 F.3d at 155-56 ("'Once injury is shown,
no attempt is made to ask whether the injury is out-weighed by benefits the plaintiff has enjoyed
from the relationship with the defendant.' ... 'Our standing analysis is not an accounting
exercise."' (quoting 13A Charles Alan Wright et al., Federal Practice and Procedure § 3531.4;
NCAA v. Governor of N.J, 730 F.3d 208, 223 (3d Cir. 2013)). Finding no material difference
between the argument there and the one made here, this Court similarly rejects the argument. 50
OCA-Greater Houston, 867 F.3d at 612 ("[T]he injury in fact requirement under Article III is qualitative, not quantitative, in nature." (citations omitted)). Even if a de minimis injury was insufficient for Article III purposes, however, Defendant-Intervenors' criticism misses the point: the States' reliance on the survey is not to show that 683 specific individuals would leave, but rather that some of the people across the entire DACA population (115,000 of which live in Texas) would leave. Second, the Defendant-Intervenors claim that they personally would not leave if DACA ended, which they argue "rebuts Plaintiffs' inferences from the Wong survey." [Doc. No. 288, at 17]. That fact only proves that some DACA recipients would intend to stay. It does not "rebut" the survey result that some would leave, which is the proposition the States seek to establish here. It also assumes that these recipients who are illegal aliens can stay. Third, the Defendant-Intervenors claim that "Texas has not shown that any use of public benefits are traceable to the DACA recipients whom Texas claims would leave the state." [Doc. No. 288, at 15]. In response to a similar traceability argument in the DAPA litigation, the Fifth Circuit invoked Texas's special solicitude under Massachusetts v. EPA. Texas I, 809 F.3d at 159. "For Texas to incur injury, DAPA beneficiaries would have to apply for driver's licenses as a consequence of DHS's action, and it is apparent that many would do so. For Massachusetts's injury to have occurred, individuals would have had to drive less fuel-efficient cars as a result of the EPA's decision, and that would have had to contribute meaningfully to a rise in sea levels, causing the erosion of the state's shoreline." !d. at 159-60. The Fifth Circuit concluded that DAPA would cause financial harm to Texas, which followed a fortiori from the Supreme Court's conclusion that the EPA's decision would cause the erosion of Massachusetts's coast. !d. Since Texas is also entitled to special solicitude here, the same reasoning applies. 50 The Defendant-Intervenors make two additional arguments, related to "generalized injur[ies]" and "generalized grievances," that warrant brief discussion. They first claim that the Supreme Court's decision in Gill v. Whitford, a political gerrymandering case, stands for the proposition that "a plaintiff may seek redress of a particularized harm, but may not cite such narrow interest as grounds to seek redress for a generalized injury." [Doc. No. 224, at 33]. In Gill, the Supreme Court held that individual voters did not have standing to challenge "the statewide harm to their interests in their collective representation in state legislature, and in influencing legislature's overall composition and policymaking." 138 S. Ct. 1916, 1931 (2018) (quotations omitted). Rather, because a person's right to vote is "individual and personal in nature," the Court ruled that the alleged harm-dilution of the power of one's vote-is a "district specific" injury. !d. at 1930. Since those harms were district specific, the plaintiffs could only have standing to seek revision of the boundaries of their own districts. !d. The Plaintiff States allege that DACA injures the economic well-being of its citizens and presents direct, garden-variety financial injuries to the States' treasuries. Defendant-Intervenors do not explain nor cite authority discussing why either of these types of i~ury must be
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The Court finds Texas has standing because DACA causes them to incur greater social services
costs.51 Since one party has standing, the Court may proceed to address the merits.
VI. DACA is Reviewable Under the APA.
In addition to Article III's requirements, the APA imposes several statutory52 standards
that must be met before a federal court can review agency action. First, the States must show
they are "arguably within the zone of interests to be protected or regulated by the statute."
Match-E-Be-Nash-She-Wish Band ofPottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012)
(quoting Ass 'n ofData Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Second,
the DACA memorandum must constitute "final agency action" to be reviewable. See Lujan v.
Nat'! Wildlife Fed'n, 497 U.S. 871, 882 (1990). Third, the Court must determine whether a
statute precludes judicial review. 5 U.S.C. § 701(a)(l). Finally, the Court must determine
whether the DACA memorandum is "agency action ... committed to agency discretion by law."
!d. § 701(a)(2). The first three reviewability requirements are uncontested and discussed briefly
"district specific," as in the instance of one's right to vote. As such, the Court declines the opportunity to extend Gill to this context. The Defendant-Intervenors also argue that the Court should not review DACA because the Plaintiff States' grievances would be better resolved by the political branches of the federal government. [Doc. No. 224, at 39]. The Supreme Court has repeatedly "rejected claims of standing predicated on the right, possessed by every citizen, to require that the Government be administered according to law." Valley Forge, 454 U.S. at 482-83 (citations and quotations omitted). Such claims, the Court recognized, "amount to little more than attempts to employ a federal court as a forum in which to air ... generalized grievances about the conduct of government." !d. at 483 (citations and quotations omitted). Here, the Plaintiff States do not seek to invoke federal court jurisdiction solely to "require that the Government be administered according to law." They assert their own particularized interests in protecting the economic well-being of their lawful residents and protecting their treasuries from excess social services costs. These are not generalized interests in the Government adhering to the rule of law, where "each person has suffered the same, indistinct injury" that cannot support standing. 33 Charles Alan Wright et a!., Federal Practice and Procedure § 8412. Since the Plaintiff States have demonstrated particularized injuries separate from the widely shared interest all citizens have in the Government abiding by our laws, the generalized grievance bar does not prevent the Court from hearing this case. 51 The Court notes that even without a finding of special solicitude under Massachusetts v. EPA, it still would have found the Plaintiff States had standing. 52 The Supreme Court historically considered the zone-of-interests test discussed below to be a prudential standing requirement. See, e.g., Bennett v. Spear, 520 U.S. 154, 162 (1997). Since Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), however, the Supreme Court has begun to interpret the test as a statutory question, rather than one dictated by Article III of the Constitution. See Lexmark, 572 U.S. at 125-28. Under either classification, the result in this case is the same.
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below. The fourth requirement, whether the agency action is committed to agency discretion by law, is contested and is therefore fully addressed.
A. Zone of Interests, Final Agency Action, and Preclusion by Statute To proceed under the APA, a plaintiffs asserted interest must be "arguably within the zone of interests to be protected or regulated by the statute" that allegedly was violated. Texas I, 809 F.3d at 162 (quoting Patchak, 567 U.S. at 224). The test is "not meant to be especially demanding," a point emphasized by the Supreme Court's consistent and conspicuous use of the word "arguably" in it. !d. (quoting Patchak, 567 U.S. at 225). The zone-of-interests test "forecloses suit only when a plaintiffs '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."' Id. (quoting Patchak, 567 U.S. at 225). No party in this case appears to challenge that the States' interests are within the zone of interests of the INA, and in Texas I the Fifth Circuit held as much. Texas I, 809 F.3d at 162-63. The States meet the zone-of-interests test. A challenged action must also be "final agency action" to be reviewable under the APA. See Nat'l Wildlife Fed'n, 497 U.S. at 882 ("When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the 'agency action' in question must be 'final agency action."' (quoting 5 U.S.C. § 704)). Like in Texas I regarding the DAPA memorandum, no party contests that the DACA memorandum is final agency action. See Texas I, 809 F.3d at 163 n.82. This Court finds only one distinction between the DAPA and DACA memoranda on this point. Unlike DAPA, which had not yet taken effect, DACA went into immediate effect in 2012 and has been in operation since that time. Therefore, there is no question that the DACA memorandum constitutes final agency
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action. Further, agency action is not reviewable if there is a statute that precludes judicial review.
5 U.S.C. § 701(a)(l). In Texas I, the Government argued that a section of the INA expressly prohibited judicial review. 809 F.3d at 164. 53 The Fifth Circuit rejected the argument, based on the Supreme Court's decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), which took a narrow view of the statute. That holding is binding on this Court, and no parties argue to the contrary. As such, judicial review is not precluded by statute. See 5 U.S.C. § 701(a)(l).
B. DACA Is Not Action Committed to Agency Discretion by Law. The Defendant-Intervenors argue that the DACA memorandum is an exercise of enforcement discretion that is unreviewable under the APA. [Doc. No. 224, at 41]. While persons adversely affected or aggrieved by final agency action are generally entitled to review of that action,54 the APA excludes certain kinds of agency action from judicial review altogether. The Defendant-Intervenors argue that DACA is unreviewable under the APA because it falls into one of the categories of agency action that is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Section 701(a)(2) "preclude[s] judicial review of certain categories of administrative decisions that courts traditionally have regarded as 'committed to agency discretion.'" Texas I, 809 F.3d at 165 (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). Examples of decisions not
53 The section in question was 8 U.S.C. § 1252(g), which states: Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
54 See 5 U.S.C. §§ 702, 704. 57

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subject to judicial review are "an agency's decision not to institute enforcement proceedings" and agency action where the statute authorizing agency discretion is "drawn in such broad terms that in a given case there is no law to apply." Id. (quoting Lincoln, 508 U.S. at 191; Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990)). The Defendant-Intervenors assert that DACA is an exercise of the Secretary's enforcement discretion with respect to the removal of aliens and that the INA does not "set constraints on DHS's exercise" ofthat discretion. [Doc. No. 224, at 42]. As they recognize, however, the Fifth Circuit in Texas I held DAPA and Expanded DACA to be reviewable. [!d. at 43]. The reasons stated by the Fifth Circuit are equally applicable to DACA.
The Fifth Circuit rejected the argument that DAPA and Expanded DACA's grant of deferred action constituted an unreviewable exercise of prosecutorial discretion. Texas I, 809 F.3d at 166. Though the bare decision not to prosecute may be presumptively unreviewable, the Fifth Circuit found that deferred action under the program was "much more than nonenforcement" because the DAPA program "would affirmatively confer 'lawful presence' and associated benefits on a class of unlawfully present aliens." Id. By removing a categorical bar to the receipt of federal benefits, DAPA made a class of individuals eligible for those benefits, thereby "providing a focus for judicial review." !d. The majority found that this constituted "affirmative agency action" with "meaningful standards against which to judge [DAPA]."!d. at 168-69.
DAPA and Expanded DACA were thus reviewable under Section 701 (a)(2). Id. at 169. The same is true of the original DACA, which provides lawful presence and the exact same benefits. Though the Defendant-Intervenors caution this Court not to extrapolate between DAPA and DACA, they have not suggested any meaningful distinction between the two with respect to
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Section 702(a)(2) reviewability. Like DAPA and Expanded DACA, DACA is not simply nonenforcement; its grant of deferred action confers lawful status and the benefits that flow from it, including work authorization.
The Defendant-Intervenors attempt to distinguish DACA from the Fifth Circuit's analysis of DAPA in two ways. First, they suggest that the analysis should be different because the DACA-eligible population is a smaller proportion of the total undocumented population in the United States compared to the DAPA-eligible population-approximately ten percent versus thirty-eight percent, according to the Defendant-Intervenors. See [Doc. No. 224, at 44] (citing Texas I, 809 F.3d at 147-48). This difference may be relevant for purposes of the Court's consideration of the merits, but it is immaterial to whether this Court may review an APA challenge to DACA. See Texas I, 809 F.3d at 167 ("Regardless of whether the Secretary has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion."). The Defendant-Intervenors' second argument is that the DACA memorandum "did not fundamentally shift the likelihood of DACA-eligible non-citizens remaining in the United States, or create a change of 'economic and political magnitude"' because DACA-eligible individuals have backgrounds that make them unlikely to be prioritized for removal, even without the DACA memorandum. [Doc. No. 224, at 45]. Even assuming the truth of this assertion, it has no bearing on whether there are "meaningful standards against which to judge" DACA. The Expanded DACA and DAPA populations may be different, but, like DACA, both programs would have granted deferred action to confer lawful presence and numerous federal benefits55 to
55 The Defendant-Intervenors also argue that DACA does not confer benefits on DACA recipients. They assert DACA recipients actually receive benefits from regulations independent of the program. DACA, however, grants lawful presence, which is a prerequisite to eligibility for those benefits. The Fifth Circuit made clear that "DAPA need not directly confer public benefits" to be reviewable; instead, "removing a categorical bar on receipt of those
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eligible individuals who would otherwise be ineligible. As such, this Court finds the programs indistinguishable for purposes of determining their reviewability under the APA.
Defendant-Intervenors make one additional argument that is not based on trying to distinguish DACA from DAPA or Expanded DACA. Instead, their argument focuses on subsequent Supreme Court precedent that arguably "clarifie[s] the law in a way that undermines the Fifth Circuit's earlier reasoning." [Doc. No. 224, at 45]. They claim that Trump v. Hawaii, 138 S. Ct. 2392 (2018), stands for the proposition that when "the Executive addresses enforcement discretion with respect to a class, such a decision is unreviewable under the APA." [Id. at 47]. Although both Trump v. Hawaii and this case concern Executive Branch discretion with respect to immigration, differences in the relevant law and facts make Trump v. Hawaii inapplicable to this case.
Trump v. Hawaii considered the interaction between the Establishment Clause and the President's statutory authority to restrict alien entry into the United States. Section 1182(f) of the INA authorizes the President to "suspend the entry of all aliens or any class of aliens" whenever he finds that their entry "would be detrimental to the interests of the United States." 5 U.S.C. § 1182(f); Trump v. Hawaii, 138 S. Ct. at 2407. Pursuant to that authority, the President issued a proclamation deeming it necessary to restrict the entry of nationals from certain countries that either posed a national security risk or did not adequately share information for an informed entry decision. Trump v. Hawaii, 138 S. Ct. at 2403. After finding that the proclamation had been validly issued under the statute, the Court turned to the plaintiffs' claim that the proclamation violated the Establishment Clause because most of the countries subject to entry restrictions had
benefits and thereby making a class of persons newly eligible for them 'provides a focus for judicial review.'" Texas I, 809 F.3d at 167 (quoting Heckler v. Chaney, 470 U.S. 821, 832 (1985)). In this regard, DACA is no different. Furthermore, as discussed later in this opinion, many other courts have noted the benefits that DACA recipients receive. This argument does not preclude the Court's review of the program.
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Muslim-majority populations and because it "singl[ed] out Muslims for disfavored treatment." Jd. at 2417. The Court noted that decisions admitting or excluding foreign nationals were more appropriate for the political branches than the Judiciary, but it recognized that it had previously engaged in "a circumscribed judicial inquiry" of the Executive's decision to exclude foreign nationals when that exclusion allegedly burdened the constitutional rights of a U.S. citizen. !d. at 2418-19; see also Kleindienst v. Mandel, 408 U.S. 753 (1972). Without explaining the precise contours of its inquiry, the Court assumed it could evaluate the proclamation using rational basis review, and it ultimately found that the proclamation passed muster. Trump v. Hawaii, 138 S. Ct. at 2420, 2423.
The Defendant-Intervenors excerpt certain passages from the opinion to support their argument that DACA is not reviewable under the APA. They state the Supreme Court held that "when the Executive exercises [its delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion." [Doc. No. 224, at 46] (quoting Trump v. Hawaii, 138 S. Ct. at 2419). That language, however, addressed a fundamentally different inquiry. The Supreme Court was considering whether it could look past a facially valid proclamation to determine whether the discretionary decision to exclude some classes of aliens was a pretext for constitutional violations. There is no claim in this case that the DACA program should be scrutinized to determine whether executive discretion was used to violate an individual right guaranteed by the Constitution. Trump v. Hawaii only speaks to the circumstances under which a court may look behind the Executive's discretionary exclusion of certain aliens to determine whether the decision was motivated by unconstitutional reasons. On the other hand, reviewability under Section 702(a)(2) turns on whether Congress delegated to an agency the role of policing its own conduct and whether there
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even are standards by which a court can meaningfully review agency action. See Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). Tellingly, Section 702(a)(2) makes no appearance in the Trump v. Hawaii case. These differences lead the Court to conclude that Trump v. Hawaii did not overrule the Fifth Circuit's Section 702(a)(2) analysis. As such, Section 702(a)(2) does not preclude this Court's review ofDACA. 56 VII. Preliminary Injunction
A preliminary injunction is an "extraordinary remedy" that should only be granted if the movant has "clearly carried the burden of persuasion" on all four factors. Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003). The movant, however, "need not prove his case." Lakedreams v. Taylor, 932 F.2d 1103, 1109 (5th Cir. 1991) (citing H & W Indus. v. Formosa Plastics Corp., 860 F.2d 172, 179 (5th Cir. 1988)). Before a court will grant a preliminary injunction, the movants must clearly show "(1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) that their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest." City ofEl Cenizo v. Texas, 890 F.3d 164, 176 (5th Cir. 2018) (quoting Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)); see also Winter v. NRDC, 555 U.S. 7, 20 (2008) ("A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."). "The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on
56 Notably, the D.C. court ruled on the second rescission memorandum after the Supreme Court decided Trump v. Hawaii. Like this Court, the D.C. court did not find that the case affected the reviewability ofDACA.
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the merits." Canal Auth. ofF/a. v. Callaway, 489 F.2d 567,576 (5th Cir. 1974). A. Preliminary Injunction Factor One: Likelihood of Success on the Merits A plaintiff seeking a preliminary injunction must first show a likelihood of succeeding on
the merits of his or her claim. The Fifth Circuit has previously stated "[t]he importance of this requirement varies with the relative balance of threatened hardships facing each of the parties." Callaway, 489 F.2d at 576. While some courts have questioned the continued validity of this "sliding scale" approach in light of the Supreme Court's Winter decision,57 this Court need not resolve that issue here. There is at least agreement among courts that a "plaintiff must present a prima facie case but need not show a certainty of winning." llA Charles Alan Wright et al., Federal Practice and Procedure§ 2948.3.
The Plaintiff States argue that they will prevail on the merits because the DACA policy runs afoul of the Take Care Clause of the Constitution, substantively violates the APA, and the manner in which it was created failed to comply with the APA's notice-and-comment requirements. The Court addresses each argument in tum.
1. The Take Care Clause The Court will not rule on whether the DACA program violates the Constitution's Take Care Clause. U.S. Const. art. II, § 3. The Court declines to address this claim for several reasons. First, there is no need to rule on the Take Care Clause issue because the Court has reached a conclusion on a non-constitutional basis. It is a long-standing precept, steeped in the traditions of federal jurisprudence, that courts should avoid ruling on constitutional issues when a matter can be resolved on non-constitutional grounds. See Escambia Cty. v. McMillan, 466 U.S. 48, 51
57 See, e.g., Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (agreeing with another D.C. Circuit opinion that "the Winter Court seemed to treat the four factors as independent requirements and specifically to reject the Ninth Circuit's statement that a strong likelihood of success on the merits lessens the movant's burden to showing merely a possibility rather than a likelihood of irreparable harm").
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(1984) (per curiam). Second, the Take Care Clause could actually be the basis for arguing that DACA is both
constitutionally permissible and constitutionally impermissible. While it is one of the least understood clauses in the Constitution, and one of the clauses least explored by both commentators and courts,58 the Supreme Court has held that the Take Care Clause is the source of the President's (and the Executive Branch's) power of prosecutorial discretion. See United States v. Armstrong, 504 U.S. 456, 464 (1996); Heckler, 470 U.S. at 832. DACA, at least nominally, was instituted as an exercise of prosecutorial discretion. Conversely, the Supreme Court has also held that the Take Care Clause directly commands the President to respect (and enforce) the law as passed by Congress. See Youngstown Steel & Tube Co. v. Sa1-ryer, 343 U.S. 579 (1952). "[T]he President's power to see that the laws are faithfully executed refutes the idea that he is to be the lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." I d. at 587. In Kendall v. United States ex ref. Stokes, 37 U.S. 524 (1838), the Postmaster General (Kendall) refused to pay a bill Congress had specifically appropriated funds to pay. The Court held that the Postmaster General could be compelled by mandamus to "execute" the law. The Court rejected Kendall's claim that only the President could compel him to act:
This is a doctrine that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of congress, and paralyze the administration ofjustice.
58 See Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 64-68 (1994) ("[A]t the founding the clause received relatively little consideration by practically everyone in the debate. Hamilton devoted only a few lines in the Federalist Papers to discussion of this 'minor' executive power or responsibility.").
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To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible. 59
Moreover, Supreme Court precedent seems to have pitted different interpretations of the
clause against each other.
The second striking element is that the functions that the Court ascribes to the Take Care Clause are often in unacknowledged tension with one another. For instance, deriving a strong prosecutorial discretion from the clause may collide with the scruple against dispensation that the Court also reads into it. Similarly, the Court has said that the Take Care Clause precludes presidential lawmaking while also finding that the clause justifies the exercise of a presidential completion power-an implied presidential authority to prescribe extrastatutory means when necessary to execute a statute. The internal tensions, moreover, often give rise to doctrines that askfor judgments ofdegree-line drawing that does not lend itselfreadily to judicially manageable standards.60
The instant case pits the concept of faithfully enforcing the law against the concept of
prosecutorial discretion. Given that the Court need not rule on the constitutional issues at play to
resolve this case and that the very clause at issue has been read as both an authorization and a
prohibition on executive action, this Court finds that question is best left to the Fifth Circuit or
the Supreme Court.
Even if these two reasons were not sufficient to support a refusal to opine, there is a third
reason for avoiding the constitutional issue raised in this case. The number of cases that interpret
the Take Care Clause are relatively few, and those few cases rarely, if ever, set out discernable
guideposts for use by lower courts. In a non-scientific survey of Supreme Court jurisprudence,
this Court has located fewer than ten cases in which the Take Care Clause is actually discussed by name. 61
59 !d. at 613. 60 Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1838 (2016). 61 A similar search for the text of the clause "take care that the laws be faithfully executed," yielded fewer than sixty cases.
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Nevertheless, even when one uses the entirety of Supreme Court jurisprudence as
guidance, the interpretation of the clause seems somewhat case-specific and fact-driven. In fact,
some commentators have described the Supreme Court's interpretations of the clause as
"(N on)interpretations."
Two things stand out about the Court's reliance on the Take Care Clause to serve so many ends simultaneously. The first is that, in each ofthese contexts, the Court treats the meaning of the clause as obvious when it is anything but that. The Court's decisions rely heavily on the Take Care Clause but almost never interpret it, at least not in any conventional way. The Court does not typically parse the text of the clause or try to situate it in the broader constitutional structure that gives it context. Nor does the Court typically examine the clause's historical provenance (except to invoke an almost equally conclusory set of interpretations by members of the First Congress in the Decision of 1789).
* * *
... the Court has [interpreted the clause] so casually and at a high level of generality, without any attention to detailed interpretive questions about the clause's meaning or history. The Court has also failed to recognize the degree to which its explication of Take Care Clause doctrine in distinct and sometimes conflicting ways requires judgments of degree and line drawing that defy judicially manageable standards.
A. (Non)interpretation ofthe Take Care Clause
The most striking feature of the Court's Take Care Clause jurisprudence is that the Court almost never construes the clause, at least not in any conventional way. It does not look at any of the evidence one would expect an interpreter to consider in determining the clause's relevance to the many uses to which the Court has put it. The Court has never taken more than a glancing look at the text, its common law meaning, the subsequent practical construction ("liquidation" of the clause's meaning), the clause's place in the broader constitutional structure, or the political context from which it emerged.
* * *
Nor has the Court sought to reconcile its various Take Care Clause doctrines with one another or troubled itself about its own capacity to resolve the intractable line-drawing problems that its doctrine has created. Instead, the Take Care Clause has been a placeholder for broad judicial judgments about the appropriate
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relations among the branches in our constitutional system-like the Court's own Key Number for freestanding separation-of-powers principles.62 This Court has no desire to use a discussion of the legality of DACA as a vehicle for creating new, innovative separation-of-powers principles. More importantly, it has no need to do so. Given the fact that federal courts strive to avoid constitutional issues when possible; given the fact that the clause at issue seems to be a vehicle for both bestowing and restricting executive authority; and given the fact that the Supreme Court's analysis seems to be very case-specific and somewhat devoid of useful, uniform guidance, this Court finds caution to be the better part of wisdom and constitutional avoidance to be the best course of action at this preliminary stage. This Court therefore defers judgment on the Take Care Clause until a full hearing on the merits or until the appropriate court on appeal instructs it to decide the issue.
2. Substantive APA Claim The Plaintiff States also argue that "DACA is contrary to law because it is 'not authorized by statute,' and is 'foreclosed by Congress's careful plan."' [Doc. No. 218, at 19] (citing Texas I, 809 F.3d at 184, 186). The APA instructs a reviewing court to "hold unlawful and set aside agency action ... found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2). Here, the Court must consider the legality of the 2012 memorandum that instituted DACA and its relationship to the Immigration and Nationality Act ("INA").
62 Goldsmith & Manning, supra note 60, at 1838, 1853~54, 1867. While the Court does not necessarily adopt the interpretations of Professors Goldsmith and Manning in toto, their article is certainly the best overview to be published in recent years. Another helpful source is Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671 (2014).
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a. DACA Does Not Pass Chevron's First Step As did the Fifth Circuit in Texas I, the Court will assume, arguendo, that the test announced in Chevron USA., Inc. v. NRDC applies in this case. Texas I, 809 F.3d at 178-79 (citing Chevron, 467 U.S. 837, 843 (1984)).63 This test requires a court to defer to an agency's interpretation of its own statute only if the text of the statute is ambiguous and the agency's interpretation is reasonable. Chevron, 467 U.S. at 844; Delek Refining v. Occupational Safety & Health Comm 'n, 845 F.3d 170, 175 (5th Cir. 2016). At Chevron's first step, a court asks "whether Congress has directly spoken to the precise question at issue." 467 U.S. at 842-43; see also Mayo Found. forMed. Educ. & Research v. United States, 562 U.S. 44, 52 (2001). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"; if so, the court owes no deference to the agency. Chevron, 467 U.S. at 844; see also City ofArlington v. FCC, 569 U.S. 290, 306 (2013) ("Where Congress has established a clear line, the agency cannot go beyond it ...."); Lari v. Holder, 697 F.3d at 273, 278 (5th Cir. 2012).
i. The Agency Lacks Statutory Authority to Implement DACA. DACA beneficiaries primarily entered the country either by overstaying a visa or by
63 This Court follows the Fifth Circuit's blueprint as set out in Texas I and concludes it is unnecessary to determine whether Chevron or another standard applies because it has concluded that DACA cannot withstand review even under Chevron. See Texas I, 809 F.3d at 179 n.160. It is therefore unnecessary to employ the test described in Skidmore v. Swift & Co., 323 U.S. 134 (1944) (the amount of deference to an agency interpretation depends on the "thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements") or to consider the factors described in Barnhart v. Walton, 535 U.S. 212 (2002), which sets out how to determine the appropriate standard of review. The fact that the agency reached its judgment through informal means also does not impact the Court's determination. See Texas I, 809 F.3d at 179 n.160 (citing Walton, 535 U.S. at 221 ("Judicial deference is ordinarily given to agencies' interpretations of their own statutes, even if those agencies reach their interpretations through means other than notice-and-comment rulemaking.")).
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entering without inspection,64 and the INA instructs that aliens in both classes are removable. First, recipients who entered legally but overstayed their legal permission to be in the country are deportable under section 1227(a)(l)(C): "Any alien . . . who has failed to maintain the nonimmigrant status in which the alien was admitted . . . is deportable." An alien who is "deportable" under section 1227 is "removable." Id. § 1229a(e)(2).
Second, those who enter the country illegally are also removable. The INA defines "[a]n alien present in the United States who has not been admitted" as an "applicant for admission," 8 U.S.C. § 1225(a)(l), and requires all applicants for admission to "be inspected by immigration officers." Id. § 1225(a)(3). "[I]f the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [of the INA]." Id. § 1225(b)(2)(A). In a section 1229a removal proceeding, the alien has the burden of proof to show that he or she is not removable for one of two reasons: the alien may show that he or she is "clearly and beyond doubt entitled to be admitted and is not inadmissible under section 1182"65 of the INA, or the alien may show "by clear and convincing evidence" that he or she is "lawfully present in the United States pursuant to a prior admission." Id. § 1229a(c)(2)(A)-(B). If the alien cannot carry his or her burden of proof under one of these tests, he or she is deemed "removable." Id. § 1229a(e)(2).
Thus, all DACA recipients fall into a category for removal regardless of their mode of
64 Approximately half of the DACA population is present in the United States because they entered the country without inspection, and half are present because they have overstayed a visa. See Glenn Kessler, Did Obama Allow a 'Back Door' to Citizenship Through DACA?, Wash. Post, Sept. 7, 2017 [Doc. No. 225, Ex. 4] ("Robert Warren, a demographer and senior visiting fellow at the Center for Migration Studies, estimates that about 50 percent of the 1.258 million people eligible for DACA are visa overstays."). 65 Section 1182 describes various classifications of "Inadmissible Aliens" who are "ineligible to receive visas and ineligible to be admitted to the United States." Id. § 1182(a).
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entry. The DACA program prevents immigration officials from enforcing these parts of the INA,

regardless of whether the recipient has not yet entered removal proceedings, is "[currently] in

removal proceedings," or is "subject to a final order of removal." Memorandum from Janet

Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals who Came to the

United States as Children (June 15, 2012) [Doc. No. 5, Ex. 1] ("USCIS should establish a clear

and efficient process for exercising prosecutorial discretion ... in order to prevent low priority

individuals from being placed into removal proceedings or removed from the United States."). In

other words, DACA prevents the removal of its recipients-whom Congress has deemed

removable.

Although no statute specifically grants the Government the authority to institute DACA,

Defendant-Intervenors argue that several general grants of authority give the agency the power to

defer prosecution for its recipients. [Doc. No. 225, at 47] (citing 6 U.S.C. § 202(5)66 and 8

U.S. C.

§

11

03

67 ).

In

Texas

I,

the

Fifth

Circuit

held

that

neither

of these

sections

(nor

any

other

section)68 provided the authority for the DHS to implement DAPA or Expanded DACA because

the agency's interpretation of the statutes was overly broad, and the statutes did not convey the

claimed authority to institute the programs. See Texas I, 809 F.3d at 183-84. The DHS had

argued that those statutes allowed it to enact virtually any kind of deferred action program. The

66 "The Secretary ... shall be responsible for ... [e]stablishing national immigration enforcement policies and priorities."
67 See 8 U.S.C. § 11 03(a)(3) ("[The Secretary] ... shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter."); § 1103(g)(2) ("The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.").
68 The court also ruled that the agency could not rely on 8 U.S.C. § 1324a(h)(3), a "'miscellaneous' definitional provision" for the authority to implement a sweeping change in national immigration policy, and cited the common refrain found in Whitman v. Am. Trucking Ass 'ns: "Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions-it does not, one might say, hide elephants in mouseholes." 531 U.S. 457,468 (2001); see Texas I, 809 F.3d at 183-84.
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court reasoned that if it were to give force to the agency's interpretation of those statutes, it would allow the Secretary to grant lawful presence and work authorization to every illegal alien in the United States. Texas I, 809 F.3d at 184. This possibility was, in fact, highlighted by Chief Justice Roberts in the arguments before the Supreme Court.69 Given the INA's intricate system for allocating immigration status, the Fifth Circuit said that this limitless position was "untenable." Texas I, 809 F.3d at 184. The same problem exists in this case.70
This Court, guided by Fifth Circuit precedent, holds that none of the claimed statutory provisions give the DHS the authority to implement DACA. While the provisions certainly grant some authority to the agency, they do not extend to include the power to institute a program that gives lawful presence, work authorization, and multiple other benefits to 1.5 million people. These laws "cannot reasonably be construed as assigning decisions of vast economic and political significance, such as [DACA], to an agency." Texas I, 809 F.3d at 184.
ii. The INA Provides a Comprehensive Statutory Scheme for the Allocation of Lawful Presence.
As the Fifth Circuit ruled in Texas I, the INA describes several methods-detailed systems, carefully planned and deliberately installed-by which immigrants may acquire lawful presence in the United States. Texas I, 809 F.3d at 179; see also id. ("Federal governance of immigration and alien status is extensive and complex.") (citing Arizona v. United States, 567 U.S. 387, 395 (2012)). The INA specifies several particular groups of aliens for whom lawful presence is available71 and groups of aliens eligible for "discretionary relief allowing [aliens in
69 Transcript of Oral Argument at 19-20, United States v. Texas, 136 S. Ct. 2271 (No. 15-674). 70 See infra Section VII.A.2.a.iv. 71 E.g., 8 U.S.C. §§ 110l(a)(20), 1255 (lawful-permanent-resident ("LPR") status); 110l(a)(l5), 120l(a)(l) (nonimmigrant status); 110l(a)(42), 1157-59, 123l(b)(3) (refugee and asylum status); 1182(d)(5) (humanitarian parole); 1254a (temporary protected status).
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deportation proceedings] to remain in the country."72 Congress has also passed a multitude of statutes allocating lawful presence to persons who have served in the armed forces 73 and persons
seeking or possessing a higher education. 74 The Texas I court recognized that this statutory
scheme did not encompass the groups of persons described by the DAPA and Expanded DACA
programs at issue in that case. See 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."). It also does not encompass the group of persons given lawful status by DACA.
Where Congress has explicitly described a statutory scheme with the detail present in
these instances, an agency may not supplant the scheme with its own methods. See Hearth, Patio
& Barbecue Ass 'n v. US. Dep 't ofEnergy, 706 F.3d 499, 507 (D.C. Cir. 2013) (where Congress
"employed specific statutory mechanisms" to delineate agency authority, the agency cannot
"simply cho[o]se to ignore" the statutory scheme); Cent. United Life Ins. Co. v. Burwell, 827
F.3d 70, 73 (D.C. Cir. 2016) ("Disagreeing with Congress's expressly codified policy choices
isn't a luxury administrative agencies enjoy."). In this instance, Congress's careful plan for the
allotment of lawful presence forecloses the possibility that the agency may designate a group of
72 Arizona, 567 U.S. at 396 (citing 8 U.S.C. §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure)); see also 8 U.S.C. § 1227(d) (administrative stays of removal forT-and U-visa applicants (victims of human trafficking, or of various serious crimes, who assist law enforcement)). 73 E.g., 8 U.S.C. §§ 1438(a) (persons who lost United States citizenship because they served in the armed forces of a United States ally during World War II); 1439 (noncitizens who have served honorably in the United States armed forces for at least one year); 1440 (noncitizens who served in the United States armed forces during World War I, World War II, Korean hostilities, Vietnam hostilities, or other periods of military hostilities); 1440-1 (posthumous conferral of United Sates citizenship to noncitizens who died as a result of injuries incurred while serving in periods of hostilities). 74 E.g., 8 U.S.C. §§ 110l(a)(15)(F) (the "F-1" visa for full-time students) (the "F-2 visa" for dependents of full-time students) (the "F-3" visa for students from Canada and Mexico who commute across the border); 110l(a)(l5)(H) (the "H-lB" visa for skilled workers) (the "H-4" visa for dependents of "H-lB" visa holders); 110l(a)(l5)(J) (the "J-1" visa for students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in a field of specialized knowledge or skill participating in cultural exchange); I 101(a)(15)(L) (the "L-lA'' visa for foreign employees of a corporation, executives or managers) (the "L-IB" visa for foreign employees of a corporation with specialized knowledge of the company's techniques or methodologies); 110l(a)(l5)(M) (the "M-1" visa for vocational or technical students) (the "M-2 visa" for dependents of vocational or technical students).
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814,000 persons who have already enrolled in DACA to be lawfully present, in addition to another group of approximately the same size who either have not yet applied or who will soon become eligible. While Congress has allowed the Executive Branch to create regulations and to selectively grant deferred action in some specific instances,75 nothing in this scheme of laws can be read to encompass an undertaking as broad as what has been attempted by the agency here.76 The specificity of these statutes demonstrates that Congress has reserved for itself the authority to determine the nation's immigration laws.
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. Texas I, 809 F.3d at 179. Finally, it should be noted that the Fifth Circuit's judgment in Texas I not only covered DAPA but also Expanded DACA, and it found no legal reason to distinguish between the two.
iii. The INA Provides a Comprehensive Statutory Scheme for the Allocation of Work Authorization.
In addition to its allocation of lawful presence, the INA also describes specific groups of aliens for whom Congress intended work authorization to be available. See Texas I, 809 F.3d at 180-81 ("The INA also specifies classes of aliens eligible and ineligible for work authorization, including those eligible for work authorization and deferred action-with no mention of the class of persons whom DAPA would make eligible for work authorization." (quotations omitted)).
75 See, e.g., Reno v. AAADC, 525 U.S. 471,483-84 (1999) ("At each stage [of the removal process] the Executive has discretion to abandon the endeavor, [including by] engaging in a regular practice (which had come to be known as 'deferred action') of exercising that discretion for humanitarian reasons or simply for its own convenience."). 76 Equally compelling is the number of times Congress has rejected legislation that would accomplish what DACA purports to, namely the DREAM Acts that have been repeatedly considered and rejected. See infra section iv. It is evident that Congress has spoken both affirmatively and negatively in this area by what it has passed and what it has not passed.
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These statutory provisions also make no mention of the group of aliens described by DACA. The INA's statutory scheme intricately and particularly describes groups to whom
Congress wished to grant work authorization, delineating precise categories of aliens for whom work authorization is, may be, or is not available. Where Congress has expressed its intent to provide certain groups of aliens with work authorization, it has promulgated specific laws requiring the DHS to do so. 77 These categories do not include the aliens encompassed by the DACA memorandum. Further, Congress has specified particular instances where the DHS "may" issue work authorization, specifically delegating to the agency areas in which it may exercise discretion. 78 These parts of Congress's statutory scheme also do not include the DACA recipients.
As noted in Texas I, Congress has in other places specified groups of aliens to be ineligible for work authorization. E.g., 8 U.S.C. §§ 1226(a)(3) (limits work authorizations for aliens with pending removal proceedings to those who are lawfully admitted for permanent residency or otherwise authorized). DACA specifically applies to individuals in removal proceedings and contradicts Congress's intent, as it enables those aliens to apply for work authorizations.
The Supreme Court has "often recognized that a pnmary purpose m restricting immigration is to preserve jobs for American workers." INS v. Nat 'l Ctr. for Immigrants' Rights, 502 U.S. 183, 194 (1991) (citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 889 (1984)). This is one
77 E.g., 8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-temporary-resident status pursuant to aT-visa), 1158(c)(l)(B), (d)(2) (asylum applicants and grantees), 1160(a)(4) (certain agricultural workers in lawful-temporary resident status), 1184(c)(2)(E), (e)(6) (spouses of L- and E-visa holders), (p)(3)(B) (certain victims of criminal activity in lawful-temporary-resident status pursuant to a U-visa), 1254a(a)(l)(B) (temporary-protected status holders), 1255a(b)(3)(B) (temporary-resident status holders). 78 E.g., 8 U.S.C. §§ 1158(d) (asylum applicants); 1105a(a) (certain battered spouses of nonimmigrants); 1154(a)(l)(K) (grantees of self-petitions under the Violence Against Women Act); 1160(d)(3)(A) (agricultural worker preliminary applicants); 1184(p)(6) (deferred-action U-visa applicants).
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of the exact claims made in this lawsuit by the Plaintiff States. In 1986, Congress enacted the Immigration Reform and Control Act ("IRCA"), which provides "a comprehensive framework for combating the employment of illegal aliens" and "'forcefully' made combating the employment of illegal aliens central to '[t]he policy of immigration law.'" Arizona, 567 U.S. at 404 (citation omitted); Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (citing INS, 502 U.S. at 194). Through criminal and civil penalties for employers and civil penalties for employees, the IRCA made it "illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers." See Arizona, 567 U.S. at 404-05 (citing 8 U.S.C. § 1324a). Thus, it is illegal for anyone to hire DACA recipients, but for DACA. DACA specifically avoids this ban and adds up to 1.5 million individuals to the workforce. Congress's careful delineation in the realm of work authorization represents a specified intent to closely guard jobs for American workers.
DACA undermines this intent. The program goes so far as to require applicants to apply for work authorization. See USCIS, DACA Toolkit: Resources for Community Partners 4 [Doc. No. 5, Ex. 20, at 23] ("In addition to the [DACA renewal and application form], all individuals must also submit a Form I-795, Application for Employment Authorization ...."). Permitting the agency 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. The DACA program is therefore contrary to the statute and to Congress's goal of "closely guarding access to work authorization and preserving jobs for those lawfully in the country." Texas I, 809 F.3d at 181.79
79 Defendant-Intervenors also argue it is not the 2012 DACA memorandum, but a separate federal regulation that permits DACA recipients to obtain work authorization. See 8 C.F.R. § 274a.l2(c)(14) ("An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, [may be able to obtain work authorization upon application] if the alien establishes an economic necessity
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iv. For Some, DACA Defies the Statutory Scheme by Awarding Advance Parole and a Clearer Path to Legal Status, Contrary to 8 U.S.C. § 1182(a)(6)(A)(i) and 1182(a)(9)(B).
The Plaintiff States also complain that DACA contradicts the statutory scheme by
allowing recipients access to "advance parole." Advance parole is a program that allows aliens to
leave the United States and then to lawfully re-enter the country without being turned away at a
port of entry. Dep't of Homeland Sec., DACA Nat'! Standard Operating Procedures (SOP) 135
(2013) [Doc. No. 224, Ex. 153] (citing§ 1182(d)(5)(A)). It is designed to be awarded only "on a
case-by-case basis for urgent humanitarian reasons or significant public benefit." 8 U.S.C.
§ 1182(d)(5)(A). DACA, however, makes the entire DACA population eligible to apply for
advance parole, and expands these two enumerated categories beyond recognition. Specifically,
the DACA program allows its recipients to travel outside the United States for a host of reasons, including work-related conferences, semester-abroad programs, and job interviews.80
In addition to the incredible way that the DHS interprets the phrases "urgent humanitarian reasons" and "significant public benefit" for DACA recipients, 81 allocating
advance parole to some recipients subverts statutory law in two ways: 1) it lets certain
individuals adjust illegal status to lawful presence and then possibly to legal status by curing the
inadmissibility bar, and 2) it lets recipients avoid the statutory "unlawful presence bars." See
Lena Graber & Jose Magana-Salgado, DACA, Advance Parole, and Family Petitions 5, 8 (2016)
for employment."). This argument was specifically dispatched by the Fifth Circuit in Texas I, 809 F.3d at 168-69. There, the court said that such a reading of the regulation-to allow the agency to issue employment authorization to any class of illegal aliens whom the DHS declines to remove-would be outside the powers authorized by the INA. !d. 80 See Dep't of Homeland Sec., DACA Nat'! Standard Operating Procedures (SOP) 139-42 (2013) [Doc. No. 224, Ex. 153] ("Generally, US CIS will only grant advance parole if the applicant's travel abroad will be in furtherance of: humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative; educational purposes, such as semester-abroad programs and academic research, or; employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas. Travel for vacation is not a valid basis for advance parole."). 81 It is hard to fathom why a semester in Paris, a conference, or a meeting with a client equates to either an urgent humanitarian reason or a significant public benefit.
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[Doc. No. 219, Ex. 23]. 82 First, DACA recipients' entitlement to apply for advance parole contradicts the statutory
scheme by curing the bar for unlawful entry. See id. at 8. Ordinarily, an alien present in the United States may apply for an adjustment of status to change his or her legal immigration classification to that of an LPR (this is also known as receiving a "Green Card"). See MaganaSalgado, supra, at 7. There are several ways to do this, including an employment qualification or a specified family relationship (like marriage to a United States citizen), but applicants will be deemed inadmissible-that is, they will be unable to adjust their status-if they are present "without being admitted or paroled into the United States." !d. (citing 8 U.S.C. § 1182(a)(6)(A)(i)); 8 U.S.C. § 1255). Generally, immigrants who first entered the United States without inspection are ineligible to adjust their status because they were not "admitted" legally when they first entered the country. !d. Approximately one half of the DACA population is in this category. See Kessler, supra note 64 (stating half of DACA recipients overstayed a visa and half entered the country illegally).
DACA, however, allows this latter segment to circumvent the requirement that aliens be "admitted or paroled into the United States" by allowing its recipients who entered the country illegally to be eligible for advance parole. See Magana-Salgado, supra, at 7; Dep't of Homeland Sec., DACA Nat'/ Standard Operating Procedures (SOP) 139--42 (2013) [Doc. No. 224, Ex. 153] (describing procedures for processing advance parole applications for DACA recipients). Once a DACA recipient leaves the country and returns to the United States through advance parole, that individual, who was an illegal alien subject to the inadmissibility bar because he or she originally entered the country illegally, is no longer barred by the requirement that aliens be
82 This ten-page document, a veritable roadmap to DACA recipients' avoidance of statutory requirements, was coauthored by one of the Defendant-Intervenors in this case.
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"admitted or paroled into the United States" to adjust status because he or she now has been
paroled legally back into the United States. See Magana-Salgado, supra, at 8-9; see also A.
Molina, Immigration: Undocumented College Students Find a Way to Study Abroad, Return
Legally, Press-Enterprise, Riverside California (Feb. 14, 2016). He or she may then apply for
adjustment of status. Thus, DACA's grant of advance parole eligibility allows its recipients to circumvent the INA's statutory requirement. 83
Through 2015, over 20,000 DACA recipients had been approved for advance parole, and of those, approximately 3,000 were subsequently granted an adjustment of status.84 Although this
number may seem small compared to the total DACA population of 1.5 million people, it is not
insignificant. Despite the fact that the instituting memorandum claims that it "confers no
substantive right, immigration status or pathway to citizenship," the DACA program does, in
fact, enable certain individuals to change their inadmissible status (due to unlawful entry) into an
admitted/paroled category and in some cases provides a clearer pathway to citizenship. [Doc. No. 5, at 3; Napolitano Memo, Doc. No. 6, Ex. 1].85 It directly undermines the intent and deterrent
effect intended by Congress, and contradicts the express wording of the DACA program's
instituting memorandum.
83 This "loophole'" is not needed by those DACA recipients who overstayed their visas, as they were "admitted'" when they first entered the country. Also, all legal permanent resident applicants must still meet other requirements, such as having a family relationship. Nevertheless, for a number of DACA recipients, the program's grant of eligibility for advance parole allows many DACA recipients to adjust status where they otherwise would be barred by law. 84 According to a June 29, 2016letter from USCIS Director Leon Rodriguez to Senator Charles Grassley, the agency had granted advance parole to 22,340 DACA recipients through December 31, 2015. Of those, 2,994 had been approved for adjustment of status. [Doc. No. 224, Ex. 2]. That letter did not specify how many applications for adjustments through advance parole are pending. 85 See also Ben Harrington, Cong. Res. Serv., An Overview of Discretionary Reprieves from Removal: Deferred Action, DACA, TPS, and Others (2018) [Doc. No. 289, Ex. 299, at 17-18] ("Advance parole, another exercise of the executive parole authority directed toward physically present aliens, allows aliens to depart the United States with parole already approved, so as to facilitate their re-entry. Upon being paroled back into the country, such aliens receive the same advantages as recipients of parole in place and other parolees (e.g., eligibility for work authorization and a clearer path to adjustment of status.'")).
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Second, advance parole for DACA recipients subverts the ''unlawful presence bars" instituted by statute. See 8 U.S.C. § 1182(a)(9)(B)(i). Under these provisions, an alien who entered the United States illegally or remained in the United States longer than allowed is inadmissible to return to the United States upon leaving. !d. Individuals who have left the country after having been illegally present for more than 180 days must remain out of the United States for three years, and those illegally present for more than a year must remain out for ten years before they may again become admissible to the United States. !d. By definition, the tenyear bar would apply to most DACA recipients. DACA's grant of advance parole eligibility, however, allows DACA recipients to travel abroad and then return to the United States without complying with either the three- or ten-year bar. Through DACA, these recipients effectively avoid the dictates of Congress while thousands of other individuals who have complied with the law are waiting for their bar period to run. This, too, is contrary to the statutory scheme devised by Congress.
In sum, DACA cannot withstand analysis under Chevron because Congress has directly addressed many of the relevant issues. See Chevron, 467 U.S. at 842--43; see also Texas I, 809 F.3d at 179 (ruling that Congress has directly addressed the issues of lawful presence and work authorization). Congress's clear articulation of laws for the allocation of lawful presence and work authorization illustrates a manifest intent to reserve for itself the authority to determine the framework of the nation's immigration system. Against the backdrop of Congress's "careful plan," the agency may not award lawful presence and work authorization to well over a million aliens for whom Congress has made no provision. Texas I, 809 F.3d at 186. DACA is "in excess of statutory jurisdiction" and "short of statutory right," and therefore violates the APA. 5 U.S.C. § 706(2).
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Although the Court recognizes that the Government has long been allowed to grant deferred action on a case-by-case basis, this fact alone does not make DACA lawful. See Reno, 525 U.S. at 483-84 (endorsing deferred action on an ad hoc basis). Under the interpretation of those who instituted DACA, the entire illegal population could receive deferred action. During the Supreme Court's oral argument in Texas I, Chief Justice Roberts questioned the Government
on precisely this point: Chief Justice Roberts: Under your argument, could the President grant deferred removal to every unlawful - unlawfully present alien in the United States right now? General Verrilli: Definitely not. Chief Justice Roberts: Why not? General Verrilli: Here are the limits. Because the deferred action has - over time, there have been built up a set of administrative limits, which I'll talk about, some administrative policy limits, and then there's substantive statutory limits. The administrative policy limits are these: Deferred action has always been for the lowest priorities for removal. And everybody agreesChief Justice Roberts: I'm sorry. By "administrative," you mean by the Executive branch? General Verrilli: Correct. Yes. But Chief Justice Roberts: So that somehow binds the Executive branch now, the fact that - I mean, this hasn't been approved by the Executive branch prior to this point, either, and yet it's a fairly significant departure. 86
In Texas I, counsel for the Government could not answer the Chief Justice's question directly. It was not an inconsequential question because this Court and the Fifth Circuit had asked it as well, but as one can see, the Solicitor General's response to Chief Justice Roberts was, in effect, "the Executive Branch just would never do that." This response was less than reassuring, since at the same time it was the Executive Branch that was attempting to give lawful presence to a
86 Transcript of Oral Argument at 19-20, Texas I, 136 S. Ct. 2271 (No. 15-674). 80

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combined DACA, Expanded DACA, and DAPA population of approximately 5.8 million individuals, over half of the country's 11.3 million estimated illegal aliens. Utilizing the Defendant-Intervenors' position in this case, the Executive Branch could still give every illegal alien currently present in the United States lawful status, if only the DHS were to do it in smaller numbers, group-by-group. This cannot be a correct interpretation of the law. The DACA program, like DAPA, which attempts to give lawful presence and a wide variety of benefits to upwards of a million individuals, is far from any program conducted in the past.
More importantly, unlike the DAPA situation, Congress has directly addressed DACA or a DACA-like population, so one need not guess its position. Both houses of Congress have, time after time, considered and rejected bills that would afford lawful immigration status to the same or a similar group of individuals contemplated by DACA.87 These proposals, while not necessarily covering identical populations or attempting to achieve the exact same goals, are often labelled in the popular press as "DREAM Acts." Over a period of more than a decade, they have been filed, considered, and have at times even been put to vote (both before and after the implementation of DACA).88 As recently as June of this year, the House of Representatives rejected a bill by an almost 3-to-1 margin that would have legalized the DACA recipients.89 Congress's consistent rejection of these bills cannot be read as a tacit approval ofDACA. To the contrary, its underlying concept has been rejected time and again.
87 See, e.g., DREAM Act of2003, S. 1545, 108th Cong. (2003); DREAM Act of2005, S. 2075, 109th Cong. (2005); DREAM Act of2007, S. 2205, llOth Cong. (2007); DREAM Act of2009 S. 729, I 11th Cong. (2009); American Dream Act, H.R. 1751, lllth Cong. (2009); DREAM Act of2011 S. 952, I 12th Cong. (2011); Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013); BRIDGE Act, S. 3542, 114th Cong. (2016); BRIDGE Act, H.R. 496, 115th Cong. (2017). 88 The following bills were actually put to vote: DREAM Act of 2007, S. 2205, 11 Oth Cong. (2007) (failed cloture in Senate, 52-44); Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. (2013) (passed Senate 68-32, no House vote); Border Security and Immigration Reform Act of 2018, H.R. 6136, 115th Cong. (2018) (failed House, 121-301). 89 Border Security and Immigration Reform Act of2018, H.R. 6136, 115th Cong. (2018).
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However attractive it might be as a matter of policy, the DACA program appears to violate the proper respect for congressional primacy in lawmaking that should guide executive action, even when substantial exercises of prosecutorial discretion are inevitable. To the extent Congress has adopted overly broad and unduly harsh immigration laws, Congress should remain accountable for its choice. The executive branch [or in this case the judicial branch] should not presume the authority to let Congress offthe hook.
See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 761
(2014). 90
b. Even if DACA Did Pass Chevron's First Step, It Would Not Pass the Second.
This Court's ruling at the first step of Chevron alone provides a sufficient ground to settle
the question presented, and it would ordinarily be unnecessary for the Court to conduct a further
analysis. Nevertheless, if the Court were to analyze the DACA program under the second step of
Chevron, the Court would hold that the agency's interpretation fails that test as wel1.91
At the second Chevron step, a court asks "whether the agency's answer is based on a
permissible construction of the statute." Chevron, 467 U.S. at 843. The court should uphold an
agency's rule if it is "a 'reasonable interpretation' of the enacted text," but should overturn it if it
is "arbitrary or capricious in substance, or manifestly contrary to the statute." Mayo Found., 562
U.S. at 58; id. at 53. Stated differently, the Court must ask "whether Congress would have
intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the
90 This Court recognizes that many of America's states, municipalities, cities, civic groups, and individuals are very sympathetic to and very supportive of the DACA recipients. Many of these groups have provided this Court with amicus curiae briefs which, in addition to being helpful, are demonstrative displays of support. Indeed, this Court is likewise enamored with the thought of young people overcoming many hardships and hurdles and becoming productive members, if not leaders, of our communities. The Judiciary, however, is not the branch of government that can make decisions based upon the popularity of an idea or because many are sympathetic toward or biased against a particular group or program. Congress is the branch of government that weighs competing public sentiments when it enacts or refuses to enact legislation. Pointedly, if the Congressmen and women of New Jersey and of the states that have appeared as friends of this Court had voted for the dreamer population in this latest bill, it would have passed the House by a two-to-one margin. Instead, a majority of each delegation voted against it. 91 See Texas I, 809 F.3d at 183, n.l91 ("Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two.") (citing Chevron, 467 U.S. at 844; Mayo Found., 562 U.S. at 53).
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agency of 'gap-filling' authority." !d. at 58. (quoting Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173 (2007)).
Assuming, arguendo, the Court were to apply this test, it still would not defer to the agency's interpretation. DACA is "manifestly contrary" to the statutory scheme promulgated by Congress. Texas I, 809 F.3d at 186. For the same reasons discussed in this Court's analysis under the first step, the program would not pass the second step: DACA usurps the power of Congress to dictate a national scheme of immigration laws, and it is therefore contrary to the INA and umeasonable. !d.
As the Fifth Circuit explained in Texas I, Congress has clearly implemented a detailed statutory scheme for the adjudication of immigration laws, and the scheme has no room for the program the DHS has instituted. 809 F.3d at 181. DACA would grant lawful presence and work authorization to a million people or more for whom Congress has made no provision and has refused to make such a provision time and time again. See id. ("[H]ad Congress wished to assign [a decision of such 'deep economic and political significance'] to an agency, it surely would have done so expressly." (citing King v. Burwell, 135 S. Ct. 2480, 2489 (2015)). The Court "must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." !d. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). Common sense instructs that the creation of this program, as was true for the establishment of DAPA and Expanded DACA, is too important to be delegated to an administrative agency. In the end, the Fifth Circuit's decision in Texas I controls this case; it is binding case law for this Court, and the result here is inescapable. 92
92 The Court has concentrated its Chevron analysis on the facts that surrounded DACA's origination. The current DHS view, as expressed by Secretary Nielsen, is:
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c. The Differences Between DAPA and DACA Do Not Compel a Different Result.
Defendant-Intervenors argue the Fifth Circuit's ruling in Texas I is not applicable here
because "DACA and DAPA are not identical." [Doc. No. 215, at 27] (citing Texas I, 809 F.3d at
173). They point to two salient differences: 1) there is arguably no analogous statutory provision
that DACA would displace; and 2) DACA affects fewer people than DAPA.
To distinguish DACA from DAPA and Expanded DACA, Defendant-Intervenors first
point to a passage in the Texas I opinion citing a specific collection of INA provisions that
provides "an intricate process for illegal aliens to derive a lawful immigration classification from
their children's immigration status." !d. at 179-80 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i),
1182(a)(9)(B)(i)(ll), 1201(a), 1255). The Texas I court held that DAPA was unlawful in part
because permitting DAPA would nullify the particular group of provisions and displace it with a
new method for alien parents to acquire citizenship through their children. The Defendant-
Intervenors argue that because no analogous set of provisions exists for DACA, the Fifth
[R]egardless of whether these concerns about the DACA policy render it illegal or legally questionable, there are sound reasons of enforcement policy to rescind the DACA policy. To start, DHS should enforce the policies reflected in the laws adopted by Congress and should not adopt public policies of non-enforcement of those laws for broad classes and categories of aliens under the guise of prosecutorial discretion-particularly a class that Congress has repeatedly considered but declined to protect. Even if a policy such as DACA could be implemented lawfully through the exercise of prosecutorial discretion, it would necessarily lack the permanence and detail of statutory law. DACA recipients continue to be illegally present, unless and until Congress gives them permanent status.
* * *
Moreover, considering the fact that tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years and then have been released into the country owing to loopholes in our laws-and that pattern continues to occur at unacceptably high levels to the detriment of the immigration system-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 against all classes and categories of aliens. [Doc. No. 100, Ex. A]. Consequently, if this Court gave Chevron deference to the current agency position, the ultimate result would be the same.
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Circuit's ruling does not apply. This Court cannot agree. First, the Fifth Circuit's ruling in Texas I did not rely
exclusively on the existence of the provisions allowing illegal aliens to derive a lawful immigration classification from their children's immigration status. The court, in fact, relied at least as much on DAPA's incompatibility with the INA's provisions for lawful presence and work authorization, as discussed above. Moreover, the Fifth Circuit's ruling in Texas I clearly was not predicated solely on the existence of those provisions, as evidenced by the court's holding that Expanded DACA was also unlawful. That program had no overlap with the cited provisions, and the court obviously did not rely on their existence in ruling against it.
Second, analogous provisions do exist regulating the lawful admission of children, as well as for students and veterans. Congress has passed many acts relating to the immigration of children, and at least two of them provide methods for attaining status that significantly overlap with the DACA age group: derivative citizenship and naturalization upon application. Congress has allocated a method for children to derive citizenship from a parent, whereby a child born outside of the United States may become a citizen if the child: 1) has an American citizen parent; 2) is under 18 years of age; 3) lives in the legal and physical custody of the American citizen parent; and 4) is a lawful permanent resident. 8 U.S.C. § 1431. Another provision provides for the naturalization of a child born outside the United States upon application of the parent, if the child: 1) has a U.S. citizen parent; 2) has a parent who has been physically present in the United States for at least five years, two after the age of fourteen; 3) is under eighteen years of age; 4) is residing outside of the United States in the legal and physical custody of the applicant; and 5) is temporarily present in the United States pursuant to a lawful admission. 8 U.S.C. § 1433. This Court earlier discussed the statutes that Congress has passed concerning students and veterans.
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Suffice it to say DACA allows certain recipients to acquire lawful presence without complying with any of Congress's requirements. This is especially troubling when one considers that Congress has consistently rejected any legislative effort to give the DACA recipients legal status.
Defendant-Intervenors also argue that DACA is different from DAPA because it affects fewer people. [Doc. No. 215, at 19]. This contention, based solely on a numerical difference, is factually accurate, but provides no legal distinction. The 1.5 million people DACA would permit to receive lawful presence and work authorization are still too numerous to fit into the individualized notion of deferred action that courts have found permissible in other contexts. Over a million individuals is still an outsized number, and it remains outside the authority of the agency to defer action for this many people. As were DAPA and Expanded DACA, DACA is "foreclosed by Congress's careful plan." !d. at 186.
The fact that DAPA was three times the size of DACA is of no legal significance. One of Defendant-Intervenors' experts is an immigration law professor and was Chief Counsel to the United States Customs and Immigration Service from 2011 to 2013, during which time DACA was instituted. He finds only two differences between DACA and DAPA: 1) the size; and 2) DACA is an active program at the time of litigation, whereas DAPA had yet to be instituted when it was challenged. He testified as follows:
Q: Okay. I forgot to ask you one additional question. So earlier we had talked about the differences between DACA and DAPA; right? And you can think of two right now. One is the size of the population, which you said doesn't affect the merits of whether DACA and DAPA are legally the same thing; correct?
A: In my opinion, it should not have that effect. Q: Okay. And then the second thing you mentioned was the ongoing nature
of the DACA program as opposed to the soon-to-be implemented nature ofthe DAPA program; correct?
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A: Correct. Q: But, again, in your opinion, going to the underlying merits of whether
these two programs are legal, that shouldn't make a difference; correct? A: Correct. Dep. of Stephen Legomsky [Doc. No. 284, Ex. 67, at 99:14--100:6.]. Consequently, even one of the Defendant-Intervenors' own experts--one who was involved in immigration policy at the time of the implementation of the DACA program-finds that the difference in the possible number of participants between it (1.5 million) and Expanded DACA-DAPA (4.3 million) is of no legal significance. The most troubling aspect of the position of the Defendant-Intervenors is that, using their logic, the DHS could just grant deferred action to smaller groups of 750,000 to 1.5 million (DACA size) more frequently and still give the entire illegal population lawful presence. There may be one other significant difference between DAPA and DACA, but it too has no effect on legality. Many of the amici argue that DACA has garnered much national media attention and clearly invokes the sympathetic nature of the nation's populace. DACA affects a younger population. Many came to this country unlawfully or stayed in this country without permission through no fault of their own. Further, the DACA population is generally better educated and, according to many of the amicus briefs, better situated to contribute to the wellbeing of this nation than other immigrant populations. For many, these factors make the DACA population a much more appealing group. Although the group of DACA recipients may be smaller, more deserving of sympathy, and perhaps even more worthy than those who would have been covered by DAPA, those facts do not alter the legal reasoning underpinning this Court's conclusion. The result here is compelled by law. "The law's function is understood to be to
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neutralize the emotionality that legal disputes arouse in the participants and lay observers."93 As much as this Court might agree with these arguments, and as popular as this program
might be, the proper origination point for the DACA program is Congress.94 d. This Exercise of Deferred Action Is Not Supported by Historical Precedent.
Defendant-Intervenors also argue historical precedent provides a source of authority for the institution of DACA. They cite past examples in which the Executive has deferred prosecution for particular groups of aliens95 and argue that those instances provide precedent for the program at issue here.
In distinguishing previous deferred action programs from DAPA, the Fifth Circuit rejected precisely this argument: those programs, unlike DAPA, were "[mostly] done on a country-specific basis, usually in response to war, civil unrest, or natural disasters," or "were bridges from one legal status to another." Texas I, 809 F.3d at 184. The same shortfalls present in Texas I are also present here, and DACA fares no better.
DACA, although closer in size, is no more analogous than DAPA to the cited historical programs. The DACA program is by no means a "bridge" to anywhere; in fact, the very
93 Richard A. Posner, Frontiers ofLegal Theory 226 (2001). 94 See Transcript of Oral Argument at 24, United States v. Texas, 136 S. Ct. 2271 (No. 15-674) (Justice Anthony Kennedy: "[T]he briefs go on for pages to the effect that the President has admitted a certain number of people and
then Congress approves it. That seems to me to have it backwards. It's as if that the President is setting the policy
and the Congress is executing it. That's just upside down.") (emphasis added). 95 See [Doc. No. 225, at 2 n.l ("250,000 Cuban nationals in 1977; 80,000 Chinese nationals in 1989; 190,000 Salvadoran nationals in 1992; 40,000 Haitian nationals in 1997; and 3,600 Liberian nationals in 2007")]; [Doc. No. 215, at 12 ("President Eisenhower's parole of Hungarian refugees in 1956 ... the parole of more than 600,000 Cubans in the United States through a series of discretionary programs that took place over the course of four Presidential administrations ... President Kennedy's establishment of the Hong Kong Parole Program, which provided extended voluntary departure to 15,000 Chinese refugees.")].
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memorandum that created it states it is not.96 DACA awards lawful presence to individuals who have never before received or no longer possess lawful status, and it was not implemented in response to any natural disaster or other similar crisis. Its closest analog is not any of the programs cited by Defendant-Intervenors; DACA is most like DAPA and is directly analogous to Expanded DACA. As was DAPA, the DACA program is not authorized by historical precedent.
Additionally, Defendant-Intervenors highlight a particular example of deferred actionthe "Family Fairness" policies of 1987 and 1990-as allegedly analogous to the DACA program. These policies are attractive candidates for comparison because of their size: they allegedly provided deferred action for approximately 1.5 million individuals. [Doc. No. 215 at 12]. The Fifth Circuit, however, already specifically rejected this analogy as well. Texas I, 809 F.3d at 185. Deeming the policies distinguishable from the DAPA and Expanded DACA programs, the court called Family Fairness "interstitial to a statutory legalization scheme," because the policies' purpose was to delay prosecution until Congress could enact legislation providing the same benefits. Congress later passed the Immigration Act of 1990, which superseded the Family Fairness Program. Pub. L. No. 101-649, 104 Stat. 4978 (enacted Nov. 29, 1990). The court said that Family Fairness was unlike DAPA because Congress had consistently declined to enact a DREAM Act, and DAPA was therefore not interstitial to any piece of legislation. See id. ("DAPA is far from interstitial: Congress has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act ('DREAM Act'), features of which closely resemble DACA and DAPA.").
The same conclusion applies here because DACA is not interstitial to an act of Congress.
96 Although, as noted above, it can under certain circumstances allow individuals to achieve a clearer pathway to legal status by curing the bar for unlawful entry and allowing individuals to avoid mandatory wait periods through advance parole eligibility.
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In fact, just the opposite situation exists. Congress has repeatedly considered and declined to pass a DREAM Act to provide benefits to the same or a similar class of aliens protected by DACA. Although the Defendant-Intervenors would have the Court view DACA as a means of waiting for congressional action, given the DREAM Act's history in Congress, the Court is unable to predict that Congress will pass such an act in the future. Although Congress may someday enact such a DREAM Act, until it does, its continued rejection of bills coextensive with DACA evinces a rejection of this policy. The Fifth Circuit found DAPA to be contrary to law because it clearly was not "a bridge[] from one legal status to another." Texas I, 809 F.3d at 184. DACA suffers from the same deficiency. The very memorandum which creates it specifically states it is not a pathway to citizenship and that it confers no immigration status.
For the reasons provided above, DACA violates the substantive provisions of the APA. 3. Procedural APA Claim
The Plaintiff States claim that DACA violates the APA because it is a "legislative" or "substantive" rule that was effectuated without undergoing the required notice-and-comment procedures.
The parties do not contest that the DACA program is a "rule" as described by the APA,97 nor that the APA's "rule making" requirements are applicable here. 98 Section 553 of Title 5, United States Code, outlines the requirements of formal rule making, which mandates that "[g]eneral notice of proposed rule making shall be published in the Federal Register" and that the
97 5 U.S.C. § 551(4) ("'[R]ule' means 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 and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing [. ]"). 98 5 U.S.C. § 551(5) ('"[R]ule making' means agency process for formulating, amending, or repealing a rule[.]"); see also 5 U.S.C. § 553 (describing the notice-and-comment procedures).
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agency "shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments." 5 U.S.C. § 553(b)-(c). The parties also agree that the 2012 DACA memorandum was issued without such notice and comment. The dispute between the parties is whether DACA is exempt from these requirements.
Section 553 provides two exceptions that allow a proposed rule to circumvent the noticeand-comment requirements. The first exempts rules that are "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice." I d. § 553(b)(3)(A). The second, which allows an agency to find notice and comment "impractical, unnecessary, or contrary to the public interest," is clearly inapplicable and has not been argued in this case. !d. § 553(b)(3)(B). A rule that is "substantive" cannot fall within these exceptions, and the noticeand-comment procedures must be adhered to "scrupulously." Prof'is & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995). The notice-and-comment exemptions must be narrowly construed. !d. (citing United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).99
a. DACA Is Not a Procedural Rule A rule may avoid the notice-and-comment requirements if it is one of "agency organization, procedure or practice." 5 U.S.C. § 553(b)(A). DACA clearly has nothing to do with the organization or practice of the DHS. The Defendant-Intervenors, however, claim that it is a procedural rule. In Texas I, the Fifth Circuit applied two tests to determine whether DAPA and Expanded DACA were "procedural." Texas I, 809 F.3d at 176-77. First, it used the "substantial impact test" to "look beyond the label 'procedural' to determine whether a rule is of the type Congress thought appropriate for public participation." Texas I, 809 F.3d at 176 (quoting U.S.
99 No party has argued that DACA should be exempt from notice-and-comment because it is an "interpretive rule" as described by section 553(b)(3)(A), nor have they argued that it falls within the exemption in section 553(a)(2) for "matter[s] relating to . . . public property, loans, grants, benefits, or contracts." Consequently, the Court will not address those provisions.
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Dep't ofLabor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984)). "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 Kast Metals, 744 F.2d at 1153). The Circuit held that "DAPA undoubtedly [met] that test" because it conferred lawful presence on 500,000 aliens for whom Texas was required to provide driver's licenses. Id. Here, the same reasoning applies. DACA also undoubtedly meets this test because it has forced the states to spend money on various social services costs, which are clearly "modifTications]" of "substantive rights." Id. (quoting Kast Metals, 744 F.2d at 1153). Over 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. Moreover, the individual Defendant-Intervenors, New Jersey, and the many states appearing through amicus curiae briefs have without exception urged this Court to consider the substantial positive impact these recipients have made. No matter which party's briefs and exhibits one reviews, each stresses the impact of the DACA program. DACA clearly has impacted the entire country. 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.
Next, the Fifth Circuit employed a test originating in the D.C. Circuit. This test considers the "effect on those interests ultimately at stake in the agency proceeding," and whether a rule "impose[s] 'derivative,' 'incidental,' or 'mechanical' burdens upon regulated individuals." Texas I, 809 F.3d at 176 (quoting Nat'! Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013)). The court elaborated on the test:
[A] procedural rule generally may not encode [ ] a substantive value judgment or put[ ] a stamp of approval or disapproval on a given type of behavior, but the fact
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that the agency's decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one. A corollary to this principle is that rules are generally considered procedural so long as they do not change the substantive standards by which the [agency] evaluates applications which seek a benefit that the agency has the power to provide. 100 Under this test, the Fifth Circuit reached the same conclusion as it had usmg the substantial impact test: DAPA and Expanded DACA were not procedural rules. It looked to the fact that DAPA 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." !d. at 177. The same is true in this case. 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. What could be more of an inherent value judgment than requiring an individual to pass a background check? The DACA memorandum changes the substantive standards significantly by creating a broad new category of aliens for whom lawful presence and work authorization are available. It provides the criteria by which the agency allocates "benefit[s] that the agency has the power to provide": lawful presence and employability. !d. at 177 (citations omitted). Indeed, it is an understatement to say that DACA changes the way the DHS and other agencies viewed work authorizations and parole applications. Furthermore, it changes the way that other federal agencies, such as the Social Security Administration, view applications from the DACA recipients. This is, as it was in Texas I, a "critical fact requiring notice and comment." !d. The June 2012 DHS memorandum is clearly not a procedural rule.
b. DACA Is Not a General Policy Statement A general policy statement need not comply with the APA's notice-and-comment requirements. 5 U.S.C. § 553(b)(A). While the Act defines neither the term "substantive" nor the
100 Id. (citations and quotations omitted) (emphasis in original). 93

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phrase "general statement of policy," the case law in this area has become fairly well-developed, and courts consistently look to precedent for guidance. Shalala, 56 F.3d at 595. Even so, the facts of each case are unique. If the DACA memorandum is a substantive rule, it is unlawful, for a substantive rule may not be promulgated without notice and comment. 101
i. The Agency's Characterization In assessmg whether a rule is substantive, courts begin by looking to the agency's characterization of its own rule. "While mindful but suspicious of the agency's own characterization, [courts] ... focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts it." Texas I, 809 F.3d at 171 (quoting Shalala, 56 F.3d at 595). However, the "label that the ... agency puts upon its given exercise of administrative power is not ... conclusive; rather it is what the agency does in fact." Shalala, 56 F.3d at 596 (quoting Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir. 1979)). Thus, while labels are not unimportant, the true test is how the program is actually administered and whether it affects rights and obligations. Secretary Napolitano describes a program based upon individual acts of prosecutorial discretion. Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) [Doc. No. 5, Ex. 1]. Acting DHS Secretary Duke subsequently described DACA to be "programmatic," meaning that the June 15, 2012 memorandum dictated the qualifying factors and left the actual application processors little to no
101 Courts have struggled to define the dividing line between rules that are substantive and rules that are not. See Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) ("The distinction between legislative rules and interpretative rules or policy statements has been described at various times as 'tenuous,' Chisholm v. FCC, 538 F.2d 349,393 (D.C. Cir.), cert. denied, 429 U.S. 890,97 S. Ct. 247, 50 L.Ed.2d 173 (1976), 'fuzzy,' Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974), 'blurred,' Saunders, Interpretative Rules With Legislative Effect: An Analysis and a Proposal for Public Participation, 1986 Duke L.J. 346, 352, and, perhaps most picturesquely, 'enshrouded in considerable smog." Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.), cert. denied, 423 U.S. 824, 96 S. Ct. 37, 46 L.Ed.2d 40 (1975), quoted in American Bus Association v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980).").
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room to exercise discretion. Memorandum from Elaine C. Duke, Memorandum on Rescission of Deferred Action for Childhood Arrivals (DACA) (Sept. 5, 2017) [Doc. No.6, Ex. 5, at n.l]. Both the Regents and Batalla Vidal courts echoed the Duke memorandum's conclusion. Consequently, the DHS's own characterization is of little or no help.
To distinguish policy statements from substantive rules, courts employ two pnmary criteria. Texas I, 809 F.3d at 171. First, courts have said that "unless a pronouncement acts prospectively, it is a binding norm," however, the "binding effect, not the timing, ... is the essence of criterion one." Shalala, 56 F.3d at 595. The June 15, 2012 memorandum instructed the DHS's employees that "ICE and CBP should immediately apply DACA to eligible individuals who have been encountered." Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children (June 15, 2012) [Doc. No. 5, Ex. 1]. The memorandum also immediately applied to individuals already in removal proceedings. It clearly had an immediate binding effect because by the end of 2012 over 150,000 applicants had been approved. See U.S. Citizenship and Immigration Services, Number ofForm I-821D, Consideration of Deferred Action for Childhood Arrivals, by FY, Quarter, Intake, Biometrics and Case Status FY 2012-2017 (March 31, 2018) [Doc. 225, Ex. 23]. Six years later, it is still in operation. Clearly, this policy was instituted immediately after it was announced, and it has been binding ever since.
A general statement of policy "genuinely leaves the agency and its decision-makers free to exercise discretion." Texas I, 809 F.3d at 171 (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987)). Stated another way, "a 'general statement of policy' is one that does not impose any rights and obligations." Shalala, 56 F.3d at 595. These two prongs "overlap" to some extent "because [i]f a statement denies the decisionmaker discretion in the
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area of its coverage ... then the statement is binding, and creates rights or obligations." Texas I, 809 F.3d at 171 (quoting Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002)).
The Fifth Circuit in Texas I stated the criteria to distinguish policy statements from substantive rules as follows: "whether the rule (1) impose[s] any rights and obligations and (2) genuinely leaves the agency and its decision-makers free to exercise discretion." Texas I, 809 F.3d at 171 (internal quotations omitted). It cited multiple cases for the use of these criteria but ultimately traced the concept back through Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995), to Community Nutrition Institute v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987). Due to its location and resulting docket, the D.C. Circuit has long been looked to in the field of administrative law. That circuit describes these two factors as criteria that can be used to "fathom the interpretive/legislative distinction." Cmty. Nutrition, 818 F.2d at 946. These factors are not treated like different elements of a cause of action, both of which must be proved; but instead a "matter of judgment is involved in distinguishing between rules however discretionary in form, that effectively circumscribe administrative choice." Am. Bus Ass 'n v. United States, 627 F.2d 525, 530 (D.C. Cir. 1980).
ii. Rights and Obligations The Court first considers whether the program "imposes rights and obligations" such that it is "binding" in its effect. Shalala, 56 F.3d at 595. In this case, it is clear that the DACA program confers rights and imposes obligations. The Fifth Circuit in Texas I held that DAPA affected rights and obligations not only for the illegal aliens who would benefit from the program, but also for the states and the federal government. See Texas I, 809 F.3d at 148 ("[Those] granted lawful presence pursuant to DAPA are no longer bar[red] . . . from receiving social security retirement benefits, social security
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disability benefits, or health insurance under Part A of the Medicare program."); id. at 149 ("The district court determined-and the Government does not dispute-that DAPA recipients would
be eligible for earned income tax credits once they received a Social Security number."); id. at
173 n.13 7 ("DAPA ... has an effect on []illegal aliens[]. DAPA removes a categorical bar to
illegal aliens who are receiving state and federal benefits, so it places a cost on the states."). DACA has exactly the same effect. 102 The program affects the rights and obligations of
the DACA recipients because it gives them 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. In this case, as opposed to Texas I, the Court need not project into the future.
Over 800,000 individuals have received these rights with another large group of applicants yet to come. DACA also impacts the obligations of the individual States. As described in the section on
standing, supra, the program requires states to spend money on various social services.
Moreover, the program affects the obligations of the United States Government. In addition to
the benefits described above, it obligates the Government to forebear from implementing immigration enforcement proceedings. These are certainly the kinds of rights and obligations
that give a program "binding effect" such that the notice-and-comment procedures are required.
Shalala, 56 F.3d at 595. In Texas I, it was clear to this Court and the Fifth Circuit that DAPA and Expanded
102 Some of the other cases that have considered the recent DHS rescission memorandum concluded that DACA confers important benefits. In Regents, the Northern District of California court found so directly, noting its effect on employment authorization, safety from detention and removal, advance parole eligibility, and avoidance of the accrual of time for unlawful presence. See Regents, 279 F. Supp. 3d at 1023. Similarly, in Casa De Maryland, the District of Maryland court implied that the program provided certain benefits to the actual recipients of DACA (as opposed to various immigrant-rights groups), "including the ability to (l) obtain employment authorization, (2) travel internationally, (3) attend schools, (4) pay into and receive payment from Social Security and disability, (5) secure other opportunities like obtaining bank accounts or credit cards, and (6) otherwise be considered 'lawfully present."' Casa De Maryland, 284 F. Supp. 3d at 776. While the Maryland court did not find these benefits were rights that could not be withdrawn, it did find that DACA imposed obligations on the government not to misuse certain information provided by the recipients.
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DACA conferred benefits, and that fact also became clear to at least one of the Justices in the Supreme Court oral argument:
Justice Alita: If an employer took the position that the employer was not going to hire a DAPA beneficiary because the employer believes that they are not - that they are not lawfully authorized to work, would prefer someone else over them, could that person sue on any theory of discrimination, for example, under Section 1981? Mr. Saenz: They could, Your Honor. And - and the outcome of that case, I think, has not been clearly established by precedent so far, but it would be a clash between folks with concrete interest, an employer who wants to hire someone, not the individual who -
Justice Alito: If that's true then, DAPA gives them a legal right. It's more than
just putting them in a low-priority prosecution status.103 DACA, of course, bestows the same benefits. Furthermore, as discussed above, employment is only one of the plethora of rights and benefits conferred.
iii. Do the Actual Decision-Makers Exercise Discretion? Next, the Court asks whether "the agency and its decision-makers [are] free to exercise discretion." Cmty. Nutrition, 818 F.2d at 946. On the record before it, this Court does not find the evidence of discretion by the individuals processing DACA applications to be compelling either way. The Plaintiff States rely strongly on two different statements from the DHS to argue that the personnel reviewing DACA applications do not exercise discretion. First, in Texas I, the DHS could not find one example of anyone who complied with all of the DACA requirements and was turned down for a discretionary reason. Second, some years later, Acting DHS Secretary Duke confirmed that "USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the June 15,
103 Transcript of Oral Argument at 41, United States v. Texas I, 136 S. Ct. 2271 (No. 15-674) (emphasis added). 98

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2012 memorandum, but still had his or her application denied based solely upon discretion."
[Pls. Motion for Prelim. Inj., Ex. 5 n.l, App. 22-23].
The Plaintiff States have brought forth other evidence on this point as well. For instance,
the USCIS Texas Service Center, which no longer handles DACA applications but did for many
years, has never turned anyone down who met the June 15, 2012 criteria. [Doc. No. 284, Ex. 4].
The States have also presented hundreds of pages of DHS manuals and procedures that instruct,
in painful detail, each step a reviewer should take and what types of evidence each reviewer may
consider as evidence that the DACA applicant has satisfied each of the criteria. Further, the
States point to the fact that if DACA applicants satisfy the criteria, they are not interviewed, as
their applications are granted by the service centers sight unseen.
Finally, there is the June 15, 2012 memorandum itself, which states that the USCIS
should establish a clear and efficient process for exercising prosecutorial discretion on an
individual basis, but then instructs the agency on exactly what factors to use. For example:
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
• The USCIS process shall also be available to individuals subject to a final
order of removal regardless of their age.
• USCIS is directed to begin implementing this process within 60 days of
the date of this memorandum. 104 Thus, while employing the words "prosecutorial discretion," the memorandum itself lays out who is eligible-"the individuals ... who meet the above criteria and pass a background
104 Memorandum from Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) [Doc. No.5, Ex. 1, at 2-3].
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check"-and then instructs the reviewer to grant eligible applicants deferred action. 105 The Defendant-Intervenors respond by pointing to the increase in the denial rate of
DACA applicants in recent years. They also have provided this Court with multiple emails from instructors who teach the DACA processors that suggest that a shift may have taken place following this Court's opinion in Texas I in early 2015. [Doc. No. 215, Ex. 1]. After that decision, DHS began denying (even in the Texas Service Center) more applications than it had in the first three years of the DACA program. The Defendant-Intervenors claim this was due to an exercise of discretion, as opposed to applicants not meeting the established criteria, but this conclusion is not necessarily proven by facts. Finally, Defendant-Intervenors produced a postTexas I email from one instructor that, while talking about the established criteria, said that she liked to "jokingly say our standard is whether or not you would want to live next door to the person." [Doc. No. 215, Ex. 1, at 405]. While this Court will not opine on whether the "neighbor" standard is one capable of refined precision or even whether it would be legally enforceable, if it were routinely being used, it would certainly be indicative of a discretionary standard.
The Court recognizes that one of two possibilities is more than likely true regarding the current state of discretion in the DACA program. It could be that the June 15, 2012 memorandum still controls, and that any discretion being exercised is not based upon outside factors, but rather solely on whether an applicant satisfies the June 15, 2012 "programmatic" criteria. It could also be that, following this Court's opinion in 2015, the DHS may have begun to
105 The States also rely on the statements by Kenneth Palinkas to the effect that no discretion was being exercised by the DHS personnel actually making the decisions. This Court did not find either the deposition of Kenneth Palinkas, or the deposition of Michael Knowles {apparently called by Defendant-Intervenors), to be compelling. On crossexamination, both conceded that most of what they had to say was either opinion or based upon hearsay. This Court earlier emphasized to all counsel in a hearing concerning discovery that the witnesses needed to have personal knowledge. Hearing Tr. (June 28, 2018) [Doc. No. 111, at 15-16]. Neither of these witnesses has ever processed a DACA application.
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shift its process 106 to allow its application processors more discretion. If the former scenario is
actually the case, then the only actual discretion in the DACA program was that exercised by the
Secretary in 2012, and her instructions have bound everyone since that time. This kind of
situation has been considered by the D.C. Circuit, which found similar guidelines to be
substantive:
In applying the second criterion in Pickus v. U. S. Board ofParole, 507 F.2d 11 07 (D. C. Cir. 1974), we took into account the language, structure, and calculable effect of the statement. The Parole Board claimed that guidelines specifying many of the factors it used in deciding whether to parole prisoners were "general statements of policy." The court disagreed, on the grounds that those guidelines "were of a kind calculated to have a substantial effect on ultimate parole decisions.... Although they provide no formula for parole determination, they cannot help but focus the decisionmaker 's attention on the Board-approved criteria. They thus narrow his field of vision, minimizing the influence of other factors and encouraging decisive reliance upon factors whose significance might have been differently articulated had Section 4 (now section 553 ofthe APA) been followed." In sum, the court held, the guidelines "are substantive agency action, for they define a fairly tight framework to circumscribe the Board's statutorily broad power."107
The evidence presented thus far has not convinced the Court which of these alternatives,
if either, is accurate. Some evidence suggests that individual decision-makers are not exercising,
and are not allowed to exercise, discretion. That evidence, however, is not convincing, either in
its quantity or quality, and there is at least some evidence presented by the Defendant-
Intervenors to the contrary-that the actual individuals screening the applications may have
some discretion.
That being the case, this Court looks to which party bears the burden of proof.
106 This Court finds that it is not bound by the facts as they existed when DACA was first implemented, or even by the facts as they existed when this Court issued the injunction in Texas I. This Court holds that it may consider later evidence, including evidence as to how DACA is being operated today. 107 Am. Bus, 627 F.2d at 530 (emphasis added). See also, the OLC memorandum which advised that case-by-case discretion needed to be given to the actual "immigration officials," otherwise the DHS could be viewed as having "abdicated its statutory enforcement responsibilities" or the DAPA program might be viewed as having "created a categorical rule-like entitlement." U.S. Department of Justice's November 19, 2014, Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President (Nov. 19, 2014) [Doc. No 5, Ex. 19, at 28-29].
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Preliminary injunctions "may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) ("It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.")). Based on the evidence in the preliminary injunction record, the Court holds that the Plaintiff States have not made a "clear showing" that those processing DACA applications are not free to exercise discretion.
iv. Weighing a Policy that Imposes Rights and Obligations but Allows Discretion
Given this Court's findings-that DACA imposes rights and obligations, but that the Plaintiff States have not clearly shown an absence of discretion-the resolution of the "policy statement vs. substantive rule" test turns on whether the criteria set out in Texas I are factors to consider or are like elements of a cause of action, where each must be proven. The Plaintiff States argue that their evidence on the first criterion-whether DACA confers rights and imposes obligations-is so overwhelming that they need not prevail on the second-whether a lack of discretion exists. In other words, they claim that the evidence in the first category is so persuasive that the Court can rule that DACA is not a statement of general policy as a matter of law regardless of the eventual outcome concerning the issue of discretion. The DefendantIntervenors respond by arguing that an adverse finding (or a failure by the States to carry their burden of proof) on the "discretion" prong means the Plaintiff States have not made a clear showing that DACA is a substantive rule. If the States have not proven DACA is a substantive rule, then the States have failed to prove a violation ofthe procedural requirements of the APA.
The Court finds the evidence concerning the exercise of discretion to be equivocal and lacking the quality that one would require to find that it equates to a clear showing. Conversely,
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the evidence that DACA confers rights and imposes obligations is overwhelming. The program confers lawful presence and an entire array of benefits on DACA recipients. Additionally, it imposes upon the States and the Government multiple obligations, many of which flow automatically from DACA's award oflawful presence.
While this Court need not decide the merits of the procedural aspects of the APA claims, given its eventual ruling below, it may be in the best interests of all concerned and in the interests of any subsequent appeal for this Court to indicate its holding on these issues. The Fifth Circuit specifically described these factors as "criteria" that "[w]e evaluate." Texas I, 809 F.3d at 171. If the criteria were to be considered as elements that must be proven, there would certainly be clearer ways to express that concept. Consequently, this Court holds that the Plaintiff States need not prove (or clearly show a likelihood of success) on both criteria; rather this Court evaluates each independently. Despite the less-than-convincing evidence regarding discretion and given the overwhelming evidence concerning the rights conferred and the obligations imposed, this Court holds that the Plaintiff States have shown DACA to be a substantive rule that should have complied with the notice-and-comment procedures required by the APA. 108
In conclusion, despite not ruling on the Take Care Clause issue, this Court finds that, as a matter of law, the Plaintiff States have made a clear showing they are likely to succeed on the merits at trial. For the purpose of a preliminary injunction, they have shown their substantive APA claim is likely to be successful. The DACA program 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.
108 If the Defendant-Intervenors are right and the States must prevail on both criteria, this Court would find that the Plaintiff States have not clearly shown that the actual decision-makers do not exercise discretion and consequently their proof at this stage would not support a conclusion of a likelihood to succeed on the merits on the procedural APA issue.
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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. This Court also holds that the States have shown a likelihood to succeed on their procedural APA claim. As the Fifth Circuit stated in Texas I, and as is basically true here, "[a]t its core, this case is about the Secretary's decision to change the immigration classification of millions of illegal aliens on a class-wide basis." Texas I, 809 F.3d at 170. This program, which allots lawful presence and its corresponding benefits to more than a million aliens, must be committed to the decision-making power of Congress, not the Executive alone. Nevertheless, if implemented by the Executive Branch, it must at least undergo the formalities of notice and comment.
For these reasons, the Court holds that the Plaintiff States have clearly shown, as a matter of law, that they are likely to succeed on the merits.
B. Preliminary Injunction Factor Two: Irreparable Harm In addition to showing a likelihood of success on the merits on at least one of their claims, the Plaintiff States must also demonstrate a "likelihood of substantial and immediate irreparable injury" if the injunction is not granted, and the "inadequacy of remedies at law." O'Shea v. Littleton, 414 U.S. 488, 502 (1974). Speculative injuries are not enough to satisfy this factor; "there must be more than an unfounded fear on the part of [Plaintiffs]." llA Charles Alan Wright et al., Federal Practice and Procedure § 2948.1. Thus, courts will not issue a preliminary injunction "simply to prevent the possibility of some remote future injury." !d. Instead, the Plaintiff States must show a "presently existing actual threat." !d.; see also Winter, 555 U.S. at 22 ("We agree ... that the Ninth
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Circuit's 'possibility' standard is too lenient. Our frequently reiterated standard reqmres plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction." (internal citations omitted)). The Plaintiffs' injury need not have already been inflicted or be certain to occur; a strong threat of irreparable injury before a trial on the merits is adequate for a preliminary injunction to issue. See, e.g., 11A Charles Alan Wright et al., Federal Practice and Procedure, § 2948.1.
The Plaintiff States allege they will suffer injuries due to vanous causes should an injunction be denied. First, they claim that they are paying millions of dollars annually to provide for uncompensated healthcare expenses and other state-provided benefits. [Doc. No. 5, at 41]. Additionally, they will suffer increased law-enforcement and educational costs "imposed by aliens who would not remain in the country but for the removal of their unlawful-presence status and work authorizations." [Doc. No. 218, at 49]. Further, they claim the increased presence of the DACA recipients causes injury to their legal residents, as the DACA recipients diminish the chances for employment for legal residents.
The Plaintiff States maintain that these expenses are incurred on a daily basis and accurately claim that they stand little or no chance of getting monetary compensation from the federal government for these costs. See Texas v. United States, 106 F.3d 661, 662 (5th Cir. 1997). This category of damages was rejected by this Court in Texas I because the damages claimed were actually projected costs and were not based on the actual policy being challenged or the costs associated with the DAPA or Expanded DACA recipients. Instead, these damages were allegedly being caused by other aliens, who, inspired by the existence of DACA and the prospect ofDAPA, chose to illegally come to the United States.
In the instant case, Texas has proven that it suffers some amount of costs associated with
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increased social services expenses that are directly associated with the continued presence of its over 100,000 DACA-recipient residents. The Defendant-Intervenors maintain that Texas, the only state that attempted to prove damages, did not suffer any real loss on a net basis, and that these costs are more than offset by the economic advantages that Texas derives from the DACA recipients, a position on which they may ultimately be proven correct when this case is tried on the merits. Despite the fact that Defendant-Intervenors purport to question the existence of these damages, their own expert, Dr. M. Ray Perryman, estimated that DACA recipients cost the State of Texas $250,007,800 annually. The States maintain, again based upon studies proffered to the Court by Defendant-Intervenors, that if DACA was rescinded, at least twenty percent of DACA recipients would return to their home country. [Doc. No. 219, Ex. 22, at 13]. The Plaintiff States reasonably conclude that they would save that same percentage of their annual DACA-related expenditures if the program was enjoined.
Most of Texas's own testimony and evidence concernmg DACA recipients 1s encompassed in much larger figures that relate to costs incurred by the State for all illegal aliens or for unaccompanied alien children. Nevertheless, whatever holes were created by the deficits in the evidence offered by the States' experts were filled in by the testimony of the DefendantIntervenors' experts. The Plaintiff States presented evidence that these costs continuously accrue as DACA continues, in addition to the argument that DACA continues to incentivize more illegal immigration. 109 Stated differently, Texas argues that DACA's continued existence allows its recipients to stay legally in the United States, which continues to compel Texas to expend funds that it would not otherwise be compelled to spend. Indeed, several of the Defendant-Intervenors
109 This latter argument, concerning incentivizing more illegal immigration, was made in Texas I, and this Court refused to consider this claim. While it may be valid in its premise to a certain extent, the Court found in Texas I and still finds here that as a legal issue it was not one that was redressable as pleaded.
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went to public school in Texas, each of which cost the State of Texas thousands of dollars per year.
Defendant-Intervenors have gone to great lengths to prove that, aside from these costs, the overwhelming majority of DACA recipients provide a decidedly positive economic effect on the states in which they reside. The Defendant-Intervenors claim that the States might actually suffer more irreparable damage should the DACA recipients lose their lawful presence and have produced multiple affidavits and studies which do indeed support that claim. That is certainly the position voiced by New Jersey and a large number of amicus curiae states. Texas, however, argues that the Fifth Circuit held that the "standing analysis is not an accounting exercise." Texas I, 809 F.3d at 156. This Court quoted this language previously when it found that Texas has standing; however, that does not necessarily mean that the Plaintiff States automatically have proven that they will suffer irreparable harm-a necessary element for obtaining a preliminary injunction.
The Court at this stage need not go through an extensive accounting exercise that analyzes each of the Plaintiff States' economic arguments and each of the DefendantIntervenors' rebuttals. Initially, a plaintiff is not precluded from claiming damages in one area just because there is a possibility that the damages might ultimately be offset in another. Moreover, the States correctly argue that the law allows a lesser level of precision and proof in a case where the proof of damages is clear and where the movant has clearly shown a likelihood of success on the merits. Fla. Med. Ass'n. Inc. v. U.S. Dep't ofHealth, Educ. & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979). This Court has reviewed the evidence of ongoing damages and finds it sufficient to support a finding of injury that is irreparable, as there is no source of recompense.
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Nevertheless, this does not resolve the issue. The Defendant-Intervenors claim the States' delay in bringing this action forecloses any injunctive relief. All concede that Texas and the other Plaintiff States dismissed Texas I after the DHS agreed to phase out DACA. The DHS attempted to make good on this representation in September of 201 7, and it would have but for the injunctions and vacatur issued by district courts in California, New York, and the District of Columbia. Texas filed this lawsuit in May of 2018, less than a week after the district court in Washington, D.C. indicated in NAACP that it would order DACA continued indefinitely into the future. (California and New York had issued their respective injunctions as to current DACA recipients and renewals in January and February of this year.) Why the first two injunctions did not provoke the filing of this case, but the D.C. order did, is beyond the knowledge of this Court. One would suspect it was because the order in NAACP indicated the D.C. court would order the DHS to process new DACA applications in addition to the renewal applications the other courts had already mandated. This Court finds that Texas's reaction to this group of injunctions was timely, especially when one takes into account the fact that it had just dismissed its 2014lawsuit based upon the Government's promise to dissolve the DACA program. If these were the only relevant considerations, the Court would stop here. This timeline, however, is not the only one the Court finds important.
The DACA program was instituted in June of2012. No pertinent congressional or agency action regarding this program (except for the repeated refusal of Congress to enact a corresponding DREAM Act and the 2014 attempt to expand DACA) has taken place in the meantime; nor have there been any impediments suggested or convincing reasons given for the fact that the Plaintiff States waited almost six years to file this suit. The Plaintiff States correctly argue that the statute of limitations has not expired as to their claims and that they are still able to
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assert their rights as sovereign states to protect their citizens from the ongoing damages that they
perceive flow from the DACA program. In fact, the Defendant-Intervenors more or less concede
the accuracy of this point.
The problem with this proposition, however, is that the issuance of a preliminary
injunction is a matter of equity. See 11A Charles Alan Wright et al., Federal Practice and
Procedure § 2947 ("[T]he grant or denial of a preliminary injunction remains a matter for the
trial court's discretion, which is exercised in conformity with historic federal equity practice.").
A delay in seeking an injunction has been viewed as a concession or an indication that the
alleged harm does not rise to a level that merits an injunction:
A long delay by plaintiff after learning of the threatened harm also may be taken as an indication that the harm would not be serious enough to justify a preliminary injunction. 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (and the many cases
cited therein).
Federal courts in Texas have long recognized this principle. For example, in Symetra Life
Insurance Co. v. Rapid Settlements Ltd., 612 F. Supp. 2d 759 (S.D. Tex. 2007), Judge Rosenthal,
dealing with a thirteen-month delay, opined:
Rapid Settlements also waited more than one year after the state court confirmed the arbitration award in May 2005 before filing suit in August 2006, evidence that it will not suffer irreparable injury. "[D]elay in seeking a remedy is an important factor bearing on the need for a preliminary injunction. Absent a good explanation, a substantial period of delay militates against the issuance of a preliminary injunction by demonstrating that there is no apparent urgency to the request for injunctive relief Evidence of an undue delay in bringing suit may be sufficient to rebut the presumption of irreparable harm." Wireless Agents, L.L. C. v. T-Mobile USA, Inc., No. 3:05-cv-0094-D, 2006 WL 1540587, at *3 (N.D. Tex. June 6, 2006); see also Tough Traveler, Ltd. v. Outbound Prod., 60 F.3d 964, 968 (2d Cir. 1985) (vacating a preliminary injunction where the movant waited four months to seek relief after filing suit); Citibank, NA. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (finding that a ten-week delay in seeking an
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injunction for trademark infringement undercut the claim of irreparable harm); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1193 (5th Cir. 1975) (affirming the district court's denial of temporary injunctive relief where the movant, among other things, delayed three months in making its request). Injunctive relief is unavailable.
!d. at 774. (emphasis added); see also All Access Today LP v. Aderra Inc., 2009 WL 10669445 (W.D. Tex. 2009) (six-month delay provided independent reason for denial of preliminary injunction), Amicus Commc'ns v. Hewlett-Packard Co., Inc., 1999 WL 495921 (W.D. Tex. 1999) (three-year-plus delay provided independent reason for denial of preliminary injunction).
Courts from other circuits have likewise found this concept to be especially compelling when defendants (or in this case the Defendant-Intervenors) have relied upon the movant's inaction. See, e.g., Celebration Int'l, Inc. v. Chosun Int'l, 234 F. Supp. 2d 905 (S.D. Ind. 2002). This proposition has been described in various ways. Some courts find a delay to be "inconsistent" with a claim of irreparable injury, see, e.g., Taylor v. Biglari, 971 F. Supp. 2d 847 (S.D. Ind. 2013) (a three-month delay), while others find a delay to "destroy the presumption" of irreparable harm. Silber v. Barbara's Bakery, Inc., 950 F. Supp. 2d 432 (E.D.N.Y. 2013).
Not all delays have been found to preclude preliminary injunctive relief, however. For example, where a defendant was unable to pinpoint either the cause of a certain harm or discover the harm itself, a reasonable delay did not undermine a determination of irreparable injury. 7Eleven, Inc. v. Khan, 977 F. Supp. 2d 214 (E.D.N.Y. 2013). Similarly, delays have been found to be reasonable if the parties have been trying to reach an amicable resolution short of litigation. Tex. Children's Hasp. v. Burwell, 76 F. Supp. 3d 224 (D.D.C. 2014). This Court will assume, as the Plaintiff States claim, that the resolution of the 2014 Texas I lawsuit accounted for some of the delay in this matter, but even that does not explain the nearly six-year wait. For example, in Texas I, the Plaintiff States sought and received extraordinary relief that enjoined certain
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amendments intended to expand DACA-these amendments were adopted in the same manner DACA was and were subjected to most of the same arguments being made in this lawsuit. The Plaintiff States have not explained why DACA itself was not included in that 2014 suit and why extraordinary interlocutory relief is warranted now, but could not have been sought in December of 2014. After all, when Texas I was filed in December of 2014, DACA had been in effect for over two years, and almost all of the proof as to why DAPA and DACA's expansion were legally defective was either based upon arguments equally applicable to the original DACA or based upon facts derived from the implementation and operation of DACA. At oral argument in this case, counsel for the States voiced what can best be described as "strategic reasons" for not including DACA in Texas I. It may have been an effective strategy, but one's strategy in a prior lawsuit does not legally justify delay in another.
One might argue that a finding of delay should not apply to those who have not yet applied, to those who are just "aging-in" to DACA eligibility, or to any future renewals. This Court disagrees. The States could have brought a lawsuit against the entire program in 2012 or anytime thereafter. Renewals occurred as early as 2014 and those claims could have been included in Texas I but were not. The entire population that could ever be eligible for DACA (absent the amendments that were enjoined in Texas I) was fixed in 2012, and since that finite population is not growing and since a determination as to DACA's legality is ongoing, this Court does not consider the possibility of new applicants or renewals to be an emergent situation demanding injunctive relief.
The Plaintiff States have put forth what would otherwise be sufficient proof of irreparable damage and have shown that they have no other viable legal remedy. Nevertheless, the Court finds that the Plaintiff States cannot prevail on the legal element of irreparable harm due to their
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delay in pursuing the claims they now bring concerning DACA. C. Preliminary Injunction Factors Three and Four: Hardship to Parties and the Public Interest110 Before issuing an injunction, courts must "balance the competing claims of injury and ...
consider the effect on each party of the granting or withholding of the requested relief." Amoco Prod. Co. v. Vill. ofGambell, 480 U.S. 531, 542 (1987). Thus, in addition to demonstrating a likelihood of success on the merits and irreparable harm, a movant must show that it would suffer more harm without the injunction than the enjoined party would if it was granted. The award of preliminary relief is never "strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff," but is rather "a matter of sound judicial discretion" and careful balancing of interests of-and possible injuries to-the respective parties. Yakus v. United States, 321 U.S. 414, 440 (1944). If there is reason to believe that an injunction issued prior to a trial on the merits would be burdensome, the balance tips toward denying preliminary relief. See Winter, 555 U.S. at 27 ("The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome." (quoting llA Charles Alan Wright et al., Federal Practice and Procedure § 2948.2)).
The final factor in the preliminary injunction analysis focuses on policy considerations. Plaintiffs have the burden to show that if granted, a preliminary injunction would not be adverse to public interest. Star Satellite, Inc. v. Biloxi, 779 F.2d 1074, 1079 (5th Cir. 1986). If no public
tto This opinion concentrates its analysis on the comparative damage to the Plaintiff States and the DefendantIntervenors, but the Federal Defendants would also be damaged by an injunction, as it would put them in between a rock and a hard place. The DHS would be faced with dueling injunctions, and while this situation might be pleasing to those in academia who find circuit splits to be healthy for the legal system, it would be difficult for the Goverrunent to comply with each order. This Court would not hesitate to enter an injunction, even in the face of opposing rulings from sister courts, if compelled by law, but the Court for the reasons discussed in the text does not face this situation.
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interest supports granting preliminary relief, such relief should ordinarily be denied, "even if the public interest would not be harmed by one." 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.4. "Consequently, an evaluation of the public interest should be given considerable weight in determining whether a motion for preliminary injunction should be granted." Id.
Unlike in Texas I, the Plaintiff States ask this Court to enjoin a program that has been ongoing for more than six years. Instead of maintaining the status quo, they want this Court to halt the operation ofDACA. As noted in this Court's opinion in Texas I, the existence ofDACA in its 2012 configuration was and still is the status quo. See Texas v. United States, 86 F. Supp. 3d 591, 608 (S.D. Tex. 2015).
In this case, the factor concerning significant hardship to the parties has a particular significance. The dissolution or the enjoining of the ongoing DACA program would have immediate effects-it would deprive the individual Defendant-Intervenors of their ongoing lawful status and their ability to work. The proposed injunction could cause the DACA recipients to lose their ability to travel within the United States and many other benefits that flow from lawful presence. For many, this could, in theory, make them susceptible to immigration proceedings and eventual removal where applicable. 111 Further, New Jersey and those states, cities, and employers who find themselves in the shoes of New Jersey (a status which many of the amicus curiae purport to hold), could lose residents whom they consider to be valuable
111 This Court specifically includes the phrase "in theory." Just as this Court indicated when it enjoined DAPA and Expanded DACA in 2015, nothing in that order compelled the Government to take any action regarding either the Expanded DACA or DAPA populations, nor did it enjoin any traditional concepts of prosecutorial discretion. This Court did not order anyone arrested, prosecuted, or deported. It did not even prohibit the DHS from identifying each recipient and giving each an ID card identifying them as a low enforcement priority-which was the stated purpose of the program. It only enjoined the DHS from giving lawful status to individuals whom Congress declared to be removable and from bestowing a wide variety of federal and state benefits-many of which damaged the Plaintiff States-which follow from having lawful presence in the United States.
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members of their communities or employees who are integral to various schools, municipalities, and industries.
Conversely, if the court were to enter an injunction, Texas and the other Plaintiff States would be able to escape the kinds of costs and damages that they have suffered and continue to suffer as a consequence of DACA. Nevertheless, due to the continued presence of a large illegal alien population (which would still include approximately eighty percent of the DACA recipients even based on the most favorable evidence), many of the secondary costs about which they complain would still remain. The Plaintiff States would still incur medical, education, and lawenforcement expenses, albeit to a lesser extent. The Plaintiff States may also have some resident workers who would gain job opportunities that they might otherwise not have, but others would still lose opportunities to individuals who are illegally in the country and are hired because they are less expensive than legal workers. According to the evidence, the number of illegal aliens would decrease due to the approximately twenty percent of DACA recipients who said they would leave the country, but the States, nonetheless, would still be forced to absorb the costs of those who remained.
When this Court weighs the evidence produced by all parties, it is convinced that both the third and the fourth factors favor maintaining the status quo and denying the injunction. This Court does not necessarily agree with some of the reasoning (and the bases given for the decisions made) by the other courts that have addressed the rescission ofDACA. Nonetheless, in each case in which an injunction or order of vacatur was issued and in this case in which an injunction is not being issued, the purpose of the orders was to maintain the status quo until a definitive decision could be reached. If this Court were to grant an injunction, it would upset that balance.
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Moreover, this Court used two time-worn sayings in Texas I and its associated hearings when it ruled that an injunction was warranted to stop the implementation of DAPA and Expanded DACA: "one cannot put the toothpaste back in the tube" and "one cannot unscramble the egg." It enjoined those programs so that a decision could be reached on the front end, before individuals and society had developed a reliance on a program that would later have to be set aside. Here, the egg has been scrambled. To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country. The States argue that any reliance on DACA was misplaced because DACA status was always revocable and because it did not confer any permanent rights. This Court does not dispute that premise based upon the language of the June 15, 2012 memorandum, but the reality of the situation is that it conferred lawful presence and numerous other benefits, and many DACA recipients and others nationwide have relied upon it for the last six years.
Some might engage in conjecture as to what this or any other court would have ruled if the Plaintiff States had challenged DACA in 2014 when Texas I was filed, but conjecture is all that it would be. This case is taking place almost four years later, and throughout that time individuals have continued to apply for and renew their DACA status. The Plaintiff States may ultimately prevail and prove their right to declaratory relief, but given the delay in confronting DACA, and given that the interests of the Defendant-Intervenors and the public outweigh those of the Plaintiff States, the Court denies the request for preliminary relief. VIII. Conclusion
In Casa de Maryland, the court expressed the sentiment that the question of the eligibility of the DACA recipients to remain in the United States and to continue contributing their skills and abilities to the betterment of this country is an issue crying out for a legislative solution. This
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Court agrees. Nevertheless, the failure of Congress to act does not bestow legislative authority on either the Executive or Judicial Branches, and the need for legislation cannot take precedence over the application of the Constitution and the laws of the United States, which this and all other federal courts are sworn to uphold.
Counsel for the defendants and intervenors in Texas I argued that DAPA and Expanded DACA must be legal because Congress had not said otherwise-an argument that Justice Kennedy rightly described as "upside-down" and "backwards." Transcript of Oral Argument at 24, United States v. Texas, 136 S. Ct. 2271 (No. 15-674). Justice Kennedy's reaction that this proposition is upside-down is unassailable. It turns the entire Constitution on its head. The Defendant-Intervenors suggested at oral argument that oft times Congress rejected DREAM Act legislation because the proposals either made the recipients citizens or guaranteed them a pathway to some permanent status or because they included some other controversial provision. This Court has no means to determine why each Representative or Senator voted against a particular bill, but it is clear that someone in Congress could have introduced a bill that simply authorized DACA-especially after the legal challenges to DAPA and Expanded DACA were sustained-and if Congress so desired it could have become law. This Court cannot view Congress's repeated rejection of the concept as an indication that DACA complies with its dictates.
That being the case, this Court is forced to view the DACA question just as one of the Defendant-Intervenors' experts did when asked to comment on the plaintiffs' decision not to challenge DACA in Texas I:
It's an interesting exclusion, given that the legal arguments for both DACA and its 2014 spin-o.fffor parents, DAPA, are basically identical . ... It's hardfor me to think ofany ground striking DAPA that wouldn't apply to DACA .... So why not challenge DACA? They might have worried [that] the court wouldn't want to
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strike down such a popular program. So they think go after DAPA and if they win, then they have a nice precedent to go after DACA. 112 Both assumptions appear to be correct. DACA and DAPA are basically identical, and there is no legal ground for "striking DAPA that wouldn't apply to DACA" (and certainly no legal ground for striking Expanded DACA that does not apply to DACA itself). Further, DACA is a popular program and one that Congress should consider saving. Unfortunately, the Judiciary is not the branch of government designed to salvage a program that should have emanated from Congress, or at the very least complied with the APA. The Casa de Maryland court cited a recent dissent from a Fourth Circuit decision that aptly expressed the need for judicial restraint: The public debate over the Administration's foreign policy and, in particular, its immigration policy, is indeed intense and thereby seductively tempts courts to effect a politically preferred result when confronted with such issues. But public respect for Article III courts calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives. Casa De Maryland, 284 F. Supp. 3d at 767 n.21 (citing Jnt'l Refugee Assistance Project v. Trump, 883 F.3d 233, 376-77 (4th Cir. 2018) (Niemeyer, J., dissenting)). This Court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so. Nevertheless, for the reasons discussed above, this Court denies the request for preliminary injunctive relief. Signed this 31st day of August, 2018.
AndrewS. Hanen United States District Court Judge
112 Lomi Kriel, DACA 's Fate in Court's Hands, Houston Chronicle (Apr. 16, 2016) [Doc. No. 284, Ex. 1, at 5] (emphasis added and internal quotation marks omitted).
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United States District Court Southern District of Texas
ENTERED
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David J. Bradley, Clerk

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United States District Court Southern District of Texas
ENTERED
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David J. Bradley, Clerk

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 Case 1:18-cv-00068 Document 568 Filed on 04/09/21 in TXSD Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

STATE OF TEXAS, et al., Plaintiffs,
v. UNITED STATES OF AMERICA, et al.,
Defendants, and KARLA PEREZ, et al.,
Defendant-Intervenors, and STATE OF NEW JERSEY
Defendant-Intervenor.

) ) ) ) ) ) Case No. 1:18-CV-68 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

DEFENDANT-INTERVENORS’ SUPPLEMENTAL BRIEF REGARDING THE IMPACT OF RECENT DEVELOPMENTS IN THE LEGISLATIVE & EXECUTIVE BRANCHES

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TABLE OF CONTENTS

Page(s)

I.

Statement of the Issues to be Ruled upon by the Court.............................................1

II.

Statement of the Nature & Stage of the Proceeding...................................................2

III. Summary of the Argument ...........................................................................................2

IV.

Argument........................................................................................................................3

A. The Acts Would Moot the Case, or So Substantially Change It that Plaintiffs’ Previous Attempts to Distinguish DACA from Historical Examples of Deferred Action Would No Longer Apply .............................................................................3

1. The Acts would cover all DACA recipients and nearly all individuals eligible for DACA.................................................................5

2. A drastic reduction in DACA’s scope would present a very different substantive question in light of the even closer analogy to historical examples of deferred action.................................................7

3. Plaintiffs exaggerate the supposed procedural hurdles preventing the Acts’ passage. ....................................................................................9

B. DHS’s Intent to Issue a Notice of Proposed Rulemaking Further Counsels in Favor of Waiting to Rule .......................................................................................10

C. To the Extent the Acts or a New DHS Rule Would Not Moot the Case Entirely, Either Would Significantly Impact Plaintiffs’ Standing, a Key Threshold Issue in this Litigation.........................................................................................................13

D. If the Court Is Determined to Rule Now, It Should Remand DACA to DHS without Vacating It ................................................................................................15

V.

Conclusion ....................................................................................................................20

i

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TABLE OF AUTHORITIES
Page(s)
Cases Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n,
988 F.2d 146 (D.C. Cir. 1993).....................................................................................16, 17, 19 B.J. Alan Co., Inc. v. ICC,
897 F.2d 561 (D.C. Cir. 1990).................................................................................................11 Califano v. Yamasaki,
442 U.S. 682 (1979) ................................................................................................................ 20 Cal. Communities Against Toxics v. U.S. Env’t Prot. Agency,
688 F.3d 989 (9th Cir. 2012) ................................................................................................... 16 Cent. & S.W. Servs., Inc. v. U.S. Env’t Prot. Agency,
220 F.3d 683 (5th Cir. 2000) ................................................................................................... 16 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020) .....................................................................................................passim Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.,
653 F.3d 1 (D.C. Cir. 2011).....................................................................................................19 Georgia v. Wheeler,
418 F. Supp. 3d 1336 (S.D. Ga. 2019) .................................................................................... 17 Inter-Cont’l Promotions, Inc. v. MacDonald,
367 F.2d 293 (5th Cir. 1966) ................................................................................................... 10 N. Air Cargo v. U.S. Postal Serv.,
674 F.3d 852 (D.C. Cir. 2012)...........................................................................................12, 16 North Carolina v. U.S. Env’t Prot. Agency,
550 F.3d 1176 (D.C. Cir. 2008)...............................................................................................19 Roho, Inc. v. Marquis,
902 F.2d 356 (5th Cir. 1990) ................................................................................................... 20 Shands Jacksonville Med. Ctr., Inc. v. Azar,
366 F. Supp. 3d 32 (D.D.C. 2018), aff’d, 959 F.3d 1113 (D.C. Cir. 2020) ............................ 10 Shands Jacksonville Med. Ctr. v. Burwell,
139 F. Supp. 3d 240 (D.D.C. 2015).........................................................................................16
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Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002)...................................................................................................19
Texas v. U.S. Env’t Prot. Agency, 389 F. Supp. 3d 497 (S.D. Tex. 2019).....................................................................................16
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ............................................................................................passim
United States v. Winstar Corp., 518 U.S. 839 (1996) .................................................................................................................. 9
Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658 (5th Cir. 2000) ................................................................................................... 20
Constitutions U.S. Const. art. I, § 7 ..................................................................................................................... 10 Statutes 5 U.S.C. § 553 ............................................................................................................................... 10 8 U.S.C. § 1254a........................................................................................................................9, 10 Proposed Legislation American Dream and Promise Act of 2021, H.R. 6, 117th Con. 1st Sess. (2021).................passim Dream Act of 2021, S. 264, 117th Cong., 1st Sess. (2021)....................................................passim Other Authorities The Dream Act: An Overview, American Immigration Council (Mar. 16, 2021),
https://www.americanimmigrationcouncil.org/research/dream-act-overview .......................... 6
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I. STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT Congress has in recent months made significant progress to address “the eligibility of the
[Deferred Action for Childhood Arrivals (“DACA”)] recipients to remain in the United States and to continue contributing their skills and abilities to the betterment of this country,” an issue this Court has suggested is “crying out for a legislative solution.” Dkt. 319 at 115–16. Two bills making their way through Congress—the Dream Act of 2021, S. 264, 117th Cong., 1st Sess. (2021),1 introduced by Republican Senator Lindsey Graham and Democratic Senator Richard J. Durbin (the “Senate Bill”), and the American Dream and Promise Act of 2021, H.R. 6, 117th Con. 1st Sess. (2021),2 which passed the House with 228 votes and bipartisan support (the “House Bill” and, together with the Senate Bill, the “Acts”)—would make all DACA recipients and nearly all immigrants who are eligible for DACA also eligible for lawful permanent residence. At the direction of President Joseph R. Biden, the Department of Homeland Security (“DHS”) is also taking steps to “preserve and fortify DACA” in adherence “with applicable law.” Ex. 550-1 at 1. According to Federal Defendants, DHS will, in the coming months, issue a Notice of Proposed Rulemaking concerning DACA. See Dkt. 563.
The issues before the Court are thus: (1) whether the Court should withhold judgment on DACA’s merits in light of ongoing legislative and executive actions, which may moot Plaintiffs’ case; and (2) if the Court determines to rule on DACA’s merits now and find (contrary to Defendant-Intervenors’ arguments) that DACA is unlawful, whether it should remand to DHS without vacatur.
1 See S. 264 – Dream Act of 2021, https://www.congress.gov/bill/117th-congress/senate-bill/264?r=4&s=1. 2 See H.R. 6 – American Dream and Promise Act of 2021, https://www.congress.gov/bill/117th-congress/house-bill/6.
1

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II. STATEMENT OF THE NATURE & STAGE OF THE PROCEEDING Plaintiffs re-filed their Motion for Summary Judgment (“MSJ”) on October 9, 2020. See
Dkt. 486. On November 6, 2020, Federal Defendants filed a Response, and Defendant-Intervenor New Jersey filed an Opposition to Plaintiffs’ MSJ. See Dkts. 501, 502. That same day, DefendantIntervenors Karla Perez, et al. (the “Perez Defendant-Intervenors,” and, together with New Jersey, the “Defendant-Intervenors”) also filed an Opposition to Plaintiffs’ MSJ, as well as their own Motion for Summary Judgment as to Plaintiffs’ Standing. See Dkts. 503, 504. The Court heard argument on the parties’ summary judgment motions on December 22, 2020, and held a status conference on March 30, 2021, regarding the possible impact of the Acts on this litigation. At that status conference, the Court permitted the parties to submit supplemental written responses. III. SUMMARY OF THE ARGUMENT
In its decision denying Plaintiffs’ Motion for a Preliminary Injunction, this Court held that Congress, not the judiciary, should determine DACA’s future. Dkt. 319 at 117. Two years later, in Department of Homeland Security v. Regents of the University of California, the Supreme Court of the United States agreed that the political branches, not the courts, must address the “important policy choices” surrounding DACA. 140 S. Ct. 1891, 1910 (2020) (“Regents”). Congress and DHS are now actively working to address the issues this Court and the Supreme Court called on them to solve.
The Court should thus refrain from issuing a ruling that will likely soon be stale. The Acts cover all DACA recipients and nearly all immigrants eligible for DACA, they have bipartisan support, and, contrary to Plaintiffs’ arguments, the supposed supermajority requirement for the Acts’ temporary protected status (“TPS”)-related components is invalid and ineffective as a matter of law. DHS’s forthcoming Notice of Proposed Rulemaking—which Federal Defendants have indicated that DHS will, consistent with the new Administration’s priorities, issue in the coming
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months—also is likely to resolve all of Plaintiffs’ claims. As a result, the passage of either of the Acts or DHS’s forthcoming rulemaking will likely either entirely moot the case or, at a minimum, require the Court to reexamine Plaintiffs’ standing and reconsider numerous issues on the merits.3 Consistent with guidance from the Supreme Court and the Court’s own recognition that the political branches are best-suited to address questions relating to DACA, the Court should allow the political processes to play out before issuing a decision. If the Court is inclined to rule in Plaintiffs’ favor on the merits now, however, the Court should remand DACA to DHS without vacatur. Remand without vacatur is an available—and the appropriate—remedy, particularly given that this remedy would both best support the ongoing activities of the political branches and protect DACA recipients and their families from severe disruption in the coming months. IV. ARGUMENT
A. The Acts Would Moot the Case, or So Substantially Change It that Plaintiffs’ Previous Attempts to Distinguish DACA from Historical Examples of Deferred Action Would No Longer Apply
If Congress passes either Act, Plaintiffs’ case would be essentially moot. Like DACA, the Acts apply to immigrants who entered the United States as children; have lived in the United States continuously for a specified period of time; have attained certain educational milestones; and have not committed certain crimes. Although the Acts would also apply to a broader set of immigrants, they would cover nearly all immigrants currently eligible for DACA and all DACA recipients. As described in more detail below, the only immigrants who satisfy the general criteria for eligibility for an exercise of prosecutorial discretion under DACA who do not satisfy the general criteria to apply for an adjustment of status under either Act are the small number of immigrants
3 Defendant-Intervenor New Jersey did not join the Perez Defendant-Intervenors’ Motion for Summary Judgment with respect to standing. Defendant-Intervenor New Jersey likewise does not join Argument IV.C below, in which the Perez Defendant-Intervenors address the potential impact of further legislative or regulatory action on their standing arguments.
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who did not obtain a high school diploma or GED but who are honorably discharged veterans.4
The Acts, however, also explicitly instruct the Secretary of Homeland Security to implement
procedures to adjust the status of all immigrants who have already received and remain eligible to
renew DACA. See H.R. 6 (Ex. 1) § 102(b)(3)(B); S. 264 (Ex. 2) § 3(b)(4). Because the Acts
would extend to all DACA recipients and virtually all immigrants eligible for DACA, passage of
either Act would virtually entirely moot Plaintiffs’ case. For that reason, the Court should allow
Congress more time to act before it issues a ruling that may soon be mooted or vacated by the
political branches.
Plaintiffs’ arguments at the March 30, 2021, status conference in favor of the Court taking
immediate action are unavailing. First, although the Acts in their current form would not apply to
a very small subset of individuals eligible for DACA, the Acts do apply to all current DACA
recipients, profoundly changing the nature of Plaintiffs’ case and the Court’s analysis. Plaintiffs’
argument that DACA violates substantive law depends fundamentally on the size of the immigrant
population eligible for DACA. See, e.g., Dkt. 486 at 41–44 & n.6. The Fifth Circuit’s decision
regarding the lawfulness of Deferred Action for Parents of Americans and Lawful Permanent
Residents (“DAPA”) in Texas v. United States, 809 F.3d 134, 170, 180–85 (5th Cir. 2015) (“Texas
DAPA”), likewise relied significantly on DAPA’s size to distinguish it from other historical
4 Compare Dkt. 400-7, Ex. 36 at 1, with H.R. 6 (Ex. 1) § 102(b)(1)(D); S. 264 (Ex. 2) § 3(b)(1)(D). At the March 30, 2021, status hearing, Plaintiffs also suggested that the Acts’ “persecution bars,” H.R. 6 (Ex. 1) § 102(b)(1)(C)(ii); S. 264 (Ex. 2) § 3(b)(1)(C)(ii), and “timing requirements” demonstrate that the Acts and DACA do not perfectly overlap. Plaintiffs are incorrect. Individuals excluded by the Acts’ persecution bars are also likely not eligible for DACA, first because DACA recipients came to the United States before reaching the age of sixteen, and second because DACA does not include, among those who are eligible for an exercise of prosecutorial discretion, individuals who “pose[] a threat to national security or public safety.” Dkt. 400-7, Ex. 36 at 1. Moreover, it is unlikely that an agency official would exercise discretion to grant removal-forbearance to someone who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” H.R. 6 (Ex. 1) § 102(b)(1)(C)(ii); S. 264 (Ex. 2) § 3(b)(1)(C)(ii); see also Dkt. 215 at 25 (“the supervisors and I also like to jokingly say that our standard is whether or not you would want to live next door to the person”) (citation omitted). And, as explained below, see note 6, any individual who satisfies DACA’s continuous presence requirement would also satisfy the Acts’ timing requirements.
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examples of deferred action and to conclude that DAPA exceeded DHS’s discretion to exercise individualized prosecutorial discretion. And this Court has also previously suggested that its analysis of DACA’s lawfulness could change if DACA affected fewer immigrants. See Dkt. 319 at 85–86. As a result, as the population of immigrants eligible for protection under DACA but not one of the Acts approaches zero, the legal questions in this case would change. Second, passage of either of the Acts is not as unlikely as Plaintiffs would have the Court believe. Under the doctrine against legislative entrenchment, any supermajority requirement for TPS-related legislation is invalid, as previous Congresses cannot lawfully bind the current Congress. In any event, Congress could address any TPS-related issues in separate legislation carved off from the Acts.
Because a legislative solution is on the horizon and because the passage of either Act (or similar legislation) would moot Plaintiffs’ case altogether or would require Plaintiffs to dramatically reframe—and the Court to reconsider—their arguments about DACA’s lawfulness, it would be premature and inefficient for the Court to rule on Plaintiffs’ Motion for Summary Judgment now.
1. The Acts would cover all DACA recipients and nearly all individuals eligible for DACA.
Like an immigrant’s eligibility for adjustment of status under the Acts, an immigrant’s eligibility for an exercise of prosecutorial discretion under DACA generally turns on the immigrant’s date of entry to the United States; age at entry; educational achievements; and compliance with the law. Compare H.R. 6 (Ex. 1) § 102(b)(1) and S. 264 (Ex. 2) § 3(b)(1), with Dkt. 400-7, Ex. 36 at 1. DACA, however, generally imposes stricter eligibility requirements than either of the Acts. To be eligible for DACA, an immigrant must have entered the United States at
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a younger age,5 been continuously present in the United States for a longer period of time,6
achieved a similar set of educational or career milestones,7 and avoided committing an even
broader set of crimes.8 As a result, a broader set of immigrants would be eligible under the Acts
as compared to DACA, and nearly all immigrants who satisfy DACA’s general eligibility
requirements for an exercise of prosecutorial discretion would also satisfy the general eligibility
requirements for adjustment of status under the Acts.9 Indeed, whereas approximately 700,000
immigrants have received DACA, see Regents, 140 S. Ct. at 1901, the Migration Policy Institute
estimates that approximately 3 million immigrants would qualify for conditional permanent
resident status under H.R. 6 (and 2 million would be eligible under S. 264), and almost 1.1 million
more immigrants (or 1 million more under S. 264) could become eligible by enrolling in school.10
5 Compare Dkt. 400-7, Ex. 36 at 1 (under the age of sixteen), with H.R. 6 (Ex. 1) § 102(b)(1)(B) (eighteen or younger), and S. 264 (Ex. 2) § 3(b)(1)(B) (younger than eighteen). 6 Compare Dkt. 400-7, Ex. 36 at 1 (continuous residence since June 15, 2007, and present in the United States on June 15, 2012), with H.R. 6 (Ex. 1) § 102(b)(1)(A) (continuous presence since January 1, 2021), and S. 264 (Ex. 2) § 3(b)(1)(A) (continuous presence since four years before Act’s enactment). 7 Compare Dkt. 400-7, Ex. 36 at 1 (currently in school; graduated from high school or obtained GED; or honorably discharged veteran), with H.R. 6 (Ex. 1) § 102(b)(1)(D) (admitted to institution of higher education or career and technical education school at the postsecondary level; obtained a high school diploma, GED, secondary-level career and technical education credential or certificate, or recognized postsecondary credential; or enrolled in secondary school or an education program assisting students in obtaining one of the foregoing credentials, certificates, or diplomas), and S. 264 (Ex. 2) § 3(b)(1)(D) (admitted to an institution of higher education; earned a high school diploma, GED, or commensurate award; or enrolled in secondary school or education program assisting students in obtaining one of the foregoing diplomas or commensurate credentials). 8 Compare Dkt. 400-7, Ex. 36 at 1 (immigrant must not have been convicted of a felony offense; a significant misdemeanor offense; or multiple misdemeanor offenses), with H.R. 6 (Ex. 1) § 102(c) (excluding minor traffic offenses and immigration offenses, and subject to waivers for certain misdemeanors, immigrant must not have been convicted of any felony offense, three or more misdemeanor offenses (excluding certain cannabis-related offenses), or most misdemeanor offenses of domestic violence), and S. 264 (Ex. 2) § 3(b)(1)(C)(iii) (immigrant must not have been convicted of any non-immigration offense punishable by a maximum term of imprisonment of more than 1 year or three or more non-immigration offenses on different dates and imprisoned for an aggregate of 90 days or more). 9 An immigrant who has been honorably discharged from the Coast Guard or Armed Forces but has not obtained a high school diploma or GED and is not enrolled in school is eligible for DACA but does not satisfy the general eligibility requirements under the Acts. Compare Dkt. 400-7, Ex. 36 at 1, with H.R. 6 (Ex. 1) § 102(b)(1)(D) (eligibility limited to certain educational achievements or enrollments), and S. 264 (Ex. 2) § 3(b)(1)(D) (same). 10 See The Dream Act: An Overview, American Immigration Council (Mar. 16, 2021), https://www.americanimmigrationcouncil.org/research/dream-act-overview.
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The population of immigrants eligible for adjustment of status under the Acts thus not only almost entirely overlaps with the population of individuals eligible for DACA, but estimates show that the Acts would materially expand that population.
Moreover, the Acts make current DACA recipients eligible for an adjustment of status specifically because they are DACA recipients. If the Senate Bill becomes law, for example, DHS will be required to “cancel the removal of, and adjust to the status of an [immigrant] lawfully admitted for permanent residence on a conditional basis” any immigrants who received and remain eligible for DACA. S. 264 (Ex. 2) § 3(b)(4).11 Thus, if either Act becomes law, all DACA recipients and nearly all individuals eligible for DACA will receive legislative protection.
2. A drastic reduction in DACA’s scope would present a very different substantive question in light of the even closer analogy to historical examples of deferred action.
Even if passage of either of the Acts does not entirely moot the case, the pending legislative action still counsels against the Court making a substantive decision about DACA’s legal merits now. As DACA’s size narrows, the claim that Texas DAPA controls this case becomes ever more unfounded. Indeed, the Executive Branch has long used deferred action to de-prioritize the removal of certain immigrant groups, see, e.g., Dkt. 504 at 4–5 (collecting cases and examples); Dkt. 224 at 2–3 & n.1 (same), but throughout this case, Plaintiffs have urged the Court to disregard those historical exercises of deferred action by arguing that the previous policies were interstitial in nature and smaller in size. Dkt. 486 at 43–44 & n. 6. Plaintiffs’ argument derives from the Fifth Circuit’s opinion in Texas DAPA, which distinguished DAPA from the Executive Branch’s previous deferred-action policies because those policies were interstitial to statutory schemes and because they did not apply to millions of immigrants, as DAPA did. See 809 F.3d at 184–85. In
11 Similarly, under the House Bill, the Secretary of Homeland Security will be required to “establish a streamlined [application] procedure” for immigrants who received and remain eligible for DACA. H.R. 6 (Ex. 1) § 102(b)(3)(B).
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its decision denying Plaintiffs’ Motion for a Preliminary Injunction, this Court expanded the Fifth Circuit’s reasoning to DACA. See Dkt. 319 at 86–90. In the Court’s view, unlike DACA, the “Family Fairness” policies of 1987 and 1990 were interstitial because “the policies’ purpose was to delay prosecution until Congress could enact legislation providing the same benefits.” Id. at 89. DACA’s size also played a significant role in the Court’s analysis: “The 1.5 million people DACA would permit to receive lawful presence and work authorization are still too numerous to fit into the individualized notion of deferred action that courts have found permissible in other contexts. Over a million individuals is still an outsized number, and it remains outside the authority of the agency to defer action for this many people.” Id. at 86.
Passage of either of the Acts or similar legislation would thus fundamentally change the substantive issue facing the Court. First, although a small portion of individuals eligible for DACA may not receive legislative protection under the Acts, either proposed Act would drastically reduce DACA’s size. As a result, even if the Court holds now that a deferred-action policy that applies to“[o]ver a million individuals is . . . outsized . . . and outside the authority of the agency,” Dkt. 319 at 86, the Court would need to revisit this conclusion if DACA applies to significantly fewer immigrants after Congress legislates. Second, as legislative momentum continues to increase, DACA today plays a role similar to that of the Family Fairness policies of 1987 and 1990, as its purpose is increasingly “to delay prosecution until Congress [can] enact legislation providing the same benefits.” Dkt. 319 at 89. As a result, if the Court decides Plaintiffs’ challenge to DACA under Texas DAPA now, it will likely need to revisit its analysis later. Because of this uncertainty—and because any substantive decision the Court makes now may soon be moot—the Court should allow the ongoing legislative process to continue.
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3. Plaintiffs exaggerate the supposed procedural hurdles preventing the Acts’ passage.
During the March 30, 2021, status conference, Plaintiffs erroneously suggested that the Acts would need a supermajority to pass the Senate because, in addition to granting lawful permanent residence to all (Senate Bill) or nearly all (House Bill) DACA recipients, they also grant lawful permanent residence to immigrants with TPS. See 8 U.S.C. § 1254a(h) (requiring a supermajority in the Senate to approve an adjustment to lawful resident status for any immigrant with TPS); see also H.R. 6 (Ex. 1) § 102(b)(1) (making immigrants with TPS who satisfy other criteria eligible for an adjustment of status); S. 264 (Ex. 2) § 3(b)(1) (same). If the TPS supermajority requirement did actually bind this Congress and stand as an obstacle to Congress’s passage of either Act, Congress could avoid it by granting lawful permanent residence to DACA recipients in one bill and granting lawful permanent residence to immigrants with TPS in another, separate bill. Congress need not do so, however, because the purported supermajority requirement violates the well-established preference against legislative entrenchment and in favor of the legislature’s “last in time” expression, and it should not influence this Court’s analysis.
Specifically, as the Supreme Court of the United States has made clear, under the centuriesold principle of parliamentary sovereignty, “one legislature may not bind the legislative authority of its successors.” United States v. Winstar Corp., 518 U.S. 839, 872 (1996) (citing Blackstone, Commentaries on the Laws of England 90 (1765)). According to this rejection of legislative entrenchment, “a general law may be repealed, amended or disregarded by the legislature which enacted it, and is not binding upon any subsequent legislature.” Id. (citation, alterations omitted). The TPS supermajority rule, which Plaintiffs argue a past Congress enacted specifically to limit this Congress’s actions, should thus not influence this Court’s decisionmaking. If Congress were to pass either of the Acts with a majority in the House and a majority in the Senate and the President
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were to sign it, under the Constitution, the Act would become law, despite the conflicting clause in the earlier-enacted supermajority provision in the Immigration and Nationality Act. See U.S. Const. art. I, § 7. Indeed, when two statutory provisions conflict, as either of the Acts would in part with 8 U.S.C. § 1254a(h) if passed as currently drafted, such subsequent Act, i.e., “the conflicting provision which is last in time or last in order of arrangement[,] prevails.” Inter-Cont’l Promotions, Inc. v. MacDonald, 367 F.2d 293, 301 (5th Cir. 1966).
Without this supposed procedural hurdle impeding the Acts’ passage, the Court should be even more hesitant to issue a decision that Congress may wholly moot or require the Court to substantially reconsider in the near future.
B. DHS’s Intent to Issue a Notice of Proposed Rulemaking Further Counsels in Favor of Waiting to Rule
As Federal Defendants recently revealed, in the next several months, “the Department of Homeland Security . . . intends to issue a Notice of Proposed Rulemaking proposing a new regulation concerning Deferred Action for Childhood Arrivals (DACA).” Dkt. 563. Because DHS’s forthcoming rule “to preserve and fortify DACA,” Dkt. 550-1, would also fully or substantially moot Plaintiffs’ suit, the Court should delay ruling on DACA’s merits.
Plaintiffs cannot seriously dispute that DHS could cure DACA’s purported procedural flaws if the rulemaking process set in motion by the agency’s forthcoming action complies with the Administrative Procedure Act’s requirements for notice-and-comment rulemaking. See 5 U.S.C. § 553. And, while Plaintiffs assert—without even seeing DHS’s new proposed rule—that it will inevitably fail to cure DACA’s supposed substantive flaws, nothing prevents DHS or any other agency from fixing any alleged substantive issues through a new or revised rule. E.g., Shands Jacksonville Med. Ctr., Inc. v. Azar, 366 F. Supp. 3d 32 (D.D.C. 2018), aff’d, 959 F.3d 1113 (D.C. Cir. 2020) (finding that a new agency rule issued in response to the court’s remand without vacatur
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was valid). Furthermore the Supreme Court of the United States recently made clear in Regents that it
disagrees with Plaintiffs’ position that DHS is powerless to remedy DACA’s supposed flaws, stating instead that “DHS has considerable flexibility in carrying out its responsibility.” 140 S. Ct. at 1914. The Court indicated, for example, that DHS could issue a rule “instruct[ing] immigration officials to give salient weight to any reliance interests engendered by DACA when exercising individualized enforcement discretion.” Id. The Supreme Court would not have expressed such deference to DHS or explained the “flexibility” that DHS has with respect to DACA if any solution DHS reached would inevitably be unlawful. Instead, far from concluding that no form of removalforbearance could pass muster, the Supreme Court held that DHS has myriad options. See id. at 1914–15; see also id. at 1912 (“continuing forbearance remain[s] squarely within [DHS’s] discretion”). In light of the Supreme Court’s clear guidance that—absent congressional action— DHS is the appropriate party to resolve DACA’s future, it would be premature for this Court to decide that Plaintiffs inevitably will raise the same objections to DHS’s forthcoming rule or that such objections would have any merit. See B.J. Alan Co., Inc. v. ICC, 897 F.2d 561, 562 n.1 (D.C. Cir. 1990) (“[a]dministrative reconsideration is a more expeditious and efficient means of achieving adjustment of agency policy than is resort to the federal courts” (quoting Pennsylvania v. ICC, 590 F.2d 1187, 1194 (D.C. Cir. 1978)).12
Indeed, DHS’s new rule could make even more explicit the discretionary criteria and judgments agency adjudicators already apply in practice, or it could require DHS personnel to
12 See also U.S. House of Representatives v. Burwell, No. 16-5202, Dkt. 1649251 (D.C. Cir. Dec. 5, 2016) (Ex. 3) (granting opposed motion to hold appeal in abeyance pending Presidential transition in challenge to agencies’ implementation of the Patient Protection and Affordable Care Act); California v. U.S. Env’t Prot. Agency, No. 081178, Dkt. 1167136 (D.C. Cir. Feb. 25, 2009) (granting EPA’s motion to hold case in abeyance pending agency’s reconsideration of the challenged agency action) (Ex. 4).
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establish standard operating procedures that even more clearly establish the adjudicators’ use of discretion. See Dkt. 504 at 43–45 (presenting evidence of officials’ discretion); Dkt. 224 at 40–45 (same). If DHS’s new rule does further emphasize agency officials’ already significant discretion, the discretion-related evidence the Court previously found equivocal would cut even more significantly against Plaintiffs and in favor of finding DACA substantively lawful. See Dkt. 504 at 41–45 (arguing that evidence of discretionary, case-by-case adjudication makes DACA lawful); Dkt. 224 at 40–45 (same); Dkt. 319 at 102 (holding, at preliminary injunction stage, that “Plaintiff States have not clearly shown an absence of discretion”). DHS’s rulemaking might also revise other aspects of DACA, restricting or expanding its criteria or scope in light of public comments and further agency deliberation. Furthermore, DHS deserves an opportunity to explain how the version of DACA that emerges from notice-and-comment rulemaking comports with the Immigration and Nationality Act. See N. Air Cargo v. U.S. Postal Serv., 674 F.3d 852, 861 (D.C. Cir. 2012) (declining to vacate decisions of the U.S. Postal Service and observing that “we think it at least likely—in light of the deference we owe to the Postal Service’s interpretations of the Act—that on remand, the Postal Service will be able to advance reasonable interpretations of the provisions at issue”). Rather than attempt to plant its flag on shifting terrain, the Court should wait for DHS’s notice-and-comment rulemaking to take its course. Only by allowing that process to play out will the Court guarantee that its ruling will not be overtaken by subsequent events.
Because DHS’s forthcoming rule could thus moot (or at the very least require a new analysis of) both Plaintiffs’ procedural and substantive challenges to DACA, the Court should avoid issuing a ruling on the merits while DHS actively makes the “important policy choices” the Supreme Court instructed it to make. See Regents, 140 S. Ct. at 1910. Furthermore, given the six years Plaintiffs waited to challenge DACA, it would not be unreasonable for this Court to wait
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several months in order to ensure that its ultimate decision on DACA’s merits is not immediately mooted. See Dkt. 319 at 108–09 (finding no “impediments suggested or convincing reasons given for the fact that the Plaintiff States waited almost six years to file this suit”).
C. To the Extent the Acts or a New DHS Rule Would Not Moot the Case Entirely, Either Would Significantly Impact Plaintiffs’ Standing, a Key Threshold Issue in this Litigation.
Plaintiffs’ theory of standing relies on the argument that, because DACA affects a relatively large population, Plaintiff States have probably suffered some redressable injury—even though they still have been unable to identify it. Yet, the Acts cover all DACA recipients, and as the population of immigrants without DACA who are eligible for DACA’s protection but not covered by one of the Acts approaches zero, Plaintiffs’ hypothetical theories of injury become even more speculative. DHS’s forthcoming rulemaking might also affect Plaintiffs’ tenuous and unproven standing argument in unpredictable ways by changing DACA’s criteria or scope. As a result, the Court should not decide whether Plaintiffs have standing now based on hypotheticals and probabilities that may soon change significantly.
To the extent there are a very limited number of immigrants eligible for but without DACA who would be ineligible for adjustment of status under the Acts, passage of either of the Acts would nonetheless fundamentally alter the case by making Plaintiffs States’ argument as to standing even more speculative. As the Perez Defendant-Intervenors have explained, Plaintiffs have never been able to show actual harm caused by DACA recipients. See, e.g., Dkt. 504 at 19 & n.5; Dkt. 532 at 3–11. Instead, Plaintiffs have relied only on hypotheticals and assumptions to advance their novel theories of standing. See Dkt. 504 at 28–31 (explaining flaws in Plaintiffs’ labor-market theory of standing); id. at 18–24 (explaining flaws in Plaintiffs’ social-services expenditures theory of standing). These hypotheticals and assumptions fundamentally rely on the law of large numbers: Because, Plaintiffs say, DACA “infus[es] the job market with hundreds of
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thousands of additional workers who compete with Plaintiff States’ legal residents for jobs,” some employer somewhere must have hired a DACA recipient rather than a United States citizen, see Dkt. 486 at 26—even though Plaintiffs have consistently failed to identify even a single such worker. See Dkt. 532 at 8–11. Likewise, because of the number of DACA recipients, Plaintiffs say, some Plaintiff State must have spent some money on some DACA recipient somewhere, see Dkt. 486 at 27–28—even though not a single one of the States’ witnesses has been able to identify such an expenditure or to show that any DACA recipient would “self-deport” if DACA ended. See Dkt. 504 at 18–24 & n.5.
If either of the Acts becomes law, Plaintiffs’ use of hypothetical injuries to support their novel theories of standing would be even more speculative and unfounded. DHS’s forthcoming rulemaking could change the DACA-eligible population in similar and unpredictable ways, adding further uncertainty to Plaintiffs’ already hypothetical injuries. These hypotheticals are insufficient to support standing in any event. Moreover, the fewer the number of individuals eligible for (but without) DACA who are not granted adjustment of status by Congress or covered by DHS’s new rule, the more unlikely it is that one of those individuals, should they receive DACA, would outcompete a United States citizen for a job, incur social services expenditures, or “self-deport” if DACA ended. As the number of DACA-eligible individuals not otherwise protected from removal reaches or approaches zero, the hypothetical possibility that DACA causes Plaintiff States any redressable harm thus becomes ever-more negligible.
In Texas DAPA, the court expressed this basic logic as a legal principle: when a state’s theory of standing (like Plaintiff States’ theory here) depends on the state hypothetically increasing expenditures on immigrants, the size of the immigrant population matters. See 809 F.3d at 161– 62. In Texas DAPA, Texas was able to establish standing based on unproven state expenditures
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only because of the large number of DAPA recipients potentially eligible for a driver’s license. See id. Texas DAPA is inapposite to the current posture of this case, given that here—unlike in Texas DAPA—Plaintiffs have disavowed any theory of standing based on driver’s license costs. See Dkt. 319 at 35; see also Dkt. 105 at 3. Nonetheless, Texas DAPA’s reasoning underscores the basic point that, where a plaintiff’s theory of standing depends on a hypothetical probability that it suffered harm, that probability is negligible and insufficient to support standing where the relevant population is also negligible.
As a result, under Texas DAPA, even in the event that the Acts would not moot Plaintiffs’ case entirely, the passage of either Act would significantly alter the Court’s standing analysis. Plaintiffs’ standing theories have, until now, depended on the hypothetical effects of populations in the hundreds of thousands. With the passage of either of the Acts, Plaintiffs would have to account for the fact that Congress will have granted the vast, vast majority of individuals eligible for DACA and all current DACA recipients lawful permanent residence. This means Plaintiffs’ supposed harm would inevitably further dwindle, requiring the Court to reassess Plaintiffs’ standing. The effects of DHS’s future rulemaking could be equally disruptive to Plaintiffs’ theories of injury. Thus, if the Court finds that Plaintiffs have standing now, that holding would very likely be moot and vacated on appeal if DHS promulgates a new rule or one of the Acts becomes law.
D. If the Court Is Determined to Rule Now, It Should Remand DACA to DHS without Vacating It
The pending Acts and DHS’s forthcoming Notice of Proposed Rulemaking counsel against the Court issuing a ruling now. However, if the Court is inclined to reach DACA’s merits and find it invalid, the Court should remand DACA back to DHS without vacatur. Remand without vacatur is an appropriate remedy, even where, as Plaintiffs allege, a rule suffers from serious shortcomings.
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And, despite Plaintiffs’ protestations to the contrary at the March 30, 2021, status hearing, remand without vacatur is an available remedy. Each of the relevant factors—as well as the Supreme Court’s decision in Regents and this Court’s decision denying Plaintiffs’ Motion for a Preliminary Injunction—counsels in favor of remand without vacatur.
Plaintiffs cannot seriously dispute that the Fifth Circuit has endorsed remand without vacatur in Administrative Procedure Act cases. As recognized in this Circuit and others, vacatur is inappropriate when (1) there is a “serious possibility that the [agency] will be able to substantiate its decision” or (2) “vacating would be ‘disruptive.’” Cent. & S.W. Servs., Inc. v. U.S. Env’t Prot. Agency, 220 F.3d 683, 692 (5th Cir. 2000) (citation omitted); see also Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993). Moreover, remand without vacatur is not limited to allowing agencies to remedy procedural defects. Instead, courts have remanded agency actions based on both their procedural and substantive defects. For instance, in Shands Jacksonville Medical Center v. Burwell, the court remanded without vacating a rule about which plaintiffs complained of both procedural and substantive flaws. 139 F. Supp. 3d 240, 267– 71 (D.D.C. 2015). By way of another example, in California Communities Against Toxics v. U.S. Env’t Prot. Agency, the Ninth Circuit found that an EPA rule was invalid due to serious substantive flaws in the agency’s reasoning. 688 F.3d 989, 993–94 (9th Cir. 2012). However, that court determined that the consequences of revoking the rule would be “severe” and thus warranted remand without vacatur. See id.13 Remand without vacatur is also particularly appropriate where the agency is in the process of revising the rule at issue and vacatur would cause disruptive consequences in the administrative process. See Texas v. U.S. Env’t Prot. Agency, 389 F. Supp.
13 See also N. Air Cargo, 674 F.3d at 861 (remanding “for a complete and authoritative agency interpretation” of an ambiguous statute, which could resolve claims that the agency had exceeded its statutory authority).
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3d 497, 506 (S.D. Tex. 2019) (“[T]he Court finds that remand is the best remedy here as it will facilitate the Agencies’ active attempts to improve on their work[.]”); Georgia v. Wheeler, 418 F. Supp. 3d 1336, 1382 (S.D. Ga. 2019) (granting remand without vacatur where “an order vacating the Rule may cause disruptive consequences to the ongoing administrative process”).
As Defendant-Intervenors have previously explained, the same two-factor Allied-Signal test embraced by this Circuit and applied by the district court in Shands Jacksonville Medical Center and the Ninth Circuit in California Communities Against Toxics counsels in favor of remand without vacatur here. First, there is a significant likelihood that DHS will be able to address any flaws with DACA. Indeed, as described above, see Part IV.B, DHS is already in the process of preparing a Notice of Proposed Rulemaking regarding DACA. Plaintiffs’ request to vacate DACA while DHS is in the process of addressing it defies logic. It also defies the Supreme Court’s unambiguous directive in Regents: there, the Supreme Court determined that the Attorney General’s lawfulness determination did not absolve DHS of the discretion it was obligated to exercise regarding DACA’s future. See, e.g., 140 S. Ct. at 1914. The Supreme Court also instructed DHS to consider DACA recipients’ and others’ profound reliance interests in DACA when fashioning a remedy. See id. And as both the Supreme Court and this Court have emphasized, those reliance interests are best assessed and balanced by the political branches. See id.; Dkt. 319 at 5–6, 117. Therefore, should this Court determine to rule on DACA’s merits now, and if it concludes that DACA is unlawful, it should remand DACA to DHS so that the agency can continue to amend DACA.
Second, the “disruptive consequences” of vacatur would be devastating to individual DACA recipients, their communities, and the public interest in general. At the preliminary injunction stage, this Court correctly found that rescinding DACA would harm governments that
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“lose residents whom they consider to be valuable members of their communities or employees who are integral to various schools, municipalities, and industries.” Dkt. 319 at 113–14. These reliance interests have only grown stronger with the passage of time and become more acute as DACA recipients have helped states and communities respond to COVID-19. DACA recipients are deeply integrated into their communities: they help support their families, provide vital economic contributions through taxes, and own small businesses. See, e.g., Dkt. 504-2, Ex. 18 ¶ 3; Dkt. 504-3, Ex. 26 ¶ 4. New Jersey DACA recipients, for example, contribute an estimated $18.7 million per year in state income tax receipts. Dkt. 215-1, Ex. 7 ¶ 7. DACA recipients furnish services and advocacy to other vulnerable populations. See, e.g., Dkt. 504-2, Ex. 17 ¶ 5; id., Ex. 18 ¶ 5; id., Ex. 19 ¶¶ 3–6, 13; id., Ex. 21 ¶¶ 3, 8–9. And DACA recipients continue to work in health care organizations to alleviate the pressures of the COVID-19 pandemic. See, e.g., id., Ex. 20 ¶ 3–4, 6. In New Jersey, for instance, DACA recipients include doctors, critical workers conducting registration at COVID testing sites, and individuals performing site visits for distressed homes as part of New Jersey’s Division of Child Protection and Permanency. See Dkt. 502 at 45– 46; Dkt. 502-2, Ex. 12; id., Ex. 19 ¶¶ 6, 9, 11; id., Ex. 20 ¶¶ 4, 5–9.
DACA’s vacatur would undoubtedly disrupt DACA recipients’ lives and send shock waves through their communities, at exactly the time that the United States is starting to emerge from the pandemic. As a specific example, New Jersey previously explained at the preliminary injunction stage that the State relies on its DACA-recipient residents in a number of ways and would be substantially harmed were this Court to vacate the 2012 Memo. See Dkt. 215 at 9, 41–46. DACA recipients are valued employees at New Jersey’s government agencies and public universities. Dkt. 215-1, Ex. 8; id., Ex. 13. Approximately 2,200 DACA-recipient students attend New Jersey public colleges and universities, which would be harmed by the loss of these motivated students and their
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diverse life experiences, not to mention tuition revenue, if they could not afford to continue their studies due to losing work authorization. Id., Ex. 3; id., Ex. 26. Approximately 55% of DACA recipients have employer-sponsored health care, id., Ex. 6 ¶¶ 46–47, and would likely be eligible for state-funded healthcare or have to receive uncompensated care if they lost their jobs, resulting in increased public health spending of approximately $7.6 million annually. Id. ¶ 57. And as New Jersey noted in its Opposition to Plaintiffs’ Motion for Summary Judgment, companies in the United States have made hiring, recruiting, and organizational decisions in reliance on DACA. The ongoing legislative and executive actions focused on DACA only underscore the needless disruption that vacatur would cause; if this Court vacates DACA, DACA recipients may upend their families, communities, careers, and educations only for an action by the political branches to moot this Court’s decision mere months later. The second Allied-Signal factor aims to prevent exactly this type of profound harm and immediate, avoidable disruption.
Even if the Court finds that only the latter Allied-Signal factor supports remand (and, to be clear, both do), the Court nonetheless retains the discretion to balance the equities and order remand without vacatur. Courts can and have opted to remand deficient rules back to the agency without vacatur solely because of vacatur’s potentially devastating consequences. See, e.g., North Carolina v. U.S. Env’t Prot. Agency, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (despite serious flaws in rule, remanding without vacatur where vacatur would have had significant disruptive consequences); see also Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 653 F.3d 1, 8, 11 (D.C. Cir. 2011) (remand without vacatur appropriate because “vacating the . . . rule would severely disrupt an essential security operation”). Remand is particularly appropriate where “[t]he egg has been scrambled and there is no apparent way to restore the status quo ante.” Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002); see also Dkt. 319 at 115 (denying
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Plaintiffs’ motion for a preliminary injunction because “[h]ere, the egg has been scrambled”). To vacate DACA now would upend the status quo, causing unnecessary and harmful social and economic whiplash for DACA recipients, their communities, and their families, who anticipate a more permanent political solution in the near future. Thus, if the Court chooses to rule on DACA’s merits now and finds that DACA violates the APA, it should remand DACA to DHS without vacatur, thereby allowing the political branches’ momentum to continue unimpeded and DACA recipients’ lives to continue without needless disruption.14 V. CONCLUSION
For the foregoing reasons, Defendant-Intervenors respectfully request that the Court allow the political processes to continue to play out and defer a decision on DACA’s merits until either of the Acts has become law or, should it become apparent that neither Act will become law, DHS has completed its rulemaking process discussed above. Should the Court determine to act now and find that DACA is unlawful, Defendant-Intervenors respectfully request that the Court remand DACA to DHS without vacatur.
[signature page follows]
14 If the Court nonetheless vacates DACA, any relief, including injunctive relief, granted to Plaintiffs should be stayed pending appeal. Moreover, the same considerable equities and public interests that weigh against vacating DACA likewise strongly counsel against granting an injunction. See Dkt. 502 at 42–48; Dkt. 504 at 46 n.15, 48–49. This is particularly true given that “any relief granted should be no broader than necessary to cure the effects of the [alleged] harm caused.” Roho, Inc. v. Marquis, 902 F.2d 356, 361 (5th Cir. 1990) (quoting Soltex Polymer Corp. v. Fortex Indus., 832 F.2d 1325, 1329 (2d Cir. 1987)); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (holding “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs”); Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 673 (5th Cir. 2000) (noting “rule that an equitable remedy should be no broader than the scope of the violation”). Here, not a single Plaintiff State has identified a public dollar spent on a DACA recipient, and no Plaintiff State has shown any injury flowing from labor market competition. See, e.g., Dkt. 532 at 1; Dkt. 504 at 19 & n.5.
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Dated: April 9, 2021

Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND By: _______/s/ Nina Perales (Tex. Bar No. 24005046); (SD of Tex. Bar No. 21127) Attorney-in-Charge 110 Broadway, Suite 300 San Antonio, Texas 78205 Phone: (210) 224-5476 Facsimile: (210) 224-5382 Email: nperales@maldef.org
ROPES & GRAY LLP Douglas H. Hallward-Driemeier 2099 Pennsylvania Ave NW Washington, DC 20006-6807 (202) 508-4600 (202) 508-4776 (direct dial) Douglas.HallwardDriemeier@ropesgray.com (admitted pro hac vice)
GARCÍA & GARCÍA, ATTORNEYS AT LAW P.L.L.C. Carlos Moctezuma García (Tex. Bar No. 24065265) (SD of Tex. Bar No. 1081768) P.O. Box 4545 McAllen, TX 78502 Phone: (956) 630-3889 Facsimile: (956) 630-3899 Email: cgarcia@garciagarcialaw.com
Attorneys for Perez Defendant-Intervenors

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By: ______/s/ MAYUR P. SAXENA Attorney-in-Charge Assistant Attorney General (Admitted pro hac vice) 124 Halsey St., 5th Floor Newark, New Jersey 07101 PO Box 45029-5029 Phone: (973) 648-3283 Fax: (973) 648-4887 Mayur.Saxena@law.njoag.gov Jeremy M. Feigenbaum, State Solicitor (Admitted pro hac vice) Melissa Medoway, Deputy Attorney General (Admitted pro hac vice) Tim Sheehan, Deputy Attorney General (Admitted pro hac vice) Attorneys for Defendant-Intervenor State of New Jersey
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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that, on April 9, 2021, I electronically filed the above and foregoing document using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
_______/s/_____ Nina Perales Attorney for Perez Defendant-Intervenors

 
 Case 1:18-cv-00068 Document 569 Filed on 04/09/21 in TXSD Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

STATE OF TEXAS, et al., Plaintiffs,
v. UNITED STATES OF AMERICA, et al.,
Defendants,1 and KARLA PEREZ, et al., and NEW JERSEY,
Defendant-Intervenors.

Case No. 1:18-cv-00068

FEDERAL DEFENDANTS’ SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR A STAY [ECF NO. 486]

1 Under Federal Rule of Civil Procedure 25(d)(1), the following individuals are automatically substituted as Defendants: Alejandro N. Mayorkas, Secretary of Homeland Security; Troy Miller, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection (CBP); Tae D. Johnson, Acting Director for U.S. Immigration and Customs Enforcement (ICE); Tracy Renaud, Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services (USCIS); Rodney S. Scott, Chief of the U.S. Border Patrol.

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TABLE OF CONTENTS STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT............................ 1 INTRODUCTION AND SUMMARY OF THE ARGUMENT ................................................ 1 ARGUMENT ........................................................................................................................ 3
I. Plaintiffs Lack Standing or a Viable Cause of Action to Challenge DACA. ....... 3 II. DACA Is Lawful. ............................................................................................ 6
A. DACA Is Substantively Lawful Under the INA. ........................................ 6 B. DACA Did Not Need to Go Through Notice-and-Comment Rulemaking. .11 III. DACA Does Not Violate the Take Care Clause. ..............................................14 IV. In the Alternative, the Court Should Craft a Narrow Remedy that Minimizes Disruption to DACA Recipients ......................................................................16 V. If This Court Grants Plaintiffs Immediate Relief, Then It Should Stay Its Ruling. ......................................................................................................................20 CONCLUSION ....................................................................................................................20
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TABLE OF AUTHORITIES Federal Cases Alfred L. Snapp & Son v. Puerto Rico,
458 U.S. 592 (1982)............................................................................................................. 4 Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n,
988 F.2d 146 (D.C. Cir. 1993) .............................................................................................17 Am. Great Lakes Ports Ass’n v. Schultz,
962 F.3d 510 (D.C. Cir. 2020) .............................................................................................17 Arpaio v. Obama,
27 F. Supp. 3d 185 (D.D.C. 2014) .................................................................................14, 15 Batalla Vidal v. Nielsen,
279 F. Supp. 3d 401 (E.D.N.Y. 2018) ................................................................................... 7 Block v. Cmty. Nutrition Inst.,
467 U.S. 340 (1984)............................................................................................................. 6 Campaign for S. Equality v. Bryant,
773 F.3d 55 (5th Cir. 2014) .................................................................................................20 Citizens to Preserve Overton Park,
401 U.S. 402 (1971)............................................................................................................13 Del. Dep’t of Nat’l Res. & Envt’l Control v. FERC,
558 F.3d 575 (D.C. Cir. 2009) .............................................................................................. 4 DHS v. Regents of the University of California,
140 S. Ct. 1891 (2020) .................................................................................................passim eBay Inc. v. MercExchange, LLC,
547 U.S. 388 (2006)............................................................................................................16 EPIC v. DHS, 653 F.3d 1, 5 (D.C. Cir. 2011)...........................................................................12 Florida Med. Ass’n. Inc. v. U.S. Dep’t of Health, Educ. & Welfare,
601 F.2d 199 (5th Cir. 1979) ................................................................................................ 5
Heckler v. Chaney, 470 U.S. 821 (1985)............................................................................................................15
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) .............................................................................................. 6
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K.P. v. LeBlanc, 627 F.3d 115 (5th Cir. 2010) ................................................................................................ 4
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014)............................................................................................................. 5
Lincoln v. Vigil, 508 U.S. 182 (1993)............................................................................................................11
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..........................................................................................................4, 5
Lynch Properties, Inc. v. Potomac Ins. Co. of Illinois, 140 F.3d 622 (5th Cir. 1998) ...........................................................................................1, 13
Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) ............................................................................................ 5
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) ...............................................................................................15
NAACP v. Trump, 298 F. Supp. 3d 209 ............................................................................................................. 9
Radio-Television News Directors Ass’n v. F.C.C., 184 F.3d 872 (D.C. Cir. 1999) .......................................................................................17, 18
Rais v. Holder, 768 F.3d 453 (6th Cir. 2014) ...........................................................................12
Regents of the University of California v. DHS, 908 F.3d 476 (9th Cir. 2018) ...........................................................................................7, 14
Regents of the University of California v. DHS, 279 F. Supp. 3d 1011 (N.D. Cal.) ........................................................................................10
Reliable Transfer Co. v. Blanchard, 145 F.2d 551 (5th Cir. 1944) ............................................16
Reno v. American-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471 (1999).................................................................................................... 3, 7, 15
Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) .............................................................................................14
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006)............................................................................................................... 4
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ......................................................................................................... 4
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Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002)...............................................................................................17
Texas Ass’n of Manufacturers v. United States Consumer Prod. Safety Comm’n, 989 F.3d 368 (5th Cir. 2021) ...............................................................................................17
Texas v. United States (Texas I), 809 F.3d 134 (5th Cir. 2015) ........................................................................................passim
Texas v. United States (Texas I), 86 F. Supp. 3d 591 (S.D. Tex. 2014)................................................................................4, 13
Texas v. United States, 352 F. Supp. 3d 665 (N.D. Tex. 2018) .................................................................................20
Thomas v. Bryant, 919 F.3d 298 (5th Cir. 2019) ...............................................................................................18
United States v. Armstrong, 517 U.S. 456 (1996)............................................................................................................14
United States v. Fausto, 484 U.S. 439 (1988)............................................................................................................. 6
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982)............................................................................................................16
Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020) .........................................................................................18, 19
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)............................................................................................................16
Federal Statutes 5 U.S.C. § 553(b)(3)(B) ..........................................................................................................11 5 U.S.C. § 702......................................................................................................................... 5 6 U.S.C. § 202(5) .................................................................................................................7, 8 8 U.S.C. § 1101(a)(15)............................................................................................................. 7 8 U.S.C. § 1103(a)................................................................................................................... 8 8 U.S.C. § 1103(a)(1) .............................................................................................................. 7 8 U.S.C. § 1103(a)(3) .........................................................................................................7, 11
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8 U.S.C. § 1154(a)(1)(D)(i)....................................................................................................... 7 8 U.S.C. § 1182(a)(9)(B)(ii) ....................................................................................................11 8 U.S.C. § 1182(a)(9)(B)(i) .....................................................................................................12 8 U.S.C. § 1182(a)(9)(C)(i)(I) .................................................................................................12 8 U.S.C. § 1182(d)(5)(A) ........................................................................................................12 8 U.S.C. § 1227(d)(2) .............................................................................................................. 7 8 U.S.C. § 1252 ....................................................................................................................... 6 8 U.S.C. § 1252(b)(9) .............................................................................................................. 6 8 U.S.C. § 1324a(h)(3)........................................................................................................8, 11 8 U.S.C. § 1611(b)(2) .............................................................................................................. 8 8 U.S.C. § 1611(b)(4) .............................................................................................................. 8 49 U.S.C. § 30301 ................................................................................................................... 7
Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. 109-13, 119 Stat. 231 ((2005) .......................................................... 7
DHS Appropriations Act 2010, Pub. L. No. 111-83, 123 Stat. 214 (2009).............................................................................15
Consol. Appropriations Act 2014, Pub. L. No. 113-76, div. F., Tit. II, 128 Stat. 5, 251 (2014) ...................................................15
Federal Regulations 8 C.F.R. § 1.3(a)(4)(vi) .......................................................................................................8, 11 8 C.F.R. § 212.5(f) .................................................................................................................12 8 C.F.R. § 214.14(d)(3)...........................................................................................................12 8 C.F.R. § 274a.12(c)(14) ...................................................................................................8, 11 28 C.F.R. § 1100.35(b)(2) .......................................................................................................12
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Federal Rules Fed. R. Civ. P. 25(d)(1) ........................................................................................................... 1 Fed. R. Civ. P. 56(c) ................................................................................................................ 1 Other Authorities Immigration and Naturalization Service; Control of Employment of Aliens,
52 Fed. Reg. 16,216 (May 1 , 1987) (codified at 8 C.F.R. Pts. 109 and 274a) ........................11 Immigration and Naturalization Service; Definition of the Term Lawfully Present in the United
States for Purposes of Applying for Title II Benefits Under Section 401(b)(2) of Public Law 104– 193, 61 Fed. Reg. 47,039 (Sept. 6, 1996) (codified at 8 C.F.R. Pt. 103) ........................11 Presidential Memorandum; Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), § 1, 86 Fed. Reg. 7053 (Jan. 25, 2021) ........................................................ 1, 2, 8, 9
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STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT Plaintiff States’ motion for summary judgment [ECF No. 486] challenges DACA as procedurally and substantively unlawful, raising both constitutional and Administrative Procedure Act (“APA”) claims. Plaintiffs request declaratory relief and an order prohibiting new DACA grants. Summary judgment is appropriate where “there is no genuine issue of material fact” and “the moving party is entitled to a judgment as a matter of law.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998) (citing Fed. R. Civ. P. 56(c)). The Court held a hearing on March 30, 2021, during which it permitted supplemental briefing on the motion by April 9.
INTRODUCTION AND SUMMARY OF THE ARGUMENT Since June 2012, the Deferred Action for Childhood Arrivals (“DACA”) policy has allowed over 700,000 individuals who arrived in the United States as children to contribute to society and the economy. These immigrants “have obeyed the law, and stayed in school or enliste d in the military.” Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), § 1, 86 Fed. Reg. 7053 (Jan. 25, 2021) (“Biden Mem.”). Lawfully exercising its enforcement discretion, the Department of Homeland Security (“DHS”) affords DACA recipients temporary forbearance from removal, making them eligible for work authorization and other benefits. DACA reflects the fact that Congress has not given DHS the resources to remove all 11 million noncitize ns in the United States who might be subject to removal, and the agency therefore must exercise discretion in deciding how to deploy its limited resources. The United States has long supported deferred action and now files this brief in defense of DACA. When this litigation began in 2018, the government was then in the process of rescinding the DACA policy. The Attorney General had concluded that the policy was unlawful in certain respects, and DHS had rescinded it on that basis. Consistent with that conclusion, the government previously agreed with Plaintiffs that, at least in some respects, the policy was unlawful. In DHS
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v. Regents of the University of California, 140 S. Ct. 1891 (2020), however, the Supreme Court held that DHS’s rescission of DACA was arbitrary and capricious under the APA. Following that decision, the Attorney General withdrew his determination that DACA was unlawful, and the United States now confirms its original position that DACA is lawful.
In furtherance of this lawful policy, President Biden has recently issued a presidential memorandum ordering the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.” Biden Mem. § 2. Those efforts—including forthcoming notice-and-comment rulemaking—are ongoing, and the government respectfully submits this Court should permit that process to continue unimpeded by any ruling on the 2012 DACA Memorandum.
Particularly in light of the substantial reliance interests recognized by the Supreme Court in Regents, the government urges this Court not to terminate DACA in any respect or to issue any final decision in this case. Plaintiffs do not disagree with the Executive’s “judgment that . . . immigrants” who qualify under DACA “should not be a priority for removal based on humanitarian concerns and other considerations,” or even that DACA recipients substantially bolster Plaintiffs’ own economies. Biden Mem., § 1; see ECF No. 529 at 17. It is thus unsurprising that Plaintiffs “are not seeking the immediate termination” of DACA. ECF No. 486 at 46; see ECF No. 529 at 20. Given Plaintiffs’ own recognition that immediate termination is not required, there is no urgency for this Court to issue a final decision concerning claims that may well be substantially affected by the ongoing efforts of a coordinate Branch.
Were this Court nonetheless to issue a decision at this time, it should deny Plaintiffs’ motion for summary judgment. DACA is substantively and procedurally valid. DACA is a lawful exercise of the Secretary’s broad statutory authorities under the Immigration and Nationality Act
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(INA). The Supreme Court has recognized and condoned the “regular practice” of the Executive Branch of according deferred action to individuals, as part of the “exercis[e] [of] enforcement discretion for humanitarian reasons or simply for its own convenience.” Reno v. American-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 483–84 (1999). DACA does not prevent the commencement of removal proceedings at the government’s discretion, and recipients gain no defense to removal. See ECF No. 400-7, Ex. 36 (Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 4 (June 15, 2012) (“DACA Mem.”)). The policy instead reasonably offers temporary forbearance to those individuals who all parties agree are among the lowest priorities for removal.
But even if the Court were to conclude that DACA is unlawful, it should afford DHS the opportunity on remand to correct any defects in the 2012 DACA Memorandum without vacating that memorandum and overturning the status quo in the meantime. Indeed, the Supreme Court has specifically held that, even if DACA is unlawful, DHS should still have “considerable flexibility in carrying out its responsibility” to address any concerns. Regents, 140 S. Ct. at 1914-15. Plaintiffs do not disagree. They contend that this Court should “provid[e] time”—and potentially two years—“for [DHS] to responsibly wind-down the program.” ECF No. 529 at 20. This Court need not trigger a substantial upheaval of the lives of hundreds of thousands of DACA recipients, their employers, their schools, and their communities by requiring DHS to end DACA immediately , and Plaintiffs have offered no reason for the Court to reach that disruptive result.
ARGUMENT I. Plaintiffs Lack Standing or a Viable Cause of Action to Challenge DACA.
The Court should deny Plaintiffs’ summary judgment motion because they lack Article III standing. Plaintiffs first assert parens patriae standing and standing based on their sovereign interests, but those theories have never been accepted by this Court, the Fifth Circuit, or the
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Supreme Court. See Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 610 n.16 (1982) (explaining that “[a] State does not have standing as parens patriae to bring an action against the Federal Government” on behalf of its citizens); Texas v. United States (Texas I), 86 F. Supp. 3d 591, 640 (S.D. Tex. 2014) (explaining, in response to standing assertion on the basis of sovereign interests, that “state standing by virtue of federal abdication is not well-established”); Texas v. United States (Texas I), 809 F.3d 134, 150 (5th Cir. 2015) (similar).2
Further, under any theory and even if the Court relies on the special solicitude accorded to States, Plaintiffs must demonstrate the irreducible Article III minima – an injury-in-fact that is fairly traceable to the challenged conduct. Spokeo,Inc. v. Robins,136 S. Ct. 1540, 1547–48 (2016). Injuries that are “hypothetical” or “conjectural” cannot establish standing. Id. And any “special solicitude” to States does not “eliminate the State [plaintiffs’] obligation to establish a concrete injury.” Del. Dep’t of Nat’l Res. & Envt’l Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009). Plaintiffs must establish causation and redressability, such that a “favorable decision will relieve a discrete injury” traceable to DACA. K.P. v. LeBlanc, 627 F.3d 115, 123 (5th Cir. 2010).
At summary judgment, Plaintiffs “can no longer rest on . . . mere allegations, but must set forth by affidavit or other evidence specific facts” that demonstrate their injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). It is inadequate for Texas to have asserted “some amount of costs,” unquantified “increased social services expenses,” or general “labor market distortions.” ECF No. 319 at 105 (emphasis added). As the Court recognized, “[m]ost of Texas’s own testimony
2 The Court previously reasoned that, because “two of the four DACA rescission cases included states as plaintiffs,” it is “difficult to conceive how states could have standing to challenge the rescission of the DACA program but not have standing to challenge its enactment.” ECF No. 319 at 47 n.46. As the government has consistently argued, those States were not appropriate plaintiffs to challenge DACA’s rescission either. Moreover, in those case, in those cases, States were not the sole plaintiffs—those claims were also brought by individual DACA recipients who had standing. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006).
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and evidence concerning DACA recipients is encompassed in much larger figures that relates to costs incurred by the State for all illegal aliens or for unaccompanied alien children.” Id. at 107. But at this stage, this “lesser level of precision and proof” is insufficient. Id. (citing Florida Med. Ass’n Inc. v. HEW, 601 F.2d 199, 203 n.2 (5th Cir. 1979)).
Despite DACA’s nine-year existence, Plaintiffs identify no increased costs associated with the policy. Plaintiffs assert that Texas spends over $250 million in social services each year on DACA recipients. See ECF No. 486 at 28. But there is no reason to think that those individua ls would realistically depart from the States or otherwise require fewer social services absent DACA. DACA applies to individuals (brought here as children) who were already “extremely unlikely to be deported,” and who would thus in all likelihood remain in this country anyway. DACA simply enables them to become more productive members of the States’ economies. See Secretary Jeh Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants 3 (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_me mo _prosecutorial_discretion.pdf. Moreover, it is impossible to assume that focusing removal efforts on DACA-eligible individuals rather than some other class of noncitizens (which is the result Plaintiffs seemingly suggest) would place the States in a better fiscal situation. As DefendantsIntervenors put it, “Plaintiffs have failed to establish that DACA recipients would leave their states, that social costs would decrease, or that U.S. citizens in the Plaintiff States would encounter increased job opportunities.” ECF No. 504 (MALDEF’s Brief in Support) at 24 (citations omitted).
Regardless, not only must Plaintiffs have Article III standing, they must be “aggrieved” under the “relevant statute” to satisfy the zone-of-interests requirement. 5 U.S.C. § 702; see Lexmark Int’l, Inc. v. Static Control Components, Inc.,572 U.S. 118, 129 (2014). Here, that means that States must be protected under a particular provision of the INA. See, e.g., Mendoza v. Perez,
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754 F.3d 1002, 1016 (D.C. Cir. 2014). No relevant statutory provision protects a State from resident noncitizens obtaining deferred action, work authorization, or potential eligibility for benefits. Though the Fifth Circuit found that Texas satisfied the zone-of-interests requirement because of the costs to States “to subsidize driver’s licenses or changing its statutes,” Texas I, 809 F.3d at 163, Defendants respectfully disagree that the INA protects those states interests, and Plaintiffs do not meaningfully renew those contentions here.
Tellingly, the INA only provides noncitizens an opportunity for judicial review of remova l policies, as part of its detailed review scheme. See 8 U.S.C. § 1252. Section 1252(b)(9) provides for review of removal actions and orders—including “policies-and-practices challenges,” J.E.F.M. v. Lynch, 837 F.3d 1026, 1035 (9th Cir. 2016)—only to “an alien” in removal proceedings. This detailed scheme for aliens is, in turn, “strong evidence that Congress intended to preclude [other plaintiffs] from obtaining judicial review.” United States v. Fausto, 484 U.S. 439, 448 (1988); cf. Regents, 140 S. Ct. at 1903, 1907 (permitting judicial review by “individual DACA recipients”). And it is thus “fairly discernible” from “the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved” that only noncitizens may challenge such policies as DACA. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345–47 (1984) (finding preclusion based on review scheme for “dairy handlers” but not “consumers”); see Fausto, 484 U.S. at 448 (precluding review based on “deliberate exclusion” of certain employees, and inclusion of others, in administrative and judicial review provisions). II. DACA Is Lawful.
A. DACA Is Substantively Lawful Under the INA. 1. Plaintiffs’ primary argument is that DACA is unlawful under the INA because the policy
“prevents the removal of individuals whom Congress has deemed removable” and thus “nullif[ies] the clear text of the INA.” ECF No. 486 at 44–45 (citing ECF No. 319 at 70). This is incorrect.
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Congress has granted the Secretary broad authority to establish “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 other laws relating to the immigration and naturalization of aliens,” 8 U.S.C. § 1103(a)(1). Congress has further provided that the Secretary “shall establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the [INA].” Id § 1103(a)(3). And Congress has repeatedly recognized the role of deferred action in DHS’s implementation of the INA. See id. §§ 1101(a)(15), 1154(a)(1)(D)(i), 1227(d); 49 U.S.C. § 30301 note.
DACA is a lawful, responsible exercise of the Secretary’s immigration authorities. The Supreme Court has recognized that the Secretary’s authority encompasses the “regular practice” of according deferred action to individuals, as part of the “exercis[e] [of] enforcement discretion for humanitarian reasons or simply for its own convenience.” AADC, 525 U.S. at 483–84; see, e.g., 8 U.S.C. §§ 1154(a)(1)(D)(i)(II), (IV) (endorsing deferred action and work permits for certain domestic violence victims and their children); id. § 1227(d)(2) (providing that “denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for . . . deferred action”). Congress also confirmed that deferred action is available, in enacting the REAL ID Act of 2005, which permits such noncitizens to obtain a driver’s license. Pub. L. 109-13, 119 Stat. 231, Div. B, § 202(c)(2)(B)(viii) (2005). Other federal courts have thus concluded that DACA is a lawful exercise of the Secretary’s broad immigration authority, including his undeniable discretion to defer enforcement against individuals who pose little risk to their communities and the country. See Regents of the University of California v. DHS, 908 F.3d 476, 506–10 (9th Cir. 2018), vacated in part and rev’d in part on other grounds, 140 S. Ct. 1891 (2020); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401, 422–27 (E.D.N.Y. 2018), vacated on other grounds, 140 S. Ct. 1891 (2020).
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The Supreme Court in Regents further confirmed that, because DHS is charged with “‘[e]stablishing national immigration enforcement policies and priorities,’” deferred action “remain[s] squarely within [DHS’s] discretion.” 140 S. Ct. at 1911–12 (quoting 6 U.S.C. § 202(5)). DACA represents the sensible judgment of the Executive Branch that “certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military” simply “should not be a priority for removal.” Biden Mem. § 1. Deferred action does not, as Plaintiffs principally claim, prevent removal: DACA recipients remain subject to removal proceedings at the government’s discretion, and gain no defense to removal. See DACA Mem. at 1. DACA simply integrates those individuals into the social and economic systems of their communities, their States, and the Nation, as opposed to forcing them to operate from the shadows.
Plaintiffs assert that DACA does not grant “only forbearance from removal.” ECF No. 529 at 7 (emphasis added). But Plaintiffs misunderstand the policy. Once a noncitizen has received deferred action, whether under DACA or otherwise, existing DHS regulations provide that the noncitizen may apply for work authorization, as deferred action recipients have been able to do for 40 years. See 8 U.S.C. §§ 1103(a), 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14); 46 Fed. Reg. 25,079, 25,081 (May 5, 1981). And further regulations promulgated pursuant to the INA make recipients of such deferred action eligible for certain state and federal benefits. See 8 U.S.C. § 1611(b)(2)– (4); 8 C.F.R. § 1.3(a)(4)(vi). None of those attendant benefits of deferred action is granted by the DACA policy itself nor distinguishes DACA from other grants of deferred action that Congress and the Supreme Court have long permitted. And DACA recipients may obtain those benefits only temporarily, as long as they qualify for deferred action. There is nothing novel about issuing
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“temporary relief” that also enables individuals who remain in the country “to support themselves and their families, and to contribute to our economy, while they remain.” Biden Mem. § 1.
2. Plaintiffs rely on the Fifth Circuit’s Texas I decision, but it has been significant ly undercut by the Supreme Court’s Regents decision. The Fifth Circuit held that the INA “cannot reasonably be construed as assigning decisions of vast economic and political significance, such as DAPA, to an agency.” Texas I, 809 F.3d at 184. In Regents, however, the Supreme Court observed that the Texas I decision focused extensively on the benefits, such as work authorization and Medicare, that DAPA recipients were eligible for as a result of their deferred action, but that the decision did not grapple with DHS’s authority to temporarily forebear from removing DAPA (or DACA) recipients. Regents, 140 S. Ct. at 1911–13. The Supreme Court both left open the possibility that the DACA policy is lawful in its current form, and noted, at a minimum, that nothing in the Fifth Circuit’s decision precluded DHS from retaining the forbearance aspect of the current policy. Id. Regents’s suggestion that the INA permits DHS to adopt a policy granting removal forbearance to hundreds of thousands of individuals (even without a means of gainful employment or access to health insurance) is exceedingly difficult to square with the Fifth Circuit’s basic holding that the INA precludes the DACA policy as it currently exists because it is an immigration policy of “vast economic and political significance.”
Nor does the Fifth Circuit’s DAPA analysis extend to this case. Texas I, 809 F.3d at 173 (“[A]ny extrapolation from DACA [to DAPA] must be done carefully.”). First, the Fifth Circuit found that DAPA contradicted specific INA provisions, including “the INA’s ‘intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.’” 809 F.3d at 179. However, “unlike DAPA, DACA has ‘no analogue in the INA,’” and thus “the Fifth Circuit’s statutory analysis is inapposite.” NAACP v. Trump, 298 F. Supp. 3d 209,
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238 (D.D.C. 2018) (cleaned up); see Regents of the University of California,v. DHS, 279 F. Supp. 3d 1011, 1042 (N.D. Cal.) (“An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route).”). Second, DACA applies to a far smaller group than DAPA (up to 10% of the total undocumented population versus 38% under DAPA). See Texas I, 809 F.3d at 147–48; id. at 174 (“Eligibility for DACA was restricted to a younger and less numerous population [than DAPA, and] involved selfselecting applicants, and those who expected to be denied relief were unlikely to apply.”).
Plaintiffs rely on the lead dissent in Regents for the proposition that DACA is somehow a “complete[] overhaul” of immigration law, and that DACA “eviscerates the INA’s deliberate statutory scheme.” ECF No. 486 at 36 (quoting Regents, 140 S. Ct. at 1925 (Thomas, J. concurring in the judgment in part and dissenting in part)). But a dissenting opinion from the Supreme Court is not controlling in any court. And the majority in Regents left open the possibility that the DACA policy is lawful in its current form and held that DHS violated the APA by failing to consider whether the agency should retain the policy in some form. 140 S. Ct. at 1913. The majority made clear that, even if DACA recipients’ eligibility for benefits were deemed problematic, that alone does “not cast doubt on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals.” Id. at 1912 (quotation omitted).
Congress has granted the Secretary broad authority to set enforcement priorities, and broad discretion to grant relief from removal, and it has given DHS a limited budget that renders largescale prosecutorial discretion unavoidable. The Secretary thus lawfully and reasonably adopted criteria to help identify those individuals arguably most deserving of relief and to grant them
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temporary forbearance from removal—a decision that, by all accounts, is highly beneficial to the States and communities where DACA recipients reside.
B. DACA Did Not Need to Go Through Notice -and-Comment Rulemaking. 1. The decision to defer enforcement as to DACA recipients represents a “general statement
of policy” that is exempt from notice and comment. 5 U.S.C. § 553(b)(3)(B). Such general statements of policy “advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Lincoln v. Vigil, 508 U.S. 182, 197 (1993).
Plaintiffs’ suggestion that DHS cannot announce forbearance to a class of aliens absent notice-and-comment rulemaking is unsupported. The mere fact that a policy establishes or even “discontinu[es]” an agency program available to a defined group does not mean that notice and comment is required. Vigil, 508 U.S. at 196 (ending regional program for handicapped Indian children). The question is on whether DHS is exercising “discretionary power.” Id. at 197.
Plaintiffs further argue that the consequences of that forbearance (i.e., work authorization and potential eligibility for affirmative benefits) require notice and comment, but the longstanding regulations establishing those benefits were promulgated through notice-and-comment rulemaking pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3). Those regulations provide that deferred action recipients are eligible for work authorization and Social Security benefits. See 8 C.F.R. § 274a.12(c)(14) (individual “who has been granted deferred action” may obtain work authorization in certain circumstances); id. § 1.3(a)(4)(vi) (individua l with “deferred action” is considered “lawfully present” for purposes of applying for Social Security benefits); see also 52 Fed. Reg. 16,216 (1987) (work authorization); 61 Fed. Reg. 47,039 (1996) (Social Security benefits). This approach accords with Congress’s own understanding that a noncitizen is lawfully present (for purposes of determining admissibility following departure from the country) during any “period of stay authorized by” DHS. 8 U.S.C. § 1182(a)(9)(B)(ii).
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DHS and the former Immigration and Naturalization Service (INS) have, in a similar vein, promulgated regulations and issued policy guidance providing when noncitizens who receive deferred action will temporarily cease accruing “unlawful presence” for purposes of 8 U.S.C. § 1182(a)(9)(B)(i) and (C)(i)(I). See 8 C.F.R. § 214.14(d)(3); 28 C.F.R. § 1100.35(b)(2). Furthermore, those agencies have long granted advance parole to noncitizens who are seeking to depart temporarily and return to the United States without a visa. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(f); see also, e.g., Rais v. Holder, 768 F.3d 453, 456 n.2 (6th Cir. 2014).
Every challenged consequence of DACA, including lawful presence, work authorization, and eligibility for Social Security benefits, is provided for in the INA or in regulations promulgated under the INA that preceded DACA. The existence and congressional sanction of these benefits as part of a grant of deferred action contradicts Plaintiffs’ claim that “DACA changed the law” in those respects. ECF No. 486 at 32. The DACA policy did not have to undergo notice and comment because it did not create any such substantive rights or benefits. Were the law otherwise, any grant of deferred action—whether categorical or individual—would require a substantive rule that went through notice and comment on the theory that it would trigger collateral benefits under preexisting regulations. See EPIC v. DHS, 653 F.3d 1, 5 (D.C. Cir. 2011) (“[E]ven a rule with a ‘substantial impact’ upon the persons subject to it is not necessarily a substantive rule.”).
In any case, even if DACA did not conform to the rulemaking requirements of the APA, DHS has announced its intention to initiate a new rulemaking proceeding regarding DACA. See Statement by Homeland Security Secretary Mayorkas on DACA (Mar. 26, 2021), https://www.dhs.gov/news/2021/ 03/26/statement- home land-secur it y-secretary-mayor kas-daca. That rulemaking is likely to moot Plaintiffs’ procedural claims and could significantly affect the
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Court’s analysis regarding DACA’s substantive legality. In light of these ongoing developments, a ruling on DACA’s legality is inappropriate at this time.
2. Plaintiffs assert that DACA is not a general statement of policy because “Immigration Service Officers have no genuine discretion in adjudicating DACA applications.” ECF No. 486 at 33 (citing Texas I, 86 F. Supp. 3d at 670). Plaintiffs’ bare assertion offers no basis for summary judgment because the record demonstrates that DACA is adjudicated on a case-by-case basis. As this Court has found, “there is at least some evidence presented by the Defendant Intervenors to the contrary—that the actual individuals screening the applications may have some discretion,” ECF No. 319 at 101-2, which would create a genuine issue of material fact that cannot be resolved on summary judgment. See Lynch Props., Inc., 140 F.3d at 625.
The DACA policy requires case-by-case adjudication, see DACA Mem. at 1, and the record demonstrates that thousands of DACA requests are denied every year. See ECF No. 224-2 at 469 (75,510 initial DACA requests denied between 2012 to 2018). Plaintiffs offer no evidence to rebut the presumption that immigration officers comply with the DACA Memorandum’s explicit instruction to make such individual determinations. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (“[I]n the absence of clear evidence to the contrary, courts presume that public officers have properly discharged their official duties.”). Instead, Plaintiffs offer only opinion and hearsay testimony that this Court already rejected. See ECF No. 319 at 100 n.105 (“This Court did not find either the deposition of Kenneth Palinkas, or the deposition of Michael Knowles . . . to be compelling.”). Conversely, as the Ninth Circuit recognized:
DACA's [2015] 5% denial rate—which did not include applications rejected for administrative deficiencies—is consistent with a discretionary program given that applicants self-select: “It should be expected that only those highly likely to receive deferred action will apply; otherwise, applicants would risk revealing their immigration status and other identifying information to authorities, thereby risking removal (and the loss of a sizeable fee).”
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Regents, 908 F.3d at 507 (citing Texas I, 809 F.3d at 210 (King, J., dissenting)); id. (“[I]n fiscal year 2016, . . . the agency . . . denied 11,445; that is, 17.8% of the applications acted upon were denied.”) (citing Texas I, 809 F.3d at 210 n.44); see Arpaio v. Obama, 27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting these statistics “reflect that . . . case-by-case review is in operation”). 3
The Fifth Circuit majority also noted that the DACA denial rate is low because DACA “involved self-selecting applicants, and those who expected to be denied relief were unlikely to apply” and applicants thus were less likely to have backgrounds that would warrant a discretionary denial notwithstanding satisfying the threshold criteria. Texas I, 809 F.3d at 174. Thus, Plaintiffs have not shown that DACA is nondiscretionary. III. DACA Does Not Violate the Take Care Clause.
For many of the same reasons, DACA does not violate the Take Care Clause. As this Court noted, “the Take Care Clause is the source of the President’s (and the Executive Branch’s) power of prosecutorial discretion,” ECF No. 319 at 64 (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)), and DACA, “at least nominally, was instituted as an exercise of prosecutorial discretion.” Id. That Plaintiffs do not agree with the exercise of that discretion does not somehow mean that the Secretary did not exercise discretion, or that there is an independent Take Care Clause claim. It is well-established that “the duty of the President in the exercise of the power to
3 The Court’s previous concern that the 2012 DACA Memorandum curtails discretion because it “instructs the agency on exactly what factors to use” when exercising discretion on an individua l basis, ECF No. 319 at 99, is mistaken. The memorandum instructs: “The following criteria should be satisfied before an individua l is considered for an exercise of prosecutorial discretion pursuant to this memorandum.” DACA Mem. at 1 (emphasis added); see Romeiro de Silva v. Smith, 773 F.2d 1021, 1024–25 (9th Cir. 1985) (INS operating instructions that provided specific factors to determine eligibility for deferred action, but used “may” instead of “shall,” preserved the agency’s discretion over deferred action regardless of eligibility).
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see that the laws are faithfully executed” “is purely executive and political,” and not subject to judicial direction. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867).
Plaintiffs’ argument that DACA “dispenses with certain immigration statutes . . . by declaring a class of aliens to henceforth be present lawfully,” ECF No. 486 at 44, is incorrect because the INA authorizes DHS to adopt the DACA policy. DACA does not dispense with any immigration statutes; it implements them. As discussed above, deferred action has been a form of prosecutorial discretion available to immigration officers for decades, see Arpaio, 27 F. Supp. 3d at 193–94, and the Supreme Court has cited with approval the Executive’s “regular practice (whic h had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.” AADC, 525 U.S. at 483-84. Regents reaffirmed this approval by suggesting that, even on a large scale, DACA as a forbearance policy was within the DHS Secretary’s authority. Regents, 140 S. Ct. at 1912 (“[C]ontinuing forbearance remained squarely within the discretion of [DHS].”). Finally, Congress allocates funds sufficient to pursue removal of only approximately 3.75% of the total undocumented population.4 See ECF No. 224 at 31–33; ECF No. 400-3, Ex. 15 ¶¶ 8–10. And DACA does not “prevent[] the removal of individuals whom Congress has deemed removable,” ECF No. 486 at 36, as those individuals remain subject to removal; rather, DACA reflects the Secretary’s legal authority to determine where to focus scant resources by temporarily deferring action for eligible low-priority individuals, who then obtain the
4 Significantly, the government would not be able to target DACA recipients for removal without diverting resources from congressionally-identified higher-priority individuals, including violent criminals, gang members, and traffickers. See Consol. Appropriations Act 2014, Pub. L. No. 11376, div. F., Tit. II, 128 Stat. 5, 251 (2014); DHS Appropriations Act 2010, Pub. L. No. 111-83, 123 Stat. 2142 (2009); see also Heckler v. Chaney,470 U.S. 821, 833 (1985) (Congress “may limit an agency’s exercise of enforcement power if it wishes . . . by setting substantive priorities[.]”).
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opportunity to live and work lawfully under other, longstanding regulations. There is thus no ground to find that the Secretary was not exercising her discretion in promulgating DACA. IV. In the Alte rnative , the Court Should Craft a Narrow Re me dy that Minimize s
Disruption to DACA Recipients If this Court holds that DACA is unlawful, the proper remedy is to issue a declaratory judgment and remand to DHS for further proceedings. The Court should not order injunctive relief, and in particular, should not enjoin the continued operation of DACA during the pendency of any remand proceedings that may be required by the Court’s judgment. Injunctive relief is an “extraordinary” equitable remedy that “has never been regarded as strictly a matter of right.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). “It is horn book law that . . . [an] injunction . . . calls for great caution and deliberation.” Reliable Transfer Co. v. Blanchard, 145 F.2d 551, 552 (5th Cir. 1944). That is all the more true here, where an injunction would interfere with “[t]he power to regulate immigration,” an “attribute of sovereignty” that has “been entrusted by the Constitution to the political branches.” United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982). Aside from a footnote, Plaintiffs have not even attempted to show that they are entitled to injunctive relief under the traditional four-factor test. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 393-94 (2006); see also ECF No. 529 at 18 n.12. This failure alone precludes an award of injunctive relief. Indeed, Plaintiffs have stated that they “are not seeking the immediate termination” of DACA. ECF No. 486 at 46. They agree that even if DACA is to be wound down, the process should be “orderly” and permit full appellate review before the Court’s order has any effect. Id. In Regents, the Supreme Court held that, even if DACA is unlawful, DHS should also have an opportunity to consider “what if anything to do about the hardship to DACA recipients.” 140 S. Ct. at 1910, 1916. The Court noted that “how best to address a finding of illegality moving
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forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA.” Id. at 1910. The Court emphasized that “[t]hose policy choices are for DHS.” Id. The Court concluded that the “appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.” Id. Here, DHS has already announced its intention to consider the policy anew. As noted, the Secretary has expressed his intention to issue a notice of proposed rulemaking concerning DACA. ECF No. 563.
In similar circumstances, courts generally remand to an agency for further consideration and implementation of a policy that conforms with the court’s legal instructions, without vacating the agency’s action or otherwise issuing an order with immediate effect, even if the court has determined that the agency acted unlawfully. “Only in ‘rare circumstances’ is remand for agency reconsideration not the appropriate solution.” Texas Ass’n of Mfrs. v. CPSC, 989 F.3d 368, 389 (5th Cir. 2021). Remand without vacatur is also appropriate where vacatur would have “disruptive consequences.” Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993); see Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (remanding without vacatur because “[t]he egg has been scrambled and there is no apparent way to restore the status quo ante”); Am. Great Lakes Ports Ass’n v. Schultz, 962 F.3d 510, 518– 19 (D.C. Cir. 2020) (remanding without vacatur despite substantively unlawful agency action).
If the Court finds DACA unlawful, the magnitude of the disruptive consequences and the likelihood that DHS’s rulemaking will resolve many of the Court’s concerns with DACA’s lawfulness counsel in favor of remand without vacatur. DHS’s decision to initiate a rulemaking could ameliorate any procedural deficiencies with the original policy and would provide an opportunity for the agency to consider the need for and advisability of substantive changes in the policy going forward. See Radio-Television News Dirs. Ass’n v. FCC, 184 F.3d 872, 872 (D.C.
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Cir. 1999); (remanding to permit the agency to “commence a new rulemaking” and “possibly” implement “modifications” to its policy). The public interest is best served by allowing “politic a lly accountable officials” to reconsider DACA and to effectuate any required changes in the first instance. See Valentine v. Collier, 978 F.3d 154, 166 (5th Cir. 2020); Thomas v. Bryant, 919 F.3d 298, 312 (5th Cir. 2019).
In 2018, this Court denied preliminary injunctive relief, finding that “the egg has been scrambled” because Plaintiffs had delayed challenging DACA for six years and in that time “many DACA recipients and others nationwide have relied upon it.” ECF No. 319 at 115. The Court found that “[t]o try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.” Id. DACA is now nearly nine years old, and vacatur remains not in the best interests of the country.
The disruptive consequences of invalidating DACA immediately, particularly without permitting an orderly wind-down, would be immense. Recipients have depended on DACA to support themselves and their families and build their lives in the United States. They “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.” Regents, 140 S. Ct. at 1914 (quoting Regents’ brief). In denying a preliminary injunction, this Court recognized that enjoining DACA would cause “significant hardship” by making recipients “susceptible to immigration proceedings and eventual removal,” depriving recipients of “their ability to work,” and causing them to “lose their ability to travel within the United States and many other benefits” that flow from deferred action. ECF No. 319 at 113. The effects of halting DACA would further “radiate outward” to irreparably harm recipients’ families and communities. Regents, 140 S. Ct. at 1914 (quoting Regents’ brief). The impact would be felt by recipients’ “200,000 U.S.-citizen children,”
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id., whose parents might be unable to provide for their family and might be exposed to removal. It would be felt by “the schools where DACA recipients study and teach,” id., which could lose valuable members of their student bodies and faculties, as well as tuition dollars. It would be felt by “the employers who have invested time and money in training,” and who would have to pay enormous sums to hire and train replacements for hundreds of thousands of DACA recipients. Id.
Injunctive relief or vacatur that immediately terminates DACA would also cause significant disruption for federal, state, and local governments. It would undermine the federal government’s efforts to efficiently identify enforcement priorities and would “interfer[e] with [the agency’s] ability to perform its statutory duties” with the necessary “flexibility to address the facts on the ground” that “are ever-changing.” Valentine, 978 F.3d at 165. Furthermore, 21 States and the District of Columbia have participated to highlight the disruption that they will suffer if DACA is enjoined. If DACA recipients are excluded from the lawful workforce, state and local governments have been estimated to face the loss of more than a billion dollars in tax revenue each year. See Regents, 140 S. Ct. at 1914 (citing Regents’ brief). Economic damage would be felt across the country, with many billions of dollars in estimated lost economic activity and lost federal tax revenues. Id. Beyond these economic harms, “states, cities, and employers . . . could lose residents” who are integral to “various schools, municipalities, and industries.” ECF No. 319 at 113-14. Local law enforcement would also be deprived of the benefits of deferred action, which encourages noncitizens who are not enforcement priorities to cooperate with law enforcement officers where they might otherwise fear coming forward. See ECF No. 400-1, Ex. 3 (Declaration of Art Acevedo, Houston Chief of Police) ¶¶ 10–15.
As this Court has recognized, maintaining “the status quo until a definitive decision” is reached will avoid these disruptive consequences. ECF No. 319 at 114–15. Withholding injunc tive
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relief and vacatur during the pendency of a remand to DHS will preserve the status quo and thereby prevent the “inevitable disruption that would arise from a lack of continuity and stability in [an] important area of the law” while DHS considers how best to implement any judgment issued by the Court. Campaign for S. Equality v. Bryant, 773 F.3d 55, 58 (5th Cir. 2014).
V. If This Court Grants Plaintiffs Immediate Relief, Then It Should Stay Its Ruling. For the reasons above, if the Court ultimately finds that DACA is unlawful and must be
terminated immediately in any respect, a stay is warranted to maintain the status quo. If this Court issues immediate relief, and if it does not agree with Plaintiffs’ own request to stay its ruling for two years pending appellate review, then Defendants respectfully request a stay of at a minimum thirty days for the Acting Solicitor General to consider whether to authorize appeal, and if appeal is authorized, for Defendants to submit a request for a stay pending appeal.
Denying a stay would cause immense irreparable harm to DACA recipients, their families and communities, and all levels of government. Yet as this Court has recognized, granting a stay would not prejudice Plaintiffs “given the delay in confronting DACA.” ECF No. 319 at 115. Under these circumstances, the public interest plainly favors a stay. Even if this Court finds DACA unlawful, “because many everyday Americans would otherwise face great uncertainty,” the Court’s judgment should “be stayed during the pendency of [its] appeal.” Texas v. United States, 352 F. Supp. 3d 665, 690 (N.D. Tex. 2018), aff'd in part, vacated in part, remanded, 945 F.3d 355 (5th Cir. 2019) (staying declaratory judgment that declared Affordable Care Act unconstitutiona l).
CONCLUSION The Court should deny Plaintiffs’ motion for summary judgment and deny any immediate relief. If the Court grants immediate relief, it should stay its ruling for at a minimum thirty days so that the Acting Solicitor General may consider whether to authorize appeal, and if appeal is authorized, so that Defendants can submit a request for a stay pending appeal.
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Dated: April 9, 2021
BRIAN M. BOYNTON Acting Assistant Attorney General Civil Division
AUGUST E. FLENTJE Special Counsel Civil Division
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section

Respectfully submitted,
JEFFREY S. ROBINS Attorney-in-Charge Deputy Director
/s/ James J. Walker JAMES J. WALKER Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 532-4468 Fax: (202) 305-7000 Email: james.walker3@usdoj.gov
Attorneys for Federal Defendants

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CERTIFICATE OF SERVICE I certify that on April 9, 2021, this document was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.
/s/ James J. Walker JAMES J. WALKER