Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 1 of 75

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

)

STATE OF TEXAS;

)

)

STATE OF ALABAMA;

)

)

STATE OF GEORGIA;

)

)

STATE OF IDAHO;

)

)

STATE OF INDIANA;

)

)

STATE OF KANSAS;

)

)

STATE OF LOUISIANA;

)

)

STATE OF MONTANA;

)

)

STATE OF NEBRASKA;

)

)

STATE OF SOUTH CAROLINA;

)

)

STATE OF SOUTH DAKOTA;

)

)

STATE OF UTAH;

)

)

STATE OF WEST VIRGINIA;

)

)

STATE OF WISCONSIN;

)

)

GOVERNOR PHIL BRYANT, State of Mississippi;

)

)

GOVERNOR PAUL R. LEPAGE, State of Maine;

)

)

GOVERNOR PATRICK L. MCCRORY, State of North

)

Carolina; and

)

)

GOVERNOR C.L. “BUTCH” OTTER, State of Idaho,

)

)

Plaintiffs, )

)

vs.

)

)

Case No. ___________

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 2 of 75

UNITED STATES OF AMERICA;

)

)

JEH JOHNSON, Secretary of the Department of

)

Homeland Security;

)

)

R. GIL KERLIKOWSKE, Commissioner of U.S. Customs )

and Border Protection;

)

)

RONALD D. VITIELLO, Deputy Chief of U.S. Border

)

Patrol, U.S. Customs and Border Protection;

)

)

THOMAS S. WINKOWSKI, Acting Director of U.S.

)

Immigration and Customs Enforcement; and

)

)

LEÓN RODRÍGUEZ, Director of U.S. Citizenship and

)

Immigration Services,

)

)

Defendants. )

)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. The State of Texas, the State of Alabama, the State of Georgia, the

State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the

State of Montana, the State of Nebraska, the State of South Carolina, the State of

South Dakota, the State of Utah, the State of West Virginia, the State of Wisconsin,

and Governor Phil Bryant of Mississippi, Governor Paul R. LePage of Maine,

Governor Patrick L. McCrory of North Carolina, and Governor C.L. “Butch” Otter of

Idaho (collectively, “Plaintiffs” or “Plaintiff States”) seek declaratory and injunctive

relief against the United States and the above-named federal officials (collectively,

“the Defendants”) for their violations of the Take Care Clause, U.S. CONST. art. II,

§ 3, cl. 5, and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

2. This lawsuit is not about immigration. It is about the rule of law,

presidential power, and the structural limits of the U.S. Constitution.

2

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 3 of 75
3. On November 20, 2014, the President of the United States announced that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States.
4. The President candidly admitted that, in so doing, he unilaterally rewrote the law: “What you’re not paying attention to is, I just took an action to change the law.”
5. In accordance with the President’s unilateral exercise of lawmaking, his Secretary of the Department of Homeland Security (“DHS”) issued a directive that purports to legalize the presence of approximately 40% of the known undocumented-immigrant population, and affords them legal rights and benefits. See Memorandum from Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents (Nov. 20, 2014) (“DHS Directive”) (attached as Ex. A).
6. That unilateral suspension of the Nation’s immigration laws is unlawful. Only this Court’s immediate intervention can protect the Plaintiffs from dramatic and irreparable injuries.
I. THE PARTIES 7. Plaintiffs are the State of Texas, the State of Alabama, the State of Georgia, the State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the State of Montana, the State of Nebraska, the State of South Carolina, the State of South Dakota, the State of Utah, the State of West Virginia,
3

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 4 of 75
the State of Wisconsin, and the Governors of Mississippi, Maine, North Carolina, and Idaho.
8. Defendant United States of America is sued under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 703 (“[T]he action for judicial review may be brought against the United States.”).
9. Defendant Jeh Johnson is the Secretary of DHS. Johnson 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”). Johnson authored the DHS Directive.
10. Defendant R. Gil Kerlikowske is the Commissioner of CBP. Defendant Kerlikowske shares responsibility for implementing the DHS Directive. And Kerlikowske is Defendant Vitiello’s supervisor.
11. Defendant Ronald D. Vitiello is the Deputy Chief of U.S. Border Patrol. Vitiello authored a May 30, 2014, memorandum entitled “Unaccompanied Alien Children Transfer Process Bottleneck” (“Vitiello Memorandum”), which recognizes that Defendants’ abandonment of the federal immigration laws caused and is continuing to cause crises in the Plaintiff States.
12. Defendant Thomas S. Winkowski is the Acting Director for ICE. ICE administers a formal program for allowing undocumented immigrants to apply for deferred action and to appeal for reconsideration if deferred action is denied.
13. Defendant León Rodríguez is the Director of USCIS. Rodríguez and USCIS administer the Deferred Action for Childhood Arrivals (“DACA”) program.
4

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 5 of 75
President Obama announced the DACA program on June 12, 2012, to allow undocumented immigrants to stay in the United States in violation of the Nation’s immigration laws. And USCIS is the principal agency charged with implementing the DHS Directive.
II. JURISDICTION AND VENUE 14. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, art. II, § 3, cl. 5, and the APA, 5 U.S.C. § 706. The Court also has jurisdiction under 28 U.S.C. § 1346 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. 15. 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 the Plaintiffs’ claims occurred in this District. 16. 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.
III. FACTUAL ALLEGATIONS A. The DREAM Act 17. On March 26, 2009, Senator Richard Durbin and Representative Howard Berman introduced the DREAM Act in the U.S. Senate and House, respectively. See DREAM Act of 2009, S. 729 (111th Cong.) (2009); American Dream Act, H.R. 1751 (111th Cong.) (2009). Both bills would have allowed
5

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 6 of 75
undocumented immigrants to apply for conditional permanent resident status if, among other things, (a) they entered the United States before their 16th birthdays, and (b) they had been in the United States continuously for five years.
18. The President repeatedly and forcefully urged Congress to pass the DREAM Act.
19. And the President consistently insisted that he could not achieve the goals of the DREAM Act on his own. 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.” (May 5, 2010)
• “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.” (Oct. 25, 2010)
• In response to a question about whether he could stop deportation of undocumented 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
6

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 7 of 75
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.” (Mar. 28, 2011) (emphasis added) • “I can’t solve this problem by myself. . . . We’re going to have to change the laws in Congress.” (Apr. 20, 2011) • “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.” (Apr. 29, 2011) • “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.” (May 10, 2011) • “[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 Constitution is written.” (July 25, 2011)
7

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 8 of 75
• “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.” (Sept. 28, 2011)
20. Neither congressional chamber passed the DREAM Act. B. DACA 21. The President then asked the Department of Justice’s Office of Legal Counsel (“OLC”) whether he could effectuate the goals of the un-enacted DREAM Act by executive fiat. OLC said “yes,” with certain conditions. In particular, OLC advised the President that he could use the concept of “deferred action for childhood arrivals,” or “DACA,” to stop deporting individuals who (a) entered the United States before their 16th birthdays, and (b) had been in the United States continuously for five years. See Memorandum Opinion for the Secretary of Homeland Security, from Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 18 n.8 (Nov. 19, 2014) (“OLC Memo”) (attached as Ex. B) (noting that OLC orally advised the President “[b]efore DACA was announced” in 2012). OLC further advised, however, 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.” Ibid.
8

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 9 of 75
22. Notwithstanding his repeated insistence that he could not stretch his executive powers any further, the President announced his unilateral creation of the DACA program on June 15, 2012.
23. At the President’s direction, the DHS Secretary then suspended the Nation’s immigration laws for approximately 1.7 million undocumented immigrants. See Memorandum from Janet Napolitano, Secretary of the Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) (“DACA Memo”) (attached as Ex. C).
24. The President and his DHS Secretary ordered federal immigration officials to extend “deferred action” to undocumented immigrants who (a) entered the United States before their 16th birthdays, and (b) had been in the United States continuously for five years.
25. Although OLC had cautioned the President that it was “critical” to DACA’s legality that the Administration evaluate every application on a case-bycase basis, the President and DHS ignored that advice. According to the latest figures available, the Administration granted deferred action to 99.5-99.8% of DACA applicants.
C. Nava-Martinez 26. The Executive Branch did not stop at dispensing with the Nation’s immigration laws. Rather, as this Court already has found, the Administration adopted a policy that encouraged international child smuggling across the Texas-
9

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 10 of 75
Mexico border. See Order, United States v. Nava-Martinez, No. 1:13-cr-00441, at 2 (S.D. Tex. Dec. 13, 2013) (“Nava-Martinez Order”).
27. The defendant in Nava-Martinez, an admitted human trafficker, was caught attempting to smuggle a ten-year-old El Salvadorean girl into the United States. Id. at 1.
28. The 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.” Ibid.
29. 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 this Court observed, “[t]his DHS policy is a dangerous course of action.” Ibid. 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.
30. Moreover, this 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 Court explained that citizens of the United States bear the economic brunt of this policy, because DHS “funds 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.” Ibid.
10

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 11 of 75
D. The Defendants Cause a Humanitarian Crisis 31. The Defendants’ policies (including DACA and the policy described in Nava-Martinez) have had and continue to have dire consequences in the Plaintiff States. In the summer of 2014, an enormous wave of undocumented immigrants 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 (Jun. 12, 2014). 32. As many as 90,000 undocumented children are expected to be detained this year, and as many as 140,000 may be detained in 2015. Brett LoGiurato, There’s a Staggering Humanitarian Crisis on the US Border, and It’s Only Going to Get Worse, BUS. INSIDER (Jun. 16, 2014). By comparison, only 6,000 to 7,500 children were detained between 2008 and 2011, under 14,000 were detained in 2012, and only 24,000 were detained in 2013. Alicia A. Caldwell, Border Patrol Resources Stretched Thin As Children Illegally Enter U.S. Alone, ASSOCIATED PRESS (Jun. 5, 2014). 33. 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. 34. But the humanitarian crisis is by no means limited to unaccompanied children. There is also “an unprecedented surge of families crossing illegally into the U.S.” 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
11

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 12 of 75
official count of such families, they acknowledge that “the numbers appear to be substantial.” Ibid.
35. This wave of immigration has been concentrated in the Rio Grande Valley of South Texas. Miroff & Partlow, supra. “Every day, hundreds of Central American migrants, in groups as large as 250 people, are wading across the muddy Rio Grande.” Ibid.
36. The crisis has imposed enormous law enforcement costs on the Plaintiff States. For example, the Texas Department of Public Safety estimated that it was spending $1.3 million a week on troopers and resources to deal with the immigration surge; in addition, Governor Perry deployed 1,000 National Guard troops to the border at a cost of $38 million.
37. This crisis was caused by the immigration policies of the federal government, including the policy that this Court has already held to be unlawful. As Defendant Vitiello explained in his May 30th 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.” And the Obama Administration acknowledges that there is a “growing perception minors are crossing the border because they feel they will not be deported by the administration.” LoGiurato, supra. 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
12

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 13 of 75
“[s]mugglers were exploiting the system.” Susan Carroll, Report Warned of Child Migrant Crisis, HOUSTON CHRON. (Jun. 17, 2014).
38. The President 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 repercussion for such a decision.” That in turn “could lead to a surge in more illegal immigration.” As the President concluded, “no matter how decent they are, no matter their reasons, the 11 million who broke these laws should be held accountable.”
39. The Defendants, however, have 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. And the total number of undocumented 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).
40. 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 officials said they couldn’t guarantee that they would pursue all cases in which
13

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 14 of 75
immigrants do not show up for follow-up appointments.” Ibid. 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 (Jun. 16, 2014).
41. Unsurprisingly, the undocumented immigrants 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 undocumented immigrants about why they came, “the 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.” Ibid.
42. Multiple reports indicate that undocumented immigrants are counting on federal officials for help in reuniting with their friends or family in the U.S. Hundreds of Central American migrants “turn[ ] themselves in to the Border Patrol” on a daily basis. Miroff & Partlow, supra. One undocumented immigrant 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 undocumented immigrants interviewed by Border Patrol agents for their recent
14

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 15 of 75
report “stated that they had family members or, to a lesser extent, friends already living in the U.S.” York, supra.
43. And the Defendants have conceded that their failure to enforce the federal immigration laws has increased the flow of illegal immigration across the Texas-Mexico border. See Vitiello Memorandum. The effects of that failure have caused acute crises in the Plaintiff States.
E. The President “Change[s] the Law” 44. Between his 2012 DACA announcement and the midterm elections in November 2014, the President repeatedly acknowledged that his non-enforcement efforts already had reached the outer limit of his administrative powers, and that any further transformation of the immigration system 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.” (Sept. 20, 2012) • “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 that I can on my own.” (Oct. 16, 2012) • 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
15

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 16 of 75
executive branch of government. I’m required to follow the law.” (Jan. 30, 2013) • 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 and implement it.” (Jan. 30, 2013) • “This is something I’ve struggled with throughout my presidency. The problem is that you know 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.” (Feb. 14, 2013) • “I think that it’s 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.” (July 16, 2013)
16

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 17 of 75
• “[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.” (Sept. 17, 2013) (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.” (Nov. 25, 2013)
• “[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 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
17

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 18 of 75
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 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.” (Mar. 6, 2014) (emphasis added) 45. Accordingly, the President repeatedly called on Congress to pass an immigration reform bill. On June 27, 2013, the Senate passed a bill that, among other things, would have created a pathway to citizenship for undocumented immigrants. See Border Security, Economic Opportunity, & Immigration Modernization Act, S. 744 (113th Cong.) (2013). The House, on the other hand, did not pass similar legislation. 46. Before the midterm elections in November 2014, Democrats in the Senate urged the President not to act unilaterally because it “could be so politically damaging in their states that it would destroy their chances to hold control of the Senate.” Michael D. Shear & Julia Preston, Obama Pushed ‘Fullest Extent’ of His Powers on Immigration Plan, N.Y. TIMES (Nov. 28, 2014). The President honored that request. 47. On November 20, 2014, the President announced that he would unilaterally create legal protections for approximately 4 million undocumented immigrants. Under the President’s plan, the undocumented parents of U.S. citizens and legal permanent residents would receive deferred action status, as well as work permits and tolling of their unlawful presence in the United States. The President
18

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 19 of 75
also expanded DACA to hundreds of thousands of additional undocumented immigrants.
48. The President candidly admitted that his plan was unilateral legislation: “What you’re not paying attention to is, I just took an action to change the law.”
49. The President further admitted that he was changing the law because Congress chose not to: “[W]hen members of Congress question my authority to make our immigration system work better, I have a simple answer: Pass a bill. . . . And the day I sign that bill into law, the actions I take will no longer be necessary.”
50. The President also made clear that he was “offer[ing] the following deal”: “[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.”
F. The DHS Directive 51. The President’s new policies were effectuated through Defendant Johnson’s DHS Directive. The DHS Directive closely resembled, and purported to “supplement[ ] and amend[ ],” the DACA Memo. See Exs. A & C. 52. In particular, Johnson instructed USCIS “to expand DACA as follows:” by “[r]emov[ing] the age cap” that had previously applied, by “[e]xtend[ing] DACA renewal and work authorization to three-years [sic]” from the previous two, and by “[a]djust[ing] the date-of-entry requirement” from June 15, 2007, to January 1, 2010. DHS Directive at 3-4.
19

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 20 of 75
53. Johnson also “direct[ed] USCIS to establish a process, similar to DACA” for extending deferred action to the parents of citizens or lawful permanent residents. Id. at 4. In addition, the beneficiaries of deferred action are eligible to apply for federal work authorization.
54. The DHS Directive sets out a series of explicit criteria for who will be eligible for this expansion of deferred action. It requires applicants to “file the requisite applications for deferred action” and “submit biometrics for USCIS to conduct background checks.” Ibid. USCIS is instructed to “begin accepting applications from eligible applicants no later than one hundred and eighty (180) days” from the date of the Directive. Id. at 5. Moreover, USCIS, ICE, and CBP are directed to consider the new deferred action criteria “for all individuals [they] encounter[ ],” including individuals in their custody, and individuals whose removal is pending. Ibid.
55. The Defendants have made clear that the DHS Directive will operate like the DACA program that came before it — namely, as an entitlement to relief for virtually every applicant who meets DHS’s eligibility criteria. That is evident from the President’s statement that the DHS Directive provides a “deal” to ensure that eligible applicants “will not be deported”; from the DHS Directive itself, which creates an application process and eligibility criteria in mandatory terms (like “shall” and “must”); and from the 99.5-99.8% acceptance rate for DACA applicants.
56. The purported legal justification for the DHS Directive is contained in the OLC Memo. See Ex. B. In relevant part, the memo analyzed two DHS
20

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 21 of 75
proposals. The first proposal, which the Administration adopted, was the extension of deferred action status to parents of U.S. citizens and lawful permanent residents. The second proposal, which the Administration has not yet adopted, was the extension of deferred action status to parents of DACA recipients. OLC concluded that the first proposal would be a lawful exercise of enforcement discretion, but the second would not.
57. The OLC Memo acknowledged that there are three important differences between the proposed programs and exercises of enforcement discretion. Id. at 20-21. First, deferred action is not merely a “decision not to prosecute an individual for past unlawful conduct”; instead, it is “a decision to openly tolerate an undocumented alien’s continued presence in the United States.” Id. at 20. Second, deferred action carries legal benefits beyond nonenforcement, such as the right to seek employment authorization. Ibid. Third, class-based deferred action programs, like the ones at issue here, “do not merely enable individual immigration officials to select deserving beneficiaries,” but instead “set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status.” Ibid. In spite of all this, OLC concluded that the programs could potentially constitute exercises of enforcement discretion.
58. OLC then considered whether the proposals would be lawful under Heckler v. Chaney, 470 U.S. 821 (1985), a seminal enforcement-discretion case. OLC acknowledged that Chaney imposes four limitations on enforcement
21

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 22 of 75
discretion. First, enforcement decisions must rely on factors that are within the agency’s expertise; second, the executive cannot effectively rewrite the laws under the guise of enforcement discretion; third, the executive cannot adopt a general policy that amounts to an abdication of its statutory responsibilities; and finally, enforcement discretion generally requires case-by-case decisionmaking. OLC Memo at 6-7.
59. OLC concluded that the first DHS proposal, which concerned the parents of citizens and legal permanent residents, met this test. Id. at 26-31. OLC based that conclusion, in part, on much smaller and more targeted deferred action programs that previous Congresses approved. In particular, OLC found probative that Congress previously approved deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks. Id. at 29-30. In OLC’s view, those previous congressional approvals legalized DHS’s unilateral effort to create the single largest deferred action program in our Nation’s history, permitting 4 million undocumented immigrants to remain in the country.
60. OLC reached the opposite conclusion with respect to the second DHS proposal, which concerned deferred action for parents of DACA recipients. Although OLC acknowledged that the two proposals had significant similarities, it nevertheless rejected the second proposal as unlawful because it was not “consistent with the congressional policies and priorities embodied in the immigration laws.” Id. at 33.
22

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 23 of 75
G. The DHS Directive Harms Plaintiffs 61. The DHS Directive will substantially increase the number of undocumented immigrants in the Plaintiff States. At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay, such as work authorization and the tolling of unlawful presence. White House officials also have stated that the beneficiaries of deferred action are eligible for Social Security and Medicare. The removal of the deportation threat, combined with the incentives to stay, will make remaining in the United States far more attractive for the affected classes of undocumented immigrants. 62. Moreover, the DHS Directive is certain to trigger a new wave of undocumented immigration. As explained above, DACA led directly to a flood of immigration across the Texas-Mexico border and a “humanitarian crisis” in Texas. The federal government itself recognized that its lax attitude toward the immigration laws caused this wave. See Vitiello Memorandum. The DHS Directive is a much larger step than DACA, and it will trigger a larger response. 63. The DHS Directive will increase human trafficking in the Plaintiff States. Such trafficking is largely controlled by the Mexican drug cartels, which are the most significant organized crime threat to the State of Texas. See Texas Department of Public Safety, Texas Public Safety Threat Overview at 2, 23 (Feb. 2013). By boosting undocumented immigration, the DHS Directive will bolster the business of the cartels and greatly exacerbate the risks and dangers imposed on
23

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 24 of 75
Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”).
64. The Plaintiff States will be forced to expend substantial resources on law enforcement, healthcare, and education. Some of these expenditures are required or coerced by federal law. For instance, the Supreme Court has held that States are constitutionally obligated to provide free education to children of undocumented immigrants. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of documented immigration status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.225.
65. Other expenditures are required by state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Indigent Health Care and Treatment Act, TEX. HEALTH & SAFETY CODE §§ 61.001 et seq. In FY2014, Texas counties reported over $23 million in indigent health care expenditures. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See TEX. HEALTH & SAFETY CODE § 311.043.
66. Other costs follow specifically from the extension of deferred action status. For instance, federal work authorization functions as a precondition for certain professional licenses in the Plaintiff States. See, e.g., 16 TEX. ADMIN. CODE § 33.10 (requiring applicants for an alcoholic beverage license to be “legally
24

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 25 of 75
authorized to work in the United States”); 37 TEX. ADMIN. CODE § 35.21 (requiring employees of private security companies to submit application, including a copy of a current work authorization card); TEX. RULES GOVERN. BAR ADM’N, R. II(a)(5)(d) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).
67. Texas and other Plaintiff States also rely on Defendants’ evidence of lawful presence for certain benefits under their respective state laws. See, e.g., TEX. LAB. CODE § 207.043(a)(2) (extending unemployment benefits to individuals who were “lawfully present for purposes of performing the services”); TEX. FAM. CODE § 2.005(b)(4) (allowing an “Employment Authorization Card” to be used as proof of identity for the purposes of a marriage license application).
68. By authorizing a large class of undocumented immigrants to work in the United States, the DHS Directive will expose Texas to the cost of processing and issuing additional licenses and benefits. Moreover, it will cause Texas to issue such licenses and benefits to individuals who are not legally authorized to be in the country (or to take on the burdensome task of attempting to figure out which undocumented immigrants have bona fide deferred action status and which ones benefited from the unlawful DHS Directive).
69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodged
25

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 26 of 75
in the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.
IV. CLAIMS FOR RELIEF COUNT ONE
Violation Of The Take Care Clause, Art. II, § 3, Cl. 5 70. The allegations in paragraphs 1-69 are reincorporated herein. 71. The DHS Directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3, cl. 5. 72. The Supreme Court has made clear that the Take Care Clause is judicially enforceable against presidential invocations of the dispensing power. See, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524, 612-13 (1838); Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945). 73. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion.” 74. In this case, the President admitted that he “took an action to change the law.” The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement — one that even the President and OLC previously admitted would require a change to the law. 75. At least for the 4 million people who will benefit from the DHS Directive, Congress has taken several steps to curtail the reunification of
26

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 27 of 75
undocumented immigrants and their documented family members. The undocumented parent of a U.S. citizen or legal permanent resident generally can stay in the United States only by (i) waiting until their child turns 21, (ii) leaving the country, (iii) waiting 10 more years, and then (iv) obtaining a family-preference visa from a U.S. consulate abroad. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255. The Defendants cannot faithfully execute the law by directly contravening Congress’s objectives.
76. Accordingly, the Defendants’ actions violate the Take Care Clause. COUNT TWO
Violation of the APA, 5 U.S.C. § 553 77. The allegations in paragraphs 1-76 are reincorporated herein. 78. 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). 79. DHS is an “agency” under the APA. 5 U.S.C. § 551(1). 80. The DHS Directive is a “rule” under the APA. 5 U.S.C. § 551(4). 81. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. 5 U.S.C. § 553. 82. The Defendants promulgated and relied upon the DHS Directive without authority and without notice-and-comment rulemaking. It is therefore unlawful.
27

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 28 of 75
COUNT THREE Violation of the APA, 5 U.S.C. § 706 83. The allegations in paragraphs 1-82 are reincorporated herein. 84. 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). 85. The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress. See, e.g., ¶ 75, supra. 86. As such, the DHS Directive violates the aforementioned provisions in 5 U.S.C. § 706, and it is therefore unlawful.
V. DEMAND FOR JUDGMENT Plaintiffs respectfully request the following relief from the Court:
A. A declaratory judgment and injunction that the Defendants’ deferred action program violates the Take Care Clause;
B. A declaratory judgment that the Defendants’ deferred action program is procedurally unlawful under the APA;
C. A declaratory judgment that the Defendants’ deferred action program is substantively unlawful under the APA; and
D. All other relief to which the Plaintiffs may show themselves to be entitled. 28

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 29 of 75

Respectfully submitted.

LUTHER STRANGE Attorney General of Alabama

GREG ABBOTT Attorney General of Texas

SAMUEL S. OLENS Attorney General of Georgia

DANIEL T. HODGE First Assistant Attorney General

LAWRENCE G. WASDEN Attorney General of Idaho

JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel

JOSEPH C. CHAPELLE Counsel for the State of Indiana
DEREK SCHMIDT Attorney General of Kansas
JAMES D. “BUDDY” CALDWELL Attorney General of Louisiana

ANDREW S. OLDHAM Deputy Solicitor General
Attorney-in-Charge
Office of the Attorney General of Texas P.O. Box 78711 Austin, Texas 78711-2548 512-936-1700

TIMOTHY C. FOX Attorney General of Montana

JON C. BRUNING Attorney General of Nebraska

ALAN WILSON Attorney General of South Carolina

MARTY J. JACKLEY Attorney General of South Dakota

SEAN D. REYES Attorney General of Utah

PATRICK MORRISEY Attorney General of West Virginia

J.B. VAN HOLLEN Attorney General of Wisconsin

additional counsel on the following page

29

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 30 of 75 DREW SNYDER Counsel for the Governor of Mississippi CARLISLE MCLEAN Counsel for the Governor of Maine ROBERT C. STEPHENS Counsel for the Governor of North
Carolina TOM C. PERRY CALLY YOUNGER Counsel for the Governor of Idaho
Dated: December 3, 2014
30

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 31 of 75
Exhibits

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 32 of 75
A

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 33 of 75
Secretary U.S. Department of Homeland Security Washington, DC 20528
Homeland Security

November 20, 2014

MEMORANDUM FOR: Leon Rodriguez Director U.S. Citizenship and Immigration Services

Thomas S. Winkowski Acting Director U.S. Immigration and Customs Enforcement

FROM: SUBJECT:

R. Gil Kerlikowske Commissioner U.S. Customs and Border Protection
Jeh Charles Johns~o:
Secretary
·---- ~--·-
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

This memorandum is intended to reflect new policies for the use of deferred action. By memorandum dated June 15, 2012, Secretary Napolitano issued guidance entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. The following supplements and amends that guidance.

The Department of Homeland Security (DHS) and its immigration components are responsible for enforcing the Nation ' s immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. Secretary Napolitano noted two years ago, when she issued her prosecutorial discretion guidance regarding children, that "[o]ur Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case."

1
www.dhs.gov

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 34 of 75
Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time. 1 A form of administrative relief similar to deferred action, known then as "indefinite voluntary departure," was originally authorized by the Reagan and Bush Administrations to defer the deportations of an estimated 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reform and Control Act of 1986. Known as the "Family Fairness" program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity.
Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department' s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency's discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes.2
Historically, deferred action has been used on behalf of particular individuals, and on a case-by-case basis, for classes of unlawfully present individuals, such as the spouses and minor children of certain legalized immigrants, widows of U.S. citizens, or victims of trafficking and domestic violence.3 Most recently, beginning in 201 2, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as "DACA."
1 Deferred action, in one fonn or another, dates back to at least the 1960s. "Deferred action" per se dates back at least as far as 1975. S ee, Immigration and Naturalization Service, Operation Instructions§ 103.l(a)(I)(ii) (1975). 2 INA § 204(a){l )(D)(i)(ll), (IV) (Violence Against Women Act (VA WA) self-petitioners not in removal proceedings are "eligible for deferred action and employment authorization "); INA § 237(d)(2) (DHS may grant stay of removal to applicants for Tor U visas but that denial of a stay request "shall not preclude the alien from applying f or . . . deferred action ''); REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 109- 13 (requiring states to examine documentary evidence oflawful status f or driver 's license eligibility purposes, including "approved deferred action status "); National Defense Authorization Act for Fiscal Year 2004 § 1703(c) (d) Pub. L. 108-136 (spouse, parent or child ofcertain US. citizen who died as a result ofhonorable service may self-petition for permanent residence and "shall be eligible for deferred action, advance parole, and work authorization "). 3 In August 200 I, the former-Immigration and Naturalization Service issued guidance providing deferred action to individuals who were eligible for the recently created U and T visas. Two years later, USCIS issued subsequent guidance, instructing its officers to use existing mechanisms like deferred action for certain U visa applicants facing potential removal. More recently, in June 2009, USCIS issued a memorandum providing deferred action to certain surviving spouses of deceased U.S. citizens and their children while Congress considered legislation to allow these individuals to qualify for pennanent residence status.
2

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 35 of 75
By this memorandum, I am now expanding certain parameters ofDACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities, as set forth in the November 20, 20 14 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.
The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources- which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation' s security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.
A. Expanding DACA
DACA provides that those who were under the age of 3 1 on June 15, 201 2, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.
In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows:
Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adj usted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981 ). That restriction will no longer apply.
Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work
3

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 36 of 75
authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years.
Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010.
USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement.
B. Expanding Deferred Action
I hereby direct 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 those individuals who:
• have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
• have continuously resided in the United States since before January 1, 201 O;
• are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
• have no lawful status on the date of this memorandum;
• are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and
• present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.
Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of
4

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 37 of 75
the Immigration and Nationality Act.4 Deferred action granted pursuant to the program shall be for a period of three years. Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions.
USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically:
• ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.
• ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process to allow individuals in removal proceedings to identify themselves as candidates for deferred action.
• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria.
Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.
This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.
4 INA § 274A(h)(3), 8 U.S.C. § 1324a(h)(3 ) ("As used in this section, the term 'unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the[Secretary]."); 8 C.F.R. § 274a.12 (regulations establishing classes of aliens eligible for work authorization).
5

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 38 of 75
B

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 39 of 75
The Department of Homeland Securify's Authority to Prioritize Removal of Certain Aliens Unlawfully Present
in the United States and to Defer Removal of Others
The Deparlment of Homeland Security's proposed policy to prioritize the removal of certain aliens unlawfully plesent in the United States would be a permissible exetcise of DHS's discretion to
enforce the immigration laws.
The Department of Homeland Seculity's ploposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS's discretion to enfblce the immigration laws.
The Department of Homeland Security's proposed deferred action proglam for palents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS's enfofcement discretion.
November 19,2014
Mgtr¿oReuouM OprNroN FoR THE SecR¡reRv oF HoMELAND SECURITY
AND THE COUSSPI TO THE PRESIOPNT
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 I1.3 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 Qllov. 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 irnplement 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

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 40 of 75
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 apath 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-Disøim. 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(hX3), aliens who are
granted defered action-like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants-may apply for authoriza-
tion to work in the United States in certain circumstances, 8 C.F.R.
$274a.12(cXl4) (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(bX7) (1982). Under DHS policy guidance, a gtant of deferred
action also suspends an alien's accrual of unlawful presence for purposes of 8U.S.C. $ 1182(a)(9XBXi) 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 specifìed 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. S¿¿ 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 discre-
tion 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
2

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 41 of 75
D-É1^S's Authoríty to Prioritize Removal of Certaín Aliens Unløwfully Presenl
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. $$ I101 et seq.In
the INA, Congress established a comprehensive scheme governing immigration
and naturalization. The INA specifies certain categories of aliens who are
inadmissible to the United States. See 8 U.S.C. $ 1182. It also specifies "which
aliens may be removed from the United States and the procedures for doing so."
Arizona v. United States, 132 S. Ct.2492,2499 (2012). "Aliens may be removed if
they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law." Id. (citing 8 U.S.C. $ 1227); see 8 U.S.C.
$ 1227(a) (providing that "[a]ny alien . . . in and admitted to the United States
shall, upon the order of the Attorney General, be removed if the alien" falls within one or more classes of deportable aliens); see also 8 U.S.C. $ 1182(a) (listing classes of aliens ineligible to receive visas or be admitted to the United States). Removal proceedings ordinarily take place in federal immigration courts adminis-
tered by the Executive Office for Immigration Review, a component of the
Department of Justice. See id. $ 1229a (governing removal proceedings); see also
id. $$ 1225(bXlXA), 1228(b) (setting out expedited removal procedures for
ceftain arriving aliens and ceftain aliens convicted of aggravated felonies). Before 2003, the Department of Justice, through the Immigration and Naturali-
zation Service ("lNS"), was also responsible for providing immigration-related
administrative services and generally enforcing the immigration laws. In the
Horrrelantl Seuurit"y Aut uf 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 hnal orders of removal. ^See 6 U.S.C. $$ 101 et seq.; see also Clarkv. Martinez, 543 U.S. 371,374 n.1 (2005)
(noting that the immigration authorities previously exercised by the Attorney General and INS "now reside" in the Secretary of Homeland Security and DHS). The Act divided INS's functions among three different agencies within DHS: U.S.
Citizenship and Immigration Services ("USCIS"), which oversees legal immigration into the United States and provides immigration and naturalization services to aliens; ICE, which enforces federal laws governing customs, trade, and immigra-
tion; and U.S. Customs and Border Protection ("CBP"), which monitors and secures the nation's borders and ports of entry.,S¿e Pub. L. No. 107-296, $$ 403, 442, 451, 471, I 16 Stat. 2735,2178, 2193, 2195,2205; see also Name Change From the Bureau of Citizenship and Immigration Services to U.S. Citizenship and
ImmigraÍion Services,6g 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
J

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 42 of 75
Opinions of the Office of Legal Counsel in Volume 38
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 "'fs]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. (Jnited 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 "providef] 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. Knauffv. 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
4

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 43 of 75
DHS's Authority to Prioritize Removal of Certøin Aliens Unlawfully Present
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 Coutt has recog-
nizedthat "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(dX5XA);
asylum, td $ 1158(bX1XA); and cancellation of removal, id. ç1229b. But in
addition to administering these statutory forms of relief, "[flederal officials, as an
initial matter, must decide whether it makes sense to pursue removal at all."
Arizona,l32 S. Ct. at2499. And, as the Court has explained, "[a]t each stage" of the removal process-"commenc[ing] proceedings, adjudicatfing] cases, [and] executfing] removal o¡ds¡s"-lrnmigration ofÍicials have "discretion to abandon the endeavor." Am.-Arab Anti-Disuim. Comm.,525 U.S. at 483 (quoting 8 U.S.C. $ 1252(9) (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 immedi-
ate 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 rec-
ord 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. at2499. 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-
8S (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
5

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 44 of 75
Opinions of the Office of Legal Counsel in Volume 38
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.'
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 frts the
agency's overall policies," id. at 831. Second, the Executive cannot, under the guise of exercising enforcement dis-
cretion, 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 llildlif", 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
' See, e.g., Adam B. Cox & Cristina M. Rodríguez, The Presidenl and Immigt'atÌon Law,119 Yale L,J. 458, 503-05 (2009) (describing Congress's response to its dissatisläction with the Executive's use ofparole power tbr refugee populations in the 1960s and 1970s); see also, e.g., infra note 5 (discussing
legislative limitations on voluntary departure and extended voluntary departure).
6

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 45 of 75
DHS's Authority to Prioritize Removal of Certain Aliens Unlawfully Present
Motor Vehicle Mfrs. Ass'n of U.5., 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, I162 (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, g6 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 67677 (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 fthe 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. Renov. Flores,507 U.S. 292,313 (1993) (explain-
ing 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
7

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 46 of 75
Opinions of the Office of Legal Counsel in Volume 38
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.9., INS Operating Instructions $ 103(a)(l)(i) (1962); Memorandum for All Field Offìce Directors, ICE, et al.,
from John Morton, Director, ICE, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enþrcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 20ll); 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. S¿e 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 convict-
ed 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 l, 2014; and aliens determined to have significantly abused the visa or
visa waiver programs. See id. at 34. 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. at3-5. 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
8

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 47 of 75
DHS's Authority to Priorilize Removal of Certain Aliens Unlowfully Present
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 1 1.3 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 immigra-
tion 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 ofl' DHS's hi ghest priorities. John son Prioritization Memoran dum 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
t Under the proposed policy, aliens in the second tier could be depriolitized iÎ, "in thejudgment of an ICE Field Office Director', CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Sen¿ice Centet Director, thele ale fàctot's indicating the alien is not a threat to
national security, border security, ol public safety, and should not therefbre be an enforcement
priolity." Johnson Priolitization Memorandum at 4. Aliens in the third tier could be deprioritized if, "in the judgment of an immiglation offìcer, the alien is not a threat to the integrity of the immigration system or there are tàctors suggesting the alien should not be an enforcement pt'iot'ity." Id. ar.5.
'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 selice; 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 seliously ill relative." Johnson Prioritization Memorandum at 6.
9

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 48 of 75
Opinions of the Office of Legal Counsel in Volume 38
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. S¿e
Chaney,470 U.S. at 831 (among the factors "peculiarly within fan 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 priori-
ties 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 cumently 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 classifìed as felonies in the convicting jurisdiction, offenses classified as "aggravated felonies" under the INA, and certain misdemeanor
offenses. Johnson Prioritization Memorandum at 34. 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.9., 8 U.S.C. $ 1226(c)(l)(D) þroviding 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,55l 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 overiding 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
10

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 49 of 75

DHS's Authority to Prioritize Removal of Certain Aliens Unløwfully Present

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 identifo 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.o

il.

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, proposed policy discussed above.

a'Wnde

who are begin by

not removal priorities under the discussing the history and curent

practice of deferred action. We then discuss the legal authorities on which defened

o ln Crane v. Napolitano, a district courl recently concluded in a non-precedential opinion that the

INA "mandates the initiation of removal proceedings whenever an immigration ofhcer encountets 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. See Crane v. Napolitano,

$N1o2.235:(1b2X-2cXvA-0))3.2T4h7e-Oc,o2u0r1t 3lateÌr/Ldism82is1s1e6d60th,eactas*e4fo(Nr l.aDc.k

ofjurisdiction. Tex. July 3l).

Although the opinion lacks plecedential value, we have nevertheless considered whether', as it suggests,

the text ofthe INA categorically forecloses the exercise ofenforcement discretion with respect to aliens

who have not been formally admitted. The distlict coult's conclusion is, in our view, inconsistent with

the Supleme Court's reading of the INA as permitting immiglation officials to exercise enforcement

discretion at any stage of the removal plocess, including when deciding r,vhethet' to initiate removal

proceedings against a particular alten. See Arizona, 132 S. Ct. at2499; Am.-Arab Anli-Disøim. Cotnm.,

525 U.S. at 483-84.It is also difficult to square with authorily holding that the presence of mandatory

language in a statute, standing alone, does not necessarily limit the Executive BI'anch's enfolcernent

discletion, see, e.g. , Chaney, 470 U.S. at 835; Inmales of At tica Corr. Facility v. Rockefeller, 477 F .2d

375,381 (2d Cr'. 1973).

11

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 50 of 75
Opinions of the Office of Legal Counsel in Volume 38
action relies and identiff 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 ç72.03[2)lh] (1998)); see USCIS, Standard Operating Proceduresþr Handling DeferredAction Requests at USCIS Field Offices at3 (2012) ("USCIS SOP"); INS
Operating Instructions $ 103.1(a)(lXii) (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.t
5 Parole is available to aliens by statute "for urgent humanitarian l'easons or significant public
benefìt." 8 U.S.C. $ 1182(dX5XA). 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.
ld g 1255(a), and may eventually qualify them for Federal means-tested benefits, see $$ 1613,
1641(b)(4). Tempolary ptotected status is available to nationals ofdesignated foreign states affected by
armed conflicts, environmental disasters, and other extraordinary conditions. Id. $ 1254a. Defert'ed enf'orced departure, which "has no statutory basis" but rather is an exercise of'"the President's
constitutional powers to conduct foreign relations," may be granted to nationals ofappropriate fbreign states. USCIS, Adjudicator's Field Manual g 38.2(a) (2014). Extended voluntary departure was a remedy derived from the voluntary departure statute, which, before its amendmentin 1996, permitted
the Attorney General to make a fìnding of removability if an alien agreed to voluntarily depart the
United States, without imposing a time limit for the alien's departure. S¿¿ 8 U.S.C. $$ 1252(b), 1254(e)
(1988 & Supp. II 1990); cf.8 U.S.C. g 1229c (current provision of the INA providing authority to grant voluntary departule, but limiting such grants to 120 days). Some commentatot's, howeveL, suggested
that extended voluntary departure was in fact a form of "discretionary relief formulated administrative-
ly undel the Attorney General's genelal authority for enforcing immigration law." Sharon Stephan,
Cong. Research Seru., 85-599 EPW , Exlended Voluntary Departure and Olher Granls of Blanket Relief
from Deporlationat I (Fe6.23,1985). It appeals that extended voluntary depaftule is no longel used
tbllowing enactment of the Immigration Act of 1990, which established the temporary protected status plogram. See U.S. Citizenship and Immigralion Services Fee Schedule, 75 Fed. Reg. 33446,33457 (June I l, 201 0) (proposed rule) (noting that "since I 990 neither the Attorney General nor the Secretaty have designated a class ol aliens tbl nationality-based 'extended voluntary depalture,' and there no longer are aliens in the United States benehting 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 tempolary protected status, Congress was "codif[ying] and supet'sed[ing]" extended voluntary departure). See generally Andorra Bluno et al., Cong. Research Sew.,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").
12

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 51 of 75

DHS's Authority to Prioritize Removal of Certain Aliens Unlawfully Presenl

The practice of granting defered action dates back several decades. For many years after the INA was enacted, INS exercised prosecutorial discretion to grant

"fancotnor-sp.r"ioLreittyte" rsftoatruLsetoonre'Wmioldveasb,lefroamlienEs.

who presented "appealing humanitarian 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"); se¿ INS Operating

Instructions g 103.1(a)(lXii) (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(aX1)(ä) (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. at484 (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(9) "seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations"); see also, e.9., 8 U.S,C.
g l1sa(a)(IXDXiXID, (V) (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 at3,7. Assuming it is not revoked, however, it represents DHS's decision not to

seek the alien's removal for a specihed 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(cXla); see 8 U.S.C. $ l32aaft)(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 fnow 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)(9XBXD and (aX9XCXiXD. 8 C.F.R.
$214.1a(dX3); 28 C.F.R. $ 1100.35(b)(2); Memorandum for Field Leadership, from Donald Neufeld, Acting Associate Director, Domestic Operations Direc-

torate, USCIS, Re: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(Ð(Ð of the Act at 42

l3

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 52 of 75
Opinions of the Office of Legal Counsel in Volume 38
(May 6, 2009) ("USCIS Consolidation of Guidance") (noting that "fa]ccrual of unlawful presence stops on the date an alien is granted deferred action"); see 8 U.S.C. $ 1182(a)(gXBXii) þroviding 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").u 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." USüS 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. at3.
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 imple-
mented 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. S¿¿ United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979-80 (8.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 Outqf-Status Nonimmigrant H-l Nurses,43 Fed. Req,.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.,
8D206779, Review of U.S. Refugee Resettlement Programs and Policies at 9, 12-
14 (19S0). 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 I 182(a)(9)(B)(i) imposes three- and ten-year bars on the admission of aliens (other than aliens admitted to pet'manent lesidence) who departed or wel'e removed flom the United States after
periods of unlawful presence of between I 80 days and one year, or one yeal or lrore. Section 1182(a)(9)(C)(i)(I) imposes an indefinite bar on the admission of any alien rvho, without being admitted, enters ol' attelrpts to reenter the United States atter previously having been unlawälly
present in the United States for an a1gtegale period of mole than one yeat'.
t4

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 53 of 75

DHS's Authority to Prioritize Removal of Certain Aliens Unløwfully Presenl

INS, from Gene McNary, Commissioner, INS, -Re; Family Fairness: Guidelines
for Voluntary Departure under I CFR 242.5 for the Ineligible Spouses and
Children of Legalized Aliens (Feb. 2, 1990) ("Family Fairness Memorandum");

see qlso 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:

l. Deferred Actionfor Battered Aliens Under the Violence Against Women Act. INS established a class-based deferred action program in 1997 for the benefit of
selÊpetitioners under the Violence Against Women Act of 1994 ("VAWA"), Pub.
L. No. 103-322, tit. IV, 108 Stat. 1796, 1902. VAWA authorized ceftain 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. $ a0701(a) (codified as amended at 8 U.S.C. $ l15a(a)(lXAXiii)-(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: Supple-

mental 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. ln 2000, INS reported to Congress
that, because of this program, no approved VAWA selÊpetitioner had been
removed from the country. See Bqttered 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 Hear-

ings").

2. Defewed Actionfor T and U Visa Applicants. Several years later, INS insti-

tuted a similar deferred action program for applicants for nonimmigrant status or

visas made available under the Victims of Trafflcking 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 "IJ visa" for victims of certain other

crimes and their family members.
$ 1101(a)(15XTXD, OXi)). In

1d $$ 2001,

107(e), 1513(bX3) (codified at
INS issued a memorandum

8 U.S.C. 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

opporlunity to avail themselves of the provisions of the VTVPA." Memorandum

15

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 54 of 75

Opiníons of the Office of Legal Counsel in Volume 38

for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael
D. Cronin, Acting Executive Associate Commissioner, INS, -Re.' Victims of

Trfficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum
#2-"7" and "(J" 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: Defewed

Action for Aliens with Bona Fide Applications for T Nonimmigrant Status at I
(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 þr U Nonimmigrant Status Appliconts at 5 (Oct. 8, 2003). In
2002 and 2007,INS and DHS promulgated regulations embodying these policies.

,See 8 C.F.R. $ 214.1l(kxl), Victims of Severe Forms of

(kX4), (m)(2)
Trfficking in

þPreormsounlgs;atEeldigbiybilNiîyewfoCrlo"s7s"ifiNcaontioimnmfoir-

grant Status, 67 Fed. Pteg. 4784,4800-01 (Jan. 31,2002)) (providing that any

T visa applicant who presents"primafacie 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)");
tion for Victims of Criminal

Aidc.ti$vi2ty1;4.E14lig(dib)(i2li)ly(pfroo,mu"Ulga"teNdonbiymNmeiwgraCnlat sSstiafitcuøs-,

72Fed. Reg. 53014, 53039 (Sept. 17,2007)) ("USCIS will grant deferred action or

parole to U-1 petitioners and qualiffing family members while the U-l petitioners

are on the waiting list" for visas.).
j. Deferred Action for Foreign Students Affected by Huwicane Katrina. As a
consequence of the devastation caused by Hurricane Katrina in 2005, several

thousand foreign students became temporarily unable to satisff the requirements
for maintaining their lawful status as F-l 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 (FAØ at I (Nov. 25,2005) (quoting 8 C.F.R. ç214.2(Ð(6)), available
at httpllwww.uscis.gov/sites/default/fliles/USCISÆIumanitarian/SpecialYo2}Situati

ons/Previous%20Speci alYo2}situations%20Byo/o20Topiclfaq-interim-student-relie

Êhurricane-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. at7. 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 Relieffor Foreign
Studenîs Adversely Impacted by Hurricane Katrina at l-2. (Nov. 25, 2005), availqble at http.llwww.uscis.gov/sites/default/files/files/pressrelease/F l Student_
I I 25_05_PR.pdf (last visited Nov. 19, 2014). USCIS explained that such

16

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 55 of 75

DHS's Authority to Priorilize Removal of Certain Aliens Unløwfully Presenl

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 l.

þr 4. Deferred Action 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. Memoran-
dum for Field Leadership, USCIS, from Donald Neufeld, Acting Associate

Director, USCIS, Re: Guidance Regarding Surttiving Spouses of Deceased U.S.
Citizens and Their Children at I (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 qualiffing

children who are residing in the United States" to apply for deferred action. Id.

at2, 6. USüS clarif,red 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 6.1

5. Deferred Action for Childhood Awivols. 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 Commis-

sioner, CBP, et al., from Janet Napolitano, Secretary, DHS, Re: Exercising
Proseculorial Discreîion with Respect to Individuals Wo 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;
aruived 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 75, 2012; satisfies certain educational or military

service requirements; and neither has a serious criminal history nor "poses athreat

to national security or public safety." See id. DHS evaluates applicants' eligibility

for DACA on a case-by-case basis. Childhood Arrivals (DACA) Toolkit:

See id. at
Resources

2fo; rUSCComISm, uDneitfyerPueadrtnAecrtsionatfollr

("DACA Toolkit"). Successful DACA applicants receive deferred action for a

7 Sevelal months after the deferred action program was announced, Congress eliminated the requilement that an alien be marlied to a U.S. citizen "for at least 2 yeals at the time of the citizen's death" to retain his ol her eligibility fol lawful immigration status. Department of Homeland Security Appropriations Act, 2010, Pub. L. No. I l1-83, $ 568(c), 123 Stat. 2142,2186 (2009). Concluding that this legislation rendered its surviving spouse guidance "obsolete," USCIS r,vithdlew its earlier guidance
and treated all pending applications fol deferled action as visa petitions. See Memorandum for
Executive Leadership, USCIS, from Donald Neufeld, Acting Associate Ditector, USCIS, et al., Re:
Additional Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children
(REVISED) at 3, l0 (Dec.2,2009).

t7

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 56 of 75
Opinions of the Office of Legal Counsel in Volume 38
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.'
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.' 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 \¡/as considering VAWA reauthorization legislation in 2000, INS officials testified before Congress about
their deferued action program for VAWA selÊpetitioners, explaining that
"[a]pproved IVAWA] selËpetitioners 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
t Befole 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 peurrissible, provided that immigratiorr officials retained discretion to cvaluatc cach application on an individualized basis. Vy'e noted that immigration offìcials typically consider factors such as having been
brought to the United States as a child in exercising their discretion to grant defered action in
individual cases. We explained, however, that extending defered action to individuals who satisfied these and other specifìed 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 fbr defen'ed 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 celtain prior class-wide defered action programs, the concems animating DACA wele nonetheless consistent with the types of concerns that have customalily guided the exercise of immigration enforcement discretion.
n Congress has considered legislation that would limit the practice ofgranting deferled 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 nart'ow circumstances. S¿e H.R. 2497, ll2th Cong. (2011); S. 1380, 1l2th Cong. (201 l). Neithel chamber,
however, voted on the bill. This year, the House passed a bill that purported to bar any funding for DACA ol other class-wide deferred action programs, H.R. 5272, ll3th Cong. (2014), but the Senate has not considered the legislation. Because the Suprerne Coult has instructed that unenacted legislation isanunreliableindicatoroflegislativeinlent,seeRedLÌonBroad.Co v FCC,395U.S.367,38ln.ll
(1969), we do not dlarv any inference regardir.rg congressional policy from these unenacted bills.
18

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 57 of 75

DHS's Authorify to Prioritize Removal of Certain Aliens Unløwfully Present

Violence Protection Act of 2000, Pub. L. No. 106-386, $ 1503(dX2), l14 Stat. 1464,1522 (codified at 8 U.S.C. $ l15a(a)(IXDXiXII), (IV)).''
Congress demonstrated a similar awareness of INS's (and later DHS's) de-

ferred 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. ç 1227(d)(1)). Congress further clarified that "[t]he denial of a request for an administrative stay of removal under this subsec-
tion shall not preclude the alien from applying for . . . deferred action." Id.lt also

directed DHS to compile a report detailing, among other things, how long DHS's

"specially trained IVAWA] 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. ç238. 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 defened 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), Il5 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.

ll7 108-136, $ 1703(c)-(d),

Stat. 7392, 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)(lXA), 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 family-

sponsored immigrants or immediate relatives).

Finally, Congress acknowledged the practice of granting deferued action in the
REAL ID Act of 2005, Pub. L. No. 109-13, div. B, ll9 Stat.231,302 (codified at

to Five years later', in the Violence Against Women and Depaftment of Justice Reauthorization Act
of2005, Pub. L. No. 109-162, 119 Stat. 2960,Congress specified that, "[u]pon the approval ofa petition as a VAWA self-petitioner, the alien... is eligible for work authorization." 1d $ 814(b)
(codified at 8 U.S.C. g 1l5a(a)(l)(K)). One of the Act's sponsors explained that while this plovision was intended to "give[] DHS statutory autholity to grant rvolk authorization . . . without having to rely upon defèred action . . . [t]he currerìt practice of granting delèr'red action to apploved VAWA self-petitioners should continue." I 5 1 Cong. P.ec. 29334 (2005) (statement of Rep. Conyers).

t9

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 58 of 75
Opinions of the Office of Legal Counsel in Volume 38
49 U.S.C. $ 30301 note), which makes a state-issued driver's license or identifica-
tion card acceptable for federal purposes only if the state verifies, among other things, that the card's recipient has "[e]vidence of []awful [s]tatus." Congress
specified that, for this purpose, acceptable evidence of lawful status includes proof of, among other things, citizenship, lawful petmanent or temporary residence, or "approved deferred action status." Id. $ 202(c)(2XBXviii).
B
The practice of granting deferred action, like the practice of setting enforce-
ment 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. at2499. 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 presenoe ft-rr purpt-rses of 8 U.S.C. $ 1182(a)(9)(B)(i) and (aXgXCXi)(l). Third, class-based deferued action programs, like those for VA'WA
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 satisff 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 pressnss-i5 an inevitable element of almost any exercise of discretion in immigration enforcement. Any decision not to remove an unlawfully preserit 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
20

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 59 of 75
DHS's Authority to Prìoritize Removal of Certain Aliens Unlawfully Present
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 con-
fers-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 atall, 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 defrnes 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.,S¿e 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 ß2aaþ)(3) as "permissive" and largely "unfettered")." Although the INA
rrSection ß2aaþ)(3) was enacted in 1986 as part of IRCA. Before then, the INA contained no
provisions complehensively addressing the employment of aliens or explessly delegating the authority to regulate the employment of aliens to a responsible federal agency. INS assumed the authorify to prescribe the classes ofaliens authorized to work in the United States under its general responsibility to
administer the immigration laws. In 1981, INS promulgated legulations codiffing its existing
procedures and criteria tbr glanting employment authorization. See Employment Aulhorization to AliensintheUnitedstates,46 Fed.Reg.25079,25080-81 (May5, l98l)(citing8U.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 ceftain circumstances.
8 C.F.R. ö 109. I (bX7) (1982).In IRCA, Congress introduced a "comprehensive scheme prohibiting the employment of illegal aliens in the United States," Hofman Plaslic Compounds, Inc. tt. NLRB, 535 U.S. 137, 147 (2002), to be enforced primarily through criminal and civil penalties on employers who knowingly employ an "unautholized alien." As relevant hele, Congress defined an "unauthorized alien" balred flom 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. $ l32aa(h)(3) (emphasis added). Shortly aftel 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 Genel'al' does not recognize the Attorney General's autholity to glant work authorization except to those aliens who have already been granted specifìc 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 eflèct to both refèrences 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 autholized employment by the Attorney General through the
21

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 60 of 75
Opinions of the Office of Legal Counsel in Volume 38
requires the Secretary to grant work authorization to particular classes of aliens, see, e.g.,8U.S.C. $ ll58(c)(l)(B) (aliens granted asylum), it places few limitations on the Secretary's authority to grant work authorization to other classes of aliens. Fufther, 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. 51231(aX7)
(permitting the Secretary under ceftain 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(cXla); see qlso id. $274a.12(c)(8)
(applicants for asylum), (c)(10) (applicants for cancellation of removal); supra
note 1 1 (discussing 1981 regulations).
The Secretary's authority to suspend the accrual of unlawful presence of deferued 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.
$ 1 182(a)(9XBXi) and (a)(9)(CXiXD 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)(9XBXii). 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 1 182(a)(9XBXi) or section
I182(a)(9)(C)(i). And DHS regulations and policy guidance interpret a "period of
stay authortzedby 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.
$ 1 100.35(b)(2); USüS Consolidation of Guidance at 42. The final unusual feature of deferred action programs is particular to class-
based programs. The breadth of such programs, in combination with the f,irst two features of deferred action, may raise particular concerns about whether immigra-
tion 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 ofthe statute it is entlusted to administer").
22

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 61 of 75
DHS's Authority ro Prioritize Removal of Certain Aliens Unløwfully Presenl
ceftain 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. l5-18. 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 at676-77; see qlso 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.'' Much as is the case with those pro-
grams, inviting eligible aliens to identiff themselves through an application
process may serve the agency's law enforcement interests by encouraging lowerpriority individuals to identiff 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 defened 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
12For example, since 1978, the Department of Justice's Antitrust Division has implemented a "leniency plogram" undet which a corporation that reveals an antitrust conspiracy in which it participated may receive a conditional promise that it will not be prosecuted. S¿e Dep't of Justice,
Frequently Asked Queslions Regarding lhe Anlilrust Division's Leniency Program and Model Leniency Letters (November 19, 2008), available at hrtp:llwwwjustice.gov/atrlpublic/criminal/239583.pdf (last visited Nov. 19,2014); see also Internal Revenue Manual $ 9.5.11.9(2) (Revised IRS Voluntary Disclosure Practice), qvailable at http:llwww.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, Fugilive Safe Surrender FAQs, available athttp:llwww.usmarshals.gov/safèsurrender/faqs.html (last visited Nov. 19, 2014) (stating that fugitives who sun'ender at designated sites and times under the "Fugitive Safe Sun'ender" pl'ogram ale likely to receive "favolable consideration").
23

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 62 of 75
Opinions of the Office of Legal Counsel in Volume 38
(19S5) (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 asseftion 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,55l 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 ne\¡/ 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 Glichnan,96 F.3d at 1123, and Crowley Cøribbean 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 defemed 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.
24

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 63 of 75
DHS's Authority to Prioritize Removal of Certain Aliens Unløwfully Presenî
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 hrst 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 expeftise. 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 signifìcant increases in funding, the likelihood that any individu-
al 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 hrst 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
25

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 64 of 75
Opinions of the Office of Legal Counsel in Volume 38
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, I32 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. ,S¿e Shahoulian E-mail; see also 8 U.S.C. $ 1356(m); 8 C.F.R. $ 103.7(bXlXiXC), (bxlXiXHH). 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. ,lee 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 identiff 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 justiff 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,l32 S. Ct. at2499.
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);1N^Sv. 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. 85-1L99, at7 (1957)). The INA provides a path to lawful status for the parents, as well as other immedi-
ate 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
26

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 65 of 75
DHS's Authorily to Priorilize Removal of Certaín Aliens Unlawfully Presenî
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. $ I 151(bX2XAXi); 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.,8U.S.C. $ru27@) (providing that aliens are generally eligible to become naturalized citizens after five years of lawful permanent residence); ld
g la30(a) (alien spouses of U.S. citizens become eligible after three years of lawful permanent residence); Demore v. Kim, 538 U.S. 5I0, 544 (2003)." 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 specifred 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(bxl). DHS's proposal to focus on the parents of U.S. citizens and LPRs thus tracks a congres-
sional 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
t'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. $ ll53(a)(2). However, the exclusion of LPRs'parents from this provision does not appear to reflect a conglessional judgment that, until they attain citizenship, LPRs lack an interest in being united with their parents comparable to their intel'est in being united with their other immediate relatives. The distinction between parents and other relatives originated with a 1924 sfafite that exempted the wives and minol children of U.S. citizens flom immigration quotas,
gave "prefere¡çs sf¿f¡s"-eligibility fol a specially designated pool of immigrant visas-to other
relatives of U.S. citizens, and gave no favol'able tleatment to the lelatives of LPRs. Immigration Act of 1924,Pub. L. No.68-139, $$4(a),6,43 Stat. 153, 155-56. ln 1928, Congress extended preference status to LPRs' wives and minol childlen, reasoning that because such t'elatives would be eligible lbr visas without regard to any quota when their LPR relatives became citizens, granting prefet'ence status to LPRs'wives and minor children would "hasten[]" the "family reunion." S. Rep. No.70-245,at2 (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 mirloled, and was designed to complement, the special visa status given to wives and minor children of U.S. citizens. In 1965, Congless eliminated the basis on which the distinction had rested by exempting all "immediate relatives" of U.S. citizens, including parents, from numerical resttictions on immigration. Pub. L. No. 89-236, $ 1,79 Stat. 911,911. But it did not amend eligibility for prefelence status for relatives of LPRs to reflect that change.'We have not been able to discern any
lationale for this omission in the legislative history or statutory text of the 1965 law.
27

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 66 of 75

Opínions of the Ofrtce of Legal Counsel in Volume 38

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, agrant 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, s¿e 8 U.S.C. $ 1324a(hx3), 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)(1a).
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
$201(a),

of strong family and community
100 Stat.3359,3394 (1986)

(tcieosd.if^iSeede

IRCA, Pub. L. as amended

No. 99-603,
at 8 U.S.C.

$ 1255a(a)(2))
United States

(granting lawful status to
since January l, 1982);

certain aliens
id. $ 302(a)

unlawfully present in the (codified as amended at

, 8 U.S.C. $ 1160) (granting similar relief to certain agricultural workers); H.R.

Rep. No. 99-682, pt. 1, at49 (1986) (stating that aliens present in the United

States for five years "have become apart of their communitiesl,] . . . have strong
family ties here which include U.S. citizens and lawful residents[,] . . . have
built social networks in this countryf, 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

28

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 67 of 75

DHS's Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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 defered
action under the program would receive deferred action only if he or she "pre-
sent[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 USüS 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 continu-
ously resided in the United States since before January l, 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 defered 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. at2199.The proposed program would provide a mechanism for families to remain together, depending on their circumstances, for some or all of the intervening period.'a Immigration officials have on several

raDHS's proposed program would likely not permit all potentially eligible pal'ents to remain

together with theil children for the entile duration of the time until a visa is awarded. In parlicular,

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 permanent resident status certain aliens present in the United

the Attorney
States if they

General become

to adjust to eligible for

immiglant visas). They would thus need to leave the country to obtain a visa at a U.S. consulate

abload. See id. g l20l(a); Cuellar de Osorio,134 S. Ct. at2197-99. But once such parents left the

country, they would in most instances become subject to the 3- or'l0-year bar under 8 U.S.C.

g I I 82(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 ploposed ploglam would neveltheless enable other fàmilies to stay

togethel without regard to the 3- or lO-yeal bar. And even as to those fämilies with parents who would

become subject to that bar, the proposed deferred action program would have the effect ofreducing the

29

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 68 of 75
Opinions of the Office of Legal Counsel in Volume 38
occasions deployed deferred action programs as interim measures for other classes
of aliens with prospective entitlements to lawful immigration status, including VAWA selÊpetitioners, bona frde 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.'' 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 defened 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 popula-
tion 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 suppofi.
ts Several extended voluntary departule progl'ams have been animated by a similal 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 glanted legal status under IRCA-aliens who would eventually "acquire lawful permanent l'esident status" and
be able to petition on behalf of their family membels. Family Fairness Memorandum at l; see supra
pp. 14-15. Later that year, Congress granted the beneficia¡ies of the Family Fairness pl'ogram an indefìnite stay of deportation. ,See Immigration Act of 1990, Pub. L. No. 101-649, {i 301, 104 Stat. 4978,5030. Although it did not make that grant of relief effective for nearly a year, Congress clalified that "the delay in effectiveness of this section shall not be construed as reflecting a Conglessional belief that the existing family fairness program should be modifìed in any way before such daTe." Id. g 301(g). INS's policies lbr qualifying Third Prefèrence visa applicants and nurses eligible for H-l nonimmigrant status likervise extended to aliens with plospective entitlements to lawful status. See supra p. 14.
30

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 69 of 75
DHS's Authority 1o Prioritize Removal of Certain Aliens Unlawfully Present
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 neverthe-
less only a fraction of the approximately l1 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 at22 (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
Stotes: 1990 to 2000 at 10 (2003) (estimating an undocumented alien population
of 3.5 million in 1990); see suprq notes 5 & 15 (discussing extended voluntary
depafture 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 considera-
tions-responding to resource constraints and to pafücularized 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 communitythat Congress itself has granted favorable treatment in the immigration process.
The program provides for the exercise ofcase-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.
I
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
31

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 70 of 75

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 ifthe general eligibility criteria are satisfied.

But the proposed program for parents of DACA recipients is unlike the pro-

posed 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 þermitting citizens

family members.
to petition for

See, e.g.,8 U.S.C. $ 1151(bX2XAXi) parents, spouses and children); id.

$ 1229b(bx1) (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 with a

States.
lawful

^See DACA Toolkit status."). Although

at 8 ("Deferued action . . . does not provide you
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 defered 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 implemen-
tation 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

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 71 of 75
DHS's Authority to Prioritize Removal of Certain Aliens Unlowfully 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 justiffing 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 defened 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.
uI.
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 AssistanÍ Attorney General
Office of Legal Counsel
JJ

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 72 of 75
C

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 73 of 75
Secretary
U.S. Department of Homeland Security Washington, DC 20528
Homeland Security

June 15, 2012

MEMORANDUM FOR:

David V. Aguilar Acting Commissioner, U.S. Customs and Border Protection

Alejandro Mayorkas Director, U.S. Citizenship and Immigration Services

FROM:

John Morton Director, U.S. Immigration and Customs Enforcement
/J ~ JSaencertetNaraypoolfitHanoomeJJ{//ntr8J'e--curfty1/

SUBJECT:

Exercising Proset¢orial Discretion with Respect to Individuals Who Came to thei.Jnited States as Children

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:

• came to the United States under the age of sixteen; • has continuously resided in the United States for a least five years preceding the date of
this memorandum and is present in the United States on the date of this memorandum; • 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 ofthe 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.

www.dhs.gov

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 74 of 75
Our Nation' s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.
As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.
1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS):
• With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.
2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
• ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.
• ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
• ICE is directed to begin implementing this process within 60 days of the date of this memorandum.
• ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
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
2

Case 1:14-cv-00254 Document 1 Filed in TXSD on 12/03/14 Page 75 of 75
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. For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action. This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.
~jJz~
3

 
 Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 1 of 32

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

STATE OF TEXAS; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN;

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:14-cv-254 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 2 of 32

ATTORNEY GENERAL BILL SCHUETTE, People of

)

Michigan;

)

)

GOVERNOR PHIL BRYANT, State of Mississippi;

)

)

GOVERNOR PAUL R. LEPAGE, State of Maine;

)

)

GOVERNOR PATRICK L. MCCRORY, State of North

)

Carolina; and

)

)

GOVERNOR C.L. “BUTCH” OTTER, State of Idaho,

)

)

Plaintiffs, )

)

vs.

)

)

UNITED STATES OF AMERICA;

)

)

JEH JOHNSON, Secretary of the Department of

)

Homeland Security;

)

)

R. GIL KERLIKOWSKE, Commissioner of U.S. Customs )

and Border Protection;

)

)

RONALD D. VITIELLO, Deputy Chief of U.S. Border

)

Patrol, U.S. Customs and Border Protection;

)

)

THOMAS S. WINKOWSKI, Acting Director of U.S.

)

Immigration and Customs Enforcement; and

)

)

LEÓN RODRÍGUEZ, Director of U.S. Citizenship and

)

Immigration Services,

)

)

Defendants. )

)

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. The State of Texas, the State of Alabama, the State of Arizona, the

State of Arkansas, the State of Florida, the State of Georgia, the State of Idaho, the

State of Indiana, the State of Kansas, the State of Louisiana, the State of Montana,

the State of Nebraska, the State of North Dakota, the State of Ohio, the State of

2

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 3 of 32
Oklahoma, the State of South Carolina, the State of South Dakota, the State of Utah, the State of West Virginia, the State of Wisconsin, and Attorney General Bill Schuette of Michigan, Governor Phil Bryant of Mississippi, Governor Paul R. LePage of Maine, Governor Patrick L. McCrory of North Carolina, and Governor C.L. “Butch” Otter of Idaho (collectively, “Plaintiffs” or “Plaintiff States”) seek declaratory and injunctive relief against the United States and the above-named federal officials (collectively, “the Defendants”) for their violations of the Take Care Clause, U.S. CONST. art. II, § 3, cl. 5, and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
2. This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.
3. On November 20, 2014, the President of the United States announced that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States.
4. The President candidly admitted that, in so doing, he unilaterally rewrote the law: “What you’re not paying attention to is, I just took an action to change the law.”
5. In accordance with the President’s unilateral exercise of lawmaking, his Secretary of the Department of Homeland Security (“DHS”) issued a directive that purports to legalize the presence of approximately 40% of the known undocumented-immigrant population, and affords them legal rights and benefits. See Memorandum from Jeh Charles Johnson, Exercising Prosecutorial Discretion
3

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 4 of 32
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) (“DHS Directive”) (attached as Ex. A).
6. That unilateral suspension of the Nation’s immigration laws is unlawful. Only this Court’s immediate intervention can protect the Plaintiffs from dramatic and irreparable injuries.
I. THE PARTIES 7. Plaintiffs are the State of Texas, the State of Alabama, the State of Arizona, the State of Arkansas, the State of Florida, the State of Georgia, the State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the State of Montana, the State of Nebraska, the State of North Dakota, the State of Ohio, the State of Oklahoma, the State of South Carolina, the State of South Dakota, the State of Utah, the State of West Virginia, the State of Wisconsin, the Attorney General of Michigan, and the Governors of Mississippi, Maine, North Carolina, and Idaho. 8. Defendant United States of America is sued under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 703 (“[T]he action for judicial review may be brought against the United States.”). 9. Defendant Jeh Johnson is the Secretary of DHS. Johnson 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”). Johnson authored the DHS Directive.
4

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 5 of 32
10. Defendant R. Gil Kerlikowske is the Commissioner of CBP. Defendant Kerlikowske shares responsibility for implementing the DHS Directive. And Kerlikowske is Defendant Vitiello’s supervisor.
11. Defendant Ronald D. Vitiello is the Deputy Chief of U.S. Border Patrol. Vitiello authored a May 30, 2014, memorandum entitled “Unaccompanied Alien Children Transfer Process Bottleneck” (“Vitiello Memorandum”), which recognizes that Defendants’ abandonment of the federal immigration laws caused and is continuing to cause crises in the Plaintiff States.
12. Defendant Thomas S. Winkowski is the Acting Director for ICE. ICE administers a formal program for allowing undocumented immigrants to apply for deferred action and to appeal for reconsideration if deferred action is denied.
13. Defendant León Rodríguez is the Director of USCIS. Rodríguez and USCIS administer the Deferred Action for Childhood Arrivals (“DACA”) program. President Obama announced the DACA program on June 12, 2012, to allow undocumented immigrants to stay in the United States in violation of the Nation’s immigration laws. And USCIS is the principal agency charged with implementing the DHS Directive.
II. JURISDICTION AND VENUE 14. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, art. II, § 3, cl. 5, and the APA, 5 U.S.C. § 706. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action or claim against the United States. Finally, the Court
5

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 6 of 32
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.
15. 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 the Plaintiffs’ claims occurred in this District.
16. 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.
III. FACTUAL ALLEGATIONS A. The DREAM Act 17. On March 26, 2009, Senator Richard Durbin and Representative Howard Berman introduced the DREAM Act in the U.S. Senate and House, respectively. See DREAM Act of 2009, S. 729 (111th Cong.) (2009); American Dream Act, H.R. 1751 (111th Cong.) (2009). Both bills would have allowed undocumented immigrants to apply for conditional permanent resident status if, among other things, (a) they entered the United States before their 16th birthdays, and (b) they had been in the United States continuously for five years. 18. The President repeatedly and forcefully urged Congress to pass the DREAM Act. 19. And the President consistently insisted that he could not achieve the goals of the DREAM Act on his own. He said, for instance:
6

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 7 of 32
• “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.” (May 5, 2010)
• “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.” (Oct. 25, 2010)
• In response to a question about whether he could stop deportation of undocumented 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
7

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 8 of 32
would not conform with my appropriate role as President.” (Mar. 28, 2011) (emphasis added) • “I can’t solve this problem by myself. . . . We’re going to have to change the laws in Congress.” (Apr. 20, 2011) • “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.” (Apr. 29, 2011) • “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.” (May 10, 2011) • “[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 Constitution is written.” (July 25, 2011) • “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.” (Sept. 28, 2011) 20. Neither congressional chamber passed the DREAM Act. B. DACA 21. The President then asked the Department of Justice’s Office of Legal Counsel (“OLC”) whether he could effectuate the goals of the un-enacted DREAM Act by executive fiat. OLC said “yes,” with certain conditions. In particular, OLC advised the President that he could use the concept of “deferred action for childhood
8

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 9 of 32
arrivals,” or “DACA,” to stop deporting individuals who (a) entered the United States before their 16th birthdays, and (b) had been in the United States continuously for five years. See Memorandum Opinion for the Secretary of Homeland Security, from Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of Legal Counsel, The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 18 n.8 (Nov. 19, 2014) (“OLC Memo”) (attached as Ex. B) (noting that OLC orally advised the President “[b]efore DACA was announced” in 2012). OLC further advised, however, 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.” Ibid.
22. Notwithstanding his repeated insistence that he could not stretch his executive powers any further, the President announced his unilateral creation of the DACA program on June 15, 2012.
23. At the President’s direction, the DHS Secretary then suspended the Nation’s immigration laws for approximately 1.7 million undocumented immigrants. See Memorandum from Janet Napolitano, Secretary of the Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012) (“DACA Memo”) (attached as Ex. C).
9

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 10 of 32
24. The President and his DHS Secretary ordered federal immigration officials to extend “deferred action” to undocumented immigrants who (a) entered the United States before their 16th birthdays, and (b) had been in the United States continuously for five years.
25. Although OLC had cautioned the President that it was “critical” to DACA’s legality that the Administration evaluate every application on a case-bycase basis, the President and DHS ignored that advice. According to the latest figures available, the Administration granted deferred action to 99.5-99.8% of DACA applicants.
C. Nava-Martinez 26. The Executive Branch did not stop at dispensing with the Nation’s immigration laws. Rather, as this Court already has found, the Administration adopted a policy that encouraged international child smuggling across the TexasMexico border. See Order, United States v. Nava-Martinez, No. 1:13-cr-00441, at 2 (S.D. Tex. Dec. 13, 2013) (“Nava-Martinez Order”). 27. The defendant in Nava-Martinez, an admitted human trafficker, was caught attempting to smuggle a ten-year-old El Salvadorean girl into the United States. Id. at 1. 28. The 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.” Ibid.
10

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 11 of 32
29. 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 this Court observed, “[t]his DHS policy is a dangerous course of action.” Ibid. 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.
30. Moreover, this 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 Court explained that citizens of the United States bear the economic brunt of this policy, because DHS “funds 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.” Ibid.
D. The Defendants Cause a Humanitarian Crisis 31. The Defendants’ policies (including DACA and the policy described in Nava-Martinez) have had and continue to have dire consequences in the Plaintiff States. In the summer of 2014, an enormous wave of undocumented immigrants 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 (Jun. 12, 2014). 32. As many as 90,000 undocumented children are expected to be detained this year, and as many as 140,000 may be detained in 2015. Brett LoGiurato, There’s a Staggering Humanitarian Crisis on the US Border, and It’s Only Going to
11

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 12 of 32
Get Worse, BUS. INSIDER (Jun. 16, 2014). By comparison, only 6,000 to 7,500 children were detained between 2008 and 2011, under 14,000 were detained in 2012, and only 24,000 were detained in 2013. Alicia A. Caldwell, Border Patrol Resources Stretched Thin As Children Illegally Enter U.S. Alone, ASSOCIATED PRESS (Jun. 5, 2014).
33. 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.
34. But the humanitarian crisis is by no means limited to unaccompanied children. There is also “an unprecedented surge of families crossing illegally into the U.S.” 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 acknowledge that “the numbers appear to be substantial.” Ibid.
35. This wave of immigration has been concentrated in the Rio Grande Valley of South Texas. Miroff & Partlow, supra. “Every day, hundreds of Central American migrants, in groups as large as 250 people, are wading across the muddy Rio Grande.” Ibid.
36. The crisis has imposed enormous law enforcement costs on the Plaintiff States. For example, the Texas Department of Public Safety estimated that it was spending $1.3 million a week on troopers and resources to deal with the
12

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 13 of 32
immigration surge; in addition, Governor Perry deployed 1,000 National Guard troops to the border at a cost of $38 million.
37. This crisis was caused by the immigration policies of the federal government, including the policy that this Court has already held to be unlawful. As Defendant Vitiello explained in his May 30th 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.” And the Obama Administration acknowledges that there is a “growing perception minors are crossing the border because they feel they will not be deported by the administration.” LoGiurato, supra. 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. (Jun. 17, 2014).
38. The President 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 repercussion for such a decision.” That in turn “could lead to a surge in more illegal immigration.” As the President concluded, “no matter how decent they are, no matter their reasons, the 11 million who broke these laws should be held accountable.”
13

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 14 of 32
39. The Defendants, however, have 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. And the total number of undocumented 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).
40. 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 officials said they couldn’t guarantee that they would pursue all cases in which immigrants do not show up for follow-up appointments.” Ibid. 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 (Jun. 16, 2014).
41. Unsurprisingly, the undocumented immigrants 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 undocumented immigrants about why they came, “the results showed overwhelmingly that the immigrants, including those classified as
14

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 15 of 32
. . . unaccompanied children, were motivated by the belief that they would be allowed to stay in the United States.” Ibid.
42. Multiple reports indicate that undocumented immigrants are counting on federal officials for help in reuniting with their friends or family in the U.S. Hundreds of Central American migrants “turn[ ] themselves in to the Border Patrol” on a daily basis. Miroff & Partlow, supra. One undocumented immigrant 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 undocumented immigrants interviewed by Border Patrol agents for their recent report “stated that they had family members or, to a lesser extent, friends already living in the U.S.” York, supra.
43. And the Defendants have conceded that their failure to enforce the federal immigration laws has increased the flow of illegal immigration across the Texas-Mexico border. See Vitiello Memorandum. The effects of that failure have caused acute crises in the Plaintiff States.
E. The President “Change[s] the Law” 44. Between his 2012 DACA announcement and the midterm elections in November 2014, the President repeatedly acknowledged that his non-enforcement efforts already had reached the outer limit of his administrative powers, and that
15

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 16 of 32
any further transformation of the immigration system 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.” (Sept. 20, 2012)
• “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 that I can on my own.” (Oct. 16, 2012)
• 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.” (Jan. 30, 2013)
• 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 and implement it.” (Jan. 30, 2013)
16

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 17 of 32
• “This is something I’ve struggled with throughout my presidency. The problem is that you know 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.” (Feb. 14, 2013)
• “I think that it’s 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.” (July 16, 2013)
• “[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.” (Sept. 17, 2013) (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
17

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 18 of 32
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.” (Nov. 25, 2013) • “[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 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 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.” (Mar. 6, 2014) (emphasis added) 45. Accordingly, the President repeatedly called on Congress to pass an immigration reform bill. On June 27, 2013, the Senate passed a bill that, among other things, would have created a pathway to citizenship for undocumented immigrants. See Border Security, Economic Opportunity, & Immigration Modernization Act, S. 744 (113th Cong.) (2013). The House, on the other hand, did not pass similar legislation.
18

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 19 of 32
46. Before the midterm elections in November 2014, Democrats in the Senate urged the President not to act unilaterally because it “could be so politically damaging in their states that it would destroy their chances to hold control of the Senate.” Michael D. Shear & Julia Preston, Obama Pushed ‘Fullest Extent’ of His Powers on Immigration Plan, N.Y. TIMES (Nov. 28, 2014). The President honored that request.
47. On November 20, 2014, the President announced that he would unilaterally create legal protections for approximately 4 million undocumented immigrants. Under the President’s plan, the undocumented parents of U.S. citizens and legal permanent residents would receive deferred action status, as well as work permits and tolling of their unlawful presence in the United States. The President also expanded DACA to hundreds of thousands of additional undocumented immigrants.
48. The President candidly admitted that his plan was unilateral legislation: “What you’re not paying attention to is, I just took an action to change the law.”
49. The President further admitted that he was changing the law because Congress chose not to: “[W]hen members of Congress question my authority to make our immigration system work better, I have a simple answer: Pass a bill. . . . And the day I sign that bill into law, the actions I take will no longer be necessary.”
50. The President also made clear that he was “offer[ing] the following deal”: “[I]f you’ve taken responsibility, you’ve registered, undergone a background
19

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 20 of 32
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.”
F. The DHS Directive 51. The President’s new policies were effectuated through Defendant Johnson’s DHS Directive. The DHS Directive closely resembled, and purported to “supplement[ ] and amend[ ],” the DACA Memo. See Exs. A & C. 52. In particular, Johnson instructed USCIS “to expand DACA as follows:” by “[r]emov[ing] the age cap” that had previously applied, by “[e]xtend[ing] DACA renewal and work authorization to three-years [sic]” from the previous two, and by “[a]djust[ing] the date-of-entry requirement” from June 15, 2007, to January 1, 2010. DHS Directive at 3-4. 53. Johnson also “direct[ed] USCIS to establish a process, similar to DACA” for extending deferred action to the parents of citizens or lawful permanent residents. Id. at 4. In addition, the beneficiaries of deferred action are eligible to apply for federal work authorization. 54. The DHS Directive sets out a series of explicit criteria for who will be eligible for this expansion of deferred action. It requires applicants to “file the requisite applications for deferred action” and “submit biometrics for USCIS to conduct background checks.” Ibid. USCIS is instructed to “begin accepting applications from eligible applicants no later than one hundred and eighty (180) days” from the date of the Directive. Id. at 5. Moreover, USCIS, ICE, and CBP are directed to consider the new deferred action criteria “for all individuals [they]
20

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 21 of 32
encounter[ ],” including individuals in their custody, and individuals whose removal is pending. Ibid.
55. The Defendants have made clear that the DHS Directive will operate like the DACA program that came before it — namely, as an entitlement to relief for virtually every applicant who meets DHS’s eligibility criteria. That is evident from the President’s statement that the DHS Directive provides a “deal” to ensure that eligible applicants “will not be deported”; from the DHS Directive itself, which creates an application process and eligibility criteria in mandatory terms (like “shall” and “must”); and from the 99.5-99.8% acceptance rate for DACA applicants.
56. The purported legal justification for the DHS Directive is contained in the OLC Memo. See Ex. B. In relevant part, the memo analyzed two DHS proposals. The first proposal, which the Administration adopted, was the extension of deferred action status to parents of U.S. citizens and lawful permanent residents. The second proposal, which the Administration has not yet adopted, was the extension of deferred action status to parents of DACA recipients. OLC concluded that the first proposal would be a lawful exercise of enforcement discretion, but the second would not.
57. The OLC Memo acknowledged that there are three important differences between the proposed programs and exercises of enforcement discretion. Id. at 20-21. First, deferred action is not merely a “decision not to prosecute an individual for past unlawful conduct”; instead, it is “a decision to openly tolerate an undocumented alien’s continued presence in the United
21

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 22 of 32
States.” Id. at 20. Second, deferred action carries legal benefits beyond nonenforcement, such as the right to seek employment authorization. Ibid. Third, class-based deferred action programs, like the ones at issue here, “do not merely enable individual immigration officials to select deserving beneficiaries,” but instead “set forth certain threshold eligibility criteria and then invite individuals who satisfy these criteria to apply for deferred action status.” Ibid. In spite of all this, OLC concluded that the programs could potentially constitute exercises of enforcement discretion.
58. OLC then considered whether the proposals would be lawful under Heckler v. Chaney, 470 U.S. 821 (1985), a seminal enforcement-discretion case. OLC acknowledged that Chaney imposes four limitations on enforcement discretion. First, enforcement decisions must rely on factors that are within the agency’s expertise; second, the executive cannot effectively rewrite the laws under the guise of enforcement discretion; third, the executive cannot adopt a general policy that amounts to an abdication of its statutory responsibilities; and finally, enforcement discretion generally requires case-by-case decisionmaking. OLC Memo at 6-7.
59. OLC concluded that the first DHS proposal, which concerned the parents of citizens and legal permanent residents, met this test. Id. at 26-31. OLC based that conclusion, in part, on much smaller and more targeted deferred action programs that previous Congresses approved. In particular, OLC found probative that Congress previously approved deferred action for victims of violence and
22

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 23 of 32
trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks. Id. at 29-30. In OLC’s view, those previous congressional approvals legalized DHS’s unilateral effort to create the single largest deferred action program in our Nation’s history, permitting 4 million undocumented immigrants to remain in the country.
60. OLC reached the opposite conclusion with respect to the second DHS proposal, which concerned deferred action for parents of DACA recipients. Although OLC acknowledged that the two proposals had significant similarities, it nevertheless rejected the second proposal as unlawful because it was not “consistent with the congressional policies and priorities embodied in the immigration laws.” Id. at 33.
G. The DHS Directive Harms Plaintiffs 61. The DHS Directive will substantially increase the number of undocumented immigrants in the Plaintiff States. At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay, such as work authorization and the tolling of unlawful presence. White House officials also have stated that the beneficiaries of deferred action are eligible for Social Security and Medicare. The removal of the deportation threat, combined with the incentives to stay, will make remaining in the United States far more attractive for the affected classes of undocumented immigrants.
23

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 24 of 32
62. Moreover, the DHS Directive is certain to trigger a new wave of undocumented immigration. As explained above, DACA led directly to a flood of immigration across the Texas-Mexico border and a “humanitarian crisis” in Texas. The federal government itself recognized that its lax attitude toward the immigration laws caused this wave. See Vitiello Memorandum. The DHS Directive is a much larger step than DACA, and it will trigger a larger response.
63. The DHS Directive will increase human trafficking in the Plaintiff States. Such trafficking is largely controlled by the Mexican drug cartels, which are the most significant organized crime threat to the State of Texas. See Texas Department of Public Safety, Texas Public Safety Threat Overview at 2, 23 (Feb. 2013). By boosting undocumented immigration, the DHS Directive will bolster the business of the cartels and greatly exacerbate the risks and dangers imposed on Plaintiffs by organized crime. See Nava-Martinez Order at 6 (explaining that human trafficking “help[s] fund the illegal drug cartels which are a very real danger for both citizens of this country and Mexico”).
64. The Plaintiff States will be forced to expend substantial resources on law enforcement, healthcare, and education. Some of these expenditures are required or coerced by federal law. For instance, the Supreme Court has held that States are constitutionally obligated to provide free education to children of undocumented immigrants. Plyler v. Doe, 457 U.S. 202 (1982). Similarly, both Medicare and Medicaid require provision of emergency services, regardless of
24

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 25 of 32
documented immigration status, as a condition of participation. See 42 U.S.C. § 1395dd; 42 C.F.R. § 440.225.
65. Other expenditures are required by state law. For example, Texas law requires local governments to provide healthcare for the indigent. See Indigent Health Care and Treatment Act, TEX. HEALTH & SAFETY CODE §§ 61.001 et seq. In FY2014, Texas counties reported over $23 million in indigent health care expenditures. Texas law also requires nonprofit hospitals to provide unreimbursed care for the indigent as a condition of maintaining their nonprofit status. See TEX. HEALTH & SAFETY CODE § 311.043.
66. Other costs follow specifically from the extension of deferred action status. For instance, federal work authorization functions as a precondition for certain professional licenses in the 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”); 37 TEX. ADMIN. CODE § 35.21 (requiring employees of private security companies to submit application, including a copy of a current work authorization card); TEX. RULES GOVERN. BAR ADM’N, R. II(a)(5)(d) (making individuals who are “authorized to work lawfully in the United States” eligible to apply for admission as licensed attorneys).
67. Texas and other Plaintiff States also rely on Defendants’ evidence of lawful presence for certain benefits under their respective state laws. See, e.g., TEX. LAB. CODE § 207.043(a)(2) (extending unemployment benefits to individuals who were “lawfully present for purposes of performing the services”); TEX. FAM. CODE
25

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 26 of 32
§ 2.005(b)(4) (allowing an “Employment Authorization Card” to be used as proof of identity for the purposes of a marriage license application).
68. By authorizing a large class of undocumented immigrants to work in the United States, the DHS Directive will expose Texas to the cost of processing and issuing additional licenses and benefits. Moreover, it will cause Texas to issue such licenses and benefits to individuals who are not legally authorized to be in the country (or to take on the burdensome task of attempting to figure out which undocumented immigrants have bona fide deferred action status and which ones benefited from the unlawful DHS Directive).
69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodged in the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.
IV. CLAIMS FOR RELIEF COUNT ONE
Violation Of The Take Care Clause, Art. II, § 3, Cl. 5 70. The allegations in paragraphs 1-69 are reincorporated herein. 71. The DHS Directive violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3, cl. 5.
26

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 27 of 32
72. The Supreme Court has made clear that the Take Care Clause is judicially enforceable against presidential invocations of the dispensing power. See, e.g., Kendall v. United States, 37 U.S. (12 Pet.) 524, 612-13 (1838); Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945).
73. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion.”
74. In this case, the President admitted that he “took an action to change the law.” The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement — one that even the President and OLC previously admitted would require a change to the law.
75. The Defendants have rewritten several laws passed by Congress. Congress has provided that it is illegal for undocumented immigrants to be in the United States and has required the executive branch to remove those individuals. Under 8 U.S.C. § 1225, every individual who is not present in the United States legally “shall” be “inspected” by immigration officers; and if the officer determines that the individual is not clearly and beyond a doubt entitled to be admitted, the individual “shall be detained” for removal proceedings. Id. § 1225(a)(1), (a)(3), (b)(2)(A). This imposes a mandatory duty on the executive branch. See Crane v. Napolitano, 2013 WL 1744422, at * 8, No. 3:12-cv-03247-O (N.D. Tex. Apr. 23, 2013) (holding that 8 U.S.C. § 1225 imposes a mandatory duty
27

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 28 of 32
and explaining that “[t]he Supreme Court has noted that Congress’s use of the word ‘shall’ in a statute imposes a mandatory duty on an agency to act.” (citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008)). This mandatory duty extends to the removal of any undocumented immigrant present in violation of federal law, unless Congress provides a specific exception. See 8 U.S.C. §§ 1182, 1227(a)(1), 1229b, 1254 (setting standards for inadmissibility and categories for deportability, along with limited statutory exceptions, such as cancellation of removal and temporary protected status).
76. At least for the 4 million people who will benefit from the DHS Directive, Congress has taken several steps to curtail the reunification of undocumented immigrants and their documented family members. The undocumented parent of a U.S. citizen or legal permanent resident generally can stay in the United States only by (i) waiting until their child turns 21, (ii) leaving the country, (iii) waiting 10 more years, and then (iv) obtaining a family-preference visa from a U.S. consulate abroad. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255. The Defendants cannot faithfully execute the law by directly contravening Congress’s objectives.
77. Accordingly, the Defendants’ actions violate the Take Care Clause. COUNT TWO
Violation of the APA, 5 U.S.C. § 553 78. The allegations in paragraphs 1-77 are reincorporated herein.
28

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 29 of 32
79. 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).
80. DHS is an “agency” under the APA. 5 U.S.C. § 551(1). 81. The DHS Directive is a “rule” under the APA. 5 U.S.C. § 551(4). 82. With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. 5 U.S.C. § 553. 83. The Defendants promulgated and relied upon the DHS Directive without authority and without notice-and-comment rulemaking. It is therefore unlawful.
COUNT THREE Violation of the APA, 5 U.S.C. § 706 84. The allegations in paragraphs 1-83 are reincorporated herein. 85. 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). 86. The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress. See, e.g., ¶¶ 75-76, supra. 87. As such, the DHS Directive violates the aforementioned provisions in 5 U.S.C. § 706, and it is therefore unlawful.
29

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 30 of 32 V. DEMAND FOR JUDGMENT
Plaintiffs respectfully request the following relief from the Court: A. A declaratory judgment and injunction that the Defendants’ deferred action program violates the Take Care Clause; B. A declaratory judgment and injunction that the Defendants’ deferred action program is procedurally unlawful under the APA; C. A declaratory judgment and injunction that the Defendants’ deferred action program is substantively unlawful under the APA; and D. All other relief to which the Plaintiffs may show themselves to be entitled.
30

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 31 of 32

LUTHER STRANGE Attorney General of Alabama
THOMAS C. HORNE Attorney General of Arizona
DUSTIN MCDANIEL Attorney General of Arkansas
PAMELA JO BONDI Attorney General of Florida
SAMUEL S. OLENS Attorney General of Georgia
LAWRENCE G. WASDEN Attorney General of Idaho
JOSEPH C. CHAPELLE PETER J. RUSTHOVEN Counsel for the State of Indiana
DEREK SCHMIDT Attorney General of Kansas
JAMES D. “BUDDY” CALDWELL Attorney General of Louisiana
TIMOTHY C. FOX Attorney General of Montana
JON C. BRUNING Attorney General of Nebraska
WAYNE STENEHJEM Attorney General of North Dakota
MICHAEL DEWINE Attorney General of Ohio ERIC E. MURPHY Co-counsel for the State of Ohio

Respectfully submitted.
GREG ABBOTT Attorney General of Texas
DANIEL T. HODGE First Assistant Attorney General
JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel
ANDREW S. OLDHAM Deputy Solicitor General
Attorney-in-Charge State Bar No. 24081616
Office of the Attorney General of Texas P.O. Box 78711 Austin, Texas 78711-2548 512-936-1700

31

Case 1:14-cv-00254 Document 14 Filed in TXSD on 12/09/14 Page 32 of 32
E. SCOTT PRUITT Attorney General of Oklahoma ALAN WILSON Attorney General of South Carolina MARTY J. JACKLEY Attorney General of South Dakota SEAN D. REYES Attorney General of Utah PATRICK MORRISEY Attorney General of West Virginia J.B. VAN HOLLEN Attorney General of Wisconsin BILL SCHUETTE Attorney General for the People of
Michigan DREW SNYDER Counsel for the Governor of Mississippi PAUL R. LEPAGE Governor of Maine ROBERT C. STEPHENS Counsel for the Governor of North
Carolina TOM C. PERRY CALLY YOUNGER Counsel for the Governor of Idaho
Dated: December 9, 2014
32

 
 Case 1:14-cv-00254 Document 144 Filed in TXSD on 02/16/15 Page 1 of 3

United States District Court Southern District of TIXIII
ENTEREO

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

FEB 1 6 2015
DavldJ. aradl~. ctedcofCourt

STATE OF TEXAS, ET AL.,

§

Plaintiffs,

§

§

V.

§

§

UNITED STATES OF AMERICA, ET AL., §

Defendants.

§

CIVIL NO. B-14-254

ORDER OF TEMPORARY INJUNCTION

The Court having found that at least one Plaintiff has satisfied all the necessary elements

to maintain a lawsuit and to obtain a Temporary Injunction hereby grants the Motion for

Temporary Injunction [Doc. No.5]. The United States of America, its departments, agencies,

officers, agents and employees and Jeh Johnson, Secretary of the Department of Homeland

Security; R. Gil Kerlikowske, Commissioner of United States Customs and Border Protection;

Ronald D. Vitiello, Deputy Chief of United States Border Patrol, United States Customs and

Border Protection; Thomas S. Winkowski, Acting Director of United States Immigration and

Customs Enforcement; and Leon Rodriguez, Director of United States Citizenship and

Immigration Services are hereby enjoined from implementing any and all aspects or phases of

the Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA")

program as set out in the Secretary of Homeland Security Jeh Johnson's memorandum dated

November 20, 2014 ("DAPA Memorandum"), pending a final resolution of the merits of this

case or until a further order of this Court, the United States Court of Appeals for the Fifth Circuit

or the United States Supreme Court. The reasons for this injunction are set out in detail in the

accompanying Memorandum Opinion and Order, but, to summarize, it is due to the failure of the

Defendants to comply with the Administrative Procedure Act.

Case 1:14-cv-00254 Document 144 Filed in TXSD on 02/16/15 Page 2 of 3
For similar reasons, the United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, Secretary of the Department of Homeland Security; R. Gil Kerlikowske, Commissioner of United States Customs and Border Protection; Ronald D. Vitiello, Deputy Chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, Acting Director of United States Immigration and Customs Enforcement; and Leon Rodriguez, Director of United States Citizenship and Immigration Services are further enjoined from implementing any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals ("DACA") program as outlined in the DAPA Memorandum pending a trial on the merits or until a further order of this Court, the Fifth Circuit Court of Appeals or the United States Supreme Court.
In addition to any other relief provided by law, the Defendants are given leave to reapproach this Court for relief from this Order, in the time period between the date of this Order and the trial on the merits, for good cause, including if Congress passes legislation that authorizes DAPA or at such a time as the Defendants have complied with the requirements of the Administrative Procedure Act. The parties are ordered to meet and confer and formulate and file with the Court by February 27, 2015 an agreed upon (to the extent possible) schedule for the resolution on the merits. The Court will hold a conference call among counsel after it reviews this submission.
The Court has considered the issue of security as per Rule 65(c) of the Federal Civil Rules of Procedure. It finds that the Defendants will not suffer any financial loss that warrants the need for the Plaintiffs to post security. The Fifth Circuit has held that a district court has the discretion to "require no security at all" and the Court hereby exercises that authority based upon the facts and circumstances of the case, the issues being decided and the parties involved.
2

Case 1:14-cv-00254 Document 144 Filed in TXSD on 02/16/15 Page 3 of 3 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624,628 (5th Cir. 1996); see also Corrigan Dispatch Co. v. Casa Guzman, S.A., 569 F.2d 300 (5th Cir. 1978); Wright & Miller, Federal Practice and Procedure, § 2954.
Signed this 16th day of February, 2015. Andrew S. Hanen United States District Judge
3

 
 Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 1 of 50

Unlted States District Court Southern Oistrict of Texas
ENTERED

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

FEB 1 6 2015

BROWNSVILLE DIVISION

STATE OF TEXAS, ET AL.,

§

r"DavIdJ. Bradley, Cleckof Court
~

Plaintiffs,

§

§

v.

§

CIVIL NO. B-14-254

§

UNITED STATES OF AMERICA, ET AL., §

Defendants.

§

MEMORANDUM OPINION AND ORDER

This is a case in which twenty-six states or their representatives are seeking injunctive

relief against the United States and several officials of the Department of Homeland Security to

prevent them from implementing a program entitled "Deferred Action for Parents of Americans

and Lawful Permanent Residents." 1 This program is designed to provide legal presence to over

four million individuals who are currently in the country illegally, and would enable these

individuals to obtain a variety of both state and federal benefits.

The genesis of the problems presented by illegal immigration in this matter was described

by the United States Supreme Court decades ago:

Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial "shadow population" of illegal migrants-numbering in the millions-within our borders.

1 The Plaintiffs include: the State of Texas; State of Alabama; State of Arizona; State of Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota; State of Utah; State of West Virginia; State of Wisconsin; Attorney General Bill Schuette, People of Michigan; Governor Phil Bryant, State of Mississippi; Governor Paul R. LePage, State of Maine; Governor Patrick L. McCrory, State of North Carolina; and Governor C. L. "Butch" Otter, State ofIdaho. The States of Tennessee and Nevada were added in the latest Amended Complaint. All of these plaintiffs, both individuals and states, will be referred to collectively as "States" or "Plaintiffs" unless there is a particular need for specificity.

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 2 of 50
The Attorney General recently estimated the number of illegal aliens within the United States at between 3 and 6 million. In presenting to both the Senate and House of Representatives several Presidential proposals for reform of the immigration laws-including one to "legalize" many of the illegal entrants currently residing in the United States by creating for them a special statute under the immigration laws-the Attorney General noted that this subclass is largely composed of persons with a permanent attachment to the Nation, and that they are unlikely to be displaced from our territory.
"We have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community. By granting limited legal status to the productive and lawabiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals." Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981) (testimony of William French Smith, Attorney General).
This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.
Plyler v. Doe, 457 U.S. 202, 218-19 & n.17 (1982). Thus, even in 1982, the Supreme Court
noted in Plyler that the United States' problems with illegal immigration had existed for decades.
Obviously, these issues are still far from a final resolution.
Since 1982, the population of illegal aliens in this country has more than tripled, but
today's situation is clearly exacerbated by the specter of terrorism and the increased need for
2

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 3 of 50
security? Nevertheless, the Executive Branch's position is the same as it was then. It is still voicing concerns regarding its inability to enforce all immigration laws due to a lack of resources. While Congress has not been idle, having passed a number of ever-increasing appropriation bills and various acts that affect immigration over the last four decades (especially in the wake of the terrorist attacks in 2001), it has not passed nor funded a long term, comprehensive system that resolves this country's issues regarding border security and immigration. To be sure, Congress' and the Executive Branch's focus on matters directly affecting national security is understandable. This overriding focus, however, does not necessarily comport with the interests of the states. While the States are obviously concerned about national security, they are also concerned about their own resources being drained by the constant influx of illegal immigrants into their respective territories, and that this continual flow of illegal immigration has led and will lead to serious domestic security issues directly affecting their citizenry. This influx, for example, is causing the States to experience severe law enforcement problems.3 Regardless of the reasons behind the actions or inaction of the Executive and Legislative Branches of the federal government, the result is that many states ultimately bear the brunt of illegal immigration.
2 The Court uses the phrases "illegal immigrant" and "illegal alien" interchangeably. The word "immigrant" is not used in the manner in which it is defmed in Title 8 of the United States Code unless it is so designated. The Court also understands that there is a certain segment of the population that finds the phrase "illegal alien" offensive. The Court uses this term because it is the term used by the Supreme Court in its latest pronouncement pertaining to this area ofthe law. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012). 3 See Arizona v. United States, as quoted on p. 58 of this opinion. For example, as the Court writes this opinion, Brownsville police have been investigating the kidnapping of a local university student. The student was reportedly kidnapped at gunpoint by a human trafficker a few miles from this Courthouse and forced to transport the trafficker and an alien who had just crossed the border (the Rio Grande River) from the university campus to their destination. See Tiffany Huertas, UT-Brownsville Students on Alert FollOWing Reported Gunpoint Kidnapping, Action 4 News, Feb. 4, 2015, http://www.valleycentral.com/news/story.aspx?id=1159456#.VNtHn-bF-wE.
3

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 4 of 50
This case examines complex issues relating to immigration which necessarily involve questions of federalism, separation of powers, and the ability and advisability, if any, of the Judiciary to hear and resolve such a dispute.
Chief Justice Roberts wrote in National Federation ofIndependent Business v. Sebelius: We [the judiciary] do not consider whether the [Patient Protection and Affordable Care] Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
* * *
Nearly two centuries ago, Chief Justice Marshall observed that "the question respecting the extent of the powers actually granted" to the Federal Government "is perpetually arising, and will probably continue to arise, as long as our system shall exist." In this case, we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. 132 S. Ct. 2566, 2577 (2012) (quoting McCulloch v. Maryland, 17 U.S. 316, 404 (1819)). I. THE ISSUES BEFORE AND NOT BEFORE THE COURT Although this Court is not faced with either a Congressional Act or an Executive Order, the sentiment expressed by these Chief Justices is nonetheless applicable. The ultimate question before the Court is: Do the laws of the United States, including the Constitution, give the Secretary of Homeland Security the power to take the action at issue in this case? Nevertheless, before the Court begins to address the issues raised in this injunctive action, it finds that the issues can best be framed by emphasizing what is not involved in this case. First, this case does not involve the wisdom, or the lack thereof, underlying the decision by Department of Homeland Security ("DHS") Secretary Jeh Johnson to award legal presence status to over four million illegal aliens through the Deferred Action for Parents of Americans
4

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 5 of 50
and Lawful Permanent Residents ("DAPA," also referred to interchangeably as the "DHS Directive" and the "DAPA Memorandum") program. Although the Court will necessarily be forced to address many factors surrounding this decision and review the relationship between the Legislative and Executive Branches as it pertains to the DHS Secretary's discretion to act in this area, the actual merits of this program are not at issue.
Second, with three minor exceptions, this case does not involve the Deferred Action for Childhood Arrivals ("DACA") program. In 2012, DACA was implemented by then DHS Secretary Janet Napolitano. The program permits teenagers and young adults, who were born outside the United States, but raised in this country, to apply for deferred action status and employment authorizations. The Complaint in this matter does not include the actions taken by Secretary Napolitano, which have to date formalized the status of approximately 700,000 teenagers and young adults. Therefore, those actions are not before the Court and will not be addressed by this opinion. Having said that, DACA will necessarily be discussed in this opinion as it is relevant to many legal issues in the present case. For example, the States maintain that the DAPA applications will undergo a process identical to that used for DACA applications and, therefore, DACA's policies and procedures will be instructive for the Court as to DAPA's implementation.
Third, several of the briefs have expressed a general public perception that the President has issued an executive order implementing a blanket amnesty program, and that it is this amnesty program that is before the Court in this suit. Although what constitutes an amnesty program is obviously a matter of opinion, these opinions do not impact the Court's decision. Amnesty or not, the issues before the Court do not require the Court to consider the public
5

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 6 of 50
popularity, public acceptance, public acquiescence, or public disdain for the DAPA program. As Chief Justice Roberts alluded to above, public opinions and perceptions about the country's policies have no place in the resolution of a judicial matter.
Finally, both sides agree that the President in his official capacity has not directly instituted any program at issue in this case. Regardless of the fact that the Executive Branch has made public statements to the contrary, there are no executive orders or other presidential proclamations or communique that exist regarding DAPA. The DAPA Memorandum issued by Secretary Johnson is the focus in this suit.
That being said, the Court is presented with the following principle issues: (l) whether the States have standing to bring this case; (2) whether the DHS has the necessary discretion to institute the DAPA program; and (3) whether the DAPA program is constitutional, comports with existing laws, and was legally adopted. A negative answer to the first question will negate the need for the Court to address the latter two. The factual statements made hereinafter (except where the Court is discussing a factual dispute) should be considered as findings of fact regardless of any heading or lack thereof. Similarly, the legal conclusions, except where the Court discusses the various competing legal theories and positions, should be taken as conclusions of law regardless of any label or lack thereof. Furthermore, due to the overlap between the standing issues and the merits, there is by necessity the need for a certain amount of repetition. II. HISTORY OF THIS LITIGATION
On November 20, 2014, Jeh Johnson, in his position as Secretary of the DHS, issued multiple memoranda to Leon Rodriguez, Director of the United States Citizenship and
6

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 7 of 50
Immigration Services ("USCIS"), Thomas S. Winkowski, Acting Director of the United States Immigration and Customs Enforcement ("ICE"), and R. Gil Kerlikowske, Commissioner of the United States Customs and Border Protection ("CBP"). One of these memoranda contained an order establishing a new program utilizing deferred action to stay deportation proceedings and award certain benefits to approximately four to five million individuals residing illegally in the United States. The present case, filed in an attempt to enjoin the rollout and implementation of this program, was initiated by the State of Texas and twenty-five other states or their representatives. Specifically, the States allege that the Secretary's actions violate the Take Care Clause of the Constitution and the Administrative Procedure Act ("APA"). See U.S. Const. art. II, § 3; 5 U.S.C. §§ 500 et seq.4 The States filed this suit against DHS Secretary Johnson and the individuals mentioned above, as well as Ronald D. Vitiello, the Deputy Chief of the United States Border Patrol, and the United States of America. 5 In response to Plaintiffs' suit, the Defendants have asserted two main arguments: (1) the States lack standing to bring this suit; and (2) the States' claims are not meritorious.
Multiple amici curiae have made appearances arguing for one side of this controversy or the other. Several separate attempts have been made by individuals-at least one attempt seemingly in support of Plaintiffs, and one in support of Defendants-to intervene in this lawsuit. Both the States and the Government opposed these interventions. Because the Court had already implemented a schedule in this time-sensitive matter that was agreed to by all
4 Most authorities seem to indicate that the original Constitution the "Take Care Clause" actually was the "take Care Clause" with the "T" in "take" being lowercase. The Court will use upper case for the sake of consistency. 5 All of these Defendants will be referred to collectively as the "Government" or the "Defendants" unless there is a particular need for specificity.
7

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 8 of 50
existing parties, it denied these attempts to intervene without prejudice. Permitting the intervention of new parties would have been imprudent, as it would have unduly complicated and delayed the orderly progression of this case. See Fed. R. Civ. P. 24(a)(2), (b)(3). Further, this Court notes that the interests of all putative intervenors are more than adequately represented by the Parties in this lawsuit.6 As suggested by Fifth Circuit authority, the Court has reviewed their pleadings as if they were amici curiae. See Bush v. Viterna, 720 F.2d 350, 359 (5th Cir. 1984) (per curiam). III. BACKGROUND
A. Factual Background For some years now, the powers that be in Washington-namely, the Executive Branch and Congress-have debated if and how to change the laws governing both legal and illegal immigration into this country. This debate has necessarily included a wide-ranging number of issues including, but not limited to, border security, law enforcement, budgetary concerns, employment, social welfare, education, positive and negative societal aspects of immigration, and humanitarian concerns. The national debate has also considered potential solutions to the myriad of concerns stemming from the millions of individuals currently living in the country illegally. To date, however, neither the President nor any member of Congress has proposed
6 While one set of the putative intervenors is allegedly covered by Secretary Johnson's memorandum and may be affected by this ruling, there was no intervention as a matter of right because there is no federal statute that gives them an unconditional right to intervene nor does this lawsuit involve property or a transaction over which they claim a property interest. See Fed. R. Civ. P. 24(a).
8

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 9 of 50
legislation capable of resolving these issues in a manner that could garner the necessary support to be passed into law.7
On June 15, 2012, DHS Secretary Janet Napolitano issued a memorandum creating the DACA program, which stands for "Deferred Action for Childhood Arrivals." Specifically, Secretary Napolitano's memorandum instructed her Department heads to give deferred action status to all illegal immigrants who:
1. Came to the United States before age sixteen; 2. Continuously resided in the United States for at least five years prior to
June 15,2012 and were in the United States on June 15,2012; 3. Were then attending school, or had graduated from high school, obtained a
GED, or were honorably discharged from the military; 4. Had not been convicted of a felony, significant misdemeanor, multiple
misdemeanors, or otherwise pose a threat to national security; and 5. Were not above the age of thirty. Doc. No. 38, Def. Ex. 19 (June 15,2012 DACA Memorandum issued by Secretary Napolitano). This Directive applies to all individuals over the age of fifteen that met the criteria, including those currently in removal proceedings as well as those who are newly-encountered by the DHS. In addition, DHS employees were instructed to accept work authorization applications from those individuals awarded deferred action status under DACA. While exact numbers regarding the presence of illegal aliens in this country are not available, both sides seem to accept that at least 1.2 million illegal immigrants could qualify for DACA by the end of 2014. Doc. No. 38, Def. Ex. 21; Doc. No. 64, PI. Ex. 6. Of these individuals, approximately 636,000 have applied
7 Indeed this Court has received amici curiae briefs from many members of Congress supporting the States' position and at least one supporting the Government's position. Additionally, many officials of local political units and entities have also filed amici curiae briefs supporting one side of this controversy or the other.
9

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 10 of 50
for and received legal presence status through DACA. Doc. No. 38, Def. Ex. 28. Both of these figures are expected to rise as children "age in" and meet the program's education requirements. Doc. No. 38, Def. Ex. 6; Doc. No. 64, PI. Ex. 6. Estimates suggest that by the time all individuals eligible for DACA "age in" to the program, approximately 1.7 million individuals will be eligible to receive deferred action. Doc. No. 38, Def. Ex. 21; Doc. No. 64, Pl. Ex. 6.
A review of the DACA program, however, would not be complete without examining the number of individuals who have applied for relief through the program but were denied legal status: of the approximately 723,000 DACA applications accepted through the end of2014, only 38,000-or about 5o/o--have been denied. Doc. No. 38, Def. Ex. 28. In response to a Senate inquiry, the USCIS told the Senate that the top four reasons for denials were: (1) the applicant used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete Form 1-765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the program. Doc. No. 64, Pl. Ex. 29 at App. P. 0978. Despite a request by the Court, the Government's counsel did not provide the number, if any, of requests that were denied even though the applicant met the DACA criteria as set out in Secretary Napolitano's DACA memorandum. The Government's exhibit, Doc. No. 130, Def. Ex. 44, provides more information but not the level of detail that the Court requested.
The States contend and have supplied evidence that the DHS employees who process DACA applications are required to issue deferred action status to any applicant who meets the criteria outlined in Secretary Napolitano's memorandum, and are not allowed to use any real
10

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 11 of 50
"discretion" when it comes to awarding deferred action status.8 Similarly, the President of the
National Citizenship and Immigration Services Council-the union that represents the
individuals processing the DACA applications-declared that the DHS management has taken
multiple steps to ensure that DACA applications are simply rubberstamped if the applicants meet
the necessary criteria. See Doc. No. 64, PI. Ex. 23 at 3 (Dec. of Kenneth Palinkas, President of
Nat'l Citizenship and Immigration Services Council) (hereinafter "Palinkas Dec."). The States
also allege that the DHS has taken steps to ensure that applications for DAPA will likewise receive only a proforma review. 9
On November 20, 2014, following in his predecessor's footsteps, Secretary Johnson
issued a memorandum to DHS officials instructing them to implement the DAPA program and
expand the DACA program in three areas. That memorandum, in pertinent part, states the
following:
8 In their latest filing with the Court, the Government repeated these four reasons given to Congress and added a fifth: dishonesty or fraud in the application process, which of course is implied in any application process. Because the Government could not produce evidence concerning applicants who met the program's criteria but were denied DACA status, this Court accepts the States' evidence as correct. 9 The DHS' own website states that, pursuant to the discretion granted to the DHS Secretary, its officers can use their discretion to "prevent [DACAl qualifying individuals from being apprehended, placed into removal proceedings, or removed." Consideration of Deferred Action for Childhood Arrivals Process, Frequently Asked Questions, Official Website of the Dept. of Homeland Security, http://www.uscis.govlhumanitarianlconsiderationdeferred-action-childhood-arrivals-process/frequently-asked-questions (last updated Feb. 11, 2015). Clearly the discretion that exists belongs to the Secretary, who exercised it by delineating the DACA criteria; but if an applicant meets the DACA criteria, he or she will not be removed. President Obama has stated that if the DAPA applicant satisfies the delineated criteria, he or she will be permitted to remain in the United States. See Press Release, Remarks by President Barack Obama in the President's Address to the Nation on Immigration (Nov. 11,2014). The DHS even provides a hotline number that individuals can call to make sure they can terminate removal proceedings if they otherwise meet the criteria for relief under DACA. Consideration ofDeferred Action for Childhood Arrivals Process, Frequently Asked Questions, Official Website of the Dept. of Homeland Security, http://www.uscis.govlhumanitarianlconsideration-deferred-action-childhood-arrivals-process/frequently-askedquestions (last updated Feb. 11, 2015).
11

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 12 of 50
A. Expanding DACA
DACA provides that those who were under the age of 31 on June 15,2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 2012 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.
In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows:
Remove the age cap. DACA will apply to all otherwise eligible immigrants who enter the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of the announcement (i.e., those who were born before June 15, 1981). That restriction will no longer apply.
Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years.
Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United Sates should be adjusted from June 15,2007 to January 1,2010.
USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement. 10
10 The removal of the age cap, the program's three-year extension, and the adjustment to the date of entry requirement are the three exceptions mentioned above to the general proposition that the DACA program is not at issue in this case.
12

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 13 of 50

B. Expanding Deferred Action

I hereby direct 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 those individuals who:

•

have, on the date of this memorandum, a son or daughter

who is a U.S. citizen or lawful permanent resident;

•

have continuously resided in the United States since before

January 1,2010;

•

are physically present in the United States on the date of

this memorandum, and at the time of making a request for

consideration of deferred action with USCIS;

•

have no lawful status on the date of this memorandum;

•

are not an enforcement priority as reflected in the

November 20, 2014 Policies for the Apprehension,

Detention and Removal of Undocumented Immigrants

Memorandum; and

•

present no other factors that, in the exercise of discretion,

makes the grant of deferred action inappropriate.

Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act. Deferred action granted pursuant to the program shall be for a period of three years. Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions.

USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically:

13

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 14 of 50

•

ICE and CBP are instructed to immediately begin

identifying persons in their custody, as well as newly

encountered individuals, who meet the above criteria and

may thus be eligible for deferred action to prevent the

further expenditure of enforcement resources with regard to

these individuals.

•

ICE is further instructed to review pending removal cases,

and seek administrative closure or termination of the cases

of individuals identified who meet the above criteria, and to

refer such individuals to USCIS for case-by-case

determinations. ICE should also establish a process to

allow individuals in removal proceedings to identify

themselves as candidates for deferred action.

•

USCIS is instructed to implement this memorandum

consistent with its existing guidance regarding the issuance

of notices to appear. The USCIS process shall also be

available to individuals subject to final orders of removal

who otherwise meet the above criteria.

Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-bycase basis.

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.

Doc. No.1, PI. Ex. A (November 20,2014 DAPA Memorandum issued by Secretary Johnson).

(emphasis in original). The Government relies on estimates suggesting that there are currently

11.3 million illegal aliens residing in the United States and that this new program will apply to

over four million individuals.!!

II This 11.3 million figure is based upon a 2009 study from the Pew Research Center. The number appears to have increased since then, with a 2013 study fmding that 11.7 million illegal immigrants resided in the United States in 2012. Population Decline a/Unauthorized Immigrants Stalls, May Have Reversed, Pew Research Center (Sept. 23, 2013). An estimated sixty percent of these illegal immigrants reside in California, Florida, Illinois, New Jersey,
14

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 15 of 50
Deferred action is not a status created or authorized by law or by Congress, nor has its
properties been described in any relevant legislative act. Secretary Johnson's DAPA
Memorandum states that deferred action has existed since at least the 1960s, a statement with
which no one has taken issue. Throughout the years, deferred action has been both utilized and
rescinded by the Executive Branch.12 The practice has also been referenced by Congress in other
immigration contexts. See, e.g., 8 U.S.C. §§ IIS4(a)(1)(D)(i)(II), 227(d)(2). It was described by
the United States Supreme Court in Reno v. Arab-American Anti-Discrimination Committee as
follows:
To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.
525 U.S. 471,484 (1999) (quoting 6 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law
and Procedure § 72.03[2][h] (1998)). It is similarly defined in 8 C.F.R. § 274a.l2(c)(14).
B. Factual Contentions
Secretary Johnson supported the implementation of DAPA with two main justifications.
First, he wrote that the DHS has limited resources and it cannot perform all of the duties assigned
to it, including locating and removing all illegal aliens in the country. Secretary Johnson claimed
New York, and Texas-with Texas being the only state whose illegal immigrant population increased between 2007 and 2011. !d. The Court will rely on the 11.3 million figure, however, since it is the one cited by the Parties. 12 The deferred action practice was apparently rescinded in 1979, and reinstituted in the 1981 INS Operating Manual. The 1981 program was then rescinded in 1997. Nevertheless, after that date, the concept seems to have been used by all subsequent administrations.
15

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 16 of 50
that the adoption of DAPA will enable the DHS to prioritize its enforcement of the immigration laws and focus its limited resources in areas where they are needed most. Second, the Secretary reasoned that humanitarian concerns also justify the program's implementation.
Plaintiffs maintain that the Secretary's justifications are conditions caused by the DHS, are pretexts, or are simply inaccurate. Regarding resources, Plaintiffs argue that the DHS has continued to be funded at record levels and is currently spending millions to create the enormous bureaucracy necessary to implement this program. 13 The States additionally maintain that the DAPA program was: politically motivated and implemented illegally. The first proposition is not the concern of the Court; the second is. To support the latter proposition, the States quote President Obama at length. First, they quote the President's statements made prior to the implementation of DAPA stating that he, as President, did not have the power under the Constitution or the laws of this country to change the immigration laws. On these occasions, he asserted that only Congress could implement these changes in this area of the law. From these statements, the States reason that if the President does not have the necessary power to make these changes, then the DHS Secretary certainly does not.
The States claim that following the announcement of the DAPA program, the President's rhetoric dramatically shifted. They cite statements made after the announcement of DAPA in which the President is quoted as saying that because Congress did not change the law, he
13 At oral argument, Defendants maintained that the fees charged to process DAPA applications will cover the cost of the program, but had to concede that the DRS was already expending large sums of money to implement DAPA and as of yet had not received any fees. According to the declaration of one INS employee, the DRS plans to begin construction of a service center that will employ 700 DRS employees and 300 federal contract employees. See Doc. No. 64, Pl. Ex. 23 at 3 ("Palinkas Dec."). Ris statement that the DRS is shifting resources away from other duties in order to implement this program is certainly reasonable, especially since the USCIS admitted that it is shifting staff to meet the DAPA demand. Executive Actions on Immigration: Key Questions and Answers, U.S. Customs & Immigration Enforcement, http://www.uscis.gov/immigrationaction (last updated Jan. 30,2015). See id.
16

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 17 of 50
changed it unilaterally. The States argue that the DAPA program constitutes a significant change in immigration law that was not implemented by Congress. Agreeing with the President's earlier declarations, the States argue that only Congress can create or change laws, and that the creation of the DAPA program violates the Take Care Clause of the Constitution and infringes upon any notion of separation of powers. Further, they assert that the President has effectuated a change in the law solely because he wanted the law changed and because Congress would not acquiesce in his demands.
Obviously, the Government denies these assertions. C. Legal Contentions This case presents three discrete legal issues for the Court's consideration. First, the Government maintains that none of the Plaintiffs have standing to bring this injunctive action. The States disagree, claiming that the Government cannot implement a substantive program and then insulate itself from legal challenges by those who suffer from its negative effects. Further, the States maintain that Secretary Johnson's DAPA Directive violates the Take Care Clause of the Constitution; as well as the Administrative Procedure Act ("APA") and the Immigration and Naturalization Act ("INA"). In opposition to the States' claims, the Government asserts that it has complete prosecutorial discretion over illegal aliens and can give deferred action status to anyone it chooses. Second, the Government argues that discretionary decisions, like the DAPA program, are not subject to the APA. Finally, the Government claims that the DAPA program is merely general guidance issued to DHS employees, and that the delineated elements of eligibility are not requirements that DHS officials are bound to honor. The Government argues that this flexibility, among other factors, exempts DAPA from the requirements of the APA.
17

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 18 of 50
IV. STANDING A. Legal Standard 1. Article III Standing Article III of the United States Constitution requires that parties seeking to resolve
disputes before a federal court present actual "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. This requirement limits "the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 95 (1968). Plaintiffs, as the parties invoking the Court's jurisdiction, bear the burden of satisfying the Article III requirement by demonstrating that they have standing to adjudicate their claims in federal court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The "irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, a plaintiff must demonstrate that they have "suffered a concrete and particularized injury that is either actual or imminent." Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007). Second, a plaintiff must show that there is a causal connection between the alleged injury and the complained-of conductessentially, that "the injury is fairly traceable to the defendant." Id Finally, standing requires that it "be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'" Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,41-42 (1976)).
2. Prudential Standing In addition to these three constitutional requirements, "the federal judiciary has also adhered to a set of 'prudential' principles that bear on the question of standing." Valley Forge
18

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 19 of 50
Christian Coll. v. Americans Unitedfor Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). Many opinions refer to these principles as being under the banner of "prudential" standing. See, e.g., Bennett v. Spear, 520 U.S. 154, 164 (1997). First, the Supreme Court has held that when the "asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone does not warrant exercise of jurisdiction." Id. Rather, these "abstract questions of wide public significance" are more appropriately left to the representative branches of the federal government. Warth v. Seldin, 422 U.S. 490, 500 (1975). Second, the plaintiffs must come within the "zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Valley Forge, 454 U.S. at 475 (quoting Ass'n ofData Processing Servo Organizations, Inc. V. Camp, 397 U.S. 150, 153 (1970)). Finally, a plaintiff "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Id. at 474 (quoting Warth, 422 U.S. at 499).
3. Standing Under the Administrative Procedure Act The APA provides that a "person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This right of judicial review extends to agency actions "for which there is no other adequate remedy in a court." 5 U.S.C. § 704. To demonstrate standing under the APA, the plaintiff must show that it has suffered or will suffer a sufficient injury in fact. Nat 'I Credit Union Admin. V. First Nat 'I Bank & Trust Co., 522 U.S. 479,488 (1998). The plaintiff must also demonstrate prudential standing under the APA, which requires showing that "the interest sought to be protected by the complainant [is] arguably within
19

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 20 of 50
the zone of interests to be protected or regulated by the statute ... in question." Id. (quoting Data Processing, 397 U.S. at 152). For this prudential standing inquiry, it is not necessary for a court to ask "whether there has been a congressional intent to benefit the would-be plaintiff." Nat 'I Credit Union Admin., 522 U.S. at 488-89. Rather, if the plaintiffs interests are "arguably within the 'zone of interests' to be protected by a statute," the prudential showing requirement is satisfied. Id. at 492. This requisite showing is not made, however, if the 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." Clarke v. Sec. Indus. Ass 'n, 479 U.S. 388,399 (1987).
When seeking review of agency action under the APA's procedural provisions, Plaintiffs are also operating under a favorable presumption. They are presumed to satisfy the necessary requirements for standing. See Mendoza v. Perez, 754 F.3d 1002, 1012 (D.C. Cir. 2014). Specifically, as stated by the D.C. Circuit, "[p]laintiffs asserting a procedural rights challenge need not show the agency action would have been different had it been consummated in a procedurally valid manner-the courts will assume this portion of the causal link." Id.
B. Resolution of Standing Questions Questions regarding constitutional and prudential standing implicate the court's subjectmatter jurisdiction; thus challenges to standing are evaluated as a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When evaluating subject-matter jurisdiction, the court may consider: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Ramming, 281 F.3d at 161. The
20

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 21 of 50
court's analysis also depends on whether the challenging party has made a "facial" or "factual" attack on jurisdiction. See Paterson v. Weinberger, 644 F.2d 521,523 (5th Cir. 1981). A facial challenge consists of only a Rule (12)(b)(I) motion without any accompanying evidence; for this challenge, the court "is required merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true." Id
Conversely, when making a factual attack on the court's jurisdiction, the challenging party submits affidavits, testimony, or other evidentiary materials to support its claims. Id A factual attack requires the responding plaintiff "to submit facts through some evidentiary method" and prove "by a preponderance of the evidence that the trial court does have subject matter jurisdiction." Id Here, Defendants submitted a number of exhibits in support of their attack on Plaintiffs' standing to bring this suit in federal court. Therefore, for the purposes of ruling on Defendants' challenge, the Plaintiffs bear the burden to prove by a preponderance of the evidence that they possess the requisite standing required by Article III. It is not necessary, however, for all Plaintiffs to demonstrate standing; rather, "one party with standing is sufficient to satisfy Article Ill's case-or-controversy requirement." Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006). Thus Plaintiffs' suit may proceed as long as one Plaintiff can show by a preponderance of the evidence that it fulfills the necessary requirements to show standing.
21

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 22 of 50
C. Analysis 1. Article III Standing a. Injury
The States allege that the DRS Directive will directly cause significant economic injury to their fiscal interests. Specifically, Texas argues that the DRS Directive will create a new class of individuals eligible to apply for driver's licenses,14 the processing of which will impose substantial costs on its budget. Plaintiffs rely on Texas' driver's license program to demonstrate how the costs associated with processing a wave of additional driver's licenses will impact a state's budget. Texas' undocumented population is approximately 1.6 million, and Plaintiffs' evidence suggests that at least 500,000 of these individuals will be eligible for deferred action through DAPA. Doc. No. 64, PI. Ex. 14 ~ 33; PI. Ex. 24 ~ 6. Under current Texas law, applicants pay $24.00 to obtain a driver's license, leaving any remaining costs to be absorbed by the state. See Tex. Transp. Code Ann. § 521.421. If the majority of DAPA beneficiaries currently residing in Texas apply for a driver's license, it will cost the state $198.73 to process and issue each license, for a net loss of$174.73 per license. Doc. No. 64, PI. Ex. 24 ~ 8. Even if only 25,000 of these individuals apply for a driver's license-approximately 5% of the population estimated to benefit from the DRS Directive in Texas-Texas will still bear a net loss of $130.89 per license, with total losses in excess of several million dollars. Id. These costs,
14 Some driver's license programs, like that in Arkansas, provide that individuals with deferred action status will be eligible to apply for a driver's license. See, e.g., Ark. Code Ann. § 27-16-1lO5. Other programs, like the one in Texas, provide that a license will be issued to individuals who can show they are authorized to be in the country. See, e.g., Tex. Transp. Code. Ann. § 521.142. Employment authorization-a benefit that will be available to recipients of DAPA-is sufficient to fulfill this requirement. Thus under either statutory scheme, DAPA will make its recipients eligible to apply for state driver's licenses.
22

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 23 of 50
Plaintiffs argue, are not unique to Texas; rather, they will be similarly incurred in all Plaintiff States where DAPA beneficiaries will be eligible to apply for driver's licenses.
In addition to these ind·eased costs associated with processing a wave of additional driver's licenses, a portion of the States' alleged injury is directly traceable to fees mandated by federal law. See REAL ID Act of 2005, PL 109-13, 119 Stat. 231 (2005). Following the passage of the REAL ID Act in 2005, states are now required to determine the immigration status of applicants prior to issuing a driver's license or an identification card. Id. To verify immigration status, states must submit queries to the federal Systematic Alien Verification for Entitlements (SAVE) program and pay $0.50-$1.50 for each applicant processed. SAVE Access Methods & Transaction Charges, USCIS. In Texas, estimates suggest that the state pays the federal government on average $0.75 per driver's license applicant for SAVE verification purposes. Doc. No. 64, PI. Ex. 24 ,-r 5. Thus by creating a new group of individuals that are eligible to apply for driver's licenses, the DRS Directive will increase the costs incurred by states to verify applicants' immigration statuses as required by federal law. 15
As Defendants concede, "a direct and genuine injury to a State's own proprietary interests may give rise to standing." Doc. No. 38 at 23; see also, e.g., Clinton v. City ofN Y, 524 u.S. 417, 430-31 (1998) (negative effects on the "borrowing power, financial strength, and fiscal planning" of a government entity are sufficient injuries to establish standing); Sch. Dist. of City
ofPontiac v. Sec y ofthe Us. Dep't ofEduc., 584 F.3d 253, 261 (6th Cir. 2009) (school districts
had standing "based on their allegation that they must spend state and local funds" to comply with federal law). Defendants in this case argue, however, that the projected costs to Plaintiffs'
15 In a procedural rights case, the size of the injury is not important for derming standing; rather it is the fact of the injury. "The litigant has standing if there is some possibility that the requested relief will prompt the injury causing party to reconsider the decision." Massachusetts v. E.P.A., 549 U.S. at 518, 525-26.
23

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 24 of 50
driver's license programs are "self-inflicted" because the DRS Directive does not directly require states to provide any state benefits to deferred action recipients, and because states can adjust their benefit programs to avoid incurring these costs. Doc. No. 38 at 21-22. This assertion, however, evaluates the DRS Directive in a vacuum. Further, this claim is, at best, disingenuous. Although the terms of DAPA do not compel states to provide any benefits to deferred action recipients, it is clear that the DRS Directive will nonetheless affect state programs. Specifically, in the wake of the Ninth Circuit's decision in Arizona Dream Act Coalition v. Brewer, it is apparent that the federal government will compel compliance by all states regarding the issuance of driver's licenses to recipients of deferred action. 757 F.3d 1053 (9th Cir. 2014).
In Arizona Dream Act Coalition v. Brewer, the plaintiffs, DACA beneficiaries, sought an injunction to prevent the defendants from enforcing an Arizona policy that denied driver's licenses to recipients of deferred action. Id. at 1060. Necessary for the imposition of an injunction, the Ninth Circuit examined whether the plaintiffs were likely to succeed on the merits of their case, and focused on the fact that Arizona's driver's license program permitted other non-citizens to use employment authorization documents to obtain driver's licenses-the same documentation that would be conferred upon DAPA recipients. Id. at 1064. Finding that this policy likely discriminated against similarly-situated parties in violation of the Equal Protection Clause, the court enjoined the defendants from denying driver's licenses to deferred action beneficiaries. Id. at 1069.
More importantly, the Ninth Circuit in Arizona also considered whether the denial of driver's licenses to deferred action recipients was preempted by the Executive Branch's determination that deferred action recipients were also authorized to work in the United States.
24

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 25 of 50
Id. at 1063. Stating that "the ability to drive may be a virtual necessity for people who want to work in Arizona," the court noted that more than 87% of Arizona's workforce depended on personal vehicles to commute to work. Id. at 1062. Although not the basis for its finding, the court addressed preemption at length. It reasoned that the defendants' policy of denying driver's licenses to deferred action recipients "interferes with Congress's intention that the Executive determine when noncitizens may work in the United States" and would be preempted by federal law. Id. at 1063. Reinforcing this position, the concurring opinion argued that the majority should have not merely discussed it, but should have included this reasoning as part of its holding since there was no question that federal law required the issuance of driver's licenses to deferred action recipients. Id at 1069-75. The Government filed briefs in that case arguing that all of Arizona's attempts to avoid these expenses were preempted. Doc. No. 54, PI. Ex. 3.
Although the Ninth Circuit's opinion in Arizona is not necessarily binding on the majority of Plaintiffs in this case, it nonetheless suggests that Plaintiffs' options to avoid the injuries associated with the DHS Directive are virtually non-existent and, if attempted, will be met with significant challenges from the federal government. 16 The federal government made it clear in Arizona (and would not retreat from that stance in this case) that any move by a plaintiff state to limit the issuance of driver's licenses would be viewed as illegal. As held by the Ninth Circuit in Arizona, denying driver's licenses to certain recipients of deferred action violated the Equal Protection clause, and would likely be preempted by DAPA, as well. See id at 1067. This conclusion would be particularly persuasive in Texas since its driver's license programlike Arizona's-permits applicants to rely on federal employment authorization documentation
16 The Ninth Circuit opinion is binding on Arizona, Idaho, and Montana, the Plaintiff States located in the Ninth Circuit. Therefore, the Government's argument with respect to these states is totally meritless.
25

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 26 of 50
to show legal status in the United States. If Texas denied driver's licenses to beneficiaries of the
DHS Directive, as suggested by the Government here, it would immediately be sued for
impermissibly discriminating against similarly-situated parties that rely on employment
authorization documentation to apply for driver's licenses. See id. at 1064. Even if Texas could
structure its driver's license program to avoid these impermissible classifications, the court in
Arizona strongly suggested that the denial of driver's licenses to deferred action recipients would
be preempted by the Executive Branch's intent that deferred action recipients work while they
remain in the United States. Therefore, if Texas or any of the other non-Ninth Circuit States
sought to avoid an Equal Protection challenge and instead denied driver's licenses to all
individuals that rely on employment authorization documentation, they would be subjecting
themselves to a different but significant challenge on federal preemption grounds. As stated
above, Arizona, Idaho, and Montana-the Plaintiff States that fall within the Ninth Circuit's
jurisdiction-do not even have the option of trying to protect themselves. 17
Setting aside these legal questions, this all-or-nothing choice-that Texas either allow the
DAPA beneficiaries to apply for driver's licenses and suffer financial losses or deny licenses to
17 Also, it is not a defense to the Plaintiffs' assertion of standing to argue that it is not the DAPA program causing the harm, but rather the Justice Department's enforcement of the program. Both departments are a part of the United States and work for the same branch of the federal government.
The Court additionally notes that while the Government claimed preemption on the one hand, it correctly notes that the actual Circuit decision was based upon equal protection. Thus, it argues that the Government is not ultimately causing the States' injuries; rather, it is the Constitution. This is not accurate. This distinction is not convincing for several reasons. First, if the Government enforced the INA as written, these applicants would not be in the states to apply. Second, the Government is still maintaining and asserting its right of preemption to prevent the states from enforcing the INA provisions requiring removal of these individuals and instead is using that power to force a state's compliance with these applications. Third, whether or not the Constitution is involved, it is ultimately the combination of the REAL ID Act and DAPA combined with the failure to enforce the INA that will compel the complained-about result. It is the implementation of the DACA program that has been causing and the implementation of the DAPA program that will cause these damages when they intersect with the REAL ID Act. Stated another way, without DAPA there are no damages, and without the REAL ID Act, there are less damages. Finally, the Government has also not indicated that it will refrain from litigation or aiding litigants to compel the States to issues licenses and incur these expenses once DAPA is instituted.
26

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 27 of 50
all individuals that rely on employment authorization documentation-is an injury in and of itself. An injury cannot be deemed "self-inflicted" when a party faces only two options: full compliance with a challenged action or a drastic restructure of a state program. See Texas. v. United States, 497 F.3d 491,496-98 (5th Cir. 2007) (finding that Texas had standing on the basis of a "forced choice": after federal regulations, Texas either had to comply with an administrative procedure it thought was unlawful or forfeit the opportunity to comment on proposed gaming regulations). Further, the necessary restructuring to ensure constitutional compliance would require Texas to deny driver's licenses to individuals it had previously decided should be eligible for them-a significant intrusion into an area traditionally reserved for a state's judgment. This illusion of choice-instead of protecting the state from anticipated injuries-merely places the states between a rock and hard place.
Defendants also argue that the projected injuries to Plaintiffs' driver's license programs are merely generalized grievances that are shared by all the states' citizens, and as such are insufficient to support standing in this case. The cases that Defendants cite for this contention, though, are easily distinguishable. In these cases, the plaintiffs broadly alleged general harm to state revenue or state spending. See Commonwealth ofPa. v. Kleppe, 533 F.2d 668,672 (D.C.C. 1976) (Pennsylvania's "diminution of tax receipts [was] largely an incidental result of the challenged action" and was not sufficient to support standing); People ex reI. Hartigan v. Cheney, 726 F. Supp. 219, 226 (C.D. Ill. 1989) (Illinois' alleged injury of "decreased state tax revenues and increased spending on social welfare programs" not sufficient to support standing). When, however, an action directly injures a state's identifiable proprietary interests, it is more likely that the state possesses the requisite standing to challenge the action in federal court. See
27

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 28 of 50
Wyo. v. Okla., 502 U.S. 437, 448 (1992) (Wyoming had standing to challenge a state statute for direct and undisputed injuries to specific tax revenues); Sch. Dist. ofCity ofPontiac, 584 F.3d at 261-62 (school district had sufficient injury to demonstrate standing when compliance with No Child Left Behind forced plaintiffs to spend state and local funds). Here, Plaintiffs have shown that their projected injuries are more than "generalized grievances"; rather, Plaintiffs have demonstrated that DAPA will directly injure the proprietary interests of their driver's license programs and cost the States badly needed funds. In Texas alone, the state is projected to absorb significant costs. If the majority of the DHS Directive beneficiaries residing in the state apply for driver's licenses, Texas will bear directly a $174.73 per applicant expense, costing the state millions of dollars.
On a final note, it is important to reiterate the federal government's position in front of the Ninth Circuit in Arizona-a position that it has not retreated from in the present case: a state may not impose its own rules considering the issuance of driver's licenses due to claims of equal protection and preemption. Although the federal government conceded that states enjoy substantial leeway in setting policies for licensing drivers within their jurisdiction, it simultaneously argued that the states could not tailor these laws to create "new alien classifications not supported by federal law." Doc. No. 64, PI. Ex. 3 at 11. In other words, the states cannot protect themselves from the costs inflicted by the Government when 4.3 million individuals are granted legal presence with the resulting ability to compel state action. The irony of this position cannot fully be appreciated unless it is contrasted with the DAPA Directive. The DAPA Directive unilaterally allows individuals removable by law to legally remain in the United States based upon a classification that is not established by any federal law. It is this very lack of
28

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 29 of 50

law about which the States complain. The Government claims that it can act without a

supporting law, but the States cannot.

The contradictions in the Government's position extend even further. First, driver's

license programs are functions traditionally reserved to state governments. Even the DHS

recognizes this reservation. The DHS teaches naturalization applicants preparing for their civics

examination that driver's license programs are clearly a state interest. See Study Materials for the Civics Test, USCIS. 18 Of the sample civics questions, the DHS provides the following

question and lists five acceptable answers:

42. Under our Constitution, some powers belong to the states. What is one

power of the states?

• provide schooling and education

•

provide protection (police)

• provide safety (fire departments)

•

give a driver's license

•

approve zoning and land use.

Id. (emphasis added). 19

Nonetheless, the DHS through its DACA Directive directly caused a significant increase

in driver's license applications and the costs incurred by states to process them; DAPA, a much

larger program, will only exacerbate these damages. These injuries stand in stark contrast to the

18 This website can be accessed at http://www.uscis.gov/citizenship/leamers/study-testlstudy-materials-civics-test. 19Id.
29

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 30 of 50
Government's public assertion that driver's license programs fall in the realm of "powers [that]
belong to the states." Id.
The Government's position is further undermined by the fact that a portion of Plaintiffs'
alleged damages associated with the issuance of driver's licenses are fees mandated by federal
law and are paid to the Government. As discussed above, the REAL ID Act requires states to
pay a fee to verify the immigration status of each driver's license applicant through the federal
SAVE program. See REAL ID Act of 2005, PL 109-13, 119 Stat. 231 (2005); SAVE Access
Methods & Transaction Charges, USCIS.2o The fees associated with this program, combined
with the federal government's creation of the possibility of four to five million new driver's
20 The SAVE price structure chart may be accessed at http://www.uscis.gov/save/getting-startedlsave-accessmethods-transaction-charges.
It was suggested that the original Real ID Act might have been subject to attack because of the burden it placed upon the states. See Patrick R. Thiessen, The Real ID Act and Biometric Technology: A Nightmare for Citizens and the States That Have to Implement It, 6 1. Telecomm. & High Tech. L. 483 (2008) (hereinafter "REAL 1D and Biometric Technology"). These fees have always been a source of objections and opposed by both conservative and liberal groups alike:
The Act is also opposed by groups as diverse as the CATO Institute, a libertarian think tank, and the American Civil Liberties Union ("ACLU"), an organization designed to defend and preserve the individual liberties guaranteed under the Constitution, both of which testified in opposition to the Real ID Act in New Hampshire. The CATO Institute's opposition is based on what it characterizes as the federal government blackmailing the states. The CATO Institute has highlighted the fact that the states are being forced to comply with the Real ID Act because a noncompliant state's citizens will be barred from air travel, entry to federal courthouses, and other federal checkpoints.
ACLU opposition is based on the high cost of implementation being imposed on the states, its belief that it will not actually prevent terrorism, and the diminished privacy Americans will experience because of the compilation of personal information. Barry Steinhardt, Director of ACLU's Technology and Liberty Project, stated:
It's likely the costs for Real ID will be billions more than today's estimate [$11 billion]--but no matter what the real figure is, Real ID needs to be repealed. At a time when many state budgets and services are already stretched thin, it is clear that this urifunded mandate amounts to no more than a tax increase in disguise.
Id at 490-91 (emphasis added) (citations omitted). Under DAPA and DACA, the States are facing a new unfunded matter-one which is levied by the DHS and enforced by the Justice Department.
30

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 31 of 50

license applicants, give rise to a situation where states must process an increased amount of driver's license applications and remit a significant portion of their funds to the federal government as required by the REAL ID Act. Further, the states have no choice but to pay these fees. If they do not, their citizens will lose their rights to access federal facilities and to fly on commercI.a1aI.rl'meso 21
Another ironic aspect of the Government's argument exists again at the intersection of the DAPA Directive and the REAL ID Act. Those supporting the passage of the REAL ID Act asserted that the Act would prevent illegal immigration by making it more difficult for individuals with no legal status to get state driver's licenses. See REAL ID and Biometric Technology, at 492.22 While the REAL ID Act recognized that individuals with deferred action status would be eligible to obtain driver's licenses, it seems almost without argument that the drafters of the Act did not foresee four to five million individuals obtaining deferred action by virtue of one DHS Directive, especially when the yearly average of deferred action grants prior to DACA was less than 1,000. Therefore, DAPA arguably undercuts one of the very purposes of

21 REAL ID and Biometric Technology, at 486 n.14.

22

Defenders of the ReallD Act have been able to deflect some of the criticism from various groups

by arguing that the Act is necessary to prevent illegal immigration and to prevent terrorism. For

instance, Representative Sensenbrenner referenced the fact that Muhammad Atta, one of the 9/11

hijackers, came over to the United States on a six-month visa, but still was able to obtain a six-

year driver's license in Florida. Supporters also argue that the Act will prevent illegal

immigration by making it more difficult for illegal immigrants to get state driver's licenses.

Moreover, supporters contend that asylum seekers should bear the burden of proving a valid cause

for asylum, which is required under the Real ID Act because a terrorist will not be able to easily

gain residency status by claiming asylum. Supporters also argue that a true national database,

which would be susceptible to hackers, is not required because the states will send electronic

queries to each other that will be answered with the individual state's database.

REAL ID and Biometric Technology, at 497 (emphasis added) (citations omitted). Due to DAPA, the ReallD Act will not be used to prevent illegal immigration, but rather, together, they form a basis to compel a reward for illegal immigration.

31

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 32 of 50
the REAL ID Act, and will certainly undermine any deterrent effect or security benefit that may have motivated passage of the Act.
b. Causation Establishing causation can be difficult where the plaintiffs alleged injury is caused by "the government's allegedly unlawful regulation (or lack of regulation) of someone else . ..." Lujan, 504 U.S. at 562 (emphasis in original). In the cases cited by the Government, causation depends on the decisions made by independent actors and "it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation ...." Id. Essentially, establishing causation requires the plaintiff to show that the alleged injury is not merely "remote and indirect" but is instead fairly traceable to the actions ofthe defendant. Florida v. Mellon, 273 U.S. 12, 18 (1927). The Supreme Court has declined to find that a plaintiff had standing sufficient to bring suit in federal court when it merely speculates as to whether the defendant's action would cause the alleged harm. See id. at 17-18. In Florida v. Mellon, the plaintiff sought to enjoin the federal government from collecting an inheritance tax in Florida, arguing that it would cause Florida residents to remove property from the state, thereby "diminishing the subjects upon which the state power of taxation may operate." Id. The Supreme Court held that whether the defendants' actions would cause individuals to act in such a way that would produce injury to the state was "purely speculative, and, at most, only remote and indirect." Id. at 18. Here, unlike Florida's injury in Mellon, the alleged harm to Plaintiffs' driver's license programs would be directly caused by the DHS Directive. Further, there is no speculation as to the probability of its occurrence; rather, it is like watching the same play performed on a new
32

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 33 of 50
stage. The DACA Directive, implemented in 2012, permitted its recipients to receive the status or documentation necessary to subsequently apply for driver's licenses. See Access to Driver's Licenses/or Immigrant Youth Granted DACA, NILC (Dec. 2014) ("DACA recipients who obtain an employment authorization document and a Social Security number have been able to obtain a license in almost every state,,).23 Similarly, the DAPA Directive also provides its recipients with the status and the documentation necessary to apply for a driver's license in most states. See Ark. Code Ann. § 27-16-1105 (proof of deferred status sufficient to apply for driver's license); Tex. Transp. Code. Ann. § 521.142 (employment authorization documentation sufficient for driver's license application). Aside from furnishing the status or documents necessary to apply for a driver's license, the DAPA Directive will also provide an incentive for its applicants. The Directive permits and encourages its beneficiaries to apply for work authorization for the period that they will be granted deferred status in the United States. For individuals in the United States who commute to work, driving is the most common mode of transportation. In 2013, it was estimated that 86.3% of the United States' workforce commuted to work in private vehicles,z4 See Commuting in America 2013: The National Report on Commuting Patterns and Trends, American Association of State Highway and Transportation Officials (Oct. 2013).25 This is especially true in the states that are Plaintiffs in this case, as none of them have extensive mass transit systems. In sum, the federal government's actions in Arizona, and its refusal to disclaim future such actions in this case, establish that it will seek to force Texas (and other similarly-
23 A PDF of this article may be accessed at http://www.nilc.orgldocument.html?id=1120. 24 The Ninth Circuit in Arizona Dream Act Coalition v. Brewer similarly noted that the majority of the workforce relies on private vehicles to commute to work. 757 F.3d at lO62. Specifically, the court highlighted that approximately 87% of Arizona's workforce commuted to work by car. Id 25 A PDF of this study may be accessed at http://traveltrends.transportation.orgiDocuments/CAlO-4.pdf.
33

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 34 of 50
situated states) into these changes. Further, some portion of Plaintiffs' alleged injuries are fees mandated by federal law that are required to be paid by states directly to the federal government-damages that are a virtual certainty. Plaintiffs-or at least Texas-have clearly met their burden of showing that their alleged injuries have been and will be directly "traceable" to the actions of the Defendants. Far from a generalized injury or "pie in the sky" guesswork, Plaintiffs have demonstrated a direct, finite injury to the States that is caused by the Government's actions. Given that Plaintiffs have shown that they stand to suffer concrete and particularized consequences from Defendants' actions, they have pled an injury sufficient to demonstrate standing in this Court.
c. Redressability The redressability prong of the standing analysis examines whether the remedy a plaintiff seeks will redress or prevent the alleged injury. Lujan, 504 U.S. at 560. Of this three-prong standing analysis, the question of redressability is easiest for this Court to resolve. The remedy Plaintiffs seek will undoubtedly prevent the harm they allege will stem from Defendants' DHS Directive. DAPA provides its beneficiaries with the necessary legal presence and documentation to allow them to apply for driver's licenses in most states; without this status or documentation, these beneficiaries would be foreclosed from seeking a driver's license. Therefore enjoining the implementation of the DHS Directive would unquestionably redress Plaintiffs' alleged harm. Plaintiffs (or at least one Plaintiff) has clearly satisfied the requirements for Article III standing.
34

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 35 of 50
2. Prudential Standing
In addition to fulfilling the Article III standing requirements, Plaintiffs have also satisfied
the requirements of prudential standing. As discussed above, the States have not merely pled a
"generalized grievance" that is inappropriate for the Court's resolution. Rather, the States have
shown that the DAPA program will directly injure their proprietary interests by creating a new
class of individuals that is eligible to apply for state driver's licenses. When this class applies for
driver's licenses, the States will incur significant costs to process the applications and issue the
licenses--costs that the States cannot recoup or avoid. Instead of a "generalized grievance," the
States have pled a direct injury to their fiscal interests.
Second, Plaintiffs' claims come within the "zone of interests" to be protected by the
immigration statutes at issue in this litigation. The Supreme Court has stated time and again that it is the duty of the federal government to protect the border and enforce the immigration laws.26
The Government has sought and obtained rulings that preempt all but token participation by the
states in this area of the law. The basis for this preemption was that the states' participation was
26 For example, in Plyler v. Doe, all nine justices on the Supreme Court agreed that the United States was not doing its job to protect the states. In his concurring opinion, Justice Powell stated that:
Illegal aliens are attracted by our employment opportunities, and perhaps by other benefits as well. This is a problem of serious national proportions, as the Attorney General has recently recognized. Perhaps because of the intractability of the problem, Congress-vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens-has not provided effective leadership in dealing with this problem. 457 U.S. at 237-38 (Powell, J., concurring) (citations omitted). The dissenters in Plyler, while disagreeing with the result, did not disagree about who is duty bound to protect the states: A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive. If the Federal Government, properly chargeable with deporting illegal aliens, fails to do so, it should bear the burdens of their presence here. Id. at 242 n.1 (Burger, J., dissenting).
35

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 36 of 50
not wanted or required because the federal government was to provide a unifonn system of protection to the states. The fact that DAPA undennines the INA statutes enacted to protect the states puts the Plaintiffs squarely within the zone of interest of the immigration statutes at issue.
Further, Congress has entrusted the DRS with the duty to enforce these immigration laws. 8 U.S.C. § 1103(a)(i). The DRS' duties include guarding the border and removing illegal aliens present in the country. 8 U.S.c. §§ 1103(a)(5), 1227. DAPA, however, is certainly at odds with these commands. These duties were enacted to protect the states because, under our federal system, they are forbidden from protecting themselves.
Finally, Plaintiffs are not resting their claim for relief solely on the rights and interests of third-parties. Rather, the States are seeking to protect their own proprietary interests, which they allege will be directly harmed by the implementation of DAPA. Thus Plaintiffs have similarly satisfied their burden to show prudential standing.
3. Standing under the APA Relying on the APA, Plaintiffs assert not only a basis for standing but also an argument on the merits. Because these concepts are closely intertwined, the Court will address both in its discussion of the merits. Nevertheless, for the reasons stated above and the reasons articulated below, the States have APA standing as well. D. Other Grounds for Standing The States have asserted three additional bases for standing: (1) parens patriae standing; (2) Massachusetts v. E.P.A. standing; and (3) abdication standing. Following the Supreme Court's decision in Massachusetts v. E.P.A, these theories seem at least indirectly related to the parens patriae claim discussed below. There is, however, ample evidence to support standing
36

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 37 of 50
based upon the States' demonstration of direct injury flowing from the Government's implementation of the DAPA program. Since the States have, or at least Texas has, shown a direct injury, as well as for the reasons discussed below, this Court either rejects or refuses to rely solely on either of the parens patriae or Massachusetts v. E.P.A. theories as the basis for Plaintiffs' standing. Both the Parties and amici curiae, however, have briefed these theories in depth; thus the Court is compelled to address them.
1. Parens Patriae Plaintiffs also rely on the doctrine of parens patriae to establish an independent basis for standing in their suit against Defendants. Parens patriae permits a state to bring suit to protect the interests of its citizens, even if it cannot demonstrate a direct injury to its separate interests as a sovereign entity. Alfred L. Snapp & Son, Inc. v. P.R. ex rei. Barez, 458 U.S. 592,601 (1982). Meaning literally "parent of the country," parens patriae recognizes the interests "that the State has in the well-being of its populace" and allows it to bring suit when those interests are threatened. Id. at 602; Black's Law Dictionary 1287 (10th ed. 2014). Here, the States allege that the DHS Directive will injure the economic interests of their residents, necessitating a parens patriae suit to ensure that those interests are protected from the consequences of the Government's actions. Defendants, relying primarily on the Supreme Court's OpInIOn In Massachusetts v. Mellon, contend that the States' invocation of parens patriae is misplaced. They claim states cannot maintain a parens patriae suit against the federal government since the federal government is the ultimate protector of the citizens' interests. See 262 U.S. 447, 485-86 (1923). In Massachusetts v. Mellon, Massachusetts brought a parens patriae suit to challenge the
37

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 38 of 50
constitutionality of the Maternity Act, arguing that the burden of funding the Act fell disproportionately on industrial states like Massachusetts. Id at 479. Holding that the federal government is the supreme parens patriae, the Court stated that "it is no part of [a state's] duty or power to enforce [its citizens'] rights in respect of their relations with the federal government." Id Thus, Defendants argue that the States' suit should be similarly barred since the federal government's right to protect citizens' interests trumps that of the states.
Defendants' succinct argument, however, ignores an established line of cases that have held that states may rely on the doctrine of parens patriae to maintain suits against the federal government. See, e.g., Wash. Utilities and Transp. Comm 'n v. F.CC, 513 F.2d 1142 (9th Cir. 1975) (state regulatory agency relied on parens patriae to bring suit against F.C.C. and U.S.); Kansas ex reI. Hayden v. United States, 748 F. Supp. 797 (D. Kan. 1990) (state brought suit against U.S. under parens patriae theory); Abrams v. Heckler, 582 F. Supp. 1155 (S.D.N.Y. 1984) (state used parens patriae to maintain suit against the Secretary of Health and Human Services). These cases rely on an important distinction. The plaintiff states in these cases are not bringing suit to protect their citizens from the operation of a federal statute-actions that are barred by the holding of Massachusetts v. Mellon. See, e.g., Wash. Utilities and Transp. Comm 'n, 513 F.2d at 1153; Kansas ex reI. Hayden, 748 F. Supp. at 802; Abrams, 582 F. Supp. at 1159. Rather, these states are bringing suit to enforce the rights guaranteed by a federal statute. Id For example, in Kansas ex rei. Hayden v. United States, the governor of Kansas brought a parens patriae suit to enforce the provisions of the Disaster Relief Act, which provided for the disbursement of federal funds to aid areas deemed a "major disaster." Kansas ex rei. Hayden, 548 F. Supp. at 798. Specifically, the governor brought suit to enforce the statute after he
38

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 39 of 50
alleged that the area in question was wrongfully denied status as a "major disaster area" when the procedural mechanisms for making that decision were ignored. Id at 799. Similarly, in Abrams v. Heckler, New York's attorney general brought a parens patriae suit to enforce the provisions of a Medicare statute after a final rule issued to implement the statute deprived New York Medicare recipients of a significant amount of funds. Abrams, 582 F. Supp. at 1157. Arguing that the final rule misinterpreted the provisions of the statute and thus exceeded statutory authority, the attorney general sought to have the Medicare funds distributed in compliance with the statute. Id
Consequently, Defendants' rebuttal to the States' parens patriae argument is not as simple as they would suggest. States are not barred outright from suing the federal government based on a parens patriae theory; rather, provided that the states are seeking to enforce-rather than prevent the enforcement of-a federal statute, a parens patriae suit between these parties may be maintained. In the instant case, the States are suing to compel the Government to enforce the federal immigration statutes passed by Congress and to prevent the implementation of a policy that undermines those laws. Though seeking adherence to a federal statute is a necessary component for a state's parens patriae suit against the federal government, it alone is not enough; in addition, states must identify a quasi-sovereign interest that is harmed by the alleged under-enforcement. See Alfred L. Snapp, 458 U.S. at 601 ("to have such [parens patriae] standing the State must assert an injury to what has been characterized as a 'quasi-sovereign interest"'). The defining characteristics of a quasi-sovereign interest are not explicitly laid out in case law; rather, the meaning of the term has undergone a significant expansion over time. See Com. of Pa. v. Kleppe, 533 F.2d 669, 673 (D.C. Cir. 1976). Although the earliest recognized
39

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 40 of 50
quasi-sovereign interests primarily concerned public nuisances, the doctrine expanded rapidly to encompass two broad categories: (1) a state's quasi-sovereign interest "in the health and wellbeing-both physical and economic-of its residents"; and (2) a state's quasi-sovereign interest in "not being discriminatorily denied its rightful status within the federal system." Alfred L. Snapp, 458 U.S. at 607. In particular, courts have consistently recognized a state's quasisovereign interest in protecting the economic well-being of its citizens from a broad range of injuries. See, e.g., Alfred L. Snapp, 458 U.S. at 609 (discrimination against Puerto Rican laborers injured economic well-being of Puerto Rico); Wash. Utilities and Transp. Comm 'n, 513 F.2d at 1152 (increased rates for intrastate phone service would injure the economic well-being of the state); Abrams, 582 F. Supp. at 1160 (changes to Medicare that would decrease payments to New York recipients is sufficient injury to economic well-being); Alabama ex reI. Baxley v. Tenn. Valley Auth., 467 F. SUpp. 791, 794 (N.D. Ala. 1979) (relocation of executive and administrative offices would damage the economic well-being of Alabama by decreasing available jobs and injuring state economy).
Here, the States similarly seek to protect their residents' economIC well-being. Specifically, Plaintiffs allege that the DHS Directive will create a discriminatory employment environment that will encourage employers to hire DAPA beneficiaries instead of those with lawful permanent status in the United States?7 To support this assertion, Plaintiffs focus on the interplay between the DHS Directive and the Affordable Care Act passed in 2010. Beginning in
27 In addition to the injuries stemming from the alleged creation of a discriminatory employment environment, certain portions of the States' briefs-as well as various amici briefs--detail a number of encumbrances suffered by their residents due to the lack of immigration enforcement, such as increased costs to healthcare and public school programs. Few-if any-of these allegations have actually been specifically pled by the Parties as a basis for parens patriae standing.
40

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 41 of 50
2015, the Affordable Care Act ("ACA") requires employers with fifty or more employees to offer adequate, affordable healthcare coverage to their full-time employees. Patient Protection and Affordable Care Act, 26 U.S.C. § 4980H. If an employer with fifty or more employees chooses not to offer health insurance to its full-time employees, it instead incurs a monetary penalty. Id. Currently, ACA requires that employers provide health insurance only to those individuals that are "legally present" in the United States. Id. at § 5000A(d)(3). The definition of "legally present," however, specifically excludes beneficiaries of the 2012 DACA Directive. If an employer hires a DACA beneficiary, it does not have to offer that individual healthcare nor does it incur a monetary penalty for the failure to do so. See 45 C.F.R. § 152.2(8). The States argue that the Obama Administration is expected to promulgate similar regulations that will also bar beneficiaries of the DAPA Directive from participating in the ACA's employer insurance mandate. This exclusion, the States argue, will exacerbate unemployment for its citizens because it will create an employment environment that will encourage employers to discriminate against lawfully present citizens. Since the ACA's exclusion of DAPA beneficiaries makes them more affordable to employ, employers will be inclined to prefer them over those employees that are covered by the terms of the ACA. Id.
The States' alleged injury to their citizens' economic well-being is within the quasisovereign interests traditionally protected by parens patriae actions. See, e.g., Alfred L. Snapp, 458 U.S. at 609; Wash. Utilities & Transp. Comm 'n, 513 F.2d at 1152; Kansas ex reI. Hayden, 548 F. Supp. at 802; Abrams, 582 F. Supp. at 1160; Alabama ex rei. Baxley, 467 F. Supp. at 794. The States' challenge, however, is premature. Although some expect that the Obama Administration will promulgate regulations barring DAPA beneficiaries from participating in the
41

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 42 of 50
ACA's employer insurance mandate, it has yet to do so. See A Guide to the Immigration Accountability Executive Action, Immigration Policy Center (Dec. 22, 2014i8 ("[T]he Obama Administration will promulgate regulations to exclude DAPA recipients from any benefits under the Affordable Care Act, much as it did in the aftermath of the DACA announcement.") (emphasis added); DACA and DAPA Access to Federal Health and Economic Support Programs, NILC (Dec. 10, 2014)29 (the Obama Administration "issued regulations that deny access to health coverage under the ACA for DACA recipients and is expected to do the same for DAPA recipients") (emphasis added); Michael D. Shear & Robert Pear, Obama's Immigration Plan Could Shield Five Million, N.Y. Times (Nov. 19,2014)30 (quoting Stephen W. Yale-Loehr, professor of immigration law at Cornell, for assertion that it "appears" that these individuals will be barred from health benefits under ACA) (emphasis added). Discouraging the resolution of controversies that are not ripe, the Supreme Court has held that courts should avoid "entangling themselves in abstract disagreements ... until an administrative decision has been formalized and its effects felt in a concrete way ...." Nat 'I Park Hospitality Ass 'n v. Dep't ofInterior, 538 U.S. 803, 807-08 (2003). Here, the administrative decision from which the States' alleged economic injury will flow has not been formalized. Thus, the States' parens patriae suit is not ripe for adjudication.
28 This article may be accessed at http://www.immigrationpolicy.org/special-reports/guide-immigrationaccountability-executive-action. 29 A PDF of this article may be accessed at http://allianceforcitizenship.org/wp-content/uploads/2014112IDAPADACA -and- fed-health-economic-supports. pdf. 30 This article may be accessed at http://www.nytimes.coml2014111120/us/politics/obamacare-unlikely-forundocumented-immigrants.html?_1-0.
42

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 43 of 50
2. Massachusetts v. EP.A. Claims Clearly, in addition to the traditional Article III standing, Plaintiffs can also pursue their direct damage claims under the ambiguous standards set forth in Massachusetts v. EP.A. In Massachusetts, the Supreme Court held that Massachusetts had standing to seek redress for the damages directly caused to its interests as a landowner. Similarly, the States have standing because the Defendants' actions will allegedly cause direct damage to their proprietary interests. Consequently, no matter how one reads Massachusetts v. EP.A., it strengthens the conclusion that the States do have standing to sue for direct damages. Nevertheless, separate and apart from their direct damage claim (for which at least Texas has standing) and somewhat related to the parens patriae basis for standing, the States also assert standing based upon the continual non-enforcement of the nation's immigration laws, which allegedly costs each Plaintiff State millions of dollars annually. The evidence in this case supplies various examples of large, uncompensated losses stemming from the fact that federal law mandates that states bear the burdens and costs of providing products and services to those illegally in the country. These expenses are most clearly demonstrated in the areas of education and medical care, but the record also contains examples of significant law enforcement costs.
a. Argument of the States and Amici The States and some amici briefs argue that the Supreme Court's holding in Massachusetts v. EP.A. supports the States' assertion of standing based on their injuries caused by the Government's prolonged failure to secure the country's borders. Whether negligently or even with its best efforts, or sometimes, even purposefully, the Government has allowed a situation to exist where illegal aliens move freely across the border, thus allowing-at a
43

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 44 of 50
minimum-500,000 illegal aliens to enter and stay in the United States each year.3! The federal government is unable or unwilling to police the border more thoroughly or apprehend those illegal aliens residing within the United States; thus it is unsurprising that, according to prevailing estimates, there are somewhere between 11,000,000 and 12,000,000 illegal aliens currently living in the country, many of whom burden the limited resources in each state to one extent or another. Indeed, in many instances, the Government intentionally allows known illegal aliens to enter and remain in the country. When apprehending illegal aliens, the Government often processes and releases them with only the promise that they will return for a hearing if and when the Government decides to hold one.32 In the meantime, the states-with little or no help from the Government-are required by law to provide various services to this population.33 Not surprisingly, this problem is particularly acute in many border communities. According to the States' argument, this situation is exacerbated every time the Government or one of its leading officials makes a pro-amnesty statement or, as in the instant case, every time the DHS institutes a program that grants status to individuals who have illegally entered the country.
31 Michael Hoefer, et ai., Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2010, U.S. DHS, Feb. 2011. 32 The Court was not provided with the "no-show" rates for adult illegal aliens who are released and later summoned for an immigration hearing. It has been reported, however, that the immigration hearings for last year's flood of illegal immigrant children have been set for 2019. Further, reports also show that there is a 46% "no-show" rate at these immigration hearings for children that were released into the population. Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in Apprehensions at the Southern Border: Hearing Before the S. Homeland Sec. Comm., 113th Congo (July 9, 2014) (statement of Juan Osuna, Director of the Executive Office for Immigration Review). Thus, for these children that the Government released into the general popUlation, despite a lack of legal status, the States will have to bear the resulting costs for at least five more years- if not forever, given the rate of non-compliance with appearance notices. 33 See, e.g., Plyler, 457 U.S. at 224-25; Toll V. Moreno, 458 U.S. 1, 16 (1982).
44

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 45 of 50
b. Analysis
The States' argument is certainly a simplification of a more complex problem.
Regardless of how simple or layered the analysis is, there can be no doubt that the failure of the
federal government to secure the borders is costing the states--even those not immediately on
the border-millions of dollars in damages each year. While the Supreme Court has recognized
that states "have an interest in mitigating the potentially harsh economic effects of sudden shifts
in population,,,34 the federal government has effectively denied the states any means to protect
themselves from these effects. Further, states suffer these negative effects regardless of whether
the illegal aliens have any ties or family within the state, or whether they choose to assimilate into the population of the United States.35 The record in this case provides many examples of
these costs. Evidence shows that Texas pays $9,473 annually to educate each illegal alien child enrolled in public schoo1.36 In Texas, 7,409 unaccompanied illegal immigrant children were
released to sponsors between October of 2013 and September of 2014. Thus, in that period
alone, Texas absorbed additional education costs of at least $58,531,100 stemming from illegal
immigration. Further, this figure addresses only the newly-admitted, unaccompanied children; it
by no means includes all costs expended during this period to educate all illegal immigrant
34 Plyler, 457 U.S. at 228. 35 ld. While most Americans find the prospect of residing anywhere but the United States unthinkable, this is not a universally-held principle. Many aliens are justly proud of their own native land and come to the United States (both legally and illegally) because our economy provides opportunities that their home countries do not. Many of these individuals would be satisfied with working in the United States for part of the year and returning to their homeland for the remainder. This arrangement is often unfeasible for illegal aliens, though, because of the risk of apprehension by authorities when traveling back and forth across the border. Regardless, many illegal aliens have no intention of permanently immigrating, but rather seek to be able to provide for their families. The Supreme Court in Arizona noted that 476,405 aliens are returned to their home countries every year without a removal order. 132 S. Ct. at 2500. Many others return outside of any formal process. See also, footnotes 41 and 42 and the text accompanying footnote 42. 36 This figure presumes the provision of bilingual services. If bilingual services are not required, the cost is $7,903 annually per student.
45

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 46 of 50
children residing in the state. Evidence in the record also shows that in 2008, Texas incurred $716,800,000 in uncompensated medical care provided to illegal aliens.
These costs are not unique to Texas, and other states are also affected. Wisconsin, for example, paid $570,748 in unemployment benefits just to recipients of deferred action. Arizona's Maricopa County has similarly estimated the costs to its law enforcement stemming from those individuals that received deferred action status through DACA. That estimate, which covered a ten-month period and included only the law enforcement costs from the prior year, exceeded $9,000,000.
To decrease these negative effects, the States assert that the federal government should do two things: (1) secure the border; and (2) cease making statements or taking actions that either explicitly or impliedly solicit immigrants to enter the United States illegally. In other words, the Plaintiffs allege that the Government has created this problem, but is not taking any steps to remedy it. Meanwhile, the States are burdened with ever-increasing costs caused by the Government's ineffectiveness. The frustration expressed by many States and/or amici curiae in their briefing is palpable. It is the States' position that each new wave of illegal immigration increases the financial burdens placed upon already-stretched State budgets.
It is indisputable that the States are harmed to some extent by the Government's action and inaction in the area of immigration. Nevertheless, the presence of an injury alone is insufficient to demonstrate standing as required to bring suit in federal court. A plaintiff must still be able to satisfy all of the elements of standing-including causation and redressability-to pursue a remedy against the one who allegedly caused the harm.
46

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 47 of 50
Not surprisingly, the States rely, with much justification, on the Supreme Court's holding in Massachusetts v. E.P.A. to support standing based on these damages. 549 U.S. 497 (2007). In Massachusetts, the Supreme Court held that states have special standing to bring suit for the protection of their sovereign or quasi-sovereign interests. Id at 520. Justice Stephens quoted a prior decision from Justice Kennedy, stating to the effect that states "are not relegated to the role of mere provinces or political corporations but retain the dignity, though not the full authority, of sovereignty." Id. at 519 (quoting Alden v. Maine, 527 U.S. 706, 715 (1999)) The majority concluded that Massachusetts, in its role as a landowner, suffered (or would suffer) direct damages from the EPA's refusal to act under the Clean Air Act. Id. at 519, 526. Massachusetts' status as a landowner, however, was only the icing on the cake. See id. at 519. This status reinforced the Supreme Court's conclusion that "[Massachusetts'] stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal jurisdiction." Id. Without explicitly delineating formal elements, the majority seemed to recognize a special form of "sovereignty standing" if the litigant state could show: (1) a procedural right to challenge the act or omission in question and (2) an area of special state interest. See id at 518-26. With regard to the latter, Justice Stephens concluded that states have standing to file suit to protect the health and welfare of their citizens since our structure of government mandates that they surrender to the federal government: (1) the power to raise a military force; (2) the power to negotiate treatises; and (3) the supremacy of their state laws in areas of federal legislation. Id at 519.
The States conclude that Justice Stephens' holding is equally applicable to their situation. First, the States have no right to negotiate with Mexico or any other country from which large numbers of illegal aliens immigrate; thus the States cannot rely on this avenue to resolve or
47

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 48 of 50
lessen the problem. Second, the States cannot unilaterally raise an army to combat invaders or protect their own borders. Third, the federal government ardently defends against any attempt by a state to intrude into immigration enforcement--even when the state seeks to enforce the very laws passed by Congress. Therefore, the States reach the same conclusion as the Supreme Court did in Massachusetts v. E.P.A. They have the power to sue the federal government in federal court to protect their quasi-sovereign interests in the health, welfare, and natural resources of their citizens.
The States lose badly needed tax dollars each year due to the presence of illegal aliens-a clear drain upon their already-taxed resources. These damages, the States argue, are far greater and more direct than the damages stemming from air pollution in Massachusetts. Thus, they conclude that they should similarly have standing. This Court agrees to the actual existence of the costs being asserted by Plaintiffs. Even the Government makes no serious attempt to counter this argument, considering that the Government's lack of border security combined with its vigilant attempts to prevent any state from protecting itself have directly led to these damages. Causation here is more direct than the attenuated causation chain patched together and accepted by the Supreme Court in Massachusetts.
Nevertheless, standing in Massachusetts was not dependent solely on damages flowing from the lax enforcement of a federal law; the Supreme Court also emphasized the procedural avenue available to the state to pursue its claims. See id. at 520. Specifically covering the section under which Massachusetts' claim was brought, the Clean Air Act provided that "[a] petition for review of action of the Administrator in promulgating any ... standard under section 7521 of this title ... may be filed only in the United States Court of Appeals for the District of
48

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 49 of 50
Columbia." Clean Air Act, 42 U.S.C. § 7607(b)(1). The States claim that the APA gives them a
similar procedural avenue. The APA states:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 702 (emphasis in original). Section 703 ofthe APA specifically authorizes a suit like
this case where the States seek a mandatory injunction. 5 U.S.C. § 703. Finally, Section 704
provides a cause of action for a "final agency action for which there is no other adequate remedy
in a court ...." 5 U.S.c. § 704. It is appropriate to note that the Government has asserted that
there is absolutely no remedy, under any theory, for the Plaintiffs' suit-seemingly placing the
States' suit squarely within the purview of Section 704.
The Government counters this contention, however, by arguing that the DAPA program
IS an exercise of discretion and merely informational guidance being provided to DHS
employees. Since it argues that discretion is inherent in the DAPA program, the Government
concludes that it not only prevails on the merits of any APA claim, but that this discretion also
49

Case 1:14-cv-00254 Document 145 Filed in TXSD on 02/16/15 Page 50 of 50
closes the standing doorway that the States are attempting to enter. 37 The Court will address
these assertions in a separate part of the opinion because they are not the key to the resolution of
the indirect damages contemplated in this section regarding standing under Massachusetts v.
E.P.A.
It has been recognized that the resources of states are drained by the presence of illegal
aliens-these damages unquestionably continue to grow. In 1982, the Attorney General
estimated that the country's entire illegal immigrant population was as low as three million
individuals. See Plyler v. Doe, 457 U.S. at 218-19. Today, California alone is reported to have
at least that many illegal immigrants residing with its borders. Among the Plaintiff States, the
only difference with regard to the population of illegal immigrants residing within each is that
37 See 5 U.S.C. § 701. There is some authority in the immigration context that a private immigration organization cannot attack immigration decisions via the APA. See Fed'nfor Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996). These decisions are based primarily on a lack of "prudential standing" rather than on the requirements of the APA. However, for those directly affected by a federal agency action, these decisions are inapplicable. In this context, the Government in places conflates the issue of standing with that of reviewability.
Standing to seek review is a concept which must be distinguished from reviewability. In Association ofData Processing Servo Organizations, Inc. v. Camp, the Court defined "standing" in terms of a two-part test. First, the complainant must allege "that the challenged action has caused him injury in fact, economic or otherwise." Second, "the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."
Reviewability presumes that the standing prerequisite has been satisfied and then adds the element of the courts' power to judge a certain administrative decision. Correspondingly, "unreviewable" administrative actions are those which will not be judicially scrutinized, despite the fulfillment of all prerequisites such as standing and finality, either because Congress has cut off the court's power to review or because the courts deem the issue "inappropriate for judicial determination."
Even "unreviewable" administrative action may be judicially reviewed under exceptional circumstances, such as whether there has been a clear departure from the agency's statutory authority. Statutory Preclusion ofJudicial Review, 1976 Duke L. J. 431, 432 nA (1976) (citations omitted). The States have seemingly satisfied these two standing requirements, but that alone does not allow the Court to review the DHS' actions.
50

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 1 of 50
the population is not evenly distributed.38 The Government does not dispute the existence of these damages, but instead argues that widespread and generalized damages-such as those suffered by all taxpayers collectively---do not provide a basis for one to sue the Government. The States concede that the cases cited by the Government certainly stand for that proposition; but they argue that the new rules announced in Massachusetts v. E.P.A. give them, in their role as states, "special solicitude" to bring an action to protect the resources of their citizens. Turning to the dissent, the States similarly find support for this new form of standing from Chief Justice Roberts' statement that the majority opinion "adopts a new theory of Article III standing for States ...." Id. at 539-40 (Roberts, J., dissenting).
The Court recognizes that the Supreme Court's opinion in Massachusetts appears to establish new grounds for standing-a conclusion the dissenting opinions goes to lengths to point out. Nevertheless, the Court finds that Massachusetts did not abandon the traditional standing requirements of causation and redressability-elements critical to the damages discussed in this section. The Court finds that the Government's failure to secure the border has exacerbated illegal immigration into this country. Further, the record supports the finding that this lack of enforcement, combined with this country's high rate of illegal immigration, significantly drains the States' resources.39
38 The Court notes that, while twenty-six states or their representatives are Plaintiffs herein, thirteen states and many municipalities have filed amici briefs on the Government's behalf. One of the arguments raised in their brief is that DAPA may eventually change the presence of illegal aliens in this country into an economic positive, an opinion based upon a number of studies. Doc. No. 81; see also Doc. No. 121 (amici brief filed by the Mayors of New York and Los Angeles, et al.). 39 The Government, though not necessarily agreeing that it has failed to secure the border, concedes that many costs associated with illegal immigration must be borne by the states, particularly in the areas of education, law enforcement, and medical care.
51

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 2 of 50
Regardless, the Court finds that these more indirect damages described in this section are not caused by DAPA; thus the injunctive relief requested by Plaintiffs would not redress these damages. DAPA applies only to individuals who have resided in the United States since 2010. If the DHS enforces DAPA as promulgated, this group has already been in the country for approximately five years. Therefore, the costs and damages associated with these individuals' presence have already been accruing for at least a five-year period. The relief Plaintiffs seek from their suit is an injunction maintaining the status quo-however, the status quo already includes costs associated with the presence of these putative DAPA recipients. If the Court were to grant the requested relief, it would not change the presence of these individuals in this country, nor would it relieve the States of their obligations to pay for any associated costs. Thus, an injunction against DAPA would not redress the damages described above.
The States also suggest that the special sovereign standing delineated in Massachusetts encompasses three other types of damages that will be caused by DAPA. First, the continued presence of putative DAPA recipients will increase the costs to which the States are subjected.40 Specifically, the States allege that, because DAPA recipients will be granted legal status for a three-year period, those who have not already pursued state-provided benefits will now be more likely to seek them. Stated another way, DAPA recipients will be more likely to "come out of the shadows" and to seek state services and benefits because they will no longer fear deportation. Thus, the States' resources will be taxed even more than they were before the promulgation of DAPA.
40 This discussion does not include direct costs to the state, such as the costs associated with providing additional driver's licenses, which were discussed in a prior section. This Court does not address the issue as to whether some or all of these damages might be recoverable under the theory of "abdication standing" because that ruling is not necessary to grant this temporary injunction.
52

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 3 of 50
Regardless of whether the States' prediction is true, the Constitution and federal law mandate that these individuals are entitled to state benefits merely because of their presence in the United States, whether they reside in the sunshine or the shadows. Further, aside from the speculative nature of these damages, it seems somewhat inappropriate to enjoin the implementation of a directive solely because it may encourage or enable individuals to apply for benefits for which they were already eligible.
The States' reply, though supported by facts, is not legally persuasive. The States rightfully point out that DAPA will increase their damages with respect to the category of services discussed above because it will increase the number of individuals that demand them. Specifically, the Plaintiffs focus on two groups. First, there are many individuals each year that self-deport from the United States and return to their homeland.41 The States suggest, with some merit, that DAPA will incentivize these individuals to remain in the United States.
Second, the States focus on the individuals that would have been deported without the legal status granted by DAPA, alleging that their continued presence in this county will increase state costs. The States argue that the DHS has decided it will not enforce the removal statutes with regards to at least 4,300,000 people plus hypothetically millions of others that apply but are not given legal presence. They conclude in the absence of the DAPA program, the DHS in its normal course of removal proceedings would have removed at least some of these individuals. Thus DAPA will allow some individuals who would have otherwise been deported to remain in the United States. The Government has made no cogent response to this argument. Were it to
41 As stated earlier in a footnote, many individuals voluntarily return to their homeland. See DHS, Office of Immigration Statistics, Immigration Enforcement Actions: 2013, at 1 (Sept. 2014). In fact, in the years 2007 through 2009, more illegal immigrants self-deported back to Mexico than immigrated into the United States.
53

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 4 of 50
argue against this assertion, the Government would likely have to admit that these individuals would not have been deported even without DAPA-an assertion that would damage the DHS far more than it would strengthen its position.
The States are correct that there are a number of individuals that fall into each category. Immigration experts estimate that 178,000 illegal aliens self-deport each year.42 Though the DHS could likely calculate the number of individuals deported and estimate the number that selfdeported over the past five years (and used those figures to estimate those who would in the near future) that would have otherwise qualified for DAPA relief, that evidence is not in the record. It is reasonable to conclude, however, that some of these individuals would have self-deported or been removed from the country. The absence of these individuals would likely reduce the states' costs associated with illegal immigration.
The Government has not directly addressed the suppositions inherent in this argument, but it and at least two sets of amici curiae have suggested a response. Specifically, they suggest that any potential reduction in state costs that could have been anticipated in the absence of DAPA will be offset by the productivity of the DAPA recipients and the economic benefits that the States will reap by virtue of these individuals working, paying taxes, and contributing to the community.
This Court, with the record before it, has no empirical way to evaluate the accuracy of these economic projections, and the record does not give the Court comfort with either position. Yet, these projections do demonstrate one of the reasons why the Court does not accept the States' argument for standing on this point. A theory without supporting evidence does not
42 DRS, Office ofImmigration Statistics, Immigration Enforcement Actions: 2013, at 1 (Sept. 2014). 54

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 5 of 50
support a finding of redressability. Based upon the record, the presence of damages or offsetting benefits is too speculative to be relied upon by this or any other court as a basis for redressability.
The last category of damages pled by Plaintiffs that falls within Massachusetts' "special solicitude" standing is predicated upon the argument that reports made by the Government and third-parties concerning the Government's actions have had the effect of encouraging illegal immigration. The Government does not deny that some of its actions have had this effect, but maintains that its actions were legal and appropriate. In other words, these actions may have had the unintended effect of encouraging illegal immigration, but that does not create a damage model that would satisfy either the causation or redressability requirements of standing.
Nevertheless, a myriad of reasons support a court's abstention from intervention when damages are premised upon the actions of third-parties motivated by reports (and misreports) of governmental action.43 The Court will address only two.
The First Amendment protects political debate in this country. Enjoining that debate, or finding damages predicated upon that debate, would be counter-productive at best and, at worst, a violation of the Constitution. The crux of the States' claim is that the Defendants violated the Constitution by enacting their own law without going through the proper legislative or administrative channels. One cannot, however, consistently argue that the Constitution should control one aspect of the case, yet trample on the First Amendment in response to another. Speech usually elicits widely-differing responses, and its ramifications are often unpredictable. Clearly, reports of governmental activity, even if they are biased, misleading, or incorrect, are
43 In a different case held before this Court, a DHS official confmned under oath the existence of this unintended consequence. See footnote 110.
55

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 6 of 50
protected speech-despite the fact that they may have the unintended effect of inspiring illegal immigration.
Second, a lawful injunction that would cure this problem cannot be drafted. Unquestionably, some immigrants are encouraged to come to the United States illegally based upon the information they receive about DACA and DAPA. Reports of lax border security, minimal detention periods following apprehension, and the ease of missing immigration hearings may also encourage many to immigrate to this country illegally. Individuals may also be encouraged to immigrate illegally because they have been told that the stock market is doing well, or that the United States' economy is doing better than that of their homeland, or because the United States has better schools or more advanced medical care. The decision to immigrate illegally is motivated by innumerable factors, and a court would be jousting at windmills to craft an injunction to enjoin all of these activities.
Statements and reports about the implementation of DACA and DAPA may very well encourage individuals to try to reach the United States by any means, legal or otherwise. Further, it is undisputed that illegal immigration strains the resources of most states. This sideeffect, however, is too attenuated to enjoin DAPA's implementation. The States have not shown that an injunction against DAPA would redress these particular damages.
56

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 7 of 50
E. Standing Created by Abdication 1. The Factual Basis
The most provocative and intellectually intriguing standing claim presented by this case is that based upon federal abdication.44 This theory describes a situation when the federal government asserts sole authority over a certain area of American life and excludes any authority or regulation by a state; yet subsequently refuses to act in that area. Due to this refusal to act in a realm where other governmental entities are barred from interfering, a state has standing to bring suit to protect itself and the interests of its citizens.
The States concede, here, that the regulation of border security and immigration are solely within the jurisdiction of the United States-an assertion the United States agrees with and has repeatedly insisted upon in other cases. However, rather than enforcing laws pertaining to border security and immigration, the Government, through DAPA, has instead announced that it will not seek to deport certain removable aliens because it has decided that its resources may be better used elsewhere. In sum, the States argue that the Government has successfully established its role as the sole authority in the area of immigration, effectively precluding the States from taking any action in this domain and that the DHS Secretary in his memorandum establishing DAPA has announced that except for extraordinary circumstances, the DHS has no intention of enforcing the laws promulgated to address millions of illegal aliens residing in the United States.
The facts underlying the abdication claim cannot be disputed. In Arizona v. United States, the federal government sued Arizona when the state tried to enforce locally enacted immigration restrictions. Arizona v. United States, 132 S. Ct. 2492 (2012). The Supreme Court
44 "Abdication" is defined as "[t]he act of renouncing or abandoning ... duties, usually those connected with high office ...." Black's Law Dictionary 4 (10th ed. 2014).
57

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 8 of 50

upheld the Government's position, holding that federal law preempted the state's actions. Id. at

2495. Nonetheless, the Supreme Court, in doing so, still recognized the states' plight due to

federal preemption in the area of immigration:

The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population. And in the State's most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime.

Statistics alone do not capture the full extent of Arizona's concerns. Accounts in

the record suggest there is an "epidemic of crime, safety risks, serious property

damage, and environmental problems" associated with the influx of illegal

migration across private land near the Mexican border. Phoenix is a major city of

the United States, yet signs along an interstate highway 30 miles to the south warn

the public to stay away.

One reads, "DANGER-PUBLIC

WARNING-TRAVEL NOT RECOMMENDED/Active Drug and Human

Smuggling ArealVisitors May Encounter Armed Criminals and Smuggling

Vehicles Traveling at High Rates of Speed." The problems posed to the State by

illegal immigration must not be underestimated.

These concerns are the background for the formal legal analysis that follows. The issue is whether, under preemption principles, federal law permits Arizona to implement the state-law provisions in dispute.

Id at 2500. Despite this expression of empathy, the Supreme Court held, with minor exceptions, that states are virtually powerless to protect themselves from the effects of illegal immigration.45

45 Though clearly pre-dating DACA and DAPA, courts from a variety of jurisdictions have similarly expressed sympathy for the plight ofthe states that bear the brunt of illegal immigration. See, e.g., Arizona v. United States, 104 F.3d 1095 (9th Cir. 1997); California v. United States, 104 F.3d 1086 (9th Cir. 1997); New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996); Padavan v. United States, 82 F.3d 23 (2d Cir. 1996); Chiles v. United States, 69 F.3d 1094 (lIth Cir. 1995), cert. denied, 517 U.S. 1188 (1996). These courts invariably denied the states the relief they sought since inadequate immigration enforcement did not supply a basis for standing. Id. Indeed, as recently as 2013, another court dismissed similar claims by the State of Mississippi. See Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013).
Three things were constant in all of these cases. In each, the courts expressed sympathy with the plight of the states. Second, the courts held that the states could not recover indirect costs they suffered as a result of ineffective enforcement. This is identical to the ruling this Court made in the prior section regarding damages stemming from
58

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 9 of 50
Id. Holding that States cannot even exercise their civil power to remove an illegal alien, the
majority opinion stated that "Immigration and Customs Enforcement (ICE), an agency within the
Department of Homeland Security, is responsible for identifying, apprehending, and removing
illegal aliens." Id. at 2495. The Government continues to take the position that "even State laws
relating to matters otherwise within the core of the police power will generally be preempted ...
Arizona (or any other State) may not substitute its judgment for the federal government's when it
comes to classification of aliens." Brief for the United States as Amicus Curiae at 14-16,
Arizona v. Brewer, 757 F.3d 1053 (9th Cir. 2014). As made clear in this DACA-related brief, the
Government claims total preemption in this area of the law. Thus, the first element of an
abdication claim is established.
the provision of services like education and medical care. Third, none of these cases, however, held that a state was absolutely precluded from ever bringing suit concerning immigration enforcement issues.
Three important factors separate those cases from the present one-anyone of which would be considered a major distinction. The presence of all three, however, clearly sets this case apart from those cited-above. First, with the exception of Crane, none of the cases involved the Government announcing a policy of non-enforcement. Here, the DHS has clearly announced that it has decided not to enforce the immigration laws as they apply to approximately 4.3 million individuals-as well as to untold millions that may apply but be rejected by the DAPA program. The DHS has announced that the DAPA program confers legal status upon its recipients and, even if an applicant is rejected, that applicant will still be permitted to remain in the country absent extraordinary circumstances. There can be no doubt about this interpretation as the White House has made this clear by stating that the "change in priorities applies to everybody." See footnote 88. Because of this announced policy of nonenforcement, the Plaintiffs' claims are completely different from those based on mere ineffective enforcement. This is abdication by any meaningful measure.
Second, the plaintiffs in the above-cited cases did not provide proof of any direct damages-rather, the plaintiffs in these cases only pled indirect damages caused by the presence of illegal aliens. Conversely, in the present case, Texas has shown that it will suffer millions of dollars in direct damages caused by the implementation of DAPA.
Finally, with the exception of Crane (in which this issue was not raised), the above-cited cases pre-date the REAL ID Act of 2005. The REAL ID Act mandates a state's participation in the SAVE program, which requires that a state pay a fee to verify an applicant's identity prior to issuing a driver's license or an identification card. By creating a new class of individuals eligible for driver's licenses and identification cards, individuals that the INA commands should be removed, DAPA compounds the already federally-mandated costs that states are compelled to pay.
59

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 10 of 50
To establish the second element necessary for abdication standing, the States assert that the Government has abandoned its duty to enforce the law. This assertion cannot be disputed. When establishing DAPA, Secretary Johnson announced that the DHS will not enforce the immigration laws as to over four million illegal aliens eligible for DAPA, despite the fact that they are otherwise deportable. DHS agents were also instructed to terminate removal proceedings if the individual being deported qualifies for relief under the DAPA criteria. Further, the DHS has also announced that, absent extraordinary circumstances, it will not even deport illegal aliens who apply for DAPA and are rejected. The record does not contain an estimate for the size of this group, but hypothetically the number of aliens who would otherwise be deported if the INA were enforced is in the millions. Secretary Johnson has written that these exemptions are necessary because the DHS' limited funding necessitates enforcement priorities. Regardless of the stated motives, it is evident that the Government has determined that it will not enforce the law as it applies to over 40% of the illegal alien population that qualify for DAPA, plus all those who apply but are not awarded legal presence. It is not necessary to search for or imply the abandonment of a duty; rather, the Government has announced its abdication.
The Government claims, however, that its deferred action program is merely an exercise of its prosecutorial discretion. Any justifications regarding abdication, though, are not a necessary consideration for standing. This inquiry may be necessary to a discussion on the merits, but standing under a theory of abdication requires only that the Government declines to enforce the law. Here, it has.46
46 In the absence of these declarations of abdication, an examination of relevant DHS statistics might be instructive, but apparently the DHS is not very forthcoming with this information. The author of a recent law review article detailed the trouble she experienced in trying to get deferred action numbers from the Government. Finally, after numerous attempts, her conclusions were:
60

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 11 of 50
The Government claims sole authority to govern in the area of immigration, and has
exercised that authority by promulgating a complex statutory scheme and prohibiting any
meaningful involvement by the states. As demonstrated by DACA and DAPA, however, the
Government has decided that it will not enforce these immigration laws as they apply to well
over five million people, plus those who had their applications denied. If one had to formulate
from scratch a fact pattern that exemplified the existence of standing due to federal abdication,
one could not have crafted a better scenario.
2. The Legal Basis
The Government has not seriously contested the Plaintiffs' factual basis for this claim-
nor could it. Turning from the facts of this claim to the applicable law, the concept of state
standing by virtue of federal abdication is not well-established. It has, however, been implied by
a number of opinions, including several from the Supreme Court. The abdication theory of
standing is discussed most often in connection with a parens patriae claim. It has also been
discussed as providing APA standing, and in some contexts is relied upon as the exclusive basis
While the grant rate for deferred action cases might cause alarm for those who challenge the deferred action program as an abuse of executive branch authority, it should be clear that regardless of outcome, the number of deferred action cases considered by ICE and USCIS are quite low ... Even doubling the number of legible deferred action grants produced by USCIS and ICE between 2003 and 2010 (118 plus 946) yields less than 1,100 cases, or less than 130 cases annually. Shoba S. Wadhia, Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law, 10 U.N.H. L. Rev. 1,47 (2011) (hereinafter "Sharing Secrets"). See also, Leon Wildes, The Deferred Action Program ofthe Bureau of Citizenship and Immigration Services: A Possible Remedy for Impossible Immigration Cases, 41 San Diego L. Rev. 819 (2004). Other statistics suggest the deferred action rate between 2005 and 2010 ranged between a low 542 to an annual high of 1,029 individuals. Regardless, DACA has raised that number to an annual average over the years 2012-2014 to over 210,000 and ifDAPA is implemented in a similar fashion, the average for the next three years will be in excess of 1.4 million individuals per year. The Court is not comfortable with the accuracy of any of these statistics, but it need not and does not rely on them given the admissions made by the President and the DHS Secretary as to how DAPA will work. Nevertheless, from less than a thousand individuals per year to over 1.4 million individuals per year, if accurate, dramatically evidences a factual basis to conclude that the Government has abdicated this area-even in the absence of its own announcements.
61

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 12 of 50
for standing. Traditionally, parens patriae actions were instituted by states seeking to protect the
interests of their citizens, as well as for protection of their own quasi-sovereign interests. One of
this principle's few limitations stems from the notion that the federal government, rather than a
state, has the superior status in the role as a parent. In other words, the federal government was
the supreme parens patriae. Thus a state can rely on parens patriae to protect its interests
against any entity or actor--except the federal government. As explicitly noted by the dissent in
Massachusetts v. E.P.A.:
A claim of parens patriae standing is distinct from an allegation of direct injury. See Wyoming v. Oklahoma, 502 U.S. 437, 448-449, 451, 112 S. Ct. 789, 117 L. Ed. 2d 1 (1992). Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a "quasisovereign interest" "apart from the interests of particular private parties." 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) (emphasis added) (cited ante, at 1454). Just as an association suing on behalf of its members must show not only that it represents the members but that at least one satisfies Article III requirements, so too a State asserting quasi-sovereign interests as parens patriae must still show that its citizens satisfy Article III. Focusing on Massachusetts's interests as quasisovereign makes the required showing here harder, not easier. The Court, in effect, takes what has always been regarded as a necessary condition for parens patriae standing-a quasi-sovereign interest-and converts it into a sufficient showing for purposes of Article III.
What is more, the Court's reasoning falters on its own terms. The Court asserts that Massachusetts is entitled to "special solicitude" due to its "quasi-sovereign interests," ante, at 1455, but then applies our Article III standing test to the asserted injury of the Commonwealth's loss of coastal property. See ante, at 1456 (concluding that Massachusetts "has alleged a particularized injury in its capacity as a landowner" (emphasis added». In the context of parens patriae standing, however, we have characterized state ownership of land as a "nonsovereign interes[t]" because a State "is likely to have the same interests as other similarly situated proprietors." Alfred L. Snapp & Son, supra, at 601, 102 S. Ct. 3260.
On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State's standing to assert a quasi-sovereign interest-as opposed to a direct injury-against the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens
62

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 13 of 50
patriae "for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them." Massachusetts v. Mellon, 262 U.S. 447, 485-486, 43 S. Ct. 597, 67 L. Ed. 1078 (1923) (citation omitted); see also Alfred L. Snapp & Son, supra, at 610, n.16, 102 S. Ct. 3260. Massachusetts, 549 U.S. at 539 (Roberts, J., dissenting). Following this assertion, Chief Justice Roberts described the majority opinion as bestowing upon the states "a new theory of Article III standing ...." Id. at 1466. Expounding further on this point, Chief Justice Roberts quoted a footnote from Alfred L. Snapp & Son, Inc. v. P.R. ex reI. Barez stating that: [T]he fact that a State may assert rights under a federal statue as parens patriae in no way refutes our clear ruling that "[a] State does not have standing as parens patriae to bring an action against the Federal Government." Massachusetts, 549 U.S. at 540 n.1 (quoting Alfred L. Snapp, 458 U.S. at 610 n.16) (citations omitted). As demonstrated by Massachusetts' conflicting opinions regarding the limitations of parens patriae standing, it is difficult to determine how long the law has permitted a state to rely upon this doctrine to show standing in a suit against the federal government. This interpretation may be well established, as asserted by Justice Stephens in the majority opinion, or it may be unprecedented, as described by the four dissenters. Regardless of its longevity, it is a rule delineated by the Supreme Court of the United States and which this Court is bound to follow. See, e.g., Bradford Mank, Should States Have Greater Standing Rights than Ordinary Citizens?: Massachusetts v. EPA's New Standing Testfor States, 49 Wm. & Mary L. Rev. 1701 (2008). The concept of abdication standing, however, has not been confined to parens patriae cases. Specifically, the States rely on the Supreme Court's opinion in Heckler v. Chaney, which involved a decision by the FDA not to take certain enforcement actions regarding the drugs used
63

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 14 of 50
in lethal injections administered by the states. 470 U.S. 821 (1985). Upholding the agency's decision not to act, the Supreme Court noted that they were not presented with "a situation where it could justifiably be found that the agency has 'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." Id. at 833 nA (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973».
The States claim that, unlike the FDA's action at issue in Heckler, the DAPA program is a total abdication and surrender of the Government's statutory responsibilities. They contend that the DAPA Directive basically concedes this point, and this Court agrees. The DAPA Memorandum states that the DRS cannot perform all the duties assigned to it by Congress because of its limited resources, and therefore it must prioritize its enforcement of the laws. This prioritization necessitated identifying a class of individuals who are guilty of a violation of the country's immigration laws, and then announcing that the law would not be enforced against them. The DAPA Memorandum concludes that, for the DRS to better perform its tasks in one area, it is necessary to abandon enforcement in another.
In response, the Government maintains its overall position: it is immaterial how large the putative class of DAPA beneficiaries is because DAPA is a legitimate exercise of its prosecutorial discretion. Earlier in this opinion, this Court held that Plaintiffs have standing based upon the direct damages they will suffer following the implementation of DAPA. Nevertheless, based upon the Supreme Court's opinion in Heckler, and the cases discussed below, this Court also finds that Plaintiffs have standing because of the DRS' abdication of its statutory duties to enforce the immigration laws.
64

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 15 of 50
The Heckler Court is not alone in addressing abdication standing. Again not involving the parens patriae doctrine, the Fifth Circuit has addressed the concept of abdication in a similar suit involving the same parties. See Texas v. United States, 106 F.3d 661 (5th Cir. 1997). In Texas v. United States, the Fifth Circuit held that abdication did not exist for several reasons. Id. at 667. First, it noted that Texas did not argue that the Government was "mandating" that it take any action with respect to undocumented aliens. Id. This fact situation is dissimilar to the one presently before the Court. Here, the States put forth evidence that demonstrates that the Government has required and will require states to take certain actions regarding DAPA recipients. Further, the Government has not conceded that it will refrain from taking similar action against the remaining Plaintiffs in this case. Second, the Fifth Circuit in Texas held that the Government's failure to effectively perform its duty to secure the border did not equate to an abdication of its duty. Id.
Plaintiffs contend that these distinctions made by the Fifth Circuit in Texas are noticeably absent in the present case. The DHS unilaterally established the parameters for DAPA and determined that it would not enforce the immigration laws as they apply to millions of individuals-those that qualify for DAPA and surprisingly even those that do not. Thus, the controlling but missing element in Texas that prevented a finding of abdication is not only present in this case, but is factually undisputed.47 Further, if one accepts the Government's position, then a lack of resources would be an acceptable reason to cease enforcing environmental laws, or the Voting Rights Act, or even the various laws that protect civil rights
47 Obviously, the Government disputes whether these facts equate to abdication, but it does not dispute the underlying facts themselves-nor could it, as these facts are set out in writing by the DHS Secretary in the DAPA Memorandum.
65

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 16 of 50
and equal opportunity. Its argument is that it has the discretion to cease enforcing an act as long
as it does so under the umbrella of prosecutorial discretion. While the Court does not rule on the
merits of these arguments, they certainly support the States' standing on the basis of abdication.
In regards to abdication standing, this case bears strong similarities to Adams v.
Richardson, 480 F.2d 1159 (D.C. Cir. 1973). In Adams, the Secretary of Health, Education and
Welfare adopted a policy that, in effect, was a refusal to enforce Title VI of the Civil Rights Act
of 1964. Id at 1161. Specifically, the Secretary refused to effectuate an end to segregation in
federally-funded public education institutions. Id In Adams, as in the case before this Court, the
Government argued that the "means" of enforcement is a matter of absolute agency discretion,
and in the exercise of that discretion it chose to seek voluntary compliance. See id. at 1162.
Rejecting this argument and holding that the Secretary had abdicated his statutory duty, the D.C.
Circuit noted that:
[t]his suit is not brought to challenge HEW's decisions with regard to a few school districts in the course of a generally effective enforcement program. To the contrary, appellants allege that HEW has consciously and expressly adopted a general policy which is in effect an abdication ofits statutory duty. We are asked to interpret the statute and determine whether HEW has correctly construed its enforcement obligations.
A final important factor distinguishing this case from the prosecutorial discretion cases cited by HEW is the nature of the relationship between the agency and the institutions in question. HEW is actively supplying segregated institutions with federal funds, contrary to the expressed purposes of Congress. It is one thing to say the Justice Department lacks the resources necessary to locate and prosecute every civil rights violator; it is quite another to say HEW may affirmatively continue to channel federal funds to defaulting schools. The anomaly of this latter assertion fully supports the conclusion that Congress's clear statement of an affirmative enforcement duty should not be discounted
Id (emphasis added).
66

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 17 of 50
In the present case, Congress has clearly stated that illegal aliens should be removed. Like that at issue in Adams, the DHS program clearly circumvents immigration laws and allows individuals that would otherwise be subject to removal to remain in the United States. The policy in Adams purported to seek voluntary compliance with Title VI. In contrast, the DHS does not seek compliance with federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country's immigration law. Assuming that the concept of abdication standing will be recognized in this Circuit, this Court finds that this is a textbook example.
F. Conclusion Having found that at least one Plaintiff, Texas, stands to suffer direct damage from the implementation of DAPA, this Court finds that there is the requisite standing necessary for the pursuit of this case in federal court. Fulfilling the constitutional requirements of standing, Texas has shown that it will suffer an injury, that this injury is proximately caused by the actions of the Government, and that a favorable remedy issued by the Court would prevent the occurrence of this injury.48 This Court also finds that Texas' claim has satisfied the requirements of prudential standing: Plaintiffs' suit is not merely a generalized grievance, the Plaintiffs' fall within the "zone of interest" pertaining to the immigration statutes at issue, and Plaintiffs' suit is not based merely on the interests of third-parties. Finally, for the various reasons discussed above and below, it is clear that Plaintiffs satisfy the standing requirements as prescribed by the APA. Thus even "unreviewable"
48 The Court has also found that the Government has abdicated its duty to enforce the immigration laws that are designed, at least in part, to protect the States and their citizens. While many courts, including the United States Supreme Court, have suggested that the abdication of duty gives rise to standing, this Court has not found a case where the plaintiffs standing was supported solely on this basis. Though not the only reason, the Court finds Plaintiffs (at least Texas) have standing pursuant to this theory, as well.
67

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 18 of 50
administrative actions may be subject to judicial review under exceptional circumstances, such as when there has been a clear departure from the agency's statutory authority. See Manges v. Camp, 474 F.2d 97,99 (5th Cir. 1973). With regard to APA standing, this Court emphasizes that there is a difference between the standing required to bring a lawsuit and that necessary for APA reviewability. Although traditional standing refers to the ability of a plaintiff to bring an action, APA "reviewability" concerns the ability of the Court to actually review and grant relief regarding the act or omission in question on either procedural or substantive grounds. This Court will address these redressability issues as part of its discussions on the merits.
Having reached the conclusion that standing exists for at least one Plaintiff, the Court turns to the merits.
v. THE MERITS OF THE STATES' CLAIMS
As previously noted, this opinion seeks to address three issues: standing, legality, and constitutionality. Having concluded that at least one Plaintiff, the State of Texas, has standing, the Court now addresses the merits of the States' claims regarding the DAPA program.
A. Prosecutorial Discretion and Agency Prioritization A basic issue intrinsically interwoven in most of the arguments presented in this case warrants attention before proceeding. It does not resolve any of the ultimate remaining questions, but the Court nevertheless finds it important. Just as the Government has been reluctant to make certain concessions, prosecutorial discretion is an area where the States, possibly in fear of making a bigger concession than intended, are reluctant to concede. As discussed above, one of the DHS Secretary's stated reasons for implementing DAPA is that it
68

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 19 of 50
allegedly allows the Secretary to expend the resources at his disposal in areas he views as deserving the most attention. He has set forth these priorities as follows:
1. Priority 1: threats to national security, border security, and public safety; 2. Priority 2: misdemeanants and new immigration violators; 3. Priority 3: other immigration violations.
See Doc. No. 38, Def. Ex. 5 (Nov. 20, 2014 Memorandum, "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,,).49
The law is relatively clear on enforcement discretion and, thus, the Court will not address it at length. Nevertheless, because the DHS has so intertwined its stated priorities with the DAPA program as justification for its alleged exercise of discretion, the Court finds it helpful to point out some basic legal principles.
The law is clear that the Secretary's ordering of DHS priorities is not subject to judicial second-guessing:
[T]he Government's enforcement priorities and . . . the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to make. Reno, 525 U.S. at 490 (quoting Wayte v. United States, 470 U.S. 598,607-08 (1985)). Further, as a general principle, the decision to prosecute or not prosecute an individual is, with narrow exceptions, a decision that is left to the Executive Branch's discretion. Heckler, 470 U.S. at 831 (citing a host of Supreme Court opinions). As the Fifth Circuit has stated:
49 Interestingly, this memorandum, which is different from the DAPA Memorandum (although dated the same day), states: "Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens in the United States who are not identified as priorities herein." The DAPA recipients arguably fall under Priority 3, but the Secretary's DAPA Memorandum seems to indicate he thinks otherwise. Despite this admonition, the DAPA Memorandum instructs DHS officials not to remove otherwise removable aliens. In fact, it also instructs ICE officials to immediately stop enforcement procedures already in process, including removal proceedings.
69

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 20 of 50
The prosecution of criminal cases has historically lain close to the core of the Article II executive function. The Executive Branch has extraordinarily wide discretion in deciding whether to prosecute. Indeed, that discretion is checked only by other constitutional provisions such as the prohibition against racial discrimination and a narrow doctrine of selective prosecution. Riley v. St. Luke's Episcopal Hosp., 252 F.3d 749, 756 (5th Cir. 2001). The Judiciary has generally refrained from injecting itself into decisions involving the exercise of prosecutorial discretion or agency non-enforcement for three main reasons. First, these decisions ordinarily involve matters particularly within an agency's expertise. Second, an agency's refusal to act does not involve that agency's "coercive" powers requiring protection by courts. Finally, an agency's refusal to act largely mirrors a prosecutor's decision to not indict. Heckler, 470 U.S. at 821-32. This is true whether the suit is brought under common law or the APA. Absent abdication, decisions to not take enforcement action are rarely reviewable under the APA. See, e.g., Texas, 106 F.3d at 667. Consequently, this Court finds that Secretary Johnson's decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch, to the extent that they do not violate any statute or the Constitution. The fact that the DHS has virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources resolves an underlying current in this case. This fact does not, however, resolve the specific legal issues presented because the general concept of prosecutorial discretion-or Defendants' right to exercise it-is not the true focus of the States'
70

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 21 of 50
legal attack.so Instead, Plaintiffs argue that DAPA is not within the Executive's realm (his power to exercise prosecutorial discretion or otherwise) at all; according to Plaintiffs, DAPA is simply the Executive Branch legislating.
Indeed, it is well-established both in the text of the Constitution itself and in Supreme Court jurisprudence that the Constitution "allows the President to execute the laws, not make them." Medellin, 552 U.S. at 532. It is Congress, and Congress alone, who has the power under the Constitution to legislate in the field of immigration. See U.S. Const. art. 1, § 8, cl. 4; Plyler, 457 U.S. at 237-38. As the Supreme Court has explained, "[t]he conditions for entry [or removal] of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for detennining such classification, the right to tenninate hospitality to aliens, [and] the grounds on which such detenninations should be based, have been recognized as matters solely for the responsibility ofthe Congress . ..." Harisiades v. Shaughnessy, 342 U.S. 580, 596-97 (1952) (emphasis added).
Just as the states are preempted from interfering with the "careful balance struck by Congress with respect to unauthorized employment," for example,s I Plaintiffs argue that the doctrine of separation of powers likewise precludes the Executive Branch from undoing this careful balance by granting legal presence together with related benefits to over four million individuals who are illegally in the country. It is the contention of the States that in enacting DAPA, the DHS has not only abandoned its duty to enforce the laws as Congress has written them, but it has also enacted "legislation" contrary to the Constitution and the separation of
50 The States obviously question the soundness of Defendants' alleged exercise of discretion. Their complaint also questions whether this program can be characterized or justified as an exercise of discretion at all. 51 Arizona, 132 S. Ct. at 2505.
71

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 22 of 50
powers therein. Finally, the States complain that the DHS failed to comply with certain procedural statutory requirements for taking the action it did.
The Court now turns to those issues. B. Preliminary Injunction To support the "equitable remedy" of a preliminary injunction, the Plaintiff States must establish four elements: "(1) a substantial likelihood of success on the merits; (2) a substantial threat that the [States] will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause [Defendants]; and (4) that the injunction will not disserve the public interest." Jackson Women's Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014) (quoting Hoover v. Morales, 164 F.3d 221,224 (5th Cir. 1998». While a preliminary injunction should not be granted unless the plaintiff, "by a clear showing," carries his burden of persuasion on each of these four factors, see Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted) (emphasis in the original), the plaintiff "need not prove his case." Lakedreams v. Taylor, 932 F.2d 1103, 1109 n.11 (5th Cir. 1991); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (emphasizing that a party "is npt required to prove his case in full at a preliminary injunction hearing"). The "generally accepted notion" is that 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 the merits." Meis v. Sanitas Servo Corp., 511 F.2d 655, 656 (5th Cir. 1975) (citations omitted); see also Camenisch, 451 U.S. at 395 ("The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held."). "Given this limited purpose, and given the haste that is often necessary if [the parties'] positions
72

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 23 of 50
are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." [d. The Court's analysis requires "a balancing of the probabilities of ultimate success on the merits with the consequences of court intervention at a preliminary stage." Meis, 511 F.2d at 656; see also Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974) ("[T]he most compelling reason in favor of (granting a preliminary injunction) is the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act.") (quotation marks and citations omitted).
1. Preliminary Injunction Factor One: Likelihood of Success on the Merits
The first consideration in the preliminary injunction analysis is the likelihood that the plaintiff will prevail on the merits. The Fifth Circuit has previously stated that the likelihood required in a given case depends on the weight and strength of the other three factors. See Canal Auth., 489 F.2d at 576-77. Although some doubt has been cast on this "sliding scale" approach, it is clear that, at a minimum, the plaintiff must demonstrate a "substantial case on the merits." See, e.g., Southerland v. Thigpen, 784 F.2d 713, 718 n.l (5th Cir. 1986). Thus, to meet the first requirement for a preliminary injunction, the States "must present a prima facie case," but "need not show a certainty of winning." llA Charles Alan Wright et aI., Federal Practice and Procedure § 2948.3 (3d ed. 2014) (hereinafter "Wright & Miller").
a. The Administrative Procedure Act The States complain that the implementation ofDAPA violates the APA. 5 U.S.C. §§ 501 et seq. Specifically, the States assert that DAPA constitutes a "substantive" or "legislative" rule that was promulgated without the requisite notice and comment process required under Section
73

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 24 of 50

553 of the APA.52 Defendants concede that DAPA was not subjected to the APA's formal

notice-and-comment procedure. Instead, they argue that DAPA is not subject to judicial review

and, even if reviewable, is exempt from the APA's procedural requirements.

1.

Judicial Review Under the Administrative

Procedure Act

When a party challenges the legality of agency action, a finding that the party has

standing will not, alone, entitle that party to a decision on the merits. See Data Processing, 397

U.S. at 173 (Brennan, J., concurring). Thus, before proceeding to the merits of Plaintiffs' claim,

the Court must ensure that the agency action at issue here is reviewable under the APA.

Subject to two exceptions described below, the APA provides an avenue for judicial

review of challenges to "agency action." See 5 U.S.C. §§ 701-706. Under Section 702, "[a]

person suffering legal wrong because of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5

U.S.C. § 702. Section 702 contains two requirements. First, the plaintiffs must identify some

'''agency action' that affects [them] in the specified fashion; it is judicial review 'thereof' to

which [they are] entitled." Lujan v. Nat'l Wildlife Fed, 497 U.S. 871, 882 (1990) (quoting 5

U.S.C. § 702). "Agency action," in turn, is defined in the APA as "the whole or part of an

agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."

5 U.S.C. § 551(13). When, as here, judicial 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.'" Lujan, 497 U.S. at 882 (citing 5

52 The States also claim that DAPA substantively violates the APA in that it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" under 5 U.S.C. § 706. If accurate (and all other requirements under the APA are satisfied), Section 706 would require that the Court "hold unlawful and set aside" the DAPA program. 5 U.S.C. § 706.
74

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 25 of 50
u.S.C. § 704, which provides that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review").
To obtain review under Section 702, Plaintiffs must additionally show that they are either "suffering legal wrong" because of the challenged agency action, or are "adversely affected or aggrieved by [that] action within the meaning of a relevant statute." 5 U.S.C. § 702. A plaintiff claiming the latter, as the States do here, must establish that the "injury he complains of (his aggrievement, or the adverse effect upon him) falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Lujan, 497 u.S. at 871 (citing Clarke, 479 u.S. at 396-97).
(1) Final Agency Action The Supreme Court has identified two conditions that must be satisfied for agency action to be "final." First, "the action must mark the consummation of the agency's decisionmaking process ... -it must not be of a merely tentative or interlocutory nature." Bennett, 520 U.S. at 178 (internal quotations marks and citations omitted). One need not venture further than the DHS Directive itself to conclude that it is not "of a merely tentative or interlocutory nature." Secretary Johnson ordered immediate implementation of certain measures to be taken under DAPA. For instance, he ordered ICE and CBP to "immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the ... criteria ... to prevent the further expenditure of enforcement resources." Doc. No.1, PI. Ex. A at 5. Secretary Johnson further instructed ICE to "review pending removal cases, and seek administrative closure or termination" of cases with potentially eligible deferred action beneficiaries. Id (emphasis added). The DHS has additionally set up a "hotline" for immigrants in the removal
75

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 26 of 50
process to call and alert the DRS as to their eligibility, so as to avoid their removal being
effectuated.53 USCIS was given a specific deadline by which it "should begin accepting
applications under the new [DACA] criteria": "no later than ninety (90) days from the date of [the Directive's] announcement." Id at 4. As of the date of this Order, that deadline is less than
a week away.54 Moreover, the DRS is currently obtaining facilities, assigning officers, and contracting employees to process DAPA applications.55 Thus, the DRS Directive has been in
effect and action has been taken pursuant to it since November of2014.
Under the second condition identified by the Supreme Court, to be "final," the agency's
action "must be one by which rights or obligations have been determined, or from which legal
consequences will flow." Bennett, 520 U.S. at 178 (internal quotation marks and citations
omitted). As evidenced by the mandatory language throughout the DAPA Memorandum
requiring USCIS and ICE to take certain actions, the Secretary's Directive clearly establishes the
obligations of the DRS and assigns specific duties to offices within the agency. Additionally,
DAPA confers upon its beneficiaries the right to stay in the country lawfully. Clearly, "legal
consequences will flow" from Defendants' action: DAPA makes the illegal presence of millions
of individuals legal.
53 See, e.g., Frequently Asked Questions, The Obama Administration's DAPA and Expanded DACA Programs, NILC, at http://www.nilc.org/dapa&daca.html (last updated Jan. 23, 2015). 54 Defendants have not indicated any intention to depart from the deadline established in the DRS Directive. To the contrary, the DRS' website states in bold, red font that it will begin accepting applications under the new DACA criteria on February 18,2015. See Executive Actions on Immigration, Official Website of the Dept. of Romeland Security, at http://www.uscis.gov/immigrationaction (last updated Jan. 30, 2015). A deadline by which USCIS should begin accepting applications for DAPA was also provided in the DRS Directive: no later than 180 days from the date DAPA was announced. Thus, USCIS must begin accepting applications by mid-May of this year. 55 Doc. No. 64, PI. Ex. 23 (Palinkas Dec.) ("USCIS has announced that it will create a new service center to process DAPA applications. The new service center will be in Arlington, Virginia, and it will be staffed by approximately 1,000 federal employees. Approximately 700 of them will be USCIS employees, and approximately 300 of them will be federal contractors.").
76

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 27 of 50
Two other factors confirm that the DAPA Directive constitutes final agency action. First, the Government has not specifically suggested that it is not final. To the contrary, the DRS' own website declares that those eligible under the new DACA criteria may begin applying on February 18,2015. Finally, the 2012 DACA Directive-which was clearly final and has been in effect for two and a half years now-was instituted in the same fashion, pursuant to a nearly identical memorandum as the one here. Indeed, Secretary Johnson in the DAPA Memorandum "direct[s] USCIS to establish a process, similar to DACA" for implementing the program. Doc. No.1, PI. Ex. A (emphasis added). This experience-and the lack of any suggestion that DAPA will be implemented in a fashion different from DACA-serves as further eyidence that DAPA is a final agency action. Based upon the combination of all of these factors, there can be no doubt that the agency action at issue here is "final" in order for the Court to review it under the APA.
(2) The Zone of Interests To challenge Defendants' action under the APA, Plaintiffs must additionally show: (1) that they are "adversely affected or aggrieved, i.e. injured in fact," and (2) that the "interest sought to be protected by the [Plaintiffs] [is] arguably within the zone of interests to be protected or regulated by the statute in question." Clarke, 479 U.S. at 395-96 (internal quotation marks and citations omitted). The key inquiry is whether Congress "intended for [Plaintiffs] to be relied upon to challenge agency disregard of the law." Block v. Cmty. Nutrition Inst., 467 U.S. 340, 347 (1984); see also Clarke, 479 U.S. at 399 ("The 'zone of interest' test is a guide for deciding whether, in view of Congress' evident intent to make agency action presumptively
77

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 28 of 50
reviewable, a particular plaintiff should be heard to complain of a particular agency decision.").
The test is not "especially demanding.,,56 Id As the Supreme Court in Clarke held:
In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the 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 . . . . [T]here need be no indication ofcongressional purpose to benefit the would-be plaintiff.
Id at 399-400 (citations removed) (emphasis added).
As described above in great detail, it is clear that at least one Plaintiff, the State of Texas,
(and perhaps some of the other States if there had been time and opportunity for a full
development of the record), will be "adversely affected or aggrieved" by the agency action at
issue here. DAPA authorizes a new status of "legal presence" along with numerous other
benefits to a substantial number of individuals who are currently, by law, "removable" or
"deportable." The Court finds that the acts of Congress deeming these individuals removable
were passed in part to protect the States and their residents. Indeed, over the decades there has
been a constant flood of litigation between various states and the federal government over federal
enforcement of immigration laws. The states have been unsuccessful in many of those cases and
have prevailed in only a few. Regardless of which side prevailed and what contention was at
issue, there has been one constant: the federal government, under our federalist system, has the
S6 The Clarke Court noted that, although a similar zone of interest test is often applied when considering "prudential standing" to sue in federal court (as already discussed in this opinion), the zone of interest test in the APA context is much less demanding than it is in the prudential standing context. 479 U.S. at 400 n.l6 (stating that the invocation of the zone of interest test in the standing context "should not be taken to mean that the standing inquiry under whatever constitutional or statutory provision a plaintiff asserts is the same as it would be if the 'generous review provisions' of the APA apply"). This Court, in its consideration of prudential standing concerns, already found Plaintiffs to be within the zone of interest of the relevant immigration laws, which DAPA contravenes. Thus, based on the less-demanding nature of the APA's zone of interest test, the Court need not go into great detail in this part of its analysis.
78

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 29 of 50
duty to protect the states, which are powerless to protect themselves, by enforcing the
immigration statutes. Congress has recognized this:
States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens.57
Similarly, the Supreme Court has recognized that the states have an interest in the enforcement
or non-enforcement of the INA:
Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime, and those who have entered unlawfully are subject to deportation. But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas.
Plyler, 457 U.S. at 205 (citations omitted). Finally, the Department of Justice has likewise
acknowledged that the states' interests are related to and consistent with the purposes implicit
within the INA:
Unlawful entry into the United States and reentry after removal are federal criminal offenses.58
To discourage illegal immigration into the United States, the INA prohibits employers from knowingly hiring or continuing to employ aliens who are not authorized to work in the United States.
The federal immigration laws encourage States to cooperate with the federal government in its enforcement of immigration laws in several ways. The INA provides state officials with express authority to take certain actions to assist federal immigration officials. For example, state officers may make arrests for violations of the INA's prohibition against smuggling, transporting or harboring aliens.... And, if the Secretary determines that an actual or imminent mass influx of aliens presents urgent circumstances requiring an immediate federal response,
57 See, e.g., Kate M. Manuel, Congo Research Serv., R43839, State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation 2 (2014).
58 As the Supreme Court held in Arizona v. United States, it is the job of ICE officers to remove those who violate Sections 1325 and 1326. See 132 S. Ct. at 2500.
79

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 30 of 50
she may authorize any state or local officer ... to exercise the powers, privileges or duties of federal immigration officers under the INA.
Congress has also authorized DHS to enter into agreements with States to allow appropriately trained and supervised state and local officers to perform enumerated functions of federal immigration enforcement. Activities performed under these agreements ... "shall be subject to the direction and supervision of the [Secretary]."
The INA further provides, however, that a formal agreement is not required for state and local officers to "cooperate with the [Secretary]" in certain respects .... Even without an agreement, state and local officials may "communicate with the [Secretary] regarding the immigration status of an individual," or "otherwise cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States".... To further such "cooperat[ive]" efforts to "communicate," Congress has enacted measures to ensure a useful flow of information between DHS and state . . . agencies.
Brief for the United States in Opposition on Petition for Writ of Certiorari at 2-6, Arizona
v. United States, 132 S. Ct. 2492 (2012) (No. 11-182), 2011 WL 5548708 (citations
omitted).
According to estimates available to the Court, at least 50-67% of potentially-eligible
DAPA recipients have probably violated 8 U.S.C. § 1325.59 The remaining 33-50% have likely
overstayed their permission to stay. Under the doctrine of preemption, the states are deprived of
the ability to protect themselves or institute their own laws to control illegal immigration and,
thus, they must rely on the INA and federal enforcement of the same for their protection. See
Arizona, 132 S. Ct. at 2510 (reaffirming the severe limit on state action in the field of
59 See, e.g., David Martin, A Defense ofImmigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach's Latest Crusade, 122 Yale L. J. Online 167, 171 (2012) (citing Modes of Entry for the Unauthorized Migrant Population, PEW Hisp. Center 3 (May 22, 2006), at http://pewhispanic.org/files/factsheetsI19.pdf). (Mr. Martin served as General Counsel of the INS from 1995-1997, and as Principal Deputy General Counsel of the DHS from 2009-20lO.). See also Andorra Bruno, Congo Research Serv., R41207, Unauthorized Aliens in the United States: Policy Discussion 2 (2014) (hereinafter "Bruno, Unauthorized Aliens in the United States").
80

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 31 of 50
immigration). Despite recognizing the inability of states to tackle their immigration problems in a manner inconsistent with federal law, the Supreme Court in Arizona noted:
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. Id. (emphasis added). The responsibility of the federal government, who exercises plenary power over immigration, includes not only the passage of rational legislation, but also the enforcement of those laws.6o The States and their residents are entitled to nothing less. DAPA, no matter how it is characterized or viewed, clearly contravenes the express terms of the INA. Under our federalist system, the States are easily in the zone of interest contemplated by this nation's immigration laws.
(3) Exceptions to Review
Although the Court easily finds the agency action at issue here final and that the States
fall within the relevant zone of interests in order to seek review, Defendants claim that review is nevertheless unavailable in this case because the APA exempts the DHS action from its purview.
There are two exceptions to the general rule of reviewability under the APA. First, agency action is unreviewable "where the statute explicitly precludes judicial review." 5 U.S.C.
60 Congress exercises plenary power over immigration and the Executive Branch is charged with enforcing Congress' laws. See Failla v. Bell, 430 U.S. 787, 792 (1997) ("[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.") (internal quotation marks and citations omitted). Just like the states, albeit for a different reason, the Executive Branch "may not pursue policies that undermine federal law."
81

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 32 of 50
§ 701(a)(1). This exception applies when "Congress has expressed an intent to preclude judicial review." Heckler, 470 U.S. at 830.61 Second, and arguably more relevant to the present case,
even if Congress has not affirmatively precluded judicial review, courts are precluded from
reviewing agency action that is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
This second exception was first discussed in detail by the Supreme Court in Citizens to Preserve
Overton Park, Inc. v. Volpe. 401 U.S. 402 (1971). There, the Court interpreted the exception
narrowly, finding it "applicable in those rare instances where 'statutes are drawn in such broad
terms that in a given case there is no law to apply. ", Id. at 410 (quoting S. Rep. No. 752, 79th
Cong., 1st Sess. 26 (1945)). Subsequently, in Heckler v. Chaney, the Supreme Court further
refined its interpretation of Section 701(a)(2). Distinguishing the exception in Section 701 (a)(1)
from that in Section 701 (a)(2), the Court stated:
The former [§ 701 (a)(1)] applies when Congress has expressed an intent to preclude judicial review. The latter [§701(a)(2)] applies in different circumstances; even where Congress has not affirmatively precluded review,
review is not to be had if the statute is drawn so that a court would have no
meaningful standard against which to judge the agency's exercise ofdiscretion. In such a case, the statute ("law") can be taken to have "committed" the decisionmaking to the agency's judgment absolutely. This construction avoids conflict with the "abuse of discretion" standard of review in § 706--if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for "abuse of discretion."
470 U.S. at 830 (emphasis added).
Relevant to the present issue, the Supreme Court then exempted from the APA's
"presumption of reviewability" non-enforcement decisions made by an agency. Id. at 831
61 The Government has not pointed the Court to any statute that precludes reviewability of DAPA. As there is no statute that authorizes the DHS to implement the DAPA program, there is certainly no statute that precludes judicial review under Section 701(a).
82

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 33 of 50
(disagreeing with the lower court's "insistence that the 'narrow construction' of § (a)(2) required application of a presumption of reviewability even to an agency's decision not to undertake certain enforcement actions"). The Court distinguished the availability of review for the type of agency action in Overton Park from the challenged agency decisions in Heckler:
Overton Park did not involve an agency's refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve precisely the opposite situation, and in that situation we think the presumption is that judicial review is not available. Id (emphasis added). Thus, according to the Heckler Court, there is a "rebuttable presumption" that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion" and, consequently, unsuitable for judicial review. Id An "agency's refusal to institute proceedings" has been "traditionally committed to agency discretion," and the enactment of the APA did nothing to disturb this tradition. Id at 832. Underlying this presumption of unreviewability are three overarching concerns that arise when a court proposes to review an agency's discretionary decision to refuse enforcement. First, "an agency decision not to enforce often involves a complicated balancing of a number of factors which are particularly within its expertise[,]" and the agency is "far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." Id at 831-32. These factors or variables that an agency must assess in exercising its enforcement powers include "whether a violation has occurred, ... whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the
83

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 34 of 50
particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all." Id at 831. Due to circumstances beyond its control, an agency "cannot act against each technical violation of the statute it is charged with enforcing." Id For obvious reasons, this has application in the criminal and immigration contexts. Consequently, the deference generally accorded to "an agency's construction of the statute it is charged with implementing" and the "procedures it adopts" for doing so (under general administrative law principles)62 is arguably even more warranted when, in light of the above factors, the agency chooses not to enforce the statute against "each technical violation." Id at 831-32.
Second, an agency's refusal to act generally does not "infringe upon areas that courts often are called upon to protect[,]" including individual liberty or property rights. In other words, a non-enforcement decision ordinarily does not involve an exercise of governmental "coercive power" over an individual's rights. Id at 832 (emphasis in original). By contrast, when an agency does take action exercising its enforcement power, the action in and of itself "provides a focus for judicial review." Id Because the agency "must have exercised its power in some manner," its action is more conducive to review "to determine whether the agency exceeded its statutory powers." Id (citing FTC v. Klesner, 280 U.S. 19 (1929)).
62 The Heckler Court cited Vermont Yankee Nuclear Power Corp. v. Natural Res. De! Council, Inc., 435 U.S. 519, 543 (1978), and Train v. Natural Res. De! Council, Inc., 421 U.S. 60, 87 (1975). For instance, in discussing deference to agency interpretation, the Supreme Court stated in Vermont Yankee:
But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances, the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties. Indeed, our cases could hardly be more explicit in this regard. 435 U.S. at 543 (internal quotations and citations omitted).
84

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 35 of 50
Lastly, the Heckler Court compared agency non-enforcement decisions to the exercise of prosecutorial discretion in the criminal context--decisions that plainly fall within the express and exclusive province of the Executive Branch, which is constitutionally charged to "take Care that the Laws be faithfully executed." See id. ("Finally, we recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict-a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'to take Care that the Laws be faithfully executed."') (quoting U.S. Const. art. II, § 3).
While the Court recognizes (as discussed above) that the DRS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants' actions. First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler's presumption of unreviewability: "non-enforcement" and "inaction." While agency "non-enforcement" might imply "inaction" in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as "non-enforcement," it is actually affirmative action rather than inaction.
The Supreme Court's concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. Instead of merely refusing to enforce the INA's removal laws against an individual, the DRS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work
85

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 36 of 50
authorization permits, and the ability to travel.63 Absent DAPA, these individuals would not
receive these benefits.64 The DHS has not instructed its officers to merely refrain from arresting,
ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of
DAPA, that is what the DHS has been doing for these recipients for the last five years65-
whether that was because the DHS could not track down the millions of individuals they now
deem eligible for deferred action, or because they were prioritizing removals according to limited
resources, applying humanitarian considerations, or just not removing these individuals for
"administrative convenience.,,66 Had the States complained only of the DHS' mere failure to (or
63 See, e.g., Frequently Asked Questions, The Obama Administration's DAPA and Expanded DACA Programs, NILC, at http://www.nilc.org/dapa&daca.html (last updated Jan. 23, 2015) (instructing potential DAPAIDACA beneficiaries that "[o]nce [their] work permit arrives," to look up their local Social Security office at www.ssa.gov to apply for Social Security numbers). The official website for the Social Security Administration offers information for noncitizens, explaining that noncitizens "authorized to work in the United States by the Department of Homeland Security (DHS) can get a Social Security number .... You need a Social Security number to work, collect Social Security benefits and receive some other government services." Social Security Numbers for Noncitizens, Official Website of the Social Security Administration (Aug. 2013), http://www.ssa.gov/pubsIEN-0510096.pdf.
64 The States raised, but did not address at length, the tax benefit issue perhaps because this is an expense that the federal taxpayers must bear. Nevertheless, it is clear from the testimony of IRS Commissioner John A. Koskinen presented to the Senate Finance Committee that the DAPA recipients would be eligible for earned income tax credits once they received a Social Security number. See Testimony of IRS Commissioner John A. Koskinen on February 3, 2015 before Senate Finance Committee that DAPA confers another sizable benefit in addition to those that directly affect the States due to certain tax credits. See also "Taxpayer Identification Number Requirements of Eligible Individuals and Qualifying Children Under the EIC," FTC A-4219, 19 XX WL 216976, and Chief Counsel Advice, IRS CCA 200028034, 2000 WL 33116180 (IRS CCA 2000). One way to estimate the effect of this eligibility is to assign as an earned income tax credit the sum of $4,000 per year for three years (the number of years for which an individual can file) and multiply that by the number of DAPA recipients. If, for instance, that number is 4.3 million, if calculated accurately, the tax benefits bestowed by DAPA will exceed $50,000,000,000. Obviously, such a calculation carries with it a number of assumptions. For example, it is somewhat unlikely that every DAPA recipient would actually claim or qualify for these credits. Nevertheless, the importance lies not in the amount, but in the fact that DAPA makes individuals eligible at all. Bestowing a tax benefit on individuals that are otherwise not entitled to that benefit is one more reason that DAPA must be considered a substantive rule.
65 In order to qualify for DAPA, an unlawfully-present alien must have "continuously resided in the United States since before January 1,2010." Doc. No.1, PI. Ex. A at 4. Thus, expected beneficiaries ofDAPA have been present in the country illegally for at least five years, yet the DHS (whether knowingly or unknowingly/intentionally or unintentionally) has not acted to enforce the INA's removal provisions against them during those years.
66 See 8 C.F.R. 274a.12(c)(l4) (defining deferred action as "an act of administrative convenience to the government which gives some cases lower priority").
86

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 37 of 50
decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any "focus for judicial review." See Heckler, 470 U.S. at 832.
Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that-not enforcing the law.67 Nonenforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such "non-enforcement" decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court's holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler's presumption of unreviewability is inapplicable in this case.
67 See, e.g., In re Aiken Cnty., 725 F.3d 255, 266 (D.C. Cir. 2013) (explaining that prosecutorial discretion includes the decision to not enforce a law, but does not include the discretion not to follow a law). The law requires these individuals to be removed. The DRS could accomplish-and has accomplished-non-enforcement of the law without implementing DAPA. The award of legal status and all that it entails is an impermissible refusal to follow the law.
87

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 38 of 50
(4) If Applicable, the Presumption is Rebutted
Assuming arguendo that a presumption of unreviewability applied in this case, the Court nonetheless finds that presumption rebutted. Notably, in Heckler, after listing the aboveaddressed concerns underlying its conclusion that an agency's non-enforcement decisions are presumed immune from review under Section 701 (a)(2), the Supreme Court emphasized that any non-enforcement decision "is only presumptively unreviewable." The presumption "may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." ld. at 832-33. Drawing on its prior analysis of Section 701(a)(2)'s exception in Overton Park, the Supreme Court elaborated on instances when the presumption may be rebutted:
Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. 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. How to determine when Congress has done so is the question left open by Overton Park. ld. at 833.
a. The Applicable Statutory Scheme Here, the very statutes under which Defendants claim discretionary authoritl8 actually compel the opposite result. In particular, detailed and mandatory commands within the INA provisions applicable to Defendants' action in this case circumscribe discretion. Section 122S(a)(1) of the INA provides that "[a]n alien present in the United States who has not been admitted ... shall be deemed for purposes of this chapter an applicant for admission." 8 U.S.C.
68 As detailed below, the Defendants claim that Congress granted them discretion under two statutory provisions: 8 U.S.C. § 1103 and 6 U.S.C. § 202.
88

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 39 of 50
§ 1225(a)(1). All applicants for admission "shall be inspected by immigration officers." Id. § 1225(a)(3). "[I]fthe 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).69
Section 1229a provides for removal proceedings. In these proceedings, if the alien is an applicant for admission, the burden of proof rests with the alien to establish that he or she is "clearly and beyond doubt entitled to be admitted and is not admissible under section 1182" of
the INA. 8 u.s.c. § 1229a(c)(2)(A). Alternatively, the alien has the burden of establishing "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)(B). An alien is "removable" if the alien has not been admitted and is inadmissible under Section 1182, or in the case of an admitted alien, the alien is deportable under Section 1227. Id. § 1229a(e)(2). Section 1182 classifies and defines "Inadmissible Aliens." Inadmissible aliens are ineligible to receive visas and ineligible to be admitted to the United States. Among the long list of grounds for inadmissibility are those related to health, crime, and security. Section 1227 classifies and defines individuals who are deportable. Potential DAPA beneficiaries who entered unlawfully are inadmissible under Section 1182 and the law dictates that they should be removed pursuant to the authority under Sections 1225 and 1227. Those potential recipients who entered legally, but overstayed their
69 It is understood that unauthorized aliens enter the United States in three main ways: (1) [S]ome are admitted to the United States on valid nonimmigrant (temporary) visas (e.g., as visitors or students) or on border-crossing cards and either remain in the country beyond their authorized period of stay or otherwise violate the terms of their admission; (2) some are admitted based on fraudulent documents (e.g., fake passports) that go undetected by U.S. officials; and (3) some enter the country illegally without inspection (e.g., by crossing over the Southwest or northern U.S. border).
Bruno, Unauthorized Aliens in the United States at 2. 89

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 40 of 50
legal permission to be in the United States fall under Section 1227(a)(1). Thus, regardless of their mode of entry, DAPA putative recipients all fall into a category for removal and no Congressionally-enacted statute gives the DHS the affirmative power to tum DAPA recipients' illegal presence into a legal one through deferred action, much less provide and/or make them eligible for multiple benefits.7o
The Government must concede that there is no specific law or statute that authorizes DAPA. In fact, the President announced it was the failure of Congress to pass such a law that prompted him (through his delegate, Secretary Johnson) to "change the law.,,71 Consequently, the Government concentrates its defense upon the general discretion it is granted by law.
While there is no specific grant of discretion given to the DHS supporting the challenged action, Congress has conferred (and the DHS relies upon) two general grants of discretion under 8 U.S.C. § 1103(a)(3) (the "INA Provision") and 6 U.S.C. § 202 (the Homeland Security Act of 2005 ("HSA")) (the "HSA Provision,,).72 Under the first of these provisions, the INA provides:
[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.
70 In rejecting an agency's claimed use of prosecutorial discretion as justitying its inaction, the D.C. Circuit has emphasized:
[P]rosecutorial discretion encompasses the discretion not to enforce a law against private parties; it does not encompass the discretion not to follow a law imposing a mandate or prohibition on the Executive Branch. In re Aiken County, 725 F.3d at 266 (emphasis in original). 71 See Press Release, Remarks by the President on Immigration - Chicago, IL, The White House Office of the Press Secretary (Nov. 25, 2014). 72 Despite using the name of the Acts throughout, the Court will refer to the codified provisions of the INA and the HSA, as provided for in Title 8 and Title 6, respectively.
90

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 41 of 50
8 U.S.C. § 1103(a)(3). Under the latter of these provisions, the HSA provides in relevant part:
The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following:
(1) Preventing the entry of terrorists and the instruments of terrorism into the United States.
(2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry.
(3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 251 of this title takes effect.
(4) Establishing and administering rules, in accordance with section 236 of this title, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States.
(5) Establishing national immigration enforcement policies and priorities.
6 U.S.C. § 202.
The INA Provision is found in the "General Provisions," Subchapter I, of Title 8, which
provides definitions of terms used throughout the INA and identifies the general powers and
duties of the DHS Administration.73 The HSA Provision establishes the "responsibilities" of the
DHS Secretary. The INA thus gives the DHS Secretary the authority (and indeed directs the
Secretary) to establish regulations that he deems necessary to execute the laws passed by
Congress. The HSA delegates to the Secretary in Section 202(4) the authority to establish and
administer rules that govern the various forms of acquiring legal entry into the United States
73 (It is in Title I of the Immigration and Nationality Act (Section 103)).
91

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 42 of 50
under 6 U.S.C. § 236 (dealing with visas). See 6 U.S.C. § 202(4). Expected DAPA recipients,
who by definition are already illegally present, are not encompassed by subsection 4 of HSA
Provision. They are not aliens seeking visas or other forms of permission to come to the United
States. Instead, the individuals covered by DAPA have already entered and either achieved that
entry illegally, or unlawfully overstayed their legal admission.
The HSA, through subsection 5 of the HSA Provision, makes the Secretary responsible
for establishing enforcement policies and priorities. The Government defends DAPA as a
measure taken to prioritize removals and, as previously described, the DAPA Memorandum
mentions or reiterates some of the Secretary's priorities. The States do not dispute that Secretary
Johnson has the legal authority to set these priorities, and this Court finds nothing unlawful about
the Secretary's priorities. The HSA's delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal
presence-one which not only awards a three-year, renewable reprieve, but also awards over
four million individuals, who fall into the category that Congress deems removable, the right to
work, obtain Social Security numbers, and travel in and out of the country.74 A tour of the INA's
provisions reveals that Congress clearly knows how to delegate discretionary authority because
in certain instances it has explicitly done so. For example, Section 1227 (involving "Deportable
Aliens") specifically provides:
74 If implemented like DACA, the DAPA program will actually be more widespread. The DHS has published notice that even those who were not granted DACA "will not be referred to ICE for purposes of removal ... except where DHS determines there are exceptional circumstances" (assuming their cases did not involve a criminal offense, fraud, or a threat to national security or public safety). See Frequently Asked Questions, Consideration ofDeferred Action for Childhood Arrivals Process, Official Website of the Dept. of Homeland Security, http://www.uscis.govlhumanitarianlconsideration-deferred-action-childhood-arrivals-process/frequently-askedquestions#DACA%20process (last updated Dec. 4, 2014). According to the President, DAPA will be implemented in the same fashion. Thus, as long as you are not a criminal, a threat to security, or fraudulent, and if you qualify under these programs, you receive legal presence and are allowed to stay in the country; if you do not qualify, you still get to stay.
92

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 43 of 50
(d)(I) If the Secretary of Homeland Security determines that an application for nonimmigrant status under subparagraph (T) or (U) of section 1101 (a)(15) of this title filed for an alien in the United States sets forth a prima facie case for approval, the Secretary may grant the alien an administrative stay of a final order of removal under section 1231 (c)(2) of this title until (A) the application for nonimmigrant status under such subparagraph (T) or (U) is approved; or (B) there is a final administrative denial of the application for such nonimmigrant status after the exhaustion of administrative appeals.
(2) the denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for a stay of removal, deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws of the United States.
(3) During any period in which the administrative stay of removal is in effect, the alien shall not be removed.
(4) Nothing in this subsection may be construed to limit the authority of the Secretary of Homeland Security or the Attorney General to grant a stay of removal or deportation in any case not described in this subsection.
8 U.S.C. § 1227(d).
In the above situations, Congress has expressly given the DHS Secretary the discretion to
grant or not grant an administrative stay of an order of removal. Thus, when Congress intended
to delegate to the Secretary the right to ignore what would otherwise be his statutory duty to
enforce the removal laws, it has done so clearly. See, e.g., F.CC v. NextWave Personal
Communications, Inc., 537 U.S. 293, 302 (2003) (holding that when Congress has intended to
create exceptions to bankruptcy law requirements, "it has done so clearly and expressly");
Franklin Nat'/ Bank v. New York, 347 U.S. 373, 378 (1954) (finding no indication that Congress
intended to make the phase of national banking at issue there subject to local restrictions, as it
had done by express language in other instances); Meghrig v. KFC Western, Inc., 516 U.S. 479,
485 (1996) ("Congress . . . demonstrated in CERCLA that it knew how to provide for the
93

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 44 of 50
recovery of cleanup costs, and ... the language used to define the remedies under RCRA does not provide that remedy.").
The DHS cannot reasonably claim that, under a general delegation to establish enforcement policies, it can establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens. As a general matter of statutory interpretation, if Congress intended to confer that kind of discretion through the HSA Provision (and INA Provision) to apply to all of its mandates under these statutes, there would have been no need to expressly and specifically confer discretion in only a few provisions. The canon of statutory construction warning against rendering superfluous any statutory language strongly supports this conclusion. See Astoria Fed. Sav. & Loan Ass 'n v. Solimino, 501 U.S. 104, 112 (1991).
Despite this, the Government argues that the INA Provision and the HSA Provision, combined with inherent executive discretion, permits the enactment of DAPA. While the Government would not totally concede this point in oral argument, the logical end point of its argument is that the DHS, solely pursuant to its implied authority and general statutory enforcement authority, could have made DAPA applicable to all 11.3 million immigrants estimated to be in the country illegally. This Court finds that the discretion given to the DHS Secretary is not unlimited.
Two points are obvious, and each pertain to one of the three statutes (5 U.S.C. § 701,6 U.S.C. § 202, and 8 U.S.C. § 1103) at issue here. The first pertains to prosecutorial discretion and the INA Provision and the HSA Provision. The implementation of DAPA is clearly not "necessary" for Secretary Johnson to carry out his authority under either title of the federal code.
94

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 45 of 50
The Secretary of the DHS has the authority, as discussed above, to dictate DHS objectives and
marshal its resources accordingly. Just as this Court noted earlier when it refused the States
standing to pursue certain damages, the same is true here. The DAPA recipients have been
present in the United States for at least five years; yet, the DHS has not sought them out and
deported them. 75
The Court notes that it might be a point of discussion as to what "legal presence"
constitutes, but it cannot be questioned that DAPA awards some form of affirmative status, as
evidenced by the DHS' own website. It tells DACA recipients that:
[YJou are considered to be lawfully present in the United States . .. and are not precluded from establishing domicile in the United States. Apart from immigration laws, "lawful presence," "lawful status," and similar terms are used in various other federal and state laws.76
It is this affirmative action that takes Defendants' actions outside the realm of prosecutorial
discretion, and it is this action that will cause the States the injury for which they have been
conferred standing to seek redress.
75 The implementation of DAPA is not a necessary adjunct for the operation of the DHS or for effecting its stated priorities. In fact, one could argue given the resources it is using and manpower it is either hiring or shifting from other duties, that DAPA will actually hinder the operation of the DHS. See Executive Actions on Immigration, Official Website of the Dept. of Homeland Security, http://www.uscis.gov/immigrationaction (last updated Jan. 30, 2015) ("USCIS will need to adjust its staffing to sufficiently address this new workload. Any new hiring will be funded through application fees rather than appropriated funds .... USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications ...."). See also Doc. No. 64, PI. Ex. 23 (Palinkas Dec.) ("USCIS has announced that it will create a new service center to process DAPA applications .... and it will be staffed by approximately 1,000 federal employees. Approximately 700 of them will be USCIS employees, and approximately 300 of them will be federal contractors."). However, such considerations are beside the point for resolving the issue currently before the Court.
76 See Frequently Asked Questions, Consideration of Deferred Action for Childhood Arrivals Process, Official Website of the DHS, http://www.uscis.govlhumanitarianlconsideration-deferred-action-childhood-arrivalsprocess/frequently-asked-questions (last updated Feb. 11,2015) (emphasis added). See also Doc. No 38, Def. Ex. 6 at 11 (U.S. Citizenship and Immigration Services (USCIS), Deferred Action For Childhood Arrivals (DACA) Toolkit: Resources for Community Partners (2014)). This response clearly demonstrates that the DHS knew by DACA (and now by DAPA) that by giving the recipients legal status, it was triggering obligations on the states as well as the federal government.
95

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 46 of 50
The second obvious point is that no statute gives the DHS the power it attempts to exercise. As previously explained, Section 701(a)(2) of the APA forbids reviewability of acts "committed to agency discretion by law." The Government has pointed this Court to no law that gives the DHS such wide-reaching discretion to turn 4.3 million individuals from one day being illegally in the country to the next day having lawful presence.
The DHS' job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here.77 Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. Subsection 1225(b)(1)(A) states unequivocally that the DHS "shall order the alien removed from the United States without further hearing or review ...." Section 1227, the corresponding section, orders the same for aliens who entered legally, but who have violated their status. While several generations of statutes have amended both the categorization and in some aspects the terminology, one thing has remained constant: the duty of the Federal Government is to effectuate the removal of illegal aliens. The Supreme Court most recently affirmed this duty in Arizona v. United States: "ICE
77 Indeed, no law enacted by Congress expressly provides for deferred action as a fonn of temporary relief. Only regulations implemented by the Executive Branch provide for deferred action. That is not to say that deferred action itself is necessarily unlawful-an issue on which this Court need not touch.
96

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 47 of 50
officers are responsible for the identification, apprehension, and removal of illegal aliens." 132
S. Ct. at 2500.
Notably, the applicable statutes use the imperative term "shall," not the permissive term
"may.,,78 There are those who insist that such language imposes an absolute duty to initiate removal and no discretion is permitted.79 Others take the opposition position, interpreting
"shall" to mean "may."gO This Court finds both positions to be wanting. "Shall" indicates a
congressional mandate that does not confer discretion-i.e., one which should be complied with to the extent possible and to the extent one's resources allow. s1 It does not divest the Executive
Branch of its inherent discretion to formulate the best means of achieving the objective, but it
does deprive the Executive Branch of its ability to directly and substantially contravene statutory
commands. Congress' use of the term "may," on the other hand, indicates a Congressional grant
of discretion to the Executive to either accept or not accept the goal.
In the instant case, the DHS is tasked with the duty of removing illegal aliens. Congress
has provided that it "shall" do this. Nowhere has Congress given it the option to either deport
these individuals or give them legal presence and work permits. The DHS does have the
78 The Court additionally notes that in 8 U.S.C. § 1227 ("Deportable Aliens") Congress uses both "may" and "shall" within the same section, which distinguishes the occasions in which the Secretary has discretion to award a stay from removal from when he is required to remove an alien. For instance, in § 1227(a), an alien "shall" be removed upon order of the Secretary if he or she is in one of the classes of deportable aliens. In § 1227(d), however, Congress provides circumstances when the Secretary "may" award an administrative stay of removal. See Lopez v. Davis, 531 U.S. 230, 241 (2001) ("Congress' use of the permissive 'may' ... contrasts with the legislators' use of the mandatory 'shall' in the very same section."); United States ex rei. Siegel v. Thoman, 156 U.S. 353, 359-60 (1895) ("[I]n the law to be construed here, it is evident that the word 'may' is used in special contradistinction to the word 'shall. "'). 79 See the plaintiffs' contentions as recounted in the court's Memorandum Opinion and Order dated April 23, 2013, in Crane v. Napolitano, No.3: 12-cv-03247-0, 2013 WL 1744422, at *5 (N.D. Tex. Apr. 23, 2013). 80 See, e.g., Matter ofE-R-M & L-R-M, 25 I&N Dec. 520 (BIA 2011). 81 See Lopez, 531 U.S. at 241 (distinguishing between Congress' use of the "permissive may" and the "mandatory shall" and noting that "shall" "imposes discretionless obligations").
97

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 48 of 50
discretion and ability to determine how it will effectuate its statutory duty and use its resources
where they will do the most to achieve the goals expressed by Congress. Thus, this Court rejects
both extremes. The word "shall" is imperative and, regardless of whether or not it eliminates
discretion, it certainly deprives the DHS of the right to do something that is clearly contrary to
Congress' intent.
That being the case, this Court finds that the presumption of unreviewability, even if
available here, is also rebuttable under the express theory recognized by the Heckler Court. In
Heckler, the Supreme Court indicated that an agency's decision to "'consciously and expressly
adopt[] a general policy' that is so extreme as to amount to an abdication of its statutory
responsibilities," would not warrant the presumption of unreviewability. 470 U.S. at 833 nA
(citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973)).82
Since Heckler and Adams, it has clearly been the law that "[r]eal or perceived inadequate
enforcement of immigration laws does not constitute a reviewable abdication of duty." See
Texas, 106 F.3d at 667. That is not the situation here. This Court finds that DAPA does not
simply constitute inadequate enforcement; it is an announced program of non-enforcement of the
law that contradicts Congress' statutory goals. Unlike the Government's position in Texas v.
82 In Adams, as noted above in the abdication discussion, the agency-defendants (including executive officials of Health, Education, and Welfare (HEW» were sued for not exercising their duty to enforce Title VI of the Civil Rights Act because they had not been taking appropriate action to end segregation in schools receiving federal funds, as required by the Act. Defendants insisted that enforcement of Title VI was committed to agency discretion and thus that their actions were unreviewable. The Court first noted that the agency-discretion-exception in the APA is a narrow one, citing Citizens to Preserve Overton Park. It found that the statute provided "with precision the measures available to enforce" Title VI and thus the terms of the statute were "not so broad as to preclude judicial review." Like Defendants here, the defendants in Adams relied on cases in which courts declined to interfere with exercises of prosecutorial discretion. Rejecting defendants' reliance on those cases, the court emphasized: "[t]hose cases do not support a claim to absolute discretion and are, in any event, distinguishable from the case at bar." Unlike the cases cited, Title VI required the agency to enforce the Act and also set forth specific enforcement procedures. The INA removal provisions at issue here are no different and, like those at issue in Adams, are not so broad as to preclude review.
98

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 49 of 50
us., the Government here is "doing nothing to enforce" the removal laws against a class of
millions of individuals (and is additionally providing those individuals legal presence and benefits). See id Furthermore, if implemented exactly like DACA (a conclusion this Court makes based upon the record), the Government has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).83 Theoretically, the remaining 6-7 million illegal immigrants (at least those who do not have criminal records or pose a threat to national security or public safety) could apply and, thus, fall into this category.84 DAPA does not represent mere inadequacy; it is complete abdication.
The DHS does have discretion in the manner in which it chooses to fulfill the expressed will of Congress. It cannot, however, enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them. As the Government's own legal memorandumwhich purports to justify DAPA-sets out, "the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences." See Doc. No. 38, Def. Ex. 2 at 6 (OLC Op.) (citing Heckler, 470 U.S. at 833 (an agency may not "disregard legislative direction in the statutory scheme that [it] administers")). The DHS Secretary is not just rewriting the laws; he is creating them from scratch.
83 See Frequently Asked Questions, Consideration of Deferred Action for Childhood Arrivals Process, Official Website of the Dept. of Homeland Security, http://www.uscis.govlhumanitarianlconsideration-deferred-actionchildhood-arrivals-process/frequently-asked-questions#DACA%20process (last updated Dec. 4, 2014). 84 See also Press Release, Remarks by the President on Immigration-Chicago, IL, The White House Office of the Press Secretary (Nov. 25,2014) ("{TJhe way the change in the law works is that we're reprioritizing how we enforce our immigration laws generally. So not everybody qualifies for being able to sign up and register, but the change in priorities applies to everybody."). (Court's emphasis). Thus, as under the DACA Directives, absent exceptional circumstances, the DHS is not going to remove those who do not qualify for DAPA either.
99

Case 1:14-cv-00254 Document 145-1 Filed in TXSD on 02/16/15 Page 50 of 50
b. Past Uses of Deferred Action Defendants argue that historical precedent of Executive-granted deferred action justifies DAPA as a lawful exercise of discretion. In response, the Plaintiffs go to great lengths to distinguish past deferred action programs from the current one, claiming each program in the past was substantially smaller in scope. The Court need not decide the similarities or differences between this action and past ones, however, because past Executive practice does not bear directly on the legality of what is now before the Court. Past action previously taken by the DHS does not make its current action lawful. President Truman in Youngstown Sheet & Tube Co. v. Sawyer, similarly sought "color of legality from claimed executive precedents," arguing that, although Congress had not expressly authorized his action, "practice of prior Presidents has authorized it." 343 U.s. at 648. The Supreme Court firmly rejected the President's argument finding that the claimed past executive actions could not "be regarded as even a precedent, much less an authority for the present [action]." Id. at 649; see also Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 n.27 (5th Cir. 1995) ("[T]he fact that we previously found another FDA compliance policy guide to be a policy statement [and thus not subject to the APA's formal procedures] is not dispositive whether CPG 7132.16 is a policy statement. "). The Supreme Court was again faced with the argument that action taken by the President was presumptively lawful based on the "longstanding practice" of the Executive in Medellin, 552 U.S. at 530-32. There, the Federal Government cited cases that held, "if pervasive enough, history of congressional acquiescence can be treated as a gloss on Executive power vested in the President by § 1 of Art. II." Id. at 531 (internal citations and quotations marks omitted). The
100

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 1 of 23
Supreme Court, however, distinguished those cases as involving a narrow set of circumstances; they were "based on the view that 'a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,' can 'raise a presumption that the [action] had been [taken] in pursuance of [Congress'] consent.'" Id (quoting Dames & Moore v. Regan, 453 U.S. 654 (1981)). In these "narrowly" construed cases cited by the government there, the Court had upheld the (same) Executive action involved in each as "a particularly longstanding practice .... [g]iven the fact that the practice [went] back over 200 years, and [had] received congressional acquiescence throughout its history ...." Id In Medellin, the Supreme Court clarified that, even in those cases, however, "the limitations on this source of executive power are clearly set forth and the Court has been careful to note that 'past practice does not, by itself, create power.'" Id at 531-32. Thus, the Medellin Court found that President Bush's "Memorandum [was] not supported by a 'particularly longstanding practice' of congressional acquiescence ..., but rather [was] what the United States itself [had] described as 'unprecedented action.'" Id at 532. Here, DAPA, like President Bush's Memorandum/directive issued to state courts in Medellin, is not a "longstanding practice" and certainly cannot be characterized as "systematic" or "unbroken." Most importantly, the Court is not bound by past practices (especially ones that are different in kind and scope)85 when determining the legality of the current one. Past practice by immigration officials does not create a source of power for the DHS to implement DAPA. See id at 531-32. In sum, Defendants' attempt to find a source of discretion committed to it by law (for purposes of Section 701 (a)(2)) through Congress's alleged
SS A member of the President's own Office of Legal Counsel, in advising the President and the DHS on the legality of DAPA, admitted that the program was unprecedented in that it exceeded past programs "in size." See Doc. No. 38, Def. Ex. 2 at 30 (OLC Memo).
101

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 2 of 23

acquiescence of its past, smaller-scaled grants of deferred action is unpersuasive, both factually

and legally.

1.

Rulemaking Under the APA

Neither party appears to contest that, under the APA, the DAPA Directive is an agency

"rule,,,86 and its issuance therefore represents "rulemaking." See 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 ...."); id § 551(5) ("'[R]ule making' means

agency process for formulating, amending, or repealing a rule."). Thus, it is clear that the

rulemaking provisions of the APA apply here. The question is whether Defendants are exempt from complying with specific procedural mandates within those rulemaking provisions.87

Section 553 of Title 5, United States Code, dictates the formal rulemaking procedures by

which an agency must abide when promulgating a rule. Under Section 553(b), "[g]eneral notice

of proposed rule making shall be published in the Federal Register." 5 U.S.C. § 553(b). The

required notice must include "(1) a statement of the time, place, and nature of public rule making

proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either

the terms or substance of the proposed rule or a description of the subjects and issues involved."

86 While Defendants in one place assert in passing that the DAPA Directive is not a rule, it is in the context of distinguishing a substantive rule from a statement of policy. [See Doc. No. 38 at 45 ("[T]he Deferred Action Guidance is not a rule, but a policy that 'supplements and amends ... guidance' .... Further, unlike substantive rules, a general statement of policy is one 'that does not impose any rights or obligations' ....").]. There can be no doubt that the DAPA Directive is a rule within the meaning of § 551 of the APA. Instead, the issue focuses on whether the rule is substantive, subjecting it to the formal procedural requirements for rule making, or whether it is exempt from those requirements.
87 Interestingly, the legal memorandum from the President's Office of Legal Counsel, whose opinion the Defendants have cited to justify DAPA, in no way opines that the DRS may ignore the requirements of the APA.
102

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 3 of 23
Id. Upon providing the requisite notice, the agency must give interested parties the opportunity to participate and comment and the right to petition for or against the rule. See id. § 553(c)-(e).
There are two express exceptions to this notice-and-comment requirement, one of which Defendants argue applies in this case. Pursuant to Section 553(b)(3)(A), the APA's formal rulemaking procedures do not apply to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." Id. § 553(b)(3)(A). On the other hand, if a rule is "substantive," this exception does not apply, and all notice-and-comment requirements "must be adhered to scrupulously." Shalala, 56 F.3d at 595. The Fifth Circuit has stressed that the "'APA's notice and comment exemptions must be narrowly construed.'" Id. (quoting United States v. Picciotto, 875 F.2d 345,347 (D.C. Cir. 1989».
The APA does not define "general statements of policy" or "substantive rules"; however, the case law in this area is fairly well-developed and provides helpful guidelines in characterizing a rule. With that said, the analysis substantially relies on the specific facts of a given case and, thus, the results are not always consistent. Here, Plaintiffs' procedural APA claim turns on whether the DAPA Directive is a substantive rule or a general statement of policy.88 If it is substantive, it is "unlawful, for it was promulgated without the requisite noticeand-comment." Id.
This Circuit, following guidelines laid out in various cases by the D.C. Circuit, utilizes two criteria to distinguish substantive rules from nonsubstantive rules:
88 Defendants specifically assert that the DAPA Directive is a general statement of policy. They do not argue that it is an "interpretative rule[]" or a "rule[] of agency organization, procedure, or practice" under § 553(b)(3)(A). Nor do they cite the other exception provided for in § 553(b)(3)(B) ("[W]hen the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."). Thus, this Court will confine its analysis to whether the Directive is a general statement of policy or substantive rule.
103

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 4 of 23
First, courts have said that, unless a pronouncement acts prospectively, it is a binding norm. Thus ... a statement of policy may not have a present effect: "a 'general statement of policy' is one that does not impose any rights and obligations".... The second criterion is whether a purported policy statement genuinely leaves the agency and its decisionmakers free to exercise discretion. The court [in Community Nutrition Institute v. Young, 818 F.2d 943 (D.C. Cir. 1987)] further explained that "binding effect, not the timing, ... is the essence of criterion one." In analyzing these criteria, we are to give some deference, "albeit 'not overwhelming,' " to the agency's characterization of its own rule. Id (emphasis added) (citations omitted). The rule's effect on agency discretion is the primary determinant in characterizing a rule as substantive or nonsubstantive. Id ("While mindful but suspicious of the agency's own characterization, we follow the D.C. Circuit's analysis ..., focusing primarily on whether the rule has binding effect on agency discretion or severely restricts it."). For instance, rules that award rights, impose obligations, or have other significant effects on private interests have been found to have a binding effect on agency discretion and are thus considered substantive. Id n.19 (citing Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897,908 (5th Cir. 1983)). A rule, while not binding per se, is still considered substantive if it "severely restricts" agency discretion. Put another way, any rule that "narrowly constrict[s] the discretion of agency officials by largely determining the issue addressed" is substantive. Id n.20. Lastly, a substantive rule is generally characterized as one that "establishes a standard of conduct which has the force of law." Id (quoting Panhandle Producers & Royalty Owners Ass 'n v. Econ. Regulatory Admin., 847 F.2d 1168, 1174 (5th Cir. 1988)). In sharp contrast to a substantive rule, a general statement of policy does not establish a binding norm, nor is it "finally determinative of the issues or rights to which it is addressed." Shalala, 56 F.3d at 596. A general statement of policy is best characterized as announcing the
104

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 5 of 23
agency's "tentative intentions for the future." Id. Thus, it cannot be applied or relied upon as
law because a statement of policy merely proclaims what an agency seeks to establish as
policy.89 See id.
(1) The Government's Characterization ofDAPA
Both parties90 acknowledge that, in line with the Fifth Circuit's analysis above, the
starting point in determining whether a rule is substantive or merely a statement of policy is the
DHS' own characterization of the DAPA Directive. Defendants insist that the Directive is "a
policy that 'supplements and amends ... guidance' for the use of deferred action." [Doc. No. 38
at 45]. In their briefings before the Court, Defendants label DAPA "Deferred Action
Guidance.,,91 The Court finds Defendants' labeling disingenuous and, as discussed below,
89 The Fifth Circuit in Panhandle Producers further defined a general statement of policy:
When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued. An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the form ofa general statement of policy.
847 F.2d at 1175.
90 Although Plaintiffs strenuously insist that Defendants "mislabel" the DAPA Directive and that an agency's characterization of its own rule is "self-aggrandizement," they apparently agree that the agency's characterization is at least relevant to the analysis. See Doc. No. 64 at 38 (citing Shalala, 56 F.3d at 596, where the Fifth Circuit states that an agency's characterization of its own rule, while not conclusive, is the starting point to the analysis).
91 The DHS may have a number of reasons for using the language and specific terms it uses in the DAPA Memorandum--whether to assure itself, the public and/or a future reviewing court that it need not comply with formal agency rulemaking procedures, or simply because it is standard language used in its other memoranda. The Court, however, finds substance to be more important than form in this case. The DHS' actions prove more instructive than its labels.
Moreover, the Court notes that it is not bound by any decision a different court may have reached regarding the characterization of a prior DHS/INS memorandum (e.g., the Ninth Circuit's opposing holdings in Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) and Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987». For one, past DHS/INS memoranda, including the operating instructions reviewed in the 1970s and 80s by the Ninth Circuit, have been expressly superseded by subsequent DHS memoranda or instructions. Further, both Ninth Circuit opinions (each dealing with a different INS memorandum) support this Court's fmdings on the characterization of DAPA. Finally, as the Fifth Circuit has held, a prior court ruling that characterizes an agency's rule as a general statement of policy
105

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 6 of 23
contrary to the substance of DAPA. Although Defendants refer to DAPA as a "guidance" in their briefings and in the DAPA Memorandum, elsewhere, it is given contradictory labels. For instance, on the official website of the DHS, DAPA is referred to as "a new Deferred Action for Parents of Americans and Lawful Permanent Residents program.,,92
The DHS website does use the term "guidelines" in describing DAPA's criteria; however, this is only in the context of a "list" of guidelines that candidates must satisfy in order to qualify for DAPA (or the newly expanded DACA).93 Thus, not only does this usage of the term "guidelines" not refer to the DAPA program itself, but it is also a misnomer because these "guidelines" are in fact requirements to be accepted under these programs. Throughout its description of DAPA, the DHS website also refers to the various "executive actions" taken in conjunction with the implementation of the DAPA Directive as "initiatives." Id. ("On November 20,2014, the President announced a series of executive actions .... These initiatives include ... ."). For example, the site states that "USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible." Id. The term "initiative" is defined in Black's Law Dictionary as:
is not dispositive in determining the characterization of that agency's current rule. See Shalala, 56 F.3d at 596 n.27 ("[T]he fact that we previously found another FDA compliance policy guide to be a policy statement is not dispositive whether [the current FDA compliance policy guide] is a policy statement."). This rule would be especially applicable to a directive that changes the current law. 92 Executive Actions on Immigration, Official Website of the Dept. of Homeland Security, http://www.uscis.gov/immigrationaction(lastupdatedJan.30.2015)(emphasisadded);seealso.Doc.No.l.PI. Ex. A ("In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows ...."). 93 See, e.g., id. (listing out the new DACA criteria and including as the last criterion, "meet all the other DACA guidelines").
106

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 7 of 23
An electoral process by which a percentage of voters can propose legislation and compel a vote on it by the legislature or by the full electorate. Recognized in some state constitutions, the initiative is one of the few methods of direct democracy in an otherwise representative system.
Black's Law Dictionary (9th ed. 2009) (emphasis added) (the sole definition offered for
"initiative"). An "initiative," by definition, is a legislative process-the very thing in which
Defendants insist they have not partaken.
What is perhaps most perplexing about the Defendants' claim that DAPA is merely
"guidance" is the President's own labeling of the program. In formally announcing DAPA to the
nation for the first time, President Obama stated, "I just took an action to change the law.,,94 He
then made a "deal" with potential candidates of DAPA: "if you have children who are American
citizens ... if 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 . ... Jfyou meet the criteria, you can come out o/the shadows . ...,,95
While the DHS' characterization ofDAPA is taken into consideration by this Court in its
analysis, 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 (internal
quotation marks omitted) (citing Brown Express, Inc. v. United States, 607 F.2d 695, 700 (5th
94 Press Release, Remarks by the President on Immigration - Chicago, IL, The White House Office of the Press Secretary (Nov. 25, 2014) ("But what you're not paying attention to is the fact that I just took action to change the law .... [t]he way the change in the law works is that we're reprioritizing how we enforce our immigration laws generally. So not everybody qualifies for being able to sign up and register, but the change in priorities applies to everybody."). 95 President Obama, Remarks in Nevada on Immigration (Nov. 20, 2014) (emphasis added). (Court's emphasis). See also Doc. No. 64, PI. Ex. 26 (Press Release, Remarks by the President in Immigration Town Hall - Nashville, Tennessee, The White House Office of the Press Secretary (Dec. 9,2014) ("What we're also saying, though, is that for those who have American children or children who are legal permanent residents, that you can actually register
and submit yourself to a criminal background check, pay any back taxes and commit to paying future taxes, and if
you do that, you'll actually get a piece ofpaper that gives you an assurance that you can work and live here without fear ofdeportation. ") (emphasis added)).
107

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 8 of 23
Cir. 1979)). Thus, the Court turns its attention to the primary focus of its analysis: the substance of DAPA. Nevertheless, the President's description of the DHS Directive is that it changes the law.
(2) Binding Effect
The Fifth Circuit in Shalala propounded as a "touchstone of a substantive rule" the rule's binding effect. The question is whether the rule establishes a "binding norm." Id. at 596. The President's pronouncement quoted above clearly sets out that the criteria are binding norms. Quoting the Eleventh Circuit, the Shalala Court emphasized:
The key inquiry ... is the extent to which the challenged policy leaves the agency free to exercise its discretion to follow or not to follow that general policy in an individual case, or on the other hand, whether the policy so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule's criteria. As long as the agency remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm. Id. at 596-97 (quoting Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (lIth Cir. 1983)). In this case, upon application, USCIS personnel working in service centers (established for the purpose of receiving DACA and DAPA applications), need only determine whether a case is within the set-criteria. Ifnot, applicants are immediately denied. Despite the DAPA memorandum's use of phrases such as "case-by-case basis" and "discretion," it is clear from the record that the only discretion that has been or will be exercised is that already exercised by Secretary Johnson in enacting the DAPA program and establishing the criteria therein. That criteria is binding. At a minimum, the memorandum "severely restricts" any discretion that Defendants argue exists. It ensures that "officers will be provided with specific eligibility criteria for deferred action." Doc. No.1, PI. Ex. A at 5 (emphasis added).
108

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 9 of 23
Indeed, the "Operating Procedures" for implementation of DACA96 contains nearly 150 pages97
of specific instructions for granting or denying deferred action to applicants.98 Denials are
recorded in a "check the box" standardized form, for which USCIS personnel are provided
templates.99 Certain denials of DAPA must be sent to a supervisor for approval before issuing
the denial. 1oo Further, there is no option for granting DAPA to an individual who does not meet
each criterion. 101 With that criteria set, from the President down to the individual USCIS
employees actually processing the applications, discretion is virtually extinguished.
96 There is no reason to believe that DAPA will be implemented any differently than DACA. In fact, there is every reason to believe it will be implemented exactly the same way. The DAPA Memorandum in several places compares the procedure to be taken for DAPA to that ofDACA. [See, e.g., Doc. No.1, Ex. 1 at 5 ("As with DACA, the above criteria are to be considered for all individuals encountered ....")].
97 The Court was not provided with the complete Instructions and thus cannot provide an accurate page number.
98 See Doc. No. 64, Ex. 10 (National Standard Operating Procedures (SOP), Deferred Action for Childhood Arrivals (DACA), (Form I-82ID and Form 1-765».
99 See id. Defendants assert that "even though standardized forms are used to record decisions, those decisions are to be made on a case-by-case basis." [Doc. No. 130 at 34]. For one, the Court is unaware of a "form" or other process for recording any discretionary denial based on factors other than the set-criteria (to the extent that such a denial is even genuinely available to an officer). Further, the means for making such discretionary decisions are limited considering the fact that applications are handled in a service center and decisions regarding deferred action are no longer made in field offices where officers may interview the immigrant.
100 See id. at 96.
101 Defendants argue that officers retain the ability to exercise discretion on an individualized basis in reviewing DAPA applications as evidenced by the last factor listed in DAPA's criteria ("present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate"). Evidence of DACA's approval rate, however, persuades the Court that this "factor" is merely pretext. As previously noted, there is every indication, including express statements made by the Government, that DAPA will be implemented in the same fashion as DACA. No DACA application that has met the criteria has been denied based on an exercise of individualized discretion. Whether Plaintiffs' or Defendants' calculations are correct, it is clear that only 1-6% of applications have been denied at all, and all were denied for failure to meet the criteria (or "rejected" for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud. See, e.g., Doc. No. 64, PI. Ex. 29 at App. p. 0978; id. PI. Ex. 23 at 3 (Palinkas Dec.) (citing a 99.5% approval rate for all DACA applications from USCIS reports). Other sources peg the acceptance rate at approximately 95%, but, again, there were apparently no denials for those who met the criteria.
The Court in oral argument specifically asked for evidence of individuals who had been denied for reasons other than not meeting the criteria or technical errors with the form and/or filing. Except for fraud, which always disqualifies someone from any program, the Government did not provide that evidence. Defendants claim that some
109

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 10 of 23
In stark contrast to a policy statement that "does not impose any rights and obligations" and that "genuinely leaves the agency and its decisionmakers free to exercise discretion," the DAPA Memorandum confers the right to be legally present in the United States and enables its beneficiaries to receive other benefits as laid out above. The Court finds that DAPA's disclaimer that the "memorandum confers no substantive right, immigration status, or pathway to citizenship" may make these rights revocable, but not less valuable. While DAPA does not provide legal permanent residency, it certainly provides a legal benefit in the form of legal presence (plus all that it entails)-a benefit not otherwise available in immigration laws. The DAPA Memorandum additionally imposes specific, detailed and immediate obligations upon DHS personnel-both in its substantive instructions and in the manner in which those instructions are carried out. Nothing about DAPA "genuinely leaves the agency and its [employees] free to exercise discretion." In this case, actions speak louder than words.
(3) Substantive Change in Existing Law Another consideration in determining a rule's substantive character is whether it is essentially a "legislative rule." A rule is "legislative" if it "supplements a statute, adopts a new position inconsistent with existing regulations, or otherwise effects a substantive change in existing law or policy." Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014) (citations omitted).
requests have been denied for public safety reasons (e.g. where the requestor was suspected of gang-related activity
or had a series of arrests), or where the requestor had made false prior claims of u.s. citizenship. Public safety
threats and fraud are specifically listed in the Operation Instructions as reasons to deny relief, however. More importantly, one of the criterion for DAPA is that the individual not be an enforcement priority as reflected in another November 20, 2014 Memorandum ("Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants"). That DHS memorandum lists a threat to public safety as a reason to prioritize an individual for removal in the category, "Priority I" (the highest priority group). See Doc. No. 38, Def. Ex. 5 at 5 (Nov. 20, 2014, Memorandum, "Policies for the Apprehension, Detention and Removal of Undocumented Immigrants").
110

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 11 of 23
The DAPA program clearly represents a substantive change in immigration policy. It is a program instituted to give a certain, newly-adopted class of 4.3 million illegal immigrants not only "legal presence" in the United States, but also the right to work legally and the right to receive a myriad of governmental benefits to which they would not otherwise be entitled. 102 It does more than "supplement" the statute; if anything, it contradicts the INA. It is, in effect, a new law. DAPA turns its beneficiaries' illegal status (whether resulting from an illegal entry or from illegally overstaying a lawful entry) into a legal presence. It represents a massive change in immigration practice, and will have a significant effect on, not only illegally-present immigrants, but also the nation's entire immigration scheme and the states who must bear the lion's share of its consequences. See Shalala, 56 F.3d at 597 (concluding the agency's policy guidance was not a binding norm largely because it did "not represent a change in [agency] policy and [did] not have a significant effect on [the subjects regulated]"). In the instant case, the President, himself, described it as a change.
Far from being mere advice or guidance, this Court finds that DAPA confers benefits and imposes discrete obligations (based on detailed criteria) upon those charged with enforcing it. Most importantly, it "severely restricts" agency discretion. 103 See Community Nutrition Inst. v.
102 One could argue that it also benefits the DHS as it decides who to remove and where to concentrate their efforts, but the DHS did not need DAPA to do this. It could have done this merely by concentrating on its other prosecutorial priorities. Instead, it has created an entirely new bureaucracy just to handle DAPA applications. 103 This is further evidenced by the "plain language" of the DAPA Directive. See Shalala, 56 F.3d at 597 (considering the policy's plain language in determining its binding effect). Without detailing every use of a mandatory term, instruction, or command throughout Secretary Johnson's memorandum, the Court points to a few examples:
(1) When detailing DAPA and its criteria, the Secretary states: "I hereby direct uscrs to
establish a process .... Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics . . . . Each person who applies ... shall also be eligible to apply for work authorization ...."
III

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 12 of 23
Young, 818 F.2d 943, 948 (D.C. Cir. 1987) ("[C]abining of an agency's prosecutorial discretion can in fact rise to the level of a substantive . . . rule.").
In sum, this Court finds, both factually based upon the record and the applicable law, that DAPA is a "legislative" or "substantive" rule that should have undergone the notice-andcomment rule making procedure mandated by 5 U.S.C. § 553. The DRS was not given any "discretion by law" to give 4.3 million removable aliens what the DRS itself labels as "legal presence." See 5 U.S.C. § 701 (a)(2). In fact the law mandates that these illegally-present individuals be removed. 104 The DRS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even nonenforcement of this nation's immigration scheme. It inflicts major costs on both the states and federal government. Such changes, if legal, at least require compliance with the APA. 105 The Court therefore finds that, not only is DAPA reviewable, but that its adoption has violated the procedural requirements of the APA. Therefore, this Court hereby holds for purposes of the temporary injunction that the implementation of DAPA violates the APA's procedural requirements and the States have clearly proven a likelihood of success on the merits.
(2) When explaining the expansion of DACA, the Secretary states: "I hereby direct USCIS to expand DACA as follows ... DACA will apply ... The current age restriction ... will no longer apply . . . . The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than two-year increments. This change shall apply to all first-time applicants .... USCIS should issue all work authorization documents valid for three years ...."
104 The Court again emphasizes that it does not fmd the removal provisions of the INA as depriving the Executive Branch from exercising the inherent prosecutorial discretion it possesses in enforcing the laws under which it is charged. Whether or not Defendants may exercise prosecutorial discretion by merely not removing people in individual cases is not before this Court. It is clear, however, that no statutory law (i.e., no express Congressional authorization) related to the removal of aliens confers upon the Executive Branch the discretion to do the opposite. 105 This Memorandum Opinion and Order does not rule on the substantive merits ofDAPA's legality.
112

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 13 of 23
2. Preliminary Injunction Factor Two: Irreparable Harm In addition to showing a likelihood of success on the merits of 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." 0 'Shea v. Littleton, 414 U.S. 488, 502 (1974). It is clear that, to satisfy this factor, speculative injuries are not enough; "there must be more than an unfounded fear on the part of [Plaintiffs]." Wright & Miller § 2948.1. Thus, courts will not issue a preliminary injunction "simply to prevent the possibility of some remote future injury." Id. Instead, the Plaintiff States must show a "presently existing actual threat." Id.; see also Winter v. Natural Res. De! Council, Inc., 555 U.S. 7, 22 (2008) ("We agree ... that the Ninth Circuit's 'possibility' standard is too lenient. Our frequently reiterated standard requires 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 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., Wright & Miller § 2948.1. Plaintiffs allege that they will suffer two "categories" of irreparable injuries if this Court declines to grant a preliminary injunction. First, according to Plaintiffs, the DAPA Directive will cause a humanitarian crisis along the southern border of Texas and elsewhere, similar to the surge of undocumented aliens in the summer of 2014. See Doc. No.5 at 25-26. The State of Texas specifically points to the economic harm it experienced in the last "wave" of illegal immigration allegedly caused by DACA. See id. at 26 ("Texas paid almost $40 million for Operation Strong Safety to clean up the consequences of Defendants' actions."). Texas
113

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 14 of 23
additionally complains of the millions of dollars it must spend each year in providing uncompensated healthcare for these increasing numbers of undocumented immigrants.
The Court finds primarily, for the reasons stated above, this claimed injury to be exactly the type of "possible remote future injury" that will not support a preliminary injunction. For the same reasons the Court denied standing to Plaintiffs on their asserted injury that DAPA will cause a wave of immigration thereby exacerbating their economic injuries, the Court does not find this category of alleged irreparable harm to be immediate, direct, or a presently-existing, actual threat that warrants a preliminary injunction. See, e.g., City ofLos Angeles v. Lyons, 461 U.S. 95, 102 (1983) (noting that standing considerations "obviously shade into those determining whether the complaint states a sound basis for [injunctive] relief," and that, even if a complaint presents an existing case or controversy under Article III, it may not also state an adequate basis for injunctive relief). The general harms associated with illegal immigration, that unfortunately fall on the States (some of whom must bear a disproportionate brunt of this harm), are harms that may be exacerbated by DAPA, but they are not immediately caused by it. 106 Whether or not Defendants' implementation of DACA in 2012 actually contributed to the flood of illegal immigration experienced by this country in 2014-an issue not directly before this Courtinjuries associated with any future wave of illegal immigration that may allegedly stem from DAPA are neither immediate nor direct. Lyons, 461 U.S. at 102 (citing O'Shea, 414 U.S. at 496, in which the Court denied a preliminary injunction because the "prospect of future injury rested
106 Indeed, Chief Kevin Oaks, Chief of the Rio Grande Valley Sector of U.S. Border Patrol, testified before this Court in Cause No. B-14-119 that in his experience, it has been traditionally true that when an administration talks about amnesty, or some other immigration relief publicly, it increases the flow across the border and has an adverse effect on enforcement operations. As of the time he testified, on October 29, 2014, he stated that the DHS was preparing for another surge of immigrants given the talk of a change in immigration policy. See Test. of Kevin Oaks, Cause No. B-14-119 (S.F. 172-176).
114

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 15 of 23
'on the likelihood that [plaintiffs] [would] again be arrested for and charged with violations'" and be subjected to proceedings; thus, the "threat to the plaintiff was not sufficiently real and immediate to show an existing controversy simply because they anticipate" the same injury occurring in the future). The law is clear that "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief." Id Consequently, this Court will exclude Plaintiffs' first category of injuries from the Court's determination of irreparable mJury.
Plaintiffs additionally allege that legalizing the presence of millions of people is a "virtually irreversible" action once taken. See Doc. No. 5 at 25-28. The Court agrees. First, there are millions of dollars at stake in the form of unrecoverable costs to the States if DAPA is implemented and later found unlawful in terms of infrastructure and personnel to handle the influx of applications. Doc. No. 64, PI. Ex. 24. The direct costs to the States for providing licenses would be unrecoverable if DAPA was ultimately renounced. Further, and perhaps most importantly, the Federal Government is the sole authority for determining immigrants' lawful status and presence (particularly in light of the Supreme Court's holding in Arizona v. United States, 132 S. Ct. 2492 (2012)) and, therefore, the States are forced to rely on the Defendants "to faithfully determine an immigrant's status." Once Defendants make such determinations, the States accurately allege that it will be difficult or even impossible for anyone to "unscramble the egg." Id Specifically, in Texas and Wisconsin, as this Court has already determined, through
115

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 16 of 23
benefits conferred by DAPA, recipients are qualified for driver's licenses, in addition to a host of other benefits. 107
The Court agrees that, without a preliminary injunction, any subsequent ruling that finds DAPA unlawful after it is implemented would result in the States facing the substantially difficult-if not impossible-task of retracting any benefits or licenses already provided to DAPA beneficiaries. This genie would be impossible to put back into the bottle. The Supreme Court has found irreparable injury in the form of a payment of an allegedly unconstitutional tax that could not be recovered if the law at issue was ultimately found unlawful. See Ohio Oil Co. v. Conway, 279 U.S. 813 (1929). There, the Court held that "[w]here the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction be granted and the injury to the opposing party, even ifthe final decree be in his favor, will be inconsiderable ... the injunction usually will be granted." Id. at 814.
Similarly, here, any injury to Defendants, even if DAPA is ultimately found lawful, will be insubstantial in comparison to Plaintiffs' injuries. A delay of DAPA's implementation poses no threat of immediate harm to Defendants. 108 The situation is not such that individuals are currently considered "legally present" and an injunction would remove that benefit; nor are potential beneficiaries of DAPA-who are under existing law illegally present--entitled to the benefit of legal presence such that this Court's ruling would interfere with individual rights.
107 For example, in Texas, these individuals, according to Plaintiffs, would also qualify for unemployment benefits (citing Tex. Lab. Code § 207.043(a)(2)); alcoholic beverage licenses (citing 16 Tex. Admin. Code § 33.10); licensure as private security officers (citing 37 Tex. Admin. Code § 35.21); and licensure as attorneys (citing Tex. Rules Govern. Bar Adm'n, R. lI(a)(5)(d)). 108 To the contrary, if individuals begin receiving benefits under DAPA but DAPA is later declared unlawful, Defendants, just like the States, would suffer irreparable injuries.
116

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 17 of 23
Preliminarily enjoining DAPA's implementation would in this case merely preserve the status quo that has always existed.
According to the authors of Wright & Miller's Federal Practice and Procedure: Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted, the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. Only when the threatened harm would impair the court's ability to grant an effective
remedy is there really a need for preliminary relief. Therefore, if a trial on the
merits can be conducted before the injury would occur, there is no need for interlocutory relief In a similar vein, a preliminary injunction usually will be denied if it appears that the applicant has an adequate alternate remedy in the form of money damages or other relief. Wright & Miller § 2948.1 (emphasis added).
Here, the Government has required that uscrs begin accepting applications for deferred
action under the new DACA criteria "no later than ninety days from the date of' the announcement of the Directive. Doc. No.1, PI. Ex. A. The Directive was announced on November 20, 2014. Thus, by the terms of the Directive, USCIS will begin accepting applications no later than February 20, 2015. Further, as already mentioned, the DHS' website provides February 18, 2015 as the date it will begin accepting applications under DACA's new criteria, and mid-to-late May for DAPA applications. The implementation of DAPA is therefore underway. Due to these time constraints, the Court finds that a trial on the merits cannot be conducted before the process of granting deferred action under the DAPA Directive begins. Without a preliminary injunction preserving the status quo, the Court concludes that Plaintiffs will suffer irreparable harm in this case.
117

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 18 of 23
3. Preliminary Injunction Factors Three and Four: Balancing Hardship to Parties and the Public Interest
Before the issuance of an injunction, the law requires that courts "balance the competing claims of injury and ... consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 542 (1987). Thus, in addition to demonstrating threatened irreparable harm, the Plaintiffs must show that they would suffer more harm without the injunction than would the Defendants if it were 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 the 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 in favor of 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 Wright & Miller § 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 interest supports granting preliminary relief, such relief should ordinarily be denied, "even if the public interest would not be harmed by one." Wright & Miller § 2948.4. "Consequently, an evaluation of the public interest should be given considerable weight in determining whether a motion for a preliminary injunction should be granted." Id.
118

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 19 of 23
Here, the Plaintiffs seek to preserve the status quo by enjoining Defendants from acting. The Court is not asked to order Defendants to take any affirmative action. See Wright & Miller § 2948.2 (noting that one significant factor considered by courts when balancing the hardships is whether a mandatory or prohibitory injunction is sought-the latter being substantially less burdensome to the defendant). Further, the Court's findings at the preliminary injunction stage in this case do not grant Plaintiffs all of the relief to which they would be entitled if successful at trial. See id. (explaining that if "a preliminary injunction would give plaintiff all or most of the relief to which the plaintiff would be entitled if successful at trial," courts are less likely to grant the injunction). Indeed, as detailed below, the Court is ruling on the likelihood of success for purposes of preliminary relief on only one of the three claims (and that one being a procedural, not a substantive claim) brought by Plaintiffs. Thus, neither of the usual concerns in considering potential burdens on a defendant in granting a preliminary injunction is applicable here. Preliminarily enjoining Defendants from carrying out the DAPA program would certainly not be "excessively burdensome" on Defendants. See id.
Additional considerations suggest that the Government would not be harmed at all by the issuance of a temporary injunction before a trial is held on the merits. The DHS may continue to prosecute or not prosecute these illegally-present individuals, as current laws dictate. This has been the status quo for at least the last five years109 and there is little-to-no basis to conclude that harm will fall upon the Defendants if it is temporarily prohibited from carrying out the DAPA program. If a preliminary injunction is issued and the Government ultimately prevails at a trial on the merits, it will not be harmed by the delay; if the Government ultimately loses at trial, the
109 Obviously, this has been the status quo for at least the last five years with respect to the specific individuals eligible for DAPA. Given that DAPA is a program that has never before been in effect, one could also conclude that enjoining its implementation would preserve the status quo that has always existed.
119

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 20 of 23
States avoid the harm that will be done by the issuance of SAVE-compliant IDs for millions of individuals who would not otherwise be eligible.
If the preliminary injunction is denied, Plaintiffs will bear the costs of issuing licenses and other benefits once DAPA beneficiaries-armed with Social Security cards and employment authorization documents-seek those benefits. Further, as already noted, once these services are provided, there will be no effective way of putting the toothpaste back in the tube should Plaintiffs ultimately prevail on the merits. Thus, between the actual parties, it is clear where the equities lie-in favor of granting the preliminary injunction.
This is not the end of the inquiry; in fact, in this case, it is really the tip of the iceberg. Obviously, this injunction (as long as it is in place) will prevent the immediate provision of benefits and privileges to millions of individuals who might otherwise be eligible for them in the next several months under DAPA and the extended-DACA. The Court notes that there is no indication that these individuals will otherwise be removed or prosecuted. They have been here for the last five years and, given the humanitarian concerns expressed by Secretary Johnson, there is no reason to believe they will be removed now. On the other hand, if the Court denies the injunction and these individuals accept Secretary Johnson's invitation to corne out of the shadows, there may be dire consequences for them if DAPA is later found to be illegal or unconstitutional. The DRS-whether under this administration or the next-will then have all pertinent identifying information for these immigrants and could deport them.
For the members of the public who are citizens or otherwise in the country legally, their range of interests may vary substantially: from an avid interest in the DAPA program's consequences to complete disinterest. This Court finds that, directly interested or not, the public
120

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 21 of 23
interest factor that weighs the heaviest is ensuring that actions of the Executive Branch (and within it, the DHS-one of the nation's most important law enforcement agencies) comply with this country's laws and its Constitution. At a minimum, compliance with the notice-andcomment procedures of the APA will allow those interested to express their views and have them considered.
Consequently, the Court finds, when taking into consideration the interests of all concerned, the equities strongly favor the issuance of an injunction to preserve the status quo. It is far preferable to have the legality of these actions determined before the fates of over four million individuals are decided. An injunction is the only way to accomplish that goal.
The Court finds that Plaintiffs' injuries cannot be redressed through a judicial remedy after a hearing on the merits and thus that a preliminary injunction is necessary to preserve the status quo in this case. While recognizing that a preliminary injunction is sometimes characterized as a "drastic" remedy, the Court finds that the judicial process would be rendered futile in this case if the Court denied preliminary relief and proceeded to a trial on the merits. If the circumstances underlying this case do not qualify for preliminary relief to preserve the status quo, this Court finds it hard to imagine what case would.
C. Remaining Claims In this order, the Court is specifically not addressing Plaintiffs' likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine. Judging the constitutionality of action taken by a coequal branch of government is a "grave[]" and "delicate duty" that the federal judiciary is called on to perform. Nw. Austin Mun. Uti!. Dist. No. One v. Holder, 557 U.S. 193, 204 (2009) (citations omitted).
121

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 22 of 23
The Court is mindful of its constitutional role to ensure that the powers of each branch are checked and balanced; nevertheless, if there is a non-constitutional ground upon which to adjudge the case, it is a "well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question." Id. at 205
(quoting Escambia Cnty. v. McMillan, 466 u.s. 48, 51 (1984) (per curiam)). In this case, the
Plaintiffs brought substantive and procedural claims under the APA in addition to their constitutional claim to challenge the Defendants' actions. All three claims are directed at the same Defendants and challenge the same executive action. Thus, the Court need only find a likelihood of success on one of these claims in order to grant the requested relief. This "constitutional avoidance" principle is particularly compelling in the preliminary injunction context because the Court is not abstaining from considering the merits of Plaintiffs' constitutional claim altogether. It is only declining to address it now. 110
Consequently, despite the fact that this ruling may imply that the Court finds differing degrees of merit as to the remaining claims, it is specifically withholding a ruling upon those issues until there is further development of the record. As stated above, preliminary injunction requests are by necessity the product of a less formal and less complete presentation. This Court, given the importance of these issues to millions of individuals-indeed, in the abstract, to virtually every person in the United States-and given the serious constitutional issues at stake,
110 Given the dearth of cases in which the Take Care Clause has been pursued as a cause of action rather than asserted as an affinnative defense (and indeed the dearth of cases discussing the Take Care Clause at all), a complete record would no doubt be valuable for this Court to decide these unique claims. It also believes that should the Government comply with the procedural aspects of the APA, that process may result in the availability of additional infonnation for this Court to have in order for it to consider the substantive APA claim under 5 U.S.C. § 706.
122
jj

Case 1:14-cv-00254 Document 145-2 Filed in TXSD on 02/16/15 Page 23 of 23
finds it to be in the interest of justice to rule after each side has had an opportunity to make a complete presentation. VI. CONCLUSION
This Court, for the reasons discussed above, hereby grants the Plaintiff States' request for a preliminary injunction. It hereby finds that at least Texas has satisfied the necessary standing requirements that the Defendants have clearly legislated a substantive rule without complying with the procedural requirements under the Administration Procedure Act. The Injunction is contained in a separate order. Nonetheless, for the sake of clarity, this temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAPA Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA Memorandum. 1l1 It does not enjoin or impair the Secretary's ability to marshal his assets or deploy the resources ofthe DHS. It does not enjoin the Secretary's ability to set priorities for the DHS. It does not enjoin the previously instituted 2012 DACA program except for the expansions created in the November 20,2014 DAPA Memorandum.
Signed this 16th day of February, 2015.
Andrew S. Hanen United States District Judge
111 While this Court's opinion concentrates on the DAPA program, the same reasoning applies, and the facts and the law compel the same result, to the expansions ofDACA contained in the DAPA Directive.
123

 
 Case: 15-40238 Document: 00512994979 Page: 1 Date Filed: 04/06/2015

No. 15-40238

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
________________________
STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF
MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA;STATE OF WISCONSIN;
PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of North Carolina; C. L. "BUTCH" OTTER, Governor, State of Idaho; PHIL BRYANT, Governor,
State of Mississippi; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS;
ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA; STATE OF TENNESSEE, Plaintiffs-Appellees, v.
UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy Chief of U.S. Border
Patrol, U.S. Customs and Border of Protection; SARAH R. SALDANA, Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and
Immigration Services, Defendants-Appellants,
________________________
On Appeal from the United States District Court for the Southern District of Texas, Brownsville Division, No. 1:14-cv-254, The Honorable Andrew Hanen, Presiding Judge
________________________
BRIEF OF JANE DOE #1, JANE DOE #2, AND JANE DOE #3 AS AMICUS CURIAE IN SUPPORT OF APPELLANTS, SUPPORTING REVERSAL
________________________

NINA PERALES MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 110 Broadway, Ste. 300 San Antonio, TX 78205 (210) 224-5476

ADAM P. KOHSWEENEY GABRIEL MARKOFF O’MELVENY & MYERS LLP 2 Embarcadero Center, 28th Floor San Francisco, CA 94111 (415) 984-8700

LINDA SMITH DLA PIPER LLP 2000 Avenue of the Stars, Ste. 400 Los Angeles, CA 90067 (310) 595-3038

Counsel for Amicus Curiae

Case: 15-40238 Document: 00512994979 Page: 2 Date Filed: 04/06/2015
SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES All current parties to this case, No. 15-40238, are governmental parties exempt from the certificate requirements of Fifth Circuit Rule 28.2.1. Pursuant to Fifth Circuit Rule 29.2, which requires “a supplemental statement of interested parties, if necessary to fully disclose all those with an interest in the amicus brief,” undersigned counsel of record certifies that the following listed persons have an interest in this amicus brief. These representations are made in order that the judges of this Court may evaluate possible disqualifications or recusal. Amicus curiae with a direct interest in this brief are the following: Jane Doe #1, Jane Doe #2, and Jane Doe #3. The Jane Does are three undocumented immigrants who are longtime residents of the Rio Grande Valley of South Texas and mothers of U.S. citizen children. They were allowed to proceed under pseudonyms as amici in the district court, and request leave to do so here to protect themselves from intimidation, violence, and harassment. Their counsel in this Court are the following: Nina Perales (Mexican American Legal Defense and Educational Fund); Adam P. KohSweeney and Gabriel Markoff (O’Melveny & Myers LLP); and Linda Smith (DLA Piper LLP). Counsel for amici in the district court also included: David Hinojosa (Mexican American Legal Defense and Educational Fund); J. Jorge deNeve (O’Melveny & Myers LLP); and Frank Costilla (Law Office of Frank Costilla, LP)
i

Case: 15-40238 Document: 00512994979 Page: 3 Date Filed: 04/06/2015
No party to this case or party’s counsel authored this brief in whole or in part. No individual or organization other than amici and their counsel contributed money intended to fund preparing or submitting this brief.
/s/ Nina Perales Nina Perales Attorney of Record for Amicus Curiae
ii

Case: 15-40238 Document: 00512994979 Page: 4 Date Filed: 04/06/2015
TABLE OF CONTENTS
Page
CONSENT TO FILING............................................................................................1 INTEREST OF AMICUS CURIAE...........................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT .......................................1 ARGUMENT ............................................................................................................4
I. THE STATES’ ASSERTED INJURIES FROM DAPA ARE SPECULATIVE AT BEST, AND THUS THEY CAN NEITHER DEMONSTRATE STANDING NOR SHOW IRREPARABLE INJURY ...................................................................5 A. Texas’s Asserted Financial Costs From Issuing Driver’s Licenses Are Contradicted By Its Own Budget And Will Almost Certainly Be Offset From Increased Gas Tax Revenue And Other Benefits .....................................................5 i. Texas’s Allegations Of Financial Harm Conflict With Its Official Budget Documents And Will Likely Be Disproved In Discovery As This Case Proceeds ..........................................................................6 ii. Revenues For Processing Driver’s Licenses Come From Gas Taxes And Usage-Based Fees, Which Are Likely To Increase Under DAPA ............................10 iii. The Financial Costs Of Issuing Licenses Must Be Balanced Against The Benefit Of Bringing Unregulated Drivers Into Compliance With Texas’s Laws..................................................................13 B. The States’ Other Arguments For Harm Are Without Merit, Since Immigrants Receiving Deferred Action Under DAPA Will Not Receive Benefits From Social Services ....................................................................................16 i. Medicaid And State Health Benefits..............................16 ii. Social Security And Medicare .......................................19 iii. Education, Unemployment, And Other Benefits............21
iii

Case: 15-40238 Document: 00512994979 Page: 5 Date Filed: 04/06/2015

TABLE OF CONTENTS (continued)

Page

II. RATHER THAN HARMING THE STATES, DAPA WILL GREATLY BENEFIT THEM BY GROWING THE ECONOMY, INCREASING DIRECT TAX REVENUES, AND REDUCING UNDOCUMENTED IMMIGRANTS’ USE OF SOCIAL BENEFITS....................................................................24
A. Undocumented Immigrants Have A Positive Effect On Economic Growth And Contribute Billions Of Dollars In Tax Revenue ............................................................................25
B. DAPA Will Further Increase These Positive Economic Effects, And Will Have Positive Social Effects As Well ........26
i. Work Authorization Will Allow Undocumented Immigrants Access To Better-Paying, Legal Work, With Corresponding Economic Growth And Increased Tax Revenues ................................................27
ii. The Experience Of DACA Shows That The Benefits Of DAPA, Unlike The States’ Illusory Harms, Will Be Real...........................................................................29
iii. DAPA Will Also Bring Enormous Social Benefits To American Families ...................................................31
CONCLUSION .......................................................................................................33
CERTIFICATE OF SERVICE ...............................................................................35
CERTIFICATE OF COMPLIANCE......................................................................36

iv

Case: 15-40238 Document: 00512994979 Page: 6 Date Filed: 04/06/2015
TABLE OF AUTHORITIES
Page(s)
Cases Clapper v. Amnesty Int’l,
133 S. Ct. 1138 (2013) ...........................................................................................4 Plyler v. Doe,
457 U.S. 202 (1982) .............................................................................................22 Winter v. Natural Resources Defense Council,
555 U.S. 7 (2008) ...................................................................................................5 Statutes 8 U.S.C § 1611 .........................................................................................................23 8 U.S.C. § 1611(a) ............................................................................................ 17, 23 8 U.S.C. § 1611(b)(1)(A) .........................................................................................17 8 U.S.C. § 1611(b)(2)...............................................................................................19 8 U.S.C. § 1611(b)(3)...............................................................................................20 8 U.S.C. § 1611(c)(1)(B) .........................................................................................23 8 U.S.C. § 1641 ........................................................................................................17 26 U.S.C. § 3101 ......................................................................................................21 26 U.S.C. § 3102 ......................................................................................................21 42 U.S.C. § 402(a) ...................................................................................................20 42 U.S.C. § 402(n) ...................................................................................................20 42 U.S.C. § 402(y) ...................................................................................................19 42 U.S.C. § 414(a)(1)...............................................................................................19 42 U.S.C. § 414(a)(2)...............................................................................................19 42 U.S.C. § 423(c)(1)(A) .........................................................................................19
v

Case: 15-40238 Document: 00512994979 Page: 7 Date Filed: 04/06/2015

TABLE OF AUTHORITIES (Continued)

Page(s)

42 U.S.C. § 426 ........................................................................................................20 42 U.S.C. § 1381 et seq............................................................................................20 42 U.S.C. § 1395dd ..................................................................................................17 42 U.S.C. § 1396a(a)................................................................................................17 42 U.S.C. § 18032(f)(1) ...........................................................................................17 42 U.S.C. § 18032(f)(3) ...........................................................................................17 Tex. Lab. Code § 201.011(10) .................................................................................22 Tex. Lab. Code § 204.002-.003 ...............................................................................22 Tex. Lab. Code § 207.043........................................................................................22 Tex. Transp. Code § 502.046(e) ..............................................................................15 Regulations 7 C.F.R. § 273.4(a)(6) ..............................................................................................23 8 C.F.R. § 1.3 ...........................................................................................................19 20 C.F.R. § 416.1618(b) ..........................................................................................21 20 C.F.R. § 416.202(b) ............................................................................................20 42 C.F.R. § 440.220(c).............................................................................................17 42 C.F.R. § 440.255 .................................................................................................17 42 C.F.R. § 442.255 .................................................................................................17 63 Fed. Reg. 41658 ..................................................................................................23 63 Fed. Reg. 41660 ..................................................................................................23 37 Tex. Admin. Code § 15.51-.53 ...........................................................................14 1 Tex. Admin. Code § 358.203 ................................................................................17

vi

Case: 15-40238 Document: 00512994979 Page: 8 Date Filed: 04/06/2015

TABLE OF AUTHORITIES (Continued)

Page(s)

1 Tex. Admin. Code § 358.205................................................................................17
Rules
Fed. R. App. P. 29(a) .................................................................................................1
Other Authorities
Adam Davidson, Do Illegal Immigrants Actually Hurt the U.S. Economy?, N.Y. TIMES MAGAZINE, Feb. 12, 2013, http://www.nytimes.com/2013/02/17/magazine/do-illegal-immigrants-actuallyhurt-the-us-economy.html?pagewanted=1&pagewanted=all ........... 24, 25, 26, 30
Center for American Progress, Executive Action on Immigration Will Benefit Texas’s Economy (November 2014), http://www.scribd.com/doc/248188359/Economic-Benefits-of-ExecutiveAction-for-Texas ........................................................................................... 30, 31
David Madland and Nick Bunter, Center For American Progress Action Fund, Legal Status for Undocumented Workers is Good for American Workers (Mar. 20, 2013), https://www.americanprogressaction.org/issues/labor/news/2013/03/20/57354 ..............................................................................................................................25
Deferred Action on Immigration: Implications and Unanswered Questions, Hearing Before the Senate Committee on Homeland Security and Governmental Affairs, 114 Cong. ___ (Feb. 4, 2015), http://www.ssa.gov/oact/testimony/SenateHomeSec_20150204.pdf ..................21
Dep’t of Energy, Energy Consumption by Transportation Fuel in Texas (2015), http://apps1.eere.energy.gov/states/transportation.cfm/state=TX#motor ............11
Dep’t of Education, Questions and Answers: Financial Aid and Undocumented Students (2015), https://studentaid.ed.gov/sites/default/files/financial-aid-andundocumented-students.pdf .................................................................................23
https://txapps.texas.gov/tolapp/txdl/. .........................................................................5
Institute on Taxation and Economic Policy, Undocumented Immigrants’ State and Local Contributions (Jul. 2013), http://www.itep.org/pdf/undocumentedtaxes.pdf ................................... 25, 26, 27
vii

Case: 15-40238 Document: 00512994979 Page: 9 Date Filed: 04/06/2015

TABLE OF AUTHORITIES (Continued)

Page(s)

Joanna Dreby, Center for American Progress, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities: A View From the Ground (Aug. 2012), https://www.americanprogress.org/wpcontent/uploads/2012/08/DrebyImmigrationFamiliesFINAL.pdf................ 32, 33
Kari E. D'Ottavio, Deferred Action for Childhood Arrivals: Why Granting Driver's Licenses to DACA Beneficiaries Makes Constitutional and Political Sense, 72 Md. L. Rev. 931 (2013)........................................................................................15
Letter from Stephen C. Goss, Chief Actuary of the Social Security Administration, to Senator Ron Johnson (Feb. 2, 2015), http://www.ssa.gov/OACT/solvency/BObama_20150202.pdf ...........................30
Manuel Pastor, Jared Sanchez, and Vanessa Carter, Center for the Study of Immigrant Integration, The Kids Aren’t Alright – But They Could Be: The Impact of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) on Children (March 2015), http://dornsife.usc.edu/assets/sites/731/docs/DAPA_Impact_on_Children_CSII_ Brief_Final_01.pdf ...............................................................................................31
Manuel Pastor, Justin Scoggins, Jennifer Tran, and Rhonda Ortiz, Center for the Study of Immigration Integration, The Economic Benefit of Immigrant Authorization in California (Jan. 2010), http://dornsife.usc.edu/assets/sites/731/docs/chirla_v10_small.pdf ........................ ..............................................................................................................................27
Michael Sivak, Univ. of Mich. Transp. Research Inst., Has Motorization in the U.S. Peaked? Part 3: Fuel Consumed By Light Duty Vehicles (Nov. 2013), http://deepblue.lib.umich.edu/bitstream/handle/2027.42/100360/102974.pdf ........ ....................................................................................................................... 11, 12
Michael V. Maciosek, et al., Greater Use of Preventive Services in U.S. Health Care Could Save Lives at Little or No Cost, 29 HEALTH AFFAIRS 1656 (2010), http://www.floridahealth.gov/alternatesites/kidcare/council/12-3-10/12-310_kcc-agenda.pdf ...............................................................................................18
Nat’l Ass’n Comm. Health Ctrs., The Impact of Community Health Centers & Community-Affiliated Health Plans on Emergency Department Use (Apr. 2007), http://www.nachc.com/client/documents/research/ED_Report_4.07.pdf ...........18

viii

Case: 15-40238 Document: 00512994979 Page: 10 Date Filed: 04/06/2015

TABLE OF AUTHORITIES (Continued)

Page(s)

Office of the Comptroller of Tex., Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy (Dec. 2006), http://www.coloradoimmigrant.org/downloads/TX%2520Study%2520on%20Un documented%2520Immigrants%20and%20Economy.pdf ..................................28
Patrick Oakford, Center for American Progress, Administrative Action on Immigration Reform: The Fiscal Benefits of Temporary Work Permits (Sep. 2014), https://cdn.americanprogress.org/wpcontent/uploads/2014/09/OakfordAdminRelief.pdf ..................................... 29, 30
Robert Lynch and Patrick Oakford, Center for American Progress, The Economic Effects of Granting Legal Status and Citizenship to Undocumented Immigrants (Mar. 20, 2013), https://cdn.americanprogress.org/wpcontent/uploads/2013/03/EconomicEffectsCitizenship-1.pdf ................ 24, 25, 27
Roberto G. Gonzales and Angie M. Bautista-Chavez, Two Years and Counting: Assessing the Growing Power of DACA, American Immigration Council (Jun. 2014), http://www.immigrationpolicy.org/sites/default/files/docs/two_years_and_counti ng_assessing_the_growing_power_of_daca_final.pdf ........................... 14, 28, 29
Social Security Number and Card ― Deferred Action for Childhood Arrivals (2015), http://www.socialsecurity.gov/pubs/deferred_action.pdf .......................19
Tex. Comptroller of Pub. Accounts, Biennial Revenue Estimate 2014–2015: Sources of State Highway Fund Revenue (2014), http://www.texastransparency.org/State_Finance/Budget_Finance/Reports/Bienn ial_Revenue_Estimate/bre2014/BRE_2014-15.pdf...................................... 10, 12
Tex. Comptroller of Public Accounts, Texas Taxes and Tax Rates (2015), http://www.window.state.tx.us/taxinfo/taxrates.html ..........................................11
Tex. Dep’t of Pub. Safety, Agency Strategic Plan 2009-2013 (2008), http://www.dps.texas.gov/dpsStrategicPlan/20092013/entire0913asp.pdf#01cover...........................................................................7
Tex. Dep’t of Pub. Safety, Operating Budget, Fiscal Year 2014 (2013), https://www.dps.texas.gov/LBB/operatingBudget.pdf........................... 7, 8, 9, 10

ix

Case: 15-40238 Document: 00512994979 Page: 11 Date Filed: 04/06/2015

TABLE OF AUTHORITIES (Continued)

Page(s)

Tex. Legislative Budget Board, Tex. Highway Funding Legislative Primer (March 2013), http://www.lbb.state.tx.us/Documents/Publications/ Primer/238_TexasHighwayFunding_LegislativePrimer_ThirdEdition2013.pdf .... ..............................................................................................................................11
Tex. Workforce Comm’n, Eligibility & Benefits Amounts (2015), http://www.twc.state.tx.us/jobseekers/eligibility-benefitamounts#unemploymentBenefitsEligibility ........................................................22
Tex. Workforce Comm’n, Your Tax Rates (2015), http://www.twc.state.tx.us/businesses/your-tax-rates#generalTaxRate ..............22
The AAA Foundation for Traffic Safety, Unlicensed to Kill (Nov. 2011), https://www.aaafoundation.org/sites/default/files/2011Unlicensed2Kill.pdf .....14
The Insurance Information Institute, Uninsured Motorists (2015), http://www.iii.org/fact-statistic/uninsured-motorists ...........................................13
The White House Council of Economic Advisors, The Economic Effects of Administrative Action on Immigration (Nov. 2014), https://www.whitehouse.gov/sites/default/files/docs/cea_2014_economic_effects _of_immigration_executive_action.pdf ...............................................................29
U.S. Census Bureau, American Community Surveys, Means of Transportation to Work 2009-2013 (2015), http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_5YR/S0802/0400000US 48 ..........................................................................................................................13

x

Case: 15-40238 Document: 00512994979 Page: 12 Date Filed: 04/06/2015
CONSENT TO FILING Pursuant to Fed. R. App. P. 29(a), all parties to this appeal have consented to the filing of this amicus curiae brief.
INTEREST OF AMICUS CURIAE Jane Doe #1, Jane Doe #2, and Jane Doe #3 are undocumented immigrants, mothers of U.S. citizen children, and longtime residents of the Rio Grande Valley of South Texas. They moved to intervene as Defendants in the court below, and are currently appealing that court’s denial of intervention to this Court in parallel case No. 15-40333. Their interest in this suit is to protect their eligibility for consideration for discretionary grants of deferred action under DAPA and/or expanded DACA, currently the only legal avenue available to them by which they can avoid deportation and remain in the United States with their children. Amici believe that participation as parties in this case is the only means by which they can protect their interests. However, because they have not yet been granted intervention, and because the brief of the United States ignores or underplays a number of critical points and takes positions hostile to the Jane Does’ economic and personal interests, amici now submit this brief in an attempt to protect their interests, which the United States does not and cannot adequately represent.
INTRODUCTION AND SUMMARY OF ARGUMENT The district court committed reversible error by finding standing and enjoining the implementation of the Department of Homeland Security’s
1

Case: 15-40238 Document: 00512994979 Page: 13 Date Filed: 04/06/2015
November 20, 2014 Deferred Action Guidance Memorandum based on evidence of alleged injuries that were speculative at best and demonstrably incorrect at worst.1 Only a few of the States submitted any evidence of injury in the district court, and that court’s decision rested solely on Texas’s claim that it would be injured because DAPA would cause it to expend money to issue additional driver’s licenses. But the States came nowhere close to meeting their burden to prove this point, and they also failed to prove their alternative argument that DAPA would result in an increased drain on the social safety net. In fact, the reality is that DAPA is quite likely to increase the States’ revenues, both in the Texas’s driver’s license program specifically and in the social safety net overall.
First, with regard to Texas’s alleged costs for processing new driver’s licenses, the States’ only evidence for these costs is a single, conclusory, declaration filed below. However, Texas’s publicly available official budgetary documents demonstrate that the declaration is either wrong or―at the very least―vastly oversimplified and overstated. Texas has apparently failed to consider the fact that the fees associated with drivers’ license applications actually
1Amici will collectively refer to the Deferred Action Guidance Memorandum as “DHS Memorandum” and the guidance it contains by their common acronyms: “DAPA,” short for Deferred Action for Parental Accountability, and “expanded DACA,” short for the provisions related to Deferred Action for Childhood Arrivals. Amici will collectively refer to these as “DAPA” except where there are differences between them meaningful to this brief.
2

Case: 15-40238 Document: 00512994979 Page: 14 Date Filed: 04/06/2015
allows Texas to generate a profit off of license applications in the aggregate. The Texas Department of Public Safety’s official budgetary materials also flatly contradict Texas’s allegations regarding the need to hire additional personnel to process driver’s license applications, as well as the cost associated with hiring such personnel. Indeed, these materials demonstrate that the increased flow of license applications from DAPA grantees would actually benefit Texas―and that is without even considering the additional tangible and proven benefits that would result from DAPA, including increasing gas tax revenue, bringing unlicensed drivers into compliance with safety laws, and reducing the number of uninsured motorists on the roads.
Second, as is shown in Part II of this brief with regard to the social safety net generally, the facts demonstrate that DAPA grantees will pay the same taxes as U.S. citizens into the various programs that comprise the social safety net, but will be almost entirely cut off from actually drawing benefits from these programs. The unfairness of this fact to DAPA grantees aside, it is indisputable that DAPA will accordingly have a net positive effect on the financial health of these programs. Commensurately, DAPA will allow currently undocumented workers to participate more openly and officially in the economy by virtue of legal employment. This will pump more money into the economy and increase the Gross Domestic Product, will assist―rather than hinder―the employment
3

Case: 15-40238 Document: 00512994979 Page: 15 Date Filed: 04/06/2015
prospects of full citizens, and will allow DAPA grantees to obtain private health insurance, thereby further reducing the strain on emergency medical care and related services.
Even if this Court ultimately finds DAPA’s many benefits to be unproven at this stage in the case, the strong possibility that they will be proven with further discovery and at trial is enough to reverse the district court’s order and dissolve the injunction. The burden of proof is not on the Defendant-Appellant United States nor the undersigned amici to prove that DAPA will have the effects described above. Rather, the burden is on the Plaintiff-Appellee States to prove that they will suffer the irreparable injuries they allege. Because they have not done so, and cannot do so, the preliminary injunction must be dissolved.
ARGUMENT None of the harms the States allege will befall them if DAPA is implemented are sufficient to either demonstrate an Article III injury-in-fact, as required to show standing, or the likelihood of an irreparable injury, as necessary to support a preliminary injunction. To establish Article III standing, an alleged future injury must be not only “concrete, particularized, and actual or imminent,” but also “certainly impending.” Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 114748 (2013). Additionally, to support a preliminary injunction, a plaintiff must prove “that irreparable injury is likely in the absence of an injunction. . . . Issuing a
4

Case: 15-40238 Document: 00512994979 Page: 16 Date Filed: 04/06/2015
preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008) (emphasis original). I. THE STATES’ ASSERTED INJURIES FROM DAPA ARE
SPECULATIVE AT BEST, AND THUS THEY CAN NEITHER DEMONSTRATE STANDING NOR SHOW IRREPARABLE INJURY A. Texas’s Asserted Financial Costs From Issuing Driver’s Licenses
Are Contradicted By Its Own Budget And Will Almost Certainly Be Offset From Increased Gas Tax Revenue And Other Benefits Texas’s alleged injury is simply neither concrete nor plausible enough at this stage of the litigation to serve as a basis for injury-in-fact or irreparable injury. Even if the States’ legal arguments regarding what constitutes Article III standing are correct, Texas’s own budgetary documents demonstrate that its factual arguments are false. Texas’s publicly available budget documents show that it completely recoups all processing expenses through the $25 application fees it charges each applicant.2 Its claims that it will suffer enormous financial injury appear to be entirely based on the unsupported assumption that the Texas Department of Public Safety would need to hire hundreds of new employees and
2 The district court calculated this fee as $24, but the DPS website indicates it is $25. See https://txapps.texas.gov/tolapp/txdl/.
5

Case: 15-40238 Document: 00512994979 Page: 17 Date Filed: 04/06/2015
open significant new office space to process a mere 8.5% increase in driver’s license applications due to DAPA. This type of naked speculation cannot be a basis for standing, and it is certainly not the type of concrete injury that is necessary to support a preliminary injunction. Texas’s allegations have yet to be tested through discovery and will likely prove to be radically overstated or completely baseless, thus leaving the States with no provable injury at all.
Moreover, though the district court impliedly admitted that only the net cost to Texas’s budget could be considered an injury, it failed to consider that increasing the pool of driver’s license holders is likely to substantially increase tax revenues and bring unlicensed drivers into compliance with Texas’s driving laws, two facts that will more than offset whatever costs Texas may incur processing applications.
i. Texas’s Allegations Of Financial Harm Conflict With Its Official Budget Documents And Will Likely Be Disproved In Discovery As This Case Proceeds
The district court’s sole basis for finding injury-in-fact and irreparable injury was its conclusory ruling that Texas would suffer a net loss of between $130.89 and $174.73 every time it processed a DAPA recipient’s driver’s license application. See Order at 22, 115, ECF No. 145. This ruling, however, was based on a single declaration submitted by Plaintiff-Appellee Texas. In that declaration, Texas speculated that DAPA would cause the Texas Department of Public Safety
6

Case: 15-40238 Document: 00512994979 Page: 18 Date Filed: 04/06/2015
(“DPS”) to have to spend between $154.89 to $198.73 for each new driver’s license application it processed, for a high-end total of $103 million over two years, to hire 640 new employees and add 168,000 square feet of office space. See ECF No. 64-43 at 1-5. In calculating injury, the district court accepted the declaration amounts without question and then offset the “per license” figure by the application fee each driver’s license applicant must pay. See Order at 22.
Texas’s official budgetary publications, however, indicate that its average costs for issuing licenses are less than $21 per license at most, and that it actually generates a profit on driver’s license fees. In 2008, DPS estimated that it processed over 5 million driver’s license transactions “for an average revenue of $95 million each year.” Tex. Dep’t of Pub. Safety, Agency Strategic Plan 20092013 58 (2008).3 And in 2014, DPS’s projected budget showed it processing 6.1 million license transactions and obtaining over $125 million in driver’s license fees. See Tex. Dep’t of Pub. Safety, Operating Budget, Fiscal Year 2014 [hereinafter DPS Operating Budget] III.A.38; IV.D.5 (2013).4 Yet that same year, DPS’s total budget for the “driver license” category, which includes both “driver license services” and “driving and motor vehicle safety” was slightly less than
3 http://www.dps.texas.gov/dpsStrategicPlan/20092013/entire0913asp.pdf#01cover 4 https://www.dps.texas.gov/LBB/operatingBudget.pdf.
7

Case: 15-40238 Document: 00512994979 Page: 19 Date Filed: 04/06/2015
$124 million. Id. at II.A.2. Even assuming that the entire $124 million in that department was spent on processing driver’s license applications and doing nothing else, that works out to an average cost to Texas of less than $21 per license.5 This indicates that processing licenses actually generates a profit for the State.
Though it apparently cost Texas less than $21 to process a license application in 2014, it now claims that adding 520,000 projected license applications from DAPA (a moderate increase of 8.5% over the 6.1 million license transactions in 2014) will cost it an additional $103 million, at an average cost of $198.73 per license. See Order at 22 (citing ECF No. 64-43 at 3-4). Yet Texas gives no explanation why a DAPA recipient’s application should be exponentially more expensive than anyone else’s application. And indeed, many of the calculations contained in Texas’s declaration in this suit are not consistent with the DPS Operating Budget. For example, Texas claims in this suit that it would need to hire 2.03 new employees for each 1,750 DAPA recipients who apply for licenses—one employee for every 875 applications—while the DPS Operating Budget seems to indicate that in 2014 each employee could handle over 2,500 driver’s license transactions. Compare ECF No. 64-43 at 3-4, with DPS Operating
5 If Texas’s costs are limited to the $22.9 million in the “driver license services” sub-category, then this rate falls to less than $4 a license.
8

Case: 15-40238 Document: 00512994979 Page: 20 Date Filed: 04/06/2015
Budget at III.A.38. All told, Texas claims that the two-year cost just to hire new employees to handle 520,000 DAPA driver’s license applications would be almost $80 million, $40 million a year. This makes little sense in light of the fact that the total salary and wage cost for DPS’s driver’s license division in 2014 was slightly more than $70 million, and DPS somehow handled 6.1 million license applications during that time. DPS Operating Budget at III.A.38, 40.
To be sure, discovery may bring more facts to light and complicate both this and Texas’s own analysis, and it is not impossible that Texas may have some legitimate calculations to support its claim that each driver’s license application under DAPA will cost it nearly $175 net of fees. But the critical point is that the self-interested declaration Texas has put forward at this point in the litigation is not sufficient to support its claim of injury. On its face, that sworn declaration seems entirely inconsistent with its own official budgetary documents. Texas’s alleged financial losses—far from being “concrete, particularized, and actual or imminent” enough to support standing, let alone an irreparable injury sufficient for a preliminary injunction—are likely pure speculation. At the very least, they should be subject to vigorous discovery before providing the sole basis for an injunction.
9

Case: 15-40238 Document: 00512994979 Page: 21 Date Filed: 04/06/2015
ii. Revenues For Processing Driver’s Licenses Come From Gas Taxes And Usage-Based Fees, Which Are Likely To Increase Under DAPA
Even taking Texas’s declaration on its face, issuing driver’s licenses to DAPA grantees will not cause Texas harm “in excess of several million dollars,” Order at 22, because, in the aggregate, issuing licenses to DAPA recipients is likely to result in an increase in gas tax revenues and other usage-based revenues large enough to offset the entire cost of processing new driver’s licenses. The district court failed to consider the likelihood of increased gas tax revenues at all in its opinion, thereby rendering Texas’s supposed “net loss” from processing driver’s license applications entirely speculative.
As noted, in 2014, the Texas DPS budgeted approximately $124 million total to its driver’s license division, of which $22.9 million was for driver license services. See DPS Operating Budget at III.A.38, 40. Of the total amount, $106 million came from Texas’s State Highway Fund, which is almost entirely derived from state gas and lubricant taxes, vehicle registration fees, and matching federal funds from federal fuel taxes. See Tex. Comptroller of Pub. Accounts, Biennial Revenue Estimate 2014–2015: Sources of State Highway Fund Revenue, 34 (2014) [hereinafter Biennial Revenue Estimate 2014–2015] (stating the $8.5 billion funding for the State Highway Fund in 2015 includes $4.3 billion from state gas
10

Case: 15-40238 Document: 00512994979 Page: 22 Date Filed: 04/06/2015
and lubricant taxes and $4.1 billion in federal funds)6; Tex. Legislative Budget Board, Tex. Highway Funding Legislative Primer 2-3 (March 2013).7
Texas’s gas tax revenues—and thus the State Highway Fund that funds the vast bulk of driver’s license services—would only be likely to increase under DAPA. The district court failed to consider this common-sense point, despite it being no more speculative than Texas’s own unsupported claims of financial harm. Texas imposes a $0.20 per gallon tax on the sale of gasoline and similar fuel products. See Tex. Comptroller of Public Accounts, Texas Taxes and Tax Rates (2015).8 In 2011, the per-capita consumption of motor fuel gasoline in Texas was 464 gallons. See Dep’t of Energy, Energy Consumption by Transportation Fuel in Texas (2015).9 Some other studies, which examine consumption on a per-licenseddriver rate, find significantly higher figures. See Michael Sivak, Univ. of Mich. Transp. Research Inst., Has Motorization in the U.S. Peaked? Part 3: Fuel Consumed By Light Duty Vehicles 10 (Nov. 2013) (estimated nationwide gasoline
6 http://www.texastransparency.org/State_Finance/Budget_Finance/Reports/ Biennial_Revenue_Estimate/bre2014/BRE_2014-15.pdf. 7 http://www.lbb.state.tx.us/Documents/Publications/ Primer/ 238_TexasHighwayFunding_LegislativePrimer_ThirdEdition2013.pdf. 8 http://www.window.state.tx.us/taxinfo/taxrates.html. 9 http://apps1.eere.energy.gov/states/transportation.cfm/state=TX#motor.
11

Case: 15-40238 Document: 00512994979 Page: 23 Date Filed: 04/06/2015
consumption per licensed driver to be 585 gallons in 2011).10 Even taking the lower of these figures, the average DAPA recipient in Texas is likely to pay $278.40 in gasoline taxes over the three-year period of deferred action, more than reimbursing the State for the cost of processing her driver’s license application, even assuming Texas is right that each license application will result in a net loss to the State of $175. And the actual amount Texas gains is likely to be higher, for this does not even consider Texas’s other revenue streams that will be bolstered by an influx of new driver’s license applicants, such as vehicle registration fees, title fees, usage-based lubricants taxes, and other sources. See Biennial Revenue Estimate 2014–2015, supra, at 34-35.
Granted, these figures are themselves estimates, and they could be overstated with respect to potential DAPA recipients who are currently forced to drive illegally, without licenses, and so are already paying gas taxes. But if it is speculative to make the common-sense point that adding new driver’s license holders will lead to increased fuel consumption and higher gas tax revenues, it is certainly no more speculative than are Texas’s allegations about its costs. Moreover, it is the States, as the Plaintiffs below, who have the burden of showing injury. In ruling on Texas’s claim that it was harmed, the district court failed to
10 http://deepblue.lib.umich.edu/bitstream/handle/2027.42/100360/102974.pdf. 12

Case: 15-40238 Document: 00512994979 Page: 24 Date Filed: 04/06/2015
account for the increased gas tax revenues Texas would enjoy as a result of DAPA. For this reason as well, the court’s ruling was unsupported at this early stage of the litigation and cannot serve as the basis for finding standing or irreparable injury.
iii. The Financial Costs Of Issuing Licenses Must Be Balanced Against The Benefit Of Bringing Unregulated Drivers Into Compliance With Texas’s Laws
Last, Texas’s argument for injury also completely disregards the immediate economic and social gains that issuing licenses to DAPA recipients would bring to the entire population of Texas. In Texas, 80 percent of people drive to work. U.S. Census Bureau, American Community Surveys, Means of Transportation to Work 2009-2013 (2015).11 Faced with the choice of driving without licenses and being unable to work, undocumented workers in Texas often have no choice but to drive without licenses. Partially as a result of this fact, as of 2012, 13 percent of Texas drivers were uninsured. See The Insurance Information Institute, Uninsured Motorists (2015).12 Allowing DAPA recipients to obtain driver’s licenses would make Texas’s roads safer and reduce the number of drivers without auto insurance. These positive effects must be balanced against Texas’s alleged injury.
11
http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_5YR/S0802/0400000US48 12 http://www.iii.org/fact-statistic/uninsured-motorists.
13

Case: 15-40238 Document: 00512994979 Page: 25 Date Filed: 04/06/2015
Licensing would make Texas’s roads safer. Between 2007 and 2009, 18.2 percent of all fatal crashes involved a driver without a valid license. The AAA Foundation for Traffic Safety, Unlicensed to Kill 13 (Nov. 2011).13 Texas requires driver’s license applicants to pass knowledge and driving tests, as well as a vision examination. See 37 Tex. Admin. Code § 15.51-.53. DAPA-eligible immigrants who are currently forced to drive without a license do so without meeting these basic safety requirements. As the experience with DACA since 2012 has shown, implementing DAPA would lead to eligible individuals obtaining licenses and passing these safety requirements. Fifty-seven percent of DACA grantees obtained a driver’s license in the first 16 months of the program. See Roberto G. Gonzales and Angie M. Bautista-Chavez, American Immigration Council, Two Years and Counting: Assessing the Growing Power of DACA 3 (Jun. 2014).14 While it is not clear how many of these individuals had previously been driving illegally, it is likely both that at least some of them had been, and that a similar number of DAPA recipients who are already driving would apply for and obtain licenses. Licensing would bring them into compliance with Texas’s driving laws and safety
13 https://www.aaafoundation.org/sites/default/files/2011Unlicensed2Kill.pdf. 14 http://www.immigrationpolicy.org/sites/default/files/docs/two_ years_and_counting_assessing_the_growing_power_of_daca_final.pdf.
14

Case: 15-40238 Document: 00512994979 Page: 26 Date Filed: 04/06/2015
requirements, making the roadways safer for everyone—immigrant and nativeborn.
Moreover, because Texas would be required to issue driver’s licenses to DAPA recipients, DAPA is likely to decrease the number of uninsured drivers on Texas roads, significantly increasing public safety and reducing auto insurance premiums for all Texas residents. States that have allowed undocumented immigrants to obtain driver’s licenses thereafter see remarkable declines in the proportion of drivers who go without auto insurance. See Kari E. D’Ottavio, Deferred Action for Childhood Arrivals: Why Granting Driver's Licenses to DACA Beneficiaries Makes Constitutional and Political Sense, 72 Md. L. Rev. 931, 96364 (2013) (noting, inter alia, the experience in New Mexico, where the uninsured driver rate dropped from 33% to 10.6% in four years after undocumented immigrants were allowed to obtain driver’s licenses). This is likely to occur in Texas as well, since proof of insurance is required to register vehicles. See Tex. Transp. Code § 502.046(e). A drop in the uninsured driver rate would be likely to have very positive economic effects, which must be set off against Texas’s alleged injuries. See D’Ottavio, supra, at 963-64.
15

Case: 15-40238 Document: 00512994979 Page: 27 Date Filed: 04/06/2015
B. The States’ Other Arguments For Harm Are Without Merit, Since Immigrants Receiving Deferred Action Under DAPA Will Not Receive Benefits From Social Services
The court below rejected the States’ argument that, because undocumented immigrants consume social services, DAPA will harm the states by increasing the costs to social services programs. See Order at 51-52. The States had argued that “DAPA recipients will be more likely to ‘come out of the shadows’ and to seek state services and benefits because they will no longer fear deportation. Thus, the States’ resources will be taxed even more than they were before the promulgation of DAPA.” Order at 52-53. Although the States’ theory of indirect injury is speculative at best and the district court properly rejected it, amici emphasize two reasons why these injuries are nonexistent, using the case of Texas as an example: first, DAPA will not change anyone’s eligibility for social services benefits; and, second, DAPA will actually result in greatly increased tax contributions to state and federal social services programs.
i. Medicaid And State Health Benefits DAPA is no threat to the funds in Texas’ health care programs. As discussed herein, Texas already denies medical care to people who have been granted deferred action and DAPA, if anything, would actually lower Texas’s liability for uninsured care.
16

Case: 15-40238 Document: 00512994979 Page: 28 Date Filed: 04/06/2015
Federal law, and thus Texas law, does not allow undocumented immigrants to receive health care through Medicaid, although the federal government does contribute toward the cost of providing emergency care for undocumented immigrants. 1 Tex. Admin. Code §§ 358.203, 358.205; 42 C.F.R. § 440.255. Generally, only “qualified aliens” permanently residing in the United States are eligible for Medicaid benefits—a category that does not include deferred action grantees, whether under DAPA or otherwise. See 8 U.S.C. §§ 1611(a); 1641; but see 8 U.S.C. § 1611(b)(1)(A). Grantees cannot participate in the state or federal health insurance marketplaces, even with their own money. 42 U.S.C. § 18032(f)(1), (f)(3). The State’s only obligations are to provide stabilizing care for people with emergency medical conditions or in active labor, regardless of their immigration status, and to cover costs of such care for those who cannot afford it. Tex. Admin. Code § 358.205; see also 8 U.S.C. § 1611(b)(1)(A); 42 U.S.C. § 1395dd, § 1396a(a); 42 C.F.R. §§ 440.220(c), 442.255. But DAPA does not itself have any effect on eligibility for emergency care since that depends solely on financial and medical need, not on whether the individual in question has received a grant of deferred action.
That is why, contrary to the States’ contentions, DAPA will save money for Texas’ taxpayers and health care system. Even if “in 2008, Texas incurred $716,800,000 in uncompensated medical care provided to illegal aliens,” Order at
17

Case: 15-40238 Document: 00512994979 Page: 29 Date Filed: 04/06/2015
46, that amount will decrease under DAPA. When prospective grantees in Texas gain work authorization, they will be better able to seek and hold down jobs with employer-offered health insurance benefits. See infra, II(B)(i)-(ii). A projected increase in grantees’ earning power also means that fewer grantees will depend on uncompensated emergency care provided by hospitals, and that grantees will be able to purchase private health insurance. More grantees would be able to afford preventive and primary care with or without insurance, and those options both cost less and promote better long-term health outcomes than emergency intervention alone. See Michael V. Maciosek, et al., Greater Use of Preventive Services in U.S. Health Care Could Save Lives at Little or No Cost, 29 HEALTH AFFAIRS 1656 (2010)15; see also, e.g., Nat’l Ass’n Comm. Health Ctrs., The Impact of Community Health Centers & Community-Affiliated Health Plans on Emergency Department Use 2 (Apr. 2007) (regarding high relative costs of emergency room care for injuries or diseases).16
Texas is justified in being concerned about the costs of health care in its borders, but DAPA cannot possibly exacerbate those costs. The concern falls far
15 http://www.floridahealth.gov/alternatesites/kidcare/council/12-3-10/12-310_kcc-agenda.pdf. 16 http://www.nachc.com/client/documents/research/ED_Report_4.07.pdf
18

Case: 15-40238 Document: 00512994979 Page: 30 Date Filed: 04/06/2015
short of being an injury that creates Article III standing, and there is no rational causal connection between DAPA and any increase in costs.
ii. Social Security And Medicare Recipients of deferred action are assigned social security numbers when they receive work authorization, so that they can pay taxes on their earnings, but they are generally ineligible for Social Security benefits. See Soc. Security Admin., Social Security Number and Card ― Deferred Action for Childhood Arrivals (2015).17 Although individuals who have received grants of deferred action could theoretically receive Social Security retirement benefits, it is very unlikely that any DAPA recipients will be able to do so unless they later gain permanent immigration status. Congress has allowed recipients of deferred action to be eligible for OldAge, Survivor, and Disability Insurance (“OASDI”) benefits, which include what are colloquially known as “retirement” and “disability” benefits. See 8 U.S.C. § 1611(b)(2); 42 U.S.C. § 402(y); 8 C.F.R. § 1.3. However, like everyone who pays into the Social Security trust fund, recipients of deferred action can only obtain OASDI coverage by earning it, by paying taxes into the trust fund over the course of at least 40 qualifying quarters—10 full years of employment. 42 U.S.C. §§ 414(a)(1), (a)(2); 42 U.S.C. § 423(c)(1)(A) (requiring same for disability
17 http://www.socialsecurity.gov/pubs/deferred_action.pdf. 19

Case: 15-40238 Document: 00512994979 Page: 31 Date Filed: 04/06/2015
coverage). Like everyone else, they cannot receive earned benefits until they have fully paid into the system.
A DAPA grantee’s chances of actually seeing retirement benefits are slim. One reason for this is that they are not guaranteed 10 years of residence, given that deferred action grants last only three years and can be revoked at any time. See DHS Memorandum at 3–5, ECF No. 38-7. Another reason is that the grantee would have to reach retirement age before she could take benefits. 42 U.S.C. § 402(a). And if a grantee eventually is deported, her earned benefits are cut off, along with the benefits of any non-citizen survivor or spouse outside the country, unless and until she returns as a lawful permanent resident. 42 U.S.C. § 402(n). Likewise, for Medicare, although they can enroll, 8 U.S.C. § 1611(b)(3), grantees will be ineligible until they have earned OASDI coverage. See 42 U.S.C. § 426.
In addition to being ineligible for retirement benefits as a practical matter, DAPA grantees are categorically barred from receiving means-based benefits under the Social Security Act. Grantees are, for example, cut off from Supplemental Security Income (SSI), the social security program that provides supplemental payments to low-income aged, blind, or disabled. See 42 U.S.C. § 1381 et seq. An SSI applicant must be a citizen, a lawful permanent resident, or “permanently residing in the United States under color of law.” 20 C.F.R. § 416.202(b). The “color of law” clause does not apply to recipients of deferred
20

Case: 15-40238 Document: 00512994979 Page: 32 Date Filed: 04/06/2015
action, whether under DAPA, expanded DACA or otherwise. 20 C.F.R. § 416.1618(b).
Despite the limitations on grantees’ benefits, grantees and their employers still have to pay withholding tax to the Social Security Trust Fund for every single paycheck. 26 U.S.C. §§ 3101, 3102. Given this fact, the Social Security Administration’s Chief Actuary projects that “the long term actuarial balance for the combined Old-Age and Survivors Insurance (OASI) and Disability Insurance (DI) Trust Funds will be improved slightly by the 2014 executive actions.” See Deferred Action on Immigration: Implications and Unanswered Questions, Hearing Before the Senate Committee on Homeland Security and Governmental Affairs, 114 Cong. ___ (Feb. 4, 2015) (testimony of Stephen C. Goss, Chief Actuary, Social Security Administration).18 Far from threatening U.S. citizens’ and legal permanent residents’ expected benefits, DAPA contributes to securing their future.
iii. Education, Unemployment, And Other Benefits In their filings below, the States also raised the specter of undocumented immigrants somehow taking advantage of states’ education and unemployment programs. But DAPA and expanded DACA grantees cannot possibly cost the States any additional education funds. While the States do indeed have the
18 http://www.ssa.gov/oact/testimony/SenateHomeSec_20150204.pdf, at 2. 21

Case: 15-40238 Document: 00512994979 Page: 33 Date Filed: 04/06/2015
obligation to educate undocumented immigrant children in their public K-12 schools, that obligation arises under the Supreme Court’s opinion in Plyler v. Doe, 457 U.S. 202 (1982). DAPA and expanded DACA will not increase the States’ obligations in this regard.
DAPA grantees also will not be a drain on Texas’s unemployment insurance funds. While DAPA grantees may be able to qualify for unemployment insurance benefits, see Tex. Lab. Code § 207.043, they will only be able to draw upon these benefits if they meet the eligibility requirements that apply to all native-born Texans, including having worked in the year prior to drawing benefits and having earned a certain baseline amount. See Tex. Workforce Comm’n, Eligibility & Benefits Amounts (2015).19 And even so, their employers will still be paying unemployment taxes on their behalf, in an amount that rises as new positions are added. See Tex. Lab. Code §§ 201.011(10), 204.002-.003; Tex. Workforce Comm’n, Your Tax Rates (2015).20 As more undocumented immigrants obtain deferred action and work authorization and subsequently receive better-paying, longer-term employment, more taxes will be paid into the unemployment system. The simple truth is that Texas’s unemployment insurance funds will not only not be harmed by DAPA, but are actually likely to be better off.
19 http://www.twc.state.tx.us/jobseekers/eligibility-benefit-amounts. 20 http://www.twc.state.tx.us/businesses/your-tax-rates.
22

Case: 15-40238 Document: 00512994979 Page: 34 Date Filed: 04/06/2015
DAPA grantees will also remain ineligible for any federal needs-based benefits programs. These include bedrock safety-net institutions like Temporary Assistance to Needy Families (TANF, colloquially known as welfare), State Children’s Health Insurance Program (CHIP),21 and the Supplemental Nutritional Assistance Program (SNAP, also known as food stamps). As with Medicaid, only “qualified aliens” can receive these federal public benefits, and DAPA grantees do not count as such. 8 U.S.C. § 1611(a), (c)(1)(B); 7 C.F.R. § 273.4(a)(6) (clarifying that only qualifying aliens can participate in SNAP); Interpretation of “Federal Public Benefit,” 63 Fed. Reg. 41658, 41660 (Aug. 4, 1998) (clarifying that Medicare, non-emergency Medicaid, TANF, and CHIP are “federal public benefits” within the meaning of 8 U.S.C § 1611). DAPA grantees also would not be eligible for federal student aid. See Dep’t of Education, Questions and Answers: Financial Aid and Undocumented Students 1 (2015).22
To summarize, DAPA grantees will pay into the social safety net but will not benefit from it—at least not to the same extent that others do. Accordingly, the
21 At least one child of every prospective DAPA grantee is already eligible for CHIP, of course, by being a citizen or legal permanent resident (assuming the family meets income requirements), but their eligibility will not be affected by DAPA. 22 https://studentaid.ed.gov/sites/default/files/financial-aid-and-undocumentedstudents.pdf.
23

Case: 15-40238 Document: 00512994979 Page: 35 Date Filed: 04/06/2015
States’ claims that they are harmed by DAPA grantees’ use of social services benefits is indisputably wrong. II. RATHER THAN HARMING THE STATES, DAPA WILL GREATLY
BENEFIT THEM BY GROWING THE ECONOMY, INCREASING DIRECT TAX REVENUES, AND REDUCING UNDOCUMENTED IMMIGRANTS’ USE OF SOCIAL BENEFITS DAPA will be an economic boon to the Plaintiff-Appellee States and the nation as a whole. The consensus among economists is that immigration—by both documented and undocumented individuals—benefits the economy on both state and national levels. See Adam Davidson, Do Illegal Immigrants Actually Hurt the U.S. Economy?, N.Y. TIMES MAGAZINE, Feb. 12, 2013.23 Keeping undocumented immigrants in the shadow economy actually hinders the potential they can offer, while increased integration of the undocumented immigrant population bolsters the benefits already provided by undocumented workers. See Robert Lynch and Patrick Oakford, Center for American Progress, The Economic Effects of Granting Legal Status and Citizenship to Undocumented Immigrants 2 (Mar. 20, 2013).24 Moreover, DAPA will keep young U.S. citizens in stable families without the fear
23 http://www.nytimes.com/2013/02/17/magazine/do-illegal-immigrants-actuallyhurt-the-us-economy.html?pagewanted=1&pagewanted=all. 24 https://cdn.americanprogress.org/wp-content/uploads/2013/03/ EconomicEffectsCitizenship-1.pdf.
24

Case: 15-40238 Document: 00512994979 Page: 36 Date Filed: 04/06/2015
and stress that deportation could destroy their families, thereby providing immeasurable social benefits as well.
A. Undocumented Immigrants Have A Positive Effect On Economic Growth And Contribute Billions Of Dollars In Tax Revenue
Undocumented immigrants make the American economy stronger. Despite being confined to the shadow economy, undocumented workers complement, rather than compete with, skilled, native-born workers, and they contribute to the Gross Domestic Product (“GDP”). See Davidson, supra (noting that, between 1990 and 2007, undocumented workers increased the pay of legal workers in complimentary jobs by up to 10 percent). They pay billions in taxes without expectation of receiving benefits in return and, the more integrated immigrants are into the economy and society, the greater the benefits they contribute. See Lynch and Oakford, supra at 2; Institute on Taxation and Economic Policy, Undocumented Immigrants’ State and Local Contributions 1 (Jul. 2013).25 Moreover, research suggests that granting work authorization would not adversely affect native employment rates because undocumented workers are already employed in complementary jobs. See David Madland and Nick Bunter, Center
25 http://www.itep.org/pdf/undocumentedtaxes.pdf. 25

Case: 15-40238 Document: 00512994979 Page: 37 Date Filed: 04/06/2015
For American Progress Action Fund, Legal Status for Undocumented Workers is Good for American Workers (Mar. 20, 2013).26
In addition, undocumented workers contribute enormous amounts in tax revenue to the states and federal governments while receiving fewer benefits than citizens. In 2010, undocumented immigrants contributed $10.6 billion to state and local taxes nationwide. See Undocumented Immigrants’ State and Local Contributions, supra. At the federal level, Stephen Goss, Chief Actuary for the Social Security Administration, estimates that undocumented workers contribute about $15 billion a year to Social Security through payroll taxes, but only take back $1 billion in benefits because so few are eligible. Davidson, supra. The overwhelming majority of undocumented workers who pay into Social Security will never see a return on that money. In total, undocumented workers have contributed up to $300 billion, or nearly 10 percent of, the Social Security Trust Fund. See Davidson, supra.
B. DAPA Will Further Increase These Positive Economic Effects, And Will Have Positive Social Effects As Well
The economic benefits already provided by undocumented immigrants will be bolstered by providing them with work authorization and freeing them from the fear of deportation. When undocumented immigrants are kept in hiding or
26 https://www.americanprogressaction.org/issues/labor/news/2013/03/20/57354. 26

Case: 15-40238 Document: 00512994979 Page: 38 Date Filed: 04/06/2015

working without authorization, they cannot fully participate in the economy or

their communities’ social institutions. This lack of integration fragments society

and prevents these immigrants from contributing their full potential. DAPA would

integrate grantees, producing enormous social benefits and drastically improving

the lives of many young U.S. citizens.

i.

Work Authorization Will Allow Undocumented Immigrants

Access To Better-Paying, Legal Work, With Corresponding

Economic Growth And Increased Tax Revenues

The potential benefits that undocumented immigrants could bring to the

economy are stymied by their lack of legal status. Unable to obtain legal

employment, undocumented workers earn less, pay less in taxes, and contribute

less than they otherwise would. Granting legal status to the entire undocumented

population would increase the GDP by $832 billion over 10 years, increase the

wages of all workers by $470 billion, and add 121,000 jobs per year. See Lynch

and Oakford, supra at 2, 10. The wages of undocumented workers would rise by

15.1% in five years. Id. at 2, 8. This expanded tax base would add $109 billion in

taxes over 10 years—$69 billion in federal taxes and $40 billion at the state level.

Id. at 10. In California alone, granting authorization to the undocumented Latino

population would boost Social Security and Medicare with an additional $2.2

billion annually. Manuel Pastor, Justin Scoggins, Jennifer Tran, and Rhonda Ortiz,

27

Case: 15-40238 Document: 00512994979 Page: 39 Date Filed: 04/06/2015
Center for the Study of Immigration Integration, The Economic Benefit of Immigrant Authorization in California 9 (Jan. 2010).27
Indeed, although both the States’ briefing and the court below portrayed undocumented immigrants as nothing but a drain on the public fisc, Texas, in particular, enjoys real and robust economic benefits from its undocumented population. It takes in far more money in tax revenue from undocumented workers than it expends on them. In 2005, undocumented workers contributed close to $1.6 billion in taxes to Texas. See Office of the Comptroller of Tex., Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy 20 (Dec. 2006).28 But, because Texas only spent about $1.2 billion on undocumented workers, those immigrants created a net surplus of $425 million for the State to enjoy. Id. Without the 1.4 million undocumented immigrants in Texas that year, it would have lost $17.7 billion in Gross State Product. Id. Far from harming Texas, undocumented immigrants provide a strong boost to its fiscal health.
27 http://dornsife.usc.edu/assets/sites/731/docs/chirla_v10_small.pdf. 28 http://www.coloradoimmigrant.org/downloads/TX%2520Study%25 20on%20Undocumented%2520Immigrants%20and%20Economy.pdf.
28

Case: 15-40238 Document: 00512994979 Page: 40 Date Filed: 04/06/2015

ii.

The Experience Of DACA Shows That The Benefits Of

DAPA, Unlike The States’ Illusory Harms, Will Be Real

The financial successes of DACA suggest that DAPA’s implementation will

have similarly tangible benefits. As of March 2014, 673,417 people have applied

for DACA and 553,197 have been approved. Gonzales et al., supra, at 2. Nearly

60 percent of DACA grantees have obtained a new job, 49 percent have opened a

new bank account, 21 percent obtained healthcare, and 45 percent have increased

their earnings. Id. at 3. DACA has allowed young people to enter mainstream

American life and start realizing their full potential.

DAPA itself is projected to bring robust economic benefits. By conservative

estimates, DAPA will raise the GDP by 0.4 percent over ten years. See The White

House Council of Economic Advisors, The Economic Effects of Administrative Action on Immigration, 6 (Nov. 2014).29 This would be the equivalent of adding

$90 billion in real GDP by 2024. Id. However, this benefit would not be confined

to the grantees. Id. Native-born workers would see their wages rise as well, and

the deficit would decrease by $25 billion over the same time frame. Id. at 12. The

most optimistic projections for DAPA’s effect on the economy state it will increase

the GDP by 0.9 percent in ten years and cut $60 billion from the deficit. Id.

29 https://www.whitehouse.gov/sites/default/files/docs/cea_2014_economic_ effects_of_immigration_executive_action.pdf.
29

Case: 15-40238 Document: 00512994979 Page: 41 Date Filed: 04/06/2015
By allowing undocumented workers to fully participate in the economy, many would also start contributing payroll taxes for the first time. See Patrick Oakford, Center for American Progress, Administrative Action on Immigration Reform: The Fiscal Benefits of Temporary Work Permits, 2 (Sep. 2014).30 This spike in payroll tax contributions would be realized in the first year of implementation. Id. at 12. All told, DAPA would add $41 billion over 10 years to Social Security with few initial costs. See Letter from Stephen C. Goss, Chief Actuary of the Social Security Administration, to Senator Ron Johnson, 2 (Feb. 2, 2015).31
The economic benefits of DAPA will not be limited to the federal government. In fact, states like Texas will receive substantial benefits that outweigh any asserted harm. Currently, Texas is home to some 594,000 DAPAeligible parents. Center for American Progress, Executive Action on Immigration Will Benefit Texas’s Economy (November 2014).32 Granting work authorization to this population would increase Texas’s tax revenues by $338 million, while on average allowing working DAPA recipients to take home close to an additional
30 https://cdn.americanprogress.org/wp-content/uploads/2014/09/ OakfordAdminRelief.pdf. 31 http://www.ssa.gov/OACT/solvency/BObama_20150202.pdf. 32 http://www.scribd.com/doc/248188359/Economic-Benefits-of-ExecutiveAction-for-Texas.
30

Case: 15-40238 Document: 00512994979 Page: 42 Date Filed: 04/06/2015

$1,900 each year. Id. On the whole, this additional income would likely be

returned to the economy fairly quickly, as undocumented immigrants, like most

workers employed in relatively low-wage jobs, are forced to spend much of their

earnings to make ends meet. Davidson, supra.

iii.

DAPA Will Also Bring Enormous Social Benefits To

American Families

In addition to directly impacting the legal presence of undocumented

immigrants themselves, DAPA will also hugely benefit those immigrants’ families,

including their U.S. citizen children. See Manuel Pastor, Jared Sanchez, and

Vanessa Carter, Center for the Study of Immigrant Integration, The Kids Aren’t

Alright – But They Could Be: The Impact of Deferred Action for Parents of

Americans and Lawful Permanent Residents (DAPA) on Children, 1 (March 2015) [hereinafter The Kids Aren’t Alright].33 By granting legal status to the parents of

American citizens and legal permanent residents, DAPA strengthens American

families and communities. Average grantees would see their earnings increase on

average by about 8.5 percent, leading to greater take-home pay to provide for their

citizen children. See Executive Action on Immigration Will Benefit Texas’s

Economy, supra. Around 6.3 million children have a DAPA eligible parent in their

household, and 5.5 million of those children are U.S. citizens. The Kids Aren’t

33 http://dornsife.usc.edu/assets/sites/731/docs/DAPA_Impact_on_Children_CSII_ Brief_Final_01.pdf.
31

Case: 15-40238 Document: 00512994979 Page: 43 Date Filed: 04/06/2015
Alright, supra, at 2. In California alone, DAPA could lift as many as 40,000 children above the poverty line. Id. at 4.
Additionally, DAPA will erase the constant stress and fear of having a family split apart by detention or deportation. In the first six months of 2011, 46,000 parents of U.S. citizens were deported. Joanna Dreby, Center for American Progress, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities: A View From the Ground 1 (Aug. 2012).34 Deportation devastates families and is particularly scarring for children, who are often placed in foster care or are raised by single parents, with a corresponding increase in poverty levels. Id. at 9–10. Nationwide, children in single parent homes are more than four times more likely to live in poverty than children with married parents. Id. at 9. And in 2012 alone, there were 5,100 children in foster care who could not be reunited with their families because a parent had been deported or detained. Id. at 10.
Moreover, even when their U.S. citizen children are eligible, undocumented parents are often reluctant to use available social services out of fear of having to disclose their immigration status. Id. at 17. Research shows that undocumented parents do not enroll in programs such as preschool and community health
34 https://www.americanprogress.org/wp-content/uploads/2012/08/ DrebyImmigrationFamiliesFINAL.pdf.
32

Case: 15-40238 Document: 00512994979 Page: 44 Date Filed: 04/06/2015
services. Id. Access to these programs at a young age leads to better educational and career outcomes later in life for these U.S. citizen children. Id.
The harms caused by this fear ripple out from the family across the larger community. Undocumented immigrants often are too scared to interact with police for fear of their immigration status being discovered. Id. at 21. They are less likely to report crimes or cooperate with investigations, which hinders efforts to keep our communities safe. Id. at 24. By mitigating that fear of detention or deportation, DAPA will strengthen the families of grantees and make communities safer for everyone.
CONCLUSION For the foregoing reasons, amici respectfully request that this Court reverse the order of the district court and dissolve the preliminary injunction.
33

Case: 15-40238 Document: 00512994979 Page: 45 Date Filed: 04/06/2015

Respectfully submitted,

By: /s/ Nina Perales

NINA PERALES MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 110 Broadway, Ste. 300 San Antonio, TX 78205 (210) 224-5476

ADAM P. KOHSWEENEY GABRIEL MARKOFF O’MELVENY & MYERS LLP 2 Embarcadero Center, 28th Floor San Francisco, CA 94111 (415) 984-8700

LINDA SMITH DLA PIPER LLP 2000 Avenue of the Stars, Ste. 400 Los Angeles, CA 90067 (310) 595-3038
Counsel for Amicus Curiae

34

Case: 15-40238 Document: 00512994979 Page: 46 Date Filed: 04/06/2015

CERTIFICATE OF SERVICE I hereby certify that on April 6, 2015, I electronically filed the foregoing with the Clerk of the Court for the U.S. Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I also certify that the following counsel for the parties were served by nextday FedEx and email:

Counsel for Plaintiffs-Appellees: Counsel for Defendants:

J. Campbell Barker Deputy Solicitor General Office of the Attorney General 209 W. 14th Street Austin, TX 78711-2548 cam.barker@texasattorneygeneral.com
Scott R. McIntosh Appellate Staff, Civil Division Department of Justice, Room 7259 950 Pennsylvania Avenue NW Washington, DC 20530 Scott.McIntosh@usdoj.gov
/s/ Nina Perales Nina Perales

35

Case: 15-40238 Document: 00512994979 Page: 47 Date Filed: 04/06/2015
CERTIFICATE OF COMPLIANCE 1. I certify that on April 6, 2015, this document was transmitted to the Clerk of the United States Court of Appeals for the Fifth Circuit via the Court’s electronic-document filing system. 2. I certify that (1) required privacy redactions have been made, 5th Cir. R. 25.2.13; (2) the electronic copy is an exact copy of the paper document, 5th Cir. R. 25.2.1; and (3) the electronic submission has been scanned with the most recent version of commercial anti-virus software and was reported free of viruses. 3. This motion complies with the page type volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B)(i) because it contains 6,986 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 4. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared using Microsoft Word 2010 in 14-point Times New Roman.
/s/ Nina Perales Nina Perales
36

 
 Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 1 of 75

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

__________________________________________

)

STATE OF TEXAS, et al.

)

)

Plaintiffs,

)

)

No. 1:14-CV-254

v.

)

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 2 of 75
TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF THE ARGUMENTS .................................................. 1 NATURE AND STAGE OF THE PROCEEDING........................................................................ 4 I. STATUTORY AND REGULATORY BACKGROUND.................................................. 4
A. The Executive Branch’s Discretion in Immigration Enforcement ......................... 4 B. The Executive Branch’s Longstanding Exercise of Its Immigration
Enforcement Discretion Through “Deferred Action”............................................. 7 II. PROCEDURAL BACKGROUND................................................................................... 11
A. DHS’s 2014 Guidance Challenged by Plaintiffs .................................................. 11 B. Plaintiffs’ Claims .................................................................................................. 12 STATEMENT OF THE ISSUES TO BE RULED ON BY THE COURT .................................. 12 ARGUMENT ................................................................................................................................ 13 I. THE COURT SHOULD DENY PLAINTIFFS’ MOTION AND DISMISS THIS ACTION FOR LACK OF SUBJECT-MATTER JURISDICTION BECAUSE PLAINTIFFS LACK STANDING ................................................................................... 13 A. Plaintiffs Have Failed to Demonstrate That They Will Suffer a Cognizable
Injury Traceable to the Deferred Action Guidance............................................... 15 i. Plaintiffs’ Conjecture about Costs Associated with the Presence of
Undocumented Aliens Is Not Cognizable..................................................16 ii. Plaintiffs Cannot Base Standing on Costs Triggered by State Law...........21 iii. Even Accepting Their Claims of Harm, Plaintiffs Have Not
Demonstrated an Injury to Their Own Interests, as Opposed to the Interests Shared by All Taxpayers .............................................................23 B. Plaintiffs Cannot Pursue This Litigation on Behalf of the Purported Interests of their Citizens ...................................................................................... 24 C. Prudential Considerations Further Compel Dismissal of Plaintiffs’ Generalized Policy Grievance in this Area of Unique Federal Control............... 27 II. PLAINTIFFS’ CLAIMS FAIL ON THE MERITS.......................................................... 30 A. Plaintiffs Cannot Bring an Independent Claim under the Take Care Clause.....................................................................................................................30
i

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 3 of 75
B. Deferred Action Is an Unreviewable Exercise of Enforcement Discretion .......... 31 i. Congress Has Not Limited DHS’s Longstanding Discretion to Grant Deferred Action .........................................................................................33 ii. DHS’s Tailored Guidance Faithfully Executes the Immigration Laws and Does Not “Abdicate” its “Statutory Responsibilities” ..............37
C. Plaintiffs’ APA Claims Lack Merit ...................................................................... 44 i. The Deferred Action Guidance Is Exempt From the Notice-AndComment Requirement of the APA…………….......................................44 ii. The Guidance Is Consistent with Congress’s Intent in Enacting the INA and Delegating to the Secretary Discretion in Enforcing Its Provisions ...................................................................................................47
III. PLAINTIFFS WILL NOT SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION ...................................................................................... 49
IV. GRANTING A PRELIMINARY INJUNCTION WOULD HARM DEFENDANTS AND THE PUBLIC INTEREST........................................................... 50 A. The Challenged Deferred Action Guidance Promotes CongressionallyMandated Public Safety and National Security Objectives .................................. 51 B. The Challenged Deferred Action Guidance Furthers Humanitarian and Other Interests. ...................................................................................................... 53 C. Enjoining the Challenged Deferred Action Guidance Would Significantly Undermine the Public Interest .............................................................................. 54 D. The Challenged Deferred Action Guidance and Exercises of Discretion Can Be Modified at Any Time.............................................................................. 55
CONCLUSION............................................................................................................................. 55
ii

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 4 of 75
TABLE OF AUTHORITIES
CASES
Abbott Labs. v. Gardner, 387 U.S. 136 (1967).................................................................................................................. 28
Adams v. Freedom Forge Corp., 204 F.3d 475 (3rd Cir. 2000) .................................................................................................... 50
Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) .................................................................................... 37, 38, 39
Al- Aulaqi v. Obama, 727 F.Supp.2d 1 (D.D.C. 2010) ................................................................................................ 48
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)............................................................................................................ 23, 24
Allen v. Wright, 468 U.S. 737 (1984)...................................................................................................... 15, 18, 50
Angelus Milling Co. v. Comm'r of Internal Revenue, 325 U.S. 293 (1945).................................................................................................................. 30
Apache Bend Apartments, LTD. v. United States, 987 F.2d 1174 (5th Cir. 1993) ............................................................................................ 28, 29
Aquifer Guardians v. Fed. Highway Admin., 779 F. Supp. 2d 542 (W.D. Tex. 2011)..................................................................................... 49
Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) .............................................................................................................. 24
Arizona v. United States, 104 F.3d 1095 (9th Cir. 1997) .................................................................................................. 33
Arizona v. United States, 132 S. Ct. 2492 (2012) ....................................................................................................... passim
Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................................. 17
Ass'n of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339 (D.C. Cir. 2002) .................................................................................................. 39
iii

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 5 of 75
Ass'n of Irritated Residents v. E.P.A., 494 F.3d 1027 (D.C. Cir. 2007) ................................................................................................ 40
Bartholomew v. United States, 740 F.2d 526 (7th Cir. 1984) .................................................................................................... 36
Bennett v. Spear, 520 U.S. 154 (1997)............................................................................................................ 27, 28
Califano v. Yamasaki, 442 U.S. 682 (1979).................................................................................................................. 50
California v. United States, 104 F.3d 1086 (9th Cir. 1987) .................................................................................................. 33
Catano v. Local Bd. No. 94 Selective Serv. Sys., 298 F. Supp. 1183 (E.D. Pa. 1969) ........................................................................................... 31
Chiles v. United States, 874 F. Supp. 1334 (S.D. Fla. 1994) .......................................................................................... 34
Chiles v. United States, 69 F.3d 1094 (11th Cir. 1995) ............................................................................................ 33, 34
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ....................................................................................................... passim
Claybrook v. Slater, 111 F.3d 904 (D.C. Cir. 1997) .................................................................................................. 34
Conoco, Inc. v. Skinner, 970 F.2d 1206 (3d Cir. 1992).................................................................................................... 36
Crane v. Napolitano, 2013 WL 1744422 (N.D. Tex. April 23, 2013) ........................................................................ 36
Crane v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013) ......................................................................... 14, 16, 18
Crowley Caribbean Transp. Inc., v. Pena, 37 F.3d 671 (D.C. Cir. 1994) .................................................................................................... 41
Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) ............................................................................................ 38, 39
iv

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 6 of 75
DaCosta v. Nixon, 55 F.R.D. 145 (E.D.N.Y. 1972) .......................................................................................... 30, 31
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).................................................................................................................. 14
Del. Dep't of Natural Res. & Envtl. Control v. FERC, 558 F.3d 575 (D.C. Cir. 2009) .................................................................................................. 26
Delta Found., Inc. v. United States, 303 F.3d 551 (5th Cir. 2002) .............................................................................................. 47, 48
Demore v. Kim, 538 U.S. 510 (2003).................................................................................................................... 5
Enter. Int'l v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464 (5th Cir. 1985) .................................................................................................... 13
Fed'n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .................................................................................................... 27
Florida v. Mellon, 273 U.S. 12 (1927).............................................................................................................. 18, 23
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).................................................................................................................. 30
Gulf Oil Corp. v. FEA, 391 F. Supp. 856 (W.D. Pa. 1975)............................................................................................ 55
Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) .................................................................................................. 15
Heckler v. Chaney, 470 U.S. 821 (1985)........................................................................................................... passim
Henderson v. Stalder, 287 F.3d 374 (5th Cir. 2002) .................................................................................................... 16
Hodges v. Abraham, 253 F. Supp. 2d 846 (D.S.C. 2002)........................................................................................... 54
Hotel & Rest. Employees Union, Local 25 v. Smith, 594 F. Supp. 502 (D.D.C. 1984) ............................................................................................... 41
v

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 7 of 75
Hotel & Rest. Employees Union, Local 25 v. Smith, 846 F.2d 1499 (D.C. Cir. 1988) ................................................................................................ 41
Illinois v. City of Chicago, 137 F.3d 474 (7th Cir.1998) ..................................................................................................... 22
INS v. Errico, 385 U.S. 214 (1966).................................................................................................................. 43
Interstate Natural Gas Ass'n of Am. v. FERC, 285 F.3d 18 (D.C. Cir. 2002) .................................................................................................... 45
Kalka v. Hawk, 215 F.3d 90 (D.C. Cir. 2000) .................................................................................................... 31
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357 (5th Cir. 2003) ................................................................................................ 3, 13
Kendall v. U.S. ex rel. Stokes, 37 U.S. 524 (1838).................................................................................................................... 30
Kenney v. Glickman, 96 F.3d 1118 (8th Cir. 1996) .................................................................................................... 41
Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394 (1976).................................................................................................................. 31
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................. 50
Lexmark Int'l Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ........................................................................................................ 27, 28
Lincoln v. Vigil, 508 U.S. 182 (1993).................................................................................................................. 45
Linda R.S. v. Richard D., 410 U.S. 614 (1973).................................................................................................................. 15
Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693 (5th Cir. 2011) .................................................................................................... 50
Little v. KPMG LLP, 575 F. 3d 533 (5th Cir. 2009) ................................................................................................... 50
vi

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 8 of 75
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988) .................................................................................................... 47
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................. 2, 14, 15, 17
Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).................................................................................................................. 31
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) .................................................................................................. 46
Massachusetts v. EPA, 549 U.S. 497 (2007)............................................................................................................ 25, 26
Massachusetts v. Mellon, 262 U.S. 447 (1923)............................................................................................................ 24, 25
Mathews v. Diaz, 426 U.S. 67 (1976).............................................................................................................. 22, 29
Medellin v. Texas, 552 U.S. 491 (2008).................................................................................................................. 30
Missouri v. Illinois, 180 U.S. 208 (1901).................................................................................................................. 24
Morton v. Ruiz, 415 U.S. 199 (1974).................................................................................................................. 46
Munaf v. Geren, 553 U.S. 674 (2008).................................................................................................................... 2
Nat'l Res. Def. Council, Inc. v. Pena, 972 F. Supp. 9 (D.D.C. 1997) ................................................................................................... 54
NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77 (D.C. Cir. 2012) .................................................................................................... 31
New Jersey v. Sargent, 269 U.S. 328 (1926).................................................................................................................. 25
New Jersey v. United States, 91 F.3d 463 (3d Cir. 1996)........................................................................................................ 33
vii

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 9 of 75
New York v. United States, 505 U.S. 144 (1992).................................................................................................................. 15
Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979) .................................................................................................... 46
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004).................................................................................................................... 49
Oregon v. Mitchell, 400 U.S. 112 (1970).................................................................................................................. 15
Padavan v. United States, 82 F.3d 23 (2d Cir. 1996).......................................................................................................... 33
Pennsylvania ex rel. Shapp v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) ...................................................................................... 17, 23, 29
People ex rel. Hartigan v. Cheney, 726 F. Supp. 219 (C.D. Ill. 1989) ........................................................................... 23, 24, 29, 30
People of Colorado ex rel. Suthers v. Gonzales, 558 F. Supp. 2d 1158 (D. Colo. 2007)................................................................................ 27, 33
Perales v. Casillas, 903 F.2d 1043 (5th Cir. 1990) .................................................................................................. 33
Plyler v. Doe, 457 U.S. 202 (1982)............................................................................................................ 22, 29
Prestage Farms, Inc. v. Bd. of Supervisors, 205 F.3d 265 (5th Cir. 2000) .................................................................................................... 14
Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592 (5th Cir. 1995) ................................................................................................ 45, 46
Public Citizen, Inc. v. EPA, 343 F.3d 449 (5th Cir. 2003) .................................................................................................... 33
Raines v. Byrd, 521 U.S. 811 (1997)............................................................................................................ 14, 15
Reno v. Am.-Arab Anti-Discrimination Comm., ("AAADC"), 525 U.S. 471 (1999)..................................................................................... passim
viii

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 10 of 75
Riverkeeper, Inc. v. Collins, 359 F.3d 156 (2d Cir. 2004)...................................................................................................... 38
Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ............................................................................................ 46, 47
Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) .................................................................................................. 48
Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006) .................................................................................................. 32
Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) .................................................................................................. 43
Sigmon v. Sw. Airlines Co., 110 F.3d 1200 (5th Cir. 1997) .................................................................................................. 36
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................................................................................................... 18
Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422 (2007).................................................................................................................. 19
Soon Bok Yoon v. INS, 538 F.2d 1211 (5th Cir. 1976) .................................................................................................. 47
Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595 (S.D. Tex. 1988) ........................................................................................... 51
Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986) .................................................................................................. 51
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).................................................................................................................... 13
Sturgeon v. Masica, 768 F.3d 1066 (9th Cir. 2014) .................................................................................................. 26
Tex. Sav. & Cmty. Bankers Ass'n v. Fed. Hous. Fin. Bd., 201 F.3d 551 (5th Cir. 2000) .................................................................................................... 45
Texas v. ICC, 258 U.S. 158 (1922).................................................................................................................. 25
ix

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 11 of 75
Texas v. United States, 106 F.3d 661 (5th Cir. 1997) ............................................................................................. passim
Texas v. United States, 497 F.3d 491 (5th Cir. 2007) .................................................................................................... 15
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).................................................................................................................. 35
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)................................................................................................................ 4, 5
United States ex. rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977) ............................................................................................... 8
United States v. 9/1 Kg. Containers, 854 F.2d 173 (7th Cir. 1988) .................................................................................................... 40
United States v. Cox, 342 F.2d 167 (5th Cir. 1965) .................................................................................................... 32
United States v. Escobar, No. 2:14-cr-00180-AJS (W.D. Pa. Dec. 16, 2014) ................................................................... 31
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982).................................................................................................................. 28
Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) .................................................................................................... 25
Warth v. Seldin, 422 U.S. 490 (1975).................................................................................................................. 28
Wayte v. U.S., 470 U.S. 598 (1985).................................................................................................................. 40
Webster v. Doe, 486 U.S. 592 (1988).................................................................................................................. 34
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).................................................................................................................. 51
Wilderness Soc'y v. Norton, 434 F.3d 584 (D.C. Cir. 2006) .................................................................................................. 45
x

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 12 of 75
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)................................................................................................................ 13, 49
Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th Cir. 1992) .................................................................................................. 28
Wyoming v. Oklahoma, 502 U.S. 437 (1992).................................................................................................................. 24
Wyoming v. U.S. Dep't of the Interior, 674 F.3d 1220 (10th Cir. 2012) .................................................................................... 17, 24, 26
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).................................................................................................................. 30
STATUTES
5 U.S.C. § 553......................................................................................................................... 13, 45 5 U.S.C. § 553(b)(3)(A) ................................................................................................................ 45 5 U.S.C. § 702............................................................................................................................... 48 5 U.S.C. § 706............................................................................................................................... 13 6 U.S.C. § 202(5) ...................................................................................................................... 5, 48 6 U.S.C. § 2205............................................................................................................................. 34 8 U.S.C. § 1103............................................................................................................................. 48 8 U.S.C. § 1103(a) ........................................................................................................................ 34 8 U.S.C. § 1103(a)(1)...................................................................................................................... 4 8 U.S.C. § 1103(a)(3)................................................................................................................ 4, 34 8 U.S.C. § 1151(b)(2)(A)(i) .................................................................................................... 37, 43 8 U.S.C. § 1154(a)(1)(D)(i)(II) ..................................................................................................... 10 8 U.S.C. § 1154(a)(1)(D)(i)(IV) ................................................................................................... 10 8 U.S.C. § 1158(b)(1)(A) ................................................................................................................ 5 8 U.S.C. § 1182(a)(9)(B)(i)(II) ..................................................................................................... 37 8 U.S.C. § 1182(d)(3) ................................................................................................................... 37 8 U.S.C. § 1182(d)(5)(A) ................................................................................................................ 5 8 U.S.C. § 1201(a) ........................................................................................................................ 37 8 U.S.C. § 1225................................................................................................................... 6, 37, 43 8 U.S.C. § 1225(b)(2) ................................................................................................................... 36
xi

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 13 of 75
8 U.S.C. § 1225(b)(2)(A) .............................................................................................................. 35 8 U.S.C. § 1226a ....................................................................................................................... 6, 43 8 U.S.C. § 1226(c) ................................................................................................................ 5, 6, 43 8 U.S.C. § 1227(d)(1) ................................................................................................................... 11 8 U.S.C. § 1227(d)(2) ................................................................................................................... 11 8 U.S.C. § 1229b............................................................................................................................. 5 8 U.S.C. § 1229b(b)(1) ................................................................................................................. 43 8 U.S.C. § 1252(g) .................................................................................................................. 10, 34 8 U.S.C. § 1255............................................................................................................................. 37 8 U.S.C. § 1324a(h)(3)........................................................................................................ 8, 11, 48 8 U.S.C. § 1621............................................................................................................................. 22 49 U.S.C. § 30301................................................................................................................... 11, 22
CONSTITUTION U.S. Const. art. II, § 3 ............................................................................................................. 13, 32
REGULATIONS 8 C.F.R. § 2.1 ................................................................................................................................ 34 8 C.F.R. § 274a.12 ........................................................................................................................ 48 8 C.F.R. § 274a.12(c)(14) ...................................................................................................... passim
OTHER AUTHORITIES Consolidated Appropriations Act, 2014,
Pub. L. No. 113-76, 128 Stat. 5, (2014).................................................................................... 43 DHS Appropriations Act 2010,
Pub. L. No. 111-83, 123 Stat. 2142 (2009)................................................................................. 6 Employment Authorization to Aliens in the United Sates,
46 Fed. Reg. 25079 (May 5, 1981) ..................................................................................... 43, 46 National Defense Authorization Act for Fiscal Year 2004,
Pub. L. No. 108-36, 117 Stat. 1392 (2004)............................................................................... 11
xii

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 14 of 75 REAL ID ACT of 2005,
Pub. L. No. 109-13, 119 Stat. 231 (2005)........................................................................... 11, 22 USA Patriot Act of 2001,
Pub. L. No. 107-56, 115 Stat. 272 (2001)................................................................................. 11 Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses,
43 Fed. Reg. 2776 (Jan. 19, 1978) .............................................................................................. 8 Kristi Lundstrom, The Unintended Effects of the Three- and Ten-Year Unlawful Presence Bars,
76 Law & Contemp. Probs., 389 (2013) ................................................................................... 44 H.R. Rep. No. 111-157 (2009).................................................................................................. 7, 40 H.R. Rep. No. 85-1199 (1957)...................................................................................................... 43
xiii

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 15 of 75

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 16 of 75

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 17 of 75

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 18 of 75

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 19 of 75
INTRODUCTION AND SUMMARY OF THE ARGUMENTS The Constitution and Congress have vested the Executive Branch, and the Secretary of Homeland Security in particular, with broad discretion over the enforcement of federal immigration law—including determining whether and when to remove (or not remove) particular aliens. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). On November 20, 2014, the Secretary issued a series of integrated directives pursuant to his authority under the Immigration and Nationality Act (“INA”) and the Homeland Security Act of 2002 to establish Department of Homeland Security (“DHS” or “Department”) wide enforcement priorities that emphasize national security, border security, and public safety. These priorities reflect DHS’s need to adopt coordinated measures to further its enforcement efforts in light of limited resources. They are based on statutory obligations and congressional priorities, as well as humanitarian factors embodied in our immigration laws. Integral to these initiatives is a DHS guidance memorandum calling for the case-by-case exercise of deferred action—a long-established form of prosecutorial discretion—for certain low-priority aliens: those present in the United States since before 2010 and who either entered as children or are the parents of U.S. citizens or Lawful Permanent Residents (“LPRs”). Designation of these two categories of aliens as potentially eligible for deferred action serves two related purposes: (1) enhancing DHS’s capacity to focus its limited resources on threats to national security, border security, and public safety, and (2) reducing the humanitarian cost of enforcement efforts when doing so is consistent with these priorities. Through the present lawsuit, twenty States, four governors, and the Attorney General of Michigan seek to overturn and effectively commandeer federal enforcement prerogatives, including through the injunction of the deferred action policies announced on November 20. This effort cannot be reconciled with the Executive’s well-recognized discretionary authority under the immigration laws to prioritize enforcement resources, including through grants of
-1-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 20 of 75
deferred action, or with the practical impossibility and humanitarian cost of removing every such alien regardless of consequence. In any event, Plaintiffs’ case fails at the threshold, because Plaintiffs lack standing. Thus, as another federal district court ruled just yesterday in a similar challenge, this Court should dismiss this action for lack of jurisdiction and deny the motion for a preliminary injunction. See Arpaio v. Obama, No. 14-cv-1966 (D.D.C. Dec. 23, 2014) (Ex. 1).
1. As an initial matter, this Court should deny the motion and dismiss this action for lack of subject matter jurisdiction because Plaintiffs lack Article III standing. See Munaf v. Geren, 553 U.S. 674, 692 (2008) (finding it appropriate to “terminate the litigation” at the preliminary injunction stage if the “Government is entitled to judgment as a matter of law”). Plaintiffs themselves are not subject to the DHS deferred action guidance, and their claim that they nevertheless will be harmed by the guidance rests on multiple layers of speculation about the effect of the guidance on third parties not before the Court. These allegations cannot support jurisdiction. Nothing about Plaintiffs’ status as States (or state executive officials) lessens the showing required to establish an Article III injury-in-fact here. At its core, Plaintiffs’ suit is a generalized disagreement about the scope of the prosecutorial discretion of the Executive Branch of the Federal Government, in the exercise of exclusive federal authority over immigration. “[A]n injury amounting only to the alleged violation of a right to have the Government act in accordance with law [is] not judicially cognizable.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 575 (1992).
2. Even if this Court had jurisdiction, it should deny Plaintiffs’ motion for the extraordinary relief of a preliminary injunction. Plaintiffs must “‘clearly carr[y] the burden of persuasion’” for each element of a preliminary injunction. Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003). Plaintiffs fail
-2-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 21 of 75
to meet each element: they cannot show irreparable harm, nor a likelihood of success on the merits, nor that the balancing of the equities and the public interest favor issuance of an injunction.
a. For the same reasons that Plaintiffs lack any injury-in-fact sufficient to confer Article III standing, they cannot meet the heightened standard of irreparable harm required to obtain a preliminary injunction. Their generalized complaints of harm are speculative, conclusory, and therefore inadequate.
b. Plaintiffs also cannot demonstrate the requisite likelihood of success on the merits. At the outset, their lack of Article III standing is fatal to their likelihood of success. Beyond that, Plaintiffs’ claims fail on the merits. First, contrary to Plaintiffs’ claim, there is no independent cause of action under the Take Care Clause. Second, Plaintiffs’ Administrative Procedure Act (“APA”) challenge to the DHS guidance conflicts with the Executive’s longstanding and well-recognized authority to exercise prosecutorial discretion in the immigration context. Indeed, the Supreme Court has made clear that the Federal Government’s broad discretion in immigration enforcement includes the authority to “decide whether it makes sense to pursue removal at all,” including because of “immediate human concerns.” See Arizona, 132 S. Ct. at 2499. The Supreme Court has also recognized the government’s “regular practice” of granting “deferred action” as an exercise of administrative discretion on the basis of “humanitarian reasons or simply for [the administration’s] own convenience.” Reno v. Am.-Arab Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 483-84 (1999). The DHS guidance at issue here, which involves its prioritization of immigration enforcement efforts and the consideration of humanitarian factors, is thus committed to agency discretion by law and not subject to judicial review. See Heckler v. Chaney, 470 U.S. 821 (1985). Third, even if the Court
-3-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 22 of 75
could consider the merits of Plaintiffs’ procedural and substantive challenges under the APA, they would fare no better. The DHS guidance concerning deferred action is a general statement of policy statutorily exempt from the APA’s notice-and-comment requirement and was issued under the Secretary’s authority to administer and enforce the Nation’s immigration laws.
c. Finally, the balance of equities and the public interest weigh heavily against granting a preliminary injunction. An injunction would subvert the Executive’s judgment about how best to protect border security, national security, and public safety, including its ordering of priorities to focus on the removal of aliens affecting those concerns. An injunction would also impose significant humanitarian costs and interfere with the Secretary’s established authority to take into account humanitarian consequences in exercising his power to consider deferred action. See Arizona, 132 S. Ct. at 2499; AAADC, 525 U.S. at 483-84.
NATURE AND STAGE OF THE PROCEEDING I. Statutory and Regulatory Background
A. The Executive Branch’s Discretion in Immigration Enforcement In the INA, Congress has charged the Secretary of Homeland Security with the administration and enforcement of the immigration laws. 8 U.S.C. § 1103(a)(1). In doing so, it has vested the Secretary with discretion over immigration matters, authorizing him to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the statute. Id. § 1103(a)(3) (emphasis added). That broad vesting of discretionary authority reflects the longstanding recognition that immigration is “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). The Secretary’s discretion is at its apex when the removal of aliens is at issue. The INA
-4-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 23 of 75
expressly authorizes immigration officials to grant aliens certain forms of discretionary relief from removal, including parole, 8 U.S.C. § 1182(d)(5)(A); asylum, id. § 1158(b)(1)(A); and cancellation of removal, id. § 1229b. Indeed, “[t]he broad discretion exercised by immigration officials” is a “principal feature of the removal system.” Arizona, 132 S. Ct. at 2499; see also AAADC, 525 U.S. 471, 483-84. At each stage of the removal process—“commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders”—“the Executive has discretion to abandon the endeavor.” AAADC, 525 U.S. at 483-84.1 Such broad authority and discretion over immigration matters is further supported by the Executive Branch’s inherent power over the admissibility and exclusion of aliens. See Knauff, 338 U.S. at 542-43.
Recognizing that the immigration statutes it enacted vest the Executive Branch with broad enforcement discretion, and recognizing the Executive Branch’s inherent power and need for flexibility in light of limited resources for immigration enforcement, Congress has directed the Secretary to establish “national immigration enforcement policies and 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)). These priorities are essential: Congress has appropriated sufficient resources for DHS to pursue only a small fraction of the violations it confronts. In particular, recent funding provided to DHS’s U.S. Immigration and Customs Enforcement (“ICE”), the component of DHS charged with enforcing the interior, has allowed the agency to annually remove only a small proportion of the estimated 11.3 million undocumented aliens living in the United States. See Mem. Op. from Karl Thompson, Principal Dep’y Ass’t Attorney General, Office of Legal Counsel, for the Sec’y of Homeland Security and the Counsel to the President: DHS’s Authority
1 In rare circumstances, Congress has decided to limit the Executive’s discretion. In those circumstances, in contrast to the present case, Congress has done so expressly. See 8 U.S.C. 1226(c); Demore v. Kim, 538 U.S. 510 (2003).
-5-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 24 of 75
to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 9 (Nov. 19, 2014) (“OLC Op.”) (Ex. 2).2 Such significant constraints require DHS to “ensure that [] its limited resources [are] devoted to the pursuit of” its highest priorities: “national security, border security, and public safety.” Mem. from Jeh Charles Johnson, Sec’y of Homeland Security, to Thomas S. Winkowski, Acting Director, ICE, et al., Policies for the Apprehension, Detention and Removal of Undocumented Immigrants at 2 (Nov. 20, 2014) (“Prioritization Guidance”) (Ex. 5).
DHS’s prioritization, as reflected in the guidance challenged in this case, is consistent with and reflected in the INA itself, which emphasizes the detention and removal of recent border crossers, criminal aliens, and threats to national security. See, e.g., 8 U.S.C. § 1225 (establishing a special “expedited removal” process for aliens apprehended at the border); id. § 1226(c) (providing mandatory detention for aliens convicted of certain crimes); id. § 1226a (providing mandatory detention of suspected terrorists). Congress has explicitly directed DHS to prioritize “the identification and removal of aliens convicted of a crime by the severity of the crime,” DHS Appropriations Act 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009) (enacted as amended), and to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer,” H.R. Rep. No. 111-157, at 8 (2009). At the same time, it is well-settled that it is appropriate for the
2 In light of the amount of annual appropriations and the removal priorities dictated by Congress, ICE has removed and returned between approximately 300,000 and 400,000 aliens a year. See DHS Immigration Enforcement Actions: 2013 Annual Report, at 5 (Table 6; total removed), 7 (Table 10; total returned) (Ex. 3). Many of these individuals, however, were apprehended attempting to unlawfully enter the United States rather than in the interior. See ERO Report, 2014, at 7 (noting that more than two-thirds of those ICE removed were apprehended at the border) (Ex. 4). These numbers do not include those removals and returns conducted by U.S. Customs and Border Protection (“CBP”), whose responsibilities relate solely to the border. See DHS Immigration Enforcement Actions: 2013 at 8; see also id. at 5 (Table 6), p. 7 (Table 10). Unlike CBP, ICE’s responsibilities include removals from the interior and removals at the border, particularly of nationals of countries not contiguous to the United States.
-6-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 25 of 75
Executive Branch to consider, when exercising its discretion consistent with these priorities, the humanitarian and societal impacts of removal. “Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.” Arizona, 132 S. Ct. at 2499.
B. The Executive Branch’s Longstanding Exercise of Its Immigration Enforcement Discretion Through “Deferred Action”
In order to focus limited resources on higher priority aliens, the Executive Branch has long exercised prosecutorial discretion in the immigration context, including through “deferred action” with respect to certain classes of aliens. See AAADC, 525 U.S. at 483-84 (describing “deferred action” as a “regular practice . . . of exercising . . . discretion”). Deferred action may also further other public interests beyond preserving resources and offering humanitarian relief, such as advancing foreign policy objectives, fostering economic development, and promoting administrative efficiency. Cf. Arizona, 132 S. Ct. at 2499. It does so by allowing DHS to defer, for a limited period of time subject to renewal, the removal of aliens who are low priorities for removal. See U.S. Citizenship and Immigration Services (“USCIS”), Deferred Action for Childhood Arrivals (DACA) Toolkit: Resources for Community Partners at 16 (2014) (“DACA Toolkit”) (Ex. 6). Deferred action does not confer legal immigration status or foreclose an alien’s removal, as it is both time-limited and revocable at any time. See id. Nor does it provide an independent path to LPR status or U.S. citizenship. See, e.g., Mem. from Jeh Charles Johnson, Sec’y of Homeland Security, to León Rodriguez, Director, USCIS, et al., 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 at 2 (Nov. 20, 2014) (“2014 Deferred Action Guidance”) (Ex. 7) (“Deferred action does not confer any form of legal status in this country, much less citizenship.”). Longstanding
-7-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 26 of 75
regulations, based on authority granted to the Secretary and previously to the Attorney General, 8
U.S.C. § 1324a(h)(3), provide that an alien subject to deferred action may be eligible for
employment authorization. 8 C.F.R. § 274a.12(c)(14). This ensures that when the DHS decides
not to remove an alien for a period of time, the alien is not left during that time to a choice
between seeking public support or working illegally.
For decades, the Executive Branch has implemented deferred action and other forms of
prosecutorial discretion both for individual aliens and for various classes of aliens. For example,
during varying periods from 1956 to 1990, discretionary mechanisms similar to deferred action
were used to defer enforcement against aliens who were beneficiaries of certain approved visa
petitions,3 nurses who were eligible for H-1 visas,4 nationals of designated foreign states,5 and
ineligible spouses and children of aliens who had been granted legal status under the
Immigration Reform and Control Act of 1986.6 See OLC Op. at 14. Since the 1990s, deferred
action has been applied to additional classes of aliens, such as battered aliens who appear to
qualify for relief under the Violence Against Women Act of 1994 (“VAWA”),7 T and U visa
applicants,8 foreign students affected by Hurricane Katrina,9 and widows and widowers of U.S.
3 See United States ex. rel. Parco v. Morris, 426 F. Supp. 976, 979-80 (E.D. Pa. 1977). 4 See Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978). 5 See Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Mem., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 20-23 (July 13, 2012) (Ex. 8); Moore, Charlotte J., Cong. Research Serv., Review of U.S. Refugee Resettlement Programs and Policies at 9, 12-14 (1980) (excerpt as Ex. 9). 6 Mem. from Gene McNary, Commissioner, INS, to Regional Commissioners, INS, Family Fairness: Guidelines for Voluntary Departure under 8 C.F.R. 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990) (Ex. 10). 7 Mem. from Paul W. Virtue, Acting Executive Associate Commissioner, INS, to Regional Directors et al., Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997) (Ex. 11). 8 Mem. from Michael D. Cronin, Acting Executive Associate Commissioner, INS, to Michael A. Pearson, Executive Associate Commissioner, INS, Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2 –“T” and “U” Nonimmigrant Visas at 2 (Aug. 30, 2001) (Ex. 12).
-8-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 27 of 75
citizens.10 See id. at 15-17.11 And beginning in 2012, deferred action has been available to
aliens brought to the United States as children who meet certain guidelines, including having
continuously resided in the United States since June 15, 2007, under what has been referred to as
Deferred Action for Childhood Arrivals (“DACA”). See Mem. from Janet Napolitano, Sec’y of
Homeland Security, to David V. Aguilar, Acting Commissioner, CBP, et al., Exercising
Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children
at 1 (June 15, 2012) (“2012 DACA Memo”) (Ex. 19).
The Supreme Court has specifically acknowledged the Executive’s prosecutorial
discretion in immigration, including through deferred action. See AAADC, 525 U.S. at 483-84
(“At each stage [of the removal process] the Executive has discretion to abandon the endeavor,
and at the time IIRIRA was enacted [in 1996] the INS had been 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.”). Moreover, the Court held in AAADC that 8 U.S.C.
§ 1252(g) renders unreviewable the Executive’s decision not to exercise discretion in favor of
granting deferred action to an alien. Id. at 483-84, 486-87. The Supreme Court recently
9 USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005) (Ex. 13). 10 Mem. from Donald Neufeld, Acting Associate Director, USCIS, to Field Leadership, USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009) (Ex. 14). 11 See also Sam Bernsen, INS General Counsel, Legal Op. Regarding Service Exercise of Prosecutorial Discretion at 2 (July 15, 1976) (Ex. 15) (noting the Executive’s “inherent authority” to exercise prosecutorial discretion); Mem. from Doris Meissner, INS Comm’r, to INS Regional Directors, Exercising Prosecutorial Discretion at 2 (Nov. 17, 2000) (Ex. 16) (directing, following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), that prosecutorial discretion “applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also to a broad range of other discretionary enforcement decisions,” such as “granting deferred action or staying a final order”); Mem. from William J. Howard, Principal Legal Advisor, ICE, to Office of the Principal Legal Advisor (OPLA) Chief Counsel, ICE, Prosecutorial Discretion at 2 (Oct. 24, 2005) (Ex. 17) (recognizing that the “universe of opportunities to exercise prosecutorial discretion is large,” including “in the pre-filing stage”); Mem. from Julie L. Myers, Ass’t Sec’y, ICE, to Field Office Directors, ICE, Prosecutorial and Custody Discretion (Nov. 7, 2007) (Ex. 18) (recommending exercise of prosecutorial discretion for nursing mothers).
-9-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 28 of 75
reaffirmed the Executive Branch’s broad authority over whether to initiate or defer removal proceedings. See Arizona, 132 S. Ct. at 2499.
Congress also has approved the practice of deferred action. As noted, Congress enacted 8 U.S.C. § 1252(g) against the backdrop of the Executive’s longstanding exercise of deferred action and to protect that exercise of discretion from challenge by particular aliens denied that relief. That action by Congress reflects a general ratification of the practice of deferred action as a means of exercising enforcement discretion. In addition, Congress expanded the Executive’s VAWA deferred action program in 2000 by making eligible for “deferred action and work authorization” children who could no longer self-petition under VAWA because they were over the age of 21. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106386, § 1503(d)(2), 114 Stat. 1464, 1522 (codified at 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV)). Similarly, in 2008, as part of legislation authorizing DHS to grant “an administrative stay of a final order of removal” to any individual who could make a prima facie showing of eligibility for a T or U visa, Congress stated that “[t]he denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for . . . deferred action.” 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), (d)(2)).12 Congress also has specified classes of aliens who should be made eligible for deferred action, such as certain family members of LPRs who were killed on September 11, 2001, see USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361, and certain family members of certain U.S. citizens killed in combat, see Nat’l Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 12 In the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 202(c)(2)(B)(viii),119 Stat. 231, 302 (49 U.S.C. § 30301 note), Congress specified that proof of “approved deferred action status” constituted evidence of lawful status for the sole purpose of authorizing (but not requiring) states to issue driver’s licenses to individual recipients.
-10-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 29 of 75
108-136, § 1703(c)-(d), 117 Stat. 1392, 1694. II. Procedural Background A. DHS’s 2014 Guidance Challenged by Plaintiffs On November 20, 2014, the Secretary issued a series of memoranda as part of a
comprehensive initiative to establish Department-wide enforcement priorities that further focus DHS resources on national security, border security, and public safety. One of those memoranda revised three aspects of DACA and provided deferred action guidelines for certain other aliens who are a low priority for removal. See 2014 Deferred Action Guidance. First, with regard to DACA, the memorandum removed the existing age cap of 31 so that individuals could request deferred action under DACA without regard to their current age, as long as they entered the United States before the age of 16. Id. at 3. Second, it extended the period of DACA from two to three years. Id. Third, it adjusted the relevant date by which an individual must have been in the United States from June 15, 2007 to January 1, 2010. Id. at 4. USCIS was instructed to begin accepting requests under the revised DACA guidelines no later than 90 days after the date the guidance was issued, id., which is February 18, 2015.
The November 2014 Deferred Action Guidance also established separate guidelines under which certain parents of U.S. citizens or LPRs will be able to request deferred action (“DAPA”). To be considered for deferred action under DAPA, an individual must: (1) have, on November 20, 2014, a son or daughter who is a U.S. citizen or LPR; (2) have continuously resided in the United States since before January 1, 2010; (3) have been physically present in the United States on November 20, 2014, and at the time of making a request for deferred action with USCIS; (4) have had no lawful status on November 20, 2014; (5) not fall within one of the categories of enforcement priorities set forth in another memorandum issued that same day; and
-11-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 30 of 75
(6) present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate. Id. at 4. In addition, applicants are required to submit fingerprints and personal identifying information to USCIS for a background check. Id. USCIS was instructed to begin accepting requests from individuals under the DAPA guidelines no later than 180 days after the date of the policy’s announcement, id. at 5, which is May 19, 2015.
As with DACA, DAPA requests will be assessed individually by immigration officers, who will determine whether to exercise discretion “on a case-by-case basis” considering all relevant factors. Id. at 4. Also, as with DACA, deferred action under DAPA does not confer any “substantive right, immigration status or pathway to citizenship,” id. at 5, and it may be revoked at any time in the agency’s discretion, id. at 2. Individuals who request deferred action under DAPA may also be eligible for work authorization for the deferred action period of 3 years, pursuant to longstanding regulations and statutory authority. Id. at 4-5; see 8 U.S.C. § 1324a(h)(3); 8 C.F.R. § 274a.12(c)(14).
B. Plaintiffs’ Claims On December 3, 2014, Plaintiffs filed this suit, challenging DHS’s authority to issue the November 20, 2014 Deferred Action Guidance and seeking declaratory and injunctive relief. (ECF No. 1, 14). Plaintiffs’ Complaint includes three causes of action: that the guidance (1) violates the Take Care Clause of the Constitution, art. II, § 3, Cl. 5; (2) fails to comply with the APA’s notice-and-comment requirement, see 5 U.S.C. § 553; and (3) violates the APA’s substantive requirements, see 5 U.S.C. § 706. Plaintiffs moved for a preliminary injunction on all counts on December 4, 2014. See Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mot.”) (ECF No. 5).
STATEMENT OF THE ISSUES TO BE RULED ON BY THE COURT Plaintiffs seek to preliminarily enjoin the 2014 Deferred Action Guidance issued by the Secretary of Homeland Security concerning the exercise of prosecutorial discretion in the form
-12-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 31 of 75
of deferred action. To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) that a balance of equities tips in its favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “[A] preliminary injunction is ‘an extraordinary remedy’ which should only be granted if the party seeking the injunction has ‘clearly carried the burden of persuasion’ on all four requirements.” Karaha Bodas Co., 335 F.3d at 363. “[I]f the movant does not succeed in carrying its burden on any one of the four prerequisites, a preliminary injunction may not issue.” Enter. Int’l v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985).
ARGUMENT I. THE COURT SHOULD DENY PLAINTIFFS’ MOTION AND DISMISS THIS
ACTION FOR LACK OF SUBJECT-MATTER JURISDICTION BECAUSE PLAINTIFFS LACK STANDING The Court should deny Plaintiffs’ motion for preliminary injunction without reaching the merits because Plaintiffs lack Article III standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). The Court should further dismiss Plaintiffs’ claims for lack of subject matter jurisdiction, consistent with the decision by a federal district court yesterday in a local official’s challenge to the 2014 Deferred Action Guidance, see Arpaio, Slip Op. at 3, and with the decision of the only other court to have addressed a state’s standing to challenge Defendants’ deferred action policies. See Crane v. Napolitano, 920 F. Supp. 2d 724, 745-46 (N.D. Tex. 2013) (concluding that Mississippi lacked standing to challenge the 2012 DACA Memo), appeal pending, No. 14-10049 (5th Cir.) (oral argument to be heard Feb. 3, 2015); cf. Prestage Farms, Inc. v. Bd. of Supervisors of Noxubee Cnty., 205 F.3d 265, 267 (5th Cir. 2000) (vacating preliminary injunction and dismissing case for lack of standing). Federal courts sit to decide cases and controversies, not to resolve disagreements about
-13-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 32 of 75
policy or politics. Indeed, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (citation and internal quotation omitted). Article III standing “is an essential and unchanging part of the caseor-controversy requirement.” Lujan, 504 U.S. at 560. To establish standing, a plaintiff bears the burden of demonstrating, by competent proof, that it suffers an injury that is (1) “concrete, particularized, and actual or imminent”; (2) “fairly traceable to the challenged action”; and (3) “redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks and citation omitted). Where standing is premised on a projected future injury, Article III demands not merely a possibility of injury, but a showing that the threatened future injury is “certainly impending.” Id. at 1147.
The standing inquiry is “especially rigorous” where, as here, a plaintiff asks a federal court “to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997). Because standing requirements serve an “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere,” courts must take care to “put aside the natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and efficiency.” Id. at 820.
Plaintiffs have failed to demonstrate that any state, let alone every state joined in this action, has standing to seek to enjoin the 2014 Deferred Action Guidance. Cf. Allen v. Wright, 468 U.S. 737, 752 (1984) (standing limitations are designed “to ascertain whether the particular
-14-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 33 of 75
plaintiff is entitled to an adjudication of the particular claims asserted”) (emphasis added).13 A. Plaintiffs Have Failed to Demonstrate That They Will Suffer a Cognizable Injury Traceable to the Deferred Action Guidance
The challenged guidance does not itself command the States to take, or refrain from taking, any action. Accordingly, this case is unlike the most common situation in which states have been found to have standing to challenge federal law. See, e.g., New York v. United States, 505 U.S. 144 (1992); Oregon v. Mitchell, 400 U.S. 112 (1970); Texas v. United States, 497 F.3d 491, 496-97 (5th Cir. 2007) (Texas “suffered the injury of being compelled to participate in an invalid administrative process”). Instead, Plaintiffs complain of injury “from the government’s allegedly unlawful regulation (or lack of regulation) of someone else,” making standing “substantially more difficult to establish.” See Lujan, 504 U.S. at 562. Furthermore, allowing Plaintiffs to challenge the DHS prosecutorial discretion guidance to which they are not themselves subject would conflict with the fundamental principle that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 804-807 (D.C. Cir. 1987) (applying principle to immigration context); cf. Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring) (“As a general proposition, a plaintiff who complains merely that a benefit has been unconstitutionally granted to others is asserting only a ‘generalized grievance’ that does not allow the plaintiff standing”). States have no more of a cognizable interest in the Federal Government’s exercise of prosecutorial discretion under the INA than do their citizens.
Plaintiffs nonetheless seek to challenge the Secretary’s exercise of discretion based on 13 For all but two states – Texas and Wisconsin – Plaintiffs make no specific attempt to demonstrate any injury. Although no Plaintiff here has standing for the reasons discussed herein, nearly all Plaintiffs should be summarily dismissed for not even attempting to establish their standing.
-15-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 34 of 75
conjecture about the indirect or incidental consequences that allegedly will flow from the 2014 Deferred Action Guidance. Even assuming that a citizen or state could overcome the constraint on standing articulated in Linda R.S., Plaintiffs’ allegations fail to demonstrate that the challenged policy—which will allow DHS to increase its focus on border security and on criminal and dangerous aliens—will result in an injury for any of the States, much less that an injury is “certainly impending.” Clapper, 133 S. Ct. at 1147; see also Arpaio, Slip Op. at 20 (rejecting “such a broad interpretation of the injury requirement” that “would permit nearly all state officials to challenge a host of Federal laws simply because they disagree with how many— or how few—Federal resources are brought to bear on local interests”).
i. Plaintiffs’ Conjecture about Costs Associated with the Presence of Undocumented Aliens Is Not Cognizable
Plaintiffs’ first theory of harm is that the 2014 Deferred Action Guidance will increase the presence of undocumented aliens in the Plaintiff States, forcing them to spend “substantial resources” on law enforcement, emergency healthcare, and other public welfare services that are available under state or federal law to indigent individuals (including any undocumented aliens present within a state). Am. Compl. ¶¶ 61-65 (ECF No. 14). The district court in Crane already correctly rejected, as conjectural, a similar theory of harm offered by the State of Mississippi (a plaintiff in this case) in its challenge to the 2012 DACA Memo. Crane, 920 F. Supp. 2d at 745 (“[T]he Court finds that Mississippi’s asserted fiscal injury is purely speculative because there is no concrete evidence that the costs associated with the presence of illegal aliens in the state of Mississippi have increased or will increase as a result of the [DACA] Directive.”). Conclusory allegations that a state’s budget or tax revenues will be harmed in some general way by a federal
-16-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 35 of 75
policy are not sufficient to support standing.14 See, e.g., Pennsylvania ex rel. Shapp v. Kleppe,
533 F.2d 668, 672-73 (D.C. Cir. 1976); Wyoming v. U.S. Dep’t of the Interior, 674 F.3d 1220,
1234 (10th Cir. 2012); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (courts need not
accept “naked assertion[s] devoid of further factual enhancement”); Lujan, 504 U.S. at 562
(noting heightened burden to adduce facts where harm is tied to third-party actions).
Plaintiffs’ conjecture about increased spending on public welfare and emergency services
also runs counter to the terms of the DACA and DAPA initiatives. To receive DACA or DAPA
under the 2014 Deferred Action Guidance, individuals must already have been present in the
country for at least five years. Accordingly, any temporary deferral of deportation under the
guidance would not be expected to increase demand for services provided to undocumented
aliens, because the affected individuals are already present. See Wyoming, 674 F.3d at 1234
(rejecting standing where state would incur cost regardless of federal policy). Indeed, DACA
and DAPA may logically be expected to decrease covered aliens’ need to rely on state social welfare programs,15 by facilitating recipients’ ability (pursuant to existing regulations) to work
lawfully during the period of deferred action. If anything, deferred action will have a positive
14 Although Plaintiffs have failed to demonstrate a concrete injury as a result of any action by Defendants, the present inquiry before the Court is not whether an alleged harm is fairly traceable to the conduct of Defendants as a general matter, but rather whether it is “fairly traceable to the challenged action,” i.e., the 2014 Deferred Action Guidance. See Clapper, 133 S. Ct. at 1147 (emphasis added). Accordingly, Plaintiffs’ general allegations of harm from what they contend is Defendants’ “lax attitude toward the immigration laws,” Am. Compl. ¶ 62, or from the “immigration policies of the federal government” in general, id. ¶ 37, are wholly irrelevant here. 15 Plaintiffs have separately failed to demonstrate redressability – another essential element of Article III standing – because enjoining the 2014 Deferred Action Guidance would not redress any alleged harms caused by the presence of eligible individuals, in light of existing limitations on DHS’s removal resources and the fact an injunction would not compel the removal of any individual. See Crane, 920 F. Supp. 2d at 745 (“Even if it is true that many illegal immigrants are permitted to remain in the state of Mississippi pursuant to the Directive and the Morton Memorandum, Plaintiffs have offered only conclusory allegations that those illegal aliens who are permitted to remain would otherwise have been removed.”). An injunction would prevent any such aliens from working legally, effectively forcing them instead to work illegally or seek public support.
-17-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 36 of 75
economic effect,16 but, in any event, Plaintiffs have wholly failed to support their contention that
the 2014 Deferred Action Guidance will be a net drain on state resources.
Plaintiffs also speculate that the challenged policy will encourage a “new wave” of
undocumented aliens to cross the border illegally—even though all aliens who arrive in the
future are categorically foreclosed from receiving deferred action under DACA or DAPA. Am.
Compl. ¶¶ 61-65. The Supreme Court has repeatedly rejected similar attempts to base standing
on a theory that a federal policy somehow “encourages” complained-of third-party conduct. See,
e.g., Florida v. Mellon, 273 U.S. 12, 18 (1927) (rejecting as “remote and indirect” Florida’s
theory that challenged law would induce citizens to remove property from the State and thereby
diminish its revenues); Allen, 468 U.S. at 758-59; Simon v. E. Ky. Welfare Rights Org., 426 U.S.
26, 41-42 (1976). Another court in this District likewise concluded that alleged costs associated
with the presence of undocumented aliens in the state did not give Texas standing to challenge
federal immigration enforcement. See Texas v. United States, No. B-94-228, at *7 (S.D. Tex.
Aug. 7, 1995) (Ex. 22) (agreeing with federal defendants that the decision to cross the border
illegally results from the “conscious actions of aliens” rather than the actions or inactions of the U.S. Government), aff’d on other grounds, 106 F.3d 661 (5th Cir. 1997).17
Plaintiffs’ speculation that the 2014 Deferred Action Guidance will increase illegal 16 See President’s Council of Economic Advisors, The Economic Effects of Administrative Action on Immigration (Nov. 2014) (Ex. 20) (estimating that the 2014 Deferred Action Guidance may, among other things, result in significant growth for economic measures); Raul Hinojosa-Ojeda and Maksim Wynn, From the Shadows to the Mainstream: Estimating the Economic Impact of Presidential Administrative Action and Comprehensive Immigration Reform (Nov. 2014) (Ex. 21) (concluding that DACA “has had and will continue to have a positive economic impact on its recipients as well as the economy as a whole”). 17 On appeal, the Fifth Circuit “assum[ed], without deciding,” that Texas had standing and proceeded to reject its claim on other non-justiciability grounds, including that an “agency’s decision not to take enforcement actions is unreviewable under the Administrative Procedure Act.” 106 F.3d at 664 n.2, 667; cf. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (reiterating principle that courts generally may not reach merits of dispute before determining existence of jurisdiction but have discretion in the sequencing of threshold non-merits issues).
-18-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 37 of 75
immigration is also belied by the terms of the guidance itself, which specifically excludes recent or future arrivals from consideration. See Arpaio, Slip Op. at 21-22 (determining that it “is speculative that a program, which does not apply to future immigrants, will nonetheless result in immigrants crossing the border illegally into . . . borders of this country”). Aliens cannot be considered for DACA or DAPA unless they have “continuously resided in the United States since before January 1, 2010.” See 2014 Deferred Action Guidance at 4. In contrast, those apprehended at the border are among DHS’s highest enforcement priorities. See Prioritization Guidance at 4. Any potential misconceptions that undocumented aliens may have about the scope of DACA and DAPA, see Am. Compl. ¶ 41, also cannot support standing, which requires a showing “that the defendant’s actual action has caused” the alleged harm. See Clapper, 133 S. Ct. at 1150 n.5 (emphasis added). The challenged policy is expressly designed to deter—not encourage—future illegal border crossings. Moreover, the Government has undertaken substantial efforts to dispel potential misconceptions about immigration benefits in the United States. See, e.g., Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in Apprehensions at the Southern Border: Hr’g Before the S. Comm. on Homeland Security and Governmental Affairs at 4-5 (Jul. 9, 2014) (stmt. of Craig Fugate, Administrator, Federal Emergency Management Agency, et al.) (“Fugate statement”) (Ex. 23).
Plaintiffs’ assertion that the 2012 DACA Memo “led directly to a flood of immigration across the Texas-Mexican border,” Am. Compl. ¶ 62, is similarly conclusory and insufficient to establish standing. Aliens who crossed the border, including during a recent surge of immigration in the summer of 2014, were not eligible for deferred action under the 2012 DACA Memo issued two years earlier, and any misconception they might have had to the contrary is not fairly traceable to that guidance. Plaintiffs’ conclusory claim of causation further ignores the
-19-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 38 of 75
varied and complex factors that influence immigration, including many that are wholly outside the United States’ control. See, e.g., Arpaio, Slip Op. at 21 (“[T]he decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country”); Cong. Research Serv. Report, Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration, Summary (July 3, 2014) (observing that “[u]naccompanied child migrants’ motives for migrating to the United States are often multifaceted,” including a desire to escape poverty and violence and concluding that “it remains unclear if, and how, specific immigration policies have motivated children to migrate to the United States”) (Ex. 24).18 Notably, DHS data show that Mexican nationals constitute the vast majority of DACA beneficiaries, but since the 2012 DACA Memo was issued, the number of Mexican nationals apprehended by Border Patrol at or near the border has decreased, not increased. Compare USCIS, Current Statistics: Deferred Action for Childhood Arrivals: Countries of Birth (Dec. 19, 2014) (Ex. 28) (showing that Mexican nationals make up 78% of DACA grants) with CBP, USBP Nationwide Apprehensions by Requested Citizenship FY 2010 – FY 2014 (Ex. 29) (demonstrating that illegal migration by Mexican nationals has decreased since 2012). This further reveals the attenuated and speculative nature of the claim of causation on which Plaintiffs rely.
Finally, and perhaps most fundamentally, Plaintiffs’ attempt to link the 2014 Deferred Action Guidance to a predicted future increase in immigration ignores the reality that the
18 State Department country reports confirm the existence of significant unrest and difficult living conditions in the countries from which many recent immigrants have come. See State Dep’t Country Report, Guatemala; State Dep’t Country Report, Honduras; State Dep’t Country Report, El Salvador (excerpts at Ex. 25). Accord United Nations High Commissioner for Refugees, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection (July 9, 2014) (excerpt at Ex. 26); Elizabeth Kennedy, No Childhood Here: Why Central American Children Are Fleeing Their Homes (Am. Immigration Council, 2014) (Ex. 27).
-20-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 39 of 75
challenged guidance promotes border security and a reduction of new illegal entrants. Congress has not provided DHS with resources to remove all undocumented aliens present in the United States; DHS thus must make choices about how to allocate its limited enforcement resources. By deferring the removal of individuals with significant community ties and no significant criminal records, DACA and DAPA free up limited resources so that federal authorities can more singularly focus on border security and recent illegal border-crossers, among other things. See Prioritization Guidance at 3. Accordingly, enjoining the 2014 Deferred Action Guidance would likely exacerbate, not redress, any alleged harm the Plaintiffs claim they will suffer as a result of illegal border crossings.
ii. Plaintiffs Cannot Base Standing on Costs Triggered by State Law Plaintiffs have identified only one alleged harm that they contend will “follow specifically from the extension of deferred action”: costs associated with the grant of professional licenses and other state benefits that are triggered under state law by an individual’s receipt of deferred action and/or work authorization. Am. Compl. ¶ 66 (citing Texas law); Pls’ Mot. at 27 (citing Texas and Wisconsin law). These hypothetical future costs are not traceable to the 2014 Deferred Action Guidance, which does not require States to provide any state benefits to deferred action recipients; whether to provide such benefits is a decision made by the States. In fact, federal law establishes a presumption that certain categories of aliens, including the recipients of deferred action, are “not eligible for any State or local public benefits,” including professional and commercial licenses, public housing, and unemployment benefits, unless a state affirmatively elects to provide those benefits. 8 U.S.C. § 1621. Federal law also contemplates that States may take federal alien classifications into account in administering their driver’s licensing schemes. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B., § 202, 119 Stat.
-21-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 40 of 75
231, 312 (49 U.S.C. § 30301 note). The States thus have leeway in administering these schemes
as long as they do not intrude on the federal power to classify on the basis of alien status.19
Accordingly, costs associated with processing and providing state licenses or other state benefits
to deferred action recipients are “self-inflicted injuries” that are not cognizable under Article III.
See Clapper, 133 S. Ct. at 1152; see also Illinois 137 F.3d at 476 (holding that Illinois could not
base standing on harms caused by state statute, even if “the balance of political power in Illinois
may render [amendment of the statute] impossible at the moment”); cf. Texas, 106 F.3d at 666
(rejecting argument that Federal Government commandeered Texas’s financial resources by
causing them to expend funds incarcerating undocumented aliens, because the “State’s
correctional expenses stem from its enforcement of its own penal laws, not federal laws”).20
19 As we have elsewhere explained, a State may not selectively deny driver’s licenses to some recipients of deferred action based on the State’s own classification of aliens. See Amicus Br. of United States in Opp’n to Reh’g En Banc, Ariz. Dream Act Coalition v. Brewer, No. 13-16248 (9th Cir.) (filed Sept. 30, 2014); see Plyler v. Doe, 457 U.S. 202,225 (1982); Mathews v. Diaz, 426 U.S. 67, 80, 85 (1976). But it does not follow that States must provide driver’s licenses to deferred action recipients as Wisconsin has done. Thus, to the extent that Wisconsin’s claimed injury is an economic one flowing from the costs of providing driver’s licenses, the injury is of Wisconsin’s own making through the way it has structured its driver’s licensure scheme. And to the extent Wisconsin’s alleged injury is based instead on its policy opposition to providing driver’s licenses to DACA or DAPA recipients, Wisconsin has no legally cognizable interest in a dispute about immigration policy. See Part I.C, supra; see also Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir. 1998) (“A role as lawmaker does not confer a role as litigant in federal court.”) 20 In addition to this fundamental defect, Plaintiffs have also failed to establish that “the cost of processing and issuing additional licenses and [state] benefits” to DACA and DAPA recipients, Am. Compl. ¶ 68, would result in a net loss of revenue to the Plaintiff States. The costs of processing additional licenses could (and may already) be recouped through fees levied on the individual recipients. And any other hypothetical costs may be offset by an increase in income or sales tax revenues resulting from the legal employment of DACA and DAPA recipients who already reside in the Plaintiff States and who, without employment authorization, could only work illegally. Cf. supra, pp. 17-18 & n. 16. In analogous circumstances, the Supreme Court has declined to engage in the conjecture that would be required to conclude that a federal policy that does not operate against a state will nevertheless result in harm to the state’s public fisc. See Florida, 273 U.S. at 18 (rejecting Florida’s claim that federal policy would lead to diminution of tax revenues, because, inter alia, it was possible that the deficiency could “readily be made up by an increased rate of taxation”).
-22-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 41 of 75
iii. Even Accepting Their Claims of Harm, Plaintiffs Have Not Demonstrated an Injury to Their Own Interests, as Opposed to the Interests Shared by All Taxpayers
In addition to the foregoing defects, Plaintiffs fail to demonstrate an injury sufficient to confer standing because their generalized allegations of harm to the state fisc and general welfare are not injuries to Plaintiffs themselves, but to the taxpayers. See People ex rel. Hartigan v. Cheney, 726 F. Supp. 219, 225 (C.D. Ill. 1989) (concluding that alleged decrease in state revenue and increase in social spending did not confer standing on Illinois because they “fall on the taxpayers and citizens of Illinois and not on the state qua state”). And as explained further in Part I.B below, Plaintiffs cannot pursue litigation against the Federal Government on the basis of injuries to their citizens.
To be sure, a direct and genuine injury to a State’s own proprietary interests may give rise to standing. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 602 (1982). But “neither the impairment of the state’s ability to look after its citizens nor the diminution of its tax revenues” as an indirect result of actions by the Federal Government constitutes a legally cognizable “injury to state proprietary interests.” Kleppe, 533 F.2d at 672-73. For this reason, and in light of the “unavoidable economic repercussions of virtually all federal policies, and the nature of the federal union as embodying a division of national and state powers,” general diminutions of state revenue or increases in expenditures incidental to some federal policy are routinely found insufficient to establish state standing.21 See, e.g., id.; Hartigan, 726 F. Supp. at
21 Indeed, if the Court were to deem Plaintiffs’ generalized allegations of the harm sufficient for injunctive relief, it is difficult to see how such logic could be cabined. There are countless ways in which any given federal action may have some incidental intersection with state law. If Plaintiffs’ theory of injury were accepted, states would have standing to challenge any decision to grant citizenship, lawful immigration status, asylum, or virtually any form of humanitarian relief, simply because such individuals could be eligible for benefits under state law. See Arpaio, Slip Op. at 20 (rejecting a “broad
-23-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 42 of 75
221-22. Compare Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (finding cognizable injury where the effect of challenged state statute on specific tax revenues was direct and undisputed). In short, even if Plaintiffs had stated a fiscal injury traceable to the 2014 Deferred Action Guidance—which they have not—that injury would not fall on the States themselves and therefore cannot establish standing for the Plaintiffs as states. See Hartigan, 726 F. Supp. at 22122; cf. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (discussing presumption that taxpayers do not have standing to challenge government expenditures).
B. Plaintiffs Cannot Pursue This Litigation on Behalf of the Purported Interests of their Citizens
Plaintiffs cannot overcome their failure to demonstrate that they have standing in their own right by framing their claimed standing based on a parens patriae theory of representing the asserted rights of their citizens. See Am. Compl. ¶ 69 (asserting that Plaintiffs seek “to vindicate [the] interests . . . of their citizens”). “A State does not have standing as parens patriae to bring an action against the Federal Government.” Alfred L. Snapp & Son, 458 U.S. at 610 n.16 (citing Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923), and Missouri v. Illinois, 180 U.S. 208, 241 (1901)). As the Court explained in Mellon, “it is no part of [a state’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.” 262 U.S. at 485-86. In this regard, the Court emphasized, “it is the United States, and not the state, which represents [its citizens] as parens patriae.” Id. Thus, while states may institute proceedings against private entities on behalf of their citizens, they may not sue “to protect citizens of the United States from the operation” of federal law. Id. This limitation is rooted in the proper allocation of authority between the state and federal governments: “[w]hen a state brings a suit
interpretation of the injury requirement [that] would permit nearly all state officials to challenge a host of Federal laws”; “Fortunately, the standing doctrine is not so limp.”).
-24-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 43 of 75
seeking to protect individuals from [federal law], it usurps [the] sovereign prerogative of the federal government and threatens the general supremacy of federal law.” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (quotation marks and citation omitted).
This well-settled principle controls here. As in Mellon, Plaintiffs call upon this Court “ to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government.” 262 U.S. at 484-85. Such claims do not present a justiciable issue. Id.; see also New Jersey v. Sargent, 269 U.S. 328, 337 (1926) (allegations that provisions of federal law “go beyond the power of Congress and impinge on that of the state . . . do not suffice as a basis for invoking an exercise of judicial power”); Texas v. ICC, 258 U.S. 158, 162-63 (1922) (state’s claim of infringement upon state sovereignty was merely “an abstract question of legislative power,” not a justiciable case or controversy).
In their Complaint, Plaintiffs appear to suggest that Massachusetts v. EPA (“Massachusetts”), 549 U.S. 497 (2007), supports their effort to litigate on behalf of the interests of their citizens. See Am. Compl. ¶ 69. That case does not support standing here. In Massachusetts, the Supreme Court held that Massachusetts could challenge EPA’s rejection of a petition for rulemaking to regulate greenhouse gases emitted by new motor vehicles. In doing so, the Court first assured itself that Massachusetts had demonstrated a cognizable injury-in-fact to its own proprietary or quasi-sovereign interests: viz., a particularized injury “in its capacity as a landowner” of a “substantial portion of the state’s coastal property,” which was already being eroded by the “rising seas.” 549 U.S. at 522 (citation omitted). The Court further deemed Congress’s authorization in the Clean Air Act of the exact type of challenge brought by Massachusetts “of critical importance to the standing inquiry.” Id. at 516. Although the Court
-25-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 44 of 75
indicated that it was according Massachusetts “special solicitude in [the] standing analysis,” it did so not only on account of the plaintiff’s status as a “sovereign State,” but also because Massachusetts was suing under a federal statute that secured it both a procedural right and a cause of action. Id. at 519-20. In determining that Massachusetts had standing in light of these specific circumstances, the Supreme Court also reaffirmed that its decision in Mellon “prohibits” a state from suing federal defendants “to protect her citizens from the operation of federal statutes.” Id. at 520 n.17.
Because Plaintiffs have failed to satisfy the predicate requirement of an injury-in-fact to their own interests, and because there is no federal statute providing Plaintiffs a right and cause of action, Massachusetts does not apply here. In recognizing Massachusetts’ ability to sue under the unique facts of that case, the Court did not “eliminate [a] state [plaintiff’s] obligation to establish a concrete injury.” Del. Dep’t of Natural Res. & Envtl. Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009); see also Sturgeon v. Masica, 768 F.3d 1066, 1074 (9th Cir. 2014) (holding that “evidence of actual injury is still required”); Wyoming, 674 F.3d at 1238. To the contrary, Massachusetts had demonstrated such an injury in its capacity as landowner. 549 U.S. at 522. Accordingly, whatever effect the “special solicitude” employed in Massachusetts may have on the final standing analysis—an issue that is subject to considerable uncertainty in the lower courts—it cannot excuse Plaintiffs’ failure here to allege a cognizable injury to their own interests. See Wyoming, 674 F.3d at 1238 (“Because [Wyoming has] failed to establish a concrete injury, we need not determine the parameters of ‘special solicitude’ in this case.”).
Moreover, because Congress has not authorized the type of challenge brought by Plaintiffs—as it had for the Clean Air Act claim at issue in Massachusetts—Plaintiffs cannot take advantage of that “special solicitude” in any event. See People of Colorado ex rel. Suthers v.
-26-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 45 of 75
Gonzales, 558 F. Supp. 2d 1158, 1165 (D. Colo. 2007) (rejecting state’s standing to challenge alleged deficiencies in federal enforcement of immigration laws, because it “failed to identify any recognition, by Congress or otherwise, of its right to challenge the actions that the Government has taken”). In enacting the INA—and in particular, the provisions of the INA addressing removal authority—Congress did not intend to permit states to police the Federal Government’s enforcement efforts.22 See, e.g., Arizona, 132 S. Ct. at 2505-07 (holding that Congress did not intend to allow states to countermand decisions by federal officials about whether to prosecute immigration violations); cf. Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 902 (D.C. Cir. 1996) (“The immigration context suggests the comparative improbability of any congressional intent to embrace as suitable challengers in court all who successfully identify themselves as likely to suffer from the generic negative features of immigration.”). Thus, unlike Massachusetts, which undisputedly had a sovereign interest in its shoreline, the Plaintiff States maintain no sovereign interest in directing immigration policy, which is uniquely and exclusively entrusted to the federal government. To the extent there are sovereign interests implicated by this case, they are the sovereign interests of the United States, which are not subject to policing by the States. See Arizona, 132 S. Ct. at 2506.
C. Prudential Considerations Further Compel Dismissal of Plaintiffs’ Generalized Policy Grievance in this Area of Unique Federal Control
Prudential considerations about the “the proper—and properly limited—role of the courts in a democratic society” further demonstrate that this Court may not review Plaintiffs’ challenge
22 For this reason, Plaintiffs’ claims under the INA are also separately subject to dismissal because Plaintiffs do not fall with the INA’s “zone-of-interests.” See Bennett v. Spear, 520 U.S. 154, 161-62 (1997); Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388-89 & n.5 (2014) (holding that the “zone of interests” test, while non-jurisdictional in at least some circumstances, remains focused on whether the statute is intended to protect the class of persons encompassing the plaintiff from the harm that has occurred as a result of the alleged statutory violation).
-27-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 46 of 75
to the Secretary’s administration and enforcement of the immigration laws. Bennett, 520 U.S. at 162 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Among other things, such considerations restrain courts from “adjudicating abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (internal quotations omitted). The Supreme Court has recently suggested that this limitation, although commonly couched as a question of “prudential standing,” is an essential constraint on Article III jurisdiction. See Lexmark Int’l, 134 S. Ct. at 1387 n.3. It rests on the proposition that the “political branches of government are generally better suited to resolving disputes involving matters of broad public significance.” Apache Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 1176 (5th Cir. 1993) (en banc).23
These constraints bar Plaintiffs’ policy-driven suit, which Plaintiffs themselves characterize as ultimately “not about immigration,” but “about the rule of law, presidential power, and the structural limits of the U.S. Constitution,” Am. Compl. ¶ 2.24 See Apache Bend, 987 F.2d at 1179 (rejecting on prudential standing grounds a constitutional challenge by taxpayers to a congressional act that provided favored tax exemptions to a small number of individuals). Like the constitutional challenge to the tax code that the en banc Fifth Circuit declined to entertain in Apache Bend, Plaintiffs’ claim would inject this Court into abstract issues
23 Prudential concerns also appropriately bear on a district court’s exercise of its traditional discretion to entertain an equitable action and to grant (or deny) injunctive and declaratory relief. See, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967); 5 U.S.C. § 702. 24 The Texas Attorney General confirmed this view in a recent television appearance, responding to a question about the nature of the harms for which the State had filed the instant lawsuit: “Sure. Because we’re not suing for that economic harm. It’s the way that Texas has been impacted that gives us standing. What we’re suing for is actually the greater harm, and that is harm to the constitution by empowering the president of the United States to enact legislation on his own without going through Congress.” See Meet the Press Transcript – Dec. 7, 2014 (excerpt at Ex. 30).
-28-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 47 of 75
of “wide public significance” appropriately left to the political branches. See id. States “may not convert the federal courts into publicly funded forums for the ventilation of public grievances.” Wyoming v. Lujan, 969 F.2d 877, 881 (10th Cir. 1992) (internal quotation marks omitted).
The fact that the Plaintiff States seek judicial intervention that would reshape immigration policy—a uniquely federal prerogative—warrants strict adherence to this limitation. See Arpaio, Slip Op. at 2 (“Concerns over the judicial role are heightened when the issue before the court involves, as here, enforcement of the immigration laws.”). Where a state’s suit threatens “state interference with the exercise of federal powers,” it presents “an important argument against standing” not present in private litigation. Kleppe, 533 F.2d at 678. This concern is particularly acute in the context of immigration, which is committed to the plenary authority of the federal government. See Arizona, 132 S. Ct. at 2499; see also Mathews, 426 U.S. at 81-82 (1976) (“For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government”); Plyler, 457 U.S. at 225 (1982) (states “enjoy no power with respect to the classification of aliens”).
These considerations make clear that states may not invoke the jurisdiction of the federal courts to advance their preferences regarding how the federal government should execute federal immigration laws and set enforcement policy, particularly based on the alleged indirect consequences from the federal government’s application of the immigration statutes to third parties. Plaintiffs’ redress concerning their policy disagreement with the Deferred Action Guidance, or with federal immigration policy more generally, is through the political process, not the courts. Cf. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985) (“State sovereign interests . . . are more properly protected by procedural safeguards inherent in the
-29-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 48 of 75
structure of the federal system than by judicially created limitations on federal power.”).
II. PLAINTIFFS’ CLAIMS FAIL ON THE MERITS
Regardless of how Plaintiffs’ claim on the merits is framed, the result is the same: a
challenge to the Executive’s exercise of discretion in enforcing the Nation’s immigration laws is
not subject to judicial review. In any event, as explained below, even if the 2014 Deferred
Action Guidance were subject to judicial review, Defendants have acted within and consistent
with the APA and the broad authority provided by the INA.
A. Plaintiffs Cannot Bring an Independent Claim under the Take Care Clause
Plaintiffs seek to state a separate cause of action under the Take Care Clause, but they
cannot do so. None of the cases cited by Plaintiffs suggests there is judicially cognizable basis to
challenge executive action under the Take Care Clause, separate and apart from an APA or
statutory claim that the Executive acted outside of statutory authority.25 Moreover, any claim
that the President has failed to “take Care that the Laws be faithfully executed” requires at least a
25 None of the cases cited by Plaintiffs supports the proposition that their Take Care Clause claim is judicially cognizable as an independent basis for a challenge to whether the Executive acted within statutory authority; to the extent the Take Care Clause arose in those cases, it was in the context of an affirmative defense. See Pls.’ Mot at 8-9. In Kendall v. United States, the Supreme Court addressed the effect of a statute establishing a “precise, definite act, purely ministerial; and about which the postmaster general had no discretion whatever.” 37 U.S. (12 Pet.) 524, 613 (1838). In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the President conceded that he was acting outside of authority provided to him by statute. In Medellin v. Texas, 552 U.S. 491 (2008), the Supreme Court addressed, in the context of a non-self-executing treaty, whether a Presidential memorandum preempted state law in the absence of Congressional ratification. Angelus Milling Co. v. Comm’r of Internal Revenue, 325 U.S. 293, 296 (1945), recites the truism that the Executive must follow the law, notwithstanding that the Court held in that case that the IRS could lawfully exercise its discretion in refusing to waive the formal requirements of the authorized Treasury regulations. Id. at 295, 299. Likewise, in DaCosta v. Nixon, 55 F.R.D. 145 (E.D.N.Y. 1972), the court concluded that the ordering of plaintiff to return to his active service in Vietnam did not violate the Military Procurement Authorization Act of 1971 because “[t]he legislation . . . gave a very wide discretion to the President.” Id. at 146. Finally, Catano v. Local Bd. No. 94 Selective Serv. Sys., 298 F. Supp. 1183, 1184-86 (E.D. Pa. 1969)—a mandamus case in which the court ordered a draft board to grant a deferment under a statutory provision—is not applicable here; Plaintiffs have not made any argument (nor could they) that they would be entitled to the “drastic” relief of mandamus, which is “to be invoked only [for] extraordinary situations.” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 402 (1976).
-30-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 49 of 75
showing that the Executive has acted inconsistently with the statutes Congress has enacted, and thus cannot be divorced from a statutory claim.
Plaintiffs’ attempt to bring an independent cause of action under the Take Care Clause is also belied by the fact that they rely on Heckler v. Chaney for that cause of action. See Pls.’ Mot. at 9. In Chaney, the Supreme Court addressed under the APA whether the FDA acted consistent with its statutory authority in exercising prosecutorial discretion. 470 U.S. at 821. The Court held that an agency’s decision not to exercise its enforcement authority, or to exercise it in a particular way, is “presumed” to be “immune from judicial review under § 701(a)(2)” of the APA. Id. at 832. Although the Supreme Court referred to the Take Care Clause in its analysis, id. at 832, it ultimately confined its analysis to the justiciability of a challenge to the exercise of discretion in the enforcement of a statutory scheme.
Plaintiffs thus cannot bring an independent cause of action under the Take Care Clause; the APA provides the proper framework for this Court’s analysis.26 Cf. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445-46 (1998) (courts should avoid addressing unnecessary constitutional issues).
B. Deferred Action Is an Unreviewable Exercise of Enforcement Discretion The Secretary of Homeland Security’s exercise of enforcement discretion through the
26 Plaintiffs’ citation to the recent decision in United States v. Escobar, No. 2:14-cr-00180-AJS (W.D. Pa. Dec. 16, 2014), offers no additional support for their claims. See Arpaio, Slip Op. at 30 n.13. First, despite the fact that (1) both parties informed the Escobar Court that the November 20, 2014 immigration-related enforcement guidance memoranda were not at issue, and (2) the constitutionality of these policies was not addressed in either side’s briefs, the Escobar Court reached the issue. See Escobar, ECF Nos. 30, 31, 32. This overreach by the Escobar Court was inappropriate and incorrect. Indeed, in issuing its decision, the Escobar Court flouted two vitally important principles of federal jurisdiction: first, the obligation of federal courts “not [to] decide constitutional questions unless it is necessary to do so,” Kalka v. Hawk, 215 F.3d 90, 97 (D.C. Cir. 2000), and second, the rule that federal court “jurisdiction is limited to actual cases or controversies between proper litigants.” NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77 (D.C. Cir. 2012) (internal citations omitted).
-31-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 50 of 75
deferred action guidance at issue here is not subject to judicial review. The decision to prosecute—or not to prosecute—is an exercise of Executive power, and it follows, consistent with the constitutional separation of powers, that courts should not interfere with such discretionary decisions. United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc); cf. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 157 (D.C. Cir. 2006) (noting that “the traditional nonreviewability” of prosecutorial discretion applies to administrative enforcement).
The Chaney Court noted at least three reasons why agency enforcement decisions generally are not reviewable. First, an agency’s enforcement strategy “often involves a complicated balancing of a number of factors which are peculiarly within its expertise,” and the “agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.” 470 U.S. at 831-32. Second, an agency’s decision not to exercise its enforcement authority “generally does not [involve the] exercise [of] coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.” Id. at 832. Third, an agency’s exercise of enforcement discretion “shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’” Id. (quoting U.S. Const. art. II, § 3).
The Court of Appeals for this Circuit has held that “[r]eview of agency nonenforcement decisions is permissible only where statutory language sets constraints on the agency’s discretion.” Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990) (emphasis added); see also Public Citizen, Inc. v. EPA, 343 F.3d 449, 464 (5th Cir. 2003) (finding non-justiciable challenge to EPA’s decision whether to issue a notice of deficiency for air pollution because Clean Air Act
-32-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 51 of 75
did not “provide[] meaningful standards for defining the limits of that discretion”). “Such standards are not present” here. See id. To the contrary, the Federal Government’s immigration enforcement efforts are not subject to judicial review. See Texas, 106 F.3d at 667 (holding that “[r]eal or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty”).27
i. Congress Has Not Limited DHS’s Longstanding Discretion to Grant Deferred Action
The Supreme Court has repeatedly and explicitly recognized that the INA grants broad discretion to the Executive Branch, including the decision whether to initiate removal proceedings or grant deferred action: “A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Arizona, 132 S. Ct. at 2499 (internal citation omitted); see also AAADC, 525 U.S. at 483-84 (“At each stage” of the removal process, “the Executive has discretion to abandon the endeavor”). The Supreme Court has also recognized “deferred action” as such an exercise of administrative discretion. In AAADC, it explained that, as of 1996, “the INS had been 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.” Id. The Supreme Court recounted the roots of this “commendable” practice: “To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.” Id. at 484. And the Supreme
27 Courts have consistently rejected similar challenges brought by states challenging the Federal Government’s enforcement of immigration laws. See Arizona v. United States, 104 F.3d 1095, 1096 (9th Cir. 1997); California v. United States, 104 F.3d 1086, 1090-95 (9th Cir. 1987); New Jersey v. United States, 91 F.3d 463, 466-71 (3d Cir. 1996); Padavan v. United States, 82 F.3d 23, 26-30 (2d Cir. 1996); Chiles v. United States, 69 F.3d 1094, 1095-97 (11th Cir. 1995); People of Colo. ex rel. Suthers, 558 F. Supp. 2d at 1162.
-33-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 52 of 75
Court found that Congress enacted 8 U.S.C. § 1252(g) “to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations.” Id. at 485.
The Secretary’s discretion to grant deferred action draws upon the Secretary’s broader discretion in enforcing the Nation’s immigration laws. Through the INA, Congress has authorized the Secretary 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) (emphasis added); see also 6 U.S.C. § 2205 (directing the Secretary to establish “national immigration enforcement policies and priorities”); Chiles v. United States, 874 F. Supp. 1334, 1340-41 (S.D. Fla. 1994) (emphasizing that 8 U.S.C. § 1103(a) indicates that the “decision not to undertake enforcement action in certain situations is . . . committed to agency discretion” and hence unreviewable under the APA), aff’d, 69 F.3d 1094, 1096 n.5 (11th Cir. 1995) (stating that § 1103(a) “would not justify even an allegation of complete abdication of statutory duties to go to trial”); 8 C.F.R. § 2.1.28 The Supreme Court has found that similar language commits action to agency discretion by law. See Webster v. Doe, 486 U.S. 592, 600 (1988); see also Claybrook v. Slater, 111 F.3d 904, 909 (D.C. Cir. 1997).
Deferred action is one longstanding means by which federal immigration authorities exercise such discretion. See, e.g., AAADC, 525 U.S. at 483-84. Individuals who receive deferred action are not granted any legal immigration status. See 2014 Deferred Action Guidance at 2. Deferred action does not provide citizenship, or even an independent path to citizenship. Id. Rather, deferred action is a temporary deferral of an alien’s removal, which can
28 8 C.F.R. § 2.1, the regulation implementing 8 U.S.C. § 1103, states that “[a]ll authorities and functions of the Department of Homeland Security to administer and enforce the immigration laws are vested in the Secretary of Homeland Security,” and the Secretary may “in his discretion” delegate his authority and may, through “regulation, directive, memorandum or other means deemed as appropriate,” announce principles “in the exercise of the Secretary’s discretion.”
-34-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 53 of 75
be revoked at any time in the agency’s discretion. See id. Moreover, the 2014 Deferred Action Guidance challenged by Plaintiffs does not itself grant deferred action to anyone, but rather provides a framework for individualized determinations of whether certain persons should receive deferred action, after a case-by-case assessment. Id.
Rather than citing any statutory provision that conflicts with the 2014 Deferred Action Guidance (because there is none), Plaintiffs erroneously claim that two separate provisions of the INA provide limits on deferred action. See Pls.’ Mot. at 23-24. First, Plaintiffs argue that the Secretary can never exercise prosecutorial discretion concerning removal. They assert that 8 U.S.C. § 1225(b)(2)(A) creates a “mandatory duty” to remove “any undocumented immigrant present in violation of federal law, unless Congress provides a specific exception.” See Pls.’ Mot. at 3-4, 23. But this provision relates to detention and removal procedures for those “seeking admission”—rather than to aliens who, like aliens eligible for DACA or DAPA, have maintained a long term physical presence in the United States—and certainly does not mandate removal. Plaintiffs also undermine their argument by acknowledging that the Secretary has discretion as to whether to pursue removal in individual cases. See Pls.’ Mot. at 10.
Plaintiffs’ radical position that all undocumented aliens must be removed is foreclosed by more than half a century of prosecutorial discretion and controlling precedent; it also would yield absurd results. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005) (recognizing “[t]he deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands”). The Supreme Court has recognized that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S. Ct. at 2499 (“Federal [immigration] officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”). This discretion is critical to the effective operation of
-35-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 54 of 75
the immigration system. “Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.” Id. at 2499. And, removing an alien to a home country that is “mired in civil war” could “create a real risk that the alien or his family will be harmed upon return.” Id. “The dynamic nature of relations with other countries [also] requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.” Id. This Court should reject Plaintiffs’ invitation, through their Section 1225 argument, to upset a central aspect of the immigration laws and to force the Executive, automatically and regardless of consequence, to remove any alien it encounters who is here illegally unless an express exemption applies.29 See Bartholomew v. United States, 740 F.2d 526, 531 (7th Cir. 1984) (suggesting that a court should consider whether “a mandatory construction would yield harsh or absurd results”); accord Sigmon v. Sw. Airlines Co., 110 F.3d 1200, 1206 (5th Cir. 1997); Conoco, Inc. v. Skinner, 970 F.2d 1206, 1225 (3d Cir. 1992).
Second, Plaintiffs incorrectly claim that the statutory provisions that set forth requirements for parents of U.S. citizens to become LPRs somehow control the Secretary’s exercise of enforcement discretion regarding the deferral of removal proceedings for a limited period of time, as in DACA and DAPA. See Pls.’ Mot. at 14 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255). As described above, individuals receiving deferred action do not obtain the LPR status that an adult U.S. citizen child may seek
29 Plaintiffs rely on Crane v. Napolitano, No. 3:12-cv-03247, 2013 WL 1744422 (N.D. Tex. Apr. 23, 2013), for the proposition that 8 U.S.C. § 1225(b)(2) creates a mandatory duty for DHS to commence removal proceedings. See Pls.’ Mot. at 3-4. That interpretation of the statute cannot be reconciled with controlling law for the reasons discussed above. And even the Crane Court, which ultimately dismissed the case for lack of jurisdiction, acknowledged that the Executive has discretion at each subsequent stage of the removal process, including the ability to dismiss removal proceedings after they are initiated. Crane, 2013 WL 1744422, at *13.
-36-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 55 of 75
for his or her parent or any other enduring legal immigration status.30 See 2014 Deferred Action
Guidance at 2. Moreover, any consequence that follows from receiving deferred action flows
from pre-existing legal authority. See, e.g., 8 C.F.R. § 274a.12(c)(14).
ii. DHS’s Tailored Guidance Faithfully Executes the Immigration Laws and Does Not “Abdicate” its “Statutory Responsibilities”
Plaintiffs’ suggestion that the Secretary’s exercise of prosecutorial discretion is a total
abdication, and thus not subject to the presumption of non-reviewability under Chaney, is based
on a misunderstanding of the INA and the challenged Deferred Action Guidance. Plaintiffs take
language out of context from Chaney to suggest that the standard for review is whether the
Executive has “‘consciously[,] and expressly [adopted] a general policy’ of non-enforcement.”
See Pls.’ Mot. at 9 (citing Chaney, 470 U.S at, 833 n.4). But the situation referred to in Chaney,
based on the D.C. Circuit’s decision in Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir.
1973) (en banc), is when “the agency has ‘consciously and expressly adopted a general policy’
that is so extreme as to amount to an abdication of its statutory responsibilities.”31 Chaney, 470
U.S at, 833 n.4 (emphasis added).
30 Further, Congress has recognized—not limited—the Executive’s use of deferred action as a tool to temporarily prevent the removal of individuals who ultimately may later be entitled to lawful status. See supra, pp. 10-11 (identifying instances where Congress has codified the use of deferred action for individuals who had a prospective, but not then-existing, entitlement to T or U visas, or to self-petitioner status under VAWA). Hence, the fact that the INA gives the parents of U.S. citizens a potential prospective entitlement to lawful status makes the grant of deferred action to such individuals accord more, not less, with Congress’s understanding of the permissible use of such discretion. Plaintiffs’ claims to the contrary based on inapposite portions of the INA should be rejected, and the presumption against judicial reviewability of the Executive’s enforcement discretion stands. See Texas, 106 F.3d at 667 (finding that a “court has no workable standard against which to judge the agency’s exercise of discretion” in immigration enforcement). Further, even the statutory provisions Plaintiffs cite recognize discretion in the immigration context. See, e.g., 8 U.S.C. § 1182(d)(3) (providing discretion to grant waivers of inadmissibility to certain aliens applying for nonimmigrant visas). 31 Recognizing the high bar this sets, the Second Circuit noted in 2004 that “[n]o party has directed us to, nor can we locate, a decision by a court of appeals that has found, in performing the Chaney analysis, a federal agency to have abdicated its statutory duties.” Riverkeeper, Inc. v. Collins, 359 F.3d 156, 170-71 n.17 (2d Cir. 2004).
-37-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 56 of 75
The Fifth Circuit has rejected a previous attempt by Texas to equate a perceived inadequacy in federal immigration enforcement with a statutory abdication. See Texas, 106 F.3d at 667 (“We reject out-of-hand the State’s contention that the federal defendants’ alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty.”). “Congress has not given [DHS] an inflexible mandate to bring enforcement actions against all violators of the [immigration laws].” Cutler v. Hayes, 818 F.2d 879, 893 (D.C. Cir. 1987) (distinguishing Adams, 480 F.2d at 1161); see also Texas, 106 F.3d at 667 (finding that a “court has no workable standard against which to judge the agency’s exercise of discretion” in immigration enforcement).
DHS’s effort to prioritize the removal of persons who present a risk to public safety, national security, and border security over those who present no such risk and have long ties to this country is fully consistent with congressional priorities. Concurrent with the Secretary’s determination to further dedicate CBP’s and ICE’s limited enforcement resources to highpriority targets, see Prioritization Guidance at 1, the 2014 Deferred Action Guidance helps prevent the unwise and inefficient expenditure of removal resources on the lowest priority aliens by having a different agency—USCIS—implement DACA and DAPA through fees paid by the deferred action requestors. Indeed, DHS’s allocation of enforcement priorities stands in stark contrast to the statutory abdication that the D.C. Circuit found in Adams, which predated Chaney. See, e.g., Ass’n of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339, 344 (D.C. Cir. 2002) (describing Adams as a case in which “the Secretary of Health, Education, and Welfare declined to enforce an entire statutory scheme, Title VI of the Civil Rights Act of 1964”); see also Adams, 480 F.2d at 1162 (concluding that agency was not exercising bona fide prosecutorial discretion because it was “actively supplying” racially segregated institutions “with federal funds, contrary
-38-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 57 of 75
to the expressed purposes of Congress”). Congress has expressly recognized that DHS must set priorities to do its work effectively
and consistent with the public interest, and both Congress and the Supreme Court have recognized deferred action as one such mechanism for exercising prosecutorial discretion. See supra, pp. 8-9. DACA and DAPA allow for deferral of the removal of certain low-priority aliens, including so that removal resources can be directed at higher priority aliens. Because no alien is automatically entitled to deferred action under DACA and DAPA—and because those who receive deferred action may have it revoked at any time—these policies do not negate any past violations of immigration laws Congress enacted. Such administrative postponement or deferment of enforcement is not a basis for judicial intervention. Cutler, 818 F.2d at 894.
Congress’s funding choices further reinforce the point. DHS’s limited resources will always constrain how many aliens can be removed. DHS has the appropriated resources to remove only a small proportion of illegal aliens present in the country. See OLC Op. at 9; see also supra, pp. 5-6 n.2. Given this reality, DHS must determine how best to utilize its limited resources for high-priority targets. See Prioritization Guidance at 1.
Thus, any suggestion by Plaintiffs that a statutory abdication can be found based solely on the number of those eligible for deferred action, see Pls.’ Mot. at 15-17, ignores the constraints on the resources Congress has provided, which set the parameters against which DHS must make enforcement decisions. Based largely on these resource constraints, Congress has instructed DHS to not “simply round[] up as many illegal immigrants as possible, which is sometimes achieved by targeting the easiest and least threatening among the undocumented population,” but to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.” H.R. Rep. No. 111-
-39-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 58 of 75
157, at 8. That is precisely the object of DACA and DAPA. Further, to ensure that grants of deferred action are consistent with the agency’s
enforcement priorities, the Secretary reaffirmed that the revised DACA and DAPA policies would continue the case-by-case, individualized consideration that has characterized DACA since its inception in 2012, to ensure that each requestor is not an enforcement priority and does not possess a characteristic that would make deferred action inappropriate. See 2014 Deferred Action Guidance at 2, 4-5; see also 2012 DACA Memo at 2.
There is also no merit to Plaintiffs’ suggestion that DACA and DAPA are inappropriate because they are directed at groups meeting certain criteria, as agencies may establish frameworks for the exercise of discretion to reduce the risk that such discretion is exercised arbitrarily. See Arpaio, Slip Op. at 32 (guidance “helps to ensure that the exercise of deferred action is not arbitrary and capricious”); see, e.g., Chaney, 470 U.S. at 824 (challenge to a general enforcement policy regarding the use of drugs in executions); Ass’n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (holding non-reviewable a broad agreement between the agency and an entire industry, which deferred agency enforcement for several years); United States v. 9/1 Kg. Containers, 854 F.2d 173, 178 (7th Cir. 1988) (endorsing FDA “nonenforcement policy”); cf. Wayte v. United States, 470 U.S. 598, 604, 609-10 (1985) (upholding categorical selective service non-enforcement policy applicable to 99.96% of violators—only 274 out of an estimated 674,000 violators were eligible for possible prosecution—against challenge of selective prosecution).32
32 See also Hotel & Rest. Employees Union, Local 25 v. Smith, 594 F. Supp. 502, 505 (D.D.C. 1984) (holding that Attorney General’s discretionary determination to grant “extended voluntary departure” to certain classes of aliens was valid exercise of prosecutorial discretion), aff’d per curiam by an equally divided court, 846 F.2d 1499 (D.C. Cir. 1988) (en banc); Hotel & Rest. Employees Union, 846 F.2d at 1510 (separate opinion of Mikva, J.) (“We agree . . . that where, as here, Congress has not seen fit to limit
-40-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 59 of 75
The 2014 Deferred Action Guidance appropriately provides a framework for the exercise
of prosecutorial discretion with respect to two groups, while specifying that each request for deferred action must be assessed on a discretionary, case-by-case basis.33 See Arpaio, Slip Op.
at 32. Without providing any source for their statistics, Plaintiffs assert that 99.5-99.8% of
DACA requests have been granted. Pls.’ Mot. at 11; Am. Compl. ¶ 25. Based on these
unsupported assertions, they incorrectly claim that the program is “rubber-stamping” applicants.
See Pls.’ Mot. at 10-12. But, in reality, approximately six percent of adjudicated DACA requests
have been denied, not counting the six percent of filed requests that were initially rejected when
filed. Specifically, as of December 19, 2014, of the 723,358 individuals who made initial
requests for deferred action under DACA, 42,919 requests were rejected for not meeting an
administrative requirement of the application. See USCIS, Current Statistics: Deferred Action
for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014) (Ex. 31).
Of the 674,404 requests that have been adjudicated, 38,080 (5.6%) were denied for failure to
meet eligibility criteria or for other discretionary reasons and 636,324 (94.4%) were granted. Id.
And these non-approval numbers do not even factor in the commonsense logic that an individual
who may not merit deferred action, e.g., one who has repeated arrests—is unlikely to apply in the
the agency’s discretion to suspend enforcement of a statute as to particular groups of aliens, we cannot review facially legitimate exercises of that discretion.”); id. at 1519-20 (separate opinion of Silberman, J.) (decisions to “suspend enforcement over a broad category of cases” are the kind “of policy choices and allocations left to the Executive Branch”). 33 Plaintiffs cite Crowley Caribbean Transp. Inc., v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), for the proposition that prosecutorial discretion usually arises in the context of a “single-shot non-enforcement decision.” See Pls.’ Mot. at 10. But the D.C. Circuit used that language to distinguish prosecutorial discretion from a situation where an enforcement policy is based on a “direct interpretation[] of the commands of the substantive statute.” Crowley, 37 F.3d at 677; cf. Kenney v. Glickman, 96 F.3d 1118, 1124 (8th Cir. 1996) (finding underlying statute established standards to assess an agency’s compliance scheme for poultry processing). There is no contention in this case that the Secretary is attempting to interpret a particular statutory provision of the INA as establishing deferred action. Nor does the INA establish a meaningful standard to review the Secretary’s exercise of prosecutorial discretion through deferred action. In any event, each decision on whether to grant deferred action to a DACA or DAPA requestor is “single shot,” as the determination is made on a case-by-case basis.
-41-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 60 of 75
first place. Plaintiffs’ effort to portray the 2014 Deferred Action Guidance as a statutory abdication
also ignores the Executive’s long history of exercising prosecutorial discretion through the identification of certain discrete groups of aliens who may be eligible for an exercise of discretion. See Arpaio, Slip Op. at 31 (explaining that “the challenged deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation’s immigration laws,” including through “a large class-based program”); OLC Op. at 14-18 (providing examples). This approach dates back to the 1950s. See id. at 14. More recently, under the “Family Fairness” program in 1990, the Executive granted “extended voluntary departure” and provided work authorization for certain aliens who were ineligible for legal status under the Immigration Reform and Control Act of 1986 but who were the spouses and children of aliens who qualified for legal status under the Act. See id. at 14-15. Since the 1990s, the Executive has also used deferred action for battered aliens who were waiting for visas to become available under VAWA, applicants for nonimmigrant status or visas made available under the Victims of Trafficking and Violence Protection Act of 2000, foreign students affected by Hurricane Katrina, and widows and widowers of U.S. citizens. See id. at 14-18. Further, longstanding regulations allow for deferred action recipients to be eligible for employment authorization. 8 C.F.R. § 274a.12(c)(14).34
Not only has Congress not limited the Executive’s use of deferred action, but DACA and
34 Plaintiffs claim that deferred action creates benefits, including work authorization. See Pls.’ Mot. at 1214. But there is nothing in the 2014 Deferred Action Guidance that provides any benefit beyond what is already provided for by statute or regulation. For example, regulations promulgated in 1981 codified existing procedures for granting employment authorization, including to deferred action recipients. See Employment Authorization to Aliens in the United Sates, 46 Fed. Reg. 25079, 25080-81 (May 5, 1981). In 1986, Congress enacted 8 U.S.C. § 1324a(h)(3), which confirmed the Attorney General’s authority to grant work authorization. See OLC Op. at 21 n.11 (“This statutory provision has long been understood to recognize the authority of the Secretary to grant work authorization to particular classes of aliens.”).
-42-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 61 of 75
DAPA mirror the particular priorities Congress has established. Cf. Sierra Club v. Jackson, 648 F.3d 848, 856 (D.C. Cir. 2011). The INA clearly prioritizes the detention and removal of threats to border security, national security, and public safety. See, e.g., 8 U.S.C. § 1225 (establishing “expedited removal” for aliens apprehended at the border); id. § 1226(c) (providing mandatory detention for certain criminal aliens); id. § 1226a (providing mandatory detention of suspected terrorists); see also Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. F., Tit. II, 128 Stat. 5, 251 (2014) (requiring DHS to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime”).
At the same time, numerous provisions of the INA reflect a concern for promoting family unity among U.S. citizens and their undocumented families. See 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)). Plaintiffs suggest that recent changes in the INA deter family reunification, Pls.’ Mot. at 14, but neglect to acknowledge that the INA is replete with examples to the contrary. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i) (placing no limits on number of immigrant visas available for parents of U.S. citizens older than 21); § 1229b(b)(1) (giving discretion to Attorney General to cancel removal for certain nonpermanent resident aliens who, inter alia, show that their removal would pose significant difficulty to certain immediate family members who are U.S. citizens or LPRs).35
The Supreme Court has explicitly recognized that the Executive’s enforcement of immigration laws can and should take into account humanitarian and other interests: 35 Even the article that Plaintiffs rely upon to argue that limitations have been placed on family reunifications acknowledges that “Congress continues to demonstrate its support of family unification in immigration legislation.” See Kristi Lundstom, The Unintended Effects of the Three- and Ten-Year Unlawful Presence Bars, 76 Law & Contemp. Probs. 389, 394 (2013).
-43-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 62 of 75
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. Arizona, 132 S. Ct. at 2499; see also AAADC, 525 U.S. at 483-84 (describing long-recognized humanitarian rationale as well as administrative convenience for deferred action). Both DACA and DAPA appropriately reflect these concerns. See, e.g., 2014 Deferred Action Guidance at 3 (recognizing that most individuals considered for DACA and DAPA “are hard-working people who have become integrated members of American society”). In short, both DACA and DAPA are part of a long tradition of enforcement prioritization and discretion by the Executive, grounded in its statutory and constitutional authority to determine how best to use the limited resources available to enforce the Nation’s immigration laws. See Arizona, 132 S. Ct. at 2499. Plaintiffs’ claim that the Secretary’s 2014 Deferred Action Guidance constitutes an abdication of a statutory duty must be rejected.
C. Plaintiffs’ APA Claims Lack Merit Even if Plaintiffs’ challenges to the 2014 Deferred Action Guidance were subject to judicial review—which they are not—Plaintiffs’ claims of procedural and substantive APA violations lack merit.
i. The Deferred Action Guidance Is Exempt From the Notice-AndComment Requirement of the APA
Plaintiffs claim that, in issuing the challenged guidance, DHS failed to comply with the APA’s notice-and-comment requirement, 5 U.S.C. § 553. This claim fails as a matter of law, because the 2014 Deferred Action Guidance is statutorily “exempt from notice-and-comment
-44-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 63 of 75
requirements” as a general statement of policy. See Lincoln v. Vigil, 508 U.S. 182, 197 (1993); Tex. Sav. & Cmty. Bankers Ass’n v. Fed. Hous. Fin. Bd., 201 F.3d 551, 556 (5th Cir. 2000) (explaining that a challenged policy was “a list of investment guidelines; it therefore required no notice and comment”). Congress has explicitly exempted from the notice-and-comment requirement any “general statements of policy,” 5 U.S.C. § 553(b)(3)(A). The Supreme Court in turn has defined such statements of policy as “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Vigil, 508 U.S. at 197 (citation omitted).
The 2014 Deferred Action Guidance fits squarely within this definition and is therefore exempt from notice-and-comment requirements. The Fifth Circuit has held that, in determining whether an agency pronouncement is a statement of policy, “the starting point is ‘the agency’s characterization of the rule.’” Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995).36 Defendants have consistently maintained that the Deferred Action Guidance is not a rule, but a policy that “supplements and amends . . . guidance” for the use of deferred action. See 2014 Deferred Action Guidance at 1, 2. Further, unlike substantive rules, a general statement of policy is one “that does not impose any rights and obligations” and that “genuinely leaves the agency and its decisionmakers free to exercise discretion.” Prof’ls & Patients for Customized Care, 56 F.3d at 595. Here, the deferred action guidance “confers no
36 Plaintiffs argue that it is “meaningless” that the 2014 Deferred Action Guidance makes clear that it is not intended to confer any substantive right, immigration status, or pathway to citizenship. But in the Fifth Circuit, courts may consider the agency’s characterization as evidence of the nature of the pronouncement. See id.; see also, e.g., Wilderness Soc’y v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006). The agency’s characterization may, in some circumstances, even be a “key factor[].” See Interstate Natural Gas Ass’n of Am. v. FERC, 285 F.3d 18, 59 (D.C. Cir. 2002).
-45-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 64 of 75
substantive right,37 immigration status or pathway to citizenship.” 2014 Deferred Action Guidance at 2. Further, as demonstrated above, see supra, pp. 40-41, the deferred action guidance provides for an individualized decision concerning the exercise of prosecutorial discretion. See 2014 Deferred Action Guidance at 4.
The Ninth Circuit found that legacy INS operating instructions from 1987 and 1981 providing guidance on deferred action were “general policy statements” that were exempt from notice-and-comment. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013, 1017 (9th Cir. 1987) (noting that general policy statements “inform[] the public concerning the agency’s future . . . priorities for exercising its discretionary power” and “provide direction to the agency’s personnel in the field, who are required to implement its policies and exercise its discretionary power in specific cases”); see also Romeiro de Silva v. Smith, 773 F.2d 1021, 1024-25 (9th Cir. 1985). Ignoring Mada-Luna, Plaintiffs incorrectly rely on an earlier Ninth Circuit case, Nicholas v. INS, 590 F.2d 802, 807-08 (9th Cir. 1979), see Pls.’ Mot. at 19, which did not involve a notice-andcomment challenge and which predated both Chaney and Vigil.38 In any event, “[m]ost other courts that . . . considered this issue . . . concluded that the 1978 Operations Instruction [was] an intra-agency guideline which confer[red] no substantive benefit on aliens seeking inclusion in the deferred action category.” Romeiro de Silva, 773 F.2d at 1023. Notably, in considering whether an alien had a substantive right to request deferral of removal, the Fifth Circuit found that the
37 Plaintiffs’ claim that the 2014 Deferred Action Guidance “[c]ategorically authorize[es] work for millions of otherwise-unauthorized individuals,” Pls.’ Mot. at 23-24, is based on a false premise; there is nothing in the 2014 Deferred Action Guidance that provides any benefit beyond what is already provided for by statute or regulation. As discussed above, see supra, p. 42 n. 34, regulations promulgated in 1981 codified existing procedures for granting employment authorization, including to deferred action recipients. See 46 Fed. Reg. at 25080-81. Plaintiffs do not challenge this regulation, but in any event, it was adopted after notice-and-comment rulemaking and is fully compliant with the APA. 38 Plaintiffs also rely on Morton v. Ruiz, 415 U.S. 199, 232 (1974), but Morton did not consider whether the “general statement of policy” exemption applied.
-46-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 65 of 75
INS’s procedures for granting deferred action did not create a right of application, let alone a right to receive the benefit. The court held that “[t]he decision to grant or withhold nonpriority status . . . lies within the particular discretion of the INS, and we decline to hold that the agency has no power to create and employ such a category for its own administrative convenience without standardizing the category and allowing applications for inclusion in it.” Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976).
Because the 2014 Deferred Action Guidance is a “general statement of policy,” it is exempt from the APA’s notice-and-comment requirements.
ii. The Guidance Is Consistent with Congress’s Intent in Enacting the INA and Delegating to the Secretary Discretion in Enforcing Its Provisions
Plaintiffs fail to raise any cognizable basis on which this Court could invalidate the 2014 Deferred Action Guidance under the APA. Plaintiffs assert, without discussion of case law, that the challenged guidance is “arbitrary and capricious,” but this unsubstantiated argument is based solely on inaccurate characterizations of several provisions of the INA. These easily refuted suggestions do not meet the high bar for relief. When determining whether agency action is arbitrary, capricious or not in accordance with law, the Court’s “scope of review . . . is very narrow.” Louisiana v. Verity, 853 F.2d 322, 327 (5th Cir. 1988). The Court must “determine whether the agency decision was based on a consideration of the relevant factors and whether there was a clear error of judgment.” Delta Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002) (quotation omitted). This standard of review is highly deferential. The “agency’s decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record.” Id.
As an initial matter, even if Plaintiffs’ claim was justiciable, this Court should still
-47-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 66 of 75
decline to review such a claim under the APA because the enforcement of immigration law is a core executive power. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (finding that under the APA, 5 U.S.C. § 702, courts should decline to review matters on equitable grounds that intrude into core executive powers); see also Al- Aulaqi v. Obama, 727 F. Supp. 2d 1, 42 (D.D.C. 2010) (rejecting interjection into “sensitive” foreign affairs matters).
Regardless, the 2014 Deferred Action Guidance was issued in accordance with Congress’s broad and explicit vesting of authority in the Secretary, charging him with “the administration and enforcement of [the INA and all other laws] relating to the immigration and naturalization of aliens,” see 8 U.S.C. § 1103, and the obligation to “[e]stablish[] national immigration enforcement policies and priorities.” 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. Further, as explained above, no section of the INA conflicts with the Secretary’s Deferred Action Guidance. See supra, pp. 35-37. And, Plaintiffs’ challenge to the provision of employment authorization under independent operation of law and regulation, see 8 U.S.C. § 1324a(h)(3) and 8 C.F.R. § 274a.12, is misplaced, because aliens who are granted deferred action have long been eligible for work authorization based on independent provisions of law. See 8 C.F.R. § 274a.12(c)(14). Plaintiffs do not challenge the legality of these provisions.
The APA does not contemplate “pervasive oversight by federal courts over the manner and pace of agency compliance with [broad] congressional directives[.]” See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 67 (2004). Here, Plaintiffs seek exactly the kind of judicial entanglement in discretionary policy decisions that the APA precludes. This claim, and
-48-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 67 of 75
Plaintiffs’ derivative claim under the Take Care Clause, must therefore be rejected. III. PLAINTIFFS WILL NOT SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION Because Plaintiffs have failed to establish that they will suffer any cognizable injury at
all, they have necessarily failed to show that they will suffer an irreparable injury absent the injunction. The Supreme Court has made clear that a preliminary injunction cannot be entered only on a “possibility” of irreparable harm; “plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (citations omitted). “The Winter standard requires [Plaintiffs] to demonstrate that irreparable harm is real, imminent, and significant—not merely speculative or potential—with admissible evidence.” Aquifer Guardians v. Fed. Highway Admin., 779 F. Supp. 2d 542, 574 (W.D. Tex. 2011).
Here, for the same reasons Plaintiffs lack an injury-in-fact, and even more so in light of the heightened standard for irreparable harm, Plaintiffs fall well short of demonstrating the harm required for preliminary injunctive relief. Their claim of irreparable harm rests on their speculation that the 2014 Deferred Action Guidance will cause a “humanitarian crisis along Texas’s southern border and elsewhere” and “will be virtually irreversible” if DHS is allowed to implement it. Pls.’ Mot. at 25. Nothing but speculation suggests that the guidance will cause these alleged injuries. As discussed above, these claimed future injuries are entirely contingent on the action of third parties not before the Court—individuals outside the country—and thus are purely speculative. See, e.g., Allen, 468 U.S. at 758-59; Little v. KPMG, LLP, 575 F. 3d 533, 541 (5th Cir. 2009) (“[C]laim of injury depends on several layers of decisions by third parties . . . and is too speculative[.]”).
Plaintiffs also speculate that the 2014 Deferred Action Guidance will lead “4 million
-49-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 68 of 75
individuals [to] take advantage of” state benefits. Pls.’ Mot. at 27. Not so. The 2014 Deferred
Action Guidance does not itself require the States to provide any state benefits to deferred action
recipients; that is a decision of the States. Although Plaintiffs identify some state benefits
contingent on proof of work authorization, see Pls.’ Mot. at 27, the 2014 Deferred Action
Guidance itself does not itself confer any substantive right or immigration status to those whose
requests are approved; recipients are simply not deported for a limited amount of time at the
Secretary’s discretion. In any event, it is entirely speculative that recipients of deferred action
will apply for, and will be granted, any state benefits. And even assuming that some will be
granted benefits, Plaintiffs have not shown that a preliminary injunction is necessary to prevent such alleged harm;39 states have power over their own laws and action taken pursuant to them.40
IV. GRANTING A PRELIMINARY INJUNCTION WOULD HARM DEFENDANTS AND THE PUBLIC INTEREST
Finally, Plaintiffs have failed to demonstrate—as they must—that the threatened
irreparable injury outweighs the threatened harm that the injunction would cause Defendants and
unrepresented third parties, and that granting the injunction would not “be adverse to public
interest.” Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1079 (5th Cir. 1986); Southdown,
Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595, 596 (S.D. Tex. 1988) (petitioner has
39 See supra, pp. 17-18 & n. 16 (discussing economic benefits of DACA). 40 Plaintiffs’ requested injunction is also entirely disproportionate to their alleged irreparable harm. While Plaintiffs seek a nationwide injunction, only Texas and Wisconsin have attempted to show irreparable harm by identifying state laws allegedly providing benefits to future recipients of deferred action under DAPA and DACA, and only Texas claims specific costs allegedly caused by illegal immigration. Pls.’ Mot. at 26-27. As a “general principle ‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’” Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Even setting aside all other defects with their Motion, Plaintiffs have entirely failed to show entitlement to the nationwide injunction they seek. See, e.g., Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3rd Cir. 2000); Lewis v. Casey, 518 U.S. 343, 357 (1996). At the same time, the Constitution’s vesting of immigration power exclusively in the Federal Government, and the constitutionally grounded interest in national uniformity in administration of the immigration laws, weigh heavily against an injunction regarding enforcement of federal immigration laws in one state. Arizona, 132 S. Ct. at 2498-99.
-50-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 69 of 75
burden to show injunction will cause “no disservice to unrepresented third parties”). Courts should “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (citation omitted). “[E]ven though irreparable injury may otherwise result to plaintiff,” courts may postpone issuing an injunction “until a final determination of the rights of the parties” if the injunction would “adversely affect a public interest[.]” Id. Here, the balance of equities and the public interest weigh heavily against Plaintiffs’ requested preliminary injunction. As established above, Plaintiffs’ alleged harms are entirely speculative and disconnected from the guidance they seek to enjoin. In contrast, preventing DHS from implementing the 2014 Deferred Action Guidance would cause serious harm and disruption. It would undermine DHS’s comprehensive efforts to focus on its top enforcement priorities: national security, border security, and public safety, while simultaneously resulting in undue and needless humanitarian harm.
A. The Challenged Deferred Action Guidance Promotes CongressionallyMandated Public Safety and National Security Objectives
Congress has directed DHS, an agency with limited resources, to prioritize the removal of aliens who pose a threat to national security, border security, and public safety. See supra, pp. 67, 42-43. As explained above, that is precisely what the 2014 Deferred Action Guidance helps DHS accomplish. Individuals who may participate include high school graduates and parents of U.S. citizens or LPRs, all of whom have lived in the United States for at least five years and are determined on a case-by-case basis not to pose a threat to national security or public safety, or otherwise to present a factor that makes deferred action inappropriate. 2014 Deferred Action Guidance at 3-4. By creating a mechanism to efficiently identify these aliens who are a low priority for removal, these guidelines help the government to focus its removal efforts on criminals, threats to national security, and more recent border crossers, while recognizing
-51-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 70 of 75
important humanitarian considerations. Documents provided through deferred action, for instance, allow immigration officials conducting enforcement actions to quickly distinguish recent border crossers and other enforcement priorities—who may be removed more quickly under existing statutory authority—from lower-priority aliens whose cases may impose additional burdens on already backlogged immigration courts.
The need for these guidelines is especially acute given recent developments affecting the removal of persons from the United States. At the border, for example, recent and sizable demographic shifts necessitate a significant realignment in the Department’s approach to border enforcement. For example, the U.S. Border Patrol is apprehending an increasing number of nationals from Central American countries at the border (paired with a decrease in the apprehension of Mexican nationals). See U.S. Customs and Border Protection, USBP Nationwide Apprehensions by Requested Citizenship FY 2010 – FY 2014 (Ex. 27). This shift requires both: (1) a significant transfer of ICE resources to assist with the removal of aliens apprehended by the Border Patrol who are not immediately removable to a contiguous country, and (2) the expenditure of increased overall resources, as the removal of persons to noncontiguous countries is far more resource-intensive. See ICE, ERO Annual Report: FY 2014 at 4, 9 (Ex. 4). In addition, restrictions on ICE’s use of detainers with state and local law enforcement agencies, and the backlog in the immigration courts, have made the removal of aliens, including criminal aliens, from the interior of the country more difficult and resourceintensive. Id. at 4-5; Review of the President’s Emergency Supplemental Request: H’ng Before Sen. Comm. on Appropriations, 113th Cong. 2 (Jul. 10, 2014) (stmt. of Jeh Johnson) (Ex. 32).
The Government continues to undertake substantial and successful efforts to stem illegal immigration across the Mexican border. This summer, for example, DHS shifted significant
-52-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 71 of 75
resources from across the Department to the border. See, e.g., Open Borders: The Impact of Presidential Amnesty on Border Security: Hearing Before the H. Comm. on Homeland Security, 113th Cong. 3-4 (Dec. 2, 2014) (stmt. of Jeh C. Johnson) (Ex. 33). And in recent months the U.S. Government has held high-level discussions with Mexico and Central American countries, provided millions of dollars in aid to those countries, and initiated a large-scale public affairs campaign to explain to people in these countries the dangers of making the long journey to the United States, attempt to dissuade them from making the journey, and inform them that individuals, regardless of age, apprehended crossing the U.S. border will be priorities for deportation. See, e.g., Fugate statement at 4-6 (Ex. 23).
Due to these and other challenges in removing high-priority aliens, consistent with congressional mandates, DHS has had to further realign its resources away from non-priority aliens where possible. The 2014 Deferred Action Guidance provides crucial support for this effort. By actively inducing individuals who are not removal priorities to come forward, submit to background checks, and pay fees that fund the cost of investigating and processing their requests for deferred action from USCIS, DHS is better able to identify priority aliens and concentrate CBP’s and ICE’s enforcement resources on such aliens.
B. The Challenged Deferred Action Guidance Furthers Humanitarian and Other Interests
The public interest is also advanced by other equities from the discretion entailed in the 2014 Deferred Action Guidance. As the Court in Arizona acknowledged, “[d]iscretion in the enforcement of immigration law embraces immediate human concerns.” 132 S. Ct. at 2499. Such discretion may properly recognize the difference between “[u]nauthorized workers trying to support their families” and “alien smugglers” or those “who commit a serious crime.” Id. The Court also specifically suggested that family unity is an appropriate factor for DHS to consider in
-53-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 72 of 75
exercising its enforcement discretion. See id. at 2499 (“The equities of an individual case may turn on many factors, including whether the alien has children born in the United States[.]”). The 2014 Deferred Action Guidance furthers these important goals. The injunction Plaintiffs seek would harm the public by halting policies that not only promote public safety and national security, but also humanitarian concerns and family unification. Deferred action impacts the lives of many people. For example, as of December 19, 2014, approximately 636,324 individuals have been granted deferred action under DACA. DHS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014) (Ex. 31). Moreover, Plaintiffs’ requested injunction would disrupt the effective enforcement of the laws, interfere with the orderly implementation of the mechanisms for considering some nonpriority cases for deferred action under the 2014 Deferred Action Guidance, and impede the harmonization of enforcement priorities among DHS’s component immigration agencies.
C. Enjoining the Challenged Deferred Action Guidance Would Significantly Undermine the Public Interest
DHS officials have been instructed to implement the DACA modifications within 90 days and DAPA within 180 days. 2014 Deferred Action Guidance at 4-5. A preliminary injunction would prevent DHS from the timely implementation of this guidance. It is not in the public interest to delay a policy that promotes public safety, national security, administrative efficiency, and humanitarian concerns. See, e.g., Nat’l Res. Def. Council, Inc. v. Pena, 972 F. Supp. 9, 20 (D.D.C. 1997); Hodges v. Abraham, 253 F. Supp. 2d 846, 873 (D.S.C. 2002); Gulf Oil Corp. v. FEA, 391 F. Supp. 856, 864 (W.D. Pa. 1975). As explained further above, the 2014 Deferred Action Guidance is part of DHS’s broader efforts to more effectively administer and enforce our Nation’s immigration laws, including by allowing enforcement resources to be focused on highpriority aliens, thereby promoting national security and public safety, while at the same time
-54-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 73 of 75

addressing the human concerns properly the subject of immigration enforcement efforts. Moreover, because DACA and DAPA are fully funded through the fees paid by requestors, these goals are being accomplished effectively and without cost to DHS. These initiatives also advance the public interest by allowing individuals already been present in the country for many years to work legally and thereby pay taxes like everybody else.
D. The Challenged Deferred Action Guidance and Exercises of Discretion Can Be Modified at Any Time
Plaintiffs contend that a preliminary injunction is justified because “it [would] be difficult or impossible to reverse Defendants’ Actions[.]” Pls.’ Mot. at 26. Plaintiffs are wrong. Deferred action confers “no substantive right, immigration status or pathway to citizenship.” 2014 Deferred Action Guidance at 5. And deferred action can be revoked at any time in the agency’s discretion. Id. at 2.
CONCLUSION For all the foregoing reasons, this Court should deny Plaintiffs’ motion for preliminary injunction and dismiss Plaintiffs’ Complaint for lack of subject matter jurisdiction.

Dated: December 24, 2014
KENNETH MAGIDSON United States Attorney
DANIEL DAVID HU Assistant United States Attorney Deputy Chief, Civil Division

Respectfully submitted,
JOYCE R. BRANDA Acting Assistant Attorney General
KATHLEEN R. HARTNETT Deputy Assistant Attorney General
DIANE KELLEHER Assistant Branch Director
/s/ Kyle R. Freeny KYLE R. FREENY (Cal. Bar No. 247857) Attorney-in-Charge HECTOR G. BLADUELL BRADLEY H. COHEN ADAM D. KIRSCHNER
-55-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 74 of 75 JULIE S. SALTMAN Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Tel.: (202) 514-5108 Fax: (202) 616-8470 Kyle.Freeny@usdoj.gov Counsel for Defendants
-56-

Case 1:14-cv-00254 Document 38 Filed in TXSD on 12/24/14 Page 75 of 75
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Preliminary Injunction has been delivered electronically on December 24, 2014, to counsel for Plaintiffs via the District’s ECF system.
/s/ Kyle R. Freeny Counsel for Defendants

 
 Case 1:14-cv-00254 Document 38-1 Filed in TXSD on 12/24/14 Page 1 of 34
EXHIBIT 1

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1agoef 323of 34

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH ARPAIO, Plaintiff, v.
BARACK H. OBAMA, President, United States in his official capacity, et al.,
Defendant.

Civil Action No. 14-01966 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, the elected Sheriff of Maricopa County, brings suit against the President of the United States, and other Federal officials, alleging that certain immigration policies announced by the President in a nationwide address on November 20, 2014 are unconstitutional, otherwise illegal, and should be stopped from going into effect. See Pl.’s Mot. Prelim. Inj. (“Pl.’s Mot.”), ECF No. 7. The plaintiff’s suit raises important questions regarding the nation’s immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration. As the Supreme Court recently explained: “[T]he sound exercise of national power over immigration depends on the [Nation] meeting its responsibility to base its law on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 132 S.Ct. 2492, 2510 (2012). The key question in this case, however, concerns the appropriate forum for where this national conversation should occur. The doctrine of standing, in both its constitutional and prudential formulations, concerns itself with “‘the proper—and properly limited—role of the courts in a democratic society.’” Bennett v. Spear, 520 U.S. 154, 162 (1997) (quoting Warth v.
1
001

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2agoef 33of 34
Seldin, 422 U.S. 490, 498 (1975)). Standing “ensures that [courts] act as judges, and do not engage in policymaking properly left to elected representatives.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013).
The refusal to adjudicate a claim should not be confused with abdicating the responsibility of judicial review. “Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.” Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 474 (1982). A court must refrain “‘from passing upon the constitutionality of an act [of the representative branches], unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.’” Id. (quoting Blair v. United States, 250 U.S. 273, 279 (1919)) (alteration in original). Ultimately, “[i]t is the role of courts to provide relief to claimants . . . who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
Concerns over the judicial role are heightened when the issue before the court involves, as here, enforcement of the immigration laws. This subject raises the stakes of, among other factors, “immediate human concerns” and “policy choices that bear on this Nation’s international relations.” Arizona v. United States, 132 S.Ct. at 2499. “[O]ur Constitution places such sensitive immigration and economic judgments squarely in the hands of the Political Branches, not the courts.” Fogo de Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d 1127,
2
002

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP3agoef 343of 34
1151 n.10 (D.C. Cir. 2014); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (“The power to regulate immigration—an attribute of sovereignty essential to the preservation of any nation—has been entrusted by the Constitution to the political branches of the Federal Government.”).
The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury— not to engage in policymaking better left to the political branches. The plaintiff’s case raises important questions regarding the impact of illegal immigration on this Nation, but the questions amount to generalized grievances which are not proper for the Judiciary to address. For the reasons explained in more detail below, the plaintiff lacks standing to bring this challenge to the constitutionality and legality of the immigration policies at issue. Accordingly, the plaintiff’s motion for a preliminary injunction, ECF No. 7, is denied and the defendants’ motion to dismiss for lack of subject matter jurisdiction, ECF Nos. 13, 15, is granted.1 I. BACKGROUND
A. Executive Enforcement of Immigration Laws The Immigration and Nationality Act (“INA”), codified as amended at 8 U.S.C. § 1101 et seq., establishes a comprehensive statutory scheme that governs immigration and naturalization. The INA establishes categories of immigrants who are inadmissible to the United States in the first instance, see 8 U.S.C. § 1182, and immigrants who are subject to removal from the United States once here, see 8 U.S.C. § 1227. Under the INA, “[a]liens may be removed if they were
1 The plaintiff filed a motion for preliminary injunction at ECF No. 6 and an amended, corrected motion for preliminary injunction at ECF No. 7. Plaintiff’s counsel clarified at the motions hearing that the latter filed motion is the operative motion. See Rough Transcript of Preliminary Injunction Hearing (Dec. 22, 2014) (“Hrg. Tr.”) at 3– 4. Consequently, the plaintiff’s motion for preliminary injunction docketed at ECF No. 6 is denied as moot.
3
003

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP4agoef 353of 34
inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona, 132 S.Ct. at 2499 (citing 8 U.S.C. § 1227).
The Secretary of the Department of Homeland Security (“DHS”) is “charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. § 1103(a)(1). Although charged with enforcement of the statutory scheme, “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” Heckler v. Chaney, 470 U.S. 821, 831–32 (1985), and indeed “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S.Ct. at 2499. Thus, to enable the “proper ordering of its priorities,” Heckler, 470 U.S. at 832, and the marshalling of extant resources to address those priorities, the INA provides the Secretary of DHS with the authority to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under [the INA].” 8 U.S.C. § 1103(a)(3). Further, the Secretary of DHS is specifically charged with “establishing national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), to ensure that DHS’s limited resources are expended in pursuit of its highest priorities in national security, border security, and public safety.
The context in which the immigration laws are enforced bears out the need for such prioritization. DHS estimates that approximately 11.3 million undocumented immigrants residing in the United States are potentially eligible for removal. Pl.’s Mot., Ex. B (Karl Thompson, Memorandum Opinion for the Sec’y of Homeland Security and the Counsel to the President: DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others at 1, (Nov. 19, 2014) (“OLC Opinion”)) at 1, ECF No. 7-2. Of those, DHS estimates that the agency has the resources to remove fewer than
4
004

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP5agoef 363of 34
400,000 undocumented immigrants. Id. In addition, DHS faces additional challenges including: demographic shifts resulting in increased costs for managing and deterring unauthorized border crossings; increased complexity in removing aliens; congressional directives to prioritize recent border crossers and serious criminals; and the humanitarian and social consequences of separating families. See OLC Opinion at 11; Defs.’ Mem. Opp. Pl.’s Mot. Prelim. Inj. (“Defs.’ Mem.”), Ex. 21 (Challenges at the Border: Examining the Causes, Consequences, and Responses to the Rise in Apprehensions at the Southern Border: Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 113th Cong. (2014) (statement of Craig Fugate, Administrator, Federal Emergency Management Agency, et al.)), ECF No. 13-21; see also Defs.’ Mem. at 1.
To confront these challenges, the executive branch has long used an enforcement tool known as “deferred action” to implement enforcement policies and priorities, as authorized by statute. See 6 U.S.C. § 202(5). Deferred action is simply a decision by an enforcement agency not to seek enforcement of a given statutory or regulatory violation for a limited period of time. In the context of the immigration laws, deferred action represents a decision by DHS not to seek the removal of an alien for a set period of time. In this sense, eligibility for deferred action represents an acknowledgment that those qualifying individuals are the lowest priority for enforcement. Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States. See 8 C.F.R. § 274a.12(c)(14). These regulations were promulgated pursuant to the Immigration Reform and Control Act of 1986 and have been in effect, as amended, since 1987. See Control of Employment of Aliens, 52 Fed. Reg. 16216 (1987). Deferred action does not confer any immigration or citizenship status or establish any enforceable legal right to remain in the United States and, consequently, may be
5
005

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP6agoef 373of 34
canceled at any time. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483
(1999) (“At each stage, the Executive has discretion to abandon the endeavor . . . .”).
For almost twenty years, the use of deferred action programs has been a staple of
immigration enforcement. The executive branch has previously implemented deferred action
programs for certain limited categories of aliens, including: certain victims of domestic abuse
committed by United States citizens and Lawful Permanent Residents;2 victims of human
trafficking and certain other crimes;3 students affected by Hurricane Katrina;4 widows and
widowers of U.S. citizens;5 and certain aliens brought to the United States as children.6
Programs similar to deferred action have been used extensively by the executive branch for an
even longer period of time.7
2 Defs.’ Mem., Ex. 7 (Memorandum for Regional Directors et al., from Paul W. Virtue, Acting Executive Associate Commissioner, INS, Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues at 3 (May 6, 1997)), ECF No. 13-7. 3 Defs.’ Mem., Ex. 8 (Memorandum for Michael A. Pearson, Executive Associate Commissioner, INS, from Michael D. Cronin, Acting Executive Associate Commissioner, INS, Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum #2—“T” and “U” Nonimmigrant Visas at 2 (Aug. 30, 2001)), ECF No. 13-8. 4 Defs.’ Mem., Ex. 9 (USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ), at 1 (Nov. 25, 2005)), ECF No. 13-9 (“Since the Notice does not cover Katrina-impacted foreign academic students who have failed to maintain their F-1 status, such persons, and their F-2 dependents, may request a grant of deferred action and short term employment authorization based on economic necessity.”). 5 Defs.’ Mem., Ex. 10 (Memorandum for Field Leadership, USCIS, from Donald Neufeld, Acting Associate Director, USCIS, Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and Their Children at 1 (Sept. 4, 2009)), ECF No. 13-10. 6 This is the DACA program challenged by the plaintiff. See Pl.’s Mot., Ex. A (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 1–2 (June 15, 2012)), ECF No. 6-1. 7 In the 1970’s through the 1990’s, programs similar to deferred action were used to defer enforcement against undocumented immigrants who were awaiting approval of certain professional visas, see United States ex rel. Parco v. Morris, 426 F. Supp. 976, 979–81 (E.D. Pa. 1977), certain nurses eligible for H-1 visas, see Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan 19, 1978); nationals of certain designated foreign states, see Defs.’ Mem., Ex. 5 (Moore, Charlotte J., Cong. Research Serv., Review of U.S. Refugee Resettlement Programs and Policies at 12-14 (1980)), ECF No. 13-5; and spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, see Defs.’ Mem., Ex. 6 (Memorandum for Regional Commissioners, INS, from Gene McNary, Commissioner, INS, Family Fairness: Guidelines for Voluntary Departure under 8 CFR 242.5 for the Ineligible Spouses and Children of Legalized Aliens (Feb. 2, 1990)), ECF No. 13-6.
6
006

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP7agoef 383of 34
Congress has acquiesced to, and even endorsed the use of, deferred action on removal of undocumented immigrants by the executive branch on multiple occasions. For example, in 2000, Congress expanded the deferred action program for certain victims of domestic abuse, permitting children over the age of twenty-one to be “eligible for deferred action and work authorization.” 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV). Similarly, in 2008, Congress authorized the DHS to “grant . . . an administrative stay of a final order of removal” to individuals who could make an initial showing that they were eligible for a visa as victims of human trafficking and certain other crimes. See 8 U.S.C. § 1227(d)(1). Congress specifically noted that “[t]he denial of a request for an administrative stay of removal . . . shall not preclude the alien from applying for . . . deferred action.” See 8 U.S.C. § 1227(d)(2). In Division B to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, known by its short title of the REAL ID Act of 2005, Congress provided that state-issued driver’s licenses were acceptable for federal purposes only if the state verifies that an applicant maintains evidence of lawful status, which includes evidence of “approved deferred action status.” See Pub. L. No. 109-13, div. B, 119 Stat. 231, 302 (2005) (codified at 49 U.S.C. § 30301 note).
B. Challenged Immigration Programs Against this lengthy historical record of the use of deferred action as a tool to carry out “national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), the executive branch has more recently employed this tool in three programs, which the plaintiff challenges as unconstitutional or otherwise in violation of the Administrative Procedure Act. Specifically, the plaintiff challenges a June 15, 2012 program—known as Deferred Action for Childhood Arrivals (“DACA”)—whose guidance is outlined in a memorandum by the former DHS Secretary entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States
7
007

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP8agoef 393of 34
as Children.” DACA permits, on a case-by-case basis, deferred action on removal for a period of two years for undocumented immigrants that: (1) are under the age of 31 as of June 15, 2012; (2) were under the age of 16 at the time of arrival in the United States; (3) have continuously resided in the United States for at least five years immediately preceding June 15, 2012; (4) were present in the United States on June 15, 2012; (5) are in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or the Armed Forces of the United States; and (6) have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose no threat to the national security or public safety. See Pl.’s Mot., Ex. A (Memorandum from Janet Napolitano, Secretary, Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012)), at 1–2 , ECF No. 7-1.
The other two programs challenged by the plaintiff are outlined in a memorandum by the current DHS Secretary entitled “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.” The memorandum revised the DACA program (“2014 DACA Revisions”) and also created a new program that established guidelines for the request of deferred action by the parents of U.S. Citizens or Lawful Permanent Residents (“DAPA”). See Pl.’s Mot., Ex. D (Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the
8
008

CaseC1a:1se4-1c:v1-40-0c2v5-0419D6o6c-BumAHentD3o8c-1umFeinlet d23in TFXileSdD1o2n/2132/1/244/1P4agPea9goef1303of 34
Parents of U.S. Citizens or Permanent Residents (November 20, 2014) (“2014 Guidance Memorandum”)), ECF No. 7-4.
The principal features of the 2014 DACA Revisions include: (1) removal of the age cap of 31 so that individuals may request deferred action under DACA regardless of their current age, as long as they entered the United States before the age of 16; (2) extension of the period of deferred action from two years to three years; and (3) adjustment of the relevant date by which an individual must have been in the United States from June 15, 2007 to January 1, 2010. See 2014 Guidance Memorandum at 3–4.
DAPA permits, on a case-by-case basis, deferred action on removal for a period of three years for illegal aliens who are parents of U.S. citizens and Lawful Permanent Residents. To be considered for deferred action under DAPA, an individual must meet the following guidelines: (1) have, as of November 20, 2014, a son or daughter who is a U.S. citizen or Lawful Permanent Resident; (2) have continuously resided in the United States since before January 1, 2010; (3) have been physically present in the United States on November 20, 2014 and at the time of making a request for deferred action with U.S. Citizenship and Immigration Services; (4) have no lawful status as of November 20, 2014; (5) not fall within one of the categories of enforcement priorities set forth in additional agency guidelines;8 and (6) present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate. Id.
8 In a November 20, 2014 Memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” the Secretary of DHS set forth three categories of undocumented immigrants who are considered to be priorities for removal. The first category, representing the highest priority for civil immigration authorities, concerns undocumented immigrants who are threats to national security, border security, and public safety. The second category, representing the second-highest priority for civil immigration authorities, concerns undocumented immigrants who have committed certain misdemeanors or recently committed certain immigration violations. The third category, representing the third-highest priority for civil immigration authorities, concerns undocumented immigrants who have been issued a final order of removal on or after January 1, 2014. See Pl.’s Mot., Ex. F (Memorandum from Jeh Charles Johnson, Secretary, Department of Homeland Security, to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, et al., Policies for the Apprehension,
9
009

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a0geof1313of 34
C. Procedural Background On November 20, 2014, in a televised address, President Barack Obama announced the principal features of the most recent deferred action programs, namely, the 2014 DACA Revisions and DAPA. On the same day, the plaintiff filed this action seeking invalidation of these two programs as well as DACA, which had been announced over two years earlier. Although the plaintiff’s Complaint references a preliminary injunction, the plaintiff did not formally or separately move for a preliminary injunction, as required by the Local Civil Rules of this Court, until December 4, 2014. See Pl.’s Mot.; Local Civ. R. 65.1; Minute Order (Nov. 24, 2014). In accordance with the Local Rules governing preliminary injunctions—which permit a defendant seven days to respond to a motion for preliminary injunction once served—the Court ordered the defendants to respond to the plaintiff’s motion for preliminary injunction by December 15, 2014. Ordinarily, the Local Rules make no provision for a reply brief in a motion for preliminary injunction and the Court did not initially permit a reply brief in this case. See Local Civ. R. 65.1. In opposition to the motion for preliminary injunction, the defendants argued that the plaintiff lacked standing to bring this suit and requested dismissal of the suit. See Defs.’ Mem. at 14. The defendants subsequently asked this Court to construe this opposition as a motion to dismiss for lack of subject matter jurisdiction. See Notice, ECF No. 15. Due to the dispositive nature of the defendants’ objection, and to ensure fairness to all the parties, the Court afforded the plaintiff the opportunity to submit a response to the defendants’ objections. In addition, the Court permitted the plaintiff to file a supplemental declaration in support of his standing to bring suit. The Court heard argument from both parties on December 22, 2014.
Detention and Removal of Undocumented Immigrants (November 20, 2014)) at 3–4 , ECF No. 7-6. The plaintiff does not challenge the guidelines set forth in this memorandum. See Hrg. Tr. at 11.
10
010

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a1geof1323of 34
Now pending before the Court is the plaintiff’s motion for a preliminary injunction and the defendants’ motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). II. LEGAL STANDARD
A. Preliminary Injunction “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011))). 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.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948 (2d ed. 1995)) (emphasis in original). The Supreme Court repeated this caution in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), stating that “[a] preliminary injunction is an extraordinary remedy never awarded as of right,” id. at 24, and, again, that “injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” id. at 22. Authority can be found in this Circuit for the so-called “sliding scale” approach to evaluating the four preliminary injunction factors, such that “a strong showing on one factor could make up for a weaker showing on another.” Sherley, 644 F.3d at 392. In particular, even if the plaintiff only “raise[s] a serious legal question on the merits,” rather than a likelihood of success on the merits, a strong showing on all three of the other factors may warrant entry of
11
011

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a2geof133of 34
injunctive relief. Id. at 398; see also Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009) (“[I]f the movant makes a very strong showing of irreparable harm and there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success.”); Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (“[A] court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant a stay if the movant has made a substantial case on the merits.”).
At the same time, the D.C. Circuit has acknowledged that the Supreme Court’s decision in Winter “could be read to create a more demanding burden than the sliding-scale analysis requires.” Sherley, 644 F.3d at 392 (internal quotations omitted).9 Indeed, in Winter, the majority of the Supreme Court reversed a grant of injunctive relief, finding that the standard applied by the Ninth Circuit was “too lenient” in allowing injunctive relief on the “possibility” of irreparable injury, rather than its likelihood. Winter, 555 U.S. at 22; see also Perry v. Perez, 132 S. Ct. 934, 942 (2012) (“Plaintiffs seeking a preliminary injunction of a statute must normally demonstrate that they are likely to succeed on the merits of their challenge to that law.”).
In Aamer v. Obama, the D.C. Circuit declined to opine about the continued viability of the “sliding scale” analysis of the four preliminary injunction factors, stating that it “remains an open question whether the ‘likelihood of success’ factor is ‘an independent, free-standing requirement,’ or whether, in cases where the other three factors strongly favor issuing an injunction, a plaintiff need only raise a ‘serious legal question’ on the merits.” 742 F.3d at 1043; see also Am. Meat Inst. v. U.S. Dep't of Agric., 746 F.3d 1065, 1074 (D.C. Cir. 2014) (“This circuit has repeatedly declined to take sides in a circuit split on the question of whether
9 The plaintiff, in his briefing, notes only the sliding-scale analysis and ignores the voluminous case law describing the uncertainty regarding the continued viability of the sliding-scale analysis in this Circuit. See Pl.’s Mot. at 11.
12
012

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a3geof1343of 34
likelihood of success on the merits is a freestanding threshold requirement to issuance of a preliminary injunction. . . . We need not take sides today.”).
Under either approach, a court may not issue “a preliminary injunction based only on a possibility of irreparable harm . . . [since] injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22; see also In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (requiring proof that all four prongs of preliminary injunction standard be met before injunctive relief can be issued). Thus, the plaintiff bears the burden of persuasion on all four preliminary injunction factors in order to secure such an “extraordinary remedy.”
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); FED. R. CIV. P. 12(h)(3). When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
13
013

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a4geof1353of 34
facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004))). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Moreover, in evaluating subject matter jurisdiction, the court, when necessary, may “‘undertake an independent investigation to assure itself of its own subject matter jurisdiction,’” Settles v. United States Parole Comm'n, 429 F.3d 1098, 11071108 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987), and consider facts developed in the record beyond the complaint, id. See also Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (in disposing of motion to dismiss for lack of subject matter jurisdiction, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”); Alliance for Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
The burden of establishing any jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff. See Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). III. DISCUSSION
The plaintiff concedes, as he must, that “he and other similarly situated state law enforcement and other officials have no authority” to enforce the immigration laws of the United States. Compl. at 19; see also Arizona, 132 S. Ct. at 2507. Nonetheless, the plaintiff seeks to
14
014

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a5geof1363of 34
alter federal enforcement policy by asking the Court to halt three federal immigration programs that have the over-arching purpose of prioritizing federal enforcement efforts. See Arizona, 132 S. Ct. at 2499 (noting that “[a]principal feature of the removal system is the broad discretion exercised by immigration officials,” who “as an initial matter, must decide whether it makes sense to pursue removal at all.”). The plaintiff’s inability to enforce federal immigration law is integrally related to the central question in this case: Whether the plaintiff has standing to demand changes to the “broad discretion” granted federal officials regarding removal. Despite the consequences of unlawful immigration in Maricopa County, the plaintiff cannot meet the requirements for standing to bring this suit.
A. The Plaintiff Lacks Standing Article III of the Constitution restricts the power of federal courts to hear only “Cases” and “Controversies.” “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Indeed, “‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation on federal-court jurisdiction to actual cases or controversies.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (alterations in original) (internal quotations omitted). The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations
15
015

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a6geof1373of 34
and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be “likely” that the complained-of injury will be “redressed by a favorable decision” of the court. Id. at 561. In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). Likewise, when declaratory or injunctive relief is sought—relief the plaintiff seeks here—a plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
The plaintiff fails to meet any of the three elements of constitutional standing. Each of these requirements is addressed seriatim below.
1. Injury in Fact At the outset, the plaintiff’s Complaint and motion for preliminary injunction fail to identify whether the plaintiff is bringing suit in his individual capacity or in his official capacity as the elected Sheriff of Maricopa County. Compare Compl. ¶ 3 (noting only that “[t]he Plaintiff Joe Arpaio is the elected Sheriff of Maricopa County, State of Arizona”), with ¶ 8 (detailing that each defendant was being sued “in their individual and official capacities”). The Court clarified during oral argument that the plaintiff is bringing suit in both his personal and official capacities. Hrg. Tr. at 5. Regardless of whether the plaintiff is suing in his individual or official capacity, or both, the plaintiff cannot demonstrate a cognizable injury from the challenged deferred action programs.
16
016

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a7geof1383of 34
a) Personal Capacity The law is well-settled that ordinarily, “private persons . . . have no judicially cognizable interest in procuring enforcement of the immigration laws . . . .” Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 897 (1984) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). This is merely the application of the long-standing principle that a plaintiff “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (quoting Defenders of Wildlife, 504 U.S. at 573–74). As a result, a plaintiff who seeks to vindicate only the general interest in the proper application of the Constitution and laws does not suffer the type of direct, concrete and tangible harm that confers standing and warrants the exercise of jurisdiction. Yet, this is the type of suit the plaintiff attempts to bring in his personal capacity. See Supp. Decl. of Sheriff Joe Arpaio ¶ 3 (“Pl.’s Supp. Decl.”), ECF No. 20-1 (“By this lawsuit, I am seeking to have the President and the other Defendants obey the U.S. Constitution and the immigration laws . . . .”).
The plaintiff does offer one additional theory, however, in support of his claim of injury in his individual capacity. The plaintiff cites press reports and press releases from his own office that undocumented immigrants have targeted him for assassination as a result of the plaintiff’s “widely known stance on illegal immigration.” See Press Release, Bomb Threats against Sheriff Arpaio and Office on Upsurge as Another Suspect is Indicted, Maricopa County Sheriff’s Office (August 21, 2013) (“Threats Press Release”), ECF No. 21-1. Such threats are deplorable and offensive to the entire justice system. Nevertheless, these allegations cannot confer standing on the plaintiff in his individual capacity in this case. In requesting injunctive
17
017

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a8geof1393of 34
relief, the plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Dearth, 641 F.3d at 501. The plaintiff has presented no evidence that these threats are ongoing. “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’” Defenders of Wildlife, 504 U.S. at 564 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974))).
Moreover, as will be discussed in detail below, even an ongoing threat to the plaintiff by undocumented immigrants would not provide the plaintiff with standing to challenge the deferred action programs at issue. The plaintiff must not only show that he is injured, but that the plaintiff’s injury is fairly traceable to the challenged deferred action programs and that the injury is capable of redress by this Court in this action. The plaintiff cannot meet this showing. The challenge deferred action programs did not cause the threats to the plaintiff’s life. Rather, criminal action by third-parties not before the court caused the threats to the plaintiff. Moreover, according to the plaintiff’s press release, the alleged assassins were motivated by the plaintiff’s “widely known stance on illegal immigration,” a stance pre-existing this case and these challenged programs. See Threats Press Release. Furthermore, an injunction in this case would do nothing either to alter the plaintiff’s views on “illegal immigration” or to redress the targeting of the plaintiff resulting from his “widely known stance on illegal immigration.” This dooms the plaintiff’s standing to bring this suit in his personal capacity as an ordinary citizen.
b) Official Capacity Even if the plaintiff can circumvent these limitations by bringing suit in his official capacity as Sheriff of Maricopa County, the plaintiff still lacks standing.
18
018

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP1a9geof2303of 34
The plaintiff claims that the challenged deferred action programs, which provide guidance to Federal law enforcement regarding the removal or non-removal of undocumented immigrants, inhibit his ability to perform his official functions as the Sheriff of Maricopa County. The plaintiff alleges that he is “adversely affected and harmed in his office’s finances, workload, and interference with the conduct of his duties” as a result of the “increases in the influx of illegal aliens motivated by [these] policies of offering amnesty.” Compl. ¶ 27. As support for this allegation, he alleges that “experience has proven as an empirical fact that millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details” of the challenged policies. Compl. ¶ 30. The plaintiff further alleges that, “the experiences and records of the Sheriff’s office show that many illegal aliens . . . are repeat offenders, such that Plaintiff Arpaio’s deputies and other law enforcement officials have arrested the same illegal aliens for various different crimes.” Compl. ¶ 31. According to the plaintiff, the “financial impact of illegal aliens in Maricopa County, Arizona was at least $9,293,619.96 in the costs of holding illegal aliens in the Sheriff’s jails from February 1, 2014, through December 17, 2014, for those inmates flagged with INS ‘detainers.’” Pl.’s Reply Defs.’ Opp. Pl.’s Mot. Prelim. Inj. at 7 (“Pl.’s Reply”), ECF No. 19.
The plaintiff is correct that the regulation and impairment of a state officer’s official functions may be sufficient to confer standing, but only in certain limited circumstances. See, e.g., Lomont v. O’Neil, 285 F.3d 9, 13–14 (D.C. Cir. 2002) (holding that a state Sheriff and Police Chief had standing to challenge federal law permitting state police officials to provide certifications relating to the transfer of certain firearms); Fraternal Order of the Police v. United States, 152 F.3d 998, 1001–02 (D.C. Cir. 1998). Yet, neither Lomont nor Fraternal Order of the Police support the plaintiff’s argument here, as both cases concerned the direct regulation of a
19
019

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a0geof2313of 34
state officer’s official duties. In contrast, the challenged deferred action programs do not
regulate the official conduct of the plaintiff but merely regulate the conduct of federal
immigration officials in the exercise of their official duties. Thus, even if the plaintiff’s official
functions could be viewed as a “legally protected interest,” the challenged deferred action
programs do not amount to “an invasion” of that interest in a manner that is “concrete and
particularized.” Defenders of Wildlife, 504 U.S. at 560. Indeed, it is not apparent exactly what
cognizable interest and injury the plaintiff can assert since, as the plaintiff’s Complaint
recognizes, the plaintiff has no legal authority to enforce the immigration laws of the United
States. See Compl. at 19.
Ultimately, the plaintiff’s standing argument reduces to a simple generalized grievance: A Federal policy causes his office to expend resources in a manner that he deems suboptimal.10
To accept such a broad interpretation of the injury requirement would permit nearly all state
officials to challenge a host of Federal laws simply because they disagree with how many—or
how few—Federal resources are brought to bear on local interests. Fortunately, the standing
doctrine is not so limp. As the Supreme Court has repeatedly emphasized: “‘a plaintiff raising
only a generally available grievance about government—claiming only harm to his and every
citizen’s interest in [the] proper application of the Constitution and laws, and seeking relief that
no more directly [or] tangibly benefits him than it does the public at large—does not state an
10 Although prior case law has occasionally suggested that “generalized grievances” should be analyzed as part of prudential standing, the Supreme Court recently suggested that such concerns should be considered as part of Article III standing. See Lexmark Int’l, 134 S. Ct. at 1387 n.3 (“While we have at times grounded our reluctance to entertain [suits concerning generalized grievances] in the ‘counsels of prudence’ (albeit counsels ‘close[ly] relat[ed] to the policies reflected in’ Article III), we have since held that such suits do not present constitutional ‘cases’ or ‘controversies.’” (internal citations omitted) (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982))). Although there is some dispute within this Circuit as to whether prudential standing should be considered jurisdictional, there is no dispute that where the plaintiff cannot meet the irreducible constitutional minimum of Article III standing, the court need not address whether the plaintiff has prudential standing. See generally Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012). Accordingly, the Court does not address whether prudential concerns prevent the plaintiff from establishing standing.
20
020

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a1geof2323of 34
Article III case or controversy.’” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at 573); see also Pl.’s Supp. Decl. ¶ 3 (“By this lawsuit, I am seeking to have the President and other Defendants obey the U.S. Constitution and the immigration laws . . . .”). Simply put, a state official has not suffered an injury in fact to a legally cognizable interest because a federal government program is anticipated to produce an increase in that state’s population and a concomitant increase in the need for the state’s resources. Cf. Massachusetts v. EPA, 549 U.S. 497, 520-521 (2007) (finding standing for Massachusetts because of state’s “quasi-sovereign interests” relating to its “desire to preserve its sovereign territory” not because of the increase in state expenditures resulting from federal policy concerning global warming).
Moreover, the plaintiff’s alleged injury is largely speculative. The plaintiff argues that the challenged deferred action programs will create a “magnet” by attracting new undocumented immigrants into Maricopa County, some of whom may commit crimes under Arizona law. Pl.’s Mot. at 16–17; see also Pl.’s Mot., Ex. G, Decl. of Sheriff Joe Arpaio ¶¶ 7, 11–14, ECF No. 7-7. Yet, the decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country. The plaintiff reduces this complex process to a single factor: the challenged deferred action programs.
Even drawing all inferences in favor of the plaintiff, the terms of the challenged deferred action programs do not support the plaintiff’s theory. The challenged deferred action programs would have no impact on new immigrants, as the guidance defining the programs makes clear that these programs only apply to undocumented immigrants residing in the United States prior to January 1, 2010. 2014 Guidance Memorandum at 4. Thus, it is speculative that a program,
21
021

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a2geof233of 34
which does not apply to future immigrants, will nonetheless result in immigrants crossing the border illegally into Maricopa County (and other borders of this country).
The plaintiff has been unable to show that the challenged deferred action programs have interfered with his official duties as Sheriff in a manner that “is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical” and has therefore failed in his burden to establish an injury in fact. Defenders of Wildlife, 504 U.S. at 560.
2. Causation and Redressability The plaintiff’s speculative injury is not the only infirmity in the plaintiff’s standing theory. A plaintiff must not only show an “injury in fact,” but must also show that the injury is fairly traceable to the allegedly harmful conduct and that the relief sought by the plaintiff will likely redress the injury. Defenders of Wildlife, 504 U.S. at 560. Two overarching principles apply to the causation and redressability inquiry in this case. First, this case involves the purported “standing to challenge [an executive action] where the direct cause of injury is the independent action of . . . third part[ies].” Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1269 (D.C. Cir. 2007). Indeed, it is the actions taken by undocumented immigrants—migrating to Maricopa County and committing crimes once there—that are purportedly the direct cause of the plaintiff’s injury. As will be discussed, however, “courts [only] occasionally find the elements of standing to be satisfied in cases challenging government action on the basis of third-party conduct.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004).11
11 The plaintiff attempts to rely upon the doctrine of competitor standing to avoid the strict limitations imposed on cases where the source of the plaintiff’s harm is the independent actions of third parties. Yet, the cases on which the plaintiff relies, see Mendoza v. Perez, 754 F.3d 1002, 1012–14 (D.C. Cir. 2014); Honeywell Int’l Inc. v. EPA, 374 F.3d 1363, 1369 (D.C. Cir. 2004); and Washington Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., No. 14-cv-529, 2014 WL 6537464, at *4 (D.D.C. Nov. 21, 2014), do not support the plaintiff’s standing argument in this case. Standing was found in those cases because a plaintiff suffered an injury in fact “when an agency lift[ed] regulatory restrictions on their competitors or otherwise allow[ed] increased competition.” Mendoza, 754 F.3d at
22
022

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a3geof2343of 34
Second, and relatedly, the programs challenged by the plaintiff do not regulate the plaintiff directly; rather, they regulate federal immigration officials. As the Supreme Court has made clear, “[w]hen . . . a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” to confer standing. Defenders of Wildlife, 504 U.S. at 562 (emphasis in original). When standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict . . . it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Id. (internal quotations and citations omitted); see also id. (“[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” (internal quotation marks omitted)).
The Court first addresses the plaintiff’s failure to show causation before discussing the plaintiff’s failure to demonstrate redressability.
a) Causation The D.C. Circuit has identified “two categories of cases where standing exists to challenge government action though the direct cause of injury is the action of a third party.” Renal Physicians, 489 F.3d at 1275. “First, a federal court may find that a party has standing to challenge government action that permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government’s action.” National Wrestling Coaches, 366 F.3d at
1011 (quoting La. Energy and Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)). The doctrine of competitor standing is not implicated in this case, as the plaintiff’s resources are not strained because he is forced to compete with undocumented immigrants in a limited market. Moreover, the plaintiff cannot rely on a supposed “procedural injury” because, since the plaintiff has no authority to enforce the Federal immigration laws, the plaintiff cannot demonstrate the challenged deferred action programs “threaten[] [a] concrete interest” of the plaintiff as opposed to an injury common to all members of the public. Mendoza, 754 F.3d at 1010.
23
023

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a4geof2353of 34
940. Importantly, in this category of cases, the challenged government conduct must authorize the specific third-party conduct that causes the injury to the plaintiff. See Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440 (D.C. Cir. 1998) (“Supreme Court precedent establishes that the causation requirement for constitutional standing is met when a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff’s injuries . . . .”). In the present case, the challenged agency action—the ability to exercise enforcement discretion to permit deferred action relating to certain undocumented immigrants—does not authorize the conduct about which the plaintiff complains. The challenged deferred action programs authorize immigration officials to exercise discretion on removal; they do not authorize new immigration into the United States (let alone Maricopa County); they do not authorize undocumented immigrants to commit crimes; and they do not provide permanent status to any undocumented immigrants eligible to apply for deferred action under any of the challenged programs. Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect. The deferred action programs are designed to incorporate DHS’s enforcement priorities and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes. Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.
Second, standing has been found “where the record present[s] substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little
24
024

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a5geof2363of 34
doubt as to causation and the likelihood of redress.” National Wrestling Coaches, 366 F.3d at 941. This record is sparse regarding a link between the challenged deferred action programs and the third-party conduct. Although the plaintiff has submitted numerous press releases and letters to officials documenting Maricopa County’s struggle with illegal immigration along the southern border, the plaintiff has submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.” Indeed, the plaintiff severely undermines his own argument by stating that “millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details” of current executive branch immigration policies. Compl. ¶ 30 (emphasis added). If the details of the challenged deferred action programs do not matter as to whether or not the plaintiff will suffer an injury, then the plaintiff’s injuries cannot be fairly traceable to these programs. Similarly, the plaintiff observes that “the Executive Branch is not deporting illegal aliens in any significant numbers” and that regardless of the provision of deferred action programs “illegal aliens are very unlikely to be deported.” Pl.’s Mot. at 12. Implicit in this observation is the plaintiff’s admission that regardless of the challenged deferred action programs, the plaintiff is likely to continue to suffer the claimed injury.
In sum, the plaintiff has failed to demonstrate that the challenged deferred action programs are the cause of his alleged injury.
b) Redressability Similar to the causation requirement, “it is ‘substantially more difficult’ for a petitioner to establish redressability where the alleged injury arises from the government’s regulation of a third party not before the court.” Spectrum Five LLC v. Fed. Commc’ns Comm’n, 758 F.3d 254,
25
025

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a6geof2373of 34
261 (D.C. Cir. 2014) (quoting Nat’l Wrestling Coaches, 366 F.3d at 933); see also Defenders of Wildlife, 504 U.S. at 562. The plaintiff must allege facts that are “sufficient to demonstrate a substantial likelihood that the third party directly injuring the plaintiff would cease doing so as a result of the relief the plaintiff sought.” Renal Physicians, 489 F.3d at 1275. In other words, the plaintiff must allege facts sufficient to demonstrate a substantial likelihood that, as a result of injunctive relief in this case, there would not be an increase in undocumented immigrants in Maricopa County and there would not be an increase in crimes committed by undocumented immigrants in Maricopa County. This is a “substantially more difficult” task. Spectrum Five LLC, 758 F.3d at 261.
On this point, the D.C. Circuit’s decision in National Wrestling Coaches is instructive. There, plaintiffs challenged an interpretive rule promulgated by the Department of Education, which laid out three ways in which the Department would assess whether educational institutions had complied with Department regulations that required such institutions to select sports and levels of competition to “effectively accommodate the interests and abilities of members of both sexes.’” 366 F.3d at 934–35 (quoting 45 C.F.R. § 86.41(c)(1) and 34 C.F.R. § 106.41(c)(1)). That regulation had been promulgated pursuant to Title IX of the Education Amendments of 1972, which prohibited discrimination on the basis of sex in federally funded educational programs and activities. See id. at 934. The plaintiffs were “membership organizations representing the interests of collegiate men’s wrestling coaches, athletes, and alumni,” and their asserted injuries arose “from decisions by educational institutions to eliminate or reduce the size of men’s wrestling programs to comply with the Department’s interpretive rules implementing Title IX.” Id. at 935.
26
026

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a7geof2383of 34
Thus, in National Wrestling Coaches, like in the instant case, “the necessary elements of causation and redressability . . . hinge[d] on the independent choices of . . . regulated third part[ies].” Id. at 938. The D.C. Circuit found redressability lacking in National Wrestling Coaches because “nothing but speculation suggests that schools would act any differently than they do with the [challenged interpretive rule] in place” since “[s]chools would remain free to eliminate or cap men’s wrestling teams and may in some circumstances feel compelled to do so to comply with the statute and the [previous Department] Regulations.” Id. at 940. Further, the court found that “other reasons unrelated to the challenged legal requirements [e.g., moral considerations, budget constraints] may continue to motivate schools to take such actions.” Id. From this analysis, and a comprehensive review of the case law, the National Wrestling Coaches court concluded that “it is purely speculative whether a decision in appellants’ favor would alter the process by which schools determine whether to field certain sports teams.” Id. at 944.
The same concerns animating the outcome in National Wrestling Coaches drive the result in this case. Many “other reasons unrelated to the challenged legal requirements” may motivate the conduct allegedly causing harm to the plaintiff. Indeed, the motivation for any individual to come to the United States (or, once present here, to commit a crime in Maricopa County), does not rest solely upon the challenged deferred action programs. Such decisions are complicated and multi-faceted, involving both national and international factors. A ruling by this Court enjoining the challenged deferred action programs will likely not change the complex and individualized decision making of undocumented immigrants allegedly causing harm to the plaintiff. As noted, the plaintiff’s briefing admits as much: “millions more illegal aliens will be attracted into the border states of the United States, regardless of the specific details” of the challenged deferred action programs. Compl. ¶ 30.
27
027

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a8geof2393of 34

Moreover, the plaintiff acknowledges that the defendants only have limited resources to

facilitate removal, see Hrg. Tr. at 14. Relief from this Court will not grant additional resources

to the executive branch allowing it to remove additional undocumented immigrants or to prevent

undocumented immigrants from arriving. Thus, the plaintiff’s complaint regarding the large

number of undocumented immigrants and the limited number of removals will not change as a

result of any order by the Court in this litigation. Consequently, the plaintiff’s alleged harm

stemming from the expenditure of resources to deal with the large number of undocumented

immigrants in Maricopa County will remain. In other words, regardless of the outcome of this

case, the Court can afford no relief to the plaintiff’s injury. Cf. Bauer v. Marmara, No. 13-ap-

7081, 2014 WL 7234818, at *6 (D.C. Cir. December 19, 2014) (holding that plaintiff was

“unable to satisfy the redressability prong of Article III standing because the court cannot compel

the Government to pursue action to seek forfeiture of the disputed vessels”).

“When redress depends on the cooperation of a third party, ‘it becomes the burden of the

[party asserting standing] to adduce facts showing that those choices have been or will be made

in such manner as to produce causation and permit redressability of injury.’” U.S. Ecology v.

U.S. Dep’t of Interior, 231 F.3d 20, 24–25 (D.C. Cir. 2000) (emphasis added) (quoting

Defenders of Wildlife, 504 U.S. at 562); see also Klamath Water v. Fed. Energy Reg. Comm’n,

534 F.3d 735, 739 (D.C. Cir. 2008) (“In a case like this, in which relief for the petitioner depends

on actions by a third party not before the court, the petitioner must demonstrate that a favorable

decision would create ‘a significant increase in the likelihood that the plaintiff would obtain

relief that directly redresses the injury suffered.’” (quoting Utah v. Evans, 536 U.S. 452, 464

(2002))). The plaintiff has been unable to meet this burden.

*

*

*

28
028

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP2a9geof3303of 34
Taken together, the Court finds that the plaintiff has not and cannot show that: (1) he suffers a concrete and particularized injury (as opposed to a speculative and generalized grievance); (2) the cause of the plaintiff’s injury can be fairly traced to the challenged deferred action programs; and (3) a favorable ruling by this Court would redress the plaintiff’s alleged injury. A plaintiff “may be disappointed if the Government declines to pursue [enforcement], but disappointment of this sort is a far cry from the injury and redressability required to prove Article III Standing.” Bauer, 2014 WL 7234818, at *6. As a result, the plaintiff lacks standing to bring this challenge, requiring dismissal of this lawsuit for lack of subject matter jurisdiction.
B. Preliminary Injunction The plaintiff’s motion for preliminary injunction likewise fails as the plaintiff can show neither a likelihood of success on the merits nor irreparable harm due to his lack of standing. As an initial matter, because “standing is a necessary predicate to any exercise of [the Court’s] jurisdiction, the [plaintiff] and [his] claims have no likelihood of success on the merits,” if the plaintiff lacks standing. Smith v. Henderson, 944 F. Supp. 2d 89, 99 (D.D.C. 2013) (internal quotations and citations omitted); see also Kingman Park Civic Ass’n v. Gray, 956 F. Supp. 2d 230, 241 (D.D.C. 2013) (“The first component of the likelihood of success on the merits prong usually examines whether the plaintiffs have standing in a given case.” (internal quotations omitted)). Moreover, the same problem that confronts the plaintiff’s standing argument—the inability to obtain redress from an order by this Court—likewise dooms the plaintiff’s ability to show irreparable harm. Indeed, “it would make little sense for a court to conclude that a plaintiff has shown irreparable harm when the relief sought would not actually remedy that harm.” Sierra Club v. U.S. Dep’t of Energy, 825 F. Supp. 2d 142, 153 (D.D.C. 2011); see also Navistar, Inc. v.
29
029

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP3a0geof3313of 34
Environmental Protection Agency, No. 11-cv-449, 2011 WL 3743732, at *3 (D.D.C. Aug. 25,
2011) (Wilkins, J.) (“Because an injunction will not redress its alleged injuries, [the plaintiff’s]
claim that it will suffer irreparable harm in the absence of a preliminary injunction is tenuous at
best.”).
Nevertheless, even if the plaintiff were able to establish standing, the plaintiff would face
a number of legal obstacles to prevail and, therefore, could not demonstrate a likelihood of
success on the merits nor any of the other preliminary injunction factors.12 While not necessary
12 The plaintiff has highlighted a recently out-of-Circuit opinion from the Western District of Pennsylvania (“Pennsylvania court”) to buttress his claims regarding his likelihood of success on the merits. See Pl.’s Notice of Suppl. Auth., ECF No. 14 (citing United States v. Juarez-Escobar, 2014 U.S. Dist. LEXIS 173350 (W.D. Pa. Dec. 16, 2014)). In that case, the court considered the applicability of the DAPA program to a criminal defendant (who had been arrested locally for driving under the influence with a minor present in the vehicle) in connection with the defendant’s sentencing, upon his plea of guilty to illegal reentry in violation of 8 U.S.C. § 1326. Id. at *1–*4. Throughout the opinion, the court expresses an over-arching concern with the fairness of the prosecution in light of the uneven enforcement of the immigration laws. See, e.g., id. at *5 (“Defendant appears before this Court, in part, because of arguably unequal and arbitrary immigration enforcement in the United States.”); id. at *6–*7 (observing that “[h]ad Defendant been arrested in a ‘sanctuary state’ or a ‘sanctuary city,’ local law enforcement likely would not have reported him to Homeland Security” and “he would likely not have been indicted” and “would not be facing sentencing and/or deportation”); id. at *39–*40 (noting “an arbitrariness to Defendant’s arrest and criminal prosecution” given existence of “‘sanctuary cities’ [where] . . . if an undocumented immigrant was arrested for a minor offense, local law enforcement would not automatically notify ICE”); id. at *41 (describing “Defendant’s current criminal prosecution and the civil deportation hearing that will undoubtedly follow as a result of this criminal proceeding” as “arguably . . . arbitrary and random”). Consistent with this theme, the court reviewed the DAPA program to evaluate “whether it would unjustly and unequally impact this Defendant in light of this Court's obligation to avoid sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” citing 18 U.S.C. § 3553(a)(6). Id. at *24; see also id. at *12–*13 (expressing “concern[] that the Executive Action might have an impact on this matter, including any subsequent removal or deportation”). In other words, under the rubric of a sentencing factor that sentencing courts are required to consider under 18 U.S.C. § 3553(a), the Pennsylvania court set out to evaluate whether the DAPA program was applicable to the defendant and, if so, whether the consequences of his conviction, including deportation, would amount to an unwarranted sentencing disparity because similarly situated defendants could obtain deferred removal. See 18 U.S.C. § 3553(a)(6)(requiring sentencing court, “in determining the particular sentence to be imposed,” to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”).
The Pennsylvania court ultimately determined that the DAPA program was not applicable to the defendant for two reasons: first, the court opined that the DAPA program “is unconstitutional,” id. at *33, *58; and, second, even if the DAPA program were constitutional, the court made critical factual findings that the defendant did not meet the eligibility criteria for DAPA’s deferred action, id. at *45 (“The bottom line for this Defendant is that . . . he does not fall into any newly created or expanded deferment category . . . .”); id. at *57 (“this Defendant is possibly not entitled to the deferred action status that would enable him to defer deportation”). Despite the defendant’s lack (or “possible[]” lack) of eligibility for the DAPA program, the court viewed the defendant as “more ‘family’ than ‘felon,’” id. at *45, *58, due to his “close bond with his brother,” who resided in the United States, id. at *57–*58, prompting the court to give the defendant the opportunity to withdraw his guilty plea or proceed to sentencing, id. at *59.
30
030

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP3a1geof3323of 34
to resolve this case, the Court outlines several of these obstacles. First, with respect to the
plaintiff’s likelihood of success on the merits, the challenged deferred action programs continue
a longstanding practice of enforcement discretion regarding the Nation’s immigration laws.
Such discretion is conferred by statute, see 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a)(3), and the
manner of its exercise through deferred action on removal has been endorsed by Congress, see,
e.g., 8 U.S.C. § 1227(d)(2). Thus, the deferred action programs are consistent with, rather than
contrary to, congressional policy. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J. concurring).
In addition, although the challenged deferred action programs represent a large class-
based program, such breadth does not push the programs over the line from the faithful execution
of the law to the unconstitutional rewriting of the law for the following reason: The programs
While fully respectful of the concern animating this decision, which focused on the fairness of the prosecution and guilty plea of the defendant for the crime of illegal reentry, this Court does not find the reasoning persuasive for at least three reasons. First, most notably, the Pennsylvania court’s consideration of the constitutionality of the DAPA program flies in the face of the “‘well-established principle governing the prudent exercise of [a] [c]ourt’s jurisdiction that normally [a] [c]ourt will not decide a constitutional question if there is some other ground upon which to dispose of the case.’” Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 206 (2009) (quoting Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)); see also United States v. Thomas, 572 F.3d 945, 952 (D.C. Cir. 2009) (Ginsburg J., concurring). Thus, the Pennsylvania court appears to have put the proverbial “cart before the horse” since finding the defendant likely ineligible for the DAPA program made consideration of the program’s constitutionality unnecessary. Second, the purported basis for the Pennsylvania court’s consideration of the DAPA program was to avoid unwarranted sentencing disparities, as required by 18 U.S.C. § 3553(a)(6). Yet, the DAPA program has no bearing on the sentence imposed by the Pennsylvania court since, as the Supreme Court has made clear, “[r]emoval is a civil, not criminal, matter.” Arizona, 132 S. Ct. at 2499. To the extent that the Pennsylvania court was focused on the defendant’s likely deportation following the imposition of the sentence, this collateral consequence could not result in an unwarranted disparity since the defendant’s likely ineligibility for DAPA means that the defendant was not similarly situated to persons who are eligible. Finally, even if the Pennsylvania court’s concern were correct that the defendant was subject to potentially unequal enforcement of a criminal statute and faced prosecution in the Western District of Pennsylvania when he was unlikely to face prosecution in other districts, such enforcement disparities are inherent in prosecutorial discretion and have no bearing on the analysis under § 3553(a)(6), which requires consideration of sentence disparities among similarly situated defendants convicted of the same offense in federal court, not enforcement disparities. Accord United States v. Washington, 670 F.3d 1321, 1327 (D.C. Cir. 2012) (“U.S. Attorney's lawful exercise of discretion in bringing a federal prosecution” rather than local prosecution, which may result in different sentences, does not support a departure under § 3553(a)(6)); United States v. Clark, 8 F.3d 839, 842-843 (D.C. Cir. 1993)(“reject[ing] the claim that the [U.S.] government’s ‘arbitrary use’ of its discretion to indict defendants under either federal or D.C. law could be a mitigating circumstance within the meaning of § 3553(b)” or was appropriate to consider in exercise of district court’s authority to avoid unwarranted sentencing disparities under § 3553(a)(6)).
31
031

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP3a2geof333of 34
still retain provisions for meaningful case-by-case review.13 See 2014 Guidance Memorandum at
4 (requiring that a DAPA applicant present “no other factors that, in the exercise of discretion,
make[] the grant of deferred action inappropriate”). This case-by-case decisionmaking
reinforces the conclusion that the challenged programs amount only to the valid exercise of
prosecutorial discretion and reflect the reality that “an agency decision not to enforce often
involves a complicated balancing of a number of factors which are peculiarly within its
expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).
Finally, the challenged deferred action programs merely provide guidance to immigration
officials in the exercise of their official duties. This helps to ensure that the exercise of deferred
action is not arbitrary and capricious, as might be the case if the executive branch offered no
guidance to enforcement officials. It would make little sense for a Court to strike down as
arbitrary and capricious guidelines that help ensure that the Nation’s immigration enforcement is
not arbitrary but rather reflective of congressionally-directed priorities.14
13 Statistics provided by the defendants reflect that such case-by-case review is in operation. As of December 5, 2014, 36,860 requests for deferred action under DACA were denied and another 42,632 applicants were rejected as not eligible. Defs.’ Mem., Ex. 22 (USCIS, Current Statistics: Deferred Action for Childhood Arrivals: Pending, Receipts, Rejected, Approvals, and Denials (2014)), ECF No. 13-22. 14 The plaintiff makes three arguments in support of his motion for preliminary injunction based on the constitutional principles underlying the separation of powers. First, the plaintiff argues that the implementation of the challenged programs would use significantly all of the funds appropriated by Congress for immigration enforcement thereby frustrating the will of Congress. See Hrg. Tr. at 16–17; Pl.’s Mot. at 20. This is not so. “[T]he costs of administering the proposed program would be borne almost entirely by USCIS through the collection of application fees.” OLC Opinion at 27; 2014 Guidance Memorandum at 5 (“Applicants will pay the work authorization and biometrics fees, which currently amount to $465.”). Should Congress disagree with the enforcement priorities set out by DHS in the challenged policies, Congress has the ability to appropriate funds solely for removal and the President cannot refuse to expend funds appropriated by Congress. See Train v. City of New York, 420 U.S. 35 (1975). Second, the plaintiff argues that the challenged deferred action programs violate INS v. Chadha, 462 U.S. 919 (1983), because the programs amount to unlawful legislation and/or rulemaking. Pl.’s Mot. at 20. This argument also misses the mark. Congress has delegated authority to DHS to establish priorities for the enforcement of the nation’s immigration laws, see 6 U.S.C. 202(5), and, as Chadha recognizes, DHS is acting in an Article II enforcement capacity when determining issues of deportation. See Chadha, 462 U.S. at 953 n.16. Third, the plaintiff contends that the challenged deferred action programs violate the non-delegation doctrine. Pl.’s Mot. at 17. Yet, a finding of excessive delegation of authority is extremely rare, given the low threshold that legislation must meet to overcome a non-delegation doctrine claim. See United States v. Ross, 778 F. Supp. 2d 13, 26 (D.D.C. 2011) (“[o]nly twice in [the Supreme Court’s] history, and not since 1935, has [it] invalidated a statute on the ground of excessive delegation of legislative authority”) (citations and quotations omitted). The Supreme Court has
32
032

CaseC1a:s1e41-c:1v-40-0cv2-504196D6o-cBuAmHentD3o8c-u1meFnilte2d3in FTiXleSdD12o/n231/21/424/P14ageP3a3geof3343of 34

Second, the plaintiff cannot demonstrate irreparable harm since the plaintiff waited two years to challenge the DACA program and because any harm to the plaintiff is likely to occur regardless of the challenged policies.
Finally, both the public interest and the balance of the equities do not support a preliminary injunction. Halting these deferred action programs would inhibit the ability of DHS to focus on its statutorily proscribed enforcement priorities (national security, border security, and public safety) and would upset the expectations of the DACA program’s participants and the potentially eligible participants in the other challenged programs when none of those participants are currently before this Court. IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion for preliminary injunction is denied and the defendant’s motion to dismiss for lack of subject matter jurisdiction is granted.
An appropriate Order accompanies this Memorandum Opinion.

Date: December 23, 2014

Digitally signed by Hon. Beryl A. Howell DN: cn=Hon. Beryl A. Howell, o=U.S. District Court for the District of Columbia, ou=United States District Court Judge, email=Howell_Chambers@dcd.uscourt s.gov, c=US
______________Da_te:_20_14.1_2.2_3 2_0:3_0:2_7 -0_5'0_0' __
BERYL A. HOWELL
United States District Judge

“‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’” Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 30 (D.C. Cir. 2008) (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474-75 (2001)).
33
033

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 1 of 34
EXHIBIT 2

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 2 of 34

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

1

034

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 3 of 34
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

2

035

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 4 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

3

036

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 5 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

4

037

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 6 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

5

038

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 7 of 34
Opinions of the Office of Legal Counsel in Volume 38
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).

6

039

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 8 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

7

040

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 9 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

8

041

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 10 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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.

9

042

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 11 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

10

043

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 12 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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).

11

044

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 13 of 34
Opinions of the Office of Legal Counsel in Volume 38
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”).

12

045

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 14 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

13

046

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 15 of 34
Opinions of the Office of Legal Counsel in Volume 38
(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.

14

047

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 16 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

15

048

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 17 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

16

049

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 18 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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).

17

050

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 19 of 34
Opinions of the Office of Legal Counsel in Volume 38
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.

18

051

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 20 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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).

19

052

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 21 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

20

053

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 22 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

21

054

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 23 of 34
Opinions of the Office of Legal Counsel in Volume 38
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”).

22

055

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 24 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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”).

23

056

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 25 of 34
Opinions of the Office of Legal Counsel in Volume 38
(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.

24

057

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 26 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

25

058

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 27 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

26

059

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 28 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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.

27

060

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 29 of 34
Opinions of the Office of Legal Counsel in Volume 38
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

28

061

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 30 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

29

062

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 31 of 34
Opinions of the Office of Legal Counsel in Volume 38
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.

30

063

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 32 of 34
DHS’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present
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

31

064

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 33 of 34
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

065

Case 1:14-cv-00254 Document 38-2 Filed in TXSD on 12/24/14 Page 34 of 34
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

33

066

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 1 of 9
EXHIBIT 3

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 2 of 9

Immigration Enforcement Actions: 2013
JOHN F. SIMANSKI

Each year, the Department of Homeland Security (DHS) undertakes immigration enforcement actions involving hundreds of thousands of aliens who may be or are in violation of U.S. immigration laws. These actions include the apprehension or arrest, detention, return, and removal from the United States of aliens (see Box 1). Aliens may be removable from the United States for violations including illegally entering the United States, failing to abide by the terms and conditions of admission, or committing crimes. Primary responsibility for the enforcement of immigration law within DHS rests with U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). CBP is generally responsible for immigration enforcement at and between the ports of entry, and ICE is generally responsible for interior enforcement, and detention and removal operations. USCIS is generally responsible for the administration of immigration and naturalization functions (see APPENDIX).

This Office of Immigration Statistics (OIS) Annual Report presents information on aliens determined inadmissible, apprehended, arrested, detained, returned, or removed, during 2013.1 Key findings in this report include:
• CBP determined approximately 204,000 aliens were inadmissible.
• DHS apprehended approximately 662,000 aliens; 64 percent were citizens of Mexico.
• ICE detained nearly 441,000 aliens.
• Approximately 178,000 aliens were returned to their home countries through processes that did not require a removal order.
• DHS removed approximately 438,000 aliens from the United States.2 The leading countries of origin for those removed were Mexico (72 percent), Guatemala (11 percent), Honduras (8.3 percent), and El Salvador (4.8 percent).
• Expedited removal orders accounted for 44 percent, of all removals.
• Reinstatements of final orders accounted for 39 percent, of all removals.
• ICE removed approximately 198,000 known criminal aliens from the United States.3
1 In this report, years refer to fiscal years (October 1 to September 30). 2 Includes removals, counted in the year the events occurred, by both ICE and CBP.
Removals and returns are reported separately. 3 Refers to persons removed who have a prior criminal conviction.

ENFORCEMENT ACTIONS PROCESS
Inspection Process
All aliens who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States are inspected. CBP officers within the Office of Field Operations (OFO) determine the admissibility of aliens who are applying for admission to the United States at designated ports of entry. Applicants for admission determined to be inadmissible may be, as appropriate, permitted to voluntarily withdraw their application for admission and return to their home country, processed for expedited removal or referred to an immigration judge for removal proceedings. CBP officers may transfer aliens issued a charging document (e.g., Notice to Appear (NTA), Notice of Referral to an Immigration Judge) to ICE for detention and custody determinations. Aliens who apply under the Visa Waiver Program (VWP) who are found to be inadmissible are refused admission without referral to an immigration judge, per Section 217 of the Immigration and Nationality Act (INA), unless the alien requests asylum.
Apprehension Process
Aliens who enter without inspection between ports of entry and are apprehended by U.S. Border Patrol (USBP) of CBP may be, as appropriate, removed, permitted to return to their country, or issued a NTA to commence proceedings before the immigration court. Aliens issued a charging document are either transferred to ICE for detention and custody determinations pending a hearing or

Office of Immigration Statistics
POLICY DIRECTORATE
067

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 3 of 9

released on their own recognizance. Beginning in FY12, USBP implemented the Consequence Delivery System (CDS) across all sectors. CDS guides USBP agents through a process designed to uniquely evaluate each subject and identify the ideal consequences to deliver to impede and deter further illegal activity. CDS consequences can include administrative, criminal, or programmatic actions.
Aliens unlawfully present in the United States and those lawfully present who are subject to removal may be identified and apprehended by ICE within the interior of the United States. The agency’s two primary operating components are Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). ICE may identify aliens in violation of their status for removal while they are incarcerated, during worksite enforcement operations, or through other means. Aliens apprehended by ICE are generally subject to the same consequences as aliens who are apprehended by USBP.
Benefit Denial
USCIS has authority to issue an NTA or otherwise refer an alien for removal proceedings upon determining that an alien is inadmissible or has violated immigration law pursuant to INA Sections 212 and 237. USCIS will also issue an NTA when required by statute or regulation,4 e.g., termination of conditional permanent resident status, denial of asylum application, termination of refugee status, or positive credible fear determination.
Detention Process
Following arrest or transfer of custody from CBP, ICE ERO makes custody redeterminations, which may result in detention or release on bond, orders of supervision, or orders of recognizance. An alien may be detained during the pendency of removal proceedings, and, if an alien is ordered removed, the alien may be detained for a certain period of time pending repatriation.
Removal Process
Removal proceedings include the administrative process that leads to the removal of an alien pursuant to Sections 237 or 212 of the INA.
Unless eligible for relief, the most common dispositions for aliens found within the United States, are returns, expedited removals, reinstatements of final orders and removal obtained through removal proceedings.
Return. Certain apprehended aliens who appear to be inadmissible or deportable may be offered the opportunity to voluntarily return to their home country in lieu of formal removal proceedings before an immigration judge.5 Generally, aliens waive their right to a hearing, remain in custody, and, if applicable, agree to depart the United States under supervision. Some aliens apprehended within the United States may agree to voluntarily depart and pay the expense of departing. Voluntary departure may be granted by an immigration
4 As authorized by Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, PM 602-0050, November 7, 2011. http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/ NTA%20PM%20%28Approved%20as%20final%2011-7-11%29.pdf 5 Examples include voluntary departure under INA § 240B, VWP returns under INA § 217(b), crewmembers under INA § 252(b) and stowaways under INA § 217(b).

BOX 1. Definitions of Immigration Enforcement Terms Administrative Removal: The removal of an alien not admitted for permanent residence, or of an alien admitted for permanent residence on a conditional basis pursuant to section 216 of the INA, under a DHS order based on the determination that the individual has been convicted of an aggravated felony (INA § 238(b)(1)). The alien may be removed without a hearing before an immigration judge.
Alien: A person who is not a citizen or national of the United States.
Deportable Alien: An alien inspected and admitted into the United States but who is subject to removal under INA § 237(a).
Detention: The physical custody of an alien in order to hold him/her, pending a determination on whether the alien is to be removed from the United States or awaiting return transportation to his/her country of citizenship after a final order of removal has been entered.
Expedited Removal: The removal without a hearing before an immigration judge of an alien arriving in the United States who is inadmissible because the individual does not possess valid entry documents or is inadmissible for fraud or misrepresentation of material fact; or the removal of an alien who has not been admitted or paroled in the United States and who has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the immediately preceding 2-year period (INA § 235(b)(1)(A)).
Inadmissible Alien: An alien who is ineligible to receive a visa and ineligible to be admitted to the United States, according to the provisions of INA § 212(a).
Reinstatement of Final Removal Orders: The removal of an alien on the reinstatement of a prior removal order, where the alien departed the United States under an order of removal and illegally re-entered the United States (INA § 241(a)(5)). The alien may be removed without a hearing before an immigration judge.
Removable Alien: An alien who is inadmissible or deportable (INA § 240(e)(2)).
Removal: The compulsory and confirmed movement of an inadmissible or deportable alien out of the United States based on an order of removal. An alien who is removed has administrative or criminal consequences placed on subsequent reentry.
Return: The confirmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal.
judge, during an immigration hearing or prior to an immigration hearing by certain DHS officials.
Expedited Removal. DHS officers and agents may order the expedited removal of certain aliens who are inadmissible because they do not possess valid entry documents or are inadmissible for fraud or misrepresentation of material fact; or because the alien, who has not been admitted or paroled in the United State, has not affirmatively shown to the satisfaction of an immigration officer, that the alien had been physically present in the United States for the immediately preceding 2-year period. Aliens placed in expedited removal proceedings are generally not entitled to immigration proceedings before an immigration judge unless the alien is

2
068

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 4 of 9

seeking asylum or makes a claim to legal status in the United States. An expedited removal order issued by a DHS officer is equivalent to a removal order issued by an immigration judge.
Reinstatement of Final Removal Orders. Section 241(a)(5) of the INA permits DHS to reinstate final removal orders, without further hearing or review, for aliens who were removed or departed voluntarily under an order of removal and who illegally re-entered the United States.

Removal Proceedings. Aliens not immediately returned or processed for removal by a DHS officer, e.g. due to a fear of return or because the alien has applied for certain forms of adjustment of status, may be issued an NTA for an immigration hearing and may be transferred to ICE for a custody determination, which may result in detention or release on bond, orders of supervision, or orders of recognizance. Removal hearings before an immigration court may result in a variety of outcomes including an order of removal; a grant of voluntary departure at the alien’s expense (considered a “return”); a grant of certain forms of relief or protection from removal, which could include adjustment to lawful permanent resident status; or termination of proceedings. Decisions of immigration judges can be appealed to the Board of Immigration Appeals.
The penalties associated with removal include not only the removal itself but also possible fines, imprisonment for up to ten years for those who fail to appear at hearings or who fail to depart, and a bar to future legal entry.6 The imposition and extent of these penalties depend upon the individual circumstances of the case.

DATA7
Apprehension and inadmissibility data are collected in the Enforcement Integrated Database (EID) using Form I-213, Seized Asset and Case Tracking System (SEACATS), and EID Arrest Graphical User Interface for Law Enforcement (EAGLE). Data on individuals detained are collected through the ICE ENFORCE Alien Detention Module (EADM) and the ENFORCE Alien Removal

6 The bar is permanent for aggravated felons and up to 20 years for certain other aliens.

7 CBP data (apprehensions, inadmissible aliens, removals, and returns) are current as of November 2013. ICE ERO apprehension data are current as of October 2013. ICE HSI data are current as of October 2013. ICE removal and return data are current as of January 2014. USCIS NTA data current as of May 2014.

Table 1. Apprehensions by Program and Country of Nationality: Fiscal Years 2011 to 2013 (Countries ranked by 2013 apprehensions)

Program and country of nationality PROGRAM
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CBP U.S. Border Patrol . . . . . . . . . . . . . . . . . . . . . . .
Southwest sectors (sub-total) . . . . . . . . . . . . . . . . ICE Enforcement and Removal Operations . . . . . . . . . ICE Homeland Security Investigations . . . . . . . . . . . . COUNTRY OF NATIONALITY
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guatemala. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Honduras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ecuador. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dominican Republic . . . . . . . . . . . . . . . . . . . . . . . . . Cuba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nicaragua . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jamaica. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Haiti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . .

2013 Number
662,483 420,789 414,397 229,698
11,996
662,483 424,978
73,208 64,157 51,226
5,680 3,893 2,809 2,712 2,147 1,992 29,681

Percent
100.0 63.5 62.6 34.7 1.8
100.0 64.1 11.1 9.7 7.7 0.9 0.6 0.4 0.4 0.3 0.3 4.5

2012 Number
671,327 364,768 356,873 290,622
15,937
671,327 468,766
57,486 50,771 38,976
4,374 4,506 4,121 2,532 2,655 1,492 35,648

Percent
100.0 54.3 53.2 43.3 2.4
100.0 69.8 8.6 7.6 5.8 0.7 0.7 0.6 0.4 0.4 0.2 5.3

2011 Number
678,606 340,252 327,577 322,093
16,261
678,606 517,472
41,708 31,189 27,652
3,298 4,433 4,801 2,278 2,862 1,351 41,562

Percent
100.0 50.1 48.3 47.5 2.4
100.0 76.3 6.1 4.6 4.1 0.5 0.7 0.7 0.3 0.4 0.2 6.1

Source: U.S. Department of Homeland Security, Enforcement Integrated Database (EID); Seized Asset and Case Tracking System (SEACATS); EID Arrest Graphical User Interface for Law Enforcement (EAGLE); CBP U.S. Border Patrol data for 2013 are current as of November 2013, 2012 are current as of November 2012, 2011 are current as of December 2011; ICE Enforcement and Removal Operations data for 2013 are current as of October 2013, 2012 are current as of October 2012, 2011 are current as of January 2012; Homeland Security Investigations data for 2013 are current as of October 2013, 2012 are current as of October 2012, 2011 are current as of June 2012.

3
069

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 5 of 9

Module (EARM). Data on USCIS NTAs are collected using the USCIS NTA Database. Data on individuals removed or returned are collected through both EARM and EID.
The data on enforcement actions (e.g., inadmissible aliens, apprehensions, NTAs, and removals) relate to events. For example, an alien may be apprehended more than once, and each apprehension would count as a separate record. Removals and returns are reported separately and counted in the years the events occurred. Data appearing for a given year may change in subsequent years due to updating of the data series.8
TRENDS AND CHARACTERISTICS OF ENFORCEMENT ACTIONS
Apprehensions
DHS made 662,483 apprehensions in 2013 (see Table 1). The U.S. Border Patrol was responsible for 420,789 or 64 percent (see Figure 1) of all apprehensions. Ninety-eight percent of USBP apprehensions occurred along the Southwest border. ICE ERO made 229,698 administrative arrests and ICE HSI made 11,996 administrative arrests.9
Nationality of All Apprehended Aliens. In 2013, Mexican nationals accounted for 64 percent of all aliens apprehended by Immigration and Customs Enforcement or the U.S. Border Patrol, down from 70 percent in 2012. The next leading countries were Guatemala (11 percent), Honduras (9.7 percent), and El Salvador (7.7 percent). These four countries accounted for 93 percent of all apprehensions.
Nationality of Aliens Apprehended by Border Patrol. Non-Mexican aliens accounted for 36 percent of all USBP apprehensions in 2013, up from 27 percent in 2012. USBP apprehensions of non-Mexican aliens increased 182 percent from 2011 to 2013.
8 Arrests under INA § 287(g) are included in ICE ERO apprehension data for 2011 to 2013. 9 An administrative arrest refers to the arrest of an alien who is charged with an immigration violation. Administrative arrests are included in the DHS apprehension totals.

Table 2.

Apprehensions by U.S. Border Patrol Sector: Fiscal Years 2011 to 2013
(Sectors ranked by 2013 apprehensions)

2013

2012

2011

U.S. Border Patrol Sector

Number Percent Number Percent Number Percent

Total . . . . . . . . . . . . . . . . . Rio Grande Valley, TX . . . . . . . Tucson, AZ . . . . . . . . . . . . . . . Laredo, TX . . . . . . . . . . . . . . . San Diego, CA . . . . . . . . . . . . Del Rio, TX. . . . . . . . . . . . . . . EL Centro, CA. . . . . . . . . . . . . EL Paso, TX . . . . . . . . . . . . . . Yuma, AZ . . . . . . . . . . . . . . . . Big Bend, TX* . . . . . . . . . . . . Miami, FL. . . . . . . . . . . . . . . . All other sectors. . . . . . . . . . .

420,789 154,453 120,939
50,749 27,496 23,510 16,306 11,154
6,106 3,684 1,738 4,654

100.0 36.7 28.7 12.1 6.5 5.6 3.9 2.7 1.5 0.9 0.4 1.1

364,768 97,762
120,000 44,872 28,461 21,720 23,916 9,678 6,500 3,964 2,509 5,386

100.0 26.8 32.9 12.3 7.8 6.0 6.6 2.7 1.8 1.1 0.7 1.5

340,252 59,243
123,285 36,053 42,447 16,144 30,191 10,345 5,833 4,036 4,401 8,274

100.0 17.4 36.2 10.6 12.5 4.7 8.9 3.0 1.7 1.2 1.3 2.4

* Formerly known as Marfa, TX.
Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP) U.S Border Patrol (USBP), Enforcement Integrated Database (EID), November 2013.

Table 3.

Aliens Determined Inadmissible by Mode of Travel, Country of Citizenship, and Field Office: Fiscal Years 2011 to 2013
(Ranked by 2013 inadmissible aliens)

Characteristic

2013 Number Percent

2012 Number Percent

2011 Number Percent

MODE OF TRAVEL Total . . . . . . . . . . . . . . . . .
Land . . . . . . . . . . . . . . . . . . . Sea. . . . . . . . . . . . . . . . . . . . Air. . . . . . . . . . . . . . . . . . . . .

204,108 103,480
51,568 49,060

100.0 50.7 25.3 24.0

193,606 100,341
52,509 40,756

100.0 51.8 27.1 21.1

212,234 107,205
66,227 38,802

100.0 50.5 31.2 18.3

COUNTRY
Total . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . Canada . . . . . . . . . . . . . . . . . Philippines. . . . . . . . . . . . . . . Cuba . . . . . . . . . . . . . . . . . . . China, People’s Republic. . . . . India . . . . . . . . . . . . . . . . . . . Ukraine . . . . . . . . . . . . . . . . . Russia. . . . . . . . . . . . . . . . . . Spain . . . . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . . . . .
FIELD OFFICE Total . . . . . . . . . . . . . . . . .
Laredo, TX . . . . . . . . . . . . . . . San Diego, CA . . . . . . . . . . . . New Orleans, LA. . . . . . . . . . . San Francisco, CA . . . . . . . . . Buffalo, NY . . . . . . . . . . . . . . Houston, TX . . . . . . . . . . . . . . Tucson, AZ . . . . . . . . . . . . . . . Pre-Clearance*. . . . . . . . . . . . Seattle, WA . . . . . . . . . . . . . . Miami, FL. . . . . . . . . . . . . . . . All other field offices, including unknown . . . . . . . . . . . . . . .

204,108 56,267 29,387 23,389 17,679 13,552 11,815 2,882 2,618 2,423 2,194
41,902
204,108 31,781 25,632 21,011 14,939 13,425 10,909 9,991 9,695 9,343 8,684
48,698

100.0 27.6 14.4 11.5 8.7 6.6 5.8 1.4 1.3 1.2 1.1

193,606 58,658 30,731 22,486 12,253 12,888 6,907 2,928 2,946 1,717 1,028

20.5 41,064

100.0 15.6 12.6 10.3 7.3 6.6 5.3 4.9 4.7 4.6 4.3

193,606 28,005 26,889 20,204 9,832 14,050 12,706 7,612 8,559 10,529 7,593

23.9 47,627

100.0 30.3 15.9 11.6 6.3 6.7 3.6 1.5 1.5 0.9 0.5

212,234 67,410 32,141 25,197 7,759 16,931 5,983 4,359 3,905 988 853

21.2 46,708

100.0 14.5 13.9 10.4 5.1 7.3 6.6 3.9 4.4 5.4 3.9

212,234 25,790 33,719 20,855 6,954 15,712 19,528 7,951 8,586 10,650 6,896

24.6 55,593

100.0 31.8 15.1 11.9 3.7 8.0 2.8 2.1 1.8 0.5 0.4
22.0
100.0 12.2 15.9 9.8 3.3 7.4 9.2 3.7 4.0 5.0 3.2
26.2

*Refers to field offices abroad.
Source: U.S. Department of Homeland Security, Customs and Border Protection, Office of Field Operations. Enforcement Integrated Database (EID), October 2013.

4
070

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 6 of 9

Table 4. Notices to Appear Issued by Homeland Security Office: Fiscal Years 2011 to 2013 (Ranked by 2013 notices to appear)

2013

2012

2011

Homeland Security office

Number

Percent

Number

Percent

Number

Percent

Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ICE Enforcement and Removal Operations . . . . . . . . . United States Citizenship and Immigration Services . . CBP U.S. Border Patrol . . . . . . . . . . . . . . . . . . . . . . . CBP Office of Field Operations. . . . . . . . . . . . . . . . . .

224,185 101,571
56,896 42,078 23,640

100.0 45.3 25.4 18.8 10.5

235,687 140,707
41,778 31,506 21,696

100.0 59.7 17.7 13.4 9.2

250,127 156,208
44,638 31,739 17,542

100.0 62.5 17.8 12.7 7.0

Source: U.S. Department of Homeland Security, Customs and Border Protection, U.S. Border Patrol, November 2013; ICE Enforcement and Removal Operations, October 2013; CBP Office of Field Opera-
tions, October 2013, United States Citizenship and Immigration Services, NTA Database, May 2014.

Southwest Border Apprehensions. Apprehensions by the USBP along the Southwest border increased 16 percent from 356,873 in 2012 to 414,397 in 2013. Rio Grande Valley was the leading sector for apprehensions (154,453) and displayed the highest increase from 2012 to 2013 (56,691 or 58 percent) (see Table 2). The next leading sectors in 2013 were Tucson (120,939) Laredo (50,749), San Diego (27,496), and Del Rio (23,510).
Inadmissible Aliens
CBP Office of Field Operations (OFO) determined 204,108 aliens arriving at a port of entry were inadmissible in 2013, up 5.4 percent from 193,606 in 2012 (See Table 3). Fifty-one percent of all inadmissible aliens in 2013 were processed at land ports, followed by 25 percent at sea ports, and 24 percent at airports.
Nationality of Inadmissible Aliens. Mexican nationals accounted for 28 percent of inadmissible aliens in 2013, followed by Canada (14 percent) and the Philippines (12 percent). Other leading countries included Cuba, China, India, Ukraine, Russia, Spain and El Salvador. The greatest increases from 2012 to 2013 were for nationals of El Salvador (113 percent) and India (71 percent) (see Table 3).
Notices to Appear
DHS issued 224,185 NTAs in 2013, down from 235,687 in 2012 (see Table 4). ICE ERO issued 101,571 or 45 percent of all NTAs in 2013, down from 140,707 or 60 percent in 2012. NTAs issued by USCIS accounted for 25 percent of all NTAs in 2013, up from 18 percent in 2012, partly due to an increase in the number of

Table 5.
Initial Admissions to ICE Detention Facilities by Country of Nationality: Fiscal Years 2011 to 2013
(Ranked by 2013 detention admissions)

Country of nationality
Total . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . Guatemala. . . . . . . . . . . . . . . Honduras. . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . Ecuador. . . . . . . . . . . . . . . . . India . . . . . . . . . . . . . . . . . . . Dominican Republic . . . . . . . . Haiti . . . . . . . . . . . . . . . . . . . Nicaragua . . . . . . . . . . . . . . . Jamaica. . . . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . . . . .

2013

Number Percent

440,557

100.0

244,585

55.5

59,189

13.4

50,609

11.5

40,261

9.1

4,716

1.1

4,057

0.9

3,537

0.8

2,382

0.5

2,323

0.5

1,933

0.4

2012

Number Percent

477,523

100.0

307,523

64.4

50,723

10.6

40,469

8.5

31,286

6.6

3,856

0.8

1,522

0.3

4,265

0.9

1,609

0.3

2,131

0.4

2,365

0.5

26,965

6.1 31,774

6.7

Note: Excludes Office of Refugee Resettlement and Mexican Interior Repatriation Program facilities.

Source: U.S. Department of Homeland Security, ENFORCE Alien Detention Module (EADM), October 2013.

2011

Number Percent

429,247

100.0

288,581

67.2

38,450

9.0

26,416

6.2

23,792

5.5

2,957

0.7

3,438

0.8

4,201

1.0

1,775

0.4

2,015

0.5

2,597

0.6

35,025

8.2

Table 6. Aliens Removed by Component: Fiscal Years 2011 to 2013

Component
Total . . . . . . . . . . . . . . . . . ICE . . . . . . . . . . . . . . . . . . . . CBP U.S. Border Patrol . . . . . . CBP Office of Field Operations . .

2013

Number Percent

438,421

100.0

330,651

75.4

86,253

19.7

21,517

4.9

2012

Number Percent

418,397

100.0

345,628

82.6

51,012

12.2

21,757

5.2

2011

Number Percent

387,134

100.0

314,453

81.2

42,952

11.1

29,729

7.7

Note: OIS and ICE totals may differ. See footnote 2 on page 1.
Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013.

Table 7.
Trends in Total Removals, Expedited Removals, and Reinstatements of Final Removal Orders: Fiscal Years 2011 to 2013

Removals
Total . . . . . . . . . . . . . . . . . Expedited Removals . . . . . . . . Reinstatements . . . . . . . . . . . All other removals . . . . . . . . . .

2013

Number Percent

438,421

100.0

193,032

44.0

170,247

38.8

75,142

17.1

2012

Number Percent

418,397

100.0

163,308

39.0

146,044

34.9

109,045

26.1

2011

Number Percent

387,134

100.0

122,236

31.6

124,784

32.2

140,114

36.2

Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013.

5
071

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 7 of 9

“Credible Fear” issued NTAs. USBP issued NTAs accounted for 19 percent of all NTAs in 2013, up from 14 percent in 2012. OFO issued 11 percent of NTAs in 2013 and 9 percent in 2012.
Detentions
ICE detained 440,557 aliens during 2013, a decrease of 8 percent from 2012 (See Table 5). Mexican nationals accounted for 56 percent of total detainees in 2013, down from 64 percent in 2012. The next leading countries in 2013 were Guatemala (13 percent), Honduras (12 percent) and El Salvador (9 percent). These four countries accounted for 90 percent of all detainees in 2013.
Removals and Returns
Total Removals. The number of removals increased from 418,397 in 2012 to an all-time high of 438,421 in 2013 (see Tables 6, 7 and Figure 2). ICE accounted for 75 percent of all removals in 2013,

down from 83 percent in 2012. USBP accounted for 20 percent of all removals in 2013, up from 12 percent in 2012. OFO performed 4.9 percent of removals in 2013 and 5.2 percent in 2012 (see table 6). Mexican nationals accounted for 72 percent of all aliens removed in 2013. The next leading countries were Guatemala (11 percent), Honduras (8.3 percent) and El Salvador (4.7 percent). These four countries accounted for 96 percent of all removals in 2012 (see Table 8).
Expedited Removals. Expedited removals represented 44 percent of all removals in 2013, up from 39 percent in 2012 but down from an all-time high of 49 percent in 1999. Aliens from Mexico accounted for 75 percent of expedited removals in 2013. The next leading countries were Guatemala, Honduras, and El Salvador. Nationals from these four countries accounted for 98 percent of all expedited removals in 2013.

Table 8.

Aliens Removed by Criminal Status and Country of Nationality: Fiscal Years 2011 to 2013
(Ranked by 2013 aliens removed)

Country of nationality
Total . . . . . . . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . . . . . . . Guatemala. . . . . . . . . . . . . . . . . . . . . Honduras. . . . . . . . . . . . . . . . . . . . . . El Salvador . . . . . . . . . . . . . . . . . . . . Dominican Republic . . . . . . . . . . . . . . Ecuador. . . . . . . . . . . . . . . . . . . . . . . Colombia . . . . . . . . . . . . . . . . . . . . . . Brazil. . . . . . . . . . . . . . . . . . . . . . . . . Nicaragua . . . . . . . . . . . . . . . . . . . . . Jamaica. . . . . . . . . . . . . . . . . . . . . . . All other countries, including unknown . .

2013

Total
438,421 314,904
46,866 36,526 20,862
2,278 1,491 1,421 1,411 1,337 1,101 10,224

Criminal*
198,394 146,298
15,365 16,609
9,440 1,805
580 956 366 691 993 5,291

NonCriminal
240,027 168,606
31,501 19,917 11,422
473 911 465 1,045 646 108 4,933

2012

Total
418,397 303,745
38,900 31,740 18,993
2,868 1,763 1,591 2,397 1,400 1,319 13,681

Criminal*
200,143 151,444
13,494 13,815
8,674 2,182
706 1,055
424 731 1,150 6,468

NonCriminal
218,254 152,301
25,406 17,925 10,319
686 1,057
536 1,973
669 169 7,213

Total
387,134 288,078
30,343 22,027 17,381
2,893 1,716 1,899 3,350 1,502 1,474 16,471

* Refers to persons removed who have a prior criminal conviction. Note: Excludes criminals removed by Customs and Border Protection (CBP). CBP EID does not identify if aliens removed were criminals. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013.

2011
Criminal* 188,964 145,133
11,718 10,825
8,507 2,142
704 1,048
550 696 1,225 6,416

NonCriminal
198,170 142,945
18,625 11,202
8,874 751
1,012 851
2,800 806 249
10,055

6
072

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 8 of 9

Reinstatements. Reinstatements of previous removal orders accounted for 39 percent of all removals in 2013. The number of removals based on a reinstatement of final orders increased every year between 2005 and 2013. In 2013, aliens from Mexico accounted for 75 percent of all reinstatements. Other leading countries included Guatemala, Honduras, and El Salvador.These four countries accounted for 99 percent of all reinstatements in 2013.
Criminal Activity. Approximately 198,000 aliens removed in 2013 had a prior criminal conviction.10 The most common categories of crime were immigration-related offenses, dangerous drugs, criminal traffic offenses, and assault. Immigration-related offenses increased 31 percent from 2012 to 2013 and 65 percent between 2011 and 2013. Dangerous drugs and criminal traffic offenses decreased 28 and 35 percent respectively from 2012 to 2013. These four leading categories accounted for 72 percent of all criminal alien removals in 2013 (see Table 9).
10 Excludes criminals removed by CBP; CBP EID data do not identify if aliens removed were criminals.

Returns. In 2013, 178,371 aliens were returned to their home countries without an order of removal, a decline of 23 percent from 2012 and the lowest number since 1967 (see Table 10). 2013 was the ninth consecutive year in which returns declined. Fifty-nine percent of returns were performed by OFO in 2013, up from 48 percent in 2012. USBP accounted for 22 percent of all returns in 2013, down from 25 percent in 2012. From 2011 to 2013, returns by USBP decreased 66 percent. ICE accounted for the remaining 20 percent of returns in 2013, down from 27 percent in 2012. Mexican nationals accounted for 49 percent of all returns in 2013, down from 57 percent in 2012. The next leading countries of nationality for returns in 2013 were Canada (13 percent), the Philippines (12 percent) and China (6.6 percent) (see Table 11).
FOR MORE INFORMATION
For more information about immigration and immigration statistics, visit the Office of Immigration Statistics Website at www. dhs.gov/immigration-statistics.

Table 9. Criminal Aliens Removed by Crime Category: Fiscal Years 2011 to 2013 (Ranked by 2013 criminal aliens removed)

Crime Category
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Immigration* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dangerous Drugs** . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Traffic Offenses† . . . . . . . . . . . . . . . . . . . . . Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burglary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Weapon Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fraudulent Activities . . . . . . . . . . . . . . . . . . . . . . . . . Sexual Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All other categories, including unknown . . . . . . . . . . .

2013
Number
198,394 62,194 30,603 29,844 20,181 5,505 5,296 5,290 5,179 3,166 3,032 28,104

Percent
100.0 31.3 15.4 15.0 10.2 2.8 2.7 2.7 2.6 1.6 1.5 14.2

2012
Number
200,143 47,616 42,679 46,162 13,045 3,569 2,513 5,428 3,879 3,353 2,430 29,469

Percent
100.0 23.8 21.3 23.1 6.5 1.8 1.3 2.7 1.9 1.7 1.2 14.7

2011
Number
188,964 37,606 43,378 43,154 12,783 3,808 2,730 5,728 4,232 3,576 2,858 29,111

Percent
100.0 19.9 23.0 22.8 6.8 2.0 1.4 3.0 2.2 1.9 1.5 15.4

* Including entry and reentry, false claims to citizenship, and alien smuggling. ** Including the manufacturing, distribution, sale, and possession of illegal drugs. † Including hit and run and driving under the influence.

Notes: Data refers to persons removed who have a prior criminal conviction. Excludes criminals removed by Customs and Border Protection (CBP). CBP EID does not identify if aliens removed were criminals.

Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014.

Table 10. Aliens Returned by Component: Fiscal Years 2011 to 2013

Component
Total . . . . . . . . . . . . . . . . . CBP Office of Field Operations. . CBP U.S. Border Patrol . . . . . . ICE . . . . . . . . . . . . . . . . . . . .

2013

Number Percent

178,371

100.0

104,300

58.5

38,779

21.7

35,292

19.8

2012

Number Percent

230,386

100.0

109,468

47.5

58,197

25.3

62,721

27.2

2011

Number Percent

322,124

100.0

130,996

40.7

113,886

35.4

77,242

24.0

Note: OIS and ICE totals may differ. See footnote 2 on page 1.

Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013.

7
073

Case 1:14-cv-00254 Document 38-3 Filed in TXSD on 12/24/14 Page 9 of 9

Table 11. Aliens Returned by Country of Nationality: Fiscal Years 2011 to 2013 (Ranked by 2013 aliens returned)

Country of nationality
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Philippines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . China, People’s Republic. . . . . . . . . . . . . . . . . . . . . . Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Russia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guatemala. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Korea, South . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . All other countries, including unknown . . . . . . . . . . . .

2013
Number
178,371 88,042 23,963 21,523 11,684 2,604 2,462 1,991 1,920 1,347 1,259 21,576

Percent
100.0 49.4 13.4 12.1 6.6 1.5 1.4 1.1 1.1 0.8 0.7 12.1

2012
Number
230,386 131,983
27,039 20,903 11,780
2,589 3,273 2,464 2,337 2,332 1,191 24,495

Percent
100.0 57.3 11.7 9.1 5.1 1.1 1.4 1.1 1.0 1.0 0.5 10.6

Note: Returns are the confirmed movement of an inadmissible or deportable alien out of the United States not based on an order of removal. Source: U.S. Department of Homeland Security, ENFORCE Alien Removal Module (EARM), January 2014, Enforcement Integrated Database (EID), November 2013.

2011
Number
322,124 205,158
28,274 23,150 16,234
4,111 4,136 3,512 2,582 3,026 1,619 30,322

Percent
100.0 63.7 8.8 7.2 5.0 1.3 1.3 1.1 0.8 0.9 0.5 9.4

APPENDIX
ENFORCEMENT PROGRAM OFFICES
U.S. Customs and Border Protection (CBP)
Office of Field Operations CBP’s Office of Field Operations (OFO) is responsible for securing the U.S. border at ports of entry while facilitating lawful trade and travel. CBP officers determine the admissibility of aliens who are applying for admission to the United States at designated ports of entry.
U.S. Border Patrol The primary mission of the U.S. Border Patrol (USBP) is to secure approximately 7,000 miles of international land border with Canada and Mexico and 2,600 miles of coastal border of the United States. Its major objectives are to deter, detect, and interdict the illegal entry of aliens, terrorists, terrorist weapons, and other contraband into the United States. USBP operations are divided into geographic regions referred to as sectors.
U.S. Immigration and Customs Enforcement (ICE)
Homeland Security Investigations The U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) Directorate is a critical asset in the ICE mission, responsible for disrupting and dismantling transnational criminal threats facing the United States. HSI uses its legal

authorities to investigate immigration and customs violations such as: human rights violations; narcotics; weapons smuggling and the smuggling of other types of contraband; financial crimes; cyber crimes; human trafficking; child pornography; intellectual property violations; commercial fraud; export violations; and identity and benefit fraud. HSI special agents also conduct national security investigations aimed at protecting critical infrastructure vulnerable to sabotage, attack, or exploitation. In addition to domestic HSI criminal investigations, HSI oversees ICE’s international affairs operations and intelligence functions.
Enforcement and Removal Operations
Officers and agents of ICE Enforcement and Removal Operations (ERO) serve as the primary enforcement arm within ICE for the identification, apprehension, and removal of certain aliens from the United States. ERO transports removable aliens, manages aliens in custody or subject in conditions of release, and removes individuals ordered to be removed from the United States.
U.S. Citizenship and Immigration Services (USCIS)
U.S. Citizenship and Immigration Services (USCIS) oversees lawful immigration to the United States and processes applications for immigration benefits within the United States. USCIS provides accurate and useful information to its customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of the immigration system.

8
074

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 1 of 22
EXHIBIT 4

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 2 of 22
ICE Enforcement and Removal Operations Report
Fiscal Year 2014 December 19, 2014
U.S. Immigration and Customs Enforcement
.
075

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 3 of 22
Enforcement and Removal Operations Table of Contents
Background ...................................................................................................................... 1 Discussion ........................................................................................................................ 2 Appendix A ...................................................................................................................... 12 Appendix B ...................................................................................................................... 18
i
076

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 4 of 22
I. Background
This report summarizes U.S. Immigration and Customs Enforcement’s (ICE) Fiscal Year (FY) 2014 civil immigration enforcement and removal operations. ICE shares responsibility for enforcing the Nation’s civil immigration laws with U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). In executing its enforcement duties, ICE focuses on two core missions: (1) identifying and apprehending public safety threats—including criminal aliens and national security targets—and other removable individuals within the United States; and (2) detaining and removing individuals apprehended by ICE and CBP officers and agents patrolling our Nation’s borders. Each year, ICE immigration enforcement is impacted by operational factors, including the size of the removable population found in the interior and encountered at the border by CBP, appropriated resources, fluctuating migration patterns, and the legal authorities that govern ICE’s activities. In 2014, each of these factors affected ICE operations and contributed to the number of ICE’s FY 2014 removals, which was 315,943, down from 368,644 in FY 2013. This report sets forth and analyzes ICE’s FY 2014 immigration enforcement statistics.
1
077

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 5 of 22
II. Discussion
Shifting Migration Patterns and Demographics
In FY 2014, the surge of illegal border crossings in the Rio Grande Valley (RGV) in South Texas and significant increase in Central American migrants presented unique challenges to ICE’s immigration enforcement efforts.
The Surge in the Rio Grande Valley In 2014, the United States experienced an unprecedented surge of illegal border crossings in the RGV, particularly by unaccompanied children and family units from Central America. CBP apprehensions in the RGV—a sector containing just 320 miles of our 2,000 mile border with Mexico—accounted for 72.8 percent of the unaccompanied children and 76.2 percent of the family units apprehended in FY 2014. In FY 2013, the Border Patrol apprehended a total of 21,553 unaccompanied children and 7,265 family units in the RGV. In 2014 those numbers were 49,959 and 52,326, respectively. In June alone, at the height of the surge, the Border Patrol apprehended 8,730 unaccompanied children and 13,370 family units in the RGV, which placed significant strain on a number of DHS resources and operations, including ICE.
2
078

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 6 of 22
As part of DHS’s response to this unprecedented migration, and to stem the tide, in FY 2014, ICE devoted significant resources, both transportation assets and ICE Enforcement and Removal Operations (ERO) officers, to transfer 56,029 unaccompanied children apprehended at the southwest border to the Department of Health and Human Services (HHS), as the law requires. While these unaccompanied children did not occupy ICE detention space, they required ICE to reallocate resources, including officer time, to support DHS’s response to this urgent humanitarian situation. For example, approximately 800 ERO officers and support personnel (over 10 percent of ERO’s entire workforce) were detailed to support southwest border operations.
The significant increase in illegal migration of unaccompanied children and family units also contributed to operational challenges for ICE. ICE does not detain unaccompanied children. Under the law, ICE is required to transfer unaccompanied children to HHS, generally within 72 hours. HHS then becomes responsible for their care and is required by law to place unaccompanied minors in the least restrictive setting that is in the best interest of the child, which generally results in placement with a family member. Unlike adults apprehended at the border who are placed into expedited removal, the law requires that unaccompanied children be placed in removal proceedings before an immigration judge (as opposed to expedited removal). These cases are placed on the non-detained immigration court docket, and due to a number of factors, generally take significantly longer to be adjudicated than those of adults.
Like single adults, family units apprehended at the border may be placed into expedited removal proceedings and detained. However, this process requires ICE to maintain an increased level of family detention space, which historically has been limited to fewer than 100 beds nationwide. ICE cannot detain family units, including children, in adult detention facilities. As a result, in the summer ICE sought substantial resources and authority to build additional detention capacity to detain and remove family units, and since then ICE has opened three additional facilities for this purpose. All of these efforts required ERO officer time, support personnel, and significant funding.
At the height of the surge, in order to sustain ICE and CBP response efforts, the President submitted an emergency supplemental funding request to Congress to help address these unique and urgent challenges, including significantly increased ICE detention capacity for family units and ICE transportation resources for unaccompanied children. That request was not acted upon, and as a result DHS was required to reprogram funds from other key homeland security priorities. In doing so, and coupled with a broader public messaging campaign and sustained foreign counterpart engagement, DHS efforts helped contribute to dramatically reducing migration in the RGV, down to 1,491 unaccompanied children and 1,704 family units apprehended in September, the last month of the fiscal year. However, ICE
3
079

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 7 of 22

and DHS components remain vigilant and will continue to work with Congress and our interagency and foreign counterparts to sustain our progress.

The Spike of Central Americans

In addition to the surge of unaccompanied children and family units, between FY 2013 and FY 2014, ICE experienced another key demographic shift in the population of the individuals it detained and removed. Specifically, ICE removals of Mexican nationals decreased from 66 to 56 percent of total ICE removals during this period. At the same time, the number of aliens removed to El Salvador, Guatemala, and Honduras increased by 15 percent due to the increased share of apprehensions involving such nationals at the border. Removals of individuals at the border from countries other than Mexico increased 26 percent.

Removal of nationals to non-contiguous countries are far more costly, take significantly more time, and require added officer resources as compared to removals of Mexican nationals. Instead of quickly returning Mexican nationals apprehended at the border, ICE must take custody of Central Americans and other individuals from non-contiguous countries, detain them, obtain travel documents from the host country, and expend transportation and flight resources.

FY 2014 Demographic Shift for ICE Removals

COUNTRY El Salvador Guatemala Honduras Mexico

FY 2013 21,602 47,749 37,049 241,493

FY 2014 27,180 54,423 40,695 176,968

Increasing Jurisdictions Declining to Honor ICE Detainers
In the interior, ICE successfully focused its enforcement actions on criminals; 85 percent of interior enforcement removals were of convicted criminals. ICE’s efforts in the interior, however, were impacted by an increasing number of state and local jurisdictions that are declining to honor ICE detainers.1 As a result, instead of state and local jails transferring criminal aliens in their custody to ICE for removal, such
1 On November 20, 2014, Secretary Johnson issued a memorandum directing ICE to discontinue the Secure Communities program and replace it with the Priority Enforcement Program (PEP) to more effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. PEP will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies to the Federal Bureau of Investigation for criminal background checks. But ICE will only seek the transfer of an alien in the custody of such agencies when the alien has been convicted of certain offenses that pose the greatest threat to public safety. See Secure Communities Memorandum dated November 20, 2014. See also Policies for Apprehension, Detention and Removal of Undocumented Immigrants Memorandum dated November 20, 2014.
4
080

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 8 of 22
aliens were released by state and local authorities. Since January 2014, state and local law enforcement authorities declined to honor 10,182 detainers.2 This required ICE to expend additional resources attempting to locate, apprehend, and remove criminal aliens who were released into the community, rather than transferred directly into custody. These changes further contributed to decreased ICE removals.
Refined Focus on Convicted Criminals
In recent years, ICE has increased its focus on identifying, locating, apprehending, and removing convicted criminal aliens who are at-large, requiring significantly more officers, time, money, and other resources as compared to those individuals who are in a custodial setting. In FY 2014, while total criminal removals declined from last year, a significant percentage of ICE’s interior removals—85 percent— remained focused on criminal aliens. The substantial share of convicted criminals removed from the interior represents a steady and significant increase from 2008, when that figure was just 38 percent and 2011 when it was 67 percent.3 ICE’s focus on criminal removals in the interior is also reflected in the total number of criminal removals: in FY 2007 and FY 2008, ICE removed 102,024 and 114,415 convicted criminals, respectively, as compared to 216,810 in FY 2013 and 177,960 in 2014. In addition, ICE removed 2,802 individuals in FY 2014 who were classified as suspected or confirmed gang members. As a result, while overall removals declined in FY 2014, ICE has sustained the improved quality of its removals by focusing on the most serious public safety and national security threats.
Reduced Use of the Alien Transfer Exit Program
Key operational changes to the Alien Transfer Exit Program (ATEP) impacted ICE’s operations and the removal of Mexican nationals. ATEP is a joint effort between ICE ERO and CBP Border Patrol in which Mexican nationals apprehended in one sector of the southwest border are transported for removal through a different sector in order to disrupt the smuggling cycle by separating migrants from their smugglers. In 2013, ICE began reallocating limited resources away from ATEP to focus on the increasing number of Central American migrants and other priorities. In FY 2014, ICE continued to scale back ATEP and re-tasked ATEP-dedicated transportation resources to effectively manage the influx of family units and unaccompanied children apprehended in the RGV. As a result, in FY 2014, the number of ATEP ICE removals dramatically decreased as compared to the 52,965 Mexican nationals removed through ATEP in FY 2013. This contributed to a reduction in total ICE removals in FY 2014. However, the Border Patrol supported ICE’s reduction in ATEP transportation resources by removing or voluntarily returning those individuals who would have met the criteria for ATEP.
2 ICE began collecting information on declined detainers beginning January 2014. 3 Because ICE’s crime entry screen did not exist in its systems prior to 2011, the ability to electronically capture and report criminal conviction information prior to 2011 was limited.
5
081

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 9 of 22
Legal Requirements
ICE’s interior operations were also challenged by federal court decisions, including the decision of the U.S. Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013). Under Rodriguez, individuals who are detained while in removal proceedings, including those subject to mandatory detention, must be granted individual bond hearings within 180 days of the commencement of immigration detention, regardless of ICE’s custody determination. Rodriguez applies throughout the Ninth Circuit, the largest federal jurisdiction. As a result, a greater number of individuals have been released on immigration judge-determined bonds and transferred from the detained docket to the non-detained docket. This has directly impacted removals in the short term because cases on the non-detained docket take longer to adjudicate, and require additional ICE resources. In addition, ICE relies on the cooperation of foreign governments to effectuate removal of their nationals. ICE often cannot repatriate individuals within the legally prescribed time limits because their countries of origin or nationality fail to issue required travel documents in a timely manner. This occurs despite ICE and Department of State efforts to work with these countries to procure necessary documents. In these cases, ICE is generally required by law to release individuals from custody. Individuals may be released on bond or an order of supervision and may be enrolled in the Alternatives to Detention (ATD) program, which may include GPS monitoring and telephonic reporting. While ICE continues to engage countries that do not cooperate in the timely repatriation of their nationals, their failure to cooperate poses a significant challenge to removals.
6
082

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 10 of 22

In FY 2014:
• ICE conducted 315,943 removals.
• ICE conducted 102,224 removals of individuals apprehended in the interior of the United States.
o 86,923 (85 percent) of all interior removals involved individuals previously convicted of a crime.
• ICE conducted 213,719 removals of individuals apprehended while attempting to unlawfully enter the United States.4
• 56 percent of all ICE removals, or 177,960, involved individuals who were previously convicted of a crime.
o ICE apprehended and removed 86,923 criminals from the interior of the U.S.
o ICE removed 91,037 criminals apprehended while attempting to unlawfully enter the United States.
• 98 percent of all ICE FY 2014 removals, or 309,477, clearly met one or more of ICE’s stated civil immigration enforcement priorities.5
• Of the 137,983 individuals removed who had no criminal conviction, 89 percent, or 122,682, were apprehended at or near the border while attempting to unlawfully enter the country.6

Key Term Definitions
Border Removal: An individual removed by ICE who is apprehended by a CBP officer or agent while attempting to illicitly enter the United States at or between the ports of entry. These individuals are also referred to as recent border crossers.
Criminal Offender: An individual convicted in the United States for one or more criminal offenses. This does not include civil traffic offenses.
Immigration Fugitives: An individual who has failed to leave the United States based on a final order of removal, deportation, or exclusion, or has failed to report to ICE after receiving notice to do so.
Interior Removal: An individual removed by ICE who is identified or apprehended in the United States by an ICE officer or agent. This category excludes those apprehended at the immediate border while attempting to unlawfully enter the United States.
Other Removable Alien: An individual who is not a confirmed convicted criminal, recent border crosser, or other ICE civil enforcement priority category. This category may include individuals removed on national security grounds or for general immigration violations.
Previously Removed Alien: An individual previously removed or returned who has re-entered the country illegally.
Reinstatement of Final Removal Order: The removal of an alien based on the reinstatement of a prior removal order, where the alien departed the United States under an order of removal and illegally reentered the United States (INA § 241(a)(5)). The alien may be removed without a hearing before an immigration court.
Removal: The compulsory and confirmed movement of an inadmissible or deportable alien out of the United States based on an order of removal. An individual who is removed may have administrative or criminal consequences placed on subsequent reentry because of the removal. ICE removals also include voluntary returns, voluntary departures, and withdrawals of admission for cases managed by ICE officers and agents.

4 Approximately 96 percent of these individuals were apprehended by CBP Border Patrol agents and then processed, detained, and removed by ICE. The remaining individuals were apprehended by CBP officers at ports of entry. 5 As defined in the March 2011 ICE Memorandum: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens. 6 ICE defines criminality via a recorded criminal conviction obtained by ICE officers and agents from certified criminal history repositories. These individuals include recent border crossers, immigration fugitives, and repeat immigration violators.
7
083

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 11 of 22
• The leading countries of origin for removals were Mexico, Guatemala, Honduras, and El Salvador.
• 2,802 individuals removed by ICE were classified as suspected or confirmed gang members.7
Border Removals
In FY 2014, ICE continued to prioritize border security, partnering with CBP to process and remove individuals apprehended while attempting to unlawfully enter the United States.
In FY 2014, ICE conducted 213,179 removals of recent border crossers. Many of those apprehended along the border had prior criminal or civil immigration violations in the United States. Of these recent border crosser removals, 91,037 involved individuals with at least one criminal conviction.

FY 2014 ICE Border Removals by Apprehending Program and Priority

Apprehending CBP Office
Office of Border Patrol
(OBP)
Office of Field Operations (OFO)

Level/Priority

Convicted Criminal

Level 1 Level 2 Level 3

Immigration Fugitives

Repeat Immigration Violators

Other Border Removals

Total OBP

Convicted Criminal

Level 1 Level 2 Level 3

Immigration Fugitives

Repeat Immigration Violators

Other Border Removals

Total OFO

Removals 17,772 19,733 49,948 1,776
54,115 61,714 205,058 1,490
866 1,228
56
995 4,026 8,661

7 Gang affiliation is documented as part of the intake process in the Risk Classification Assessment (RCA).
8
084

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 12 of 22

Changing Border Apprehension Demographics
In FY 2014, ICE carried out 110,021 border removals of individuals from countries other than Mexico, a 26 percent increase over the 90,461 such individuals removed by ICE in FY 2013. Given this shift in border apprehension demographics, ICE was required in FY 2014 to use more of its detention and removal resources for recent border crossers from countries other than Mexico and Canada—as CBP must rely on ICE to effectuate the removal of individuals from countries that are not contiguous with the United States.
In FY 2014, Mexico continued to be the leading country of origin for individuals removed, followed by Guatemala, Honduras, and El Salvador.

FY 2014 Top 10 Countries of

ICE Removal by Citizenship

Citizenship

Total

Mexico

176,968

Guatemala

54,423

Honduras

40,695

El Salvador

27,180

Dominican Republic

2,130

Ecuador

1,565

Nicaragua

1,266

Colombia

1,181

Jamaica

938

Brazil

850

Total

307,196

Interior Apprehensions and Removals

In FY 2014, ICE conducted 102,224 removals of individuals apprehended in the interior of the United States. ICE focused interior enforcement operations on individuals with criminal convictions, emphasizing those convicted of the most serious crimes. Notably, 85 percent of all removals from the interior of the United States involved individuals who were previously convicted of a criminal offense, while 76 percent of the convicted criminals removed from the interior were convicted of an ICE Level 1 or Level 2 offense.
Level 1 offenders are aliens convicted of (1) an “aggravated felony,” as defined in § 101(a)(43) of the Immigration and Nationality Act, or (2) two or more crimes each punishable by more than one year, commonly referred to as “felonies.” Level 2 offenders are aliens convicted of any other felony or three or more crimes each punishable by less

9
085

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 13 of 22

than one year, commonly referred to as “misdemeanors.” Level 3 offenders are aliens convicted of “misdemeanor” crime(s) punishable by less than one year.

FY 2014 ICE Interior Criminal Removals by Level

Level 1

43,897 50.5 percent

Level 2

22,191 25.5 percent

Level 3

20,835

24 percent

Total

86,923 100 percent

Almost two thirds of individuals with criminal convictions who were removed from the interior of the United States also fell into other ICE priority categories. For example, 62 percent of ICE’s interior criminal alien removals were previously removed from the United States or were immigration fugitives, and 65 percent of all interior Level 3 removals had been previously removed or were immigration fugitives.

FY 2014 ICE Interior Removals by

Priority

Threat Level/Priority Removals

Convicted Criminal

Level 1 Level 2 Level 3

43,897 22,191 20,835

Immigration Fugitives

1,629

Repeat Immigration

Violators

7,206

Other Removals

6,466

Total

102,224

10
086

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 14 of 22
Criminal Alien Removals
In FY 2014, approximately 56 percent (177,960) of all ICE removals involved individuals with criminal convictions. Overall, in FY 2014, 63,159 of the convicted criminal removals were Level 1 offenders, 42,790 were Level 2 offenders, and 72,011 were Level 3 offenders. The majority of Level 1 and Level 2 offenders—62 percent—were apprehended in the interior of the United States. Conversely, 71 percent of all Level 3 offenders were apprehended at or near the border.
Non-Criminal Removals
The vast majority of ICE non-criminal removals in FY 2014 involved individuals encountered by CBP agents and officers while trying to unlawfully enter the United States. Specifically, 89 percent (122,682) of ICE’s 137,983 non-criminal removals involved individuals attempting to unlawfully enter the United States. A full 95 percent of ICE’s non-criminal removals involved recent border crossers, repeat immigration violators, or immigration court fugitives.
11
087

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 15 of 22

III. Appendix A: FY 2014 Removals by Citizenship

FY 2014 ICE Removals by Citizenship

Citizenship

Total

Mexico

176,968

Guatemala

54,423

Honduras

40,695

El Salvador

27,180

Dominican Republic

2,130

Ecuador

1,565

Nicaragua

1,266

Colombia

1,181

Jamaica

938

Brazil

850

Peru

678

China

534

Canada

457

Haiti

382

India

359

Philippines

302

Nigeria

261

Costa Rica

245

United Kingdom

213

Poland

159

Trinidad and Tobago

158

South Korea

154

Venezuela

153

Romania

143

Guyana

136

Belize

123

Spain

121

Kenya

113

Russia

112

Bahamas

110

Saudi Arabia

105

Argentina

101

Pakistan

98

Ukraine

96

12
088

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 16 of 22

FY 2014 ICE Removals by Citizenship

Citizenship

Total

Ghana

91

Italy

91

France

87

Bolivia

85

Israel

83

Korea

83

Jordan

80

Germany

77

Cambodia

75

Panama

73

Indonesia

71

Chile

69

Bangladesh

66

Somalia

65

Portugal

64

Micronesia

63

Egypt

62

Hungary

60

Turkey

60

Bosnia-Herzegovina

53

Lebanon

53

Thailand

52

Albania

50

Vietnam

48

Uruguay

45

Nepal

44

Morocco

43

South Africa

42

Australia

41

Netherlands

39

Uzbekistan

39

Czech Republic

34

Japan

34

Bulgaria

33

Ireland

33

Latvia

32

Ethiopia

31

13

089

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 17 of 22

FY 2014 ICE Removals by Citizenship

Citizenship

Total

Lithuania

31

Marshall Islands

31

Sri Lanka

31

Tanzania

31

Armenia

30

Cameroon

30

Greece

30

Iraq

29

Taiwan

29

Tonga

29

Moldova

26

Cuba

24

Iran

23

Kazakhstan

23

Mongolia

23

Afghanistan

22

Georgia

22

Uganda

22

Malaysia

21

Kyrgyzstan

20

St. Vincent Grenadines

19

Belarus

18

Fiji

18

New Zealand

18

Senegal

18

Liberia

17

St. Kitts-Nevis

17

Sweden

17

Barbados

16

Dominica

16

Mali

16

Slovakia

16

Unknown

16

Antigua-Barbuda

15

Hong Kong

15

Palau

15

Yemen

15

14

090

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 18 of 22

FY 2014 ICE Removals by Citizenship

Citizenship

Total

Sudan

14

Angola

13

Guinea

13

Grenada

12

Macedonia

12

Paraguay

12

Serbia

12

Sierra Leone

12

Singapore

12

St. Lucia

12

Tunisia

12

Ivory Coast

11

Libya

11

Congo

10

Kosovo

10

Niger

10

Zambia

10

Zimbabwe

10

Azerbaijan

9

Belgium

9

Cape Verde

9

Czechoslovakia

9

Samoa

9

South Sudan

9

Syria

9

Estonia

8

British Virgin Islands

7

Gambia

7

Mauritania

7

Montenegro

7

Norway

7

Tajikistan

7

Bermuda

6

Burkina Faso

6

Dem Rep of the Congo

6

Denmark

6

Kuwait

6

15

091

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 19 of 22

FY 2014 ICE Removals by Citizenship

Citizenship

Total

Switzerland

6

Togo

6

Benin

5

Burma

5

Croatia

5

Slovenia

5

Suriname

5

Yugoslavia

5

Algeria

4

Austria

4

Burundi

4

Equatorial Guinea

4

Gabon

4

Malawi

4

Oman

4

Botswana

3

Cayman Islands

3

Finland

3

Iceland

3

Laos

3

Namibia

3

Netherlands Antilles

3

Turkmenistan

3

Turks and Caicos Islands

3

Chad

2

Cyprus

2

Mauritius

2

Rwanda

2

United Arab Emirates

2

USSR8

2

Andorra

1

Bahrain

1

Comoros

1

Eritrea

1

8 Denotes aliens subject to removal who are nationals of countries that were member states of the Union of Soviet Socialist Republics (USSR), but who did not become citizens of the Russian Federation after the dissolution of the USSR.
16
092

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 20 of 22

FY 2014 ICE Removals by Citizenship

Citizenship

Total

French Guiana

1

Guadeloupe

1

Guinea-Bissau

1

Macau

1

Madagascar

1

Malta

1

Monaco

1

Montserrat

1

Papua New Guinea

1

San Marino

1

Total

315,943

17
093

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 21 of 22
Appendix B: Methodology
Data Source:
Data used to report ICE statistics are obtained through the ICE Integrated Decision Support (IIDS) system data warehouse.
Data Run Dates
FY 2014: IIDS v1.16 run date 10/05/2014; ENFORCE Integrated Database (EID) as of 10/03/2014
FY 2013: IIDS v1.14 run date 10/06/2013; EID as of 10/04/2013
FY 2012: IIDS v1.12 run date 10/07/2012; EID as of 10/05/2012
FY 2011: IIDS run date 10/07/2011; EID as of 10/05/2011
FY 2010: IIDS run date 10/05/2010; EID as of 10/03/2010
FY 2009: Removals and Returns are an adjusted historical number of an IIDS run date of 8/16/2010 (EID as of 8/14/10) and will remain static.
Removals
Removal data is historical and remains static. Removals include Returns. Returns include Voluntary Returns, Voluntary Departures, and Withdrawals Under Docket Control.
In FY 2009, ICE began to “lock” removal statistics on October 5 at the end of each fiscal year, and counted only aliens whose removal or return was already confirmed. Aliens removed or returned in that fiscal year but not confirmed until after October 5 were excluded from the locked data, and thus from ICE statistics. To ensure an accurate and complete representation of all removals and returns, ICE will count removals and returns confirmed after October 5 toward the next fiscal year. FY 2012 removals, excluding FY 2011 “lag,” were 402,919. FY 2013 removals, excluding FY 2012 “lag,” were 363,144. FY 2014 removals, excluding FY 2013 “lag,” were 311,111.
Fiscal Year Data Lag/Case Closure Lag is defined as the physical removal of an alien occurring in a given month; however, the case is not closed in EARM until the fiscal year after the data is locked. Since data from the previous fiscal year are locked, the removal is recorded in the month the case was closed and reported in subsequent fiscal year removals. This will result in a higher number of recorded removals in a fiscal year than actual departures.
18
094

Case 1:14-cv-00254 Document 38-4 Filed in TXSD on 12/24/14 Page 22 of 22 Any voluntary return on or after June 1, 2013 without an ICE intake case will not be recorded as an ICE removal. ERO Removals include aliens processed for Expedited Removal (ER) and turned over to ERO for detention. Aliens processed for ER and not detained by ERO are primarily processed by Border Patrol. CBP should be contacted for those statistics. Gang affiliation is documented as part of the intake process in the Risk Classification Assessment (RCA). FY 2012 – FY 2013 Removals include ATEP removals.
Criminality
ICE Levels reflect priorities outlined in the June 2010 memorandum entitled “ICE Civil Immigration Enforcement Priorities effective October 1, 2010.” Since FY 2011, ICE has defined criminality as a recorded criminal conviction from certified criminal history repositories. To prioritize the removal of convicted criminal aliens, ICE personnel refer to the following offense levels: Level 1, Level 2, and Level 3 offenders. Level 1 offenders are aliens convicted of “aggravated felonies,” as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes, each punishable by more than one year, commonly referred to as “felonies.” Level 2 offenders are aliens convicted of any other felony or three or more crimes, each punishable by less than one year, commonly referred to as “misdemeanors.” Level 3 offenders are aliens convicted of “misdemeanor” crime(s) punishable by less than one year. Prior to FY 2011, ICE used Secure Communities (SC) Levels 1, 2, and 3 for prioritization purposes.
19
095

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 5

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 2 of 7
096

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 3 of 7
The Department of Homeland Security (DHS) and its immigration componentsCBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion,DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel , detention space, and removal assets accordingly.
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question , and arrest; whom to detain or release; whether to settle, dismiss, appeal , or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discretion and pursue these priorities at all stages of the enforcement process-from the earliest investigative stage to enforcing final orders of removal-subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.
Except as noted below, the following memoranda are hereby rescinded and superseded: John Morton, Civil Immigration Enforcem ent: Priorities for the Apprehension , Detention , and Removal of Aliens, March 2, 20 11; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension , Detention and Removal of Aliens , June 17, 20 11; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009.
2
097

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 4 of 7
A. Civil Immigration Enforcement Priorities
The following shall constitute the Department's civil immigration enforcement priorities:
Priority 1 (threats to national security, border security, and public safety)
Aliens described in this priority represent the highest priority to which enforcement resources should be directed:
(a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
(b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
(c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
(d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and
(e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.
The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, 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.
Priority 2 (misdemeanants and new immigration violators)
Aliens described in this priority , who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:
(a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element
3
098

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 5 of 7
was the alien's immigration status, provided the offenses arise out of three separate incidents;
(b) aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence ;1 sexual abuse or exploitation; burglary ; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
(c) aliens apprehended anywhere in the United States after unlawfu lly entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
(d) aliens who, in thejudgmen t of an ICE Field Office Director , USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
These aliens should be removed unless they qualify for asylum or anoth er form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users 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.
Priority 3 (other immigration violations)
Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 20 14. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehen sion and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, 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.
1 ln eval uating whether the offense is a significant misdemeanor involving ..domestic violence," careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17,201 1. 2 For present purposes,"final order"is defined as it is in 8 C.F.R. § 124l.1.
4
099

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 6 of 7
B. Apprehension, Deten tion , and Removal of Other Aliens Unlawfully in the United States
Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein , prov ided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.
C. Detention
As a general rule, DHS detention resources should be used to support the enforcement pr iorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resource s on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly , pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE F ield Office Director. If an alien falls within the above categories and is subject to mand atory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.
D. Exercising Prosecutorial Discretion
Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority l must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unl ess, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, 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. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operation s, 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 . Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the
5
100

Case 1:14-cv-00254 Document 38-5 Filed in TXSD on 12/24/14 Page 7 of 7
integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.
In making such judgment s, DHS personnel should consider factors such as: 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 humanit arian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
E. Implementation
The revised guidance shall be effective on January 5, 201 5. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum.
F. Data
By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended,removed, returned, or otherwise repatriat ed by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually.
G. No Private Right Statement
These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or ben efit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
6
101

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 1 of 35
EXHIBIT 6

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 2 of 35
102

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 3 of 35
103

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 4 of 35
TABLE OF CONTENTS
4 Program Overview 6 DACA “How Do I” Guide 9 Initial vs Renewal DACA Tip Sheet 10 Frequently Asked Questions by Topic
10		 What is DACA? 11		 DACA Process 14		 Background Checks 15		 After USCIS Makes a Decision 16		 Initial Requests for DACA 22		 Renewal of DACA 23		 Travel 25		 Criminal Convictions 27		 Miscellanceous
29 DACA Process Infographic Flyer 30 Avoid Immigration Scams Flyer 31		 List of Federal Government resources pertaining to DACA

(DACA) To1o0l4kit

3

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 5 of 35
PROGRAM OVERVIEW

Background
• USCIS began accepting requests under the Deferred Action for Childhood Arrivals (DACA) program on August 15, 2012. The DACA process was created by the Secretary of Homeland Security to offer relief from removal (in 2-year increments) for undocumented immigrants who came to the United States as children and who met several key criteria. DACA is an exercise of prosecutorial discretion and does not provide lawful status.
• The first USCIS-approved DACA grants were issued in September 2012. The initial 2-year duration will begin to expire for certain individuals in September 2014. Those individuals will be able to request consideration for renewal of DACA for a 2-year period.
• Some individuals were granted DACA by U.S. Immigration and Customs Enforcement (ICE) between June 15, 2012, and August 15, 2012. In February 2014, USCIS provided guidance to these individuals on the process they should follow to request DACA renewals.
• USCIS has updated Form I-821D [dated 6/4/14] to allow individuals to request a 2-year renewal of DACA. Previous versions of the form will not be accepted after June 5, 2014. There will be no grace period for individuals to submit a previous version of Form I-821D to request a renewal of their deferred action.
• Individuals who have not yet requested consideration for DACA must also use the new Form I-821D.
• In addition to the new Form I-821D, all individuals must also submit a Form I-795, Application for Employment Authorization (along with the accompanying fees for that form), and a Form I-765WS, Worksheet, when requesting either initial DACA or renewal of DACA.

• Individuals who allow their initial 2-year period of DACA to expire and do not seek renewal will no longer be considered to be lawfully present for inadmissibility purposes and will no longer be authorized to work legally in the United States. To ensure that their deferred action does not lapse, USCIS recommends that current DACA recipients submit Forms I-821D, I-765, and I-765 Worksheet approximately 120 days (4 months) before their 2-year period of deferred action expires. However, USCIS may reject DACA requests received earlier than 150 days (5 months) before an individual’s 2-year period of deferred action expires.
• For more information on requesting DACA, please visit our Web site at www.uscis.gov/ childhoodarrivals or call our National Customer Service Center at (800) 375-5283.
Renewal DACA Requests
• An individual may be considered for renewal of DACA if he or she met the guidelines for initial DACA and he or she: ◦– Did not depart the United States on or after June 15, 2007, without advance parole;
◦– Has continuously resided in the United States since he or she submitted his or her most recent DACA request that was approved up until the present time; and
◦– Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.
• Requests for renewal should be submitted to USCIS no less than 120 days, and no more than 150 days prior to the expiration of the current period of deferred action.

4

Deferred Action for Childhood Arrivals

105

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 6 of 35

Initial DACA Requests

Consideration of DACA

• USCIS will also continue to accept initial requests for DACA. An individual may be considered for initial DACA if he or she: ◦ – Was under the age of 31 as of June 15, 2012;

• USCIS has updated Form I-821D [dated 6/4/14] to allow individuals to request renewal of DACA for an additional 2-year period. Previous versions of the form will not be accepted after June 5, 2014.

◦ – Came to the United States before reaching his or her 16th birthday;
◦ – Has continuously resided in the United States since June 15, 2007, up to the present time;
◦ – Was physically present in the United States on June 15, 2012, and at the time of making his or her request for consideration of deferred action with USCIS;

• There will be no grace period for individuals to submit a previous version of Form I-821D to request a renewal of their deferred action.
• There is no fee for Form I-821D. The fee for Form I-765 and the required biometrics is $465.
Avoiding Immigration Scams

◦ – Had no lawful status on June 15, 2012.
◦ NOTE: No lawful status on June 15, 2012, means that:
◦ u You never had a lawful immigration status on or before June 15, 2012; or
◦ u Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012.

• Please be aware of immigration scams. Unauthorized practitioners of immigration law may try to take advantage of individuals by charging them money to obtain or submit forms related to DACA or communicate with USCIS on their behalf. Visit www.uscis.gov/avoidscams or www.uscis. gov/eviteestafas for tips on how to find authorized legal assistance and how to recognize and avoid immigration services scams.

◦ – Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a General Education Development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and
◦ – Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety;
• Individuals who were younger than 15 when DACA was first announced and are not in removal proceedings or have a final order may request DACA from USCIS any time after they have reached their 15th birthday. Individuals who are in removal proceedings or who have a final order may request DACA from USCIS even if they are younger than 15 at the time of filing.

• Protect yourself from immigration scams. Official U.S. Government Web sites should be your main source of information on DACA and immigration services. Go to www.uscis.gov to learn more.
• If you need legal immigration advice, be sure to use an authorized professional. This means an attorney in good standing or a Board of Immigration Appeals (BIA) accredited representative. Check the BIA Web site for a list of attorneys who provide immigration services for low to no cost and for a list of disciplined attorneys.You can also check the American Bar Association or your State bar association for legal services in your State.
• If you are a victim of an immigration scam, report it to the Federal Trade Commission at www.ftc.gov/complaint or www.ftc.gov/queja or by calling (877) FTC-HELP ((877) 372-4357).

(DACA) To1o0l6kit

5

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 7 of 35
107

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 8 of 35

1. Were born after June 15, 1981;

For information about specific documents that may show your

2. Arrived in the United States before the age of 16;

absence was brief, casual, and innocent, please read the instructions at www.uscis.gov/I-821D and the frequently asked questions at

3. Have continuously resided in the United States since June 15, www.uscis.gov/childhoodarrivals.

2007, up to the present time;

4. Were present in the United States on June 15, 2012; 5. Had no lawful status on June 15, 2012;

Will USCIS conduct a background check when reviewing my request for consideration of deferred action for childhood arrivals?

6. Are currently in school, have graduated or received a certificate of completion from high school, obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and
7. Are at least 15 years of age at the time of filing if you have never been in removal proceedings or if your case was terminated before you submit your request for consideration of deferred action for childhood arrivals.
For information about specific documents that may satisfy these guidelines, please read the instructions to Form I-821D at www.uscis.gov/I-821D and the frequently asked questions at www.uscis.gov/childhoodarrivals.
Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
Yes. This process is open to any individuals who can demonstrate that they meet the guidelines, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention). If you are not in immigration detention and want to affirmatively request consideration of deferred action, you must submit your request to USCIS. You do not need to be 15 years of age or older at the time of filing if you are in removal proceedings, have a final removal order, or have a voluntary departure order. All cases will be considered on an individual basis.
Submit a copy of the removal order or any document issued by the immigration judge or the final decision from the Board of Immigration Appeals, if available. This requirement applies only to people who have been in removal proceedings.

Yes. You must undergo background checks before USCIS will exercise prosecutorial discretion. You will not be considered for deferred action for childhood arrivals, unless there are exceptional circumstances, if you have been convicted of:
• Any felony;
• A significant misdemeanor offense;
• Three or more misdemeanor offenses (not occurring on the same
date and not arising out of the same act, omission or scheme of misconduct); or
• You otherwise pose a threat to national security or public safety.
What happens after I submit my request for consideration of deferred action for childhood arrivals?
After receiving your Form I-821D, Form I-765, and Form I-765WS, USCIS will review them for completeness, including the required fees, initial evidence, and signatures. If the request is complete, USCIS will send you a receipt notice. USCIS will then send you a notice scheduling you to visit an Application Support Center for fingerprinting and photographing. You may choose to receive an email and/or text message notifying you that your form has been accepted by completing a Form G-1145, E-Notification of Application/Petition Acceptance. Please see www.uscis.gov/ G-1145 for instructions.
Each request for consideration of deferred action for childhood arrivals will be reviewed on an individual, case-by-case basis. You will be notified of USCIS’ determination in writing. USCIS may request more information or evidence, or may request that you appear at a USCIS office. There is no appeal or motion to reopen/reconsider the denial of a request for consideration of deferred action for childhood arrivals.

Do brief departures affect my ability to satisfy the continuous residence in the United States since June 15, 2007, guideline?
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. Any absence will be considered brief, casual, and innocent if it occurred before August 15, 2012, and was:
1. Short and reasonably calculated to accomplish the purpose for the absence;

Can I renew the period for which removal action will be deferred in my case?
Yes. You may request consideration of renewal of your deferred action for childhood arrivals. Your request for a renewal will be considered on a case-by-case basis. If USCIS renews its exercise of discretion under deferred action for childhood arrivals for your case, you will receive deferred action for another 2 years, and if you demonstrate an economic necessity for employment you may receive employment authorization throughout that period.

2. Not because of an order of exclusion, deportation, or removal;
3. Not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.
Any unauthorized travel outside of the United States on or after August 15, 2012, will interrupt your period of continuous residence and you will not be considered for deferred action under this process.

How do I know if I may request a renewal of my deferred action for childhood arrivals?
You may request consideration of renewal of deferred action for childhood arrivals if you met the guidelines for initial deferred action for childhood arrivals (see above) and you:
1. Did not depart the United States on or after August 15, 2012, without advance parole;
2. Have continuously resided in the United States since you submitted your most recent deferred action for childhood arrivals request that was approved up to the present time;

F5—General information…How do I request consideration of deferred action for childhood arrivals?

108

M-1079B (June 2014) N

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 9 of 35
109

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 10 of 35
110

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 11 of 35
FREQUENTLY ASKED QUESTIONS

WHAT IS DEFERRED ACTION FOR CHILDHOOD ARRIVALS?
Over the past several years, this Administration has undertaken an unprecedented effort to transform the immigration enforcement system into one that focuses on national security, public safety, border security, and the integrity of the immigration system. As the Department of Homeland Security (DHS) continues to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety, DHS will exercise prosecutorial discretion as appropriate to ensure that enforcement resources are not expended on low priority cases, such as individuals who came to the United States as children and meet other key guidelines. Individuals who demonstrate that they meet the guidelines below may request consideration of deferred action for childhood arrivals (DACA) for a period of 2 years, subject to renewal for a period of 2 years, and may be eligible for employment authorization.

6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Individuals can call U.S. Citizenship and Immigration Services (USCIS) at 1-800-375-5283 with questions or to request more information on DACA. Those with pending requests can also use a number of online selfhelp tools which include the ability to check case status and processing times, change your address, and send an inquiry about a case pending longer than posted processing times or non-delivery of a card or document.

You may request consideration of DACA if you:
1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012, meaning that:
– You never had a lawful immigration status on or before June 15, 2012, or
– Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012.

What is Deferred Action?
Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect. 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. However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence.
Under existing regulations, an individual whose case has been deferred is eligible to receive employment authorization for the period of deferred action, provided he or she can demonstrate “an economic necessity for employment.” DHS can terminate or renew deferred action at any time, at the agency’s discretion.

10 Deferred Action for Childhood Arrivals

111

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 12 of 35

What is DACA?
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of 2 years, subject to renewal, and would then be eligible for work authorization.
Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the DACA guidelines.
Is there any difference between “deferred action” and DACA under this process?
DACA is one form of deferred action. The relief an individual receives under DACA is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.

Apart from the immigration laws, “lawful presence,” “lawful status,” and similar terms are used in various other Federal and State laws. For information on how those laws affect individuals who receive a favorable exercise of prosecutorial discretion under DACA, please contact the appropriate Federal, State, or local authorities.
Can I renew my period of deferred action and employment authorization under DACA?
YES. You may request consideration for a renewal of your DACA. Your request for a renewal will be considered on a case-by-case basis. If USCIS renews its exercise of discretion under DACA for your case, you will receive deferred action for another 2 years, and if you demonstrate an economic necessity for employment, you may receive employment authorization throughout that period.
DACA PROCESS

If my removal is deferred under the consideration of DACA, am I eligible for employment authorization?
YES. Under existing regulations, if your case is deferred, you may obtain employment authorization from USCIS provided you can demonstrate an economic necessity for employment.
If my case is deferred, am I in lawful status for the period of deferral?
NO. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status.
The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. However, although deferred action does not confer a lawful immigration status, your period of stay is authorized by the Department of Homeland Security while your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time. Individuals granted deferred action are not precluded by Federal law from establishing domicile in the United States.

How do I request consideration of DACA?
To request consideration of DACA (either as an initial request or to request a renewal), you must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals, to USCIS. Please visit www.uscis. gov/i-821d before you begin the process to make sure you are using the most current version of the form available. This form must be completed, properly signed, and accompanied by a Form I-765, Application for Employment Authorization, and a Form I-765WS, Worksheet, establishing your economic need for employment. If you fail to submit a completed Form I-765 (along with the accompanying filing fees for that form, totaling $465), USCIS will not consider your request for deferred action. Please read the form instructions to ensure that you answer the appropriate questions (determined by whether you are submitting an initial or renewal request) and that you submit all the required documentation to support your initial request.
You must file your request for consideration of DACA at the USCIS Lockbox. You can find the mailing address and instructions at www.uscis.gov/i-821d. As of June 5, 2014, requestors must use the new version of the

(DACA) Too1l1k2it

11

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 13 of 35

form. After your Form I-821D, Form I-765, and Form I-765 Worksheet have been received, USCIS will review them for completeness, including submission of the required fee, initial evidence and supporting documents (for initial filings).
If it is determined that the request is complete, USCIS will send you a receipt notice. USCIS will then send you an appointment notice to visit an Application Support Center (ASC) for biometric services, if an appointment is required. Please make sure you read and follow the directions in the notice. Failure to attend your biometrics appointment may delay processing of your request for consideration of deferred action, or may result in a denial of your request. You may also choose to receive an email and/or text message notifying you that your form has been accepted by completing a Form G-1145, E-Notification of Application/Petition Acceptance.
Each request for consideration of DACA will be reviewed on an individual, case-by-case basis. USCIS may request more information or evidence from you, or request that you appear at a USCIS office. USCIS will notify you of its determination in writing.
Note: All individuals who believe they meet the guidelines, including those in removal proceedings, with a final removal order, or with a voluntary departure order (and not in immigration detention), may affirmatively request consideration of DACA from USCIS through this process. Individuals who are currently in immigration detention and believe they meet the guidelines may not request consideration of deferred action from USCIS but may identify themselves to their deportation officer or Jail Liaison. You may also contact the ICE Field Office Director. For more information visit ICE’s Web site at www.ice.gov/daca.
Can I obtain a fee waiver or fee exemption for this process?
There are no fee waivers available for employment authorization applications connected to DACA. There are very limited fee exemptions available. Requests for fee exemptions must be filed and favorably adjudicated before an individual files his or her request for consideration of DACA without a fee. In order to be considered for a fee exemption, you must submit a letter and supporting documentation to USCIS demonstrating that you meet one of the following conditions:

level, and are in foster care or otherwise lacking any parental or other familial support; or
• You are under 18 years of age and homeless; or
• You cannot care for yourself because you suffer from a serious, chronic disability and your income is less than 150 percent of the U.S. poverty level; or
• You have, at the time of the request, accumulated $10,000 or more in debt in the past 12 months as a result of unreimbursed medical expenses for yourself or an immediate family member, and your income is less than 150 percent of the U.S. poverty level.
You can find additional information on our Fee Exemption Guidance Web page. Your request must be submitted and decided before you submit a request for consideration of DACA without a fee. In order to be considered for a fee exemption, you must provide documentary evidence to demonstrate that you meet any of the above conditions at the time that you make the request. For evidence, USCIS will:
• Accept affidavits from community-based or religious organizations to establish a requestor’s homelessness or lack of parental or other familial financial support;
• Accept copies of tax returns, bank Statements, pay stubs, or other reliable evidence of income level. Evidence can also include an affidavit from the applicant or a responsible third party attesting that the applicant does not file tax returns, has no bank accounts, and/or has no income to prove income level;
• Accept copies of medical records, insurance records, bank Statements, or other reliable evidence of unreimbursed medical expenses of at least $10,000;
• Address factual questions through Requests for Evidence (RFEs).

• You are under 18 years of age, have an income that is less than 150 percent of the U.S. poverty

12 Deferred Action for Childhood Arrivals

113

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 14 of 35

If individuals meet the guidelines for consideration of DACA and are encountered by U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE), will they be placed into removal proceedings?
DACA is intended, in part, to allow CBP and ICE to focus on priority cases. Under the direction of the Secretary of Homeland Security, if an individual meets the guidelines for DACA, CBP or ICE should exercise their discretion on a case-by-case basis to prevent qualifying individuals from being apprehended, placed into removal proceedings, or removed. If individuals believe that, in light of this policy, they should not have been apprehended or placed into removal proceedings, contact the Law Enforcement Support Center’s hotline at (855) 448-6903 (staffed 24 hours a day, 7 days a week).
Does this process apply to me if I am currently in removal proceedings, have a final removal order, or have a voluntary departure order?
This process is open to any individual who can demonstrate he or she meets the guidelines for consideration, including those who have never been in removal proceedings as well as those in removal proceedings, with a final order, or with a voluntary departure order (as long as they are not in immigration detention).
If I am not in removal proceedings but believe I meet the guidelines for consideration of DACA, should I seek to place myself into removal proceedings through encounters with CBP or ICE?
NO. If you are not in removal proceedings but believe that you meet the guidelines, you should submit your DACA request to USCIS under the process outlined below.
Can I request consideration of DACA from USCIS if I am in immigration detention under the custody of ICE?

If I am about to be removed by ICE and believe that I meet the guidelines for consideration of DACA, what steps should I take to seek review of my case before removal?
If you believe you can demonstrate that you meet the guidelines and are about to be removed, you should immediately contact the Law Enforcement Support Center’s hotline at (855) 448-6903 (staffed 24 hours a day, 7 days a week).
What should I do if I meet the guidelines of this process and have been issued an ICE detainer following an arrest by a State or local law enforcement officer?
If you meet the guidelines and have been served a detainer, you should immediately contact the Law Enforcement Support Center’s hotline at (855) 448-6903 (staffed 24 hours a day, 7 days a week).
If I accepted an offer of administrative closure under the case-by-case review process or my case was terminated as part of the case-by-case review process, can I be considered for deferred action under this process?
YES. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA even if you have accepted an offer of administrative closure or termination under the case-by-case review process.
If I declined an offer of administrative closure under the case-by-case review process, can I be considered for deferred action under this process?
YES. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA even if you declined an offer of administrative closure under the case-by-case review process.

NO. If you are currently in immigration detention, you may not request consideration of DACA from USCIS. If you think you may meet the guidelines of this process, you should identify yourself to your deportation officer or Jail Liaison. You may also contact the ICE Field Office Director. For more information, visit ICE’s Web site at www.ice.gov/daca.

If my case was reviewed as part of the case-bycase review process but I was not offered administrative closure, can I be considered for deferred action under this process?
YES. If you can demonstrate that you meet the guidelines, you will be able to request consideration of DACA

(DACA) Too1l1k4it

13

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 15 of 35

even if you were not offered administrative closure following review of your case as part of the case-bycase review process.
Can I request consideration of DACA under this process if I am currently in a nonimmigrant status (e.g., F-1, E-2, H-4) or have Temporary Protected Status (TPS)?
NO. You can only request consideration of DACA under this process if you currently have no immigration status and were not in any lawful status on June 15, 2012.
Will the information I share in my request for consideration of DACA be used for immigration enforcement purposes?
Information provided in this request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless the requestor meets the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance (www.uscis.gov/NTA). Individuals whose cases are deferred pursuant to DACA will not be referred to ICE. The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense. The above information sharing policy covers family members and guardians, in addition to the requestor. This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.
If my case is referred to ICE for immigration enforcement purposes or if I receive an NTA, will information related to my family members and guardians also be referred to ICE for immigration enforcement purposes?
If your case is referred to ICE for purposes of immigration enforcement or you receive an NTA, information

related to your family members or guardians that is contained in your request will not be referred to ICE for purposes of immigration enforcement against family members or guardians. However, that information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including for assistance in the consideration of DACA, to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a criminal offense.
This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
Will USCIS verify documents or Statements that I provide in support of a request for DACA?
USCIS has the authority to verify documents, facts, and Statements that are provided in support of requests for DACA. USCIS may contact education institutions, other government agencies, employers, or other entities in order to verify information.
BACKGROUND CHECKS
Will USCIS conduct a background check when reviewing my request for consideration of DACA?
YES. You must undergo biographic and biometric background checks before USCIS will consider your DACA request. What do background checks involve?
Background checks involve checking biographic and biometric information provided by the individuals against a variety of databases maintained by DHS and other Federal Government agencies.
What steps will USCIS and ICE take if I engage in fraud through the new process?
If you knowingly make a misrepresentation or knowingly fail to disclose facts, in an effort to obtain DACA or work authorization through this process, you will

14 Deferred Action for Childhood Arrivals

115

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 16 of 35

be treated as an immigration enforcement priority to the fullest extent permitted by law and be subject to criminal prosecution and/or removal from the United States.
AFTER USCIS MAKES A DECISION
Can I appeal USCIS’ determination?

submitted at the time of filing shows that you indeed were in an unlawful immigration status on that date;
• Denied the request on the grounds that you were not physically present in the United States on June 15, 2012, and up through the date of filing, but the evidence submitted at the time of filing shows that you were, in fact, present;

NO. You cannot file a motion to reopen or reconsider, and cannot appeal the decision if USCIS denies your request for consideration of DACA.
You may request a review of your I-821D denial by contacting USCIS’ Call Centers at (800) 375-5283 to have a Service Request created if you believe that you actually did meet all of the DACA guidelines and you believe that your request was denied due to one of the following errors:
• Denied the request based on abandonment, when you actually responded to an RFE or NOID within the prescribed time;
• Mailed the RFE or NOID to the wrong address although you had submitted a Form AR-11, Change of Address, or changed your address online at www.uscis.gov before USCIS issued the RFE or NOID;
• Denied the request on the grounds that you did not come to the United States prior to your 16th birthday, but the evidence submitted at the time of filing shows that you did arrive before reaching that age;
• Denied the request on the grounds that you were under age 15 at the time of filing but not in removal proceedings, while the evidence submitted at the time of filing show that you indeed were in removal proceedings when the request was filed;
• Denied the request on the grounds that you were 31 or older as of June 15, 2012, but the evidence submitted at the time of filing shows that you were not yet 31 years old as of that date;

• Denied the request due to your failure to appear at a USCIS ASC to have your biometrics collected, when you in fact either did appear at a USCIS ASC to have this done or requested prior to the scheduled date of your biometrics appointment to have the appointment rescheduled; or
• Denied the request because you did not pay the filing fees for Form I-765, Application for Employment Authorization, when you actually did pay these fees.
If you believe your request was denied due to any of these administrative errors, you may contact our National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TDD for the hearing impaired). Customer service officers are available Monday – Friday, 8 a.m. – 6 p.m, in each U.S. time zone.
If USCIS does not exercise deferred action in my case, will I be placed in removal proceedings?
If you have submitted a request for consideration of DACA and USCIS decides not to defer action in your case, USCIS will apply its policy guidance governing the referral of cases to ICE and the issuance of a Notice to Appear (NTA). If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, your case will not be referred to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances. For more detailed information on the applicable NTA policy, visit www.uscis.gov/NTA. If after a review of the totality of circumstances USCIS determines to defer action in your case, USCIS will likewise exercise its discretion and will not issue you an NTA.

• Denied the request on the grounds that you had lawful status on June 15, 2012, but the evidence

(DACA) Too1l1k6it

15

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 17 of 35

Can my deferred action under the DACA process be terminated before it expires?

How old must I be in order to be considered for deferred action under this process?

YES. DACA is an exercise of prosecutorial discretion and deferred action may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion.
INITIAL REQUESTS FOR DACA
What guidelines must I meet to be considered for deferred action for childhood arrivals (DACA)? Under the Secretary of Homeland Security’s June 15, 2012 memorandum, in order to be considered for DACA, you must submit evidence, including supporting documents, showing that you:
1. Were under the age of 31 as of June 15, 2012;

• If you have never been in removal proceedings, or your proceedings have been terminated before your request for consideration of DACA, you must be at least 15 years of age or older at the time of filing and meet the other guidelines.
• If you are in removal proceedings, have a final removal order, or have a voluntary departure order, and are not in immigration detention, you can request consideration of DACA even if you are under the age of 15 at the time of filing and meet the other guidelines.
• In all instances, you cannot be the age of 31 or older as of June 15, 2012, to be considered for DACA.

2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
These guidelines must be met for consideration of DACA. U.S. Citizenship and Immigration Services (USCIS) retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met.

I first came to the United States before I turned 16 years old and have been continuously residing in the United States since at least June 15, 2007. Before I turned 16 years old, however, I left the United States for some period of time before returning and beginning my current period of continuous residence. May I be considered for deferred action under this process?
YES, but only if you established residence in the United States during the period before you turned 16 years old, as evidenced, for example, by records showing you attended school or worked in the United States during that time, or that you lived in the United States for multiple years during that time. In addition to establishing that you initially resided in the United States before you turned 16 years old, you must also have maintained continuous residence in the United States from June 15, 2007, until the present time to be considered for deferred action under this process.
To prove my continuous residence in the United States since June 15, 2007, must I provide evidence documenting my presence for every day, or every month, of that period?
To meet the continuous residence guideline, you must submit documentation that shows you have been living

16 Deferred Action for Childhood Arrivals

117

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 18 of 35

in the United States from June 15, 2007, up until the time of your request. You should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence.
It is helpful to USCIS if you can submit evidence of your residence during at least each year of the period. USCIS will review the documentation in its totality to determine whether it is more likely than not that you were continuously residing in the United States for the period since June 15, 2007. Gaps in the documentation as to certain periods may raise doubts as to your continued residence if, for example, the gaps are lengthy or the record otherwise indicates that you may have been outside the United States for a period of time that was not brief, casual, or innocent.
If gaps in your documentation raise questions, USCIS may issue a Request for Evidence to allow you to submit additional documentation that supports your claimed continuous residence.
Affidavits may be submitted to explain a gap in the documentation demonstrating that you meet the fiveyear continuous residence requirement. If you submit affidavits related to the continuous residence requirement, you must submit two or more affidavits, sworn to or affirmed by people other than yourself who have direct personal knowledge of the events and circumstances during the period as to which there is a gap in the documentation. Affidavits may only be used to explain gaps in your continuous residence; they cannot be used as evidence that you meet the entire 5-year continuous residence requirement.
Does “currently in school” refer to the date on which the request for consideration of deferred action is filed?
To be considered “currently in school” under the guidelines, you must be enrolled in school on the date you submit a request for consideration of deferred action under this process.

Who is considered to be “currently in school” under the guidelines?
To be considered “currently in school” under the guidelines, you must be enrolled in:
• A public, private, or charter elementary school, junior high or middle school, high school, secondary school, alternative program, or homeschool program meeting State requirements;
• An education, literacy, or career training program (including vocational training) that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; or
• An education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under State law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other State-authorized exam (e.g., HiSet or TASC) in the United States.
These education, literacy, career training programs (including vocational training), or education programs assisting students in obtaining a regular high school diploma or its recognized equivalent under State law, or in passing a GED exam or other State-authorized exam in the United States include but are not limited to programs funded, in whole or in part, by Federal, State, county or municipal grants or administered by nonprofit organizations. Programs funded by other sources may qualify if they are administered by providers of demonstrated effectiveness, such as institutions of higher education, including community colleges and certain community-based organizations.
In assessing whether such programs not funded in whole or in part by Federal, State, county, or municipal grants or administered by nonprofit organizations are of demonstrated effectiveness, USCIS will consider the duration of the program’s existence; the program’s track record in assisting students in obtaining a regular high school diploma or its recognized equivalent, in passing a GED or other State-authorized exam (e.g., HiSet or

(DACA) Too1l1k8it

17

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 19 of 35

TASC), or in placing students in postsecondary education, job training, or employment; and other indicators of the program’s overall quality. For individuals seeking to demonstrate that they are “currently in school” through enrollment in such a program, the burden is on the requestor to show the program’s demonstrated effectiveness.
How do I establish that I am currently in school?
Documentation sufficient for you to demonstrate that you are currently in school may include but is not limited to:
• Evidence that you are enrolled in a public, private, or charter elementary school, junior high or middle school, high school or secondary school; alternative program, or homeschool program meeting State requirements; or
• Evidence that you are enrolled in an education, literacy, or career training program (including vocational training) that:
– Has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement; and
– The program is funded in whole or in part by Federal or State grants or is of demonstrated effectiveness; or evidence that you are enrolled in an education program assisting students in obtaining a high school equivalency diploma or certificate recognized under State law (such as by passing a GED exam or other such Stateauthorized exam (for example, HiSet or TASC), and that the program is funded in whole or in part by Federal, State, county or municipal grants or are administered by nonprofit organizations or, if funded by other sources is of demonstrated effectiveness.
Such evidence of enrollment may include: acceptance letters, school registration cards, letters from a school or program, transcripts, report cards, or progress reports which may show the name of the school or program, date of enrollment, and current educational or grade level, if relevant.

What documentation may be sufficient to demonstrate that I have graduated from high school?
Documentation sufficient for you to demonstrate that you have graduated from high school may include but is not limited to: a high school diploma from a public or private high school or secondary school, certificate of completion, certificate of attendance, or alternate award from a public or private high school or secondary school, or a recognized equivalent of a high school diploma under State law, or a GED certificate or certificate from passing another such State-authorized exam (e.g., HiSet or TASC) in the United States.
What documentation may be sufficient to demonstrate that I have obtained a GED certificate or certificate from passing another such State-authorized exam (e.g., HiSet or TASC)?
Documentation may include but is not limited to, evidence that you have passed a GED exam or other State-authorized exam (e.g., HiSet or TASC), and, as a result, have received the recognized equivalent of a regular high school diploma under State law.
If I am enrolled in a literacy or career training program, can I meet the guidelines?
YES, in certain circumstances. You may meet the guidelines if you are enrolled in an education, literacy, or career training program that has a purpose of improving literacy, mathematics, or English or is designed to lead to placement in postsecondary education, job training, or employment and where you are working toward such placement. Such programs include but are not limited to programs funded, in whole or in part by Federal, State, county or municipal grants, or are administered by nonprofit organizations, or, if funded by other sources, programs of demonstrated effectiveness.
If I am enrolled in an English as a Second Language (ESL) program, can I meet the guidelines?
YES, in certain circumstances. Enrollment in an ESL program may be used to meet the guidelines if the ESL program is funded in whole or in part by Federal, State, county or municipal grants, or administered by

18 Deferred Action for Childhood Arrivals

119

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 20 of 35

nonprofit organizations, or, if funded by other sources, is a program of demonstrated effectiveness. You must submit direct documentary evidence that the program is funded in whole or part by Federal, State, county, or municipal grants, administered by a nonprofit organization, or of demonstrated effectiveness.
Will USCIS consider evidence other than that listed in Chart #1 to show that I have met the education guidelines?
NO. Evidence not listed in Chart #1 on the following page will not be accepted to establish that you are currently in school, have graduated or obtained a certificate of completion from high school, or have obtained a GED or passed another State-authorized exam (e.g., HiSet or TASC). You must submit any of the documentary evidence listed in Chart #1 to show that you meet the education guidelines.

your continued residence in the United States for a portion of the required period and the circumstantial evidence is used only to fill in gaps in the length of continuous residence demonstrated by the direct evidence; and
• Any travel outside the United States during the period of required continuous presence was brief, casual, and innocent.
However, USCIS will not accept evidence other than the documents listed in Chart #1 as proof of any of the following guidelines to demonstrate that you:
• Were under the age of 31 on June 15, 2012; and
• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.

Will USCIS consider evidence other than that listed in Chart #1 to show that I have met certain initial guidelines?
Evidence other than those documents listed in Chart #1 may be used to establish the following guidelines and factual showings if available documentary evidence is insufficient or lacking and shows that:
• You were physically present in the United States on June 15, 2012;
• You came to the United States before reaching your 16th birthday;

For example, even if you do not have documentary proof of your presence in the United States on June 15, 2012, you may still be able to satisfy the guidelines. You may do so by submitting credible documentary evidence that you were present in the United States shortly before and shortly after June 15, 2012, which, under the facts presented, may give rise to an inference of your presence on June 15, 2012 as well. However, evidence other than that listed in Chart #1 will not be accepted to establish that you have graduated high school. You must submit the designated documentary evidence to satisfy that you meet this guideline.

• You satisfy the continuous residence requirement, as long as you present direct evidence of

CHART #1: on the next page, provides examples of documentation you may submit to demonstrate you meet the initial guidelines for consideration of deferred action under this process. Please see the instructions of Form I-821D, Consideration of Deferred Action for Childhood Arrivals, for additional details of acceptable documentation.

(DACA) Too1l2k0it

19

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 21 of 35 CHART #1: EXAMPLES OF DOCUMENTS TO SUBMIT TO DEMONSTRATE YOU MEET THE GUIDELINES

Proof of identity

• Passport or national identity document from your country of origin • Birth certificate with photo identification • School or military ID with photo • Any U.S. Government immigration or other document bearing your name and photo

Proof you came to U.S. before your 16th birthday

• Passport with admission stamp • Form I-94/I-95/I-94W • School records from the U.S. schools you have attended • Any Immigration and Naturalization Service or DHS document stating your date of entry
(Form I-862, Notice to Appear) • Travel records • Hospital or medical records • Rent receipts or utility bills • Employment records (pay stubs, W-2 Forms, etc.) • Official records from a religious entity confirming participation in a religious ceremony • Copies of money order receipts for money sent in or out of the country • Birth certificates of children born in the U.S. • Dated bank transactions • Automobile license receipts or registration • Deeds, mortgages, rental agreement contracts • Tax receipts, insurance policies

Proof of immigration status

• Form I-94/I-95/I-94W with authorized stay expiration date • Final order of exclusion, deportation, or removal issued as of June 15, 2012 • A charging document placing you into removal proceedings

Proof of presence in U.S. on June 15, 2012

• Rent receipts or utility bills • Employment records (pay stubs, W-2 Forms, etc.) • School records (letters, report cards, etc.) • Military records (Form DD-214 or NGB Form 22)

Proof you continuously resided in U.S. since June 15, 2007

• Official records from a religious entity confirming participation in a religious ceremony • Copies of money order receipts for money sent in or out of the country • Passport entries • Birth certificates of children born in the United States • Dated bank transactions • Automobile license receipts or registration • Deeds, mortgages, rental agreement contracts • Tax receipts, insurance policies

Proof of your education status • School records (transcripts, report cards, etc.) from the school that you are currently

at the time of requesting		

attending in the United States showing the name(s) of the school(s) and periods of school

consideration of DACA		

attendance and the current of requesting consideration of DACA educational or grade level

• U.S. high school diploma, certificate of completion, or other alternate award

• High school equivalency diploma or certificate recognized under State law

• Evidence that you passed a State-authorized exam, including the GED or other State-

		 authorized exam (for example, HiSet or TASC) in the United States

Proof you are an honorably discharged veteran of the   U.S. Armed Forces or the U.S. Coast Guard

• Form DD-214, Certificate of Release or Discharge from Active Duty • NGB Form 22, National Guard Report of Separation and Record of Service • Military personnel records • Military health records

20 Deferred Action for Childhood Arrivals

121

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 22 of 35

May I file affidavits as proof that I meet the initial guidelines for consideration of DACA?
Affidavits generally will not be sufficient on their own to demonstrate that you meet the guidelines for USCIS to consider you for DACA. However, affidavits may be used to support meeting the following guidelines only if the documentary evidence available to you is insufficient or lacking:
• Demonstrating that you meet the 5-year continuous residence requirement; and
• Establishing that departures during the required period of continuous residence were brief, casual, and innocent.
If you submit affidavits related to the above criteria, you must submit two or more affidavits, sworn to or affirmed by people other than yourself, who have direct personal knowledge of the events and circumstances. Should USCIS determine that the affidavits are insufficient to overcome the unavailability or the lack of documentary evidence with respect to either of these guidelines, it will issue a Request for Evidence indicating that further evidence must be submitted to demonstrate that you meet these guidelines.
USCIS will not accept affidavits as proof of satisfying the following guidelines:
• You are currently in school, have graduated or obtained a certificate of completion or other alternate award from high school, have obtained a high school equivalency diploma or certificate (such as by passing the GED exam or other Stateauthorized exam [for example, HiSet or TASC]), or are an honorably discharged veteran from the Coast Guard or Armed Forces of the United States;
• You were physically present in the United States on June 15, 2012;
• You came to the United States before reaching your 16th birthday;
• You were under the age of 31 on June 15, 2012; and

If the only evidence you submit to demonstrate you meet any of the above guidelines is an affidavit, USCIS will issue a Request for Evidence indicating that you have not demonstrated that you meet these guidelines and that you must do so in order to demonstrate that you meet that guideline.
Will I be considered to be in unlawful status if I had an application for asylum or cancellation of removal pending before either USCIS or the Executive Office for Immigration Review (EOIR) on June 15, 2012?
YES. If you had an application for asylum or cancellation of removal, or similar relief, pending before either USCIS or EOIR as of June 15, 2012, but had no lawful status, you may request consideration of DACA.
I was admitted for “duration of status” or for a period of time that extended past June 14, 2012, but violated my immigration status (e.g., by engaging in unauthorized employment, failing to report to my employer, or failing to pursue a full course of study) before June 15, 2012. May I be considered for deferred action under this process?
NO, unless the Executive Office for Immigration Review terminated your status by issuing a final order of removal against you before June 15, 2012.
I was admitted for “duration of status” or for a period of time that extended past June 14, 2012, but “aged out” of my dependent nonimmigrant status as of June 15, 2012. May I be considered for deferred action under this process?
YES. For purposes of satisfying the “had no lawful status on June 15, 2012,” guideline alone, if you were admitted for “duration of status” or for a period of time that extended past June 14, 2012, but “aged out” of your dependent nonimmigrant status on or before June 15, 2012 (meaning you turned 21 years old on or before June 15, 2012), you may be considered for deferred action under this process.

• Your criminal history, if applicable.

(DACA) Too1l2k2it

21

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 23 of 35

I was admitted for “duration of status” but my status in SEVIS is listed as terminated on or before June 15, 2012. May I be considered for deferred action under this process?
YES. For the purposes of satisfying the “had no lawful status on June 15, 2012,” guideline alone, if your status as of June 15, 2012, is listed as “terminated” in SEVIS, you may be considered for deferred action under this process.
I am a Canadian citizen who was inspected by CBP but was not issued an I-94 at the time of admission. May I be considered for deferred action under this process?
In general, a Canadian citizen who was admitted as a visitor for business or pleasure and not issued an I-94, Arrival/Departure Record, (also known as a “non-controlled” Canadian nonimmigrant) is lawfully admitted for a period of 6 months. For that reason, unless there is evidence, including verifiable evidence provided by the individual, that he or she was specifically advised that his or her admission would be for a different length of time, the Department of Homeland Security (DHS) will consider, for DACA purposes only, that the alien was lawfully admitted for a period of 6 months. Therefore, if DHS is able to verify from its records that your last non-controlled entry occurred on or before Dec. 14, 2011, DHS will consider your nonimmigrant visitor status to have expired as of June 15, 2012, and you may be considered for deferred action under this process.
I used my Border Crossing Card (BCC) to obtain admission to the United States and was not issued an I-94 at the time of admission. May I be considered for deferred action under this process?
Because the limitations on entry for a BCC holder vary based on location of admission and travel, DHS will assume that the BCC holder who was not provided an I-94 was admitted for the longest period legally possible—30 days—unless the individual can demonstrate, through verifiable evidence, that he or she was specifically advised that his or her admission would be

for a different length of time. Accordingly, if DHS is able to verify from its records that your last admission was using a BCC, you were not issued an I-94 at the time of admission, and it occurred on or before May 14, 2012, DHS will consider your nonimmigrant visitor status to have expired as of June 15, 2012, and you may be considered for deferred action under this process.
Do I accrue unlawful presence if I have a pending initial request for consideration of DACA?
You will continue to accrue unlawful presence while the request for consideration of DACA is pending unless you are under 18 years of age at the time of the request. If you are under 18 years of age at the time you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 while your request is pending with USCIS. If action on your case is deferred, you will not accrue unlawful presence during the period of deferred action. However, having action deferred on your case will not excuse previously accrued unlawful presence.
RENEWAL OF DACA
When should I file my renewal request with U.S. Citizenship and Immigration Services (USCIS)?
USCIS encourages you to submit your request for renewal approximately 120 days (or 4 months) before your current period of deferred action under the Deferred Action for Childhood Arrivals (DACA) process expires. If you have filed approximately 120 days before your deferred action and Employment Authorization Document (EAD) expire and USCIS is unexpectedly delayed in processing your renewal request, USCIS may provide deferred action and employment authorization for a short period of time until your renewal is adjudicated. However, if you file your renewal request more than 150 days prior to the expiration of your current period of deferred action, USCIS may reject your submission and return it to you with instructions to resubmit your request closer to the expiration date.

22 Deferred Action for Childhood Arrivals

123

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 24 of 35

How will USCIS evaluate my request for renewal of Do I need to provide additional documents when I

DACA?

request renewal of deferred action under DACA?

You may be considered for renewal of DACA if you met the guidelines for consideration of Initial DACA (see above) AND you:
1. Did not depart the United States on or after Aug. 15, 2012, without advance parole;
2. Have continuously resided in the United States since you submitted your most recent request for DACA that was approved up to the present time; and
3. Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

NO, unless you have new documents pertaining to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request. USCIS, however, reserves the authority to request at its discretion additional documents, information, or Statements relating to a DACA renewal request determination.
CAUTION: If you knowingly and willfully provide materially false information on Form I-821D, you will be committing a Federal felony punishable by a fine, or imprisonment up to 5 years, or both, under 18 U.S.C. Section 1001. In addition, individuals may be placed into removal proceedings, face severe penalties provided by law, and be subject to criminal prosecution.
TRAVEL

These guidelines must be met for consideration of DACA renewal. USCIS retains the ultimate discretion to determine whether deferred action is appropriate in any given case even if the guidelines are met.
Do I accrue unlawful presence if I am seeking renewal and my previous period of DACA expires before I receive a renewal of deferred action under DACA? Similarly, what would happen to my work authorization?
YES, if your previous period of DACA expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence for any time between the periods of deferred action unless you are under 18 years of age at the time you submit your renewal request.
Similarly, if your previous period of DACA expires before you receive a renewal of deferred action under DACA, you will not be authorized to work in the United States regardless of your age at time of filing until and unless you receive a new employment authorization document from USCIS.
However, if you have filed your renewal request with USCIS approximately 120 days before your deferred action and EAD expire and USCIS is unexpectedly delayed in processing your renewal request, USCIS may provide deferred action and employment authorization for a short period of time.

May I travel outside of the United States before I submit an initial Deferred Action for Childhood Arrivals (DACA) request or while my initial DACA request remains pending with the Department of Homeland Security (DHS)?
Any unauthorized travel outside of the United States on or after Aug. 15, 2012, will interrupt your continuous residence and you will not be considered for deferred action under this process. Any travel outside of the United States that occurred on or after June 15, 2007, but before Aug. 15, 2012, will be assessed by U.S. Citizenship and Immigration Services (USCIS) to determine whether the travel qualifies as brief, casual, and innocent. (See Chart #2 on the following page.)
CAUTION: You should be aware that if you have been ordered deported or removed, and you then leave the United States, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.
If my case is deferred under DACA, will I be able to travel outside of the United States?
Not automatically. If USCIS has decided to defer action in your case and you want to travel outside the United States, you must apply for advance parole by filing a Form I-131, Application for Travel Document and paying the applicable fee ($360). USCIS will determine whether your purpose for international travel is justifiable based on the circumstances you describe in your request. Generally, USCIS will only grant advance parole

(DACA) Too1l2k4it

23

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 25 of 35

Travel Dates

Type of Travel

On or after June 15, 2007, Brief, casual, and innocent

No

but before Aug. 15, 2012

For an extended time

Because of an order of

Yes

exclusion, deportation,

voluntary departure, or removal

To participate in criminal activity

Does It Affect Continuous Residence

On or after Aug. 15, 2012, Any and after you have		 requested deferred action		

In addition, if you have previously been ordered deported and removed and you depart the United States without taking additional steps to address your removal proceedings, your departure will likely result in your being considered deported or removed, with potentially serious future immigration consequences.

if your 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;

If USCIS has deferred action in your case under the DACA process after you have been ordered deported or removed, you may still request advance parole if you meet the guidelines for advance parole described above.

• Educational purposes, such as semester-abroad programs and academic research; or
• Employment purposes such as overseas assignments, interviews, conferences, training, or meetings with clients overseas.
Travel for vacation is not a valid basis for advance parole.
You may not apply for advance parole unless and until USCIS defers action in your case under the consideration of DACA. You cannot apply for advance parole at the same time as you submit your request for consideration of DACA. All advance parole requests will be considered on a case-by-case basis.

CAUTION: However, for those individuals who have been ordered deported or removed, before you actually leave the United States, you should seek to reopen your case before the Executive Office for Immigration Review (EOIR) and obtain administrative closure or termination of your removal proceeding. Even after you have asked EOIR to reopen your case, you should not leave the United States until after EOIR has granted your request. If you depart after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure may result in your being considered deported or removed, with potentially serious future immigration consequences. If you have any questions about this process, you may contact U.S. Immigration and Customs Enforcement (ICE) through the local ICE Office of the Chief Counsel with jurisdiction over your case.
CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

24 Deferred Action for Childhood Arrivals

125

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 26 of 35

Do brief departures from the United States interrupt the continuous residence requirement?
A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. If you were absent from the United States, your absence will be considered brief, casual, and innocent if it was on or after June 15, 2007, and before Aug. 15, 2012, and:
1. The absence was short and reasonably calculated to accomplish the purpose for the absence;
2. The absence was not because of an order of exclusion, deportation, or removal;
3. The absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation, or removal proceedings; and
4. The purpose of the absence and/or your actions while outside the United States were not contrary to law.
Once USCIS has approved your request for DACA, you may file Form I-131, Application for Travel Document, to request advance parole to travel outside of the United States.
CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.
May I file a request for advance parole concurrently with my DACA package?
Concurrent filing of advance parole is not an option at this time. DHS is, however, reviewing its policy on concurrent filing of advance parole with a DACA request. In addition, DHS is also reviewing eligibility criteria for advance parole. If any changes to this policy are made, USCIS will update this FAQ and inform the public accordingly.

CRIMINAL CONVICTIONS
If I have a conviction for a felony offense, a significant misdemeanor offense, or multiple misdemeanors, can I receive an exercise of prosecutorial discretion under this new process?
NO. If you have been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, you will not be considered for Deferred Action for Childhood Arrivals (DACA) except where the Department of Homeland Security (DHS) determines there are exceptional circumstances.
What offenses qualify as a felony?
A felony is a Federal, State, or local criminal offense punishable by imprisonment for a term exceeding 1 year.
What offenses constitute a significant misdemeanor?
For the purposes of this process, a significant misdemeanor is a misdemeanor as defined by Federal law (specifically, one for which the maximum term of imprisonment authorized is 1 year or less but greater than 5 days) and that meets the following criteria:
1. Regardless of the sentence imposed, is an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or
2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
The time in custody does not include any time served beyond the sentence for the criminal offense based on a State or local law enforcement agency honoring a detainer issued by U.S. Immigration and Customs Enforcement (ICE). Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking

(DACA) Too1l2k6it

25

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 27 of 35

into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion. DHS retains the discretion to determine that an individual does not warrant deferred action on the basis of a single criminal offense for which the individual was sentenced to time in custody of 90 days or less.
What offenses constitute a non-significant misdemeanor?
For purposes of this process, a non-significant misdemeanor is any misdemeanor as defined by Federal law (specifically, one for which the maximum term of imprisonment authorized is 1 year or less but greater than 5 days) and that meets the following criteria:
1. Is not an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; and

entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, you warrant an exercise of prosecutorial discretion.
It is important to emphasize that driving under the influence is a significant misdemeanor regardless of the sentence imposed.
What qualifies as a national security or public safety threat?
If the background check or other information uncovered during the review of your request for deferred action indicates that your presence in the United States threatens public safety or national security, you will not be able to receive consideration for an exercise of prosecutorial discretion except where DHS determines there are exceptional circumstances. Indicators that you pose such a threat include, but are not limited to: gang membership, participation in criminal activities, or participation in activities that threaten the United States.

2. Is one for which the individual was sentenced to time in custody of 90 days or less. The time in custody does not include any time served beyond the sentence for the criminal offense based on a State or local law enforcement agency honoring a detainer issued by ICE.
Notwithstanding the above, the decision whether to defer action in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances. Therefore, the absence of the criminal history outlined above, or its presence, is not necessarily determinative, but is a factor to be considered in the unreviewable exercise of discretion.

Will offenses criminalized as felonies or misdemeanors by State immigration laws be considered felonies or misdemeanors for purpose of this process?
NO. Immigration-related offenses characterized as felonies or misdemeanors by State immigration laws will not be treated as disqualifying felonies or misdemeanors for the purpose of considering a request for consideration of deferred action under this process.
Will DHS consider my expunged or juvenile conviction as an offense making me unable to receive an exercise of prosecutorial discretion?

If I have a minor traffic offense, such as driving without a license, will it be considered a nonsignificant misdemeanor that counts towards the “three or more non-significant misdemeanors” making me unable to receive consideration for an exercise of prosecutorial discretion under this new
process?

Expunged convictions and juvenile convictions will not automatically disqualify you. Your request will be assessed on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted. If you were a juvenile, but tried and convicted as an adult, you will be treated as an adult for purposes of the DACA process.

A minor traffic offense will not be considered a misdemeanor for purposes of this process. However, your

26 Deferred Action for Childhood Arrivals

127

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 28 of 35

MISCELLANEOUS
Does this Administration remain committed to comprehensive immigration reform?
YES. The Administration has consistently pressed for passage of comprehensive immigration reform, including the DREAM Act, because the President believes these steps are critical to building a 21st century immigration system that meets our Nation’s economic and security needs.
Is passage of the DREAM Act still necessary in light of the new process?
YES. The Secretary of Homeland Security’s June 15, 2012, memorandum allowing certain people to request consideration for deferred action is one in a series of steps that DHS has taken to focus its enforcement resources on the removal of individuals who pose a danger to national security or a risk to public safety. Deferred Action for Childhood Arrivals (DACA) is an exercise of prosecutorial discretion and does not provide lawful status or a pathway to citizenship. As the President has Stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.
Does deferred action provide me with a path to permanent resident status or citizenship?
NO. Deferred action is a form of prosecutorial discretion that does not confer lawful permanent resident status or a path to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
Can I be considered for deferred action even if I do not meet the guidelines to be considered for DACA?
This process is only for individuals who meet the specific guidelines for DACA. Other individuals may, on a case-by-case basis, request deferred action from U.S. Citizenship and Immigration Services (USCIS) or U.S. Immigration and Customs Enforcement (ICE) in certain circumstances, consistent with longstanding practice.

How will ICE and USCIS handle cases involving individuals who do not satisfy the guidelines of this process but believe they may warrant an exercise of prosecutorial discretion under the June 2011 Prosecutorial Discretion Memoranda?
If USCIS determines that you do not satisfy the guidelines or otherwise determines you do not warrant an exercise of prosecutorial discretion, then it will decline to defer action in your case. If you are currently in removal proceedings, have a final order, or have a voluntary departure order, you may then request ICE consider whether to exercise prosecutorial discretion.
How should I fill out question 9 on Form I-765, Application for Employment Authorization?
When you are filing a Form I-765 as part of a DACA request, question 9 is asking you to list those Social Security numbers that were officially issued to you by the Social Security Administration.
Will there be supervisory review of decisions by USCIS under this process?
YES. USCIS has implemented a successful supervisory review process to ensure a consistent process for considering requests for DACA.
Will USCIS personnel responsible for reviewing requests for DACA receive special training?
YES. USCIS personnel responsible for considering requests for consideration of DACA have received special training.
Must attorneys and accredited representatives who provide pro bono services to deferred action requestors at group assistance events file a Form G-28 with USCIS?
Under 8 C.F.R. §§ 292.3 and 1003.102, practitioners are required to file a Notice of Entry of Appearance as Attorney or Accredited Representative when they engage in practice in immigration matters before DHS, either in person or through the preparation or filing of any brief, application, petition, or other document. Under these rules, a practitioner who consistently violates the requirement to file a Form G-28 may be subject to

(DACA) Too1l2k8it

27

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 29 of 35

disciplinary sanctions; however on Feb. 28, 2011, USCIS issued a Statement indicating that it does not intend to initiate disciplinary proceedings against practitioners (attorneys and accredited representatives) based solely on the failure to submit a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) in relation to pro bono services provided at group assistance events. DHS is in the process of issuing a final rule at which time this matter will be reevaluated.
When must an individual sign a Form I-821D as a preparer?
Anytime someone other than the requestor prepares or helps fill out the Form I-821D, that individual must complete Part 5 of the form.
If I provide my employee with information regarding his or her employment to support a request for consideration of DACA, will that information be used for immigration enforcement purposes against me and/or my company?
You may, as you determine appropriate, provide individuals requesting DACA with documentation which verifies their employment. This information will not be shared with ICE for civil immigration enforcement purposes under section 274A of the Immigration and Nationality Act (relating to unlawful employment) unless there is evidence of egregious violations of criminal statutes or widespread abuses.
Can I request consideration for deferred action under this process if I live in the Commonwealth of the Northern Mariana Islands (CNMI)?
YES, in certain circumstances. The CNMI is part of the United States for immigration purposes and is not excluded from this process. However, because of the specific guidelines for consideration of DACA, individuals who have been residents of the CNMI are in most cases unlikely to qualify for the program. You must, among other things, have come to the United States before your 16th birthday and have resided continuously in the United States since June 15, 2007.

Under the Consolidated Natural Resources Act of 2008, the CNMI became part of the United States for purposes of immigration law only on Nov. 28, 2009. Therefore entry into, or residence in, the CNMI before that date is not entry into, or residence in, the United States for purposes of the DACA process.
USCIS has used parole authority in a variety of situations in the CNMI to address particular humanitarian needs on a case-by-case basis since Nov. 28, 2009. If you live in the CNMI and believe that you meet the guidelines for consideration of deferred action under this process, except that your entry and/or residence to the CNMI took place entirely or in part before Nov. 28, 2009, USCIS is willing to consider your situation on a case-by-case basis for a grant of parole. If this situation applies to you, you should make an appointment through INFOPASS with the USCIS ASC in Saipan to discuss your case with an immigration officer.
Someone told me if I pay them a fee, they can expedite my DACA request. Is this true?
NO. There is no expedited processing for deferred action. Dishonest practitioners may promise to provide you with faster services if you pay them a fee. These people are trying to scam you and take your money. Visit our Avoid Scams page to learn how you can protect yourself from immigration scams.
Make sure you seek information about requests for consideration of DACA from official government sources such as USCIS or the DHS. If you are seeking legal advice, visit our Find Legal Services page to learn how to choose a licensed attorney or accredited representative.
Am I required to register with the Selective Service?
Most male persons residing in the United States, who are ages 18 through 25, are required to register with Selective Service. Please see link for more information. [Selective Service, www.sss.gov].

28 Deferred Action for Childhood Arrivals

129

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 30 of 35
130

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 31 of 35
131

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 32 of 35
132

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 33 of 35

Resources for DACA and immigrant students
www2.ed.gov/about/overview/focus/ immigration-resources.html
This resource page includes Q&As on Federal student aid and education records for DACA students and a financial aid guide.

DACA resource guide
www.justice.gov/atj/daca-resourceguide-atjfeb-27-3013.pdf
This resource guide provides information on the DACA process and links to DACA-related resources.

Migrant Education Program
www2.ed.gov/programs/mep/index.html
The Migrant Education Program supports the development and funding of education and support services for migratory children.

OFFICE OF SPECIAL COUNSEL FOR IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES DACA flyer

DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (EOIR) List of Board of Immigration Appeals (BIA) recognized organizations and accredited representatives

www.justice.gov/crt/about/osc/pdf/ publications/DACA_English2.pdf
The Office of Special Counsel enforces the anti-discrimination provisions of the Immigration and Nationality Act. This flyer provides DACA recipients with information about their right to work in the United States
DEPARTMENT OF LABOR

www.justice.gov/eoir/ra/raroster.htm
BIA accredited representatives working for BIA-recognized organizations are non-attorneys who are authorized to provide immigration legal services.

WAGE AND HOUR DIVISION We Can Help website
www.dol.gov/wecanhelp

List of low cost and free immigration legal service providers
www.justice.gov/eoir/probono/states.htm
EOIR provides a list of free and low-cost immigration attorneys by State as a resource for applicants and petitioners.

This Web site provides useful information for workers to understand their rights in the workplace and how to file a complaint, regardless of their immigration status.
YouthRules! Web site www.youthrules.dol.gov

ACCESS TO JUSTICE

This Web site provides critical information on the jobs and hours a minor is allowed to work.

Overview of Access to Justice resources

www.justice.gov/atj

Access to Justice works with Federal agencies, State, and local governments and State Access to Justice commissions to increase access to counsel and legal assistance and to improve the justice delivery systems that serve people who are unable to afford lawyers.

32 Deferred Action for Childhood Arrivals

133

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 34 of 35
134

Case 1:14-cv-00254 Document 38-6 Filed in TXSD on 12/24/14 Page 35 of 35
135

Case 1:14-cv-00254 Document 38-7 Filed in TXSD on 12/24/14 Page 1 of 6
EXHIBIT 7

Case 1:14-cv-00254 Document 38-7 Filed in TXSD on 12/24/14 Page 2 of 6
136

Case 1:14-cv-00254 Document 38-7 Filed in TXSD on 12/24/14 Page 3 of 6


137

Case 1:14-cv-00254 Document 38-7 Filed in TXSD on 12/24/14 Page 4 of 6 

138

Case 1:14-cv-00254 Document 38-7 Filed in TXSD on 12/24/14 Page 5 of 6


 









 



 



 






139

Case 1:14-cv-00254 Document 38-7 Filed in TXSD on 12/24/14 Page 6 of 6


140

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 1 of 24
EXHIBIT 8

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 2 of 24
141

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 3 of 24

Congressional Research Service

2

college, however, find it difficult to do so. One reason for this is that they are ineligible for federal student financial aid.2 Another reason relates to a provision enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)3 that discourages states and localities from granting unauthorized aliens certain “postsecondary education benefits” (referred to here as the “1996 provision”).4 More broadly, as unauthorized aliens, they are typically unable to work legally and are subject to removal from the United States.5
According to DHS estimates, there were 1.4 million unauthorized alien children under age 18 living in the United States in January 2011. In addition, there were 1.6 million unauthorized individuals aged 18 to 24, and 3.7 million unauthorized individuals aged 25 to 34.6 These data represent totals and include all individuals in the specified age groups regardless of length of presence in the United States, age at time of initial entry into the United States, or educational status. Numerical estimates of potential beneficiaries of the policy set forth in DHS’s June 15, 2012 memorandum are provided below.
Legislation
Multiple bills have been introduced in recent Congresses to provide relief to unauthorized alien students. These bills have often been entitled the Development, Relief, and Education for Alien Minors Act, or the DREAM Act. A common element in these bills is that they would enable certain unauthorized alien students to obtain legal status through an immigration procedure known as cancellation of removal7 and at some point in the process, to obtain legal permanent resident (LPR) status, provided they meet all the applicable requirements. Multiple DREAM Act bills have been introduced in the 112th Congress but none have seen any legislative action.8
Traditional DREAM Act bills
Since the 109th Congress, “standard” DREAM Act bills have included language to repeal the 1996 provision mentioned above and to enable certain unauthorized alien students to adjust status (that is, to obtain LPR status in the United States). These bills have proposed to grant LPR status on a conditional basis to an alien who, among other requirements, could demonstrate that he or she:

2 Higher Education Act (HEA) of 1965 (P.L. 89-329), as amended, November 8, 1965, 20 U.S.C. §1001 et seq. 3 IIRIRA is Division C of P.L. 104-208, September 30, 1996. 4 This provision, section 505, nominally bars states from conferring postsecondary education benefits (e.g., in-state tuition) to unauthorized aliens residing within their jurisdictions if similar benefits are not conferred to out-of-state U.S. citizens. Nevertheless, about a dozen states effectively do grant in-state tuition to resident unauthorized aliens without granting similar benefits to out-of-state citizens, and courts that have considered these provisions have upheld them. 5 For additional information, see CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno. 6 U.S. Department of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011, by Michael Hoefer, Nancy Rytina, and Bryan C. Baker. 7 Cancellation of removal is a discretionary form of relief that an alien can apply for while in removal proceedings before an immigration judge. If cancellation of removal is granted, the alien’s status is adjusted to that of a legal permanent resident. 8 For additional analysis of DREAM Act legislation, see CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation.

142

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 4 of 24

Congressional Research Service

3

• was continuously physically present in the United States for at least five years preceding the date of enactment;
• was age 15 or younger at the time of initial entry;
• had been a person of good moral character since the time of initial entry;
• was at or below a specified age (age has varied by bill) on the date of enactment; and
• had been admitted to an institution of higher education in the United States or had earned a high school diploma or the equivalent in the United States.
The bills also include special requirements concerning inadmissibility,9 and some would disqualify any alien convicted of certain state or federal crimes. After six years in conditional LPR status, an alien could have the condition on his or her status removed and become a full-fledged LPR if he or she meets additional requirements, including completing at least two years in a bachelor’s or higher degree program in the United States or serving in the uniformed services10 for at least two years. Two similar bills with these elements (S. 952, H.R. 1842)—both entitled the DREAM Act of 2011—have been introduced in the 112th Congress.
Other Versions of the DREAM Act
Revised versions of the DREAM Act have also been introduced in Congress in recent years. In the 111th Congress, the House approved one of these DREAM Act measures as part of an unrelated bill, the Removal Clarification Act of 2010 (H.R. 5281).11 Unlike earlier DREAM Act bills, this measure12 did not include a repeal of the 1996 provision and proposed to grant eligible individuals an interim legal status prior to enabling them to adjust to LPR status. Under this measure, an alien meeting an initial set of requirements like those included in traditional DREAM Act bills (enumerated in the previous section) would have been granted conditional nonimmigrant13 status for five years. This status could have been extended for another five years if the alien met additional requirements, including completing at least two years in a bachelor’s or higher degree program in the United States or serving in the Armed Forces for at least two years. The applications to obtain conditional status initially and to extend this status would have been subject to surcharges. At the end of the second conditional period, the conditional nonimmigrant could have applied to adjust to LPR status.

9 The Immigration and Nationality Act (INA) enumerates classes of inadmissible aliens. Under the INA, except as otherwise provided, aliens who are inadmissible under specified grounds, such as health-related grounds or criminal grounds, are ineligible to receive visas from the Department of State or to be admitted to the United States by the Department of Homeland Security. 10 As defined in Section 101(a) of Title 10 of the U.S. Code, uniformed services means the Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard); the commissioned corps of the National Oceanic and Atmospheric Administration; and the commissioned corps of the Public Health Service. 11 The Senate failed, on a 55-41 vote, to invoke cloture on a motion to agree to the House-passed DREAM Act amendment, and H.R. 5281 died at the end of the Congress. 12 The language is the same as that in H.R. 6497 in the 111th Congress. 13 Nonimmigrants are legal temporary residents of the United States.

143

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 5 of 24

Congressional Research Service

4

Two bills in the 112th Congress—the Adjusted Residency for Military Service Act, or ARMS Act (H.R. 3823) and the Studying Towards Adjusted Residency Status Act, or STARS Act (H.R. 5869)—follow the general outline of the House-approved measure described above, but include some different, more stringent requirements. These bills would provide separate pathways for unauthorized students to obtain LPR status through military service (ARMS Act) or higher education (STARS Act). Neither bill would repeal the 1996 provision and, thus, would not eliminate the statutory restriction on state provision of postsecondary educational benefits to unauthorized aliens.
The initial requirements for conditional nonimmigrant status under the ARMS Act are like those in the traditional DREAM Act bills discussed above. The STARS Act includes most of these requirements, as well as others that are not found in other DREAM Act bills introduced in the 112th Congress. Two new STARS Act requirements for initial conditional status are: (1) admission to an accredited four-year college, and (2) submission of the application for relief before age 19 or, in some cases, before age 21.
Under both the ARMS Act and the STARS Act, the conditional nonimmigrant status would be initially valid for five years and could be extended for an additional five years if applicants meet a set of requirements. In the case of the ARMS Act, these requirements would include service in the Armed Forces on active duty for at least two years or service in a reserve component of the Armed Forces in active status for at least four years. In the case of the STARS Act, the requirements for an extension of status would include graduation from an accredited four-year institution of higher education in the United States. After obtaining an extension of status, an alien could apply to adjust to LPR status, as specified in each bill.
DHS Memorandum of June 15, 2012
On June 15, 2012, the Obama Administration announced that certain individuals who were brought to the United States as children and meet other criteria would be considered for relief from removal. Under the memorandum, issued by Secretary of Homeland Security Janet Napolitano, these individuals would be eligible for deferred action14 for two years, subject to renewal, and could apply for employment authorization.15 The eligibility criteria for deferred action under the June 15, 2012 memorandum are:
• under age 16 at time of entry into the United States;
• continuous residence in the United States for at least five years preceding the date of the memorandum;

14 Deferred action is “a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion.” U.S. Department of Homeland Security, “Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities,” http://www.dhs.gov/files/enforcement/deferred-action-process-for-young-people-who-are-lowenforcement-priorities.shtm.
15 U.S. Department of Homeland Security, Memorandum to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, Alejandro Mayorkas, Director, U.S. Citizenship and Immigration Services, John Morton, Director, U.S. Immigration and Customs Enforcement, from Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012, http://www.dhs.gov/xlibrary/assets/s1exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

144

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 6 of 24

Congressional Research Service

5

• in school, graduated from high school or obtained general education development certificate, or honorably discharged from the Armed Forces;
• not convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and not otherwise a threat to national security or public safety; and
• age 30 or below.
These eligibility criteria are similar to those included in DREAM Act bills discussed above. The deferred action process set forth in the June 15, 2012 memorandum, however, would not grant eligible individuals a legal immigration status.16
Based on these eligibility criteria, the Pew Hispanic Center has estimated that the policy set forth in the June 15, 2012 memorandum could benefit up to 1.4 million unauthorized aliens in the United States. This potential beneficiary population total includes 0.7 million individuals under age 18 and 0.7 million individuals aged 18 to 30.17
Antecedents of the Policy
The Attorney General and, more recently, the Secretary of Homeland Security have had prosecutorial discretion in exercising the power to remove foreign nationals. In 1959, a major textbook of immigration law stated, “Congress traditionally has entrusted the enforcement of its deportation policies to executive officers and this arrangement has been approved by the courts.”18 Specific guidance on how prosecutorial discretion was applied in individual cases was elusive in the early years.19 Generally, prosecutorial discretion is the authority that an enforcement agency has in deciding whether to enforce or not enforce the law against someone. In the immigration context, prosecutorial discretion exists across a range of decisions that include: prioritizing certain types of investigations; deciding whom to stop, question and arrest; deciding to detain an alien; issuing a notice to appear (NTA); granting deferred action; agreeing to let the alien depart voluntarily; and executing a removal order. (The legal authority to exercise prosecutorial discretion is discussed separately below.)

16 The DHS memorandum states: “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law.” Ibid., p. 3.
17 Pew Hispanic Center, “Up to 1.4 Million Unauthorized Immigrants Could Benefit from New Deportation Policy,” June 15, 2012, http://www.pewhispanic.org/2012/06/15/up-to-1-4-million-unauthorized-immigrants-could-benefit-from-new-deportationpolicy/.
18 Charles Gordon and Harry N. Rosenfield, Immigration Law and Procedure, Albany, New York: Banks and Company, 1959, p. 406.
19 For example, in 1961, an official with the former Immigration and Naturalization Service (INS) offered his insights on circumstances in which discretionary relief from removal might be provided. The first factor he cited was age: “I have always felt that young people should be treated in our proceedings as are juveniles in the Courts who have violated criminal law.... My personal opinion is that certainly someone under eighteen is entitled to extra consideration.” He added that persons over 60 or 65 years of age should be given special consideration. He also emphasized length of residence in the United States as a factor, noting that “five years is a significant mark in immigration law.” Other factors he raised included good moral character, family ties in the United States, and exceptional and unusual hardship to the alien as well as family members. Aaron I. Maltin, Special Inquiry Officer, “Relief from Deportation,” Interpreter Releases, vol. 38, no. 21 (June 9, 1961), pp. 150-155. He also discussed refugee and asylum cases.

145

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 7 of 24

Congressional Research Service

6

Over the next few decades, an official guidance on discretionary relief from removal began to take shape. A 1985 Congressional Research Service “white paper” on discretionary relief from deportation described the policies of Immigration and Naturalization Service (INS)20 at that time.
Currently, three such discretionary procedures are relatively routinely used by INS to provide relief from deportation. One of the procedures – stay of deportation – is defined under INS regulations; another—deferred departure or deferred action – is described in INS operating instructions; and the third – extended voluntary departure—has not been formally defined and appears to be evolving.
The CRS “white paper” further noted that the executive branch uses these three forms of prosecutorial discretion “to provide relief the Administration feels is appropriate but which would not be available under the statute.”21
In an October 24, 2005, memorandum, William Howard, then-Principal Legal Advisor of DHS’s Immigration and Customs Enforcement (ICE), cited several policy factors relevant to the need to exercise prosecutorial discretion. One factor he identified was institutional change. He wrote:
“Gone are the days when INS district counsels... could simply walk down the hall to an INS district director, immigrant agent, adjudicator, or border patrol officer to obtain the client’s permission to proceed ... Now the NTA-issuing clients might be in different agencies, in different buildings, and in different cities from our own.”
Another issue Howard raised was resources. He pointed out that the Office of Principal Legal Advisor (OPLA) was “handling about 300,000 cases in the immigration courts, 42,000 appeals before the Board of Immigration Appeals (BIA or Board) and 12,000 motions to re-open each year.” He further stated:
“Since 2001, federal immigration court cases have tripled. That year there were 5,435 federal court cases. Four years later, in fiscal year 2004, that number had risen to 14,699 federal court cases. Fiscal year 2005 federal court immigration cases will approximate 15,000.”22
Howard offered examples of the types of cases to consider for prosecutorial discretion, such as someone who had a clearly approvable petition to adjust to legal permanent resident status, someone who was an immediate relative of military personnel, or someone for whom sympathetic humanitarian circumstances “cry for an exercise of prosecutorial discretion.”23
In November 2007, then-DHS Assistant Secretary for ICE Julie L. Myers issued a memorandum in which she clarified that the replacement of the “catch and release” procedure with the “catch and return” policy for apprehended aliens (i.e., a zero-tolerance policy for all aliens apprehended at the border) did not “diminish the responsibility of ICE agents and officers to use discretion in identifying and responding to
20 Most of the immigration-related functions of the former INS were transferred to the U.S. Department of Homeland Security when it was created in 2002 by the Homeland Security Act (P.L. 107-296). Three agencies in DHS have important immigration functions in which prosecutorial discretion may come into play: Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). 21 Sharon Stephan, Extended Voluntary Departure and Other Blanket Forms of Relief from Deportation, Congressional Research Service, 85-599 EPW, February 23, 1985. 22 William J. Howard, Principal Legal Advisor, U.S. Immigration and Customs Enforcement, Prosecutorial Discretion, memorandum to all OPLA Chief Counsel, October 24, 2005. 23 Ibid.

146

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 8 of 24

Congressional Research Service

7

meritorious health-related cases and caregiver issues.”24 Assistant Secretary Myers referenced and attached a November 7, 2000, memorandum entitled “Exercising Prosecutorial Discretion,” which was written by former INS Commissioner Doris Meissner. The 2000 memorandum stated, in part:
“Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations. The INS historically has responded to this limitation by setting priorities in order to achieve a variety of goals. These goals include protecting public safety, promoting the integrity of the legal immigration system, and deterring violations of the immigration law. It is an appropriate exercise of prosecutorial discretion to give priority to investigating, charging, and prosecuting those immigration violations that will have the greatest impact on achieving these goals.”25
Meissner further stated that prosecutorial discretion should not become “an invitation to violate or ignore the law.”26
The Meissner, Howard, and Myers memoranda provide historical context for the March 2011 memorandum on prosecutorial discretion written by ICE Director John Morton.27 Morton published agency guidelines that define a three-tiered priority scheme that applies to all ICE programs and enforcement activities related to civil immigration enforcement.28 Under these guidelines, ICE’s top three civil immigration enforcement priorities are to: (1) apprehend and remove aliens who pose a danger to national security or a risk to public safety, (2) apprehend and remove recent illegal entrants,29 and (3) apprehend aliens who are fugitives or otherwise obstruct immigration controls.30
In a June 17, 2011 memorandum, Morton spells out 18 factors that are among those that should be considered in weighing prosecutorial discretion. The factors include those that might halt removal
24 Julie L. Myers, Assistant Secretary, Immigration and Customs Enforcement, Prosecutorial and Custody Discretion, memorandum, November 7, 2007. CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel. (Hereafter CRS R42057, Interior Immigration Enforcement.) 25 Doris Meissner, Commissioner, Immigration and Naturalization Service, Exercising Prosecutorial Discretion, memorandum to regional directors, district directors, chief patrol agents, and the regional and district counsels, November 7, 2000. 26 Ibid. 27 John Morton, Director, Immigration and Customs Enforcement, Civil Immigration Enforcement Priorities for the Apprehension, Detention, and Removal of Aliens, memorandum, March 2, 2011. 28 ICE’s mission includes the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration; see ICE, “ICE Overview: Mission,” http://www.ice.gov/about/overview/. Laws governing the detention and removal of unauthorized aliens generally fall under ICE’s civil enforcement authority, while laws governing the prosecution of crimes, including immigration-related crimes, fall under ICE’s criminal enforcement authority. Also see Hiroshi Motomura, “The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line,” UCLA Law Review, vol. 58, no. 6 (August 2011), pp. 1819-1858. 29 The memorandum does not define “recent illegal entrants.” DHS regulations permit immigration officers to summarily exclude an alien present in the United States for less than two years unless the alien expresses an intent to apply for asylum or has a fear of persecution or torture; and DHS policy is to pursue expedited removal proceedings against aliens who are determined to be inadmissible because they lack proper documents, are present in the United States without having been admitted or paroled following inspection by an immigration officer at a designated port of entry, are encountered by an immigration officer within 100 miles of the U.S. border, and have not established to the satisfaction of an immigration officer that they have been physically present in the United States for over 14 days. See CRS Report RL33109, Immigration Policy on Expedited Removal of Aliens, by Alison Siskin and Ruth Ellen Wasem. 30 CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel.

147

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 9 of 24

Congressional Research Service

8

proceedings, such as whether the person’s immediate relative is serving in the military, whether the person is a caretaker of a person with physical or mental disabilities, or whether the person has strong ties to the community. The factors Morton lists also include those that might prioritize a removal proceeding, such as whether the person has a criminal history, whether the person poses a national security or public safety risk, whether the person recently arrived in the United States, and how the person entered. At the same time, the memorandum states:
“This list is not exhaustive and no one factor is determinative. ICE officers, agents and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”
The Morton memorandum would halt removal proceedings on those foreign nationals that are not prioritized for removal. The foreign nationals whose removals are halted in keeping with the Morton memorandum might be given deferred action or some other relief from removal. 31
Deferred Action
In 1975, INS issued guidance on a specific form of prosecutorial discretion known as deferred action, which cited “appealing humanitarian factors.” The INS Operating Instructions said that consideration should be given to advanced or tender age, lengthy presence in the United States, physical or mental conditions requiring care or treatment in the United States, and the effect of deportation on the family members in the United States. On the other hand, those INS Operating Instructions made clear that criminal, immoral or subversive conduct or affiliations should also be weighed in denying deferred action.32 Today within DHS, all three of the immigration-related agencies—ICE, U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP)—possess authority to grant deferred action. A foreign national might be considered for deferred action at any stage of the administrative process.33
Because of where the foreign national may be in the process, ICE issuances of deferred action are more likely to be aliens who are detained or in removal proceedings. It is especially important to note, as mentioned above, that not all prosecutorial discretion decisions to halt removal proceedings result in a grant of deferred action to the foreign national. Voluntary departure, for example, might be an alternative outcome of prosecutorial discretion.34

31 John Morton, Director of Immigration and Customs Enforcement, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for Apprehension, Detention and Removal of Aliens, memorandum to field office directors, special agents in charge, and chief counsels, June 17, 2011. 32 Shoba Sivaprasad Wadhia, “The Role of Prosecutorial Discretion in Immigration Law,” Connecticut Public Interest Law Journal, Spring 2010. 33Charles Gordon, Stanley Mailman, Stephen Yale-Loehr, Immigration Law and Procedure. Newark: LexisNexis, vol. 6, §72.03. 34 Voluntary departure typically means that the alien concedes removability and departs the United States on his or her own recognizance, rather than with a final order of removal.
148

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 10 of 24

Congressional Research Service

9

Other Forms of Deferred Departure
In addition to deferred action, which is granted on a case-by-case basis, the Administration may use prosecutorial discretion, under certain conditions, to provide relief from deportation that is applied as blanket relief.35 The statutory authority cited by the agency for these discretionary procedures is generally that portion of the INA that confers on the Attorney General the broad authority for general enforcement and the section of the law covering the authority for voluntary departure.36
The two most common uses of prosecutorial discretion to provide blanket relief from deportation have been deferred departure or deferred enforced departure (DED) and extended voluntary departure (EVD).37 The discretionary procedures of DED and EVD continue to be used to provide relief the Administration feels is appropriate. Foreign nationals who benefit from EVD or DED do not necessarily register for the status with USCIS, but they trigger the protection when they are identified for deportation. If, however, they wish to be employed in the United States, they must apply for a work authorization from USCIS.
The executive branch has provided blanket or categorical deferrals of deportation numerous times over the years. CRS has compiled a list of these administrative actions since 1976 in Appendix A.38 As the table indicates, most of these discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters. In many of these instances, Congress was considering legislative remedies for the affected groups, but had not yet enacted immigration relief for them. The immigration status of those who benefited from these deferrals of deportation often—but not always— was resolved by legislation adjusting their status (Appendix A).
Two Illustrative Examples
Several of the categorical deferrals of deportation that were not country-specific bear some similarities to the June 15, 2012 policy directive. Two examples listed in Appendix A are summarized below: the “Silva letterholders” class and the “family fairness” relatives. Both of these groups receiving discretionary relief from deportation were unique in their circumstances. While each group included many foreign nationals who would otherwise be eligible for LPR visas, they were supposed to wait in numerically-limited visa categories. These wait times totaled decades for many of them. Congress had considered but not enacted legislation addressing their situations. Ultimately, their cases were resolved by provisions folded into comprehensive immigration legislation.39
35 In addition to relief offered through prosecutorial discretion, the INA provides for Temporary Protected Status (TPS). TPS may be granted under the following conditions: there is ongoing armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot handle the return of nationals due to environmental disaster; or there are extraordinary and temporary conditions in a foreign state that prevent aliens from returning, provided that granting TPS is consistent with U.S. national interests. CRS Report RS20844, Temporary Protected Status: Current Immigration Policy and Issues, by Ruth Ellen Wasem and Karma Ester. 36 §240 of INA, 8 U.S.C. §1229a; §240B, 8 U.S.C. §1229c. 37 As TPS is spelled out in statute, it is not considered a use of prosecutorial discretion, but it does provide blanket relief from removal temporarily. 38 Appendix A only includes those administrative actions that could be confirmed by copies of official government guidance or multiple published accounts. For example, reports of deferred action after Hurricane Katrina or the September 11, 2001, terrorist attacks could not be verified, though it seems likely that the Administration did provide some type of temporary reprieve. 39 These policies and legal provisions pre-date the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (referenced above), which added substantial new penalties and bars for illegal presence in the United States.

149

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 11 of 24

Congressional Research Service

10

The “Silva letterholders” were foreign nationals from throughout the Western Hemisphere who were in the United States without legal authorization. In 1976, the Attorney General opined that the State Department had been incorrectly charging the visas for Cuban refugees against the Western Hemisphere numerical limits from 1966 to 1976. A class action case named for Mr. Refugio Silva was filed to recapture the 145,000 LPR visas given to Cubans for foreign nationals with approved petitions from other Western Hemisphere nations. Apparently many of the aliens involved in the case were already in the country, out-of-status, even though they had LPR petitions pending. In other words, they had jumped the line. In 1977, the Attorney General temporarily suspended the expulsion while the class action case moved forward. Class members were allowed to apply for work authorization. Meanwhile, Congress passed amendments to the INA in 1978 that put the Western Hemisphere nations under the per-country cap, which further complicated their situation, by making visa availability more difficult for some but not all of the Western Hemisphere countries. The courts ruled for the Silva class, but the 145,000 recaptured visas were inadequate to cover the estimated 250,000 people who had received letters staying their deportation and permitting them to work. When the dependents of the Silva letterholders were included, the estimated number grew to almost half a million. Most of those in the Silva class who did not get one of the recaptured visas were ultimately eligible to legalize through P.L. 99-603, the Immigration Reform and Control Act (IRCA) of 1986.
Another example are the unauthorized spouses and children of aliens who legalized through IRCA. As Congress was debating IRCA, it weighed and opted not to provide a legalization pathway for the immediate relatives of aliens who met the requirements of IRCA unless they too met those requirements. As IRCA’s legalization programs were being implemented, the cases of unauthorized spouses and children who were not eligible to adjust with their family came to the fore. In 1987, Attorney General Edward Meese authorized the INS district directors to defer deportation proceedings where “compelling or humanitarian factors existed.” Legislation addressing this population was introduced throughout the 1980s, but not enacted. In 1990, INS Commissioner Gene McNary issued a new “Family Fairness” policy for family members of aliens legalized through IRCA, dropping the where “compelling or humanitarian factors existed” requirement. At the time, McNary stated that an estimated 1.5 million unauthorized aliens would benefit from the policy. The new policy also allowed the unauthorized spouses and children to apply for employment authorizations. Ultimately, the Immigration Act of 1990 (P.L. 101-649) provided relief from deportation and employment authorization to them so they could remain in the United States until a family-based immigration visa became available. P.L. 101-649 also provided additional visas for the family-based LPR preference category in which they were waiting.
Legal Authority Underlying the June 15, 2012 Memorandum
The Secretary of Homeland Security would appear to have the authority to grant both deferred action and work authorization, as contemplated by the June 15 memorandum, although the basis for such authority is different in the case of deferred action than in the case of work authorization. The determination as to whether to grant deferred action has traditionally been recognized as within the prosecutorial discretion of immigration officers40 and, thus, has been considered an inherent power of the executive branch, to which

40 See, e.g., Matter of Yauri, 25 I. & N. Dec. 103 (2009) (characterizing a grant of deferred action as within the prosecutorial discretion of immigration officers); Doris Meissner, Commissioner, Immigration and Naturalization Service, Exercising Prosecutorial Discretion, Nov. 7, 2000, at 2 (listing “granting deferred action or staying a final order of removal” among the determinations in which immigration officers may exercise prosecutorial discretion).

150

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 12 of 24

Congressional Research Service

11

the Constitution entrusts decisions about whether to enforce particular cases.41 While it could perhaps be argued that decisions to refrain from fully enforcing a law might, in some instances, run afoul of particular statutes that set substantive priorities for or otherwise circumscribe an agency’s power to discriminate among the cases it will pursue, or run afoul of the President’s constitutional obligation to “take care” that the law is faithfully executed, such claims may not lend themselves to judicial resolution.42 In contrast, when it enacted the Immigration Reform and Control Act of 1986, Congress delegated to the Attorney General (currently, the Secretary of Homeland Security) the authority to grant work authorization to aliens who are unlawfully present.43
Authority to Exercise Prosecutorial Discretion
The established doctrine of “prosecutorial discretion” provides the federal government with “broad” latitude in determining when, whom, and whether to prosecute particular violations of federal law.44 The decision to prosecute is one that lies “exclusively” with the prosecutor.45 This doctrine, which is derived from the Constitution’s requirement that the President “shall take Care that the Laws be faithfully executed,”46 has traditionally been considered to be grounded in the constitutional separation of powers.47 Indeed, both federal and state courts have ruled that the exercise of prosecutorial discretion is an executive function necessary to the proper administration of justice. Thus, prosecutorial discretion may be appropriately characterized as a constitutionally-based doctrine.
Prosecutorial Discretion Generally
In granting discretion to enforcement officials, courts have recognized that the “decision to prosecute is particularly ill-suited to judicial review,” as it involves the consideration of factors—such as the strength of evidence, deterrence value, and existing enforcement priorities—“not readily susceptible to the kind of analysis the courts are competent to undertake.”48 Moreover, the Executive Branch has asserted that “because the essential core of the President’s constitutional responsibility is the duty to enforce the laws, the Executive Branch has exclusive authority to initiate and prosecute actions to enforce the laws adopted by Congress.”49

41 See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) (noting that the Attorney General and the United States Attorneys have wide latitude in enforcing federal criminal law because “they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed’”). 42 See infra notes 66-85 and accompanying text.
43 P.L. 99-603, 100 Stat. 3359 (Nov. 6, 1986) (codified, as amended, at 8 U.S.C. §§1324a-1324b). 44 United States v. Goodwin, 457 U.S. 368, 380 (1982). See also Exercising Prosecutorial Discretion, supra note 40, at 2 (defining prosecutorial discretion as “the authority of an agency charged with enforcing a law to decide whether to enforce, or not enforce, the law against someone”).
45 See United States v. Nixon, 418 U.S. 683, 693 (1974) (citing the Confiscation Cases, 7 Wall. 454 (1869) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case…”)). 46 U.S. Const. art. II, §3 (“[H]e shall take Care that the Laws be faithfully executed…”). 47 See, e.g., Armstrong, 517 U.S. at 464.
48 Wayte v. United States, 470 U.S. 598, 607 (1985). 49 See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101, 114 (1984). This traditional conception, however, may have been qualified in some respects following the Supreme Court’s decision in Morrison v. Olson, in which the Court upheld a congressional delegation of prosecutorial power to an “independent counsel” under the Ethics in Government Act 49 In sustaining the validity of the statute’s (continued...)

151

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 13 of 24

Congressional Research Service

12

An agency decision to initiate an enforcement action in the administrative context “shares to some extent the characteristics of the decision of a prosecutor in the executive branch” to initiate a prosecution in the criminal context.50 Thus, just as courts are hesitant to question a prosecutor’s decisions with respect to whether to bring a criminal prosecution, so to are courts cautious in reviewing an agency’s decision not to bring an enforcement action. In the seminal case of Heckler v. Cheney, the Supreme Court held that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”51 The Court noted that agency enforcement decisions, like prosecution decisions, involve a “complicated balancing” of agency interests and resources—a balancing that the agency is “better equipped” to evaluate than the courts.52 The Heckler opinion proceeded to establish the standard for the reviewability of agency non-enforcement decisions, holding that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”53 That presumption however, may be overcome “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” 54 as is discussed below.
Prosecutorial Discretion in the Immigration Context
In Reno v. American-Arab Anti-Discrimination Committee, a majority of the Supreme Court found that the various prudential concerns that prompt deference to the executive branch’s determinations as to whether to prosecute criminal offenses are “greatly magnified in the deportation context,”55 which entails civil (rather than criminal) proceedings. While the reasons cited by the Court for greater deference to exercises of prosecutorial discretion in the immigration context than in other contexts reflect the facts of the case, which arose when certain removable aliens challenged the government’s decision not to exercise prosecutorial discretion in their favor,56 the Court’s language is broad and arguably can be construed to
(...continued)
appointment and removal conditions, the Court suggested that although the independent counsel’s prosecutorial powers— including the “no small amount of discretion and judgment [exercised by the counsel] in deciding how to carry out his or her duties under the Act”—were executive in that they had “typically” been performed by Executive Branch officials, the court did not consider such an exercise of prosecutorial power to be “so central to the functioning of the Executive Branch” as to require Presidential control over the independent counsel. 487 U.S. 654 (1988). While the ultimate reach of Morrison may be narrow in that the independent counsel was granted only limited jurisdiction and was still subject to the supervision of the Attorney General, it does appear that Congress may vest certain prosecutorial powers, including the exercise of prosecutorial discretion, in an executive branch official who is independent of traditional presidential controls. 50 Heckler v. Cheney, 470 U.S. 821, 832 (1985). 51 Id. at 831. Accordingly, such decisions are generally precluded from judicial review under the Administrative Procedure Act (APA). 5 U.S.C. §701 (establishing an exception to the APA’s presumption of reviewability where “agency action is committed to agency discretion by law.”). 52 Heckler, 470 U.S. at 831. 53 Id. at 832. 54 Id. at 833. 55 525 U.S. 471, 490 (1999). See also United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (noting that immigration is a “field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program”). 56 Specifically, the Court noted that any delays in criminal proceedings caused by judicial review of exercises of prosecutorial discretion would “merely … postpone the criminal’s receipt of his just desserts,” while delays in removal proceedings would “permit and prolong a continuing violation of United States law,” and could potentially permit the alien to acquire a basis for changing his or her status. Reno, 525 U.S. at 490. The Court further noted that immigration proceedings are unique in that they can implicate foreign policy objectives and foreign-intelligence techniques that are generally not implicated in criminal (continued...)

152

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 14 of 24

Congressional Research Service

13

encompass decisions to favorably exercise such discretion. More recently, in its decision in Arizona v. United States, a majority of the Court arguably similarly affirmed the authority of the executive branch not to seek the removal of certain aliens, noting that “[a] principal feature of the removal system is the broad discretion entrusted to immigration officials,” and that “[r]eturning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.”57 According to the majority, such exercises of prosecutorial discretion may reflect “immediate human concerns” and the “equities of … individual case[s],” such as whether the alien has children born in the United States or ties to the community, as well as “policy choices that bear on … international relations.”58
In addition to such general affirmations of the executive branch’s prosecutorial discretion in the immigration context, other cases have specifically noted that certain decisions are within the prosecutorial discretion afforded first to INS and, later, the immigration components of DHS. These decisions include:
• whether to parole an alien into the United States;59
• whether to commence removal proceedings and what charges to lodge against the respondent;60
• whether to cancel a Notice to Appear or other charging document before jurisdiction vests in an immigration judge;61
• whether to grant deferred action or extended voluntary departure;62
• whether to appeal an immigration judge’s decision or order, and whether to file a motion to reopen;63 and
• whether to impose a fine for particular offenses.64
The recognition of immigration officers’ prosecutorial discretion in granting deferred action is arguably particularly significant here, because the June 15 memorandum contemplates the grant of deferred action to aliens who meet certain criteria (e.g., came to the United States under the age of sixteen).

(...continued)
proceedings. Id. at 491. It also found that the interest in avoiding selective or otherwise improper prosecution in immigration proceedings, discussed below, is “less compelling” than in criminal proceedings because deportation is not a punishment and may be “necessary to bring to an end an ongoing violation of United States law.” Id. (emphasis in original). 57 No. 11-182, Opinion of the Court, slip op. at 4-5 (June 25, 2011). Justice Scalia’s dissenting opinion, in contrast, specifically cited the June 15 memorandum when asserting that “there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift.” Opinion of Scalia, J., slip op., at 19 (June 25, 2011). 58 No. 11-182, Opinion of the Court, slip op. at 4-5. 59 See, e.g., Matter of Artigas, 23 I. & N. Dec. 99 (2001). 60 See, e.g., Matter of Avetisyan, 25 I. & N. Dec. 688 (2012). 61 See, e.g., Matter of G-N-C, 22 I. & N. Dec. 281 (1998). 62 See, e.g., Matter of Yauri, 25 I. & N. Dec. 103 (2009) (deferred action); Hotel & Rest. Employees Union Local 25 v. Smith, 846 F.2d 1499, 1510-11 (D.C. Cir. 1988), aff’g, 563 F. Supp. 157 (D.D.C. 1983) (extended voluntary departure). 63 See, e.g., Matter of Avetisyan, 25 I. & N. Dec. 688 (2012); Matter of York, 22 I. & N. Dec. 660 (1999). 64 See, e.g., Matter of M/V Saru Meru, 20 I. & N. Dec. 592 (1992).

153

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 15 of 24

Congressional Research Service

14

Limitations on the Exercise of Prosecutorial Discretion
While the executive branch’s prosecutorial discretion is broad, it is not “unfettered,”65 and has traditionally been exercised pursuant to individualized determinations. Thus, an argument could potentially be made that the permissible scope of prosecutorial or enforcement discretion is exceeded where an agency utilizes its discretion to adopt a broad policy of non-enforcement as to particular populations in an effort to prioritize goals and maximize limited resources. It would appear, especially with respect to agency enforcement actions, that the invocation of prosecutorial discretion does not create an absolute shelter from judicial review, but rather is subject to both statutory and constitutional limitations.66 As noted by the U.S. Court of Appeals for the District of Columbia Circuit: “the decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.”67 While it is apparent, then, that the exercise of prosecutorial discretion is subject to certain restrictions, the precise boundaries beyond which the executive may not cross remain unclear. Moreover, even if existing statutory or constitutional restrictions were conceivably applicable to the June 15 memorandum, standing principles would likely prevent judicial resolution of any challenge to the memorandum on these grounds.68
Potential Statutory Limitations on the Exercise of Prosecutorial Discretion
With respect to statutory considerations, the presumption following the Supreme Court’s decision in Heckler v. Cheney has been that agency decisions not to initiate an enforcement action are unreviewable. However, Heckler expressly held that this presumption against the reviewability of discretionary enforcement decisions can be overcome “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”69 Consistent with Heckler, a court may be willing to review a broad agency non-enforcement policy where there is evidence that Congress intended to limit enforcement discretion by “setting substantive priorities, or by otherwise circumscribing the agency’s power to discriminate among issues or cases it will pursue.”70 The Heckler opinion also suggested that scenarios in which an agency has “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities” may be subject to a different standard of review.71

65 United States v. Batchelder, 442 U.S. 114, 125 (1979). 66 Nader v. Saxbe, 497 F.2d 676, 679 (D.C. Cir. 1974) (“It would seem to follow that the exercise of prosecutorial discretion, like the exercise of Executive discretion generally, is subject to statutory and constitutional limits enforceable through judicial review.”) 67 Id. at 679 (citing Medical Committee for Human Rights v. SEC, 432 F.2d 659 (D.C. Cir. 1970)). 68 In order to satisfy constitutional standing requirements, a prospective plaintiff must have suffered a personal and particularized injury that is “fairly traceable” to the defendant’s conduct and is likely to be redressed by the relief requested from the court. See, e.g., Allen v. Wright, 468 U.S. 737 (1984). It is difficult to envision a potential plaintiff who has been adequately injured by the issuance of the June 15 memorandum such that the individual could satisfy the Court’s standing requirements. Standing is a threshold justiciability requirement. Thus, unless a plaintiff can attain standing to challenge the DHS directive, it would not appear that a court would have the opportunity to evaluate the directive’s validity. 69 470 U.S. 821, 833 (1985). 70 Id. 71 Id. at 833 n.4 (“Nor do we have a situation where it could justifiably be found that the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities. See, e.g., Adams v. Richardson, 480 F.2d 1159 (1973) (en banc). Although we express no opinion on whether such decisions would be unreviewable (continued...)

154

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 16 of 24

Congressional Research Service

15

Reviewability of the policy underlying the June 15 memorandum might, however, be limited even under a broad reading of Heckler, in part, because the INA does not generally address deferred action,72 much less provide guidelines for immigration officers to follow in exercising it. Some commentators have recently asserted that amendments made to Section 235 of the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 removed immigration officers’ discretion as to whether to bring removal proceedings against aliens who unlawfully entered the Untied States.73 Specifically, this argument holds that, pursuant to Section 235, as amended:
1) any alien present in the United States who has not been admitted (i.e., aliens who entered unlawfully) “shall be deemed … an applicant for admission;”
2) all aliens who are applicants for or otherwise seeking admission “shall be inspected by immigration officers;” and
3) in the case of an alien who is an applicant for admission, if the examining immigration officer determines that the alien is not clearly and beyond a doubt entitled to be admitted, the alien “shall be detained” for removal proceedings.74
It appears, however, that this argument may have been effectively foreclosed by the majority opinion in Arizona, where the Supreme Court expressly noted the “broad discretion exercised by immigration officials” in the removal process.75 Moreover, the argument apparently relies upon a construction of the word “shall” that has generally been rejected in the context of prosecutions and immigration enforcement actions.76 Rather than viewing “shall” as indicating mandatory agency actions, courts and the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting and applying immigration law in removal cases, have instead generally found that prosecutors and enforcement officers

(...continued)
under §701(a)(2), we note that in those situations the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion.’”). 72 The INA uses the phrase “deferred action” only three times, in very specific contexts, none of which correspond to the proposed grant of deferred action contemplated by the June 15 memorandum. See 8 U.S.C. §1151 note (addressing the extension of posthumous benefits to certain surviving spouses, children, and parents); 8 U.S.C. §1154(a)(1)(D)(i)(IV) (“Any [victim of domestic violence] described in subclause (III) and any derivative child of a petition described in clause (ii) is eligible for deferred action and work authorization.”); 8 U.S.C. §1227(d)(2) (providing that the denial of a request for an administrative stay of removal does not preclude the alien from applying for deferred action, among other things). However, INS and, later, DHS policies have long addressed the use of deferred action in other contexts on humanitarian grounds and as a means of prioritizing cases. See, e.g., Leon Wildes, The Deferred Action Program of the Bureau of Citizenship and Immigration Services: A Possible Remedy for Impossible Immigration Cases, 41 SAN DIEGO L. REV. 819, 821 (2004) (discussing a 1970’s INA Operations Instruction on deferred action). This Instruction was rescinded in 1997, but the policy remained in place. See, e.g., Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, 6-72 IMMIGR. L. & PROC. §72.03 (2012). 73 See, e.g., Kris W. Kobach, The “DREAM” Order Isn’t Legal, NEW YORK POST, June 21, 2012, http://www nypost.com/p/news/opinion/opedcolumnists/the_dream_order_isn_legal_4WAYaqJueaEK6MS0onMJCO. 74 Arizona v. United States, No. 11-182, Amicus Curiae Brief of Secure States Initiative in Support of Petitioners, at 8-9 (quoting 8 U.S.C. §1225(a)(1), (a)(3), and (b)(2)(A)). 75 No. 11-182, Opinion of the Court, slip op. at 4-5. 76 Cf. Exercising Prosecutorial Discretion, supra note 40, at 3 (“[A] statute directing that the INS ‘shall’ remove removable aliens would not be construed by itself to limit prosecutorial discretion.”).

155

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 17 of 24

Congressional Research Service

16

retain discretion to take particular actions even when a statute uses “shall” or “must” when discussing these actions.77
It is also unclear that the actions contemplated by the June 15 memorandum conflict with any substantive priorities set by Congress, or are “so extreme as to amount to an abdication” of DHS’s responsibilities under the INA. For example, it appears that an argument could potentially be made to the contrary that the policy comports with the increased emphasis that Congress has placed upon the removal of “criminal aliens” with amendments made to the INA by IRCA, IIRIRA, and other statutes.78 The June 15 memorandum expressly excludes from eligibility for deferred action persons who have been convicted of a felony, a significant misdemeanor, or multiple misdemeanors,79 thereby potentially allowing immigration officers to focus their enforcement activities upon the “criminal aliens” who were identified as higher priorities for removal in earlier Obama Administration guidance on prosecutorial discretion.80 In addition, Congress has funded immigration enforcement activities at a level that immigration officials have indicated is insufficient for the removal of all persons who are present in the United States without authorization. This level of funding figures prominently in the Obama Administration’s rationale for designating certain aliens as lower priorities for removal,81 and could potentially be said to counter any assertion that the Obama Administration’s policy amounts to an “abdication” of its statutory responsibilities.
Potential Constitutional Limitations on the Exercise of Prosecutorial Discretion
With respect to constitutional considerations, it is clear that executive branch officials may not exercise prosecutorial discretion in a manner that is inconsistent with established constitutional protections or other constitutional provisions. Selective prosecution cases commonly illustrate such an abuse of prosecutorial discretion. These cases typically arise where certain enforcement determinations, such as whether to prosecute a specific individual, are made based upon impermissible factors, such as race or religion.82 A separate constitutional argument may be forwarded, however, in situations where the

77 See, e.g., Matter of E-R-M & L-R-M, 25 I. & N. Dec. 520, 523 (2011) (finding that determinations as to whether to pursue expedited removal proceedings (as opposed to removal proceedings under Section 240 of the INA) are within ICE’s discretion, even though the INA uses “shall” in describing who is subject to expedited removal). The Board here specifically noted that, “in the Federal criminal code, Congress has defined most crimes by providing that whoever engages in certain conduct ‘shall’ be imprisoned or otherwise punished. But this has never been construed to require a Federal prosecutor to bring charges against every person believed to have violated the statute.” Id. at 522.
78 See, e.g., IRCA, P.L. 99-603, §701, 100 Stat. 3445 (codified, as amended, at 8 U.S.C. §1229(d)(1)) (making the deportation of aliens who have been convicted of certain crimes an enforcement priority by requiring immigration officers to “begin any deportation proceeding as expeditiously as possible after the date of … conviction”); IIRIRA, P.L. 104-208, div. C, 110 Stat. 3009-546 to 3009-724 (expanding the definition of “aggravated felony,” convictions for which can constitute grounds for removal, and creating additional criminal grounds for removal).
79 Janet Napolitano, Secretary of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012, http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretionindividuals-who-came-to-us-as-children.pdf.
80 See, e.g., John Morton, Director, U.S. ICE, Civil Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, Mar. 2, 2011, at 1-2, http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.
81 Id., at 1 (estimating that ICE has resources to remove annually less than four percent of the noncitizens who are in the United States without authorization).
82 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (holding that a decision may not be “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification”). But see Reno, 525 U.S. at 488 (“[A]s a general matter … an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his (continued...)

156

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 18 of 24

Congressional Research Service

17

executive branch has, in effect, broadly refused to enforce a duly enacted statute by implementing a blanket ban on enforcement such that the agency has “expressly adopted a general policy which is in effect an abdication of its statutory duty.”83 By refusing to fully enforce certain aspects of a statutory provision, such an action may exceed the permissible scope of prosecutorial discretion and violate the President’s duty that the “laws be faithfully executed.”84 However, CRS was unable to find a single case in which a court invalidated a policy of non-enforcement founded upon prosecutorial discretion on the grounds that the policy violated the Take Care clause. Moreover, it is unclear whether the June 15 memorandum would constitute an absolute non-enforcement policy so as to amount to an “abdication” of a statutory obligation, as discussed previously. Though establishing a department-wide policy regarding a group of individuals who meet certain criteria, the directive suggests that the listed criteria should be “considered” in each individual case. Thus, the directive could be interpreted as setting forth criteria for consideration in each individual exercise of prosecutorial discretion, rather than implementing a ban on deportation actions for qualified individuals.85
Authority to Grant Work Authorization
The INA grants the Secretary of Homeland Security arguably wide latitude to issue work authorization, including to aliens who are unlawfully present. Since the enactment of IRCA in 1986, federal law has generally prohibited the hiring or employment of “unauthorized aliens.”86 However, the definition of “unauthorized alien” established by IRCA effectively authorizes the Secretary to grant work authorization to aliens who are unlawfully present by defining an “unauthorized alien” as one who:
with respect to the employment of an alien at a particular time, … 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 [currently, Secretary of Homeland Security].87
Regulations promulgated by INS and DHS further provide that aliens who have been granted deferred action and can establish an “economic necessity for employment” may apply for work authorization.88
When first promulgated in 1987,89 these regulations were challenged through the administrative process on the grounds that they exceeded INS’s statutory authority.90 Specifically, the challengers asserted that
(...continued)
deportation.”). 83 See Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973). 84 U.S. Const. art. II, §3. 85 As is discussed elsewhere in this memorandum, there have been other instances where deferred action or extended voluntary departure was granted to individuals who were part of a more broadly defined group (e.g., persons from Nicaragua, surviving spouses and children of deceased U.S. citizens, victims and witnesses of crimes). 86 See 8 U.S.C. §§1324a-1324b. 87 8 U.S.C. §1324a(h)(3). 88 8 C.F.R. §274a.12(c)(14). Under these regulations, the “basic criteria” for establishing economic necessity are the federal poverty guidelines. See 8 C.F.R. §274a.12(e). 89 See INS, Control of Employment of Aliens: Final Rule, 52 Fed. Reg. 16216 (May 1, 1987). 90 INS, Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46092 (Dec. 4, 1987) (denying a petition for rulemaking submitted by the Federation for American Immigration Reform, which sought the rescission of certain regulations pertaining to employment authorization for aliens in the United States).

157

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 19 of 24

Congressional Research Service

18

the statutory language referring to aliens “authorized to be … employed by this chapter or by the Attorney General” did not give the Attorney General authority to grant work authorization “except to those aliens who have already been granted specific authorization by the Act.”91 Had this argument prevailed, the authority of INS and, later, DHS to grant work authorization to persons granted deferred action would have been in doubt, because the INA does not expressly authorize the grant of employment documents to such persons. However, INS rejected this argument on the grounds that the:
only logical way to interpret this phrase is 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 regulatory process, in addition to those who are authorized employment by statute.92
Subsequent case law has generally affirmed that immigration officials have broad discretion in determining whether to deny or revoke work authorizations to persons granted deferred action, or in other circumstances.93 These cases would appear to suggest that, by extension, immigration officials have similarly broad discretion to grant work authorization provided any requisite regulatory criteria (e.g., economic necessity) are met.
Corollary Policy Implications: Access to Federal Benefits
Many observers characterize foreign nationals with relief from removal who obtain temporary work authorizations as “quasi-legal” unauthorized migrants.94 They may be considered “lawfully present” for some very narrow purposes under the INA (such as whether the time in deferred status counts as illegal presence under the grounds of inadmissibility) but are otherwise unlawfully present. Foreign nationals to whom the government has issued temporary employment authorization documents (EADs) may legally obtain social security numbers (SSNs).95 Possession of a valid EAD or SSN issued for temporary employment, however, does not trigger eligibility for federal programs and services. In other words, foreign nationals who are granted deferred action may be able to work but are not entitled to federallyfunded public assistance, except for specified emergency services.96

91 Id.
92 Id.
93 See, e.g., Perales v. Casillas, 903 F.2d 1043, 1045 (5th Cir. 1990) (“[T]he agency’s decision to grant voluntary departure and work authorization has been committed to agency discretion by law.”); Chan v. Lothridge, No. 94-16936, 1996 U.S. App. LEXIS 8491 (9th Cir. 1996) (finding that INS did not abuse its discretion in denying interim work authorization to the petitioner while his application for asylum was pending); Kaddoura v. Gonzales, No. C06-1402RSL, 2007 U.S. Dist. LEXIS 37211 (W.D. Wash. 2007) (finding that the court lacked jurisdiction to hear a suit seeking to compel U.S. Citizenship and Immigration Services to grant work authorization because such actions are discretionary acts).
94 The “quasi-legal” unauthorized aliens fall in several categories. The government has given them temporary humanitarian relief from removal, such as Temporary Protected Status (TPS). They have sought asylum in the United States and their cases have been pending for at least 180 days. They are immediate family or fiancées of LPRs who are waiting in the United States for their legal permanent residency cases to be processed. Or, they have overstayed their nonimmigrant visas and have petitions pending to adjust status as employment-based LPRs. These are circumstances in which DHS issues temporary employment authorization documents (EADs) to aliens who are not otherwise considered authorized to reside in the United States.
95 For further background, see CRS Report RL32004, Social Security Benefits for Noncitizens, by Dawn Nuschler and Alison Siskin.
96 CRS Report RL34500, Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues, by Ruth Ellen Wasem.

158

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 20 of 24

Congressional Research Service

19

Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (P.L. 104-193) established comprehensive restrictions on the eligibility of all noncitizens for means-tested public assistance, with exceptions for LPRs with a substantial U.S. work history or military connection. Regarding unauthorized aliens, Section 401 of PRWORA barred them from any federal public benefit except the emergency services and programs expressly listed in Section 401(b) of PRWORA. This overarching bar to unauthorized aliens hinges on how broadly the phrase “federal public benefit” is implemented. The law defines this phrase to be
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.97
So defined, this bar covers many programs whose enabling statutes do not individually make citizenship or immigration status a criterion for participation.
Thus, beneficiaries of the June 15, 2012 policy directive will be among those “quasi-legal” unauthorized migrants who have EADs and SSNs—but who are not otherwise authorized to reside in the United States.

97 §401(c) of PRWORA, 8 U.S.C. §1611.
159

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 21 of 24

Congressional Research Service

20

Appendix. Past Administrative Directives on Blanket or Categorical Deferrals of Deportation

Selected Major Directives, 1976-2011

Year

Type of Action

Class of Aliens Covered

Estimated Number

1976 Extended voluntary

Otherwise deportable

NA

departure (EVD) for

Lebanese in the United

Lebanese on a case-by-

States.

case basis

1977 EVD for Ethiopians

Otherwise deportable

NA

Ethiopians in the United

States.

1977 1978

The Attorney General temporarily suspended the expulsion of certain natives of Western Hemisphere countries, known as the “Silva Letterholders.” They were granted stays and permitted to apply for employment authorization.
EVD for Ugandans

A group of aliens with approved petitions filed a class action lawsuit to recapture about 145,000 visas assigned to Cubans.

250,000

Otherwise deportable

NA

Ugandans in the United

States.

1979 EVD for Nicaraguans 1979 EVD for Iranians

Otherwise deportable

NA

Nicaraguans in the United

States.

Otherwise deportable

NA

Iranians in the United

States.

Commentary
Lebanese received TPS from 1991 to 1993.
P.L. 100-204 contained a special extension of the legalization program established by the Immigration Reform and Control Act (IRCA) of 1986 to include otherwise eligible aliens who had been granted EVD status during a time period that included the Ethiopians. Many of these cases were not resolved until the passage of IRCA.
P.L. 100-204 contained a special extension of the legalization program established by IRCA to include otherwise eligible aliens who had been granted EVD status during a time period that included the Ugandans. EVD ended in September 1980.
EVD ended in December 1979, and they were encouraged to apply for asylum.

160

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 22 of 24

Congressional Research Service

21

Year

Type of Action

1980 EVD for Afghans

Class of Aliens Covered
Otherwise deportable Afghans in the United States.

Estimated Number
NA

1984 EVD for Poles

Otherwise deportable

NA

Poles in the United States.

1987

Memorandum from Attorney General Edward Meese directing the Immigration and Naturalization Service (INS) not to deport any Nicaraguans and to grant them work authorizations.

Nicaraguans who demonstrated a “wellfounded fear of persecution,” who had been denied asylum, or had been denied withholding of deportation.

150,000 to 200,000

1987 1989

Attorney General Edward Meese authorized INS district directors to defer deportation proceedings of certain family members of aliens legalized through IRCA.
Attorney General Richard Thornburgh instructed INS to defer the enforced departure of any Chinese national in the United States through June 6, 1990.

This policy directive applied where “compelling or humanitarian factors existed” in the cases of families that included spouses and children ineligible to legalize under IRCA.
Chinese nationals whose nonimmigrant visas expired during this time were to report to INS to benefit from this deferral and to apply, if they wished, for work authorizations.

NA 80,000

Commentary
P.L. 100-204 contained a special extension of the legalization program established by IRCA to include otherwise eligible aliens who had been granted EVD status during a time period that included the Afghans.
P.L. 100-204 contained a special extension of the legalization program established by IRCA to include otherwise eligible aliens who had been granted EVD status during a time period that included the Poles.
Legislation to grant stays of deportation to Nicaraguans as well as Salvadorans had received action by committees in both chambers during the 1980s. Congress ultimately enacted legislation legalizing the Nicaraguans, the Nicaraguan Adjustment and Central American Relief Act (P.L. 105100).
Legislation to enable the immediate family of aliens legalized through IRCA to also adjust status had been introduced. (See 1990 “Family Fairness” directive below.)
Legislation that included provisions to establish Temporary Protected Status (TPS) was moving through Congress at that time.

161

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 23 of 24

Congressional Research Service

22

Year

Type of Action

Class of Aliens Covered

Estimated Number

1990

Executive Order 12711 of April 11, 1990, provided temporary protection for certain nationals of the People's Republic of China (PRC) and their dependents. It permitted temporary deferral of enforcement of the departure from the United States and conferred eligibility for certain other benefits through January 1, 1994.

Chinese nationals and dependents who were in the U.S. on or after June 5, 1989, up to and including the date of Executive Order 12711.

80,000

Commentary
The Chinese Student Protection Act of 1992 (CSPA) (P.L. 102-404) enabled Chinese with deferred enforced departure to become lawful permanent residents.

1990
1991 1992 1997

INS Commissioner Gene McNary issued a new “Family Fairness” policy for family members of aliens legalized through IRCA. The policy dropped the where “compelling or humanitarian factors existed” requirement and allowed the family members to apply for employment authorizations.
Presidential directive to Attorney General instructing him to grant deferred enforced departure to Persian Gulf evacuees who were airlifted to the United States after the invasion of Kuwait in 1990
President George H.W. Bush instructed the Attorney General to grant deferred enforced departure (DED) to Salvadorans
President William J. Clinton instructed the Attorney General to grant DED to Haitians for one year.

Unauthorized spouses and children of aliens legalized under IRCA.
Aliens who had U.S. citizen relatives or who harbored U.S. citizens during the invasion, largely persons originally from Palestine, India, and the Philippines.
Unauthorized Salvadorans who had fled the civil war in the 1980s.
Haitians who were paroled into the United States or who applied for asylum before December 1, 1995.

1.5 million
2,227 190,000 40,000

P.L. 101-649 provided relief from deportation and employment authorization to an eligible alien who was the spouse or unmarried child of a legalized alien holding temporary or permanent residence pursuant to IRCA.
It is not clear how these cases were handled.
Congress had passed a law in 1990 giving Salvadorans TPS for 18 months.
Haitians had been provided TPS from 1993-1997. Legislation enabling Haitians to adjust their status passed at the close of the 105th Congress (P.L. 105-277) in 1998.

162

Case 1:14-cv-00254 Document 38-8 Filed in TXSD on 12/24/14 Page 24 of 24

Congressional Research Service

23

Year

Type of Action

Class of Aliens Covered

Estimated Number

Commentary

1997 INS General Counsel Paul Battered aliens with

NA

Virtue issues guidelines

approved LPR self-

for deferred action for

petitions, and their

certain foreign nationals derivative children listed

who might gain relief

on the self-petition.

through the Violence

Against Women Act.

1998 Attorney General Janet Unauthorized aliens from NA

Reno temporarily

El Salvador, Guatemala,

suspended the

Honduras, and Nicaragua.

deportation of aliens from

El Salvador, Guatemala,

Honduras, and Nicaragua.

1999 2007 2011

President William J. Clinton instructed the Attorney General to grant DED to Liberians for one year.
President George W. Bush directed that DED be provided to Liberians whose TPS expired.
President Barack Obama extended Liberian DED through March 2013.

Liberian nationals with TPS who were living in the United States.
Liberian nationals who had lived in the United States since October 1, 2002, and who had TPS on September 30, 2007.

10,000 3,600

Regulations to implement the U visa portions of P.L. 106-386 were promulgated in 2007.
This relief was provided in response to Hurricane Mitch. Guatemalans and Salvadorans had their stays of removal extended until March 8, 1999. TPS was given to Hondurans and Nicaraguans.
Liberians had been provided TPS from 1991 through 1999; they were given TPS again in 2002.

Source: CRS review of published accounts, archived CRS materials, and government policy documents.
Notes: Excludes aliens with criminal records or who “pose a danger to national security.” Estimated Number refers to estimated number of beneficiaries at time of issuance of directive. NA means “not available.” Other countries whose nationals had some form of deferred deportation prior to 1976 include Cambodia, Cuba, Chile, Czechoslovakia, Dominican Republic, Hungary, Laos, Rumania, and Vietnam.

163

Case 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 1 of 27
EXHIBIT 9

Case 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 2 of 27
164

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 3 o
165

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 4 of
166

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 5 of
167

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 6 o
168

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 7 o
169

ase 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 8 of
170

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 9 of
171

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 10 o
172

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 11 o
173

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 12 o
174

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 13 o
175

Case 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 14 of 27
176

Case 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 15 of 27
177

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 16 o
178

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 17 o
179

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 18 o
180

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 19 o
181

se 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 20 of
182

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 21 o
183

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 22 o
184

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 23 o
185

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 24 o
186

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 25 o
187

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 26 o
188

e 1:14-cv-00254 Document 38-9 Filed in TXSD on 12/24/14 Page 27 o
189

Case 1:14-cv-00254 Document 38-10 Filed in TXSD on 12/24/14 Page 1 of 3
EXHIBIT 10

Case 1:14-cv-00254 Document 38-10 Filed in TXSD on 12/24/14 Page 2 of 3
190

Case 1:14-cv-00254 Document 38-10 Filed in TXSD on 12/24/14 Page 3 of 3
191

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 1 of 8
EXHIBIT 11

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 2 of 8
192

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 3 of 8
193

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 4 of 8
194

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 5 of 8
195

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 6 of 8
196

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 7 of 8
197

Case 1:14-cv-00254 Document 38-11 Filed in TXSD on 12/24/14 Page 8 of 8
198

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 12

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 2 of 7
199

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 3 of 7
200

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 4 of 7
201

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 5 of 7
202

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 6 of 7
203

Case 1:14-cv-00254 Document 38-12 Filed in TXSD on 12/24/14 Page 7 of 7
204

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 1 of 10
EXHIBIT 13

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 2 of 10
INTERIM RELIEF FOR CERTAIN FOREIGN ACADEMIC STUDENTS ADVERSELY AFFECTED BY HURRICANE KATRINA
Frequently Asked Questions (FAQ)
On November 25, 2005. U.S. Citizenship and Immigration Services (USCIS) published a Federal Register Notice (Notice), which temporarily suspended the applicability of certain requirements related to on-campus and off-campus employment for a specifically designated group of F-1 students. This temporary relief enables qualified F-1 students, who were adversely affected by Hurricane Katrina, to work additional hours on-campus, or work off-campus if employment authorization is granted. F-1 students who are granted employment authorization pursuant to the Notice may likewise reduce their course load for the duration of their employment authorization to the minimum course load requirement set forth in the Notice.
Since the Notice does not cover Katrina-impacted foreign academic students who have failed to maintain their F-1 status, such persons, and their F-2 dependents, may request a grant of deferred action and short-term employment authorization based on economic necessity.
Q. Why is USCIS taking this action?
A. Hurricane Katrina caused severe loss of life and extensive property damage, and disrupted normal activities, in the states of Alabama, Louisiana, and Mississippi. As a result of this catastrophic natural disaster, many of the approximately 5,500 F-1 students, who were enrolled in DHS-approved academic institutions located in the areas adversely affected by Hurricane Katrina, have been suffering severe economic hardship and have been experiencing difficulty in satisfying the normal regulatory requirements for maintaining valid F-1 status, which include the pursuit of a “full course of study.” See 8 CFR 214.2(f)(6). USCIS is taking action to provide temporary relief to these F-1 students.
Q. For whom specifically is USCIS taking this action?
A. The interim relief covered in this FAQ was developed specifically for F-1 students who: (1) on August 29, 2005, were lawfully present in the United States in F-1 status and were enrolled in a DHS-approved institution located in an area adversely affected by Hurricane Katrina; and (2) are experiencing severe economic hardship as direct result of Hurricane Katrina. Hereinafter, this group will be referred to as “Affected F-1 Students.”
Q. Which DHS-approved academic institutions have been deemed to be located in the areas adversely affected by Hurricane Katrina?
A. Following is a list of the specific campuses of DHS-approved academic institutions that have been deemed to be located in the areas adversely affected by Hurricane Katrina.
1
205

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 3 of 10

SCHOOL NAME Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans
Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans
Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans

CAMPUS NAME Academy of the Sacred Heart Christian Brothers School Henriette DeLille Holy Cross Holy Ghost Holy Name of Jesus Holy Rosary Academy House of the Holy Family Immaculate Heart of Mary Marian Central Catholic Middle School Our Lady of Lourdes Resurrection of Our Lord St. Alphonsus St. Anthony of Padua St. Benedict the Moor St. David St. Dominic St. Frances Xavier Cabrini St. Joan of Arc St. Joseph Central Catholic Elementary St. Leo the Great St. Mary of the Angels St. Paul the Apostle St. Pius X St. Raymond St. Stephen Stuart Hall School for Boys Ursuline Academy All Saints Holy Name of Mary Our Lady of Divine Providence Our Lady of Perpetual Help St. Angela Merici St. Benilde St. Catherine of Siena St. Christopher St. Clement of Rome St. Edward the Confessor St. Elizabeth Ann Seton St. Francis Xavier St. Louis King of France St. Mary Magdalen St. Matthew the Apostle

CITY New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans

ZIP STATE CODE
LA 70115 LA 70124 LA 70126 LA 70117 LA 70115 LA 70118 LA 70119 LA 70126 LA 70126

New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans

LA 70122 LA 70115 LA 70127 LA 70130 LA 70119 LA 70126 LA 70117 LA 70124 LA 70122 LA 70118

New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans Metairie Kenner Metairie Metairie Metairie Metairie Metairie Metairie Kenner Metairie Metairie Metairie River Ridge

LA 70122 LA 70119 LA 70117 LA 70126 LA 70124 LA 70122 LA 70115 LA 70118 LA 70118 LA 70114 LA 70114 LA 70003 LA 70062 LA 70002 LA 70001 LA 70005 LA 70001 LA 70002 LA 70001 LA 70065 LA 70005 LA 70005 LA 70003 LA 70123

2
206

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 4 of 10

Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans
Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans Archdiocese of New Orleans

St. Philip Neri St. Rita Immaculate Conception Our Lady of Prompt Succor St. Anthony St. Cletus St. Joseph the Worker St. Rosalie Visitation of Our Lady Our Lady of Perpetual Help Our Lady of Prompt Succor St. Louise DeMarillac St. Mark St. Robert Bellarmine Sacred Heart of Jesus St. Charles Borromeo Ascension of Our Lord Our Lady of Grace St. Joan of Arc St. Peter Mary, Queen of Peace Our Lady of Lourdes St. Margaret Mary St. Peter Annunciation Brother Martin Cabrini DeLaSalle Jesuit Mount Carmel Academy Redeemer-Seton St. Augustine St. Gerard Majella Alternative School St. Mary's Academy Xavier University Prep Archbishop Chapelle Archbishop Rummel Archbishop Blenk Archbishop Shaw Immaculata Archbishop Hannan St. Charles Catholic Pope John Paul II The Saint Paul's School St. Scholastica Academy

Metairie Harahan Marrero Westwego Gretna Gretna Marrero Harvey Marrero Belle Chasse Chalmette Arabi Chalmette Arabi Norco Destrehan LaPlace Reserve LaPlace Reserve Mandeville Slidell Slidell Covington Bogalusa New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans New Orleans
New Orleans New Orleans New Orleans Metairie Metairie Gretna Marrero Marrero Meraux LaPlace Slidell Covington Covington

LA 70003 LA 70123 LA 70072 LA 70094 LA 70053 LA 70053 LA 70072 LA 70058 LA 70072 LA 70037 LA 70043 LA 70032 LA 70043 LA 70032 LA 70079 LA 70047 LA 70068 LA 70084 LA 70068 LA 70084 LA 70471 LA 70458 LA 70458 LA 70433 LA 70427 LA 70122 LA 70119 LA 70115 LA 70119 LA 70124 LA 70122 LA 70119
LA 70122 LA 70126 LA 70115 LA 70003 LA 70001 LA 70053 LA 70072 LA 70072 LA 70075 LA 70068 LA 70461 LA 70433 LA 70433

3
207

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 5 of 10

Bass Memorial Academy

Bass Memorial Academy

Lumberton

Delgado Community College

Delgado Community College

New Orleans

Dillard University

Dillard University

New Orleans

East Central Community College

East Central Community College Decatur

East Mississippi Community College

Scooba Campus

Scooba

Ecole Classique

Ecole Classique

New Orleans

English Language Center

University of South Alabama

Mobile

Faulkner State Community College

Faulkner State Community College Bay Minette

Faulkner University

Faulkner University at Mobile

Mobile

John Curtis Christian School

John Curtis Christian School

River Ridge

Kaplan Test Prep, a division of Kaplan, Inc. Kaplan Test Prep - New Orleans, LA New Orleans

Louisiana State University Health Sciences Louisiana State University Health

Center

Sciences Center

New Orleans

Loyola University New Orleans

Loyola University New Orleans New Orleans

Lutheran High School

Lutheran High School

Metairie

Meridian Community College

Meridian Community College

Meridian

Metairie Park Country Day School

Metairie Park Country Day School Metairie

Mississippi Gulf Coast Community College Perkinston Campus

Perkinston

Mississippi Gulf Coast Community College Jefferson Davis Campus

Gulfport

Mississippi Gulf Coast Community College Jackson County Campus

Gautier

Mobile County Public Schools

Division Of Student Support Services Mobile

Mobile County Public Schools

Baker High

Mobile

Mobile County Public Schools

Blount High

Prichard

Mobile County Public Schools

Bryant High

Irvington

Mobile County Public Schools

Citronelle High

Citronelle

Mobile County Public Schools

Davidson High

Mobile

Mobile County Public Schools

Montgomery High

Semmes

Mobile County Public Schools

Murphy High

Mobile

Mobile County Public Schools

Rain High

Mobile

Mobile County Public Schools

Satsuma High

Satsuma

Mobile County Public Schools

Shaw High

Mobile

Mobile County Public Schools

Theodore High

Theodore

Mobile County Public Schools

Vigor High

Prichard

Mobile County Public Schools

Williamson High

Mobile

Modern Languages Institute

Modern Languages Institute

New Orleans

New Orleans Baptist Theological

New Orleans Baptist Theological Seminary Seminary

New Orleans

Nicholls State University

Nicholls State University

Thibodaux

Notre Dame Seminary

Notre Dame Seminary

New Orleans

Nunez Community College

Nunez Community College

Chalmette

Our Lady Holy Cross College

Our Lady Holy Cross College

New Orleans

Picayune School District

Picayune Memorial High School Picayune

Remington College

Remington College

Metairie

Reserve Christian School

Reserve Christian School

Reserve

Ridgewood Preparatory School

Ridgewood Preparatory School

Metairie

Riverside Academy Corporation

Riverside Academy

Reserve

MS 39455 LA 70119 LA 70122 MS 39327 MS 39358 LA 70112 AL 36688 AL 36507 AL 36609 LA 70123 LA 70118
LA 70006 LA 70118 LA 70002 MS 39307 LA 70005 MS 39573 MS 39507 MS 39553 AL 36602 AL 36608 AL 36610 AL 36544 AL 36522 AL 36609 AL 36575 AL 36606 AL 36605 AL 36572 AL 36608 AL 36582 AL 36610 AL 36605 LA 70130
LA 70126 LA 70301 LA 70118 LA 70043 LA 70131 MS 39466 LA 70005 LA 70084 LA 70001 LA 70084

4
208

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 6 of 10

Saint Joseph Seminary College
School of Urban Missions Southeastern Baptist College Southeastern Louisiana University Southern University at New Orleans Spring Hill College St. Paul's Episcopal School St. Stanislaus College Prep St. Stanislaus College Prep St. Stanislaus College Prep St. Stanislaus College Prep St. Stanislaus College Prep St. Stanislaus College Prep The University of Southern Mississippi The University of Southern Mississippi Top Garden School Tulane University United States Sports Academy University of Mobile University of New Orleans
University of New Orleans University of South Alabama William Carey College Xavier University of Louisiana

St. Benedict

St. Benedict LA 70457

New Orleans School of Urban Missions

Gretna

LA 70053

Southeastern Baptist College

Laurel

MS 39440

Southeastern Louisiana University Hammond

LA 70402

Southern University at New Orleans New Orleans LA 70126

Spring Hill College

Mobile

AL 36608

St. Paul's Episcopal School

Mobile

AL 36608

St. Stanislaus College Prep

Bay St. Louis MS 39520

Mercy Cross High School

Biloxi

MS 39530

St. John High School

Gulfport

MS 39501

Resurrection Catholic School

Pascagoula

MS 39567

Nativity, B. V. M.

Biloxi

MS 39530

Sacred Heart

Hattiesburg

MS 39401

Hattiesburg Campus

Hattiesburg MS 39406

English Language Institute

Hattiesburg MS 39406

Top Garden School

Irvington

AL 36544

Tulane University

New Orleans LA 70118

United States Sports Academy

Daphne

AL 36526

University of Mobile

Mobile

AL 36613

University of New Orleans

New Orleans LA 70148

UNO Intensive English Language

Program

New Orleans

LA 70148

University of South Alabama

Mobile

AL 36688

William Carey College

Hattiesburg MS 39401

Xavier University of Louisiana

New Orleans LA 70125

Q. Will Affected F-1 Students who have since transferred to other DHS-approved institutions still qualify for the interim relief discussed in this FAQ?

A. Affected F-1 Students, who have since transferred to another DHS-approved institution, but who otherwise satisfy the eligibility criteria listed above in this FAQ under the section “For whom specifically is DHS taking this action,” remain eligible for the interim relief discussed in this FAQ.

Q. Which Affected F-1 Students are covered by the Notice and what relief is available to these students?

A. To be covered by the Notice, an Affected F-1 Student must be maintaining valid F-1 status, which includes pursuing a full course of study. Affected F-1 Students covered by the Notice may obtain short-term employment authorization for off-campus employment or additional hours of on-campus employment. Furthermore, Affected F-1 Students who are granted employment authorization pursuant to the Notice may consequently reduce their course load to no less than the minimum course load requirement set forth in the Notice for the duration of their employment authorization.

5
209

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 7 of 10
F-2 dependents (spouse or minor children) of Affected F-1 Students who are covered by the Notice would be considered, if otherwise eligible, to be maintaining valid F-2 status, provided the Affected F-1 Student continues to maintain valid F-1 status. F-2 dependents of Affected F-1 Students covered by the Notice, however, are not authorized to engage in employment in the United States, irrespective of whether the Affected F-1 Student has been granted employment authorization.
Q. How do Affected F-1 Students covered by the Notice apply for on-campus employment authorization pursuant to the Notice?
A. Affected F-1 Students covered by the Notice, who wish to pursue more than 20 hours per week of on-campus employment pursuant to the Notice, must obtain permission from their current Designated School Official (DSO). Complete instructions can be found in the Notice under the section entitled, “How may F-1 students covered by this Notice obtain employment authorization pursuant to this Notice?”
Q. How do Affected F-1 Students covered by the Notice apply for off-campus employment authorization pursuant to the Notice?
A. Affected F-1 Students covered by the Notice, who wish to obtain off-campus employment authorization pursuant to the Notice, must file a complete Form I-765, Application for Employment Authorization, with required supporting documentation and prescribed fee, with the USCIS Texas Service Center at:
U.S. Citizenship and Immigration Services Texas Service Center P.O. Box 853062 Mesquite, TX 75815-3062
The front of the envelope, on the bottom right-hand side, should include the following notation: "HURRICANE KATRINA SPECIAL STUDENT RELIEF." Complete instructions can be found in the Notice under the section entitled, “How may F-1 students covered by this Notice obtain employment authorization pursuant to this Notice?”
Q. What is the minimum course load requirement set forth in the Notice for Affected F-1 Students who are granted employment authorization pursuant to the Notice?
A. Affected F-1 Students engaged in undergraduate studies and who are granted employment authorization pursuant to the Notice must remain registered for a minimum of six (6) semester/quarter hours of instruction per academic term. Affected F-1 Students engaged in graduate studies and who are granted employment authorization pursuant to the Notice must remain registered for a minimum of three (3) semester/quarter hours of instruction per academic term.
6
210

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 8 of 10
Q. How is off-campus employment authorization granted pursuant to the Notice different from off-campus employment authorization granted pursuant to the existing provision [See 8 CFR 214.2(f)(9)(ii)]?
A. One key difference between off-campus employment authorization provided by the Notice and off-campus employment authorization under the existing provision is that Affected F-1 Students who are granted employment authorization pursuant to the Notice may reduce their course load for the duration of their employment authorization.
Q. What relief is available to Affected F-1 Students not covered by the Notice?
A. Affected F-1 Students not covered by the Notice may request deferred action and employment authorization based on economic necessity. A grant of deferred action in this context means that, during the period that the grant of deferred action remains in effect, DHS will not seek the removal of the Affected F-1 Student (or his or her F-2 dependents) based on the fact that the Affected F-1 Student’s failure to maintain status is directly due to Hurricane Katrina. A grant of deferred action, however, does not provide an alien any legal immigration status in the United States. Affected F-1 Students who are granted deferred action are eligible to apply for short-term employment authorization, provided they demonstrate economic necessity.
F-2 dependents of Affected F-1 Students who are granted deferred action would also be eligible for deferred action for the period granted to the Affected F-1 Student. Although F-2 dependents are not authorized to engage in employment in the United States, F-2 dependents who are granted deferred action are eligible to apply for short-term employment authorization, provided they likewise demonstrate economic necessity.
Q. Will Affected F-1 Students not covered by the Notice who are granted deferred action be required to file for reinstatement?
A. Yes. Since deferred action does not confer any lawful status on an alien, Affected F-1 Students who were granted deferred action must apply and be approved for reinstatement in order to resume their F-1 status. See 8 CFR 214.2(f)(16). F-2 dependents, who were granted deferred action, are not required to apply for reinstatement, but would be considered, if otherwise eligible, to be maintaining valid F-2 status, provided the Affected F-1 Student is approved for reinstatement to valid F-1 status.
Q. How may Affected F-1 Students not covered by the Notice and their F-2 dependents (spouse and minor children) request deferred action and employment authorization based on economic necessity?
A. Affected F-1 Students not covered by the Notice and their F-2 dependents (spouse and minor children) may individually request deferred action by submitting a letter requesting consideration. The letter must contain the name and the SEVIS ID number of the applicant, and a written affidavit or unsworn declaration confirming that the applicant meets the eligibility criteria listed above in this FAQ under the section “For whom
7
211

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 9 of 10
specifically is DHS taking this action.” Since individuals who are granted deferred action are eligible to apply for employment authorization, Affected F-1 Students and their F-2 dependents who are applying for deferred action, may apply concurrently for employment authorization by filing a Form I-765, Application for Employment Authorization, with required supporting documentation and prescribed fee. Both letter requesting deferred action and the completed Form I-765 should be mailed to the USCIS Texas Service Center at:
U.S. Citizenship and Immigration Services Texas Service Center P.O. Box 853062 Mesquite, TX 75815-3062
The front of the envelope, on the bottom right-hand side, should include the following notation: "HURRICANE KATRINA SPECIAL STUDENT RELIEF."
Q. How may Affected F-1 Students request a waiver of the Form I-765 filing fee?
A. An Affected F-1 Student who is unable to pay the prescribed Form I-765 filing fee should include with the application package a written affidavit or unsworn declaration, requesting a fee waiver and explaining the reasons why s/he is unable to pay the prescribed fee.
Q. How long will the interim relief discussed in this FAQ remain in effect?
A. The interim relief discussed in this FAQ will remain in effect until February 1, 2006. Following February 1, 2006, Affected F-1 Students will again be subject to the normal regulatory requirements, including those related to employment authorization and maintenance of a full course of study. DHS will continue to monitor the adverse impact of Hurricane Katrina in the affected areas to determine if modification of the interim relief is warranted and will announce any such modifications in the Federal Register.
Q. Is there a cut-off date for filing for the interim relief discussed in this FAQ?
A. No. USCIS has not established a cut-off date for filing for the interim relief discussed in this FAQ. However, any benefits granted pursuant to the interim relief discussed herein will expire no later than February 1, 2006. While USCIS will exercise its best efforts to process such applications in as prompt a manner as possible, Affected F-1 Students (and their F-2 dependents) applying for such benefits should bear in mind this expiration date when submitting their application packages.
Q. Are Affected F-1 Students (both those covered by the Notice and those who are not) required to report their current address to DHS?
A. Yes. All aliens who are required to be registered with DHS also are required to inform DHS of their current address. F-1 students (and their F-2 dependents) are among
8
212

Case 1:14-cv-00254 Document 38-13 Filed in TXSD on 12/24/14 Page 10 of 10
the aliens who are required to be registered. Section 265 of the INA requires aliens to report a change of address within 10 days of such change. If the alien fails to comply with the change of address requirements, s/he may be removable under Section 237(a)(3)(A) of the INA and subject to criminal or monetary penalties under Section 266(b) of the INA. Under 8 CFR 214.2(f)(17), F-1 students can satisfy this requirement by providing notice of a change of address within 10 days to their DSO, provided the DSO enters this information in SEVIS within 21 days of notification by the student. F-1 students who are subject to NSEERS must provide required updated information, including any change of address, pursuant to the terms of that program. See 8 CFR 264.1(f). Q. Where are the cited Forms and additional information available? A. Individuals may obtain the cited Forms from the USCIS website at http://uscis.gov/ or by contacting the USCIS Forms Line at 1-800-870-3676. Additional information is through the USCIS National Customer Service Center at 1-800-375-5283. See the November 25, 2005 Press Release Rev: November 25, 2005 Back to USCIS.gov
9
213

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 1 of 9
EXHIBIT 14

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 2 of 9
214

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 3 of 9
215

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 4 of 9
216

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 5 of 9
217

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 6 of 9
218

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 7 of 9
219

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 8 of 9
220

Case 1:14-cv-00254 Document 38-14 Filed in TXSD on 12/24/14 Page 9 of 9
221

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 1 of 9
EXHIBIT 15

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 2 of 9
222

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 3 of 9
223

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 4 of 9
224

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 5 of 9
225

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 6 of 9
226

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 7 of 9
227

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 8 of 9
228

Case 1:14-cv-00254 Document 38-15 Filed in TXSD on 12/24/14 Page 9 of 9
229

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 1 of 14
EXHIBIT 16

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 2 of 14
U.S. Department of Justice Immigration and Naturalization Service

Office of the Commissioner

425 I Street NW Washington, DC 20536
NOV 17 2000

HQOPP 50/4

MEMORANDUM TO REGIONAL DIRECTORS DISTRICT DIRECTORS CHIEF PATROL AGENTS REGIONAL AND DISTRICT COUNSEL

SUBJECT: Exercising Prosecutorial Discretion
Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases, there has been increased attention to the scope and exercise of the Immigration and Naturalization Service’s (INS or the Service) prosecutorial discretion. This memorandum describes the principles with which INS exercises prosecutorial discretion and the process to be followed in making and monitoring discretionary decisions. Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process–from planning investigations to enforcing final orders–subject to their chains of command and to the particular responsibilities and authority applicable to their specific position. In exercising this discretion, officers must take into account the principles described below in order to promote the efficient and effective enforcement of the immigration laws and the interests of justice.
More specific guidance geared to exercising discretion in particular program areas already exists in some instances,1 and other program-specific guidance will follow separately.
1 For example, standards and procedures for placing an alien in deferred action status are provided in the Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X. This memorandum is intended to provide general principles, and does not replace any previous specific guidance provided about particular INS actions, such as “Supplemental Guidelines on the Use of Cooperating Individuals and Confidential Informants Following the Enactment of IIRIRA,” dated December 29, 1997. This memorandum is not intended to address every situation in which the exercise of prosecutorial discretion may be appropriate. If INS personnel in the exercise of their duties recognize apparent conflict between any of their specific policy requirements and these general guidelines, they are encouraged to bring the matter to their supervisor’s attention, and any conflict between policies should be raised through the appropriate chain of command for resolution.
230

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 3 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 2

However, INS officers should continue to exercise their prosecutorial discretion in appropriate cases during the period before more specific program guidance is issued.
A statement of principles concerning discretion serves a number of important purposes. As described in the “Principles of Federal Prosecution,” 2 part of the U.S. Attorneys’ manual, such principles provide convenient reference points for the process of making prosecutorial decisions; facilitate the task of training new officers in the discharge of their duties; contribute to more effective management of the Government’s limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of different offices and between their activities and the INS’ law enforcement priorities; make possible better coordination of investigative and prosecutorial activity by enhancing the understanding between the investigative and prosecutorial components; and inform the public of the careful process by which prosecutorial decisions are made.
Legal and Policy Background
“Prosecutorial discretion” is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also to a broad range of other discretionary enforcement decisions, including among others: Focusing investigative resources on particular offenses or conduct; deciding whom to stop, question, and arrest; maintaining an alien in custody; seeking expedited removal or other forms of removal by means other than a removal proceeding; settling or dismissing a proceeding; granting deferred action or staying a final order; agreeing to voluntary departure, withdrawal of an application for admission, or other action in lieu of removing the alien; pursuing an appeal; and executing a removal order.
The “favorable exercise of prosecutorial discretion” means a discretionary decision not to assert the full scope of the INS’ enforcement authority as permitted under the law. Such decisions will take different forms, depending on the status of a particular matter, but include decisions such as not issuing an NTA (discussed in more detail below under “Initiating Proceedings”), not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirements), and approving deferred action.

2 For this discussion, and much else in this memorandum, we have relied heavily upon the Principles of Federal Prosecution, chapter 9-27.000 in the U.S. Department of Justice’s United States Attorneys’ Manual (Oct. 1997). There are significant differences, of course, between the role of the U.S. Attorneys’ offices in the criminal justice system, and INS responsibilities to enforce the immigration laws, but the general approach to prosecutorial discretion stated in this memorandum reflects that taken by the Principles of Federal Prosecution.
231

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 4 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 3

Courts recognize that prosecutorial discretion applies in the civil, administrative arena just as it does in criminal law. Moreover, the Supreme Court “has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Both Congress and the Supreme Court have recently reaffirmed that the concept of prosecutorial discretion applies to INS enforcement activities, such as whether to place an individual in deportation proceedings. INA section 242(g); Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999). The “discretion” in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances. Consequently, it is a powerful tool that must be used responsibly.
As a law enforcement agency, the INS generally has prosecutorial discretion within its area of law enforcement responsibility unless that discretion has been clearly limited by statute in a way that goes beyond standard terminology. For example, a statute directing that the INS “shall” remove removable aliens would not be construed by itself to limit prosecutorial discretion, but the specific limitation on releasing certain criminal aliens in section 236(c)(2) of the INA evidences a specific congressional intention to limit discretion not to detain certain criminal aliens in removal proceedings that would otherwise exist. Personnel who are unsure whether the INS has discretion to take a particular action should consult their supervisor and legal counsel to the extent necessary.
It is important to recognize not only what prosecutorial discretion is, but also what it is not. The doctrine of prosecutorial discretion applies to law enforcement decisions whether, and to what extent, to exercise the coercive power of the Government over liberty or property, as authorized by law in cases when individuals have violated the law. Prosecutorial discretion does not apply to affirmative acts of approval, or grants of benefits, under a statute or other applicable law that provides requirements for determining when the approval should be given. For example, the INS has prosecutorial discretion not to place a removable alien in proceedings, but it does not have prosecutorial discretion to approve a naturalization application by an alien who is ineligible for that benefit under the INA.
This distinction is not always an easy, bright-line rule to apply. In many cases, INS decisionmaking involves both a prosecutorial decision to take or not to take enforcement action, such as placing an alien in removal proceedings, and a decision whether or not the alien is substantively eligible for a benefit under the INA. In many cases, benefit decisions involve the exercise of significant discretion which in some cases is not judicially reviewable, but which is not prosecutorial discretion.
Prosecutorial discretion can extend only up to the substantive and jurisdictional limits of the law. It can never justify an action that is illegal under the substantive law pertaining to the

232

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 5 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 4

conduct, or one that while legal in other contexts, is not within the authority of the agency or officer taking it. Prosecutorial discretion to take an enforcement action does not modify or waive any legal requirements that apply to the action itself. For example, an enforcement decision to focus on certain types of immigration violators for arrest and removal does not mean that the INS may arrest any person without probable cause to do so for an offense within its jurisdiction. Service officers who are in doubt whether a particular action complies with applicable constitutional, statutory, or case law requirements should consult with their supervisor and obtain advice from the district or sector counsel or representative of the Office of General Counsel to the extent necessary.
Finally, exercising prosecutorial discretion does not lessen the INS’ commitment to enforce the immigration laws to the best of our ability. It is not an invitation to violate or ignore the law. Rather, it is a means to use the resources we have in a way that best accomplishes our mission of administering and enforcing the immigration laws of the United States.
Principles of Prosecutorial Discretion
Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations. The INS historically has responded to this limitation by setting priorities in order to achieve a variety of goals. These goals include protecting public safety, promoting the integrity of the legal immigration system, and deterring violations of the immigration law.
It is an appropriate exercise of prosecutorial discretion to give priority to investigating, charging, and prosecuting those immigration violations that will have the greatest impact on achieving these goals. The INS has used this principle in the design and execution of its border enforcement strategy, its refocus on criminal smuggling networks, and its concentration on fixing benefit-granting processes to prevent fraud. An agency’s focus on maximizing its impact under appropriate principles, rather than devoting resources to cases that will do less to advance these overall interests, is a crucial element in effective law enforcement management.
The Principles of Federal Prosecution governing the conduct of U.S. Attorneys use the concept of a “substantial Federal interest.” A U.S. Attorney may properly decline a prosecution if “no substantial Federal interest would be served by prosecution.” This principle provides a useful frame of reference for the INS, although applying it presents challenges that differ from those facing a U.S. Attorney. In particular, as immigration is an exclusively Federal responsibility, the option of an adequate alternative remedy under state law is not available. In an immigration case, the interest at stake will always be Federal. Therefore, we must place particular emphasis on the element of substantiality. How important is the Federal interest in the case, as compared to other cases and priorities? That is the overriding question, and answering it requires examining a number of factors that may differ according to the stage of the case.

233

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 6 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 5

As a general matter, INS officers may decline to prosecute a legally sufficient immigration case if the Federal immigration enforcement interest that would be served by prosecution is not substantial.3 Except as may be provided specifically in other policy statements or directives, the responsibility for exercising prosecutorial discretion in this manner rests with the District Director (DD) or Chief Patrol Agent (CPA) based on his or her common sense and sound judgment.4 The DD or CPA should obtain legal advice from the District or Sector Counsel to the extent that such advice may be necessary and appropriate to ensure the sound and lawful exercise of discretion, particularly with respect to cases pending before the Executive Office for Immigration Review (EOIR).5 The DD’s or CPA’s authority may be delegated to the extent necessary and proper, except that decisions not to place a removable alien in removal proceedings, or decisions to move to terminate a proceeding which in the opinion of the District or Sector Counsel is legally sufficient, may not be delegated to an officer who is not authorized under 8 C.F.R. § 239.1 to issue an NTA. A DD’s or CPA’s exercise of prosecutorial discretion will not normally be reviewed by Regional or Headquarters authority. However, DDs and CPAs remain subject to their chains of command and may be supervised as necessary in their exercise of prosecutorial discretion.
Investigations
Priorities for deploying investigative resources are discussed in other documents, such as the interior enforcement strategy, and will not be discussed in detail in this memorandum. These previously identified priorities include identifying and removing criminal and terrorist aliens, deterring and dismantling alien smuggling, minimizing benefit fraud and document abuse, responding to community complaints about illegal immigration and building partnerships to solve local problems, and blocking and removing employers’ access to undocumented workers. Even within these broad priority areas, however, the Service must make decisions about how best to expend its resources.
Managers should plan and design operations to maximize the likelihood that serious offenders will be identified. Supervisors should ensure that front-line investigators understand that it is not mandatory to issue an NTA in every case where they have reason to believe that an alien is removable, and agents should be encouraged to bring questionable cases to a supervisor’s attention. Operational planning for investigations should include consideration of appropriate procedures for supervisory and legal review of individual NTA issuing decisions.
3 In some cases even a substantial immigration enforcement interest in prosecuting a case could be outweighed by other interests, such as the foreign policy of the United States. Decisions that require weighing such other interests should be made at the level of responsibility within the INS or the Department of Justice that is appropriate in light of the circumstances and interests involved. 4 This general reference to DDs and CPAs is not intended to exclude from coverage by this memorandum other INS personnel, such as Service Center directors, who may be called upon to exercise prosecutorial discretion and do not report to DDs or CPAs, or to change any INS chains of command. 5 Exercising prosecutorial discretion with respect to cases pending before EOIR involves procedures set forth at 8 CFR 239.2 and 8 CFR Part 3, such as obtaining the court’s approval of a motion to terminate proceedings.
234

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 7 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 6

Careful design of enforcement operations is a key element in the INS’ exercise of prosecutorial discretion. Managers should consider not simply whether a particular effort is legally supportable, but whether it best advances the INS’ goals, compared with other possible uses of those resources. As a general matter, investigations that are specifically focused to identify aliens who represent a high priority for removal should be favored over investigations which, by their nature, will identify a broader variety of removable aliens. Even an operation that is designed based on high-priority criteria, however, may still identify individual aliens who warrant a favorable exercise of prosecutorial discretion.6
Initiating and Pursuing Proceedings
Aliens who are subject to removal may come to the Service’s attention in a variety of ways. For example, some aliens are identified as a result of INS investigations, while others are identified when they apply for immigration benefits or seek admission at a port-of-entry. While the context in which the INS encounters an alien may, as a practical matter, affect the Service’s options, it does not change the underlying principle that the INS has discretion and should exercise that discretion appropriately given the circumstances of the case.
Even when an immigration officer has reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with that case. This is true even when an alien is removable based on his or her criminal history and when the alien–if served with an NTA–would be subject to mandatory detention. The INS may exercise its discretion throughout the enforcement process. Thus, the INS can choose whether to issue an NTA, whether to cancel an NTA prior to filing with the immigration court or move for dismissal in immigration court (under 8 CFR 239.2), whether to detain (for those aliens not subject to mandatory detention), whether to offer an alternative to removal such as voluntary departure or withdrawal of an application for admission, and whether to stay an order of deportation.
The decision to exercise any of these options or other alternatives in a particular case requires an individualized determination, based on the facts and the law. As a general matter, it is better to exercise favorable discretion as early in the process as possible, once the relevant facts have been determined, in order to conserve the Service’s resources and in recognition of the alien’s interest in avoiding unnecessary legal proceedings. However, there is often a conflict

6 For example, operations in county jails are designed to identify and remove criminal aliens, a high priority for the Service. Nonetheless, an investigator working at a county jail and his or her supervisor should still consider whether the exercise of prosecutorial discretion would be appropriate in individual cases.
235

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 8 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 7

between making decisions as soon as possible, and making them based on evaluating as many relevant, credible facts as possible. Developing an extensive factual record prior to making a charging decision may itself consume INS resources in a way that negates any saving from forgoing a removal proceeding.
Generally, adjudicators may have a better opportunity to develop a credible factual record at an earlier stage than investigative or other enforcement personnel. It is simply not practicable to require officers at the arrest stage to develop a full investigative record on the equities of each case (particularly since the alien file may not yet be available to the charging office), and this memorandum does not require such an analysis. Rather, what is needed is knowledge that the INS is not legally required to institute proceedings in every case, openness to that possibility in appropriate cases, development of facts relevant to the factors discussed below to the extent that it is reasonably possible to do so under the circumstances and in the timeframe that decisions must be made, and implementation of any decision to exercise prosecutorial discretion.
There is no precise formula for identifying which cases warrant a favorable exercise of discretion. Factors that should be taken into account in deciding whether to exercise prosecutorial discretion include, but are not limited to, the following:
• Immigration status: Lawful permanent residents generally warrant greater consideration. However, other removable aliens may also warrant the favorable exercise of discretion, depending on all the relevant circumstances.
• Length of residence in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity.
• Criminal history: Officers should take into account the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation. It is appropriate to take into account the actual sentence or fine that was imposed, as an indicator of the seriousness attributed to the conduct by the court. Other factors relevant to assessing criminal history include the alien’s age at the time the crime was committed and whether or not he or she is a repeat offender.
• Humanitarian concerns: Relevant humanitarian concerns include, but are not limited to, family ties in the United States; medical conditions affecting the alien or the alien’s family; the fact that an alien entered the United States at a very young age; ties to one’s home country (e.g., whether the alien speaks the language or has relatives in the home country); extreme youth or advanced age; and home country conditions.
• Immigration history: Aliens without a past history of violating the immigration laws (particularly violations such as reentering after removal, failing to appear at hearing, or resisting arrest that show heightened disregard for the legal process) warrant favorable consideration to a greater extent than those with such a history. The seriousness of any such violations should also be taken into account.

236

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 9 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 8

• Likelihood of ultimately removing the alien: Whether a removal proceeding would have a reasonable likelihood of ultimately achieving its intended effect, in light of the case circumstances such as the alien’s nationality, is a factor that should be considered.
• Likelihood of achieving enforcement goal by other means: In many cases, the alien’s departure from the United States may be achieved more expeditiously and economically by means other than removal, such as voluntary return, withdrawal of an application for admission, or voluntary departure.
• Whether the alien is eligible or is likely to become eligible for other relief: Although not determinative on its own, it is relevant to consider whether there is a legal avenue for the alien to regularize his or her status if not removed from the United States. The fact that the Service cannot confer complete or permanent relief, however, does not mean that discretion should not be exercised favorably if warranted by other factors.
• Effect of action on future admissibility: The effect an action such as removal may have on an alien can vary–for example, a time-limited as opposed to an indefinite bar to future admissibility–and these effects may be considered.
• Current or past cooperation with law enforcement authorities: Current or past cooperation with the INS or other law enforcement authorities, such as the U.S. Attorneys, the Department of Labor, or National Labor Relations Board, among others, weighs in favor of discretion.
• Honorable U.S. military service: Military service with an honorable discharge should be considered as a favorable factor. See Standard Operating Procedures Part V.D.8 (issuing an NTA against current or former member of armed forces requires advance approval of Regional Director).
• Community attention: Expressions of opinion, in favor of or in opposition to removal, may be considered, particularly for relevant facts or perspectives on the case that may not have been known to or considered by the INS. Public opinion or publicity (including media or congressional attention) should not, however, be used to justify a decision that cannot be supported on other grounds. Public and professional responsibility will sometimes require the choice of an unpopular course.
• Resources available to the INS: As in planning operations, the resources available to the INS to take enforcement action in the case, compared with other uses of the resources to fulfill national or regional priorities, are an appropriate factor to consider, but it should not be determinative. For example, when prosecutorial discretion should be favorably exercised under these factors in a particular case, that decision should prevail even if there is detention space available.
Obviously, not all of the factors will be applicable to every case, and in any particular case one factor may deserve more weight than it might in another case. There may be other factors, not on the list above, that are appropriate to consider. The decision should be based on the totality of the circumstances, not on any one factor considered in isolation. General guidance such as this cannot provide a “bright line” test that may easily be applied to determine the “right” answer in every case. In many cases, minds reasonably can differ, different factors may point in different directions, and there is no clearly “right” answer. Choosing a course of action in difficult

237

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 10 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 9

cases must be an exercise of judgment by the responsible officer based on his or her experience, good sense, and consideration of the relevant factors to the best of his or her ability.
There are factors that may not be considered. Impermissible factors include:
• An individual’s race, religion, sex, national origin, or political association, activities or beliefs;7
• The officer’s own personal feelings regarding the individual; or • The possible effect of the decision on the officer’s own professional or personal
circumstances.
In many cases, the procedural posture of the case, and the state of the factual record, will affect the ability of the INS to use prosecutorial discretion. For example, since the INS cannot admit an inadmissible alien to the United States unless a waiver is available, in many cases the INS’ options are more limited in the admission context at a port-of-entry than in the deportation context.
Similarly, the INS may consider the range of options and information likely to be available at a later time. For example, an officer called upon to make a charging decision may reasonably determine that he or she does not have a sufficient, credible factual record upon which to base a favorable exercise of prosecutorial discretion not to put the alien in proceedings, that the record cannot be developed in the timeframe in which the decision must be made, that a more informed prosecutorial decision likely could be made at a later time during the course of proceedings, and that if the alien is not served with an NTA now, it will be difficult or impossible to do so later.
Such decisions must be made, however, with due regard for the principles of these guidelines, and in light of the other factors discussed here. For example, if there is no relief available to the alien in a removal proceeding and the alien is subject to mandatory detention if

7 This general guidance on factors that should not be relied upon in making a decision whether to enforce the law against an individual is not intended to prohibit their consideration to the extent they are directly relevant to an alien’s status under the immigration laws or eligibility for a benefit. For example, religion and political beliefs are often directly relevant in asylum cases and need to be assessed as part of a prosecutorial determination regarding the strength of the case, but it would be improper for an INS officer to treat aliens differently based on his personal opinion about a religion or belief. Political activities may be relevant to a ground of removal on national security or terrorism grounds. An alien’s nationality often directly affects his or her eligibility for adjustment or other relief, the likelihood that he or she can be removed, or the availability of prosecutorial options such as voluntary return, and may be considered to the extent these concerns are pertinent.
238

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 11 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 10

placed in proceedings, that situation suggests that the exercise of prosecutorial discretion, if appropriate, would be more useful to the INS if done sooner rather than later. It would be improper for an officer to assume that someone else at some later time will always be able to make a more informed decision, and therefore never to consider exercising discretion.
Factors relevant to exercising prosecutorial discretion may come to the Service’s attention in various ways. For example, aliens may make requests to the INS to exercise prosecutorial discretion by declining to pursue removal proceedings. Alternatively, there may be cases in which an alien asks to be put in proceedings (for example, to pursue a remedy such as cancellation of removal that may only be available in that forum). In either case, the INS may consider the request, but the fact that it is made should not determine the outcome, and the prosecutorial decision should be based upon the facts and circumstances of the case. Similarly, the fact that an alien has not requested prosecutorial discretion should not influence the analysis of the case. Whether, and to what extent, any request should be considered is also a matter of discretion. Although INS officers should be open to new facts and arguments, attempts to exploit prosecutorial discretion as a delay tactic, as a means merely to revisit matters that have been thoroughly considered and decided, or for other improper tactical reasons should be rejected. There is no legal right to the exercise of prosecutorial discretion, and (as stated at the close of this memorandum) this memorandum creates no right or obligation enforceable at law by any alien or any other party.
Process for Decisions
Identification of Suitable Cases
No single process of exercising discretion will fit the multiple contexts in which the need to exercise discretion may arise. Although this guidance is designed to promote consistency in the application of the immigration laws, it is not intended to produce rigid uniformity among INS officers in all areas of the country at the expense of the fair administration of the law. Different offices face different conditions and have different requirements. Service managers and supervisors, including DDs and CPAs, and Regional, District, and Sector Counsel must develop mechanisms appropriate to the various contexts and priorities, keeping in mind that it is better to exercise discretion as early in process as possible once the factual record has been identified.8 In particular, in cases where it is clear that no statutory relief will be available at the immigration hearing and where detention will be mandatory, it best conserves the Service’s resources to make a decision early.
Enforcement and benefits personnel at all levels should understand that prosecutorial discretion exists and that it is appropriate and expected that the INS will exercise this authority in appropriate cases. DDs, CPAs, and other supervisory officials (such as District and
8 DDs, CPAs, and other INS personnel should also be open, however, to possible reconsideration of decisions (either for or against the exercise of discretion) based upon further development of the facts.
239

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 12 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 11

Sector Counsels) should encourage their personnel to bring potentially suitable cases for the favorable exercise of discretion to their attention for appropriate resolution. To assist in exercising their authority, DDs and CPAs may wish to convene a group to provide advice on difficult cases that have been identified as potential candidates for prosecutorial discretion.
It is also appropriate for DDs and CPAs to develop a list of “triggers” to help their personnel identify cases at an early stage that may be suitable for the exercise of prosecutorial discretion. These cases should then be reviewed at a supervisory level where a decision can be made as to whether to proceed in the ordinary course of business, to develop additional facts, or to recommend a favorable exercise of discretion. Such triggers could include the following facts (whether proven or alleged):
Lawful permanent residents; Aliens with a serious health condition; Juveniles; Elderly aliens; Adopted children of U.S. citizens; U.S. military veterans; Aliens with lengthy presence in United States (i.e., 10 years or more); or Aliens present in the United States since childhood.
Since workloads and the type of removable aliens encountered may vary significantly both within and between INS offices, this list of possible trigger factors for supervisory review is intended neither to be comprehensive nor mandatory in all situations. Nor is it intended to suggest that the presence or absence of “trigger” facts should itself determine whether prosecutorial discretion should be exercised, as compared to review of all the relevant factors as discussed elsewhere in these guidelines. Rather, development of trigger criteria is intended solely as a suggested means of facilitating identification of potential cases that may be suitable for prosecutorial review as early as possible in the process.
Documenting Decisions
When a DD or CPA decides to exercise prosecutorial discretion favorably, that decision should be clearly documented in the alien file, including the specific decision taken and its factual and legal basis. DDs and CPAs may also document decisions based on a specific set of facts not to exercise prosecutorial discretion favorably, but this is not required by this guidance.
The alien should also be informed in writing of a decision to exercise prosecutorial discretion favorably, such as not placing him or her in removal proceedings or not pursuing a case. This normally should be done by letter to the alien and/or his or her attorney of record, briefly stating the decision made and its consequences. It is not necessary to recite the facts of the case or the INS’ evaluation of the facts in such letters. Although the specifics of the letter

240

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 13 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 12

will vary depending on the circumstances of the case and the action taken, it must make it clear to the alien that exercising prosecutorial discretion does not confer any immigration status, ability to travel to the United States (unless the alien applies for and receives advance parole), immunity from future removal proceedings, or any enforceable right or benefit upon the alien. If, however, there is a potential benefit that is linked to the action (for example, the availability of employment authorization for beneficiaries of deferred action), it is appropriate to identify it.
The obligation to notify an individual is limited to situations in which a specific, identifiable decision to refrain from action is taken in a situation in which the alien normally would expect enforcement action to proceed. For example, it is not necessary to notify aliens that the INS has refrained from focusing investigative resources on them, but a specific decision not to proceed with removal proceedings against an alien who has come into INS custody should be communicated to the alien in writing. This guideline is not intended to replace existing standard procedures or forms for deferred action, voluntary return, voluntary departure, or other currently existing and standardized processes involving prosecutorial discretion.
Future Impact
An issue of particular complexity is the future effect of prosecutorial discretion decisions in later encounters with the alien. Unlike the criminal context, in which statutes of limitation and venue requirements often preclude one U.S. Attorney’s office from prosecuting an offense that another office has declined, immigration violations are continuing offenses that, as a general principle of immigration law, continue to make an alien legally removable regardless of a decision not to pursue removal on a previous occasion. An alien may come to the attention of the INS in the future through seeking admission or in other ways. An INS office should abide by a favorable prosecutorial decision taken by another office as a matter of INS policy, absent new facts or changed circumstances. However, if a removal proceeding is transferred from one INS district to another, the district assuming responsibility for the case is not bound by the charging district’s decision to proceed with an NTA, if the facts and circumstances at a later stage suggest that a favorable exercise of prosecutorial discretion is appropriate.
Service offices should review alien files for information on previous exercises of prosecutorial discretion at the earliest opportunity that is practicable and reasonable and take any such information into account. In particular, the office encountering the alien must carefully assess to what extent the relevant facts and circumstances are the same or have changed either procedurally or substantively (either with respect to later developments, or more detailed knowledge of past circumstances) from the basis for the original exercise of discretion. A decision by an INS office to take enforcement action against the subject of a previous documented exercise of favorable prosecutorial discretion should be memorialized with a memorandum to the file explaining the basis for the decision, unless the charging documents on their face show a material difference in facts and circumstances (such as a different ground of deportability).

241

Case 1:14-cv-00254 Document 38-16 Filed in TXSD on 12/24/14 Page 14 of 14

Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion

Page 13

Legal Liability and Enforceability
The question of liability may arise in the implementation of this memorandum. Some INS personnel have expressed concerns that, if they exercise prosecutorial discretion favorably, they may become subject to suit and personal liability for the possible consequences of that decision. We cannot promise INS officers that they will never be sued. However, we can assure our employees that Federal law shields INS employees who act in reasonable reliance upon properly promulgated agency guidance within the agency’s legal authority – such as this memorandum–from personal legal liability for those actions.
The principles set forth in this memorandum, and internal office procedures adopted hereto, are intended solely for the guidance of INS personnel in performing their duties. They are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Training and Implementation
Training on the implementation of this memorandum for DDs, CPAs, and Regional, District, and Sector Counsel will be conducted at the regional level. This training will include discussion of accountability and periodic feedback on implementation issues. In addition, following these regional sessions, separate training on prosecutorial discretion will be conducted at the district level for other staff, to be designated. The regions will report to the Office of Field Operations when this training has been completed.

242

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 1 of 10
EXHIBIT 17

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 2 of 10
243

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 3 of 10
244

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 4 of 10
245

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 5 of 10
246

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 6 of 10
247

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 7 of 10
248

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 8 of 10
249

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 9 of 10
250

Case 1:14-cv-00254 Document 38-17 Filed in TXSD on 12/24/14 Page 10 of 10
251

Case 1:14-cv-00254 Document 38-18 Filed in TXSD on 12/24/14 Page 1 of 2
EXHIBIT 18

Case 1:14-cv-00254 Document 38-18 Filed in TXSD on 12/24/14 Page 2 of 2
252

Case 1:14-cv-00254 Document 38-19 Filed in TXSD on 12/24/14 Page 1 of 4
EXHIBIT 19

Case 1:14-cv-00254 Document 38-19 Filed in TXSD on 12/24/14 Page 2 of 4
253

Case 1:14-cv-00254 Document 38-19 Filed in TXSD on 12/24/14 Page 3 of 4
254

Case 1:14-cv-00254 Document 38-19 Filed in TXSD on 12/24/14 Page 4 of 4


255

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 1 of 26
EXHIBIT 20

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 2 of 26
THE ECONOMIC EFFECTS OF ADMINISTRATIVE
ACTION ON IMMIGRATION
November 2014
256

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 3 of 26
Contents
Executive Summary....................................................................................................................................... 2 I. The Economic Effects of Administrative Action on Immigration ............................................................... 3
Effects on Population and the Labor Force............................................................................................... 4 Effects on Output per Worker .................................................................................................................. 5 Effects on Total Output ............................................................................................................................. 6 II. Effects on U.S.‐Born Worker Employment and Wages............................................................................. 9 Employment Effects .................................................................................................................................. 9 Wage Effects ............................................................................................................................................. 9 III. Effects of Higher Growth on the Federal Budget................................................................................... 12 Appendix: Detailed Methodology for GDP and Wage Estimates ............................................................... 13 Population............................................................................................................................................... 13 Labor Force ............................................................................................................................................. 16 Output per Worker ................................................................................................................................. 17 U.S.‐Born Worker Wages ........................................................................................................................ 20 References .................................................................................................................................................. 23
1 257

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 4 of 26
Executive Summary
This analysis examines the economic impact of the administrative actions on immigration announced by President Obama on November 20th, 2014. The analysis is based on the economic literature, including, wherever possible, the methods and studies that the Congressional Budget Office (CBO) employed in its analysis of the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) passed by the Senate in June 2013.
CEA’s analysis includes a range of estimates. The conservative lower bound of these estimates indicates that these administrative actions will:
 Raise the level of U.S. GDP by 0.4 percent after ten years, equivalent to an additional $90 billion in real GDP in 2024 (in today’s dollars). This would be the result of:
o An expansion in the size of the American labor force by nearly 150,000 workers over the next ten years, largely as a result of higher labor force participation; and
o An increase in the productivity of American workers, both because of increased labor market flexibility and reduced uncertainty for workers currently in the United States and because of increased innovation from high‐skilled workers.
 Have no impact on the likelihood of employment for U.S.‐born workers.
 Raise average wages for U.S.‐born workers by 0.3 percent in 2024, or $170 (in today’s dollars).
 Cut Federal deficits by $25 billion in 2024 due to the addition to real GDP growth over the next ten years—although the actual budgetary effects of the actions could vary.
CEA’s plausible upper‐bound projection, based on the more optimistic estimates in the economic literature, is that the actions would raise the level of U.S. GDP by 0.9 percent after ten years, equivalent to $210 billion in GDP in 2024 resulting in a $60 billion reduction in the deficit after a decade.
These estimated effects are significant but are a fraction of the economic benefits that would occur if these actions were superseded by Congressional action on commonsense immigration reform. CBO estimated that S. 744 would increase real GDP by 3.3 percent, or roughly $700 billion, in ten years and 5.4 percent, or about $1.4 trillion, in twenty years (CBO 2013b).
Note that all estimates of immigration policy changes on the economy are complex and difficult, especially in the long run (see, for example, the discussion in CBO 2013b). CEA’s estimates rely on a number of assumptions that are spelled out in detail in the Appendix and reflect a range of more conservative to less conservative scenarios.
2
258

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 5 of 26
I. The Economic Effects of Administrative Action on Immigration
CEA’s estimates of the economic impact of administrative action on immigration are based on the following set of actions included in the President’s announcement:
 Providing deferred action to low‐priority individuals with significant family ties. The Department of Homeland Security (DHS) will expand the existing Deferred Action for Childhood Arrivals program (DACA) which allows young people who came to the country before turning 16 years old who meet certain education guidelines, such as graduating from high school or attending college, to request temporary relief from removal (“deferred action”) and be eligible to obtain work authorization. DHS will also establish a similar process for parents of U.S. citizens or Lawful Permanent Residents (LPRs) who have been in the country for five years or more to request deferred action;
 Expanding immigration options for foreign entrepreneurs who have created American jobs or attracted significant investments. DHS will expand immigration options for foreign entrepreneurs who meet certain criteria to obtain either temporary status or LPR status if they are able to meet certain requirements such as creating jobs, attracting investment, and generating revenue in the United States;
 Extending on‐the‐job training for science, technology, engineering, and mathematics (STEM) graduates of U.S. universities through reforms to the existing Optional Practical Training (OPT) program. DHS will propose changes to expand and extend the OPT program and require stronger ties between OPT students and their colleges and universities following graduation;
 Providing work authorization to spouses of individuals with H‐1B status who are on the path to LPR status. DHS is finalizing new rules to give H‐4 dependent spouses of H‐1B workers access to work authorization as long as their H‐1B spouse has an approved green card application; and
 Providing portable work authorization for high‐skilled workers awaiting processing of LPR applications. Under the current system, employees with approved LPR applications often wait many years for an immigrant visa to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily.
Our calculations of the economic effects of these actions are based on estimates of the size of the eligible population for each action provided by DHS and by the Office of Management and Budget (OMB).
3
259

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 6 of 26

To estimate the effects of these policies, we begin with the following identity, which breaks up output (GDP) into several components:

∗

∗

∗

It is important to note that this identity reflects long‐run aggregate supply, while the level of total output in both the short and long run is determined by the interaction of aggregate supply and aggregate demand. However, because CEA’s estimates focus on the long‐run impact of these administrative actions, we assume, as is standard, that in the long run aggregate demand will match aggregate supply; in other words, we assume that, in the long run, the economy is not constrained by aggregate demand.

Alternatively, to calculate long‐run changes in GDP, the above identity can be rewritten as:

%∆

%∆

%∆

%∆

%∆

where POP is the working‐age population, LFPR is the labor force participation rate, and EMPR is the employment rate. Changes in immigration policy, generally speaking, are likely to have the strongest impacts on population, the labor force participation rate, and output per worker. We assume that immigration policy does not impact the employment (or unemployment) rate in the long run.
To assess long‐run changes in GDP associated with administrative action on immigration, CEA thus estimated the sum of changes, relative to current policy, in each of the following components: (a) the size of the working‐age population; (b) the labor force participation rate; and (c) output per worker. For each component, CEA calculated both an upper‐ and lower‐bound estimate based on ranges of parameters found in the academic literature. CEA’s estimates rely on a number of assumptions that may be only approximately valid. Consequently, the true economic impact of administrative action may ultimately be greater or less than CEA’s estimates. In this analysis, to be conservative we highlight the lower‐bound estimate. For detailed explanations on the methodology behind and assumptions underlying each component of our GDP calculations, see the Appendix.

Effects on Population and the Labor Force
Compared to current administrative policy, relatively few new immigrants (with some small exceptions) will be allowed into the United States under the administrative actions considered in CEA’s estimates. Thus, these actions’ effects on the size of the U.S. labor force will not be due to large expansions in the working‐age population.1 Instead, CEA estimates that these actions will affect the size of the labor force by increasing the labor force participation of people who would
1 This contrasts with S. 744, which according to CBO would increase the size of the U.S. working‐age population by 10.4 million in 2023, or 3.0 percent, relative to current law (CBO 2013a).
4
260

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 7 of 26

have been U.S. residents even in the absence of administrative action, primarily through providing work authorization for dependent spouses of H‐1B nonimmigrant visa holders, also known as H‐4 dependents (see Table 1). Based on academic studies of previous policy reforms that reduced uncertainty for undocumented immigrants, such as the 1986 Immigration Reform and Control Act (IRCA), CEA estimates that deferred action will not cause significant changes to the labor force participation of undocumented immigrants. Nevertheless, our upper‐bound estimate incorporates the finding in Pan (2012) of a small increase in female labor force participation following the implementation of IRCA.

Table 1: Estimated Changes to the U.S. Labor Force in 20242

Administrative action

Lower‐Bound Estimate

Expanding options for foreign entrepreneurs Extending OPT for STEM graduates
Work authorization for dependent spouses of H‐1B visa holders with approved LPR applications

+33,000 +10,000 +104,000

Portable work authorization for certain high‐skilled workers

0

Deferred action for low‐priority individuals

0

Total

+147,000

Upper‐Bound Estimate +53,000 +36,000 +167,000
0 +42,000 +297,000

Taken together, CEA conservatively estimates that administrative action on immigration will increase the size of the U.S. labor force in 2024 by approximately 147,000 workers, or 0.1 percent, relative to current administrative policy.

Effects on Output per Worker
CEA estimates that the largest impact of administrative action on output will come in the form of increases in output per worker—or, in other words, increases in productivity. Output per worker is a combination of several factors: (a) total factor productivity (the amount of output for a given capital and labor input); (b) hours supplied per worker; (c) the skill composition of the workforce; and (d) capital intensity.3
The administrative actions considered by CEA for this analysis are likely to lead to increases in productivity for several reasons. First, a large body of academic work has found that increases in high‐skilled immigration lead to increases in productivity, both directly through increased innovation and indirectly through positive spillovers on nonimmigrant workers (Hunt and Gauthier‐Loiselle 2010; Peri, Shih, and Sparber 2014). Such increases in total factor productivity would allow the U.S. economy to produce more for any given combination of capital and labor stock.
2 In this table, as throughout this analysis, components may not sum to totals due to rounding. 3 Productivity is generally reported as output per hour and thus is not affected by additional hours of work. For presentational simplicity, we aggregate additional output per hour and additional hours into a concept that we refer to as “productivity,” defined as output per worker.
5
261

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 8 of 26
Second, the provision of work authorization to undocumented workers receiving deferred action is likely to increase the total productivity of the U.S. labor force by allowing for greater occupational mobility. As undocumented workers move to the legal economy, they will be able to work in occupations that better fit their particular level of skills, instead of working in occupations or industries where the likelihood of detection is lowest. Barcellos (2011), for example, finds that the 1986 IRCA, which provided work authorization for certain undocumented immigrants, led to increased occupational mobility, particularly for better‐educated immigrants. In the wider academic literature, occupational reallocation and task specialization among both immigrant and native populations have been shown to be leading causes for increases in productivity associated with increases in low‐skilled immigration (Peri and Sparber 2009). Because specialization allows for greater productivity among both immigrant and nonimmigrant workers, this pathway for increased output would also be likely to lead, in the long run, to increases in wages for all workers—immigrants and natives.
Finally, low‐priority individuals eligible for deferred action, faced with less uncertainty about a future in the United States, may be more likely to make key investments in themselves and in their communities (Bratsberg et al. 2002). Once provided with certainty about their status, these individuals may be more likely to start a new business or to pursue additional education or vocational training, investments which they may not have made if they were unsure if they could remain in the United States and which may have spillovers even to nonimmigrants.4
CEA conservatively estimates that administrative action on immigration will increase output per worker by 0.3 percent in the long run. Of this increase, 0.2 percent is due to increases in productivity associated with actions focused on high‐skilled immigrants, while 0.1 percent can be attributed to reduced uncertainty and increased occupational mobility associated with the expansion of deferred action for low‐priority individuals. This is slightly less than half of the productivity effect that CBO estimated for S. 744.
Effects on Total Output
The combination of these estimated effects on the size of the labor force and on output per worker imply that, relative to current administrative policy, the announced administrative actions considered by CEA will increase output by a total of 0.4 percent in ten years. Using CBO’s baseline projections for real GDP over the next ten years (CBO 2014c), this implies an increase of about $90 billion in GDP in 2024. These estimates represent CEA’s conservative lower‐bound estimates of the impact of the announced actions on GDP. The upper‐ and lower‐bound estimates are summarized in Table 2.
4 In addition to the potential that this increased certainty has on human capital investment, immigrants may be more likely to increase large‐scale durables purchases, such as a new home. Furthermore, increases in income associated with increased productivity are expected to increase aggregate demand. Our estimates assume that any such short‐ run increase in aggregate demand due to reductions in uncertainty will ultimately be matched by aggregate supply in the long run.
6
262

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 9 of 26

Lower‐Bound Estimate
CEA’s lower‐bound estimate for the impact of administrative action on immigration on long‐run output is an increase of 0.4 percent relative to current administrative policy. Of this, 0.3 percent is attributable to administrative actions focused on encouraging high‐skilled immigration, and 0.1 percent is attributable to deferred action for low‐priority individuals.

The 0.3 percent increase in GDP associated with actions focused on high‐skilled immigration can be decomposed as follows: 0.1 percent due to changes in the labor force and 0.2 percent due to changes in productivity. The 0.1 percent increase in GDP associated with deferred action is due entirely to changes in productivity.

Table 2: Summary of Estimated Changes in Real Output in Ten Years (Percent)

Lower‐Bound Estimate

Upper‐Bound Estimate

CBO estimate of S. 744

Population: High‐skilled immigration Population: Deferred action

+0.02

+0.05

+3.0

0

0

Labor Force: High‐skilled immigration Labor Force: Deferred action

+0.09

+0.16

+0.5

0

+0.03

Output per Worker: High‐skilled immigration

+0.15

+0.47

+0.7

Output per Worker: Deferred action

+0.14

+0.23

Other (including changes in capital intensity)

‐0.9

Total

+0.4

+0.9

+3.3

Change in Real GDP ($billion)

+90

+210

+700

Note: In CEA’s estimates, changes in capital intensity and other factors are incorporated into estimates of effects on output per worker.

Upper‐Bound Estimate
CEA’s upper‐bound estimate for the impact of administrative action on immigration on long‐run output is an increase of 0.9 percent relative to current administrative policy. Of this, 0.7 percent is attributable to administrative actions focused on encouraging high‐skilled immigration, and 0.3 percent is attributable to deferred action for low‐priority individuals (note that the components do not sum to the total because of rounding).
The 0.7 percent increase in GDP associated with actions focused on high‐skilled immigration can be decomposed as follows: 0.1 percent due to changes in population, 0.2 percent due to changes in the labor force, and 0.5 percent due to changes in productivity. The 0.3 percent increase in GDP associated with deferred action is mostly due to changes in productivity (0.23 percent), but we also allow for increases in female labor force participation in this estimate (0.03 percent).
Comparison with S. 744
CBO’s estimate for S. 744, which totaled 3.3 percent additional GDP after a decade (CBO 2013b), is substantially higher than our estimates for the announced administrative actions. The largest difference between the estimates of S. 744 and the administrative actions we analyze is that CBO
7
263

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 10 of 26 estimated that S. 744 would result in an additional 10.4 million people in the U.S. working‐age population after ten years, equivalent to a 3.0 percent increase in population relative to current law. By contrast, our estimates imply at most a 0.1 percent increase in the population. In addition, CBO’s estimated increase in the size of the labor force in ten years (0.5 percent) primarily reflects the increases in population resulting from S. 744, whereas CEA calculates that the announced administrative actions affect the size of the labor force mostly by increasing the labor force participation of people who would have been U.S. residents even in the absence of the actions. CBO also calculates larger increases in productivity as a result of S. 744 than CEA does in its lower‐ bound estimate for administrative action, principally due to their larger forecasts for population change.
8 264

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 11 of 26
II. Effects on U.S.‐Born Worker Employment and Wages
In this section, we examine the effects of administrative action on immigration on the employment and wages of U.S.‐born workers.
Employment Effects
Theory suggests that these policy changes would not have an effect on the long‐run employment (or unemployment) rate, the focus of CEA’s analysis, as the additional demand associated with the expanded economy would offset the additional supply of workers.
Consistent with the theory, much of the academic literature suggests that changes in immigration policy have no effect on the likelihood of employment for native workers. Card (1990), for example, examines the effect of a large influx of lower‐skilled immigrants—the arrival of 125,000 Cuban immigrants in the 1980 Mariel boatlift, which increased the labor force in Miami by 7 percent—on the labor market opportunities of native workers nationwide. The author finds no effect on the likelihood of employment of lower‐skilled, non‐Cuban workers. Ottaviano and Peri (2012) and Peri and Sparber (2009) also report no evidence of crowding out of native employment by immigration. In a more recent paper, Peri, Shih, and Sparber (2014) find that increases in high‐skilled immigration have no effect on the likelihood of unemployment for either college‐educated or non‐college‐educated natives.
Consequently, we estimate that these actions will have no effect on the likelihood of employment of native workers in the long run.
Wage Effects
Although we hypothesize, based on theory and consistent with the academic evidence, that administrative action will have no long‐run effect on the quantity of jobs held by native workers, our analysis of changes in output per worker implies that these actions will increase the quality of native‐worker jobs and thus these workers’ wages. As we discuss in Section I, academic research has found that increases in high‐skilled immigration lead to both increases in innovation and positive spillovers on the productivity of native workers due to complementarities between their skills and those of immigrants (Hunt and Gauthier‐Loiselle 2010; Peri, Shih, and Sparber 2014). Meanwhile, better task specialization and occupational reallocation as a result of work authorization for undocumented workers granted deferred action would allow for greater productivity—and thus higher wages—for native workers as well (Peri and Sparber 2009).
Empirical research has generally confirmed these effects.5 Card (1990) finds that within the Miami labor market, average wages for natives rose by 0.6 percent on the whole following the
5 Research by Borjas, Freeman, and Katz (1997) reports negative implications of immigration on the wages of the least‐skilled U.S. workers. We note that their findings, based on a model calibration, do not match the empirical evidence from actual changes in immigration policy. Moreover, their model ignores considerations such as the
9
265

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 12 of 26
Mariel boatlift. Even the least‐educated workers in Miami experienced small, positive wage gains post‐Mariel. Peri, Shih, and Sparber (2014) find that increases in high‐skilled immigration are associated with significant increases in wages for both college‐educated native workers and non‐ college‐educated (high school graduate) native workers.6
Parameters from the literature allow us to estimate wage gains for native workers separately for actions focused on encouraging high‐skilled immigration and for deferred action for low‐priority individuals. As with our GDP estimates, these wage estimates rely on a number of assumptions (see the Appendix for a full discussion of the methodology), so that the true increase in native workers’ wages associated with administrative actions may ultimately be larger or smaller than our estimates.
High‐Skilled Immigration
Based on parameters from Peri, Shih, and Sparber (2014), CEA calculates that administrative actions focused on encouraging high‐skilled immigration would raise the real annual earnings of native college graduates by 0.4 percent by 2024, or about $300 (in 2014 dollars). Native high‐ school graduates would see smaller, though still positive, wage gains from the administrative actions encouraging high‐skilled immigration of 0.3 percent, or approximately $110. Following Peri, Shih, and Sparber (2014), CEA estimates that administrative actions focused on encouraging high‐skilled immigration will have essentially no impact on the wages of native workers who have not completed high school. Combining the impacts on college‐educated workers, high‐school graduate workers, and those workers with less than a high school degree, based on their shares in the population, we estimate that the administrative actions encouraging high‐skilled immigration will increase native workers’ wages by 0.3 percent, or approximately $130 (in today’s dollars).
Deferred Action
Using estimates from Chassamboulli and Peri (2014), CEA estimates that deferred action for low‐ priority individuals would increase the wages of all native workers by 0.1 percent on average by 2024. In today’s dollars, this translates into an additional average wage gain for U.S.‐born workers of $40. The estimates in Chassamboulli and Peri (2014) do not permit a breakdown of the average wages effects by educational attainment.
Total Impact on U.S.‐Born Worker Wages
Table 3 reports CEA’s estimates for the increases in native worker wages based on the combination of the effects of the administrative actions on high‐skilled immigration and on deferred action.
positive spillovers from the potential complementarity between immigrants and natives and the changes in capital and technology that more recent research have found to be important. 6 Friedberg (2001) and Hunt (1992) find broadly similar results in studies examining the effects of immigration on native‐worker wages in other countries.
10
266

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 13 of 26

Table 3: Summary of Estimated Changes for Native Worker Wages (Percent)

Group and educational attainment

High‐skilled immigration

Deferred action

Native workers, less than high school Native workers, high school Native workers, bachelor’s or higher

0

‐

+0.27

‐

+0.37

‐

Total

+0.3

+0.1

Change in 2024 annual earnings (2014 dollars)

$130

$40

Total ‐ ‐ ‐
+0.3 $170

Comparison with S. 744
CBO (2013b) projected that S. 744 would raise average wages for everyone, U.S.‐born workers and immigrant workers, starting in 2025. Specifically, CBO estimated that when wage changes for native‐born workers were averaged together with the new immigrants’ wages, which are on average lower than native wages, the result would be a decrease in average wages in the United States by 0.1 percent after 10 years and an increase of 0.5 percent after 20 years. CBO emphasized that this did not imply that wages declined for native‐born workers: “[These] figures represent differences between the averages for all U.S. residents under [S. 744]…and the averages under current law for people who would be residents in the absence of [S. 744]… [T]he additional people who would become residents under the law would earn lower wages, on average, than other residents, which would pull down the average wage.” As a result, CBO’s results are not directly comparable to CEA’s estimates of the wage increases for native workers.

11 267

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 14 of 26
III. Effects of Higher Growth on the Federal Budget
In general, stronger economic growth reduces the deficit by both increasing revenues and reducing outlays (largely due to the interest savings from a lower path for the Federal debt). CEA uses standard analysis to estimate the impact that the higher growth associated with the immigration administrative actions would have on the budget. It is important to emphasize that this is not the same as a full budget scoring of the administrative actions.
For the purposes of this analysis, we assume that the growth effects of administrative action will be spread out evenly between 2015 and 2024 and use CBO’s estimates of how economic growth will affect the Federal budget in 2024 (CBO 2014a). Using our conservative lower‐bound estimate for the impact of administrative action on immigration on GDP, or 0.4 percent, CEA estimates that the additional growth in GDP caused by administrative action on immigration would reduce the Federal deficit in 2024 by $25 billion. Our upper‐bound estimate of 0.9 percent additional growth in GDP would yield a net deficit reduction of $60 billion in 2024.
The actual budget effect would depend on other features of the administrative actions as well. For example, to the degree that the administrative actions increase tax compliance for undocumented workers, they would raise additional revenue above and beyond the impact they would have on measured GDP, since undocumented workers are already contributing to GDP. CEA’s analysis focused solely on the economic impacts of immigration actions and the impact of the higher growth on the budget and did not systematically estimate these other factors that would feed into a full budget scoring of the immigration actions.
While the economic growth resulting from administrative action on immigration is estimated to reduce deficits, comprehensive immigration reform would have a larger impact on the U.S. fiscal outlook. CBO noted that estimated changes in productivity, wages, and investment from the Senate bill would likely reduce the deficit by an additional $300 billion between 2024 and 2033 (CBO 2013b). This reduction due to economic growth would be in addition to the approximately $850 billion in deficit reduction from 2014 to 2033 that CBO estimated in their full budget scoring of the bill’s provisions (CBO 2013a).
12 268

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 15 of 26

Appendix: Detailed Methodology for GDP and Wage Estimates

In this Appendix, we offer further details on the methodology and assumptions underlying the GDP calculations summarized in Section I and the wage calculations summarized in Section II.

Recall our main framework for the changes in output associated with administrative action on immigration:

%∆

%∆

%∆

%∆

%∆

We characterize the changes in output associated with the announced administrative actions as changes in the working‐age population, plus changes in the labor force participation rate, plus changes in the productivity of existing labor.7 Within this section, we analyze each of these components separately for administrative actions centered on high‐skilled immigration and for deferred action for low‐priority individuals, offering a lower‐bound estimate and an upper‐bound estimate of the effects for each set of actions. Table 4 provides a detailed list of the assumptions used by CEA in constructing each of these estimates.

Population
As noted above, compared to current administrative policy, relatively few additional immigrants will be allowed into the United States under the administrative actions considered in CEA’s estimates, with some small exceptions. CEA thus estimates that the population changes associated with administrative actions will be very small. We estimate that the increase in the U.S. working‐age population in 2024 due to immigration actions is between 0.02 percent and 0.05 percent, and these changes are entirely the result of actions focused on high‐skilled immigration (expanded options for entrepreneurs and extended OPT for STEM graduates). Table 5 summarizes our estimates for changes in the working‐age population in ten years.
High‐Skilled Immigration
DHS estimates that approximately 10,000 individuals will obtain new entrepreneurial temporary status or an immigrant visa each year, for a total of 100,000 until 2024. Not all of these will be allocated to individuals outside of the United States, and over a ten‐year period there is also likely to be some immigrant outflow. To account for these two factors, we consider typical emigration rates from the Census Bureau (2012) and mortality rates from the Centers for Disease Control (CDC 2010). We further assume a conservative range of displacement rates, that is, the share of visas issued that do not add to the population because they displace visas held by workers already in the United States. Together, CEA assumes combined outflow and displacement rates ranging between 20 and 50 percent. Our lower‐ and upper‐bound calculations, therefore, suggest that the 100,000 individuals who obtain either a new entrepreneurial temporary status or immigrant visa over ten years will increase the U.S. population by between 50,000 and 80,000 in ten years.

7 Recall that we assume that the long‐run employment rate will not change as a result of these immigration actions. 13 269

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 16 of 26

Table 4: Summary of Key Assumptions Used in CEA’s GDP Estimates

Lower‐ Upper‐

Bound Bound

Estimate Estimate Source

GDP

2014 GDP (in billions)

17,336 17,336 CBO (2014c)

2024 projected real GDP (in billions of 2014 dollars)

22,208 22,208 CBO (2014c)

Population

2014 working‐age population (in millions)

248

2024 estimated working‐age population (in millions)

274

Immigrant outflow and displacement rate

0.50

Share working‐age population in total population

0.78

Share of H‐1B holders who are married*

0.73

Trend increase in STEM enrollment due to policy

0

change

Share of STEM PhDs who would remain in United States 0.78

Share of STEM MAs who would remain in United States 0.46

248 CBO (2014c) 274 CBO (2014c) 0.20 Based on CDC
(2010)/Census (2012) 0.78 CBO (2014c)/Census 0.73 DHS 0.11 Based on Kato and
Sparber (2013) 0.88 Based on NSCG 0.52 Based on NSCG

Labor Force

2014 labor force (in millions)

156

2024 estimated labor force (in millions)

167

2014 employment (in millions)

146

2024 projected employment (in millions)

158

Labor force participation rate, all foreign‐born residents 0.66

Labor force participation rate, foreign‐born females

0.55

Labor force participation rate, foreign‐born males

0.79

Foreign‐born population (in millions)

41

Net annual immigration rate per 1,000 U.S. population

3.8

Share of H‐1B spouses with own H‐1B work

0.23

authorization*

Share of H‐1B visa holders who are male*

0.76

156 CBO (2014c) 167 CBO (2014c) 146 CBO (2014c) 158 CBO (2014c) 0.66 BLS (2014) 0.55 BLS (2014) 0.79 BLS (2014) 41 2013 ACS 3.8 CBO (2014b) 0.23 DHS
0.76 DHS

Output per Worker

Average annual wage, all U.S. workers (in dollars)

44,321 44,321 SSA (2013)

Average annual wage, undocumented workers (in

22,029 22,029 Oakford (2014)

dollars)

Average annual wage, high‐skilled immigrants (in

99,800 99,800 Based on NSCG

dollars)

Share of undocumented immigrants who are female

‐

0.44 Passel (2005)

Labor force participation rate, undocumented females

‐

0.56 Passel (2005)

Labor force participation rate, advanced‐degree holders >0.95

>0.95 Based on NSCG

*Share for H‐1B visa holders adjusting to LPR status. In its analysis, CEA assumes that these rates are the same for

the population of all H‐1B visa holders.

14 270

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 17 of 26

Table 5: Estimated Changes to the Working‐Age Population in 2024

Administrative action

Lower‐Bound Estimate

Expanding options for foreign entrepreneurs Extending OPT for STEM graduates

+39,000 +17,000

Work authorization for dependent spouses of H‐1B visa holders with

0

approved LPR applications

Portable work authorization for certain high‐skilled workers

0

Deferred action for low‐priority individuals

0

Total

+56,000

Upper‐Bound Estimate +62,000 +62,000
0
0 0 +124,000

However, this number represents an increase in the total U.S. population, while our GDP identity requires information on the working‐age population. We, therefore, scale the total population numbers by the 2014 working‐age population share of total population of approximately 78 percent (calculated using data from CBO and Census), leaving a working‐age population increase due to the 100,000 entrepreneurial visas of around 39,000 to 62,000.

The number of temporary students who graduate with U.S. master’s and doctoral degrees who remain in the country to continue training in their course of study and who are likely to remain in the United States in 2024 under current policy is computed based on the staying rates in Tables 3 and 5 of Finn (2012) and linearly‐projected degrees earned based on National Science Foundation (NSF) data. Some assumptions are made concerning the effect of the change in policy. Based on the National Survey of College Graduates (NSCG), the stay rates of master’s graduates are computed to be 59 percent of those of doctoral graduates. Simulation of successive cohorts graduating provides an estimate of the additional number of STEM graduates in the U.S. in 2024 for our lower‐bound estimate. Our upper‐bound estimate also allows for increases in foreign enrollment in U.S. advanced‐degree programs, as well as an increase in the likelihood that any given graduate will stay in the United States following graduation, in response to the change in policy. We use this information, in combination with typical marriage rates for high‐ skilled immigrants (73 percent) to reach our final estimates for increases in working‐age population resulting from administrative action on STEM OPT extension of between 17,000 and 62,000.

The total estimated increase in working‐age population due to new entrepreneurial visas and extension of STEM OPT is between 56,000 and 124,000 over ten years. CBO currently projects 2024 working‐age population at 274 million, a 10.5 percent increase over the current 2014 working‐age population of 248 million. CEA therefore estimates that this additional immigration would increase the working‐age population of the United States in 2024 by between 0.02 percent and 0.05 percent relative to current administrative policy.

15 271

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 18 of 26
Deferred Action
Deferred action would change the status of individuals already in the United States. For this reason, we do not estimate changes in the U.S. working‐age population associated with these actions.
Labor Force
Most of the administrative actions considered by CEA in its estimates will change the status of individuals already present and/or working in the United States. Therefore, we estimate changes in the size of the labor force to be relatively small, particularly in comparison to the effects of S. 744, the bipartisan Senate immigration reform bill (CBO 2013a). Our analysis estimates that increases in the U.S. labor force associated with administrative action on immigration are between 0.09 percent and 0.19 percent. Table 1 summarizes CEA’s estimates of long‐run changes in the size of the labor force.
High‐Skilled Immigration
Though the changes in the labor force may be small, they are still positive, as new entrepreneurs obtaining a temporary or permanent status, extended stays for STEM graduates, and work authorization for H‐4 dependents all have implications for the size of the labor force. We rely on several key assumptions in calculating the labor force implications of actions designed to encourage high‐skilled immigration (see Table 4).
Of the 39,000 to 62,000 increase in working‐age population resulting from the 100,000 new entrepreneurial temporary status or permanent visas over ten years, we calculate that approximately 86 percent will contribute to increases in the labor force. Under the new policy, spouses of these individuals will also be eligible for work authorization. Based on DHS estimates of the share of married high‐skilled visa holders (73 percent), we decompose the increase in working‐age population into entrepreneurs and their spouses. Although entrepreneurs will all be incorporated into the labor force, spouses may opt not to participate. We thus discount the increase in working‐age spousal population by the BLS (2014) estimate for the foreign‐born population’s labor force participation rate of 66 percent. In total, our estimates imply an increase in the U.S. labor force due to the 100,000 new entrepreneurial visas of between 33,000 and 53,000 in ten years.
Following directly from the estimated increases in working‐age population (excluding spouses), we note that labor force participation rates of STEM graduates are very high (above 95 percent), as calculated from the NSCG. Increases in the U.S. labor force due to STEM OPT extension are thus calculated to be between 10,000 and 36,000 in ten years.
DHS estimates that 124,600 H‐4 dependent spouses are eligible for new work authorization under the new policy in the first year. An additional 35,900 are estimated to be eligible on an annual basis thereafter. The total increase in H‐4 dependent visa work authorization over ten years is thus 447,700. Once again, applying our attrition and displacement rates suggests take‐ up of between 224,000 and 358,000 in ten years. Not all of these H‐4 dependents require work
16
272

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 19 of 26
authorization from their principal visa holder spouses. In fact, DHS estimates that roughly 23 percent of H‐1B spouses have their own visa work authorization, leaving between 172,000 and 276,000 spouses newly eligible for work authorization. Seventy‐six percent of H‐1B primary visa holders are male, according to DHS. Based on estimates from BLS (2014), their wives enter the labor force approximately 55 percent of the time. The male spouses of the remaining 24 percent of female primary visa holders enter the labor force at a rate of 79 percent (BLS 2014). Altogether, we estimate that over ten years offering work authorization to H‐4 dependent visa holders will increase the labor force by between 104,000 and 167,000.
The total estimated increase in the U.S. labor force due to new entrepreneurial temporary status or permanent visas, extension of STEM OPT, and work authorization for H‐4 dependents is between 147,000 and 255,000 over ten years. CBO currently projects that the U.S. labor force will be 167 million in 2024, a 7.1 percent increase over the current 2014 labor force of 156 million. The administrative actions encouraging high‐skilled immigration would therefore increase the U.S. labor force in 2024 by between 0.09 percent and 0.16 percent relative to current administrative policy.
Deferred Action
Parallel to our discussion about population changes, deferred action for certain low‐priority undocumented immigrants would provide temporary relief for millions of individuals. Based on the academic literature, CEA does not estimate large changes in the labor force as a result of this component of the new actions on immigration. In fact, research on the 1986 IRCA, which, among other measures, provided work authorization for many undocumented workers, found little evidence of significant changes in labor force participation or employment status. Therefore, in our lower‐bound estimate, we assume no impact of deferred action on labor force participation. However, recent research by Pan (2012) suggests that the labor force participation of female undocumented immigrants covered by the 1986 IRCA increased by 4 percentage points following the law’s implementation. We rely on this statistic for our upper‐bound calculation of the impact of deferred action on the labor force participation of undocumented immigrants.
To calculate the increase in female labor force participation associated with deferred action, we assume application and approval rates consistent with DACA.8 A Pew Hispanic Center Report estimates that roughly 44 percent of the undocumented population are female (Passel 2005). Similarly, about 56 percent of female undocumented workers participate in the labor force. Relying on Pan’s (2012) estimate, a 60 percent labor force participation rate increases the U.S. labor force by approximately 42,000 workers, or 0.03 percent.
Output per Worker
In contrast with the relatively small estimated effects of administrative action on immigration on changes in population and changes in the labor force, we estimate the announced actions to have the largest impacts on output per worker. For our analysis, we decompose output per worker
8 Importantly, though, this assumption may only be approximately valid, as the population of individuals potentially eligible for deferred action under these actions is different from those eligible under DACA.
17
273

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 20 of 26
into four components: (1) total factor productivity; (2) hours supplied per worker; (3) the skill composition of the labor force; and (4) capital intensity. CEA estimates that increases in output per worker associated with immigration actions are between 0.29 percent and 0.70 percent, or around 70 percent of the total estimated effect.
High‐Skilled Immigration
A body of academic research conducted over the past ten years has found that high‐skilled immigration has positive effects on innovation (as measured by patenting) and on total factor productivity. Due to increased flexibility in the overall labor market, wages may increase, which in turn may increase labor supply (or hours per worker). Finally, because the main changes in the labor force that we document are due to high‐skilled labor, our estimates reflect increases in the skill intensity of work. If capital does not fully adjust to meet the larger labor force, we may see decreases in capital intensity.
We rely on estimates from Peri (2012) to consider the impact of immigration on output per worker. Across 10 regression specifications, Peri (2012) finds that immigration is positively associated with total factor productivity. We use the minimum (0.61) and the maximum (1.37) of these estimated elasticities in our lower and upper bounds (see Table 6 for details on the elasticities used). In other words, a one percent increase in the foreign‐born employment share increases total factor productivity by between 0.61 percent and 1.37 percent. Our estimated increase in the foreign‐born share of total employment in ten years due to administrative action encouraging high‐skilled immigration ranges from 0.08 percent (in our lower‐bound estimate) to 0.13 percent (in our upper‐bound estimate).9 Therefore, increases in the foreign‐born employment share resulting from administrative action on immigration translate into approximately a 0.05 percent to 0.18 percent increase in total factor productivity.10
9 We calculate the foreign‐born employment share as follows: CBO (2014c) reports total employment of 146 million in 2014 and a forecasted 158 million in 2024. The 2013 American Community Survey reports that the foreign‐born population was about 41 million. We estimate the foreign‐born population in 2024 using CBO’s net immigration rate of 3.8 per 1,000 in the U.S. population (see CBO 2014b). This corresponds to a net inflow of approximately 12 million foreign‐born individuals by 2024, for a total of 54 million. As elsewhere in this analysis, we scale these total population numbers down to working‐age population (78 percent) and then by the BLS (2014) estimate of the foreign‐born labor force participation rate (66 percent). Taken together, the foreign‐born employment share in 2014 is 14.6 percent and estimated to be 17.5 percent in 2024 in the absence of administrative action on immigration. The increase in the foreign‐born labor force, as presented in Table 1, therefore increases the foreign‐born employment share by between 0.08 percent and 0.13 percent, relative to current administrative policy. 10 To examine the robustness of this estimate, CEA also used an alternative methodology, based on research by Hunt and Gauthier‐Loiselle (2010), to calculate the total factor productivity gains from high‐skilled immigration. Both methods yield roughly similar results.
18
274

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 21 of 26

Table 6: Summary of Key Elasticities Used in CEA's Estimates

Lower‐ Upper‐

Bound Bound

Estimate Estimate Source

Output per Worker

Total factor productivity

0.61

1.37 Peri (2012)

Hours per worker

0.09

0.61 Peri (2012)

Capital intensity

‐0.22

0.27 Peri (2012)

Wage effects of 1986 IRCA

6.00

10.00 Kossoudji and Cobb‐Clark (2002)

We follow the same logic to calculate increases in hours per worker associated with high‐skilled immigration. Peri’s (2012) estimates range from 0.09 to 0.61, suggesting that a one percent increase in the foreign‐born employment share increases average hours worked by between 0.09 percent and 0.61 percent. Given the estimated increases in the foreign‐born employment share due to administrative action, hours per worker are estimated to increase by between 0.01 percent and 0.08 percent.

As immigration is typically unskilled‐labor intensive (i.e., most immigrants to the United States are lower‐skilled than the average native worker), Peri (2012) finds that immigration is negatively associated with the skill intensity of the labor force. This is not the case with the current set of administrative actions, since, as Table 1 notes, the bulk of labor force increases are due to the administrative actions encouraging high‐skilled immigration. For this reason, we take a different approach to understanding the impact of high‐skilled immigration on the skill composition of the labor force. Our approach utilizes information on the average wage in the United States from the Social Security Administration ($44,321 in 2012) and the average wage calculated from the NSCG for workers in STEM occupations who hold a visa ($99,800 in 2010) to calculate the skill intensity of work based on wages.11 We find a gain of between 0.11 percent and 0.17 percent, relative to current administrative policy.

Finally, though the effects are typically statistically insignificant, we also rely on Peri’s (2012) work to consider that the capital stock may not fully adjust in response to the increase in labor. If this is the case, we may see a decrease in capital intensity with immigration. The estimated elasticities in Peri (2012) range from ‐0.22 to 0.27, suggesting that a one percent increase in the foreign‐ born employment share may decrease capital intensity by 0.22 percent or increase capital intensity by 0.27 percent. Again, these estimates are not statistically significant. Nevertheless, given the computed increase in the foreign‐born employment share, we estimate changes in capital intensity ranging from ‐0.02 percent to 0.04 percent.

Summing these calculated effects offers an estimate of the total impact of high‐skilled immigration on output per worker. Our lower estimate, which incorporates slowly adjusting capital, indicates that administrative action on immigration would increase output per worker by at least 0.15 percent, while our upper‐bound estimate reaches 0.47 percent.

11 In our upper‐bound estimate, we also use average annual wage information calculated by Oakford (2014) for undocumented workers ($22,029).
19
275

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 22 of 26
Deferred Action
Unlike the actions encouraging high‐skilled immigration, there is no new immigration proposed as part of deferred action for low‐priority undocumented immigrants. For this reason, we cannot use the estimated elasticities in Peri (2012) to calculate the impact of deferred action on output per worker. However, we know that alongside the productivity‐enhancing benefits of high‐skilled immigration, lower‐skilled immigration allows workers to reallocate to better‐matched and higher‐paying positions. We also know that this job reallocation and task specialization has additional benefits for native workers in terms of increased productivity and wages (Peri and Sparber 2009).
We rely on work by Kossoudji and Cobb‐Clark (2002) that documents an increase in wages for undocumented workers who were covered by the provisions of the 1986 IRCA. The authors report that workers gaining legal permanent status saw wage increases of 6 percent relative to a comparison group from the National Longitudinal Survey of Youth (NLSY). We use this estimate in our lower bound. It captures all of the components of output per worker in the worker’s wage. For instance, research by Peri and Sparber (2009) finds increases in total factor productivity due to task specialization with low‐skilled immigration. Barcellos (2011) documents significant occupational mobility for workers changing status under IRCA, which offers evidence that the task reallocation impact is not strictly from new immigration. Kossoudji and Cobb‐Clark (2002) also report an additional 4 percent increase in wages due to observable characteristics of immigrants covered by the law. They note that this is consistent with increases in investment in human capital associated with reductions in uncertainty about legal status. We therefore consider a 10 percent increase in wages for the workers granted temporary relief through deferred action in our upper‐bound estimates.
We calculate the total increase in output per worker associated with these wage gains based on a calculation in Oakford (2014) for the average wage for undocumented workers ($22,029). When combined with the estimated wage gains from Kossoudji and Cobb‐Clark (2002), this translates into a total increase in labor income for undocumented workers of between $3.1 billion and $5.2 billion. Over ten years, these labor income increases amount to between 0.14 percent and 0.23 percent of GDP.
U.S.‐Born Worker Wages
The increase in productivity of the American workforce that we estimate in response to the announced actions on immigration has positive implications for wages for immigrants and native workers alike. In this section, we focus on the wage implications of administrative action on immigration for native workers alone. Given average annual earnings for all workers of $44,321 and average annual earnings for foreign‐born workers (both undocumented and legal immigrants) of $43,864, this suggests that the average native worker earns higher wages than the average immigrant worker. In fact, we calculate an average annual wage of $46,185 for native workers. Therefore, increases in native wages may in fact be greater, in dollar terms, than increases for all workers. As with our GDP calculations, we consider the impact on native wages
20
276

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 23 of 26

of the administrative actions encouraging high‐skilled immigration and of deferred action separately.

Table 7: Summary of Estimates Used in Wage Calculations

Group

Mean annual earnings (2014)

Foreign‐born workers

$43,864

Native workers

$46,185

Native college‐educated workers

$70,242

Native non‐college‐educated workers

$33,689

Native high school graduates

$35,209

Note: All estimates from 2014 Current Population Survey March supplement.

High‐Skilled Immigration
Peri, Shih, and Sparber (2014) document an increase in native workers’ wages in response to high‐skilled immigration. Specifically, a one percentage point increase in the foreign‐born STEM employment share increases the growth rate of college‐educated native workers’ wages by a lower‐bound estimate of 5.6 percentage points. The authors also report increases in the growth of wages for native‐born high school graduates of around 4.1 percentage points in response to foreign‐born STEM immigration of one percentage point. Though the point estimates are positive, there is no statistically significant impact of high‐skilled immigration on the wages of native high school dropouts.
Using our estimated actual increase in the foreign‐born employment share (see footnote 9), we calculate an increase in native‐born college‐educated workers’ wage growth over ten years of 0.43 percentage point and an increase in high school graduate workers’ wage growth over ten years of 0.31 percentage points. Average wages for native‐born college graduates and native‐ born high school graduates from the 2014 Current Population Survey (CPS) March supplement are $70,242 and $35,209, respectively. In combination with real wage growth projections for 2024 from CBO (2014c),12 we calculate wage increases for native‐born college graduates of around $300 and wage increases for high school graduates of around $110, relative to current administrative policy. This amounts to a 0.37 percent increase in wages for native college‐ graduates and a 0.27 percent increase in wages for high school graduates over the ten‐year period.
Deferred Action
As we have previously mentioned, the increased flexibility in the labor market resulting from the President’s actions on immigration will allow all workers to specialize in the jobs best suited for their abilities, increasing productivity and wages. In fact, Chassamboulli and Peri (2014) consider a model with legal migration, unauthorized migration, and a native population and simulate reductions in the unauthorized population as a result of changing status to understand the implications for the wages of native workers. Combining their estimate for native wage growth
12 Because CBO does not forecast wage growth for native workers and foreign‐born workers separately, we assume that the rate of wage growth for native workers will be identical to that of all workers.
21
277

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 24 of 26 with CEA’s estimate of the number of individuals affected by deferred action, we calculate an additional 0.08 percent, or $40, increase in native workers’ annual earnings by 2024.
22 278

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 25 of 26
References
Barcellos, Silvia Helena. 2011. “Legalization and the Economic Status of Immigrants.” RAND Corporation Working Paper.
Borjas, George J. 2003. “The Labor Demand Curve is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market.” Quarterly Journal of Economics 118(4): 1335‐ 1374.
Borjas, George, Richard B. Freeman, Lawrence F. Katz, John DiNardo, and John M. Abowd. 1997. “How Much Do Immigration and Trade Affect Labor Market Outcomes?” Brookings Papers on Economic Activity 1997(1): 1‐90.
Bratsberg, Bernt, James F. Ragan, and Zafar M. Nasir. 2002. “The Effect of Naturalization on Wage Growth: A Panel Study of Young Male Immigrants.” Journal of Labor Economics 20(3): 568‐597.
Bureau of Labor Statistics (BLS). 2014. “Foreign‐Born Workers: Labor Force Characteristics – 2013.” BLS News Release, May 22, 2014. http://www.bls.gov/news.release/archives/forbrn_05222014.pdf.
Card, David. 1990. “The Impact of the Mariel Boatlift on the Miami Labor Market.” Industrial and Labor Relations Review 43(2): 245‐257.
Census Bureau. 2012. “Methodology and Assumptions for the 2012 National Predictions.” http://www.census.gov/population/projections/files/methodology/methodstatement12.pd f.
Centers for Disease Control and Prevention (CDC). 2010. “Death Rate by 10‐Year Age Groups: United States and Each State, 2007.” http://www.cdc.gov/nchs/data/dvs/MortFinal2007_Worktable23r.pdf
Chassamboulli, Andri and Giovanni Peri. 2014. “The Labor Market Effects of Reducing Undocumented Immigrants.” NBER working paper. http://www.nber.org/papers/w19932.
Congressional Budget Office (CBO). 2013a. “Cost Estimate: S. 744, Border Security, Economic Opportunity, and Immigration Modernization Act.” June 18, 2013. https://www.cbo.gov/publication/44225.
Congressional Budget Office (CBO). 2013b. “The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act.” June 18, 2013. https://www.cbo.gov/publication/44346.
Congressional Budget Office (CBO). 2014a. “The Budget and Economic Outlook: 2014 to 2024.” February 4, 2014. http://www.cbo.gov/publication/45010.
Congressional Budget Office (CBO). 2014b. “The 2014 Long‐Term Budget Outlook.” July 15, 2014. http://www.cbo.gov/publication/45471.
Congressional Budget Office (CBO). 2014c. “An Update to the Budget and Economic Outlook: 2014 to 2024.” August 27, 2014. http://www.cbo.gov/publication/4563.
Finn, Michael G. 2012. “Stay Rates of Foreign Doctorate Recipients from U.S. Universities, 2009.” Oak Ridge Institute for Science and Education.
Friedberg, Rachel M. 2001. “The Impact of Mass Migration on the Israeli Labor Market.” Quarterly Journal of Economics 116(4): 1373‐1408.
Hunt, Jennifer. 1992. “The Impact of the 1962 Repatriates from Algeria on the French Labor Market.” Industrial and Labor Relations Review 45(3): 556‐572.
23
279

Case 1:14-cv-00254 Document 38-20 Filed in TXSD on 12/24/14 Page 26 of 26
Hunt, Jennifer and Marjolaine Gauthier‐Loiselle. 2010. “How Much Does Immigration Boost Innovation?” American Economic Journal: Macroeconomics 2: 31‐56.
Kato, Takao and Chad Sparber. 2013. “Quotas and Quality: The Effect of H‐1B Visa Restrictions on the Pool of Prospective Undergraduate Students from Abroad.” Review of Economics and Statistics 95(1): 109‐126.
Kossoudji, Sherrie A. and Deborah A. Cobb‐Clark. 2002. “Coming Out of the Shadows: Learning about legal Status and Wages from the Legalized Populaiton.” Journal of Labor Economics 20(3): 598‐628.
Oakford, Patrick. 2014. “Administrative Action on Immigration Reform: The Fiscal Benefits of Temporary Work Permits.” Center for American Progress, September 2014. http://cdn.americanprogress.org/wp‐content/uploads/2014/09/OakfordAdminRelief.pdf.
Ottaviano, Gianmarco and Giovanni Peri. 2012. “Rethinking the Effects of Immigration on Wages.” Journal of the European Economic Associate 10(1): 152‐197.
Pan, Ying. 2012. “The Impact of Legal Status on Immigrants’ Earnings and Human Capital: Evidence from the IRCA 1986.” Journal of Labor Research 33: 119‐142.
Peri, Giovanni, Kevin Shih, and Chad Sparber. 2014. “Foreign STEM Workers and Native Wages and Employment in U.S. Cities.” NBER Working Paper 20093. http://www.nber.org/papers/w20093.
Peri, Giovanni and Chad Sparber. 2009. “Task Specialization, Immigration, and Wages.” American Economic Journal: Applied 1(3): 135‐169.
Passel, Jeffrey. 2005. “Unauthorized Migrants: Numbers and Characteristics.” Pew Hispanic Center, June 14, 2005. http://www.pewhispanic.org/files/reports/46.pdf.
Social Security Administration (SSA). 2013. “National Average Wage Index.” Retrieved November 14, 2014. http://www.ssa.gov/OACT/COLA/AWI.html.
24 280

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 1 of 32
EXHIBIT 21

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 2 of 32
"There has been ample opportunity for Congress to pass a bipartisan immigration bill that would strengthen our borders, improve the legal immigration system, lift millions of people out of the shadows so they are paying taxes and getting right by the law .... I indicated to Speaker Boehner several months ago that if, in fact, Congress failed to act, I would use all the lawful authority that I possess to try to make the system work better. And that’s going to happen." President Barak Obama, Burma, November 13, 2014
From the Shadows to the Mainstream:
Estimating the Economic Impact of Presidential Administrative Action and Comprehensive Immigration Reform
Dr. Raul Hinojosa-Ojeda North American Integration and Development Center
University of California, Los Angeles
With Maksim Wynn1 Analyst at the North American Integration and Development Center
November 20, 2014
1. Introduction and Executive Summary
President Obama and the Congress stand at a historic crossroad that could significantly change decades of undocumented status for millions of immigrant workers, while also providing significant increases in output, employment, earnings and taxes, benefiting the U.S. economy as a whole. Acting within his legal and constitutional authority, President Obama can act to broaden the scope of temporary beneficiaries through expanding programs such as DACA (Deferred Action for Childhood Arrivals) instituted in 2012 and renewed in 2014. Such Presidential action would not impede Congress from voting on more permanent and comprehensive immigration reform (CIR) legislation, which in fact would generate an even greater positive impact for the U.S. economy.
In anticipation of such momentous actions, it is important that policy makers and the general public understand the dimensions of the economic impact of alternative scenarios of action open to the President and Congress. Towards these ends, this paper will provide estimates based on a variety of methodologies for the following policy alternatives:
1 A special thank you to NAID Center Staff Patrick Pastor, Juan Contreras, Francisco Lopez and Verenice Garcia for all of their work on this report.
1
281

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 3 of 32
1. The DACA program’s economic impact, compared to the impact of Congressional passage of the Dream Act.
2. Economic impact of alternative administrative action scenarios based on scaling up the size of the benefited population.
3. Economic impact of congressional passage of a Comprehensive Immigration Reform bill approved by the U.S. Senate in 2013.
1) In the two years since the President created DACA through administrative action, the program has had and will continue to have a positive economic impact on its recipients as well as the economy as a whole. However, we find that these positive outcomes are less than what would have been experienced had congress enacted the DREAM act, which was the legislative equivalent of DACA.2 Our key findings related to DACA are:
x The DACA program of 2012-2014 appears to have spurred extraordinary growth in the earnings of DACA beneficiaries. According to the results of two recent surveys, this wage growth surpassed 240%, a number that far exceeds the expectations in the literature.
x Using much more conservative earnings growth assumptions we estimate that legalizing and educating all eligible DACA applicants (1.23 million) would generate $1.7 trillion in cumulative earnings over forty years (the average length of a professional career).
x Expanding the pool of DACA beneficiaries to individuals who are currently too young to enroll in the program, but meet all of the other requirements (for a total population of 1.7 million), would result in cumulative earnings of $2.4 trillion over 40 years.
x Congressional passage of the DREAM would allow for the inclusion of 2.15 million potential beneficiaries who would earn an estimated income of $3.7 trillion over the course of 40 years.
2) The President has the legal authority to build upon DACA’s success and institute a variety of deferred action programs that would affect the earning potential3 of millions of undocumented immigrants who are already working in the U.S. Our key findings4 related to expanding deferred action indicate that:
2 Raul Hinojosa, Paule Cruz Takash, et al., No DREAMers Left Behind: The Economic Potential of DREAM Act Beneficiaries (Los Angeles: UCLA NAID Center, 2010). 3 Throughout this report we use the alternative administrative action eligible population estimates of Randy Capps, Marc R. Rosenblum, and James D. Bachmeier, Executive Action for Unauthorized Immigrants: Estimates of the Populations That Could Receive Relief (Washington DC: Migration Policy Institute, September 2014). For estimates of undocumented employment by sector we use Passel, Jeffrey, and D’vera Cohn. A Portrait of Unauthorized Immigrants in the United States (Washington, DC: Pew Research Center, 2009). 4Analysis of the economic impact of administrative action scenarios is based upon the methodology used in Raul Hinojosa and Marshall Fitz. Revitalizing the Golden State: What Legalization over Deportation Could Mean to California and Los Angeles County. (Washington, DC: Center for American Progress, April 2011).
2
282

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 4 of 32
x All scenarios for increasing the scope of potential beneficiaries would generate significant economic growth, benefiting not only immigrants, but also the U.S. economy as a whole. These positive economic outcomes increase in proportion to the number and characteristics of immigrants to whom deferred action is extended.
x If deferred action were extended to the between 500,000 and one million undocumented immigrants who are parents or legal guardians of DACA recipients, it would generate a $1.39 billion increase in labor income; 32,000 jobs through an increase in direct, indirect and induced employment; and $511 million in new tax revenue (estimated as a two year short term impact). The $42 billion in GDP that these undocumented workers add to the economy would also be formalized, ending the technical illegality of the value they currently add to U.S. economy.
x If deferred action were extended to the 3.7 million undocumented immigrants who are parents or legal guardians of minors that are U.S. citizens, legal permanent residents (LPRs), or are DACA eligible, it would generate a short term $6.8 billion increase in labor income, more than 160,000 jobs and $2.5 billion in new tax revenue. It would also formalize the $210.2 billion in value that this population adds to the economy, thus ending the technical illegality of their employment and production.
x If deferred action were extended to the 6.6 million undocumented immigrants who have been present in the U.S. for at least ten years, it would generate a short-term $12.3 billion increase in labor income, more than 289,000 jobs and $4.5 billion in new tax revenue. $379 billion of GDP would also be legalized and formalized as a result of granting deferred action to this population.
x If deferred action were extended to the 9.7 million undocumented immigrants who have been present in the U.S. for at least five years, it would generate a short-term $18 billion increase in labor income, more than 422,900 jobs and $6.6 billion in new tax revenue. This would also formalize $553.8 billion dollars in GDP, bringing it out of the shadows of technical illegality.
3) While, the potential economic benefits of deferred action are significant, they can be enhanced though the passing of a permanent comprehensive immigration reform bill. Our key findings5 related to the economic impact of CIR are:
x The CIR legislation passed by the senate, SB 744, has two key components that determine its economic impact. First, how the bill addresses the undocumented
5 These findings are based upon: Raul Hinojosa, Raising the Floor for American Workers: The Economic Benefits of Comprehensive Immigration Reform (Center for American Progress and Immigration Policy Center, January 2010). Raul Hinojosa, The Economic Benefits of Comprehensive Immigration Reform (CATO Institute, Winter 2012). These findings align closely with the methodology and conclusions of: Congressional Budget Office, The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act (Washington, DC: June 18, 2013)
3
283

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 5 of 32
population that is currently living in the US. Second, the legal framework that it creates to absorb future immigration flows. x A CIR bill that grants legal status to all current immigrants would generate a short term $63.19 billion increase in labor income, more than 1.4 million jobs and $23.2 billion in new tax revenue. x A CIR bill would also create legal avenues for new immigrants projected to be needed by the U.S. economy and would generate over $1.5 trillion in additional GDP growth over the next ten years.
This report will first review the available data for comparing the size and economic contributions of the undocumented populations that would be affected by various immigration reform policy alternatives, including the DACA program, a series of proposed administrative action scenarios and comprehensive immigration reform. Second, we will review the methodological approaches used to analyze the impact of DACA (dynamic human capital growth modeling), alternative administrative actions (short term input-output IMPLAN modeling) and CIR (long term CGE modeling and short term input-output IMPLAN modeling). Third, the report will estimate and compare the economic impact of administrative action that President Obama has already taken (DACA), the alternative forms that future administrative action might take, as well as the projected economic impact of future comprehensive immigration reform scenarios.
Researchers have used a number of methodologies to analyze the economic impact of immigration policy reforms. The optimal choice of methodologies used depends on the nature and characteristics of the policy initiative in question. In this report, we will analyze results derived from three of these methodologies. The first methodological tool, computable general equilibrium (CGE) modeling, is especially useful for predicting the dynamic effects of an economic shock over time and at the multi-sectoral level.6 A second tool, input output modeling (IMPLAN), is more useful for analyzing the short-term impact of a labor market policy shift within the current structure of the economy.7 Third, we will discuss a methodology that we have devised specifically to adjust our IMPLAN-based findings so that they better reflect the unique characteristics of immigration reforms that are directed towards childhood arrivals.8 Specifically, this third methodology was devised to measure the economic impact of reforms that explicitly encourage educational attainment and affect a younger demographic.
It is critically important that policy makers and the general public understand the positive economic impact of administrative action, while also recognizing that these benefits are dwarfed by the potential impact of comprehensive immigration reform, and especially by a reform bill that includes a path to citizenship. Drawing on this analysis we can discern what lessons can be
6 See: Hinojosa, The Economic Benefits of Comprehensive Immigration Reform. 7 See: Hinojosa, Raul and Marshall Fitz. Revitalizing the Golden State: What Legalization over Deportation Could Mean to California and Los Angeles County. Washington, DC: Center for American Progress, April 2011. 8 See: Hinojosa and Takash, No DREAMers Left Behind.
4
284

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 6 of 32 learned from this policy comparison, and provide policy recommendations for maximizing the effectiveness of administrative action going forward.
2. Data On Undocumented Population and their Economic Contributions
This section compares the size and economic contributions of the undocumented populations that can be affected by alternative immigration reform policies. These policy alternatives are CIR, a series of proposed administrative actions, and the DACA program. Table 1
Figure 1
5
285

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 7 of 32
Figure 2
Comprehensive Immigration Reform 6
286

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 8 of 32
There are an estimated 11.7 million undocumented immigrants living in the US of which 8.3 million are employed (see table 1). For our analysis of CIR, and throughout the rest of the paper, we have used the MPI’s undocumented population estimates, and the Pew Hispanic Center’s estimates of the ratio of total undocumented immigrants to employed undocumented immigrants.9
Figure 1 shows that the estimated total 8.3 million undocumented workers contribute over $679 billion in total value added per year to the U.S. economy as a whole. While we assume that the total undocumented population would be subject to comprehensive immigration reform legislation, and that the total affected population would be subject to administrative actions, in this report we focus on the employed undocumented population in order to determine the economic contributions and impact of alternative policies (see table 1). We use CGE and IMPLAN modeling to quantify this impact, and these methodologies require estimating the ratio of employed to total undocumented workers, as well as the distribution of immigrants by sector (see figure 2), as estimated by the Urban Institute’s Fortuny, Capps and Passel.10
Administrative Action
The economic impact of any new Presidential administrative action program will be a function of the criteria for eligibility that is chosen to determine how many undocumented immigrants will qualify. The Obama administration has a great deal of flexibility in terms of shaping the program, so for the sake of comparison we have analyzed the economic impact of a broad set of scenarios. These scenarios are:
1. Individuals present in the U.S. for at least five years (9.7 million - MPI) 2. Individuals present in the U.S. for at least ten years (6.6 million - MPI) 3. Parents of minor U.S. citizens, LPRs or DACA eligible (3.6 million - MPI) 4. Parents or legal guardians of DACA recipients (750,000 - CHIRLA)
For the first three of these scenarios, the Migration Policy Institute (MPI) estimated the general range of eligible applicants,11 while the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA) estimated the range of eligible applicants for the fourth scenario (see table 1).12
9 Population Estimate: Capps, Rosenblum, and Bachmeier, Executive Action for Unauthorized Immigrants. Ratio of Undocumented to Employed Undocumented: Passel and Cohn, A Portrait of Unauthorized. 10 Karina Fortuny, Randy Capps, and Jeffrey S. Passel, The Characteristics of Unauthorized Immigrants in California, Los Angeles County, and the United States (Washington, DC: The Urban Institute, March 2007). 11 Randy Capps, Marc R. Rosenblum, and James D. Bachmeier, Executive Action for Unauthorized Immigrants: Estimates of the Populations That Could Receive Relief (Washington DC: Migration Policy Institute, September 2014). 12 Coalition for Humane Immigrant Rights of Los Angeles CHIRLA, “CHIRLA Memo to DHS Secretary,” (2014).
7
287

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 9 of 32
The populations that would be affected by administrative action currently make important contributions to the US economy, despite the illegality of their employment. As figure 1 shows, the total undocumented populations produces more than $679.7 billion dollars in GDP annually, while those who have been present in the U.S. for at least five years add more than $553 billion in value. Undocumented immigrants present in the U.S. for at least ten years add $379 billion in GDP each year, while Parents of minors that are US citizens, LPRs or DACA eligible add $210 billion. In addition, the parents or legal guardians of DACA recipients add $42 billion in GDP annually. Providing these populations with legal work authorization would formalize the value they add to the economy, while bringing their productivity and income out of the shadows of technical illegality.
DACA
The DACA program of 2012 has a number of requirements that limit the size of the eligible population. The program requires applicants to have come to the US before the age of sixteen, to have been present in the country as of June 15, 2012, and to have lived here continuously for at least five years before that date. In addition, they must be between the ages of fifteen and thirtyone at the time of their application, and either have received a high school diploma or its equivalent, be currently enrolled in school, or be honorably discharged veterans of the US armed forces or Coast Guard. They must not have a serious criminal record.13
Table 2
Table 2 shows that to date over 1.2 million childhood arrivals meet these requirements, while and additional 500,000 meet all but the age requirement, for a total of 1.7 million eligible and soon to be eligible DACA applicants. So far 587,366 applicants have received the protections afforded by DACA.14
Data on Relationship Between Legal Status and Wages, and Economic Activity
13 Jeanne Batalova et al., DACA At The Two-Year Mark (Washington DC: Migration Policy Institute, August 2014). 14 Batalova, DACA at the Two-Year Mark.
8
288

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 10 of 32
Researchers studying the economic impact of immigration reform have consistently noted that legalization increased the wages of the newly legalized and total native population. However, formalizing undocumented immigrants’ productivity and remuneration is not an all or nothing proposition. Total economic benefits increase in proportion to the number of undocumented that are offered inclusion. In addition, the greater the scope of that financial, social and political inclusion, the greater the individual and total economic benefits. For example, temporary work permits induce moderate wage growth for those that received them, while permanent legalization fosters greater wage growth for the legalized, and citizenship would lead to maximum wage growth.
Researchers have debated the degree to which these various legal statuses’ positively impact wages. For our analysis of administrative action in this report we have used a conservative estimate of the wage effect. The Princeton sociologists Douglas S. Massey and Kerstin Gentsch have stated that undocumented immigrants make 20% percent less than legal immigrants and that those with temporary work permits make 13% less (see table 4).15 Rather that applying the 20% legalization increase to the wages of those affected by administrative action, we have instead assumed that the wage affect will be equivalent to that of a temporary work program.
Looking back at the Immigration Reform and Control Act of 1986 (IRCA) is the logical way to begin any analysis of immigration reform’s affect on the economy, and specifically on wages. In all roughly 3 million unauthorized immigrants were legalized under IRCA, and in the short term this had a positive impact on their wages and on the US economy as a whole.
Table 3
A number of government agencies and economists have quantified this impact, and while their findings are not uniform they generally agree that, as a result of legalization, the wages of the
15 Douglas S. Massey and Kerstin Gentsch, “Undocumented Migration to the United States and the Wages of Mexican Immigrants,” International Migration Review 48, no. 2 (June 2014): 482–99, doi:10.1111/imre.12065.
9
289

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 11 of 32
newly legalized increased. In a widely cited report based on surveys five years after the implementation of IRCA, US Department of Labor Survey of Legalized population reported that overall the wages of the recently legalized rose by 15% in the four to five years following legalization (see table 3).16 In his analysis of IRCA the economist Francisco Rivera-Batiz found that the wages of male IRCA beneficiaries increased 8.4 percent while their female counterparts increased by 13 percent (see table 3). He found that these increases were the direct effect of legalization and were independent of any wage increase that may have resulted from acquiring more education and further mastery of English among other factors.17 In 2007, the economists Catalina Amuedo-Dorantes, Cynthia Bansak and Stephen Raphael also found that IRCA had generated wage growth for its recipients. Controlling for broad changes in the US economy, they found that the real wages of male IRCA beneficiaries had increased by 9.3 percent; while for women the increase was 2.1 percent (see table 3).18
Legalization also incentivizes the newly legalized to invest in themselves and their community and this leads to wage as well as macroeconomic growth. Kossoudji and Cobb-Clark have shown that the wages of unauthorized workers do not reflect their skill levels because their lack of legal status pushes them into the lowest wage sectors and into the informal economy. 19 Legalization encourages them to seek work that is commensurate with their skill level and to increase that skill level in order to obtain higher wages. This investment in their human capital, and the social mobility it affords, has a far-reaching and positive impact on the economy as a whole.
In order to gauge the wage impact of a diverse range of immigration reform scenarios we have relied upon the findings of Massey and Gentsch. They argue that undocumented Mexican immigrants make twenty percent less on average that do those with legal status, while those with temporary work permits make thirteen percent less than those with legal status (see table 4).20 Massey and Gentsch were only describing undocumented Mexican immigrants, but since this population constitutes an overwhelming plurality of the total undocumented population,21 we
16 Roger G. Kramer, Audrey Singer, Shirley G. Smith. Characteristics and Labor market Behavior of the Legalized Population Five Years Following Legalization. Washington, DC: U.S. Department of Labor, May 1996. 17 Franciso L. Rivera-Batiz, “Undocumented Workers in the Labor Market: An Analysis of the Earnings of Legal and Illegal Mexican Immigrants in the United States,” Journal of Population Economics 12 (1) (1999): 91-116
18 Catalina Amuedo-Dorantes, Cynthia Bansak, and Steven Raphael, “Gender Differ- ences in the Labor Market: Impact of IRCA,” American Economic Review 97 (2) (2007): 412-416.
19 Sherrie A. Kossoudji and Deborah A. Cobb‐ Clark, “Coming out of the Shadows: Learning about Legal Status and Wages from the Legalized Population,” Journal of Labor Economics 20, no. 3 (July 2002): 598–628, doi:10.1086/339611.
20 Massey and Gentsch, “Undocumented Migration to the United States.” 21 Mexican immigrants constitute 7 million of the 11.9 million undocumented living in the US according to the Pew Hispanic Center’s A Portrait of Unauthorized Immigrants in the United States.
10
290

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 12 of 32
assume that Massey and Gentsch’s figures are roughly representative of undocumented wages generally. The impact of citizenship provides even greater economic benefits than does simple legal status (see Table 4). For example, immigrants with legal status earn significantly less than their naturalized citizen counterparts. Manuel Pastor and Justin Scoggins have shown that the citizenship naturalization of those with legal status fosters significant wage growth, which leads to economic growth generally. Specifically they found that, “after controlling for many of the characteristics that predict individual wages”, there is an 8 to 11 percent “earnings premium” associated with naturalization.22 Table 4
Obtaining legal employment authorization provides the undocumented with labor market mobility, allowing them to find work that is commiserate with their skills and to improve those skills, which subsequently leads to increased earning power (see table 4). In addition, by gaining the ability to move between jobs, the undocumented are able to maximize their productivity and income, which increases the value they add to the economy (GDP) and the taxes they pay. Increased GDP, labor income, and tax revenue result in job creation both in the public and private sectors. These positive economic outcomes increase in proportion to the number of people who are offered legal authorization to work, and the more complete their legal, social and economic inclusion is. As a result, while administrative action has a positive economic impact and granting temporary work authorization to all undocumented is even better; the impact of granting legal status to undocumented immigrants through a CIR bill would produce the best outcomes, especially if it includes a path to citizenship.
22 Manuel Pastor and Justin Scoggins, Citizen Gain: The Economic Benefits of Naturalization for Immigrants and the Economy (Center for the Study of Immigrant Integration, December 2012).
11
291

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 13 of 32
4. Methodologies for Estimating Economic Impacts of Immigration Policy
Researchers have used a number of methodologies to analyze the economic impact of immigration policy reforms. The optimal choice of methodologies used depends on the nature and characteristics of the policy initiative in question. In this report, we will analyze results derived from three of these methodologies. The first methodological tool, computable general equilibrium (CGE) modeling, is especially useful for predicting the dynamic effects of an economic shock over time and at the multi-sectoral level. A second tool, input output modeling (IMPLAN), is more useful for analyzing the short-term impact of a labor market policy shift within the current structure of the economy. Third, we will discuss a methodology that we have devised specifically to adjust our IMPLAN-based findings so that they better reflect the unique characteristics of immigration reforms that are directed towards childhood arrivals. Specifically, this third methodology was devised to measure the economic impact of reforms that explicitly encourage educational attainment and affect a younger demographic.
CGE Models
CGE modeling has been used extensively to predict the economic impact of comprehensive immigration reform. In an earlier report, published by the Center for American Progress (CAP) and the CATO Institute, we used CGE modeling to predict comprehensive immigration reform’s impact on future immigration flows and the GDP growth that the equilibrium affects of these flows would create. In other words, CGE modeling is very good at tracking the effects of new immigrants entering the workforce and the affects of these new workers on the economic ecosystem. However, while such dynamism is one of CGE modeling’s most positive attributes, in the context of this paper it presents a challenge. Here, we are attempting to compare both comprehensive immigration reform and administrative relief scenarios, and these two types of reform affect future immigration flows in very different ways. To mitigate these differences we will include CGE findings only in our discussion of CIR. We will not include CGE findings in our analysis of administrative action since this analysis focuses on the undocumented who are currently in the US, their contributions to the current US economy, and how a change in their immigration status would affect their current and future contributions.
Input-Output IMPLAN Modeling
We have based our analysis of administrative action, which would not impact future flows, and our comparison of administrative action to CIR, which would impact future flows, on IMPLAN and Census data, rather than a CGE model. IMPLAN is an input output measurement based on the current structure of the US economy, and is a more appropriate
12
292

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 14 of 32
tool for comparing administrative action and CIR scenarios, their respective impact on the economy and the role of immigrants within it. Using IMPLAN data we are able to quantify the labor income, tax contributions and productivity of undocumented immigrants and illustrate the economic impact of formalizing their role in the economy.
Educational Attainment
Using the IMPLAN model to analyze the economic impact of DACA is presents a challenge because the IMPLAN model does not account for the relatively high level of educational attainment that DACA encourages its beneficiaries to acquire. Instead, this model assumes that DACA recipients’ possess the same education and skills as the general undocumented population. Because of DACA’s educational requirements, DACA beneficiaries have on average a higher level of educational attainment than does the rest of the undocumented population. Therefore, DACA recipients can expect to receive a greater average income boost from legalization than can the remainder of the undocumented population. This means that an analysis based on the IMPLAN model understates the true financial impact of DACA. In light of these differences, the benefits described by an analysis based on IMPLAN should be taken as a baseline. DACA beneficiaries are able to find work that is commensurate with their education, and the program incentivizes educational attainment. Analyzing the increased earning power that this aspect of DACA affords beneficiaries leads to a more accurate representation of the program’s economic impact.
In order to adjust the IMPLAN based analysis to represent the economic benefits of DACA’s educational requirement we have devised a methodology that is designed to account for the characteristics of DACA, and the DACA eligible population, that are unique. First, we calculate the highest degree earned by individuals that are eligible for DACA, or have received it, and who have completed high school, a high school equivalent, or a post secondary degree program. We then project this distribution onto the population that is still enrolled in school. By multiplying the totals in each educational attainment category by the Census’ median income by educational attainment data, we are able to project the single year and 40-year income of the DACA eligible population adjusted for educational attainment.
5. Results of Economic Impact Analysis
13
293

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 15 of 32

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 16 of 32
advanced degree (see figure 3).24 If we project this distribution onto the DACA eligible population who are still enrolled in either high school or a postsecondary program, as well as the population that meets all but the age requirement, and then adjust for the percent of high school graduates who are projected not to continue on with their education, we can more accurately estimate the program’s long-term impact on its beneficiaries’ earnings. Table 5
Table 6 shows the projected educational attainment of those that currently meet DACA’s education requirement, and that nearly 800,000 individuals within this population can be expected to earn some sort of post-secondary degree (see table 5). Those that do so can be expected to have a much higher income than the just over 919,000 students who are expected to complete only high school.25
Table 6
24 Jeanne Batalova et al., DACA At The Two-Year Mark (Washington DC: Migration Policy Institute, August 2014). 25 While some of the DACA eligible population can be expected to drop out of high school, some of the potentially eligible population that did not meet the education requirement can be expected to re-enroll and qualify for DACA. We expect that these two cohorts to be nearly the same size, and to mitigate each others affect on the total economic impact of the program.
15
295

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 17 of 32
Table 6 reveals that educational attainment has a significant impact on the future wages of the potentially eligible population (excluding those that do not meet the educational requirement). We predict that the share of this population who complete a postsecondary degree will collectively earn more than $35 billion a year. Those who earn advanced degrees will collectively earn over $4.7 Billion a year, while those with associates and bachelor’s degrees are expected to earn a collective annual income of more than $11.2 and $19 billion dollars respectively. Those that are projected to earn a high school diploma or the equivalent are expected to collectively earn more than $25.1 billion annually. In all this population will collectively earn more than $60.2 billion annually. The very nature of DACA not only insures that its recipients are, on average, more educated than the general undocumented population, it also insures that they are younger. DACA’s age requirement means that recipients have either just entered the work force or have yet to do so. Because of this we have estimated their earnings over the course of forty years, or about the length of the average career. Table 6 shows that over forty years the cumulative earnings of this population will top $2.4 trillion.
Table 7 16
296

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 18 of 32
Table 5 reveals that DACA has, and will continue to, spur job growth and create new tax revenue (see table 7). If all 1.7 million potential applicants who currently meet the education requirement enter the workforce (see table 2), their collective wages will be roughly $8 billion dollars higher than they would have been before DACA. These increased earnings would directly generate almost 105,000 new jobs. The resulting increase in indirect employment---which is a change in employment in one industry being caused by a change in another, as a result of interaction between the two---would account for more than 38,000 new jobs. Induced employment, which is a change in employment based on changes in household spending, would increase by more than 46,000 jobs. In all the increase in labor income would generate more 106,000 new jobs. In addition, this wage growth would bring in more than $1.6 billion dollars in new business, personal and sales tax revenue (see table 7). Table 8
Two recent surveys, one conducted by the NAID center, and another by CHIRLA crystalize DACA’s potential for an even greater impact on earnings. The survey conducted by the NAID Center found that the wages of 167 DACA beneficiaries increased by an average of 246 percent (see table 8). Even when counting only those who were employed before and after receiving
17
297

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 19 of 32
DACA, thereby ignoring some of the most educated respondents, this cohort still experienced a 76 percent increase in wages. Another survey, conducted by CHIRLA, found that the wages of its 309 respondents were 277 percent greater than they were before DACA (see table 8). This wage growth is much stronger than that projected by the educational attainment model. Therefor the job and tax growth projected by the educational attainment model should also be understood as a very conservative estimate. Based on this survey data, we assume that DACA’s actual economic impact is much greater than any of the estimates we have proposed in this section.
DACA’s economic impact is significant, but it is less than what would be generated by far reaching administrative action, and much less than what would be generated by a comprehensive immigration reform bill. This reflects the findings of the IRCA literature, and our earlier NAID center research,26 which show that the economic benefits of immigration reform increase in relation to the number of undocumented affected and the level of inclusion they are offered. While a comprehensive immigration reform bill that would extend legalization to all undocumented immigrants would have a far greater impact, this does not negate DACA’s positive affect on the lives of its recipients and on the economy as a whole.
Administrative Action Results Any upcoming administrative action will generate less wage growth per person affected than DACA because DACA affected young people, many of whom were still in school, and are therefore able the earn a relatively higher wage in the job market. However, if administrative action affects a large cohort of working age adults the economic impact could still be great. The size of the population affected is therefor of the upmost importance. The boldness of President Obama’s action will determine the relative size of the economic impact in terms of labor income gain (see figure 4), increased tax revenue (see figure 5) and direct, indirect and induced job growth (see figure 6).
Figure 4
26 See: Hinojosa, The Economic Benefits AND Raul Hinojosa, Raising the Floor.
18
298

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 20 of 32
Figure 5
Figure 6 19
299

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 21 of 32
The most ambitious of the potential administrative reform scenarios, granting deferred action to the nearly 9.7 million undocumented immigrants who have been in the US for five years or more, would have the greatest economic and humanitarian impact. As Massey and Gentsch noted temporary workers earn 7% higher wages than do the undocumented.27 If the affected population experienced this 7% wage increase, their collective labor income would increase by more than $18 billion (see figure 4). This wage growth would create nearly 423,000 jobs (see figure 5) and bring in more $6.6 billion in new taxes (see figure 6). More cautious action on the part of the administration would still generate significant economic growth, but that this growth would be considerably less than what would have been created by a more far-reaching reform. Extending deferred action to the more than 6.6 million undocumented immigrants who have lived in the US for ten years or more would boost this population’s yearly wages by more than $12.3 billion (see figure 4). This labor income increase would generate 289,560 jobs (see figure 5) and over $4.5 billion in new tax revenue (see figure 6). Our analysis of the economic impact of extending deferred action to the 3.7 million parents of children that are either US citizens, LPRs or DACA eligible emphasizes the importance of bold administrative action If these 3.7 million parents apply for and receive deferred action, their
27 Massey and Gentsch, “Undocumented Migration and the Wages.”
20
300

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 22 of 32
collective income will increase by $6.8 billion (see figure 4). This wage growth would than generate 160,528 jobs (see figure 5), and more than $2.5 million in new taxes (see figure 6). While this scenario would still generate significant economic growth, this growth could potentially be less than what DACA would generate at full enrollment.
Should the White House extend deferred action to only the parents of DACA recipients, estimated to be between 500,000 and 1,000,000, the economic outcomes would be positive if somewhat limited. For our analysis of this scenario we have split the difference between the high and low population estimates and assumed that deferred action would be extended to a population of 750,000. This scenario would generate a labor income increase of $1.3 billion (see figure 4). Such limited wage growth would generate around 32,000 jobs (see figure 5), and just $511 million in new taxes (see figure 6).
Comparing these four administrative action scenarios illustrates why it is critically important that the Obama administration take bold and far-reaching action. There is a wide gulf between the economic impact of the most ambitious scenario and that of the least ambitious. Extending deferred action to those that have been in the US for five years or more would generate around thirteen times the wage, employment, and tax growth than would extending deferred action only to the parents of DACA recipients. The difference between granting deferred action to undocumented that have been in the US for five years and those that have either been here for ten years, or are the parents of US citizens, LPRs, and/or DACA recipients is not as stark but it is still significant. In the case of the former comparison, granting deferred action to undocumented immigrants who have been in the country for five years or more would generate fifty percent more wage, job and tax growth than would extending it to the population that has been here for ten years or more. In the case of the latter comparison, granting deferred action to the population that has been here for five years or more would generate two and half times the wage, job and tax growth.
Comprehensive Immigration Reform
The IRCA literature suggests that the economic impact of reform increases in proportion to the number of people who are affected, and in proportion to the completeness of their legal, social and economic inclusion. This would mean that while bold and far-reaching administrative action on immigration reform would generate positive economic outcomes, these outcomes would not be as positive as those that a comprehensive immigration reform bill would generate.
Our CGE analysis of comprehensive immigration reform supports this conclusion. In an earlier report, published by the Center for American Progress (CAP) and the CATO institute, we laid out three reform scenarios. They are:
1) Comprehensive immigration reform that creates a pathway to legal status for
21
301

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 23 of 32 unauthorized immigrants in the United States and establishes flexible limits on permanent and temporary immigration that respond to changes in U.S. labor demand in the future. 2) A program for temporary workers only that does not include a pathway to permanent status or more flexible legal limits on permanent immigration in the future. 3) Mass deportation to expel all unauthorized immigrants and effectively seals the U.S.Mexico border.28
Figure 7
28 See Hinojosa, Raising the Floor AND Hinojosa, The Economic Benefits.
22
302

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 24 of 32
Our CGE analysis of these scenarios (published in 2010 and 2012) clearly illustrates the advantages of full legalization over a temporary worker program, and the disastrous impact of mass deportation. CIR with full legalization would generate GDP growth of $1.5 trillion over ten years while a bill that extends temporary work authorization to all undocumented immigrants would generate only $792 billion over the same time period (see figure 7). These findings a closely aligned with those of a Congressional Budget Office report from 2013.29 On the other hand, mass deportation would cause the economy to contract by $2.6 trillion (see figure 7). This would cripple the US economy and set off a deep and lasting depression.30 Our IMPLAN based analysis of CIR reaffirms the positive economic impact of extending some form of legal status to the entire undocumented population. It also reaffirms that the scale of positive outcomes increases in proportion the completeness of the undocumented population’s social, economic, and political inclusion. To illustrate this point we have slightly altered the CIR scenarios we studied. Our IMPLAN-based analysis examined the following scenarios: 1) Comprehensive immigration reform that creates a pathway to legal status for unauthorized immigrants in the United States. 2) Comprehensive immigration reform that creates a pathway to citizenship for unauthorized immigrants in the United States. 3) A program for temporary workers only that does not include a pathway to permanent status or citizenship.
29 Congressional Budget Office, The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act. (Washington, DC: June 18, 2013). 30 Hinojosa, Raising the Floor.
23
303

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 25 of 32 Figure 8
Figure 9
24
304

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 26 of 32

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 27 of 32
Scoggins found that naturalized citizens earn 8 to 11.5 percent more than legal immigrants.33 If all employed undocumented immigrants eventually became naturalized citizens, they would experience a collective income increase of over $93 billion dollars (see figure 8). These increased earnings would directly generate over 1.2 million new jobs. The resulting increase in indirect employment would account for 443,063 new jobs. Induced employment would increase by 536,522 jobs (see figure 9). This economic activity would also create over $34.2 billion in new tax revenue (see figure 10). Comprehensive immigration reform that grants temporary work permits to the undocumented would also generate a significant increase in labor income, and subsequently spur job growth and create additional tax revenue, however these gains would be far less than what we see in either of the other CIR scenarios. This is significant because this scenario is the one that most closely resembles the proposals for administrative action. The gains are tempered by the fact that, again according to Massey and Gentsch, temporary workers make seven percent more than the undocumented but thirteen percent less than fully legalized immigrants.34 If the 8.3 million working undocumented were to experience an average wage increase of seven percent, it would constitute a $22.1 billion increase in overall labor income (see figure 8). This would create over 519,000 new jobs (see figure 9) and over $8.1 billion in new taxes (see figure 10).
33 Pastor and Scoggins, Citizen Gain. 34 Massey and Gentsch, “Undocumented Migration to the United States”
26
306

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 28 of 32
6. Conclusion
Figure 11
27
307

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 29 of 32 Figure 12
28
308

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 30 of 32
Figure 13
7. Bibliography
Amuedo-Dorantes, Catalina, and Cynthia Bansak. “The Impact of Amnesty on Labor Market Outcomes: A Panel Study Using the Legalized Population Survey.” Industrial Relations: A Journal of Economy and Society 50, no. 3 (2011): 443–71.
Batalova, Jeanne, Sarah Hooker, Randy Capps, and James D. Bachmeier. DACA At The Two Year Mark. Washington DC: Migration Policy Institute, August 2014.
Benìtez-Silva, Hugo, Eva Cárceles-Poveda, and Selçuk Eren. Effects of Legal and Unauthorized Immigration on the U.S. Social Security System. University of Michigan Retirement Research Center, n.d.
BLS. Consumer Expenditure Survey: Table 2200. Hispanic or Latino Origin of Reference Person: Annual Expenditure. Bearau of Labor Studies, n.d. 29
309

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 31 of 32
Capps, Randy, Marc R. Rosenblum, and James D. Bachmeier. Executive Action for Unauthorized Immigrants: Estimates of the Populations That Could Receive Relief. Washington DC: Migration Policy Institute, September 2014.
CHIRLA, Coalition for Humane Immigrant Rights of Los Angeles. “CHIRLA Memo to DHS Secretary,” August 8, 2014.
Congressional Budget Office, The Economic Impact of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act. Washington, DC: June 18, 2013.
Dixon, Peter B., Martin Johnson, and Maureen T. Rimmer. “Economy-Wide Effects of Reducing Illegal Immigrants in U.S. Employment.” Contemporary Economic Policy 29, no. 1 (January 2011): 14–30. doi:10.1111/j.1465-7287.2010.00208.x.
Dixon, Peter B., Maureen T. Rimmer, and Bryan W. Roberts. “Restricting Employment of Low-Paid Immigrants: A General Equilibrium Assessment of the Social Welfare Implications for Legal U.S. Wage-Earners.” Contemporary Economic Policy 32, no. 3 (July 2014): 639–52. doi:10.1111/coep.12008.
FIRM, Fair Immigration Reform Movement. “FIRM Administrative Relief Recommendations to the Domestic Policy Council,” August 2014.
Fitz, Marshall. What the President Can Do on Immigration If Congress Fails to Act. Center for American Progress, July 2014.
Fortuny, Karina, Capps, Randy, Passel, Jeffrey S., The Characteristics of Unauthorized Immigrants in California, Los Angeles County, and the United States. Washington, DC: The Urban Institute, March 2007.
Gonzales, Roberto G., and Angie M. Bautista-Chavez. Two Years and Counting: Assessing the Growing Power of DACA. American Immigration Council, June 2014. http://www.bakkenlaw.com/s/two_years_and_counting_assessing_the_growing_power_of_daca _final.pdf
Gonzalez, Roberto G., Veronica Terriquez, and Stephen Ruszczyk. “Becoming DACAmented: Assessing Short-term Benefits of Deferred Action for Childhood Arrivals (DACA).” American Behavioral Scientist, October, 2014.
Hinojosa, Raul. Raising the Floor for American Workers: The Economic Benefits of Comprehensive Immigration Reform. Center for American Progress and Immigration Policy Center, January 2010.
Hinojosa, Raul and Marshall Fitz. Revitalizing the Golden State: What Legalization over Deportation Could Mean to California and Los Angeles County. Washington, DC: Center for American Progress, April 2011.
30
310

Case 1:14-cv-00254 Document 38-21 Filed in TXSD on 12/24/14 Page 32 of 32
Hinojosa, Raul and Paule Cruz Takash, and et al. No DREAMers Left Behind: The Economic Potential of DREAM Act Beneficiaries. Los Angeles: UCLA NAID Center, 2010.
Hinojosa, Raul, The Economic Benefits of Comprehensive Immigration Reform. Washington, DC: CATO Institute, 2012.
Kissam, Ed. “Presentation on DACA Strategy-4 Freedoms Fund Panel.” San Francisco, November 5, 2013.
Kugler, Adriana, and Mutlu Yuksel. Effects of Low-Skilled Immigration on US Natives: Evidence from Hurricane Mitch. National Bureau of Economic Research, 2008. http://www.nber.org/papers/w14293.
Lynch, Robert, and Patrick Oakford. The Economic Effects of Granting Legal Status and Citizenship to Undocumented Immigrants. Center for American Progress, March 20, 2013.
Massey, Douglas S., and Kerstin Gentsch. “Undocumented Migration to the United States and the Wages of Mexican Immigrants.” International Migration Review 48, no. 2 (June 2014): 482–99. doi:10.1111/imre.12065.
Orrenius, Pia, and Madeline Zavodny. “The Economic Consequences of Amnesty for Unauthorized Immigrants.” Cato Journal 32, no. 1 (2012). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2245015.
Passel, Jeffrey, and D’Vera Cohn. A Portrait of Unauthorized Immigrants in the United States. Pew, 2009.
Pastor, Manuel, Enrico A. Marcelli, Vanessa Carter, and Jared Sanchez. What’s at Stake For the State: Undocumented Californians, Immigration Reform, and Our Future Together. Center for the Study of Immigrant Integration, May 2013.
Passel, Jeffrey, and D’vera Cohn. A Portrait of Unauthorized Immigrants in the United States. Washington, DC: Pew Research Center, 2009.
Pastor, Manuel, and Justin Scoggins. Citizen Gain: The Economic Benefits of Naturalization for Immigrants and the Economy. Center for the Study of Immigrant Integration, December 2012.
U.S. Department of Labor. Characteristics and Labor market Behavior of the Legalized Population Five Years Following Legalization. Washington, DC: Effects of the Immigration Reform and Control Act.
Wong, Tom K., and et al. Undocumented No More: A Nationwide Analysis of Deferred Action for Childhood Arrivals, or DACA. Center for American Progress, September 2013.
31
311

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 1 of 16
EXHIBIT 22

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 2 of 16
312

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 3 of 16
313

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 4 of 16
314

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 5 of 16
315

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 6 of 16
316

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 7 of 16
317

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 8 of 16
318

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 9 of 16
319

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 10 of 16
320

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 11 of 16
321

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 12 of 16
322

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 13 of 16
323

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 14 of 16
324

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 15 of 16
325

Case 1:14-cv-00254 Document 38-22 Filed in TXSD on 12/24/14 Page 16 of 16
326

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 23

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 2 of 7
________________________________________________________________________
STATEMENT OF
CRAIG FUGATE Administrator
Federal Emergency Management Agency U.S. Department of Homeland Security
And R. GIL KERLIKOWSKE
Commissioner U.S. Customs and Border Protection U.S. Department of Homeland Security
And THOMAS S. WINKOWSKI Principal Deputy Assistant Secretary U.S. Immigration and Customs Enforcement U.S. Department of Homeland Security
FOR A HEARING ON “Challenges at the Border: Examining the Causes, Consequences, and Response to the Rise in
Apprehensions at the Southern Border” BEFORE THE U.S. SENATE
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS July 9, 2014 1
327

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 3 of 7
Chairman Carper, Ranking Member Coburn, and Members of the Committee:
Thank you for the opportunity to testify today about our efforts to address the recent rise of unaccompanied children and others crossing our border in the Rio Grande Valley (RGV). As you know, Secretary Johnson testified on June 24th before the House Committee on Homeland Security about this situation. Our testimony today echoes and reaffirms his comments.
We face an urgent situation in the RGV. Last fiscal year, CBP apprehended more than 24,000 unaccompanied children at the border. By mid-June of this fiscal year, that number has doubled to more than 52,000. Those from Guatemala, El Salvador, and Honduras make up about three quarters of that migration.
As Secretary Johnson said on June 24th, this is a humanitarian issue as much as it is a matter of border security. We are talking about large numbers of children, without their parents, who have arrived at our border—hungry, thirsty, exhausted, scared and vulnerable. How we treat the children, in particular, is a reflection of our laws and our values.
Therefore, to address this situation, our strategy is three-fold: (1) process the increased tide of unaccompanied children through the system as quickly as possible; (2) stem the increased tide of illegal migration into the RGV; and (3) do these things in a manner consistent with our laws and values as Americans.
So, here is what we are doing:
First, on May 12th, Secretary Johnson declared a Level IV condition of readiness within DHS, which is a determination that the capacity of CBP and ICE to deal with the situation is full and we need to draw upon additional resources across all of DHS. He appointed Deputy Chief Vitiello to coordinate this effort within DHS.
Second, on June 1st, President Obama, consistent with the Homeland Security Act, directed Secretary Johnson to establish a Unified Coordination Group to bring to bear the assets of the entire federal government on the situation. This Group includes DHS and all of its components, the Departments of Health and Human Services, Defense, Justice, State, and the General Services Administration. Secretary Johnson, in turn, designated FEMA Administrator Fugate to serve as the Federal Coordinating Official for the U.S. Government-wide response. Under Administrator Fugate’s supervision, there are now more than 140 interagency personnel and members stationed in FEMA’s National Response Coordination Center dedicated to this effort.
Third, we established added capacity to deal with the processing and housing of the children, we are creating additional capacity in places, and we are considering others. To process the increased numbers of unaccompanied children in Texas, DHS has had to bring some of the children to our processing center at Nogales, Arizona before they are transferred to HHS. We are arranging additional processing centers to handle the rise in the RGV. Meanwhile, the Department of Defense (DoD) has provided space at Lackland Air Force Base in Texas for HHS to house the children before HHS can place them. DoD is also providing facilities at Fort Sill,
2
328

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 4 of 7
Oklahoma and Ventura, California for the same purpose. DHS and HHS are working to continue to identify additional facilities for DHS and HHS to house and process the influx of children.
Fourth, DHS and HHS are increasing Spanish-speaking case management staff, increasing staff handling incoming calls from parents or guardians, raising awareness of the Parent Hotline (provided by FEMA and operated by HHS), surging staff to manage the intake of CBP referrals to track shelter bed capacity, and facilitate shelter designations. We are developing ways to expedite background checks for sponsors of children, integrate CBP and HHS information sharing systems, and increase capacity to transport and place children. (As Secretary Johnson noted on June 24th, and we reaffirm today, the Border Patrol and other CBP personnel, as well as personnel from ICE, FEMA, the Coast Guard, and HHS, are doing a remarkable job in difficult circumstances. Not-for-profit groups like the HHS-grantee BCFS1 also have stepped in quickly and are doing a remarkable job sheltering the unaccompanied children at Lackland, identifying and then placing them consistent with HHS’ legal obligations. All of these dedicated men and women deserve our recognition, support and gratitude.)
Fifth, DHS is building additional detention capacity for adults who cross the border illegally in the RGV with their children. For this purpose DHS established a temporary facility for adults with children on the Federal Law Enforcement Training Center’s campus at Artesia, New Mexico. The establishment of this temporary facility will help CBP process those encountered at the border and allow ICE to increase its capacity to house and expedite the removal of adults with children in a manner that complies with federal law. Artesia is one of several facilities that DHS is considering to increase our capacity to hold and expedite the removal of the increasing number of adults with children illegally crossing the southwest border. DHS will ensure that after apprehension, families are housed in facilities that adequately provide for their safety, security, and medical needs. Meanwhile, we will also expand use of the Alternatives to Detention program to utilize all mechanisms for enforcement and removal in the RGV Sector. DOJ is temporarily reassigning immigration judges to handle the additional caseload via video teleconferencing. These immigration judges will adjudicate these cases as quickly as possible, consistent with all existing legal and procedural standards, including those for asylum applicants following credible fear interviews with embedded DHS asylum officers. Overall, this increased capacity and resources will allow ICE to return unlawful migrants from Central America to their home countries more quickly.
Sixth, DHS has brought on more transportation assets to assist in the effort. The Coast Guard is loaning air assets to help transport the children. ICE is leasing additional charter aircraft.
Seventh, throughout the RGV Sector, we are conducting public health screening for all those who come into our facilities for any symptoms of contagious diseases or other possible public health concerns. Both DHS and HHS are ensuring that the children’s nutritional and hygienic needs are met while in our custody; that children are provided regular meals and access to drinks and snacks throughout the day; that they receive constant supervision; and that children who exhibit signs of illness or disease are given proper medical care. We have also made clear that all
1 BCFS—not an acronym—was formerly known as Baptist Child Family Services.
3
329

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 5 of 7
individuals will be treated with dignity and respect, and any instances of mistreatment reported to us will be investigated.
Eighth, working through FEMA’s National Response Coordination Center, we are coordinating with voluntary and faith-based organizations to help us manage the influx of unaccompanied children crossing the border. The American Red Cross is providing blankets and other supplies and, through their Restoring Family Links program, is coordinating calls between children in the care of DHS and families anxious about their well-being.
Ninth, to stem the tide of children seeking to enter the United States, we have also been in contact with senior government officials of Guatemala, El Salvador, Honduras, and Mexico to address our shared border security interests, the underlying conditions in Central America that are promoting the mass exodus, and how we can work together to assure faster, secure removal and repatriation. Last month, President Obama spoke with Mexican President Peña Nieto about the situation, as has Secretary Kerry. On June 20th, Vice President Biden also visited Guatemala to meet with regional leaders to address the influx of unaccompanied children and families from Central America and the underlying security and economic issues that are causing this migration. The Vice President announced that the U.S. will be providing a range of new assistance to the region, including $9.6 million in additional funding for Central American governments to receive and reintegrate their repatriated citizens, and a new $40 million U.S. Agency for International Development program in Guatemala over 5 years to improve citizen security. An additional $161.5 million will be provided this year under the Central American Regional Security Initiative to further enable Central American countries to respond to the region’s most pressing security and governance challenges. Secretary Johnson is in Guatemala as we speak. The government of El Salvador has sent additional personnel from its consulate in the U.S. to South Texas to help expedite repatriation to its country.
Tenth, DHS, together with DOJ, has added personnel and resources to the investigation, prosecution and dismantling of the smuggling organizations that are facilitating border crossings into the RGV. Homeland Security Investigations, which is part of ICE, is surging 60 additional criminal investigators and support personnel to their San Antonio and Houston offices for this purpose. In May, ICE concluded a month-long, targeted enforcement operation that focused on the logistics networks of human smuggling organizations along the southwest border, with operations in El Paso, Houston, Phoenix, San Antonio, and San Diego that resulted in 163 arrests of smugglers. ICE will continue to vigorously pursue and dismantle these alien smuggling organizations by all investigative means to include the financial structure of these criminal organizations. These organizations not only facilitate illegal migration across our border, they traumatize and exploit the children who are objects of their smuggling operation. We will also continue to work with our partners in Central America and Mexico to help locate, disrupt, and dismantle transnational criminal smuggling networks.
Eleventh, we are initiating and intensifying our public affairs campaigns in Spanish, with radio, print, and TV spots, to communicate the dangers of sending unaccompanied children on the long journey from Central America to the United States, and the dangers of putting children into the hands of criminal smuggling organizations.
4
330

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 6 of 7
In collaboration with DHS, the Department of State has launched public awareness campaigns in El Salvador, Guatemala, and Honduras, to warn families about the dangers encountered by unaccompanied minors who attempt to travel from Central America to the U.S., and to counter misperceptions that smugglers may be disseminating about immigration benefits in the United States. Our embassies in Central America have collaborated with CBP to ensure both the language and images of the campaign materials would resonate with local audiences. Secretary Johnson has personally issued an open letter (see attached) to the parents of those who are sending their children from Central America to the U.S., to be distributed broadly in Spanish and English, to highlight the dangers of the journey, and to emphasize there are no free passes or “permisos” at the other end. We are stressing that Deferred Action for Childhood Arrivals, or “DACA,” does not apply to children who arrive now or in the future in the United States, and that, to be considered for DACA, individuals must have continually resided in the U.S. since June 2007. We are making clear that the “earned path to citizenship” contemplated by the Senate bill passed last year would not apply to individuals who cross the border now or in the future; only to those who have been in the country for the last year and a half.
Twelfth, given the influx of unaccompanied children in the RGV, we have increased CBP staffing and detailed 115 additional experienced agents from less active sectors to augment operations there. Secretary Johnson is considering sending 150 more Border Patrol agents based on his review of operations there this past week. These additional agents allow RGV the flexibility needed to achieve more interdiction effectiveness and increase CBP’s operational footprint in targeted zones within its area of operations.
Thirteenth, in early May, Secretary Johnson directed the development of a Southern Border and Approaches Campaign Planning effort that is putting together a strategic framework to further enhance security of our southern border. Plan development will be guided by specific outcomes and quantifiable targets for border security and will address improved information sharing, continued enhancement and integration of sensors, and unified command and control structures as appropriate. The overall planning effort will also include a subset of campaign plans focused on addressing challenges within specific geographic areas, all with the goal of enhancing our border security.
Finally, we will continue to work closely with Congress on this problem, and keep you informed. DHS is updating Members and staff on the situation in conference calls, and we are facilitating site visits to Border Patrol facilities in Texas and Arizona for a number of Members and their staff.
Secretary Johnson has directed his staff and agency leaders to be forthright in bringing him every conceivable, lawful option for consideration, to address this problem. In cooperation with the other agencies of our government that are dedicating resources to the effort, with the support of Congress, and in cooperation with the governments of Mexico and Central America, we believe we will stem this tide. Thank you.
5
331

Case 1:14-cv-00254 Document 38-23 Filed in TXSD on 12/24/14 Page 7 of 7
An open letter to the parents of children crossing our Southwest border
This year, a record number of children will cross our Southern border illegally into the United States. In the month of May alone, the number of children, unaccompanied by a mother or father, who crossed our southern border reached more than 9,000, bringing the total so far this year to 47,000. The majority of these children come from Honduras, El Salvador and Guatemala, where gang and drug violence terrorize communities. To the parents of these children I have one simple message: Sending your child to travel illegally into the United States is not the solution.
It is dangerous to send a child on the long journey from Central America to the United States. The criminal smuggling networks that you pay to deliver your child to the United States have no regard for his or her safety and well-being – to them, your child is a commodity to be exchanged for a payment. In the hands of smugglers, many children are traumatized and psychologically abused by their journey, or worse, beaten, starved, sexually assaulted or sold into the sex trade; they are exposed to psychological abuse at the hands of criminals. Conditions for an attempt to cross our southern border illegally will become much worse as it gets hotter in July and August.
The long journey is not only dangerous; there are no “permisos,” “permits,” or free passes at the end.
The U.S. Government’s Deferred Action for Childhood Arrivals program, also called “DACA,” does not apply to a child who crosses the U.S. border illegally today, tomorrow or yesterday. To be eligible for DACA, a child must have been in the United States prior to June 15, 2007 – seven years ago.
Also, the immigration reform legislation now before Congress provides for an earned path to citizenship, but only for certain people who came into this country on or before December 31, 2011 – two and one half years ago. So, let me be clear: There is no path to deferred action or citizenship, or one being contemplated by Congress, for a child who crosses our border illegally today.
Rather, under current U.S. laws and policies, anyone who is apprehended crossing our border illegally is a priority for deportation, regardless of age. That means that if your child is caught crossing the border illegally, he or she will be charged with violating United States immigration laws, and placed in deportation proceedings – a situation no one wants. The document issued to your child is not a “permiso,” but a Notice To Appear in a deportation proceeding before an immigration judge.
As the Secretary of Homeland Security, I have seen first-hand the children at our processing center in Texas. As a father, I have looked into the faces of these children and recognized fear and vulnerability.
The desire to see a child have a better life in the United States is understandable. But, the risks of illegal migration by an unaccompanied child to achieve that dream are far too great, and the “permisos” do not exist.
Jeh C. Johnson Secretary of the U.S. Department of Homeland Security
332

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 1 of 26
EXHIBIT 24

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 2 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
William A. Kandel, Coordinator Analyst in Immigration Policy Andorra Bruno Specialist in Immigration Policy Peter J. Meyer Analyst in Latin American Affairs Clare Ribando Seelke Specialist in Latin American Affairs Maureen Taft-Morales Specialist in Latin American Affairs Ruth Ellen Wasem Specialist in Immigration Policy July 3, 2014
Congressional Research Service 7-5700
www.crs.gov R43628
333

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 3 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Summary
Since FY2008, the growth in the number of unaccompanied alien children (UAC) from Mexico, El Salvador, Guatemala, and Honduras seeking to enter the United States has increased substantially. Total unaccompanied child apprehensions increased from about 8,000 in FY2008 to 52,000 in the first 8 ½ months of FY2014. Since 2012, children from El Salvador, Guatemala, and Honduras (Central America’s “northern triangle”) account for almost all of this increase. Apprehension trends for these three countries are similar and diverge sharply from those for Mexican children. Unaccompanied child migrants’ motives for migrating to the United States are often multifaceted and difficult to measure analytically.
Four recent out-migration-related factors distinguishing northern triangle Central American countries are high violent crime rates, poor economic conditions fueled by relatively low economic growth rates, high rates of poverty, and the presence of transnational gangs. In 2012, the homicide rate per 100,000 inhabitants stood at 90.4 in Honduras (the highest in the world), 41.2 in El Salvador, and 39.9 in Guatemala. International Monetary Fund reports show economic growth rates in the northern triangle countries in 2013 ranging from 1.6% to 3.5%, relatively low compared with other Central American countries. About 45% of Salvadorans, 55% of Guatemalans, and 67% of Hondurans live in poverty. Surveys in 2013 indicate that almost half of all unaccompanied children experienced serious harm or threats by organized criminal groups or state actors, and one-fifth experienced domestic abuse.
In 2011, Mexico passed legislation to improve migration management and ensure the rights of migrants transiting the country. According to many migration experts, implementation of the laws has been uneven. Some have questioned whether passage of such legislation has affected in some way the recent flows of unaccompanied children. However, the impact of such laws remains unclear.
Although economic opportunity may motivate some unaccompanied children to migrate to the United States, labor market conditions for low-skilled minority youth have worsened in recent years, even as industrial sectors employing low-skilled workers enjoy improved economic prospects. Educational opportunities may also provide a motivating factor to migration as perceptions of free and safe education may be widespread among the young. Family reunification is reported to be one of the key motives of unaccompanied children. Many have family members among the sizable Salvadoran, Guatemalan, and Honduran foreign-born populations residing in the United States.
While the impacts of actual and perceived U.S. immigration policies have been widely debated, it remains unclear if, and how, specific immigration policies have motivated children to migrate to the United States. Misperceptions about U.S. policies may be a contributing factor. The existence of long-standing humanitarian relief policies confounds causal links between them and the recent surge in unaccompanied children. A notable and recent exception is revised humanitarian relief provisions for unaccompanied children included in the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, which affects asylum claims, trafficking victim protections, and eligibility for Special Immigrant Juvenile Status. Some argue that unaccompanied children and their families falsely believe they would be covered under the Deferred Action for Childhood Arrivals (DACA) initiative and legalization provisions in proposed comprehensive immigration reform (CIR) legislation.
A separate report, CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem, discusses the recent surge in the number of UACs encountered at the U.S. border with Mexico, as well as the processing and treatment of UACs
Congressional Research Service
334

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 4 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
who are apprehended by immigration officials. Another report provides answers to frequently asked questions, CRS Report R43623, Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions, by Kate M. Manuel and Michael John Garcia. For information on country conditions, security conditions, U.S. policy in Central America, and circumstances that may be contributing to the increase in unaccompanied alien children migrating to the United States, see CRS Report RL34112, Gangs in Central America, by Clare Ribando Seelke; CRS Report R41731, Central America Regional Security Initiative: Background and Policy Issues for Congress, by Peter J. Meyer and Clare Ribando Seelke; CRS Report R43616, El Salvador: Background and U.S. Relations, by Clare Ribando Seelke; CRS Report R42580, Guatemala: Political, Security, and Socio-Economic Conditions and U.S. Relations, by Maureen TaftMorales; and CRS Report RL34027, Honduras: Background and U.S. Relations, by Peter J. Meyer.
Congressional Research Service
335

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 5 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Contents
Introduction...................................................................................................................................... 1 Background...................................................................................................................................... 2 Conditions in Central America as Possible “Drivers” for Unaccompanied Child Migration .......... 3
Economic Stagnation and Poverty............................................................................................. 5 Crime and Violence ................................................................................................................... 7 Migration Transit Zone Conditions and Mexico’s Migration Policies .......................................... 10 Factors in the United States Associated with Immigration of Unaccompanied Children.............. 12 Economic and Educational Opportunity.................................................................................. 12 Family Reunification ............................................................................................................... 14 U.S. Immigration Policies ....................................................................................................... 16
Humanitarian Forms of Immigration Relief...................................................................... 17 Deferred Action for Childhood Arrivals (DACA) and Legalization Proposals................. 20 Conclusion ..................................................................................................................................... 21
Figures
Figure 1. UAC Apprehensions by Country of Origin, FY2008-FY2014......................................... 2 Figure 2. Map of Central America and Neighboring Countries....................................................... 4 Figure 3. Annual Percentage Change in Real Gross Domestic Product (GDP): 2007-2014 .......... 6
Tables
Table 1. Primary Reasons Unaccompanied Children Emigrate ....................................................... 5 Table 2. Estimated Homicide Rates in Central America and Mexico: 2007-2012 .......................... 8
Contacts
Author Contact Information........................................................................................................... 21
Congressional Research Service
336

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 6 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Introduction
In the past several years, and in the past year in particular, the number of unaccompanied alien children (UAC)1 seeking to enter the United States along the U.S.-Mexico border has surged to unusually high levels. This surge is driven overwhelmingly by migration from El Salvador, Guatemala, and Honduras. Congress has expressed increasing concerns over this situation because of its implications for border security and U.S. immigration policy. Because the surge has occurred recently, and because few sources of data exist to accurately measure the characteristics and motives of these unaccompanied children, immigration observers have advanced a range of explanations for the surge.
The report is not intended to be an exhaustive review of all factors that potentially underlie the recent surge in unaccompanied children. Rather, it discusses major possible contributing factors that have been widely cited in published reports. It also emphasizes factors that may account for the recent surge in unaccompanied children, but not long-standing causes, such as wage and earnings differentials between other countries and the United States. The report distinguishes what are often referred to as “push” and “pull” factors2 associated with the recent surge. Push factors in this case refer to forces that originate in migrant origin countries which encourage children to emigrate to other countries. Pull factors refer to elements that originate in the United States and encourage children to migrate specifically to this country.
The analytic dichotomy between push and pull factors often blurs in actual circumstances. For example, family reunification may occur after a parent from an origin country secures employment in the United States. Yet, having an employed parent in the United States may easily make a child in an origin country more susceptible to extortion or kidnapping by criminal gangs, which in turn, may motivate the child to migrate to the United States. Hence, having an employed parent in the United States ostensibly acts as a “pull” factor while the threat of violence acts as a “push” factor, but in this example, the latter would not occur without the former.
Migration to another country stems not only from macro-level circumstances such as violence and economic hardship but also personal circumstances and characteristics, such as marital status and risk tolerance. Most children have multiple motives, and how those motives influence their decisions to migrate depend on a range of factors that cannot be measured easily.
This report begins by describing the recent surge in unaccompanied child apprehensions. It discusses several factors widely associated with out-migration from El Salvador, Guatemala, and Honduras, three countries accounting for much of the recent surge of unaccompanied child migrants. These factors include economic conditions and poverty, crime and violence, and conditions related to the migration transit zone between Central America and the United States. The report then discusses three broad factors that may be attracting migrants to the United States: economic and educational opportunity, family reunification, and U.S. immigration policies. It concludes with caveats on the attribution of causes to this situation.

1 In this report, we refer to unaccompanied alien children as unaccompanied children. 2 The terms “push factor” and “pull factor” have long been used in demographic research to explain human migration.

Congressional Research Service

1
337

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 7 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Background3
Unaccompanied alien children (UAC) are defined in statute as aliens4 under age 18, who lack lawful immigration status in the United States, and who are without a parent or legal guardian in the United States or lack a parent or legal guardian in the United States who is available to provide care and physical custody.5 They typically arrive at U.S. ports of entry or are apprehended along the southwestern border with Mexico. Less frequently they are apprehended in the interior and determined to be a juvenile6 and unaccompanied.7 Most of these children are aged 14 or older.
Figure 1. UAC Apprehensions by Country of Origin, FY2008-FY2014

Source: Prepared by Jamie L. Hutchinson, CRS Graphics Specialist. Data from Department of Homeland Security, United States Border Patrol, Juvenile and Adult Apprehensions–Fiscal Year 2013. (Data provided to CRS by request.) Notes: FY2014 figures are October 1, 2013, to June 15, 2014, representing just over 2/3 of a fiscal year.
The number of unaccompanied children has increased in the past six years and has surged in this current year. In FY2008, the number apprehended by U.S. Customs and Border Protection (CBP)
3 For information on unaccompanied alien children, see CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem. 4 Alien, a technical term appearing throughout the Immigration and Nationality Act (INA), refers to a foreign national who is not a citizen or national of the United States. This report uses “unaccompanied alien children” and “unaccompanied children” interchangeably. 5 6 U.S.C. §279(g)(2). 6 A juvenile is defined as an alien under the age of 18. 8 C.F.R. §263.3. In this report, the terms “juvenile,” “child,” and “minor” are used interchangeably. 7 A juvenile is classified as unaccompanied if neither a parent nor a legal guardian is with the juvenile alien at the time of apprehension, or within a geographical proximity to quickly provide care for the juvenile. 8 C.F.R. §236.3(b)(1).

Congressional Research Service

2
338

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 8 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration

totaled 8,041. In the first 8½ months of FY2014, apprehensions climbed to 52,000 (Figure 1).8 Nationals of Guatemala, Honduras, El Salvador, and Mexico, have accounted for almost all unaccompanied alien children apprehended at the Mexico-U.S. border during this period.
In the past three years, apprehensions of Mexican unaccompanied children, which rose substantially in FY2009, have since varied between 12,000 and 17,000. In contrast, apprehensions of unaccompanied children from Guatemala, Honduras, and El Salvador have increased considerably during this period. In FY2009, Mexicans accounted for 82% of the 19,668 unaccompanied child apprehensions, while the Central American countries accounted for 17%. By the first eight months of FY2014, the proportions had almost reversed, with Mexican apprehensions comprising only 23% of the 52,000 UAC apprehensions, and UAC from the three Central American countries comprising 75% of the total. The total increase in apprehensions in the past three years stems mainly from large increases in the number of unaccompanied children from the three Central American countries.
The similarity of the trends characterizing apprehensions of unaccompanied alien children from El Salvador, Guatemala, and Honduras, and their stark divergence from those characterizing unaccompanied Mexican children suggests that factors specific to Central America’s “northern triangle”9 underlies the sudden surge in total unaccompanied child apprehensions. What follows is a discussion of possible causes originating in the countries themselves (“push factors”) and other possible causes originating in the United States (“pull factors”).
Conditions in Central America as Possible “Drivers”
for Unaccompanied Child Migration
Central America is a region encompassing seven countries of the isthmus between Mexico and South America: Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (Figure 2). The overwhelming majority of the unaccompanied child migrants apprehended in Mexico or at the U.S.-Mexico border have come from Guatemala, Honduras, and El Salvador, which are often referred to as the “northern triangle” countries of Central America. High violent crime rates, poor economic conditions fueled by relatively low economic growth rates, relatively high poverty rates, and the presence of transnational gangs appear to be some of the main distinguishing factors between these three northern triangle countries and other countries in the region.10
Unaccompanied child migrants’ motives for emigrating appear to be multifaceted. In 2013, the U.N. High Commissioner for Refugees (UNHCR) conducted interviews with a representative group of about 400 unaccompanied minors from El Salvador, Guatemala, Honduras, and Mexico, all of whom had arrived in the United States since FY2012.11 Most of the unaccompanied minors
8 If extrapolated at the same rate to the end of the fiscal year, the figure would reach roughly 73,000. News reports have cited an internal DHS memorandum estimating that FY2014 apprehensions could total 90,000. Alicia A. Caldwell, Associated Press, “Border Patrol resources stretched thin as children illegally enter U.S. alone,” PBS Newshour, The Rundown, June 5, 2014. 9 This term is often used to refer to these three countries as a group. 10 For more information, see CRS Report R41731, Central America Regional Security Initiative: Background and Policy Issues for Congress, by Peter J. Meyer and Clare Ribando Seelke. 11 U.N. High Commissioner for Refugees (UNHCR), Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection, March 12, 2014, http://www.unhcrwashington.org/ sites/default/files/1_UAC_Children%20on%20the%20Run_Full%20Report.pdf, (hereinafter referred to as “UNHCR, (continued...)

Congressional Research Service

3
339

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 9 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
provided multiple reasons for leaving their countries. Many left to reunite with family or pursue opportunities in the United States. Of those interviewed, 21% mentioned joining a family member, 51% mentioned economic opportunity, and 19% mentioned education.12
Figure 2. Map of Central America and Neighboring Countries

Source: Prepared by Amber Hope Wilhelm, CRS Graphics Specialist.
Violence also played a large role in their decisions to emigrate. Nearly half of the children (48%) said they had experienced serious harm or had been threatened by organized criminal groups or state actors, and more than 20% had been subject to domestic abuse. As recently as 2006, only 13% of unaccompanied child migrants from Central America interviewed by UNHCR presented any indication they were fleeing societal violence or domestic abuse.
(...continued) Children on the Run”). Children interviewed were part of the increase in unaccompanied children beginning in FY2012. Almost all were interviewed while in the custody of the Office of Refugee Resettlement, the agency within the U.S. Department of Health and Human Services to which they are referred after apprehension. Children were identified by a random selection process that accounted for age, nationality, sex, and date of U.S. arrival. For more on the study’s methodology, see pp. 18-22. Caution must be used in generalizing a single study to the entire population of unaccompanied children. 12 Ibid.

Congressional Research Service

4
340

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 10 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration

Endemic poverty also appears to play a role in the emigration of unaccompanied minors, as 16% of those interviewed mentioned economic deprivation as a motive. There is some variation
depending on country of origin, with Salvadorans being more likely to cite societal violence and Guatemalans being more likely to cite economic deprivation as motives for emigration (see Table 1).13 Other studies involving interviews with unaccompanied children yield similar results.14

Table 1. Primary Reasons Unaccompanied Children Emigrate
(Percentage of minors interviewed by UNHCR in 2013 citing each factor)

Country of Origin

Societal Violence

Domestic Abuse

Economic Deprivation or
Social Exclusion

Family or Opportunities in the United
States

Other

El Salvador

66%

20%

7%

80%

35%

Guatemala

20%

23%

29%

84%

39%

Honduras

44%

24%

21%

82%

34%

Mexico

59%

17%

7%

80%

34%

Total

48%

21%

16%

81%

35%

Source: UNHCR, Children on the Run.
Notes: Sums exceed 100% since the majority of the children interviewed provided multiple reasons for emigrating. Column categories were grouped by source author, and more detailed reasons cannot be provided.

Economic Stagnation and Poverty
El Salvador, Guatemala, and Honduras are each considered lower middle income economies by the World Bank. Per capita gross domestic product (GDP) in 2014 is estimated to be $4,014 in El Salvador, $3,684 in Guatemala, and $2,368 in Honduras.15 The countries have maintained what are viewed by most economists as generally sound macroeconomic policies in recent years, and enjoyed stable economic growth until the onset of the global financial crisis and U.S. recession in 2009. At that time, the Salvadoran and Honduran economies contracted and the Guatemalan economy slowed significantly, demonstrating how all three countries are vulnerable to external shocks as a result of their open economies16 and close ties to the United States.17 Although all three economies have rebounded since 2010, growth rates have yet to fully recover (see Figure 3). El Salvador posted an economic growth rate of just 1.6% in 2013, the lowest of any country in Central America.18

13 Ibid. 14 See, for example, Women’s Refugee Commission, Forced from Home: The Lost Boys and Girls of Central America, October 2012; and Elizabeth G. Kennedy, “‘No Place for Children’: Central America’s Youth Exodus,” InSight Crime, June 23, 2014. 15 International Monetary Fund (IMF), World Economic Outlook Database, April 2014, accessed June 2014. 16 An open economy is an economy with relatively few barriers to trade or investment (as opposed to a closed or protectionist economy). Open economies are more integrated into the international market than closed economies, and thus more vulnerable to external shocks. 17 Close ties means the countries are heavily reliant on exports to the United States, remittances from the United States, and investment from the United States. 18 IMF, World Economic Outlook Database, April 2014, accessed June 2014.

Congressional Research Service

5
341

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 11 of 26

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 12 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Republic-Central America-United States Free Trade Agreement (CAFTA-DR) appear to be important in keeping apparel producers in those countries competitive in the U.S. market.23
Economic growth and slightly higher levels of social investment have led to improved social conditions in the region over the past decade. Nevertheless, poverty remains widespread. According to the U.N. Economic Commission for Latin America and the Caribbean (ECLAC), about 45% of Salvadorans, 55% of Guatemalans, and 67% of Hondurans live in poverty. Guatemala and Honduras have the highest income disparities in Central America, exacerbated by the social exclusion of indigenous people and ethnic minorities.24 The top 10% of earners account for 47% of national income in Guatemala and 43% of national income in Honduras.25
Crime and Violence
El Salvador, Guatemala, and Honduras have long struggled to address high levels of crime and violence, but the deterioration in security conditions has accelerated over the past decade.26 Counternarcotics efforts in Colombia and Mexico have put pressure on drug traffickers in those countries, leading some to battle over territory in Central America—a region with fewer resources and weaker institutions dedicated to addressing criminal activity.27 Increasing flows of illicit narcotics have coincided with rising levels of violence and have contributed to the corruption of government officials.
Gangs such as Mara Salvatrucha (MS-13) and the “18th Street” gang (M-18) also play a major role in crime and violence in the northern triangle region, but are not significantly present in other Central American countries.28 The 18th Street gang was formed by Mexican youth in the Rampart section of Los Angeles in the 1960s who were not accepted into existing Hispanic gangs. MS-13 was created during the 1980s by Salvadorans in Los Angeles who had fled the country’s civil conflict.29 Both gangs later expanded their operations to Central America. This process accelerated after the United States began deporting illegal immigrants, many with criminal convictions, back to the northern triangle region after the passage of the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) of 1996.30 In general, Central American

23 If apparel produced in Asian countries gains duty-free access to the U.S. market through the proposed Trans-Pacific Partnership agreement (TPP), it could displace apparel manufactured with U.S. fabric in Central America, causing job losses in those industries. CRS Report R42694, The Trans-Pacific Partnership (TPP) Negotiations and Issues for Congress, coordinated by Ian F. Fergusson; and CRS Report R42772, U.S. Textile Manufacturing and the TransPacific Partnership Negotiations, by Michaela D. Platzer. 24 Poverty rates are 17.8% in Costa Rica, 25.3% in Panama, and 58.3% in Nicaragua. Figures for Belize are unavailable. U.N. Economic Commission for Latin America and the Caribbean (ECLAC), Social Panorama of Latin America 2013, p. 50. 25 U.N. Economic Commission for Latin America and the Caribbean (ECLAC), Statistical Yearbook for Latin America and the Caribbean, 2013, December 2013. 26 For more information, see CRS Report R41731, Central America Regional Security Initiative: Background and Policy Issues for Congress, by Peter J. Meyer and Clare Ribando Seelke. 27 Michael Shifter, “Central America’s Security Predicament,” Current History, February 1, 2011 28 For background, see CRS Report RL34112, Gangs in Central America, by Clare Ribando Seelke. 29 For the history and evolution of these gangs, see Tom Diaz, No Boundaries: Transnational Latino Gangs and American Law Enforcement, Ann Arbor, M.I.: University of Michigan Press, 2009 30 IIRIRA expanded the categories of noncitizens subject to deportation and made it more difficult for foreign nationals to get relief from removal.

Congressional Research Service

7
343

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 13 of 26

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 14 of 26

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 15 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Migration Transit Zone Conditions and Mexico’s
Migration Policies
Conditions of migration facing unaccompanied children likely play a considerable role in determining whether they emigrate to the United States. While the persistence of economic stagnation, poverty, and criminal violence may explain why flows of unaccompanied minors have increased, the journey through Central America and Mexico to the United States has become more costly and dangerous. Unauthorized migrants from Central America, often lacking legal protection in Mexico because of their immigration status, have reportedly become increasingly vulnerable to human trafficking, kidnapping, and other abuses.45 Corrupt Mexican officials have been found to be complicit in activities such as robbery and abuse of authority.46 While Mexico has stepped up immigration enforcement in some areas (see below), enforcement along train routes frequently used by Central American child migrants continues to be lacking.47
As U.S. border security has tightened, more unauthorized Central American migrants have reportedly turned to smugglers (coyotes),48 who in turn must pay money to transnational criminal organizations (TCOs) such as Los Zetas, to lead them through Mexico and across the U.S.Mexico border.49 The Administration has estimated that 75-80% of unaccompanied child migrants are now traveling with smugglers.50 Some smugglers have reportedly sold migrants into situations of forced labor or prostitution (forms of human trafficking) in order to recover their costs; other smugglers’ failure to pay Los Zetas has reportedly resulted in massacres of groups of migrants.51 Mass grave sites where migrants have been executed by TCOs have been recovered in recent years.
The Mexican government appears to be attempting to balance enforcement and humanitarian concerns in its migration policies. Implementation of its new laws and policies has been criticized both by those who favor more enforcement and those who favor more migrants’ rights.52 In addition to stepping up efforts against human trafficking and passing new laws to stiffen penalties for alien smuggling (2010) and human trafficking (2012), Mexico enacted a comprehensive migration reform law in 2011 and secondary legislation to implement that law in 2012. Previously, Mexico’s immigration law, the General Population Act (GPA) of 1974, limited legal immigration and restricted the rights of foreigners in Mexico, with unauthorized migrants subject to criminal penalties. In 2008, the Mexican Congress reformed the GPA to decriminalize simple
45 Steven Dudley, Transnational Crime in Mexico and Central America: Its Evolution and Role in International Migration, Woodrow Wilson International Center for Scholars & Migration Policy Institute, November 2012, http://www.wilsoncenter.org/sites/default/files/transnational_crime_mexico_centralamerica.pdf. 46 Adam Isacson, Maureen Meyer, and Gabriela Morales, Mexico’s Other Border: Security, Migration, and the Humanitarian Crisis as the Line with Central America, Washington Office on Latin America (WOLA), June 2014, available at http://www.wola.org/news/new_wola_report_mexicos_other_border (hereinafter referred to as WOLA, Mexico’s Other Border Security.) 47 Ibid. 48 Human smuggling typically involves the provision of a service, generally procurement or transport, to people who knowingly consent to that service in order to gain illegal entry into a foreign country. For more information, see CRS Report RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress, by Alison Siskin and Liana Rosen. 49 See Caitlin Dickson, “How Mexico’s Cartels are Behind the Border Kid Crisis,” The Daily Beast, June 23, 2014. 50 White House, Office of the Vice President, “Remarks to the Press with Q&A by Vice President Joe Biden in Guatemala,” press release, June 20, 2014. 51 Oscar Martinez, “How the Zetas Tamed Central America’s ‘Coyotes,’” Insight Crime, May 1, 2014. 52 WOLA, Mexico’s Other Border Security.

Congressional Research Service

10
346

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 16 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration

migration offenses, making unauthorized migrants subject to fines and deportation, but no longer subject to imprisonment. In May 2011, it passed a broader reform of the GPA.53
Contrary to some media reports, Mexico’s 2011 law did not create a transit visa for migrants crossing through Mexico, as civil society groups had been advocating. As a result of the law, Mexico now requires visas for Central Americans entering its territory (aside from those on temporary work permits or those possessing a valid U.S. visa).
According to many migration experts, implementation of Mexico’s 2011 migration law has been uneven. While some purges of corrupt staff within the National Migration Institute (INM) in the Interior Ministry have occurred in the past year, implementation of the migration law has been hindered by the government’s failure to more fully overhaul INM.54 Some experts maintain that Mexico lacks the funding and institutions to address traditional migration flows, much less the increasing numbers of U.S.-bound unaccompanied children that its agents are detaining. Mexico has only two shelters for migrant children and no foster care system in which to place those who might be granted asylum.
Despite provisions to improve migrants’ rights included in the 2011 migration law, the Mexican government also continues to remove large numbers of Central American adult migrants, arrest smugglers of those migrants, and return unaccompanied child migrants to Central America.55 According to INM, Mexico detained 86,929 foreigners in 2013, 80,079 of whom were removed (79,416 people were removed in 2012). Of those who were removed, some 97.4% originated in the northern triangle countries of Central America. In the first four months of 2014, Mexico removed some 24,000 people from the northern triangle countries, 9% more than during that period in 2013.56 Child protection officers from INM accompanied 8,577 children to their countries of origin in 2013 and 6,330 from January through May 2014; 99% of those children originated in northern triangle countries.57
With U.S. support, the Mexican government in 2013 started implementing a southern border security plan that has involved the establishment of 12 naval bases on the country’s rivers and three security cordons that stretch more than 100 miles north of the Mexico-Guatemala and Mexico-Belize borders.58
53 Mexico’s 2011 migration reform was aimed at (1) guaranteeing the rights and protection of all migrants in Mexico; (2) simplifying Mexican immigration law in order to facilitate legal immigration; (3) establishing the principles of family reunification and humanitarian protection as key elements of the country’s immigration policy; and (4) concentrating immigration enforcement authority within the National Migration Institute (INM) in the Interior Ministry in order to improve migration management and reduce abuses of migrants by police and other officials. For a general description of the law in English, see Gobierno Federal de México, “Mexico’s New Law on Migration,” September 2011, available at http://usmex.ucsd.edu/assets/028/12460.pdf. 54 Reforms that migration experts have recommended include raising hiring standards for immigration agents, regulating how migrants should be treated, and strengthening internal and external controls over migration agents. Sonja Wolf et. al., Assessment of the National Migration Institute: Towards an Accountability System for Migrant Rights in Mexico, INSYDE, 2014. 55 From January through May 2014, the Mexican government arrested 431 people for breaking provisions in the migration law; most of those individuals were accused of smuggling-related crimes. Gobierno de Mexico, Sistema Institucional de Información Estadística (SIIE), “Incidencia Delictiva del Fuero Federal, 2014.” 56 Gobierno de Mexico, Secretaría de Gobernación, Instituto Nacional de Migración, Boletín de Estadística Migratorias, 2013. 2014 statistics are available at http://www.politicamigratoria.gob mx/. 57 Gobierno de Mexico, Secretaría de Gobernación, Instituto Nacional de Migración, “Reintegra INM a Más de 14 Mil Niños Migrantes con sus Familias,” Boletín 31/14, June 11, 2014. 58 The State Department has provided $6.6 million of mobile Non-Intrusive Inspection Equipment (NIIE) and approximately $3.5 million in mobile kiosks, operated by Mexico’s National Migration Institute, that capture the (continued...)

Congressional Research Service

11
347

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 17 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration

Factors in the United States Associated with
Immigration of Unaccompanied Children
Forces that potentially attract unaccompanied children to the United States may be more subjective than forces that cause them to leave their home countries. Unlike the prevalence of actual violence or deprivation associated with daily economic hardship, for instance, the perception of economic opportunity or the chance to obtain legal authorization to live in the United States may often conflict with what is legally and actually possible. Several reports suggest that migrant smugglers prey on potential migrants’ desperation by misleading them with false information about such possibilities.59
Immigration observers have made numerous, sometimes conflicting assertions of the importance of one or another pull factor, relying on a range of empirical evidence. Despite considerable public attention, the precise combination of motives driving unaccompanied children to migrate to the United States remains unclear. The discussion below considers three widely cited motivations: economic and educational opportunity, family reunification, and recent U.S. immigration policies.
Economic and Educational Opportunity60
Unaccompanied children regularly cite economic opportunity in the United States as a reason for their emigration north.61 Since almost all are school-aged children, it remains unclear how this stated aspiration should be interpreted. Given endemic poverty in northern triangle countries, slow economic growth, and the large and long-standing income disparity between the triangle countries and the United States, it remains unclear the extent to which fluctuations in economic conditions in the United States actually affect children’s migration decisions.
In the United States, current employment levels for minority youth are low relative to all other labor market groups.62 In the immediate term, the potential for unaccompanied children to participate in the U.S. labor market is constrained in most cases by lack of English language skills, limited educational attainment, and, given their age, the extent to which U.S. laws permit their labor force participation.63 Assuming they found employment, such constraints would likely relegate them to low-skilled, low-wage sectors of the U.S. economy.
(...continued)
biometric and biographic data of individuals transiting southern Mexico. Total State Department support is likely to reach at least $86.6 million. The U.S. Department of Defense (DOD) has also provided training to troops patrolling the border, communications equipment, and support for the development of Mexico’s air mobility and surveillance capabilities. WOLA, op. cit. U.S. Department of State, Bureau of International Narcotics and Law Enforcement Affairs, “INL Assistance for Mexico’s Southern Border Strategy,” fact sheet, June 2014. For background, see CRS Report R41349, U.S.-Mexican Security Cooperation: The Mérida Initiative and Beyond, by Clare Ribando Seelke and Kristin Finklea. 59 The White House, Office of the Vice President, “Readout of the Vice President’s Meetings on Unaccompanied Minors and Immigration Reform,” press release, June 26, 2014; and “Under-age and on the move: A wave of unaccompanied children swamps the debate over immigration,” The Economist, June 28, 2014. 60 Craig Elwell, Specialist in Macroeconomic Policy, Government and Finance Division, and Michael Garcia, Attorney in the American Law Division, both contributed to this section. 61 UNHCR, Children on the Run. 62 CRS Report R42519, Youth and the Labor Force: Background and Trends, by Adrienne L. Fernandes-Alcantara. 63 The Fair Labor Standards Act (FLSA) sets 14 years of age as the minimum age for employment, and limits the (continued...)

Congressional Research Service

12
348

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 18 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Apart from what unaccompanied children cite as pull factors, U.S. labor market conditions likely affect their parents and relatives residing in the United States, which in turn, may play a critical role in the recent surge. Improving employment prospects, for instance, could more readily provide parents with the means to afford the expense of their children’s migration to this country and lead to greater desire for family reunification as discussed below.64
At a national level, macroeconomic data on the U.S. economy indicate that despite overall improvement, considerable slack remains in labor markets, with labor force participation remaining weak and the unemployment rate and other measures of labor force utilization remaining well above most estimates of the long-run sustainable rate.65
Labor market conditions for low-skilled workers are especially challenging. Bureau of Labor Statistics (BLS) employment data by educational attainment show that employment for workers with less than a high school diploma66 fell by about 5 million jobs between 2007 and 2014.67 Thus, despite some indications of economy-wide recovery and U.S. labor market improvement, the demand for low-skill workers has not recovered over the same period that has witnessed the surge of unaccompanied children.
Regarding unauthorized workers, while extensive academic scholarship has analyzed their role, impact, and prospects in the U.S. labor force, government reporting is hindered by data limitations. Government statistics, as a rule, do not capture legal status of the foreign-born workforce. Therefore, assessing how U.S. economic conditions serve as a magnet for typically low-skilled and often unauthorized workers cannot be measured directly and is usually estimated or inferred by assessing the employment outlook of industrial sectors most likely to employ low skilled and unauthorized workers.
Research from the Pew Hispanic Center, which produces authoritative statistics on the unauthorized population, suggests that unauthorized workers concentrate in four low-skilled industrial sectors: farming; building, grounds-keeping and maintenance; construction; and food preparation and serving.68 With the exception of farming, the BLS projects that these occupations are expected to grow close to or above the average rate of all occupations in the coming decade.69

(...continued)
number of hours worked by minors under the age of 16. Unauthorized minors who file affirmatively for asylum may apply for work authorization after six months. For more information on asylum, see CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem. 64 Smuggling an unauthorized migrant from Central America can cost as much as $10,000. See United Nations Office on Drugs and Crime, Smuggling of migrants: the harsh search for a better life, 2014, http://www.unodc.org/toc/en/ crimes/migrant-smuggling.html, accessed by CRS on June 27, 2014; and Bryan Roberts, Gordon Hanson, and Derekh Cornwell, et al., An Analysis of Migrant Smuggling Costs along the Southwest Border, Department of Homeland Security, Office of Immigration Statistics, Working Paper, November 2010. 65 CRS Report R43476, Returning to Full Employment: What Do the Indicators Tell Us?, by Marc Labonte. 66 Half of all Central American foreign-born adults living in the United States lacked a high school diploma in 2010. See CRS Report R41592, The U.S. Foreign-Born Population: Trends and Selected Characteristics, by William A. Kandel, p. 18. 67 U.S. Department of Labor, Bureau of Labor Statistics, Current Population Survey, Table A-4, available at http://www.bls.gov/webapps/legacy/cpsatab4 htm. 68 These four sectors accounted for an estimated 73% of all unauthorized worker employment. Pew Hispanic Center, A Portrait of Unauthorized Immigrants in the United States, by Jeffrey S. Passel, and D’Vera Cohn, April 14, 2009. 69 U.S. Department of Labor, Bureau of Labor Statistics, Employment Projections: 2012-2022 Summary, December 19, 2013, http://www.bls.gov/news release/ecopro.nr0 htm, accessed June 27, 2014.

Congressional Research Service

13
349

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 19 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Hence, the economic prospects for low-skilled, low-wage, and typically unauthorized workers appears mixed. While employment in low-skilled sectors of the economy has suffered more and recovered less than that of other sectors in the past seven years since the economic downturn, the employment prospects for the economic sectors most likely to employ such workers appears on par with or above the national average. Nonetheless, perceptions of opportunities may have greater impact than fluctuations in U.S. economic and labor market conditions.
Unaccompanied children also cite educational opportunity in the United States as a reason for their emigration north.70 Unauthorized aliens in the United States are able to receive free public education through high school. In 1982, the Supreme Court’s decision in Plyler v. Doe prohibited states from restricting access of children to public elementary and secondary education on the basis of immigration status.
The Court’s ruling did not concern access to higher education, however, and both the federal government and some states have adopted measures that limit unlawfully present aliens’ eligibility for admission to public institutions of higher education, in-state tuition, or financial aid.71
Family Reunification
Family reunification is often cited as a primary reason for the recent large-scale migration of unaccompanied children to the United States.72 Surveyed unaccompanied children cite family reunification as one of the main reasons for migrating to the United States.73 The desire to reunite with family stems from family separation that occurs when one or both parents migrate to a destination country for more remunerative employment. Prior to the mid-1990s, migrants from Mexico and Central America who worked in the United States often returned regularly to be with their families in their origin countries.74 Increased border enforcement in the mid-1990s gradually made unauthorized entry into the United States more difficult and expensive, which had the unintended consequence of creating a “caging effect” by encouraging unauthorized aliens to settle permanently in the United States rather than working temporarily and regularly returning home.75
Demographic and survey data provide evidence of sizable linkages between the three countries dominating the recent spike in unaccompanied child apprehensions and their foreign-born
70 UNHCR, Children on the Run. 71 For more information, see CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno; and “Noncitizens and Eligibility for HEA Federal Student Aid Programs” in CRS Report R43302, Postsecondary Education Issues in the 113th Congress, coordinated by David P. Smole. 72 See for instance, Muzaffar Chishti and Faye Hipsman, “Dramatic Surge in the Arrival of Unaccompanied Children Has Deep Roots and No Simple Solutions,” Migration Information Source, June 13, 2014; and “Under-age and on the move: A wave of unaccompanied children swamps the debate over immigration,” The Economist, June 28, 2014. 73 UNHCR, Children on the Run. 74 Such migration patterns are fairly universal. See for example, “When Mothers and Fathers Migrate North: Caretakers, Children, and Child Rearing in Guatemala”, by Michelle J. Moran-Taylor, in Latin American Perspectives, (Vol. 35, No. 4, July, 2008), pp. 79-95; for a broader treatment, see Douglas S. Massey, “World in Patterns and Processes of International Migration in the 21st Century,” Paper prepared for Conference on African Migration in Comparative Perspective, Johannesburg, South Africa, June 4, 2003. 75 CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by Lisa Seghetti. For more on how U.S. immigration policy affected migration flows, see Wayne Cornelius, “Evaluating Recent US Immigration Control Policy: What Mexican Migrants Can Tell Us,” in Crossing and Controlling Borders: Immigration Policies and Their Impact on Migrants’ Journeys, ed. Mechthild Baumann, Astrid Lorenz, and Kerstin Rosenhow (Farmington, MI: Budrich Unipress Ltd, 2011); Douglas S. Massey, Jorge Durand, and Nolan J. Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration (Russell Sage Foundation, 2002).

Congressional Research Service

14
350

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 20 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration

populations living in the United States. In 2012, the foreign-born populations from El Salvador (1,254,501), Guatemala (880,869), and Honduras (535,725) ranked as the 6th, 10th, and 16th largest groups, respectively, of all foreign born groups.76 From the perspective of the source country, U.N. survey data indicate that sizable percentages of children residing in these three countries have at least one parent living in the United States.77 Were data available on other relatives living in the United States, such as siblings or extended relatives, these percentages would be higher.
The desire for family reunification is also driven by the perception that children who are not immediately returned to their home countries can reside with their family members for periods extending several years, as discussed below under “U.S. Immigration Policies.” Upon apprehension, unaccompanied children are immediately given a Notice to Appear (NTA) before an immigration judge who will adjudicate their case to remain in the United States.78 Receipt of an NTA indicates the start of immigration proceedings.
Yet, by law, persons apprehended by Customs and Border Patrol (CBP) and whom CBP determines to be unaccompanied children from countries other than Mexico and Canada, must be turned over to the care and custody of Health and Human Services (HHS), Office of Refugee Resettlement (ORR) while they await their removal hearing.79 Unaccompanied children are moved from the custody of the law enforcement agency that apprehended them to a human services agency experienced with child welfare and family reunification. ORR is required to place these children in the least restrictive setting possible that accounts for the child’s best interests.80 In an estimated 90% of these cases, children are placed with parents, siblings, and extended relatives who currently reside in the United States.81
The Immigration and Nationality Act (INA) contains provisions allowing foreign nationals to reside lawfully in the United States if they are sponsored by parents and siblings who are U.S. citizens or Lawful Permanent Residents.82 However, sizable proportions of these family members are estimated to be unauthorized aliens.83 According to DHS, the estimated unauthorized
76 Other Central American countries ranked considerably lower: Nicaraguans were 31st, Panamanians were 55th, Costa Rican were 67th, and Belizians were 86th. Mexicans represent the largest foreign-born population residing in the United States. For El Salvador, the population residing in the United States is one fifth the size of population living in El Salvador (6.3 million). Source: 2012 American Community Survey (ACS) Public Use Micro Sample (PUMS). 77 The figure is 49% in El Salvador, 27% in Guatemala and 47% in Honduras. By comparison, the figure for Mexico is 22%. Source: UNHCR, Children on the Run. 78 For more information on the processing of unaccompanied alien children, see CRS Report R43599, Unaccompanied Alien Children: An Overview, by Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem. 79 The Homeland Security Act of 2002 (HSA; P.L. 107-296) divided responsibilities for the processing and treatment of UAC between the newly created Department of Homeland Security (DHS) and the Department of Health and Human Services’ (HHS) Office of Refugee Resettlement (ORR). The Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457, Section 235) differentiated treatment according to whether or not unaccompanied children originated from the contiguous countries of Mexico and Canada. Unaccompanied alien children from Mexico and Canada may also be turned over to HHS-ORR if they are determined to be victims or potential victims of trafficking, if they claim asylum, or if they do not consent to return voluntarily. 80 The TVPRA directed HHS to ensure that unaccompanied children “be promptly placed in the least restrictive setting that is in the best interest of the child.” §§235(a)-235(d) of TVPRA; 8 U.S.C. §1232(b)(2). See also “What is the “best interest of the child” standard, and how does it apply to immigration detention and removal decisions?” in CRS Report R43623, Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions, by Kate M. Manuel and Michael John Garcia. 81 Administration for Children and Families, Office of Refugee Resettlement, Unaccompanied Alien Children Program, U.S. Department of Health and Human Services, Fact Sheet, May 2014. 82 See CRS Report R43145, U.S. Family-Based Immigration Policy, by William A. Kandel. 83 As a policy, ORR does not inquire as to the legal status of the family member with whom the unaccompanied child is (continued...)

Congressional Research Service

15
351

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 21 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
populations in 2012 of Salvadorans, Guatemalans, and Hondurans living in the United States was 690,000, 560,000, and 360,000, respectively, representing 55%, 64%, and 67% of all foreign-born residents from those three countries living in the United States.84
The length of time unaccompanied children can expect to wait until their removal hearing may play a role for incentivizing their migration to the United States. As of March 2014, the average wait time nationwide for all immigration proceedings was 19 months.85 However, the length of time until a final judgment occurs varies widely depending on appeals and individual circumstances.86 Surges in caseloads, such as that caused by the current influx of unaccompanied children, can also tax the limited resources of the immigration court system, further extending wait times for removal hearings, and possibly fostering a perception among foreign nationals that a unique opportunity exists to exploit this administrative backlog. Rumors of these backlogs and the potential for being reunited with family—even if temporarily—reportedly have reached emigrant-sending communities in Central America.87
U.S. Immigration Policies
The possible relationship between U.S. immigration policies (actual policies as well as perceptions of policies) and the surge in arrivals of unaccompanied children has been the subject of heated discussion among immigration observers and policy makers. It is not known if, and how, specific immigration policies may have influenced decisions to try to enter the United States unlawfully. News reports, however, suggest that perceptions of unspecified U.S. policies toward alien minors may have played a role. According to a June 2014 New York Times article:
[C]hildren, parents, immigration officials, lawyers and activists interviewed say that there has been a subtle shift in the way the United States treats minors.
That perception has inspired parents who have not seen their children for years to hire socalled coyotes, guides often associated with organized crime, to bring them north. It has prompted other parents to make the trip with toddlers in tow, something rarely seen before in the region.88
(...continued) placed. 84 Bryan Baker and Nancy Rytina, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2012, Department of Homeland Security, Office of Immigration Statistics, March 2013. For comparison, the unauthorized proportion of the total foreign-born population for Mexico is 58%. These figures do not account for considerable numbers of U.S.-born children whose parents were born in these countries. For more on the demographics of legal status among the foreign-born, see CRS Report R41592, The U.S. Foreign-Born Population: Trends and Selected Characteristics, by William A. Kandel. 85 This figure is based upon an analysis by the Transactional Records Access Clearinghouse (TRAC) of data obtained from the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) for all immigration cases, not just those involving unaccompanied children. See TRAC Immigration data, http://trac.syr.edu/phptools/immigration/ court_backlog, accessed June 2014. 86 The 19 month figure is an average for all immigration courts, and comprises a range of periods, some of which extend far beyond 19 months. 87 Jennifer Scholtes, “CBP Chief: Policies may be Fueling Spike in Minors Crossing Border Illegally,” CQ Roll Call, April 2, 2014; Julia Preston, “Hoping for Asylum, Migrants Strain U.S. Border,” New York Times, April 10, 2014; David Nakamura, “Influx of Minors across Texas Border Driven by Belief They will be Allowed to Stay in U.S.,” Washington Post, June 13, 2014. 88 Frances Robles, “Wave of Minors on Their Own Rush to Cross Southwest Border,” New York Times, June 4, 2014, (hereinafter cited as Robles, New York Times).

Congressional Research Service

16
352

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 22 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Similarly, a June 2014 article by the Migration Policy Institute makes reference to “some evidence of a growing perception among Central Americans that the U.S. government’s treatment of minors, as well as minors traveling in family units, has softened in recent years.”89 As discussed below, there have been recent changes in the treatment of unaccompanied children who arrive in the United States, in accordance with the Trafficking Victims Protection Reauthorization Act of 2008.
Much of the debate about the possible role of U.S. immigration policy in the surge has focused on specific policies and proposals that some may believe can offer unaccompanied children the prospect of a period of stay in the United States or U.S. lawful permanent resident status. A March 2014 Miami Herald article, after noting that many arriving children are fleeing gang violence, stated:
But children are also being sent by families who believe they could qualify for immigration reform—if Congress ever acts on it—or for President Barack Obama’s 2012 Deferred Action for Childhood Arrivals program known as DACA.90
For its part, the Obama Administration maintains that the driving force behind the surge “is what’s happening in [the unaccompanied children’s] home countries.”91 The Administration has stated, however, that misinformation about U.S. policies has been a contributing factor. White House Domestic Policy Council Director Cecilia Muñoz, as reported by Bloomberg News in June 2014, blamed the increase in unaccompanied children attempting to cross the border in part on ‘misinformation’ about immigration law and administration actions regarding minors that “is being deliberately promulgated by criminal networks’ involved in smuggling aliens into the U.S.”92 Other observers who reject the argument that Administration policies are responsible for the surge in unaccompanied child arrivals point to “Obama’s aggressive deportation policy since ... 2009.”93
U.S. immigration policies and proposals – both legislative and administrative – that have been widely cited as possible factors in the surge or that are relevant to the treatment of unaccompanied children who arrive in the United States are discussed here.
Humanitarian Forms of Immigration Relief
As discussed above, child migrants report that they are fleeing violence, deprivation, abuse, or other hardships in their home countries as well as reuniting with family already in the United States. At issue is whether U.S. immigration policies that provide humanitarian relief to those who are fleeing such situations may serve as a magnet to foreign nationals. These humanitarian policies include asylum, relief for trafficking victims, and special immigrant status for juveniles.94
89 Muzaffar Chishti and Faye Hipsman, “Dramatic Surge in the Arrival of Unaccompanied Children Has Deep Roots and No Simple Solutions,” Migration Information Source, June 13, 2014, http://www migrationpolicy.org/article/ dramatic-surge-arrival-unaccompanied-children-has-deep-roots-and-no-simple-solutions. 90 Chardy, Alfonso, “Number of Unaccompanied Minors Arriving Illegally in U.S. Is Rising,” Miami Herald, March 29, 2014. Newly arriving children would not, in fact, benefit from DACA or the Senate-passed comprehensive immigration reform bill (S. 744) in the 113th Congress. 91 Quoted in Robles, New York Times, op.cit. 92 Dorning, Mike, “Obama Boosts Border Security as Unaccompanied Minors Rise,” Bloomberg News, June 20, 2014. 93 Richard Cowen, “Waves of Immigrant Minors Present Crisis for Obama, Congress,” Reuters.com, May 28, 2014. 94 Another possible form of relief, Temporary Protective Status (TPS), is not discussed in this report because it currently does not apply to unaccompanied children arriving from the northern triangle. For information on TPS, see CRS Report RS20844, Temporary Protected Status: Current Immigration Policy and Issues, by Ruth Ellen Wasem and Karma Ester.

Congressional Research Service

17
353

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 23 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
As these policies on humanitarian relief have been in place for many years, it is difficult to make a causal link between them and the recent surge in unaccompanied children from Central America. The only notable and recent revisions to the policies on humanitarian relief for unaccompanied children were included in the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, as discussed below.
Asylum
Many immigration observers expect that a large proportion of unaccompanied children seeking immigration relief in the United States will apply for asylum. The United States has long held to the principle that it will not return a foreign national to a country where his or her life or freedom would be threatened. This principle is embodied in several provisions of the INA, most notably in provisions defining refugees and asylees that the Refugee Act of 1980 added to the INA.95
In 2008, the TVPRA revised the procedures and policies for those unaccompanied children who file for asylum, most notably requiring that unaccompanied children from contiguous countries (i.e., Canada and Mexico) be screened for possible asylum claims. Subsequently, DHS opted to screen all unaccompanied children for possible asylum claims.96 In addition, the TVPRA gives U.S. Citizenship and Immigration Services (USCIS) asylum officers “initial jurisdiction over any asylum application filed by” an unaccompanied child.97
To receive asylum, foreign nationals must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. Because “fear” is a subjective state of mind, assessing the merits of an asylum case rests in large part on the credibility of the claim and the likelihood that persecution would occur if the alien is returned home.
Asylum claims for the current surge of unaccompanied children may be complicated by uncertainty as to whether their circumstances meet the criteria established by the INA for asylum seekers. It remains to be seen the extent to which this legal option would offer immigration relief to the many unaccompanied children who claim asylum on the basis of feared persecution due to
95 CRS Report R41753, Asylum and “Credible Fear” Issues in U.S. Immigration Policy , by Ruth Ellen Wasem. 96 8 U.S.C. §1101 et seq. Within 48 hours DHS personnel must screen the unaccompanied child to determine that he or she has not been a victim of a severe form of trafficking in persons and that there is no credible evidence that the minor is at risk should the minor be returned to his country of nationality or of last habitual residence; that the unaccompanied child does not have a possible claim to asylum; and that the unaccompanied child is able to make an independent decision to voluntarily return to his country of nationality or of last habitual residence. 97 §§235(a) – 235(d) of TVPRA; 8 U.S.C. §1232. Prior to the TVPRA revisions, the unaccompanied children who sought asylum did so during a removal proceeding before an immigration judge in the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR). USCIS guidelines require that the asylum officer conduct “childappropriate interviews taking into account age, stage of language development, background, and level of sophistication.” The guidelines also note that the child’s age may affect the analysis of his or her asylum status (e.g., in considering whether the harm the child suffered amounts to persecution, in evaluating the child’s possibly limited knowledge of events, etc.). Where a child is unable to identify all relevant motives for the persecution, the guidelines state that “a nexus can still be found if the objective circumstances support the child’s claim that the persecutor targeted the child based on one of the protected grounds. If the Asylum Officer decides that an unaccompanied children in removal proceedings is not eligible for a grant of asylum, case processing will depend on the status of the unaccompanied child’s case before EOIR. The Asylum Office coordinates with Immigration and Customs Enforcement (ICE) for the transfer of the files of the unaccompanied children not granted asylum back to ICE. Joseph E. Langlois, “Updated Procedures for Minor Principal Applicant Claims, Including Changes to RAPS,” Interoffice Memorandum, USCIS Refugee, Asylum, and International Operations Directorate, August 14, 2007, p. 6-7; and Joseph E. Langlois, “ Implementation of Statutory Change Providing USCIS with Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children,” Interoffice Memorandum, March 29, 2009

Congressional Research Service

18
354

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 24 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
gang-related violence.98 Data on the percentage of unaccompanied alien children who receive asylum is not available.99
Trafficking Victims
Unaccompanied children who arrive at the U.S. border may have valid claims for immigration relief on the basis of being trafficking victims.100 Foreign nationals who are victims of severe forms of trafficking are eligible for T nonimmigrant status and ultimately lawful permanent residence if they meet certain conditions.101 U.S. statute defines severe forms of trafficking to mean: (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.102
In addition to requiring that unaccompanied children from contiguous countries be screened for possible asylum claims, the TVPRA of 2008 requires that they be screened to determine that the unaccompanied child has not been a victim of a severe form of trafficking in persons.
In March 2009, DHS issued a policy that essentially made the trafficking screening provisions applicable to all unaccompanied children.103 Immigration judges generally issue a relatively small number of T “visas” (856 in FY2013), and the number of unaccompanied alien children among these is unknown.
Special Immigrant Juveniles
More than two decades ago, Congress created an avenue for unauthorized children who become dependents of the court to become lawful permanent residents (LPRs).104 Any child or youth who was born in a foreign country; who lives without legal authorization in the United States; who has experienced abuse, neglect, or abandonment; and who meets other specified eligibility criteria may be eligible for the LPR classification of special immigrant juvenile (SIJ).
98 See “Can UACs obtain asylum due to gang violence in their home countries?” in CRS Report R43623, Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions, by Kate M. Manuel and Michael John Garcia. 99 Discussion with Executive Office of Immigration Review (EOIR), Legislative and Public Affairs, June 4, 2014. 100 For more information on the difference between human trafficking, which involves forms of involuntary coercion, and human smuggling, which involves knowing consent, see CRS Report RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress, by Alison Siskin and Liana Rosen. 101 To qualify for the “T” visa, the victim of trafficking must also be: physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or a U.S. port of entry because of such trafficking, or to participate in investigative or judicial processes associated with such trafficking; have complied with any reasonable request for assistance to law enforcement in the investigation or prosecution of acts of trafficking unless unable to do so due to physical or psychological trauma, or be under the age of 18; and be likely to suffer extreme hardship involving unusual and severe harm upon removal. CRS Report RL34317, Trafficking in Persons: U.S. Policy and Issues for Congress, by Alison Siskin and Liana Rosen. 102 §103(8) of P.L. 106-386; 22 U.S.C. 7102. 103 U.S. Congress, Senate Committee on the Judiciary, “Trafficking Victims Protection Reauthorization Act: Renewing the Commitment to Victims of Human Trafficking,” testimony of DHS Acting Deputy Assistant Secretary Kelly Ryan, September 13, 2011. 104 The provision was initially aimed at children of unauthorized aliens who had been abused, neglected or abandoned.

Congressional Research Service

19
355

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 25 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Among other things, TVPRA of 2008 amended the SIJ eligibility provisions to 1) remove the requirement that a juvenile court deem a juvenile eligible for long-term foster care and 2) replace it with a requirement that the juvenile court find reunification with one or both parents not viable. According to USCIS legal guidance, an eligible SIJ would include the following:
[An unauthorized child] who has been declared dependent on a juvenile court; whom a juvenile court has legally committed to, or placed under the custody of, an agency or department of a State; or who has been placed under the custody of an individual or entity appointed by a State or juvenile court. Accordingly, petitions that include juvenile court orders legally committing a juvenile to or placing a juvenile under the custody of an individual or entity appointed by a juvenile court are now eligible.105
SIJ status is one of the few forms of immigration relief in the INA that specifically takes into account the best interests of the child. By statute, ORR must consent to any court having jurisdiction to determine the custody status or placement of a juvenile alien in ORR custody for SIJ status.106 It is not known how many unaccompanied children have ultimately obtained SIJ status.107
Deferred Action for Childhood Arrivals (DACA) and Legalization Proposals
Some observers have singled out the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) initiative and legalization provisions in proposed comprehensive immigration reform (CIR) legislation as possible factors in the surge of unaccompanied child arrivals. The DACA initiative provides temporary protection from removal to certain individuals who were brought to the United States before age 16 and meet other criteria. Among the criteria is continuous residence in the United States since June 15, 2007.108 Although new arrivals would not be eligible for DACA, some argue that unaccompanied children and their families falsely believe that they would be covered.109
CIR legislation introduced in Congress in recent years typically has included provisions to enable certain unauthorized aliens to become lawful permanent residents of the United States. In 2013, the Senate passed a CIR bill (the Border Security, Economic Opportunity, and Immigration Modernization Act; S. 744) that would establish a general legalization program for unauthorized aliens who have been continuously physical present in the United States since December 31, 2011, and meet other criteria; dependent spouses and children of principal applicants would have to have maintained continuous physical presence in the United States since December 31, 2012, and meet other requirements. S. 744 would provide a special pathway to LPR status for successful applicants under the general legalization program who entered the United States before age 16 and satisfy other requirements.110 Newly arriving unaccompanied children would not be eligible for the S. 744 legalization programs.
105 Letter from Donald Neufeld, Acting Associate Director, Domestic Operations, and Pearl Chang, Acting Chief, Office of Policy, to USCIS Field Leadership, March 9, 2009, http://www.uscis.gov/sites/default/files/USCIS/Laws/ Memoranda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf. 106 INA 101(b)(27)(J)(iii)(I). 107 CRS Report RL34500, Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues, by Ruth Ellen Wasem, pp. 6-7. 108 See CRS Report RL33863, Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno. 109 Muzaffar Chishti and Faye Hipsman, “Dramatic Surge in the Arrival of Unaccompanied Children Has Deep Roots and No Simple Solutions,” Migration Information Source, June 13, 2014. 110 See CRS Report R43097, Comprehensive Immigration Reform in the 113th Congress: Major Provisions in SenatePassed S. 744, by Ruth Ellen Wasem.

Congressional Research Service

20
356

Case 1:14-cv-00254 Document 38-24 Filed in TXSD on 12/24/14 Page 26 of 26
Unaccompanied Alien Children: Potential Factors Contributing to Recent Immigration
Conclusion
This report has conceptualized possible factors contributing to the recent and sizable increase in unaccompanied children into “push” and “pull” forces. The former comprise conventional and long-standing forces such as endemic poverty and lack of economic opportunity, as well as recent causes, such as the rise of gangs and drug trafficking organizations that have destabilized El Salvador, Guatemala, and Honduras and severely limited these countries’ ability to protect their youth. The latter include more subjective factors, such as aspirations for employment and education, the desire to reunite with family members, and perceptions related to U.S. immigration policies.
With information relatively scare, and circumstances changing rapidly, it becomes challenging to accurately measure or gauge which factors are the most important drivers of the current surge. For example, surveys by organizations with distinct goals may sometimes yield findings that place substantially more emphasis on one factor over another. Absent full scale representative information, it may be difficult to draw conclusions about the magnitude of any single factor or its relative strength over another. As noted above, the division between push and pull factors blurs as multiple factors affect individuals making personal decisions to migrate.

Author Contact Information
William A. Kandel, Coordinator Analyst in Immigration Policy wkandel@crs.loc.gov, 7-4703
Andorra Bruno Specialist in Immigration Policy abruno@crs.loc.gov, 7-7865
Peter J. Meyer Analyst in Latin American Affairs pmeyer@crs.loc.gov, 7-5474

Clare Ribando Seelke Specialist in Latin American Affairs cseelke@crs.loc.gov, 7-5229
Maureen Taft-Morales Specialist in Latin American Affairs mtmorales@crs.loc.gov, 7-7659
Ruth Ellen Wasem Specialist in Immigration Policy rwasem@crs.loc.gov, 7-7342

Congressional Research Service

21
357

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 1 of 31
EXHIBIT 25

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 2 of 31
GUATEMALA 2013 HUMAN RIGHTS REPORT
EXECUTIVE SUMMARY
Note: This report was updated 3/18/14; see Appendix H: Errata for more information.
Guatemala is a multi-party constitutional republic. In November 2011 Otto Perez Molina of the Patriot Party won the presidential election for a four-year term that began in January 2012. International observers considered the election generally free and fair. In some instances civilian authorities failed to maintain effective control over the security forces. Members of the security forces committed human rights abuses.
Principal human rights abuses included widespread institutional corruption, particularly in the police and judicial sectors; police and military involvement in serious crimes such as kidnapping, drug trafficking, and extortion; and societal violence, including often lethal violence, against women.
Other human rights problems also included abuse and mistreatment by National Civil Police (PNC) members; harsh and life-threatening prison conditions; arbitrary arrest and detention; prolonged pretrial detention; failure of the judicial system to ensure full and timely investigations and fair trials; and failure to protect judicial officials, witnesses, and civil society representatives from intimidation and threats. There were also killings of journalists and trade unionists; sexual harassment and discrimination against women; child abuse, including commercial sexual exploitation of children; discrimination and abuse of persons with disabilities; and trafficking in persons. Other problems included marginalization of indigenous communities and ineffective demarcation of their lands, discrimination on the basis of sexual orientation and gender identity, and ineffective enforcement of labor and child labor laws.
The government cooperated with the UN-backed International Commission Against Impunity in Guatemala (CICIG) and took steps to prosecute officials who committed abuses. Impunity, however, continued to be widespread.
Considerable violence was attributed to gangs, organized crime, and narcoticstrafficking organizations; however, corruption and inadequate investigation and prosecution of such crimes made factual attribution for crimes difficult.
358

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 3 of 31

GUATEMALA

2

Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary or Unlawful Deprivation of Life
The PNC and its Office of Professional Responsibility (ORP), which is the mechanism for investigating security force abuse, did not provide the total annual number of accusations of killings involving PNC agents at year’s end. There were no reports that the government committed politically motivated killings.
On August 8, a court convicted former criminal investigations director of the PNC Victor Hugo Soto Dieguez and sentenced him to 33 years in jail for the extrajudicial killing of three inmates who escaped from the El Infiernito prison in 2005 and seven inmates who escaped from the Pavon prison in September 2006. A court also convicted and sentenced PNC agents Axel Arnoldo Martinez and Victor Manuel Ramos Molina to 25 years in jail for the same crimes.
On May 10, a three-judge panel found former dictator Efrain Rios Montt guilty of genocide and crimes against humanity and sentenced him to 80 years in prison. On May 20, the Constitutional Court overturned the conviction on procedural grounds and returned the case to a different panel for rehearing.
According to government statistics, in the first nine months of the year, there were 4,661 violent deaths reported throughout the country, compared with 4,412 violent deaths for the same period in 2012, a 5.6 percent increase.
b. Disappearance
There were no reports of politically motivated disappearances.
On September 21, a court convicted Israel Miranda Ramirez and sentenced him to 50 years in prison for abuse of power and the forced disappearance of four PNC investigators in March 2012.
In June 2012, authorities arrested 11 PNC agents in the kidnapping of Byron Eduardo Lopez Moreno and the attempted kidnapping of Mexican national Francisco Bravo Navarro in May 2012; the agents were members of Police District 13 in Guatemala City’s Zone 10. In October 2012, the Fifth First Instance Court closed the case citing lack of evidence, and on February 1, the Third Appeals Court confirmed that decision.

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
359

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 4 of 31

GUATEMALA

3

On April 22, authorities arrested five PNC agents for kidnapping a woman in 2008 in the municipality of San Pedro in San Marcos Department.
On September 20, a court convicted Hector Bol de la Cruz and Jorge Humberto Gomez Lopez and sentenced them to 40 years in jail for the 1984 forced disappearance of student leader and trade union activist Edgar Fernando Garcia.
In August 2012 judges convicted former police commander Pedro Garcia Arredondo for the 1981 forced disappearance of student Edgar Saenz Calito and sentenced Arredondo to 70 years in jail. An appeals court upheld the sentence on May 20.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the constitution and the law prohibit torture and other cruel, inhuman, or degrading treatment or punishment, there were credible reports of abuse and other mistreatment by PNC members.
On April 5, a court convicted PNC Agent Marvis Florian Lemus and sentenced him to 61 years in jail for the rape of a 12-year-old girl he illegally detained for 11 months.
Prison and Detention Center Conditions
Prison conditions were harsh and life threatening, with multiple instances of killings of inmates by other inmates. No cases were investigated or trials held in these incidents. Sexual assault, inadequate sanitation and medical care, and gross overcrowding continued to place prisoners at significant risk.
Physical Conditions: Prison overcrowding continued to be a problem. According to the prison system registry, as of August 2, there were 16,244 inmates, including 1,412 women, held in facilities designed to hold 6,742 persons. There were 876 juveniles under the custody of the Secretary of Social Welfare.
Physical conditions included wholly inadequate sanitation and bathing facilities, dental and medical care, ventilation, temperature control, and lighting. Prisoners had difficulty accessing potable water, complained of inadequate food, and often had to pay for additional sustenance. Illegal drug sales and use continued to be widespread. Prison officials continued to report a loss of safety and control,
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
360

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 5 of 31

GUATEMALA

4

including escape attempts, gang fights, the inability to control the flow of goods into prisons, and the fabrication of weapons. Prisoners continued to direct criminal activity both inside and outside of prisons. The prison guard force did not control prisoners effectively.
On February 15, inmate Byron Lima Oliva, serving a 20-year conviction for complicity in the murder of Bishop Gerardi, was arrested while out of prison. Penitentiary System Director Luis Gonzalez Perez had, without the mandatory court order, authorized Lima to visit a dentist in the morning. A routine highway checkpoint intercepted Lima after 6 p.m. Gonzalez was fired for the incident, and Lima remained in custody at the Pavoncito Prison.
From January to October, according to the Penitentiary System, 38 prisoners died while in prison, 34 of whom died of natural causes. No further information was available on the causes for the other four deaths.
Conditions for male and female prisoners were usually comparable throughout the country. The media and nongovernmental organizations (NGOs) noted, however, that female and juvenile inmates faced continuing physical and sexual abuse. Female inmates reported unnecessary body searches and verbal abuse by prison guards. Children under three years of age could live in prison with their mothers, although the penitentiary system provided inadequate food for young children, and many suffered from illness. Lesbian, gay, bisexual, and transgender (LGBT) rights groups noted that other prisoners often sexually assaulted gay and transgender individuals.
Occasionally, authorities held together male and female detainees in immigration facilities, held pretrial detainees with convicted prisoners, and held juveniles with adults.
Administration: The government’s independent human rights ombudsman, whose responsibilities also include prisoner rights, does not have authority to act on behalf of prisoners and detainees regarding alternatives to incarceration for nonviolent offenders, circumstances of confinement of juvenile offenders, or procedural improvements to ensure prisoners do not serve beyond the maximum sentence for the charged offense. Recordkeeping remained inadequate. Authorities used alternatives to sentencing for nonviolent offenders.
Prisoners and detainees had reasonable access to visitors and could observe their religious practices. While the law requires authorities to permit prisoners and
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
361

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 6 of 31

GUATEMALA

5

detainees to submit complaints to judicial authorities without censorship and to request investigation of credible allegations of inhumane conditions, authorities failed to investigate most allegations of inhumane conditions and treatment or to document the results of such investigations in a publicly accessible manner.
Independent Monitoring: The government permitted visits by local and international human rights groups, the Organization of American States (OAS), public defenders, and religious groups.
d. Arbitrary Arrest or Detention
The constitution and law prohibit arbitrary arrest and detention, but there were credible reports of extrajudicial arrests, illegal detentions, and denial of timely access to a magistrate and hearing as required by law.
Role of the Police and Security Apparatus
The PNC, overseen by the Ministry of Government and headed by a director general appointed by the ministry, has responsibility for law enforcement and maintenance of order in the country. The military focuses primarily on operations in defense of the country; however, the army was increasingly utilized in internal security and policing. The Ministry of National Defense oversees the military. Civilian authorities in some instances failed to maintain effective control over the PNC and the army, and the government lacked effective mechanisms to investigate and punish abuse and corruption. There were reports of impunity involving security forces during the year. The PNC remained understaffed, inadequately trained, and insufficiently funded, all of which substantially impeded its effectiveness.
While no active members of the military served in the police command structure, the government continued to employ the military along with police units in response to rising crime. The level of impunity for security forces accused of committing crimes was high. In cases in which police forces were implicated, the ORP is charged with internal investigations; the Public Ministry is responsible for external investigations. To reform the police forces, a Police Reform Commission, established under the previous administration, has a legal mandate to make necessary changes.
Police impunity for criminal activities continued to be a serious problem. There were credible reports that individual PNC officers and some police units or persons
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
362

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 7 of 31

GUATEMALA

6

disguised as police officers stopped cars and buses to demand bribes or steal private property and in some cases kidnapped, assaulted, and raped victims. Police and immigration officials reportedly extorted and mistreated persons attempting to enter the country illegally. The PNC routinely transferred officers suspected of wrongdoing rather than investigating and punishing them.
Police continued to threaten persons engaged in commercial sexual activities with false drug charges to extort money or sexual favors and harassed LGBT persons with similar threats. Critics accused police of indiscriminate and illegal detentions when conducting anti-gang operations in some high-crime neighborhoods. Security officials allegedly arrested and imprisoned suspected gang members without warrants or on false drug charges. There were press reports of police involvement in kidnappings for ransom. The ORP and the Public Ministry reported that during the year numerous complaints were filed against PNC personnel for kidnapping.
The ORP conducted internal investigations of misconduct by police officers. In the first 10 months of the year, the ORP reported receiving 1,461 complaints alleging misconduct of police personnel.
The PNC reported it trained 2,035 cadets in human rights and professional ethics. By year’s end the Ministry of National Defense had not released the number of military officers and soldiers receiving human rights training.
Arrest Procedures and Treatment of Detainees
The law requires presentation of a court-issued warrant to a suspect prior to arrest unless the suspect is caught in the act of committing a crime. Police may not detain a suspect for more than six hours without bringing the case before a judge. Authorities did not regularly respect this right, however, and some detainees were not promptly informed of the charges filed against them. After suspects are arraigned, the prosecutor generally has three months to complete the investigation and file the case in court, or seek a formal extension of the detention period. The law prohibits the execution of search warrants between 6:00 p.m. and 6:00 a.m. unless the government has declared a state of siege. The law provides for access to lawyers and bail for most crimes. The government provides legal representation for indigent detainees, and detainees have access to family members. A judge has the discretion to determine whether bail is necessary or permissible for pretrial detainees.

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
363

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 8 of 31

GUATEMALA

7

Arbitrary Arrest: There were no reliable data on the number of arbitrary detentions, although most accounts indicated that police forces continued to ignore writs of habeas corpus in cases of illegal detention, particularly during neighborhood anti-gang operations. No detailed reporting from ORP or NGOs was available by year’s end.
Pretrial Detention: The law establishes a three-month limit for pretrial detention, but authorities regularly held detainees past their legal trial or release dates. Authorities did not release some prisoners in a timely fashion after completing full sentences due to the failure of judges to issue the necessary court order or other bureaucratic problems. As of August 14, prison system records indicated 50 percent of prisoners were in pretrial detention.
e. Denial of Fair Public Trial
The constitution and the law provide for an independent judiciary. The judicial system failed to provide fair or timely trials due to inefficiency, corruption, insufficient personnel, and intimidation of judges, prosecutors, and witnesses.
Judges, prosecutors, plaintiffs, and witnesses continued to report threats, intimidation, and surveillance, most often from drug-trafficking organizations. By the end of September, the special prosecutor for crimes against judicial workers had received 213 complaints of threats or aggression against workers in the judicial branch, compared with 145 in 2012.
The Ministry of Government assigned police officers to CICIG to enhance judicial security. The CICIG-vetted prosecutor unit, created by the Public Ministry, continued to be directly supervised by a senior prosecutor with CICIG. According to CICIG, it participated in the investigation of 57 high-profile cases, including extrajudicial executions, extortion, trafficking in persons, improper adoptions, corruption, and drug trafficking. CICIG prosecuted the Gasofa case, which involved a gasoline-smuggling network including PNC and customs official. Several CICIG cases culminated in convictions, such as the August 8 conviction of former chief of criminal investigations of the PNC Victor Hugo Soto Dieguez and former police investigators Axel Arnoldo Martinez Arriaza and Victor Manuel Ramos Molina. Soto was sentenced to 33 years in jail and the others 25 years for the extrajudicial killing of 10 inmates between 2005 and 2006. Also notable were the September 30 convictions of former police chief Baltazar Gomez, former PNC chief of antinarcotics Nelly Judith Bonilla, and police officer Fernando Carrillo

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
364

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 9 of 31

GUATEMALA

8

Garcia. All three were convicted and sentenced to 16 years in jail for storing, dealing, and trafficking drugs.
There was no reporting available regarding witnesses killed during the year.
The Supreme Court continued to seek the suspension of judges and conduct criminal investigations for improprieties or irregularities in cases under its jurisdiction. The Judicial Disciplinary Unit investigated 978 complaints of wrongdoing, held hearings for 390 complaints, and applied sanctions to several cases, ranging from written notice to 30-day suspension.
Trial Procedures
The constitution provides for the right to a fair public trial, the presumption of innocence, the right to be present at trial, and the right to counsel in a timely manner. The law requires attorneys be provided at government expense for defendants facing criminal charges if the defendant cannot find or afford an attorney. Defendants and their attorneys have access to government-held evidence relevant to their case, and they may confront adverse witnesses and present their own witnesses and evidence. The law provides for plea bargaining and the right of appeal. Three-judge panels render verdicts, and there are no trials by jury. The law provides for oral trials and mandates language interpretation for those needing it; however, courts did not always provide language interpretation.
The Public Ministry, acting semi-independently of the executive branch, may initiate criminal proceedings on its own or in response to a complaint. Private parties may participate in the prosecution of criminal cases as plaintiffs. Lengthy investigations and frequent procedural motions by both defense and prosecution often led to excessively long pretrial detention, frequently delaying trials for months or years.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
Individuals and organizations had access to administrative and judicial remedies to bring lawsuits seeking damages for, or cessation of, a human rights violation or

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
365

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 10 of 31

GUATEMALA

9

other alleged wrongs. While the judiciary was generally impartial and independent in civil matters, it suffered from inefficiency and institutional weaknesses.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The constitution and the law prohibit such actions, and the government generally respected these prohibitions.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and press, and the government generally respected these rights; however, criminal intimidation of journalists resulted in significant self-censorship.
Press Freedoms: Despite laws supporting freedom of the press, many journalists were the victims of threats, harassment, and violence. Reporters covering organized crime, including its links to corrupt public officials, acknowledged practicing self-censorship, recognizing the danger investigative journalism posed to them and their families. The independent media were active and expressed a wide variety of views, but difficulty obtaining licenses to operate community radio stations and accessing some information limited press freedom.
Violence and Harassment: Members of the press continued to report that violence and impunity impaired the practice of free and open journalism. The press reported that numerous threats by public officials and criminal organizations increased journalists’ sense of vulnerability.
During the year unidentified assailants killed four journalists in separate attacks. It was unclear whether the journalists were targeted because of their profession. The government established a task force to investigate these killings and any potential linkages to the journalists’ professions.
The Public Ministry reported it received 113 complaints of attacks and other acts of intimidation against journalists as of the end of September.
Censorship or Content Restrictions: Members of the press reported receiving pressure, threats, and retribution by various public officials regarding the selection and content of their reporting. Some owners and members of the media also
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
366

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 11 of 31

GUATEMALA

10

accused the government of following a discriminatory advertising policy, penalizing or rewarding print and broadcast media based upon whether news or commentary was perceived as supportive or critical of the administration.
In August Jose Ruben Zamora, director of El Periodico newspaper, claimed the government attempted to force the closure of his newspaper by withholding government advertising and enforcing a de facto but undeclared boycott by private sector advertisers because his paper was critical of the administration.
Nongovernmental Impact: Organized crime exerted violent influence over media outlets and reporters, frequently threatening individuals for reporting on criminal activities and warning journalists not to write or publish reports about crimes.
Private companies were also accused of criminalizing the work of journalists. On July 25, Prensa Libre reporter Ricardo Miranda accused the sugar plantation El Pilar of illegal intimidation and filed a complaint in a local court. El Pilar had sued Miranda for defamation because of Miranda’s reporting on El Pilar’s contamination of a local river. The defamation suit against Miranda and Miranda’s countersuit remained open at year’s end.
Internet Freedom
There were no government restrictions on access to the internet or credible reports that the government monitored e-mail or internet chat rooms without appropriate legal authority. According to the International Telecommunication Union, 3 percent of households had access and 16 percent of the population used the internet in 2012.
Academic Freedom and Cultural Events
There were no government restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
The constitution provides for freedom of assembly and association, and the government generally respected these rights; however, there were reports of security forces using excessive force against demonstrators.
Freedom of Assembly

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
367

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 12 of 31
HONDURAS 2013 HUMAN RIGHTS REPORT
EXECUTIVE SUMMARY
Honduras is a constitutional, multiparty republic. Juan Orlando Hernandez won the presidency on November 24 in an election that international observers generally recognized as transparent, credible, and reflected the will of the Honduran electorate. Civilian authorities failed at times to maintain effective control over the security forces. Members of security forces committed human rights abuses and were turned over to the civilian justice system.
Among the most serious human rights problems were corruption, intimidation, and institutional weakness of the justice system leading to widespread impunity; unlawful and arbitrary killings by security forces, organized criminal elements, and others; and harsh and at times life-threatening prison conditions.
Pervasive societal violence persisted. There continued to be reports of killings in rural areas, including the Bajo Aguan region, of indigenous people, agricultural workers, bystanders, private security guards, and security forces related to land disputes, infrastructure development projects, organized crime, and other factors. Other human rights problems included violence against detainees; lengthy pretrial detentions and failure to provide due process of law; threats against journalists; corruption in government; violence against and harassment of women; child prostitution and abuse; trafficking in persons; encroachment on indigenous lands and discrimination against indigenous and Afro-descendent communities; violence against and harassment of lesbian, gay, bisexual, and transgender (LGBT) persons; ineffective enforcement of labor laws; and child labor.
The government took steps to prosecute and punish officials who committed abuses, but corruption, intimidation, and the poor functioning of the justice system were serious impediments to the protection of human rights. There continued to be instances in which military or police officials suspected of human rights violations were not investigated or punished.
Organized criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of violent crimes in the country and committed acts of murder, extortion, kidnapping, torture, human trafficking, and intimidation of journalists and human and worker rights defenders.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
368

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 13 of 31

HONDURAS

2

a. Arbitrary or Unlawful Deprivation of Life
There were reports that members of the security forces committed arbitrary or unlawful killings. The Public Ministry, through the Office of the Special Prosecutor for Human Rights and other offices, directs investigations of cases in which a member of a security force has participated in the death of a civilian, and such cases are tried in civilian courts.
In March members of the military (operating pursuant to the December 2011 temporary military policing decree) responded to reports of a shooting in a neighborhood of San Pedro Sula. A shoot-out ensued between military and armed civilians. One civilian was killed and four persons were injured, including one soldier and three civilians. Five military members were arrested for homicide and attempted homicide, and the case was in process through the Office of the Special Prosecutor for Human Rights in San Pedro Sula.
In August family members alleged that members of security forces beat to death 15-year-old Jose Eduardo Aguilera Gonzalez after he was detained as a suspect in the killing of a transit police officer. At year’s end the Office of the Special Prosecutor for Human Rights was investigating the case.
In June a civilian trial began against members of the military charged in the May 2012 killing of 15-year-old Ebed Jassiel Yanes Caceres and the crime’s cover-up. The Office of the Special Prosecutor for Human Rights charged Eleazar Abimael Rodriguez of the First Infantry Battalion with homicide and abuse of authority, and Felipe de Jesus Rodriguez of the First Infantry Battalion and Josue Antonio Sierra of the First Special Forces Battalion with obstruction of justice and dereliction of duty. Several members of military leadership also were implicated in the cover-up, and pretrial proceedings began against them in June. Authorities accused Jesus Alberto Marmol Yanes, Raynel Enrique Funez Ponce, Juan Ruben Giron Reyes, Mariano Mendoza Maradiaga, Juan Jose Flores Alvares, and Jose Emiliano Novoa Funez of cover-up and abuse of authority. At year’s end all were subject to courtordered measures in lieu of imprisonment, with the exception of Eleazar Abimael Rodriguez, who was incarcerated pending trial.
In October the Public Ministry and police detained five current and former members of the National Police as suspects in the December 2012 homicide of Eduardo Alejandro Coello Chavez, the son of the former Honduran ambassador to the Organization of American States.
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
369

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 14 of 31

HONDURAS

3

In August a court convicted four former police officers of the high-profile 2011 killings of university students Carlos David Pineda and Rafael Alejandro Vargas Castellanos and the ensuing cover-up. As of November two additional suspects in the killing remained at large, and charges against the other two suspects were pending.
On November 5, a court found Marvin Noel Andino guilty of the killing of anticorruption activist and antinarcotics advisor Alfredo Landaverde in 2011. At year’s end the investigation continued in search of the intellectual authors of the crime.
Violence related to land conflicts and criminal interests in the Bajo Aguan region continued, but the number of violent deaths decreased to an estimated 16 as of September, from an estimated 40 in 2012, according to government statistics. The regional Office of the Special Prosecutor for Human Rights in La Ceiba was investigating three of five allegations of human rights abuse in the Aguan region from 2012, and two cases were in judicial proceedings. Human rights organizations in the region stated that victims often did not file complaints of abuse due to fear of repercussions. Investigators pointed to a lack of resources and obstruction by field workers and some human rights nongovernmental organizations (NGOs) as causes for the lack of progress in investigations. A military task force continued operations to restore order in the region by confiscating illegal weapons and drugs, and executing legal property eviction orders.
b. Disappearance
There were no reports of politically motivated disappearances. In May the press reported five cases in which suspected gang members disappeared after encounters with police. At year’s end police were investigating the disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the constitution and law prohibit such practices, human rights NGOs reported receiving complaints of police abuse both on the street and in municipal detention centers. The special prosecutor for human rights reported receiving 16 complaints of torture by members of security forces. As of September
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
370

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 15 of 31

HONDURAS

4

investigations continued in 12 of those cases, one case was closed, and three were in judicial processing.
Prison and Detention Center Conditions
Prison conditions did not meet international standards and were harsh and life threatening due to overcrowding, insufficient access to food and water, violence, abuses by prison officials, and the influence of organized crime.
Physical Conditions: Overcrowding was a significant risk to prisoner welfare. The country had 24 prisons, 23 of them for men. As of September the total prison population was 12,969 in a system with a designed capacity of 8,603. There were 521 women in prison.
Authorities generally held female prisoners in a separate facility under conditions similar to those of male prisoners, but held some in separate areas of men’s prisons. Children up to the age of three could stay with their mothers in prison.
Four juvenile detention centers operated under the supervision of the Institute of the Child and Family. The government did not implement reforms approved in 2012 intended to replace the institute with a different entity due to charges of widespread corruption. The number of minors in juvenile detention centers increased from 240 in 2012 to 356 as of September. Judges tended to place minors in the centers due to lack of educational or reform programs outside the juvenile detention system.
Authorities often held pretrial detainees together with convicted prisoners.
In September court proceedings began against the former director of the Comayagua prison and three penitentiary police for culpability in the 2012 fire that killed 358 prisoners.
Prisoners suffered from severe overcrowding, malnutrition, lack of adequate sanitation and medical care, and, in some prisons, lack of adequate ventilation and lighting. Due to budget cuts, authorities provided prisons the equivalent of 50 cents per prisoner per day for food. In most prisons access to potable water was limited to prisoners who purchased bottled water or had water filters in their cells. Due to overcrowding and lack of adequate training of prison staff, prisoners were subject to various abuses, including rape by other inmates. Prisons lacked trained personnel to ensure the psychological and physical well-being of inmates, and
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
371

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 16 of 31

HONDURAS

5

some prisons lacked sufficient security personnel. The media reported multiple prison riots and violent confrontations between gang members throughout the year.
The ready access of prisoners to weapons and other contraband, impunity for inmates who attacked other inmates, inmate escapes, and threats by inmates and their associates outside prison against prison officials and their families contributed to an unstable and dangerous environment in the penitentiary system. Authorities held prisoners from rival gangs in separate facilities or in separate areas of the same prison to reduce gang violence. In some facilities prisoners themselves controlled their own areas while prison staff provided security outside the perimeter of each living unit and facility.
In August the military began to monitor the outer perimeters of the two largest prisons following the killing of three gang-affiliated prisoners by nonaffiliated prisoners who used AK-47s and grenades in the attack.
There were credible reports from human rights organizations that prison officials used excessive force against prisoners, including beatings, in addition to isolation and threats.
Persons with mental illnesses, as well as those with tuberculosis and other infectious diseases, were held with the general prison population. Authorities at the National Penitentiary in Tamara reported that their facility was the only prison in the country with an antiretroviral treatment program, but it did not have necessary materials to test for or diagnose HIV/AIDS, tuberculosis, or diabetes. In addition the surgical unit lacked anesthesia, surgical gloves, and needles.
Administration: In December 2012 the National Congress passed a prison reform law, which, among other things, created the National Penitentiary Institute, an autonomous institution linked to the Secretariat of State of Interior, to manage the country’s prisons. Public defenders and judges assisted in seeking alternatives to incarceration for nonviolent offenders to alleviate overcrowding; addressing the status and circumstances of confinement of juvenile offenders; and improving pretrial detention, bail, and recordkeeping procedures to ensure that prisoners did not serve beyond the maximum sentence for the charged offense. The legal department of every prison also handled recordkeeping, but recordkeeping procedures were inadequate and resulted in some prisoners serving time in prison longer than their sentence.

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
372

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 17 of 31

HONDURAS

6

Prisoners could transmit concerns directly to the director of the prison in which they were incarcerated, who transferred the complaints to the director of the National Penitentiary Institute. The national human rights commissioner also received complaints and conducted investigations. The 2012 prison law created a department of human rights and an inspector general office within the new institute. NGO and official investigation results were available to the public.
Authorities generally permitted inmates to have access to visitors, including in some cases women in prostitution, and religious services of their choice. They also permitted inmates to submit complaints to judicial authorities without censorship and to request investigation of inhumane conditions. The director of prisons held meetings with human rights organizations.
Independent Monitoring: The government generally permitted prison visits by independent local and international human rights observers, including the International Committee of the Red Cross (ICRC).
Improvements: The Secretariat of State of Security continued a major prison reform program begun in 2010 involving the construction of new facilities to reduce overcrowding, separate the most dangerous prisoners from nonviolent offenders, and promote rehabilitation. The ICRC undertook programs to improve water and electrical systems at some prisons.
d. Arbitrary Arrest or Detention
The constitution and law prohibit arbitrary arrest and detention, but human rights NGOs reported that authorities at times failed to enforce these prohibitions effectively.
Role of the Police and Security Apparatus
The Secretariat of State of Security oversees most police operations, including those of the National Police, National Preventive Police, Criminal Investigation Division, Transit Police, Border Police, and Tourist Police. The National Police maintain internal security. The armed forces are responsible for external security but also have some domestic security responsibilities. A December 2011 decree grants the military policing powers for a 90-day period under special circumstances, including at the request of the secretary of state for security. Authorities continued to renew this power at the end of each 90-day period following the enactment of the decree. In August the government created a new
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
373

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 18 of 31

HONDURAS

7

military police unit, which reported to military authorities but conducted operations approved by civilian security and defense officials. The training program for the new military police included human rights training.
Corruption and impunity continued to be serious problems within the security forces. Some members of the police participated in crimes with local and international criminal organizations. The Directorate General for the Investigation and Evaluation of the Police Career (DIECP) was responsible for police oversight. By the end of 2012, there were 687 administrative and criminal complaints against members of police forces related to allegations of conduct not befitting an officer, abuse of authority, police brutality, robbery, and homicide. Of those complaints, the DIECP concluded investigations in 280 cases as of July 30. The DIECP transmitted 44 of the 280 cases to the Public Ministry, which began judicial proceedings in 26 of the 44 cases. The remaining 407 complaints remained under investigation. Very few investigations were resolved.
The secretary of state of security took some steps to reform security forces. As of August the secretariat implemented background checks of more than 800 police officers, stopped paying more than 2,000 phantom police officers, removed from supervisory positions a number of officers across all sections of the police, and introduced global positioning system (GPS) technology to monitor police movements. Despite these steps, NGOs continued to criticize the Secretariat of State of Security for failing to remove hundreds of officers who failed background checks. Some NGOs collaborated with the Public Security Reform Commission, established in 2012 to recommend reforms to the criminal justice system, to propose reforms including police training curricula focused on human rights and a police code of ethics.
As of August the Police Education System and the Criminal Investigation School provided approximately 200 hours of human rights-related training to members of the National Police at all levels.
Arrest Procedures and Treatment of Detainees
The law provides that police can arrest a person only with a court order unless the arrest is made during the commission of a crime, there is strong suspicion that a person has committed a crime and may evade criminal prosecution, a person is caught with evidence related to a crime, or a prosecutor has ordered the arrest. The law requires police to inform a person of the grounds for arrest and bring the detainee before a competent authority within 24 hours. It stipulates that the
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
374

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 19 of 31

HONDURAS

8

prosecutor has 24 hours to decide if there is probable cause for indictment. A judge then has 24 hours to decide whether to issue a temporary detention order that may last up to six days, by which time the judge must hold a pretrial hearing to examine probable cause and decide whether pretrial detention should continue. The law provides for bail for persons charged with some felonies and the right of prisoners to have prompt access to family members. The law allows suspected criminals to be released pending formal charges with the provision that the suspect periodically report to authorities. Authorities generally respected these provisions. Although the law also provides prisoners the right of prompt access to a lawyer of their choice, and, if indigent, to government-provided counsel, authorities did not always follow these requirements.
Pretrial Detention: Judicial inefficiency, corruption, and insufficient resources delayed proceedings in the criminal justice system, and lengthy pretrial detention was a serious problem. As of September 50 percent of prison inmates were formally sentenced. The law mandates the release of a detainee whose case has not come to trial and whose time in detention has exceeded the maximum prison sentence for the crime of which he is accused. As a result of trial delays, many pretrial detainees already served time in prison equivalent to the maximum allowable for their crime. Many prisoners remained in jail after acquittal or completion of their sentences due to the failure of officials to process their releases.
e. Denial of Fair Public Trial
Although the constitution and law provide for an independent judiciary, the justice system was poorly funded and staffed, inadequately equipped, often ineffective, and sometimes subject to intimidation, patronage, corruption, and political influence.
Low wages and the lack of internal controls rendered judicial officials susceptible to bribery. Powerful special interests exercised influence in the outcomes of some court proceedings.
In December 2012 the National Congress removed from office four of five magistrates of the Constitutional Chamber of the Supreme Court. Some legislators and NGOs maintained that congress acted unconstitutionally because the constitution lists incapacity, resignation, and death as the only reasons for an early end to a magistrate’s term of office. Congressional leaders stated publicly that they had the legal authority to act. Congress elected four new magistrates in
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
375

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 20 of 31

HONDURAS

9

December. In April congress determined that the performance of the Public Ministry was unacceptable and suspended the attorney general and his deputy, both of whom resigned in June. Congress elected their replacements in September in a process some NGOs criticized for not adhering fully to the selection procedures established by the nominating committee.
Trial Procedures
The law recognizes that an accused person is presumed innocent. Jury trials are not used, but the accused has the right to receive an initial hearing by a judge, ask for bail, consult with legal counsel in a timely manner, have a lawyer provided by the state if necessary, and request an appeal. The law provides for the right to a fair public trial, permits defendants to confront or question witnesses and to present witnesses and evidence on their behalf, and grants defendants access to government evidence relevant to their cases. These rights generally were respected.
Common challenges to criminal prosecutions included a lack of credible evidence presented by the prosecution, lack of witness protection, widespread public distrust of the legal system, and judicial corruption.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
The law establishes an independent and impartial judiciary in civil matters, including access to a court to seek damages for human rights violations. A litigant can bring civil charges when the criminal court determines that he may seek damages. Citizens may file complaints with the Inter-American Commission on Human Rights.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
Although the constitution and law generally prohibit such actions, a legal exception allows entry into a private residence at any time in an emergency or to prevent the commission of a crime. There were credible complaints that police occasionally failed to obtain the required authorization before entering a private home and that government entities were monitoring correspondence.
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
376

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 21 of 31

HONDURAS

10

Ethnic minority-rights leaders continued to complain that the government failed to redress actions by private and public security forces, which had dislodged farmers and indigenous groups claiming ownership of lands based on land reform laws or ancestral titles to property (see section 6, Indigenous People).
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The constitution and laws provide for freedom of speech and press, and the government generally respected these rights. A small number of powerful business magnates with intersecting commercial, political, and family ties owned most of the major news media and in some cases influenced the reporting in their outlets.
In February the National Congress amended the penal code to sanction anyone who publicly or through the media incites discrimination, hate, repression, or violence against a person or group for reasons of their sex, gender, age, sexual orientation, gender identity, political opinion, marital status, race or origin, nationality, religion, language, disability, family or economic situation, or physical appearance or health.
Violence and Harassment: Reports of harassment of journalists and social communicators (persons who are not employed as journalists, but serve as bloggers or conduct public outreach for NGOs) continued to rise.
Three journalists were killed during the year, compared with four in 2012, and there was one attempted killing. It is unclear whether these killings were motivated by the victims’ status as journalists or simply products of generalized violence. There also were multiple reports of intimidation of members of the media and their families. Government officials at all levels denounced violence and threats of violence against members of the media and social communicators. The Human Rights Office of the Ministry of Security provided protective measures to journalists, social communicators, and other members of civil society who received threats.
During the year the efforts of the Special Victims Task Force created in 2011 to address violent crimes against vulnerable communities, including journalists, led to three indictments in cases involving killings of journalists and social communicators. Since its creation the task force has investigated the homicides of
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
377

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 22 of 31
EL SALVADOR 2013 HUMAN RIGHTS REPORT
EXECUTIVE SUMMARY
Note: This report was updated 3/21/14; see Appendix H: Errata for more information.
El Salvador is a constitutional multi-party republic. In 2009 voters elected Carlos Mauricio Funes Cartagena of the Farabundo Marti National Liberation Front (FMLN) as president for a five-year term in generally free and fair elections. Free and fair legislative assembly and municipal elections took place in March 2012. Authorities failed at times to maintain effective control over the security forces. Security forces committed human rights abuses.
The principal human rights problems were widespread corruption; weaknesses in the judiciary and the security forces that contributed to a high level of impunity; and abuse, including domestic violence, discrimination, and commercial sexual exploitation against women and children.
Other human rights problems included isolated unlawful killings and cruel treatment by security forces; lengthy pretrial detention; harsh and life-threatening prison conditions; some restrictions on freedom of speech and press; trafficking in persons; and discrimination against persons with disabilities and persons with HIV/AIDS. There was also widespread discrimination and some violence against lesbian, gay, bisexual, and transgender (LGBT) persons. Child labor and inadequate enforcement of labor laws also were problems.
Impunity persisted despite the government taking steps to dismiss some officials who committed abuses in the penitentiary system and within the police force.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary or Unlawful Deprivation of Life
During the year there were no verified reports that the government or its agents committed politically motivated killings; however, there were reports of security force involvement in unlawful killings. As of August, the Office of the Ombudsman for Human Rights (PDDH) received 15 complaints of alleged unlawful killings committed by security, military, and other public officials. Three of the killings took place in the prison system and one in a police detention center.
378

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 23 of 31

EL SALVADOR

2

The PDDH has the authority to investigate (but not prosecute) human rights abuses and refers all human rights abuse cases to the Office of the Attorney General (FGR). Although the PDDH defines all killings by government personnel as “extrajudicial killings,” there were no verifiable reports of deliberate, unlawful killings carried out by order of the government or with its complicity. As of June, the Office of the Inspector General (IG) of the National Civilian Police (PNC) reported that 14 PNC officers were accused of homicide during the year but did not specify whether the perpetrators committed the killings while on duty.
On March 2, the PNC detained two officers for the killing of prisoner Mario Alexander Reyes Chavez, who was being held in a police detention center in Los Planes de Renderos as a protected witness to a drug trafficking case. A PNC commissioner said Chavez was shot between 25 and 28 times. On March 7, nine of the 14 police officers who were working in the detention center were jailed and were awaiting trial. Reyes Chavez had alerted the PNC that he had received death threats. The media reported that prior to the killing, intelligence officials had notified PNC authorities three times about visits of strangers to the detention center and encouraged authorities to increase security, yet the PNC did not take action. On October 10, a judge absolved a gang member accused of being the mastermind of the murder.
b. Disappearance
There were no reports of politically motivated disappearances. The nongovernmental organization (NGO) Association for the Search for Missing Children (Pro-Busqueda) received seven new complaints regarding children who disappeared during the 1980-1992 civil war. As of July it continued to investigate 538 cases and resolved 14 other cases.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices. The PDDH, however, received 89 complaints of torture or cruel, inhumane, or degrading treatment or punishment perpetrated by public officials, involving 58 complaints against PNC officials and 13 against members of the armed forces. The PDDH also received 445 complaints about violations of human integrity, 324 against PNC officers and 44 against members of the armed forces. The PDDH received complaints of unauthorized searches, mistreatment, physical abuse, insults, and harassment committed by the military in their conduct of joint patrols with the PNC. The Ministry of Defense alleges it
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
379

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 24 of 31

EL SALVADOR

3

investigated all cases against members of the armed forces, but released no results of the investigations publicly.
On June 1, doctors reported that a severely beaten prisoner in Apanteos Prison died during a subsequent surgery. The victim’s mother accused the prison guards of beating her son. The doctors in the hospital where he was being treated alerted the FGR of the case. The hospital reported he died of pneumonia, not as a result of his severe injuries.
NGOs reported that public officials, including police, engaged in violence and discrimination against sexual minorities. Persons from the LGBT community stated that the agencies in charge of processing identification documents, the PNC and FGR, harassed transgender and gay individuals when they applied for identification cards or reported cases of violence against LGBT persons. The LGBT community reported that authorities harassed LGBT persons through strip searches and questioning their gender in a degrading manner. The government responded to these abuses primarily through PDDH reports that publicized specific cases of violence and discrimination against sexual minorities.
Prison and Detention Center Conditions
Prison and detention center conditions remained harsh and life threatening.
Physical Conditions: Overcrowding was a serious threat to prisoners’ health and lives. In many facilities, provisions for sanitation, potable water, ventilation, temperature, medical care, and lighting were inadequate. As of September 3, the Prison Directorate reported 26,672 prisoners held in 23 correctional facilities and one secure hospital ward that had a combined appropriate capacity of 8,328. The prison population included 20,454 convicted prisoners and 6,218 inmates held in pretrial detention. As of September, there were 2,598 female prisoners. As of September, there were 701 inmates in four prisons for juvenile offenders with a total appropriate capacity of 460 inmates. According to the director general of the prison system, as of September prison overcrowding was at 320 percent. Due to prison overpopulation, police authorities held some pretrial detainees in small detention centers at police stations. As of August police authorities held over 3,000 detainees in police station detention centers with a combined appropriate capacity of 1,200. Approximately 78 percent of these pretrial detainees were in detention centers longer than the 72 hours permitted by law before a suspect must be presented to court.

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
380

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 25 of 31

EL SALVADOR

4

Due to the lack of holding cells, authorities often held pretrial detainees in regular prisons with violent criminals. Men were separated from women within the prisons. A separate women’s prison in Ilopango was generally clean and allowed inmates’ children under age five to stay with their mothers.
As of September 3, prison authorities reported that 36 prisoners died during the year due to natural causes, homicide, and suicide.
Gang activities in prisons and juvenile-holding facilities remained a serious problem. Detention center facilities held 10,576 inmates who were current or former gang members. Officials separated gang members from the regular prison population when possible, but gangs continued to exercise influence within the prisons and judicial system.
Prisoners reportedly conducted criminal activities from their cells, at times with the complicity of prison guards. Smuggling of weapons, drugs, and other contraband such as cell phones and cell-phone SIM cards was a major problem in the prisons. As of September 3, prison authorities removed three guards from prisons for carrying illegal objects and sanctioned 100 guards for misconduct. There were no reported patterns of abuse of persons with disabilities in prisons, although the government’s National Council for Comprehensive Attention to Persons with Disability (CONAIPD) reported isolated incidents, including sexual abuse.
Administration: Prison authorities kept detailed electronic records of all prisoners. Authorities allowed release on bail for some nonviolent offenders. The Solicitor’s Office implemented a mediation program, principally for cases related to family disputes. The Attorney General’s Office and the courts also have mediation programs and other alternative dispute resolution programs. In certain misdemeanor cases related to damages, judges suspended the judicial process when the defendant admitted guilt and adequately compensated the victim. Although there is no prison ombudsman, the PDDH oversees the rights of inmates and responded to complaints. Prisoners and detainees had reasonable access to visitors and religious observance.
Prison authorities permitted prisoners and detainees to submit complaints to judicial authorities without censorship and to request investigation of credible allegations of inhumane conditions. Prison authorities investigated such allegations, although investigators did not always document results in a publicly accessible manner.

Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
381

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 26 of 31

EL SALVADOR

5

Independent Monitoring: The government investigated and monitored prison and detention center conditions and permitted prison-monitoring visits by independent human rights observers, NGOs, and the media. Church groups, the Central American University’s Human Rights Institute, and other groups visited prisons during the year.
d. Arbitrary Arrest or Detention
Although the constitution prohibits arbitrary arrest and detention, there were complaints that the PNC arbitrarily arrested and detained persons. The PDDH reported receiving 137complaints of illegal detentions.
Role of the Police and Security Apparatus
The PNC, overseen by the ministry of justice and public security, is responsible for maintaining public security and the ministry of defense for maintaining national security. The military is tasked with securing the international border and conducting patrols jointly with the PNC. Military personnel assigned to assist the PNC do not have arrest authority. President Funes renewed the decree authorizing military involvement in police duties through May 2014.
On May 17, the Supreme Court ruled unconstitutional the appointments of retired general Francisco Ramon Salinas Rivera as PNC director and retired general David Munguia Payes as Minister of Justice and Public Security due to their ties with the military. The constitution separates public security functions from the military.
Inadequate training, lack of enforcement of the administrative police career law, arbitrary promotions, insufficient government funding, failure to effectively enforce evidentiary rules, and instances of corruption and criminality limited the PNC’s effectiveness. As of September 12, the IG reported that authorities charged 14 police officers with homicide. The IG also received 1,163 complaints of alleged police misconduct, referred 473 of these cases to the FGR, and sanctioned 1,006 officers in response to complaints filed during the year and in prior years. These sanctions included 121 officers dismissed for misconduct and 677 suspended without pay. As of August 28, the FGR investigated 217 accusations against police officers, resulting in 29 cases resolved through mediation and two convictions.
The IG reported that most PNC officers and police academy cadets received human rights awareness training during the year, including training by the
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
382

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 27 of 31

EL SALVADOR

6

Salvadoran Institute for the Development of Women (ISDEMU), the Human Rights Institute of the University of Central America, and the Inter-American Institute of Human Rights. The PNC reported that as of July, 2,728 police officers received training on human rights.
Arrest Procedures and Treatment While in Detention
The constitution requires a written warrant for arrest, except in cases where an individual is arrested in the act of committing a crime. Authorities apprehended persons with warrants based on evidence and issued by a duly authorized official. The constitution grants detainees the right to a prompt judicial determination of the legality of their detention, and authorities generally respected this right. Police generally informed detainees promptly of charges against them.
The law permits release on bail for detainees who are unlikely to flee or whose release would not impede the investigation of the case. The bail system functioned adequately in most cases. The courts generally enforced a ruling that interrogation without the presence of counsel is coercive and that evidence obtained in such a manner is inadmissible. As a result PNC authorities generally delayed questioning until a public defender or an attorney arrived. Family members are allowed prompt access to detainees. Detainees generally had prompt access to counsel of their choice or to an attorney provided by the state.
The constitution permits the PNC to hold a person for 72 hours before presenting the suspect to court, after which the judge may order detention for an additional 72 hours to determine if an investigation is warranted. The law allows up to six months for investigation of serious crimes before requiring either a trial or dismissal of the case. In exceptionally complicated cases, the prosecutor may ask an appeals court to extend the deadline for three or six months, depending on the seriousness of the crime. Many cases were not completed within the legally prescribed period. In March the UN Working Group on Arbitrary Detention issued a report indicating that at the time of their 2012 visit to El Salvador, 7,376 detainees were in preventive detention, 937 of whom had exceeded the maximum one-year period of preventive detention allowed by law before sentencing must occur.
Arbitrary Arrest: The PDDH reported 137 complaints of arbitrary detention.
Pretrial Detention: Lengthy pretrial detention was a significant problem. At year’s end, 24 percent of the prison population was in pretrial detention. Lengthy legal
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
383

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 28 of 31

EL SALVADOR

7

procedures, large numbers of detainees, judicial inefficiency, corruption, and staff shortages caused trial delays. Because it may take several years for a case to come to trial, some detainees were incarcerated longer than the maximum legal sentences for their alleged crimes. In such circumstances, detainees could request a Supreme Court review of their continued detention.
e. Denial of Fair Public Trial
Although the constitution provides for an independent judiciary, the judiciary suffered from inefficiency, corruption, political infighting, and insufficient resources. Substantial corruption in the judicial system contributed to a high level of impunity, undermining the rule of law and the public’s respect for the judiciary. The criminal conviction rate was less than 5 percent. An ineffective public security strategy, inadequate government funding and training of the PNC, and ineffective senior-level leadership made it difficult to identify, arrest, and prosecute perpetrators of human rights abuses and other crimes, thus diminishing public confidence in the justice system. Intimidation and killing of police officers, crime victims, and witnesses created a climate of fear, complicating investigation of violent crime and other alleged human rights abuses.
The Legislative Assembly did not always comply with Supreme Court rulings. On January 24, the Supreme Court Constitutional Chamber ruled that the nominations of three individuals by the Legislative Assembly to the Court of Accounts were unconstitutional due to political party affiliation. On March 20, the Legislative Assembly disregarded this ruling by re-nominating two of these individuals and a replacement. The Supreme Court again ruled the nominations unconstitutional. On July 25, the Legislative Assembly finally nominated three new individuals not subsequently challenged.
On June 20, a UN special rapporteur issued a report criticizing the Legislative Assembly for not complying with the Supreme Court’s rulings during the 2012 constitutional crisis.
As of July, the PNC was providing protection to 52 victims and 89 witnesses. However, some judges denied anonymity to witnesses at trial, and gang intimidation and violence against witnesses contributed to a climate of impunity from criminal prosecution.
During the year, the FGR received three complaints against judges, and the Supreme Court dismissed two judges as of June. During the year the FGR
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
384

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 29 of 31

EL SALVADOR

8

investigated one complaint against a prosecutor for misconduct. No convictions were reported as of October.
Trial Procedures
Although juries were used for specific charges, including environmental pollution and certain misdemeanors, judges decided most cases. By law, juries hear only cases that the law does not assign to sentencing courts. After the jury’s determination of innocence or guilt, a tribunal decides the sentence.
Defendants have the right to be present in court, question witnesses, and present witnesses and evidence. The constitution further provides for the presumption of innocence, the right to be informed promptly and in detail of charges, the right to a fair and public trial without undue delay, the right to a trial by jury, protection from self-incrimination, the right to communicate with an attorney of choice, the right to adequate time and facilities to prepare a defense, freedom from coercion, the right to confront adverse witnesses and present one’s own witnesses and evidence, the right to appeal, access for defendants and their attorneys to government-held evidence relevant to their cases, and government-provided legal counsel for the indigent. These legal rights and protections, however, were not always respected. Although a jury’s verdict is final, a judge’s verdict can be appealed. Trials are public. The law extends these rights to all citizens.
Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies
The law provides for access to the courts, enabling litigants to bring civil lawsuits seeking damages for, as well as cessation of, human rights violations. Domestic court orders generally were enforced.
Regional Human Rights Court Decisions
Individuals or organizations may submit petitions for cases involving violations of an individual’s human rights to the Inter-American Commission on Human Rights, which in turn may submit the case to the Inter-American Court of Human Rights. The court can order civil remedies including fair compensation to the individual injured.
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
385

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 30 of 31

EL SALVADOR

9

On May 29, in response to a petition filed by the Inter-American Commission on Human Rights on behalf of a woman pregnant with a non-viable fetus whose doctors diagnosed as at risk of dying due to pregnancy complications from preexisting conditions, the Inter-American Court of Human Rights ordered the government to adopt necessary measures to protect the woman’s health. On June 4, the Health Ministry allowed a premature caesarian section and reported the baby died five hours after the procedure.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The constitution prohibits such actions, and the government generally respected these prohibitions in practice.
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The constitution provides for freedom of speech and press, and the government generally respected these rights in practice. However, some restrictions on the freedom of speech and press occurred throughout the year. The law permits the executive branch to use the emergency broadcasting service to take over all broadcast and cable networks temporarily to televise political programming. The president occasionally used this law to highlight his accomplishments.
Freedom of Speech: Individuals could criticize the government publicly or privately without reprisal, and in most cases the government did not interfere with such criticism. On June 26, the Legislative Assembly issued a decree prohibiting individuals from expressing opinions that would defame presidential candidates. Responding to pressure from civil society, President Funes vetoed this decree on July 16.
Press Freedoms: The independent media were active and expressed a wide variety of views with some restrictions. There was no significant restriction by the government to the publication of books. On October 23, the Supreme Electoral Tribunal (TSE) determined that media companies had disseminated three political television advertisements that constituted “dirty campaigning,” and established sanctions for those media companies. There is no legal provision for the TSE to sanction media companies. The media companies complained the ruling was discriminatory and a violation of freedom of speech.
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
386

Case 1:14-cv-00254 Document 38-25 Filed in TXSD on 12/24/14 Page 31 of 31

EL SALVADOR

10

Violence and Harassment: On June 4, construction workers in San Miguel threatened channel 12 reporter Angel Lemus, forcibly took his camera, and physically prevented him from leaving his car for 20 minutes. Lemus and Geovanny Giron were filming construction machinery belonging to the San Miguel municipality being used at the private residence of the San Miguel mayor. The PNC arrested 14 construction workers following the incident. The case was under investigation.
Censorship or Content Restrictions: Government advertising accounted for a significant portion of press advertising income, although exact data was not publicly available. Newspaper editors and radio directors occasionally discouraged journalists from reporting on topics that the owners or publishers might not view favorably. According to the Salvadoran Association of Journalists (APES), the media practiced self-censorship, especially in its reporting on gangs and narcotics trafficking. APES stated that many members of the media were afraid to report in detail on these subjects due to fear of retaliation from gangs and narcotics trafficking groups.
Nongovernmental Impact: APES noted that journalists reporting on gangs and narcotics trafficking were subject to threats and intimidation, which led to media self-censorship.
Internet Freedom
There were no government restrictions on access to the internet or credible reports that the government monitored e-mail or internet chat rooms without appropriate legal authority. Individuals and groups could engage in the expression of views via the internet, including by e-mail. Internet access was available in public places throughout the country. The International Telecommunication Union reported that 25.5 percent of Salvadorans used the internet in 2012.
Academic Freedom and Cultural Events
There were no government restrictions on academic freedom or cultural events.
b. Freedom of Peaceful Assembly and Association
The constitution provides for freedom of assembly and association, and the government generally respected these rights in practice.
Country Reports on Human Rights Practices for 2013 United States Department of State • Bureau of Democracy, Human Rights and Labor
387

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 1 of 17
EXHIBIT 26

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 2 of 17

ACKNOWLEDGMENTS

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 3 of 17
UNHCR is grateful to the 404 children who shared their personal stories with us, making this report possible and their collective voices heard.*
Pamela Goldberg revised and edited the report. Leslie Vélez and Nicole Boehner oversaw all aspects of the research and statistical analysis, provided professional expertise and guided the completion of the study and the written report. UNHCR consultants Susan Schmidt, MSSW, LGSW, and Aryah Somers, Esq., served as senior researchers and writers. UNHCR consultants Amelia Ahl and Elise Dunton, Esq., served as junior researchers. This report is based on their fieldwork.
Lindsay Jenkins, Shelly Pitterman, Buti Kale, Vincent Cochetel, Davide Torzilli, Kees Wouters, Paula Barrachina Esteban, Tina Hinh, Haris Farhad, Preeta Law, Monika Sandvik-Nylund, Luca Guanziroli, Juan Carlos Murillo, Jose Sieber Luz, Rebeca Cenalmor-Rejas, Stefano Feliciani and Alice Edwards provided valuable contributions to various aspects of the report. UNHCR thanks the following interns for their contributions: Elvis Garcia Callejas, Anna Maitland, Amy Berger, Elisabeth Doyle, Angad Dhindsa, Stephanie Rebolo and Priyanka Jethwani.
UNHCR thanks German J. Pliego Hernandez of the University of St. Thomas, Department of Computer & Information Sciences, and his student Karlyn Harrod for their assistance with the quantitative statistical analysis, as well as Bethany Eberle for creating maps depicting the places of origin of the children within each of the four countries.
For their advice on the qualitative analysis conducted and assistance with specific country condition research, UNHCR thanks Maura Busch Nsonwu of North Carolina Agricultural and Technical State University and her student Devon Malik, as well as Noël Busch-Armendariz and Laurie Cook Heffron from the Center for Social Work Research Institute on Domestic Violence & Sexual Assault, University of Texas at Austin.
We thank the many government and nongovernment experts who provided their time and expertise to the development of the methodology and questionnaire.
UNHCR thanks the U.S. Government for its full cooperation and in particular thanks the leadership and staff of the Office of Refugee Resettlement, Department of Homeland Security, and Customs and Border Protection, which provided invaluable assistance in facilitating our meetings with children at their locations.
Judi Herrmann, president and creative director of Herrmann Advertising, and her staff did the design and layout of the report.
UNHCR thanks the John D. and Catherine T. MacArthur Foundation for its support.
*All names have been changed to protect the children’s confidentiality. No images of the children interviewed appear in this report, with the exception of their hands in the photo (taken by UNHCR) on page two.
389

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 4 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 5 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 6 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 7 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 8 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 9 of 17

EXECUTIVE SUMMARY

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 10 of 17

the children from Mexico: recruitment into and exploitation by the criminal industry of human smuggling – that is, facilitating others in crossing into the United States unlawfully. Thirty-eight percent of the children from Mexico fell into this category.22 Eleven percent of the children reported having suffered or being in fear of both violence in society and abuse in the home.

UNHCR found that these types of serious harm raised by the children are clear indicators of the need to conduct a full review of international protection needs consistent with the obligations to ensure that unaccompanied and separated children are not returned to situations of harm or danger.

Children’s Reasons for Leaving Home

UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION

396
7

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 11 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 12 of 17

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 13 of 17

EXECUTIVE SUMMARY

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 14 of 17

Mexico
Out of the 102 Mexican children interviewed, 64% raised potential international protection needs. Thirty-two percent spoke of violence in society, 17% spoke of violence in the home and 12% spoke of both. Seven percent discussed situations of deprivation. Unlike children from the other three countries, Mexican children are frequently recruited by organized crime and other criminal actors to work as guides in the human smuggling industry. In addition to their smaller size and greater tolerance for risk taking, it is widely understood that if these children are caught, they will simply be returned to Mexico. A striking 38% of the children from Mexico had been recruited into the human smuggling industry – precisely because of their age and vulnerability.23 These children have a unique set of potential protection needs that includes entrapment in criminal conduct, the worst forms of child labor, and exposure to dangerous situations that are harmful to their safety and well-being. Given these children’s youth, the rampant poverty, the lack of opportunity and often unchecked crimerelated violence in at least some parts of Mexico, serious questions are raised as to the coercion and exploitation of these children and whether, even among those children who indicated they became involved in human smuggling by their own decision, they were able to make a truly informed and voluntary decision to participate in this often dangerous criminal activity. Some of these children
Children’s Reasons for Leaving Home – Mexico

explicitly stated they were recruited under false pretenses, and others made it clear that, however they first became involved, they were forced to continue even if they expressed a desire to stop.
Conclusion
The responses of the 404 children from El Salvador, Guatemala, Honduras and Mexico interviewed for this study lead to several significant conclusions. First, the reasons these children have for leaving their countries of origin are complex and interrelated and can be understood only when examined from a child-sensitive perspective and taken as a whole and in context. Related to this multiplicity of reasons, there is no single dominant place of origin within or among the different countries from where these children are coming. Second, across the broad array of their responses, these children also clearly share commonalities within and among all four countries. Third, the many compelling narratives gathered in this study – only some of which are relayed in this report – demonstrate unequivocally that many of these displaced children faced grave danger and hardship in their countries of origin. Fourth, there are significant gaps in the existing protection mechanisms currently in place for these displaced children. The extent of these gaps is not fully known because much of what happens to these children is not recorded or reported anywhere. As such, it is reasonable to infer that the gaps may be even wider than what the available data indicates. By all accounts, children arriving to the U.S. from these four countries continue to rise in numbers as do the numbers among them with potential international protection needs.
Through the children’s own words, the critical need for enhanced mechanisms to ensure that these displaced children are identified, screened and provided access to international protection is abundantly clear. The question now is how the five States, civil society and UNHCR can work together to best ensure that these children are carefully screened and provided the protection they so desperately need and deserve.

UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION

400
11

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 15 of 17

Requests and Concerns Raised by Governments, Civil Society and Other Stakeholder Participants at the UNHCR Roundtable on the Displacement of Unaccompanied and Separated Children from El Salvador, Guatemala, Honduras and Mexico

Before providing its recommendations to the Governments of El Salvador, Guatemala, Honduras, Mexico and the United States, UNHCR wishes to acknowledge a number of the requests and concerns raised by Government representatives, civil society and other stakeholder participants from these countries at the Roundtable on the Displacement of Unaccompanied and Separated Children, hosted by UNHCR in San Juan, Puerto Rico, 22-23 January 2014, which reflect issues of great importance but are beyond the scope of the findings and conclusions of this study. These include:
Providing Essential Services and Access to Justice for Children by
Creating, strengthening and promoting comprehensive child protection mechanisms, including children’s access to justice, on the national and local levels that meet the general protection needs of children in their home communities, those who are displaced – within and outside their countries of origin – and those who are repatriated to their countries of origin.
Establishing formal bilateral and multilateral agreements on repatriation that include mechanisms to facilitate the safe return and reintegration of unaccompanied and separated children when

such return is formally determined to be in the best interests of the child.
Developing capacity for reception and social reintegration, especially for family reunification, access to psychosocial services and education, and employment and training opportunities appropriate for young people and their families.
Ensuring Liberty by Refraining from practices that unnecessarily restrict children’s liberty. This is particularly important with regard to detention, given the continued harm and detrimental impact of detention on the well-being of the child. Detention also impedes access to asylum and other forms of international protection, and may also be used as a tool to illegitimately discourage a child from seeking international protection.
Recommendations
Regarding the potential or actual international protection needs of unaccompanied and separated children from El Salvador, Guatemala, Honduras and Mexico, UNHCR recommends that the Governments of El Salvador, Guatemala, Honduras, Mexico and the United States:

12

CHILDREN ON THE RUN

401

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 16 of 17

EXECUTIVE SUMMARY

Recognize Newly Emerging Forms of Displacement in Central America and the Emergence of International Protection Issues
1. Recognize that the violence and insecurity within El Salvador, Guatemala, Honduras and Mexico, as well as across their borders, have led to the displacement of children and others in the region; have implications as foreign policy and political issues; and have connections with international protection needs.
2. Recognize the international protection needs – actual and potential – at stake and the need to ensure that these displaced children are provided safety upon arrival, screened for any international protection needs, and provided access to the assessment and provision of international protection.
3. Bring the international protection needs of these displaced children to the forefront and ensure their inclusion to the fullest extent possible in all national and regional efforts.
4. Incorporate formally the international protection needs of these displaced children into the official discussions concerning displaced children in the region and incorporate them into the final guidelines to be published by the Regional Conference on Migration.
Strengthen and Harmonize Regional and National Frameworks for Ensuring International Protection
5. Establish and promote more uniform responses and approaches to displaced children in the region through the development of regional protocols for addressing the international protection needs of children that incorporate the principle and practice of determining the best interests of the child at all decision points that affect the well-being of the child, beginning with the first encounter of authorities with the child.
6. Ensure that the principle of the best interests of the child is a central component of all responses, approaches, guidelines and tools concerning the protection needs of children, including the assessment of a claim for refugee status, asylum or any other form of international protection.

7. Enhance capacity, through increased staff and training and other mechanisms, to ensure the systematic identification of children with potential international protection needs, in particular children in high-risk situations; appropriate referrals for their care and assessment of their international protection needs; and access to guardians and legal representation.
8. Develop and disseminate common tools to support the government function of screening for international protection needs, with special attention paid to methods and practices that promote a child-sensitive environment.
9. Harmonize national legislation, policies and practices with the resulting regional framework and tools.
10. Develop and implement mandatory training for all authorities engaged in activities relating to the protection and other assistance of children with potential or actual international protection needs on the basic norms and principles of international human rights and refugee law, including the fundamental principles of nondiscriminatory treatment, best interests of the child, non-refoulement, family unity, due process of law, and non-detention or other restriction of liberty.
11. Strengthen collaboration, exchange of information and sharing of best practices relating to the identification, referral and assessment of children with potential international protection needs between Governments and UNHCR and between Governments and civil society.
Address Root Causes
12. Undertake measures both regionally and nationally to address the root causes of flight of these displaced children, in an effort to reduce – if not eliminate – the factors that lead to their forced displacement.
13.Engage the Commission on Security for Central America of the Central American Integration System to address the issues of children displaced due to violence and insecurity in further support of State efforts concerning these issues.

UNACCOMPANIED CHILDREN LEAVING CENTRAL AMERICA AND MEXICO AND THE NEED FOR INTERNATIONAL PROTECTION

402
13

Case 1:14-cv-00254 Document 38-26 Filed in TXSD on 12/24/14 Page 17 of 17

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 1 of 13
EXHIBIT 27

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 2 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 3 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 4 of 13
1 INTRODUCTION & Summary

2 Organized crime, gangs and violence are driving children from their homes

3 In rural areas, extreme poverty motivates some to seek work

CONTENTS

3 Only 1 in 3 children cites family reunification as a primary reason for leaving home
4 Leaving their country is often a last resort

5 Children and their families do not trust the Salvadoran government to help them

6 APPENDIX: Methodology

7 ENDNOTES

406

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 5 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 6 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 7 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 8 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 9 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 10 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 11 of 13

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 12 of 13

(2008), even young children may decide to migrate without telling their families. It could be days before families know where their children are and how to get them.
12 54 percent of KIND’s Central American children had one parent living in the U.S. UNICEF found that children in kinship care in Africa were more vulnerable to increased poverty, abuse, neglect, exploitation, and unequal treatment in the household. See Roby, Jini L. “Children in Informal Alternative Care, Discussion Paper,” UNICEF Child Protection Section. June 2011. UCCSB additionally found that children with family in the U.S. are vulnerable for two reasons: they are more likely to lack a stabilizing element in the home and can become targets for extortion since gangs are able to acquire lists of who receives remittances.
13 Before concluding this investigation, I will do this for each child’s story. I am hoping to create a public database of these articles and several interactive maps of the violence.
14 46.7 percent of girls list this reason, compared to 30.5 percent of boys. Nearly all children younger than 12 years old list reunification as a motivating factor.
15 See Valencia Caravantes, Daniel, “La legión de los desplazados [The legion of the Displaced],” El Faro (2012), available at http:// www.especiales.elfaro.net/es/salanegra_desplazados/.
16 Central American University’s Institute of Public Opinion (IUDOP) 2012 Survey (Spanish), Instituto Universitario de Opinión Pública Universidad Centroamericana “José Simeón Cañas” San Salvador, El Salvador, Diciembre de 2012; available at http://www.uca.edu.sv/publica/iudop/archivos/informe131.pdf.
17 Servir, proteger, y sobrevivir, March 27, 2011 available at: http:// www.elfaro.net/es/201103/fotos/3775/ Castro, Ángela, “Mareros torturan y matan a policía en Soyapango,” Elsalvador.com, January 26, 2014, available at: http://www.elsalvador.com/mwedh/nota/ nota_completa.asp?idCat=47859&idArt=8509092 Hernández, Carlos, “Al menos 37 asesinatos se reportan durante el fin de semana,” La Página, February 16, 2014, available at: http://www.lapagina. com.sv/nacionales/92873/2014/02/16/Al-menos-28-asesinatos-sereportan-durante-el-fin-de-semana
18 UNHCR, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection (2014), available at: http://unhcrwashington.org/children
19 Dara Lind, “The Central American migrant crisis isn’t just a US problem, in one chart,” Vox, June 24, 2014, available at: http://www.vox. com/2014/6/24/5839236/the-central-american-migrant-crisis-isntjust-a-us-problem-in-one

23 While one gang member will typically request a girl to be his girlfriend, after a certain period of time, she is viewed as property of the entire gang. She essentially becomes a prostitute for the gang.
24 Alerta Angel Desparecido, Twitter, available at: https://twitter.com/ AlertaAngelsv.
25 La Prensa Grafica, “La tragedia de todo un país,” June 15, 2014, available at: http://www.laprensagrafica.com/2014/06/15/la-tragedia-de-todo-un-pais
La Prensa Grafica, “Asesinan a pandillero deportado de EUA en Tejutla,” May 21, 2014, available at: http://www.laprensagrafica. com/2014/05/21/asesinan-a-pandillero-deportado-de-eua-entejutla
Elsalvador.com, “Matan a una mujer por pleito entre pandilleros,” April 29, 2014, available at: http://www.elsalvador.com/mwedh/nota/ nota_completa.asp?idCat=47859&idArt=8741481.
El Salvador.com, “Matan a pandillero deportado de EE. UU.,” January 24, 2014, available at: http://www.elsalvador.com/mwedh/nota/ nota_completa.asp?idCat=47859&idArt=8503815.
26 Kennedy, Elizabeth, “‘No place for children’: Central America’s Youth Exodus” InSight Crime (2014), available at: http://insightcrime.org/ news-analysis/no-place-for-children-central-americas-youth-exodus .
27 This trend is concerning in historical perspective, because the United States provided funding and training to Mexican migration officials to return more Central Americans to their home countries when people from those nations fled civil war in the 1970s, 1980s, and 1990s.
28 Through May, only four Salvadoran children have been deported by plane from the U.S., as reported through private communication with El Salvador’s government. This number is likely to increase substantially if the U.S. decides to expedite immigration proceedings for child migrants. See Gilha, Lori Jane and Amin, Sameen, “El Salvador ambassador: US proposed child-only migrant flights,” Al Jazaeera America (2014), available at: http://america.aljazeera.com/watch/ shows/america-tonight/articles/2014/6/25/u-s-proposed-childonlymigrantflightssayselsalvadorambassador.html.
For the month of July, I will spend the day at the airport four days a week to conduct interviews with Salvadoran children deported by plane from Mexico and the U.S. I have not done so earlier because the airport is over an hour from the capital city where I reside, and I always received no notice or too little notice to arrive in time to complete interviews.

20 Flores, Ricardo. “Quien protege a Monica? [Who protects Monica?]” 29 An equal number of girls as boys traveled until age 14, and then

La Prensa Grafica 7 July 2013 http://www.laprensagrafica.com/- sometimes four times as many boys traveled as girls at ages 15, 16,

quien-protege-a-monica

and 17.

21 Ramirez, Sigfredo. “El pais de los huerfanos [The country of orphans].” La Prensa Grafica 6 April 2014. http://www.laprensagrafica. com/2014/04/06/el-pais-de-los-huerfanos
22 Numerous reports have documented widespread impunity in El Salvador, including Amnesty International, Human Rights Watch, the United Nations Office of Drug and Crime, the United States Department of State.

30 Outside of California and Texas, children and their families were rarely able to name cities within the states. Thus, while they knew where they wanted to go in the first two states, they were sometimes unaware that Virginia, for example, was not the name of a city.
31 Closed questions are those with simply a yes or no answer, and open questions are those that require elaboration and individual response.
414

Case 1:14-cv-00254 Document 38-27 Filed in TXSD on 12/24/14 Page 13 of 13

32 In 2009, the Salvadoran government passed a new law for child protection: the Integrated Protection Law for Childhood and Adolescence (LEPINA). See Asamblea Legislativa de El Salvador, Centro de Documentación Legislativa, April 16, 2009; available at: http://www. asamblea.gob.sv/eparlamento/indice-legislativo/buscador-de-documentos-legislativos/ley-de-proteccion-integral-de-la-ninez-y-adolecencia.
It created a new governing body for this purpose, the National Council for Childhood and Adolescence (CONNA) but did not terminate the existence of the previous National Institute for Childhood and Adolescence (ISNA) or make clear what each organization’s role would be under the LEPINA. Whereas ISNA used to perform the intake interviews with deported children, no one from either office currently attends return centers. Because migration officials fear they lack expertise to adequately meet children’s needs and vulnerabilities, they place the child with her waiting family member as soon as she disembarks from the bus. They believe this is in the best interest of the child. As a result, neither I, the migration officials, nor anyone else completes an interview with the child alone. This is problematic for a number of reasons, not least of which is that the child is not effectively screened for past abuse, mistreatment, or negligence.
33 In February 2013, Kids in Need of Defense (KIND) released The Time is Now (at http://www.supportkind.org/en/about-us/resources) which drew upon a random sample of over 100 UAC cases they represented. It began: “[a] child migrating alone signals a much deeper protection issue that has caused them to leave their homes, family, and community.” It pointed to the lack of “robust national child protection systems” in the Northern Triangle, which resulted in most of their child clients fleeing gang violence or long-term domestic violence by their caregivers. Children reported that police could not be trusted to protect them, moving within the country or region did not offer protection, having family in the U.S. and receiving remittances make one a target for extortion, and not paying extortion demands could result in serious harm or death.
34 See UNHCR, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection (2014), available at: http://unhcrwashington.org/children.
In March, UNHCR released their results of extensive interviews with 404 detained UAC. Among UAC, they found that no less than 58 percent were forcibly displaced and potentially in need of international protection: 48 percent had personally experienced cartel or gang violence, and 22 percent had survived abuse in the home. UNHCR also reported that since 2009, more and more Central American adults and children have been requesting asylum in the United States and in Belize, Costa Rica, Mexico, Nicaragua, and Panama, where their requests have increased by a combined 432 percent.
35 See “Los 10 principales sitios donde taxistas no van por miedo [The top 10 places where taxis won’t go because of fear]” El Diario de Hoy (2014), available at: http://www.elsalvador.com/mwedh/nota/ nota_completa.asp?idCat=47673&idArt=8602296.
36 See “Hallan cadaveres de dos jovenes [Two youths’ bodies found],” El Diario de Hoy (2014), available at: http://www.elsalvador.com/ mwedh/nota/nota_completa.asp?idCat=47859&idArt=8706438.
37 See also University of California, Hastings Center for Gender and Refugee Studies and Kids in Need of Defense, A Treacherous Journey: Child Migrants Navigating the U.S. Immigration System, (2014), available at: http://www.supportkind.org/en/about-us/resources. In

February 2014, KIND and UC-Hastings teamed to release a report on challenges UAC face while navigating the U.S. system. In calling for legal and policy reforms to ensure basic protections for UAC, it also highlighted that while many UAC seek to reunite with family once in the U.S., their migration is frequently motivated by violence rather than family separation.
38 See United States Conference of Catholic Bishops (USCCB), Mission to Central America: The Flight of Unaccompanied Children to the United States, (2013), available at: http://www.usccb.org/about/ migration-policy/upload/Mission-To-Central-America-FINAL-2.pdf.
Based upon three weeks in the Northern Triangle, while this report noted the absence of economic and educational opportunities, the strong desire to reunify with family, and a breakdown in the rule of law so significant that all three nations have a “culture of fear and hopelessness.” At the macro level, it discussed increasing interaction between Central American gangs and drug cartels, partially evidenced by the U.S. Department of Treasury’s decision to designate MaraSalvatrucha 13 as a significant Transnational Criminal Organization in October 2012 (See U.S. Department of Treasury, “Treasury Sanctions Latin American Criminal Organization,” Executive Order (E.O.) 13581.). It then commented on regional skepticism around the gang truce and noted that whether or not it actually existed, it did demonstrate the gangs’ emerging roles as political actors, capable of sitting at the table with government officials and controlling crime rates.
See Archibald, RC, “Gangs’ Truce Buys El Salvador a Tenuous Peace” New York Times 27 August 2013 and Farah, Douglas, “What the Kids are Fleeing: Gang Violence Spikes in Central America,” Fusion (2014), available at: http://fusion.net/justice/story/guns-drugs-money-antisocials-form-social-order-807005.
I have yet to meet any researcher or citizen in El Salvador or Central America that has faith in the truce. They often indicate that even when homicide rates were initially halved, disappearance, extortion, kidnapping, and robbery increased. Then, many large clandestine graves are being found this year and last so that many speculate they were just better at hiding the bodies. Finally, homicide rates now exceed pretruce levels. In May, 401 people were murdered, which is a daily average of 12 in a nation of only six million people.
39 See Jones, Jessica and Podkul, Jennifer, Forced From Home: The Lost Boys and Girls of Central America, Women’s Refugee Commission (2012), available at: http://womensrefugeecommission.org/forcedfrom-home-press-kit.
Based upon interviews with 146 detained child migrants from Mexico and the Northern Triangle, The report found that the extent and scale of rising crime, systemic state corruption and entrenched economic inequality were culminating, allowing for growing influence of gangs and cartels, which most listed as their reason for leaving. Specifically, many were threatened by gangs to join or die, saw dead bodies regularly, and lived in constant fear. They were so desperate for safety, that even after enduring horrendous journeys through Mexico that often included abuse, assault, inconsistent access to food or water and witnessing or experiencing death, drowning, kidnapping, maiming or rape, most said they would do it again. The report surmised that until these countries change substantially, the upward trend would become “the new norm,” which has proven true in the two years that followed.
415

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 28

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 2 of 7

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 3 of 7

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 4 of 7

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 5 of 7

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 6 of 7

Case 1:14-cv-00254 Document 38-28 Filed in TXSD on 12/24/14 Page 7 of 7

Case 1:14-cv-00254 Document 38-29 Filed in TXSD on 12/24/14 Page 1 of 2
EXHIBIT 29

Case 1:14-cv-00254 Document 38-29 Filed in TXSD on 12/24/14 Page 2 of 2
422

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 30

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 2 of 7
Meet the Press Transcript - December 7, 2014
MEET THE PRESS -- SUNDAY, DECEMBER 7, 2014 CHUCK TODD: This Sunday, anger and disbelief across the country after a grand jury decides not to indict a police officer in a chokehold death. HILLARY CLINTON: Each of us has to grapple with some hard truths about race and justice in America. CHUCK TODD: Is the criminal justice system failing African Americans? Also, America in black and white. Our new poll on how differently African Americans and whites view the police. Plus, the fight within the Republican party over immigration. JOHN BOEHNER: We have limited options in terms of how we can deal with this. CHUCK TODD: How far will Republicans go to block President Obama's executive action? TED CRUZ: What I'm here urging my fellow Republicans to do is very, very simple. Do what you said you'd do. CHUCK TODD: And how rich is your member of Congress? A breakdown how Washington politicians are doing very well this last decade while ordinary Americans continue to tread water. I'm Chuck Todd and joining me to provide insight and analysis this morning are CNBC's Rick Santelli, Amy Walter of the Cook Political Report, John Stanton of BuzzFeed, and Kasim Reed, mayor of Atlanta. Welcome to Sunday. It's Meet the Press. ANNOUNCER: From NBC News in Washington, this is Meet the Press with Chuck Todd.
423

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 3 of 7
LINDSEY GRAHAM:
If we don't pass immigration reform, if we don't get it off the table in a reasonable, practical way, it doesn't matter who you run in 2016, we're in a demographic death spiral as a party.
LUKE RUSSERT:
For Meet the Press, Luke Russert.
(END TAPE)
CHUCK TODD:
Joining me now is the next governor of Texas and the current attorney general, Greg Abbott. Mr. Abbott, thanks for coming on Meet The Press.
GREG ABBOTT:
My honor. Great to be with you. Thanks.
CHUCK TODD:
All right. Let's start with the lawsuit. Standing requires you to show harm. Now, you argue the president's actions are going to inspire a fresh wave of illegal immigration. That that's the harm you're going to show. But we've seen other attempts at this before where courts have thrown out lawsuits like this because you can't quantify the harm. Are you gonna quantify the harm?
GREG ABBOTT:
First, this is growing much the same way that the lawsuit concerning Obamacare grew from 13 to 26 or 27 states. As to the standing issue, understand this. Texas has been at the epicenter of the 2012 DACA.
You all saw more than a 1,000 people crossing our board each and every day. Texas has come out of pocket to the tune of more than $100 million in law enforcement, education and healthcare because of what has happened. And understand this, the president's agencies' memos themselves have indicated that there will be more problems like this resulting from the next presidential order, or the most recent presidential order.
CHUCK TODD:
But many of those, and the children that came across in that wave, and I understand there's a lot of people that say that that wave was started, and some people believe it was
424

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 4 of 7
inspired by, the DACA order on children that were brought here by parents illegally. But a lot of those folks were deported. Most of those folks were deported. GREG ABBOTT: Well, as we speak right now some of those children are in Texas schools. Some of the people who came here across the border are accessing-CHUCK TODD: But most of them-(OVERTALK) GREG ABBOTT: --health-CHUCK TODD: --deported, right? Fair enough? GREG ABBOTT: I don't know the raw number. CHUCK TODD: Okay. GREG ABBOTT: All I do know is the absolute fact. And that is Texas has incurred taxpayer dollars out of pocket as a result of the prior executive order. It's also been stated by members of the Obama administration that this new executive order will lead to same results. CHUCK TODD: Now, when we talk about harm, I want to get into this financial issue here, because you talk about the issue of social services. How much money you have to spend to deal with these undocumented folks. But illegal immigrants that are working in Texas do participate in the economy. There have been some estimates that if you deported everybody who was in Texas illegally it would actually be create an economic recession for the state of Texas. How do you separate those two facts? GREG ABBOTT:
425

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 5 of 7
Sure. Because we're not suing for that economic harm. It's the way that Texas has been impacted that gives us standing. What we're suing for is actually the greater harm, and that is harm to the constitution by empowering the president of the United States to enact legislation on his own without going through Congress.
CHUCK TODD:
I want to play for you a clip that you've heard from a previous governor of Texas and what he has said about immigration. Here it is.
GEORGE W. BUSH (ON TAPE):
I want to remind people that family values do not stop at the Rio Grande River. People are coming to our country to do jobs that Americans won't do to be able to feed their families. And I think there's a humane way to recognize that and at the same time protect our borders and at the same way to make sure that we don't disadvantage those who have stood in line for years to become a legal citizen.
CHUCK TODD:
Do you agree with that statement?
GREG ABBOTT:
Well, in a way I understand this even more powerfully because my wife is going to be the first Hispanic first lady in the history of Texas. And Texas has had a long tradition of uniting the Hispanic culture with Texas values. But remember this, there is a reason why people come from across the world to the United States and that is because of the power of what the Constitution has enabled this country to be.
It's the Constitution itself that is under assault by the president of the United States by this executive order. Chuck, what we are doing is this issue and this lawsuit is not about immigration. The issue in this lawsuit is about abuse of executive power. And if this abuse is not stopped it will erode the constitution that has attracted so many people to this country for generations.
CHUCK TODD:
Let me ask a basic question, though. Illegal immigration. Good for bad for the state of Texas? Bottom line.
GREG ABBOTT:
Legal immigration is great for the United States of America. Any illegal activity is not good anywhere.
426

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 6 of 7
CHUCK TODD:
And yet it's been good for the Texas economy. Right?
GREG ABBOTT:
Legal immigration has been great for America. And if bringing more immigrants here is the appropriate thing to do then what Congress needs to do and what the president needs to do is to figure out a way to improve our immigration system. In fact Americans are tired of both Congress and the president failing to act. It is time for Washington, D.C. to stop talking about this and take action. And that begins with securing our borders.
CHUCK TODD:
And let me ask you that on securing the border. Define that. Can you give me a metric that says, "Border's secure."
GREG ABBOTT:
Sure. I've been involved in these border surge operations where we see people crossing the border. Securing the border means ensuring that you don't have people who are crossing the border illegally. And that is through modern technology, through the technology that we are deploying right now, you can have monitors and cameras and see whether or not people are crossing the border. You want to see that grow to zero, would be the perfect metric. Congress has the power--
CHUCK TODD:
Is that realistic?
GREG ABBOTT:
Congress has the power and the resources to decide whether or not that metric will be zero or 10% or 20%.
CHUCK TODD:
Come 2016 you may be a popular figure inside the Republican party. Rick Perry, Ted Cruz, two Texas officials running for president. Rand Paul, born in Texas. Jeb Bush, his son is serving in Texas. Do you have a favorite?
GREG ABBOTT:
I will be strongly supportive of the Republican nominee--
CHUCK TODD:
427

Case 1:14-cv-00254 Document 38-30 Filed in TXSD on 12/24/14 Page 7 of 7
Do you-GREG ABBOTT: --to be the next president of the United States. CHUCK TODD: You are staying out of the primarily totally? GREG ABBOTT: I'm staying out of the primary. CHUCK TODD: All right. Greg Abbott, we'll be watching you when you're governor of Texas. Thanks for coming on Meet The Press. GREG ABBOTT: Thank you, Chuck. CHUCK TODD: You got it. Now the lawsuit guys, we're going to find out a lot about before the end of the year. Here's a map of the 20 states. Rick Santelli, governor of Texas also told me that he thinks they filed a preliminary, try to get a preliminary injunction as you would, if you believe there's harm done, then you immediately want the law not enacted until you get your day in court. How should Congressional Republicans be responding? We know how they're going to respond, but how should they be responding to this? RICK SANTELLI: Well, listen, it's a complicated issue. I come from immigrant grandparents. The country would not be what it is if it wasn't for the immigrants in this country. The border, it's important to some conservatives. I understand that. Outsource it to the likes of Google. You could work through this problem. Why do we need this-(OVERTALK) CHUCK TODD: You'd do a technology thing, huh?
428

Case 1:14-cv-00254 Document 38-31 Filed in TXSD on 12/24/14 Page 1 of 2
EXHIBIT 31

Case 1:14-cv-00254 Document 38-31 Filed in TXSD on 12/24/14 Page 2 of 2

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 32

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 2 of 7
Statement of Jeh Charles Johnson, Secretary U.S. Department of Homeland Security Before the United States Senate Committee on Appropriations July 10, 2014
430

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 3 of 7
Chairwoman Mikulski, Ranking Member Shelby, and Members of this Committee, thank you for the opportunity to testify today about the Department’s efforts to address the recent rise of unaccompanied children and adults with children crossing the southwest border in the Rio Grande Valley in South Texas.
The recent and dramatic rise in illegal migration across our border, from Honduras, El Salvador and Guatemala, presents a major challenge to the United States. Particularly because so many of those crossing our border are children, there is also a humanitarian dimension to this problem, which the U.S. Government is bound and determined to respect. As Americans, we will adhere to domestic and international law, due process, and the basic principles of charity, decency, and fairness. But, in the final analysis, our border is not open to illegal migration.
Our message is clear to those who try to illegally cross our borders: you will be sent back home. We have already added resources to expedite the removal, without a hearing before an immigration judge, of adults who come from these three countries without children. We have worked with the governments of these countries to repatriate the adults quicker. (Indeed, while in Guatemala City two days ago, I personally witnessed a flight of repatriated adults returning home.) Within the last several months, we have dramatically reduced the removal time of many of these migrants. Within the law, we are sending this group back, and we are sending them back quicker.
Then there are adults who brought their children with them. Again, our message to this group is simple: we will send you back. We are building additional space to detain these groups and hold them until their expedited removal orders are effectuated. Last week we opened a detention facility in Artesia, New Mexico for this purpose, and we are building more detention space quickly. Adults who brought their children here expecting to make it to the nearest bus station in the U.S. were surprised that they were detained at Artesia. They will be sent back quickly, with the sad recognition that the large sum of money they paid a criminal smuggling organization to get them to the U.S will go to waste.
Then there are the unaccompanied children. As I have said many times, the long journey for a child, in the custody of a criminal smuggling organization, from Central America to the United States is dangerous. Many of the children are exploited, abused and hurt. Under our laws, an unaccompanied child from Central America must be transferred from the Department of Homeland Security (DHS) to the Department of Health and Human Services (HHS) and placed by HHS in a situation that is in the best interest of the child. But, the removal proceeding against the child continues. Every child will retain the right, like adults, to assert a claim of asylum or seek other protections. But, unless the child has been granted asylum or some other protection in this country – and the vast majority will not – he or she will be sent back and we seek additional resources to do that quickly.
Those who cross our border illegally must know there is no safe passage, and no free pass; within the confines of our laws, our values, and our resources, they will be sent back to their home countries.
1
431

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 4 of 7
I am grateful that the Senate Appropriations Committee included in its fiscal year 2015 DHS Appropriations Bill an additional $164.5 million to address this surge in unaccompanied children. However, given the current dramatic increase in apprehensions and activities associated with unaccompanied children and family groups, the resources necessary to appropriately address this issue are simply not available within the current fiscal year 2014 budget or the proposed fiscal year 2015 appropriation. To effectively address this emerging crisis, the President has requested emergency supplemental appropriations of $3.7 billion to comprehensively address this urgent humanitarian situation, including $1.5 billion for DHS to support more detention and removal facilities and enhanced processes as well as increased activities to disrupt and dismantle the human smuggling organizations that bring these individuals across U.S. borders.
Put plainly, without supplemental funding, in August U.S. Immigration and Customs Enforcement (ICE) will run out of money and DHS would need to divert significant funds from other critical programs just to maintain operations. Likewise, the Department of Health and Human Services (HHS) will be unable to address the influx of children by securing sufficient shelter capacity, leading to more children being held at short term border patrol processing stations for longer periods of time. Going forward, HHS will be unable to set-up more stable, cost-effective arrangements for these children, Border Patrol agents will have to be re-assigned from their border security work to assist at facilities housing children, and ICE will lack the resources needed to sufficiently maintain and expand detention and removal capacity for adults with children who cross the border illegally. Without additional funds, the Department of Justice (DOJ) will be unable to keep pace with its growing caseload, leading to longer wait times for those cases already on the docket. And absent dedicated resources in Central American countries, we will not make progress on the larger drivers of this humanitarian situation. For this reason, supplemental resources are urgently needed to continue forward with the aggressive response that the Administration has deployed to date.
This emergency supplemental request is a direct result of the urgent situation in the Rio Grande Valley. In fiscal year 2013, CBP apprehended approximately 24,000 unaccompanied children at the border. By the end of June of this fiscal year, that number has already doubled to more than 57,000, and it continues to climb. We are preparing for a scenario in which the number of unaccompanied children apprehended at the border could reach up to 90,000 by the end of fiscal year 2014.
I know that additional money alone will not fully address the challenge we face, and we do not make this request lightly. While building capacity is necessary, we must also ramp up our ability to safely and quickly return the influx of these recent border crossers, which is exactly what we are doing.
As I have previously testified, we have established added capacity to deal with the processing and housing of the children and families and we are actively exploring additional options. To process the increased numbers of unaccompanied children and family groups in Texas, DHS has brought the children to our processing center at Nogales, Arizona before any unaccompanied children are sent to HHS, to whom DHS is mandated by law to transfer custody once they are
2
432

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 5 of 7
identified as unaccompanied children. We are also arranging additional processing centers to handle the rise in the RGV, including adding a 1,000 bed processing center in McAllen.
Critically, DHS is also building additional detention capacity for adults who cross the border illegally in the Rio Grande Valley with their children. For this purpose DHS has established a temporary facility for adults with children on the Federal Law Enforcement Training Center's campus at Artesia, New Mexico. The establishment of this temporary facility will help CBP process those encountered at the border and allow ICE to increase its capacity to house and expedite the removal of adults with children in a manner that complies with federal law. Artesia is one of several facilities that DHS will use to increase our capacity to hold and expedite the removal of the increasing number of adults with children illegally crossing the southwest border. DHS is ensuring that after apprehension, families are housed in facilities that adequately provide for their safety, security, and medical needs. Meanwhile, we will continue to expand use of the Alternatives to Detention program to ensure compliance with notices to appear before immigration judges for removal proceedings. DHS has also surged USCIS officers to hear credible fear claims and conduct the screening process. DOJ is temporarily reassigning immigration judges to handle the additional caseload. These immigration judges will adjudicate these cases as quickly as possible, consistent with all existing legal and procedural standards, including those for asylum applicants. Overall, this increased capacity and resources will allow ICE to return certain migrants from Central America to their home countries more quickly.
DHS has brought on more transportation assets to assist in the effort. The Coast Guard loaned air assets to help transport the children and families between CBP facilities. ICE is now leasing charter aircraft to transport unaccompanied children to HHS custody.
Throughout the Rio Grande Valley Sector, we are conducting public health screening for all those who come into our facilities for any symptoms of contagious diseases or other possible public health concerns.
In order to effectuate the safe and timely return of these migrants, we are engaging with senior government officials of Guatemala, El Salvador, Honduras, and Mexico to address our shared border security interests, the underlying conditions in Central America that are promoting the exodus, and how we can work together to assure faster, secure removal and repatriation.
Just yesterday I returned from Guatemala. Joined by SOUTHCOM Commander General John Kelly and Ambassador Thomas A. Shannon, I met with President Otto Fernando Pérez Molina to discuss the urgent situation and to express our commitment to work with Guatemala to stem the flow of individuals, address the root causes of the influx, and to expand the capacity of these countries to receive and reintegrate repatriated migrants.
As a part of these international engagement efforts, the United States has committed foreign assistance resources to improve the capacity of these countries to receive and reintegrate returned individuals and address the underlying security and economic issues that cause migration. This funding will enable El Salvador, Guatemala, and Honduras to improve their existing repatriation processes and increase the capacity of these governments and nongovernmental organizations to provide expanded services to returned migrants. Additional resources will support community
3
433

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 6 of 7
policing and law enforcement efforts to combat gang violence and strengthen citizen security in some of the most violent communities in these countries.
DHS has also added personnel and resources to the investigation, prosecution, disruption, and dismantling of the smuggling organizations that are facilitating border crossings into the Rio Grande Valley. ICE Homeland Security Investigations (HSI) is deploying 60 additional criminal investigators and support personnel to their San Antonio and Houston offices for this purpose, as well as supplementing this with additional intelligence and programmatic support from ICE headquarters. ICE will continue to vigorously pursue and dismantle these human smuggling organizations by all investigative means to include the financial structure of these criminal organizations.
We have increased CBP staffing and detailed 115 additional experienced agents from less active sectors to augment operations there. On June 30, I announced the immediate deployment of 150 U.S. Border Patrol agents to the Rio Grande Valley Sector to augment illegal entry detection efforts while enhancing processing and detention capabilities.
Our plan of action is comprehensive and wide-reaching. However, the measures that we have taken – which have been critical and must be sustained – are and will continue to be costly. Many of these activities were not contemplated at the time Congress passed the fiscal year 2014 DHS appropriations act. With such a dramatic increase in the number of unaccompanied minors and family groups being apprehended, significant additional resources are needed. As a result, the President sent a letter to Congress on June 30, providing an update on the Administration's efforts to address this situation and requesting congressional action on emergency supplemental appropriations legislation to support the following:
• an aggressive deterrence strategy focused on the removal and repatriation of recent border crossers;
• a sustained border security surge through enhanced domestic enforcement, including interdiction and prosecution of criminal networks;
• a significant increase in immigration judges, reassigning them to adjudicate cases of recent border crossers, and establishing corresponding facilities to expedite the processing of cases involving those who crossed the border in recent weeks;
• a stepped up effort to work with our Central American partners to repatriate and reintegrate migrants returned to their countries, address the root causes of migration, and communicate the realities of these dangerous journeys; and
• the resources necessary to appropriately detain, process, and care for children and adults.
Specifically, the President has requested your support on emergency supplemental appropriations legislation providing DHS with $1.5 billion for fiscal year 2014 and 2015 costs related to surge in unaccompanied children and families. Of this amount, $433 million is included for CBP and $1.104 billion is included for ICE.
Of the $433 million included for CBP, $329 million is for operational costs to include care, feeding, and transportation costs of unaccompanied children and family groups. In addition, this amount would provide $35 million for new processing and detention facilities at Nogales and
4
434

Case 1:14-cv-00254 Document 38-32 Filed in TXSD on 12/24/14 Page 7 of 7
McAllen. Finally, the request supports CBP’s efforts to detect and interdict unaccompanied children across U.S. borders, including $29 million for increased CBP support of the Border Security Task Forces, particularly along the Southwest Border, and $39 million for an additional 16,526 flight hours (above the level in the President’s FY15 Budget request) and 16 additional crew members for CBP’s Unmanned Aircraft Systems.
Of the $1.104 billion included for ICE, $995 million is for operational costs to include the detention, alternatives to detention, prosecution, and removal of family groups, as well as transportation costs of unaccompanied children to HHS custody. Another $109 million is included to support increased efforts to detect, disrupt and dismantle efforts to smuggle unaccompanied children and family groups across U.S. borders.
The requested amount would include $116 million for operational costs associated with the transportation of unaccompanied children to HHS custody, and $879 million for 6,350 additional family unit beds, 23,000 additional alternatives to detention participants per day, additional prosecution capacity, and related transportation and removal costs for family groups. Finally, the request strengthens ICE efforts to detect and disrupt efforts to smuggle unaccompanied children across U.S. borders, including $46 million for 179 additional members of the Border Security Task Forces, particularly along the Southwest Border, $38 million for additional domestic and international investigations and intelligence support, and $6 million for Operation Torrent Divide.
As the urgent situation presented by the influx of unaccompanied children and families in south Texas continues to evolve, we will look to use every available tool to ensure that we are addressing these challenges and changing circumstances, including the potential use of transfer authority if necessary and appropriate.
Finally, I want to once again thank Chairwoman Mikulski, Ranking Member Shelby, and Members of this Committee for this opportunity to testify and for the strong support that I have received from the Committee since becoming Secretary of the Department of Homeland Security. We are committed to continuing to work closely with the Committee and Congress on this critical issue, and to keep you informed. DHS is updating Members and staff on the situation in conference calls two times a week, facilitating site visits to Border Patrol facilities in Texas and Arizona for a number of Members and their staff, and providing daily updates to the Appropriations Committee on border apprehensions data.
In cooperation with the other agencies of our government that are dedicating resources to the effort, with the support of Congress, and in cooperation with the governments of Mexico and Central America, I believe we can stem this tide and address the broader issues. The requested supplemental funding is critical to enabling the Department to fulfill its mission and address the dramatic surge in unaccompanied children and families in a manner that maintains border security and reflects our laws and values.
Thank you for listening and I look forward to your questions.
5
435

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 1 of 7
EXHIBIT 33

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 2 of 7
Statement by
Secretary Jeh C. Johnson U.S. Department of Homeland Security
Hearing before the House Committee on Homeland Security
December 2, 2014
1
436

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 3 of 7
Thank you Chairman McCaul, Ranking Member Thompson, and Committee members for the opportunity to testify today.
On November 20 President Obama announced a series of executive actions to begin to fix our immigration system. The President views these actions as a first step toward reform of the system, and continues to count on Congress for the more comprehensive reform that only legislative changes can provide.
The actions we took will begin to fix the system in a number of respects.
To promote border security for the future, and to send a strong message that our borders are not open to illegal migration, we prioritize the removal of those apprehended at the border and those who came here illegally after January 1, 2014, regardless of where they are apprehended. We also announced the next steps to strengthen our border security efforts as a part of our Southern Border Campaign Strategy, which I first announced earlier this year.
To promote public safety, we make clear that those convicted of crimes, criminal street gang members, and national security threats are also priorities for removal.
To promote accountability, we encourage those undocumented immigrants who have been here for at least five years, have sons or daughters who are citizens or lawful permanent residents, and do not fall into one of our enforcement priorities, to come out of the shadows, get on the books, and pass national security and criminal background checks. After clearing all their background checks, these individuals are eligible for work authorization and will be able to pay taxes and contribute more fully to our economy. The reality is that, given our limited resources, these people are not priorities for removal—it’s time we acknowledge that and encourage them to be held accountable. This is simple common sense.
To rebuild trust with state and local law enforcement which are no longer honoring ICE detainers, we are ending the controversial Secure Communities program as we know it, and making a fresh start with a new program that fixes existing problems.
To promote U.S. citizenship, we will enable applicants to pay the $680 naturalization fee by credit card and expand citizenship public awareness.
To promote the U.S. economy, we will take administrative actions to better enable U.S. businesses to hire and retain qualified, highly skilled foreign born workers.
The reality is that, for decades, Presidents have used executive authority to enhance immigration policy. President Obama views these actions as a first step toward
2
437

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 4 of 7
the reform of the system, and continues to count on Congress for the more comprehensive reform that only changes in law can provide.
I recommended to the President each of the Homeland Security reforms to the immigration system that he has decided to pursue. These recommendations were the result of extended and candid consultations I had with the leadership of Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS). Along the way, I also spoke with members of the workforce who implement and enforce the law to hear their views. In my own view, any significant change in policy requires close consultation with those who administer the system. We also consulted a wide range of stakeholders, including business and labor leaders, law enforcement officers, religious leaders, and members of Congress from both sides of the aisle. We also consulted with the Department of Justice, and we received a formal, written opinion from the Justice Department’s Office of Legal Counsel concerning enforcement prioritization and deferred action, and that opinion has been made public.
Here is a summary of our executive actions:
Strengthening border security. Our executive actions emphasize that our border is not open to future illegal migration and that those who come here illegally will be sent back, unless they qualify for some form of humanitarian relief under our laws. The reality is that, over the last fifteen years spanning the Clinton, Bush, and Obama Administrations, much has been done to improve border security. But, through the executive actions announced last week, we can and will do more.
Today, we have unprecedented levels of border security resources—personnel, equipment and technology—along our Southwest border. This investment has produced significant positive results. Apprehensions have declined from over 1.6 million in 2000 to around 400,000 a year—the lowest rate since the 1970s. According to Pew Research, the number of undocumented immigrants in this country grew to a high of 12.2 million in 2007 and has remained, after a slight drop, at about 11.3 million ever since. That means this population has stopped growing for the first time since the 1980s, and over half of these individuals have been in the United States for 13 years.
Without a doubt, we had a setback this summer. We saw an unprecedented spike in illegal migration into South Texas—from Guatemala, Honduras, and El Salvador. And as everyone knows, it consisted of large numbers of unaccompanied children and adults with children. We responded with more security and law enforcement resources; more processing centers; more detention space; more Border Patrol agents in the Rio Grande Valley; more prosecution of criminal smuggling organizations; an aggressive public message campaign; engagement of Central American leaders by the President and the Vice President; and increased interdiction efforts by the Government of Mexico. And,
3
438

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 5 of 7
since the spring, the numbers of unaccompanied children crossing the southern border illegally have gone down considerably: May – 10,578; June – 10,620; July – 5,499; August – 3,138; September – 2,426; October – 2,529.
However, we are not finished with the work of securing our border. We can and will do more—that’s a critical component of the President’s executive actions.
We will build upon the border security infrastructure we put in place last summer. We announced several days ago the opening of another detention facility for adults with children in Dilley, Texas, that has the capability to detain over 2,000 individuals. At the same time, we will close the smaller, temporary facility for adults with children at Artesia, New Mexico. We are developing a “Southern Border Campaign Strategy” to fundamentally alter the way in which we marshal resources to the border under the direction of three new Department task forces. They will follow a focused risk-based strategy, with the overarching goals of enforcing our immigration laws and interdicting individuals seeking to illegally cross land, sea and air borders. These actions are designed to send a clear message: in the future, those who attempt to illegally cross our borders will be sent back.
Creating new and clearer enforcement prioritization policies. This new policy will also have a strong border security component to it, in addition to prioritizing for removal public safety and national security threats. Virtually every law enforcement agency engages in prosecutorial discretion. With the finite resources an agency has to enforce the law, it must prioritize use of those resources. To this end, DHS will implement a new and clearer enforcement and removal policy. The new policy places: (i) top priority on national security threats, convicted felons, criminal gang participants, and illegal entrants apprehended at the border; (ii) second-tier priority on those convicted of significant or multiple misdemeanors and those who entered or re-entered this country unlawfully after January 1, 2014, -- regardless of whether they are apprehended at the border -- or significantly abused the visa or visa waiver programs; and (iii) the lowest priority are those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014.
Giving people the opportunity to be held accountable. The reality is that, undocumented immigrants who have been in this country for years, raising American families and developing ties to the community. Many of these individuals have committed no crimes and are not enforcement priorities. It is time that we acknowledge this as a matter of official policy and encourage eligible individuals to come out of the shadows, submit to criminal and national security background checks, and be held accountable.
We will therefore offer, on a case-by-case basis, deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at
4
439

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 6 of 7
least 5 years, (iii) have sons or daughters who are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. The reality is that our finite resources will not and should not be expanded to remove these people. We are also amending eligibility for the Deferred Action for Childhood Arrivals (DACA) program. At present, eligibility is limited to those who were under 31 years of age on June 15, 2012, entered the United States before June 15, 2007, and were under 16 years old when they entered. We will amend eligibility for DACA to cover all undocumented immigrants who entered the United States before the age of 16, not limited to those born after June 15, 1981. We are also adjusting the cut-off date from June 15, 2007 to January 1, 2010 and expanding the period of work authorization from two years to three years.
President Obama’s Administration is not the first to undertake such actions. In fact, the concept of deferred action is an established, long-standing administrative mechanism dating back decades, and it is one of a number of similar mechanisms Administrations have used to grant temporary immigration relief for humanitarian and other reasons. For example, Presidents Reagan and Bush authorized executive action to shield undocumented children and spouses who did not qualify for legalization under the Immigration Reform and Control Act of 1986. This “Family Fairness Program” used a form of relief known at the time as “indefinite voluntary departure,” which is similar to the deferred action authority we use today.
Fixing Secure Communities. We will end the Secure Communities program as we know it. The overarching goal of the program is a good one, but it has attracted widespread criticism in its implementation and has been embroiled in litigation. Accordingly, we will replace it with a new “Priority Enforcement Program” that closely and clearly reflects DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies but will, for the most part, limit the circumstances under which DHS will seek an individual in the custody of state and local law enforcement— specifically, only when an individual has been convicted of certain offenses listed in Priorities 1 and 2 of our new enforcement priorities outlined above.
Pay reform for ICE ERO officers. We will conduct an expeditious review of personnel reforms for Immigration and Customs Enforcement (ICE) officers engaged in removal operations, to bring their job classifications and pay coverage in line with other law enforcement personnel, and pursue regulations and legislation to address these issues.
Extending the provisional waiver program to promote family unity. The provisional waiver program we announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded—to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful
5
440

Case 1:14-cv-00254 Document 38-33 Filed in TXSD on 12/24/14 Page 7 of 7
permanent residents. At the same time, we will clarify the “extreme hardship” standard that must be met to obtain the provisional waiver.
Supporting military families. We will work with the Department of Defense to address the availability of parole-in-place and deferred action, on a case-by-case basis, for the spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces.
Increasing access to U.S. citizenship. We will undertake options to promote and increase access to naturalization and consider innovative ways to address barriers that may impede such access, including for those who lack resources to pay application fees. To enhance access to U.S. citizenship, we will (i) permit the use of credit cards as a payment option, and (ii) enhance public awareness around citizenship. USCIS will also include the feasibility of a partial fee waiver as part of its next biennial fee study.
Supporting U.S. business and high-skilled workers. Finally, DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain qualified, highly skilled foreign-born workers. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.
Overall, the executive actions the President announced last week will not only bolster our border security, they will promote family unity, increase access to U.S. citizenship, grow and strengthen the competitiveness of the U.S. economy, and create jobs, particularly in the high-skilled labor sectors.
Again, the President views these actions as a first step toward the reform of our immigration system and he continues to count on Congress for the more comprehensive reform that only legislative changes can provide. In the meantime, we will use our executive authority to fix as much of our broken immigration system as possible.
I look forward to answering your questions.
6
441

Case 1:14-cv-00254 Document 38-34 Filed in TXSD on 12/24/14 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

__________________________________________

)

STATE OF TEXAS, et al.

)

)

Plaintiffs,

)

)

No. 1:14-cv-254

v.

)

)

UNITED STATES OF AMERICA, et al.

)

)

Defendants.

)

__________________________________________)

[Proposed] Order Upon consideration of Plaintiffs’ Motion for Preliminary Injunction, Defendants’ Opposition thereto, and any other replies or responses thereto, it is
HEREBY ORDERED that Plaintiffs’ Motion for Preliminary Injunction is DENIED.
It is FURTHER ORDERED that the above-captioned matter is DISMISSED.

Signed on January ______, 2015.

___________________________________ The Honorable Andrew S. Hanen United States District Judge

-1-

 
 Case: 15-40238 Document: 00513264640 Page: 1 Date Filed: 11/09/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
__________

United States Court of Appeals Fifth Circuit
FILED

No. 15-40238

November 9, 2015

__________

Lyle W. Cayce

Clerk

STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA;

STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS;

STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA;

STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA;

STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN;

PAUL R. LEPAGE, Governor, State of Maine;

PATRICK L. MCCRORY, Governor, State of North Carolina;

C. L. “BUTCH” OTTER, Governor, State of Idaho;

PHIL BRYANT, Governor, State of Mississippi;

STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA;

STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS;

ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA;

STATE OF TENNESSEE,

Plaintiffs−Appellees,

versus

UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, Secretary, Department of Homeland Security; R. GIL KERLIKOWSKE,
Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO,
Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; SARAH R. SALDANA,
Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services,

Defendants−Appellants.

_______________________

Appeal from the United States District Court for the Southern District of Texas _______________________

Case: 15-40238 Document: 00513264640 Page: 2 Date Filed: 11/09/2015
No. 15-40238 Before KING, SMITH, and ELROD, Circuit Judges. JERRY E. SMITH, Circuit Judge:
The United States1 appeals a preliminary injunction, pending trial, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Twenty-six states (the “states”2) challenged DAPA under the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution;3 in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground that the states are likely to succeed on their claim that DAPA is subject to the APA’s procedural requirements. Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015).4
The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.5
1 This opinion refers to the defendants collectively as “the United States” or “the government” unless otherwise indicated.
2 We refer to the plaintiffs collectively as “the states,” but as appropriate we refer only to Texas because it is the only state that the district court determined to have standing.
3 We find it unnecessary, at this early stage of the proceedings, to address or decide the challenge based on the Take Care Clause.
4 We cite the district court’s opinion as “Dist. Ct. Op., 86 F. Supp. 3d at ___.” 5 Our dedicated colleague has penned a careful dissent, with which we largely but
2

Case: 15-40238 Document: 00513264640 Page: 3 Date Filed: 11/09/2015

No. 15-40238 I. A.
In June 2012, the Department of Homeland Security (“DHS”) implemented the Deferred Action for Childhood Arrivals program (“DACA”).6 In the DACA Memo to agency heads, the DHS Secretary “set[] forth how, in the exercise of . . . prosecutorial discretion, [DHS] should enforce the Nation’s immigration laws against certain young people” and listed five “criteria [that] should be satisfied before an individual is considered for an exercise of prosecutorial discretion.”7 The Secretary further instructed that “[n]o individual should receive deferred action . . . unless they [sic] first pass a background check and requests for relief . . . are to be decided on a case by case basis.”8 Although stating that “[f]or individuals who are granted deferred action . . . , [U.S. Citizenship and Immigration Services (“USCIS”)] shall accept applications to determine whether these individuals qualify for work authorization,” the DACA Memo purported to “confer[] no substantive right, immigration status or pathway to citizenship.”9 At least 1.2 million persons qualify for DACA, and approximately 636,000 applications were approved through 2014.

respectfully disagree. It is well-researched, however, and bears a careful read.

6 Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David Agui-

lar, Acting Comm’r, U.S. Customs and Border Prot., et al. 1 (June 15, 2012) (the “DACA

Memo”),

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-

individuals-who-came-to-us-as-children.pdf.

7 Id. (stating that an individual may be considered if he “[1] came to the United States under the age of sixteen; [2] has continuously resided in the United States for a[t] least five years preceding [June 15, 2012] and is present in the United States on [June 15]; [3] is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the [military]; [4] 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 [5] is not above the age of thirty”).

8 Id. at 2.

9 Id. at 3.
3

Case: 15-40238 Document: 00513264640 Page: 4 Date Filed: 11/09/2015

No. 15-40238 Dist. Ct. Op., 86 F. Supp. 3d at 609.
In November 2014, by what is termed the “DAPA Memo,” DHS expanded DACA by making millions more persons eligible for the program10 and extending “[t]he period for which DACA and the accompanying employment authorization is granted . . . to three-year increments, rather than the current twoyear increments.”11 The Secretary also “direct[ed] USCIS to establish a process, similar to DACA,” known as DAPA, which applies to “individuals who . . . have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident” and meet five additional criteria.12 The Secretary stated that, although “[d]eferred action does not confer any form of legal status in this country, much less citizenship[,] it [does] mean[] that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”13 Of the approximately 11.3 million illegal aliens14 in the United

10 Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez,

Dir.,

USCIS,

et

al.

3–4

(Nov.

20,

2014),

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.

11 Id. at 3. The district court enjoined implementation of the following three DACA expansions, and they are included in the term “DAPA” in this opinion: (1) the “age restriction exclud[ing] those who were older than 31 on the date of the [DACA] announcement . . . will no longer apply,” id.; (2) “[t]he period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments,” id.; (3) “the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010,” id. at 4. Dist. Ct. Op., 86 F. Supp. 3d at 677–78 & n.111.

12 DAPA Memo at 4 (directing that individuals may be considered for deferred action if they “[1] have, on [November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident; [2] have continuously resided in the United States since before January 1, 2010; [3] are physically present in the United States on [November 20, 2014], and at the time of making a request for consideration of deferred action with USCIS; [4] have no lawful status on [November 20, 2014]; [5] are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and [6] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate”).

13 Id. at 2 (emphasis added).

14 Although “[a]s a general rule, it is not a crime for a removable alien to remain
4

Case: 15-40238 Document: 00513264640 Page: 5 Date Filed: 11/09/2015
No. 15-40238
States, 4.3 million would be eligible for lawful presence pursuant to DAPA.
Dist. Ct. Op., 86 F. Supp. 3d at 612 n.11, 670.
“Lawful presence” is not an enforceable right to remain in the United
States and can be revoked at any time, but that classification nevertheless has
significant legal consequences. Unlawfully present aliens are generally not
eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local
public benefits unless the state otherwise provides, see 8 U.S.C. § 1621.15 But
as the government admits in its opening brief, persons granted lawful presence
pursuant to DAPA are no longer “bar[red] . . . from receiving social security
present in the United States,” it is a civil offense. Arizona v. United States, 132 S. Ct. 2492, 2505 (2012); see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B). This opinion therefore refers to such persons as “illegal aliens”:
The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as neargobbledygook. 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 a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning.
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”). BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted). And as the district court pointed out, “it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. Op., 86 F. Supp. 3d at 605 n.2 (citing Arizona v. United States, 132 S. Ct. 2492, 2497 (2012)). “[I]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 (2015).
15 Those provisions reflect Congress’s concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates” and that “[i]t is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.” 8 U.S.C. § 1601. Moreover, the provisions incorporate a national policy that “aliens within the Nation’s borders not depend on public resources to meet their needs” and that “[s]elf-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” Id.
5

Case: 15-40238 Document: 00513264640 Page: 6 Date Filed: 11/09/2015
No. 15-40238 retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program.”16 That follows from § 1611(b)(2)–(3), which provides that the exclusion of benefits in § 1611(a) “shall not apply to any benefit[s] payable under title[s] II [and XVIII] of the Social Security Act . . . to an alien who is lawfully present in the United States as determined by the Attorney General . . . .” (emphasis added). A lawfully present alien is still required to satisfy independent qualification criteria before receiving those benefits, but the grant of lawful presence removes the categorical bar and thereby makes otherwise ineligible persons eligible to qualify.
“Each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the [renewable three-year] period of deferred action.” DAPA Memo at 4. 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.”17 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.”18
As for state benefits, although “[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under
16 Brief for Appellants at 48–49 (citing 8 U.S.C. § 1611(b)(2)–(3)). 17 Brief for Appellants at 49 (citation omitted) (citing 42 U.S.C. § 405(c)(1)(B), (4), (5)(A)–(J); 8 C.F.R. § 1.3(a)(4)(vi); 20 C.F.R. §§ 422.104(a)(2), 422.105(a)). 18 Dist. Ct. Op., 86 F. Supp. 3d at 654 n.64; see also 26 U.S.C. § 32(c)(1)(E), (m) (stating that eligibility for earned income tax credit is limited to individuals with Social Security numbers); 20 C.F.R. §§ 422.104(a)(2), 422.107(a), (e)(1).
6

Case: 15-40238 Document: 00513264640 Page: 7 Date Filed: 11/09/2015
No. 15-40238 subsection (a),” § 1621(d), Texas has chosen not to issue driver’s licenses to unlawfully present aliens.19 Texas maintains that documentation confirming lawful presence pursuant to DAPA would allow otherwise ineligible aliens to become eligible for state-subsidized driver’s licenses. Likewise, certain unemployment compensation “[b]enefits are not payable based on services performed by an alien unless the alien . . . was lawfully present for purposes of performing the services . . . .”20 Texas contends that DAPA recipients would also become eligible for unemployment insurance.
B. The states sued to prevent DAPA’s implementation on three grounds. First, they asserted that DAPA violated the procedural requirements of the APA as a substantive rule that did not undergo the requisite notice-andcomment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that DHS lacked the authority to implement the program even if it followed the correct rulemaking process, such that DAPA was substantively unlawful under the APA. See 5 U.S.C. § 706(2)(A)–(C). Third, the states urged that DAPA was an abrogation of the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3.
The district court held that Texas has standing. It concluded that the state would suffer a financial injury by having to issue driver’s licenses to DAPA beneficiaries at a loss. Dist. Ct. Op., 86 F. Supp. 3d at 616–23.
19 TEX. TRANSP. CODE § 521.142(a) (“An applicant who is not a citizen of the United States must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.” (emphasis added)).
20 TEX. LAB. CODE § 207.043(a)(2) (emphasis added); see also 26 U.S.C. § 3304(a)(14)(A) (approval of state laws making compensation not payable to aliens unless they are “lawfully present for purposes of performing such services” (emphasis added)).
7

Case: 15-40238 Document: 00513264640 Page: 8 Date Filed: 11/09/2015
No. 15-40238 Alternatively, the court relied on a new theory it called “abdication standing”: Texas had standing because the United States has exclusive authority over immigration but has refused to act in that area. Id. at 636–43. The court also considered but ultimately did not accept the notions that Texas could sue as parens patriae on behalf of citizens facing economic competition from DAPA beneficiaries and that the state had standing based on the losses it suffers generally from illegal immigration. Id. at 625–36.
The court temporarily enjoined DAPA’s implementation after determining that Texas had shown a substantial likelihood of success on its claim that the program must undergo notice and comment. Id. at 677. Despite full briefing, the court did not rule on the “Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Id. On appeal, the United States maintains that the states do not have standing or a right to judicial review and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also contends that the injunction, including its nationwide scope, is improper as a matter of law.
II. “We review a preliminary injunction for abuse of discretion.”21 A preliminary injunction should issue only if the states, as movants, establish (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.[22] “As to each element of the district court’s preliminary-injunction analysis
21 Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013). 22 Id. (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)).
8

Case: 15-40238 Document: 00513264640 Page: 9 Date Filed: 11/09/2015
No. 15-40238 . . . findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be reversed if incorrect.”23
III. The government claims the states lack standing to challenge DAPA. As we will analyze, however, their standing is plain, based on the driver’s-license rationale,24 so we need not address the other possible grounds for standing.
As the parties invoking federal jurisdiction, the states have the burden of establishing standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013). They must show an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Id. at 1147 (citation omitted). “When a litigant is vested with 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.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007). “[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006).
23 Id. (quoting Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011)). 24 We did not reach this issue in Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015). There, we concluded that neither the State of Mississippi nor Immigration and Customs Enforcement (“ICE”) agents and deportation officers had standing to challenge DACA. Id. at 255. We explicitly determined that Mississippi had waived the theory that Texas now advances: In a letter brief filed after oral argument, Mississippi put forward three new arguments in support of its standing, [including] (1) the cost of issuing driver’s licenses to DACA’s beneficiaries . . . . Because Mississippi failed to provide evidentiary support on these arguments and failed to make these arguments in their opening brief on appeal and below, they have been waived. Id. at 252 n.34.
9

Case: 15-40238 Document: 00513264640 Page: 10 Date Filed: 11/09/2015
No. 15-40238
A. We begin by considering whether the states are entitled to “special solicitude” in our standing inquiry under Massachusetts v. EPA. They are.
The Court held that Massachusetts had standing to contest the EPA’s decision not to regulate greenhouse-gas emissions from new motor vehicles, which allegedly contributed to a rise in sea levels and a loss of the state’s coastal land. Massachusetts v. EPA, 549 U.S. at 526. “It is of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual” because “States are not normal litigants for the purposes of invoking federal jurisdiction.” Id. at 518.25
The Court identified two additional considerations that entitled Massachusetts “to special solicitude in [the Court’s] standing analysis.” Id. at 520.26 First, the Clean Air Act created a procedural right to challenge the EPA’s decision:
The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate
25 The dissent, throughout, cleverly refers to the states, more than forty times, as the “plaintiffs,” obscuring the fact that they are sovereign states (while referring to the defendants as the “government”). See Dissent, passim.
26 The dissent attempts to diminish the considerable significance of the “special solicitude” language, which, to say the least, is inconvenient to the United States in its effort to defeat standing. The dissent protests that it is “only a single, isolated phrase” that “appears only once.” Dissent at 9.
The dissent, however, avoids mention of the Court’s explanation that “[i]t is of considerable relevance that the party seeking review here is a sovereign State.” Massachusetts v. EPA, 549 U.S. at 518. In light of that enlargement on the “special solicitude” phrase, it is obvious that being a state greatly matters in the standing inquiry, and it makes no difference, in the words of the dissent, “whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in [and] of itself, helps confer standing.” Dissent at 9.
10

Case: 15-40238 Document: 00513264640 Page: 11 Date Filed: 11/09/2015
No. 15-40238
chains of causation that will give rise to a case or controversy where none existed before.” “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” We will not, therefore, “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.”[27]
Second, the EPA’s decision affected Massachusetts’s “quasi-sovereign” interest in its territory:
When a State enters the Union, it surrenders certain sovereign prerogatives. 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 motor-vehicle emissions might well be pre-empted.
These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[28]
Like Massachusetts, the instant plaintiffs―the states―“are not normal litigants for the purposes of invoking federal jurisdiction,” id. at 518, and the
same two additional factors are present. First, “[t]he parties’ dispute turns on the proper construction of a congressional statute,”29 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 concerned the interpretation of the Clean Air Act, which provides
for judicial review of “final action taken[] by the Administrator.”
27 Massachusetts v. EPA, 549 U.S. at 516–17 (citations omitted). 28 Id. at 519–20 (alteration in original) (citation omitted) (quoting 42 U.S.C. § 7521(a)(1)). 29 Id. at 516.
11

Case: 15-40238 Document: 00513264640 Page: 12 Date Filed: 11/09/2015
No. 15-40238 42 U.S.C. § 7607(b)(1). Further, as we will explain, the states are within the zone of interests of the Immigration and Nationality Act (“INA”);30 they are not asking us to “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.”31
In enacting the APA, Congress intended for those “suffering legal wrong because of agency action” to have judicial recourse,32 and the states fall well within that definition.33 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.34 Texas, by contrast, challenges DHS’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.
As we will show, DAPA would have a major effect on the states’ fiscs, causing millions of dollars of losses in Texas alone, and at least in Texas, the
30 See infra part IV. 31 Massachusetts v. EPA, 549 U.S. at 516–17 (citation omitted). 32 5 U.S.C. § 702. 33 See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 694, 696 n.13 (10th Cir. 2009) (holding that New Mexico was entitled to “special solicitude” where one of its claims was based on the APA); Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241–42 (10th Cir. 2008) (holding that Wyoming was entitled to special solicitude where its only claim was based on the APA). 34 See Heckler v. Chaney, 470 U.S. 821, 831 (observing that “refusals to take enforcement steps” generally are subject to agency discretion, and the “presumption is that judicial review is not available.”).
12

Case: 15-40238 Document: 00513264640 Page: 13 Date Filed: 11/09/2015
No. 15-40238 causal chain is especially direct: DAPA would enable beneficiaries to apply for driver’s licenses, and many would do so, resulting in Texas’s injury.
Second, DAPA affects the states’ “quasi-sovereign” interests by imposing substantial pressure on them to change their laws, which provide for issuing driver’s licenses to some aliens and subsidizing those licenses.35 “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’”36 Pursuant to that interest, states may have standing based on (1) federal assertions of authority to regulate matters they believe they control,37 (2) federal preemption of state law,38 and (3) federal interference with the enforcement of state law,39 at least where “the state statute at issue regulate[s] behavior or provide[s] for the administration of a state program”40 and does not “simply purport[] to immunize [state] citizens from federal law.”41 Those intrusions are analogous to pressure to change state law.42
Moreover, these plaintiff states’ interests are like Massachusetts’s in
35 See, e.g., TEX. TRANSP. CODE § 521.142(a) (specifying the requirements for licenses), .181 (providing for the issuance of licenses), .421(a) (setting the fees for licenses); Dist. Ct. Op., 86 F. Supp. 3d at 616–17 (finding that Texas subsidizes its licenses).
36 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).
37 See id. 38 See, e.g., Crank, 539 F.3d at 1242; Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443–44 (D.C. Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232– 33 (6th Cir. 1985); cf. Diamond v. Charles, 476 U.S. 54, 62 (1986) (commenting that “a State has standing to defend the constitutionality of its statute” but not relying on that principle). 39 See Crank, 539 F.3d at 1241–42; Celebrezze, 766 F.2d at 232–33; cf. Maine v. Taylor, 477 U.S. 131, 137 (1986) (observing in another context that “a State clearly has a legitimate interest in the continued enforceability of its own statutes”). 40 Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011). 41 Id. at 270. 42 See Crank, 539 F.3d at 1241–42 (reasoning that Wyoming was entitled to “special solicitude” where its asserted injury was interference with the enforcement of state law).
13

Case: 15-40238 Document: 00513264640 Page: 14 Date Filed: 11/09/2015
No. 15-40238 ways that implicate the same sovereignty concerns. When the states joined the union, they surrendered some of their sovereign prerogatives over immigration.43 They cannot establish their own classifications of aliens,44 just as “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions [and] cannot negotiate an emissions treaty with China or India.”45 The states may not be able to discriminate against subsets of aliens in their driver’s license programs without running afoul of preemption or the Equal Protection Clause;46 similarly, “in some circumstances[, Massachusetts’s] exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.”47 Both these plaintiff states and Massachusetts now rely on the federal government to protect their interests.48 These parallels confirm that DAPA affects the states’ “quasi-sovereign” interests.
The significant opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015), announced shortly before oral argument herein, reinforces that conclusion. The Court held that the Arizona Legislature had standing to sue in response to a ballot initiative that removed its redistricting authority and vested it instead in an independent commission. Id. at 2665–66. The Court emphasized that the legislature was “an institutional plaintiff asserting an institutional injury” to what it believed was its constitutional power to regulate elections. Id. at 2664. So too
43 See generally Arizona v. United States, 132 S. Ct. at 2498–2501. 44 See Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir. 2013) (en banc). 45 Massachusetts v. EPA, 549 U.S. at 519. 46 The Ninth Circuit has suggested that, see Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061–67 (9th Cir. 2014), but we need not decide the issue. 47 Massachusetts v. EPA, 549 U.S. at 519. 48 See id.
14

Case: 15-40238 Document: 00513264640 Page: 15 Date Filed: 11/09/2015
No. 15-40238 are the states asserting institutional injury to their lawmaking authority. The Court also cited Massachusetts v. EPA as opining that the state in that case was “entitled to special solicitude in our standing analysis.” Id. at 2664–65 n.10 (quoting Massachusetts v. EPA, 549 U.S. at 520).
The United States suggests that three presumptions against standing apply here. The first is a presumption that a plaintiff lacks standing to challenge decisions to confer benefits on, or not to prosecute, a third party. But the cases the government cites for that proposition either did not involve standing;49 concerned only nonprosecution (as distinguished from both nonprosecution and the conferral of benefits);50 or merely reaffirmed that a plaintiff must satisfy the standing requirements.51
The second presumption is against justiciability in the immigration context. None of the cases the government cites involved standing52 and include only general language about the government’s authority over immigration; without a specific discussion of standing, they are of limited relevance.53
The third presumption is that “[t]he [Supreme] Court’s standing analysis . . . has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other
49 See Chaney, 470 U.S. at 823; United States v. Cox, 342 F.2d 167, 170 (5th Cir. 1965) (en banc).
50 See Linda R.S. v. Richard D., 410 U.S. 614, 615–16 (1973). 51 See Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring). 52 See Arizona v. United States, 132 S. Ct. at 2497; Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886 (1984); Plyler v. Doe, 457 U.S. 202, 205 (1982); Fiallo v. Bell, 430 U.S. 787, 788 (1977); Mathews v. Diaz, 426 U.S. 67, 69 (1976). In the other case the government cites, “we assume[d], without deciding, that the plaintiffs have standing.” Texas v. United States, 106 F.3d 661, 664 n.2 (5th Cir. 1997). 53 We address justiciability in part V.B, infra.
15

Case: 15-40238 Document: 00513264640 Page: 16 Date Filed: 11/09/2015
No. 15-40238 two branches of the Federal Government was unconstitutional.’”54 We decide this appeal, however, without resolving the constitutional claim.
Therefore, the states are entitled to “special solicitude” in the standing inquiry. We stress that our decision is limited to these facts. In particular, the direct, substantial pressure directed at the states and the fact that they have surrendered some of their control over immigration to the federal government mean this case is sufficiently similar to Massachusetts v. EPA, but pressure to change state law may not be enough―by itself―in other situations.
B. At least one state—Texas—has satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries. Under current state law, licenses issued to beneficiaries would necessarily be at a financial loss. The Department of Public Safety “shall issue” a license to a qualified applicant. TEX. TRANSP. CODE § 521.181. A noncitizen “must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States.” Id. § 521.142(a).
If permitted to go into effect, DAPA would enable at least 500,000 illegal aliens in Texas55 to satisfy that requirement with proof of lawful presence56 or
54 Ariz. State Legislature, 135 S. Ct. at 2665 n.12 (final alteration in original) (quoting Raines v. Byrd, 521 U.S. 811, 819–20 (1997)).
55 See Dist. Ct. Op., 86 F. Supp. 3d at 616. 56 See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE 4 (2013), https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf (listing an acceptable document for a “Person granted deferred action” as “Immigration documentation with an alien number or I-94 number”); DAPA Memo at 2 (“Deferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”).
16

Case: 15-40238 Document: 00513264640 Page: 17 Date Filed: 11/09/2015
No. 15-40238
employment authorization.57 Texas subsidizes its licenses and would lose a minimum of $130.89 on each one it issued to a DAPA beneficiary.58 Even a modest estimate would put the loss at “several million dollars.” Dist. Ct. Op., 86 F. Supp. 3d at 617.
Instead of disputing those figures, the United States claims that the costs would be offset by other benefits to the state. It theorizes that, because DAPA beneficiaries would be eligible for licenses, they would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists. The government suggests employment authorization would lead to increased tax revenue and decreased reliance on social services.
Even if the government is correct, that does not negate Texas’s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs.59 “Once injury is shown, no
57 See TEX. DEP’T OF PUB. SAFETY, supra note 56, at 3 (stating that an “Employment Authorization Document” is sufficient proof of lawful presence); Dist. Ct. Op., 86 F. Supp. 3d at 616 n.14 (explaining that “[e]mployment authorization” is “a benefit that will be available to recipients of DAPA”).
58 See Dist. Ct. Op., 86 F. Supp. 3d at 617. Some of those costs are directly attributable to the United States. Under the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302 (codified as amended in scattered sections of Titles 8 and 49 U.S.C.), Texas must verify each applicant’s immigration status through DHS, see 6 C.F.R. § 37.11(g), .13(b)(1), or the state’s licenses will no longer be valid for a number of purposes, including commercial air travel without a secondary form of identification, REAL ID Enforcement in Brief, U.S. DEPARTMENT OF HOMELAND SECURITY (July 27, 2015), http://www.dhs.gov/real-idenforcement-brief. Texas pays an average of 75¢ per applicant to comply with that mandate. See Dist. Ct. Op., 86 F. Supp. 3d at 617.
59 See, e.g., L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 656–59 (9th Cir. 2011) (holding that a hospice had standing to challenge a regulation that allegedly increased its costs in some ways even though the regulation may have saved it money in other ways or in other fiscal years); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 570–75 (6th Cir. 2005) (concluding that a patient had standing to sue designers, manufacturers, and distributors of a medical device implanted in his body because it allegedly increased risk of medical problems even though it had not malfunctioned and had benefited him); Markva v. Haveman, 317 F.3d
17

Case: 15-40238 Document: 00513264640 Page: 18 Date Filed: 11/09/2015
No. 15-40238 attempt is made to ask whether the injury is outweighed by benefits the plaintiff has enjoyed from the relationship with the defendant. Standing is recognized to complain that some particular aspect of the relationship is unlawful and has caused injury.”60 “Our standing analysis is not an accounting exercise . . . .”61
The one case in which we concluded that the costs of a challenged program were offset by the benefits involved a much tighter nexus. In Henderson, 287 F.3d at 379–81, we determined that taxpayers lacked standing to challenge a Louisiana law authorizing a license plate bearing a pro-life message, reasoning that the plaintiffs had not shown that the program would use their tax dollars, because the extra fees paid by drivers who purchased the plates could have covered the associated expenses. The costs and benefits arose out of the same transaction, so the plaintiffs had not demonstrated injury.
Here, none of the benefits the government identifies is sufficiently connected to the costs to qualify as an offset. The only benefits that are conceivably relevant are the increase in vehicle registration and the decrease in uninsured motorists, but even those are based on the independent decisions of DAPA beneficiaries and are not a direct result of the issuance of licenses. Analogously, the Third Circuit held that sports leagues had standing to challenge New Jersey’s decision to license sports gambling, explaining that damage to the leagues’ reputations was a cognizable injury despite evidence that more people would have watched sports had betting been allowed. NCAA, 730 F.3d
547, 557–58 (6th Cir. 2003) (deciding that grandparents had standing to challenge a requirement that they pay more for Medicaid benefits than would similarly situated parents, even though the grandparents may have received more of other types of welfare benefits).
60 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.4, at 147 (3d ed. 2015) (footnote omitted).
61 NCAA v. Governor of N.J., 730 F.3d 208, 223 (3d Cir. 2013).
18

Case: 15-40238 Document: 00513264640 Page: 19 Date Filed: 11/09/2015
No. 15-40238 at 222–24. The diminished public perception of the leagues and the greater interest in sports were attributable to the licensing plan but did not arise out of the same transaction and so could not be compared.
In the instant case, the states have alleged an injury, and the government predicts that the later decisions of DAPA beneficiaries would produce offsetting benefits. Weighing those costs and benefits is precisely the type of “accounting exercise,” id. at 223, in which we cannot engage. Texas has shown injury.
C. Texas has satisfied the second standing requirement by establishing that its injury is “fairly traceable” to DAPA. It is undisputed that DAPA would enable beneficiaries to apply for driver’s licenses, and there is little doubt that many would do so because driving is a practical necessity in most of the state.
The United States urges that Texas’s injury is not cognizable, because the state could avoid injury by not issuing licenses to illegal aliens or by not subsidizing its licenses. Although Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury altogether. “[S]tates have a sovereign interest in ‘the power to create and enforce a legal code,’”62 and the possibility that a plaintiff could avoid injury by incurring other costs does not negate standing.63
62 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).
63 See Texas v. United States, 497 F.3d 491, 497 (5th Cir. 2007). The dissent theorizes that if “forcing Texas to change its laws would be an injury because states have a ‘sovereign interest in the “power to create and enforce a legal code,”’” then Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam), must be wrongly decided. Dissent at 12 n.16. The dissent posits that Pennsylvania (there) and Texas (here) faced pressure to change their laws, so their Article III standing vel non must be the same. But the dissent ignores a key distinction between Pennsylvania v. New Jersey and the instant case: As we explain below, the pressure
19

Case: 15-40238 Document: 00513264640 Page: 20 Date Filed: 11/09/2015
No. 15-40238 Indeed, treating the availability of changing state law as a bar to standing would deprive states of judicial recourse for many bona fide harms. For instance, under that theory, federal preemption of state law could never be an injury, because a state could always change its law to avoid preemption. But courts have often held that states have standing based on preemption.64 And states could offset almost any financial loss by raising taxes or fees. The existence of that alternative does not mean they lack standing.
Relying primarily on Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam), the United States maintains that Texas’s injury is self-inflicted because the state voluntarily chose to base its driver’s license policies on federal immigration law. In Pennsylvania v. New Jersey, id. at 664, 666, the Court held that several states lacked standing to contest other states’ laws taxing a portion of nonresidents’ incomes. The plaintiff states alleged that the defendant states’ taxes injured them because the plaintiffs gave their residents credits for taxes paid to other states, so the defendants’ taxes increased the amount of those credits, causing the plaintiffs to lose revenue. Id. at 663. The Court flatly rejected that theory of standing:
In neither of the suits at bar has the defendant State inflicted any injury upon the plaintiff States through the imposition of the [challenged taxes]. The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their respective state legislatures. Nothing required Maine, Massachusetts, and Vermont to extend a tax credit to their residents for income taxes paid to New Hampshire, and nothing prevents Pennsylvania from withdrawing that credit for taxes paid to New Jersey. No State can be heard to complain about damage inflicted by its own hand. Id. at 664.
that Pennsylvania faced to change its laws was self-inflicted; Texas’s is not. 64 See, e.g., Crank, 539 F.3d at 1242; Alaska, 868 F.2d at 443-44; Celebrezze, 766 F.2d
at 232–33.
20

Case: 15-40238 Document: 00513264640 Page: 21 Date Filed: 11/09/2015
No. 15-40238 The more recent decision in Wyoming v. Oklahoma, 502 U.S. 437 (1992), also informs our analysis. There, the Court held that Wyoming had standing to challenge an Oklahoma law requiring some Oklahoma power plants to burn at least 10% Oklahoma-mined coal. Id. at 447. The Court explained that Wyoming taxed the extraction of coal in the state and that Oklahoma’s law reduced demand for that coal and Wyoming’s corresponding revenue. Id. The Court emphasized that the case involved an “undisputed” “direct injury in the form of a loss of specific tax revenues.” Id. at 448. It rejected Oklahoma’s contention “that Wyoming is not itself engaged in the commerce affected, is not affected as a consumer, and thus has not suffered the type of direct injury cognizable in a Commerce Clause action,” id., concluding that Wyoming’s loss of revenue was sufficient, id. at 448–50. The Court did not cite Pennsylvania v. New Jersey or discuss the theory that Wyoming’s injury was self-inflicted.
Both the Pennsylvania v. New Jersey plaintiffs and Wyoming structured their laws in ways that meant their finances would have been affected by changes in other states’ laws. Because the tax credits in Pennsylvania v. New Jersey were based on taxes paid to other states, any tax increases in other states would have decreased the plaintiffs’ revenues, and any tax cuts would have had the opposite effect. Analogously, Wyoming’s tax was based on the amount of coal extracted there, so any policies in other states that decreased demand for that coal would have diminished Wyoming’s revenues, and any policies that bolstered demand would have had the opposite effect.
In other words, the schemes in both cases made the plaintiff states’ finances dependent on those of third parties—either resident taxpayers or coal companies—which in turn were affected by other states’ laws. The issues in Pennsylvania v. New Jersey and Wyoming v. Oklahoma were thus similar to the question here, but the Court announced different results. The two cases
21

Case: 15-40238 Document: 00513264640 Page: 22 Date Filed: 11/09/2015
No. 15-40238 are readily distinguishable, however, and, based on two considerations, Wyoming v. Oklahoma directs our decision.
First, Texas and Wyoming sued in response to major changes in the defendant states’ policies. Texas sued after the United States had announced DAPA, which could make at least 500,000 illegal aliens eligible for driver’s licenses and cause millions of dollars of losses; Wyoming sued after Oklahoma had enacted a law that cost Wyoming over $1 million in tax revenues. See id. at 445–46 & n.6. Conversely, the Pennsylvania v. New Jersey plaintiffs sued not because of a change in the defendant states’ laws but because they believed that Austin v. New Hampshire, 420 U.S. 656 (1975), had rendered the defendants’ laws unconstitutional. See Pennsylvania v. New Jersey, 426 U.S. at 661– 63. The fact that Texas sued in response to a significant change in the defendants’ policies shows that its injury is not self-inflicted.
Second, the plaintiffs’ options for accomplishing their policy goals were more limited in this case and in Wyoming v. Oklahoma than in Pennsylvania v. New Jersey. Texas seeks to issue licenses only to those lawfully present in the United States, and the state is required to use federal immigration classifications to do so. See Villas at Parkside Partners, 726 F.3d at 536. Likewise, Wyoming sought to tax the extraction of coal and had no way to avoid being affected by other states’ laws that reduced demand for that coal.65
65 It follows that the dissent’s unsubstantiated claim that “Pennsylvania, like Texas, tied its law to that of another sovereign, whereas Wyoming did not” (emphasis added), is obvious error. Dissent at 12 n.16. The dissent ignores our explication of Texas’s and Wyoming’s policy goals. We do not assert that those states cannot change their laws to avoid injury from changes in the laws of another state. Rather, we demonstrate that Texas and Wyoming cannot both change their laws to avoid injury from amendments to another sovereign’s laws and achieve their policy goals.
For example, although, as we have said but the dissent overlooks, Wyoming easily could have avoided injury from changes in Oklahoma’s laws by abandoning entirely its tax on coal extraction, it would have surrendered its policy goal of taxing extraction in the first
22

Case: 15-40238 Document: 00513264640 Page: 23 Date Filed: 11/09/2015
No. 15-40238 By way of contrast, the plaintiff states in Pennsylvania v. New Jersey could have achieved their policy goal in myriad ways, such as basing their tax credits on residents’ out-of-state incomes instead of on taxes actually paid to other states. That alternative would have achieved those plaintiffs’ goal of allowing their residents to avoid double taxation of their out-of-state incomes, but it would not have tied the plaintiffs’ finances to other states’ laws. The fact that Texas had no similar option means its injury is not self-inflicted.
The decision in Amnesty International supports this conclusion: The Court held that the plaintiffs lacked standing to challenge a provision of the Foreign Intelligence Surveillance Act authorizing the interception of certain electronic communications. Amnesty Int’l, 133 S. Ct. at 1155. The plaintiffs alleged that they had been forced to take costly steps to avoid surveillance, such as traveling to meet in person and not discussing certain topics by email or phone. Id. at 1150–51. The Court held that any such injuries were selfinflicted, id. at 1152–53, reasoning that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 1151 (citing Pennsylvania v. New Jersey, 426 U.S. at 664). “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III
place. Similarly, Texas could avoid financial loss by increasing fees, not subsidizing its licenses, or perhaps not issuing licenses to lawfully present aliens, but the consequence would be that by taking those actions Texas would have abandoned its fully permissible policy goal of providing subsidized licenses only to those who are lawfully present in the United States―a policy that, as we have repeatedly pointed out, Texas instituted well before the Secretary designed DACA or DAPA.
In essence, the dissent would have us issue the following edict to Texas: “You may avoid injury to the pursuit of your policy goals—injury resulting from a change in federal immigration law—by changing your laws to pursue different goals or eliminating them altogether. Therefore, your injuries are self-inflicted.” Presumably the dissent would have liked for the Supreme Court to have issued a similar edict to Wyoming, which sought to tax the extraction of coal and had no way both to continue taxing extraction and to avoid being affected by Oklahoma’s laws that reduced demand for that coal. See Dissent at 12–13.
23

Case: 15-40238 Document: 00513264640 Page: 24 Date Filed: 11/09/2015
No. 15-40238 standing simply by making an expenditure based on a nonparanoid fear.” Id.
By way of contrast, there is no allegation that Texas passed its driver’s license law to manufacture standing. The legislature enacted the law one year before DACA and three years before DAPA was announced,66 and there is no hint that the state anticipated a change in immigration policy―much less a change as sweeping and dramatic as DAPA. Despite the dissent’s bold suggestion that Texas’s license-plate-cost injury “is entirely manufactured by Plaintiffs for this case,” Dissent at 12, the injury is not self-inflicted.
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.
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. See Massachusetts v. EPA, 549 U.S. at 523. There was some uncertainty about whether the EPA’s inaction was a substantial cause of the state’s harm, considering the many other emissions sources involved.67 But the Court held that Massachusetts had satisfied the causation
66 See Certain State Fiscal Matters; Providing Penalties, ch. 4, sec. 72.03, § 521.101(f-2), 2011 Tex. Gen. Laws 5254, 5344 (codified at TEX. TRANSP. CODE § 521.142(a)).
67 See Massachusetts v. EPA, 549 U.S. at 523–24; id. at 540–45 (Roberts, C.J., dissenting) (questioning whether Massachusetts had lost land at all as a result of climate change and whether the EPA’s decision had contributed meaningfully to any erosion).
24

Case: 15-40238 Document: 00513264640 Page: 25 Date Filed: 11/09/2015
No. 15-40238
requirement because the possibility that the effect of the EPA’s decision was
minor did not negate standing, and the evidence showed that the effect was
significant in any event. Id. at 524–25.
This case raises even less doubt about causation, so the result is the
same. The matters in which the Supreme Court held that an injury was not
fairly traceable to the challenged law reinforce this conclusion. In some of
them, the independent act of a third party was a necessary condition of the
harm’s occurrence, and it was uncertain whether the third party would take
the required step.68 Not so here.
DAPA beneficiaries have strong incentives to obtain driver’s licenses,
and it is hardly speculative that many would do so if they became eligible. In
other cases, in which there was insufficient proof of causation, several factors
potentially contributed to the injury, and the challenged policy likely played a
minor role.69
68 See, e.g., Amnesty Int’l, 133 S. Ct. at 1147–50 (explaining that, for a provision of the Foreign Intelligence Surveillance Act to have resulted in the monitoring of the plaintiffs’ communications, the Attorney General and the Director of National Intelligence would have had to authorize the collection of the communications, the Foreign Intelligence Surveillance Court would have had to approve the government’s request, and the government would have had to intercept the communications successfully); Whitmore v. Arkansas, 495 U.S. 149, 156– 60 (1990) (reasoning that, for a death-row inmate’s decision not to appeal to have harmed the plaintiff, who was another death row inmate, the court hearing any appeal would have had to rule in a way favorable to the plaintiff).
69 See, e.g., Already, LLC v. Nike, Inc., 133 S. Ct. 721, 731 (2013) (rejecting the theory “that a market participant is injured for Article III purposes whenever a competitor benefits from something allegedly unlawful—whether a trademark, the awarding of a contract, a landlord-tenant arrangement, or so on.”); McConnell v. FEC, 540 U.S. 93, 228 (2003) (commenting that the plaintiffs, candidates for public office, were unable to compete not because of increased hard-money limits but instead because of their personal decisions not to accept large contributions), overruled on other grounds by Citizens United v. FEC, 558 U.S. 310 (2010); Allen v. Wright, 468 U.S. 737, 756–59 (1984) (observing that any lack of opportunity for the plaintiffs’ children to attend racially integrated public schools was attributable not only to tax exemptions for discriminatory private schools but also to the decisions of privateschool administrators and other parents), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).
25

Case: 15-40238 Document: 00513264640 Page: 26 Date Filed: 11/09/2015
No. 15-40238 Far from playing an insignificant role, DAPA would be the primary cause and likely the only one. Without the program, there would be little risk of a dramatic increase in the costs of the driver’s-license program. This case is far removed from those in which the Supreme Court has held an injury to be too incidental or attenuated. Texas’s injury is fairly traceable to DAPA.
D. Texas has satisfied the third standing requirement, redressability. Enjoining DAPA based on the procedural APA claim could prompt DHS to reconsider the program, which is all a plaintiff must show when asserting a procedural right. See id. at 518. And enjoining DAPA based on the substantive APA claim would prevent Texas’s injury altogether.
E. The United States submits that Texas’s theory of standing is flawed because it has no principled limit. In the government’s view, if Texas can challenge DAPA, it could also sue to block a grant of asylum to a single alien or any federal policy that adversely affects the state, such as an IRS revenue ruling that decreases a corporation’s federal taxable income and corresponding state franchise-tax liability. The flaw in the government’s reasoning is that Massachusetts v. EPA entailed similar risks, but the Court still held that Massachusetts had standing. Under that decision, Massachusetts conceivably could challenge the government’s decision to buy a car with poor fuel efficiency because the vehicle could contribute to global warming. The state might be able to contest any federal action that prompts more travel. Or it potentially could challenge any change in federal policy that indirectly results in greenhouse-gas emissions, such as a trade-promotion program that leads to more shipping. One of the
26

Case: 15-40238 Document: 00513264640 Page: 27 Date Filed: 11/09/2015
No. 15-40238 dissenting Justices in Massachusetts v. EPA criticized the decision on that ground,70 but the majority found those concerns unpersuasive, just as they are here.
After Massachusetts v. EPA, the answer to those criticisms is that there are other ways to cabin policy disagreements masquerading as legal claims.71 First, a state that has standing still must have a cause of action. Even the APA—potentially the most versatile tool available to an enterprising state— imposes a number of limitations. A state must be defending concerns that are “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”72 It is unclear whether a state dissatisfied with an IRS revenue ruling would be defending such an interest. Moreover, judicial review is unavailable where the statute precludes it or the matter is committed to agency discretion. 5 U.S.C. § 701(a). Because of those restrictions, a state would have limited ability to challenge many asylum determinations. See 8 U.S.C. § 1252(b)(4)(D). Further, numerous policies that adversely affect states either are not rules at all or are exempt from the noticeand-comment requirements. See generally 5 U.S.C. § 553.
Second, the standing requirements would preclude much of the litigation the government describes. For example, it would be difficult to establish standing to challenge a grant of asylum to a single alien based on the driver’s-license theory. The state must allege an injury that has already occurred or is
70 See Massachusetts v. EPA, 549 U.S. at 546 (Roberts, C.J., dissenting) (“Every little bit helps, so Massachusetts can sue over any little bit.”).
71 The dissent responds to this by asserting that “[t]he majority’s observation that this suit involves ‘policy disagreements masquerading as legal claims’ is also telling.” Dissent at 22. That of course is not what our sentence (which is not a description of the suit at hand) says at all.
72 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).
27

Case: 15-40238 Document: 00513264640 Page: 28 Date Filed: 11/09/2015
No. 15-40238 “certainly impending”;73 it is easier to demonstrate that some DAPA beneficiaries would apply for licenses than it is to establish that a particular alien would. And causation could be a substantial obstacle. Although the district court’s calculation of Texas’s loss from DAPA was based largely on the need to hire employees, purchase equipment, and obtain office space,74 those steps would be unnecessary to license one additional person.
Third, our determination that Texas has standing is based in part on the “special solicitude” we afford it under Massachusetts v. EPA as reinforced by Arizona State Legislature. To be entitled to that presumption, a state likely must be exercising a procedural right created by Congress and protecting a “quasi-sovereign” interest. See Massachusetts v. EPA, 549 U.S. at 520. Those factors will seldom exist. For instance, a grant of asylum to a single alien would impose little pressure to change state law. Without “special solicitude,” it would be difficult for a state to establish standing, a heavy burden in many of the government’s hypotheticals.
Fourth, as a practical matter, it is pure speculation that a state would sue about matters such as an IRS revenue ruling. Though not dispositive of the issue, the absence of any indication that such lawsuits will occur suggests the government’s parade of horribles is unfounded,75 and its concerns about the possible future effects of Texas’s theory of standing do not alter our conclusion. The states have standing.
73 Amnesty Int’l, 133 S. Ct. at 1147 (emphasis omitted) (quoting Defs. of Wildlife, 504 U.S. at 565 n.2).
74 See Dist. Ct. Op., 86 F. Supp. 3d at 616–17 (discussing the potential loss and citing a portion of a declaration addressing those expenses).
75 See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 710 (2012) (stating, in response to an alleged “parade of horribles,” that “[t]here will be time enough to address . . . other circumstances” in future cases without altering the Court’s present conclusion).
28

Case: 15-40238 Document: 00513264640 Page: 29 Date Filed: 11/09/2015
No. 15-40238 IV.
Because the states are suing under the APA, they “must satisfy not only Article III’s standing requirements, but an additional test: The interest [they] assert[] must be ‘arguably within the zone of interests to be protected or regulated by the statute’ that [they] say[] was violated.”76 That “test . . . ‘is not meant to be especially demanding’” and is applied “in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable.’”77
The Supreme Court “ha[s] always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,” and “[w]e do not require any ‘indication of congressional purpose to benefit the would-be plaintiff.’”78 “The test forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’”79
The interests the states seek to protect fall within the zone of interests of the INA.80 “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 v. United States, 132 S. Ct.
76 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Data Processing, 397 U.S. at 153).
77 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399). 78 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399–400). 79 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399). 80 The INA “established a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’” Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (quoting DeCanas v. Bica, 424 U.S. 351, 353, 359 (1976)).
29

Case: 15-40238 Document: 00513264640 Page: 30 Date Filed: 11/09/2015
No. 15-40238 at 2500. Reflecting a concern that “aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601, “Congress deemed some unlawfully present aliens ineligible for certain state and local public benefits unless the state explicitly provides otherwise.”81 With limited exceptions, unlawfully present aliens are “not eligible for any State or local public benefit.” 8 U.S.C. § 1621(a).
Contrary to the government’s assertion, Texas satisfies the zone-ofinterests test not on account of a generalized grievance but instead as a result of the same injury that gives it Article III standing—Congress has explicitly allowed states to deny public benefits to illegal aliens. Relying on that guarantee, Texas seeks to participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson’s choice of spending millions of dollars to subsidize driver’s licenses or changing its statutes.
V. The government maintains that judicial review is precluded even if the states are proper plaintiffs. “Any person ‘adversely affected or aggrieved’ by agency action . . . is entitled to ‘judicial review thereof,’ as long as the action is a ‘final agency action for which there is no other adequate remedy in a court.’”82 “But before any review at all may be had, a party must first clear the hurdle of 5 U.S.C. § 701(a). That section provides that the chapter on judicial review ‘applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to
81 United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012) (emphasis added) (citing 8 U.S.C. § 1621).
82 Chaney, 470 U.S. at 828 (quoting 5 U.S.C. §§ 702, 704). The government does not dispute that DAPA is a “final agency action.” See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990).
30

Case: 15-40238 Document: 00513264640 Page: 31 Date Filed: 11/09/2015
No. 15-40238 agency discretion by law.’” Chaney, 470 U.S. at 828.
“[T]here is a ‘well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,’ and we will accordingly find an intent to preclude such review only if presented with ‘clear and convincing evidence.’”83 The “‘strong presumption’ favoring judicial review of administrative action . . . is rebuttable: It fails when a statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015).
Establishing unreviewability is a “heavy burden,”84 and “where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Id. at 345.
The United States relies on 8 U.S.C. § 1252(g)85 for the proposition that the INA expressly prohibits judicial review. But the government’s broad reading is contrary to Reno v. American-Arab Anti-Discrimination Committee (“AAADC”), 525 U.S. 471, 482 (1999), in which the Court rejected “the
83 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993) (quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991); Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)).
84 Mach Mining, 135 S. Ct. at 1651 (quoting Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)).
85 With limited exceptions, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g).
31

Case: 15-40238 Document: 00513264640 Page: 32 Date Filed: 11/09/2015
No. 15-40238 unexamined assumption that § 1252(g) covers the universe of deportation claims—that it is a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review.’”86 The Court emphasized that § 1252(g) is not “a general jurisdictional limitation,” but rather “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”87
None of those actions is at issue here—the states’ claims do not arise from the Secretary’s “decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders against any alien,” § 1252(g); instead, they stem from his decision to grant lawful presence to millions of illegal aliens on a class-wide basis. Further, the states are not bringing a “cause or claim by or on behalf of any alien”—they assert their own right to the APA’s procedural protections. Id. Congress has expressly limited or precluded judicial review of many immigration decisions,88 including some that are made in the Secretary’s “sole and unreviewable discretion,”89 but DAPA is not one of them.
Judicial review of DAPA is consistent with the protections Congress affords to states that decline to provide public benefits to illegal aliens. “The
86 AAADC, 525 U.S. at 482. “We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation . . . .” Id.
87 Id. (quoting § 1252(g)). 88 See AAADC, 525 U.S. at 486–87 (listing “8 U.S.C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States), [(B)] (barring review of denials of discretionary relief authorized by various statutory provisions), [(C)] (barring review of final removal orders against criminal aliens), [(b)(4)(D)] (limiting review of asylum determinations)”); see also, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v) (barring review of waiver of reentry restrictions); 1226a(b)(1) (limiting review of detention of terrorist aliens); 1229c(e) (barring review of regulations limiting eligibility for voluntary departure), (f) (limiting review of denial of voluntary departure). 89 E.g., 8 U.S.C. §§ 1613(c)(2)(G), 1621(b)(4), 1641.
32

Case: 15-40238 Document: 00513264640 Page: 33 Date Filed: 11/09/2015
No. 15-40238 Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,”90 but, through § 1621, Congress has sought to protect states from “bear[ing] many of the consequences of unlawful immigration.”91 Texas avails itself of some of those protections through Section 521.142(a) of the Texas Transportation Code, which allows the state to avoid the costs of issuing driver’s licenses to illegal aliens.
If 500,000 unlawfully present aliens residing in Texas were reclassified as lawfully present pursuant to DAPA, they would become eligible for driver’s licenses at a subsidized fee. Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states that have relied on the protections conferred by § 1621.
The states contend that DAPA is being implemented without discretion to deny applications that meet the objective criteria set forth in the DAPA Memo, and under AAADC, judicial review could be available if there is an indication that deferred-action decisions are not made on a case-by-case basis. In AAADC, a group of aliens “challenge[d] . . . the Attorney General’s decision to ‘commence [deportation] proceedings’ against them,” and the Court held that § 1252(g) squarely deprived it of jurisdiction. AAADC, 525 U.S. at 487. The Court noted that § 1252(g) codified the Secretary’s discretion to decline “the initiation or prosecution of various stages in the deportation process,” id. at 483, and the Court observed that “[p]rior to 1997, deferred-action decisions were governed by internal [INS] guidelines which considered [a variety of factors],” id. at 484 n.8. Although those guidelines “were apparently rescinded,”
90 Arizona v. United States, 132 S. Ct. at 2498. 91 Id. at 2500.
33

Case: 15-40238 Document: 00513264640 Page: 34 Date Filed: 11/09/2015
No. 15-40238 the Court observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id. But the government has not rebutted the strong presumption of reviewability with clear and convincing evidence that, inter alia, it is making case-by-case decisions here.92
A. Title 5 § 701(a)(2) “preclude[s] judicial review of certain categories of administrative decisions that courts traditionally have regarded as “committed to agency discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (citation omitted). For example, “an agency’s decision not to institute enforcement proceedings [is] presumptively unreviewable under § 701(a)(2).” Id. (citation omitted). Likewise, “[t]here is no judicial review of agency action ‘where statutes [granting agency discretion] are drawn in such broad terms that in a given case there is no law to apply,’”93 such as “[t]he allocation of funds from a lump-sum appropriation.” Vigil, 508 U.S. at 192.
1. The Secretary has broad discretion to “decide whether it makes sense to pursue removal at all”94 and urges that deferred action—a grant of “lawful presence” and subsequent eligibility for otherwise unavailable benefits—is a
92 See, e.g., Gulf Restoration Network v. McCarthy, 783 F.3d 227, 235 (5th Cir. 2015) (Higginbotham, J.) (“[T]here is a ‘strong presumption,’ subject to Congressional language, that ‘action taken by a federal agency is reviewable in federal court.’” (quoting RSR Corp. v. Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984))).
93 Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (alteration in original) (citation omitted).
94 Arizona v. United States, 132 S. Ct. at 2499 (“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” (citation omitted)).
34

Case: 15-40238 Document: 00513264640 Page: 35 Date Filed: 11/09/2015
No. 15-40238 presumptively unreviewable exercise of prosecutorial discretion.95 “The general exception to reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.”96 Where, however, “an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”97
Part of DAPA involves the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be lowpriority illegal aliens. But importantly, the states have not challenged the priority levels he has established,98 and neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.
Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—
95 The dissent misleadingly declares, “In other words, deferred action itself is merely a brand of ‘presumptively unreviewable’ prosecutorial discretion.” Dissent at 14. The dissent attributes that statement to this panel majority when in fact, as shown above, we accurately cite the statement as coming from the Secretary.
96 Chaney, 470 U.S. at 838 (citation omitted); see Vigil, 508 U.S. at 190–91. 97 Chaney, 470 U.S. at 832. 98 See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov. 20, 2014) (the “Prioritization Memo”), http://www.dhs.gov/sites/default/files/publications/14_1120_ memo_prosecutorial_discretion.pdf.
35

Case: 15-40238 Document: 00513264640 Page: 36 Date Filed: 11/09/2015
No. 15-40238
for example, under title II and XVIII of the Social Security Act99—and state
benefits—for example, driver’s licenses and unemployment insurance100—that would not otherwise be available to illegal aliens.101
The United States maintains that DAPA is presumptively unreviewable
prosecutorial discretion because “‘lawful presence’ is not a status and is not
something that the alien can legally enforce; the agency can alter or revoke it at any time.”102 The government further contends that “[e]very decision under
[DAPA] to defer enforcement action against an alien necessarily entails allow-
ing the individual to be lawfully present . . . . Deferred action under DAPA and
‘lawful presence’ during that limited period are thus two sides of the same
coin.”103
99 See supra part I.A. DAPA would also toll the duration of the recipients’ unlawful presence under the INA’s reentry bars, which would benefit aliens who receive lawful presence as minors because the unlawful-presence clock begins to run only at age eighteen. See 8 U.S.C. § 1182(a)(9)(B)(iii)(I). Most adult beneficiaries would be unlikely to benefit from tolling because, to be eligible for DAPA, one must have continuously resided in the United States since before January 1, 2010, and therefore would likely already be subject to the reentry bar for aliens who have “been unlawfully present in the United States for one year or more.” § 1182(a)(9)(B)(i)(II); see § 1182(a)(9)(C)(i)(I).
100 See supra part I.A. 101 Cf. Memorandum from James Cole, Deputy Att’y Gen., to All U.S. Attorneys (Aug. 29, 2013) (the “Cole Memo”), http://www.justice.gov/iso/opa/resources/ 3052013829132756857467.pdf. The Cole Memo establishes how prosecutorial discretion will be used in relation to marihuana enforcement under the Controlled Substances Act. Unlike the DAPA Memo, it does not direct an agency to grant eligibility for affirmative benefits to anyone engaged in unlawful conduct. As we have explained, to receive public benefits, aliens accorded lawful presence must satisfy additional criteria set forth in the various benefit schemes, but they nevertheless become eligible to satisfy those criteria. That eligibility is itself a cognizable benefit. 102 Supplemental Brief for Appellants at 16. But see 8 U.S.C. § 1201(i) (“After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation.”); § 1227(a)(1)(B) (providing that any alien “whose nonimmigrant visa . . . has been revoked under section 1201(i) of this title, is deportable”). 103 Supplemental Brief for Appellants at 16 (emphasis omitted).
36

Case: 15-40238 Document: 00513264640 Page: 37 Date Filed: 11/09/2015
No. 15-40238
Revocability, however, is not the touchstone for whether agency is action is reviewable. Likewise, to be reviewable agency action, DAPA need not directly confer public benefits—removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them “provides a focus for judicial review.” Chaney, 470 U.S. at 832.
Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”104 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 participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.
This evident conclusion is reinforced by the Supreme Court’s description, in AAADC, of deferred action as a nonprosecution decision:
To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action . . . . Approval of deferred action status means that . . . no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.[105] In their procedural claim, the states do not challenge the Secretary’s decision
104 Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)).
105 AAADC, 525 U.S. at 484 (emphasis added) (quoting 6 CHARLES GORDON, STANLEY MAILMAN & STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE § 72.03[2][h] (1998)); accord Johns v. Dep’t of Justice, 653 F.2d 884, 890 (5th Cir. Aug. 1981) (“The Attorney General also determines whether (1) to refrain from (or, in administrative parlance, to defer in) executing an outstanding order of deportation, or (2) to stay the order of deportation.” (footnote omitted)); see also Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (per curiam).
37

Case: 15-40238 Document: 00513264640 Page: 38 Date Filed: 11/09/2015
No. 15-40238 to “decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,” nor does deferred action mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.”106
Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,”107 a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens. Thus, DAPA “provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”108
2. “The mere fact that a statute grants broad discretion to an agency does not render the agency’s decisions completely unreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.”109 In Perales, 903 F.2d at 1051, we held that the INS’s decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because “[t]here are no statutory standards for the court to apply . . . . There is nothing
106 AAADC, 525 U.S. at 484 (quoting GORDON, MAILMAN & YALE-LOEHR, supra note 105).
107 DAPA Memo at 2 (emphasis added). 108 Chaney, 470 U.S. at 832. Because the challenged portion of DAPA’s deferred-action program is not an exercise of enforcement discretion, we do not reach the issue of whether the presumption against review of such discretion is rebutted. See id. at 832–34; Adams v. Richardson, 480 F.2d 1159, 1161–62 (D.C. Cir. 1973) (en banc) (per curiam). 109 Perales, 903 F.2d at 1051 (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (per curiam)).
38

Case: 15-40238 Document: 00513264640 Page: 39 Date Filed: 11/09/2015
No. 15-40238 in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure to [the plaintiff class of aliens].” Although we stated that “the agency’s decision to grant voluntary departure and work authorization has been committed to agency discretion by law,” id. at 1045, that case involved a challenge to the denial of voluntary departure and work authorization.
Under those facts, Perales faithfully applied Chaney’s presumption against judicial review of agency inaction “because there are no meaningful standards against which to judge the agency’s exercise of discretion.” Id. at 1047. But where there is affirmative agency action—as with DAPA’s issuance of lawful presence and employment authorization—and in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization,110 “[t]he action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832.
The United States asserts that 8 C.F.R. § 274a.12(c)(14),111 rather than DAPA, makes aliens granted deferred action eligible for work authorizations. But if DAPA’s deferred-action program must be subjected to notice-andcomment, then work authorizations may not be validly issued pursuant to that subsection until that process has been completed and aliens have been “granted deferred action.” § 274a.12(c)(14).
Moreover, the government’s limitless reading of that subsection— allowing for the issuance of employment authorizations to any class of illegal
110 See infra part VII. 111 “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 for employment.” 8 C.F.R. § 274a.12(c)(14).
39

Case: 15-40238 Document: 00513264640 Page: 40 Date Filed: 11/09/2015
No. 15-40238 aliens whom DHS declines to remove—is beyond the scope of what the INA can reasonably be interpreted to authorize, as we will explain.112 And even assuming, arguendo, that the government does have that power, Texas is also injured by the grant of lawful presence itself, which makes DAPA recipients newly eligible for state-subsidized driver’s licenses.113 As an affirmative agency action with meaningful standards against which to judge it, DAPA is not an unreviewable “agency action . . . committed to agency discretion by law.” § 701(a)(2).
B. The government urges that this case is not justiciable even though “‘a federal court’s “obligation”’ to hear and decide cases within its jurisdiction is ‘virtually unflagging.’”114 We decline to depart from that well-established principle.115 And in invoking our jurisdiction, the states do not demand that the federal government “control immigration and . . . pay for the consequences of federal immigration policy” or “prevent illegal immigration.”116
Neither the preliminary injunction nor compliance with the APA requires the Secretary to enforce the immigration laws or change his priorities
112 The class of aliens eligible for DAPA is not among those classes of aliens identified by Congress as eligible for deferred action and work authorization. See infra part VII.
113 See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE, supra note 56. 114 Lexmark, 134 S. Ct. at 1386 (quoting Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)). 115 See Sprint Commc’ns, 134 S. Ct. at 590 (“Federal courts, it was early and famously said, have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.’” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))). 116 Texas v. United States, 106 F.3d at 664; see also Sure-Tan, 467 U.S. at 897 (“[P]rivate persons . . . have no judicially cognizable interest in procuring enforcement of the immigration laws . . . .”); Fiallo, 430 U.S. at 792 (“[T]he power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953))).
40

Case: 15-40238 Document: 00513264640 Page: 41 Date Filed: 11/09/2015
No. 15-40238
for removal, which have expressly not been challenged.117 Nor have the states
“merely invited us to substitute our judgment for that of Congress in deciding
which aliens shall be eligible to participate in [a benefits program].” Diaz,
426 U.S. at 84.118 DAPA was enjoined because the states seek an opportunity
117 See Brief for Appellees at 2 (“[T]he district court’s injunction does not touch—and this lawsuit has never challenged—the Executive’s separate memorandum establishing three categories for removal prioritization, or any decision by the Executive to forego a removal proceeding.”).
118 The main thrust of the dissent could be summarized as claiming that “[i]t’s Congress’s fault.” The President apparently agrees: As explained by the district court, “it was the failure of Congress to enact such a program that prompted [the President] . . . to ‘change the law.’” See infra note 200. The dissent opens by blaming Congress for insufficient funding―to-wit, “decades of congressional appropriations decisions, which require DHS . . . to de-prioritize millions of removable each year due to these resource constraints.” Dissent at 5–6 (footnote omitted).
The dissent’s insistent invocation of what it perceives as Congress’s inadequate funding is regrettable and exposes the weakness of the government’s legal position. See, e.g., Dissent at 1 (“unless and until more resources are made available by Congress”); id. (“if Congress is able to make more resources for removal available”); id. at 4 (“given the resource constraints faced by DHS”); id. (“to maximize the resources that can be devoted to such ends”); id. at 5 (“decades of congressional appropriations decisions”); id. at 6 (“due to these resource constraints”); id. at 7 n.9 (“”if Congress were to substantially increase the amount of funding”); id at 14 (“DHS’s limited resources”); id. at 43 n.55 (“the decades-long failure of Congress to fund”); id. at [50] (“Congress’s choices as to the level of funding for immigration enforcement”).
The facts, not commentary on political decisions, are what should matter. Thus the dissent’s notion that “this case essentially boils down to a policy dispute,” Dissent at 22, far misses the mark and avoids having to tackle the hard reality―for the government―of existing law. Similarly unimpressive is the dissent’s resort to hyperbole. E.g., Dissent at 10 (“[t]he majority’s breathtaking expansion of state standing”); id. at 11 (“the majority’s sweeping ‘special solicitude’ analysis”); id. at 11 n.14 (“the sweeping language the majority uses today”); id. at 42 n.54 (“this radical theory of standing”); id at 47 n.61 (“The majority’s ruling . . . is potentially devastating.”).
The dissent also claims that despite limited funding, “DHS . . . has been removing individuals from the United States in record numbers.” Dissent at 20. At the very least, the statistics on which the dissent relies are highly misleading. Although DHS claims that a record-high of 0.44 million aliens were deported in 2013, it arrives at that number by using only “removals” (which are deportations by court order) per year and ignoring “returns” (which are deportations achieved without court order). If, more accurately, one counts total removals and returns by both ICE and the Border Patrol, deportations peaked at over 1.8 million in 2000 and plunged to less than half―about 0.6 million―in 2013. In that thirteenyear interim, the number of aliens deported per court directive (that is, removed) roughly
41

Case: 15-40238 Document: 00513264640 Page: 42 Date Filed: 11/09/2015

No. 15-40238 to be heard through notice and comment, not to have the judiciary formulate or rewrite immigration policy. “Consultation between federal and state officials is an important feature of the immigration system,”119 and the notice-andcomment process, which “is designed to ensure that affected parties have an opportunity to participate in and influence agency decision making,”120 facilitates that communication.
At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA’s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law. The federal courts are fully capable of adjudicating those disputes.
VI. Because the interests that Texas seeks to protect are within the INA’s zone of interests, and judicial review is available, we address whether Texas has established a substantial likelihood of success on its claim that DAPA must be submitted for notice and comment. The United States urges that DAPA is exempt as an “interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). “In contrast, if a rule is ‘substantive,’ the exemption is inapplicable, and the full panoply of notice-and-comment requirements must be adhered to scrupulously. The

doubled from about 0.2 million to 0.44 million. The total number of deportations is at its

lowest level since the mid-1970’s. U.S. DEP’T OF HOMELAND SEC., 2013 YEARBOOK OF

IMMIGRATION

STATISTICS

103tbl.39

(2014),

http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf.

119 Arizona v. United States, 132 S. Ct. at 2508.

120 U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979).
42

Case: 15-40238 Document: 00513264640 Page: 43 Date Filed: 11/09/2015
No. 15-40238
‘APA’s notice and comment exemptions must be narrowly construed.’”121
A.
The government advances the notion that DAPA is exempt from notice
and comment as a policy statement.122 We evaluate two criteria to distinguish
policy statements from substantive rules: whether the rule (1) “impose[s] any
rights and obligations” and (2) “genuinely leaves the agency and its decision-
makers free to exercise discretion.”123 There is some overlap in the analysis of
those prongs “because ‘[i]f a statement denies the decisionmaker discretion in
the area of its coverage . . . then the statement is binding, and creates rights
or obligations.’”124 “While mindful but suspicious of the agency’s own charac-
terization, we . . . focus[] primarily on whether the rule has binding effect on
agency discretion or severely restricts it.”125 “[A]n agency pronouncement will
121 Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995) (footnote omitted) (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).
122 The government does not dispute that DAPA is a “rule,” which is defined by the APA as “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 [various substantive agency functions] or practices bearing on any of the foregoing.” 5 U.S.C. § 551(4).
123 Prof’ls & Patients, 56 F.3d at 595 (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per curiam)); see also Vigil, 508 U.S. at 197 (describing general statements of policy “as ‘statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.’” (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979))); Brown Express, Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 1979) (“A general statement of policy is a statement by an administrative agency announcing motivating factors the agency will consider, or tentative goals toward which it will aim, in determining the resolution of a [s]ubstantive question of regulation.”).
124 Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988)).
125 Prof’ls & Patients, 56 F.3d at 595 (footnote omitted); accord id. (“[W]e are to give some deference, ‘albeit “not overwhelming,”’ to the agency’s characterization of its own rule.” (quoting Cmty. Nutrition Inst., 818 F.2d at 946)); Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 619 (5th Cir. 1994) (“This court, however, must determine the category into which the rule falls: ‘[T]he label that the particular agency puts upon its given exercise of administrative power is not, for our purposes, conclusive; rather it is what the agency does in fact.’”
43

Case: 15-40238 Document: 00513264640 Page: 44 Date Filed: 11/09/2015
No. 15-40238
be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Gen. Elec., 290 F.3d at 383 (citation omitted).
Although the DAPA Memo facially purports to confer discretion,126 the district court determined that “[n]othing about DAPA ‘genuinely leaves the agency and its [employees] free to exercise discretion,’”127 a factual finding that we review for clear error. That finding was partly informed by analysis of the implementation of DACA, the precursor to DAPA.128
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”129 because only about 5% of the 723,000 applications accepted for evaluation had been denied,130 and “[d]espite a request by the [district] [c]ourt, the [g]overnment’s
(alteration in original) (quoting Brown Express, 607 F.2d at 700)). 126 See Crane, 783 F.3d at 254–55. In Crane, we held that the plaintiff ICE agents and
deportation officers had not “demonstrated the concrete and particularized injury required to give them standing” to challenge DACA, id. at 247, because, inter alia, they had not alleged a sufficient factual basis for their claim that an employment action against them was “certainly impending” if they “exercise[d] [their] discretion to detain an illegal alien,” id. at 255. That conclusion was informed by the express delegation of discretion on the face of the DACA Memo and by the fact that no sanctions or warnings had yet been issued. Id. at 254–55. We did not hold that DACA was an unreviewable exercise of prosecutorial discretion or that the DACA criteria did not have binding or severely restrictive effect on agency discretion. See id. at 254–55.
127 Dist. Ct. Op., 86 F. Supp. 3d at 670 (second alteration in original) (quoting Prof’ls & Patients, 56 F.3d at 595).
128 Id. at 579–60. See 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 15.05[3] (2014) (“In general, the agency’s past treatment of a rule will often indicate its nature.”).
129 Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101. 130 Id. at 609; see id. (noting that “[i]n response to a Senate inquiry, the USCIS told the Senate that the top four reasons for denials were: (1) the applicant used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete Form I–765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the program”); id. at *669 n.101 (“[A]ll were denied for failure
44

Case: 15-40238 Document: 00513264640 Page: 45 Date Filed: 11/09/2015
No. 15-40238 counsel did not provide the number, if any, of requests that were denied [for discretionary reasons] even though the applicant met the DACA criteria . . . .”131 The 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”;132 DACA’s Operating Procedures, which “contain[] nearly 150 pages of specific instructions for granting or denying
to meet the criteria (or ‘rejected’ for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud.”).
Relying on the Neufeld declaration, the dissent tries to make much of the distinction between denials and rejections. Dissent at 37. The district court did in fact mistakenly write “denials” (used to describe applications refused for failure to meet the criteria) in the above quoted passage where the USCIS response actually said “rejections” (applications refused for procedural defects). USCIS reported that approximately 6% of DACA applicants were rejected and that an additional 4% were denied. USCIS does not draw a distinction between denials of applicants who did not meet the criteria and denials of those who met the criteria but were refused deferred action as a result of a discretionary choice.
USCIS could not produce any applications that satisfied all of the criteria but were refused deferred action by an exercise of discretion. Id. at 669 n.101 (“[A]ll were denied for failure to meet the criteria or ‘rejected’ for technical filing errors, errors in filling out the form or lying on the form, and failures to pay fees), or for fraud.”).” Given that the government offered no evidence as to the bases for other denials, it was not error―clear or otherwise―for the district court to conclude that DHS issued DACA denials under mechanical formulae.
131 Dist. Ct. Op., 86 F. Supp. 3d at 609. The parties had ample opportunity to inform the district court, submitting over 200 pages of briefing over a two-month period with more than 80 exhibits. The court held a hearing on the motion for a preliminary injunction, heard extensive argument from both sides, and “specifically asked for evidence of individuals who had been denied for reasons other than not meeting the criteria or technical errors with the form and/or filing.” Id. at 669 n.101.
132 Dist. Ct. Op., 86 F. Supp. 3d at 609–10.
45

Case: 15-40238 Document: 00513264640 Page: 46 Date Filed: 11/09/2015
No. 15-40238
deferred action”;133 and some mandatory language in the DAPA Memo itself.134
In denying the government’s motion for a stay of the injunction, the district
court further noted that the President had made public statements suggesting
that in reviewing applications pursuant to DAPA, DHS officials who “don’t fol-
low the policy” will face “consequences,” and “they’ve got a problem.”135
133 Id. at 669 (footnote omitted). For example, the DACA National Standard Operating Procedures (“SOP”) specifically directs officers on which evidence an applicant is required to submit, what evidence is to be considered, “the weight to be given” to evidence, and the standards of proof required to grant or deny an application. U.S. DEP’T OF HOMELAND SEC., NATIONAL STANDARD OPERATING PROCEDURES: DACA 42 (2012). To elaborate: An affidavit alone may not support an application, and DACA applicants must prove education and age criteria by documentary evidence. Id. at 8–10. The SOP also mandates, however, that “[o]fficers will NOT deny a DACA request solely because the DACA requestor failed to submit sufficient evidence with the request . . . officers will issue a [Request for Evidence (RFE)] . . . whenever possible.” Id. at 42.
DHS internal documents further provide that “a series of RFE [ ] templates have been developed and must be used,” and those documents remind repeatedly that “[u]se of these RFE templates is mandatory.” (Emphasis added.) And “[w]hen an RFE is issued, the response time given shall be 87 days.” SOP at 42.
These specific evidentiary standards and RFE steps imposed by the SOP are just examples the district court had before it when it concluded that DACA and DAPA “severely restrict[ ]” agency discretion. Prof’ls & Patients, 56 F.3d at 595. Far from being clear error, such a finding was no error whatsoever.
134 Dist. Ct. Op., 86 F. Supp. 3d at 648–49, 671 n.103. There the district court exhibited its keen awareness of the DAPA Memo by quoting the following from it:
I [the Secretary] hereby direct USCIS to establish a process, similar to DACA . . . . Applicants must file . . . . Applicants must also submit . . . . [Applicants] shall also be eligible . . . . Deferred action granted pursuant to the program shall be for a period of three years. . . . As with DACA, the above criteria are to be considered for all individuals . . . . ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria . . . . ICE is further instructed to review pending removal cases . . . . The USCIS process shall also be available to individuals subject to final orders of removal. Id. at 611–12 (paragraph breaks omitted.) This detailed explication of the DAPA Memo flies in the face of the dissent’s unjustified critique that the district court “eschew[ed] the plain language of the [DAPA] Memorandum.” Dissent at 31.
135 Texas v. United States, No. B-14-254, 2015 WL 1540022, at *3 (S.D. Tex. Apr. 7, 2015).
46

Case: 15-40238 Document: 00513264640 Page: 47 Date Filed: 11/09/2015
No. 15-40238
The DACA and DAPA Memos purport to grant discretion, but a rule can
be binding if it is “applied by the agency in a way that indicates it is binding,”136
and there was evidence from DACA’s implementation that DAPA’s discretion-
ary language was pretextual. For a number of reasons, any extrapolation from
DACA must be done carefully.137
First, DACA involved issuing benefits to self-selecting applicants, and
persons who expected to be denied relief would seem unlikely to apply. But
the issue of self-selection is partially mitigated by the finding that “the [g]ov-
ernment has publicly declared that it will make no attempt to enforce the law
against even those who are denied deferred action (absent extraordinary
circumstances).” Dist. Ct. Op., 86 F. Supp. 3d at 663 (footnote omitted).
Second, DACA and DAPA are not identical: Eligibility for DACA was
136 Gen. Elec., 290 F.3d at 383; accord McLouth Steel, 838 F.2d at 1321–22 (reviewing historical conformity as part of determination of whether rule was substantive or non-binding policy, despite language indicating that it was policy statement); id. at 1321 (“More critically than EPA’s language [,] . . . its later conduct applying it confirms its binding character.”).
137 The dissent, citing National Mining Ass’n v. McCarthy, 758 F.3d 243, 253 (D.C. Cir. 2014), criticizes the states and the district court for enjoining DAPA without “an early snapshot” of its implementation. Dissent at 32. First, the dissent overlooks a fundamental principle of preliminary injunctions: An injunction is of no help if one must wait to suffer injury before the court grants it. United States v. Emerson, 270 F.3d 203, 262 (5th Cir. 2001) (“[T]he injury need not have been inflicted when application [for the injunction] is made or be certain to occur[.]”).
Second, the dissent assumes the conclusion of National Mining—that the agency action in question is not subject to pre-enforcement review—is applicable here and asserts that we need an “early snapshot” of DAPA enforcement. The two cases are easily distinguished. The court found EPA’s “Final Guidance” exempt from pre-enforcement review because it had “no legal impact.” National Mining, 758 F.3d at 253; see id., at 252 (“The most important factor concerns the actual legal effect (or lack thereof) of the agency action on regulated entities. . . . As a legal matter, the Final Guidance is meaningless . . . [and] has no legal impact.”
DAPA, by contrast, has an effect on regulated entities (i.e. 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. The states are not required to suffer the injury of that legal impact before seeking an injunction. See id. 252.
47

Case: 15-40238 Document: 00513264640 Page: 48 Date Filed: 11/09/2015
No. 15-40238 restricted to a younger and less numerous population,138 which suggests that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. Further, the DAPA Memo contains additional discretionary criteria: Applicants must not be “an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” DAPA Memo at 4. But despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,” id. (emphasis added), and there was evidence that the DACA application process itself did not allow for discretion, regardless of the rates of approval and denial.139
Instead of relying solely on the lack of evidence that any DACA application had been denied for discretionary reasons, the district court found pretext for additional reasons. It observed that “the ‘Operating Procedures’ for implementation of DACA contains nearly 150 pages of specific instructions for granting or denying deferred action to applicants” and that “[d]enials are
138 Approximately 1.2 million illegal aliens are eligible for DACA and 4.3 million for DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 609, 670.
139 Despite these differences and the dissent’s protestations to the contrary (see, e.g., Dissent at 34–38), DACA is an apt comparator to DAPA. The district court considered the DAPA Memo’s plain language, in which the Secretary equates the DACA and DAPA procedure, background checks, fee exemptions, eligibility for work authorizations, durations of lawful presence and work authorization, and orders DHS to establish, for DAPA, processes similar to those for DACA:
In order to align the DACA program more closely with the other deferred action authorization outlined below, . . . I hereby direct USCIS to establish a process, similar to DACA . . . . There will be no fee waivers, and like DACA . . . . As with DACA, the above criteria are to be considered for all individuals . . . . DAPA Memo at 4–5. See Dist. Ct. Op., 86 F. Supp. 3d at 610–11. The district court’s conclusion that DACA and DAPA would be applied similarly, based as it was in part on the memorandum’s plain language, was not clearly erroneous and indeed was not error under any standard of review.
48

Case: 15-40238 Document: 00513264640 Page: 49 Date Filed: 11/09/2015
No. 15-40238 recorded in a ‘check the box’ standardized form, for which USCIS personnel are provided templates. Certain denials of DAPA must be sent to a supervisor for approval[, and] there is no option for granting DAPA to an individual who does not meet each criterion.” Dist. Ct. Op., 86 F. Supp. 3d at 669 (footnotes omitted). The finding was also based on the declaration from Palinkas that, as with DACA, the DAPA application process itself would preclude discretion: “[R]outing DAPA 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 rubber-stamped.” See id. at 609–10 (citing that declaration).
As the government points out, there was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center Operations for USCIS, declared that “deferred action under DACA is a . . . case-specific process” that “necessarily involves the exercise of the agency’s discretion,” and he purported to identify several instances of discretionary denials.140 Although Neufeld stated that approximately 200,000 requests for additional evidence had been made upon receipt of DACA applications, the government does not know the number, if any, that related to discretionary factors rather than the objective criteria. Similarly,
140 The states properly maintain that those denials were not discretionary but instead were required because of failures to meet DACA’s objective criteria. For example, Neufeld averred that some discretionary denials occurred because applicants “pose[d] a public safety risk,” “[were] suspected of gang membership or gang-related activity, had a series of arrests without convictions” or “ongoing criminal investigations.” As the district court aptly noted, however, those allegedly discretionary grounds fell squarely within DACA’s objective criteria because DACA explicitly incorporated the enforcement priorities articulated in the DACA Operation Instructions and the memorandum styled Policies for Apprehension, Detention, and Removal of Undocumented Immigrants. Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101.
49

Case: 15-40238 Document: 00513264640 Page: 50 Date Filed: 11/09/2015
No. 15-40238 the government did not provide the number of cases that service-center officials referred to field offices for interviews.141
Although the district court did not make a formal credibility determination or hold an evidentiary hearing on the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute.142 Further, the government did not seek an evidentiary hearing, nor does it argue on appeal that it was error not to conduct such a hearing. Reviewing for clear error, we conclude that the states have established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion.
B. A binding rule is not required to undergo notice and comment if it is one “of agency organization, procedure, or practice.” § 553(b)(A). “[T]he substantial impact test is the primary means by which [we] look beyond the label ‘procedural’ to determine whether a rule is of the type Congress thought appropriate for public participation.”143 “An agency rule that modifies
141 The United States was also given the chance to show that it planned to put DAPA into effect in a manner different from how it implemented DACA; it failed to take advantage of that opportunity. Further, after assuring the district court that “[USCIS] does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015,” the government later admitted to having approved dozens of DAPA applications and threeyear employment authorization to more than 100,000 aliens satisfying the original DACA criteria; the government could not demonstrate which applicants, if any, were rejected on purely discretionary grounds, as distinguished from failure to meet the requirements set forth in the memoranda.
142 After a hearing on the preliminary injunction, the government filed a sur-reply that included the Neufeld declaration. The government did not seek an evidentiary hearing, but the states requested one if the “new declarations create a fact dispute of material consequence to the motion.” No such hearing was held, and the court cited the Palinkas declaration favorably, e.g., Dist. Ct. Op., 86 F. Supp. 3d at 609–10, 613 n.13, 669 n.101, yet described other sources as providing insufficient detail, e.g., id. at 669 n.101.
143 U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984); accord
50

Case: 15-40238 Document: 00513264640 Page: 51 Date Filed: 11/09/2015
No. 15-40238 substantive rights and interests can only be nominally procedural, and the exemption for such rules of agency procedure cannot apply.”144 DAPA undoubtedly meets that test—conferring lawful presence on 500,000 illegal aliens residing in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and amending its statutes.145
The District of Columbia Circuit applies a more intricate test for distinguishing between procedural and substantive rules.146 The court first looks at the “‘effect on those interests ultimately at stake in the agency proceeding.’ Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’ burdens upon regulated individuals are considered procedural, rather than substantive.”147
Further, “a procedural rule generally may not ‘encode [] a substantive value judgment or put[] a stamp of approval or disapproval on a given type of
STEIN, supra, §15.05[5] (“Procedural and practice rules have been distinguished from substantive rules by applying the substantial impact test.”).
144 Kast Metals, 744 F.2d at 1153; accord Brown Express, 607 F.2d at 701–03. 145 See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983) (“[Substantive] rules . . . grant rights, impose obligations, or produce other significant effects on private interests. They also narrowly constrict the discretion of agency officials by largely determining the issue addressed.” (omission in original) (quoting Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980))). 146 Compare Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123, 1132 (D.C. Cir. 2001) (recognizing that the D.C. Circuit “has expressly rejected” “the Fifth Circuit’s ‘substantial impact’ standard for notice and comment requirements”), with City of Arlington v. FCC, 668 F.3d 229, 245 (5th Cir. 2012) (“The purpose of notice-and-comment rulemaking is to assure fairness and mature consideration of rules having a substantial impact on those regulated.” (quoting United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 2011))), aff’d on other grounds, 133 S. Ct. 1863 (2013), and Phillips Petroleum, 22 F.3d at 620 (reaffirming substantial-impact test announced in Brown Express). 147 Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013) (citation omitted) (quoting Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984); Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987)).
51

Case: 15-40238 Document: 00513264640 Page: 52 Date Filed: 11/09/2015
No. 15-40238 behavior,’”148 but “the fact that the agency’s decision was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one.”149 “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.”150
Applying those considerations to DAPA yields the same result as does our substantial-impact test. Although the burden imposed on Texas is derivative of conferring lawful presence on beneficiaries, DAPA establishes “‘the substantive standards by which the [agency] evaluates applications’ which seek a benefit that the agency [purportedly] has the power to provide”—a critical fact requiring notice and comment.151
Thus, DAPA is analogous to “the rules [that] changed the substantive criteria for [evaluating station allotment counter-proposals]” in Reeder v. FCC, 865 F.2d 1298, 1305 (D.C. Cir. 1989) (per curiam), holding that notice and comment was required. In contrast, the court in JEM Broadcasting, 22 F.3d at 327, observed that “[t]he critical fact here, however, is that the ‘hard look’ rules did not change the substantive standards by which the FCC evaluates license applications,” such that the rules were procedural. Further, receipt of DAPA benefits implies a “stamp of approval” from the government and “encodes a substantive value judgment,” such that the program cannot be
148 Nat’l Sec. Counselors, 931 F. Supp. 2d at 107 (alterations in original) (quoting Am. Hosp., 834 F.2d at 1047).
149 Id. (quoting James V. Hurson Assocs. v. Glickman, 229 F.3d 277, 282 (D.C. Cir. 2000)).
150 Id. (alteration in original) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C. Cir. 1994)).
151 Id. (first alteration in original) (quoting JEM Broad., 22 F.3d at 327).
52

Case: 15-40238 Document: 00513264640 Page: 53 Date Filed: 11/09/2015
No. 15-40238
considered procedural. Am. Hosp., 834 F.2d at 1047.
C. Section 553(a)(2) exempts rules from notice and comment “to the extent that there is involved . . . a matter relating to . . . public property, loans, grants, benefits, or contracts.” To avoid “carv[ing] the heart out of the notice provisions of Section 553”,152 the courts construe the public-benefits exception very narrowly as applying only to agency action that “clearly and directly relate[s] to ‘benefits’ as that word is used in section 553(a)(2).”153
DAPA does not “clearly and directly” relate to public benefits as that term is used in § 553(a)(2). That subsection suggests that “rulemaking requirements for agencies managing benefit programs are . . . voluntarily imposed,”154 but USCIS—the agency tasked with evaluating DAPA applications—is not an agency managing benefit programs. Persons who meet the DAPA criteria do not directly receive the kind of public benefit that has been recognized, or was likely to have been included, under this exception.155
152 Hous. Auth. of Omaha v. U.S. Hous. Auth., 468 F.2d 1, 9 (8th Cir. 1972) (“The exemptions of matters under Section 553(a)(2) relating to ‘public benefits,’ could conceivably include virtually every activity of government. However, since an expansive reading of the exemption clause could easily carve the heart out of the notice provisions of Section 553, it is fairly obvious that Congress did not intend for the exemptions to be interpreted that broadly.”).
153 Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061 (5th Cir. 1985). 154 Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984). 155 See e.g., Vigil, 508 U.S. at 184, 196 (clinical services provided by Indian Health Service for handicapped children); Hoerner v. Veterans Admin., No. 88-3052, 1988 WL 97342, at *1–2 & n.10 (4th Cir. July 8, 1988) (per curiam) (unpublished) (benefits for veterans); Baylor Univ. Med. Ctr., 758 F.2d at 1058–59 (Medicare reimbursement regulations issued by Secretary of Health and Human Services); Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 813 (D.C. Cir. 1975) (food stamp allotment regulations). The Departments of Agriculture, Health and Human Services, and Labor have waived the exemption for matters relating to public property, loans, grants, benefits, or contracts. See 29 C.F.R. § 2.7 (Department of Labor); Public Participation in Rule Making, 36 Fed. Reg. 13,804, 13,804 (July 24, 1971) (Department of Agriculture); Public Participation in Rule Making, 36 Fed. Reg. 2532, 2532 (Jan. 28, 1971)
53

Case: 15-40238 Document: 00513264640 Page: 54 Date Filed: 11/09/2015
No. 15-40238 In summary, the states have established a substantial likelihood of success on the merits of their procedural claim. We proceed to address whether, in addition to that likelihood on the merits, the states make the same showing on their substantive APA claim.156
VII. A “reviewing court shall . . . 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). Although the district court enjoined DAPA solely on the basis of the procedural APA claim, “it is an elementary proposition, and the supporting cases too numerous to cite, that this court may affirm the district court’s judgment on any grounds supported by the record.”157 Therefore, as an alternate and additional ground for affirming the injunction, we address this substantive issue, which was fully briefed in the district court.158
Assuming arguendo that Chevron159 applies,160 we first “ask whether
(Department of Health and Human Services, then known as Health, Education, and Welfare). 156 We reiterate that DAPA is much more than a nonenforcement policy, which pre-
sumptively would be committed to agency discretion. Therefore, even where a party has standing and is within the requisite zone of interests, a traditional nonenforcement policy would not necessarily be subject to notice and comment just because DAPA must undergo notice-and-comment review.
157 Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citation and internal quotation marks omitted).
158 “This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum.” United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011) (citation and internal quotation marks omitted). At oral argument, the parties agreed that no further factual development is needed to resolve the substantive APA challenge.
159 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 160 “[T]he fact that the Agency previously reached its interpretation through means
54

Case: 15-40238 Document: 00513264640 Page: 55 Date Filed: 11/09/2015
No. 15-40238
Congress has ‘directly addressed the precise question at issue.’”161 It has.
“Federal governance of immigration and alien status is extensive and com-
plex.” Arizona v. United States, 132 S. Ct. at 2499. The limited ways in which
illegal aliens can lawfully reside in the United States reflect Congress’s con-
cern that “aliens have been applying for and receiving public benefits from
Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601(3),
and that “[i]t is a compelling government interest to enact new rules for eligi-
bility and sponsorship agreements in order to assure that aliens be self-reliant
in accordance with national immigration policy,” § 1601(5).
In specific and detailed provisions, the INA expressly and carefully pro-
vides legal designations allowing defined classes of aliens to be lawfully
present162 and confers eligibility for “discretionary relief allowing [aliens in
less formal than ‘notice and comment’ rulemaking does not automatically deprive that interpretation of the judicial deference otherwise its due.” Barnhart v. Walton, 535 U.S. 212, 221 (2002) (citation omitted). Instead, we consider factors such as “the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time . . . .” Id. We need not decide whether DHS’s interpretation satisfies that test, however, because, as we explain, the agency cannot prevail even under Chevron.
Chevron deference requires the courts to accept an agency’s reasonable construction of a statute as long as it is “not patently inconsistent with the statutory scheme.” Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 813 (5th Cir. 2000). As explained below, we decide that, assuming Chevron deference does apply, DAPA is not a reasonable construction of the INA, because it is “manifestly contrary” to the INA statutory scheme. Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011).
An agency construction that is manifestly contrary to a statutory scheme could not be persuasive under the test in Skidmore v. Swift & Co., 323 U.S. 134 (1944), a test that affords agency constructions less deference than does Chevron. See Gonzales v. Oregon, 546 U.S. 243, 256 (2006) (providing that under Skidmore, an “interpretation is entitled to respect only to the extent it has the power to persuade”). Therefore, our decision to forego discussion of the Walton factors is sensible. See Griffon v. U.S. Dep’t of Health & Human Servs., 802 F.2d 146, 148 n.3 (5th Cir. 1986) (noting that where an interpretive rule is unreasonable, “there is no need to decide whether Chevron or a less exacting standard applies”).
161 Mayo Found., 562 U.S. at 52 (quoting Chevron, 467 U.S. at 842). 162 E.g., lawful-permanent-resident (“LPR”) status, see 8 U.S.C. §§ 1101(a)(20), 1255;
55

Case: 15-40238 Document: 00513264640 Page: 56 Date Filed: 11/09/2015
No. 15-40238
deportation proceedings] to remain in the country.”163 Congress has also identified narrow classes of aliens eligible for deferred action, including certain petitioners for immigration status under the Violence Against Women Act of 1994,164 immediate family members of lawful permanent residents (“LPRs”) killed by terrorism,165 and immediate family members of LPRs killed in combat and granted posthumous citizenship.166 Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not enjoined. See DAPA Memo at 4.
Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status: In general, an applicant must (i) have a U.S. citizen child who is at least twentyone years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate.167 Although DAPA does not confer the full panoply of benefits
nonimmigrant status, see §§ 1101(a)(15), 1201(a)(1); refugee and asylum status, see §§ 1101(a)(42), 1157–59, 1231(b)(3); humanitarian parole, see § 1182(d)(5); temporary protected status, see § 1254a. Cf. §§ 1182(a) (inadmissible aliens), 1227(a)–(b) (deportable aliens).
163 Arizona v. United States, 132 S. Ct. at 2499 (citing 8 U.S.C. §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure)); see also § 1227(d) (administrative stays of removal for T- and U-visa applicants (victims of human trafficking, or of various serious crimes, who assist law enforcement)).
164 Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (codified as amended in scattered sections of the U.S. Code). See 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV).
165 USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361. 166 National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694–95; see also 8 U.S.C. § 1227(d)(2) (specifying that “[t]he denial of a request for an administrative stay of removal [for T- and U-visa applicants] shall not preclude the alien from applying for . . . deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws . . . .”). 167 See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255; see Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2199 (2014) (recognizing that legal immigration “takes time—and often a lot of it. . . . After a sponsoring petition is approved but before a visa application can be filed, a family-sponsored immigrant may stand in line for years—or even
56

Case: 15-40238 Document: 00513264640 Page: 57 Date Filed: 11/09/2015
No. 15-40238 that a visa gives, DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements, enumerated above, that Congress has deliberately imposed. DAPA requires only that prospective beneficiaries “have . . . a son or daughter who is a U.S. citizen or lawful permanent resident”—without regard to the age of the child—and there is no need to leave the United States or wait ten years168 or obtain a visa.169 Further, the INA does not contain a family-sponsorship process for parents of an LPR child,170 but DAPA allows a parent to derive lawful presence from his child’s LPR status.
The INA authorizes cancellation of removal and adjustment of status if, inter alia, “the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” and if “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A) (emphasis added). Although LPR status is more substantial than is lawful presence, § 1229b(b)(1) is the most specific delegation of authority to the Secretary to change the immigration classification of removable aliens that meet only the DAPA criteria and do not fit within the specific
decades—just waiting for an immigrant visa to become available.”). 168 Although “[t]he Attorney General has sole discretion to waive [the ten-year reentry
bar] 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,” § 1182(a)(9)(B)(v) (emphasis added), there is no such provision for waiving the reentry bar for parents of U.S. citizen or LPR children.
169 DAPA Memo at 4. 170 See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1152(a)(4), 1153(a).
57

Case: 15-40238 Document: 00513264640 Page: 58 Date Filed: 11/09/2015
No. 15-40238 categories set forth in § 1229b(b)(2)–(6).
Instead of a ten-year physical-presence period, DAPA grants lawful presence to persons who “have continuously resided in the United States since before January 1, 2010,” and there is no requirement that removal would result in exceptional and extremely unusual hardship. DAPA Memo at 4. Although the Secretary has discretion to make immigration decisions based on humanitarian grounds, that discretion is conferred only for particular family relationships and specific forms of relief—none of which includes granting lawful presence, on the basis of a child’s immigration status, to the class of aliens that would be eligible for DAPA.171
The INA also specifies classes of aliens eligible172 and ineligible173 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. Congress “‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law,’”174 in part by “establishing an extensive ‘employment verification system,’ designed to deny employment to aliens who . . . are not lawfully present in the
171 See, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v), (C)(iii) (authorizing waiver of reentry bars for particular classes of inadmissible aliens), 1227(a)(1)(E)(iii) (authorizing waiver of inadmissibility for smuggling by particular classes of aliens).
172 E.g., 8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-temporaryresident status pursuant to a T-visa), 1105a(a) (nonimmigrant battered spouses), 1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women Act), 1158(c)(1)(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)(1)(B) (temporary-protected status holders), 1255a(b)(3)(B) (temporary-resident status holders).
173 E.g., 8 U.S.C. §§ 1226(a)(3) (limits on work authorizations for aliens with pending removal proceedings), 1231(a)(7) (limits on work authorizations for aliens ordered removed).
174 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (alteration in original) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 194 n.8 (1991)).
58

Case: 15-40238 Document: 00513264640 Page: 59 Date Filed: 11/09/2015

United States.”175

No. 15-40238

The INA’s careful employment-authorization scheme “protect[s] against the displacement of workers in the United States,”176 and a “primary purpose in restricting immigration is to preserve jobs for American workers.”177 DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.

DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we 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.”178 DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.”179 But assuming arguendo that Chevron applies and that Congress has not directly addressed the precise

175 Id. (emphasis added) (citation omitted) (quoting 8 U.S.C. § 1324a(a)(1)).
176 Nat’l Ctr. for Immigrants’ Rights, 502 U.S. at 194 (quoting Powers and Duties of Service Officers; Availability of Service Records; Employment Authorization; Excludable or Deportable Aliens, 48 Fed. Reg. 51,142, 51,142 (Nov. 7, 1983)).
177 Id. (quoting Sure-Tan, 467 U.S. at 893); see 8 U.S.C § 1182(a)(5)(A)(i) (listing among the classes of excludable aliens those who “seek[] to enter the United States for the purpose of performing skilled or unskilled labor . . . , unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed”).
178 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).
179 King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)).
59

Case: 15-40238 Document: 00513264640 Page: 60 Date Filed: 11/09/2015
No. 15-40238 question at hand, we would still strike down DAPA as an unreasonable interpretation that is “manifestly contrary” to the INA. See Mayo Found., 562 U.S. at 53.
The dissent, relying on Texas Rural Legal Aid v. Legal Services Corp., 940 F.2d 685, 694 (D.C. Cir. 1991), theorizes that our analysis is nothing but an application of the expressio unius est exclusio alterius180 canon of construction, which the dissent claims is of limited utility in administrative law. Dissent at 46. The dissent’s observation is astray, however, because our statutory analysis does not hinge on the expressio unius maxim.
Moreover, the Supreme Court and this court have relied on expressio unius in deciding issues of administrative law. While noting “the limited usefulness of the expressio unius doctrine in the administrative context,”181 some courts have declined to apply it mostly because they find it unhelpful for the specific statute at issue.182 On other occasions, both our circuit and the Supreme Court have employed the canon in addressing administrative law.183 Nor has the District of Columbia Circuit expressly foreclosed use of the canon on questions of statutory interpretation by agencies.184 Our distinguished
180 “A canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.” BLACK’S LAW DICTIONARY 701 (10th ed. 2014).
181 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 443–44 (5th Cir. 1999). 182 Id. at 444 (concluding, on the basis of other statutory provisions, that “Congress intended to allow the FCC broad authority to implement this section”). 183 See, e.g., Christensen v. Harris Cnty., 529 U.S. 576, 582–83 (2000) (discussing expressio unius, and concluding that it does not inform the result, without suggesting that it has no applicability in administrative law); Rodriguez-Avalos v. Holder, 788 F.3d 444, 451 (5th Cir. 2015) (per curiam) (relying on the expression of a term in one section of the statute to infer that its absence in another section suggests intent to foreclose its implication in the latter, even though the statute was subject to interpretation by the Board of Immigration Appeals). 184 See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 644 (D.C. Cir. 2000)
60

Case: 15-40238 Document: 00513264640 Page: 61 Date Filed: 11/09/2015
No. 15-40238
dissenting colleague, in fact, relied on expressio unius to uphold a decision of
the Board of Immigration Appeals, concluding that the Equal Access to Justice
Act did not provide for fee-shifting in proceedings before the Board. See Hodge
v. Dep’t of Justice, 929 F.2d 153, 157 n.11 (5th Cir. 1991) (King, J.).
For the authority to implement DAPA, the government relies in part on
8 U.S.C. § 1324a(h)(3),185 a provision that does not mention lawful presence or
deferred action, and that is listed as a “[m]iscellaneous” definitional provision
expressly limited to § 1324a, a section concerning the “Unlawful employment
of aliens”—an exceedingly unlikely place to find authorization for DAPA.186
Likewise, the broad grants of authority in 6 U.S.C. § 202(5),187 8 U.S.C.
§ 1103(a)(3),188 and 8 U.S.C. § 1103(g)(2)189 cannot reasonably be construed as
(“The Comptroller argues that the expressio unius maxim cannot preclude an otherwise reasonable agency interpretation. This is not entirely correct. True, we have rejected the canon in some administrative law cases, but only where the logic of the maxim . . . simply did not hold up in the statutory context. . . . In this case, the two canons upon which we rely [expressio unius and avoidance of surplusage] inarguably compel our holding that § 24 (Seventh) unambiguously does not authorize national banks to engage in the general sale of insurance as ‘incidental’ to ‘the business of banking.’”); see also Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV.1253, 1280 (1997) (“[P]ost-Chevron cases have often set aside agency interpretations by drawing upon the full range of conventional statutory construction techniques at step one. Arguments from statutory structure and purpose . . . are regularly examined at that step. So are canons of construction.”) (footnotes omitted).
185 “As used in this section, the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.”
186 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress, we have held, 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.”).
187 “The Secretary . . . shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”
188 “[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.”
189 “The Attorney General shall establish such regulations, prescribe such forms of
61

Case: 15-40238 Document: 00513264640 Page: 62 Date Filed: 11/09/2015
No. 15-40238
assigning “decisions of vast ‘economic and political significance,’”190 such as
DAPA, to an agency.191
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
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.”
190 Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson, 529 U.S. at 159); accord id. (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting Brown & Williamson, 529 U.S. at 159)).
191 The dissent urges the courts to give DHS leeway to craft rules regarding deferred action because of the scope of the problem of illegal immigration and the insufficiency of congressional funding. Dissent at 50. That is unpersuasive. “Regardless of how serious the problem an administrative agency seeks to address, . . . it may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’” Brown & Williamson, 529 U.S. at 125 (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)).
Because we conclude, at Chevron Step One, that Congress has directly addressed lawful presence and work authorizations through the INA’s unambiguously specific and intricate provisions, we find no reason to allow DHS such leeway. There is no room among those specific and intricate provisions for the Secretary to “exercise discretion in selecting a different threshold” for class-wide grants of lawful presence and work authorization under DAPA. Util. Air, 134 S. Ct. at 2446 n.8.
We merely apply the ordinary tools of statutory construction to conclude that Congress directly addressed, yet did not authorize, DAPA. See King, 135 S. Ct. at 2483 (noting that to determine whether Congress has expressed its intent, we “must read the words in their context and with a view to their place in the overall statutory scheme”; City of Arlington v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (“First, applying the ordinary tools of statutory construction, the court must determine whether Congress has directly spoken to the precise question at issue.”); Util. Air, 134 S. Ct at 2441 (recognizing the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two. See Chevron, 467 U.S. at 844; Mayo Found., 562 U.S. at 53.
62

Case: 15-40238 Document: 00513264640 Page: 63 Date Filed: 11/09/2015
No. 15-40238
“special deference” to the Secretary,192 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.
Presumably because DAPA is not authorized by statute, the United
States posits that its authority is grounded in historical practice, but that “does
not, by itself, create power,”193 and in any event, previous deferred-action pro-
grams are not analogous to DAPA. “[M]ost . . . discretionary deferrals have
been done on a country-specific basis, usually in response to war, civil unrest,
or natural disasters,”194 but DAPA is not such a program. Likewise, many of
the previous programs were bridges from one legal status to another,195
192 Texas v. United States, 106 F.3d at 665 (“Courts must give special deference to congressional and executive branch policy choices pertaining to immigration.”).
193 Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)). But see NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’” (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))).
194 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 9 (July 13, 2012); see CHARLOTTE J. MOORE, CONG. RESEARCH SERV., ED206779, REVIEW OF U.S. REFUGEE RESETTLEMENT PROGRAMS AND POLICIES 9, 12–14 (1980).
195 See Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed. Reg. 2776, 2776 (Jan. 19, 1978) (deferring action on the removal of nonimmigrant nurses whose temporary licenses expired so that they could pass permanent licensure examinations); Memorandum from Michael Cronin, Acting Exec. Assoc. Comm’r, Office of Programs, INS, to Michael Pearson, Exec. Assoc. Comm’r, Office of Field Operations, INS 2 (Aug. 30, 2001) (directing that possible victims of the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464, “should not be removed from the United States until they have had the opportunity to avail themselves of the . . . VTVPA,” including receipt of a T- or U-visa); Memorandum from Paul Virtue, Acting Exec. Assoc. Comm’r, INS, to Reg’l Dirs., INS, et al. 3 (May 6, 1997) (utilizing deferred action for VAWA self-petitioners “pending the availability of a visa number”); Press Release, USCIS, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina 1 (Nov. 25, 2005) (deferring action on students “based upon the fact that the failure to maintain status is directly due to Hurricane Katrina”); see also United States ex rel. Parco v. Morris,
63

Case: 15-40238 Document: 00513264640 Page: 64 Date Filed: 11/09/2015
No. 15-40238
whereas DAPA awards lawful presence to persons who have never had a legal
status196 and may never receive one.197
Although the “Family Fairness” program did grant voluntary departure
to family members of legalized aliens while they “wait[ed] for a visa preference
number to become available for family members,” that program was interstitial
to a statutory legalization scheme.198 DAPA is far from interstitial: Congress
426 F. Supp. 976, 980 (E.D. Pa. 1977) (discussing an INS policy that allowed aliens to “await the availability of a [Third Preference] visa while remaining in this country” under “extended voluntary departure”).
196 DAPA Memo at 4 (limiting DAPA to persons who “have no lawful status”). 197 Id. at 5 (specifying that DAPA “confers no . . . immigration status or pathway to citizenship”). Throughout the dissent is the notion that DHS must pursue DAPA because Congress’s funding decisions have left the agency unable to deport as many illegal aliens as it would if funding were available. But the adequacy or insufficiency of legislative appropriations is not relevant to whether DHS has statutory authority to implement DAPA. Neither our nor the dissent’s reasoning hinges on the budgetary feasibility of a more thorough enforcement of the immigration laws; instead, our conclusion turns on whether the INA gives DHS the power to create and implement a sweeping class-wide rule changing the immigration status of the affected aliens without full notice-and-comment rulemaking, especially where―as here―the directive is flatly contrary to the statutory text. The dissent’s repeated references to DAPA as the appropriate continuation of a longstanding practice, see, e.g., Dissent at 2, badly mischaracterizes the nature of DAPA. Previous iterations of deferred action were limited in time and extent, affecting only a few thousand aliens for months or, at most, a few years. MEMORANDUM ON THE DEP’T OF HOMELAND SEC.’S AUTH. TO PRIORITIZE REMOVAL OF CERTAIN ALIENS UNLAWFULLY PRESENT IN THE UNITED STATES AND TO DEFER REMOVAL OF OTHERS, Dep’t of Justice, Office of Legal Counsel, at *15–*17 (Nov. 19, 2014). Nothing like DAPA, which alters the status of more than four million aliens, has ever been contemplated absent direct statutory authorization. In its OLC memorandum, the Department of Justice noted 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. at *18 n.8. Deferred action may be a decades-old tool, but it has never been used to affect so many aliens and to do so for so expansive a period of time. 198 See Memorandum from Gene McNary, Comm’r, INS, to Reg’l Comm’rs, INS 1 (Feb. 2, 1990) (authorizing extended voluntary departure and work authorization for the spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359); see also Memorandum from Donald Neufeld, Acting Assoc. Dir., USCIS, to Field Leadership, USCIS 1 (Sept. 4, 2009)
64

Case: 15-40238 Document: 00513264640 Page: 65 Date Filed: 11/09/2015
No. 15-40238
has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (“DREAM Act”),199 features of which closely resemble DACA and DAPA.
Historical practice that is so far afield from the challenged program sheds no light on the Secretary’s authority to implement DAPA. Indeed, as the district court recognized, the President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’”200 At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President’s statement by accusing the district court and this panel majority of “relying . . . on selected excerpts of the President’s public statements.” Dissent at 24, 33 n.41.
The dissent repeatedly claims that congressional silence has conferred on DHS the power to act. E.g., Dissent at 46–47. To the contrary, any such inaction cannot create such power:
“[D]eference is warranted only when Congress has left a gap for the agency to fill pursuant to an express or implied ‘delegation of authority to the agency.’” Chevron[,] 467 U.S. at 843–44[]. To suggest, as the [agency] effectively does, that Chevron step two is implicated at any
(authorizing deferred action 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” because “no avenue of immigration relief exist[ed]” and “[t]his issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in . . . Congress”).
199 “[A] bill that would have become the ‘DREAM’ Act never became law[; it] passed the House of Representatives during the 111th Congress and then stalled in the Senate.” Common Cause v. Biden, 748 F.3d 1280, 1281 (D.C. Cir.) (citing H.R. 5281, 111th Cong. (2010)), cert. denied, 135 S. Ct. 451 (2014)).
200 Dist. Ct. Op., 86 F. Supp. 3d at 657 & n.71 (quoting Press Release, Remarks by the President on Immigration―Chicago, Ill., The White House Office of the Press Sec’y (Nov. 25, 2014)).
65

Case: 15-40238 Document: 00513264640 Page: 66 Date Filed: 11/09/2015
No. 15-40238 time a statute does not expressly negate the existence of a claimed administrative power . . . is both flatly unfaithful to the principles of administrative law . . . and refuted by precedent. . . . Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well. Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995).
Through the INA’s specific and intricate provisions, “Congress has ‘directly addressed the precise question at issue.’” Mayo Found., 562 U.S. at 52. As we have indicated, the INA prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization. DAPA is foreclosed by Congress’s careful plan; the program is “manifestly contrary to the statute”201 and therefore was properly enjoined.202
VIII. The states have satisfied the other requirements for a preliminary injunction. They have demonstrated “a substantial threat of irreparable injury if the injunction is not issued.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). DAPA beneficiaries would be eligible for driver’s licenses and other benefits, and a substantial number of the more than four million potential beneficiaries—many of whom live in the plaintiff states—would take advantage of that opportunity. The district court found that retracting those benefits would be “substantially difficult—if not impossible,” Dist. Ct. Op.,
201 Mayo Found., 562 U.S. at 53 (quoting Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 242 (2004)).
202 We do not address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA; we conclude only that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a classwide basis to 4.3 million otherwise removable aliens.
66

Case: 15-40238 Document: 00513264640 Page: 67 Date Filed: 11/09/2015
No. 15-40238 86 F. Supp. 3d at 673, and the government has given us no reason to doubt that finding.
The states have shown “that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). The states have alleged a concrete threatened injury in the form of millions of dollars of losses.
The harms the United States has identified are less substantial. It claims that the injunction “obstructs a core Executive prerogative” and offends separation-of-powers and federalism principles. Those alleged harms are vague, and the principles the government cites are more likely to be affected by the resolution of the case on the merits than by the injunction.
Separately, the United States postulates that the injunction prevents DHS from effectively prioritizing illegal aliens for removal. But the injunction “does not enjoin or impair the Secretary’s ability to marshal his assets or deploy the resources of the DHS [or] to set priorities,” including selecting whom to remove first, see Dist. Ct. Op., 86 F. Supp. 3d at 678, and any inefficiency is outweighed by the major financial losses the states face.
The government also complains that the injunction imposes administrative burdens because DHS has already leased office space and begun hiring employees to implement DAPA. Such inconveniences are common incidental effects of injunctions, and the government could have avoided them by delaying preparatory work until the litigation was resolved.203 Finally, the government reasonably speculates that the injunction burdens DAPA beneficiaries and
203 Cf. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 728 (3d Cir. 2004) (“[W]hen the potential harm to each party is weighed, a party ‘can hardly claim to be harmed [where] it brought any and all difficulties occasioned by the issuance of an injunction upon itself.’” (second alteration in original) (quoting Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990))).
67

Case: 15-40238 Document: 00513264640 Page: 68 Date Filed: 11/09/2015
No. 15-40238 their families and discourages them from cooperating with law-enforcement officers and paying taxes. But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions.
The states have also sufficiently established that “an injunction will not disserve the public interest.” Sepulvado, 729 F.3d at 417 (quoting Byrum, 566 F.3d at 445). This factor overlaps considerably with the previous one, and most of the same analysis applies.204 The main difference is that, instead of relying on their financial interests, the states refer to the public interest in protecting separation of powers by curtailing unlawful executive action.
Although the United States cites the public interest in maintaining separation of powers and federalism by avoiding judicial and state interference with a legitimate executive function, there is an obvious difference: The interest the government has identified can be effectively vindicated after a trial on the merits. The interest the states have identified cannot be, given the difficulty of restoring the status quo ante if DAPA were to be implemented.205 The public interest easily favors an injunction.
IX. The government claims that the nationwide scope of the injunction is an abuse of discretion and requests that it be confined to Texas or the plaintiff
204 Cf. Nken v. Holder, 556 U.S. 418, 435 (2009) (“Once an applicant satisfies the first two factors [for a stay of an alien’s removal pending judicial review], the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party.”).
205 See Wenner v. Tex. Lottery Comm’n, 123 F.3d 321, 326 (5th Cir. 1997) (“It is well settled that the issuance of a prohibitory injunction freezes the status quo, and is intended ‘to preserve the relative positions of the parties until a trial on the merits can be held.’ Preliminary injunctions commonly favor the status quo and seek to maintain things in their initial condition so far as possible until after a full hearing permits final relief to be fashioned.” (citation omitted) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981))).
68

Case: 15-40238 Document: 00513264640 Page: 69 Date Filed: 11/09/2015
No. 15-40238
states. But the Constitution requires “an uniform Rule of Naturalization”;206 Congress has instructed that “the immigration laws of the United States should be enforced vigorously and uniformly”;207 and the Supreme Court has described immigration policy as “a comprehensive and unified system.”208 Partial implementation of DAPA would “detract[] from the ‘integrated scheme of regulation’ created by Congress,”209 and there is a substantial likelihood that a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states.
Furthermore, the Constitution vests the District Court with “the judicial Power of the United States.”210 That power is not limited to the district wherein the court sits but extends across the country. It is not beyond the power of a court, in appropriate circumstances, to issue a nationwide injunction.211
206 U.S. CONST. art. I, § 8, cl. 4 (emphasis added). 207 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384 (emphasis added). 208 Arizona v. United States, 132 S. Ct. at 2502. 209 Id. (quoting Wis. Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 288–89 (1986)). 210 U.S. CONST. art. III, § 1 211 See, e.g., Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2006) (upholding a nationwide injunction after concluding it was “compelled by the text of [§ 706 of the] Administrative Procedure Act”), aff’d in part & rev’d in part on other grounds by Summers v. Earth Island Inst., 555 U.S. 488 (2009) (concluding that the plaintiff organizations lacked standing to challenge the forest service action in question); Chevron Chem. Co. v. Voluntary Purchasing Grps., 659 F.2d 695, 705–06 (Former 5th Cir. Oct. 1981) (instructing district court to issue broad, nationwide injunction); Brennan v. J.M. Fields, Inc., 488 F.2d 443, 449–50 (5th Cir. 1973) (upholding nationwide injunction against a national chain); Hodgson v. First Fed. Sav. & Loan Ass’n, 455 F.2d 818, 826 (5th Cir. 1972) (“[C]ourts should not be loath[ ] to issue injunctions of general applicability. . . . ‘The injunctive processes are a means of effecting general compliance with national policy as expressed by Congress, a public policy judges too must carry out—actuated by the spirit of the law and not begrudgingly as if it were a newly imposed fiat of a presidium.’” (quoting Mitchell v. Pidcock, 299 F.2d 281, 287 (5th Cir. 1962)).
69

Case: 15-40238 Document: 00513264640 Page: 70 Date Filed: 11/09/2015 No. 15-40238
“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Util. Air, 134 S. Ct. at 2444 (citation omitted). Agency announcements to the contrary are “greet[ed] . . . with a measure of skepticism.” Id.
The district court did not err and most assuredly did not abuse its discretion. The order granting the preliminary injunction is AFFIRMED.
70

Case: 15-40238 Document: 00513264640 Page: 71 Date Filed: 11/09/2015
No. 15-40238
KING, Circuit Judge, dissenting: Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security (DHS) with only enough resources to remove approximately 400,000 of those aliens per year.1 Recognizing DHS’s congressionally granted prosecutorial discretion to set removal enforcement priorities, Congress has exhorted DHS to use those resources to “mak[e] our country safer.” In response, DHS has focused on removing “those who represent threats to national security, public safety, and border security.” The DAPA Memorandum at issue here focuses on a subset of removable aliens who are unlikely to be removed unless and until more resources are made available by Congress: those who are the parents of United States citizens or legal permanent residents, who have resided in the United States for at least the last five years, who lack a criminal record, and who are not otherwise removal priorities as determined by DHS. The DAPA Memorandum has three primary objectives for these aliens: (1) to permit them to be lawfully employed and thereby enhance their ability to be self-sufficient, a goal of United States immigration law since this country’s earliest immigration statutes; (2) to encourage them to come out of the shadows and to identify themselves and where they live, DHS’s prime law enforcement objective; and (3) to maintain flexibility so that if Congress is able to make more resources for removal available, DHS will be able to respond.
1 During the period from 2009 through 2014, approximately 2.4 million aliens were removed from the United States. DHS claims that this is a record number, and Plaintiffs do not dispute that point.
71

Case: 15-40238 Document: 00513264640 Page: 72 Date Filed: 11/09/2015
No. 15-40238 Plaintiffs do not challenge DHS’s ability to allow the aliens subject to the DAPA Memorandum—up to 4.3 million, some estimate—to remain in this country indefinitely. Indeed, Plaintiffs admit that such removal decisions are well within DHS’s prosecutorial discretion.2 Rather, Plaintiffs complain of the consequences of DHS’s decision to use its decades-long practice of granting “deferred action” to these individuals, specifically that these “illegal aliens” may temporarily work lawfully for a living and may also eventually become eligible for some public benefits. Plaintiffs contend that these consequences and benefits must be struck down even while the decision to allow the “illegal aliens” to remain stands. But Plaintiffs’ challenge cannot be so easily bifurcated. For the benefits of which Plaintiffs complain are not conferred by the DAPA Memorandum—the only policy being challenged in this case—but are inexorably tied to DHS’s deferred action decisions by a host of unchallenged, preexisting statutes and notice-and-comment regulations enacted by Congresses and administrations long past. Deferred action decisions, such as those contemplated by the DAPA Memorandum, are quintessential exercises of prosecutorial discretion. As the Supreme Court put it sixteen years ago, “[a]t 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.”3 Because all parties agree that an exercise of prosecutorial discretion itself is unreviewable, this case should be dismissed on justiciability grounds.
2 In their briefing on appeal, Plaintiffs refute the “mistaken premise that this lawsuit challenges [DHS]’s decision not to remove certain unauthorized aliens,” making clear that “[t]his lawsuit has never challenged any decision by the Executive to initiate or forego removal proceedings.” Appellees’ Suppl. Br. 18–19.
3 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999).
72

Case: 15-40238 Document: 00513264640 Page: 73 Date Filed: 11/09/2015
No. 15-40238 Even if this case were justiciable, the preliminary injunction, issued by the district court, is a mistake. If the Memorandum is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand. Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.” Texas v. United States, 86 F. Supp. 3d 591, 638 (S.D. Tex. 2015) [hereinafter Dist. Ct. Op.]. That conclusion is clearly erroneous. The majority affirms and goes one step further today. It holds, in the alternative, that the Memorandum is contrary to the INA and substantively violates the APA. These conclusions are wrong. The district court expressly declined to reach this issue without further development, id. at 677, and the limited briefing we have before us is unhelpful and unpersuasive. For these reasons, as set out below, I dissent.
I. The DAPA Memorandum For all of the pounds of paper written about it, the DAPA Memorandum spans only five pages, and I attach it to this dissent for all to read.4 The D.C. Circuit (which hears more of these administrative law cases than any other) has wisely observed that “[s]ometimes a simple reading of the document and
4 The DAPA Memorandum is attached as Appendix A. As Appendix B, I also attach the Secretary’s November 20, 2014, memorandum entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (Enforcement Priorities Memorandum), which itself is unchallenged by Plaintiffs, but which the DAPA Memorandum incorporates by reference.
73

Case: 15-40238 Document: 00513264640 Page: 74 Date Filed: 11/09/2015
No. 15-40238 study of its role in the regulatory scheme will yield the answer.” Pub. Citizen, Inc. v. U.S. Nuclear Regulatory Comm’n, 940 F.2d 679, 682 (D.C. Cir. 1991).
The DAPA Memorandum is one of a series of memoranda issued by Secretary of Homeland Security Jeh Johnson on November 20, 2014. Broadly speaking, the Memorandum does two things: (1) it expands certain parameters of the prior DACA Memorandum, which provided guidelines for the use of deferred action with respect to certain individuals who came to the United States as children; and (2) it includes “guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities.” Appx. A, at 3.
It is important to recognize at the outset the backdrop upon which the Memorandum was written. As noted above, given the resource constraints faced by DHS, the agency is faced with important prioritization decisions as to which aliens should be the subject of removal proceedings. Congress has made clear that those decisions are to be made by DHS, not by Congress itself—and certainly not by the courts. Indeed, Congress has delegated to the Secretary of Homeland Security the authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5),5 and to “establish such regulations; . . . issue such instructions; and perform such other acts as he deems necessary for carrying out” his responsibilities, 8 U.S.C. § 1103(a)(3).6 Congress has given the Secretary some direction, in appropriations bills, as to how removal resources should be spent—by specifically devoting funding toward “identify[ing] aliens convicted of a crime who may be deportable, and . . . remov[ing] them from the United States once they are judged
5 This statute was passed in 2002. 6 A version of this statute was first passed in 1990.
74

Case: 15-40238 Document: 00513264640 Page: 75 Date Filed: 11/09/2015
No. 15-40238 deportable,” and by making clear that the Secretary “shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Department of Homeland Security Appropriations Act, Pub. L. No. 114-4, 129 Stat 39, 43 (2015).
In an apparent effort to maximize the resources that can be devoted to such ends and consistent with his congressionally granted authority to set enforcement priorities, the Secretary contends that he has chosen—through the DACA and DAPA Memoranda—to divert some of DHS’s resources away from the lowest priority aliens to better enforce the immigration laws against the highest priority aliens. See Arpaio v. Obama, 797 F.3d 11, 17–18 (D.C. Cir. 2015) (“DACA and DAPA . . . apply to the portion of the population that [DHS] considers not threatening to public safety and that has not had any involvement, or only minimal and minor involvement, with the criminal justice system.”). By granting deferred action to children who were brought to this country unlawfully, and to the parents of U.S. citizens and lawful permanent residents (who otherwise have clean records), DHS has sought to “encourage [those individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” Appx. A, at 3. Qualifying individuals can therefore work “on the books”—meaning, of course, that they will pay taxes on the income they earn. Furthermore, the Secretary points to the humanitarian aim of the DAPA Memorandum which, in conjunction with the DACA Memorandum, keeps families together—at least temporarily. Cf. Reno, 525 U.S. at 484 (describing “deferred action” as an “exercis[e] [of] discretion for humanitarian reasons or simply for [the Executive’s] own convenience”). And by encouraging removable aliens to selfidentify and register, both DACA and DAPA allow DHS to collect information (names, addresses, etc.) that will make it easier to locate these aliens in the future—if and when DHS ultimately decides to remove them. DHS is, of
75

Case: 15-40238 Document: 00513264640 Page: 76 Date Filed: 11/09/2015
No. 15-40238 course, a law enforcement agency, and this is what we would call “good policing.” Although these programs will likely apply to a large number of individuals, that result is the inevitable upshot of decades of congressional appropriations decisions,7 which require DHS (whether by policy or by practice) to de-prioritize millions of removable aliens each year due to these resource constraints.
The DAPA Memorandum operates in two ways. First, with respect to the expansion of DACA, the DAPA Memorandum: removes the age cap (the DACA Memorandum excluded applicants over 31 years of age); extends the period of deferred action from two to three years; and adjusts the date-of-entry requirement from June 15, 2007, to January 1, 2010. Second, the Memorandum establishes new deferred action guidance, “direct[ing] 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 those individuals” who meet six threshold criteria:
 have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
 have continuously resided in the United States since before January 1, 2010;
 are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
 have no lawful status on the date of this memorandum;  are not an enforcement priority as reflected in the [Enforcement
Priorities Memorandum8]; and
7 The limited resources that Congress has made available to DHS for removals are most probably a product of the nation’s limited resources, not of penuriousness on the part of Congress.
8 The Enforcement Priorities Memorandum classifies aliens into three priority categories: (1) “Priority 1 (threats to national security, border security, and public safety)”; (2) “Priority 2 (misdemeanants and new immigration violators)”; and (3) “Priority 3 (other immigration violations).” Appx. B, at 3–4. It further states that “resources should be
76

Case: 15-40238 Document: 00513264640 Page: 77 Date Filed: 11/09/2015
No. 15-40238  present no other factors that, in the exercise of discretion,
makes the grant of deferred action inappropriate. Appx. A, at 4. The Memorandum describes deferred action as a “form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.”9 Appx. A, at 2. The Memorandum makes clear that deferred action: must be “granted on a case-by-case basis”; “may be terminated at any time at the agency’s discretion”;10 and “does not confer any form of legal status in this country, much less citizenship.” Appx. A, at 2. The Memorandum also states that although “immigration officers will be provided with specific eligibility criteria for deferred action, . . . the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.” Appx. A, at 5. In addition, the Memorandum makes clear that applicants must submit to a background check and pay a $465 fee.11 Appx. A, at 4–5. It notes that deferred action recipients are eligible to apply for employment authorization.12 Appx. A, at 4. Finally, the Memorandum states that it “confers no substantive right, immigration status or pathway to citizenship.” Appx. A, at 5.
dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified.” Appx. B, at 5.
9 The Memorandum also summarizes the substantial past use of deferred action. Appx. A, at 2.
10 Therefore, if Congress were to substantially increase the amount of funding available to DHS for removals, deferred action would pose no impediment to the removal even of these low-priority aliens.
11 DHS contends that the fees collected will be sufficient to offset any administrative costs required to implement the DAPA Memorandum.
12 As discussed below, this is merely a statement of preexisting law. See 8 C.F.R. § 274a.12(c)(14).
77

Case: 15-40238 Document: 00513264640 Page: 78 Date Filed: 11/09/2015
No. 15-40238 Holding that Plaintiffs’ challenge to this Memorandum is likely to succeed on the merits, the majority reaches four conclusions, the first three of which were reached by the district court, to sustain the preliminary injunction: (1) Plaintiffs have standing; (2) this case is justiciable and reviewable under the APA; (3) the DAPA Memorandum constitutes a substantive rule that must go through the notice-and-comment process; and (4) the DAPA Memorandum is not authorized by statute and is a substantive violation of the APA. As to the first conclusion, the majority finds that Texas is entitled to “special solicitude” in the standing analysis as DAPA implicates state “sovereignty concerns.” Majority Op. at 10, 14. Within this framework of standing, Texas has demonstrated an injury-in-fact because “it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries.” Id. at 16. The majority contends that even though “Texas could avoid financial loss by requiring applicants to pay the full costs of licenses, it could not avoid injury altogether” because “avoid[ing] injury by incurring other costs does not negate standing.” Id. at 19. Second, the majority determines that this action is reviewable under the APA even though DAPA helps set “priority levels” for immigration enforcement, suggesting that it “is a presumptively unreviewable exercise of ‘prosecutorial discretion.’” Id. at 35. Despite this, the majority claims that DAPA is reviewable because it “affirmatively confer[s] ‘lawful presence’ and associated benefits.” Id. While reaching this conclusion the majority also casts doubt on the validity of one of these benefits—a decades-old regulation on employment authorization, previously unchallenged in this suit. See id. at 39– 40. Third, recognizing that the “DAPA Memo facially purports to confer discretion,” id. at 44, the majority nonetheless deems the DAPA Memorandum a substantive rule subject to the requirements of notice-and-comment rulemaking, id. at 44–54. According to the majority, the district court’s conclusion—that “[n]othing about DAPA ‘genuinely leaves the agency and its
78

Case: 15-40238 Document: 00513264640 Page: 79 Date Filed: 11/09/2015
No. 15-40238 [employees] free to exercise discretion,’” Dist. Ct. Op., 86 F. Supp. 3d at 670— is not clearly erroneous, as there was at least “conflicting evidence on the degree to which DACA allowed for discretion.” Majority Op. at 49 (emphasis added). Finally, the majority reaches beyond the district court’s judgment to conclude that DAPA constitutes a substantive violation of the APA because it “is not authorized by statute.” Id. at 63. I address each of these conclusions in turn.
II. Standing While I would conclude that this case is non-justiciable, I write first to note my concerns with the majority’s primary theory of standing, premised on an expansive notion of state standing and Texas’s increased costs due to the issuance of driver’s licenses to DAPA recipients. Building off a single, isolated phrase in Massachusetts v. EPA, 549 U.S. 497, 520 (2007), the majority finds that Texas has “special solicitude” in the standing inquiry because “DAPA affects the states’ ‘quasi-sovereign’ interests.” Majority Op. at 13. It is altogether unclear whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in of itself, helps confer standing. In any event, both propositions are deeply troublesome for three reasons. First, this reasoning misconstrues the holding of Massachusetts. In that case, the Supreme Court held that Massachusetts had standing to challenge the EPA’s decision not to regulate greenhouse gas emissions. Massachusetts, 549 U.S. at 526. But it did so based on Massachusetts’ quasi-sovereign interests and a provision of the Clean Air Act that specifically “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Id. at 520 (citing 42 U.S.C. § 7607(b)(1)). The Court there recognized that this statutory “authorization [was] of critical importance to the standing inquiry.” Id. at 516. By contrast, neither the INA
79

Case: 15-40238 Document: 00513264640 Page: 80 Date Filed: 11/09/2015
No. 15-40238 nor the APA specifically authorizes this suit.13 Massachusetts also provides little instruction as to how far this “special solicitude” reaches. The phrase appears only once in the Massachusetts majority opinion. And the Court has had no occasion to revisit it since.14
Second, the majority’s ruling raises serious separation of powers concerns. Long recognized is “the foundational role that Article III standing plays in our separation of powers.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1443 (2011); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 125 n.20 (1998) (“[O]ur standing doctrine is rooted in separationof-powers concerns.”). By preserving the proper bounds of Article III standing, the judiciary prevents itself from “aggrandiz[ing] itself . . . at the expense of one of the other branches.” John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L.J. 1219, 1230 (1993).
The majority’s breathtaking expansion of state standing would inject the courts into far more federal–state disputes and review of the political branches than is now the case. While the majority claims that the factors giving a state “special solicitude” to sue the federal government will “seldom exist,” its holding suggests otherwise. Majority Op. at 28. If the APA provides the requisite procedural right to file suit—as the majority indicates, see id. at 11—
13 The majority suggests that the APA does provide specific authorization for suit here because it “authorizes challenges to ‘final agency action for which there is no other adequate remedy in a court.’” Majority Op. at 11 (citing 5 U.S.C. § 704). If this were the case, then presumably Massachusetts would have also referenced the APA as conferring a procedural right since the plaintiffs there challenged “final agency action” within the ambit of the APA. Massachusetts did not, however, even refer to the APA. And, as discussed below, it would be odd if the APA provided such an expansive procedural right to states.
14 The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), 135 S. Ct. 2652, 2664–65 n.10 (2015)—but as recognized by a treatise, in a footnote, in an opinion that did not concern federal–state suits. That footnote correctly observed that “[t]he cases on the standing of states to sue the federal government” are “hard to reconcile.” Id. (quoting R. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 263–66 (6th ed. 2009)).
80

Case: 15-40238 Document: 00513264640 Page: 81 Date Filed: 11/09/2015
No. 15-40238 and a state need only assert a “quasi-sovereign interest” to get “special solicitude,” then states can presumably challenge a wide array of federal regulatory actions. The majority dismisses such a possibility as a “parade of horribles” and “unfounded” based on the lack of such lawsuits at the moment. Id. at 28. It is certainly possible to describe a parade of horribles that could result from the majority’s decision, but those horribles are only “unfounded” because the majority’s broad ruling is untested and unparalleled in any other court.15 By relaxing standing for state suits against the federal government, we risk transforming ourselves into “ombudsmen of the administrative bureaucracy, a role for which [we] are ill-suited both institutionally and as a matter of democratic theory.” Roberts, supra, at 1232.
Third, and relatedly, the majority’s sweeping “special solicitude” analysis “has no principled limit.” Majority Op. at 26. Recognizing that fact, it “stress[es] that [its] decision is limited to these facts.” Id. at 16. Really? If that were true, there would be no need to assuage concerns regarding the opinion’s breadth by arguing “that there are other ways to cabin policy disagreements masquerading as legal claims.” Id. at 27. It is hard for me to
15 The majority cites a number of cases to show that courts have held that states have standing to sue the federal government. Majority Op. at 12–13. Many of these cases are inapposite. Alaska v. U.S. Department of Transportation, 868 F.2d 441, 443–45 (D.C. Cir. 1989), found standing because the FAA, much like the CAA in Massachusetts, created a procedural right to sue available to states. The court in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 272 (4th Cir. 2011), actually denied standing. And Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982), Diamond v. Charles, 476 U.S. 54 (1986), and Maine v. Taylor, 477 U.S. 131 (1986), did not involve federal–state suits. It is true that courts found state standing against the federal government in Ohio ex rel. Celebrezze v. U.S. Department of Transportation, 766 F.2d 228, 232–33 (6th Cir. 1985), Texas Office of Public Utility v. Federal Communications Commission, 183 F.3d 393, 449 (5th Cir. 1999), Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241–44 (10th Cir. 2008), and New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 696 n.13 (10th Cir. 2009), respectively. However, Celebrezze preceded the Supreme Court’s more rigorous standing cases (i.e., post-Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)). And Texas Office of Public Utility, Crank, and Richardson offered very cursory examinations of state standing bereft of the sweeping language the majority uses today.
81

Case: 15-40238 Document: 00513264640 Page: 82 Date Filed: 11/09/2015
No. 15-40238 see the bounds of the majority’s broad ruling. Circuit Judge Alvin B. Rubin of this court once wrote that “[a]ny appellate opinion worth publishing should not merely give a reasoned disposition of the particular matter; it should, in addition, articulate a standard or a rule that can be applied by lawyers and judges in future cases.” Alvin B. Rubin, Views From the Lower Court, 23 UCLA L. Rev. 448, 451 (1976). Anything else is a “‘railway ticket’ decision—good only for this day and station.” Id. Today’s decision is either just such a “railway ticket” (which, we are told, it actually aspires to be) or a broad, new-fangled concept of state standing with little instruction going forward.
Apart from its “special solicitude” analysis, the majority also holds that Texas has standing because it suffered an injury-in-fact traceable to DAPA. This injury results from two independent decisions made by Texas: (1) an alleged decision to underwrite the costs of issuing driver’s licenses to all applicants; and (2) a decision to allow deferred action recipients to apply for driver’s licenses. The majority claims, at length, that there is a “pressure to change state law,” Majority Op. at 13, because the DAPA Memorandum has the downstream effect of expanding the pool of potential Texas driver’s license applicants, thus increasing the costs Texas has made the choice to bear. This “pressure” is entirely manufactured by Plaintiffs for this case, and the majority and the district court have signed on. Nothing in the DAPA Memorandum suggests changes in state law. And I am skeptical that an incidental increase in state costs is sufficient to confer standing for the purposes of Article III. See Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (“No State can be heard to complain about damage inflicted by its own hand.”). But see Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (holding a state had standing to sue another state when it suffered “a direct injury in the form of a loss of specific
82

Case: 15-40238 Document: 00513264640 Page: 83 Date Filed: 11/09/2015
No. 15-40238 tax revenues”).16 Such a theory of standing—based on the indirect economic effects of agency action—could theoretically bestow upon states standing to challenge any number of federal programs as well (assuming states have the motivation to create the factual record to support those economic effects). I have serious misgivings about any theory of standing that appears to allow limitless state intrusion into exclusively federal matters—effectively enabling the states, through the courts, to second-guess federal policy decisions— especially when, as here, those decisions involve prosecutorial discretion. See AIRC, 135 S. Ct. at 2665 n.12 (“The Court’s standing analysis . . . has been ‘especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’” (quoting Raines v. Byrd, 521 U.S. 811, 819–20 (1997)).
III. Justiciability I would conclude, as did Judge Higginson in dissenting from the denial of a stay in this action, that this case is non-justiciable. I write only to supplement Judge Higginson’s thorough and forceful analysis as to this issue,
16 Recognizing the tension between these two cases, the majority claims that Texas’s injury is like that of Wyoming in Wyoming v. Oklahoma, and not like that of Pennsylvania in Pennsylvania v. New Jersey. But a principal difference in these cases was that Pennsylvania, like Texas, tied its law to that of another sovereign, whereas Wyoming did not. See Pennsylvania, 426 U.S. at 663 (“Pennsylvania permits a tax credit to any of its residents for income taxes paid to other States, including, of course, New Jersey.”). The majority asserts that forcing Texas to change its laws would be an injury because states have “a sovereign interest in ‘the power to create and enforce a legal code.’” Majority Op. at 19 (footnote omitted). Yet if that is enough of an injury, then presumably Pennsylvania should have had standing in Pennsylvania v. New Jersey, as Pennsylvania was faced with an instance where it could avoid injury but would have had to change its laws by “withdrawing th[e] credit for taxes paid to New Jersey.” Pennsylvania, 426 U.S. at 664. The Court found that this was not a traceable injury, suggesting Texas’s injury today is similarly “selfinflicted.” Id.
83

Case: 15-40238 Document: 00513264640 Page: 84 Date Filed: 11/09/2015
No. 15-40238 with which I agree in full. See generally Texas v. United States, 787 F.3d 733, 769–84 (5th Cir. 2015) (Higginson, J., dissenting).
Plaintiffs concede that if the DAPA Memorandum is only an exercise in enforcement discretion—without granting any “additional benefits”—it is unreviewable under 5 U.S.C. § 701(a).17 See Majority Op. at 54 n.156 (recognizing that “a nonenforcement policy . . . presumptively would be committed to agency discretion”); see also Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (“An agency’s decision not to take enforcement actions is unreviewable . . . .”). Even the district court concluded that “decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch.” Dist. Ct. Op., 86 F. Supp. 3d at 645. But those are exactly the type of decisions the DAPA Memorandum contemplates. The Memorandum is a statement embodying the Secretary’s tentative decision, based on an assessment of the best uses of DHS’s limited resources and under his congressionally delegated authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), not to remove qualifying applicants for a certain period of time.
In other words, deferred action itself is merely a brand of “presumptively unreviewable” prosecutorial discretion. Majority Op. at 35; see 8 C.F.R. § 274a.12(c)(14) (describing “deferred action” as “an act of
17 For this very reason, Plaintiffs do not challenge the Enforcement Priorities Memorandum. See Majority Op. at 35 (“[T]he states have not challenged the priority levels [the Secretary] has established.” (footnote omitted)).
84

Case: 15-40238 Document: 00513264640 Page: 85 Date Filed: 11/09/2015
No. 15-40238 administrative convenience to the government which gives some cases lower priority”); see also Reno, 525 U.S. at 483–84 (“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.”); Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 545 n.3 (5th Cir. 2013) (en banc) (Dennis, J., concurring) (describing DACA as an “exercise of . . . prosecutorial discretion”); Arpaio, 2015 WL 4772774, at *3 (“One form of discretion the Secretary of Homeland Security exercises is ‘deferred action,’ which entails temporarily postponing the removal of individuals unlawfully present in the United States.”); 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2014) (“To ameliorate a harsh and unjust outcome, the immigration agency may decline to institute proceedings, may terminate proceedings, or may decline to execute a final order of deportation. This commendable exercise in administrative discretion . . . is now designated as deferred action.”); Steel on Immigration Law § 14:42 (2014) (defining “deferred action” as the exercise of “discretionary authority by Immigration and Customs Enforcement, before or after a removal proceeding, not to remove the alien”). Much like pretrial diversion in the criminal context—which also developed over a period of decades without express statutory authorization—deferred action channels limited resources by allowing certain low-priority offenders to work openly and contribute taxes, thus reducing their burden on the system. Notably, such prosecutorial discretion is heightened in the immigration context. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (“A principal feature of the
85

Case: 15-40238 Document: 00513264640 Page: 86 Date Filed: 11/09/2015
No. 15-40238 removal system is the broad discretion exercised by immigration officials.”);18 Reno, 525 U.S. at 490 (stating that concerns of judicial intrusion into enforcement decisions “are greatly magnified in the deportation context”); see also 8 U.S.C. § 1252(g) (stripping courts of 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”).
To the extent the exercise of deferred action “trigger[s]” other benefits, those are not new or “associated” benefits contained within the DAPA Memorandum itself. Majority Op. at 35–36.19 Rather, those benefits are a function of statutes and regulations that were enacted by Congresses and administrations long past—statutes and regulations which, vitally, Plaintiffs do not challenge in this action. The ability to apply for work authorization, the benefit on which the district court most heavily relied, has been tied to deferred action by a federal regulation since the early 1980s. The most current such regulation, promulgated in 1987, states that “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority,” may apply for work authorization “if the alien establishes an economic necessity for employment.”20 8 C.F.R.
18 The majority repeatedly cites Arizona to support its position, including an assertion that “[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States.” Majority Op. at 29–30 (citing Arizona, 132 S. Ct. at 2500). To say the least, the majority’s reliance on Arizona is misplaced. Arizona repeatedly approved of broad discretion in federal immigration enforcement and actually held that a state law concerning immigration was preempted.
19 Nor does the DAPA Memorandum do anything to change the eligibility criteria for these benefits.
20 A predecessor regulation enacted in 1981 similarly stated that “[a]ny alien in whose case the district director recommends consideration of deferred action, an act of administrative convenience to the government which gives some cases lower priority” may apply for work authorization “[p]rovided, [t]he alien establishes to the satisfaction of the district director that he/she is financially unable to maintain himself/herself and family
86

Case: 15-40238 Document: 00513264640 Page: 87 Date Filed: 11/09/2015
No. 15-40238 § 274a.12(c)(14). It is this regulation, not the DAPA Memorandum, which affords those granted deferred action the ability to apply for work authorization. Plaintiffs did not challenge the validity of this regulation,21 and for good reason—it was promulgated via the notice-and-comment process.22 The majority nevertheless states that § 274a.12(c)(14) as applied “to any class of illegal aliens whom DHS declines to remove—is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. This broad holding is very damaging to DHS’s immigration enforcement policy, which has operated, from time to time, on a class-wide basis. It stems from a deeply flawed reading of the INA that I discuss below.
Each of the other benefits relied on by the district court and the majority—not one of which is even mentioned on the face of the DAPA Memorandum—results, if at all, from prior statutes and notice-and-comment regulations: (1) the suspension of the accrual of certain time periods for
without employment.” 46 Fed. Reg. 25,079, 25,081 (May 5, 1981) (formerly codified at 8 C.F.R. § 109.1(b)(6)).
21 Plaintiffs suggested at oral argument that they were challenging the statutory underpinnings of 8 C.F.R. § 274a.12(c)(14), but that position is inconsistent with their briefing on appeal, in which they contend that the work authorization regulation “is not facially invalid,” and in which they “assum[e] arguendo that the regulation is valid in all applications.” Appellees’ Br. 21 n.9. Moreover, throughout this litigation, Plaintiffs stated that they were challenging only the validity of the DAPA Memorandum; this is underscored by the complaint, which does not mention any challenge to the validity of 8 C.F.R. § 274a.12(c)(14). In any event, Plaintiffs’ minimal and inconsistent briefing as to this issue cannot be considered sufficient to mount a challenge to a notice-and-comment regulation that has been on the books for decades, and we should not decide this issue. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it. It is not enough to merely mention or allude to a legal theory.” (internal citations omitted)).
22 Congress, of course, can limit those to whom work authorization is granted, see 8 U.S.C. § 1226(a)(3) (barring the Attorney General from granting work authorization to aliens who are “arrested and detained pending a decision on whether the alien is to be removed from the United States”), but it has not done so with respect to those eligible for deferred action under DAPA.
87

Case: 15-40238 Document: 00513264640 Page: 88 Date Filed: 11/09/2015
No. 15-40238 purposes of the INA’s illegal reentry bars;23 (2) eligibility for certain Social Security and Medicare benefits;24 and (3) the ability to obtain a Social Security number.25 Like work authorization, these benefits are conferred not by the DAPA Memorandum, but by federal statutes or notice-and-comment regulations that are not being directly challenged in this case. And to the extent there are “state benefits,” Majority Op. at 36, to individuals granted deferred action, those benefits stem from state statutes or regulations, none of which is being challenged here. Accordingly, DAPA itself grants no new rights or benefits. It merely announces guidelines for the granting of deferred action (which may trigger benefits under this framework of preexisting law) in an effort to “encourage [qualifying individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be
23 See 8 U.S.C. § 1182(a)(9)(B)(ii) (passed in 1997) (stating that “[f]or purposes of [the illegal entry bars], an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled” (emphasis added)); Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013) (“‘[A]uthorized by the Attorney General’ describes an exercise of discretion by a public official.” (quoting 8 U.S.C. § 1182(a)(9)(B)(ii))). DHS contends that this “benefit” is largely irrelevant here, as the vast majority of potential DAPA recipients have already accrued sufficient unlawful presence to trigger these statutory bars to admissibility.
24 See 8 U.S.C. § 1611(b)(2)–(3) (passed in 1997) (stating that aliens “lawfully present in the United States as determined by the Attorney General” are not barred from receiving certain Social Security and Medicare benefits); 8 C.F.R. § 1.3(a)(4)(vi) (promulgated in 2011) (defining an “alien who is lawfully present in the United States” to include “[a]liens currently in deferred action status”).
25 See 20 C.F.R. § 422.104(a)(2) (promulgated in 2003) (stating that “[a]n alien . . . under other authority of law permitting [the alien] to work in the United States” is “eligible for SSN assignment”); 20 C.F.R. § 422.105(a) (promulgated in 2004) (stating that “a current document authorized by [DHS] that verifies authorization to work has been granted” is sufficient documentation “to enable SSA to issue an SSN card that is valid for work”). Under preexisting statutes and regulations, obtaining a Social Security number may also trigger other benefits, such as earned income tax benefits. See 26 U.S.C. § 32(c)(1)(E), (m) (passed in 1997).
88

Case: 15-40238 Document: 00513264640 Page: 89 Date Filed: 11/09/2015
No. 15-40238 counted.”26 Appx. A, at 3. Even absent this announcement, the above benefits would attach to any grant of deferred action.
These tangible benefits aside, the majority concludes that the term “lawful presence” itself constitutes a benefit bestowed by the DAPA Memorandum because it is “a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens.” Majority Op. at 38. The majority ascribes some added importance to “lawful presence.” The Memorandum uses the phrase “lawful presence” to describe what deferred action is: “Deferred action . . . simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” Appx. A, at 2. As the Memorandum makes clear, “[d]eferred action does not confer any form of legal status in this country, much less citizenship,” and it “may be terminated at any time at the agency’s discretion.” Id. at 2; see also Dhuka, 716 F.3d at 156 (“We conclude that ‘lawful status’ implies a right protected by law, while ‘[lawful presence]’ describes an exercise of discretion by a public official.”); Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013) (“It is entirely possible for aliens to be lawfully present (i.e., in a ‘period of stay authorized by the Attorney General’) even though their lawful status has expired.”). Thus, “lawful presence” does not “confer[] legal status upon its recipients,” Dist. Ct. Op., 86 F. Supp. 3d at 637 n.45 (emphasis added), nor does it constitute “a change in designation,” Majority Op. at 38. Rather, both “lawful presence” and “deferred action” refer to nothing more than DHS’s tentative decision, revocable at any time, not to remove an individual for the time being—i.e., the decision to exercise prosecutorial discretion. Even the majority
26 Of course, the DAPA Memorandum itself does not grant anyone deferred action. Those decisions will be made in the future by DHS agents guided by the DAPA Memorandum.
89

Case: 15-40238 Document: 00513264640 Page: 90 Date Filed: 11/09/2015
No. 15-40238 acknowledges that, at its core, “deferred action [is] a nonprosecution decision.” Id. at 37 (citing Reno, 525 U.S. at 484).27
The Memorandum provides guidelines for this exercise of prosecutorial discretion, and thus falls squarely within DHS’s “broad discretion to ‘decide whether it makes sense to pursue removal at all.’” Id. at 34; see also Dist. Ct. Op., 86 F. Supp. 3d at 645 (noting the Secretary’s “virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources”). Accordingly, precedent compels the conclusion that this case is non-justiciable.28 See Texas, 106 F.3d at 667 (concluding that an “allegation that defendants have failed to enforce the immigration laws . . . is not subject to judicial review . . . because a court has no workable standard against which to judge the agency’s exercise of discretion”); see also Heckler, 470 U.S. at 831 (noting “the general unsuitability for judicial review of agency decisions to refuse enforcement”); Johns v. Dep’t of Justice, 653 F.2d 884, 893 (5th Cir. 1981) (“Th[e] discretion [to commence deportation proceedings] is, like prosecutorial discretion, immune from review in the courts.”). That a prior statute or regulation ties a benefit to the exercise of prosecutorial discretion does not make that ordinarily unreviewable exercise of prosecutorial discretion reviewable or turn it into “affirmative agency action.” Majority Op. at 39. Rather, the challenge is properly leveled at the prior legislation that does the
27 Strangely, the majority cites to Reno to support its conclusion that Plaintiffs’ claims are justiciable. Reno stressed the broad discretion afforded to federal immigration officials and found the case at hand to be non-justiciable based on certain jurisdiction-stripping provisions of the INA. Reno, 525 U.S. at 484–92.
28 This approach would not, as Plaintiffs suggest, constitute a “novel extension of Heckler,” allowing DHS to insulate grants of benefits from judicial review by attaching them to any enforcement policy. Appellees’ Br. 18. Rather, the crucial fact rendering this action non-justiciable is that the benefits at issue are not being granted by the Memorandum itself. Thus, Plaintiffs’ doomsday scenario of DHS “grant[ing] . . . voting rights . . . in conjunction with a non-removal policy,” Appellees’ Br. 18–19, would certainly be reviewable, as no preexisting statute or regulation grants voting rights to deferred action recipients.
90

Case: 15-40238 Document: 00513264640 Page: 91 Date Filed: 11/09/2015
No. 15-40238 tying. See U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1156 (5th Cir. 1984) (deeming a rule non-substantive where the rule’s “substantive effect . . . is purely derivative” of preexisting statutes and regulations). Plaintiffs’ failure to formally challenge the statutes and regulations discussed above—either through the political process at the time of their enactment or in this litigation—does not change the equation. It is always a risk that a different administration will be more generous with its discretion than the one in place at the time the statutes or regulations are passed. Moreover, that these decisions will likely be made with respect to a large number of individuals, and that DHS seeks to organize the process by memorializing these decisions and notifying applicants of the results, does not transform deferred action into anything other than an exercise of prosecutorial discretion. Rather, as noted above, the scale of this policy is a direct function of Congress’s past appropriations decisions.
Nor can it possibly be maintained that this exercise of prosecutorial discretion may be reviewed because DHS, which has been removing individuals from the United States in record numbers, “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”29 Heckler, 470 U.S. at 833 n.4. Although Plaintiffs may prefer a different approach to immigration
29 In determining that DHS has adopted such a policy, the district court reasoned that “the Government here is ‘doing nothing to enforce’ the removal laws against a class of millions of individuals.” Dist. Ct. Op., 86 F. Supp. 3d at 663 (quoting Texas, 106 F.3d at 667). But by cabining its sample size only to DAPA-eligible individuals, and ignoring DHS’s record number of enforcement efforts against others, the district court’s conclusion was preordained. Under the district court’s logic, if DHS grants deferred action to ten individuals, it would have “abdicated its duty” to enforce the immigration laws as to those ten individuals— rendering that action reviewable. Reading Heckler’s narrow exception so broadly would swallow the general rule that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” Heckler, 470 U.S. at 832. The majority does not appear to endorse this misrepresentation today.
91

Case: 15-40238 Document: 00513264640 Page: 92 Date Filed: 11/09/2015
No. 15-40238 enforcement, they “do[] not contend that federal defendants are doing nothing to enforce the immigration laws.” Texas, 106 F.3d at 667 (emphasis added). As we have stated, “[r]eal or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty.” Id.; see also Heckler, 470 U.S. at 834 (“The danger that agencies may not carry out their delegated powers with sufficient vigor does not necessarily lead to the conclusion that courts are the most appropriate body to police this aspect of their performance.”).
Finally, I would note that characterizing any “associated” benefits as flowing exclusively from the DAPA Memorandum—despite the fact that they stem from separate legal authorities—sets a dangerous precedent. The majority concludes that, in order to be reviewable, “DAPA need not directly confer public benefits”; merely “removing a categorical bar on receipt of those benefits and thereby making a class of persons newly eligible for them ‘provides a focus for judicial review.’” Majority Op. at 37. Under this logic, any non-enforcement decision that triggers a collateral benefit somewhere within the background regulatory and statutory scheme is subject to review by the judiciary. As DHS notes, many exercises of prosecutorial discretion trigger such benefits. For example, a prosecutor’s decision to place an individual in a federal pretrial diversion program in lieu of prosecution may result in that individual receiving drug treatment. See Thomas E. Ulrich, Pretrial Diversion in the Federal Court System, Fed. Prob., Dec. 2002 at 30, 32.30 At the very least, the majority’s reasoning would render reviewable every single exercise
30 While the majority suggests DAPA is more than “nonprosecution” because it “remov[es] a categorical bar on [the] receipt of . . . benefits,” Majority Op. at 37, diversion also removes a categorical bar on the receipt of benefits as convicted drug offenders are otherwise ineligible for certain public benefits. See, e.g., 21 U.S.C. § 862a(a) (preventing these offenders from receiving TANF and food stamps).
92

Case: 15-40238 Document: 00513264640 Page: 93 Date Filed: 11/09/2015
No. 15-40238 of deferred action—programmatic or ad hoc—as any grant of deferred action triggers benefits under the statutes and regulations discussed above. While the district court distinguished away many past exercises of deferred action as “different in kind and scope” from DAPA for the purposes of reviewability,31 Dist. Ct. Op., 86 F. Supp. 3d at 664, the majority does not cabin its conclusion. In fact, it suggests that all exercises of deferred action would be subject to judicial scrutiny. Majority Op. at 35 (“Deferred action . . . is much more than nonenforcement.”)
This is logic to which I cannot subscribe. Because the DAPA Memorandum contains only guidelines for the exercise of prosecutorial discretion and does not itself confer any benefits to DAPA recipients, I would deem this case non-justiciable. The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process. That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” Dist. Ct. Op., 86 F. Supp. 3d at 663. The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling. Majority Op. at 27. Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are
31 As noted by DHS and various amici, the granting of deferred action—even to whole classes of individuals—has occurred for decades, under both Republican and Democratic administrations.
93

Case: 15-40238 Document: 00513264640 Page: 94 Date Filed: 11/09/2015
No. 15-40238 unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation. See Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”). Congress is free to constrain DHS’s discretion, and, ultimately, the voters are free to express their approval or disapproval of DAPA through their choice of elected officials. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (“[W]e hardly need to note that an agency’s decision to ignore congressional expectations may expose it to grave political consequences.”).
Accordingly, this case should be dismissed on justiciability grounds. However, for the sake of thoroughness and to correct serious errors committed by the district court in granting the preliminary injunction and the majority in affirming that grant, I discuss below the merits of both APA claims.
IV. APA Procedural Claim Our precedent is clear: “As long as the agency remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm,” and thus need not go through the procedures of notice-and-comment. Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596–97 (5th Cir. 1995) (citation omitted).32 Therefore,
32 As the Fifth Circuit has noted, in determining whether a rule is substantive, and thus subject to notice-and-comment procedures, we must “focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts it.” Prof’ls & Patients, 56 F.3d at 595 (footnote omitted). Plaintiffs now appear to argue (for the first time) on appeal that regardless of the discretion it confers, the DAPA Memorandum is a substantive rule because it “changed the law” by granting benefits to 4.3 million individuals. But as discussed above, the DAPA Memorandum itself confers no additional benefits. Moreover, the scale of the program has no bearing on the substantive rule inquiry—i.e., whether the policy will be administered with case-by-case discretion. See id.; McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988) (“The question for purposes of [5 U.S.C.] § 553 is whether a statement is a rule of present binding effect; the answer depends on whether the statement constrains the agency’s discretion.”). Indeed, Plaintiffs put it best in a letter brief filed with
94

Case: 15-40238 Document: 00513264640 Page: 95 Date Filed: 11/09/2015
No. 15-40238 in order for Plaintiffs to establish a substantial likelihood of success on the merits—the required showing for a preliminary injunction, Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 452 (5th Cir. 2014)—Plaintiffs bore the burden of demonstrating that the Memorandum was non-discretionary. As the majority admits, the Memorandum “facially purports to confer discretion.” Majority Op. at 44. But the district court ignored this clear language, concluding that agency officials implementing DAPA will defy the Memorandum and simply rubberstamp applications. In so doing, the district court disregarded a mountain of highly probative evidence from DHS officials charged with implementing DAPA, relying instead on selected excerpts of the President’s public statements, facts relating to a program materially distinguishable from the one at issue here, and improper burden-shifting. The majority now adopts the district court’s conclusions wholesale and without question. Id. at 50. For the reasons set out below, I would hold that the Memorandum is nothing more than a general statement of policy and that the district court’s findings cannot stand, even under clear error review.
A. The Language and Substance of the DAPA Memorandum In determining whether the DAPA Memorandum constitutes a
substantive rule, we must begin with the words of the Memorandum itself. See Prof’ls & Patients, 56 F.3d at 596. The Memorandum states that it reflects “new policies,” Appx. A, at 1, and “guidance for case-by-case use of deferred action,” Appx. A, at 3. Accordingly, the Secretary characterizes the Memorandum as a “general statement[] of policy”—which is not subject to the notice-and-comment process. 5 U.S.C. § 553(b)(3)(A); see also Prof’ls & Patients, 56 F.3d at 596 (“[T]he description as ‘policy’ in the [statement]
the district court: “To be sure, ‘case-by-case discretion’ determines whether the [Memorandum] is a ‘substantive rule’ under the APA.”
95

Case: 15-40238 Document: 00513264640 Page: 96 Date Filed: 11/09/2015
No. 15-40238 itself . . . militate[s] in favor of a holding that [the statement] is not a substantive rule.”). The Memorandum also repeatedly references (more than ten times) the discretionary, “case-by-case” determinations to be made by agents in deciding whether to grant deferred action. It emphasizes that, despite the criteria contained therein, “the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.”33 Appx. A, at 5; see also Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015) (stating that a document “riddled with caveats is not” likely to constitute a substantive rule); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (Scalia, J.) (concluding that agency guidelines for determining when to take enforcement action against mine operators did not constitute a substantive rule where “[t]he language of the guidelines is replete with indications that the Secretary retained his discretion to cite production-operators as he saw fit”). Indeed, this court has already recognized the “discretion expressly granted under” DAPA—discretion that allows “agent[s] to deal with each alien on a case by case basis.” Crane v.
33 The Memorandum also states that (1) “DHS must exercise prosecutorial discretion in the enforcement of the law”; (2) our immigration laws “are not designed to be blindly enforced without consideration given to the individual circumstances of each case”; (3) “[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission”; (4) “deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion”; (5) “[h]istorically, deferred action has been used . . . on a case-by-case basis”; (6) “I am now expanding certain parameters of DACA and issuing guidance for caseby-case use of deferred action”; (7) “[c]ase-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation’s security and economic interests”; (8) “I hereby direct USCIS to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis”; (9) “ICE is . . . instructed to review pending removal cases . . . of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations”; and (10) “[i]t remains within the authority of the Executive Branch . . . to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law.” Appx. A, at 1–5.
96

Case: 15-40238 Document: 00513264640 Page: 97 Date Filed: 11/09/2015
No. 15-40238 Johnson, 783 F.3d 244, 255 (5th Cir. 2015) (concluding that, on the record in Crane, the plaintiffs lacked standing to challenge DACA).
The discretionary nature of the DAPA Memorandum is further supported by the policy’s substance. Although some of the Memorandum’s criteria can be routinely applied,34 many will require agents to make discretionary judgments as to the application of the respective criteria to the facts of a particular case. For example, agents must determine whether an applicant “pose[s] a danger to national security,” Appx. B, at 3, whether the applicant is “a threat to . . . border security” or “public safety,” Appx. B, at 4, and whether the applicant has “significantly abused the visa or visa waiver programs,”35 Appx. B, at 4. Such criteria cannot be mechanically applied, but rather entail a degree of judgment; in other words, they are “imprecise and discretionary—not exact and certain.”36 Prof’ls & Patients, 56 F.3d at 600 (concluding that an FDA policy delineating nine factors the agency should consider in determining whether to bring an enforcement action did not constitute a substantive rule). This aspect of the DAPA Memorandum appears to have been overlooked by the district court, which—in analyzing whether the Memorandum allows for case-by-case discretion—was fixated on the extent to which applicants meeting DAPA’s criteria would nonetheless be denied
34 For example: whether the applicant has “a son or daughter who is a U.S. citizen or lawful permanent resident.” Appx. A, at 4.
35 Although these criteria come from the Enforcement Priorities Memorandum, the DAPA Memorandum incorporates these criteria into its own, stating that deferred action may be granted to individuals who “are not an enforcement priority as reflected in the” Enforcement Priorities Memorandum. Appx. A, at 4.
36 Similarly, an agent implementing the DACA Memorandum must make the threshold discretionary determinations of whether the applicant has been convicted of “a significant misdemeanor,” and whether the applicant “poses a threat to national security or public safety.” And as we concluded in Crane, the DACA Memorandum too “makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis.” Crane, 783 F.3d at 254–55.
97

Case: 15-40238 Document: 00513264640 Page: 98 Date Filed: 11/09/2015
No. 15-40238 deferred action.37 Such an approach ignores the fact that applying these threshold criteria itself involves an exercise of discretion.
Most strikingly, the last criterion contained in the DAPA Memorandum is entirely open-ended, stating that deferred action should be granted only if the applicant “present[s] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4. The Memorandum does not elaborate on what such “other factors” should be considered—leaving this analysis entirely to the judgment of the agents processing the applications. This court has held that such a caveat “express[ing] that [a] list of . . . factors is neither dispositive nor exhaustive,” “clearly leaves to the sound discretion of the agency in each case the ultimate decision whether to bring an enforcement action.” Prof’ls & Patients, 56 F.3d at 600–01. Indeed, construing the DAPA memorandum as a categorical grant of deferred action for all applicants meeting the other DAPA criteria would render this last criterion meaningless. Cf. Brock, 796 F.2d at 538. Thus, due to the presence of these various flexible and indefinite criteria, the DAPA Memorandum is not a substantive rule that “so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criterion.” Huerta, 785 F.3d at 718 (citation omitted); cf. Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974) (concluding that the “formula like” guidance for determining the length of parole constituted a substantive rule, as it involved the “purely mechanical operation” of computing a score using exclusive criteria).
37 The majority perpetuates this error today by accepting the district court’s characterizations of DAPA without question—despite recognizing that there was “conflicting evidence” below and that extrapolating DAPA from DACA needed to “be done carefully.” Majority Op. at 47, 49.
98

Case: 15-40238 Document: 00513264640 Page: 99 Date Filed: 11/09/2015
No. 15-40238 As Judge Kavanaugh, writing for the D.C. Circuit, has stated, “[t]he most important factor” in distinguishing between a substantive rule and a general statement of policy “concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014). Here, the Memorandum makes clear that it “confers no substantive right, immigration status or pathway to citizenship.” Appx. A, at 5. The majority suggests that DAPA “modifies substantive rights and interests,” by “conferring lawful presence on 500,000 illegal aliens” and forcing Texas to change its laws. Majority Op. at 50–51. None of this appears on the face of the Memorandum though.38 In fact, nothing in the Memorandum indicates that it is legally binding—i.e., that an applicant who is not granted deferred action can challenge that decision in court, or that DHS would be barred from removing an applicant who appears to satisfy the Memorandum’s criteria. See Tex. Sav. & Cmty. Bankers Ass’n v. Fed. Hous. Fin. Bd., 201 F.3d 551, 556 (5th Cir. 2000) (“Substantive or legislative rules affect individual rights and obligations and are binding on the courts.”); cf. Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 948 (D.C. Cir. 1987) (per curiam) (deeming enforcement criteria a substantive rule where, “[a]s FDA conceded at oral argument, it would be daunting indeed to try to convince a court that the agency could appropriately prosecute a producer [who did not meet the agency’s criteria for enforcement]”). Nor does anyone assert that the Memorandum “impose[s] any obligation or prohibition on regulated entities,” i.e., the potential DAPA applicants.39 Huerta, 785 F.3d at 717; cf. Heckler,
38 “Lawful presence,” as previously indicated, is also not a substantive right, but rather a form of nonprosecution that can be revoked at any time. Any purported harm to Texas is incidental and not contemplated by DAPA.
39 The majority suggests that there is a “burden imposed on Texas” by DAPA and even then concedes that this “is derivative of issuing lawful presence to beneficiaries.”
99

Case: 15-40238 Document: 00513264640 Page: 100 Date Filed: 11/09/2015
No. 15-40238 470 U.S. at 832 (“[W]hen an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.”). Moreover, even absent the DAPA Memorandum, DHS would have the authority to take the action of which Plaintiffs complain—i.e., by granting deferred action on an ad hoc basis. See McCarthy, 758 F.3d at 253 (“When the agency applies a general statement of policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” (internal brackets omitted)). Accordingly, based on its language and substance, the Memorandum does not constitute a binding substantive rule subject to the requirements of notice-and-comment.
The majority recognizes that the plain language of Memorandum “facially purports to confer discretion” and does not argue that DAPA creates a substantive rule from its four corners alone. Majority Op. at 44. Nonetheless, the district court reached the opposite conclusion. And it bears identifying the errors committed by the district court in holding that DAPA was a substantive rule on its face.
The district court focused on the Memorandum’s “mandatory term[s], instruction[s], [and] command[s]”—in particular, the Secretary’s “direct[ion]” to USCIS to begin implementing DAPA. Dist. Ct. Op., 86 F. Supp. 3d at 671 n.103. But it should be no surprise that the Memorandum “direct[s]” the USCIS to establish a process for implementing this guidance, Appx. A, at 4; certainly the Secretary did not intend for it to be ignored, see Prof’ls & Patients, 56 F.3d at 599 (“[W]hat purpose would an agency’s statement of policy serve if agency employees could not refer to it for guidance?”). Although “the
Majority Op. at 52. But the analysis centers on the effect of the policy statement on regulated entities, and Texas is plainly not regulated by or even mentioned in the DAPA Memorandum.
100

Case: 15-40238 Document: 00513264640 Page: 101 Date Filed: 11/09/2015
No. 15-40238 mandatory tone of the factors is undoubtedly calculated to encourage compliance,” such language does not transform a statement of policy into a substantive rule so long as there is “an opportunity for individualized determinations.” Id. at 597. Our discussion in Professionals and Patients is particularly instructive on this point:
True, the FDA had even greater discretion in bringing enforcement actions before [the policy for determining whether to bring enforcement actions against pharmacies] issued; prior to that time inspectors were apparently provided with no official guidance whatsoever. In that sense, therefore, [the policy] has “channeled” the FDA’s enforcement discretion, providing direction—where once there was none—by helping to determine whether a pharmacy is engaged in traditional compounding or drug manufacturing. But all statements of policy channel discretion to some degree—indeed, that is their purpose. The more cogent question therefore is whether [the policy] is so restrictive in defining which pharmacies are engaged in drug manufacturing that it effectively removes most, if not all, of the FDA’s discretion in deciding against which pharmacies it will bring an enforcement action. We cannot read [the policy] that restrictively.
Id. at 600. Nor should the DAPA Memorandum be read so restrictively. Its channeling of agency enforcement discretion—through the use of nonexhaustive, flexible criteria—is entirely consistent with a non-substantive rule. See, e.g., Nat’l Roofing Contractors Ass’n v. U.S. Dep’t of Labor, 639 F.3d 339, 341–42 (7th Cir. 2011) (“The Secretary committed to paper the criteria for allowing regulatory violations to exist without redress, a step essential to control her many subordinates. This does not make the exercise less discretionary.”); Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins.
101

Case: 15-40238 Document: 00513264640 Page: 102 Date Filed: 11/09/2015
No. 15-40238 Corp., 589 F.2d 658, 667 (D.C. Cir. 1978) (“The mandatory tone of the specifications for audits and auditors doubtless encourages compliance. However, an opportunity for an individualized determination is afforded.”); see also Kast Metals Corp., 744 F.2d at 1152 n.13 (“[A]gency instructions to agency officers are not legislative rules.”). This is the law for good reason. Requiring each and every policy channeling prosecutorial discretion to go through the notice-and-comment process would perversely encourage unwritten, arbitrary enforcement policies.
The plain language of the Memorandum cannot be characterized as “draw[ing] a ‘line in the sand’ that, once crossed, removes all discretion from the agency.” Prof’ls & Patients, 56 F.3d at 601. Furthermore, the fact that the DAPA Memorandum relates to two areas in which courts should be reluctant to interfere—immigration and prosecutorial discretion—counsels in favor of concluding that it does not constitute a substantive rule. See Brock, 796 F.2d at 538 (“Our decision [that the rule is non-substantive] is reinforced by the fact that the statement here in question pertains to an agency’s exercise of its enforcement discretion—an area in which the courts have traditionally been most reluctant to interfere.”).
Rather than relying on the language of the Memorandum, the majority concludes that DAPA is a substantive rule because it “would not genuinely leave [DHS] and its employees free to exercise discretion” in practice. Majority Op. at 50; see also Prof’ls & Patients, 56 F.3d at 595 (quoting Young, 818 F.2d at 946). But in doing so, the majority relies unquestioningly on the district court’s finding that the discretionary language in DAPA was “merely pretext” and that DHS officials would not exercise case-by-case discretion of removals under DAPA. Majority Op. at 44; see also id. at 52 (“DAPA establishes ‘the substantive standards by which the [agency] evaluates
102

Case: 15-40238 Document: 00513264640 Page: 103 Date Filed: 11/09/2015
No. 15-40238 applications.” (alterations in original)). The district court’s finding was clearly erroneous, however, and I turn to it next.
B. Evidence of Pretext The district court erred not only in its analysis of the legal effect of the
DAPA Memorandum, but also in its resolution of the facts. By eschewing the plain language of the Memorandum, and concluding that its discretionary aspects are “merely pretext,” Dist. Ct. Op., 86 F. Supp. 3d at 669 n.101, the district court committed reversible error. To the extent the district court’s pretext conclusion constitutes a factual finding entitled to “clear error” review, that does not mean that we “rubber stamp the district court’s findings simply because they were entered.” McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 409 (5th Cir. 2001). Rather, “[c]lear error exists when this court is left with the definite and firm conviction that a mistake has been made.” Ogden v. Comm’r, 244 F.3d 970, 971 (5th Cir. 2001) (per curiam). I am left with such a conviction for three independent reasons: (1) the record lacks any probative evidence of DAPA’s implementation; (2) the district court erroneously equated DAPA with DACA; and (3) even assuming DAPA and DACA can be equated, the evidence of DACA’s implementation fails to establish pretext.
It is true that the plain language of the Memorandum—which, in the majority’s words, “facially purports to confer discretion”—may not be conclusive if rebutted by “what the agency does in fact.” Prof’ls & Patients, 56 F.3d at 596. Here, however, there is no such evidence of what the agency has done “in fact,” as DAPA has yet to be implemented. The district court ruled even before it had “an early snapshot” of the policy’s implementation. McCarthy, 758 F.3d at 253 (stating that, “because . . . recently issued guidance will have been implemented in only a few instances,” courts “look[ing] to postguidance events to determine whether the agency has applied the guidance as
103

Case: 15-40238 Document: 00513264640 Page: 104 Date Filed: 11/09/2015
No. 15-40238 if it were binding” must rely on “an early snapshot”).40 Plaintiffs have cited no authority, and I am not aware of any, deeming a statement of policy pretextual without direct evidence of the policy’s implementation. Cf. Interstate Nat. Gas Ass’n of Am. v. FERC, 285 F.3d 18, 60 (D.C. Cir. 2002) (“[I]f there have so far been any applications of the [agency]’s policy, neither side has seen fit to bring it to our attention. So there is no basis here for any claim that the [agency] has actually treated the policy with the de facto inflexibility of a binding norm.”). Nor should pretext be found here absent such evidence. As noted at the outset, courts should not be quick to conclude that when a coordinate branch of government describes a policy as discretionary, it does not mean what it says.
How, then, did the district court reach the conclusion that the DAPA Memorandum’s express inclusion of case-by-case discretion is “merely pretext”? First, the district court selectively relied on public statements the President made in describing the DAPA Memorandum to the public. Majority Op. at 46. But there is no precedent for a court relying on such general pronouncements in determining a program’s effect on the agency and on those being regulated. As Judge Higginson aptly noted in his dissent from
40 As several amici argue, a challenge to a statement of policy as pretextual may be unripe prior to the policy’s implementation. For example, where:
[T]he facts are so wholly ambiguous and unsharpened as not to present a purely legal question ‘fit . . . for judicial decision,’ and where the agency’s characterization of its action would fit them cleanly into a § 553 exemption, . . . the most prudent course [is] to await the sharpened facts that come from the actual workings of the regulation in question before striking the objective down as violative of the APA.
Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1056 (D.C. Cir. 1987) (first alteration in original) (internal citation omitted); see Hudson v. FAA, 192 F.3d 1031, 1034–35 (D.C. Cir. 1999); Pub. Citizen, Inc., 940 F.2d at 683.
104

Case: 15-40238 Document: 00513264640 Page: 105 Date Filed: 11/09/2015
No. 15-40238 the denial of the motion for a stay, “Presidents, like governors and legislators, often describe [a] law enthusiastically yet defend the same law narrowly.” Texas, 787 F.3d at 780 (Higginson, J., dissenting); see also Prof’ls & Patients, 56 F.3d at 599 (reasoning that “informal communications often exhibit a lack of ‘precision of draftsmanship’ and . . . internal inconsistencies” and thus are “entitled to limited weight”).41 More importantly, the statements relied upon by the district court are not inconsistent with the DAPA Memorandum’s grant of discretion to agency decision makers. For example, the President’s statement that those who “meet the [DAPA] criteria . . . can come out of the shadows,” Dist. Ct. Op., 86 F. Supp. 3d at 668, does not suggest that applications will be rubberstamped, given that (as discussed above) those very criteria involve the exercise of discretion. Similarly, the President’s suggestion that agents who do not follow DAPA’s guidelines may suffer consequences does not support the conclusion that the Memorandum is pretextual. Rather, it supports the opposite conclusion—that the terms of the DAPA Memorandum, which incorporate case-by-case discretion, will be followed. An order to “use your discretion” is not a substantive rule.
The district court’s reliance on language contained in DHS’s DAPA website—a source apparently not even cited by the parties and not mentioned by the majority—rests on even shakier ground. According to the district court, the DHS website’s characterization of DAPA as a “program” and an “initiative” somehow contradicts DHS’s position that the Memorandum constitutes “guidance.” Of course, DAPA may very well be all three, but this has no bearing on whether the Memorandum constitutes a substantive rule—i.e.,
41 The majority appears to endorse the district court’s reliance on presidential statements as it too cites the President’s remark that he “‘change[d] the law’” as support for concluding that DAPA is beyond the scope of the INA. Majority Op. at 65.
105

Case: 15-40238 Document: 00513264640 Page: 106 Date Filed: 11/09/2015
No. 15-40238 whether the “program” or “initiative” or “guidance” genuinely allows the agency to exercise its discretion on a case-by-case basis. Even more dubious is the district court’s argument that, by using the word “initiative” on its website, DHS was intending to use the word in its technical legal sense to reference voter initiatives, thus implying a “legislative process.”42 Id. at 667–68.
Lacking any probative evidence as to DAPA’s implementation, the district court relied most heavily on evidence of DACA’s implementation— concluding unequivocally that DAPA will be “implemented exactly like DACA.” Id. at 663. It is this analysis that the majority finds convincing, all the while noting that “any extrapolation from DACA must be done carefully.” Majority Op. at 47. The district court reached this conclusion on two flawed bases: (1) the DAPA Memorandum’s statement directing the USCIS to “establish a process, similar to DACA” for implementing DAPA, Appx. A, at 4; and (2) the “lack of any suggestion that DAPA will be implemented in a fashion different from DACA,” Dist. Ct. Op., 86 F. Supp. 3d at 649. With respect to the former, this single, nebulous statement does not specify how the DAPA and DACA processes would be similar; the phrase cannot be construed to mean that DAPA and DACA will be implemented identically. The latter is pure burdenshifting—the district court implies that the burden is on DHS to show that the two programs will be implemented differently. Of course, in the preliminary injunction context, Plaintiffs, “by a clear showing, carr[y] the burden of persuasion.” Harris Cnty. v. CarMax Auto Superstores Inc., 177 F.3d 306, 312
42 The district court noted that this voter initiative definition is the “sole definition offered for ‘initiative’” in Black’s Law Dictionary. Dist. Ct. Op., 86 F. Supp. 3d at 668. There are, of course, other dictionaries—dictionaries far more likely to capture DHS’s intended use of the word in a website created to describe DAPA to the public (rather than to attorneys or judges). For example, the first definition of “initiative” in the Oxford English Dictionary is “[t]hat which initiates, begins, or originates,” Initiative, The Oxford English Dictionary (2d ed. 1989)—a definition that certainly does not imply a binding norm.
106

Case: 15-40238 Document: 00513264640 Page: 107 Date Filed: 11/09/2015
No. 15-40238 (5th Cir. 1999). The district court also completely ignored the statement contained in the Declaration of Donald W. Neufeld—the Associate Director for Service Center Operations for USCIS—that “USCIS is in the process of determining the procedures for reviewing requests under DAPA, and thus USCIS has not yet determined whether the process to adjudicate DAPA requests will be similar to the DACA process.”
More importantly, the fact that the administration of the two programs may be similar is not evidence that the substantive review under both programs will be the same. As discussed in more detail below, the district court relied heavily on the denial rates of applications submitted under DACA. But those rates are irrelevant for one simple reason, a reason the district court failed to confront: the substantive criteria under DACA and DAPA are different. And even the majority concedes that “DACA and DAPA are not identical.” Majority Op. at 47. Review under the DACA Memorandum does not, for example, require reference to the various discretionary factors contained in the Enforcement Priorities Memorandum, nor does DACA contain DAPA’s criterion that the applicant “present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4; see also Majority Op. at 48 (“Further, the DAPA Memo contains additional discretionary criteria.”). Thus, even assuming DACA and DAPA applications are reviewed using the exact same administrative process, the district court had no basis for concluding that the results of that process—a process that would involve the application of markedly different, discretionary criteria— would be the same. For this reason alone—that is, the district court’s heavy
107

Case: 15-40238 Document: 00513264640 Page: 108 Date Filed: 11/09/2015
No. 15-40238 reliance upon this minimally probative evidence—I would conclude that the district court clearly erred.43
There are additional reasons, however, to discount the DACA-related evidence on which the district court based its decision and which the majority now accepts. First, even assuming DACA’s 5% denial rate has some probative value, and assuming that rate can be properly characterized as low,44 a low rate would be unsurprising given the self-selecting nature of the program, as the majority concedes. Majority Op. at 47. 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). The majority recognizes this issue but finds that it “is partially mitigated by the finding that ‘the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action.” Id. (citing Dist. Ct. Op., 86 F. Supp. 3d at 663). But this public declaration, cited by the district court, comes from an informational DHS website that never states that DHS will make no attempt to enforce the law.45
43 In addition, as Judge Higginson noted in his dissent, DACA is materially distinguishable from DAPA because the former applies only to “a subset of undocumented immigrants who are particularly inculpable as they ‘were brought to this country as children’ and, thus, ‘lacked the intent to violate the law.’” Texas, 787 F.3d at 781 (Higginson, J., dissenting) (quoting the DACA Memorandum). Accordingly, it would be reasonable to expect that denial rates under DAPA would be higher than those under DACA, as DACA applicants are far less likely to exhibit other factors (e.g., a threat to national security) that would prompt an exercise of discretion not to grant deferred action.
44 This rate represents 38,080 denials out of the 723,358 applications accepted for processing at USCIS service centers through December 2014. There were an additional 42,919 applications rejected for purely administrative reasons during this time period. Neither of these numbers suggests an agency on autopilot.
45 The majority’s acceptance of this passage is but one illustration of the problem with relying on the district court’s factual conclusions.
108

Case: 15-40238 Document: 00513264640 Page: 109 Date Filed: 11/09/2015
No. 15-40238 The district court also erred in its mischaracterization of a letter written by León Rodríguez, Director of USCIS, to Senator Charles Grassley, suggesting that the top four reasons for DACA denials are:
(1) the applicant used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete Form I-765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the program. Dist. Ct. Op., 86 F. Supp. 3d at 609. This, however, is not what the letter says. The letter actually states that these were the top four reasons for DACA application rejections, not denials. As made clear in DHS’s Neufeld Declaration, “a DACA request is ‘rejected’ when [it is] determine[d] upon intake that the [application] has a fatal flaw,” while “[a] DACA request is ‘denied’ when a USCIS adjudicator, on a case-by-case basis, determines that the requestor has not demonstrated that they satisfy the guidelines for DACA or when an adjudicator determines that deferred action should be denied even though the threshold guidelines are met.” By conflating rejections with denials, the district court suggested that most denials are made for mechanical administrative reasons and thus could not have been discretionary. But the five percent denial rate does not even take into account these administrative rejections. The district court also appeared singularly focused on one metric for measuring whether DACA (and by implication, DAPA) is implemented in a discretionary manner. The court insisted that DHS provide: “the number, if any, of requests that were denied even though the applicant met the DACA
109

Case: 15-40238 Document: 00513264640 Page: 110 Date Filed: 11/09/2015
No. 15-40238 criteria as set out in Secretary Napolitano’s DACA memorandum.”46 Id. at 609. In yet another instance of improper burden-shifting, the court reasoned that “[b]ecause the Government could not produce evidence concerning applicants who met the program’s criteria but were denied DACA status, this Court accepts the States’ evidence as correct.” Id. at 609 n.8. But the burden of showing DAPA is non-discretionary was on Plaintiffs—the States—and Plaintiffs provided no evidence as to the number of these denials. Rather, the district court accepted as true Plaintiffs’ bare assertion that there were no such denials, concluding unequivocally that “[n]o DACA application that has met the criteria has been denied based on an exercise of individualized discretion.” Id. at 669 n.101. The district court reached this conclusion in the face of uncontested evidence contained in the Neufeld Declaration that DACA applications “have also been denied on the basis that deferred action was not appropriate for other reasons not expressly set forth in [the] 2012 DACA Memorandum.” The district court also failed to acknowledge the reason DHS did not introduce statistics as to these denials: it had no ability to do so. As stated in the Neufeld Declaration, “[u]ntil very recently, USCIS lacked any ability to automatically track and sort the reasons for DACA denials,” presumably because it had no reason to track such data prior to this litigation. Although this point is undisputed, the district court and now the majority nonetheless fault DHS for failing to provide the information the district court requested. See Majority Op. at 50 (“[T]he government did not provide the number of cases that service-center officials referred to field offices for interviews.”). Yet it was not DHS’s burden to disprove Plaintiffs’ assertions of
46 As discussed above, this focus was misplaced, as application of both the DACA and DAPA criteria themselves involves the exercise of discretion.
110

Case: 15-40238 Document: 00513264640 Page: 111 Date Filed: 11/09/2015
No. 15-40238 pretext, nor must DHS (anticipatorily) track data in a way that may be convenient to an adversary in future litigation.
The district court also relied on a four-page declaration by Kenneth Palinkas, President of the National Citizenship and Immigration Services Council (the union representing USCIS employees processing DACA applications), for the proposition that “DACA applications are simply rubberstamped if the applicants meet the necessary criteria.”47 Dist. Ct. Op., 86 F. Supp. 3d at 610. Yet lay witness conclusions are only competent evidence if rationally drawn from facts personally observed. See Fed. R. Evid. 701. Here, Palinkas’s conclusion was supported only by the fact that DACA applications are routed to “service centers instead of field offices,” and that “USCIS officers in service centers . . . do not interview applicants”—a weak basis on which to conclude that DHS’s representations (both to the public and to the courts) are “merely pretext.”48 See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2949 (3d ed. 2015) (“Preliminary injunctions frequently are denied if the affidavits are too vague or conclusory to demonstrate a clear right to relief under Rule 65.”). Indeed, Palinkas’s assertions are rebutted—and the step-by-step process for reviewing DACA applications is explained—in the detailed affidavit filed by Donald Neufeld, the head of those very USCIS service centers. Neufeld declares that the service centers “are designed to adjudicate applications, petitions and requests” for various programs “that have higher-volume caseloads.” Neufeld goes on to describe the “multi-step, case-specific process” for reviewing DACA
47 Yet again, this focus ignores the discretion inherent in those criteria. 48 Palinkas also focuses on the USCIS’s announcement that it will create a new service center for the processing of DAPA applications, to be staffed by approximately 700 USCIS employees and 300 federal contractors. But the fact that so many agents are necessary to assess DAPA applications is inconsistent with the notion that the review will be conducted in a mechanical, pro forma manner.
111

Case: 15-40238 Document: 00513264640 Page: 112 Date Filed: 11/09/2015
No. 15-40238 applications: “Once a case arrives at a Service Center, a specially trained USCIS adjudicator is assigned to determine whether the requestor satisfies the DACA guidelines and ultimately determine whether a request should be approved or denied.”49 Adjudicators “evaluate the evidence each requestor submits in conjunction with the relevant DACA guidelines” and “assess the appropriate weight to accord such evidence.”50 Citing various examples, Neufeld explains that “[e]ven if it is determined that a requestor has satisfied the threshold DACA guidelines, USCIS may exercise discretion to deny a request where other factors make the grant of deferred action inappropriate.”51 As a part of their review, adjudicators can investigate the facts and evidence supporting the application “by contacting educational institutions, other government agencies, employers, or other entities.” Moreover, although the Palinkas Declaration accurately states that adjudicators at USCIS service centers do not have the capability to interview applicants, the Neufeld Declaration clarifies that service center adjudicators “may refer a case for interview at a Field Office”—for example, “when the adjudicator determines, after careful review of the request and supporting documents, that a request is deniable, but potentially curable, with information that can best be received through an interview.” Adjudicators may also request that applicants submit additional evidence in support of their applications for deferred action; this was no rare occurrence, as nearly 200,000 such requests for additional evidence were issued by adjudicators. “In addition, all DACA requestors must submit
49 Applications are first mailed to USCIS “lockboxes,” where they are reviewed to determine whether they should be rejected for administrative reasons.
50 Neufeld notes, consistent with the discussion above, that “USCIS must . . . exercise significant discretion in determining whether” some of the DACA guidelines apply; for example, “determining whether a requestor ‘poses a threat to national security or public safety’ necessarily involves the exercise of the agency’s discretion.”
51 Such discretionary denials are generally reviewed at USCIS headquarters.
112

Case: 15-40238 Document: 00513264640 Page: 113 Date Filed: 11/09/2015
No. 15-40238 to background checks, and requests are denied if these background checks show that deferred action would be inappropriate.”
Placing these declarations side-by-side, the detailed Neufeld Declaration does not simply rebut the conclusory assertions contained in the Palinkas Declaration—it provides undisputed context for how USCIS service centers actually work and how DACA application decisions are made. Or at the very least, as the majority concedes, the two in tandem create “conflicting evidence on the degree to which DACA allowed for discretion.” Majority Op. at 49. Yet the district court concluded that the Neufeld Declaration did not provide “the level of detail that the Court requested.”52 Dist. Ct. Op., 86 F. Supp. 3d at 609. It is difficult to imagine what level of detail would have satisfied the district court. At a minimum, as recognized by Judge Higginson in his dissent to the denial of the stay pending appeal, the Neufeld Declaration created a factual dispute warranting an evidentiary hearing.53 See Texas, 787 F.3d at 781–82 (Higginson, J., dissenting) (citing authorities); see also Landmark Land Co. v. Office of Thrift Supervision, 990 F.2d 807, 812 (5th Cir. 1993) (“The record reveals several disputes of material fact that the district court must necessarily resolve in deciding whether to issue the injunction. An evidentiary hearing thus is in order upon remand.”); Marshall Durbin Farms, Inc. v. Nat’l Farmers Org., Inc., 446 F.2d 353, 356 n.4 (5th Cir. 1971) (“[W]here so very much turns upon an accurate presentation of numerous facts . . . the propriety of proceeding upon affidavits becomes the most questionable.”); Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir. 2004) (“Particularly when a court must make
52 The district court did not, however, make an express finding that it deemed the Palinkas Declaration more credible than the Neufeld Declaration.
53 Even Plaintiffs noted, after DHS submitted the Neufeld Declaration, that “if the Court decides that the Defendants’ new declarations create a material fact dispute of material consequence to the motion . . . , the correct step would be to hold a second hearing.”
113

Case: 15-40238 Document: 00513264640 Page: 114 Date Filed: 11/09/2015
No. 15-40238 credibility determinations to resolve key factual disputes in favor of the moving party, it is an abuse of discretion for the court to settle the question on the basis of documents alone, without an evidentiary hearing.” (emphasis added)). The district court’s failure to hold an evidentiary hearing further undermines faith in its factual conclusions.
The district court also looked to the operating procedures governing the implementation of DACA, noting that they “contain[] nearly 150 pages of specific instructions for granting or denying deferred action” and involve the use of standardized forms for recording denials—a fact the majority mentions. Dist. Ct. Op., 86 F. Supp. 3d at 669 (footnote omitted). But no such operating procedures for the implementation of DAPA appear in the record—a fact the majority does not mention. As noted above, the USCIS is currently “in the process of determining the procedures for reviewing requests under DAPA.” In any event, even “specific and detailed requirements” may qualify as a “‘general’ statement of policy.” Guardian Fed. Sav. & Loan Ass’n, 589 F.2d at 667. And the “purpose” of a statement of policy is to “channel discretion” of agency decision makers; such channeling does not trigger the requirements of noticeand-comment unless it is “so restrictive . . . that it effectively removes most, if not all, of the [agency]’s discretion.” Prof’ls & Patients, 56 F.3d at 600. As for the use of standardized forms to record denials, what matters is not whether DAPA decisions are memorialized in a mechanical fashion, but whether they are made in such a fashion. For the many reasons discussed above, the district court had no legitimate basis for concluding that they will be.
Finally, the district court’s lengthy discussion of an “abdication theory” of standing—a theory for which Plaintiffs have not even expressly advocated—
114

Case: 15-40238 Document: 00513264640 Page: 115 Date Filed: 11/09/2015
No. 15-40238
provides context for the district court’s conclusions as to pretext.54 In
determining that the DAPA Memorandum constituted an “abdication” of
DHS’s duties, the district court asserted (repeatedly) that it “cannot be
disputed” that “the Government has abandoned its duty to enforce the law.”
Dist. Ct. Op., 86 F. Supp. 3d at 638. The district court deemed it “evident that
the Government has determined that it will not enforce the law as it applies to
over 40% of the illegal alien population that qualify for DAPA.”55 Id. at 639
(emphasis added). Such blanket assertions—made without discussing any of
the evidence set out above—assume a lack of discretion in the review of DAPA
applications. This assumption—which the district court apparently required
DHS to rebut—infects the opinion below, yet has no evidentiary basis.
The majority accepts the district court’s factual conclusions almost carte
blanche. But clear error review is not a rubber stamp, and the litany of errors
committed by the district court become readily apparent from a review of the
54 It appears that no court in the country has accepted this radical theory of standing. Indeed, the district court admitted that it had “not found a case where the plaintiff’s standing was supported solely on this basis.” Dist. Ct. Op., 86 F. Supp. 3d at 643 n.48. The majority’s broad concept of state standing based on harm to “quasi-sovereign interests” is strikingly similar to this theory of standing. See Majority Op. at 14 (“When the states joined the union, they surrendered some of their sovereign prerogatives over immigration.”).
55 In addition, the district court stated: (1) “DHS has clearly announced that it has decided not to enforce the immigration laws as they apply to approximately 4.3 million individuals”; (2) “Secretary Johnson announced that the DHS will not enforce the immigration laws as to over four million illegal aliens eligible for DAPA, despite the fact that they are otherwise deportable”; (3) “As demonstrated by DACA and DAPA . . . , the Government has decided that it will not enforce these immigration laws as they apply to well over five million people”; (4) “The DHS unilaterally established the parameters for DAPA and determined that it would not enforce the immigration laws as they apply to millions of individuals”; and (5) “the DHS does not seek compliance with the federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law.” Id. at 637 n.45, 638–43. The district court also characterized DAPA as an “announced policy of non-enforcement.” Id. at 637 n.45. Although these quotations from the district court’s opinion focus on what it perceives to be the failures of DHS to enforce the immigration laws, at other places in that opinion, the district court identifies the decades-long failure of Congress to fund what the district court would consider adequate enforcement.
115

Case: 15-40238 Document: 00513264640 Page: 116 Date Filed: 11/09/2015
No. 15-40238 record. The record before us, when read properly, shows that DAPA is merely a general statement of policy. As such, it is exempt from the notice-andcomment requirements of 5 U.S.C. § 553.
V. APA Substantive Claim The majority’s conclusion that the states are substantially likely to succeed on their APA procedural claim should presumably be enough to affirm the decision below. Yet, for reasons altogether unclear, the majority stretches beyond the judgment of the district court and concludes that DAPA and a long, preexisting regulation (8 C.F.R. § 274a.12(c)(14)), as applied to DAPA, are substantive APA violations. See Majority Op. at 54–66. Prudence and judicial economy warrant against going this far, and I would not reach this issue on the record before us. For one, “the district court enjoined DAPA solely on the basis of the procedural APA claim.” Id. at 54. It did not evaluate the substantive APA claim at issue. See Dist. Ct. Op., 86 F. Supp. 3d at 677 (“[T]he Court is specifically not addressing Plaintiffs’ likelihood of success on their substantive APA claim.”). In fact, the district court eschewed determination of this issue and Plaintiffs’ constitutional claim “until there [could be] further development of the record.” Id.56 On appeal, the parties offered only sparse arguments on the substantive APA claim. The parties filed briefs totaling 203 pages, of which ten pages addressed the substantive APA claim.57 This hardly seems to be enough to help us answer a complicated question of statutory interpretation and administrative law. I would not address the substantive APA claim in light of this limited record while cognizant of the principle that “[c]ases are to be
56 There might not be much left in the way of factual development of the record, see Majority Op. at 54 n.158, but there is much left wanting in the way of legal development.
57 Appellees’ Br. 47–50; Appellants’ Reply Br. 21–23; Appellants’ Suppl. Br. 27–29; Appellees’ Suppl. Br. 15–17.
116

Case: 15-40238 Document: 00513264640 Page: 117 Date Filed: 11/09/2015
No. 15-40238 decided on the narrowest legal grounds available.” Korioth v. Briscoe, 523 F.2d 1271, 1275 (5th Cir. 1975).
That said, were I to reach the substantive APA claim I would find the majority’s conclusion unpersuasive on the limited record before us. The argument that DAPA is a substantive APA violation, as I read it, appears to be the following: (1) DAPA is “manifestly contrary,” Majority Op. at 66, to the text of the INA and deserves no deference partly because Congress would not assign it such a “decision[] of vast ‘economic and political significance,’” id. at 62 (citation omitted); and (2) even if DHS deserved deference, DAPA is not a reasonable interpretation of the INA.
Questions of how agencies construe their governing statutes fall under the two-step inquiry announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). It bears reiterating this framework as I believe the majority misapplies it and its associated precedents. At step one of Chevron, courts are to look at “whether Congress has directly spoken to the precise question at issue.” Id. at 842. If Congress has directly spoken, then the court “must give effect to [its] unambiguously expressed intent.” Id. at 843. But “if the statute is silent or ambiguous,” then at step two, a court is to defer to an agency’s interpretation of a statute so long as it is “reasonable.” Id. at 843–44.
The majority first states that DAPA fails Chevron step one because Congress has directly addressed the issue of deferred action. Majority Op. at 55–56. To bolster its conclusion, the majority points to provisions of the INA that delineate which aliens can receive lawful permanent resident (LPR) status, can be eligible for deferred action, and can receive LPR status by having a citizen family member. Id. at 55–57. These provisions are, indeed, “specific and detailed,” id. at 55, but none of them precisely prohibits or addresses the kind of deferred action provided for under DAPA. The
117

Case: 15-40238 Document: 00513264640 Page: 118 Date Filed: 11/09/2015
No. 15-40238 question under step one is whether the language of a statute is “precisely directed to the question,” not whether “parsing of general terms in the text of the statute will reveal an actual intent of Congress.” Chevron, 467 U.S. at 861– 62. Most of the provisions identified by the majority are directed at the requirements for legal status, not the lawful presence permitted by DAPA. And even the majority acknowledges the two are not the same. See Majority Op. at 57 (“LPR status is more substantial than is lawful presence.”). DAPA does not purport to create “a lawful immigration classification.” Id. at 56.
It is true that Congress has specified certain categories of aliens that are eligible for deferred action. See id. at 56. This line of argument follows from the legal maxim expressio unius est exclusio alterius (“the expression of one is the exclusion of others”) suggesting that because DAPA was not specified by Congress, it is contrary to the INA. But this argument is nonetheless incorrect. The expressio unius “canon has little force in the administrative setting.” Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991). And the inquiry at step one is “whether Congress has directly spoken to the precise question at issue,” not whether it legislated in the general area or around the periphery. Chevron, 467 U.S. at 842 (emphasis added). Congress has never prohibited or limited ad hoc deferred action, which is no different than DAPA other than scale.58 In fact, each time Congress spoke to this general issue, it did so incidentally and as part of larger statutes not concerned
58 The majority makes much of the scope of DAPA in concluding that it violates the APA. See Majority Op. at 56, 59. Yet the conclusions regarding DAPA’s legality are similarly applicable to ad hoc deferred action. Ad hoc deferred action triggers the same eligibility for benefits and Congress has not directly mentioned it by statute. It should follow then that ad hoc deferred action is also not authorized by the INA and is a substantive APA violation. But this cannot be the case for the reasons mentioned below. Despite the majority’s emphasis on the scale of DAPA, its size plays no role in whether or not it is authorized by statute. I am aware of no principle that makes scale relevant in this analysis, and the majority does not cite any authority otherwise. The question of whether an agency has violated its governing statute does not change if its actions affect one person or “4.3 million” persons. Id. at 56.
118

Case: 15-40238 Document: 00513264640 Page: 119 Date Filed: 11/09/2015
No. 15-40238 with deferred action. See, e.g., USA PATRIOT ACT of 2001, Pub L. No. 10756, § 423(b), 115 Stat. 272, 361 (discussing deferred action for family members of LPRs killed by terrorism within a far larger statute aimed primarily at combatting terrorism). And the language regarding deferred action was worded in permissive terms, not prohibitive terms. See, e.g., 8 U.S.C. § 1154(a)(1)(D)(i)(II) (stating that a qualifying “is eligible for deferred action and work authorization”). More importantly, in enacting these provisos, Congress was legislating against a backdrop of longstanding practice of federal immigration officials exercising ad hoc deferred action. By the time Congress specified categories of aliens eligible for deferred action, immigration officials were already “engaging in a regular practice . . . of exercising [deferred action] for humanitarian reasons or simply for its own convenience.” Reno, 525 U.S. at 484.59 Yet Congress did nothing to upset this practice. The provisions cited by the majority, if anything, highlight Congress’s continued acceptance of flexible and discretionary deferred action.60 Denying DHS’s ability to grant

59 The Court in Reno noted that “[p]rior to 1997, deferred-action decisions were governed by internal INS guidelines which considered [a variety of factors].” Reno, 525 U.S. at 484 n. 8. Although the guidelines were rescinded, the Court also observed that “there [was] no indication that the INS has ceased making this sort of determination on a case-bycase basis.” Id.

60 The Office of Legal Counsel, in its evaluation of DAPA, noted that Congress had

given its “implicit approval” to deferred action over the years. Office of Legal Counsel, The

Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens

Unlawfully Present in the United States and to Defer Removal of Others 30–31 (2014),

available

at

http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-

auth-prioritize-removal.pdf.

119

Case: 15-40238 Document: 00513264640 Page: 120 Date Filed: 11/09/2015
No. 15-40238 deferred action on a “class-wide basis,” Majority Op. at 32, as the majority does, severely constrains the agency.61
The majority makes a similar mistake with respect to the work authorization regulation, 8 C.F.R. § 274a.12(c)(14). The majority holds that this regulation as “to any class of illegal aliens whom DHS declines to remove– is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. It bases its conclusion on provisions of the INA that specify classes of aliens eligible and ineligible for work authorization and scattered statements from past cases supposedly stating that Congress restricted immigration to preserve jobs from American workers. Yet, much like with deferred action, Congress has never directly spoken to the question at issue and, if anything, has indirectly approved of it. In one form or another, 8 C.F.R. § 274a.12(c)(14) has been on the books since 1981. It follows from a grant of discretion to the Secretary to establish work authorizations for aliens, see 8 U.S.C. § 1324a(h)(3), and it predates the INA provisions the majority cites. See Perales v. Casillas, 903 F.2d 1043, 1048 (5th Cir. 1990) (noting that up to that point there was “nothing in the [INA] [that] expressly provid[ed] for the grant of employment authorization”). Had Congress wanted to negate this regulation, it presumably would have done so expressly, but by specifying the categories of aliens eligible for work authorization, Congress signaled its implicit approval of this longstanding regulation. Furthermore, no court, until today, has ever cast doubt on this regulation. Our own circuit in Perales found no problems with 8 C.F.R. § 274a.12(c)(14) in concluding that a challenge to
61 The majority’s ruling that class-wide deferred action violates the INA is potentially devastating. The definition of a class is expansive: “A group of people, things, qualities, or activities that have common characteristics or attributes.” Class, Black’s Law Dictionary (10th ed. 2014). I suspect that DHS frequently grants deferred action to two or more aliens with common characteristics.
120

Case: 15-40238 Document: 00513264640 Page: 121 Date Filed: 11/09/2015
No. 15-40238 employment authorization denials was non-justiciable. Id.62 The majority’s snapshot of Supreme Court opinions discussing the aims of the immigration laws does not speak to this issue and is misleading. Those opinions noted that the immigration laws regarding employment authorization were also concerned with creating an “extensive ‘employment verification system’ . . . designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) (citing 8 U.S.C. § 1324a) (emphasis added). DAPA and 8 C.F.R. § 274a.12(c)(14) further both these aims and also promote the “[s]elf-sufficiency” of aliens by giving them work authorization and making them less reliant on public benefits. See 8 U.S.C. § 1601(1) (“Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”).
The majority next holds that DAPA, fails Chevron step one because the INA’s broad grants of authority “cannot reasonably be construed as assigning [DHS] ‘decisions of vast economic and political significance,’ such as DAPA.” Majority Op. at 61–62 (footnote omitted). To the contrary, immigration decisions often have substantial economic and political significance. In Arizona, the Court noted that “discretionary decisions” made in the enforcement of immigration law “involve policy choices that bear on this Nation’s international relations.” 132 S. Ct. at 2499. “Removal decisions,” it has been observed, “‘may implicate our relations with foreign powers’ and require consideration of ‘changing political and economic circumstances.’” Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 348 (2005) (quoting
62 If 8 C.F.R. § 274a.12(c)(14) were contrary to the INA, then presumably the challenge in Perales would have been justiciable since an agency’s “abdication of its statutory responsibilities” is sufficient to overcome the presumption that agency inaction is unreviewable. Heckler, 470 U.S. at 833 n.4.
121

Case: 15-40238 Document: 00513264640 Page: 122 Date Filed: 11/09/2015
No. 15-40238 Matthews v. Diaz, 426 U.S. 67, 81 (1976)). And deferred action—whether ad hoc or through DAPA—is not an effort by DHS to “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001), but rather “[a] principal feature of the removal system,” Arizona, 132 S. Ct. at 2499.
The majority’s reliance on King v. Burwell, 135 S. Ct. 2480 (2015), for its conclusion is misplaced. The Court in King held that it was unlikely Congress delegated a key reform of the ACA to the IRS—an agency not charged with implementing the ACA and with “no expertise in crafting health insurance policy.” Id. at 2489. By contrast, DHS is tasked with enforcement of the immigration laws, see, e.g., 6 U.S.C. § 202, and its substantial expertise in this area has been noted time and time again. See, e.g., Arizona, 132 S. Ct. at 2506 (“[T]he removal process is entrusted to the discretion of the Federal Government.”).
Lastly, the majority concludes that “[e]ven with ‘special deference’ to the Secretary,” DAPA is an unreasonable interpretation of the INA. Majority Op. at 62–63 (footnote omitted). Reasonableness at step two of Chevron requires only a “minimum level of reasonability,” Tex. Office of Pub. Util. Counsel, 183 F.3d at 420, and will be found so long as an agency’s interpretation is “not patently inconsistent with the statutory scheme,” Am. Airlines, Inc. v. Dep't of Transp., 202 F.3d 788, 813 (5th Cir. 2000) (citation omitted). It is hard to see how DAPA is unreasonable on the record before us. DAPA does not negate or conflict with any provision of the INA. See Whitman, 531 U.S. at 484. DHS has repeatedly asserted its right to engage in deferred action. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000) (concluding an agency was not entitled to deference where it previously disavowed its enforcement authority). And DAPA appears to further DHS’s
122

Case: 15-40238 Document: 00513264640 Page: 123 Date Filed: 11/09/2015
No. 15-40238 mission of “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).
Indeed, if DAPA were unreasonable under the INA, then it follows that ad hoc grants of deferred action are unreasonable as well—something the majority declines to reach. See Majority Op. at 66 n.202. But, as previously mentioned, there is no difference between the two other than scale, and ad hoc deferred action has been repeatedly acknowledged by Congress and the courts as a key feature of immigration enforcement. See Reno, 525 U.S. at 483–84. After all, agencies are “far better equipped than the courts to deal with the many variables involved in the proper ordering of [their] priorities,” Heckler, 470 U.S. at 831–32, and “[t]he responsibilities for assessing the wisdom of such policy choices . . . are not judicial ones,” Chevron, 467 U.S. at 866. From the limited record before us, I would conclude that the DAPA Memorandum is not a substantive APA violation.
VI. Conclusion There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left DHS with difficult prioritization decisions. But those decisions, which are embodied in the DAPA Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable. Furthermore, the evidence in the record (the importance of which should not be overlooked) makes clear that the injunction cannot stand. A determination of “pretext” on the part of DHS must have a basis in concrete evidence. Of course, as appellate judges, we may not substitute our own view of the facts for that of the district court. But we must also embrace our duty to correct clear errors of fact—that is, to ensure that factual determinations are based not on conjecture, intuition, or preconception, but on evidence. Based
123

Case: 15-40238 Document: 00513264640 Page: 124 Date Filed: 11/09/2015 No. 15-40238
on the record as it currently stands, the district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny. Today’s opinion preserves this error and, by reaching the substantive APA claim, propounds its own. I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay.
I dissent.
124

Case: 15-40238

Document: 00513264640

Page: 125

Date Filed: 11/09/2015
APPENDIX A
Secretary U.S. Department of Homeland Security Washington, DC 20528

Homeland Security

November 20, 2014

MEMORANDUM FOR: Le6n Rodriguez Director U.S. Citizenship and Immigration Services

Thomas S. Winkowski Acting Director U.S. Immigration and Customs Enforcement

R. Gil Kerlikowske Commissioner U.S. Customs and Bor

FROM:

Secretary

SUBJECT:

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 R es id ents

This memorandum is intended to reflect new policies for the use of deferred action. By memorandum dated June 15, 2012, Secretary Napolitano issued guidance entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children. The following supplements and amends that guidance.

The Department of Homeland Security (DHS) and its immigration components are responsible for enforcing the Nation' s immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. Secretary Napolitano noted two years ago, when she issued her prosecutorial discretion guidance regarding children, that "[o]ur Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case."

1
www.dhs.gov

Case: 15-40238 Document: 00513264640 Page: 126 Date Filed: 11/09/2015
Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period oftime. 1 A form of administrative relief similar to deferred action, known then as "indefinite voluntary departure," was originally authorized by the Reagan and Bush Administrations to defer the deportations of an estimated 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reform and Control Act of 1986. Known as the "Family Fairness" program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity.
Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department's overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency's discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes.2
Historically, deferred action has been used on behalf of particular individuals, and on a case-by-case basis, for classes of unlawfully present individuals, such as the spouses and minor children of certain legalized immigrants, widows of U.S. citizens, or victims of trafficking and domestic violence.3 Most recently, beginning in 2012, Secretary Napolitano issued guidance for case-by-case deferred action with respect to those who came to the United States as children, commonly referred to as "DACA."
1 Deferred action, in one form or another, dates back to at least the 1960s. "Deferred action" per se dates back at least as far as 1975. See, Immigration and Naturalization Service, Operation Instructions § 103.l (a)(l)(ii) (1975). 2 INA§ 204(a)(l)(D)(i)(II), (IV) (Violence Against Women Act (VA WA) self-petitioners not in removal proceedings are "eligible for deferred action and employment authorization "); INA§ 237(d)(2) (DHS may grant stay ofremoval to applicants for Tor U visas but that denial of a stay request "shall not preclude the alien from applying for . . . deferred action"); REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 109-13 (requiring states to examine documentary evidence oflawfal status for driver 's license eligibility purposes, including "approved deferred action status"); National Defense Authorization Act for Fiscal Year 2004 § 1703(c) (d) Pub. L. 108-136 (spouse, parent or child ofcertain US. citizen who died as a result ofhonorable service may self-petition for permanent residence and "shall be eligible for deferred action, advance parole, and work authorization "). 3 In August 2001 , the former-Immigration and Naturalization Service issued guidance providing deferred action to individuals who were eligible for the recently created U and T visas. Two years later, USCJS issued subsequent guidance, instructing its officers to use existing mechanisms like deferred action for certain U visa applicants facing potential removal. More recently, in June 2009, USCIS issued a memorandum providing deferred action to certain surviving spouses of deceased U.S. citizens and their children while Congress considered legislation to allow these individuals to qualify for permanent residence status.
2 


Case: 15-40238 Document: 00513264640 Page: 127 Date Filed: 11/09/2015
By this memorandum, I am now expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities, as set forth in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum.
The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources-which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.
A. Expanding DACA
DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 20 12 provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.
In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows:
Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those who were born before June 15, 1981 ). That restriction will no longer apply.
Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. This change shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014 . Beginning on that date, USCIS should issue all work
3 


Case: 15-40238 Document: 00513264640 Page: 128 Date Filed: 11/09/2015
authorization documents valid for three years, including to those individuals who have applied and are awaiting two-year work authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend those two-year renewals already issued to three years.
Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010.
USCIS should begin accepting applications under the new criteria from applicants no later than ninety (90) days from the date of this announcement.
B. Expanding Deferred Action
I hereby direct 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 those individuals who:
• have, on the date of this memorandum, a son or daughter who is a U.S. 
 citizen or lawful permanent resident; 

• have continuously resided in the United States since before 
 January 1, 2010; 

• are physically present in the United States on the date of this 
 memorandum, and at the time of making a request for consideration of 
 deferred action with USCIS; 

• have no lawful status on the date of this memorandum;
• are not an enforcement priority as reflected in the November 20, 2014 
 Policies for the Apprehension, Detention and Removal of 
 Undocumented Immigrants Memorandum; and 

• present no other factors that, in the exercise of discretion, makes the 
 grant of deferred action inappropriate. 

Applicants must file the requisite applications for deferred action pursuant to the new criteria described above. Applicants must also submit biometrics for USCIS to conduct background checks similar to the background check that is required for DACA applicants. Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of
4 


Case: 15-40238 Document: 00513264640 Page: 129 Date Filed: 11/09/2015
the Immigration and Nationality Act.4 Deferred action granted pursuant to the program shall be for a period of three years. Applicants will pay the work authorization and biometrics fees, which currently amount to $465. There will be no fee waivers and, like DACA, very limited fee exemptions.
USCIS should begin accepting applications from eligible applicants no later than one hundred and eighty (180) days after the date of this announcement. As with DACA, the above criteria are to be considered for all individuals encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or USCIS, whether or not the individual is already in removal proceedings or subject to a final order of removal. Specifically:
• ICE and CBP are instructed to immediately begin identifying persons in their custody, as well as newly encountered individuals, who meet the above criteria and may thus be eligible for deferred action to prevent the further expenditure of enforcement resources with regard to these individuals.
• ICE is further instructed to review pending removal cases, and seek administrative closure or termination of the cases of individuals identified who meet the above criteria, and to refer such individuals to USCIS for case-by-case determinations. ICE should also establish a process to allow individuals in removal proceedings to identify themselves as candidates for deferred action.
• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear. The USCIS process shall also be available to individuals subject to final orders of removal who otherwise meet the above criteria.
Under any of the proposals outlined above, immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.
This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the Executive Branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.
4 INA § 274A(h)(3), 8 U.S.C. § 1324a(h)(3) ("As used in this section, the term ' unauthorized alien' means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (8) authorized to be so employed by this chapter or by the[Secretary] ."); 8 C.F.R. § 274a. J2 (regulations establishing classes of aliens eligible for work authorization).
5 


Case: 15-40238

Document: 00513264640

Page: 130

Date Filed: 11/09/2015
APPENDIX B
Secretary U.S. Department of Homeland Security Washington, DC 20528

Homeland Security

November 20, 2014

MEMORANDUM FOR: Thomas S.Winkowski Acting Director U.S. Immigration and Customs Enforcement

R. Gil Kerlikowske Commissioner U.S. Customs and Border Protection

Leon Rodriguez Director U.S. Citizenship and Immigration Services

Alan D. Bersin Acting Assistant Secretary for Policy

FROM:

Jeh Charles Johnson Secretary

SUBJECT:

Policies for the Apprehension, Deten tion and Removal of Undocumented Immigrants

This memorandum reflects new policies for the apprehension, detention, and removal of aliens in this country. This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). This memorandum should inform enforcement and removal activity, detention decisions, budget requests and execution, and strategic planning.

In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety, and border security. The intent of this new policy is to provide clearer and more effective guidance in the pursu it of those priorities. To promote public confidence in our enforcement activities, I am also directing herein greater transparenc y in the annual reporting of our removal statistics, to include data that tracks the priorities outlined below.

www.dhs..gov

Case: 15-40238 Document: 00513264640 Page: 131 Date Filed: 11/09/2015
The Department of Homeland Security (DHS) and its immigration componentsCBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion,DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel , detention space, and removal assets accordingly.
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question , and arrest; whom to detain or release; whether to settle, dismiss, appeal , or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discretion and pursue these priorities at all stages of the enforcement process-from the earliest investigative stage to enforcing final orders of removal-subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.
Except as noted below, the following memoranda are hereby rescinded and superseded: John Morton, Civil Immigration Enforcem ent: Priorities for the Apprehension , Detention , and Removal of Aliens, March 2, 20 11; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension , Detention and Removal of Aliens , June 17, 20 11; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009.
2

Case: 15-40238 Document: 00513264640 Page: 132 Date Filed: 11/09/2015
A. Civil Immigration Enforcement Priorities
The following shall constitute the Department's civil immigration enforcement priorities:
Priority 1 (threats to national security, border security, and public safety)
Aliens described in this priority represent the highest priority to which enforcement resources should be directed:
(a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
(b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
(c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
(d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and
(e) aliens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.
The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, 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.
Priority 2 (misdemeanants and new immigration violators)
Aliens described in this priority , who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:
(a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element
3

Case: 15-40238 Document: 00513264640 Page: 133 Date Filed: 11/09/2015
was the alien's immigration status, provided the offenses arise out of three separate incidents;
(b) aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence ;1 sexual abuse or exploitation; burglary ; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
(c) aliens apprehended anywhere in the United States after unlawfu lly entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
(d) aliens who, in thejudgmen t of an ICE Field Office Director , USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
These aliens should be removed unless they qualify for asylum or anoth er form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users 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.
Priority 3 (other immigration violations)
Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 20 14. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehen sion and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, 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.
1 ln eval uating whether the offense is a significant misdemeanor involving ..domestic violence," careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17,201 1. 2 For present purposes,"final order"is defined as it is in 8 C.F.R. § 124l.1.
4

Case: 15-40238 Document: 00513264640 Page: 134 Date Filed: 11/09/2015
B. Apprehension, Deten tion , and Removal of Other Aliens Unlawfully in the United States
Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein , prov ided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.
C. Detention
As a general rule, DHS detention resources should be used to support the enforcement pr iorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resource s on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly , pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE F ield Office Director. If an alien falls within the above categories and is subject to mand atory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.
D. Exercising Prosecutorial Discretion
Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority l must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unl ess, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, 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. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operation s, 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 . Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the
5

Case: 15-40238 Document: 00513264640 Page: 135 Date Filed: 11/09/2015
integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.
In making such judgment s, DHS personnel should consider factors such as: 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 humanit arian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
E. Implementation
The revised guidance shall be effective on January 5, 201 5. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum.
F. Data
By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended,removed, returned, or otherwise repatriat ed by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually.
G. No Private Right Statement
These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or ben efit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.
6

 
 Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 1 of 15

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.

§

CIVIL NO. B-14-254

MEMORANDUM OPINION AND ORDER
On February 23, 2015, the Defendants, including the United States and various officials of the Department of Homeland Security (“DHS”) (hereinafter the “Government” or “Defendants”), filed an Emergency Expedited Motion to Stay this Court’s February 16, 2015 Order of Temporary Injunction [Doc. No. 150] concerning the DAPA1 program (and the 2014 amendments to the DACA2 program) established by the November 20, 2014 Memorandum issued by DHS Secretary Jeh Johnson (hereinafter the “2014 DHS Directive” or “Directive”). The Government supplemented its motion on March 12, 2015 [Doc. No. 195]. Just prior to filing its Motion to Stay, the Government filed a Notice of Appeal to the Fifth Circuit Court of Appeals [Doc. No. 149]. The Plaintiff States3 (hereinafter the “Plaintiffs” or “States”) responded to the Government’s Motion to Stay on March 3, 2015 [Doc. No. 175].
The States have also filed a Motion for Early Discovery [Doc. No. 183]. In their discovery motion, Plaintiffs complain that the Government misled them and the Court by making

1 “DAPA” is the acronym for Deferred Action for Parents of Americans and Lawful Permanent Residents.
2 “DACA” is the acronym for Deferred Action for Childhood Arrivals.
3 The Plaintiffs include: the State of Texas; State of Alabama; State of Arizona; State of Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of Nevada; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota; State of Tennessee; State of Utah; State of West Virginia; State of Wisconsin; Attorney General Bill Schuette, People of Michigan; Governor Phil Bryant, State of Mississippi; Governor Paul R. LePage, State of Maine; Governor Patrick L. McCrory, State of North Carolina; and Governor C. L. “Butch” Otter, State of Idaho.

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 2 of 15
certain representations concerning when and how parts of the 2014 DHS Directive would be implemented. The Court finds that the Government’s multiple statements on this subject were indeed misleading, as detailed in the Order filed simultaneously with this Order. It also finds that the remedial measure taken by counsel for the Government through the filing of an “advisory” on March 3, 2015, was neither prompt nor fully candid. Despite this, a sanction as severe as striking the Government’s pleadings, while perhaps merited based upon the Government’s misconduct, would not at this juncture be in the interests of justice or in the best interest of this country. The issues contested in this case are of national importance, and the outcome will affect millions of individuals. The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit. Consequently, while this Court may impose some other sanction in response to the misrepresentations made to the Court, it will not strike the Government’s pleadings.4 The Court now turns to the merits of the Government’s Motion to Stay―the focus of this Order.
In its Motion, the Government has essentially asked this Court to reconsider its decision to issue a preliminary injunction. The Court has reviewed the Government’s Motion and Supplemental Motion, as well as the States’ response. The Court also held a hearing on March 19, 2015, at which these issues were discussed. Having considered the positions of all parties and the applicable law, this Court remains convinced that its original findings and rulings in the Order of Temporary Injunction and Memorandum Opinion and Order issued on February 16,
4 While it remains to be seen what substantive effect, if any, this conduct has had on this case, it has clearly delayed the Court from being able to rule on the merits of the Motion to Stay. If it is later proven that the Government’s lack of candor substantively affected this Court’s ruling on the temporary injunction (or the current appeal thereof), or that it will somehow affect the eventual resolution of the merits of this case, or if the Government either directly or indirectly violates this Court’s injunction, the Court will revisit the propriety of striking the Government’s pleadings.
2

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 3 of 15
2015 (hereinafter referred to jointly as the “February Opinion”) were correct. In fact, for many of the reasons stated below, the decisions reached previously by this Court have been reinforced.
I. Standing The Government reasserts its claim that the States do not have standing. For the most
part, it presents the same arguments that this Court has already considered and addressed at length. Consequently, the Court will not repeat its analysis on those points. Instead, it will concentrate on aspects that are either new or that were not necessarily emphasized during the prior hearing.
Specifically, the Government argues that because this Court’s findings on standing focused on Texas’ injury, operation of the 2014 DHS Directive should not be enjoined as to other states, including the other Plaintiff States, because no specific findings were made as to their injuries. For the same reason, the Government also objects to the breadth of the injunction—an argument the Court will address below.5
As confirmed by the Supreme Court’s opinion in Massachusetts v. EPA, 549 U.S. 497 (2007), the Court need only find standing for one plaintiff in order for it to conclude that it has jurisdiction to hear the case. In Massachusetts v. EPA, multiple states (including California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) and other entities filed suit to compel action by the Environmental Protection Agency, alleging that the federal agency was failing to enforce the law and had “abdicated its responsibility under the Clean Air Act” to regulate certain emissions. Id.
5 As an initial matter, the Court notes that, given the emergent nature of this temporary injunction, the Court, as well as counsel for both sides, operated on a short schedule—a timeframe in essence set by the Government based upon its projected dates for implementation of the 2014 DHS Directive. At the preliminary injunction stage of the proceedings, there is no requirement for each and every plaintiff to produce sufficient evidence of any injury allegedly caused by Defendants’ actions, as long as at least one plaintiff has standing. See infra note 10. All of the Plaintiffs may very well have been able to show standing individually based upon a direct damage or abdication claim if they had been given time to make such a presentation.
3

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 4 of 15
at 505. The Government in that case objected to the plaintiffs’ standing to bring the suit, just as the Government has in the present case.
The Supreme Court, noting its obligation to address standing before proceeding to the merits, stated in pertinent part:
In response, EPA, supported by 10 intervening States and six trade associations, correctly argued that we may not address those two questions [dealing with the merits] unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution. Id. (emphasis added). Ultimately, the Supreme Court found that it had jurisdiction by virtue of a single state, Massachusetts, just as this Court found that it has jurisdiction by virtue of a single state, Texas. Writing for the majority, Justice Stevens concluded: Only one of the petitioners needs to have standing to permit us to consider the petition for review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52, n.2, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Id. at 518. Thus, the Government has already fought this battle once in the Supreme Court and lost. Following the dictates of the Supreme Court in Massachusetts, there is at least one plaintiff in this case that has established it will be directly damaged by the 2014 DHS Directive and that it has standing. This Court therefore has jurisdiction to hear the case. Consequently, the Court denies the Government’s requested relief based upon that ground. Second, with regard to the February Opinion’s discussion of standing by virtue of abdication,6 recent actions taken by the Government confirm that it has abdicated enforcement of the applicable portions of the Immigration and Naturalization Act (“INA”). During a “Town Hall” meeting on immigration, held after this Court granted the preliminary injunction, the
6 The Court notes that because it found Texas would suffer direct damages, abdication was not the only basis upon which standing was found.
4

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 5 of 15
President discussed the recent changes implemented at his direction. In response to a question
from an individual upset over a deportation action, the President said:
THE PRESIDENT: I would have to know the details of what exactly happened. But what I can tell you is that until we pass a law through Congress, the executive actions that we’ve taken are not going to be permanent; they’re temporary.
We are now implementing a new prioritization. There are going to be some jurisdictions, and there may be individual ICE officials or Border Patrol who aren’t paying attention to our new directives. But they’re going to be answerable to the head of the Department of Homeland Security, because he’s been very clear about what our priorities should be. And I’ve been very clear about what our priorities should be.
* * * MR. DIAZ-BALART [the moderator]: But what are the consequences? Because how do you ensure that ICE agents or Border Patrol won’t be deporting people like this? I mean, what are the consequences?
THE PRESIDENT: José, look, the bottom line is, is that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it. So I can’t speak to a specific problem. What I can talk about is what’s true in the government, generally.
In the U.S. military, when you get an order, you’re expected to follow it. It doesn’t mean that everybody follows the order. If they don’t, they’ve got a problem. And the same is going to be true with respect to the policies that we’re putting forward.
Press Release, Remarks by the President in Immigration Town Hall―Miami, FL, The White
House Office of the Press Secretary (Feb. 25, 2015), available at
https://www.whitehouse.gov/the-press-office/2015/02/25/remarks-president-immigration-town-
hall-miami-fl (emphasis added).7
The President’s message, specifically to those law enforcement officials employed within
the Executive Branch, and more generally to the nation, is clear. First, immigration laws (i.e. the
7 Counsel for the Government assured the Court that it could trust and rely upon the President’s statements. [Hr’g Tr. 22, Mar. 19, 2015].
5

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 6 of 15
INA), which those officials are charged with enforcing, are not to be enforced when those laws
conflict with the 2014 DHS Directive. Second, the criteria set out in that Directive are
mandatory. Third, if DHS officials (or other Executive Branch officials) fail to follow the
specified criteria, there will be consequences for this failure―just as there would be
consequences if they were in the military and disobeyed an order from the Commander in Chief.
In summary, the Chief Executive has ordered that the laws requiring removal of illegal
immigrants that conflict with the 2014 DHS Directive are not to be enforced, and that anyone
who attempts to do so will be punished.
This is not merely ineffective enforcement. This is total non-enforcement, applicable to
millions of people. If one limits the directive just to putative DAPA recipients, this is an order
by the President to not enforce the law as to approximately 4.5 million people—the rough
equivalent of the population of the State of Louisiana, and a population larger than the
populations of 25 of the 50 states.8 In fact, thirteen of the 26 Plaintiff States have populations
that are less than the number of illegal immigrants estimated to receive the benefits
accompanying “legal presence” under the 2014 DHS Directive.9
8 U.S. Census Bureau, Population Distribution & Change: 2000 to 2010 (2010 Census Briefs) (issued March 2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf (hereinafter “U.S. Census Bureau”). The State of Louisiana is the 25th most populous state, with a population of 4,492,076 according to the 2010 U.S. Census. Id. 9 Further, while DAPA applies to an estimated 4.3 to 5 million illegal immigrants, the White House has also announced that, “the way the change in the law works is that we’re reprioritizing how we enforce our immigration laws generally. So not everybody qualifies for being able to sign up and register, but the change in priorities applies to everybody.” Press Release, Remarks by the President on Immigration―Chicago, IL, The White House Office of the Press Secretary (Nov. 25, 2014) (emphasis added). Therefore, according to the President, the law requiring removal is also not going to be enforced (subject to limited exceptions) against any of the remaining estimated 6‒7 million illegal immigrants who may apply under the 2014 DHS Directive, but are rejected. As such, the President’s order not to enforce the INA could potentially affect a total population greater than the populations of 43 states (depending on which population study one uses to estimate the illegal immigrant population and how many immigrants apply for DAPA). See U.S. Census Bureau.
Support for this conclusion is found not only in the President’s remarks, but also in the manner in which DACA has been implemented. The evidence presented led this Court in its February Opinion to conclude that DAPA will be enforced like DACA. Moreover, attorneys for both sides have recommended that the Court use the DACA
6

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 7 of 15
The President’s statements have obvious significance to this case. Both the Fifth Circuit and the United States Supreme Court have stated that a plaintiff, including a state, has standing to pursue an action when the Government is abdicating its statutory duties, and that such abdication is judicially reviewable. See Heckler v. Chaney, 470 U.S. 821, 833 (1985) (citing Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc)); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (noting that a conscious decision to abdicate immigration enforcement responsibilities would be reviewable).10 The facts underlying this case indisputably represent abdication. This Court so found. The President’s recent statements serve as confirmation for that finding.
II. Application Of The Administrative Procedure Act The Government also asks this Court to review its ruling concerning the applicability of
the Administrative Procedure Act (hereinafter the “APA”). Here, too, the President’s explanation of the 2014 DHS Directive is important. First, it corroborates the Court’s finding that the employees charged with implementing this new program are without discretion. The criteria under DAPA (and the DACA amendments) pursuant to the Directive are fixed and are binding on DHS employees. Those employees who attempt to exercise discretion by varying from the Directive and the criteria set forth therein will suffer consequences, according to the President.
experience as a guideline. [See, e.g., P.I. Hr’g Tr. 90‒91, 107, Jan. 15, 2015; Doc. No. 38 at 30 (Def. Resp. Brief)]. In fact, counsel for the Government specifically referred this Court to the DHS’ publication of “Frequently Asked [DACA] Questions” to evaluate how DAPA will be implemented. [P.I. Hr’g Tr. 107]. That publication indicates that pursuant to DACA, even non-qualifying illegal immigrants are not deported. See Frequently Asked Questions, Consideration of Deferred Action for Childhood Arrivals Process, Official Website of the Dept. of Homeland Security, http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequentlyasked-questions#afterUSCISmakesadecision (last reviewed/updated Mar. 10, 2015). Using this publication as an indication of how DAPA will work, as was suggested by counsel for the Government, one cannot avoid drawing the conclusion that those who are rejected for DAPA will likewise not be deported. 10 This concept alone arguably establishes standing for all of the States, not just Texas. The Court need not explore that argument though because, as stated above, only one State needs standing for the Court to hear the case.
7

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 8 of 15
The President’s statement also confirms this Court’s finding that the 2014 DHS Directive is not a “general statement of policy,” or mere “general guidance” to DHS employees, but is, rather, a mandatory directive that is easily characterized as a substantive rule under the APA. As this Court has noted, and all parties concede, a “legislative” or “substantive” rule is one that requires vetting under the process established by the APA. The following are the hallmarks of a substantive rule―any one of which would alone be sufficient to make a rule substantive―as summarized from the pertinent case law:
1. A rule that narrowly constricts the discretion of agency officials is a substantive rule (as opposed to a general statement of policy that does not establish a binding norm and “genuinely” leaves officials free to exercise discretion).11
If there were any doubts that the 2014 DHS Directive is correctly characterized as “substantive,” the President’s warning to DHS employees of adverse consequences for failing to follow the Directive should clearly extinguish those. The criteria under the 2014 DHS Directive unquestionably “narrowly constrict[] the discretion of agency officials by largely determining the issue addressed.” Shalala, 56 F.3d at 595 n.20. Those with boots on the ground are bound to follow the Directive’s criteria, and the President takes it even further by positively stating that those who do not follow the Directive will suffer consequences. Other than the Directive’s facial claim that it permits case-by-case determinations (which the Court has already found disingenuous and contrary to what was occurring in practice), the “challenged policy [does not] leave[] the agency free to exercise its discretion to follow or not follow that general policy in an individual case”; instead, “the policy so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule’s criteria.” Id. at 596; see also
11 See, e.g., Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987); Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 n.20, 600‒01 (5th Cir. 1995).
8

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 9 of 15
Brown Express, Inc. v. United States, 607 F.2d 695, 700 (5th Cir. 1979) (“The label that the particular agency puts upon its given exercise of administrative power is not . . . conclusive; rather, it is what the agency does in fact.”) (citations omitted). The Court previously found this factually, and the President’s statements reinforce both the Court’s factual findings and legal conclusions.
2. A rule is substantive/legislative if it adopts a new position inconsistent with existing law or otherwise effects a substantive change in existing law or policy.12
If there were any claim that the 2014 DHS Directive does not adopt a new position inconsistent with the INA, the President’s comments also lay that argument to rest. Instead of removing individuals who are violating the INA, the new program rewards them with legal presence and a whole host of benefits. Yet, while the law-breaker is rewarded, any officer or agent who attempts to enforce the law as enacted will be made to suffer the consequences. This is a sea-change under anyone’s definition: the law-breaker receives a myriad of benefits and the law enforcement officer suffers adverse ramifications.
The 2014 DHS Directive is both contrary to existing immigration legislation and an unprecedented executive action by even the agency’s own account. [See Doc. No. 38, Def. Ex. 2 at 30 (the Executive’s Office of Legal Counsel conceded that the program was unprecedented in terms of size)]. The President said as much when he announced to the nation that he “took an action to change the law.” Press Release, Remarks by the President on Immigration―Chicago, IL, The White House Office of the Press Secretary (Nov. 25, 2014).
12 See Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014).
9

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 10 of 15
3. Agency actions that confer benefits not otherwise provided for in existing law are “legislative.”13
This Court has previously described in detail the benefits, in addition to three years of
renewable legal presence, that the DAPA program awards its recipients. There is no need to
repeat those here. Nevertheless, the Court notes that in the weeks surrounding this Court’s
February Opinion, the IRS Commissioner confirmed under oath that DAPA recipients would be
eligible for tax benefits. Recent Congressional testimony confirms that DAPA recipients would
additionally be awarded Social Security benefits.14 To give removable immigrants these benefits
is certainly a new policy, which, at the very least, should be afforded notice and comment under
the APA. See, e.g., Am. Mining Congress, 995 F.2d at 1112 (providing as one factor, which may
alone make a rule substantive, “whether in the absence of the rule there would not be an adequate
legislative basis for . . . agency action to confer benefits”). The Government has acknowledged
that its strategy with DAPA is to provide certain benefits as an incentive for individuals to apply
for DAPA. [Hr’g Tr. 30, Mar. 19, 2015]. It also confirmed, through counsel, that offering these
incentives is not an act of prosecutorial discretion: “I think an incentive for this pro - - the reason
why deferred action in the department’s judgment works in a way that’s different than the
13 See Scenic America, Inc. v. U.S. Dept. of Transp., ___ F. Supp. 3d ___, 2014 WL2803084, at *5 (D.D.C. June 20, 2014); Am. Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 1110, 1112 (D.C. Cir. 1993). 14 Again, awarding income tax credits to illegal immigrants is not only a tangible benefit, but it is also a substantive change in the law. The Plaintiff States had argued that DAPA recipients would receive Social Security benefits as well as Social Security cards (and no one suggested that the States were incorrect). However, prior to its February Opinion, this Court was not provided with cogent evidence supporting that assertion. After the Court’s February Opinion, experts testified before Congress that DAPA recipients will receive both tax and Social Security benefits. See The Fiscal Costs of the President’s Executive Actions on Immigration, Hearing Before the H. Comm. on Oversight & Gov’t Reform, 113th Cong. (Mar. 17, 2015) (statements of Robert Rector, Senior Research Fellow, the Heritage Foundation; Eileen J. O’Connor, Esq., Partner, Pillsbury Winthrop Shaw Pittman LLP, previous Assistant Attorney Gen., Tax Div. of DOJ; Steven A. Camarota, PhD, Director of Research, Center for Immigration Studies). One expert’s testimony included the opinion that the lifetime costs of Social Security and Medicare benefits to DAPA recipients are likely to exceed one trillion dollars. See id. (statement of Robert Rector). This Court does not have a record before it by which to quantify this benefit or analyze such testimony, but, if true, whether it is one dollar or a trillion dollars, it represents an award of a benefit heretofore contrary to law; thus, it triggers the need for APA compliance.
10

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 11 of 15
prosecutorial discretion is it does provide an incentive for people to come out and identify themselves.” [Id. (emphasis added)].
Any one of the above-discussed three traits of a substantive rule would independently subject the 2014 DHS Directive to the mandatory rulemaking procedures of the APA. In this case, the Directive qualifies under all three.
III. Breadth Of The Injunction The Government additionally argues that because this Court found standing as to Texas
and omitted specific findings as to injuries suffered by other states, the injunction should only apply to Texas.15 This argument is contrary to both the dictates of the Constitution and the very arguments that the Government has recently made before other courts. The Constitution provides in Article I, Section 8, that Congress shall have the power:
To establish an uniform Rule of Naturalization and uniform laws on the subject of Bankruptcies throughout the United States. U.S. Const. art. I, § 8, cl. 4 (emphasis added). Obviously, the intent of the framers was to place in the bailiwick of Congress the power to establish immigration laws and the obligation to make such laws uniform. The Government argued this very point to the United States Supreme Court in Arizona v. United States, 132 S. Ct. 2492 (2012). There, it alleged that Arizona’s laws affecting illegal immigrants should be preempted because they disrupted the “comprehensive” federal scheme. The Court sustained this view, writing: Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If § 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing]
15 The Government offers as support for this argument the claims presented by twelve other states and the District of Columbia who filed a brief as amici curiae suggesting that the 2014 DHS Directive could help their economies. While this assertion may be true, it does not affect the need for APA compliance.
11

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 12 of 15
the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 288–289, 106 S. Ct. 1057, 89 L. Ed. 2d 223 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U.S. 725, 730–731, 733, 69 S. Ct. 841, 93 L. Ed. 1005 (1949); see also In re Loney, 134 U.S. 372, 375–376, 10 S. Ct. 584, 33 L. Ed. 949 (1890) (States may not impose their own punishment for perjury in federal courts). Id. at 2502 (emphasis added). Most recently, in its amicus curiae brief in Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), the Government emphasized the “comprehensive federal statutory scheme for regulation of immigration and naturalization” established by the INA. [See United States’ Brief as Amicus Curiae in Opposition to Rehearing En Banc, Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), ECF No. 75.]. (This is the same statutory scheme that the DHS has ordered its employees not to enforce.) Despite these past arguments, the Government now suggests for the first time here that this Court should apply one immigration scheme to Texas and a different one to the rest of the states. This is tantamount to conceding that the Government’s arguments in 2012 to the Supreme Court in Arizona and in 2014 to the Ninth Circuit in Brewer were frivolous. Regardless, there is a lengthy history of precedent concerning the need for a uniform approach to immigration, and this Court sees no reason to depart from those cases. Further, if the Government violates the procedural dictates of the APA, that violation affects the entire nation, not just the one state that points out the violation. The Court therefore denies the request to limit its injunction to apply only to Texas.
12

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 13 of 15
IV. The Preliminary Injunction Will Not Inflict Irreparable Harm On The Government The States have objected to the Government’s additional affidavits, which were filed
after the issuance of the injunction. Regardless, this Court, with one exception, finds that these affidavits add little to the substantive arguments previously made. The exception is found in the affidavit of Gil Kerlikowske, the Commissioner of United States Customs and Border Protection (“CBP”), who articulates for the first time the DHS’ position as to how DAPA might aid the DHS in its mission to protect the border. He states that if a DAPA recipient is encountered by ICE or CBP agents to whom he or she can present documentation showing that he or she is a low-priority individual for removal, then those agents can simply “take no other action with regard to that individual.” [Doc. No. 150‒2 at 4]. Counsel for the Government reiterated this reasoning to the Court during the March 19, 2015 hearing.
Importantly, however, as counsel for the Government admitted in open court, the Government does not need DAPA to effectuate this goal. [See, e.g., Hr’g Tr. 29‒31, Mar. 19, 2015]. The DHS could conduct the same investigation and provide such documentation designating certain illegal immigrants as low-priority law enforcement targets without additionally awarding legal status and the other benefits previously described in detail. (In fact, the DHS has always had the ability to do this. This Court’s injunction does not affect that ability.) Counsel for the Government explained that there might be a better turnout for this effort, however, if the DHS provided incentives. [Id. at 30]. While the wisdom and legality of incentivizing illegal immigrants to remain in the country illegally may or may not be debated at trial, what this revelation makes abundantly clear is that the Government has a workable and legal alternative.16 The States have no such alternative. When balancing the potential harms to
16 Another reaffirmed conclusion drawn from the exchange between the Court and counsel for the Government at the most recent hearing is that the 2014 DHS Directive is a complete change of policy that requires, at the very least,
13

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 14 of 15
each side (as required under the preliminary injunction analysis), the scales of justice greatly favor the States.
Further, it is obvious that there is no pressing, emergent need for this program. If there had been such a need, the DHS could have implemented the program at any time in the last five or ten years, or even in the many decades preceding the 2014 DHS Directive. The Government has not shown any credible reason for why this Directive necessitates immediate implementation. V. Plaintiffs Have Irreparable Injuries That Cannot Be Cured With Monetary
Damages The last important issue addressed during the hearing on the Motion to Stay was the admission that money damages, if awarded, would in effect be the equivalent of having the Court order that the States (and their citizens) pay their own damages. While this Court in its February Opinion (and the parties no doubt in their briefings) assumed for injunction purposes that an award of money damages would not and could not make the States whole (if injunctive relief did not issue), this assumption was confirmed at the hearing by counsel for the Government. [Hr’g Tr. 26‒27, Mar. 19, 2015]. An award of money damages to the Plaintiffs would, at least in large part, be paid for by the Plaintiffs. Therefore, it is irrefutable that, even if one assumes that the States’ future harm was solely monetary,17 an injunction would still be necessary to prevent irreparable harm to the States.
compliance with the APA. Instead of removing certain aliens as required by existing law, the DHS has changed the law to incentivize all qualifying parents of citizens and legal permanent residents who are illegally in the United States to remain in the United States. The 2014 DHS Directive represents a new mandatory program, implemented in the face of the INA’s removal requirements, and must at least comply with the APA. 17 This Court found that there were both monetary and non-monetary damages directly due to the 2014 DHS Directive.
14

Case 1:14-cv-00254 Document 225 Filed in TXSD on 04/07/15 Page 15 of 15 VI. Conclusion
Having considered the Emergency Motion to Stay [Doc. No. 150], the briefing filed by both sides, and the argument of counsel, the Court hereby denies the Government’s Motion to Stay its February 16, 2015 Order of Temporary Injunction.
Signed this 7th day of April, 2015. ________________________________ Andrew S. Hanen United States District Judge
15

 
 Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 1 of 15

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.

§

CIVIL NO. B-14-254

ORDER
The Plaintiff States1 (hereinafter “Plaintiffs” or “States”) have filed an Opposed Motion for Early Discovery, alleging that certain misrepresentations were made by counsel for the United States and the various officials of the Department of Homeland Security (hereinafter “DHS”) who are defendants in this matter (hereinafter “Defendants” or the “Government”) [Doc. No. 183].2 The Government has filed its Opposition thereto [Doc. No. 207], and the States have filed a Reply [Doc. No. 209]. This Court held a hearing on the States’ Motion on March 19, 2015.
The States’ discovery motion stems from one of the most recent pleadings filed by the Government entitled “Defendants’ Advisory” (hereinafter “Advisory”), where, in pertinent part, the Government disclosed to the Court and the States the following:

1 The Plaintiffs include: the State of Texas; State of Alabama; State of Arizona; State of Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of Nevada; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota; State of Tennessee; State of Utah; State of West Virginia; State of Wisconsin; Attorney General Bill Schuette, People of Michigan; Governor Phil Bryant, State of Mississippi; Governor Paul R. LePage, State of Maine; Governor Patrick L. McCrory, State of North Carolina; and Governor C. L. “Butch” Otter, State of Idaho.
2 This Court previously denied a Motion for Leave of Court to File a Motion Seeking an Order to Show Cause [Doc. No. 160] based upon the same alleged misrepresentations. The Court denied the motion because it was filed by an amicus curiae and not by a party to this action. It is beyond the role of an amicus curiae to file substantive motions.
1

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 2 of 15
DEFENDANTS’ ADVISORY
Defendants file this Advisory to inform the Court of certain actions that U.S. Citizenship and Immigration Services (“USCIS”) took pursuant to the November 20, 2014 deferred action memorandum at issue in this case before the Court issued its preliminary injunction on February 16, 2015. Defendants do not believe that the preliminary injunction requires them to take any affirmative steps concerning those pre-injunction actions, but Defendants nevertheless wish to ensure that the Court is fully aware of those actions.
* * *
Out of an abundance of caution, however, Defendants wish to bring one issue to the Court’s attention. Specifically, between November 24, 2014 and the issuance of the Court’s Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year EADs for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of threeyear periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance. Deferred Action Guidance at 3; see also Neufeld Decl. ¶ 12 n.6 (“Pursuant to the November 20, 2014 memo issued by Secretary Johnson, as of November 24, 2014, all first-time DACA requests and requests for renewal now receive a three-year period of deferred action.”) [ECF No. 130‒11]. Defendants nevertheless recognize that their identification of February 18, 2015, as the date by which USCIS planned to accept requests for deferred action under the new and expanded DACA eligibility guidelines, and their identification of March 4, 2015, as the earliest date by which USCIS would make final decisions on such expanded DACA requests, may have led to confusion about when USCIS had begun providing three-year terms of deferred action to individuals already eligible for deferred action under 2012 DACA. See, e.g., Defs.’ Mot. for Extension of Time to File Resp. to Pls.’ Prelim. Inj. Reply Mem. at 3.
[Doc. No. 176 at 1, 3 (emphasis added)].3 The only way to interpret this Advisory is that, despite
the Government’s multiple assurances that no action would be taken prior to February 18, 2015,
in reality, between November 24, 2014, and February 16, 2015, the DHS granted approximately
3 “DACA” is the acronym for Deferred Action for Childhood Arrivals. “DAPA” is the acronym for Deferred Action for Parents of Americans and Lawful Permanent Residents. DAPA was created by the November 20, 2014 Memorandum issued by DHS Secretary Jeh Johnson (hereinafter the “2014 DHS Directive” or “Directive”). The 2014 amendments to DACA (or “revised DACA”) were also established in the 2014 DHS Directive.
2

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 3 of 15
100,000 applications4 pursuant to the revised DACA, the terms of which were established in the 2014 DHS Directive that is the subject of this suit. Indeed, the opening sentence of the Advisory notes that these actions were taken “pursuant to the November 20, 2014 . . . memorandum at issue in this case.” [Id. at 1]. Counsel for the Government confirmed this interpretation in open court.
This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths. That is why, whatever the motive for the Government’s actions in this matter, the Court is extremely troubled by the multiple representations made by the Government’s counsel―both in writing and orally―that no action would be taken pursuant to the 2014 DHS Directive until February 18, 2015. At the January 15, 2015 injunction hearing, the Court established through counsel for both sides that revised DACA as set forth in the amendments contained in the 2014 DHS Directive were indeed at issue in the case. [P.I. Hr’g Tr. 90‒92, Jan. 15, 2015]. Thereafter, the following exchange between the Court and counsel occurred in response to the Government’s request for time to file a sur-reply to Plaintiffs’ pleadings on the temporary injunction:
THE COURT: I’m a little concerned about how much time you asked for. If I give you until the 28th [of January 2015], can you work with that? MS. HARTNETT [Counsel for the Government]: Let me confer with my cocounsel, but I believe so. Your Honor, in part we’re just discussing about the need to respond to some of the voluminous factual material. If we could have until the 30th, that Friday, that would be preferable.
4 Counsel for the Government at the hearing on March 19, 2015, indicated that the actual number was 108,081. [Hr’g Tr. 25, Mar. 19, 2015]. This number, according to the Government, does not include the fifty-five applicants who counsel told the Court mistakenly received benefits pursuant to the revised DACA after February 16, 2015―the date the Order of Temporary Injunction was issued. Counsel for the Government voluntarily promised the Court that the applications granted after the February Injunction would be rescinded.
3

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 4 of 15

THE COURT: Okay. And then what is the -- I guess to preempt Mr. Oldham [Counsel for the States] when I ask him does he have any problem with that, he’s going to want to know what’s happening when?

MS. HARTNETT: And we set this -- we did file yesterday afternoon, Your Honor.

THE COURT: I can’t find it.

MS. HARTNETT: My apologies.

THE COURT: No, no. It’s here. I just buried it with all my paper.

MS. HARTNETT: In that document [Motion for Extension of Time, Doc. No. 90] we reiterated that no applications for the revised DACA -- this is not even DAPA -- revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.

THE COURT: And nothing is happening on DAPA?

MS. HARTNETT:

So the memorandum said that DAPA should be

implemented no sooner than mid May, so DACA is really the first -- the revised

DACA is the first deadline.

THE COURT: Okay. Then you can have until the 30th.

MS. HARTNETT: Okay. Thank you.

THE COURT: Wait, wait. You’re being flagged.

MS. HARTNETT: Oh, sorry. Just to be clear, I meant no later than. So the memorandum provides that by mid May, DAPA will be stood up.

THE COURT: Okay.

MS. HARTNETT: But the main -- the driver here would be –

THE COURT: But as far as you know, nothing is going to happen in the next three weeks?

MS. HARTNETT: No, Your Honor.

THE COURT: Okay. On either.

MS. HARTNETT: In terms of accepting applications or granting any up or down applications.

4

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 5 of 15
THE COURT: Okay.
MS. HARTNETT: For revised DACA, just to be totally clear.5
[P.I. Hr’g Tr. 133‒34 (emphasis added)].
Just prior to the exchange quoted above, Plaintiffs’ counsel made it clear during that
same hearing that the States were seeking to enjoin “the series of executive actions that were
taken on November 20, 2014,” which would obviously include the revision to DACA increasing
DACA’s term from two to three years, effective November 24, 2015 (as expressly provided for
in the 2014 DHS Directive). [P.I. Hr’g Tr. 91‒92]. Counsel for the Government also understood
this change to be a contested issue in the case, as evidenced by her statement during the
injunction hearing:
MS. HARTNETT: And just to be clear on that last point, . . . there’s one directive that the plaintiffs are challenging in the complaint, and that both is directed toward the DAPA program, but also is a expansion or revision of the DACA program. So to the extent that there’s a revision or expansion of the group that would be eligible to apply for that, we do understand the plaintiffs to be challenging that.6
THE COURT: The increase in years?
MR. OLDHAM: Your Honor –
5 Thus, the Government’s attorneys affirmatively assured the Court that applications for revised DACA (which includes the change from two-year-renewable terms to three-year terms) were not being accepted until mid-February (and action on those applications would not be taken until March). While counsel admitted that these extensions were done pursuant to the 2014 DHS Directive in the “Advisory” [see Doc. No. 176 at 1], the Government now seems to take the position that the three-year extensions given on and after November 24, 2014, to 2012 DACA recipients were actions somehow not taken pursuant to the revised DACA terms contained in the 2014 DHS Directive. This position is disingenuous. Nevertheless, even if it were true, the passage quoted here indicates a distinct lack of candor. If counsel knew three-year renewals pursuant to the 2014 DHS Directive were being granted (even if counsel viewed these actions as falling outside the umbrella of the irreparable harm claimed by the States), counsel should have disclosed these facts instead of telling the Court that nothing would happen prior to February 18, 2015.
6 Construing this last sentence in the light most favorable to the Government, to the extent counsel was somehow mentally subdividing the group of putative beneficiaries under the 2014 DACA revisions (and defining the “group” not involved in this case as recipients of 2012 DACA relief applying for renewals), counsel should have been forthright about this. At no time did counsel for either side exclude the 2012 DACA recipients who would be eligible for the three-year renewal under the 2014 DHS Directive from what was being challenged in this case. It is―and was―abundantly clear that the 2014 DHS Directive in full is at issue.
5

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 6 of 15
MS. HARTNETT: They ask to have you direct and enjoin, and that directive would allow the revisions to the DACA program that we described in our brief.7 [Id. at 91]. Clearly, if a “clarification” on any ongoing actions taken by the DHS was ever necessary, which of course it was, this was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels’ representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction. The specific document to which the Government’s attorney referred in her request for more time during the injunction hearing was the Motion for Extension of Time to File a Response to Plaintiffs’ Preliminary Injunction Reply [Doc. No. 90 (filed on January 14, 2015)]. In that Motion, counsel stated: Plaintiffs will not be prejudiced by the two-week extension sought in this Motion, because U. S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015, and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015. [Doc. No. 90 at 3 (emphasis in original)]. Four weeks earlier, in response to a question by Plaintiffs’ counsel as to whether any activity pursuant to the 2014 DHS Directive would occur between December 19, 2014, and the anticipated January 9, 2015 hearing,8 counsel for the Government told the Court:
7 The Government describes the Directive in its brief as “revis[ing] three aspects of DACA . . . . Second, it extended the period of DACA from two to three years.” [Doc. No. 38 at 29]. 8 The preliminary injunction hearing was originally scheduled for January 9, 2015.
6

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 7 of 15
THE COURT: Okay. Ms. Freeny, do you anticipate that happening?
MS. FREENY [Counsel for the Government]: No, I do not, your Honor. The agency was directed to begin accepting requests for deferred action I believe beginning sometime in -- by mid-February but even after that we wouldn’t anticipate any decisions on those for some time thereafter. So there -- I really would not expect anything between now and the date of the hearing.9
[Hr’g Tr. 10‒11, Dec. 19, 2014].
As stated earlier, 2012 DACA only provided for two-year terms for both original
applications and renewal applications. If 108,081 individuals received renewals for three-year
terms, those renewals could only have been granted pursuant to the 2014 DHS Directive
(containing the revised DACA), which is the very Directive at issue in this case. That is the
same Directive that the Government, when it was seeking more time to file a response, told this
Court:
[N]o applications for the revised DACA -- this is not even DAPA -- revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.
[P.I. Hr’g Tr. 133]. This representation was made even as the Government was in the process of
granting over 100,000 three-year renewals under the revised DACA. In response to this
representation, counsel for the States agreed to a schedule more favorable to the Government, and the Court granted the Government’s request not only to file a sur-reply,10 but also to have
additional time to do so. The States now argue that they would have sought a temporary
restraining order, but for the Government’s misrepresentations. A review of the Chronology of
Events, attached as an appendix to this Order, certainly lends credence to the States’ claims.
9 Again, there was no mention that the DHS was already awarding three-year extensions under the 2014 DHS Directive to previous 2012 DACA recipients. 10 Filing a sur-reply is not an automatic right. The Court’s local rules do not anticipate any additional or supplemental filings after the motion, response, and reply are filed. When a party requests briefing beyond the motion, response, and reply, the Court must determine whether, in the interests of justice, the party should be granted leave to do so. See L.R. 6D.
7

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 8 of 15
The explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court. Counsel told the Court during its latest hearing that she was unaware that these 2014 DACA amendments were at issue until she read the Court’s February 16, 2015 Order of Temporary Injunction and Memorandum Opinion and Order (referred to jointly as the “February Opinion”). [Hr’g Tr. 16, Mar. 19, 2015]. Counsel then claimed that the Government took “prompt” remedial action. This assertion is belied by the facts. Even if one were to assume that counsel was unaware that the 2014 DACA amendments in their entirety were at issue until reading this Court’s February Opinion, the factual scenario still does not suggest candor on the part of the Government. The February Opinion was issued late in the evening on February 16, 2015 (based on the representation that “nothing” would happen on DAPA or revised DACA until at least February 18, 2015). As the February Opinion was finalized and filed at night, counsel could not have been expected to review it until the next day; yet, for the next two weeks, the Government did nothing to inform the Court of the 108,081 revised DACA approvals. Instead, less than a week later, on February 23, 2015, the Government filed a Motion to Stay and a Notice of Appeal. Despite having had almost a week to disclose the truth―or correct any omission, misunderstanding, confusion, or misrepresentation―the Government did not act promptly; instead it again did nothing. Surely, an advisory to this Court (or even to the Court of Appeals) could have been included in either document filed during this time period. Yet, counsel for the Government said nothing.
Mysteriously, what was included in the Government’s February 23, 2015 Motion to Stay was a request that this Court rule on the Motion “by the close of business on Wednesday, February 25 . . . .” ―in other words, within two days. [Doc. No. 150 at 7]. Had the Court complied with this request, it would have cut off the States’ right to file any kind of reply. If this
8

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 9 of 15
Court had ruled according to the Government’s requested schedule, it would have ruled without the Court or the States knowing that the Government had granted 108,081 applications pursuant to the revised DACA despite its multiple representations to the contrary. While this Court is skeptical that the Government’s attorneys could have reasonably believed that the DACA amendments contained in the 2014 DHS Directive were not at issue prior to the injunction hearing on January 15, 2015, this Court finds it even less conceivable that the Government could have thought so after the January 15, 2015 hearing, given the interplay between the Court and counsel at that hearing. Regardless, by their own admission, the Government’s lawyers knew about it at least as of February 17, 2015. Yet, they stood silent. Even worse, they urged this Court to rule before disclosing that the Government had already issued 108,081 three-year renewals under the 2014 DACA amendments despite their statements to the contrary.
Another week passed after the Motion to Stay was filed and still the Government stood mute. On February 24, 2015, this Court gave the States until 5:00 p.m. on March 3, 2015, to file a reply to the Motion to Stay. Still, the Government’s lawyers were silent. The States filed their response on March 3, 2015, at 4:46 p.m. CST. Finally, after waiting two weeks, and after the States had filed their reply, the Government lawyers filed their Advisory that same night at 6:57 p.m. CST. Thus, even under the most charitable interpretation of these circumstances, and based solely upon what counsel for the Government told the Court, the Government knew its representations had created “confusion,” but kept quiet about it for two weeks while simultaneously pressing this Court to rule on the merits of its motion. At the March 19, 2015 hearing, counsel for the Government repeatedly stated to the Court that they had acted “promptly” to clarify any “confusion” they may have caused. But the facts clearly show these
9

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 10 of 15
statements to be disingenuous. The Government did anything but act “promptly” to clarify the Government-created “confusion.”
Section 3.3 of the ABA Model Rules of Professional Conduct and Section 3.03 of the Texas Disciplinary Rules of Professional Conduct (which are incorporated as the standards for conduct in the Southern District of Texas pursuant to its Local Rules―Appendix “A” Rule 1(B)) require a lawyer to act with complete candor in his or her dealings with the Court. Under these rules of conduct, a lawyer must be completely truthful and forthright in making representations to the Court. Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable.
Any number of federal judges, given this misconduct, would consider striking the Government’s pleadings. See, e.g., Tesco Corp. v. Weatherford Int’l, Inc., et al., No. 4-08-2531 (S.D. Tex. Aug. 25, 2014). Under different circumstances, this Court might very well do so. The Court, however, finds that the issues at stake here have national significance and deserve to be fully considered on the merits by the Fifth Circuit Court of Appeals and, in all probability, the Supreme Court of the United States. If this Court were to strike the Government’s pleadings at this juncture, the case would be over. The Plaintiffs would prevail by default. The Court finds at the present time that the ends of justice would not be served by striking pleadings in this case.11 Such a ruling would not only penalize those with an interest in the outcome, but would more importantly penalize the country, which needs and deserves a resolution on the merits.
11 This Court’s ruling that it will not strike the Government’s pleadings at this stage does not bar such a sanction in the future should the facts and law warrant that action.
10

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 11 of 15
That does not necessarily leave this Court impotent to fashion an appropriate remedy or sanction. Nevertheless, before it does so, it must first be able to determine the extent to which remedial action or sanctions are appropriate, if at all. Consequently, this Court hereby partially grants the States’ Motion for Early Discovery.
The Court agrees with counsel for the Government that discovery at this stage of the case may be the exception, not the norm. The facts, as recounted above, certainly establish exceptional circumstances created by the Government that may ultimately require an exceptional remedy. At a minimum, however, Defendants have created special circumstances that necessitate further investigation. The Court finds that good cause exists for the pursuit of tailored discovery.
The Court orders the attorneys for the Government to file, complete with courtesy copies to the Court and Plaintiffs, the following: (i) any and all drafts of the March 3, 2015 Advisory [Doc. No. 176], including all corresponding metadata and all other tangible items that indicate when each draft of the document was written and/or edited or revised; and (ii) a list of each person who knew about this Advisory, or about the DHS activity discussed therein, and each person who reviewed or approved its wording or filing, as well as the date and time when each person was apprised of this document and/or its contents, or of the DHS activity that is the subject matter thereof. No documents, electronic mails, texts, communications, or tangible items (including without limitation all computer records, hard drives, and servers) of any kind that deal with the Advisory or the subject matters discussed in the Advisory, whether or not owned by the Government, are to be destroyed or erased. While this Court does not foresee any privilege problems impacting the merits of this case, given that a ruling on the merits of the Government’s
11

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 12 of 15 Motion to Stay is being issued simultaneously with this Order, any privileged material shall be filed in camera with a privilege log supplied to the Court and opposing counsel.
The Government has until April 21, 2015, to comply with this Order. Following their review of the documents produced, the Plaintiff States shall file with the Court a list of any further discovery that they may deem necessary, with a brief summary of why that discovery is relevant. The States have until May 1, 2015, to do so. The Government shall have until May 8, 2015, to respond to the States’ request. The Court will then consider those requests and issue an appropriate order as promptly as its schedule allows.
Signed this 7th day of April, 2015. ________________________________ Andrew S. Hanen United States District Judge
12

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 13 of 15
Appendix

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 14 of 15

Chronology of Events
The States’ contention that they would have sought a temporary restraining order is quite credible when one views a timeline of the pertinent events in this matter:

1.

November 20, 2014 2014 DHS Directive (with the revised DACA, including the new, three-

year terms) issued.

2.

November 24, 2014 Unbeknownst to the Court (or Plaintiffs), the DHS begins granting three-

year DACA extensions pursuant to the revised DACA terms contained in

the 2014 DHS Directive’s amendments to DACA.

3.

December 3, 2014

Original Complaint filed. [Doc. No. 1].

4.

December 4, 2014

Motion for Preliminary Injunction filed. [Doc. No. 5].

5.

December 9, 2014

First Amended Complaint filed (additional plaintiffs added). [Doc. No.

14].

6.

December 19, 2014 Teleconference between Court and attorneys for both sides. (Government

attorney tells the Court: “The agency was directed to accept requests . . .

by mid-February but even after that we wouldn’t anticipate any decisions

on those for some time thereafter. So there -- I really would not expect

anything between now and the date [January 9, 2015] of the hearing.”)

(The hearing was rescheduled at the request of the parties to January 15,

2015.)

7.

December 24, 2014 Defendants’ Memorandum of Points and Authorities in Opposition to

Plaintiffs’ Motion for Preliminary Injunction filed. [Doc. No. 38].

8.

January 7, 2015

Plaintiffs’ Reply in Support of Motion for Preliminary Injunction filed. [Doc. No. 64].

9.

January 14, 2015

Motion for Extension of Time to Respond to Plaintiffs’ Reply filed by the Government. (“Plaintiffs will not be prejudiced by the two-week extension sought in this Motion, because U.S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015, and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015.”) [Doc. No. 90].

10. January 15, 2015

Hearing on the preliminary injunction. Counsel for the Government stated, in pertinent part, the following:

(a) “[N]o applications for the revised DACA -- this is not even DAPA -revised DACA would be accepted until the 18th of February and that no action would be taken on any of those applications until March the 4th.”

i.

Case 1:14-cv-00254 Document 226 Filed in TXSD on 04/07/15 Page 15 of 15

11. February 16, 2015
12. February 23, 2015 13. February 23, 2015
14. February 23, 2015
15. February 24, 2015
16. February 27, 2015
17. March 3, 2015 (4:46 p.m. CST)
18. March 3, 2015 (6:57 p.m. CST)
19. March 4, 2015
20. March 5, 2015 21. March 6, 2015 22. March 9, 2015
23. March 19, 2015 24. March 21, 2015
25. March 23, 2015

(b) In response to a question by the Court about whether any activity was going to happen on either revised DACA or DAPA in the next three weeks, Counsel for the Government stated: “No, Your Honor . . . In terms of accepting applications or granting any up or down applications . . . For revised DACA, just to be totally clear.”
Court issued Order of Temporary Injunction and Memorandum Opinion and Order. [Doc. Nos. 144 & 145].
Government’s Notice of Appeal to the Fifth Circuit filed. [Doc. No. 149].
Government’s Motion to Stay Injunction (requesting an expedited ruling from this Court by February 25, 2015) filed. [Doc. No. 150].
States’ Advisory (requesting time to respond to Government’s Motion to Stay Injunction) filed. [Doc. No. 151].
Court ordered States to respond to Motion to Stay by specified deadline. [Doc. No. 156].
Sheriff Joe Arpaio’s (amicus curiae) Motion to Show Cause filed. [Doc. No. 160]. (This Motion was subsequently denied by the Court.)
States’ Response in Opposition to Government’s Motion to Stay filed. [Doc. No. 175].
Government’s Advisory (revealing that over 100,000 three-year extensions had been granted pursuant to DACA revisions contained in the 2014 DHS Directive) filed. [Doc. No. 176].
Government’s (Procedural) Advisory (noting that it will not respond to the States’ Response, and requesting an expedited ruling by March 9, 2015) filed. [Doc. No. 180].
States’ Opposed Motion for Early Discovery filed. [Doc. No. 183].
States’ Supplement to Motion for Discovery filed. [Doc. No. 188].
Court ordered hearing on States’ Motion for Discovery and Government’s March 3, 2015 Advisory.
Hearing held on pending motions.
Government’s Response in Opposition to States’ Motion for Discovery filed. [Doc. No. 207].
States’ Reply in Support of Motion for Discovery filed. [Doc. No. 209].

ii.

 
 Case 1:14-cv-00254 Document 338 Filed in TXSD on 02/12/16 Page 1 of 2

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15-40326 Summary Calendar

United States Court of Appeals Fifth Circuit
FILED
December 21, 2015
Lyle W. Cayce Clerk

STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA, ET AL.,

versus

Plaintiffs-Appellees,

'Jnited States District Court Southern District of Texas

FILED

FEB 1 2 2016

UNITED STATES OF AMERICA, ET AL., Defendants,

- · - gayldJ. Brouiey, Clerk of CCJurt

MITCHELL WILLIAMS,

Movant-Appellant.

Appeals from the United States District Court for the Southern District of Texas USDC No. 1:14-CV-254

Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges. PER CURIAM:*

·Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case 1:14-cv-00254 Document 338 Filed in TXSD on 02/12/16 Page 2 of 2 No. 15-40326
Mitchell Williams requests permission to proceed in forma pauperis ("IFP'') in his appeal of the denial of his pro se motion to intervene. A movant seeking leave to proceed IFP on appeal must show that he is a pauper and that the appeal is taken in good faith, i.e., that it presents nonfrivolous issues. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Frivolous is defined as "lack[ing] an arguable basis in law or fact." Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001). "A ruling denying intervention of right is reviewed de novo." Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en bane).
The district court did not err in denying Williams's request to intervene because, inter alia, he does not have an "interest relating to the property or transaction that is the subject of the action." FED. R. CIV. P. 24(a)(2). An intervenor fails to show a sufficient interest where he seeks to intervene solely for economic reasons. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 466 (5th Cir. 1984) (en bane). Williams's motion to intervene was based on an asserted economic interest; thus, it was insufficient to merit intervention of right. See id.
Accordingly, the motion to proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
2

 
 Case 1:14-cv-00254 Document 346 Filed in TXSD on 04/19/16 Page 1 of 4

......... IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCillT

No. 15-41276 USDC No. 1:14-CV-254

~PR 1 9 7Jl\6
Oav\d J. Bradley, Clerk ot eour\

In re: HAROLD WILLIAM VAN ALLEN,

Petitioner

Petition for a Writ of Mandamus to the United States District Court for the
Southern District of Texas, Brownsville

Before JOLLY, DAVIS, and HIGGINSON, Circuit Judges.
J.>ER CURIAM:
Harold William Van Allen has filed in this court a pro se petition for a writ of mandamus. In his petition, he asks that we create "multi-circuit multistate jurisdiction" in our court "for all underlying originating cases and all related constitutional cases listed in the docket" of a District of Columbia case, Nat. Born Citizen Party Nat'l Comm. v. Fed. Election Comm'n, No. 1:15-CV1036. That case was dismissed in July 2015, see 1:15-CV-1036 (D.D.C. July 6, 2015), and an appeal is pending in the District of Columbia Court of Appeals under Appeal Number 15-5218.
In a separate pleading, Van Allen moves for a stay of the 2016 federal general election, followed by a "military assisted national re-census of natural born citizens and legally vetted naturalized citizens," reapportionment, and redistricting. In a supporting memorandum on which he has written "Motion to Consolidate at [Supreme Court of the United States] Before Judgment," Van

Case 1:14-cv-00254 Document 346 Filed in TXSD on 04/19/16 Page 2 of 4
No. 15-41276
Allen lists cases in all the federal circuit courts of appeals. The motions to stay and to consolidate are DENIED.
The All Writs Act, 28 U.S.C. § 1651(a), grants us authority only to "issue all writs necessary or appropriate in aid of [our] jurisdiction[]." § 1651(a); see In re McBryde, 117 F.3d 208,219 (5th Cir. 1997). The "traditional use of the writ in aid of appellate jurisdiction ... in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). The mandamus remedy is an extraordinary one, which we grant only in the clearest, most compelling cases. A party seeking mandamus reliefmust show both that he has no other adequate means for achieving the requested relief and that he has a clear and indisputable right to mandamus relief. In re Willy, 831 F.2d 545, 549 (5th Cir. 1987).
In his pleadings, Van Allen does not discuss any case pending in any district court in our jurisdiction. He does list a district court proceeding, N:o. 1:14-CV-254, State of Texas et al. v. United States et al., in the caption of his :pleadings. In that case, which concerns immigration policies, Van Allen was denied leave to intervene on August 24, 2015, although his pleadings were accepted as those of an amicus curiae. His mandamus pleadings, however, contain no discussion of that case or of his desire to intervene. Thus, his requests for relief do not lie within our mandamus authority. Further, he has made no attempt to show that he has a clear and indisputable right to the relief he seeks. See In re Willy, 831 F.2d at 549. His mandamus petition is frivolous.
Van Allen has filed identical or similar petitions for mandamus or other extraordinary relief in several other circuits. Many ofthose petitions have now been denied. E.g., In re Nat. Born Citizen Party Nat'l Comm., No. 15-2379 (1st
Cir. Nov. 30, 2015); In re .Van Allen, No. 15-3370 (2d Cir. Dec. 17, 2015); In re
2

Case 1:14-cv-00254 Document 346 Filed in TXSD on 04/19/16 Page 3 of 4
No. 15-41276 /fat. Born Citizen Party Nat'l Comm., No. 15-3759 (3d Cir. Feb. 4, 2016); In re Nat. Born Citizen Party Nat'l Comm., No. 15-2505 (4th Cir. Feb. 29, 2016); In re Van Allen, No. 15-6327 (6th Cir. Feb. 11, 2016); In re Nat. Born Citizen Party Nat'l Comm., No. 15-3775 (8th Cir. Dec. 9, 2015); In re Nat. Born Citizen Party Nat?, Comm., No. 15-80195 (9th Cir. Jan. 27, 2016); In re Van Allen, No. 151464 (lOth Cir. Dec. 8, 2015). We warn Van Allen that the filing of repetitive frivolous pleadings will invite the imposition of sanctions, including monetary sanctions, dismissal, and restrictions on his ability to file pleadings in this court or in any court subject to our jurisdiction.
The petition for a writ of mandamus is DISMISSED AS FRIVOLOUS. A SANCTION WARNING is ISSUED.
A True Copy
Certified order issued Apr 19, 2016
w. r: Clerdk,wtY.st~ Court of~peual.s, Fifth Circuit
3

Case 1:14-cv-00254 Document 346 Filed in TXSD on 04/19/16 Page 4 of 4

LYLE W. CAYCE CLERK

United States Court ofAppeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

April 19, 2016
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 15-41276 In re: Harold Van Allen USDC No. 1:14-CV-254

Enclosed is an order entered in this case.

Sincerely, LYLE W. CAYCE, Clerk

By:
Donna L. Mendez, Deputy Clerk
504-310-7677
Mr. David J. Bradley, Clerk Mr. Harold William Van Allen

 
 Case: 15-40333 Document: 00513264639 Page: 1 Date Filed: 11/09/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 15-40333

November 9, 2015 Lyle W. Cayce

Clerk

STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; ET AL.,

Plaintiffs – Appellees,

v.

UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, Secretary, Department of Homeland Security; R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border of Protection; SARAH R. SALDANA, Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ,

Defendants – Appellees,

v.

JANE DOE #1; JANE DOE #2; JANE DOE #3,

Movants – Appellants.

Appeal from the United States District Court for the Southern District of Texas
Before KING, SMITH, and ELROD, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge:
Three Jane Does appeal from the denial of their motion to intervene in State of Texas v. United States, No. 15-40238. Because the Jane Does satisfy

Case: 15-40333 Document: 00513264639 Page: 2 Date Filed: 11/09/2015
No. 15-40333 the requirements for intervention by right under Federal Rule of Civil Procedure 24(a)(2), we REVERSE the district court’s order denying intervention to the Jane Does and REMAND the case to the district court.
I. In Texas v. United States, No. 15-40238, twenty-six states seek injunctive relief against the United States and several officials of the Department of Homeland Security to prevent them from implementing a program entitled “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA).1 The program is outlined in a memorandum issued in November 2014 by Department of Homeland Security Secretary Jeh Johnson (DAPA Memorandum).2 If DAPA is implemented, certain aliens would become eligible for grants of “deferred action,” which would “mean that, for a specified period of time, [those aliens would be] permitted to be lawfully present in the United States.” Texas v. United States, 787 F.3d 733, 744 (5th Cir. 2015) (alterations,
1 We refer to the plaintiffs in the Texas case as “the States” and refer to the defendants as “the Government.”
2 See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez, Dir., U.S. Citizenship and Immigration Servs., et al. (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf. The DAPA Memorandum directs USCIS to “exercis[e] prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:
• have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
• have continuously resided in the United States since before January 1, 2010;
• are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
• have no lawful status on the date of this memorandum; • are not an enforcement priority as reflected in the November 20, 2014
Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and • present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.”
2

Case: 15-40333 Document: 00513264639 Page: 3 Date Filed: 11/09/2015
No. 15-40333 emphasis, and internal quotation marks omitted).
Three Jane Does sought to intervene as defendants in the Texas case. The Jane Does are aliens who have lived in the United States for more than ten years, currently live in the Rio Grande Valley, and have minor children who are United States citizens. Thus, all three Jane Does satisfy the first four criteria set forth in the DAPA Memorandum. In addition, all three Jane Does believe that they satisfy the final two DAPA criteria because they are not “enforcement priorities” and because they “present no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Accordingly, the Jane Does believe they are likely to receive grants of deferred action if DAPA goes into effect.
The States and the Government both opposed intervention in the district court. The district court denied the Jane Does’ motion to intervene, stating that the Jane Does’ “interests are adequately represented by the United States” and that “this matter [is] time sensitive and the addition of new parties will cause undue delay and prejudice.” Shortly thereafter, the district court preliminarily enjoined implementation of DAPA. The Jane Does timely appealed the denial of their motion to intervene. Although the Jane Does argued in the district court that they were entitled both to intervention by right and to permissive intervention, on appeal they argue only that they are entitled to intervention by right.
II. “A ruling denying intervention of right is reviewed de novo.” Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc). “Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014) (citing 6 James W. Moore, et al., Moore’s Federal Practice § 24.03[1][a] (3d ed. 2008) [Moore’s]). “Federal courts should allow intervention where no one would
3

Case: 15-40333 Document: 00513264639 Page: 4 Date Filed: 11/09/2015
No. 15-40333 be hurt and the greater justice could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (internal quotation marks omitted). For the purposes of deciding the motion to intervene, we accept the Jane Does’ factual allegations as true. Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 57 (5th Cir. 1977).
III. Intervention by right is governed by Federal Rule of Civil Procedure 24(a). To intervene by right, the prospective intervenor either must be “given an unconditional right to intervene by a federal statute,” Fed. R. Civ. P. 24(a)(1), or must meet each of the four requirements of Rule 24(a)(2): (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant’s interest must be inadequately represented by the existing parties to the suit.
New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984) [NOPSI] (en banc) (internal quotation marks omitted). The Jane Does claim that they satisfy each of the four requirements of Rule 24(a)(2). The States and the Government concede the first and third requirements, but argue that the Jane Does do not satisfy the “interest” requirement or the “inadequate representation” requirement. We will address each of these two disputed requirements in turn.
A. The Jane Does satisfy the “interest” requirement of Rule 24(a)(2), which requires that intervenors “claim[] an interest relating to the property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). The “property or transaction that is the subject of the action” in this case is DAPA,
4

Case: 15-40333 Document: 00513264639 Page: 5 Date Filed: 11/09/2015
No. 15-40333 so the legal question is whether the Jane Does have an “interest” relating to DAPA. Although “[t]here is not any clear definition of the nature of the interest . . . that is required for intervention of right,” 7C Charles Alan Wright, et al., Federal Practice and Procedure § 1908.1 (3d ed. 2007) [Wright & Miller] (internal quotation marks omitted), we previously have interpreted Rule 24(a)(2) to require a “‘direct, substantial, legally protectable interest in the proceedings,’” Edwards, 78 F.3d at 1004 (quoting NOPSI, 732 F.2d at 463).
Although “this gloss on the rule” may not “provide any more guidance than does the bare term ‘interest’ used in Rule 24 itself,” Wright & Miller § 1908.1, our cases reveal that the inquiry turns on whether the intervenor has a stake in the matter that goes beyond a generalized preference that the case come out a certain way. So, an intervenor fails to show a sufficient interest when he seeks to intervene solely for ideological, economic, or precedential reasons; that would-be intervenor merely prefers one outcome to the other.3 For example, in NOPSI, a private utility company filed suit against a seller of natural gas in a contractual dispute concerning fuel prices. 732 F.2d at 454– 55. Officials from the city of New Orleans attempted to intervene on the ground that the electricity rates paid by the city would increase if the fuelpricing dispute was decided against the utility company. Id. at 460–61. Sitting en banc, we held that the officials’ generalized, “purely economic interest” was
3 See Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) (“It is settled beyond peradventure, however, that an undifferentiated, generalized interest in the outcome of an ongoing action is too porous a foundation on which to premise intervention as of right.”); Kleissler v. U.S. Forest Serv., 157 F.3d 964, 972 (3d Cir. 1998) (“[I]ntervenors should have an interest that is specific to them, is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought.”); Security Ins. Co. v. Schipporeit, Inc., 69 F.3d 1377, 1380–81 (7th Cir. 1995) (“It is something more than a mere ‘betting’ interest, but less than a property right.” (citations omitted)); David L. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 729 (1968) (“This language indicates that one must have more of a stake in the proceeding than simply a concern with the general precedent value of the decision in wholly unrelated litigation . . . .”).
5

Case: 15-40333 Document: 00513264639 Page: 6 Date Filed: 11/09/2015
No. 15-40333 insufficient to justify intervention. Id. at 466. “After all, every electricity consumer . . . and every person who does business with any electricity consumer yearns for lower electric rates.” Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998). Similarly, a Sixth Circuit panel determined that an advocacy organization opposing abortion was not entitled to intervene in an action challenging the constitutionality of Michigan’s Legal Birth Definition Act because the organization had “only an ideological interest in the litigation, and the lawsuit does not involve the regulation of [the organization’s] conduct in any respect.” Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 343 (6th Cir. 2007).
On the other hand, an interest that is concrete, personalized, and legally protectable is sufficient to support intervention. A property interest, for example, is “the most elementary type of right that Rule 24(a) is designed to protect,” Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970), because it is concrete, specific to the person possessing the right, and legally protectable. See Moore’s § 24.03[2][a] (“Motions to intervene in which the proposed intervenor advances a clear property interest present the easiest cases for intervention.”). Accordingly, in Diaz, we permitted intervention by the government when it sought to assert a lien on a fund before the court. 427 F.2d at 1124. Likewise, in Espy, we held that two trade associations representing timber purchasers met the “interest” requirement of Rule 24(a)(2) because the timber purchasers had “property interests in existing timber contracts that are threatened by the [litigation].” 18 F.3d at 1207.
Although property interests are almost always adequate, they are not the only types of interests that can support intervention under Rule 24(a)(2). Indeed, we have disclaimed the notion “that a person must possess a pecuniary or property interest to satisfy the requirement of Rule 24(a)(2).” Mothersill D.I.S.C. Corp. v. Petroleos Mexicanos, S.A., 831 F.2d 59, 62 (5th Cir. 1987); see
6

Case: 15-40333 Document: 00513264639 Page: 7 Date Filed: 11/09/2015
No. 15-40333 also Moore’s § 24.03[2][b] (“Rule 24 does not require that the intervenor prove a property right . . . .”). Non-property interests are sufficient to support intervention when, like property interests, they are concrete, personalized, and legally protectable. For example, in League of United Latin American Citizens, District 19 v. City of Boerne, 659 F.3d 421 (5th Cir. 2011), we held that an intervenor had a “legally protectable interest” where he sought to protect “his right to vote in elections to choose all five city council members.” Id. at 434. The intervenor was not seeking to protect a property interest, but his interest in vindicating his own personal right to vote was sufficiently concrete and specific to support intervention. Similarly, in City of Houston v. American Traffic Solutions, Inc., 668 F.3d 291 (5th Cir. 2012), we reversed the district court’s denial of intervention by petition organizers who “engineered the drive that led to a city charter amendment over the nearly unanimous, well funded, and longstanding opposition of the Mayor and City Council.” Id. at 294. Although the intervenors had no property interest in the continued vitality of the amendment, we held that the intervenors’ specific and “unique” interest “in cementing their electoral victory and defending the charter amendment itself” satisfied Rule 24(a)(2). Id.
Moreover, although an asserted interest must be “legally protectable,” it need not be legally enforceable. In other words, an interest is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim.4 For example, in Trbovich v. United Mine Workers of America, 404 U.S. 528, 537 (1972), the Supreme Court held that a union member was
4 See Shapiro, supra, at 726 (“A may not have a dispute with C that could qualify as a case or controversy, but he may have a sufficient interest in B’s dispute with C to warrant his participation in the case once it has begun, and the case or controversy limitation should impose no barrier to his admission.” (footnote omitted)).
7

Case: 15-40333 Document: 00513264639 Page: 8 Date Filed: 11/09/2015
No. 15-40333 entitled to intervene by right in a suit brought by the Secretary of Labor to invalidate an election of union officers, even though federal law prohibited the union member from initiating his own suit. Another example is Black Fire Fighters Ass’n of Dallas v. City of Dallas, 19 F.3d 992, 994 (5th Cir. 1994), in which the city of Dallas entered into a consent decree with an employee group, agreeing to give a specified number of promotions to black officers who would not otherwise be chosen for promotions. A group of non-black firefighters sought to intervene, claiming that the decree interfered with their own promotion opportunities. Even though the non-black fire fighters did not have legally enforceable rights to promotions, we held that they satisfied Rule 24(a)(2) because “[a] decree’s prospective interference with promotion opportunities can justify intervention.” Id. (emphasis added).
Edwards is similar. In that case, a police department entered into a consent decree with black and Hispanic officers, and a group of other officers sought to intervene. 78 F.3d at 989. The putative intervenors claimed that the decree “adversely affects the[ir] interests . . . in having equal access to a promotion system and promotion opportunities within the HPD for the ranks of Sergeant and Lieutenant without reference to race, color, or national origin.” Id. at 1004. Sitting en banc, we reversed the district court’s denial of intervention, explaining that a “‘vested interest in one of the . . . target promotions is not required. Intervenor-appellants claim they are ineligible for these promotions solely on account of race . . . . We hold this is sufficient to confer standing to intervene.’” Id. (first alteration in original) (quoting Howard v. McLucas, 782 F.2d 956, 959 (11th Cir. 1986)). Although the non-black, nonHispanic officers were not legally entitled to any promotions, their interest in being considered for a promotion was sufficient to support intervention.
More recently, in Brumfield, parents whose children received school vouchers via Louisiana’s Scholarship Program sought to intervene in litigation
8

Case: 15-40333 Document: 00513264639 Page: 9 Date Filed: 11/09/2015
No. 15-40333 between Louisiana and the federal government over the state’s voucher program. 749 F.3d at 340. The United States initially sought to enjoin the voucher program on the ground that it violated a prior desegregation order. By the time the case reached us on appeal, however, the United States only sought “a process under which the State would provide the information needed to assess and monitor the voucher program’s implementation . . . on a regular and timely basis.” Id. at 341 (internal quotation marks omitted). The United States opposed the parents’ intervention, arguing that the parents did not have a legally protectable interest in this monitoring process. We ruled in favor of the parents, holding that the parents had an interest justifying intervention: “Here, a potential decree . . . threatens a prospective interference with educational opportunities.” 749 F.3d at 343 (internal quotation marks omitted). Even though it was uncertain whether the parents’ interests would be affected at all, and even though the parents’ interest in the continuance of the voucher program likely was not an enforceable legal right, the parents’ interest was sufficient to support intervention.
Like the intervenors in Trbovich, Black Fire Fighters, Edwards, and Brumfield, the Jane Does have interests sufficient to support intervention. First, they have an interest in receiving deferred action under DAPA so that they may legally remain in the United States. This is not a mere generalized interest in the implementation of DAPA; rather, the Jane Does are the intended beneficiaries of the challenged federal policy. Cf. Cal. ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006) (“[The proposed intervenors] are the intended beneficiaries of this law . . . . The proposed intervenors’ interest thus is neither ‘undifferentiated’ nor ‘generalized.’” (internal quotation marks omitted)). The Jane Does themselves will or will not be eligible for deferred action, depending on the outcome of this case (assuming, as we must, that their factual allegations are true). Thus, although the Jane Does do not
9

Case: 15-40333 Document: 00513264639 Page: 10 Date Filed: 11/09/2015
No. 15-40333 have a legal entitlement to deferred action, their interest in avoiding deportation is a concrete, personalized interest that is legally protected by the Due Process Clause of the Fifth Amendment. See Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”).
Second, the Jane Does have an interest in the employment opportunities that would be available to them if they are granted deferred action and employment authorization, the former of which would make them eligible for the latter. These are the same types of interests that we deemed sufficient for intervention in Black Fire Fighters and Edwards—as in those cases, the intervenors do not have a legal entitlement to particular jobs, but their interest in having access to job opportunities is sufficiently concrete and personalized to support intervention.
Third, similar to the intervenors in Brumfield, the Jane Does have an interest in directing the upbringing of their United States-citizen children. This interest, which would be adversely affected if the Jane Does are deported, is a legally protected liberty interest under the Due Process Clause. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (“[W]e have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”). Just as the parents in Brumfield had “an interest relating to” the Louisiana voucher program because of its impact on their children, the Jane Does have “an interest relating to” DAPA because of its impact on their own children.
The Government argues that the Jane Does do not have a legally protectable interest in deferred action because deferred action may be terminated at any time at the Government’s discretion. But the Government fails to explain why uncertainty at the back end is any different from uncertainty at the front end. The intervenors in Black Fire Fighters and
10

Case: 15-40333 Document: 00513264639 Page: 11 Date Filed: 11/09/2015
No. 15-40333 Edwards had no guarantee that they would receive promotions in the first place; the Jane Does have no guarantee that they will retain deferred action after they receive it. We perceive no legal difference. Besides, the same sort of revocability is present in nearly every case in which a government program gives rise to the intervenors’ interest. In Brumfield, for example, the parents’ interest in the lawsuit would have evaporated if Louisiana had modified its voucher program in a way that made the parents ineligible, or if the federal government abandoned its efforts to enjoin the program. The possibility that the parents’ interests would be eliminated by government action did not prevent them from intervening.
In short, the Jane Does have a real, concrete stake in the outcome of this litigation—if DAPA is invalidated, the Jane Does will lose their opportunity to obtain deferred action and their opportunity to obtain employment authorization. The Jane Does are not individuals seeking to defend a governmental policy they support on ideological grounds; rather, they are the intended beneficiaries of the program being challenged. Just as the parents in Brumfield had a specific, concrete interest in their children’s education, and just as the individuals in Edwards and Black Fire Fighters had a specific, concrete interest in pursuing job opportunities, the Jane Does have interests that are sufficiently concrete and specific to support their intervention by right.
B. The Jane Does also satisfy the “inadequate representation” requirement of Rule 24(a)(2), which requires the Jane Does to demonstrate that their interests are inadequately represented by the existing parties. “The burden of establishing inadequate representation is on the applicant for intervention.” Edwards, 78 F.3d at 1005. However, the applicant “need not show that the representation by existing parties will be, for certain, inadequate.” Moore’s § 24.03[4][a][i]. Instead, “the Rule is satisfied if the applicant shows that the
11

Case: 15-40333 Document: 00513264639 Page: 12 Date Filed: 11/09/2015
No. 15-40333 representation of his interest ‘may be’ inadequate.” Trbovich, 404 U.S. at 538 n.10; see also Wright & Miller § 1909 (“[T]he rule is satisfied if there is a serious possibility that the representation may be inadequate . . . .”).
Although we have characterized the intervenor’s burden as “minimal,” Edwards, 78 F.3d at 1005, “it cannot be treated as so minimal as to write the requirement completely out of the rule,” Cajun Elec. Power Co-op., Inc. v. Gulf States Utilities, Inc., 940 F.2d 117, 120 (5th Cir. 1991) (internal quotation marks omitted); see Veasey v. Perry, 577 Fed. App’x 261, 263 (5th Cir. 2014) (“[T]his requirement must have some teeth.”). Accordingly, “our jurisprudence has created two presumptions of adequate representation” that intervenors must overcome in appropriate cases. Edwards, 78 F.3d at 1005. One presumption arises when “the would-be intervenor has the same ultimate objective as a party to the lawsuit.” Id. Another presumption arises “when the putative representative is a governmental body or officer charged by law with representing the interests of the [intervenor].” Id. If the “same ultimate objective” presumption applies, “the applicant for intervention must show adversity of interest, collusion, or nonfeasance on the part of the existing party to overcome the presumption.” Id.5 Similarly, if the governmentrepresentative presumption applies, the intervenor must show “that its interest is in fact different from that of the [governmental entity] and that the
5 Although we often have implied that “adversity of interest, collusion, or nonfeasance” are the only three ways to demonstrate inadequacy of representation, commentators have noted that “[t]he wide variety of cases that come to the courts make it unlikely that there are three and only three circumstances that would make representation inadequate and suggest that adequacy of representation is a very complex variable.” 7C Charles Alan Wright, et al., Federal Practice and Procedure § 1909 (3d ed. 2007); see also Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 111 (1st Cir. 1999) (explaining that the court’s prior reference to “adversity of interest, collusion, or nonfeasance” was not intended to create an exclusive list).
12

Case: 15-40333 Document: 00513264639 Page: 13 Date Filed: 11/09/2015
No. 15-40333 interest will not be represented by [it].” Id. (alterations in original) (internal quotation marks omitted).
Assuming arguendo that one or both presumptions apply, the Jane Does have rebutted the presumption(s) by showing adversity of interest between themselves and the Government. In order to show adversity of interest, an intervenor must demonstrate that its interests diverge from the putative representative’s interests in a manner germane to the case. In Brumfield, for example, Louisiana and the parents had the same objective in upholding the state voucher program. However, the parents demonstrated that their interests diverged from the state’s in certain key respects: “The state has many interests in this case—maintaining not only the [voucher program] but also its relationship with the federal government and with the courts that have continuing desegregation jurisdiction. The parents do not have the latter two interests; their only concern is keeping their vouchers.” 749 F.3d at 346. In addition, the parents took a legal position “significantly different from that of the state”; whereas the state conceded that the district court had jurisdiction over the voucher program because of a continuing desegregation order, “the parents challenge[d] that notion,” arguing that the program did not constitute state aid to private schools and thus was not subject to the continuing desegregation order. Id. Accordingly, we held that “[t]he lack of unity in all objectives, combined with real and legitimate additional or contrary arguments, is sufficient to demonstrate that the representation may be inadequate, so this requirement of Rule 24(a) is met.” Id.
In contrast, in Hopwood v. Texas, we affirmed the denial of a motion to intervene filed by the Thurgood Marshall Legal Society and Black Pre–Law Association in a case challenging Texas’s affirmative action policy. 21 F.3d 603 (5th Cir. 1994). The intervenors argued, at a high level of generality, that “the State’s interests are broader” than the intervenors’ interests because “the State
13

Case: 15-40333 Document: 00513264639 Page: 14 Date Filed: 11/09/2015
No. 15-40333 must balance competing goals while [the intervenors] are sharply focused on preserving the admissions policy.” Id. at 605. However, the intervenors did not demonstrate how these allegedly divergent interests would have any impact on the state’s defense of its affirmative action policy. Because the intervenors did not connect the allegedly divergent interests with any concrete effects on the litigation, we held that the the intervenors had not carried their burden: “The proposed intervenors have not demonstrated that the State will not strongly defend its affirmative action program. Nor have the proposed intervenors shown that they have a separate defense of the affirmative action plan that the State has failed to assert.” Id. at 606; see also Brumfield, 749 F.3d at 346 (“[A] private group does not always satisfy this prong just because a governmental entity is on the same side of an issue . . . .”); Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999) (“The general notion that the [government] represents ‘broader’ interests at some abstract level is not enough.”).
The Jane Does have carried their burden here. The Jane Does specify the particular ways in which their interests diverge from the Government’s. Although both the Government and the Jane Does seek to uphold DAPA, the Government’s “interests are in securing an expansive interpretation of executive authority, efficiently enforcing the immigration laws, and maintaining its working relationship with the States, who often assist it in detaining immigrants like the Jane Does.” In contrast, the Jane Does’ concerns are “to remain in their long-time home state of Texas, to retain custody of their U.S. citizen children, and to obtain work authorization, driver’s licenses, and lawful employment so that they can provide for their families.” Cf. Trbovich, 404 U.S. at 538–39 (“[T]he Secretary has an obligation to protect the vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.”); Brumfield, 749 F.3d
14

Case: 15-40333 Document: 00513264639 Page: 15 Date Filed: 11/09/2015
No. 15-40333 at 346 (although Louisiana and the federal government were directly adverse in the case, Louisiana had a broader interest in maintaining “its relationship with the federal government.”); Espy, 18 F.3d at 1207 (“The government must represent the broad public interest, not just the economic concerns of the timber industry.”).
The Jane Does then identify the particular way in which these divergent interests have impacted the litigation. In order to undermine the States’ standing argument, the Government has taken the position that the States may refuse to issue driver’s licenses to deferred action recipients. This position is directly adverse to the Jane Does, who are eligible for deferred action. The disagreement between the Government and the Jane Does on the driver’s license issue arises directly from their divergent interests; the Government has an institutional interest in shielding its actions from state intervention through the courts, whereas the Jane Does’ interest is in working and providing for their families, for which a driver’s license is beneficial.6 As in Brumfield, “[t]he lack of unity in all objectives, combined with real and legitimate additional or contrary arguments, is sufficient to demonstrate that the representation may be inadequate, so this requirement of Rule 24(a) is met.” 749 F.3d at 346.
6 The States argue that the Jane Does have waived their position on the driver’s license issue by incorporating the Government’s initial preliminary injunction opposition into their own proposed opposition. However, the Government’s preliminary injunction opposition did not argue (at least not explicitly) that the States were free to deny driver’s licenses to deferred action recipients. The Government did not explicitly take that position until its sur-reply brief, which the Jane Does did not incorporate. Indeed, after the Government filed its sur-reply, the States filed a letter with the district court, contending that “Defendants have yet again changed their position on driver’s licenses. Having previously told the Ninth Circuit one thing and this Court another, Defendants now offer a third position: States are free to deny driver’s licenses to DACA and DAPA recipients.” Accordingly, the Jane Does have not waived their position that the States may not deny driver’s licenses to deferred action recipients qua deferred action recipients.
15

Case: 15-40333 Document: 00513264639 Page: 16 Date Filed: 11/09/2015
No. 15-40333 The Jane Does also argue that the Government’s misconduct in the district court has impaired the Government’s ability to adequately represent the Jane Does’ interests. The Jane Does point out that the Government admitted to granting three-year periods of deferred action to approximately 100,000 individuals (after representing that it would not do so), issuing threeyear terms of deferred action and three-year employment authorization documents to dozens of people after the district court enjoined DAPA, and granting three-year employment authorization documents to an additional 2,000 individuals after the injunction issued. The district court described the Government’s actions as “misleading” and as “unacceptable misconduct,” and has held multiple hearings regarding the Government’s efforts to claw back the improperly issued documents. As a result, according to the Jane Does, the Government has lost its credibility with the district court and has been forced to divert resources away from the litigation itself. The government responds that it did not engage in any intentional misconduct and that, in any event, the proceedings in the district court “do not bear on the government’s defense of the legality of [DAPA].” Because we hold that the Jane Does have rebutted the presumption of adequate representation by showing adversity of interest, we need not opine on whether these developments in the district court have impaired the Government’s ability to adequately represent the Jane Does’ interests.
IV. For the foregoing reasons, the Jane Does are entitled to intervene by right. REVERSED and REMANDED.
16

Case: 15-40333 Document: 00513264641 Page: 1 Date Filed: 11/09/2015

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

November 09, 2015
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc No. 15-40333 State of Texas, et al v. USA, et al
USDC No. 1:14-CV-254 --------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
The judgment entered provides that each party to bear its own costs on appeal.
Sincerely, LYLE W. CAYCE, Clerk

By: _______________________ Rhonda M. Flowers, Deputy Clerk
Enclosure(s) Ms. Beth S. Brinkmann Mr. William Ernest Havemann

Case: 15-40333 Document: 00513264641 Page: 2 Date Filed: 11/09/2015
Mr. Adam Paul KohSweeney Mr. Gabriel Markoff Ms. Nina Perales Mr. Alex Potapov Ms. Linda J. Smith

 
 Case: 15-40238 Document: 00513054621 Page: 1 Date Filed: 05/26/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
__________

United States Court of Appeals Fifth Circuit
FILED

No. 15-40238 __________

May 26, 2015
Lyle W. Cayce Clerk

STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; PAUL R. LEPAGE, Governor, State of Maine; PATRICK L. MCCRORY, Governor, State of North Carolina; C. L. “BUTCH” OTTER, Governor, State of Idaho; PHIL BRYANT, Governor, State of Mississippi; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS; ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA; STATE OF TENNESSEE,

Plaintiffs−Appellees,

versus

UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, Secretary, Department of Homeland Security; R. GIL KERLIKOWSKE,
Commissioner of U.S. Customs and Border Protection; RONALD D. VITIELLO,
Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; SARAH R. SALDANA,
Director of U.S. Immigration and Customs Enforcement; LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services,

Defendants−Appellants.

_______________________

Appeal from the United States District Court for the Southern District of Texas _______________________

Case: 15-40238 Document: 00513054621 Page: 2 Date Filed: 05/26/2015
No. 15-40238 Before SMITH, ELROD, and HIGGINSON, Circuit Judges. JERRY E. SMITH, Circuit Judge:
Twenty-six states (the “states”) are challenging the government’s1 Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) as violative of the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution. The district court determined that the states are likely to succeed on their procedural APA claim, so it temporarily enjoined implementation of the program. Texas v. United States, Civ. No. B-14-254, 2015 WL 648579 (S.D. Tex. Feb. 16, 2015). The United States appealed the preliminary injunction and moved for a stay of the injunction pending resolution of the merits of that appeal. Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.
I. In 2012, then-Department of Homeland Security (“DHS”) Secretary Janet Napolitano announced the Deferred Action for Childhood Arrivals program (“DACA”), setting forth how officers should exercise “prosecutorial discretion” before enforcing “immigration laws against certain young people.”2 She instructed agency heads that five criteria “should be satisfied before an individual is considered for an exercise of prosecutorial discretion”3 but that
1 This opinion refers to the defendants collectively as “the United States” or “the government” unless otherwise indicated.
2 Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al., at 1 (June 15, 2012) (the “DACA Memo”), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorialdiscretion-individuals-who-came-to-us-as-children.pdf.
3 Id. (stating that the individual may be considered if he “[1] came to the United States under the age of sixteen; [2] has continuously resided in the United States for a [sic] least five years preceding [June 15, 2012] and is present in the United States on [June 15]; [3] is
2

Case: 15-40238 Document: 00513054621 Page: 3 Date Filed: 05/26/2015
No. 15-40238
“requests for relief . . . are to be decided on a case by case basis.”4 “For indi-
viduals who are granted deferred action . . . [U.S. Citizenship and Immigration
Services (“USCIS”)] shall accept applications to determine whether these indi-
viduals qualify for work authorization,” but the DACA Memo purported to
“confer[] no substantive right, immigration status or pathway to citizenship.”5
Of the at least 1.2 million persons who qualify for DACA, approximately
636,000 have been accepted through 2014.6
In November 2014, DHS Secretary Jeh Johnson instructed the same
agencies to expand DACA in three areas.7 He also “direct[ed] USCIS to
establish a process, similar to DACA,” known as DAPA. He set forth six cri-
teria “for exercising prosecutorial discretion through the use of deferred action,
on a case-by-case basis.”8 Although “[d]eferred action does not confer any form
currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the [military]; [4] 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 [5] is not above the age of thirty”).
4 Id. at 2. 5 Id. at 3. 6 See Texas, 2015 WL 648579, at *4. 7 Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez, Dir., U.S. Citizenship and Immigration Servs., et al., at 3–4 (Nov. 20, 2014) (the “DAPA Memo”), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_ deferred_action.pdf. First, the “age restriction exclud[ing] those who were older than 31 on the date of the [DACA] announcement . . . will no longer apply.” Id. at 3. Second, “[t]he period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments.” Id. Third, “the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1, 2010.” Id. at 4. The district court enjoined implementation of those expansions, and they are included in the term “DAPA” in this opinion. 8 Id. at 4 (stating that individuals may be considered if they “[1] have, on [November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident; [2] have continuously resided in the United States since before January 1, 2010; [3] are physically present in the United States on [November 20, 2014], and at the time of making a request
3

Case: 15-40238 Document: 00513054621 Page: 4 Date Filed: 05/26/2015
No. 15-40238
of legal status in this country, much less citizenship[,] it [does] mean[] that, for
a specified period of time, an individual is permitted to be lawfully present in
the United States.”9
That designation makes aliens who were not otherwise qualified for most
federal public benefits eligible for “social security retirement benefits, social
security disability benefits, [and] health insurance under Part A of the Medi-
care program.”10 Further, “[e]ach person who applies for deferred action pursu-
ant to the [DAPA] criteria . . . shall also be eligible to apply for work
authorization for the [renewable three-year] period of deferred action.”11 “An
alien with work authorization may obtain a Social Security Number”; “accrue
quarters of covered employment”; and “correct wage records to add prior cov-
ered employment within approximately three years of the year in which the
wages were earned or in limited circumstances thereafter.”12 The district court
for consideration of deferred action with USCIS; [4] have no lawful status on [November 20, 2014]; [5] are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and [6] present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.”).
9 Id. at 2 (emphasis added). As the United States admits in its opening brief at 45– 46, “lawful presence,” unlike “legal status,” is not an enforceable right to remain in the United States and can be revoked at any time. But “lawful presence” does have significant legal consequences, as we will explain.
10 Brief for the United States at 48–49 (citing 8 U.S.C. § 1611(b)(2)–(3)). With limited exceptions, “an alien who is not a qualified alien . . . is not eligible for any Federal public benefit,” § 1611(a), but that prohibition does “not apply to any benefit payable under title II of the Social Security Act [42 U.S.C. § 401 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General,” § 1611(b)(2), or “to any benefit payable under title XVIII of the Social Security Act (relating to the medicare program) [42 U.S.C. § 1395 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General and, with respect to benefits payable under part A of such title [42 U.S.C. § 1395c et seq.], who was authorized to be employed with respect to any wages attributable to employment which are counted for purposes of eligibility for such benefits,” § 1611(b)(3) (alterations in original).
11 DAPA Memo, supra note 7, at 4. 12 Brief of the United States at 49 (citations omitted) (citing 42 U.S.C. § 405(c)(1)(B),
4

Case: 15-40238 Document: 00513054621 Page: 5 Date Filed: 05/26/2015
No. 15-40238
determined that “DAPA recipients would be eligible for earned income tax
credits once they received a Social Security number.”13 Texas maintains that
DAPA recipients become eligible for driver’s licenses and unemployment bene-
fits.14 Of the approximately 11.3 million illegal aliens15 in the United States,
4.3 million are eligible for DAPA. Texas, 2015 WL 648579, at *7 & n.11, *15.
The states sued to prevent implementation of the program. First, they
claimed that DAPA is procedurally unlawful under the APA because it is a
substantive rule that is required to undergo notice and comment, but DHS had
(4), (5)(A)–(J); 8 C.F.R. § 1.3(a)(4)(vi); 20 C.F.R. §§ 422.104(a)(2), 422.105(a)). 13 Texas, 2015 WL 648579, at *44 n.64; see also 26 U.S.C. § 32(c)(1)(E), (m) (stating
that eligibility for earned income tax credit is limited to individuals with Social Security numbers); 20 C.F.R. §§ 422.104(a)(2), 422.107(a), (e)(1).
14 See TEX. TRANSP. CODE § 521.142(a) (“An applicant who is not a citizen of the United States must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.”); TEX. LAB. CODE § 207.043(a)(2) (“Benefits are not payable based on services performed by an alien unless the alien . . . was lawfully present for purposes of performing the services . . . .”); see also 26 U.S.C. § 3304(a)(14)(A) (approval of state laws making compensation payable to aliens who are “lawfully present for purposes of performing such services”).
15 There is some confusion―not necessarily in this case but generally―regarding the proper term for non-citizens who are in the United States unlawfully. The leading legal lexicographer offers the following compelling explanation:
The usual and preferable term in [American English] is illegal alien. The other forms have arisen as needless euphemisms, and should be avoided as neargobbledygook. 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 a country legally.” But the word strongly suggests “unaccounted for” to those unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning.
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 . . . . But that statement is only equivocally correct: although illegal aliens’ presence in the country is no crime, their entry into the country is. . . . 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”). BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (citations omitted).
5

Case: 15-40238 Document: 00513054621 Page: 6 Date Filed: 05/26/2015
No. 15-40238 not followed those procedures. See 5 U.S.C. § 553. Second, the states asserted that DAPA was substantively unlawful under the APA because DHS lacked the authority to implement the program even if it did follow the correct process. See 5 U.S.C. § 706(2)(A)–(C). Third, the states contended that DAPA violated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3.
The district court held that Texas had standing because it would be required to issue driver’s licenses to DAPA beneficiaries, and the costs of doing so would constitute a cognizable injury. Texas, 2015 WL 648579, at *11–17. Alternatively, the court held that Texas had standing based on a theory it called “abdication standing,” under which a state has standing if the government has exclusive authority over a particular policy area but declines to act. Id. at *28–34.16 The court entered the preliminary injunction after concluding that Texas had shown a substantial likelihood of success on its claim that DAPA’s implementation would violate the APA’s notice-and-comment requirements. Id. at *62. The court did not “address[] Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.” Id. at *61. The government’s motion for a stay pending appeal is based on its insistence that the states do not have standing or a right to judicial review under the APA and, alternatively, that DAPA is exempt from the notice-and-comment requirements. The government also urges that the injunction’s nationwide scope is an abuse of discretion.17
16 The court considered but ultimately did not rely on two other theories. The first was that the states could sue as parens patriae on behalf of citizens injured by economic competition from DAPA beneficiaries. Texas, 2015 WL 648579, at *18–20. The second was that, in light of Massachusetts v. EPA, 549 U.S. 497 (2007), the states could sue based on the losses they suffer from illegal immigration generally. Texas, 2015 WL 648579, at *21–28.
17 The issues in this case were not resolved by Crane v. Johnson, 783 F.3d 244, 247
6

Case: 15-40238 Document: 00513054621 Page: 7 Date Filed: 05/26/2015
No. 15-40238
II. “We consider four factors in deciding whether to grant a stay pending appeal: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’”18 To succeed on the merits, the government must show that the district court abused its discretion by entering a preliminary injunction.19 A decision “grounded in erroneous legal principles is reviewed de novo,” and findings of fact are reviewed for clear error.20 “A stay ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’”21
III. We begin by deciding whether the government has made a strong showing that it is likely to succeed on the merits of its claim that the states
(5th Cir. 2015), which held “that neither the [Immigration and Customs Enforcement] Agents nor the State of Mississippi has demonstrated the concrete and particularized injury required to give them standing” to challenge DACA. Mississippi lacked standing because it failed to allege facts indicating that its costs had increased or would increase as a result of DACA. Id. at 252. The agents lacked standing because, inter alia, they had not alleged a sufficient factual basis for their claim that an employment action against them was “certainly impending” if they “exercise[d] [their] discretion to detain an illegal alien.” Id. at 254. That conclusion was informed by the express delegation of discretion on the face of the DACA Memo and the fact that no sanctions or warnings had yet been issued. Id. at 254–55. We expressly declined to address the driver’s license theory, id. at 252 n.34, and did not hold that deferred action under DACA was an exercise of prosecutorial discretion or that the criteria were not binding, id. at 254–55.
18 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)) (internal quotation marks omitted).
19 Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014).
20 Id. at 418 (quoting Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir. 2011)). 21 Planned Parenthood, 734 F.3d at 410 (quoting Nken, 556 U.S. at 427).
7

Case: 15-40238 Document: 00513054621 Page: 8 Date Filed: 05/26/2015
No. 15-40238
lack standing. It has not done so. We reach only the district court’s first basis
for standing—the driver’s license rationale—because it is dispositive.22
The states have the burden of establishing that at least one of them has
Article III standing.23 First, they must assert an injury that is “concrete, par-
ticularized, and actual or imminent.”24 “‘[T]hreatened injury must be certainly
impending to constitute injury in fact,’ and . . . ‘[a]llegations of possible future
injury’ are not sufficient.”25 Second, the injury must be “fairly traceable to the
challenged action.” Clapper, 133 S. Ct. at 1147 (quoting Monsanto, 561 U.S. at
22 The United States cites several cases for the proposition that DAPA is not justiciable. None of them resolved the question at issue here, so we consider them only to the extent that they are relevant to our analysis of the standing requirements. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012) (where standing was not at issue); Heckler v. Chaney, 470 U.S. 821, 823 (1985) (addressing availability of judicial review under APA but not standing); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 886 (1984) (where standing was not at issue); Plyler v. Doe, 457 U.S. 202, 205 (1982) (same); Fiallo v. Bell, 430 U.S. 787, 788 (1977) (same); Mathews v. Diaz, 426 U.S. 67, 69 (1976) (same); Linda R.S. v. Richard D., 410 U.S. 614, passim (1973) (addressing standing in a different context); Henderson v. Stalder, 287 F.3d 374, passim (5th Cir. 2002) (same); Texas v. United States, 106 F.3d 661, 664 n.2 (5th Cir. 1997) (assuming but not deciding that Texas had standing to seek payment from government for expenses associated with illegal immigration); United States v. Cox, 342 F.2d 167, 170 (5th Cir. 1965) (en banc) (where standing was not at issue).
23 See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013) (“‘The party invoking federal jurisdiction bears the burden of establishing’ standing . . . .” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992))); Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”). The decision in Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), casts doubt on whether the limitations often described as prudential standing requirements should be considered as part of the standing inquiry. See id. at 1386–88; see also Superior MRI Servs., Inc. v. Alliance Healthcare Servs., Inc., 778 F.3d 502, 505–06 (5th Cir. 2015) (discussing Lexmark’s impact). We need not address that, because there is no suggestion that the states are attempting to assert a third party’s rights or to seek adjudication of a generalized grievance, and we must apply the zone-of-interests test to determine whether judicial review is available under the APA. See generally Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474–75 (1982) (listing prudential-standing requirements).
24 Amnesty Int’l, 133 S. Ct. at 1147 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).
25 Id. (second alteration in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
8

Case: 15-40238 Document: 00513054621 Page: 9 Date Filed: 05/26/2015
No. 15-40238
149). The states may establish standing based on costs they incur as a reasonable reaction to a risk of harm only if that harm is certainly impending. See id. at 1151. Third, the injury must be “redressable by a favorable ruling.” Id. at 1147 (quoting Monsanto, 561 U.S. at 149). “When a litigant is vested with 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.” Massachusetts, 549 U.S. at 518.
A. The first requirement is likely satisfied by Texas’s proof of the costs of issuing driver’s licenses to DAPA beneficiaries. “An applicant who is not a citizen of the United States must present . . . documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.” TEX. TRANSP. CODE § 521.142(a). Documentation confirming lawful presence pursuant to DAPA would qualify.26 The district court found that Texas would lose at least $130.89 on each license it issues to a DAPA beneficiary,27 and the United States does not dispute that calculation on appeal. It is well established
26 See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE 4 (2013), available at https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf (listing acceptable document for “[p]erson granted deferred action” as “[i]mmigration documentation with an alien number or I-94 number”); supra text accompanying note 9.
27 Texas, 2015 WL 648579, at *11. The court noted that some of those costs are attributable to Texas’s participation in the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302 (codified as amended in scattered sections of 8 and 49 U.S.C.). Id. To comply with that law, a state must, inter alia, use the federal Systematic Alien Verification for Entitlements system to verify an applicant’s immigration status. 6 C.F.R. § 37.13(b)(1). The court found that the average fee Texas pays to use that system is $0.75 per applicant. Although states are not required to participate in the REAL ID Act, nonparticipating states’ licenses are not valid for access to certain federal facilities and eventually will not be valid for commercial air travel without a secondary form of identification. REAL ID Enforcement in Brief, U.S. DEPARTMENT OF HOMELAND SECURITY (Mar. 30, 2015), http://www.dhs.gov/real-idenforcement-brief.
9

Case: 15-40238 Document: 00513054621 Page: 10 Date Filed: 05/26/2015
No. 15-40238 that a financial loss generally constitutes an injury,28 so Texas is likely to meet its burden.
The government attacks that conclusion on two grounds. First, it claims that Texas will be required neither to issue licenses nor to subsidize them. Texas responds that it will have to do so in light of Arizona DREAM Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014), which held that DACA beneficiaries were likely to succeed on their equal-protection challenge to Arizona’s policy of issuing licenses to some noncitizens but not to them, id. at 1067, and suggested but did not decide that the policy was preempted, id. at 1063. Although Arizona DREAM Act supports Texas’s position that it cannot legally deny licenses to DAPA beneficiaries, it is not dispositive. Even if we were bound by the decision of another circuit, that court said nothing about subsidizing licenses, and Texas could avoid financial injury by raising its application fees to cover the full cost of issuing and administering a license.
But that does not resolve the matter. The flaw in the government’s reasoning is that Texas’s forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs.29 And being pressured to change state law constitutes an injury.
“[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’”30 Based on that interest, we held that Texas had standing to
28 See, e.g., Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 473–74 (5th Cir. 2013); Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 699 (5th Cir. 2011).
29 See Texas v. United States, 497 F.3d 491, 497 (5th Cir. 2007) (“Texas’s only alternative to participating in this allegedly invalid process is to forfeit its sole opportunity to comment upon Kickapoo gaming regulations, a forced choice that is itself sufficient to support standing.”).
30 Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).
10

Case: 15-40238 Document: 00513054621 Page: 11 Date Filed: 05/26/2015
No. 15-40238
challenge the FCC’s assertion of authority over an aspect of telecommunications regulation that the state believed it controlled31; three other circuits held that the preemption of an existing state law constitutes an injury32; and the Sixth Circuit held that making the enforcement of an existing state law more difficult qualifies.33 Reviewing that caselaw, the Fourth Circuit explained that a state has standing based on a conflict between federal and state law if “the state statute at issue regulate[s] behavior or provide[s] for the administration of a state program,” Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011), but not if “it simply purports to immunize [state] citizens from federal law,” id. at 270.
That well-established caselaw is dispositive because if pressure to change state law in some substantial way were not injury, states would have no standing to challenge bona fide harms because they could offset most financial losses by raising taxes or fees. Texas’s forced choice between incurring costs and changing its laws is an injury because those laws exist for the administration of a state program, not to challenge federal law, and Texas did not enact them merely to create standing.34
31 Id. 32 See, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008); Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 443–44 (D.C. Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 232–33 (6th Cir. 1985); cf. Diamond v. Charles, 476 U.S. 54, 62 (1986) (noting in dictum that “a State has standing to defend the constitutionality of its statute”). 33 Celebrezze, 766 F.2d at 232–33; cf. Maine v. Taylor, 477 U.S. 131, 137 (1986) (“[A] State clearly has a legitimate interest in the continued enforceability of its own statutes.”). 34 The government relies on Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam), for the proposition that Texas’s injury is self-inflicted. There, several states alleged that other states had unconstitutionally taxed nonresidents’ incomes. Id. at 661–63. The plaintiffs said the challenged practices had caused them to lose tax revenue. Id. at 663. The Court held that the plaintiffs’ injuries were self-inflicted because they were caused by the plaintiffs’ decisions to give their residents credits for taxes paid to other states, so there was no cognizable injury. See id. at 664. The Court later held, however, that Wyoming had
11

Case: 15-40238 Document: 00513054621 Page: 12 Date Filed: 05/26/2015
No. 15-40238
Second, the government urges that Texas will suffer no injury, because the costs of issuing licenses will be outweighed by countervailing economic benefits, including increased tax revenue, decreased reliance on state-subsidized health care, better financial support for DAPA beneficiaries’ children, increased revenue from vehicle-registration fees, and decreased auto insurance costs. All that may be true, but those benefits are not properly weighed in evaluating standing here. We have addressed the question of offsetting benefits only to a limited extent, holding that individuals lacked taxpayer standing to challenge Louisiana’s issuance of pro-life license plates in part because the extra fees paid by drivers who purchased the plates could have covered the expenses associated with offering them and distributing the funds they raised. Henderson, 287 F.3d at 379–81.
That approach is appropriate, if at all, where the costs and benefits are of the same type and arise from the same transaction because the plaintiff has suffered no real injury. By contrast, other circuits have declined to consider offsetting benefits of different types or from different transactions.35 Our sister
standing to challenge an Oklahoma statute that decreased Wyoming’s severance-tax revenue by requiring some Oklahoma power plants to burn at least 10% Oklahoma-mined coal. See Wyoming v. Oklahoma, 502 U.S. 437, 447–50 (1992).
Wyoming controls here. The plaintiffs in Pennsylvania chose to base their tax credits on other states’ tax policies; they could have used other methods to accomplish a similar result, such as basing the credits on residents’ out-of-state incomes, rather than taxes actually paid to other states. By contrast, Wyoming did nothing to tie its severance tax to Oklahoma law. Like Wyoming, Texas has few options to avoid being affected by what it believes are unlawful changes to federal immigration policies: It must rely on federal immigration classifications if it seeks to issue licenses only to those lawfully present in the United States. The government acknowledges this in its motion for stay, noting that “[s]tates may choose to issue driver’s licenses to deferred action recipients or not, as long as they base eligibility on federal immigration classifications rather than creating new state-law classifications of aliens.” Because Texas does not have the level of choice the plaintiffs in Pennsylvania enjoyed, its injury is not self-inflicted.
35 See, e.g., NCAA v. Governor of N.J., 730 F.3d 208, 223 (3d Cir. 2013); L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 656–59 (9th Cir. 2011); Ross v. Bank of Am., N.A.
12

Case: 15-40238 Document: 00513054621 Page: 13 Date Filed: 05/26/2015
No. 15-40238 circuits’ approach makes sense in that context because attempting to balance all costs and benefits associated with a challenged policy would leave plaintiffs without standing to challenge legitimate injuries, given that defendants could point to unrelated benefits, improperly shifting to the plaintiffs the burden of showing that the costs outweigh them.
Most of the benefits the government cites—increased tax revenue, decreased reliance on state-subsidized health care, and better financial support for DAPA beneficiaries’ children—are wholly separate from the costs of issuing licenses. The other benefits it identifies—increased revenue from vehicle fees and decreased auto insurance costs—are more closely associated with the costs of issuing licenses, but the caselaw illustrates that they are still too far removed to be applied as offsets.
For example, in NCAA, 730 F.3d at 222–23, the Third Circuit held that sports leagues had standing to challenge New Jersey’s plan to license sports betting even though the damage to the leagues’ reputations could have been outweighed by increased interest in watching sports. Likewise, in Markva, 317 F.3d at 557–58, the Sixth Circuit held that grandparents who cared for dependent children had standing to challenge a requirement that they spend more of their own money before obtaining Medicaid benefits, as compared to similarly situated parents, even though the grandparents arguably received more of other types of welfare benefits. Here, as in those cases and others,36
(USA), 524 F.3d 217, 222 (2d Cir. 2008); Markva v. Haveman, 317 F.3d 547, 557–58 (6th Cir. 2003); see also 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.4 (3d ed. 2015) (“Once injury is shown, no attempt is made to ask whether the injury is outweighed by benefits the plaintiff has enjoyed from the relationship with the defendant. Standing is recognized to complain that some particular aspect of the relationship is unlawful and has caused injury.”).
36 See, e.g., L.A. Haven Hospice, 638 F.3d at 656–57 (holding that hospice had standing to challenge regulation that allegedly increased its liability even though regulation may have also saved it money); Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 570–75 (6th Cir. 2005)
13

Case: 15-40238 Document: 00513054621 Page: 14 Date Filed: 05/26/2015
No. 15-40238 the benefits the government cites concern the same subject matter as the costs but do not arise from the same transaction, so we cannot consider them. Accordingly, Texas has likely asserted an injury that is “concrete, particularized, and actual or imminent.” Clapper, 133 S. Ct. at 1147 (quoting Monsanto, 561 U.S. at 149).
B. Texas is likely to satisfy the second requirement by showing that its injury is “fairly traceable to the challenged action.” Id. (quoting Monsanto, 561 U.S. at 149). As we have explained,37 it is undeniable that DAPA would enable beneficiaries to apply for licenses, but the United States asserts that DAPA’s incidental consequences are not cognizable injuries because the causal link is too attenuated. Massachusetts v. EPA establishes, much to the contrary, that Texas’s injury suffices.
In Massachusetts, 549 U.S. at 526, the Court held that the erosion of the state’s shoreline gave it standing to challenge the EPA’s decision not to regulate greenhouse-gas emissions from new motor vehicles. The Court noted that the Clean Air Act authorizes judicial review of the EPA’s denial of a rulemaking petition, a fact that “is of critical importance to the standing inquiry [because] ‘Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.’” Id. at 516 (quoting Defenders of Wildlife, 504 U.S. at 580). Moreover, “States are not normal litigants for the purposes of invoking federal jurisdiction,” id. at 518, because they surrendered some of the sovereign powers necessary to protect themselves from harms such as climate change when they
(holding that patient had standing based on increased risk from defective medical device even though his device had not malfunctioned and had benefited him).
37 See supra note 26 and accompanying text.
14

Case: 15-40238 Document: 00513054621 Page: 15 Date Filed: 05/26/2015
No. 15-40238
joined the union, id. at 519. That point was especially relevant because the EPA’s inaction had caused the erosion of Massachusetts’s sovereign territory. See id. “Given that procedural right and Massachusetts’s stake in protecting its quasi-sovereign interests, the Commonwealth [was] entitled to special solicitude in [the] standing analysis.” Id. at 520.
This case implicates the same concerns. Texas is exercising a procedural right: Just as the Clean Air Act (“CAA”) authorizes judicial review of “final action taken[] by the Administrator,” 42 U.S.C. § 7607(b)(1), the APA authorizes judicial review of “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704.38 And Texas is protecting its quasisovereign interest in not being forced to choose between incurring costs and changing its driver’s license regime.39 Therefore, it is entitled to the same
38 The fact that the CAA’s review provision is more specific than the APA’s is relevant to, but not dispositive of, our “special solicitude” analysis. The former’s specificity may suggest that Congress meant for plaintiffs to have standing to challenge procedural violations of the CAA even if they would not have standing to challenge some analogous violations of the APA. That said, we routinely hold that plaintiffs have standing to challenge failures to comply with the APA’s notice-and-comment requirements, see, e.g., United States v. Johnson, 632 F.3d 912, 920–27 (5th Cir. 2011), and the Tenth Circuit treats the APA’s review provision as sufficient to entitle a state to “special solicitude,” at least in some circumstances, see New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 694, 696 n.13 (10th Cir. 2009) (holding that the state was entitled to special solicitude where one of its claims was based on APA); Crank, 539 F.3d at 1241–42 (same where only claim was based on APA). Moreover, Texas’s interest in not being pressured to change its law is more directly related to its sovereignty than was Massachusetts’s interest in preventing the erosion of its shoreline. See supra notes 30–33 and accompanying text. Because of Texas’s substantial interest, it is entitled to “special solicitude” here even though a state may not always be entitled to that presumption when seeking review under the APA—an issue we need not decide.
39 See Crank, 539 F.3d at 1241–42 (reasoning that the state was entitled to special solicitude where its asserted injury was interference with enforcement of state law); Tex. Office of Pub. Util. Counsel, 183 F.3d at 449 (“[S]tates have a sovereign interest in ‘the power to create and enforce a legal code.’” (quoting Snapp, 458 U.S. at 601)); cf. Richardson, 565 F.3d at 696 n.13 (state was entitled to special solicitude where its asserted injury was both harm to its land and financial loss).
15

Case: 15-40238 Document: 00513054621 Page: 16 Date Filed: 05/26/2015
No. 15-40238 “special solicitude” as was Massachusetts.40
The analysis of the “fairly traceable” requirement in Massachusetts is also highly relevant. The main causation issue was whether the connection between the EPA’s inaction and the state’s injury was too remote. See Massachusetts, 549 U.S. at 523. The EPA maintained that the injury was not cognizable, because regulating greenhouse-gas emissions from new motor vehicles would have done little to prevent the erosion of the state’s land. Id. at 523–24. The Court rejected that theory, explaining that the fact “[t]hat a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law” and that “reducing domestic automobile emissions [was] hardly a tentative step,” in any event. Id. at 524.
The answer here is the same. Although Texas would not be directly regulated by DAPA, the program would have a direct and predictable effect on the state’s driver’s license regime, and the impact would be significant because at least 500,000 potential beneficiaries live in the state. Alternatively, Texas could change its law, but being pressured to do so is itself a substantial injury, as already discussed.
By contrast, where the Supreme Court has found that an injury is not fairly traceable, the intervening, independent act of a third party has been a necessary condition of the harm’s occurrence, or the challenged action has played a minor role. For instance, the plaintiffs in Clapper lacked standing to challenge a section of the Foreign Intelligence Surveillance Act that they
40 This panel heard over two hours of oral argument on this motion for stay. Government counsel was specifically asked to explain how the United States avoids the “special solicitude” language in its effort to defeat standing. Counsel acknowledged that he had no explanation.
16

Case: 15-40238 Document: 00513054621 Page: 17 Date Filed: 05/26/2015
No. 15-40238
alleged would lead to the monitoring of their communications. Clapper, 133 S. Ct. at 1155. For the asserted injury to occur, the Attorney General and the Director of National Intelligence would have had to authorize the collection of communications to which the plaintiffs were a party, the Foreign Intelligence Surveillance Court would have had to approve the surveillance, and the government would have had to succeed in intercepting the communications. Id. at 1148. Emphasizing its “usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors,” the Court held that the plaintiffs had not satisfied the “fairly traceable” requirement.41 Separately, the Court rejected the theory “that a market participant is injured for Article III purposes whenever a competitor benefits from something allegedly unlawful—whether a trademark, the awarding of a contract, a landlordtenant arrangement, or so on.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 731 (2013). Myriad factors determine market shares, so it is difficult to trace a competitive injury to a particular decision benefiting a competitor.42
Texas’s claim regarding driver’s licenses suffers from neither of those deficiencies. The only intervening act of a third party is the beneficiaries’
41 Clapper, 133 S. Ct. at 1150; see also, e.g., Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1447–48 (2011) (stating that taxpayers lacked standing to challenge tax credits that indirectly benefited religious schools in part because private individuals decided whether to use credits for religious schools); Whitmore, 495 U.S. at 156–57 (concluding that death-row inmate lacked standing to challenge another inmate’s death sentence in part because it was unclear whether courts would rule favorably).
42 See also, e.g., McConnell v. FEC, 540 U.S. 93, 228 (2003) (deciding that candidates lacked standing to challenge increased hard-money limits because their inability to compete was also caused by their decisions not to accept large contributions), overruled on other grounds by Citizens United v. FEC, 558 U.S. 310 (2010); Allen v. Wright, 468 U.S. 737, 756– 59 (1984) (holding that parents lacked standing to challenge tax exemptions for racially discriminatory private schools in part because effect on their children’s ability to receive education in racially integrated public school depended on whether withdrawal of exemption would cause private schools to change policies and on the number of students who would transfer to public schools if they did so), abrogated on other grounds by Lexmark, 134 S. Ct. at 1388.
17

Case: 15-40238 Document: 00513054621 Page: 18 Date Filed: 05/26/2015
No. 15-40238 decisions to apply for licenses, but it is hardly speculative that they will do so— driving is a practical necessity in most of Texas, especially to get and hold a job, so many beneficiaries will be eager to obtain licenses. Further, DAPA is the only substantial cause of Texas’s injury. In short, given the “special solicitude” that the Supreme Court directs us to afford to Texas, the parallels between this case and Massachusetts, and the differences between this case and those in which the Supreme Court has not found standing, the states are likely to satisfy the “fairly traceable” requirement.
C. The third requirement, that the injury be “redressable by a favorable ruling,” Clapper, 133 S. Ct. at 1147 (quoting Monsanto, 561 U.S. at 149), is easily met here. Enjoining the implementation of DAPA until it undergoes notice and comment could prompt DHS to reconsider its decision, which is all a litigant must show when asserting a procedural right. See Massachusetts, 549 U.S. at 518. Thus, the government has not made a strong showing that it is likely to succeed on the merits of its notion that the states lack standing. At least one state—Texas—is likely to satisfy all three requirements, so the government’s challenge to standing is without merit.
IV. In addition to having standing, the states must seek to protect interests that are “arguably within the zone of interests to be protected or regulated by the statute . . . in question.”43 Under “the ‘generous review provisions’ of the
43 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)).
18

Case: 15-40238 Document: 00513054621 Page: 19 Date Filed: 05/26/2015
No. 15-40238 APA,”44 that “test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.”45 “We apply the test in keeping with Congress’s ‘evident intent’ when enacting the APA ‘to make agency action presumptively reviewable,’” and “the benefit of any doubt goes to the plaintiff.”46 The states would fail the test only if their “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.”47
The government has not made a strong showing that the interests the states seek to protect fall outside the zone of interests of the Immigration and Nationality Act (“INA”). “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 v. United States, 132 S. Ct. 2492, 2500 (2012). In recognition of that fact, Congress permits states to deny many benefits to illegal aliens.48 Knowing that they may not enforce laws that conflict with federal law, see, e.g., Arizona, 132 S. Ct. at 2510, the states seek only to be heard in the formulation of immigration policy before it imposes substantial costs on them. “Consultation between federal and state officials is an important feature of the immigration system,” id. at 2508, and
44 Id. at 400 n.16 (quoting Data Processing, 397 U.S. at 156). 45 Id. at 399–400 (footnote omitted). 46 Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Sec. Indus. Ass’n, 479 U.S. at 399–400). 47 Id. (quoting Sec. Indus. Ass’n, 479 U.S. at 399). 48 See 8 U.S.C. § 1621 (identifying aliens ineligible “for any State or local public benefit,” § 1621(a) and noting that “[a] State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible,” § 1621(d)); United States v. Alabama, 691 F.3d 1269, 1298 (11th Cir. 2012) (noting that driver’s licenses fall within definition of “public benefit” in § 1621(c)).
19

Case: 15-40238 Document: 00513054621 Page: 20 Date Filed: 05/26/2015
No. 15-40238 the notice-and-comment process, which “is designed to ensure that affected parties have an opportunity to participate in and influence agency decision making,”49 facilitates such communication. The states easily satisfy the zoneof-interests test.
V. In deciding whether the United States has made a strong showing that judicial review is precluded, we are mindful that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”50 But judicial review is unavailable “to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a).
A. “[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 350 (1984) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). That “standard is not a rigid evidentiary test but a useful reminder . . . that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.” Id. at 351. “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action
49 U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979). 50 5 U.S.C. § 702. The government does not dispute that DAPA is a “final agency action.” See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990).
20

Case: 15-40238 Document: 00513054621 Page: 21 Date Filed: 05/26/2015

involved.” Id. at 345.

No. 15-40238

The United States maintains that 8 U.S.C. § 1252(g)51 expressly prohibits judicial review, but that provision is not “a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review’”; instead, it “applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”52 It is inapplicable here because (1) the states are not bringing a “cause or claim by or on behalf of any alien,” and (2) the action does not “aris[e] from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” § 1252(g).

Nor does the government’s broad and exclusive authority over immigration policy mean that review is implicitly barred.53 The INA has numerous specific jurisdiction-stripping provisions54 that would be rendered superfluous

51 With limited exceptions, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g).
52 Reno v. Am.-Arab Anti-Discrimination Comm. (AAADC), 525 U.S. 471, 482 (1999) (quoting § 1252(g)).
53 Although “private persons . . . have no judicially cognizable interest in procuring enforcement of the immigration laws,” Sure-Tan, 467 U.S. at 897; accord Fiallo, 430 U.S. at 792 (emphasizing government’s authority over immigration), neither the preliminary injunction nor the notice-and-comment process requires the government to enforce the immigration laws.
54 See AAADC, 525 U.S. at 486–87 (listing “8 U.S.C. § 1252(a)(2)(A) (limiting review of any claim arising from the inspection of aliens arriving in the United States), [(B)] (barring review of denials of discretionary relief authorized by various statutory provisions), [(C)] (barring review of final removal orders against criminal aliens), [(b)(4)(D)] (limiting review of asylum determinations)”); see also, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v) (barring review of waiver of reentry restrictions); 1226a(b)(1) (limiting review of detention of terrorist aliens); 1229c(e) (barring review of regulations limiting eligibility for voluntary departure), (f) (limiting review of denial of voluntary departure).
21

Case: 15-40238 Document: 00513054621 Page: 22 Date Filed: 05/26/2015
No. 15-40238 by application of an implied, overarching principle prohibiting review.55 Such a conclusion would be contrary to AAADC, 525 U.S. at 482, in which the Court noted that § 1252(g) does not “impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation.”56
Moreover, judicial review of an action brought by states to enforce procedural rights under the APA is consistent with the protections Congress affords to states that decline to provide benefits to illegal aliens. As we have explained,57 Texas, as permitted by § 1621, subsidizes driver’s licenses to, inter alia, lawfully present aliens but declines to issue them to those unlawfully present. And the state seeks to participate in notice and comment before the Secretary changes the designation of 500,000 aliens residing there in such a way that would cause the state to incur substantial costs.
The Supreme Court’s discussion of deferred action in AAADC suggests that judicial review may be available if there is an indication that deferredaction decisions are not made on a case-by-case basis. There, a group of aliens sought to stop deportation proceedings against them, but § 1252(g) deprived the courts of jurisdiction. AAADC, 525 U.S. at 487. Noting that § 1252(g) codified the Secretary’s discretion to decline “the initiation or prosecution of various stages in the deportation process,” id. at 483, the Court observed that “[p]rior to 1997, deferred-action decisions were governed by internal
55 See Corley v. United States, 556 U.S. 303, 314 (2009) (“[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . .” (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
56 “The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (‘IIRIRA’), Pub. L. 104–208, 110 Stat. 3009, amended the INA’s provisions pertaining to removal of aliens and enacted new judicial review provisions, codified at 8 U.S.C. § 1252.” Mejia Rodriguez v. DHS, 562 F.3d 1137, 1142 n.12 (11th Cir. 2009) (per curiam).
57 See supra note 48 and accompanying text.
22

Case: 15-40238 Document: 00513054621 Page: 23 Date Filed: 05/26/2015
No. 15-40238 [Immigration and Naturalization Service (“INS”)] guidelines which considered [a variety of factors],” id. at 484 n.8. Although those guidelines had since been rescinded, the Court noted that “there [was] no indication that the INS has ceased making this sort of determination on a case-by-case basis.” Id. The United States has not rebutted the strong presumption of reviewability with clear and convincing evidence that the INA precludes review.58
B. The Secretary does, nonetheless, have broad enforcement discretion and maintains that deferred action under DAPA—a grant of “lawful presence” and subsequent eligibility for otherwise unavailable benefits—is a presumptively unreviewable exercise of that discretion.59 “The general exception to reviewability provided by § 701(a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.”60 When, however, “an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832.
Some features of DAPA are similar to prosecutorial discretion: DAPA
58 See, e.g., Gulf Restoration Network v. McCarthy, No. 13-31214, 2015 WL 1566608, at *4 (5th Cir. Apr. 7, 2015) (“[T]here is a ‘strong presumption,’ subject to Congressional language, that ‘action taken by a federal agency is reviewable in federal court.’” (quoting RSR Corp. v. Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984))).
59 See Arizona, 132 S. Ct. at 2499 (“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” (citation omitted)).
60 Chaney, 470 U.S. at 838 (citation omitted); see Lincoln v. Vigil, 508 U.S. 182, 190– 91 (1993).
23

Case: 15-40238 Document: 00513054621 Page: 24 Date Filed: 05/26/2015
No. 15-40238
amounts to the Secretary’s decision—at least temporarily— not to enforce the
immigration laws as to a class of what he deems to be low-priority aliens.61 If
that were all DAPA involved, we would have a different case. DAPA’s version
of deferred action, however, is more than nonenforcement: It is the affirmative
act of conferring “lawful presence” on a class of unlawfully present aliens.62
Though revocable, that new designation triggers eligibility for federal63 and
state64 benefits that would not otherwise be available.65
“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”66
Declining to prosecute does not convert an act deemed unlawful by Congress
into a lawful one and confer eligibility for benefits based on that new
61 The preliminary injunction does not require the Secretary to deport any alien or to alter his enforcement priorities, and the states have not challenged the priority levels he has established. See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov. 20, 2014) (the “Prioritization Memo”), available at http://www.dhs.gov/sites/default/files /publications/14_1120_memo_prosecutorial_discretion.pdf.
62 See DAPA Memo, supra note 7, at 2; supra note 9 and accompanying text. Although “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,” it is a civil offense. Arizona, 132 S. Ct. at 2505; see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B).
63 See supra notes 10–143 and accompanying text. DAPA also tolls the recipients’ unlawful presence under the INA’s reentry bars, which will benefit aliens who receive lawful presence as minors because the unlawful-presence clock begins to run only at age 18. See 8 U.S.C. § 1182(a)(9)(B)(iii). Tolling will not help most adult beneficiaries because one must have continuously resided in the United States since before January 1, 2010, to be eligible for DAPA, and therefore will likely already be subject to the reentry bar for aliens who have “been unlawfully present in the United States for one year or more.” § 1182(a)(9)(B)(i)(II), (C)(i)(I).
64 See supra notes 14 and 26 and accompanying text. 65 Cf. Memorandum from James Cole, Deputy Att’y Gen., to All United States Attorneys (Aug. 29, 2013) (the “Cole Memo”), available at http://www.justice.gov /iso/opa/resources/3052013829132756857467.pdf. The Cole Memo does not direct an agency to grant any type of affirmative benefit to anyone engaged in unlawful conduct, whereas the DAPA Memo directs an agency to grant lawful presence and provides eligibility for employment authorization and other federal and state benefits to certain illegally present aliens. 66 Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)) (internal quotation mark omitted).
24

Case: 15-40238 Document: 00513054621 Page: 25 Date Filed: 05/26/2015
No. 15-40238
classification. Regardless of whether the Secretary has the authority to offer
those incentives for participation in DAPA, his doing so is not shielded from
judicial review as an act of prosecutorial discretion.67 And as shown above,68
neither the preliminary injunction nor compliance with the APA requires the
Secretary to prosecute deportable aliens or change his enforcement priorities.
Our conclusion is bolstered by the Supreme Court’s description of
deferred action in AAADC:
To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. . . . Approval of deferred action status means that . . . no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.[69]
Unlike the claim in AAADC, the states’ procedural claim does not involve a
67 Offering lawful presence and other benefits may ultimately help the Secretary enforce immigration laws more efficiently because those benefits make deportable aliens likely to self-identify, but not all inducements fall within the narrow exception for actions “committed to agency discretion.” See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014) (“An agency confronting resource constraints may change its own conduct, but it cannot change the law.”). As discussed in part V.C, infra, we do not interpret the INA, at least at this early stage of the case, as conferring unreviewable discretion on the Secretary to grant the class-based lawful presence and eligibility for benefits at issue in DAPA.
68 See supra note 61.
69 AAADC, 525 U.S. at 484 (emphasis added) (quoting 6 C. GORDON, S. MAILMAN & S. YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE § 72.03[2][h] (1998)); accord Johns v. Dep’t of Justice, 653 F.2d 884, 890 (5th Cir. 1981) (“The Attorney General also determines whether (1) to refrain from (or, in administrative parlance, to defer in) executing an outstanding order of deportation, or (2) to stay the order of deportation.” (footnote omitted)); see also Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976) (per curiam). Those decisions do not address the unique features of DAPA—class-wide eligibility, derived from a child’s legal status, for lawful presence and accompanying eligibility for work authorization and other benefits. See Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 n.27 (5th Cir. 1995) (“[T]he fact that we previously found another FDA compliance policy guide to be a policy statement is not dispositive whether [this guide] is a policy statement.”); infra note 92 (discussing factual disputes in comparison between DAPA and previous deferred-action programs).
25

Case: 15-40238 Document: 00513054621 Page: 26 Date Filed: 05/26/2015
No. 15-40238 challenge to the Secretary’s decision to “decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,” nor does deferred action pursuant to DAPA mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,”70 a change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.71 Therefore, DAPA “provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”72
C. “There is no judicial review of agency action ‘where statutes [granting agency discretion] are drawn in such broad terms that in a given case there is no law to apply.’”73 For example, “[t]he allocation of funds from a lump-sum appropriation,” Vigil, 508 U.S. at 192, is one of “those rare circumstances where the relevant statute ‘is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’”74 The district court did not rule on the substantive APA claims, and we do not decide
70 DAPA Memo, supra note 7, at 2 (emphasis added). 71 See supra notes 10–14 and accompanying text. 72 Chaney, 470 U.S. at 832. Having concluded that DAPA’s version of deferred action—at least to the extent that it confers lawful presence—is not an exercise of enforcement discretion committed to agency action, we do not reach the issue of whether the presumption against review of such discretion is rebutted. See id. at 832–34; Adams v. Richardson, 480 F.2d 1159, 1161–62 (D.C. Cir. 1973) (en banc) (per curiam). 73 Perales v. Casillas, 903 F.2d 1043, 1047 (5th Cir. 1990) (alteration in original) (quoting Overton Park, 401 U.S. at 410) (internal quotation marks omitted). 74 Vigil, 508 U.S. at 191 (quoting Chaney, 470 U.S. at 830).
26

Case: 15-40238 Document: 00513054621 Page: 27 Date Filed: 05/26/2015
No. 15-40238
whether the Secretary has the authority to implement DAPA. We do note,
however, that even granting “special deference,”75 the INA provisions cited by
the government for that proposition cannot reasonably be construed, at least
at this early stage of the case, to confer unreviewable discretion.
The INA expressly identifies legal designations allowing defined classes
of aliens to reside lawfully in the United States76 and eligibility for “discre-
tionary relief allowing [aliens in deportation proceedings] to remain in the
country,”77 including narrow classes of aliens eligible for deferred action.78 The
Act also specifies classes of aliens eligible79 and ineligible80 for work
75 Texas, 106 F.3d at 666 (“Courts must give special deference to congressional and executive branch policy choices pertaining to immigration.”).
76 E.g., lawful-permanent-resident (“LPR”) status, see 8 U.S.C. §§ 1101(a)(20), 1255; nonimmigrant status, see §§ 1101(a)(15), 1201(a)(1); refugee and asylum status, see §§ 1101(a)(42), 1157–59, 1231(b)(3); humanitarian parole, see § 1182(d)(5); temporary protected status, see § 1254a. Cf. §§ 1182(a) (inadmissible aliens), 1227(a)–(b) (deportable aliens).
77 Arizona, 132 S. Ct. at 2499 (citing 8 U.S.C. §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure)); see also § 1227(d) (administrative stay of removal for T- and U-visa applicants (victims of human trafficking, or of various serious crimes, who assist law enforcement)).
78 See 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (certain petitioners for immigration status under the Violence Against Women Act of 1994 (“VAWA”), Pub. L. No. 103-322, tit. IV, § 40701(a), 108 Stat. 1796, 1953–54); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (immediate family members of LPRs killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694–95 (immediate family members of LPRs killed in combat and granted posthumous citizenship); see also 8 U.S.C. § 1227(d)(2) (“The denial of a request for an administrative stay of removal [for T- and U-visa applicants] shall not preclude the alien from applying for . . . deferred action, or a continuance or abeyance of removal proceedings under any other provision of the immigration laws . . . .”).
79 E.g., 8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-temporary-resident status pursuant to a T visa), 1105a(a) (nonimmigrant battered spouses), 1154(a)(1)(K) (grantees of VAWA self-petitions), 1158(c)(1)(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)(1)(B) (temporary-protectedstatus holders), 1255a(b)(3)(B) (temporary-resident-status holders).
80 E.g., 8 U.S.C. §§ 1226(a)(3) (limits on work authorizations for aliens with pending
27

Case: 15-40238 Document: 00513054621 Page: 28 Date Filed: 05/26/2015
No. 15-40238
authorization, including those “eligible for work authorization and deferred action,” supra note 78. Although the Secretary is given discretion to make immigration decisions based on humanitarian concerns, that discretion is authorized for particular family relationships and specific forms of relief.81 Congress has developed an intricate process for unlawfully present aliens to reside lawfully (albeit with legal status as opposed to lawful presence) in the United States on account of their child’s citizenship.82 Moreover, judicial review of many decisions is expressly limited or precluded, supra note 54, including some that are made in the Secretary’s “sole and unreviewable discretion.”83
Against that background, we would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.84 Perhaps the closest is
removal proceedings), 1231(a)(7) (limits on work authorizations for aliens ordered removed). 81 See e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v), (C)(iii) (authorizing waiver of reentry bars for
particular classes of inadmissible aliens), 1227(a)(1)(E)(iii) (authorizing waiver of inadmissibility for smuggling by particular classes of aliens), 1229b(b)(1)(A), (D) (authorizing cancellation of removal and adjustment of status if, inter alia, “the alien has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” and “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence” (emphasis added)).
82 In general, an applicant must (i) have a child who is at least 21 years old, (ii) leave the United States, (iii) wait 10 years, and then (iv) obtain a family-preference visa from a United States consulate. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255. DAPA allows a parent to derive lawful presence from his or her child’s LPR status, although the INA does not contain a family-sponsorship process for parents of an LPR child. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1152(a)(4), 1153(a).
83 E.g., 8 U.S.C. §§ 1613(c)(2)(G), 1621(b)(4), 1641. 84 See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“[W]e 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.”).
28

Case: 15-40238 Document: 00513054621 Page: 29 Date Filed: 05/26/2015
No. 15-40238
§ 1324a(h)(3),85 a definitional provision86 that does not mention lawful
presence or deferred action.
Likewise, we do not construe the broad grants of authority in 6 U.S.C.
§ 202(5),87 8 U.S.C. § 1103(a)(3),88 or § 1103(g)(2)89 as assigning unreviewable
“decisions of vast ‘economic and political significance’”90 to an agency. Presum-
ably because there is no specific statutory basis for DAPA, the United States
suggests that its authority is grounded in historical practice, but that “does
not, by itself, create power.”91 Even assuming that an amalgamation of
85 “As used in this section, the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.”
86 See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress, we have held, 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.”).
87 “The Secretary . . . shall be responsible for . . . [e]stablishing national immigration enforcement policies and priorities.”
88 “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.”
89 “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.”
90 Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson); accord id. (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting Brown & Williamson, 529 U.S. at 159)); Perales, 903 F.2d at 1051 (“The mere fact that a statute grants broad discretion to an agency does not render the agency’s decisions completely unreviewable under the ‘committed to agency discretion by law’ exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised.” (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (per curiam)).
91 Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)); but see NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘practice of the government,’ can inform our determination of ‘what the law is.’”
29

Case: 15-40238 Document: 00513054621 Page: 30 Date Filed: 05/26/2015
No. 15-40238 historical practice,92 congressional acquiescence, the immigration context, and the INA provide authority for DAPA, it would be bold and premature for us to conclude that an as-yet-undefined delegation is beyond the scope of judicial review.
Our decision in Perales is not to the contrary. There, we recognized that the INS’s decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because “there is nothing in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure . . . to [that class of aliens].” Perales, 903 F.2d at 1047. “An agency’s inaction in such a situation is necessarily exempt from judicial review because there are no meaningful standards against which to judge the agency’s exercise of discretion.” Id. In this case, however, issuing work authorizations to DAPA beneficiaries is an affirmative action, and whether the Secretary has the authority to do so remains an open question.
And even assuming the Secretary has that power, it is the designation of lawful presence itself—the prerequisite for work authorization under DAPA— that causes Texas’s injury because a document showing legal presence makes one eligible for a driver’s license.93 The Secretary’s authority to grant lawful
(quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401, and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176)).
92 Many aspects of previous deferred-action programs have not been precisely explained at this early stage of the litigation, particularly whether they granted “lawful presence” or were purely non-enforcement decisions, whether the beneficiaries were merely given a temporary reprieve while transitioning from one lawful status to another, whether the programs were interstitial to a statutory legalization scheme, whether they are comparable in scale and scope to DAPA, and whether Congress’s failure to enact the DREAM Act bears on its acquiescence to DAPA. Because the district court has not yet resolved those factual issues, historical practice does not clarify our understanding of the reviewability of DAPA.
93 See supra notes 14 and 26 and accompanying text.
30

Case: 15-40238 Document: 00513054621 Page: 31 Date Filed: 05/26/2015
No. 15-40238 presence was not at issue in Perales. Moreover, in Perales, id. at 1048, the Attorney General had explicit statutory discretion to authorize pre-hearing voluntary departures—discretion the INA does not specifically confer here.
The government asserts that 8 C.F.R. § 274a.12(c)(14),94 rather than DAPA, makes aliens granted deferred action eligible for work authorizations. But if DAPA’s class-based deferred action program, on which work authorizations are contingent, must be subjected to the notice-and-comment process, then work authorizations may not be validly issued pursuant to it until that process has been completed. And again, it is DAPA’s version of deferred action itself—the designation of “lawful presence”—that causes Texas’s injury.95
VI. Because the United States has not made a strong showing that judicial review is precluded, we must decide whether it has made a strong showing that DAPA does not require notice and comment. The government does not dispute that DAPA is a rule96; it urges instead that DAPA is exempt as an “interpretative rule[], general statement[] of policy, or rule[] of agency organization, procedure, or practice,” § 553(b)(A), or “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” § 553(a)(2). “The ‘APA’s notice-and-comment exemptions must be
94 “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 for employment.”
95 See supra notes 14 and 26 and accompanying text. Moreover, it would be reasonable to construe § 274a.12(c)(14) as pertaining only to those classes of aliens identified by Congress as eligible for deferred action and work authorization. See supra note 78.
96 The APA defines a “rule” as “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 [various substantive agency functions] or practices bearing on any of the foregoing.” 5 U.S.C. § 551(4).
31

Case: 15-40238 Document: 00513054621 Page: 32 Date Filed: 05/26/2015
No. 15-40238
narrowly construed’” and if a rule is “substantive,” all “notice-and-comment
requirements must be adhered to scrupulously.”97
A.
The government’s main argument is that DAPA is a policy statement.
We consider two criteria to determine whether a purported policy statement is
actually a substantive rule: whether it (1) “impose[s] any rights and obliga-
tions” and (2) “genuinely leaves the agency and its decisionmakers free to exer-
cise discretion.”98 There is some overlap between those criteria “because ‘[i]f a
statement denies the decisionmaker discretion in the area of its coverage . . .
then the statement is binding, and creates rights or obligations.’”99 “While
mindful but suspicious of the agency’s own characterization, we . . . focus[]
primarily on whether the rule has binding effect on agency discretion or
severely restricts it.”100
97 Prof’ls & Patients, 56 F.3d at 595 (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)); see Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974) (“[T]he interested public should have an opportunity to participate, and the agency should be fully informed, before rules having . . . substantial impact are promulgated.”).
98 Prof’ls & Patients, 56 F.3d at 595 (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per curiam)); see also Vigil, 508 U.S. at 197 (describing general statements of policy “as ‘statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.’” (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979))); id. (“Whatever else may be considered a ‘general statemen[t] of policy,’ the term surely includes an announcement . . . that an agency will discontinue a discretionary allocation of unrestricted funds from a lump-sum appropriation.” (alteration in original)); Brown Express, Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 1979) (“A general statement of policy is a statement by an administrative agency announcing motivating factors the agency will consider, or tentative goals toward which it will aim, in determining the resolution of a [s]ubstantive question of regulation.”).
99 Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988)).
100 Prof’ls & Patients, 56 F.3d at 595 (footnote omitted); accord id. (“[W]e are to give some deference, ‘albeit not overwhelming,’ to the agency’s characterization of its own rule.” (quoting Cmty. Nutrition Inst. v. Young, 818 F.2d at 946) (internal quotation marks omitted)); Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 619 (5th Cir. 1994) (“This court, however, must determine the category into which the rule falls: ‘[T]he label that the particular agency
32

Case: 15-40238 Document: 00513054621 Page: 33 Date Filed: 05/26/2015
No. 15-40238
Extrapolating from the implementation of DACA,101 the district court
determined that “[n]othing about DAPA ‘genuinely leaves the agency and its
[employees] free to exercise discretion,’”102 a finding that is reviewed for clear
error. Although the DACA Memo instructed agencies to review applications
on a case-by-case basis and exercise discretion, the court found that those
statements were “merely pretext” because only around 5% of the 723,000 appli-
cations have been denied.103 “Despite 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 . . . .”104 The court’s finding was also based on a declaration by
puts upon its given exercise of administrative power is not, for our purposes, conclusive; rather it is what the agency does in fact.’” (alteration in original) (quoting Brown Express, 607 F.2d at 700)).
101 See Gen. Elec., 290 F.3d at 383 (“[A]n agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.”); 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 15.05[3] (2014) (“In general, the agency’s past treatment of a rule will often indicate its nature.”).
102 Texas, 2015 WL 648579, at *55 (second alteration in original) (quoting Prof’ls & Patients, 56 F.3d at 595). To the extent that the government maintains that the proper focus of the inquiry into the binding nature of the DAPA Memo is on whether the agency has bound itself—rather than on whether agency officials have bound their subordinates—the government confuses the test for determining whether a purported policy statement is actually a substantive rule with the notice-and-comment exception for internal directives, discussed infra part VI.B. An agency action is not exempt as a policy statement just because the agency purports to retain discretion; whether the agency in fact retains discretion is determined, at least in part, by whether its decisionmakers are actually free to exercise discretion. See supra notes 98―100 and accompanying text. Of course, as discussed infra part VI.B, a lack of discretion by subordinates does not necessarily mean that a directive is subject to notice and comment; subordinates are expected to adhere to internal directives.
103 See id. at *4–5, *55 n.101. Of the at least 1.2 million persons who qualify for DACA, approximately 723,000 had applied through 2014. About 636,000 had been accepted, some decisions were still pending, and only about 5% had been denied, with the top reasons being the following: “(1) the applicant used the wrong form; (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete Form I-765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and thus ineligible to participate in the program.” Id. at *4–5.
104 Id. at *5. The parties submitted over 200 pages of briefing over a two-month period,
33

Case: 15-40238 Document: 00513054621 Page: 34 Date Filed: 05/26/2015
No. 15-40238 Kenneth Palinkas, the president of the union representing the USCIS employees processing the DACA applications, that “DACA applications are simply rubberstamped if the applicants meet the necessary criteria,” id.; DACA’s Operating Procedures, which “contains nearly 150 pages of specific instructions for granting or denying deferred action,” id. at *55 (footnote omitted); and mandatory language in the DAPA Memo, id. at *39, *56 n.103.
The agency’s characterization of both the DACA and DAPA criteria exudes discretion—using terms such as “guidance,” “case-by-case,” and “prosecutorial discretion.”105 But a rule can be binding if it is “applied by the agency in a way that indicates it is binding,”106 and the states offered evidence from DACA’s implementation that DAPA’s discretionary language was pretextual. The programs are not completely analogous, however: Many more persons are eligible for DAPA,107 and eligibility for DACA was restricted to a younger population—suggesting that DACA applicants are less likely to have backgrounds that would warrant a discretionary denial. The DAPA Memo also contains more discretionary criteria: Applicants must not be “an enforcement priority as reflected in the [Prioritization Memo]; and [must] present no other factors that, in the exercise of discretion, makes the grant of deferred action
supported by more than 80 exhibits. The district court held a hearing on the motion for a preliminary injunction and heard extensive argument from both sides and “specifically asked for evidence of individuals who had been denied for reasons other than not meeting the criteria or technical errors with the form and/or filing.” Id. at *55 n.101.
105 See DACA Memo, supra note 2; DAPA Memo, supra note 7. 106 Gen. Elec., 290 F.3d at 383; accord McLouth Steel, 838 F.2d at 1321–22 (reviewing historical conformity as part of determination of whether rule was substantive or non-binding policy, despite language in rule indicating that it was policy statement); id. at 1321 (“More critically than EPA’s language . . . its later conduct applying it confirms its binding character.”). 107 Approximately 1.2 million persons are eligible for DACA and 4.3 million for DAPA. See Texas, 2015 WL 648579, at *4, *55.
34

Case: 15-40238 Document: 00513054621 Page: 35 Date Filed: 05/26/2015
No. 15-40238 inappropriate.”108 Despite those differences, there are important similarities: The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”109 and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.
We are attentive to the difficulty of evaluating an agency’s discretion where the action involves issuing benefits to self-selecting applicants, as distinguished from imposing obligations on a regulated industry. Although a person who expected to be denied DACA relief for discretionary reasons would be unlikely to apply, the self-selection issue is mitigated by the district court’s finding that “the [g]overnment has publicly declared that it will make no attempt to enforce the law against even those who are denied deferred action (absent extraordinary circumstances).” Texas, 2015 WL 648579 at *50.
Moreover, the court did not rely exclusively on DACA’s approval rate. It also considered the detailed nature of the DACA Operating Procedures and the declaration from Palinkas that, as with DACA, the DAPA application process itself would preclude discretion: “[R]outing DAPA 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 nationalsecurity risks, and ensures that applications will be rubber-stamped.”
There was conflicting evidence on the degree to which DACA allowed for discretion. Donald Neufeld, the Associate Director for Service Center
108 DAPA Memo, supra note 7, at 4. 109 Id. (emphasis added).
35

Case: 15-40238 Document: 00513054621 Page: 36 Date Filed: 05/26/2015
No. 15-40238
Operations for USCIS, declared that “deferred action under DACA is a . . . case-
specific process” that “necessarily involves the exercise of the agency’s discretion” and purported to identify several instances of discretionary denials.110 Although he stated that officials made approximately 200,000 requests for
more evidence after receiving DACA applications, the government does not know the number, if any, that pertained to discretionary factors rather than the objective criteria. Likewise, the government did not offer the number of cases service center officials referred to field offices for interviews.111 The United States has not made a strong showing that it was clearly erroneous to find that DAPA would not genuinely leave the agency and its employees free to exercise discretion.112
B. A lack of discretion does not trigger notice-and-comment rulemaking if
the rule is one “of agency organization, procedure, or practice,” § 553(b)(A); agencies and their employees are of course expected to adhere to such rules.
110 The states dispute whether those denials were actually discretionary or instead were required because of failures to meet DACA’s objective criteria.
111 Neufeld stated that “[u]ntil very recently, USCIS lacked any ability to automatically track and sort the reasons for DACA denials.” Although the district court did not hold an evidentiary hearing or make a formal credibility determination as to the conflicting statements by Neufeld and Palinkas, the record indicates that it did not view the Neufeld declaration as creating a material factual dispute. Following a hearing on the preliminary injunction, the government filed a surreply containing the Neufeld declaration. Although the government did not seek an evidentiary hearing, the states requested one if the “new declarations create a fact dispute of material consequence to the motion.” No such hearing was held, and the court cited the Palinkas declaration favorably, Texas, 2015 WL 648579 at *5, *8 n.13, *38 n.55, but described the Neufeld declaration as providing insufficient detail, id. at *5, 55 n.101.
112 Because DAPA is much more than a nonenforcement policy, which is presumptively committed to agency discretion, see supra part V.B, requiring it to go through notice and comment does not mean that a traditional nonenforcement policy would also be subject to those requirements, assuming that a party even had standing to challenge it. Moreover, a nonenforcement policy may be exempted as a rule “of agency organization, procedure, or practice.” See infra part VI.B.
36

Case: 15-40238 Document: 00513054621 Page: 37 Date Filed: 05/26/2015
No. 15-40238
We use “the substantial impact test [as] the primary means . . . [to] look beyond the label ‘procedural’ to determine whether a rule is of the type Congress thought appropriate for public participation.”113 “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.”114 DAPA modifies substantive rights and interests—conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.
The District of Columbia Circuit has enunciated a more intricate process for distinguishing between procedural and substantive rules.115 The court first looks at the “effect on those interests ultimately at stake in the agency proceeding.”116 “Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’ burdens upon regulated individuals are considered procedural, rather than substantive.”117 Further, “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,’”118 but “the fact that the agency’s decision
113 U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984); accord STEIN, supra note 101, §15.05[5] (“Procedural and practice rules have been distinguished from substantive rules by applying the substantial impact test.”).
114 Kast Metals, 744 F.2d at 1153; accord Brown Express, 607 F.2d at 701–03. 115 Compare Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123, 1132 (D.C. Cir. 2001) (recognizing that the D.C. Circuit has expressly rejected “the Fifth Circuit’s ‘substantial impact’ standard for notice and comment requirements”), with City of Arlington, Tex. v. FCC, 668 F.3d 229, 245 (5th Cir. 2012), aff’d, 133 S. Ct. 1863 (2013) (“The purpose of noticeand-comment rulemaking is to assure fairness and mature consideration of rules having a substantial impact on those regulated.” (quoting United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 2011))), and Phillips Petroleum, 22 F.3d at 620 (reaffirming substantial impact test announced in Brown Express). 116 Nat’l Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013) (quoting Neighborhood TV Co. v. FCC, 742 F.2d 629, 637 (D.C. Cir. 1984)). 117 Id. (quoting Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1051 (D.C. Cir. 1987)). 118 Id. (alterations in original) (quoting Am. Hosp., 834 F.2d at 1047).
37

Case: 15-40238 Document: 00513054621 Page: 38 Date Filed: 05/26/2015
No. 15-40238 was based on a value judgment about procedural efficiency does not convert the resulting rule into a substantive one.”119 “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.”120
Applying those standards here yields the same result as does the substantial-impact test. Although the burden DAPA imposes on Texas is derivative of issuing lawful presence to beneficiaries, it is still substantial—Texas has a quasi-sovereign interest in not being forced to choose between incurring millions of dollars in costs and changing its laws. Moreover, DAPA establishes the “substantive standards by which the [agency] evaluates applications which seek a benefit that the agency has the power to provide”—a critical fact requiring notice and comment.121 Further, receipt of those benefits implies a “stamp of approval” from the government.
C. Section 553(a)(2) exempts rules “to the extent that there is involved . . . a matter relating to . . . public property, loans, grants, benefits, or contracts.” § 553(a)(2). We construe the public-benefits exception very narrowly as applying only to agency action that “clearly and directly relate[s] to ‘benefits’ as that
119 Id. (quoting James V. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282 (D.C. Cir. 2000)).
120 Id. (alteration in original) (quoting JEM Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C. Cir. 1994)).
121 Id. (alteration in original) (quoting JEM Broad., 22 F.3d at 327) (internal quotation marks omitted). Compare JEM Broad., 22 F.3d at 327 (“The critical fact here, however, is that the ‘hard look’ rules did not change the substantive standards by which the FCC evaluates license applications . . . .”), with Reeder v. FCC, 865 F.2d 1298, 1305 (D.C. Cir. 1989) (per curiam) (stating that notice and comment is required for “rules [that] changed substantive criteria for” evaluating station allotment counter-proposals).
38

Case: 15-40238 Document: 00513054621 Page: 39 Date Filed: 05/26/2015
No. 15-40238
word is used in section 553(a)(2).”122
To the extent that DAPA relates to public benefits, it does not do so “clearly and directly.” Although § 553(a)(2) suggests that “rulemaking requirements for agencies managing benefit programs are . . . voluntarily imposed,”123 USCIS, which is the agency tasked with evaluating DAPA applications, is not such an agency. Neither USCIS nor any other agency within DHS confers public benefits on DAPA beneficiaries. Further, lawful presence is an immigration classification, not a grant of money, goods, services, or any other kind of public benefit that has been recognized, or was likely to have been recognized,124 under this exception.125 To the extent that lawful presence triggers eligibility for public benefits, receipt of those benefits depends on compliance with programs managed by other agencies. See supra notes 10–14 and accompanying text.
In summary, the United States has not made a strong showing that it is
122 Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1061 (5th Cir. 1985); accord Hous. Auth. of Omaha, Neb. v. U.S. Hous. Auth., 468 F.2d 1, 9 (8th Cir. 1972) (“The exemptions of matters under Section 553(a)(2) relating to ‘public benefits,’ could conceivably include virtually every activity of government. However, since an expansive reading of the exemption clause could easily carve the heart out of the notice provisions of Section 553, it is fairly obvious that Congress did not intend for the exemptions to be interpreted that broadly.”).
123 Alcaraz v. Block, 746 F.2d 593, 611 (9th Cir. 1984). 124 The Departments of Agriculture, Health and Human Services, and Labor have waived the exemption for matters relating to public property, loans, grants, benefits, or contracts. See 29 C.F.R. § 2.7 (Department of Labor); Public Participation in Rule Making, 36 Fed. Reg. 13,804, 13,804 (July 24, 1971) (Department of Agriculture); Public Participation in Rule Making, 36 Fed. Reg. 2532, 2532 (Jan. 28, 1971) (Department of Health and Human Services, then known as Health, Education, and Welfare). 125 See e.g., Vigil, 508 U.S. at 184, 196 (clinical services provided by Indian Health Service for handicapped children); Hoerner v. Veterans Admin., No. 88-3052, 1988 WL 97342 at *1–2 & n.10 (4th Cir. July 8, 1988) (per curiam) (unpublished) (benefits for veterans); Baylor Univ. Med. Ctr., 758 F.2d at 1058–59 (Medicare reimbursement regulations issued by Secretary of Health and Human Services); Rodway v. U.S. Dep’t of Agric., 514 F.2d 809, 813 (D.C. Cir. 1975) (food stamp allotment regulations).
39

Case: 15-40238 Document: 00513054621 Page: 40 Date Filed: 05/26/2015
No. 15-40238 likely to succeed on the merits. We proceed to examine the remaining factors of the test for obtaining a stay pending appeal.
VII. The remaining factors also favor the states. The United States has not demonstrated that it “will be irreparably injured absent a stay.” Planned Parenthood, 734 F.3d at 410 (quoting Nken, 556 U.S. at 426). It claims that the injunction offends separation of powers and federalism, but it is the resolution of the case on the merits, not whether the injunction is stayed pending appeal, that will affect those principles. The government urges that DHS will not be able to determine quickly whether illegal aliens it encounters are enforcement priorities, but even under the injunction, DHS can choose whom to remove first; the only thing it cannot do is grant class-wide lawful presence and eligibility for accompanying benefits as incentives for low-priority aliens to self-identify in advance. And the government’s allegation that the injunction is delaying preparatory work is unpersuasive. Injunctions often cause delays, and the government can resume work if it prevails on the merits. The states have shown that “issuance of the stay will substantially injure” them. Id. (quoting Nken, 556 U.S. at 426). A stay would enable DAPA beneficiaries to apply for driver’s licenses and other benefits, and it would be difficult for the states to retract those benefits or recoup their costs even if they won on the merits. That is particularly true in light of the district court’s findings regarding the large number of potential beneficiaries, including at least 500,000 in Texas alone. The last factor, “where the public interest lies,” id. (quoting Nken, 556 U.S. at 426), leans in favor of the states. The government identifies several
40

Case: 15-40238 Document: 00513054621 Page: 41 Date Filed: 05/26/2015
No. 15-40238 important interests: It claims a stay would improve public safety and national security, provide humanitarian relief to the family members of citizens and lawful permanent residents, and increase tax revenue for state and local governments. To the contrary, however, and only by way of example, on March 16, 2015, the Attorney General, in opposing a motion to stay removal in an unrelated action, argued to this very panel that “granting a stay of removal . . . would impede the government’s interest in expeditiously . . . controlling immigration into the United States.”126 Presumably, by referring to “the government’s interest,” the United States is referring to “the public interest.”
The states say the injunction maintains the separation of powers and ensures that a major new policy undergoes notice and comment. And as a prudential matter, if the injunction is stayed but DAPA is ultimately invalidated, deportable aliens would have identified themselves without receiving the expected benefits. The public interest favors maintenance of the injunction, and even if that were not so, in light of the fact that the first three factors favor the states and that the injunction merely maintains the status quo while the court considers the issue,127 a stay pending appeal is far from justified.128
126 Respondent’s Opposition to Petitioner’s Motion To Stay Removal at 8, El Asmar v. Holder, No. 15-60155 (5th Cir. filed Mar. 16, 2015) (citing Nken, 556 U.S. at 436).
127 Cf., e.g., Veasey v. Perry, 769 F.3d 890, 892–95 (5th Cir. 2014) (discussing the importance of maintaining the status quo in the election context because a change could cause substantial disruption that would be difficult to undo).
128 An invalid rule does not necessarily result in vacatur; depending on the circumstance, the appropriate remedy may be remand to the agency. That determination is made by evaluating whether “(1) the agency’s decision is so deficient as to raise serious doubts whether the agency can adequately justify its decision at all; and (2) vacatur would be seriously disruptive or costly.” N. Air Cargo v. USPS, 674 F.3d 852, 860–61 (D.C. Cir. 2012). The government has not asked for remand, and it would be premature for us to weigh those considerations at this early stage.
41

Case: 15-40238 Document: 00513054621 Page: 42 Date Filed: 05/26/2015
No. 15-40238 VIII.
The government maintains that the nationwide scope of the injunction is an abuse of discretion, so it asks that the injunction be confined to Texas or the plaintiff states. But partial implementation of DAPA would undermine the constitutional imperative of “a uniform Rule of Naturalization”129 and Congress’s instruction that “the immigration laws of the United States should be enforced vigorously and uniformly.”130 A patchwork system would “detract[] from the ‘integrated scheme of regulation’ created by Congress.”131 Further, there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.
The motion to stay the preliminary injunction or narrow its scope pending appeal is DENIED.
129 U.S. CONST. art. I, § 8, cl. 4 (emphasis added). 130 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384 (emphasis added). 131 Arizona, 132 S. Ct. at 2502 (quoting Wis. Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 288–289 (1986)).
42

Case: 15-40238 Document: 00513054621 Page: 43 Date Filed: 05/26/2015
No. 15-40238 STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
Agreeing with the district court, the plaintiff-states recognize that removal and deportation of non-citizens is a power exclusively of the federal government. See Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). Their complaint, however, is that the federal government isn’t doing its job; that whereas Congress, through unambiguous law, requires the identification, apprehension, and removal of non-citizens who lack documentation to be in the United States, see 8 U.S.C. § 1225(a)(3) (inspection); id. § 1225(b)(2)(A) (detention); id. § 1227(a) (removal), the President is thwarting that law. According to the plaintiffs, the President refuses to remove immigrants Congress has said must be removed and has memorialized that obstruction in a Department of Homeland Security (“DHS”) memorandum. This, plaintiffs contend, is a Take Care Clause violation, a Youngstown scenario courts must correct; furthermore, because deferring removal of immigrants causes states injury and has substantive impact, the plaintiffs contend that the DHS memorandum is invalid without the full apparatus of rulemaking, notice and comment and public participation, under the Administrative Procedure Act (“APA”). 5 U.S.C. § 553. The district court offered extensive viewpoints on the first point, but ruled in plaintiffs’ favor only on the second. The government seeks to stay that ruling, which is the matter before us.
My colleagues conclude that the government has not made a “strong showing” of likelihood of success on the merits. Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citation omitted). I am grateful to them for their analysis and collegiality, and our exchange has informed my views, although I dissent as follows.
Introduction: The Challenged Executive “Action” On November 20, 2014, the Secretary of the Department of Homeland Security sent to the Director of U.S. Citizenship and Immigration Services, and
43

Case: 15-40238 Document: 00513054621 Page: 44 Date Filed: 05/26/2015
No. 15-40238 the Acting Director of the U.S. Immigration and Customs Enforcement, and the Commissioner of the U.S. Customs and Border Protection a memorandum with the subject heading, “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,” which aims to focus resources on illegal immigration at the border and prioritize deporting felons while lesser priority, but removable, immigrants are encouraged to self-report, pass background checks, and pay taxes on any employment they might obtain under preexisting law. See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez, Dir., U.S. Citizenship and Immigration Servs., et al. (Nov. 20, 2014) (“Nov. 20 Memo”), available at http://www.dhs.gov/sites/default/files/publications/14_1120_ memo_deferred_action.pdf. The Office of Legal Counsel at the Department of Justice terms the memorandum “prioritization policy,” and the government in briefing to us terms it “deferred action guidance.” By contrast, plaintiffs label it a “directive,” a term adopted by the district court, which further describes the memorandum as a “program” “to award legal presence status to over four million illegal aliens.”
The November 20 memorandum, on its face, gives notice of expanded eligibility criteria used by DHS to assess whether undocumented immigrants who seek “deferred action” should “for a specified period of time . . . [be] permitted to be lawfully present in the United States.” This memorandum, expanding on pre-existing guidance, permits undocumented immigrants who are “hard-working,” “integrated members of American society,” and “otherwise not enforcement priorities” to self-report and become a lower removal priority. The immigrant explicitly stays removable, but is not a removal priority. See Reno v. Am.–Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999) (recognizing that deferred action, which was originally known as “nonpriority,”
44

Case: 15-40238 Document: 00513054621 Page: 45 Date Filed: 05/26/2015
No. 15-40238
is an appropriate exercise of the Executive’s removal discretion); see also 8
C.F.R. § 274a.12(c)(14) (defining “deferred action” as “an act of administrative
convenience to the government which gives some cases lower priority”). The
parties have offered argument and submissions, but to date without
adversarial and evidentiary testing, disagreeing about consequences that could
follow from executive adherence to the November 20 memorandum.
I. Non-Justiciability
I would hold that Supreme Court and Fifth Circuit caselaw forecloses
plaintiffs’ arguments challenging in court this internal executive enforcement
guideline. In an earlier Texas v. United States, 106 F.3d 661 (5th Cir. 1997),
we summarized and resolved the following statutory argument:
[T]he State alleges that the Attorney General has breached a nondiscretionary duty to control immigration under the Immigration and Nationality Act. The State candidly concedes, however, that section 1103 places no substantive limits on the Attorney General and commits enforcement of the INA to her discretion.
The State’s allegation that defendants have failed to enforce the immigration laws and refuse to pay the costs resulting therefrom is not subject to judicial review. An agency's decision not to take enforcement actions is unreviewable under the Administrative Procedure Act because a court has no workable standard against which to judge the agency’s exercise of discretion. We reject out-of-hand the State’s contention that the federal defendants’ alleged systemic failure to control immigration is so extreme as to constitute a reviewable abdication of duty. The State does not contend that federal defendants are doing nothing to enforce the immigration laws or that they have consciously decided to abdicate their enforcement responsibilities. Real or perceived inadequate enforcement of immigration laws does not constitute a reviewable abdication of duty.
Id. at 667 (citations omitted). The authority our court relied on was Chief
Justice Rehnquist’s opinion for a unanimous Supreme Court in Heckler v.
Chaney, which held “that an agency’s decision not to prosecute or enforce, 45

Case: 15-40238 Document: 00513054621 Page: 46 Date Filed: 05/26/2015
No. 15-40238
whether through civil or criminal process, is a decision generally committed to
an agency’s absolute discretion.” 470 U.S. 821, 831 (1985); see also Perales v.
Casillas, 903 F.2d 1043, 1047–48 (5th Cir. 1990); see generally 5 U.S.C.
§ 701(a)(2); Ass’n of Flight Attendants-CWA, AFL-CIO v. Huerta, — F.3d —,
No. 13-1316, 2015 WL 2145776, at *1–4 (D.C. Cir. May 8, 2015) (holding that
the court was without jurisdiction to review an internal guidance document
that “inform[s] the exercise of discretion by agents and officers in the field”).1
The district court repeatedly acknowledged the controlling authority of
Heckler and Texas that “‘[r]eal or perceived inadequate enforcement of
immigration laws does not constitute a reviewable abdication of duty,’” but
1 Because I believe that Heckler compels the conclusion that the November 20 memorandum is non-justiciable, I would not reach the issue of standing. At this emergencystay point, I would note only that there has been little developed guidance from lower courts on how far Massachusetts v. EPA’s logic extends for plaintiff-states beyond the facts of that case, which involved a state that asserted an injury based on its own property interests and the relevant statute provided an explicit right to challenge the denial of a rulemaking petition. See 549 U.S. 497, 518–20 (2007). Furthermore, Texas’s inability to articulate a limiting principle to its drivers’ license theory of standing—triggered, it appears, by any federal executive policy that leads to the grant of even one deferred action request—as well as countervailing developments in this court and others, suggest to me that Massachusetts v. EPA may not apply here. See Crane v. Johnson, 783 F.3d 244, 247 (5th Cir. 2015) (holding that the State of Mississippi had not “demonstrated the concrete and particularized injury required to give [it] standing to maintain [its] suit” against the precursor DHS memorandum); Arpaio v. Obama, 27 F. Supp. 3d 185, 207 (D.D.C. 2014) (holding that Sheriff Arpaio did not have standing to challenge the precursor DHS memorandum); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 346 (2006) (holding that plaintiffs do not have standing by virtue of their status as taxpayers to challenge the conferral of tax credits on third parties); Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (per curiam) (holding that Pennsylvania lacked standing to challenge a New Jersey tax that triggered a Pennsylvania tax credit because “nothing prevent[ed] Pennsylvania from withdrawing that credit for taxes paid to New Jersey” and explaining that “[n]o State can be heard to complain about damage inflicted by its own hand”); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (emphasizing that a third party “lacks a judicially cognizable interest in the prosecution or nonprosecution of another”); Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002) (Jones, J., concurring) (“[A] plaintiff who complains merely that a benefit has been unconstitutionally granted to others is asserting only a ‘generalized grievance’ that does not allow the plaintiff standing to obtain judicial relief for the alleged wrong in federal court.”). Given the debatability of the plaintiff-states’ attenuated theory of standing, I would therefore resolve this matter on the threshold issue of non-justiciability.
46

Case: 15-40238 Document: 00513054621 Page: 47 Date Filed: 05/26/2015
No. 15-40238 held “[t]hat is not the situation here” because the November 20 memorandum is “an announced program of non-enforcement of the law that contradicts Congress’ statutory goals.” Texas v. United States, — F. Supp. 3d —, No. B14-254, 2015 WL 648579, at *50 (S.D. Tex. Feb. 16, 2015) (emphases added). This twofold extrapolation—focusing not on the memorandum itself set against current law, but instead on an embellishment of it set against a perceived imperative to remove all illegal immigrants—rests on sublimer intelligences than existing law allows. The district court distinguished Heckler and Texas by drawing an inference of executive overreaching from two sources: first, public statements by the President, and second, the district court’s negative assessment of the earlier DACA 2012 memorandum, an assessment that our court has since rejected in Crane v. Johnson. The district court’s inferences from these two sources led it to characterize the November 20 memorandum as a presidentially “announced program” that thwarts Congress’s “goals” to remove all undocumented immigrants.2
This characterization is the essential point of disagreement I have with the district court’s ruling. Congress could, but has not, removed discretion from DHS as to which undocumented immigrants to apprehend and remove first. See 6 U.S.C. § 202(5) (directing Secretary to “[e]stablish[] national immigration enforcement policies and priorities”); 8 U.S.C. § 1103(a)(3)
2 The district court’s April 7, 2015 order, revisiting its stay, reinforces, in my opinion, this error. The April 7 order rests even more determinatively on press statements of the President to re-emphasize both that “[t]his is not merely ineffective enforcement[,] [t]his is total non-enforcement,” and also, contrary to our intervening Crane decision, that “[i]f there were any doubts that the 2014 DHS Directive is correctly characterized as ‘substantive,’ the President’s warning to DHS employees of adverse consequences for failing to follow the Directive should clearly extinguish those.” Compare April 7 Memorandum Opinion & Order (observing that immigration officers not only lack discretion but will suffer consequences), with Crane, 783 F.3d at 254–55 (holding that DACA 2012’s guidelines and the November 20 memorandum’s guidelines afford immigration officers discretion to grant or withhold deferred action on a case-by-case basis).
47

Case: 15-40238 Document: 00513054621 Page: 48 Date Filed: 05/26/2015
No. 15-40238
(vesting the Secretary 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); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (describing immigration law as “‘a field
where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program’” (quoting Lichter v.
United States, 334 U.S. 742, 785 (1948))). Indeed, the Supreme Court recently
revisited the interplay between Congressional law and coordinate Executive
enforcement responsibility, clarifying that “[a] principal feature of the removal
system is the broad discretion exercised by immigration officials,” who “must
decide whether it makes sense to pursue removal at all,” taking into
consideration, for example, “immediate human concerns,” such as
“[u]nauthorized workers trying to support their families . . . [who] likely pose
less danger than alien smugglers or aliens who commit a serious crime.” Arizona, 132 S. Ct. at 2499; see also Crane, 783 F.3d at 249 (8 U.S.C. § 1225
“does not limit the authority of DHS to determine whether to pursue removal of the immigrant”).3 Even specifically as to deferred action, the Supreme Court
3 As with criminal law enforcement generally, there is no one immigration imperative and blueprint the Executive must follow. See Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 463, 510–11 (2009) (contending that the “detailed, rule-bound immigration code” developed by Congress “has had counterintuitive consequences of delegating tremendous authority to the President to set immigration screening policy by making a huge fraction of noncitizens deportable at the option of the Executive”). Prosecution, as a core executive duty, has elasticity, ranging from nonprosecution altogether, variable and selected charges, guilty plea flexibility, and recommendations for sentencing leniency or severity. See, e.g., City of Seabrook v. Costle, 659 F.2d 1371, 1374 n.3 (5th Cir. 1981) (Although “the word ‘shall’ is normally interpreted to impose a mandatory duty, . . . when duties within the traditional realm of prosecutorial discretion are involved, the courts have not found this maxim controlling.” (internal citation omitted)); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973) (holding that mandatory statutory language directing that each United States attorney “shall . . . prosecute for all offenses against the United States” “has never been thought to preclude the exercise of prosecutorial discretion”). This elasticity was described over a half century ago by the Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935) (a
48

Case: 15-40238 Document: 00513054621 Page: 49 Date Filed: 05/26/2015
No. 15-40238 has recognized that the Executive may choose to take no action “to proceed against an apparently deportable alien” because of “humanitarian reasons.” Reno, 525 U.S. at 484; see also id. at 483 (noting that “[a]t each stage” of removal, the “Executive has discretion to abandon the endeavor”). And in Crane, this court held that the DHS memorandum does not preclude the agency’s exercise of enforcement discretion, a ruling that the district court of course did not have the benefit of. Compare Texas, 2015 WL 648579, at *55 (“Nothing about DAPA genuinely leaves the agency and its employees free to exercise discretion.” (internal quotation marks, alterations, and emphasis omitted)), with Crane, 783 F.3d at 254–55 & n.42 (emphasizing that DACA 2012 “makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action” and that the November 20 memorandum’s case-bycase review of applicants makes it “highly unlikely that the agency would impose an employment sanction against an employee who exercises his discretion to detain an illegal alien”).
prosecutor’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.”). Even more so in the immigration context, the Supreme Court has been sensitive to unique concerns beyond humanitarian circumstances and limited resources, especially foreign policy. See Arizona, 132 S. Ct. at 2499 (“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 . . . .”); Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”); cf. 8 U.S.C. § 1252(g) (recognizing the executive branch’s authority to exercise prosecutorial discretion by generally stripping courts’ jurisdiction to hear any claim “by or on behalf of any alien” arising from the Executive’s decision to “commence proceedings, adjudicate cases, or execute removal orders against any alien”); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 547 (1990) (“[C]ourts should only rarely, if ever, and in limited fashion, entertain constitutional challenges to decisions about which aliens should be admitted or expelled.”).
49

Case: 15-40238 Document: 00513054621 Page: 50 Date Filed: 05/26/2015
No. 15-40238
The plaintiffs point to no statutory removal of the executive discretion
that the Supreme Court and our court emphasize vitally exists in the law.
Regardless, it is undisputed that the Executive presently is deporting a total
number of immigrants at a faster rate than any administration before, ever;
that the Executive is and should allocate limited resources to deport violent
and dangerous immigrants, ahead of citizen–children’s parents who self-report
to DHS acknowledging their illegal presence; and finally, that even categories
of persons, like immigrants cooperating with the government in criminal cases
or who contribute to our Armed Forces, historically receive deferrals.4
4 The Executive’s granting of temporary reprieve from prosecution to categories of individuals is neither new nor uncommon. This occurred, to begin with an example in the immigration context, with the Family Fairness program. In 1987, the INS announced a policy of deferring the deportations of certain children whose parents received legal status under recent legislation. See Legalization and Family Fairness—An Analysis, 64 Interpreter Releases 1190, 1200–1204 (Oct. 26, 1987) (containing policy by Alan C. Nelson, INS Commissioner, providing that “indefinite voluntary departure shall be granted” to these children). In 1990, the INS expanded its deferral program to include certain spouses of legalized persons. Memorandum from Gene McNary, Comm’r, Immigration and Naturalization Serv., to Regional Commissioners, Family Fairness: Guidelines for Voluntary Departure (Feb. 2, 1990) (providing that “[v]oluntary departure will be granted for a one-year period”). The Family Fairness program was effectively codified by Congress later that year. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990). The practice of immigration parole, which “permits a person’s physical presence in the United States even when she could not legally be granted formal admission,” also “originated as a purely administrative innovation.” David A. Martin, A Defense of Immigration-Enforcement Discretion, 122 Yale L.J. Online 167, 178 (2012) (noting that “[t]he practice was well established by the time parole gained explicit statutory sanction in the original 1952 Immigration and Nationality Act”). In the larger criminal context—such as the recent nonprosecution of banks that self-report regarding overseas tax infractions, or nonprosecution of possession of personal use amounts of marijuana—deferred prosecution is common (and more consequential because statutes of limitations make it binding legally). Indeed, the practice of pretrial diversion, set forth in the United States Attorney’s Manual, began as an executive initiative, without express statutory authorization, announced by Assistant Attorney General Burke Marshall in 1964, and then expanded in 1974 by then– Deputy Attorney General Laurence Silberman, before the Pretrial Services Act of 1982 was enacted. See Pre-Trial Diversion: Hearing on H.R. 9007 and S. 798 Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 93d Cong. 127–28 (1974); Stephen J. Rackmill, Printzlien’s Legacy, the “Brooklyn Plan,” A.K.A. Deferred Prosecution, 60 Fed. Probation 1, 8, 10, 14 (June 1996). Such clear and announced enforcement guidelines do several things. They channel limited resources by prioritizing
50

Case: 15-40238 Document: 00513054621 Page: 51 Date Filed: 05/26/2015
No. 15-40238 The district court did not view the November 20 memorandum as a nonprosecution policy. Instead, the district court reads the memorandum as agency action that affirmatively confers legal status and other benefits on undocumented immigrants. The district court, however, failed to recognize the important distinction between lawful “status” and lawful “presence.” Whereas legal status implies “a right protected by law,” legal presence simply reflects an “exercise of discretion by a public official.” See Dhuka v. Holder, 716 F.3d 149, 156 (5th Cir. 2013); see also Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013) (“[U]nlawful presence and unlawful status are distinct concepts.”). The November 20 memorandum like its precursors, dating back to 1975, contemplates categorizing deferred action recipients as being present for a temporary period of time, but does not change the applicant’s lawful “status.” Congress, separately through 8 U.S.C. § 1255, has codified exact ways noncitizens may gain lawful “status,” but has left lawful “presence” broadly defined to include a discretionary “period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii); see also Black’s Law Dictionary 565 (10th ed. 2014) (defining “prosecutorial discretion” in the immigration context as “[a] federal authority’s discretion not to immediately arrest or endeavor to remove an illegal immigrant because the immigrant does not meet the federal government’s immigration-enforcement priorities”). When DHS exercises its discretion to grant a qualified and temporary reprieve from removal, the immigrants’ now-identified “presence” is thus consistent with, and furthers,
targeted felons. They animate the political process so that executive policy-setting either proves its worth and becomes embodied in law, as with pretrial diversion or the Family Fairness program, or oppositely, for myriad reasons—unworkability, unpopularity, or budgetary realities—policies are rescinded or countermanded by law. Third, nonprosecution necessarily means that persons not being prosecuted, arrested, and detained will seek work according to pre-existing law, pay taxes, and parent children. See Nov. 20 Memo at 3 (caseby-case exercises of deferred action will “encourage [people] to come out of the shadows . . . and be counted”).
51

Case: 15-40238 Document: 00513054621 Page: 52 Date Filed: 05/26/2015
No. 15-40238 Congressional enactments. See Chaudhry, 705 F.3d at 292. Non-citizens who only have lawful presence, but not lawful status, are not entitled to remain in the United States; their presence is revocable at any time. The non-citizen thus remains in the country at the discretion of DHS, who may remove the individual whenever it pleases.
The plaintiff-states draw a further flavor of doubt from eligibility for work authorization, whereas amici-states see advantage and financial windfall. That choice is exclusively a task for Congress, however. See Perales, 903 F.2d at 1045, 1047 (holding that the INS’s decision to grant work authorization has been “committed to agency discretion by law” and is therefore not subject to judicial review). Moreover, the November 20 memorandum does not itself “award” work authorization. See U.S. Dep’t. of Labor v. Kast Metals Corp., 744 F.2d 1145, 1156 (5th Cir. 1984) (finding a rule non-substantive because its substantive effect was “purely derivative” of another statute and rules). Work authorization for deferred-action recipients is expressly authorized under a 1981 regulation that was promulgated through notice-and-comment rulemaking. See 8 C.F.R. § 274a.12(c)(14). That authorization has since been reinforced in the United States Code. See 8 U.S.C. § 1324a(h)(3). If an influx of applications makes the statutory availability of work authorization inadvisable, it is for Congress, not the courts, to recalibrate. See, e.g., 8 U.S.C. § 1158(c)(1)(B) (directing the Secretary to grant work authorization to certain categories of non-citizens); id. § 1226(a)(3) (directing the Secretary not to grant work authorization to a certain category of non-citizens).
On this record, as well as focusing below on the four corners of the November 20 memorandum, I would say DHS is adhering to law, not derogating from it. The Supreme Court in Heckler noted that derogation and
52

Case: 15-40238 Document: 00513054621 Page: 53 Date Filed: 05/26/2015
No. 15-40238 abdication occur rarely, where there is statutory language removing nonenforcement discretion yet still “a refusal by the agency to institute proceedings” or “‘consciously and expressly adopt[ing] 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)). Neither exists here. The DHS memorandum guides executive policy that has allowed enforcement and more removals per year than under any prior presidency. Although executive abdication, if renunciatory of Congress, extreme and diametric, must be checked, courts should not truncate the myriad political processes whereby most executive intention, good and bad, is ever balanced. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (“[W]e hardly need to note that an agency’s decision to ignore congressional expectations may expose it to grave political consequences.”); Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543–44 (1978) (“[T]his much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties. Indeed our cases could hardly be more explicit in this regard.” (internal quotation marks and citations omitted)). See generally Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61 (2006).
In fact, if the Supreme Court has insisted on any one constant as it relates to immigration disputes, it is to redirect disputes from the multiplicity of state reactions back to dialogue between our coequal federal political branches so that nationwide concerns and practicalities are weighed, Congress’s purse dispensed as it chooses, and the Executive refines its enforcement priorities or is compelled by Congress to do so. If internal executive policy-setting authority—adjusting to limited resources and making
53

Case: 15-40238 Document: 00513054621 Page: 54 Date Filed: 05/26/2015
No. 15-40238 critical offender severity determinations, all superintended by Congress—now
instead becomes challengeable in courts and forced into “the often cumbersome and time-consuming mechanisms of public input,” Kast Metals, 744 F.2d at 1152, this case, as precedent, may well rise, swell, and burst with clutter
beyond judicial control over immigration removal (in)action. Id. at 1156 (noting that notice and comment “would foresee aeons of rulemaking
proceedings when all the agency seeks to do is operate in a rational manner”). See generally Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1353, 1354 (Silberman, J., dissenting) (cautioning courts against “teas[ing] statutory law
out of a vacuum” created by Congress and ignoring “the zero sum game” of limited Congressional appropriations which require executive agencies to communicate prioritizations via policies).
II. Executive Policy-Setting For the foregoing reasons, I would grant a stay of the district court’s preliminary injunction because I believe the policy articulated in the November 20 memorandum is non-justiciable.5 See supra Part I; see also 5 U.S.C.
5 Absent non-justiciability, I would agree that there is a reason to maintain the status quo pending the government’s approaching appeal on the merits. Compare INS v. Legalization Assistance Project of the L.A. Cnty. Fed’n of Labor, 510 U.S. 1301, 1306 (1993) (O’Connor, Circuit Justice) (granting an application to stay the district court’s order that required enforcement of INS regulations when the district court’s order was “an improper intrusion by a federal court in the workings of a coordinate branch of the Government”), with Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509 (2013) (Breyer, J., dissenting) (“[I]t is a mistake to disrupt the status quo so seriously before the Fifth Circuit has arrived at a considered decision on the merits.”), and Campaign for S. Equality v. Bryant, 773 F.3d 55, 58 (5th Cir. 2014) (granting a stay pending appeal in part because “a temporary maintenance of the status quo” prevents the “inevitable disruption that would arise from a lack of continuity and stability in [an] important area of law”). See generally Jill Wieber Lens, Stays Pending Appeal: Why the Merits Should Not Matter, Fla. St. U. L. Rev. (forthcoming) (manuscript at 35), available at http://ssrn.com/abstract=2571003 (arguing that panels reviewing motions for stay pending appeal should consider “whether the circumstances would (irreparably change) in a way that would interfere with the appellate court’s ability to make a decision meaningful to the parties”).
54

Case: 15-40238 Document: 00513054621 Page: 55 Date Filed: 05/26/2015
No. 15-40238 § 701(a)(2); Perales, 903 F.2d at 1045–47. However, because the district court’s injunction rested solely on the district court’s classification of the November 20 memorandum as agency action issued without adhering to the notice and comment requirements of the APA, I articulate my disagreement on that point as well.
The district court highlighted that “well-developed” caselaw exists to distinguish executive action that is internal policy-setting from executive action that is a procedurally invalid legislative rule because it binds members of the public, the agency, and even courts. See Hudson v. FAA, 192 F.3d 1031, 1035–36 (D.C. Cir. 1999); Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997). Judge Kavanaugh’s well-reasoned opinion in National Mining Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014), succinctly articulates the § 553 framework. Step 1, he explains, is whether the agency has said it is imposing a legally binding rule on regulatees. Id. at 251–52. Even if the agency says it is not, Step 2 asks whether the policy nonetheless draws a line in the sand, coercing conformity. Id. at 252. Finally, Step 3 asks whether postguidance events show that agency action has become “binding on regulated parties.” Id. at 253. The district court correctly noted that “the analysis substantially relies on the specific facts of a given case.” Texas, 2015 WL 648579, at *52. Because the November 20 memorandum has yet to go into effect, and no evidentiary hearing was held, the record is undeveloped and contains considerable conjecture, and conjecture is guided by feeling.
A. Step 1: Agency Characterization The starting point for analysis under § 553(b), though not the deciding factor, is an agency’s own characterization of its action, and specifically whether the agency itself seeks to impose binding obligations as a basis for enforcement action. Prof’ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995); see also Kast Metals, 744 F.2d at 1149; Pac. Gas &
55

Case: 15-40238 Document: 00513054621 Page: 56 Date Filed: 05/26/2015
No. 15-40238 Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 39 (D.C. Cir. 1974). DHS titles its memorandum as internal policy statements expanding prosecutorial discretion for undocumented immigrants who seek “deferred action” instead of removal from the United States. That description is neither a boilerplate beginning nor a final caveat, weak bookends around an imposed regulatory regime. See Huerta, 2015 WL 2145776, at *5 (“The language employed by the agency may play an important role [in determining whether a document is a policy statement or legislative rule]; a document that reads like an edict is likely to be binding, while one riddled with caveats is not.”); Nat’l Mining Ass’n, 758 F.3d at 251–53. No fewer than ten times, the November 20 memorandum instructs immigration officers that: (1) “DHS must exercise prosecutorial discretion in the enforcement of the law”; (2) “[immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case”; (3) “[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission”; (4) “deferred action is legally available so long as it is granted on a case-by-case, and it may be terminated at any time at the agency’s discretion”; (5) “[c]ase-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation’s security and economic interests and make common sense”; (6) “this Department’s limited enforcement resources . . . must continue to be focused on those who represent threats to national security”; (7) “USCIS [should] establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis”; (8) “ICE is further instructed to review pending removal cases . . . and to refer [certain] individuals to USCIS for case-by-case determinations”; (9) “immigration officers will be provided with specific
56

Case: 15-40238 Document: 00513054621 Page: 57 Date Filed: 05/26/2015
No. 15-40238
eligibility criteria for deferred action, but the ultimate judgment as to whether
an immigrant is granted deferred action will be determined on a case-by-case
basis”; and (10) “[i]t remains within the authority of the Executive Branch . . .
to set forth policy for the exercise of prosecutorial discretion and deferred
action . . . . This memorandum is an exercise of that authority.”6
B. Step 2: Intent to Bind
Looking behind an agency’s stated purpose claiming or disclaiming the
force and effect of law, courts also give a close, four-corners look for language
that reads like an edict, commanding language, to discern if a priority
statement nonetheless will operate bindingly on regulatees. Nat’l Mining
Ass’n, 758 F.3d at 252 (“The most important factor concerns the actual legal
effect (or lack thereof) of the agency action in question on regulated entities.”).
6 In this regard, also, the November 20 memorandum is consistent with prior deferred action guidance dating back to at least 1975, which structure executive discretion to delay removal of immigrants who are not priorities for removal. See Immigration and Naturalization Service Operating Instruction 103.1(a)(1)(ii) (1975); Memorandum from Sam Bernsen, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976); Memorandum from Bo Cooper, INS Exercise of Prosecutorial Discretion (July 11, 2000); Memorandum from Doris Meissner, Commissioner, Immigration and Naturalization Service, to Regional Directors et al., Exercising Prosecutorial Discretion (Nov. 17, 2000); Memorandum from William J. Howard, Principal Legal Advisor, ICE, to All Office of the Principal Legal Advisor Chief Counsel, Prosecutorial Discretion (Oct. 24, 2005); Memorandum from Julie L. Myers, Assistant Secretary of Homeland Security, to All Field Office Directors and Special Agents in Charge of U.S. Immigration and Customs Enforcement, Prosecutorial and Custody Discretion (Nov. 7, 2007); Memorandum from John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011). In several instances, prior policies on deferred action were held to be exempt from requirements in § 553. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1009 (9th Cir. 1987) (rejecting claim that the 1981 version of INS Operating Instruction 103.1(a)(1)(ii) “violated the notice-and-comment requirements of the APA, because the amended Operating Instruction qualifies under the APA’s exception for ‘general statements of policy’”); Pasquini v. Morris, 700 F.2d 658, 662 (11th Cir. 1983) (concluding that Operating Instruction 103.1(a)(1)(ii) was exempt from § 553(b) because it was “only general guidance for service employees” (internal quotation marks and citation omitted)).
57

Case: 15-40238 Document: 00513054621 Page: 58 Date Filed: 05/26/2015
No. 15-40238 As a preliminary matter, it is undisputed that any “directing” here is internal only, not binding with respect to regulated entities. And to the extent that DHS directs internally, it directs immigration officers to “establish a process, similar to DACA [2012], for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” (emphasis added), containing features common to nonbinding statements of policy (exempt from notice and comment procedure), and dissimilar from binding substantive regulations (requiring APA rulemaking and public participation). First, the memorandum guides only as to when to exercise broad lenity, i.e. delayed enforcement. The memorandum channels when DHS will not act, much like longstanding Department of Justice internal prosecution guidelines, such as the “Petite Policy,” which “precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) . . . . This policy constitutes an exercise of the Department’s prosecutorial discretion, and applies even where a prior state prosecution would not legally bar a subsequent federal prosecution . . . .” Dual and Successive Prosecution Policy (“Petite Policy”), United States Attorneys’ Manual, Title 9-2.031;7 see also Heckler, 470 U.S. at 832 (“[W]e note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect.”).
7 The Petite Policy, like many other law enforcement policies, is a policy governing prosecutorial discretion as to an undefined class of similarly situated persons that has no express statutory authorization and has never been challenged as ultra vires, either violative of APA rulemaking or as an abdication from the Take Care duty to enforce the federal criminal code. See Heckler, 470 U.S. at 832 (“[A]n agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’” (citation omitted)).
58

Case: 15-40238 Document: 00513054621 Page: 59 Date Filed: 05/26/2015
No. 15-40238 The pretext cases relied on by plaintiffs, see, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000); Phillips Petroleum Co. v. Johnson, 22 F.3d 616 (5th Cir. 1994); McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988); Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) (per curiam), involve, contrastingly, affirmative agency action or exact nonenforcement tolerances, such as food contamination set to parts per billion specificity, not, as here, a nonprosecution memorandum built around offenders who self-report, confirm their whereabouts, submit to background checks, and stay subject to prosecution and removal while seeking employment according to law.
Second, the memorandum neither continues nor imposes a regulatory regime. There is no threat to conform. No obligation or prohibition is placed on regulated entities. Instead, DHS has expanded on its preexisting guidance, allowing immigrants to self-report their illegal presence but show they fall outside DHS’s “enforcement priorities” and also are not otherwise “inappropriate” for deferred action. The memorandum describes opt-in procedures, whose incontestable accomplishment is that persons illegally here will be identified and located and submit to a criminal background check, all the while allowing DHS to tighten border interdiction and target violent and dangerous felons. It goes without saying that to prosecute a fugitive, the government must first find him. Every applicant under the November 20 memorandum voluntarily will self-report as illegally present and provide information DHS then will use in a criminal background check coordinated with Immigration and Customs Enforcement (“ICE”) to effectuate priority removals. Nov. 20 Memo at 3 (“Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation’s security and economic interests and
59

Case: 15-40238 Document: 00513054621 Page: 60 Date Filed: 05/26/2015
No. 15-40238 make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, . . . and be counted.”).
Third, plaintiffs cite no § 553 caselaw relating to a statutory regime whose flexibility the Supreme Court has highlighted, Arizona, 132 S. Ct. at 2499 (“A principal feature of the removal system is the broad discretion exercised by immigration officials.”); 6 U.S.C. § 202(5) (affording the Secretary authority to “[e]stablish[] national immigration enforcement policies and priorities”), set against agency policy guidance that incorporates this same flexibility, such as the criteria that the applicant (1) not be an “enforcement priority”; and (2) “present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” Any invalidating logic must postulate the opposite of these broad caveats, therefore, both that the Supreme Court’s yes (broad discretion over removal) means no (no removal discretion), and also that DHS’s no (no blanket approvals to be present) means yes (give lawful status to millions).8 Also illogical, future policy-setting would seem possible only when executive fiat is absolute, which in turn would maximize executive arbitrariness—unwritten and individualized assessments for deferred action applicants—and minimize information Congress has to perform day-to-day oversight and funding. See Richard J. Pierce, Jr., Administrative Law Treatise, § 6.3, at 424–25 (5th ed. 2010) (warning of the “horrible incentives” if agencies are unable to direct their employees without “the expensive and time-consuming notice and comment procedure”).
8 In its April 7, 2015 supplemental order, the district court construes remarks by the President as a threat to immigration officers to conform to the November 20 memorandum. However, the memorandum instructs officials to use discretion and make case-by-case determinations, so any invalidating logic must actually be that officials understand the threat to mean they must do the opposite of what is in writing, and apply criteria blindly, ignore discretionary criteria, and decline to make case-by-case determinations.
60

Case: 15-40238 Document: 00513054621 Page: 61 Date Filed: 05/26/2015
No. 15-40238 C. Step 3: Implementation Facts Behind label and language, courts vigilantly will look to any postguidelines implementation data to assure, again, that an agency policy announcement does not inadvertently or strategically cause binding effect equivalent to a legislative rule. The concern is to not allow an agency speak one way—claiming resource constraints and discretion—yet carry out de facto regulation, binding regulatees. Put delicately, is the announced discretion “pretext”? Put indelicately, as the district court held, is the Executive being “disingenuous”? Texas, 2015 WL 648579, at *53. The district court held that “[d]espite the [November 20] memorandum’s use of phrases such as ‘case-by-case’ and ‘discretion’” the criteria set forth in the November 20 memorandum were actually “binding.” But because it enjoined the November 20 memorandum before it went into effect, no postguidance evidence exists to help determine “whether the agency has applied the guidance as if it were binding.” Nat’l Mining Ass’n, 758 F.3d at 253. Instead, as noted earlier, the district court looked above DHS, the executive agency, to President Obama, the executive-in-chief to find contradiction to DHS stated purpose and emphasis on case-by-case discretion. For good reason, however, the Supreme Court has not relied on press statements to discern government motivation and test the legality of governmental action, much less inaction. See Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006) (“We have not heretofore, in evaluating the legality of executive action, deferred to comments made by such officials to the media.”). Presidents, like governors and legislators, often describe law enthusiastically yet defend the same law narrowly. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952) (Jackson, J.) (noting “[t]he claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy” yet warning against the use of such “unadjudicated claims of
61

Case: 15-40238 Document: 00513054621 Page: 62 Date Filed: 05/26/2015
No. 15-40238 power” to answer constitutional questions). In addition, our court has noted that “informal communications often exhibit a lack of ‘precision of draftsmanship’” and therefore “are generally entitled to limited weight” in the analysis of whether a rule is substantive. Prof’ls & Patients, 56 F.3d at 599 (quoting Cmty. Nutrition, 818 F.2d at 948).9
More significant, the district court discerned pretext—inferred intent to bind—from the fact that the majority of DACA 2012 deferred action applications have been granted. I disagree for factual and legal reasons.
First, without evidence-taking and testing, I question the relevance of DACA 2012 implementation data. The DACA 2012 memorandum purports to guide the exercise of prosecutorial discretion “with respect to individuals who came to the United States as children,” a subset of undocumented immigrants who are particularly inculpable as they “were brought to this country as children” and, thus, “lacked the intent to violate the law.” That memorandum, in its original form, applies only to individuals who came to the United States under the age of sixteen, have not yet reached the age of thirty, and who have achieved a certain level of education. The November 20 memorandum being challenged here, and specifically its DAPA provisions, on the other hand, casts a much wider net, applying to a larger and broader group of individuals, but then narrows its deferred-action-availability reach through the use of more discretionary criteria than in DACA 2012. Despite these dissimilarities, the district court concluded that “[t]here is no reason to believe that DAPA will be implemented any differently than DACA [2012]” and there was no “suggestion that DAPA will be implemented in a fashion different from DACA [2012].”
9 Much less informally, Presidents often in presidential signing statements say they will not enforce aspects of law, yet no court has used such statements to classify subsequent agency inaction as an intent to bind triggering the APA rulemaking process.
62

Case: 15-40238 Document: 00513054621 Page: 63 Date Filed: 05/26/2015
No. 15-40238 Texas, 2015 WL 648579, at *39, *55 n.96. The court did not explore, however, the government’s contention that a significant difference existed between the two programs, specifically, the catch-all discretionary exception that was added to the November 20 memorandum—“present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.” The district court rejected this distinction because, the court contended, using circular reasoning, that the approval rate under the DACA 2012 program persuaded the Court that “this ‘factor’ is merely pretext.” Id. at *55 n.101.
Second, the district court placed the burden on the government to put forth “evidence of individuals who had been denied [under DACA 2012] for reasons other than not meeting the criteria or technical errors with the form and/or filing.” Id. But “[t]he plaintiff has the burden of introducing sufficient evidence to justify the grant of a preliminary injunction.” See PCI Transp., Inc. v. Fort Worth & W. R. Co., 418 F.3d 535, 545 (5th Cir. 1985). The district court then reached its conclusions about the agency’s binding intent without giving any weight to the government’s contrary evidence or justification for discrediting that evidence. See Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1211 (11th Cir. 2003) (holding that the district court abused its discretion when it “effectively issued and upheld the injunction based on evidence presented by only one party” and without holding an evidentiary hearing); cf. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558–59 (5th Cir. 1987) (finding that the district court did not abuse its discretion by declining to hold an evidentiary hearing where there were no material factual disputes). Especially because this case touches on the sensitive issues of immigrant presence in the United States, as well as when one branch of government may invalidate internal guidelines of another branch, I do not think it should come resolved on inferences of disingenuousness made from press statements and untested inferences from a
63

Case: 15-40238 Document: 00513054621 Page: 64 Date Filed: 05/26/2015
No. 15-40238 precursor program whose challenge on similar grounds our court has rejected. See Crane, 783 F.3d 244. No evidentiary hearing was held. For example, Kenneth Palinkas’s contention that DACA 2012 applicants are “rubberstamped” was not tested against Donald Neufeld’s specific examples of discretionary denials.10 See Sims v. Greene, 161 F.2d 87, 88 (3rd Cir. 1947) (“Such conflict [between allegations in competing pleadings and affidavits] must be resolved by oral testimony since only by hearing the witnesses and observing their demeanor on the stand can the trier of fact determine the veracity of the allegations . . . made by the respective parties. If witnesses are not heard the trial court will be left in the position of preferring one piece of paper to another.”); Heil v. Trailer Int’l Co. v. Kula, 542 F. App’x 329, 334 n.17 (5th Cir. 2013) (“[I]t is fundamental that, ‘[i]f there is a factual controversy, . . . oral testimony is preferable to affidavits because of the opportunity it provides to observe the demeanor of the witnesses.’” (citation omitted)); see also Four Seasons, 320 F.3d at 1211 (“Where conflicting factual information place[s] in serious dispute issues central to [a party’s] claims and much depends upon the accurate presentation of numerous facts, the trial court err[s] in not holding an evidentiary hearing to resolve these hotly contested issues.” (citations and internal quotation marks omitted)); 11 Charles Alan Wright et al., Federal Practice and Procedure § 2949 (3d ed.) (“When the outcome of a Rule 65(a)
10 The government presented a 13-page affidavit of Donald Neufeld, USCIS Associate Director for Service Center Operations, accompanied by over 40 pages of exhibits, which purported to show that USCIS maintains authority and discretion to grant deferred action to non-DAPA applicants and to deny deferred action to applicants who meet the November 20 memorandum’s listed criteria. The affidavit describes specific examples of instances when USCIS denied DACA 2012 requests for discretionary reasons that were not contemplated by the DACA 2012 guidelines. This affidavit was based on Neufeld’s personal knowledge gained during the course of his official duties. Significantly, the district court never mentions Neufeld, and its only reference to his proof was its early rejection of the entire declaration and exhibits, without any detailed discussion, as not providing “the level of detail that the Court requested.” Texas, 2015 WL 648579, at *5.
64

Case: 15-40238 Document: 00513054621 Page: 65 Date Filed: 05/26/2015
No. 15-40238 application depends on resolving a factual conflict by assessing the credibility of opposing witnesses, it seems desirable to require that the determination be made on the basis of their demeanor during direct and cross-examination, rather than on the respective plausibility of their affidavits.”). As a second example, Jeh Johnson, the author of what is held disingenuous, was not heard from. His ten instructions requiring individualized, case-by-case assessment were not tested as pretext. When a court assesses unlawful motive and declares executive action invalid nationwide, highest government officials whose veracity is entirely discredited should be heard. Indeed, the District of Columbia Circuit commendably has developed a “curative option” short of complete invalidation for such circumstances. McLouth, 838 F.2d at 1324 (remanding to permit agency to demonstrate that it is “truly exercis[ing] discretion in individual” cases). This intermediate remedy seems especially noteworthy because of our intervening Crane decision, which calls into doubt the district court’s basis for inferring disingenuousness.11
Third, DACA 2012 itself contains classic markers of discretion, including the ability to interview applicants, request additional evidence, and contact the applicant’s educational institution, other government agencies, employers, or other entities to verify documents and facts. This discretion was actually exercised by DHS; the executive made nearly 200,000 requests for additional evidence under the DACA 2012 program, a fact the district court does not mention. Applications have been denied after an official exercised discretion in applying the criteria set forth in the DACA 2012 memorandum (i.e., making
11 If a concern is that the unanimous panel in Crane itself lacked evidentiary foundation, it would seem even more advisable to require actual and adversarial evidencetaking, avoiding either agency action that is feared to be disingenuous or, an opposite extreme, requiring DHS to prioritize its limited resources only through full public participation.
65

Case: 15-40238 Document: 00513054621 Page: 66 Date Filed: 05/26/2015
No. 15-40238 a subjective determination that the applicant posed a public safety risk), and for reasons not expressly set forth in the DACA 2012 memorandum.
Fourth, and especially significant, placing determinative weight on the approval rate of applicants under DACA 2012 fails to take into account the crucial voluntary aspect of this memorandum, that applicants will not apply if they are ineligible—essentially self-reporting for removal—or, if eligible, when they have any other flaw they do not want revealed. In light of this manifest self-selection bias, it is unclear why the appropriate piece of data would be the approval rate of only applicants, crucially relied on by the district court to infer pretext, rather than the approval rate of all those who qualify. Again, the district court did not address at all this self-selection bias inherent in DACA 2012 and the November 20 memorandum.
Finally, as a leading administrative law scholar has observed, it is to be expected and encouraged that subordinate executive officers will follow enforcement guidelines. See Pierce, Administrative Law Treatise, § 6.3, at 424–25; see also Prof’ls & Patients, 56 F.3d at 599 (agents’ conformance with agency guidance is “not particularly probative whether the rule is substantive” because “what purpose would an agency’s statement of policy serve if agency employees could not refer to it for guidance?”). This positive should not become a negative to invalidate the very delineation of executive authority the APA exists to assure.
D. Commonsense Judge Kavanaugh brackets his National Mining Association framework for the § 553 analysis applied above with commonsense. First, he offers that “agency action that merely explains how the agency will enforce a statute . . . in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy.” Nat’l Mining Ass’n, 758 F.3d at 252. The Supreme Court,
66

Case: 15-40238 Document: 00513054621 Page: 67 Date Filed: 05/26/2015
No. 15-40238 in Arizona, resolved that immigration officials have “broad discretion” to enforce the federal immigration laws, including the “deci[sion] whether it makes sense to pursue removal at all.” Arizona, 132 S. Ct. at 2499. Second, Judge Kavanaugh notes that a token of a general statement of policy is that the agency would have legal authority to undertake the action absent the guidance document. See Nat’l Mining Ass’n, 758 F.3d at 253 (“[W]hen the agency applies [a general statement of] policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” (internal quotation marks and citation omitted)). As described earlier, deferred action has existed for half a century, reflected in longstanding regulations as an “act of administrative convenience,” see 8 C.F.R. § 274a.12(c)(14), and recognized by the Supreme Court as an appropriate exercise of the Executive’s removal discretion, see Reno, 525 U.S. at 483–84. Indeed, the same deferred action decisions for which the November 20 memorandum provides guidance already are permissible under the unchallenged 2014 enforcement priorities memorandum, which is explicitly incorporated into the November 20 memorandum. See Memorandum from Jeh Charles Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014). The November 20 memorandum, by incorporating a framework the plaintiffs admit is discretionary, necessarily contains at least that identical level of discretion.
Conclusion I would hold that the underlying issue presented to us—the order in which non-citizens without documentation must be removed from the United States—must be decided, presently is being decided, and always has been decided, by the federal political branches. See Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors
67

Case: 15-40238 Document: 00513054621 Page: 68 Date Filed: 05/26/2015
No. 15-40238 has been committed to the political branches of the Federal Government.”). On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself.12 The political nature of this dispute is clear from the names on the briefs: hundreds of mayors, police chiefs, sheriffs, attorneys general, governors, and state legislators—not to mention 185 members of Congress, 15 states and the District of Columbia on the one hand, and 113 members of Congress and 26 states on the other. I would not affirm intervention and judicial fiat ordering what Congress has never mandated.
12 Over twenty years ago, Judith Shklar observed in her book American Citizenship, aptly subtitled The Quest for Inclusion, that the United States has an “extremely complicated” history of “exclusions and inclusions, in which xenophobia, racism, religious bigotry, and fear of alien conspiracies have played their part.” Judith N. Shklar, American Citizenship: The Quest for Inclusion 4 (1991). And over two hundred years ago, our noncitizen forebears grieved against their king that, “[h]e has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” The Declaration of Independence (U.S. 1776).
68

Case: 15-40238 Document: 00513054632 Page: 1 Date Filed: 05/26/2015

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

May 26, 2015

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 15-40238 State of Texas, et al v. USA, et al USDC No. 1:14-CV-254

Enclosed is an opinion entered in this case.

Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Jamei R. Schaeffer, Deputy Clerk
Mr. Alexandre I. Afanassiev Mr. Chirag Gopal Badlani Mr. J. Campbell Barker Mr. Michael Bekesha Mr. James Davis Blacklock Mr. David J. Bradley Ms. Beth S. Brinkmann Mr. Joseph Conrad Chapelle Mr. Jeffrey A. Clair Mrs. Angela Veronica Colmenero Mrs. April L. Farris Mr. Matthew Hamilton Frederick Mr. Kyle R. Freeny Mr. Matthew James Ginsburg Ms. Kathleen Roberta Hartnett Mr. William Ernest Havemann Mr. Michael Hethmon Mr. Lawrence John Joseph Mr. Scott A. Keller Mr. Stephen Blake Kinnaird Mr. Adam Paul KohSweeney Mr. Steven James Lechner Mr. Gabriel Markoff Mr. Scott R. McIntosh Mr. Benjamin C. Mizer Ms. Angelique Marie Montano

Case: 15-40238 Document: 00513054632 Page: 2 Date Filed: 05/26/2015
Mr. Leif A. Olson Mr. William Jeffery Olson Mr. Paul Orfanedes Ms. Nina Perales Mr. James Peterson Mr. Bradley S. Phillips Mr. Alex Potapov Mr. Matthew E. Price Mr. Noah Guzzo Purcell Mr. Charles Eugene Roy Mr. Jay A. Sekulow Mr. Ilya Shapiro Mr. Benjamin Gross Shatz Mr. Jeremy W. Shweder Mr. Clifford M. Sloan Ms. Linda J. Smith Ms. Karen Cassandra Tumlin Mr. Seth Paul Waxman Mr. Jonathan Weissglass Mr. Dale Wilcox Mr. Paul Reinherz Wolfson Ms. Elizabeth Bonnie Wydra Mr. Ernest Young

 
 Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

Page 1 of 28
United States District Court Southern District of Texas
ENTERED
May 19, 2016
David J. Bradley, Clerk

STATE OF TEXAS, ET AL.,

§

Plaintiffs,

§

§

V.

§

§

UNITED STATES OF AMERICA, ET AL., §

Defendants.

§

CIVIL NO. B-14-254

MEMORANDUM OPINION AND ORDER

An exchange between two characters from a recent popular film exemplifies what this case is,

and has been, about:

FBI Agent Hoffman:

Don’t go Boy Scout on me. We don’t have a rulebook here.

Attorney James Donovan: You’re Agent Hoffman, yeah?

FBI Agent Hoffman:

Yeah.

Attorney James Donovan: German extraction?

FBI Agent Hoffman:

Yeah, so?

Attorney James Donovan:

My name’s Donovan, Irish, both sides, mother and father. I’m Irish, you’re German, but what makes us both Americans? Just one thing . . . the rulebook.

We call it the Constitution and we agree to the rules and that’s what makes us Americans. It’s all that makes us Americans, so don’t tell me there’s no rulebook . . . .1

Whether it be the Constitution or statutory law, this entire case, at least in this Court, has been

about allegiance to the rulebook. In its prior orders concerning the actual subject matter of this case, the

Court never reached the relative merits or lack thereof of the Defendants’ 2014 Department of

1 BRIDGE OF SPIES (DreamWorks 2015) (emphasis added). Screenplay by Matt Charman, Ethan Coen and Joel Coen.

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 2 of 28
Homeland Security (“DHS”) Directive. The question addressed by this Court was whether the Government had to play by the rules. This Court held that it did. The Fifth Circuit has now also held that the Government must play by the rules, and, of course, that decision is now before the Supreme Court. It was no surprise to this Court, or quite frankly to any experienced legal observer, that this question would ultimately reach the Supreme Court. Consequently, the resolution of whether the Executive Branch can ignore and/or act contrary to existing law or whether it must play by the rulebook now rests entirely with that Court.
What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court.
To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.” [Doc. No. 242 at 18].2 These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.3
2 To explain its conduct, the Government has filed an unredacted brief and a redacted brief with only the latter being produced to the Plaintiff States. [Doc. Nos. 242 & 243]. This Court, by necessity, will cite the unredacted brief [Doc. No. 242] as that is the brief that contains the Government’s explanations. It will not unseal the unredacted brief and will only quote here those segments pertinent to this opinion. 3 Judges on the Ninth Circuit have described a court’s duty to address misconduct:
When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system, and chips away at the foundational
2

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 3 of 28
As the parties know, this Court has been deliberating for quite some time about the proper way to address the series of misrepresentations made by the attorneys from the Justice Department to the Plaintiff States and to this Court. This Court in at least one prior order has detailed the multiple times attorneys for the Government misrepresented the actions being taken (or, according to their representations, not being taken) by their clients. See, e.g., Doc. No. 226. These misrepresentations will be discussed in more detail below; but suffice it to say the Government’s attorneys effectively misled the Plaintiff States into foregoing a request for a temporary restraining order or an earlier injunction hearing. Further, these misrepresentations may have caused more damage in the intervening time period and may cause additional damage in the future. Counsel’s misrepresentations also misdirected the Court as to the timeline involved in the implementation of the 2014 DHS Directive, which included the amendments to the Deferred Action for Childhood Arrivals (“DACA”) program.
I. The Timing of this Order Initially, this Court had decided to postpone ruling on this matter until after a final ruling on the
merits since the injunction it entered was interlocutory, and the Court could not reasonably foresee a fact scenario in which the case would not ultimately be remanded for further proceedings. Subsequent events have changed the landscape in this regard. Usually, the legal issues in a case narrow on appeal until a case reaches the highest rung on the appellate ladder, at which point that court (be it a Court of Appeals or the Supreme Court) has one or two overriding issues that it must resolve. In addressing the request for a temporary injunction, this Court ruled, as is the custom and tradition in American jurisprudence, on the narrowest issue that would resolve the existing controversy: the procedural issue
premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition. United States v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013) (Kozinski, J., dissenting from denial of petition for rehearing en banc). Four judges joined this dissent.
3

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 4 of 28
concerning the Administrative Procedure Act (“APA”). This Court anticipated that the two issues on appeal would be this Court’s ruling on standing and the procedural APA issue, with only the former possibly being case-determinative.
This case, however, has not followed the normal progression. Instead of the issues narrowing on appeal, they have expanded. The Fifth Circuit expanded the holding by not only affirming on the APA procedural violation, but also by ruling that the Plaintiff States have established a substantial likelihood of success on the merits of their claim that Defendants’ actions violated substantive APA standards as well. Texas v. United States, 809 F.3d 134, 146 (5th Cir. 2015). The Supreme Court has apparently expanded the scope of review even further. It has not only granted review of the Fifth Circuit’s judgment, but has also asked the parties to brief the constitutional issues.4 United States v. Texas, 136 S. Ct. 906 (2016) (No. 15-674). Consequently, one now has reason to speculate that the Supreme Court could rule in a way that would negate the need for a remand to this Court. That being the case, the most efficacious path for this Court to follow is to proceed to rule upon what may be the only remaining issue.
II. The Misconduct Involving the Implementation of the 2014 DHS Directive This Court has previously described the events that occurred in this case in its April 7, 2015,
order. [Doc. No. 226]. In summary, this Court and opposing counsel were misled both in writing and in open court on multiple occasions as to when the Defendants would begin to implement the Secretary’s 2014 DHS Directive establishing the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program and amending the DACA program. Opposing counsel and this Court were assured that no action would be taken implementing the 2014 DHS Directive until February 18,
4 This Court has not been the only observer to note this expansion on appeal. “A rather unusual aspect of the case was that, although the lower courts had not decided a constitutional question the states had raised, the Justices added that question on their own.” Lyle Denniston, Immigration Policy: Review and Decision This Term, SCOTUSBLOG (Jan. 19, 2016 9:50 AM), http://scotusblog.com/2016/01/immigration-policy-review-and-decision-this-term.
4

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 5 of 28
2015. Counsel for the Government made these assurances on the record on December 19, 2014, and in open court on January 15, 2015. Similar misrepresentations were made in pleadings filed on January 14, 2015, [Doc. No. 90 at 3] and even after the injunction issued, on February 23, 2015. [Doc. No. 150]. For example, on February 23, 2015, the Government lawyers wrote that: “DHS was to begin accepting requests for modified DACA on February 18, 2015.”5 [Doc. No. 150 at 7]. This representation was made despite the fact that in actuality the DHS had already granted or renewed over 100,000 modified DACA applications using the 2014 DHS Directive.
At the time of the Court’s April 2015 order, the Government had not filed its brief explaining its conduct to the Court. Prior to reviewing that brief, the Court entertained a variety of possible explanations concerning the conduct of the Government lawyers. These included the more innocuous possibilities that the DOJ lawyers lacked knowledge or that they made an innocent mistake that led to the misrepresentations.
Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.6
A. The Government’s Explanation The Government claims that the reason its lawyers were not candid with the Court was that they either “lost focus on the fact” or that somehow “the fact receded in memory or awareness.” [Doc. No. 242 at 18]. The Government’s brief admits that its lawyers, including the lawyers who appeared in this Court, knew that the Defendants were granting three-year DACA renewals using the three-year period
5 This date matches the Government’s earlier representation that “U.S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015 and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015.” [Doc. No. 90 at 3] (emphasis in the original). In reality, by March 3, 2015, over 100,000 requests had been granted. 6 “As of early December 2014, the attorneys who appeared before this Court (and many other attorneys at both the DOJ and DHS) had been informed that DHS was providing three-year deferrals to new and renewal applicants. . . .” [Doc. No. 242 at 8]. Three-year deferrals could only have been granted using the 2014 DHS Directive. See the Government’s brief quoted infra p. 7.
5

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 6 of 28
created by the 2014 DHS Directive at issue in this case. Yet the Government’s lawyers chose not to tell
the Plaintiff States or the Court. In fact, the Justice Department knew that DHS was implementing the
three-year renewal portion of the 2014 DHS Directive weeks before its attorneys told this Court for the
very first time that no such action was being taken. Apparently, lawyers, somewhere in the halls of the
Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of
the DHS in granting three-year DACA renewals using the 2014 DHS Directive was immaterial and
irrelevant to this lawsuit and that the DOJ could therefore just ignore it. [Doc. No. 242 at 17]. Then, for
whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth
about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to
hide it from the Court was unethical.
Such conduct is certainly not worthy of any department whose name includes the word “Justice.”7 Suffice it to say, the citizens of all fifty states, their counsel, the affected aliens and the
judiciary all deserve better.
B. The Misrepresentations by the Government’s Attorneys The Government has admitted to the Court in multiple places that both DHS and DOJ personnel
knew since November of 2014 that three-year DACA renewals were being granted. It was impossible to
grant a three-year deferral using the 2012 DACA criteria. The Government admits the only way these
three-year deferrals could be granted was pursuant to the 2014 DHS Directive—the very subject of the
States’ injunction lawsuit:
7 Just recently, the Sixth Circuit expressed a similar conclusion. It wrote: In closing, we echo the district court’s observations about this case. The lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws—all of them, not just selective ones—in a manner worthy of the Department’s name. The conduct of the IRS’s attorneys in the district court [like the attorneys representing the DHS in this Court] falls outside that tradition. We expect that the IRS will do better going forward. And we order that the IRS comply with the district court’s discovery orders of April 1 and June 16, 2015—without redactions, and without further delay.
In re United States, No. 15-3793, 2016 WL 1105077, at *11 (6th Cir. Mar. 22, 2016) (emphasis added). The district court had earlier written that it questioned “whether or not the Department of Justice is doing justice.” Id. at *5.
6

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 7 of 28
The Government does not dispute, and indeed has never disputed, that the three-year deferrals were pursuant to the 2014 Deferred Action Guidance. Likewise, there is no dispute that the Government also understood the change from two- to three-year grants of deferred action to be a contested issue in the case.
[Doc. No. 242 at 15 n.2] (citation omitted).
1. The December 2014 Misrepresentation
From day one, the Plaintiffs sought to enjoin the entire 2014 DHS Directive. [Doc. Nos. 1 & 5].
The injunction proposed by the Plaintiff States sought to prevent the implementation of “the DHS
Directive of November 20, 2014.” [Doc. No. 5-1]. This by definition included the three-year DACA
deferrals. It is important to remember that the Plaintiff States initially requested that a hearing on the
merits of their motion be held before December 31, 2014. [Doc. No. 5 at 12]. The Plaintiff States
agreed to a later hearing date as a result of the Government’s representations made in a conference call
with the Court on December 19, 2014. During that call, counsel for the Plaintiff States agreed to a
January hearing date, but only did so after being assured by the Government that nothing would happen
between the December 19th call and the hearing date. Out of an abundance of caution, counsel had the
following exchange:
PLAINTIFF STATES’ COUNSEL: . . . [W]e have been operating under the assumption . . . that we absolutely protected our interests in this and that there won’t be any curve balls or surprises about, you know, deferred action documents being issued, you know, tomorrow or on the first of the year . . . [W]e have filed in our pleadings and have pointed out, that, you know, the United States has hired a thousand employees in the initial large processing center and that there are, you know, there is a potential for I think for prejudice or at least changing the calculus on the preliminary injunction inquiry if the state of the playing field changes between now and the 9th of January.
THE COURT: . . . [D]o you anticipate that happening?
COUNSEL FOR THE GOVERNMENT: No, I do not, your Honor. The agency was directed to begin accepting requests for deferred action I believe beginning sometime in -- by mid-February but even after that we wouldn’t anticipate any decisions on those for some time thereafter. So there -- I really would not expect anything between now and the date of the hearing.
7

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 8 of 28
[Doc. No. 184 at 10‒11] (emphasis added). Clearly, counsel for the Plaintiff States was concerned about any intervening implementation of the 2014 DHS Directive that might occur before the injunction hearing. The Government has now conceded that, at the very time counsel told the Court and opposing counsel that no action was taking place, over 100,000 three-year deferred action renewals were being processed using the 2014 DHS Directive.
The response by a DOJ lawyer, who the Government concedes knew that the DHS was already issuing three-year extensions pursuant to the 2014 DHS directive, was:
“I really would not expect anything between now and the date of the hearing.” [Doc. No. 184 at 11] (emphasis added). How the Government can categorize the granting of over 100,000 applications as not being “anything” is beyond comprehension. Even if one did not think the increase in DACA time limits was at issue, a position completely unjustifiable under the circumstances, the duty of candor to the Court would certainly require that one mention the fact that the DHS was going forward with that part of the 2014 DHS Directive.
This was not a curve ball thrown by the Government; this was a spitball which neither the Plaintiff States nor the Court would learn of until March 3, 2015.
2. The January 2015 Misrepresentations One misrepresentation could be understandably a mistake, but the exchange between Counsel and the Court in the January hearing puts to rest any doubt regarding misconduct. On this occasion, the Court was worried about what impact a delay in the briefing schedule requested by the Government might cause. THE COURT: I’m a little concerned about how much time you asked for. If I give you
until the 28th [of January, 2015], can you work with that? COUNSEL FOR THE GOVERNMENT: Let me confer with my co-counsel, but I
believe so.
8

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 9 of 28
Your Honor, in part we’re just discussing about the need to respond to some of the voluminous factual material. If we could have until the 30th, that Friday, that would be preferable.
THE COURT: Okay. And . . . I guess to preempt Mr. Oldham [Counsel for the Plaintiff States] when I ask him does he have any problem with that, he’s going to want to know what’s happening when?
COUNSEL FOR THE GOVERNMENT: And we set this -- we did file yesterday afternoon, Your Honor.
THE COURT: I can’t find it.
COUNSEL FOR THE GOVERNMENT: My apologies.
THE COURT: No, no. It’s here. I just buried it with all my paper.
COUNSEL FOR THE GOVERNMENT: In that document [Motion for Extension of Time, Doc. No. 90] we reiterated that no applications for the revised DACA -this is not even DAPA -- revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.
THE COURT: And nothing is happening on DAPA?
COUNSEL FOR THE GOVERNMENT: So the memorandum said that DAPA should be implemented no sooner than mid[-]May, so DACA is really the first -- the revised DACA is the first deadline.
THE COURT: Okay. Then you can have until the 30th.
COUNSEL FOR THE GOVERNMENT: Okay. Thank you.
THE COURT: Wait, wait. You’re being flagged.
COUNSEL FOR THE GOVERNMENT: Oh, sorry. Just to be clear, I meant no later than. So the memorandum provides that by mid[-]May, DAPA will be stood up.
THE COURT: Okay.
COUNSEL FOR THE GOVERNMENT: But the main -- the driver here would be --
THE COURT: But as far as you know, nothing is going to happen in the next three weeks?
COUNSEL FOR THE GOVERNMENT: No, Your Honor.
9

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 10 of 28
THE COURT: Okay. On either. COUNSEL FOR THE GOVERNMENT: In terms of accepting applications or
granting any up or down applications. THE COURT: Okay. COUNSEL FOR THE GOVERNMENT: For revised DACA, just to be totally clear. [Doc. No. 106 at 133–34] (emphasis added). Twice counsel for the Government (who, according to the Government’s brief, knew that the DHS was already granting renewals using revised DACA) told this Court that the Government would not begin to implement the revised DACA (which includes the three-year extensions) until mid-February. She, in fact, confirmed to this Court that nothing was going to happen. Certainly no one can claim this even approaches candor to the Court. This was not a casual exchange between counsel. This exchange was prompted by the Government’s own request for additional time. It was responsive to a direct inquiry by the Court, which was concerned that its order would, regardless of which side it ultimately favored, be issued in a timely and fair fashion. The reason this Court is certain that there could have been no misinterpretation as to whether the increase to a three-year renewal period was at issue is that it raised that very topic just before the above-quoted exchange. COUNSEL FOR THE GOVERNMENT: And just to be clear on that last point, . . .
there’s one directive that the plaintiffs are challenging in the complaint, and that both is directed toward the DAPA program, but also is a[n] expansion or revision of the DACA program. So to the extent that there’s a revision or expansion of the group that would be eligible to apply for that, we do understand the plaintiffs to be challenging that. THE COURT: The increase in years?
10

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 11 of 28
COUNSEL FOR THE STATES: Your Honor -COUNSEL FOR THE GOVERNMENT: They ask to have you direct and enjoin, and
that directive would allow the revisions to the DACA program that we described in our brief. [Id. at 91] (emphasis added). The brief referred to by counsel described the 2014 DHS Directive as “revis[ing] three aspects of DACA . . . . Second, it extended the period of DACA from two to three years.” [Doc. No. 38 at 29] (emphasis added). Again, there is no doubt that counsel knew the increase in years for a DACA term was a matter of contention. This Court directly raised the issue. The Government admits that the lawyer making these statements knew at the time of this hearing that the DHS was already granting these threeyear extensions (which it also admits are only authorized by the 2014 DHS Directive) instead of the two-year renewals authorized in 2012. Not only did counsel fail to tell the Court that the DHS was already granting relief using the 2014 DHS Directive, she told the Court that nothing would happen with regard to revised DACA until mid-February of 2015.
3. The Lack of Candor After the Injunction If those two instances on the record were not enough, a later incident occurred when again there could be no doubt that the proposed revisions to DACA were at issue. This Court issued its injunction on February 16, 2015. That order enjoined the Government from implementing: . . . any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals (“DACA”) program as outlined in the DAPA Memorandum pending a trial on the merits or until a further order of this Court, the Fifth Circuit Court of Appeals or the United States Supreme Court. [Doc. No. 144 at 2]. This clearly enjoined the three-year renewals created by the 2014 DHS Directive. Those are the same renewals that the Government’s trial counsel, according to the Government’s brief, knew had been occurring since early December of 2014. Despite this knowledge, counsel did not alert
11

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 12 of 28
the Court to this ongoing activity until March 3, 2015—some two weeks later. This should have been
done immediately—especially given the bad faith representations counsel had already made.
To the contrary, what counsel did borders on the incredible. Instead of informing the Court that
its clients had already been implementing the three-year renewals pursuant to the 2014 DHS Directive
since late-November 2014, the Government filed a motion on February 23, 2015, to stay the Court’s
ruling and in that motion stated:
“DHS was to begin accepting requests for modified DACA on February 18, 2015.”
[Doc. No. 150 at 7]. Again no mention was made that the DHS had already been granting three-year
extensions under modified DACA for three months. Regardless of how one spins the facts prior to the
injunction, no one after the injunction could conceivably think that the three-year extensions were not a
matter of contention and were not now enjoined. Yet counsel, who knew of the DHS activity, were not
only silent, but their motion was certainly calculated to give the impression that nothing was happening
or had happened pursuant to the 2014 DHS Directive—when, in fact, by that time over 100,000
applications had already been granted. In the Motion to Stay, counsel also wrote:
Moreover, the Court’s assertion that its Order does not affect the status quo is at odds with the Court’s recognition that DHS had already begun preparing to effectuate the Deferred Action Guidance. See Op. at 76. The Court issued its injunction one business day before USCIS [U.S. Citizenship and Immigration Services] was scheduled to begin accepting requests for deferred action under the modified DACA guidelines. USCIS had spent the prior 90 days—the time period established by the Guidance for implementation—preparing to receive such requests. The injunction sets back substantial preparatory work that has already been undertaken.
[Doc. No. 150 at 17] (emphasis added).8
8 There is actually a fourth misrepresentation that the Government made. On January 14, 2015, when requesting an extension of time, the Government claimed that “Plaintiffs will not be prejudiced by [a] two-week extension . . . because U.S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015, and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015.” [Doc. No. 90 at 3] (emphasis in the original). This Court finds that both of these misrepresentations in pleadings [Doc. Nos. 90 & 150] clearly breach Federal Rule of Civil Procedure 11(b). In sum, counsel twice in hearings and twice in pleadings knowingly made representations to the Court that they knew were not true.
12

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 13 of 28
“[P]reparing to” do something and actually doing it are obviously two different things. What counsel did not say was that, despite the fact that the Government was scheduled “to begin accepting requests for deferred action under the modified DACA guidelines,” it had already granted relief using the modified DACA guidelines over 100,000 times. At this point, even the most calculating attorney would conclude that he or she would have to tell the Court the complete truth.
C. No De Minimis Rule Applies to the Truth In its own defense, the Government has claimed it did not know before February 27, 2015, that the number of individuals that had been granted three-year deferrals between November 24, 2014, and the date of the injunction exceeded 100,000. It claims that it notified the Court very quickly after it realized that the number exceeded 100,000. [Doc. Nos. 242 & 243]. This may be true, but knowing the exact number is beside the point. The Government’s attorneys knew since late-November of 2014 that the DHS was issuing three-year deferrals under the 2014 DHS Directive. Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. See MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013). The Government’s lawyers failed on all three fronts. The actions of the DHS should have been brought to the attention of the opposing counsel and the Court as early as December 19, 2014. The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.
13

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 14 of 28
III. The Rulebook The rules that apply to this case are both succinct and clear. There is no gray area or even
grounds for debate. Attorney conduct in the Southern District of Texas is controlled by Appendix A of its local rules. Appendix A is entitled “Rules of Discipline.” Rule 1 is as follows:
Rule 1. Standards of Conduct. A. Lawyers who practice before this court are required to act as mature and responsible professionals, and the minimum standard of practice shall be the Texas Disciplinary Rules of Professional Conduct. B. Violation of the Texas Disciplinary Rules of Professional Conduct shall be grounds for disciplinary action, but the court is not limited by that code. S.D. Tex. Local Court Rules App. A. Thus, this District has adopted the Texas Disciplinary Rules of Professional Conduct (“Texas Disciplinary Rules”) as its minimum ethical standards. The Court also notes that courts in the Fifth Circuit are not limited to their respective state codes. Indeed, the Fifth Circuit, in an appeal emanating from a Southern District of Texas case, broadened the ethical standards applicable to all lawyers practicing in the Fifth Circuit. In re Dresser Industries, Inc., 972 F.2d 540, 543‒44 (5th Cir. 1992). In that case, which concerned disqualification of counsel, the Court held that for courts in the Fifth Circuit compliance with the local (Texas) disciplinary rules was not in and of itself sufficient. It stated that the conduct of lawyers practicing in this Circuit should certainly include compliance with the applicable state disciplinary rules, but courts should also look at ethical rules “announced by the national profession in the light of the public interest and the litigants’ rights.” Id. at 543. In short order, the Circuit reaffirmed that approach in In re American Airlines, Inc., 972 F.2d 605 (5th Cir. 1992). Regardless of whether state or national standards apply or how many authorities one consults, the result here would be the same. An attorney owes a duty of candor and honesty to the court, and at the very least a duty not to misrepresent the facts to a judge or opposing counsel. The pertinent Texas ethical rules are as follows:
14

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 15 of 28
Rule 3.03. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;
(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.9
Tex. Disciplinary Rules Prof’l Conduct R. 3.03 (emphasis added).
Candor is required by all rules of ethics that could possibly apply here. One definition of
“candor” describes it as being “[t]he quality of being open, honest and sincere.” Candor, BLACK’S LAW
DICTIONARY (10th ed. 2014). The “duty of candor” under which lawyers operate is a bit broader. It is a
“duty to disclose material facts; esp[ecially], a lawyer’s duty not to allow a tribunal to be misled by false
statements, either of law or of fact, that a lawyer knows to be false.” Duty, BLACK’S LAW DICTIONARY
(10th ed. 2014). Most authors would also include that it is a lawyer’s duty not only to be honest but also
not to mislead or allow a court to be misled by half-truths or statements which, while technically honest,
9 Note the obligation placed on counsel to take remedial action.
15

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 16 of 28
are calculated to mislead. MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013).
Of course, that was not the case here. Counsel in this case violated virtually every interpretation of candor. The failure of counsel to inform the counsel for the Plaintiff States and the Court of the DHS activity—activity the Justice Department admittedly knew about—was clearly unethical and clearly misled both counsel for the Plaintiff States and the Court.
Rule 4.01. Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is
necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client. Tex. Disciplinary Rules Prof’l Conduct R. 4.01 (emphasis added).
RULE 8.04. Misconduct (a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;
(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; * * *
Id. R. 8.04 (emphasis added). These are the applicable rules that are incorporated by reference as the controlling rules of the Southern District of Texas.
16

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 17 of 28
Further, compliance with these rules has been mandated by federal law since 1998 when Congress enacted the so-called “McDade Amendment.” That law reads in pertinent part:
§ 530B. Ethical standards for attorneys for the Government (a) An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State. (b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.10
* * * 28 U.S.C. § 530B (emphasis added). Counsel’s conduct in this case was not only unethical, but a failure to comply with federal law.
National standards, to the extent those are represented by the Model Rules of Professional Conduct promulgated by the American Bar Association (“ABA”), do not suggest any contrary result in this case. The applicable ABA rules track those found in the Texas Disciplinary Rules of Professional Conduct.
Rule 3.3 Candor Toward The Tribunal (a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; * * *
MODEL RULES OF PROF’L CONDUCT r. 3.3 (AM. BAR ASS’N 2013) (emphasis added).
10 While this amendment has received criticism from various commentators, virtually none of the criticism has been directed at a lawyer’s duty to be honest with the Court and opposing counsel. See, e.g., Bradley T. Tennis, Uniform Ethical Regulation of Federal Prosecutors, 120 YALE L.J. 144 (2010); Paula J. Casey, Regulating Federal Prosecutors: Why McDade Should Be Repealed, 19 GA. ST. U. L. REV. 395 (2002).
17

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 18 of 28
Rule 4.1 Truthfulness In Statements To Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; . . .
* * * Id. r. 4.1 (emphasis added).
Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice;
* * * Id. r. 8.4 (emphasis added).
IV. The Government’s Conduct Violates the Rulebook This Court has found no authority to support the concept that it is ever ethical and appropriate
conduct to mislead a court and opposing counsel; nor has the Government provided any authority to that effect. That being the case, the Court finds no need for a comprehensive dissertation on the duty of candor and honesty because counsel in this case failed miserably at both. The Government’s lawyers in this case clearly violated their ethical duties.
18

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 19 of 28
To say that the Government acted contrary to its multiple assurances to this Court is, at best, an understatement. The Government knowingly acted contrary to its representations to this Court on over 100,000 occasions.11 This Court finds that the misrepresentations detailed above: (1) were false; (2) were made in bad faith; and (3) misled both the Court and the Plaintiff States.
Both the Court and the attorneys representing the Plaintiff States relied upon February 18, 2015, (the implementation day for the 2014 DHS Directive specified by the Government attorneys) as the controlling date. The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. Their clear intent until the Government misrepresented the facts during the December 19, 2014, conference call was to obtain a hearing before year’s end. Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.
V. The Appropriate Remedy for the Inappropriate Conduct A. What This Court Will Not Do Since there is no doubt that misconduct has occurred and since there is for the first time a
possibility that this case will not be remanded, the Court will take this opportunity to dispose of the only impediment to the Supreme Court issuing a complete and final judgment in this matter. The misconduct
11 The figure quoted at the March 19, 2015, hearing was 108,081. [Doc. No. 203 at 25]. This figure does not include the approximately 2,000 times the Government admitted it actually violated this Court’s injunction. [Doc. No. 247 at 1].
19

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 20 of 28
in this case was intentional, serious and material. In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct. There were over 100,000 instances of conduct contrary to counsel’s representations; such a sizable omission cannot be classified as immaterial.
The most immediate remedy that must be considered for misconduct so blatant and with adverse consequences of such magnitude is the striking of the party’s pleadings. While perhaps an appropriate sanction, as this Court has expressed in prior proceedings and opinions (and despite the overwhelming grounds to do so), it will not strike the Government’s pleadings. In a different situation, this Court might very well have taken that action. This egregious conduct merits it. While this Court has that power (both pursuant to the Rules and under its inherent power), the fact that a federal court might have a power does not mean that court should necessarily exercise it. The national importance of the outcome of this litigation outweighs the benefits to be gained by implementing the ultimate sanction. The citizens of this country and those non-citizens who may be affected by the 2014 DHS Directive deserve an answer and should not be deprived of that answer due to the misconduct of counsel. Further, the Supreme Court has decided to weigh in on these matters. Striking the Government’s pleadings would not only be unfair to the litigants, but also unfair, and perhaps even disrespectful, to the Supreme Court as it would deprive that Court of the ability to thrash out the legal issues in this case. Regardless of how unprofessional the DOJ’s conduct may have been, this Court will not strike the Government’s pleadings.
The second remedy that is most frequently implemented in cases of attorney misconduct is to award the aggrieved parties the attorneys’ fees and costs that may have resulted due to the misconduct. The Supreme Court and Fifth Circuit have consistently recognized the applicability of this form of sanction.
Courts have inherent power to sanction a party that has engaged in bad-faith conduct and can invoke that power to award attorney’s fees. Chambers v. Nasco, Inc., 501 U.S. 32, 45 (1991). “In Chambers, the Supreme Court held that a district court may sanction
20

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 21 of 28
parties for conduct that occurs in portions of the court proceeding that are not part of the trial itself.” FDIC v. Maxxam, Inc., 523 F.3d 566, 590–91 (5th Cir. 2008). In re Skyport Global Communication, Inc., No. 15-20246, 2016 WL 1042526, at *1 (5th Cir. Mar. 14, 2016). This Court finds, however, that this remedy is also inappropriate in this case. The taxpayers of the 26 Plaintiff States are already paying the attorneys’ fees, expenses and costs for the Plaintiff States. The taxpayers of all 50 states (including the 26 Plaintiff States) are paying the attorneys’ fees, expenses and costs of the Government. Thus, the taxpayers of a majority of the states are already paying for the fees and expenses of the plaintiffs and a large portion of those of the defendants, while those of the remaining 24 states are only paying their share of the costs of the defense. The Government’s counsel told this Court that if it sanctions the misconduct of the Government’s attorneys in a monetary fashion, those sanctions would be paid by the taxpayers of the United States. Thus, the taxpayers of the 26 Plaintiff States, who have been wronged by the misconduct, would have to pay for: (1) the original fees, expenses and costs of their own attorneys; (2) a large percentage of the original fees, expenses and costs of opposing counsel; (3) the fees, expenses and costs of their own counsel caused by the misconduct; (4) a large percentage of the fees, expenses and costs of the opposing side caused by the misconduct; plus (5) a substantial portion of whatever sanction amount this Court would levy. Stated another way, the Court would be imposing more costs on the aggrieved parties, and the Justice Department, which is actually responsible for this mess, would go unscathed. There would be no corrective effect and no motivation for the Government’s lawyers to act more appropriately in the future. Since the taxpayers would foot the bill for any fines, fining counsel would not make the Plaintiff States whole, serve as a deterrent to any future misconduct, or act as a punishment
21

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 22 of 28
for any past transgressions. Therefore, this Court will not impose monetary sanctions on the defense
counsel.12
B. The Appropriate Remedy
There is no doubt, however, that because the Government’s counsel breached the most basic
ethical tenets, the Plaintiff States have been damaged and have given up a valuable legal right.
Moreover, counsel for the Government should not be rewarded for their past misconduct. There is
certainly no indication that counsel will not repeat this conduct.13 They knowingly continued to hide
this conduct for months and only admitted it once they realized the number of violations exceeded
100,000. Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional
responsibility in the halls of the Justice Department. In addition to the loss of their opportunity to seek a
temporary restraining order or an earlier injunction hearing date, there remains a distinct possibility that
the Plaintiff States are being damaged and/or will suffer future damages due to these misrepresentations.
All of these factors demand that this Court take some level of action.
This Court hereby orders the Government to file a list of each of the individuals in each of the
Plaintiff States given benefits (and whose benefits have not been withdrawn) under the 2014 DHS
12 One could argue that the Court should order the sanction only be paid by the taxpayers of the 24 non-plaintiff states. This would not be warranted either as those taxpayers committed no wrong. Furthermore, this solution would no doubt create an accounting nightmare for the Treasury Department. 13 Indeed, the conduct of the Justice Department in other aspects of this case has been anything but laudable. For example, counsel did not act appropriately when it later came to light that their clients were actually violating the injunction. The regrettable conduct of the prior counsel involved in the misrepresentations at issue here was exacerbated by the dilatory manner in which their replacements from the Justice Department and their clients tried to evade their duty to correct the actions the Defendants took in violation of this Court’s injunction. The Government admitted it violated this Court’s injunction in over 2,000 instances. [Doc. No. 247 at 1]. Six weeks later, the Government admitted it had not fixed the violations. [Doc. No. 275]. Rather than acting responsibly, professionally and promptly, counsel did not implement effective corrective measures until this Court ordered their clients to actually appear in Court to explain their inaction. [Doc. No. 281]. While this latter conduct is related to the Government’s violations of this Court’s injunction (violations to which the Government has admitted), it was not directly related to the misrepresentations referred to in this Order. Nevertheless, it is not without importance, as this misconduct and the failure of the Justice Department to insist that its clients immediately seek to remedy their violations of this Court’s injunction are indicative of the unprofessional manner in which the attorneys for the Government have approached this case. Ultimately, it took action by this Court to finally force counsel to act as responsible members of the Bar. It goes without saying, or at least it should go without saying, that it is the duty of all attorneys to act professionally whether ordered to by a court or not.
22

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 23 of 28

Directive contrary to its lawyers’ multiple representations. These are the individuals granted benefits

during the period (November 20, 2014‒March 3, 2015) in which the attorneys for the Justice

Department promised that no benefits were being conferred. This list should include all personal

identifiers and locators including names, addresses, “A” file numbers and all available contact

information, together with the date the three-year renewal or approval was granted. This list shall be

separated by individual Plaintiff State. It should be filed in a sealed fashion. The Court, on a showing

of good cause (such as a showing by a state of actual or imminent damage that could be minimized or

prevented by release of the information to one of the Plaintiff States), may release the list or a portion

thereof to the proper authorities in that particular state. Obviously, this list, once filed, will remain

sealed until a further order of this Court.

Notwithstanding the foregoing, the Court will not entertain any requests concerning the release

of this sealed information to any state until the Supreme Court has issued its decision on the issues

currently before it. The Justice Department has until June 10, 2016, to make this filing.

The Court next turns to the topic of candor. Candor in court is such a self-evident concept that it

is almost too mundane to discuss in an opinion. Indeed, when one addresses the need for honesty in

court, it is hard not to speak in platitudes. It is such a truism that all Americans, if not individuals

worldwide, are familiar with the requirement. This concept is so pervasive that it can be seen in almost

any aspect of society. One example that easily comes to mind is that drawn from the beloved movie

Miracle on 34th Street when the young child of the assistant district attorney is called to the witness

stand:

Mr. Gailey:

Will Thomas Mara please take the stand?

(Attorney for Mr. Kringle)

Thomas Mara Sr.:

Who, me?

(Assistant District Attorney)

23

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 24 of 28

Mr. Gailey:

Thomas Mara Jr.

(Spectators Murmuring)

Tommy Mara Jr.:

Hello, Daddy.

Mr. Gailey:

Here you are, Tommy.

The Judge:

Tommy, you know the difference between telling the truth and telling a lie, don’t you?

Tommy Mara Jr.:

Gosh, everybody knows you shouldn’t tell a lie, especially in court.

The Judge:

(Spectators Chuckling) Proceed, Mr. Gailey.14

The need to tell the truth, especially in court, was obvious to a fictional young Tommy Mara Jr.

in 1947, yet there are certain attorneys in the Justice Department who apparently have not received that

message, or more likely have just decided they are above such trivial concepts. Regardless of the

motivation behind the conduct, multiple misrepresentations over a period of months both in pleadings

and in open court cannot be ignored—especially when, as here, they were made knowingly and had the

effect of depriving the millions of individuals represented by the Plaintiff States of a valuable remedy.

While this Court does not hold the Department of Justice attorneys to a higher standard than it

would attorneys practicing elsewhere, it would hope that the Justice Department, itself, would seek to

maintain the highest ethical standards. The Justice Department purports to represent all Americans—not

just those who are in favor of whatever actions the Department is seeking to prosecute or defend. The

end result never justifies misconduct. That is the stance the Justice Department takes daily in thousands

of its other cases, and it is no less applicable here.

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in

the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with

14 MIRACLE ON 34TH STREET (20th Century Fox 1947) (emphasis added). Screenplay by George Seaton.

24

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 25 of 28
their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course.15 It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction. The format of this continuing education shall be left to the independent expert lecturer. Self-study or online study will not comply with this Order, but attendance at a recognized, independently sponsored program shall suffice.
Despite the fact that 26 different jurisdictions are involved, this ethics requirement should not be a task that places too great of a burden on the Department. First of all, the vast majority, if not all, of the 26 states in question have adopted a version of the ABA Model Rules of Professional Conduct (“ABA Model Rules”). Consequently, compliance with the Order should not be too cumbersome.16 Further, this Court’s Order is requiring no more than what the Justice Department should have been, but obviously is not effectively, doing already. This Order will merely ensure compliance with the legal standards already placed upon Justice Department attorneys by 28 U.S.C. § 530B(a). For example, the ethical standards of Texas and the Southern District of Texas were clearly violated in this proceeding. Education as to ethical standards should be a crucial part of the Justice Department’s continuing legal education, even if it were not included as part of this Order.
15 The Plaintiff States include: the State of Alabama, the State of Arizona, the State of Arkansas, the State of Florida, the State of Georgia, the State of Idaho, the State of Indiana, the State of Kansas, the State of Louisiana, the State of Maine, the State of Michigan, the State of Mississippi, the State of Montana, the State of Nebraska, the State of Nevada, the State of North Carolina, the State of North Dakota, the State of Ohio, the State of Oklahoma, the State of South Carolina, the State of South Dakota, the State of Tennessee, the State of Texas, the State of Utah, the State of West Virginia and the State of Wisconsin. 16 For example, as quoted above, the Texas Disciplinary Rules and the ABA Model Rules are almost identical. With regard to the duty of candor, this will no doubt be true for most states as this Court has not found any code of conduct that specifically allows counsel to misrepresent the facts to a court.
25

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 26 of 28
The Attorney General of the United States shall appoint a person within the Department to ensure compliance with this Order. That person shall annually file one report with this Court including a list of the Justice Department attorneys stationed in Washington, D.C. who have appeared in any court in the Plaintiff States with a certification (including the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended) that each has attended the above-ordered ethical training course. That certification shall be filed in this cause during the last two weeks of each calendar year it covers. The initial report shall be filed no later than December 31, 2016. This Order shall remain in force for a period of five years (the last report being due December 31, 2021).
The decision of the lawyers who apparently determined that these three-year renewals under the 2014 DHS Directive were not covered by the Plaintiff States’ pleadings was clearly unreasonable. The conduct of the lawyers who then covered up this decision was even worse. Therefore, the Attorney General is hereby ordered to report to this Court in sixty (60) days with a comprehensive plan to prevent this unethical conduct from ever occurring again. Specifically, this report should include what steps the Attorney General is taking to ensure that the lawyers of the Justice Department will not, despite what court documents may portend or what a court may order, unilaterally decide what is “material” and “relevant” in a lawsuit and then misrepresent that decision to a Court. Stated differently, the Attorney General is also hereby ordered to report what steps she is taking to ensure that, if Justice Department lawyers make such an internal decision without approval from the applicable court, the Justice Department trial lawyers tell the truth—the entire truth—about those decisions to the court and opposing counsel.17
17 While denying misconduct, the Government concedes that “[k]nowing misrepresentations to a court would strike at the heart of the Judiciary’s confidence in DOJ and its mission, not just in this litigation but in other matters. . . .” [Doc. No. 242 at 27]. Obviously, this Court agrees that unethical conduct undermines the DOJ’s mission.
26

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 27 of 28
Finally, whatever it is that the Department of Justice Office of Professional Responsibility has been doing, it has not been effective. The Office of Professional Responsibility purports to have as its mission, according to the Department of Justice’s website, the duty to ensure that Department of Justice attorneys “perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency.” Office of Professional Responsibility, DEP’T OF JUSTICE, https://www.justice.gov/opr (last visited May 17, 2016). Its lawyers in this case did not meet the most basic expectations.18 The Attorney General is hereby ordered to inform this Court within sixty (60) days of what steps she is taking to ensure that the Office of Professional Responsibility effectively polices the conduct of the Justice Department lawyers and appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.
VI. Conclusion This Order is tailored to give the 26 Plaintiff States some avenue for relief from the possibility of
any damage that may result from the misconduct of the Defendants’ lawyers and to prevent future harm to any Plaintiff State due to the Government’s misrepresentations. The Court also enters this Order to deter and prevent future misconduct by Justice Department lawyers by ordering an appropriately tailored continuing legal education program, which will not only serve to educate the uninitiated, but more importantly will remind all trial lawyers that their honest and ethical participation is a necessity for the proper administration of justice. It also compels the Attorney General, or her designee, to take the necessary steps to ensure that DOJ attorneys act honestly in the future.
18 Other courts have noticed these problems as well. Just in the last six months, both the Fifth Circuit and the Sixth Circuit have questioned the conduct of those employed by the Department of Justice. United States v. Bowen, 799 F.3d 336 (5th Cir. 2015); In re United States, No. 15-3793, 2016 WL 1105077 (6th Cir. Mar. 22, 2016). The Fifth Circuit went further and suggested that not only was there misleading conduct, but the conduct was followed by an inadequate investigation and a cover-up. These are just two of an ever-growing number of opinions that demonstrate the lack of ethical awareness and/or compliance by some at the Department of Justice.
27

Case 1:14-cv-00254 Document 347 Filed in TXSD on 05/19/16 Page 28 of 28
The Court does not have the power to disbar the counsel in this case, but it does have the power to revoke the pro hac vice status of out-of-state lawyers who act unethically in court. By a separate sealed order that it is simultaneously issuing, that is being done.
The Court notes that to its knowledge none of the acts cited in this or prior orders were committed by attorneys from the United States Attorney’s Office in the Southern District of Texas. To date, without exception, these attorneys have acted and continue to act, in this Court’s experience, with honor, professionalism and forthrightness. Further, while the misconduct involved at least two or more attorneys from the Justice Department, to this Court’s knowledge, no acts occurred during the tenure of the current Attorney General. The Court cannot help but hope that the new Attorney General, being a former United States Attorney, would also believe strongly that it is the duty of DOJ attorneys to act honestly in all of their dealings with a court, with opposing counsel and with the American people.
All motions for discovery, motions for different sanctions, or requests for further relief (including those made in Doc. Nos. 183 and 188) relating to the misrepresentations of counsel in this case, other than those instituted by this Order, are hereby denied. Further, all remaining motions filed by any party are denied.
Signed this 19th day of May, 2016.
________________________________ Andrew S. Hanen United States District Judge
28

 
 (Slip Opinion)

Cite as: 579 U. S. ____ (2016)

1

Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–674
_________________
UNITED STATES, ET AL., PETITIONERS v.
 TEXAS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE FIFTH CIRCUIT
 [June 23, 2016] 

PER CURIAM. 
 The judgment is affirmed by an equally divided Court.


 
 Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

Page 1 of 19
United States District Court Southern District of Texas
ENTERED
January 19, 2017
David J. Bradley, Clerk

STATE OF TEXAS, ET AL.,

§

Plaintiffs,

§

§

V.

§

§

UNITED STATES OF AMERICA, ET AL., §

Defendants.

§

CIVIL NO. B-14-254

MEMORANDUM OPINION AND ORDER
After the Supreme Court of the United States denied the Defendant’s Motion for Rehearing, the Court ordered the parties to present the Court with an agreed scheduling order that would govern this case through its conclusion. Instead, the parties, due to the upcoming change in administrations, filed a joint motion to stay merits proceedings. [Doc. No. 430]. The Court will address that motion and other outstanding motions in a separate order.
The Court, however, finds this period of inactivity to be the appropriate time to address certain remaining issues—primarily those that concern this Court’s stay of its earlier sanctions order based upon the misrepresentations made to the Plaintiffs and the Court by counsel for Defendants. The Court has detailed the facts concerning those misrepresentations in prior orders and sees no need to describe that conduct here. Suffice it to say, while admitting the facts that support the findings of misconduct, the Justice Department has objected to the actual findings of misconduct and the scope of the remedial action the Court has ordered. The Court will briefly revisit the genesis of the Justice Department complaints.
The initial controversy was caused by the four misrepresentations—made in open court and/or in pleadings. As stated above, this Court has detailed them ad nauseam and there is no

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 2 of 19

need to rehash those here. The problem was enhanced by the Justice Department’s “strategic” decision not to support its explanation surrounding the misrepresentations with evidence. When the Department offered the argument that these misrepresentations were made inadvertently, the Court pointed out that the Justice Department had filed no proof to support this position.1 In essence, this Court only had evidence of misconduct (which was conceded in the Government’s briefing to have been done knowingly) and no evidence supporting any other conclusion. It is one thing not to file evidence initially, but when a judge points out the omission and gives a litigant a chance to correct it and that litigant does not, that litigant can only blame itself or its lawyers for any adverse outcome.
The Justice Department has most recently complained about the scope of this Court’s sanctions order.2 Tellingly, in its briefing objecting to the order compelling continuing legal

1 [See, e.g., Hr’g Tr., June 23, 2015] in which the following exchange took place:

JUSTICE DEPARTMENT LAWYER:

Taking a look at the privilege log, the dates in the metadata list chart that we provided, that those in combination with the narrative hopefully lay to rest any concerns that anyone from the government’s side was trying to intentionally mislead anyone, certainly not the Court or the plaintiffs; that it was a genuine disconnect in not understanding what the questions were.

THE COURT:

Where do I get that? I’m not arguing with you that that evidence may show that, but where is that evidence? Help me here.

JUSTICE DEPARTMENT LAWYER: The evidence is in the narrative as well as in the - -

THE COURT:

I mean, do I have any affidavits? Do I have any proof? I mean, that’s really what I - - I need to see.

JUSTICE DEPARTMENT LAWYER: “Your Honor, no, we haven’t provided any affidavits.” [Doc. No. 275, at 10] (emphasis added).
2 On May 19, 2016, this Court issued two separate orders. The Government objected to the scope of the sanctions order compelling ethics training for its lawyers at Main Justice. [Doc. No. 347]. In contrast, the Government objected to the sealed order in its entirety. [Doc. No. 348]. Though this Order addresses both the sanctions order and the sealed order, they are at times referenced individually. Individual references to the Court’s prior orders will be apparent from context throughout this opinion.

2

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 3 of 19
ethics education for those lawyers practicing in the main Washington, DC office of the Justice
Department, the Department left out the crucial fact that it explicitly asked this Court to
implement government-wide sanctions if it chose to implement any sanctions at all. In its
Memorandum following the hearing of August 19, 2015 [Doc. No. 305], the Justice Department
wrote the following:
Independent of any of the above discussion, one important point bears emphasizing: the Federal Government as a whole is responsible for the conduct of this litigation. A large team of attorneys at DOJ and DHS, including the latter’s components, have worked together throughout this litigation. Whatever the result of these proceedings, therefore, the proper subject for any sanction or equitable order is the Federal Government. Setting aside that no individual attorney has received any notice that he or she may be subject to sanctions, see Section I.B, supra, it would be fundamentally unfair to sanction any individual―in his or her official or personal capacity―for the Government’s unintentional miscommunication in the conduct of this litigation. Thus, whatever the result here, the Government as a whole should be held responsible, not any individual person or attorney.
[Doc. No. 305, at 14] (emphasis added). This Court agreed, at least in part, with the Justice
Department’s assessment of the proper scope of potential sanctions, and acted accordingly. If
anything, this Court’s order is much narrower than what the Justice Department requested as the
Court limited the ruling to those in the actual office responsible for the faulty representations,
and did not include the lawyers from the Department of Homeland Security (DHS) or White
House who had been participating behind the scenes.
In summary, the Justice Department made the initial misrepresentations, then it admitted
that they were made knowingly—but somehow accidently—yet refused to file any evidence to
support the latter claim. It then asked this Court to sanction the entire Government. It should
have come to no one’s surprise that this Court reached its decision using the only evidence it had,
and entered a sanctions order (although not as broad of one as the Justice Department had
requested).
3

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 4 of 19
The Justice Department’s reaction to this Court’s orders was equally baffling. Instead of providing the Court with the long overdue evidence explaining its actions, it filed with the Court various pleadings—some of which contained affidavits—but none that explained why the misrepresentations were inadvertent mistakes instead of intentional misconduct.
As the parties have long known, this Court has historically been quite reluctant to sanction lawyers and has only done so sparingly and then only as a last resort. In this case, the Court did not issue sanctions when it first realized that the Plaintiff-States and the Court had not been told the truth. It gave the Government every opportunity to explain the misstatements and even solicited evidence that would demonstrate that the misrepresentations were due to an accident or mistake or through some breakdown in communication between the lawyers and their clients. [See, e.g., Doc. No. 226]. The Justice Department nevertheless chose to forgo filing any exculpatory evidence and elected to stand pat with no evidence explaining the misstatements. [See Hr’g Tr. June 23, 2015 filed as Doc. No. 275, as quoted above in part in footnote 1].
Yet, despite the lack of any evidence to explain the statements that the Department conceded were erroneous, the Court did not immediately issue sanctions. It reviewed two sets of in camera documents filed by the Defendants. Those documents, while somewhat informative, contained no explanation for the misrepresentations. The Government had also filed two additional sets of documents under seal, but asked the Court not to review those. While this procedure is somewhat unprecedented, this Court honored that request. Since the first two sets of documents contained no explanation for the misstatements and since there were no declarations providing such information, this Court assumed that the explanation must be contained in those documents that it was asked not to review.
4

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 5 of 19
With that in mind, the Court issued an order signaling to the parties that it was about to rule. In that order, the Court warned the parties that (1) the Court would not base its ruling on evidence it did not have or could not see; and (2) that the Government needed to decide what evidence, if any, the Government wanted the Court to review. [Doc. No. 342]. The Court then returned the two unreviewed in camera packets to defense counsel. The Government eventually kept one packet and returned the other packet for the Court to review. Those documents, like the two original sets the Court had previously reviewed, contained no facts that explained the misrepresentations. More importantly, despite having been given a clear indication that the Court was nearing a ruling, the Government persisted in its decision not to file any evidence, declarations or affidavits to explain the statements that it conceded were misrepresentations of the truth.
Finally, only after the Court issued the sanctions order and more than a year after the Court pointed out that the Justice Department had provided no evidence, the Government decided to actually file the evidence it should have originally filed. The Government filed ten affidavits/declarations from lawyers with some involvement with its trial team, including one from each of the attorneys who made the actual misrepresentations. Traditionally, a court would not accept or consider evidence filed after the trial or after a decision was made. Not surprisingly, most courts reject late-filed evidence—especially in circumstances, such as in the instant case, where the Court had pointed out its absence and where that evidence was easily obtainable.3
3 All, but one, of late-filed affidavits were averred to by the Justice Department employees and could have easily been obtained at any time. The lone exception was a former Justice Department lawyer, who according to other declarations, was a friend and colleague of the other affiants. That being the case, that declaration would presumably have been easily obtainable as well.
5

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 6 of 19
One does not need a law degree from an elite law school to know that the time to file evidence is before a decision is made. The Government’s failure to file evidence before the orders were issued is nothing short of stunning—especially since their briefing admitted the misrepresentations were made by individuals who knew that the statements were wrong. One would have expected the explanation to have been filed almost immediately when the misrepresentations became apparent. The decision not to file evidence after the issue arose but before the Court pointed out the absence was questionable; the decision not to file evidence after the Court pointed out the absence is inexplicable.
Almost as inexplicable is the Justice Department’s complaint about the breadth of the sanctions order. While this Court is always concerned about the conduct of the lawyers that appear before it, even in those few instances when it has sanctioned a lawyer, it has never sanctioned an entity or a law firm. It did so in this case for two reasons. First, the Justice Department asked that if sanctions were imposed, that they be imposed on the entire “federal government.” [Doc. No. 305, page 14]. Thus, the order entered was much narrower than that requested. Secondly, it was always apparent to this Court, and confirmed by the Department’s admissions, that multiple lawyers from several federal entities were involved in almost every presentation to this Court.4 While it appears the Government believed in a “team approach” when it filed the broad sanctions suggestion, apparently the team approach was jettisoned once the Court actually took the Department at its word. Consequently, the Court is now faced with yet another instance in which the Department is, in effect, conceding: “Yes we said it, but we did not mean it.” In essence, this is the fifth time the Court believed what it was told by the
4 Indeed, the Government has stated that over 50 lawyers were involved in the handling and oversight of this case. [Doc. No. 382‒5].
6

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 7 of 19
Justice Department only to be later informed by its lawyers that the Department’s statements were not accurate and were not worthy of the Court’s reliance.
Nevertheless, two important factors have arisen since the time the Government finally chose to file the evidence long-requested by the Court. First, the country has held a national election—the result of which has caused the parties to file a motion to stay. As stated above, that issue will be addressed in a separate order. Second, and more directly related to the evaluation of the need for remedial action, the second anniversary for the three-year Deferred Action for Childhood Arrivals (DACA) extensions—the subject matter of the misrepresentations—has come and gone.
In November of 2014, pursuant to DHS’s announced policy and according to the now corrected position of the Government, DHS began processing and renewing DACA applications for a three-year period instead of the previously applicable two-year period. This Court in the original sanctions order tried to balance the need for potential remedial action for any PlaintiffState damaged by these misrepresentations with the rights of those individuals who might ultimately be affected. To create an efficient means of effectuating remedial action while still maintaining the privacy of the aliens participating in the DACA program, the Court ordered identifying information concerning those individuals who were covered by misrepresentations, to be filed under seal. No one, not even the Court, would review this information except in the event of good cause related directly to some damage caused to the Plaintiff-States by the Defendants’ misrepresentations and only then if the disclosure would remediate the damage.
Two years have now passed since the three-year renewals were initiated. To date, no Plaintiff-State has made a claim in this Court that it has been harmed by the misrepresentations. The Court concedes that the Plaintiff-States are somewhat handicapped in this matter as they
7

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 8 of 19
have not been privy to many of the filings nor do they have a list of those who received the threeyear renewals. It also notes that the upcoming year is arguably the “extra” year covered by the misrepresentations. Consequently, Plaintiffs’ ability to pinpoint a finite damage claim and to relate it to the misrepresentations may be difficult at best. Nevertheless, the fact remains that no such claim has been made in the past two years, and in the next 12–18 months all such renewals will expire.
Given that these misrepresentations have apparently not caused the Plaintiff-States harm since the time they were made, this Court sees no current need for the Defendants to file with the Court the personnel identifiers of those individuals covered by the misrepresentations. The Court does not mean to imply that should good cause arise, it will not take some similar remedial action if a Plaintiff-State is being harmed by the misrepresentations and the identifying information will alleviate or mitigate that damage.
The one remaining sanctions-related issue is whether the sanctions order should be vacated in light of the evidence that the Justice Department has finally filed. This issue actually has two components: (1) should the Court consider the declarations that were filed months after the Court issued the May 19, 2016 orders; and (2) if considered, do the declarations support a different conclusion?
While this Court remains perplexed that the Justice Department originally made the conscious decision not to file any affidavits/declarations or any other evidence to support the claims made in its briefs, the Court has elected to consider the untimely declarations. The reasons for this decision are threefold. Two have already been referenced. First, this Court does not view sanctions as an integral part of any case management scenario. While a sanction is always part of the arsenal that a court has to ensure the orderly and civil disposition of any case,
8

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 9 of 19
sanctions are always viewed, at least by this Court, as a weapon of last resort to be utilized only when needed to remediate past harms and/or to prevent further misconduct. This leads to the second reason to consider the ill-timed evidence. As stated above, two years have passed since the first unfortunate representations were made, and the Court has not been presented with any firm and tangible claim that any of the Plaintiff-States have suffered any harm due to these statements.
Finally, as understood by all counsel in this case, the sanctions, while certainly not burdensome for the Justice Department, do have serious secondary consequences. Certainly, attorneys that commit certain untoward, unethical, or illegal acts deserve the consequences that follow from that misconduct. Conversely, the Court has never held that those who have merely committed an unintended misstep or mistake that has either caused no harm or that has caused harm that the offending party has tried to fix in a prompt and professional manner should be punished beyond the level necessary to make the opposing party whole. Given that all three of these reasons exist in the instant case, the Court shall consider the late-filed evidence.
The Court hereby withdraws the sanctions portion of the order it issued on May 19, 2016. [Doc. No. 347]. It does not withdraw the opinion it issued on that date [Doc. No. 347], because, based on the evidence the Court had before it at the time the opinion was written, it was, and is, entirely accurate. Document Number 348, the sealed order, is withdrawn in its entirety. [Doc. No. 348]. This Court remains stunned that the Justice Department, after admitting that its attorneys misrepresented the facts, and did so knowing what the actual facts were, chose to present no exculpatory evidence when faced with the possibility of sanctions. This decision seems even more puzzling given that the briefing filed by the Government effectively conceded misconduct and the fact that this Court pointed out the lack of mitigating evidence.
9

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 10 of 19
Nevertheless, the Court allowed the Department to file evidence after the fact and it would not have done so merely to waste the time and resources of the litigants. The Court has reviewed each declaration carefully, and with one glaring exception, finds each to be credible. Moreover, the Court, not surprisingly, has viewed the declarations of the two individuals most intimately involved with the representations with great interest. Despite the fact that this Court still does not fully comprehend what led to the individuals in question to the revelation that triggered the subsequent disclosure of the misstatements to the Court and why this epiphany did not occur earlier, this Court finds, given its review of the declarations and the surrounding circumstances and context, that the two individuals in question did not intend their statements to be inaccurate. They acted with no intent to deceive the other parties or the Court.
In this Court’s experience, the majority of judges do not subscribe to a “heat of battle/press of business” defense/excuse such as that described in the declarations in question. Work on other projects or cases is never an excuse for intentional or bad faith misconduct. Fortunately, for the declarants in this case, this Court follows the minority view in this area―at least in the circumstances that exist here. Regardless as to how busy a lawyer is, he or she owes the same duty of ethical behavior to his or her fellow litigants, co-counsel, opposing counsel and to the Court. Nevertheless, while the press of business does not excuse misconduct, it goes without saying that the busier one is, the greater the chance that one may inadvertently make a mistake.
This Court does not sanction inadvertent mistakes. While it may award costs or fees where appropriate to an innocent party who suffers harm due to attorney misconduct, that harm, as noted above, has not (yet) occurred here. Furthermore, as this Court has noted in prior orders, such an order in this instance might only serve to penalize the taxpayers. This Court finds based
10

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 11 of 19
upon the newly filed evidence, that the statements in question, though repeated on multiple occasions, were not the product of a bad faith intent to deceive the Court or that they were made with malice. The statements were not accurate. Those who made them and those who approved those statements knew the accurate facts and should have corrected them; yet somehow all concerned did not connect the dots between the statements being made and DHS’s actual activity. While many would find this disconnect to be nearly impossible absent bad faith or malice, this Court finds based upon the evidence finally produced that the attorneys in question did not intend to be dishonest and would not have made the misrepresentations had they recognized them to be inaccurate. Had the Government come forward with this evidence sooner, all concerned would have been spared a lot of work and anxiety.
This Court cannot end this Order without recognizing two factors (one positive, one decidedly negative). First, the Court was informed by one of the late-filed affidavits that the Justice Department has, since this Court’s original orders, instituted an additional one hour ethics class for attorneys in the civil division. This is certainly a positive development, but it is far short of the goal for which the Justice Department should be striving.
The Justice Department is the law firm for every person in the United States. The Court earlier referenced “one glaring exception” that it had concerning the credibility of the declarants in this case. Virtually every affidavit filed by the Justice Department claims in so many words that the Department or its lawyers are committed to the “highest standards of ethical conduct and professionalism.” The evidence and the facts revealed in open court in this case do not support that conclusion. It goes without saying that the law requires Justice Department attorneys to act in conformance with the ethical standards of the locales in which they practice. Yet, shockingly, the Department does not have a training program to ensure that the attorneys even read the
11

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 12 of 19
applicable rules. That being the case, their actual compliance with the law is more a matter of luck than true dedication to controlling ethical principles.
This also means that the Department is making no concerted attempt to ensure that its lawyers either knowingly comply with the applicable jurisdiction’s rules or comply with the McDade Amendment. (How can one knowingly comply with the rules if one does not know what the rules are?) Contrary to the suggestion made to this Court, the similarity among the ethical codes of many states and the generality of shared ethical concepts in those codes does not ensure an attorney’s compliance with the McDade Amendment. [See Hr’g Tr. 21, Aug. 31, 2016]. In that same in-court exchange, this Court asked the attorney representing the Civil Division of the Justice Department whether the Department had any policy that ensured compliance with the McDade Amendment. [See Hr’g Tr. 19‒21]. It is worrisome that the attorney could not provide a simple “Yes” to this Court’s question. If there is such a policy, that lawyer certainly did not know about it.
The answers given in court, when combined with those facts found in the filed affidavits,5 certainly indicate that there is no organized Department policy that requires attorneys to keep abreast of variable ethical obligations or even ensures that a given attorney even reads the ethics rules of a specific jurisdiction. Given this state of affairs at Main Justice, it should not have surprised this Court that a Justice Department attorney failed to answer clearly this Court’s
5 In a declaration filed by the Justice Department’s Designated Ethics Official, the declaration complained that this Court’s prior sanctions order would cost the Department additional funds to stay current with all ethical developments in the states in question. [See Doc. No. 354-3, at 9]. These costs are specifically attributed under oath to be the result of this Court’s order. [Id. at 3]. This same individual asserted that in addition to the four hours of professional training required by Department policy (two hours of Department of Justice professional responsibility, one hour of government ethics, and one hour of sexual harassment and non-discrimination training each calendar year), individual Department components may require additional training on issues pertinent to attorneys’ “specific missions.” [Id. at 2].
12

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 13 of 19
question about whether the Department has any rule that ensures compliance with the law. [See Hr’g Tr. 19‒22].
The Justice Department owes a duty to the public to not only comply with the law; it owes a moral and ethical duty to uphold the highest standards of the legal profession and to put justice above the pursuit of winning a case. The Seventh Circuit encapsulated this thought in a coherent and succinct manner:
The Department of Justice wields enormous power over people’s lives, much of it beyond effective judicial or political review. With power comes enormous responsibility, moral, if not legal, for its prudent and restrained exercise; and responsibility implies knowledge, experience, and sound judgment, not just good faith. United States v. Van Engel, 15 F.3d 623, 629 (7th Cir. 1993), abrogated on other grounds by United States v. Canoy, 38 F.3d 893 (7th Cir. 1994). In other words, responsible conduct requires knowledge. To act responsibly in the legal arena, one must know and abide by the applicable procedural and evidentiary rules. One must also know and abide by the prevailing ethical standards as well. While the Court is by this Order lifting the portion of its earlier order imposing sanctions on Main Justice, it retains grave concerns about whether the vast majority of attorneys at Main Justice have any knowledge of the rules in the jurisdictions in which they practice. These concerns were obviously heightened by the facts and circumstances in this case. First, there were at least four different misrepresentations. By this Order, this Court is holding that they were not due to malice and bad faith, but the fact remains they were made and approved by those controlling this litigation. Next, there was the decision not to provide explanatory evidence about the misstatements. While this decision remains an enigma to the Court, every trial lawyer is entitled to implement his or her own strategy. In doing so, they must also be willing to live with the consequences, which
13

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 14 of 19
clearly the Justice Department was not. Also, as part of its strategy, the Department asked the Court to implement sanctions across the entire government―a statement the Department obviously did not believe since it later objected to the breadth of a much narrower order.
When this Court questioned counsel as to whether Justice Department lawyers even read the ethical codes that they are required by law to comply with prior to appearing in that jurisdiction, the Court was told that someone in Washington would no doubt read the transcript of the hearing and “perhaps” that “suggestion will be taken note of.” [Hr’g Tr. 22]. This is clearly no way to run the nation’s law firm. The McDade Amendment signaled a historical shift in the duties of a Justice Department attorney. Post-McDade, a Justice Department attorney can no longer argue with a straight face, as has been done before, that he or she is exempt from the state ethical requirements to which every other attorney practicing in that jurisdiction must adhere. See In re Doe, 801 F. Supp. 478, 485-86 (D.N.M. 1992). The Department apparently believes that yearly certification of good standing with a state (or the District of Columbia) bar is sufficient to comply with the ethical obligations imposed on the Department’s attorneys by law. [Doc. No. 354-3, at 3]. It clearly is not. The wisdom of the McDade Amendment may be the topic of academic or public debate, but it is the law. The Justice Department’s relationship with the McDade Amendment should therefore be crystal clear. It must be followed.
The Department’s current haphazard approach to ethical standards has not been without certain consequences, although the person who suffers those adverse effects is usually someone other than the Justice Department lawyer. In just the last ten years, there have been a staggering number of cases at Main Justice involving ethical misconduct. The following post-McDade cases illustrate the point:
1. United States v. Stevens, 715 F. Supp. 2d 1, 8 (D.D.C. 2009) (“[A]nother incident in an ongoing series of incidents in which the Court has relied
14

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 15 of 19
upon information provided by the government only to learn that the government had misled the Court and/or misrepresented the facts.”).
2. United States v. Kott, 423 Fed. Appx. 736, 736–37 (9th Cir. 2011) (Brady violation required a new trial).
3. United States v. Kohring, 637 F.3d 895, 901 (9th Cir. 2011) (prosecution withheld and suppressed evidence necessitating a new trial).
4. Islamic Shura Council of S. California v. F.B.I., 779 F. Supp. 2d 1114, 1117 (C.D. Cal. 2011) (“The Government’s representations were then, and remain today, blatantly false.”).
5. United States v. Aguilar, 831 F. Supp. 2d 1180, 1182 (C.D. Cal. 2011) (the government allowed witnesses to testify untruthfully and inserted material falsehoods into affidavits leading to the dismissal of the defendants’ indictment).
6. Judicial Watch Inc. v. U.S. Dept. of Justice, 774 F. Supp. 2d 225, 231 (D. D.C. 2011) (Justice Department’s failure to respond in a timely manner was unreasonable).
7. Judicial Watch, Inc. v. U.S. Dept. of Justice, 878 F. Supp. 2d 225, 238 (D. D.C. 2012) (Justice Department acted without legal basis).
8. United States. v. Bowen, 969 F. Supp. 2d 546, 588 (E.D. La 2013) (experienced Justice Department attorney embarked on a “reckless course of action” and exercised “gravely poor judgement”).
9. Dobyns v. United States, 08-700C, 2014 WL 7934306, at *3 (Fed. Cl. Dec. 1, 2014) (Justice Department lawyers committed fraud on the court).
10. United States v. Bagcho, 151 F. Supp. 3d 60, 63, 76 (D. D.C. 2015) (Brady violation required motion for new trial to be partially granted).
The Court has set out above a few examples, but it is far from an exhaustive or definitive list.
Further, it has tried to limit the list to those reported cases that indicate involvement with lawyers
from Main Justice (though in many cases, the actual employer or the attorney of record can be
difficult to determine). This is not the record of a law firm that is dedicated to the highest
standards of ethical conduct. In fact, any private law firm with this record would either be
deeply ashamed, out of business, or both. Obviously, the incentive structure of the private sector
15

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 16 of 19
is dissimilar, in many ways, to that of the public sector. For example, the American people cannot fire the Justice Department. Consequently, the Department should spare no effort to adhere to the highest ethical standards.
The Office of Public Responsibility (OPR) at the Justice Department publishes a yearly report detailing the Justice Department’s internal investigation of reported misconduct by Department attorneys. See U.S. Department of Justice, Office of Professional Responsibility, Annual Report 2015 1, available at https://www.justice.gov/opr/file/881211/download (hereinafter OPR Annual Report) (last visited Dec. 30, 2016). OPR receives allegations from a wide variety of sources, including judges. All Department employees6 are obligated to report “non-frivolous” allegations of misconduct to their supervisors or directly to OPR. Id. The allegations of misconduct OPR investigates are wide-ranging, including an attorney’s failure to satisfy attorney-client duties, abuse of authority and discretion, Brady and Giglio violations, impermissible conflicts, failure to comply with federal law or internal Department of Justice rules and regulations, lack of fitness to practice law, and as is the case at bar, misrepresentations to the court and opposing counsel. See id. at 7, tbl. 2 (listing the forms of misconduct alleged in fiscal year 2015).
For fiscal year 2015, OPR reported 22 allegations of misconduct that were sustained by OPR’s own investigation. Id. at 10, tbl. 6. In fiscal year 2014, there were 30 sustained allegations of misconduct. OPR Annual Report 2014, at 10, tbl. 6, available at https://www.justice.gov/opr/file/798006/download (last visited Dec. 30, 2016). This number totaled 45 sustained allegations in fiscal year 2013, and 35 sustained allegations in fiscal year 2012. OPR Annual Report 2013, at 13, tbl. 6, available at
6 OPR also investigates allegations relating to the actions of immigration judges and members of the Board of Immigration Appeals. OPR Annual Report 2015, at 1.
16

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 17 of 19
https://www.justice.gov/sites/default/files/opr/legacy/2014/07/08/annualreport2013.pdf (last visited Dec. 30, 2016); OPR Annual Report 2012, at 13, tbl 6, available at https://www.justice.gov/sites/default/files/opr/legacy/2013/08/21/annualreport2012.pdf (last visited Dec. 30, 2016). Overall, the Department itself admitted to 132 different ethical violations in just four years.
These numbers, while shockingly high even when viewed in insolation, disguise the sheer gravity of the infractions. Misrepresentations to the court or opposing counsel accounted for over 20% of the total sustained allegations between fiscal years 2012 and 2015. Justice Department attorneys are afforded immense power in our federal system, and rightly or wrongly, trial judges have grown accustomed to taking many of their representations on faith. Justice Department attorneys may rightfully be prideful of their individual “win-loss” records, but their satisfactory performance as the legal representatives of this country is not simply contingent on securing a successful outcome. Their goal should be, quite simply, to achieve a just result. Whether this entails turning over Brady material that may damage the prosecution’s case, or promptly revising and explaining a misrepresentation in the face of professional and personal pressure, attorneys representing the United States must safeguard the legitimacy of the authority given to them by the people through honest and forthcoming representation. The ethical choices of each Justice Department attorney, entrusted with the coercive hand of the federal government, play an important role in determining whether this nation is one that is ruled by law or ruled by something or someone more corruptible. Even if one sets aside the now five misrepresentations made to this Court, the fact that the Justice Department has made so many other different misrepresentations to other courts or opposing counsel within the above-described period should be viewed as an affront to one of the most historically respected legal institutions in the country.
17

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 18 of 19
The point, of course, is not the number of infractions. The importance of these examples is that they represent a steady stream of misconduct from the nation’s law firm that is theoretically comprised of the cream of the legal profession’s crop. Most judges, including the undersigned, hold the Department of Justice in high regard. That regard, however, does not require this Court or any other court to wear blinders to a disconcerting pattern of problematic conduct. The lawyers in positions of responsibility within the Justice Department should likewise shed their blinders. It is clear to the undersigned, as it no doubt was to the judges in the cases list above, that either the Department’s ethical training, the emphasis given to compliance with ethical standards, and/or the measures taken to ensure ethical conduct are woefully inadequate.
No attorney, regardless of their employer, should practice in a jurisdiction without reviewing that jurisdiction’s ethical rules. It is every lawyer’s duty to keep current with the ethical requirements of the jurisdictions in which they practice. For example, Texas lawyers are required to take three hours of legal training per year in ethics. This training is an inherent cost that one must pay to be considered a professional. It is unprofessional not to stay current with prevailing ethical standards. It exposes that attorney to ethical jeopardy. It places innocent parties and counsel in harm’s way. Unethical conduct almost invariably obstructs justice. Moreover, for the attorneys who work for the Justice Department, they are also exposed to the claim that they are not complying with the law. If any entity should comply with the law, it ought to be the Justice Department.
It should go without saying that once having read these rules that the attorney in question should then comply with them. Compliance with ethical rules and the law for the nation’s law firm should not be a matter of chance; it should be an integral part of its daily
18

Case 1:14-cv-00254 Document 434 Filed in TXSD on 01/19/17 Page 19 of 19
practice and commitment to justice. At the very least, the Justice Department should, in an organized manner, require its attorneys to review and understand each state’s ethical rules before those attorneys appear in that state. This is a minimum requirement.
This country is blessed to have so many smart and dedicated lawyers who have chosen to forego more lucrative opportunities in the private sector and instead chose careers in public service. Their good work should not be overshadowed by the misconduct of a few. The Department as a whole should set the ethical bar high—so when attorneys announce in court that they represent our nation, it would not be a simple acknowledgement of their client’s identity. For those few attorneys who are granted the privilege of uttering the words “for the United States,” the phrase should carry the implicit guarantee that they will conduct themselves ethically, that their words are their bond, and that their goal is a just, and therefore right, result.
This Court hereby withdraws the sanctions portion of the order it issued on May 19, 2016, though this Court does not withdraw the opinion it issued on that date. [Doc. No. 347]. The sealed order contained in Document Number 348 is withdrawn in its entirety. Signed this 19th day of January, 2017.
________________________________ Andrew S. Hanen United States District Judge
19

 
 Case 1:14-cv-00254 Document 471 Filed in TXSD on 09/08/17 Page 1 of 4
United States District Court Southern District of Texas

ENTERED

September 08, 2017

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

David J. Bradley, Clerk

STATE OF TEXAS, ET AL.,

§

Plaintiffs,

§

§

V.

§

§

UNITED STATES OF AMERICA, ET AL., §

Defendants.

§

CIVIL NO. B-14-254

ORDER

While the States correctly cite Rule 41(a)(1)(A) in their Notice of Voluntary Dismissal (Doc.

No. 469), the case law interpreting what constitutes an “answer” clearly suggests that the voluntary

dismissal rule is not applicable here. The clear purpose of Rule 41(a)(1)(A) is to allow a plaintiff

to unilaterally dismiss an action early in the judicial process. Voluntary dismissal under Rule

41(a)(1)(A) is certainly recognized where the issues and the relative merits of a case have not been

addressed. It is not appropriate in a case which has had the extensive and hard-fought clashes over

the merits that this one has. When the merits have been joined, and an injunction issued and

affirmed on appeal twice, dismissal by notice is not appropriate. The most-cited, and perhaps the

most critiqued, example of the exception to the general rule is found in Harvey Aluminum, Inc. v.

American Cyanamid Co., 203 F.2d 105 (2d Cir. 1953). The precedential value of the holding in that case has been limited to cases with similar facts.1 That case has been summarized as follows:

The plaintiff sought to dismiss by notice before the defendant had answered, but there had been an extensive hearing, lasting several days and producing a record of 420 pages, in which the merits of the controversy squarely were raised. The Court,

1See, e.g., Johnson Chemical Co., Inc. v. Home Care Prods., Inc., 823 F.2d 28, 30–31 (2d Cir. 1987); Santiago v. Victim Servs. Agency of the Metropolitan Assistance Corp., 753 F.2d 219, 222–23 (2d Cir. 1985); Thorp v. Scarne, 599 F.2d 1169, 1174–76 (2d Cir. 1979); Pilot Freight Carriers, Inc. v. Int’l Bd. of Teamsters, 506 F.2d 914, 916–17 (5th Cir. 1975).

Case 1:14-cv-00254 Document 471 Filed in TXSD on 09/08/17 Page 2 of 4
speaking through Judge Augustus Hand, held that the plaintiff no longer had the right to dismiss by notice.
Consequently, although the voluntary dismissal was attempted before any paper labeled “answer” or “motion for summary judgment” was filed, a literal application of Rule 41(a)(1) to the present controversy would not be in accord with its essential purpose of preventing arbitrary dismissals after an advanced state of a suit has been reached. WRIGHT & MILLER FEDERAL PRACTICE AND PROCEDURE CIVIL 3D § 2363 (quoting Harvey Aluminum, Inc., 203 F.2d at 108). While subsequent cases have greatly limited the application of this case to a very small set of factual circumstances, if there ever was a situation for the application of an exception to Rule 41, this is it. Here, just the written opinions by the courts exceed the 420 page record referred to by Judge Hand. The actual record in this case is in the thousands of pages. “When a motion or pleading tender[s] justiciable issues for determination, its interposition terminates the right to dismiss by notice because it is analogous to an answer.” WRIGHT & MILLER FEDERAL PRACTICE AND PROCEDURE CIVIL 3D § 2363. The Government in this case has filed numerous pleadings and multiple briefs denying the claims of the States. This case has been litigated tenaciously for almost three years in this Court. It has been appealed twice to the Fifth Circuit Court of Appeals and once to the United States Supreme Court. The merits (or lack thereof) of this case have been addressed by all sides in hundreds of pleadings and briefs. Many of these pleadings are clearly the equivalent of an answer and consequently foreclose the use of Rule 41(a)(1)(A).2 To hold otherwise would be to elevate form over substance and place undue emphasis
2Also of some importance is the fact that this Court’s injunction, which is currently in place, is a temporary one. It was to last until “a further order of this Court . . . .” (Doc. No. 144, p. 2). If a party can unilaterally dismiss a case after obtaining temporary relief pending further court orders, it could deprive a court of jurisdiction by such a dismissal, and thereby theoretically turn a temporary injunction into a permanent one. Cf. Qureshi v. United States, 600 F.3d 523, 525–26 (5th Cir. 2010) (“In short, in the normal course, the district court is divested of jurisdiction over the case by the filing of the notice of dismissal itself.”).

Case 1:14-cv-00254 Document 471 Filed in TXSD on 09/08/17 Page 3 of 4
on the title of a pleading rather than its substance. Therefore, this Court holds an answer has been filed and a Rule 41(a)(1)(A) dismissal is unavailable.
Moreover, the Fifth Circuit Court of Appeals ordered that the Jane Doe Intervenors be allowed to participate as parties herein. The Fifth Circuit held that the Intervenors had a legally protected interest “sufficient to support” intervention (Doc. No. 327, p. 9) and that they had a “real concrete stake in the outcome of this litigation” (Doc. No. 327, p. 11). The Circuit found that the Intervenors had shown not only opposition to the Plaintiffs’ position,3 but also an “adversity of interest” between themselves and the Government (Doc. No. 327, p. 13). Further, the Circuit found that the Government’s position was also “directly adverse to the Jane Does” (Doc. No. 327, p. 15). The Circuit concluded that the Jane Does could intervene to oppose the States’ objectives in this lawsuit. That intervention was effectuated.
Case law has established that interventions that raise justiciable issues preclude the use of Rule 41(a)(1)(A). Butler v. Denton, 150 F.2d 687, 690 (10th Cir. 1945); Nance v. Jackson, 56 F.R.D. 463, 471 (M.D. Ala. 1972).
It therefore is clear that the plea of intervention tendered justiciable issues for determination. And in that posture the plaintiff was not vested with the absolute right of dismissal . . . . Butler, 150 F.2d at 690. While a pending motion to intervene may not preclude the use of 41(a)(1)(A),4 this intervention is not one pending a ruling; it was granted almost two years ago. The Court in Nance put it succinctly:
3In fact, the Intervenors described themselves as the “target” of the States’ lawsuit. (Doc. No. 91, p. 7).
4See Fort Sill Apache Tribe of Oklahoma v. United States, 2008 WL 2891654 (W.D. Ok. 2008).
3

Case 1:14-cv-00254 Document 471 Filed in TXSD on 09/08/17 Page 4 of 4
VOLUNTARY DISMISSAL The remaining plaintiffs in this case are the individuals Smith and Bell, who voluntarily seek to be dismissed as plaintiffs. They have no absolute right to dismissal in view of the fact that a petition for intervention tendering a justiciable issue has been filed. See 5 Moore, supra, ¶ 41.02[3]. Nevertheless, dismissal may be granted by order of this Court pursuant to Rule 41(a)(2), even though dismissal will defeat removal. Id. Nance, 56 F.R.D. at 471 (citing MOORE FEDERAL PRACTICE ¶ 41.07). Most importantly, attached to the intervention, in compliance with Rule 24(c), was an answer, which became effective once the intervention was granted. (Doc. No. 91-2). Given the lengthy history of protracted litigation on the merits, the plethora of pleadings filed in opposition to the Complaint brought by the States, the Court-ordered intervention (complete with answer) in opposition to both the States’ and Government’s positions, and the lengthy involvement of all levels of the federal judiciary, this Court finds Rule 41(a)(1)(A) to be inapplicable and holds the States’ Notice of Dismissal (Doc. No. 469) to be ineffective. This Order does not presage any ultimate ruling should a different form of dismissal motion be filed. The parties are hereby granted leave to file such a motion which should include a proposed order, and pursuant to this Court’s local rules, a certificate of conference. If such a motion is filed, the Court will give it due consideration. Signed this 8th day of September, 2017.
________________________________ Andrew S. Hanen United States District Judge
4

 
 Case 1:14-cv-00254 Document 473 Filed in TXSD on 09/12/17 Page 1 of 6

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

STATE OF TEXAS ET AL.

§

§

Plaintiffs,

§

§

v.

§

Civil Action No. 1:14-cv-254

§

UNITED STATES OF AMERICA ET AL.

§

§

Defendants.

§

PLAINTIFFS’ STIPULATION OF VOLUNTARY DISMISSAL On June 15, 2017, the U.S. Department of Homeland Security released a mem-

orandum entitled Rescission of November 20, 2014 Memorandum Providing for De-

ferred 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 mem-

oranda rescinding the DAPA program and phasing out the DACA and Expanded

DACA programs, Plaintiffs file this stipulation of voluntary dismissal. See Fed. R.

Civ. P. 41(a)(1)(A)(ii) (allowing plaintiffs to dismiss an action, without court order, by

filing a stipulation of dismissal signed by all parties who have appeared).1

1 The Court’s September 8, 2017 order deems Intervenors’ proposed answer (Dkt. No. 91-2) to have been filed as an answer, Dkt. No. 471 at 3-4, and deems other filings to be the “equivalent of an answer,” id. at 2. The instant stipulation of dismissal under Rule 41(a)(1)(A)(ii), unlike a notice of dismissal under Rule 41(a)(1)(A)(i), is not foreclosed by the filing of an answer and requires only the signature of all parties who have appeared.
1

Case 1:14-cv-00254 Document 473 Filed in TXSD on 09/12/17 Page 2 of 6
This stipulation of dismissal is signed by counsel for all parties who have appeared—Plaintiffs, Defendants, and Intervenors.2 Dismissal of this action is therefore automatic upon the filing of this stipulation, and no further order is needed to consider this case closed. See Yesh Music v. Lakewood Church, 727 F.3d 356, 362 (5th Cir. 2013) (“Stipulated dismissals under Rule 41(a)(1)(A)(ii) . . . require no judicial action or approval and are effective automatically upon filing.”). The Court’s Order of Temporary Injunction (Dkt. No. 144) is necessarily dissolved by this dismissal. See Francis v. Johnson, 129 F.3d 610 (5th Cir. 1997) (unpublished) (per curiam) (citing 11A Charles Alan Wright et al., Federal Practice & Procedure § 2947 at 126 n.19 (2d ed. 1995)); Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir. 1994); see also De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (“A stipulation of dismissal . . . is selfexecuting and immediately strips the district court of jurisdiction over the merits.”).
Pursuant to Federal Rule of Civil Procedure 41(a)(1)(B), this dismissal is without prejudice because Plaintiffs have not previously dismissed any federal- or statecourt action based on or including the same claim.
2 See Oswalt v. Scripto, Inc., 616 F.2d 191, 194 (5th Cir. 1980) (noting that a stipulation of dismissal, like other filings, may be “signed by the attorneys for” the parties); United States District Court, Southern District of Texas, Administrative Procedures for Electronic Filing in Civil and Criminal Cases, at 8(C)(1) (Jan. 1, 2007; amended July 18, 2013) (allowing “[a] Filing User who electronically files any document requiring the signature of another individual” to “submit an imaged document containing all the necessary signatures inserted by hand”).
2

Case 1:14-cv-00254 Document 473 Filed in TXSD on 09/12/17 Page 3 of 6

Dated: September 12, 2017

Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
BRANTLEY STARR Deputy First Assistant Attorney General
s/ Angela V. Colmenero ANGELA V. COLMENERO Assistant Attorney General Attorney-in-Charge TX Bar No. 24048399 Southern District ID No. 1002881
ADAM N. BITTER Assistant Attorney General TX Bar No. 24085070 Southern District ID No. 2167538
ERIC A. HUDSON ADAM ARTHUR BIGGS Assistant Attorneys General
Office of the Attorney General of Texas P.O. Box 12548 Austin, TX 78711-2548 (512) 936-1700
COUNSEL FOR PLAINTIFFS

3

Case 1:14-cv-00254 Document 473 Filed in TXSD on 09/12/17 Page 4 of 6

Case 1:14-cv-00254 Document 473 Filed in TXSD on 09/12/17 Page 5 of 6

Case 1:14-cv-00254 Document 473 Filed in TXSD on 09/12/17 Page 6 of 6 CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of September, 2017, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system and served on all attorney(s) and/or parties of record, via the CM/ECF service.
s/ Angela V. Colmenero ANGELA V. COLMENERO Assistant Attorney General
6

 
 Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 1 of 69
APPEAL,STAYED
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Brownsville)
CIVIL DOCKET FOR CASE #: 1:14−cv−00254

State of Texas et al v. United States of America et al Assigned to: Judge Andrew S. Hanen Related Case: 1:16−cv−00119
Case in other court: 107th District Court, Cameron County, Texas, 2015−DCL−662−A
Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 12/03/2014 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

State of Texas

represented by Andrew Stephen Oldham Texas Attorney General's Office PO Box 12548 (MC: 059) Austin, TX 78711−2548 512−936−1862 Email: andy.oldham@texasattorneygeneral.gov TERMINATED: 03/02/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs Office of the Attorney General 300 W 15th St Austin, TX 78701 512−463−2100 Email: adam.biggs@oag.texas.gov ATTORNEY TO BE NOTICED

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 ATTORNEY TO BE NOTICED

Angela V Colmenero Texas Office Of The Attorney General P O BOX 12548 Capitol Station Austin, TX 78711−2548 512−475−4100 Email: angela.colmenero@oag.texas.gov ATTORNEY TO BE NOTICED

Arthur D'Andrea Office of the Attorney General 209 W 14th St 7th Fl Austin, TX 78701 512−936−2868 Email: arthur.dandrea@texasattorneygeneral.gov TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson Texas Attorney General 300 W. 15th St. Austin, TX 78711

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 2 of 69

512−463−2120 Fax: 512−320−0667 Email: Eric.hudson@oag.texas.gov ATTORNEY TO BE NOTICED

John Campbell Barker Texas Attorney General's Office PO Box 12548 (MC: 059) Austin, TX 78711−2548 512−396−1700 Fax: 512−474−2697 Email: cam.barker@texasattorneygeneral.gov ATTORNEY TO BE NOTICED

Jonathan F. Mitchell 350 Sharon Park Drive Apt G3 Menlo Park, CA 94025 (703) 314−9276 Email: jfmitchell@mac.com TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller Office of the Attorney General Solicitor General's Office 209 West 14th St. 7th Floor (MC 059) Austin, TX 78701 512−936−1700 Fax: (512) 474−2697 Email: scott.keller@texasattorneygeneral.gov ATTORNEY TO BE NOTICED

Plaintiff State of Alabama

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 3 of 69

ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Georgia

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Idaho

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 4 of 69

(See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Indiana

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph C Chapelle Barnes & Thornburg LLP 11 South Meridian St Indianapolis, IN 46204 317−231−7209 Email: joe.chapelle@btlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter J Rusthoven Barnes & Thornburg LLP 11 South Meridian St Indianapolis, IN 46204 317−231−7299 Email: peter.rusthoven@btlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 5 of 69

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Kansas

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dwight Carswell Kansas Attorney General's Office 120 SW 10th Avenue 2nd Floor Topeka, KS 66612 785−368−8410 Email: dwight.carswell@ag.ks.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 6 of 69

Plaintiff State of Louisiana
Plaintiff State of Montana

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 7 of 69

ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Nebraska

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Lopez Office of Nebraska Attorney General 2115 State Capitol Lincoln, NB 68509 402 471−2682 Email: dave.lopez@nebraska.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ryan S Post Office of Nebraska Attorney General 2115 State Capitol Lincoln, NB 68509 402 471−2682 Email: ryan.post@nebraska.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 8 of 69

(See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of South Carolina

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 9 of 69

ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of South Dakota

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Utah

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 10 of 69

ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of West Virginia

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 11 of 69

Plaintiff State of Wisconsin
Plaintiff Paul R. LePage Governor, State of Maine

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Daniel P Lennington Wisconsin Department of Justice 17 West Main St Madison, WI 53707 608−267−8901 Email: lenningtondp@doj.state.wi.us ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 12 of 69

Plaintiff
Patrick L. McCrory Governor, State of North Carolina

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 13 of 69

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
C.L. "Butch" Otter Governor, State of Idaho

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Cally Younger Office of Governor CL "Butch" Otter PO Box 63720 Boise, ID 83720 208 854−3022 Email: cally.younger@gov.idaho.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Phil Bryant Governor, State of Mississippi

represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 14 of 69

Plaintiff State of North Dakota

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 15 of 69

ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Plaintiff State of Ohio

represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

Eric E Murphy Ohio Attorney General Mike DeWine's Office 30 E. Broad St 17th Fl Columbus, OH 43215 614−466−8980 Email: eric.murphy@ohioattorneygeneral.gov PRO HAC VICE ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Plaintiff State of Oklahoma

represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 16 of 69

(See above for address) ATTORNEY TO BE NOTICED

Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Patrick R. Wyrick Oklahoma Attorney General's Office 313 N.E. 21st St Oklahoma City, OK 73105 405−521−3921 Email: patrick.wyrick@oag.ok.gov ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Plaintiff State of Florida

represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 17 of 69

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Plaintiff State of Arizona

represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Plaintiff State of Arkansas

represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 18 of 69

(See above for address) ATTORNEY TO BE NOTICED

Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Plaintiff Attorney General Bill Schuette

represented by Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED

Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED

Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED

Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED

Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED

John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED

Jonathan F. Mitchell (See above for address) TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 19 of 69

Plaintiff State of Nevada
Plaintiff State of Tennessee

Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J Rusthoven (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Stephen Oldham (See above for address) TERMINATED: 03/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J Rusthoven (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 20 of 69

Adam Arthur Biggs (See above for address) ATTORNEY TO BE NOTICED
Adam Nicholas Bitter (See above for address) ATTORNEY TO BE NOTICED
Angela V Colmenero (See above for address) ATTORNEY TO BE NOTICED
Arthur D'Andrea (See above for address) TERMINATED: 03/12/2015 ATTORNEY TO BE NOTICED
Eric Alan Hudson (See above for address) ATTORNEY TO BE NOTICED
John Campbell Barker (See above for address) ATTORNEY TO BE NOTICED
Scott A. Keller (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States of America

represented by Kathleen R Hartnett US Department of Justice Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 202 514−2331 TERMINATED: 11/24/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle Renee Freeny US Dept of Justice 20 Massachusetts Ave Washington, DC 20001 202−514−5108 Email: kyle.freeny@usdoj.gov TERMINATED: 01/20/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Adam David Kirschner USDOJ, Civil Division P. O. Box 883 20 Massachusetts Ave., N.W. Room 7126 Washington, DC 20044 202−353−0265 Fax: 202−616−8470 Email: adam.kirschner@usdoj.gov

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 21 of 69
PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Heath Cohen US Dept of Justice Civil Div, Fed Programs Branch PO Box 883 Washington, DC 20044 202−305−9855 Email: bradley.cohen@usdoj.gov TERMINATED: 12/11/2015 ATTORNEY TO BE NOTICED
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
Daniel Stephen Garrett Schwei US Dept of Justice Civil Div, Federal Programs Branch PO Box 883 Washington, DC 20044 202−305−8693 Email: daniel.s.schwei@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
James J Gilligan U.S. Department of Justice − Civil Division 20 Massachusetts Ave. NW Washington, DC 20001 202−514−3358 Email: james.gilligan@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer D Ricketts US Dept of Justice, Civil Division 20 Massachusetts Ave Rm 6100 Washington, DC 20530 202−514−3671 Email: jennifer.d.ricketts@usdoj.gov ATTORNEY TO BE NOTICED
John R Tyler US Department of Justice Civil Division 20 Massachusetts Ave NW Washington, DC 20001 (202)514−2356 Email: john.tyler@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Shana Saltman US Department of Justice Civil Division PO Box 868 Ben Franklin Station Washington, DC 20044

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 22 of 69

202−532−4252 Email: julie.saltman@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Jeh Johnson Secretary of the Department of Homeland Security

represented by Kathleen R Hartnett (See above for address) TERMINATED: 11/24/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle Renee Freeny (See above for address) TERMINATED: 01/20/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam David Kirschner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bradley Heath Cohen (See above for address) TERMINATED: 12/11/2015 ATTORNEY TO BE NOTICED

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

Daniel Stephen Garrett Schwei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James J Gilligan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer D Ricketts (See above for address) ATTORNEY TO BE NOTICED

John R Tyler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Defendant
R. Gil Kerlikowske Commissioner of U.S. Customs and Border Protection

represented by Kathleen R Hartnett (See above for address) TERMINATED: 11/24/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle Renee Freeny

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 23 of 69

(See above for address) TERMINATED: 01/20/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam David Kirschner (See above for address) ATTORNEY TO BE NOTICED

Bradley Heath Cohen (See above for address) TERMINATED: 12/11/2015 ATTORNEY TO BE NOTICED

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

Daniel Stephen Garrett Schwei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James J Gilligan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer D Ricketts (See above for address) ATTORNEY TO BE NOTICED

John R Tyler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ronald D. Vitiello Deputy Chief of U.S. Border Patrol, U.S. Customs and Border of Protection

represented by Kathleen R Hartnett (See above for address) TERMINATED: 11/24/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle Renee Freeny (See above for address) TERMINATED: 01/20/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam David Kirschner (See above for address) ATTORNEY TO BE NOTICED

Bradley Heath Cohen (See above for address) TERMINATED: 12/11/2015

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 24 of 69

ATTORNEY TO BE NOTICED

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

Daniel Stephen Garrett Schwei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James J Gilligan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer D Ricketts (See above for address) ATTORNEY TO BE NOTICED

John R Tyler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sarah R Saldana Director of U.S. Immigration and Customs Enforcement

represented by Kathleen R Hartnett (See above for address) TERMINATED: 11/24/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kyle Renee Freeny (See above for address) TERMINATED: 01/20/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam David Kirschner (See above for address) ATTORNEY TO BE NOTICED

Bradley Heath Cohen (See above for address) TERMINATED: 12/11/2015 ATTORNEY TO BE NOTICED

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

Daniel Stephen Garrett Schwei (See above for address) ATTORNEY TO BE NOTICED

James J Gilligan (See above for address) PRO HAC VICE

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 25 of 69

ATTORNEY TO BE NOTICED

Jennifer D Ricketts (See above for address) ATTORNEY TO BE NOTICED

John R Tyler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Leon Rodriguez Director of U.S. Citizenship and Immigration Services

represented by Kathleen R Hartnett (See above for address) TERMINATED: 11/24/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle Renee Freeny (See above for address) TERMINATED: 01/20/2016 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Adam David Kirschner (See above for address) ATTORNEY TO BE NOTICED

Bradley Heath Cohen (See above for address) TERMINATED: 12/11/2015 ATTORNEY TO BE NOTICED

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

Daniel Stephen Garrett Schwei (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James J Gilligan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer D Ricketts (See above for address) ATTORNEY TO BE NOTICED

John R Tyler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 26 of 69

Movant Mitchell Williams TERMINATED: 01/09/2015
Movant Dr Orly Taitz TERMINATED: 01/07/2015
Movant Jane Doe #1

represented by Mitchell Williams PO Box 33 Palatka, FL 32178 PRO SE
represented by Orly Taitz Law Office of Orly Taitz 29839 Santa Margarita Pkwy Ste 100 Rancho Santa Margarita, CA 92688 949−683−5411 Fax: 949−766−7603 Email: orly.taitz@hushmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gabriel Markoff O'Melveny & Meyers LLP 2 Embarcadero Center 28th Fl San Francisco, CA 94111−3823 415−984−8700 Email: gmarkoff@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Jorge deNeve O'Melveny & Meyers LLP 400 S. Hope St 18th Fl Los Angeles, CA 91001 Email: jdeneve@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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
Adam P KohSweeney OMelveny and Myers LLP 2 Embarcadero Ctr 28th Fl San Francisco, CA 94111 415−984−8912 Email: akohsweeney@omm.com ATTORNEY TO BE NOTICED
Carlos Moctezuma Garcia Garcia & Garcia Attorneys at Law, P.L.L.C. 4905−A N. McColl

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 27 of 69

McAllen, TX 78504 956−630−3889 Email: cgarcia@garciagarcialaw.com ATTORNEY TO BE NOTICED

Linda Jane Smith DLA Piper LLP (US) 2000 Ave of the Stars Ste 4000 North Tower Los Angeles, CA 90067−4704 310−595−3038 Email: linda.smith@dlapiper.com ATTORNEY TO BE NOTICED

Movant Jane Doe #2

represented by Gabriel Markoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Jorge deNeve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam P KohSweeney (See above for address) ATTORNEY TO BE NOTICED

Carlos Moctezuma Garcia (See above for address) ATTORNEY TO BE NOTICED

Linda Jane Smith (See above for address) ATTORNEY TO BE NOTICED

Movant Jane Doe #3

represented by Gabriel Markoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J Jorge deNeve (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam P KohSweeney (See above for address) ATTORNEY TO BE NOTICED

Carlos Moctezuma Garcia (See above for address)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 28 of 69

ATTORNEY TO BE NOTICED

Linda Jane Smith (See above for address) ATTORNEY TO BE NOTICED

Movant
Harold William Van Allen TERMINATED: 03/13/2015

represented by Harold William Van Allen 351 North Road Hurley, NY 12443 (845)3894366 Email: hvanallen@hvc.rr.com PRO SE

Movant
Natural Born Citizen Party National Committee

represented by Natural Born Citizen Party National Committee c/o Harold W. Van Allen, Co−Chairperson 351 North Rd Hurley, NY 12443 845−389−4366 Email: hvanallen@hvc.rr.com PRO SE

Movant Robin Clarice Parezanin

represented by Robin Clarice Parezanin 20263−298 Fed Medical Center −Carswell P.O. Box 27137 Fort Worth, TX 76127 PRO SE

Movant Raheleh Ziaei

represented by Raheleh Ziaei 42548−298 *Released on 10/7/2016* address unknown PRO SE

Movant Tammy Willis

represented by Tammy Willis 32203−001 *Released 9/30/2016* Address unknown PRO SE

Movant Rhonda Ann Fleming

represented by Rhonda Ann Fleming 20446−009 Fed Medical Center−Carswell P.O. Box 27137 Fort Worth, TX 76127 PRO SE

V.
Amicus
American Center for Law & Justice Committee to Defend the Separation of Powers and Select Members of Congress

represented by Jay Alan Sekulow American Center for Law & Justice 201 Maryland Ave., NE Washington, DC 20002 202−546−8890

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 29 of 69

Email: sekulow@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
Service Employees International Union

represented by Jonathan D Weissglass ALTSHULER BERZON LLP 177 Post Street Ste 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: jweissglass@altshulerberzon.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Immigration Reform Law Institute

represented by Dale L. Wilcox Immigration Reform Law Institute 25 Massachusetts Ave. Ste. 335 Washington, DC 20001 202−232−5590 Email: dwilcox@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael M. Hethmon Immigration Law Reform Institute 25 Massachusetts Ave NW. Ste 335 Washington, DC 20001 202−232−5590 Fax: 202−464−3590 Email: mhethmon@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Filemon Vela

represented by Antonio Tony Martinez Martinez Barrera & Martinez 1201 East Van Buren Street Brownsville, TX 78520 956−546−7159 Email: tony@mbymlaw.com ATTORNEY TO BE NOTICED

Amicus Cato Institute

represented by Ilya Shapiro Cato Institute 1000 Massachusetts Ave NW Washington, DC 20001 202−842−0200 Email: ishapiro@cato.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leif A. Olson 4830 Wilson Rd Ste 300

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 30 of 69

PMB 188 Humble, TX 77396 281−849−8382 Email: leif@olsonappeals.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Margulies Roger Williams University School of Law Bristol, RI 02806 Email: pmargulies@rwu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Josh Blackman

represented by Leif A. Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Jeremy A. Rabkin

represented by Leif A. Olson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Major Cities Chiefs Police Association, et al.

represented by Chirag G. Badlani Hughes Socol Piers Resnick & Dym, Ltd. 70 W. Madison St. Ste. 4000 Chicago, IL 60602 312−604−2776 Email: cbadlani@hsplegal.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus State of Washington

represented by Anne E Egeler Washington Office of Attorney General 1125 Washington Street SE Olympia, WA 98504−0100 360−753−7085 Email: anneE1@atg.wa.gov ATTORNEY TO BE NOTICED

Amicus
Joe Arpaio Sheriff

represented by Jonathon Alden Moseley Freedom Watch Inc. 2020 Pennsylvania Avenue NW Ste 345 Washington, DC 20006 703−656−1230 Email: Contact@JonMoseley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Bill de Blasio Mayor, City of New York

represented by Richard Dearing New York Law Department

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 31 of 69

100 Church St New York, NY 10007 212−356−2500 Fax: 212−356−2509 Email: rdearing@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Judicial Watch, Inc.

represented by Mitchell Lee Herren Hinkle Law Firm LLC 1617 North Waterfront Parkway Suite 400 Wichita, KS 67206−6639 316−267−2000 Fax: 316−630−8466 Email: mherren@hinklaw.com ATTORNEY TO BE NOTICED

Amicus William F. Reade, Jr.

represented by William F. Reade, Jr. 55 Captain Nickerson Rd S Yarmouth, MA 02664−1745 PRO SE

Amicus Angelica Villalobos

represented by Cecillia D. Wang American Civil Liberties Union Immigrants Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0775 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody Wofsy American Civil Liberties Union Immigrants' Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0785 Email: cwofsy@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edgar Saldivar American Civil Liberties Union of Texas 1500 McGowen Suite 250 Houston, TX 77004 7139428146 Fax: 7139428966 Email: esaldivar@aclutx.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen C Tumlin National Immigration Law Ctr 3435 Wilshire Blvd Ste 1600 Los Angeles, CA 90010 Email: tumlin@nilc.org

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 32 of 69

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora A Preciado National Immigration Law Center 3435 Wilshire Blvd Suite 1600 Los Angeles, CA 90010 213−639−3900 Email: preciado@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin B Cox National Immigration Law Center P.O. Box 170208 Atlanta, GA 30317 678−279−5441 Email: cox@milc.org ATTORNEY TO BE NOTICED

Omar Jadwat American Civil Liberties Union Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 212−549−2620 ATTORNEY TO BE NOTICED

Amicus jane doe #4

represented by Cecillia D. Wang American Civil Liberties Union Immigrants Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0775 Email: cwqang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody Wofsy American Civil Liberties Union Immigrants' Rights Project 39 Drumm St San Francisco, CA 94111 415−343−0785 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edgar Saldivar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen C Tumlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 33 of 69

Justin B Cox (See above for address) ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) ATTORNEY TO BE NOTICED

Amicus jane doe #5

represented by Cecillia D. Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody Wofsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edgar Saldivar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen C Tumlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora A Preciado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin B Cox (See above for address) ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) ATTORNEY TO BE NOTICED

Amicus Juan Escalante

represented by Cecillia D. Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody Wofsy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen C Tumlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nora A Preciado

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 34 of 69

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Sealed Filer

represented by Timothy Johnson Locke Lord LLP 600 Travis St Suite 2800 Houston, TX 77002 713−226−1114 Email: tjohnson@lockelord.com LEAD ATTORNEY

Murray J Fogler Fogler, Brar, Ford, O'Neil & Gray LLP 909 Fannin St Suite 1640 2 Houston Center Houston, TX 77002 713−481−1010 Fax: 713−574−3224 Email: mfogler@fbfog.com ATTORNEY TO BE NOTICED

Date Filed 12/03/2014 12/03/2014
12/03/2014
12/04/2014 12/04/2014

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541−14130337) filed by South Dakota, Louisiana, C.L. "Butch" Otter, Alabama, Texas, West Virginia, Patrick L. McCrory, Kansas, Georgia, Nebraska, Utah, Wisconsin, Paul R. LePage, Montana, Idaho, Phil Bryant, South Carolina, Indiana. (Attachments: # 1 Civil Cover Sheet)(Oldham, Andrew) (Entered: 12/03/2014)
2 NOTICE of Appearance by Arthur C. D'Andrea on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, State of Louisiana, State of Alabama, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (D'Andrea, Arthur) (Entered: 12/03/2014)
3 NOTICE of Appearance by Jonathan F. Mitchell on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, State of Louisiana, State of Alabama, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Mitchell, Jonathan) (Entered: 12/03/2014)
4 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 3/31/2015 at 01:30 PM in Courtroom 6 before Judge Andrew S. Hanen(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 12/04/2014)
5 Opposed MOTION for Preliminary Injunction by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, State of Louisiana, State of Alabama, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 12/26/2014. (Attachments: # 1 Proposed Order)(Oldham, Andrew) (Entered: 12/04/2014)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 35 of 69

12/04/2014
12/04/2014
12/05/2014 12/05/2014
12/05/2014 12/05/2014 12/05/2014 12/09/2014 12/09/2014 12/09/2014
12/10/2014 12/10/2014 12/11/2014 12/11/2014

6 Unopposed MOTION for Leave to File Excess Pages by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, State of Louisiana, State of Alabama, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 12/26/2014. (Attachments: # 1 Proposed Order)(Oldham, Andrew) (Entered: 12/04/2014)
7 Request for Issuance of Summons as to All Defendants, filed. (Attachments: # 1 USA, # 2 President, # 3 Johnson, # 4 Rodriguez, # 5 Kerlikowske, # 6 Vitiello, # 7 Winkowski)(Oldham, Andrew) (Main Document 7 replaced on 4/13/2015) (sbejarano, 1). (Attachment 1 replaced on 4/13/2015) (sbejarano, 1). (Attachment 2 replaced on 4/13/2015) (sbejarano, 1). (Attachment 3 replaced on 4/13/2015) (sbejarano, 1). (Attachment 4 replaced on 4/13/2015) (sbejarano, 1). (Attachment 5 replaced on 4/13/2015) (sbejarano, 1). (Attachment 6 replaced on 4/13/2015) (sbejarano, 1). (Attachment 7 replaced on 4/13/2015) (sbejarano, 1). (Entered: 12/04/2014)
8 MOTION for Daniel P Lennington to Appear Pro Hac Vice by State of Wisconsin, filed. Motion Docket Date 12/26/2014. (bcampos, 1) (Entered: 12/05/2014)
9 NOTICE Amended Notice of Appearance for Jonathan F. Mitchell re: 3 Notice of Appearance, by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, State of Louisiana, State of Alabama, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Mitchell, Jonathan) (Entered: 12/05/2014)
Summons Issued as to 1.) Jeh Johnson, 2.) R. Gil Kerlikowske, 3.) Leon Rodriguez, 4.) Ronald D. Vitiello, 5.) Thomas S. Winkowski, 6.) U.S. Attorney, 7.) U.S. Attorney General, and 8.) President of the United States. Issued summons returned to plaintiff by: First−class mail.(bcampos, 1) (Entered: 12/05/2014)
10 ORDER granting 6 Motion to Exceed Page Limits. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 12/05/2014)
11 ORDER granting 8 Motion to Appear Pro Hac Vice.(Signed by Judge Andrew S. Hanen) Parties notified.(sbejarano, 1) (Entered: 12/09/2014)
12 MOTION for Joseph C. Chapelle to Appear Pro Hac Vice by State of Indiana, filed. Motion Docket Date 12/30/2014. (D'Andrea, Arthur) (Additional attachment(s) added on 12/10/2014: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (avleal, 1). (Entered: 12/09/2014)
13 MOTION for Peter J. Rusthoven to Appear Pro Hac Vice by State of Indiana, filed. Motion Docket Date 12/30/2014. (D'Andrea, Arthur) (Additional attachment(s) added on 12/10/2014: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (avleal, 1). (Attachment 1 replaced on 12/10/2014) (avleal, 1). (Entered: 12/09/2014)
14 First AMENDED Complaint against All Defendants filed by State of South Dakota, State of Louisiana, State of Alabama, C.L. "Butch" Otter, State of Texas, State of West Virginia, Patrick L. McCrory, State of Kansas, State of Georgia, State of Nebraska, State of Utah, State of Wisconsin, Paul R. LePage, State of Montana, State of Idaho, Phil Bryant, State of South Carolina, State of Indiana, State of North Dakota, State of Ohio, State of Oklahoma, State of Florida, State of Arizona, State of Arkansas, Bill Schuette.(D'Andrea, Arthur) (Entered: 12/09/2014)
15 NOTICE of Appearance by Daniel P. Lennington on behalf of State of Wisconsin, filed. (Lennington, Daniel) (Entered: 12/10/2014)
16 ORDER granting 12 Motion to Appear Pro Hac Vice as to Joseph C. Chapelle.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 12/10/2014)
17 ORDER granting 13 Motion to Appear Pro Hac Vice as to Peter J. Rusthoven.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 12/11/2014)
18 MOTION for Eric Murphy to Appear Pro Hac Vice by State of Ohio, filed. Motion Docket Date 1/2/2015. (sbejarano, 1) (Entered: 12/11/2014)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 36 of 69

12/12/2014 12/12/2014 12/15/2014 12/16/2014 12/16/2014
12/17/2014 12/18/2014
12/18/2014
12/19/2014 12/19/2014
12/19/2014 12/19/2014 12/19/2014 12/19/2014

19 ORDER granting 18 Motion to Appear Pro Hac Vice as to Eric E. Murphy. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 12/12/2014)
20 Motion and Order for Admission Pro Hac Vice as to Jay Alan Sekulow. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 12/12/2014)
21 MOTION for Patrick R. Wyrick to Appear Pro Hac Vice by State of Oklahoma, filed. Motion Docket Date 1/5/2015. (dahumada, 1) (Entered: 12/16/2014)
22 Unopposed MOTION Motion for Leave to Participate as Amici by American Center for Law & Justice, filed. Motion Docket Date 1/6/2015. (Attachments: # 1 Proposed Amici Brief)(Sekulow, Jay) (Entered: 12/16/2014)
23 ADVISORY by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Attachments: # 1 Exhibit Juarez−Escobar Opinion)(Oldham, Andrew) (Entered: 12/16/2014)
24 ORDER granting 21 Motion to Appear Pro Hac Vice.(Signed by Judge Andrew S. Hanen) Parties notified.(sbejarano, 1) (Entered: 12/17/2014)
25 NOTICE of Appearance by Adam N. Bitter on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Bitter, Adam) (Entered: 12/18/2014)
26 NOTICE of Appearance by Angela V. Colmenero on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Bitter, Adam) (Entered: 12/18/2014)
27 NOTICE of Appearance by Kyle R. Freeny on behalf of Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. (Freeny, Kyle) (Entered: 12/19/2014)
Minute Entry for proceedings held before Judge Andrew S. Hanen. TELEPHONE CONFERENCE held on 12/19/2014. Appearances: Plaintiff Attorneys: A. Oldham; A. D'Andrea; Defendants Attorneys: K.Freeny; D.Hu;(ERO:R.Nieto)(10:06−10:22) Discussion held. Defendants response due 12/24/14. Plaintiffs reply due 01/02/15. Defendants have one week to 10 days to file reply to Plaintiffs reply if needed. Preliminary Injunction Hearing set for 01/09/15 at 10:00 am in Brownsville, Texas., filed.(csustaeta, 1) (Entered: 12/19/2014)
28 NOTICE of Setting. Parties notified. Injunction Hearing set for 1/9/2015 at 10:00 AM in Courtroom 6 before Judge Andrew S. Hanen, filed. (csustaeta, 1) (Entered: 12/19/2014)
29 ORDER granting 22 Motion for Leave to Participate as Amici Curiae in Support of Plaintiffs by Members of Congress, the American Center for Law & Justice, and the Committee to Defend the Separation of Powers.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 12/19/2014)
30 NOTICE of Appearance by Daniel David Hu on behalf of United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. (Hu, Daniel) (Entered: 12/19/2014)
31 Amici Curiae BRIEF in Support of re: 5 Opposed MOTION for Preliminary Injunction by American Center for Law & Justice, filed.(melopez, 1) (Entered: 12/22/2014)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 37 of 69

12/22/2014 12/22/2014 12/23/2014
12/23/2014 12/24/2014 12/24/2014 12/24/2014
12/29/2014
12/29/2014 12/30/2014 01/05/2015 01/06/2015 01/06/2015

34 MOTION for Ryan S. Post to Appear Pro Hac Vice by State of Nebraska, filed. Motion Docket Date 1/12/2015. (jtabares, 1) (Main Document 34 replaced on 1/6/2015) (rnieto, 1). (Entered: 12/23/2014)
35 MOTION for David A. Lopez to Appear Pro Hac Vice by State of Nebraska, filed. Motion Docket Date 1/12/2015. (jtabares, 1) (Main Document 35 replaced on 1/6/2015) (rnieto, 1). (Entered: 12/23/2014)
32 Unopposed MOTION for Extension of Time Reply Brief by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 1/13/2015. (Attachments: # 1 Proposed Order)(Oldham, Andrew) (Entered: 12/23/2014)
33 MOTION for Jonathan Weissglass to Appear Pro Hac Vice by Service Employees International Union, filed. Motion Docket Date 1/13/2015. (Weissglass, Jonathan) (Additional attachment(s) added on 12/24/2014: # 1 Continuation) (dahumada, 1). (Entered: 12/23/2014)
36 NOTICE of additional Members of Congress as amici by American Center for Law & Justice, filed. (Sekulow, Jay) (Entered: 12/24/2014)
37 Unopposed MOTION for Leave to File Excess Pages by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 1/14/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 12/24/2014)
38 RESPONSE in Opposition to 5 Opposed MOTION for Preliminary Injunction, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski. (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 Errata 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 Proposed Order)(Freeny, Kyle) (Entered: 12/24/2014)
39 MOTION for Leave to File PARTICIPATE AS AMICI CURIAE IN SUPPORT OF DEFENDANTS BY AMERICAN IMMIGRATION COUNCIL, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, DEFINE AMERICAN, NATIONAL IMMIGRANT JUSTICE CENTER, NATIONAL IMMIGRATION LAW CENTER, NEW ORLEANS WORKERS CENTER FOR RACIAL JUSTICE, SERVICE EMPLOYEES INTERNATIONAL UNION, SOUTHERN POVERTY LAW CENTER, AND UNITED WE DREAM by Service Employees International Union, filed. Motion Docket Date 1/20/2015. (Attachments: # 1 AMICI CURIAE BRIEF, # 2 [PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE)(Weissglass, Jonathan) (Entered: 12/29/2014)
40 MOTION to Intervene by Mitchell Williams, filed. Motion Docket Date 1/20/2015. (avleal, 1) (Entered: 12/30/2014)
43 MOTION for Michael M. Hathmon to Appear Pro Hac Vice, filed. Motion Docket Date 1/20/2015. (jguajardo, 1) (Entered: 01/06/2015)
41 ORDER granting 32 Unopposed Motion to Extend Time. Brief due by 1/7/2015 Injunction Hearing set for 1/15/2015 at 10:00 AM in Courtroom 6 before Judge Andrew S. Hanen.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/05/2015)
44 NOTICE of Appearance by Daniel P. Lennington on behalf of State of Wisconsin, filed. (Lennington, Daniel) (Entered: 01/06/2015)
45 NOTICE of Appearance by Daniel P. Lennington on behalf of State of Wisconsin, filed. (Lennington, Daniel) (Entered: 01/06/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 38 of 69

01/06/2015 01/06/2015 01/06/2015 01/06/2015 01/06/2015
01/07/2015 01/07/2015
01/07/2015 01/07/2015 01/07/2015 01/07/2015
01/07/2015 01/07/2015 01/07/2015 01/07/2015 01/07/2015
01/07/2015

46 MOTION to Consolidate B14CV254 and B14CV119 by Orly Taitz, filed. Motion Docket Date 1/27/2015. (Attachments: # 1 Exhibit 1−2)(bcampos, 1) (Entered: 01/06/2015)
47 ORDER granting 43 Motion to Appear Pro Hac Vice as to Michael M. Hethmon.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/06/2015)
48 ORDER granting 33 Motion to Appear Pro Hac Vice as to Jonathan Weissglass.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/06/2015)
49 Unopposed MOTION for Leave to File Amicus Curiae Brief by Filemon Vela, filed. Motion Docket Date 1/27/2015. (Attachments: # 1 Proposed Order Proposed Order, # 2 Proposed Brief)(Martinez, Antonio) (Entered: 01/06/2015)
50 NOTICE of Appearance by John Campbell Barker on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Barker, John) (Entered: 01/06/2015)
51 ORDER granting 37 Defendant's Unopposed Motion for Leave to File Excess Pages.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/07/2015)
52 MOTION for Leave to File Over−Length Amicus Curiae Brief by Proposed Amicus Curiae Immigration Reform Law Institute, filed. Motion Docket Date 1/28/2015. (Attachments: # 1 Exhibit Amicus Curiae Brief)(Hethmon, Michael) (Entered: 01/07/2015)
53 ORDER granting 34 Motion to Appear Pro Hac Vice as to Ryan S. Post.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/07/2015)
54 ORDER granting 35 Motion to Appear Pro Hac Vice as to David A. Lopez.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/07/2015)
55 MOTION for Dale L. Wilcox to Appear Pro Hac Vice, filed. Motion Docket Date 1/28/2015. (jguajardo, 1) (Entered: 01/07/2015)
56 ORDER granting 49 Motion for Leave to Participate as Amicus Curiae and file a brief in Opposition to Plaintiffs' Motion for Preliminary Injunction by Congressman Filemon Vela in his official capacity. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/07/2015)
57 ORDER granting 52 Motion for Leave to File an Overlength Amicus Curiae Brief in Support of Plaintiffs Motion for Preliminary Injunction. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/07/2015)
58 MOTION for Attorney Anne E. Egeler to Appear Pro Hac Vice for the State of Washington, filed. Motion Docket Date 1/28/2015. (rnieto, 1) (Entered: 01/07/2015)
59 ORDER denying 46 Motion to Consolidate 14−CV−254 and 14−CV−119. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/07/2015)
60 ORDER re: 58 MOTION for Attorney Anne E. Egeler to Appear Pro Hac Vice for the State of Washington.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/07/2015)
61 Unopposed MOTION for Leave to File Brief as Friends of the Court Supporting Plaintiffs by Cato Institute, Josh Blackman, Jeremy A. Rabkin, filed. Motion Docket Date 1/28/2015. (Attachments: # 1 Proposed Order, # 2 Proposed brief)(Olson, Leif) (Entered: 01/07/2015)
62 MOTION for Peter Margulies to Appear Pro Hac Vice by Josh Blackman, Cato Institute, Jeremy A. Rabkin, filed. Motion Docket Date 1/28/2015. (Olson, Leif) (Entered: 01/07/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 39 of 69

01/07/2015 01/07/2015
01/07/2015
01/08/2015 01/08/2015 01/08/2015 01/08/2015 01/08/2015 01/08/2015 01/08/2015 01/09/2015 01/09/2015

63 MOTION for Ilya Shapiro to Appear Pro Hac Vice by Josh Blackman, Cato Institute, Jeremy A. Rabkin, filed. Motion Docket Date 1/28/2015. (Olson, Leif) (Entered: 01/07/2015)
64 REPLY in Support of 5 Opposed MOTION for Preliminary Injunction, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9.a, # 10 Exhibit Ex. 9.b, # 11 Exhibit Ex. 10.a, # 12 Exhibit Ex. 10.b, # 13 Exhibit Ex. 10.c, # 14 Exhibit Ex. 10.d, # 15 Exhibit Ex. 10.e, # 16 Exhibit Ex. 10.f, # 17 Exhibit Ex. 10.g, # 18 Exhibit Ex. 10.h, # 19 Exhibit Ex. 10.i, # 20 Exhibit Ex. 10.j, # 21 Exhibit Ex. 10.k, # 22 Exhibit Ex. 10.l, # 23 Exhibit Ex. 10.m, # 24 Exhibit Ex. 10.n, # 25 Exhibit Ex. 10.0, # 26 Exhibit Ex. 10.p, # 27 Exhibit Ex. 10.q, # 28 Exhibit Ex. 10.r, # 29 Exhibit Ex. 10.s, # 30 Exhibit Ex. 11, # 31 Exhibit Ex. 12, # 32 Exhibit Ex. 13, # 33 Exhibit Ex. 14, # 34 Exhibit Ex. 15, # 35 Exhibit Ex. 16, # 36 Exhibit Ex. 17, # 37 Exhibit Ex. 18, # 38 Exhibit Ex. 19, # 39 Exhibit Ex. 20, # 40 Exhibit Ex. 21, # 41 Exhibit Ex. 22, # 42 Exhibit Ex. 23, # 43 Exhibit Ex. 24, # 44 Exhibit Ex. 25, # 45 Exhibit Ex. 26, # 46 Exhibit Ex. 27, # 47 Exhibit Ex. 28, # 48 Exhibit Ex. 29, # 49 Exhibit Ex. 30, # 50 Exhibit Ex. 31, # 51 Exhibit Ex. 32, # 52 Exhibit Ex. 33, # 53 Exhibit Ex. 34, # 54 Exhibit Ex. 35)(Oldham, Andrew) (Entered: 01/07/2015)
65 Unopposed MOTION for Leave to File Excess Pages by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 1/28/2015. (Attachments: # 1 Proposed Order)(Oldham, Andrew) (Entered: 01/07/2015)
66 MOTION for Chirag G. Badlani to Appear Pro Hac Vice for Proposed Amici Major Cities Chiefs Police Association, et al, filed. Motion Docket Date 1/29/2015. (jtabares, 1) (Entered: 01/08/2015)
67 ORDER granting 63 Motion to Appear Pro Hac Vice as to Ilya Shapiro.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Main Document 67 replaced on 1/8/2015) (mperez, 1). (Entered: 01/08/2015)
68 ORDER granting 61 Motion for Leave to File Brief as Friends of the Court Supporting Plaintiffs Request for a Preliminary Injunction.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/08/2015)
69 ORDER granting 65 Motion to Exceed Page Limits.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/08/2015)
70 ORDER granting 55 Motion to Appear Pro Hac Vice as to Dale L. Wilcox.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/08/2015)
71 ORDER granting 62 Motion to Appear Pro Hac Vice as to Prof. Peter Margulies.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/08/2015)
72 ORDER granting 66 Motion to Appear Pro Hac Vice as to Chirag G. Badlani.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/08/2015)
73 ORDER granting 39 Motion for Leave to File. The Court hereby grants leave for the aforementioned movants to participate as amici curiae and file a brief in opposition to Plaintiffs' motion for a preliminary injunction. (Signed by Judge Andrew S. Hanen) Parties notified.(avleal, 1) (Entered: 01/09/2015)
75 ORDER denying 40 Motion to Intervene.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/09/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 40 of 69

01/09/2015 01/09/2015 01/12/2015
01/12/2015
01/12/2015 01/12/2015 01/12/2015 01/12/2015 01/13/2015 01/13/2015 01/13/2015
01/13/2015 01/14/2015

77 MOTION for Kyle R. Freeny to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 1/30/2015. (Freeny, Kyle) (Entered: 01/09/2015)
78 ORDER granting 77 Motion to Appear Pro Hac Vice as to Kyle R. Freeny.(Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 01/09/2015)
79 MOTION for Kathleen R. Hartnett to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 2/2/2015. (Freeny, Kyle) (Additional attachment(s) added on 1/14/2015: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (avleal, 1). (Entered: 01/12/2015)
80 NOTICE of attorney substitution by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. Attorney Scott A. Keller added. Attorney Jonathan F. Mitchell terminated, filed. (Keller, Scott) (Entered: 01/12/2015)
81 Unopposed MOTION Filing of Amicus Brief of Washington and States by State of Washington, filed. Motion Docket Date 2/2/2015. (Attachments: # 1 Appendix Part 1, # 2 Appendix Part 2)(Egeler, Anne) (Entered: 01/12/2015)
82 ORDER re: 79 MOTION for Kathleen R. Hartnett to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/12/2015)
83 MOTION for Leave to File Leave to File Amici Curiae Brief of Major Cities Chiefs Association et al. by Proposed Amici Major Cities Chiefs Police Association, et al., filed. Motion Docket Date 2/2/2015. (Attachments: # 1 Exhibit 1−Proposed Amici Curiae Brief, # 2 Exhibit 2−Proposed Order)(Badlani, Chirag) (Entered: 01/12/2015)
84 NOTICE of Appearance by Kathleen R. Hartnett on behalf of Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. (Freeny, Kyle) (Entered: 01/12/2015)
85 MOTION for Cally Younger to Appear Pro Hac Vice by C.L. "Butch" Otter, filed. Motion Docket Date 2/3/2015. (lcayce, 2) (Entered: 01/13/2015)
86 ORDER re: 85 MOTION for Cally Younger to Appear Pro Hac Vice by C.L. "Butch" Otter,.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/13/2015)
87 ORDER granting 81 Unopposed MOTION Filing of Amicus Brief of Washington and States by State of Washington. The Court hereby grants leave for the aforementioned movants to participate as amici curiae and file a brief in opposition to Plaintiffs' Motion for Preliminary Injunction(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/13/2015)
88 ORDER granting 83 Motion for Leave to File. The Court hereby grants leave for the aforementioned movants to participate as amici curiae and file a brief in opposition to Plaintiffs' motion for a preliminary injuction. (Signed by Judge Andrew S. Hanen) Parties notified.(avleal, 1) (Entered: 01/13/2015)
89 NOTICE of Appearance by Jonathan F. Mitchell on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Mitchell, Jonathan) (Entered: 01/14/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 41 of 69

01/14/2015 01/14/2015
01/14/2015 01/15/2015 01/15/2015 01/15/2015
01/15/2015 01/15/2015
01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015

90 MOTION for Extension of Time to Respond to Plaintiffs' Reply by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 2/4/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 01/14/2015)
91 MOTION to Intervene by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 2/4/2015. (Attachments: # 1 Exhibit 1 − [Proposed] Defendant−Intervenors' Joinder in Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction and Supplemental Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction, # 2 Exhibit 2 − [Proposed] Answer to Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief, # 3 Appendix of Authorities, # 4 Appendix of Declarations, # 5 Proposed Order)(Perales, Nina) (Entered: 01/14/2015)
92 MOTION to Proceed under Pseudonyms and Memorandum in Support Thereof by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 2/4/2015. (Attachments: # 1 Appendix of Declarations and Exhibits, # 2 Proposed Order)(Perales, Nina) (Entered: 01/14/2015)
93 MOTION for Jonathan Alden Moseley to Appear Pro Hac Vice for Amicus, Sheriff Joe Arpaio, filed. Motion Docket Date 2/5/2015. (bcampos, 1) (Additional attachment(s) added on 1/15/2015: # 1 Statement) (bcampos, 1). (Entered: 01/15/2015)
94 MOTION for Linda J. Smith to Appear Pro Hac Vice for Defendant−Intervenors, Jane Doe 1, Jane Doe 2, and Jane Doe 3, filed. Motion Docket Date 2/5/2015. (bcampos, 1) (Entered: 01/15/2015)
Minute Entry for proceedings held before Judge Andrew S. Hanen. Preliminary INJUNCTION HEARING held on 1/15/2015. Appearances: Attorneys for Plaintiffs: A. Oldham; A. Bitter; A. Colmenero; A. D'Andrea; J. Mitchell; Attorneys for Defendants: K. Hartnett; K. Freeny; D. Hu;(Court Reporter: B.Barnard)(10:05−11:35 / 11:49−01:13). Court addressed the Parties. Oral argument heard. Court Break. Court Resumes. Oral argument heard. The state of Tennesse would like to be part of this case. Supplemental complaint joining Tennesse by 01/23/15 with reply by 01/30/15. 90 MOTION for Extension of Time to Respond to Plaintiffs' Reply by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, −Discussed and due 1/30/15. Court will rule expeditiously has it can. Court adjourned., filed.(csustaeta, 1) (Entered: 01/15/2015)
95 ORDER granting 94 Motion to Appear Pro Hac Vice for attorney Linda Jane Smith. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/15/2015)
96 ORDER entered. The Court hereby imposes the following deadlines: 1) Plaintiffs shall file any supplemental pleading adding the State of Tennessee as a party−plaintiff by January 23, 2015; 2) Any responsive pleading by Defendants to Plaintiffs' above−referenced supplemental pleading shall be filed on or before January 30, 2015; and 3) Defendants shall file any responses to Plaintiffs' Reply in Support of their Motion for Preliminary Injunction on or before January 30, 2015. (Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/15/2015)
97 MOTION for Gabriel Markoff to Appear Pro Hac Vice by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 2/6/2015. (avleal, 1) (Entered: 01/16/2015)
98 MOTION for J. Jorge deNeve to Appear Pro Hac Vice by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 2/6/2015. (avleal, 1) (Entered: 01/16/2015)
99 ORDER entered. The Court hereby cancels the initial pretrial conference scheduled for March 31, 2015. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/16/2015)
100 AO 435 TRANSCRIPT ORDER FORM by Kyle Freeny. This is to order a transcript of Motion Hearing held on 01/15/2015 before Judge Andrew S. Hanen (original). Court Reporter/Transcriber: Barbara Barnard, filed. (dahumada, 1) (Entered: 01/16/2015)
101 AO 435 TRANSCRIPT ORDER FORM by Karen C. Tumblin. This is to order a transcript of Preliminary Injunction Hearing held on 1/15/15 before Judge Andrew S.

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 42 of 69

01/16/2015 01/16/2015 01/16/2015 01/16/2015
01/20/2015 01/20/2015
01/20/2015
01/20/2015 01/20/2015 01/21/2015 01/21/2015 01/21/2015 01/21/2015 01/23/2015

Hanen (copy). Court Reporter: Barbara Barnard, filed. (jtabares, 1) (Entered: 01/16/2015)
102 ORDER granting 97 Motion to Appear Pro Hac Vice, for attorney Gabriel Markoff.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/16/2015)
103 ORDER granting 93 Motion to Appear Pro Hac Vice, attorney Jonathon A Moseley.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/16/2015)
104 ORDER granting 98 Motion to Appear Pro Hac Vice.(Signed by Judge Andrew S. Hanen) Parties notified.(avleal, 1) (Entered: 01/16/2015)
105 MOTION for Jonathan F. Mitchell to Withdraw as Attorney by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 2/6/2015. (Attachments: # 1 Proposed Order Proposed Order)(Oldham, Andrew) (Entered: 01/16/2015)
106 TRANSCRIPT re: Preliminary injunction hearing held on 1/15/15 before Judge Andrew S. Hanen. Court Reporter/Transcriber Barbara Barnard. Ordering Party Kyle Freeny Release of Transcript Restriction set for 4/20/2015., filed. (bbarnard, ) (Entered: 01/20/2015)
107 Unopposed MOTION for Leave to File Friend of the Court Brief by Joe Arpaio, filed. Motion Docket Date 2/10/2015. (Attachments: # 1 Supplement Proposed Amicus Curiae Brief by Sheriff Joe Arpaio, # 2 Affidavit Stating Data published by Defendants re: Funding Requests for Enforcement of Immigration Laws, attested to by Jonathon Moseley in Arpaio v. Obama case, # 3 Proposed Order)(Moseley, Jonathon) (Entered: 01/20/2015)
108 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Joe Arpaio as Sheriff of Maricopa County by Joe Arpaio, filed. Motion Docket Date 2/10/2015. (Attachments: # 1 Proposed Order, # 2 Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Joe Arpaio as Sheriff of Maricopa County)(jtabares, 1) (Entered: 01/20/2015)
109 ORDER granting 105 Motion to Withdraw as Attorney. Attorney Jonathan F. Mitchell terminated.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/20/2015)
110 AO 435 TRANSCRIPT ORDER FORM by Ilya Shapiro. This is to order a transcript of Hearing held on 1/15/2015 before Judge Andrew S. Hanen (Copy Order). Court Reporter: B. Barnard, filed. (pcrawford, 4) (Entered: 01/21/2015)
111 MOTION for Adam P KohSweeney to Appear Pro Hac Vice by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. (Bar Membership verified) Motion Docket Date 2/11/2015. (bcampos, 1) (Entered: 01/21/2015)
112 ORDER granting 108 Motion for Leave to File to Participate as Amici Curiae in Support of Plaintiffs by Sheriff Joe Arpaio.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/21/2015)
113 Amicus BRIEF in Support of Plaintiffs' Motion for Preliminary Injunction by Joe Arpaio as Sheriff of Maricopa County, filed.(bcampos, 1) (Entered: 01/21/2015)
114 ORDER granting 111 Motion to Appear Pro Hac Vice as to attorney, Adam P. KohSweeney.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 01/21/2015)
115 SUPPLEMENT to 14 Amended Complaint/Counterclaim/Crossclaim etc.,, by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana,

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 43 of 69

01/27/2015 01/27/2015 01/27/2015 01/27/2015 01/27/2015
01/27/2015
01/28/2015 01/28/2015 01/28/2015
01/29/2015 01/30/2015
01/30/2015 01/30/2015 01/30/2015
01/30/2015

State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed.(Oldham, Andrew) (Entered: 01/23/2015)
116 Certified Mail Receipt Returned, executed on 1/20/15 re: 76 Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (mperez, 1) (Entered: 01/27/2015)
117 NOTICE of Fraud/ Misrepresentation Committed by Orly Taitz, filed. (Attachments: # 1 attachment)(sbejarano, 1) (Entered: 01/27/2015)
118 ORDER Striking Document re: 117 Notice of Fraud/ Misrepresentation(Signed by Judge Andrew S. Hanen) Parties notified.(sbejarano, 1) (Entered: 01/27/2015)
119 MOTION for Richard Dearing to Appear Pro Hac Vice by Bill de Blasio, filed. Motion Docket Date 2/17/2015. (mperez, 1) (Entered: 01/27/2015)
120 MOTION for Leave to File Brief Amici Curiae In Support of Defendants and Opposition to Plaintiff's Motion for Preliminary Injunction by Bill de Blasio, filed. Motion Docket Date 2/17/2015. (Attachments: # 1 Proposed Order)(mperez, 1) (Entered: 01/27/2015)
121 BRIEF for the Amici Curiae the Mayors of New York and Los Angeles, the Mayor of Thirty−One Additional Cities, the United States Conferences of Mayors, and the National League of Cities in Opposition to Plaintiffs' Motion for Preliminary Injunction by Bill de Blasio, filed.(mperez, 1) (Entered: 01/27/2015)
122 ORDER granting 120 Motion for Leave to File Brief Amici Curaie in Support of Defendants and in Opposition to Plaintiff's Motion for Preliminary Injunction.(Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 01/28/2015)
123 ORDER re: 119 MOTION for Richard Dearing to Appear Pro Hac Vice by Bill de Blasio.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 01/28/2015)
124 AO 435 TRANSCRIPT ORDER FORM by Kendra Morries. This is to order a transcript of Preliminary Injunction Hearing held on 1/15/15 before Judge Andrew S. Hanen (copy order). Court Reporter/Transcriber: Barbara Barnard, filed. (rnieto, 1) (Entered: 01/28/2015)
125 Certified Mail Receipt Returned, executed on 1/20/15 re: 42 Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (mperez, 1) (Entered: 01/29/2015)
126 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' Amended Complaint and Supplement to the Amended Complaint by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 2/20/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 01/30/2015)
127 APPENDIX re: 121 Brief, by Bill de Blasio, filed.(Dearing, Richard) (Entered: 01/30/2015)
128 Certified Mail Receipt Returned as to Mitchell Williams re: 74 Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (bcampos, 1) (Entered: 01/30/2015)
129 Unopposed MOTION for Leave to File Excess Pages by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 2/20/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 01/30/2015)
130 SURREPLY to 5 Opposed MOTION for Preliminary Injunction, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski. (Attachments: # 1 Exhibit 34, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 40, # 8 Exhibit 41, # 9 Exhibit 42, # 10 Exhibit 43, # 11 Exhibit 44, # 12 Exhibit 45, # 13 Exhibit 46)(Freeny, Kyle) (Entered: 01/30/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 44 of 69

01/30/2015
02/02/2015
02/02/2015 02/02/2015 02/03/2015 02/03/2015 02/05/2015 02/06/2015 02/11/2015 02/11/2015 02/11/2015 02/11/2015 02/11/2015 02/16/2015 02/16/2015 02/19/2015

131 RESPONSE to 91 MOTION to Intervene filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Proposed Order Proposed Order)(Oldham, Andrew) (Entered: 01/30/2015)
132 SUPPLEMENT to 5 Opposed MOTION for Preliminary Injunction by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Attachments: # 1 Exhibit Ex A, # 2 Exhibit Ex B, # 3 Exhibit Ex C, # 4 Exhibit Ex D, # 5 Exhibit Ex E, # 6 Exhibit Ex F)(Oldham, Andrew) (Entered: 02/02/2015)
133 ORDER granting 129 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 02/02/2015)
134 ORDER granting 126 Unopposed Motion for Extension of Time to Respond to Plaintiffs' Amended Complaint and Supplement to the Amended Complaint.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 02/02/2015)
135 MOTION for Reconsideration or Motion in the Alternative by Intervenor Mitchell Williams, filed. Motion Docket Date 2/24/2015. (rnieto, 1) (Entered: 02/03/2015)
136 RESPONSE in Opposition to 91 MOTION to Intervene, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 02/03/2015)
137 MOTION to Intervene as an Additional Plaintiff by Orly Taitz, filed. Motion Docket Date 2/26/2015. (rnieto, 1) (Entered: 02/05/2015)
138 REPLY in Support of 91 MOTION to Intervene, filed by Jane Doe #1, Jane Doe #2, Jane Doe #3. (Perales, Nina) (Entered: 02/06/2015)
139 MOTION for Leave to File Amicus by Harold William Van Allen, filed. Motion Docket Date 3/4/2015. (dnoriega, 1) (Entered: 02/11/2015)
140 ORDER denying 137 Motion to Intervene filed by Dr. Orly Taitz.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 02/11/2015)
141 ORDER denying 91 MOTION to Intervene by Jane Doe #1, Jane Doe #2, Jane Doe #3.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 02/11/2015)
142 ORDER denying 135 Motion for Reconsideration.(Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 02/11/2015)
143 Supplemental EXHIBITS by Joe Arpaio, filed. (Attachments: # 1 Exhibit DHS Announcement accepting deferred action applications Feb 18, # 2 Exhibit DHS announcement immediate application of deferred action requirements)(Moseley, Jonathon) (Entered: 02/11/2015)
144 ORDER granting 5 Motion for Preliminary Injunction.(Signed by Judge Andrew S. Hanen) Parties notified.(rdv, 1) (Entered: 02/16/2015)
145 MEMORANDUM OPINION AND ORDER (Signed by Judge Andrew S. Hanen) Parties notified.(rdv, 1) (Main Document 145 replaced on 2/17/2015) (rdv, 1). Modified on 2/17/2015 (rdv, 1). (Entered: 02/16/2015)
146 ORDER denying as moot 92 Motion for leave proceed under pseudonyms ; granting 107 Motion for Leave to File; granting 139 Motion for Leave to File Amicus.(Signed by Judge Andrew S. Hanen) Parties notified.(dahumada, 1) Modified on 2/20/2015 (dahumada, 1). (Entered: 02/20/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 45 of 69

02/19/2015 02/20/2015 02/23/2015 02/23/2015
02/23/2015
02/23/2015 02/23/2015
02/24/2015 02/24/2015 02/24/2015 02/24/2015 02/25/2015 02/25/2015 02/25/2015

147 Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction by Joe Arpaio as Sheriff of Maricopa County, filed.(dahumada, 1) (Entered: 02/20/2015)
148 Unopposed MOTION for Andrew S. Oldham to Withdraw as Attorney by State of Texas, filed. Motion Docket Date 3/13/2015. (Oldham, Andrew) (Entered: 02/20/2015)
149 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 145 Order, Memorandum and Opinion, 144 Order on Motion for Preliminary Injunction by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed.(Freeny, Kyle) (Entered: 02/23/2015)
150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited) by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 3/16/2015. (Attachments: # 1 Affidavit Declaration of Sarah R. Saldaa, Director of ICE, # 2 Affidavit Declaration of of R. Gil Kerlikowske, Commissioner of CBP, # 3 Proposed Order)(Freeny, Kyle) (Entered: 02/23/2015)
151 ADVISORY by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed.(Colmenero, Angela) (Entered: 02/23/2015)
152 MOTION for Leave to File Amicus Curiae Brief Opposing Stay by Joe Arpaio, filed. Motion Docket Date 3/16/2015. (Attachments: # 1 Supplement Proposed Amicus Curiae Brief by Sheriff Joe Arpaio, # 2 Exhibit Statement by USCIS Director on Intent, # 3 Exhibit Admission by IRS Commissiner of $24,000 Bounty to Amnesty Recipients)(Moseley, Jonathon) (Entered: 02/23/2015)
153 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited), 152 MOTION for Leave to File Amicus Curiae Brief Opposing Stay, 149 Notice of Appeal. Fee status: GOV. Reporter(s): Barbara Barnard; ERO, filed. (Attachments: # 1 Notice of Appeal, # 2 Order of Temporary Injunction, # 3 Memorandum Opinion and Order, # 4 Public Docket Sheet) (jtabares, 1) (Entered: 02/23/2015)
154 Notice of Assignment of USCA No. 15−40238 re: 149 Notice of Appeal,, filed.(sbejarano, 1) (Entered: 02/24/2015)
155 ORDER entered. Motion−related deadline set re: 150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited). Responses due by 3/2/2015.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 02/24/2015)
156 AMENDED ORDER entered. Motion−related deadline set re: 150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited) Responses due by 3/3/2015.(Signed by Judge Andrew S. Hanen) Parties notified.(csustaeta, 1) (Entered: 02/24/2015)
157 SUPPLEMENT to 152 MOTION for Leave to File Amicus Curiae Brief Opposing Stay by Joe Arpaio, filed.(Moseley, Jonathon) (Entered: 02/24/2015)
Appeal Review Notes re: 149 Notice of Appeal,. Fee status: GOV. The appellant is a U.S. government agency, and no fee is required.Hearings were held in the case. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Number of DKT−13 Forms expected: 2, filed.(jtabares, 1) (Entered: 02/25/2015)
158 NOTICE of Appearance by Mitchell L. Herren on behalf of Judicial Watch, Inc., filed. (Herren, Mitchell) (Entered: 02/25/2015)
159 MOTION for Leave to File Amicus Curiae Brief by Judicial Watch, Inc., filed. Motion Docket Date 3/18/2015. (Attachments: # 1 Exhibit A − Amicus Curiae Brief)(Herren,

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 46 of 69

02/27/2015
02/27/2015 02/27/2015 02/27/2015 03/02/2015
03/02/2015 03/02/2015 03/02/2015 03/02/2015 03/02/2015 03/02/2015 03/02/2015 03/02/2015 03/02/2015

Mitchell) (Entered: 02/25/2015)
160 Opposed MOTION for Leave to File Notice and Suggestion of Reports of Non−Compliance with Temporary Injunction and Suggesting Show Cause by Joe Arpaio, filed. Motion Docket Date 3/20/2015. (Attachments: # 1 Supplement Notice and Suggestion of Reports of Non−Compliance with Injunction, # 2 Exhibit News of Pres. Obama's statement in Miami, Florida, # 3 Exhibit News of DHS source: Programs continuing 'Full Throttle', # 4 Exhibit News report: DHS rushing to implement programs, # 5 Exhibit News obama moving ahead with program, # 6 Exhibit News: ICE agents will face consequences)(Moseley, Jonathon) (Entered: 02/27/2015)
161 MOTION for Reconsideration of 146 Order on Motion for Miscellaneous Relief,, Order on Motion for Leave to File,,, by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 3/20/2015. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 02/27/2015)
162 Joint MOTION for Extension of Time to Propose Schedule for Resolution of Merits by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed. Motion Docket Date 3/20/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 02/27/2015)
163 AMICUS BRIEF OF RIGHT by Michael Joseph Kearns, filed.(dnoriega, 1) (Entered: 03/02/2015)
164 ORDER granting 162 Motion for Extension of Time. The parties' deadline to "meet and confer and formulate and file with the court by February 27, 2015 an agreed upon (to the extent possible) schedule for the resolution of the merits" of the case, as set forth in this Court's 2/16/2015 order, is extended until 14 days after the Defendants' request to stay the preliminary injunction pending appeal has been finally resolved, including through any appellate channels in which relief may be sought.(Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 03/02/2015)
165 ORDER granting 159 Motion for Leave to File Amicus Curiae Brief in Opposition to Defendant's Emergency Expedited Motion. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) Modified on 3/2/2015 (rnieto, 1). (Entered: 03/02/2015)
166 AMICUS CURIAE BRIEF of Judicial Watch, Inc., filed. (rnieto, 1) (Entered: 03/02/2015)
167 ORDER granting 152 Motion for Leave to File a Brief and Memorandum of Law in Opposition to a Stay of Preliminary Injunction. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 03/02/2015)
168 BRIEF and Memorandum of Law in Opposition to Stay of Preliminary Injunction by Amicus Curiae Sheriff Joe Arpaio, filed. (rnieto, 1) (Entered: 03/02/2015)
169 ORDER granting 161 Leave for Jane Does to participate as amici curiae under pseudonyms in their past filings and in any future filings they may make in this matter. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 03/02/2015)
170 ORDER denying 160 Motion for Leave to File Notice, Suggestion, and Recommendation for Issuance of Order to Show Cause concerning Enforcement of Court's Order by Amicus Curiae Sheriff Joe Arpaio. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 03/02/2015)
171 ORDER granting 148 Motion for Andrew S. Oldham as Attorney−in−Charge for State of TX. Angela V. Colmenero shall be the attorney−in−charge for any future proceedings in this Court. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 03/02/2015)
172 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit and Motion to Proceed IFP re: 142 Order on Motion for Reconsideration by Mitchell Williams (Filing fee $ 505), filed.(dnoriega, 1) Modified on 4/14/2015 (sbejarano, 1). (Entered: 03/02/2015)
173 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 172 Notice of Appeal. Fee status: Not Paid,

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 47 of 69

03/02/2015 03/03/2015 03/03/2015
03/03/2015 03/04/2015 03/04/2015 03/04/2015 03/04/2015 03/04/2015
03/04/2015 03/05/2015 03/05/2015

filed. (Attachments: # 1 Notice of Appeal, # 2 Order, # 3 Public Docket Sheet) (dnoriega, 1) (Entered: 03/02/2015)
Appeal Review Notes re: 172 Notice of Appeal. Fee status: Not paid. A motion to proceed in forma pauperis is pending.Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 1. The motion for IFP is within the Notice of Appeal, filed.(dnoriega, 1) (Entered: 03/02/2015)
174 MOTION for Leave to File Amici Brief by American Center for Law & Justice, filed. Motion Docket Date 3/24/2015. (Attachments: # 1 Exhibit Amicus Brief)(Sekulow, Jay) (Entered: 03/03/2015)
175 RESPONSE in Opposition to 150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited), filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Proposed Order)(Colmenero, Angela) (Entered: 03/03/2015)
176 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed.(Freeny, Kyle) (Entered: 03/03/2015)
177 ORDER granting 174 Motion for Leave to File.(Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 03/04/2015)
178 AMICI CURIAE BRIEF in Opposition re: 150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited) by American Center for Law & Justice, filed.(dnoriega, 1) (Entered: 03/04/2015)
179 AO 435 TRANSCRIPT ORDER FORM by Angela V. Colmenero. This is to order a transcript of Conference held on 12/19/2014 before Judge Andrew S. Hanen (Original), filed. (mmapps, 4) Electronically forwarded to Exceptional 3/5/15. Estimated transcript completion date: 3/6/15. Modified on 3/5/2015 (mperez, 1). (Entered: 03/04/2015)
180 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, Thomas S. Winkowski, filed.(Freeny, Kyle) (Entered: 03/04/2015)
181 ADVISORY by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed.(Colmenero, Angela) (Entered: 03/04/2015)
182 AO 435 TRANSCRIPT ORDER FORM by Kyle R. Freeny. This is to order a transcript of Telephone Conference held on 12/19/2014 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Transcriber, filed. (avleal, 1) Electronically forwarded to Exceptional 3/5/15. Estimated transcript completion date: 3/6/15. Modified on 3/5/2015 (mperez, 1). (Entered: 03/05/2015)
Notice of Assignment of USCA No. 15−40238 re: 172 Notice of Appeal, filed.(dahumada, 1) (Entered: 03/05/2015)
183 Opposed MOTION for Discovery by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 3/26/2015. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Colmenero, Angela) (Entered:

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 48 of 69

03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015
03/09/2015 03/09/2015 03/09/2015
03/10/2015
03/11/2015 03/11/2015 03/11/2015 03/12/2015

03/05/2015)
184 TRANSCRIPT re: TELEPHONIC CONFERENCE held on 12/19/14 before Judge Andrew S. Hanen. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party ANGELA COLMENERO Release of Transcript Restriction set for 6/4/2015., filed. (thudson, ) (Entered: 03/06/2015)
185 Notice of Filing of Official Transcript as to 184 Transcript. Party notified, filed. (dahumada, 1) (Entered: 03/06/2015)
186 MOTION for Dwight Carswell to Appear Pro Hac Vice by the State of Kansas, filed. Motion Docket Date 3/27/2015. (sbejarano, 1) Modified on 3/6/2015 (sbejarano, 1). (Entered: 03/06/2015)
187 ORDER granting 186 Motion for Dwight Carswell to Appear Pro Hac Vice for the State of Kansas. (Signed by Judge Andrew S. Hanen) Parties notified.(rnieto, 1) (Entered: 03/06/2015)
188 SUPPLEMENT to 183 Opposed MOTION for Discovery by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Attachments: # 1 Exhibit A)(Colmenero, Angela) (Entered: 03/06/2015)
189 DKT−13 TRANSCRIPT ORDER FORM by United States, et al. Transcript is already on file in Clerks office. This order form relates to the following: 172 Notice of Appeal, filed.(jtabares, 1) (Entered: 03/09/2015)
190 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 141 Order on Motion to Intervene by Jane Doe #1, Jane Doe #2, Jane Doe #3 (Filing fee $ 505, receipt number 0541−14540322), filed.(Perales, Nina) (Entered: 03/09/2015)
191 ORDER entered. In addition to being prepared to respond to the States' Motion, the Defendants shall be prepared to fully explain to this Court all of the matters addressed in and circumstances surrounding the Defendant's Advisory filed on March 3, 2015 [Doc. No. 176]. Motion Hearing set for 3/19/2015 at 01:30 PM in Courtroom 6 before Judge Andrew S. Hanen.(Signed by Judge Andrew S. Hanen) Parties notified.(avleal, 1) (Entered: 03/09/2015)
193 NOTICE of Appearance by Eric A. Hudson on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Hudson, Eric) (Entered: 03/10/2015)
194 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 190 Notice of Appeal. Fee status: Paid. Reporter(s): ERO and Barbara Barnard, filed. (Attachments: # 1 Notice of Appeal, # 2 Order, # 3 Public Docket Sheet) (rnieto, 1) (Entered: 03/11/2015)
Appeal Review Notes re: 190 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid. Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 2, filed. (rnieto, 1) (Entered: 03/11/2015)
Notice of Assignment of USCA No. 15−40333 re: 190 Notice of Appeal, filed. (rnieto, 1) (Entered: 03/11/2015)
195 SUPPLEMENT to 150 MOTION to Stay the Court's February 16, 2015 Order Pending Appeal (Emergency/Expedited) by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Freeny, Kyle) (Entered: 03/12/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 49 of 69

03/12/2015 03/13/2015 03/13/2015
03/16/2015 03/16/2015 03/17/2015 03/19/2015
03/19/2015 03/19/2015 03/20/2015 03/20/2015 03/20/2015 03/20/2015 03/21/2015 03/23/2015 03/23/2015

196 MOTION for Leave to File Emergency Intervention by Harold William Van Allen, filed. Motion Docket Date 4/2/2015. (Attachments: # 1 Attachment, # 2 Exhibit A, # 3 Receipt)(avleal, 1) (Additional attachment(s) added on 3/13/2015: # 4 Unredacted attachment, # 5 Unredacted attachment Attachment) (avleal, 1). (Entered: 03/13/2015)
197 ORDER denying 196 MOTION for Leave to File Emergency Intervention. FINANCE flag set. (Signed by Judge Andrew S. Hanen) Parties notified.(avleal, 1) (Entered: 03/13/2015)
199 Unopposed MOTION to Stay Deadline to Respond to Plaintiffs' Amended Complaint and Supplement to the Amended Complaint by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 4/3/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 03/13/2015)
Notice of Assignment of USCA No. 15−40326 re: 172 Notice of Appeal, filed.(melopez, 1) (Entered: 03/16/2015)
Notice of Assignment of USCA No. 15−40333 re: 190 Notice of Appeal, filed.(melopez, 1) (Entered: 03/16/2015)
200 ORDER granting 199 Motion to Stay.(Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 03/17/2015)
Minute Entry for proceedings held before Judge Andrew S. Hanen. MOTION HEARING held on 3/19/2015. Appearances: Attorneys for Plaintiffs: A. Colmenero; J. Campbell Barker; E. Hudson; J. Chadelle; Attorneys for Defendants: Kathleen R Hartnett; Kyle R. Freeny; Diane Kelleher; (Court Reporter: Barbara Barnard) (1:35 − 2:28) Court addressed the parties; Oral argument heard; Response to Motion for Early Discovery is to be filed within the next 48 hours; Court adjourned, filed. (mperez, 1) (Entered: 03/19/2015)
201 AO 435 TRANSCRIPT ORDER FORM by Kyle Freeny. This is to order a transcript of Motion Hearing held on 03/19/2015 before Judge Andrew S. Hanen (original). Court Reporter/Transcriber: Barbara Barnard, filed. (dahumada, 1) (Entered: 03/19/2015)
202 AO 435 TRANSCRIPT ORDER FORM by Angela V. Colmenero. This is to order a transcript of Motion Hearing held on 3/19/15 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Barbara Barnard, filed. (mperez, 1) (Entered: 03/19/2015)
203 TRANSCRIPT re: Motion hearing held on 3/19/15 before Judge Andrew S. Hanen. Court Reporter/Transcriber Barbara Barnard. Ordering Party Kyle Freeny Release of Transcript Restriction set for 6/18/2015., filed. (bbarnard, ) (Entered: 03/20/2015)
204 AO 435 TRANSCRIPT ORDER FORM by Dennis Cairns. This is to order a transcript of Motion Hearing held on 3/19/15 before Judge Andrew S. Hanen (original). Court Reporter: Barbara Barnard, filed. (jtabares, 1) (Entered: 03/20/2015)
205 AO 435 TRANSCRIPT ORDER FORM by Kendra Morries. This is to order a transcript of Motion Hearing held on 3/19/15 before Judge Andrew S. Hanen (copy). Court Reporter: Barbara Barnard, filed. (jtabares, 1) (Entered: 03/20/2015)
206 AO 435 TRANSCRIPT ORDER FORM by Karen C. Tumlin. This is to order a transcript of Hearing held on 3/19/15 before Judge Andrew S. Hanen (copy). Court Reporter: Barbara Barnard, filed. (jtabares, 1) (Entered: 03/20/2015)
207 RESPONSE in Opposition to 183 Opposed MOTION for Discovery, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Freeny, Kyle) (Entered: 03/21/2015)
208 Notice of Filing of Official Transcript as to 203 Transcript. Party notified, filed. (dnoriega, 1) (Entered: 03/23/2015)
209 REPLY in Support of 183 Opposed MOTION for Discovery, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 50 of 69

03/23/2015 03/23/2015 03/24/2015
03/24/2015
03/24/2015 03/25/2015 03/25/2015 03/25/2015 03/25/2015 03/25/2015 03/26/2015 03/27/2015 03/30/2015

Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit A)(Colmenero, Angela) (Entered: 03/23/2015)
210 DKT−13 TRANSCRIPT ORDER FORM by Nina Perales. Transcript is already on file in Clerks office. Telephonic Conference held on 12/19/2014 before Judge Andrew S. Hanen (original), Injunction Hearing held on 01/15/2015 held before Judge Andrew S. Hanen Court Reporter/Transcriber: Barbara Barnard. This order form relates to the following: 190 Notice of Appeal, filed.(dahumada, 1) (Entered: 03/23/2015)
211 AO 435 TRANSCRIPT ORDER FORM by Kendra Morries. This is to order a transcript of Telephonic Conference held on 12/19/2014 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Transcriber, filed. (dahumada, 1) (Entered: 03/23/2015)
212 Opposed MOTION for Leave to File Supplementqal Amicus Curiae Brief Filing Transcript from Related Case Arpaio v. Obama by Joe Arpaio, filed. Motion Docket Date 4/14/2015. (Attachments: # 1 Exhibit Proposed Supplemental Amicus Curiae Brief Filing Transcript and Highlighting Relevant Transcript Passages, # 2 Exhibit Transcript of December 22, 2014, Hearing in US District Ct for District of Columbia)(Moseley, Jonathon) (Entered: 03/24/2015)
213 ORDER entered. The Motion for Leave to File Transcript of Defendants' Argument December 22, 2014 filed by Amicus Curiae Sheriff Joe Arpaio [Doc No. 212] is hereby partially granted. The transcript may be filed. The request to participate actively in whatever discovery this Court may or may not allow is denied. Nevertheless, this Court finds that any questions concerning the conduct of counsel in Arpaio v Obama, No. 14−cv−01966 (D.D.C. filed Nov. 20, 2014), are best left to United States District Judge Beryl A. Howell, the judge presiding over the matter. (Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 03/24/2015)
214 TRANSCRIPT re: Motions Hearing held on 12/22/14 before Judge Beryl A. Howell Release of Transcript Restriction set for 6/22/2015, filed. (jtabares, 1) (Entered: 03/24/2015)
215 Notice of Filing of Official Transcript as to 214 Transcript. Party notified, filed. (dnoriega, 1) (Entered: 03/25/2015)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 154 USCA Case Number, 149 Notice of Appeal,, filed.(dnoriega, 1) (Entered: 03/25/2015)
216 Transmittal Letter on Appeal re: 149 Notice of Appeal,. The electronic record on CD is being sent to Angela V. Colmenero; Eric Alan Hudson; John C. Barker; Joseph Chapelle; Kathleen R. Hartnett; Kyle R. Freeny via regular mail. (USCA No. 15−40238), filed. (dnoriega, 1) (Entered: 03/25/2015)
217 Certified Mail Receipt Returned, executed on 3/16/15 re: 192 Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (mperez, 1) (Entered: 03/25/2015)
218 Certified Mail Receipt Returned, executed on 3/20/15 re: 198 Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (mperez, 1) (Entered: 03/25/2015)
220 Opposed MOTION to Intervene by Joe Arpaio, filed. Motion Docket Date 4/16/2015. (Attachments: # 1 Exhibit Memorandum of Law in Support of Motion)(Moseley, Jonathon) (Entered: 03/26/2015)
221 MOTION for Bradley Heath Cohen to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 4/17/2015. (Cohen, Bradley) (Additional attachment(s) added on 3/30/2015: # 1 Verified Motion PHV) (mperez, 1). (Entered: 03/27/2015)
222 Letter from Mitchell Williams, Appellant re: letter dated 3/13/15, filed. (rnieto, 1) (Entered: 03/30/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 51 of 69

03/30/2015 03/31/2015 04/07/2015 04/07/2015 04/07/2015
04/08/2015 04/09/2015 04/13/2015 04/13/2015 04/15/2015
04/15/2015 04/17/2015 04/17/2015

223 ORDER granting 221 Motion for Bradley H. Cohen to Appear Pro Hac Vice for the United States. (Signed by Judge Andrew S. Hanen) Parties notified. (rnieto, 1) (Entered: 03/30/2015)
Filing fee refunded to Harold William Van Allen in the amount of $505.00 on 3/31/2015 re: 197 Order,, filed. (knguyen, 4) (Entered: 03/31/2015)
224 REQUEST for Electronic Copy of Certified Record on Appeal re: 149 Notice of Appeal, by American Center for Law & Justice, filed.(Sekulow, Jay) (Entered: 04/07/2015)
225 ORDER denying 150 Motion to Stay. Having considered the Emergency Motion to Stay [Doc. No. 150], the briefing filed by both sides, and the argument of counsel, the Court hereby denies the Governments Motion to Stay its February 16, 2015 Order of Temporary Injunction.(Signed by Judge Andrew S. Hanen) Parties notified.(rdv, 1) (Entered: 04/07/2015)
226 ORDER regarding 183 Opposed MOTION for Discovery . The Government has until April 21, 2015, to comply with this Order. Following their review of the documents produced, the Plaintiff States shall file with the Court a list of any further discovery that they may deem necessary, with a brief summary of why that discovery is relevant. The States have until May 1, 2015, to do so. The Government shall have until May 8, 2015, to respond to the States request. The Court will then consider those requests and issue an appropriate order as promptly as its schedule allows.(Signed by Judge Andrew S. Hanen) Parties notified.(rdv, 1) Modified on 4/8/2015 (bcampos, 1). (Entered: 04/07/2015)
227 Transmittal Letter on Appeal re: 149 Notice of Appeal,. The electronic record on CD is being sent to Attorney for Amici Curiae, Jay Alan Sekulow via regular mail. (USCA No. 15−40238), filed. (bcampos, 1) (Entered: 04/08/2015)
228 MOTION for David Hinojosa to Withdraw as Attorney by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 4/30/2015. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 04/09/2015)
SUPPLEMENTAL Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 172 Notice of Appeal, 149 Notice of Appeal, 190 Notice of Appeal USCA No. 15−40238, filed.(bcampos, 1) (Entered: 04/13/2015)
229 Transmittal Letter on Appeal re: 172 Notice of Appeal, 149 Notice of Appeal, 190 Notice of Appeal. The supplemental record is being sent to Angela V. Colmenero; Eric Alan Hudson; John C. Barker; Joseph Chapelle; Kathleen R. Hartnett; Kyle R. Freeny; Jeff Clair; Attorney for Amici Curiae, Jay Alan Sekulow via regular mail. (USCA No. 15−40238), filed. (bcampos, 1) (Entered: 04/13/2015)
230 RESPONSE to 220 Opposed MOTION to Intervene filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Colmenero, Angela) (Entered: 04/15/2015)
231 RESPONSE in Opposition to 220 Opposed MOTION to Intervene, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Attachments: # 1 Proposed Order)(Cohen, Bradley) (Entered: 04/15/2015)
232 MOTION for Daniel Schwei to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 5/8/2015. (Schwei, Daniel) (Additional attachment(s) added on 4/20/2015: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jguajardo, 1). (Entered: 04/17/2015)
233 MOTION for Jennifer D. Ricketts to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 5/8/2015. (Schwei, Daniel) (Additional attachment(s) added on

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 52 of 69

04/17/2015 04/20/2015
04/20/2015 04/20/2015 04/20/2015 04/21/2015
04/30/2015 04/30/2015 04/30/2015 05/01/2015 05/01/2015 05/07/2015 05/07/2015 05/08/2015 05/11/2015

4/20/2015: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jguajardo, 1). (Entered: 04/17/2015)
234 Unopposed MOTION for Extension of Time to Respond to This Court's April 7, 2015 Order by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 5/8/2015. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 04/17/2015)
235 ORDER granting 234 Motion for Extension of Time. The defendants shall have until 4/30/2015 to respond to this court's order of 4/7/2015. It is further ordered that the other deadlines in the court's order of 4/7/2015 are correspondingly extended, such that plaintiffs shall have until 5/1/2015 for their filing, and defendants shall have until 5/18/2015 to respond. (Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 04/20/2015)
236 ORDER granting 228 Motion to Withdraw as Attorney. Withdrawing David G. Hinojosa as counsel for the Amici Jane Does.(Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 04/20/2015)
237 ORDER granting 232 Motion to Appear Pro Hac Vice as to attorney Daniel Stephen Garrett Schwei. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 04/20/2015)
238 ORDER granting 233 Motion to Appear Pro Hac Vice as to attorney Jennifer D. Ricketts.(Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 04/20/2015)
239 ORDER denying 172 Motion to Proceed IFP. The Court hereby denies Williams' Petition for Waiver of Fees/Costs for failure to comply with the requirements under Fifth Circuit Rules and Internal Operating Procedures (IOP) and Federal Rule of Appellate Procedure 24. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 04/21/2015)
241 Unopposed MOTION for Leave to File Excess Pages by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 5/21/2015. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 04/30/2015)
242 Sealed Event, filed. (Entered: 04/30/2015)
243 RESPONSE to 226 Order,, (Redacted for Public Filing), filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Schwei, Daniel) (Entered: 04/30/2015)
244 ORDER granting 241 Motion for Leave to File Excess Pages. It is further ordered that defendants may file a response of up to twenty−seven pages.(Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 05/01/2015)
245 Certified Mail Receipt Returned, executed on 4/28/2015 re: 240 Document(s) Sent − receipt attached, access restricted to court users for privacy reasons −, filed. (dnoriega, 1) (Entered: 05/01/2015)
246 Fifth Circuit Court of Appeals LETTER to Mitchell Williams advising IFP DENIED; filing fee due 30 days from date of this letter (USCA No. 15−40326), filed. (rnieto, 1) (Entered: 05/07/2015)
247 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Cohen, Bradley) (Entered: 05/07/2015)
248 SUPPLEMENTAL ORDER, entered. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 05/08/2015)
249 Unopposed MOTION for Extension of Time To File Response to Defendants' Submission Pursuant to the Court's April 7 Order by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 53 of 69

05/11/2015
05/12/2015
05/12/2015 05/13/2015 05/14/2015 05/14/2015 05/14/2015 05/15/2015 05/18/2015 05/18/2015 05/18/2015 05/19/2015 05/19/2015 05/20/2015

Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. Motion Docket Date 6/1/2015. (Attachments: # 1 Proposed Order)(Colmenero, Angela) (Entered: 05/11/2015)
250 ORDER granting 249 Unopposed Motion to Extend Deadline to File Response to Defendant's Submission Pursuant to the Court's April 7 Order. IT IS THEREFORE ORDERED that Plaintiffs' Deadline to File Response to Defendants' Submission Pursuant to the Court's April 7 Order is extended to May 20, 2015, and Defendants' response deadline is extended to May 27, 2015. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 05/11/2015)
251 Order entered by the Court. The Government is ordered to identify to the Court individuals referenced in the privilege log filed with this Court on April 30, 2015. This filing should include the name, position, (and whether the individual is a lawyer or paralegal), title, and agency for whom the individual works. Responses due by 5/20/2015.(Signed by Judge Andrew S. Hanen) Parties notified.(dahumada, 1) (Entered: 05/12/2015)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 190 Notice of Appeal USCA No. 15−40333, filed.(avleal, 1) (Entered: 05/12/2015)
252 Order of USCA regarding motions re: 172 Notice of Appeal, 149 Notice of Appeal, 190 Notice of Appeal ; USCA No. 15−40238., filed.(bcampos, 1) (Entered: 05/13/2015)
253 REQUEST for Electronic Copy of Certified Record on Appeal re: 190 Notice of Appeal by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed.(Markoff, Gabriel) (Entered: 05/14/2015)
254 Transmittal Letter on Appeal re: 190 Notice of Appeal. The electronic record on CD is being sent to John Campbell Barker, William E. Havemann, Scott R. McIntosh, Jeffrey A. Clair, Gabriel Markoff, Nina Perales, Alex Potapov, Linda Jane Smith. (USCA No. 15−40333), filed. (avleal, 1) Modified on 5/14/2015 (avleal, 1). (Entered: 05/14/2015)
257 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 239 Order, by Mitchell Williams (Filing fee $ 505), filed.(jtabares, 1) (Main Document 257 replaced on 5/18/2015) (bcampos, 1). Modified on 5/18/2015 (jtabares, 1). (Entered: 05/18/2015)
256 SUPPLEMENT to 247 Advisory by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Affidavit Declaration of Leon Rodriguez, # 2 Affidavit Declaration of Donald Neufeld)(Ricketts, Jennifer) (Entered: 05/15/2015)
258 Fifth Circuit Court of Appeals LETTER re: Notice of Appeal filed by Mitchell Williams is to be docketed as of 5/14/15, filed.(bcampos, 1) (Entered: 05/18/2015)
259 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 257 Notice of Appeal. Fee status: Not Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Order, # 3 Public Docket Sheet) (jtabares, 1) (Entered: 05/18/2015)
Appeal Review Notes re: 257 Notice of Appeal. Fee status: Not Paid. The appeal filing fee has not been paid, and appellant is a pro se litigant.Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 1, filed.(jtabares, 1) (Entered: 05/18/2015)
260 NOTICE of Compliance re: 251 Order, by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Schwei, Daniel) (Entered: 05/19/2015)
Notice of Assignment of USCA No. 15−40702 re: 257 Notice of Appeal, filed.(dnoriega, 1) (Entered: 05/19/2015)
261 RESPONSE to 226 Order,, Plaintiffs' Response to Defendants' May 7 Advisory and Related Submission of Materials, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho,

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 54 of 69

05/21/2015 05/21/2015 05/21/2015 05/26/2015 05/27/2015 05/27/2015 06/01/2015 06/01/2015 06/04/2015
06/05/2015
06/10/2015 06/10/2015 06/11/2015

State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Colmenero, Angela) (Entered: 05/20/2015)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 15−40333, filed.(dnoriega, 1) (Entered: 05/21/2015)
262 Transmittal Letter on Appeal re: 190 Notice of Appeal. The supplemental record is being sent to John Campbell Barker, Jeffrey A. Clair, Gabriel Markoff, Nina Perales, Linda Jane Smith via regular mail. (USCA No. 15−40333), filed. (dnoriega, 1) (Entered: 05/21/2015)
263 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' Filing by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 6/11/2015. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 05/21/2015)
264 Order of USCA re: 149 Notice of Appeal, ; USCA No. 15−40238. The Motion to stay the preliminary injunction or narrow its scope pending appeal is denied. (bcampos, 1) (Entered: 05/26/2015)
Notice of Assignment of USCA No. 15−40326 re: 257 Notice of Appeal, filed.(dnoriega, 1) (Entered: 05/27/2015)
265 RESPONSE to 226 Order,, and Plaintiffs' Filing of May 20, 2015, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Schwei, Daniel) (Entered: 05/27/2015)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 257 Notice of Appeal, USCA Case Number 15−40326, filed.(dnoriega, 1) (Entered: 06/01/2015)
266 Transmittal Letter on Appeal re: 172 Notice of Appeal, 257 Notice of Appeal. The electronic record on CD is being sent to Eric A. Hudson, Kathleen Hartnett & Mitchell Williams via regular mail. (USCA No. 15−40326), filed. (dnoriega, 1) (Entered: 06/01/2015)
267 Fifth Circuit Court of Appeals LETTER TO COUNSEL advising each side to file a supplemental brief addressing pertinent portions of the majority and dissenting opinions issued by the motions panel on 5−26−15. Supplemental Briefs are due Thursday June 18th and may not exceed 7,000 words (USCA No. 15−40238), filed. (rnieto, 1) (Entered: 06/05/2015)
268 Fifth Circuit Court of Appeals REVISED LETTER to all Counsel advising each side to file a supplemental brief addressing pertinent portions of the majority and dissenting opinions issued by the motions panel on May 26, 2015, mindful of the relationship between motions and merits panels. The supplemental briefs are simultaneously due Thursday June 18 and may not exceed 7,000 words. (USCA No. 15−40238), filed.(jtabares, 1) Modified on 6/5/2015 (jtabares, 1). (Entered: 06/05/2015)
269 ORDER entered. The Court will hold a hearing on all pending matters on 6/23/2015 at 10:30 AM in Courtroom 6 before Judge Andrew S. Hanen. (Signed by Judge Andrew S. Hanen) Parties notified.(dnoriega, 1) (Entered: 06/10/2015)
270 Joint MOTION to Stay Merits Proceedings Pending Resolution of Defendants Appeal by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 7/1/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 06/10/2015)
271 ORDER re: 270 Motion to Stay. Upon consideration of the Motion, the Court orders that proceedings on the merits of Plaintiffs claims, including the obligation to propose a schedule for resolving the case, are stayed pending final resolution of Defendants appeal of the preliminary injunction in the United States Court of Appeals for the Fifth Circuit. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 06/11/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 55 of 69

06/22/2015 06/23/2015
06/24/2015 06/24/2015 06/24/2015 06/24/2015 06/25/2015 06/26/2015 06/26/2015 06/26/2015 06/29/2015 07/07/2015 07/09/2015 07/15/2015 07/29/2015 07/31/2015

272 The petition for a writ of certiorari filed with the Supreme Court has been dismissed. The motion of petitioner for leave to proceed in forma pauperis is denied. (USCA No. 15−40326) (USSC No. 14−9821), filed.(dnoriega, 1) (Entered: 06/22/2015)
Minute Entry for proceedings held before Judge Andrew S. Hanen. HEARING held on 6/23/2015. Appearances: Attorneys for Plaintiffs: A.V. Colmenero; A.N.Bitter; Attorneys for Defendants: J.D. Ricketts; D.Schwei, D.Hu, U.Jaddou;(Court Reporter: B.Barnard)(10:35−11:35) Court addressed Parties. Oral argument heard. Status report due 07/31/15. Court adjourned., filed.(csustaeta, 1) (Entered: 06/23/2015)
273 Order of USCA; USCA No. 15−40333. It is Ordered that appellant's motion to supplement the record on appeal with district court document 261,265,269 and 271 is granted, filed.(dahumada, 1) (Entered: 06/24/2015)
274 AO 435 TRANSCRIPT ORDER FORM by United States of America. This is to order a transcript of Hearing held on 6/23/15 before Judge Andrew S. Hanen (original). Court Reporter/Transcriber: Barbara Barnard, filed. (mperez, 1) (Entered: 06/24/2015)
Supplemental Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 190 Notice of Appeal USCA No. 15−40333, filed.(jtabares, 1) (Entered: 06/24/2015)
277 AO 435 TRANSCRIPT ORDER FORM by Jane Does / Kendra Morris. This is to order a transcript of 6/23/15 held on Hearing before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Barbara Barnard, filed. (bcampos, 1) (Entered: 06/26/2015)
275 TRANSCRIPT re: Hearing held on 6/23/15 before Judge Andrew S. Hanen. Court Reporter/Transcriber Barbara Barnard. Ordering Party USA Release of Transcript Restriction set for 9/23/2015., filed. (bbarnard, ) (Entered: 06/25/2015)
276 Notice of Filing of Official Transcript as to 275 Transcript. Party notified, filed. (jtabares, 1) (Entered: 06/26/2015)
278 AO 435 TRANSCRIPT ORDER FORM by State of Texas / Angela Colmenero. This is to order a transcript of Hearing held on 6/23/15 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Barbara Barnard, filed. (bcampos, 1) (Entered: 06/26/2015)
279 AO 435 TRANSCRIPT ORDER FORM by Karen C Tumlin. This is to order a transcript of Hearing held on 6/23/15 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Barbara Barnard, filed. (bcampos, 1) (Entered: 06/26/2015)
280 Transmittal Letter on Appeal re: 190 Notice of Appeal. The supplemental record is being sent to Kyle Renee Freeny, John Campbell Barker, Jeffrey A. Clair, Gabriel Markoff and Nina Perales via regular mail. (USCA No. 15−40333), filed. (jtabares, 1) (Entered: 06/29/2015)
281 ORDER entered. Miscellaneous Hearing set for 8/19/2015 at 10:00 AM at Courtroom 6 before Judge Andrew S. Hanen. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 07/07/2015)
282 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Schwei, Daniel) (Entered: 07/09/2015)
283 SUPPLEMENT to 282 Advisory by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Exhibit DHS July 10 Directive, # 2 Exhibit DHS July 14 Directive)(Cohen, Bradley) (Entered: 07/15/2015)
284 Letter from Harold William Van Allen re: documents filed in the USCA for the District of Columbia Circuit, filed. (bcampos, 1) (Entered: 07/29/2015)
285 STATUS REPORT by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Exhibit 1 − June 3 E−mails, # 2 Exhibit 2 − Schwei Letter (June 19), # 3 Exhibit 3 − Colmenero Letter (July 6), # 4 Exhibit 4 − Schwei Letter (July 17), # 5 Exhibit 5 − Colmenero Letter (July 22))(Schwei, Daniel) (Entered: 07/31/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 56 of 69

07/31/2015 07/31/2015
08/06/2015
08/11/2015 08/13/2015 08/13/2015 08/17/2015 08/18/2015 08/18/2015 08/18/2015 08/18/2015 08/19/2015

286 Unopposed MOTION for Leave to File Excess Pages by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 8/21/2015. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 07/31/2015)
287 Unopposed MOTION to Cancel August 19 Hearing by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 8/21/2015. (Attachments: # 1 Exhibit 1 − Rodriguez Decl, # 2 Exhibit 1 − Attachments A−D, # 3 Exhibit 1 − Attachments E−L, # 4 Exhibit 2 − Neufeld Declaration, # 5 Exhibit 3 − Kerlikowske Declaration, # 6 Exhibit 4 − Saldana Declaration, # 7 Exhibit 5 − Vitiello Declaration, # 8 Proposed Order, # 9 Appendix Table of Contents)(Schwei, Daniel) (Entered: 08/01/2015)
288 RESPONSE to 287 Unopposed MOTION to Cancel August 19 Hearing filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Colmenero, Angela) (Entered: 08/06/2015)
289 ORDER entered. The Court will hold the hearing in this matter on August 19, 2015 as scheduled. (Signed by Judge Andrew S. Hanen) Parties notified.(avleal, 1) (Entered: 08/11/2015)
290 Unopposed MOTION for Protective Order by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 9/3/2015. (Attachments: # 1 Proposed Order Stipulated Protective Order)(Ricketts, Jennifer) (Entered: 08/13/2015)
291 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Exhibit 1)(Ricketts, Jennifer) (Entered: 08/13/2015)
292 MOTION for James J. Gilligan to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 9/8/2015. (Cohen, Bradley) (Additional attachment(s) added on 8/18/2015: # 1 attachment) (rnieto, 1). (Entered: 08/17/2015)
293 Unopposed MOTION for Protective Order by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 9/8/2015. (Attachments: # 1 Proposed Order Stipulated Protective Order)(Ricketts, Jennifer) (Entered: 08/18/2015)
294 ORDER granting 292 Motion to Appear Pro Hac Vice, James J. Gilligan for all Defendants. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 08/18/2015)
295 MOTION to Intervene by Harold William Van Allen, Natural Born Citizen Party National Committee, filed. Motion Docket Date 9/8/2015. (bcampos, 1) (Entered: 08/18/2015)
296 SUPPLEMENT by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Exhibit Supplemental Declaration of Leon Rodriguez)(Cohen, Bradley) (Entered: 08/18/2015)
Minute Entry for proceedings held before Judge Andrew S. Hanen. MISCELLANEOUS HEARING held on 8/19/2015. Appearances: Attys for Plaintiffs: A. Colmenero, A. Bitter; Attorneys for Defendants: J.Ricketts, J.Gillegan, D.Hu, J.Schau−Nelson, E.Frankie, J.Meyer,(Court Reporter: Laura Wells)(10:12−11:19) 293 Unopposed MOTION for Protective Order by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello − Discussed. Oral argument−post injunction issues. Status report(are we in compliance with the injunction) due on 09/25/15 and 05/25/2016. Oral argument−pre injunction issues. Parties may file(optional) by 09/04/15 a brief. Court will sign order as to 293 . Court adjourned., filed.(csustaeta, 1) (Entered: 08/19/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 57 of 69

08/19/2015 08/20/2015
08/21/2015 08/21/2015 08/24/2015 08/24/2015
08/24/2015 09/04/2015
09/04/2015 09/04/2015 09/09/2015 09/16/2015 09/16/2015 09/21/2015

298 Stipulated PROTECTIVE ORDER (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 08/20/2015)
297 AO 435 TRANSCRIPT ORDER FORM by Plaintiffs. This is to order a transcript of Miscellaneous Hearing held on 8/19/15 before Judge Andrew S. Hanen (original). Court Reporter/Transcriber: Laura Wells; filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed.(Colmenero, Angela) Modified on 8/21/2015 (bcampos, 1). (Entered: 08/20/2015)
299 TRANSCRIPT re: Hearing held on 8−19−15 before Judge Andrew S. Hanen. Court Reporter/Transcriber Laura Wells. Ordering Party Angela V. Colmenero Release of Transcript Restriction set for 11/19/2015., filed. (lwells, ) (Entered: 08/21/2015)
300 AO 435 TRANSCRIPT ORDER FORM by Plaintiffs. This is to order a transcript of Miscellaneous Hearing held on 8/19/15 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Laura Wells; filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Cohen, Bradley) Modified on 8/21/2015 (bcampos, 1). (Entered: 08/21/2015)
301 Notice of Filing of Official Transcript as to 299 Transcript. Party notified, filed. (dahumada, 1) (Entered: 08/24/2015)
302 ORDER denying 295 Motion to Intervene.Finally, pursuant to Rule 24(b)(3), the Court finds this matter to be time sensitive and that the addition of new parties will cause undue delay and prejudice. Nevertheless, the pleadings filed by putative intervenor Harold William Van Allen will be reviewed as if they were filed by an amicus curae.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 08/24/2015)
303 AO 435 TRANSCRIPT ORDER FORM by Kendra Morries. This is to order a transcript of Hearing held on 8/19/15 before Judge Andrew S. Hanen (original). Court Reporter: Laura Wells, filed. (rnieto, 1) (Entered: 08/25/2015)
304 ADVISORY by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed.(Colmenero, Angela) (Entered: 09/04/2015)
305 MEMORANDUM Following the Hearing of August 19, 2015 by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Schwei, Daniel) (Entered: 09/04/2015)
306 Unopposed MOTION for Leave to File Amicus Brief by Jane Doe #1, Jane Doe #2, and Jane Doe #3 by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 9/25/2015. (Attachments: # 1 [Proposed] Amicus Brief, # 2 Proposed Order)(Perales, Nina) (Entered: 09/04/2015)
307 AO 435 TRANSCRIPT ORDER FORM by Karen C. Tumlin. This is to order a transcript of Hearing held on 08/19/2015 before Judge Andrew S. Hanen (copy). Court Reporter/Transcriber: Laura Wells , filed. (dahumada, 1) Modified on 9/10/2015 (dahumada, 1). (Entered: 09/09/2015)
308 ORDER granting 306 Motion for Leave to File Amicus Brief.(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 09/17/2015)
309 AMICUS BRIEF of Jane Doe #1, Jane Doe #2, Jane Doe #3 Opposing Certain Sanctions Requested by Plaintiffs, filed.(jtabares, 1) (Entered: 09/17/2015)
310 STATUS REPORT by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Schwei, Daniel)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 58 of 69

11/23/2015 11/23/2015 12/01/2015 12/11/2015 12/11/2015 12/11/2015 12/14/2015 12/15/2015
12/15/2015 12/15/2015 12/15/2015
12/17/2015

(Entered: 09/21/2015)
311 Joint MOTION to Stay Merits Proceedings Pending Resolution of Supreme Court Review by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 12/14/2015. (Attachments: # 1 Proposed Order)(Freeny, Kyle) (Entered: 11/23/2015)
312 NOTICE of Withdrawal by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Freeny, Kyle) (Entered: 11/23/2015)
313 ORDER Setting Hearing on Motion 311 Joint MOTION to Stay Merits Proceedings Pending Resolution of Supreme Court Review : Motion Hearing set for 12/15/2015 at 01:30 PM in Courtroom 6 before Judge Andrew S. Hanen. (Signed by Judge Andrew S. Hanen) Parties notified.(bcampos, 1) (Entered: 12/01/2015)
314 MOTION for Adam Kirschner to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 1/1/2016. (Kirschner, Adam) (Additional attachment(s) added on 12/15/2015: # 1 Verification of Bar Membership for Motion Pro Hac Vice) (avleal, 1). (Entered: 12/11/2015)
315 MOTION for John Tyler to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 1/1/2016. (Kirschner, Adam) (Additional attachment(s) added on 12/15/2015: # 1 Verification of Bar Membership for Motion Pro Hac Vice) (avleal, 1). (Entered: 12/11/2015)
316 NOTICE of Withdrawal by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Cohen, Bradley) (Entered: 12/11/2015)
317 RESPONSE to 311 Joint MOTION to Stay Merits Proceedings Pending Resolution of Supreme Court Review filed by Mitchell Williams. (scastillo, 1) (Additional attachment(s) added on 12/14/2015: # 1 Unredacted attachment) (scastillo, 1). (Entered: 12/14/2015)
Minute Entry for proceedings held before Judge Andrew S. Hanen. MOTION HEARING held on 12/15/2015. Appearances: Attorneys for Plaintiffs: Angela V. Colmenero; Adam Nicholas Bitter; Attorneys for Defendants: John R. Tyler; Jennifer D. Ricketts; Daniel Hu; Adam D. Kirschner; Attorney Nina Perales for Jane Doe #1, Jane Doe #2, Jane Doe #3; Attorney Orly Taitz for Orly Taitz; (Court Reporter: Sheila Heinz)(01:34−02:26) Discussion held as to 311 . 311 Joint MOTION to Stay Merits Proceedings Pending Resolution of Supreme Court Review −GRANTED as outlined in todays hearing. Discussion held as to 91 MOTION to Intervene by Jane Doe #1, Jane Doe #2, Jane Doe #3. Discussion held as to 137 MOTION to Intervene as an Additional Plaintiff by Orly Taitz and Court will take under advisement. Parties may file any pleadings by 01/08/16., filed.(csustaeta, 1) (Entered: 12/15/2015)
318 ORDER granting 315 Motion to Appear Pro Hac Vice.(Signed by Judge Andrew S. Hanen) Parties notified.(scastillo, 1) (Entered: 12/15/2015)
319 ORDER granting 314 Motion to Appear Pro Hac Vice as to Adam D. Kirschner. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 12/15/2015)
320 ORDER 311 Joint MOTION to Stay Merits Proceedings Pending Resolution of Supreme Court Review. FURTHER ORDERED that the parties shall meet and confer and formulate and file with the Court an agreed upon (to the extent possible) schedule for the resolution of the merits of this case, within 21 days after the Supreme Court's denial of certiorari of the pending appeal or its ultimate disposition of the pending appeal(Signed by Judge Andrew S. Hanen) Parties notified.(jtabares, 1) (Entered: 12/16/2015)
321 AO 435 TRANSCRIPT REQUEST by Adam Kirschner for Transcript of Hearing held on 12/15/15 before Judge Hanen. 14−Day turnaround requested. Court Reporter/Transcriber: Sheila E. Heinz, filed. (jtabares, 1) (Entered: 12/17/2015)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 59 of 69

12/21/2015
12/21/2015 12/21/2015
12/22/2015 01/04/2016
01/04/2016 01/04/2016
01/04/2016 01/05/2016 01/08/2016 01/08/2016 01/20/2016 01/20/2016 01/28/2016 01/28/2016 02/12/2016 02/12/2016

322 AO 435 TRANSCRIPT REQUEST by Angela V. Colmenero for Transcript of Motion Hearing held on 12/15/15 before Judge Hanen. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Sheila Heinz , filed. (Colmenero, Angela) Modified on 12/22/2015 (jtabares, 1). (Entered: 12/21/2015)
323 AO 435 TRANSCRIPT REQUEST by Kendra Morries for Transcript of Hearing held 12/15/2015 before Judge Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Not Listed, filed. (avleal, 1) (Entered: 12/21/2015)
324 TRANSCRIPT re: Joint Motion to Stay Hearing held on 12/15/15 before Judge Andrew S. Hanen. Court Reporter/Transcriber Sheila E. Heinz. Ordering Party Adam Kirschner Release of Transcript Restriction set for 3/20/2016, filed. (jtabares, 1) (Entered: 12/21/2015)
325 Notice of Filing of Official Transcript as to 324 Transcript. Party notified, filed. (rnieto, 1) (Entered: 12/22/2015)
326 Order of USCA; Judgment issued as mandate 1/04/2016 re: 190 Notice of Appeal ; USCA No. 15−40333. It is ordered and adjudged that the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court, filed.(mperez, 1) (Entered: 01/04/2016)
327 Order of USCA − Per Curiam re: 190 Notice of Appeal ; USCA No. 15−40333. For the foregoing reasons, the Jane Does are entitled to intervene by right. REVERSED and REMANDED, filed.(mperez, 1) (Entered: 01/04/2016)
328 Order of USCA; Judgment issued as mandate 15−40238 re: 257 Notice of Appeal ; USCA No. 15−40238. This cause was considered on the record on appeal and was argued by counsel. It is ordered and adjudged that the judgment of the District Court is affirmed, filed.(dahumada, 1) (Entered: 01/05/2016)
329 Order of USCA re: 257 Notice of Appeal ; USCA No. 15−40238, filed.(dahumada, 1) (Entered: 01/05/2016)
330 ADVISORY by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 01/05/2016)
331 SUPPLEMENT to Motion Hearing,,, by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Attachment A)(Kirschner, Adam) (Entered: 01/08/2016)
332 Summary of the Supplemental Brief, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(dahumada, 1) (Entered: 01/08/2016)
333 NOTICE of Withdrawal by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Freeny, Kyle) (Entered: 01/20/2016)
334 The petition for a writ of certiorari filed with the Supreme Court has been granted (USCA No. 15−40238) (USSC No. 15−674), filed.(scastillo, 1) (Entered: 01/20/2016)
335 Motion for Leave to Proceed In Forma Pauperis by William F. Reade, Jr., filed. Motion Docket Date 2/18/2016. (dbenavides, 1) (Entered: 01/28/2016)
336 Motion for Leave to File Amicus Relief In Opposition to Defendant's Emergency Expedited Motion by William F. Reade, Jr., filed. Motion Docket Date 2/18/2016. (dbenavides, 1) (Entered: 01/28/2016)
337 Order of USCA − Judgment; Judgment issued as mandate 15−40326 re: 257 Notice of Appeal ; USCA No. 15−40326. The appeal is dismissed as frivolous., filed.(bcampos, 1) (Entered: 02/12/2016)
338 Order of USCA − Per Curiam re: 257 Notice of Appeal ; USCA No. 15−40326. The appeal is dismissed as frivolous. Mitchell Williams' Motion to Proceed IFP on appeal is DENIED and the appeal is DISMISSED as frivolous., filed.(bcampos, 1) (Entered: 02/12/2016)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 60 of 69

02/18/2016
03/01/2016 03/03/2016 04/08/2016
04/08/2016 04/15/2016 04/19/2016 05/19/2016 05/19/2016 05/20/2016 05/25/2016 05/27/2016 05/27/2016

339 ORDER denying as moot 335 Motion for Leave to Proceed in forma pauperis; granting 336 Motion for Leave to File. The Court observes that the Southern District of Texas does not charge a fee for filing an amicus curiae brief. For this reason, the Court denies Reade's Motion for Leave to Proceed In Forma Pauperis as moot. The Court grants Reade's Motion for Leave to File Amicus Curiae Brief, with the requirement that it not exceed 30 pages. (Signed by Judge Andrew S. Hanen) Parties notified.(mperez, 1) (Entered: 02/18/2016)
340 AMICI CURIAE BRIEF by William F. Reade, Jr., filed. (Attachments: # 1 Exhibit, # 2 cover letter)(bcampos, 1) (Entered: 03/01/2016)
341 Order entered by the Court Denying as moot 263 Motion for Extension of Time; denying as moot 286 Motion for Leave to File Excess Pages; denying as moot 287 Motion; denying as moot 220 Motion to Intervene.(Signed by Judge Andrew S. Hanen) Parties notified.(dbenavides, 1) (Entered: 03/03/2016)
342 ORDER − This Court intends to issue an order soon, it needs the Government to take a definitive position on whether or not it wants the Court to review the subset of documents contained in envelopes Two and Three before it rules. The Court can not and will not base a ruling on evidence it has not seen. Therefore, the Court is returning Envelopes Two and Three to counsel for the Government unopened. It has not and will not consider them. They have not been officially filed nor have they been reviewed in camera so they are not in any sense a part of the Court's record. If the Government wants the Court to consider the contents of these envelopes, it should have them delivered to the Court by close of business on April 15, 2016. If it chooses to do that, the Court will review the contents before it rules. If the documents are not delivered by 5:00 p.m. (Central Time) on April 15, 2016, the Court will assume the Government did not want them considered. The Court hereby orders the District Clerk's Office to photograph the unopened envelopes and attach those photos as sealed exhibits to this order. It is also orders the District Clerk's Office to ship the unopened envelopes back to the attorney who sent them to the Court. (Signed by Judge Andrew S. Hanen) Parties notified.(rdv, 1) (Additional attachment(s) added on 4/8/2016: # 1 Sealed Exhibits) (rdv, 1). (Entered: 04/08/2016)
344 NOTICE of Delivery re: 342 Order,,,,, by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Ricketts, Jennifer) (Entered: 04/08/2016)
345 NOTICE of Submission of Documents re: 342 Order,,,,, by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Schwei, Daniel) (Entered: 04/15/2016)
346 Order of USCA − PER CURIAM; Judgment issued as mandate 4/19/2016 re: 257 Notice of Appeal ; USCA No. 15−41276. The petition for writ of mandamus is dismissed as frivolous. A sanction warning is issued., filed.(dnoriega, 1) (Entered: 04/19/2016)
347 MEMORANDUM OPINION AND ORDER.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 05/19/2016)
348 Sealed Order, filed. (Entered: 05/19/2016)
349 Second Advisory Regarding the Pending Fifth Circuit Mandate by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. (Attachments: # 1 Exhibit A−Dockets Excerpts, # 2 Exhibit B−Proposed Order)(Perales, Nina) (Entered: 05/20/2016)
350 STATUS REPORT by United States of America, filed. (Attachments: # 1 Exhibit)(Hu, Daniel) (Entered: 05/25/2016)
351 Unopposed MOTION Electronic Service of dkt 348 by United States of America, filed. Motion Docket Date 6/17/2016. (Attachments: # 1 Proposed Order)(Hu, Daniel) (Entered: 05/27/2016)
352 ORDER granting 351 Motion for Electronic Service of Order 348 to be provided to Jennifer Ricketts, attorney in charge for Defendants. (Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 05/27/2016)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 61 of 69

05/27/2016 05/27/2016
05/31/2016
05/31/2016 06/05/2016 06/05/2016 06/05/2016 06/06/2016 06/06/2016 06/06/2016
06/06/2016 06/06/2016 06/06/2016

*** Emailed Jennifer Ricketts, Attorney in Charge for Defendants ECF No. 348., filed. (csustaeta, 1) (Entered: 05/27/2016)
353 ORDER, entered. If a proper motion is filed and the order is unopposed (and the movants further indicate that the other parties have no objection to the lifting of the stay on the merits proceedings), this Court will immediately review it and rule. If a proper motion is filed and the order is opposed, or the lifting of the stay is opposed, the Court will set the motion for a hearing as one of its first orders of business once the stay is lifted. Regardless of what course of action counsel for the Jane Does choose with respect to their proposed order, the intervention of the Jane Does was granted in December of 2015 and they will remain parties until a further order of this Court or an appropriate appellate court. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 05/27/2016)
354 MOTION to Stay May 19, 2016, Order Pending Further Review by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 6/21/2016. (Attachments: # 1 Memorandum in Support of Defendants' Motion to Stay May 19, 2016 Order Pending Further Review, # 2 Affidavit (Declaration of Len Rodrguez), # 3 Affidavit (Declaration of Lee J. Lofthus), # 4 Proposed Order)(Ricketts, Jennifer) (Entered: 05/31/2016)
355 ORDER entered; Motion−related deadline set re: 354 MOTION to Stay May 19, 2016, Order Pending Further Review Motion Hearing set for 6/7/2016 at 10:00 AM in Courtroom 6 before Judge Andrew S Hanen.(Signed by Judge Andrew S Hanen) Parties notified.(melopez, 1) (Entered: 05/31/2016)
356 RESPONSE to 354 MOTION to Stay May 19, 2016, Order Pending Further Review filed by Jane Doe #1, Jane Doe #2, Jane Doe #3. (Attachments: # 1 Declaration of Javier H. G.)(Perales, Nina) (Entered: 06/05/2016)
357 MOTION To Use Pseudonymous Declaration In Support of Response Supporting Defendants' Motion to Stay by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 6/27/2016. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 06/05/2016)
358 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 347 Memorandum and Order by Jane Doe #1, Jane Doe #2, Jane Doe #3 (Filing fee $ 505, receipt number 0541−16750196), filed. (Perales, Nina) (Entered: 06/05/2016)
359 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 358 Notice of Appeal. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Order, # 3 Public Docket Sheet) (rnieto, 1) (Entered: 06/06/2016)
Appeal Review Notes re: 358 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid, and the appellant is represented by counsel.Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 1, filed. (rnieto, 1) Modified on 6/6/2016 (rnieto, 1). (Entered: 06/06/2016)
360 Order entered by the Court. The Court has received information sent by Counsel Angelica Villabos, Juan Escalante, Jane Doe #4 and Jane Doe #5 suggesting they wish to address the issues discussed in the Defendants' pending Motion to stay 354 . By copy of this Order, the Court hereby Notifies counsel for these individuals that the Court is holding a hearing on that motion. Hearing set for 6/7/2016 at 10:00 AM before Judge Andrew S Hanen(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 06/06/2016)
Notice of Assignment of USCA No. 16−40796 re: 358 Notice of Appeal, filed. (rnieto, 1) (Entered: 06/06/2016)
361 SUPPLEMENT to 354 MOTION to Stay May 19, 2016, Order Pending Further Review by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Schwei, Daniel) (Entered: 06/06/2016)
362 SUPPLEMENT to 356 Response to Motion by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. (Attachments: # 1 Declaration of Cristina R)(Perales, Nina) (Entered: 06/06/2016)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 62 of 69

06/06/2016 06/07/2016
06/07/2016 06/07/2016
06/07/2016 06/07/2016 06/08/2016 06/08/2016 06/08/2016 06/08/2016 06/16/2016
06/16/2016

363 Order of USCA − Per Curiam re: 358 Notice of Appeal ; USCA No. 16−40795. This court ORDERS, lest there be any confusion, that the filing of these motions before us should not be construed to interfere with the district court's conduct of a hearing tomorrow or its issuance of a ruling on a motion to stay, filed.(mperez, 1) (Entered: 06/07/2016)
364 ORDER entered. The Court orders the parties to appear for a status conference on August 22, 2016 at 11:00 a.m. The Court hereby stays its order of May 19, 2016 [Doc. No. 347] pending the outcome of that hearing and furthermore stays all proceedings on the merits per the outcome of that hearing. Defendants have until July 31, 2016 to file any submission they wish as to an appropriate sanction for the misrepresentations which were the subject of this Court's May 19, 2016 order and/or any evidence they may have concerning the misrepresentations discussed in that order. (Signed by Judge Andrew S Hanen) Parties notified.(jtabares, 1) (Entered: 06/07/2016)
365 AO 435 TRANSCRIPT REQUEST by United States / Daniel Schwei for Transcript of Hearing on Stay Motion on 6/7/16 before Judge Hanen. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Schwei, Daniel) (Entered: 06/07/2016)
Minute Entry for proceedings held before Judge Andrew S Hanen. MOTION HEARING held on 6/7/2016. Appearances: Attorney for Plaintiff: Angela V. Colmenero; Attorneys for Defendants: Jennifer D. Ricketts; James Gilligan; DHS−General Counsel: Ur Jaddou; Caitlyn Miller; Attorney for Intevenors Jane Doe 1, 2, and 3: Nina Perales;(Court Reporter: Shelia Perales)(10:00−11:07) Oral argument held as to 354 . N. Perales addressed the Court as to 356 . A. Colmernero addressed 354 Court addressed parties. Court is Staying its ruling until 08/22/16. Status Conference set for 08/22/16 at 11:00 am. Defendants have until 07/31/16 to provide to the Court evidence/suggestions to the Court as to the misrepresentations made to this Court. Court will take up pending motions as to Jane Doe #1, #2, #3 at the hearing on 08/22/16. Court adjourned., filed.(csustaeta, 1) (Entered: 06/07/2016)
366 TRANSCRIPT re: Motion Hearing held on June 7, 2016 before Judge Andrew S Hanen. Court Reporter/Transcriber sperales. Ordering Party Daniel Schwei Release of Transcript Restriction set for 9/6/2016., filed. (sperales, ) (Entered: 06/07/2016)
367 AO 435 TRANSCRIPT REQUEST by Miriam Rozen for Transcript of Pre−Trial Proceedings. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (dbenavides, 1) (Entered: 06/08/2016)
368 Notice of Filing of Official Transcript as to 366 Transcript. Party notified, filed. (jtabares, 1) (Entered: 06/08/2016)
369 AO 435 TRANSCRIPT REQUEST by Plaintiffs/ Angela Colmenero for Transcript of Motion hearing on 6/7/16 before Judge Andrew S. Hanen. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Colmenero, Angela) (Entered: 06/08/2016)
370 Order of USCA, Notice of Appeal ; USCA No. 16−40797. It is so Ordered that Petitioner's motion to withdraw the previously filed motion for stay pending appeal is Granted, filed.(dbenavides, 1) (Entered: 06/08/2016)
371 AO 435 TRANSCRIPT REQUEST by Karen C. Tumlin for Transcript of Motion Hearing held on 6/7/16 before Judge Andrew S. Hanen. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (mperez, 1) (Entered: 06/08/2016)
372 DKT13 TRANSCRIPT ORDER REQUEST by Gabriel Markoff. Transcript is already on file in Clerks office regarding Hearings on 1/15/15; 3/19/15; 6/23/15; 8/19/15; 12/15/15; 6/7/16 before Judge Hanen. (No transcript is needed). Court Reporter/Transcriber: Barbara Barnard; Laura Wells; Sheila Heinz; Sheila Perales; ERO. This order form relates to the following: 358 Notice of Appeal, filed.(jtabares, 1) (Entered: 06/16/2016)
373 MOTION to Vacate 347 Memorandum and Order, 348 Sealed Order by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 7/7/2016. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 06/16/2016)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 63 of 69

06/17/2016
06/24/2016 06/28/2016
07/06/2016 07/06/2016
07/18/2016
07/31/2016 07/31/2016
07/31/2016 07/31/2016 07/31/2016 08/01/2016 08/01/2016
08/03/2016 08/03/2016 08/03/2016 08/04/2016

374 DKT13 TRANSCRIPT ORDER REQUEST by Gabriel Markoff. Transcript is already on file in Clerks office regarding Hearings 1/15/15; 3/19/15; 6/23/15; 8/19/15; 12/15/15 and 6/7/16 held before Judge Hanen. (No transcript is needed). Court Reporter/Transcriber: Barbara Barnard, Laura Wells, Sheila Heinz, Sheila Perales and ERO. This order form relates to the following: 358 Notice of Appeal, filed.(jtabares, 1) (Entered: 06/17/2016)
375 Order of USCA, USCA No. 16−40795. It is Ordered that the petitions for mandamus are dismissed without prejudice. The motion to proceed anonymously is Dismissed as moot, filed.(dbenavides, 1) (Entered: 06/24/2016)
Electronic Access to Record on Appeal Provided re: Notice of Appeal to J. Campbell Barker, Adam KohSweeney, Gabriel Markoff, Nina Perales, Linda Smith. Attorneys of record at the Circuit may download the record from the Court of Appeals, filed.(dbenavides, 1) (Entered: 06/28/2016)
376 Order of USCA re: 358 Notice of Appeal; USCA No. 16−40796. IT IS ORDERED that appellants' unopposed motion to stay further proceedings in this court and suspend the briefing scheduled is GRANTED, filed.(avleal, 1) (Entered: 07/06/2016)
377 RESPONSE to 373 MOTION to Vacate 347 Memorandum and Order, 348 Sealed Order filed by Paul R. LePage, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Proposed Order)(Colmenero, Angela) (Entered: 07/06/2016)
378 REPLY to Response to 373 MOTION to Vacate 347 Memorandum and Order, 348 Sealed Order, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Schwei, Daniel) (Entered: 07/18/2016)
379 Sealed Event, filed. (Entered: 07/31/2016)
380 Unopposed MOTION for Leave to File Under Seal and In Camera Defendants' Response to the Court's Order of June 7, 2016 by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 8/22/2016. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 07/31/2016)
381 Sealed Event, filed. (With attachments) (Entered: 07/31/2016)
382 Sealed Event, filed. (With attachments) (Entered: 07/31/2016)
383 Sealed Event, filed. (With attachments) (Entered: 08/01/2016)
384 Sealed Event, filed. (With attachments) (Entered: 08/01/2016)
385 Unopposed MOTION for Leave to File Excess Pages by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 8/22/2016. (Attachments: # 1 Proposed Order)(Schwei, Daniel) (Entered: 08/01/2016)
386 ORDER granting 384 Sealed Motion. It is further Ordered that Defendant's Response shall be deemed filed, nunc pro tunc on July 31,2016.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 08/03/2016)
387 Order Granting Motion to file In Camera and to the Extent Necessary for leave to file.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 08/03/2016)
388 ORDER granting 385 Motion for Leave to File Excess Pages.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 08/03/2016)
389 ORDER granting 380 Motion for Leave to File Under Seal and In Camera Their Response to the Court's Order as of June 7, 2016.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 08/04/2016)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 64 of 69

08/05/2016 08/08/2016
08/10/2016 08/10/2016 08/11/2016 08/12/2016 08/12/2016 08/12/2016 08/12/2016 08/12/2016 08/12/2016 08/12/2016 08/12/2016 08/22/2016 08/22/2016

390 ORDER entered. The Court hereby resets the status Conference scheduled for August 22, 2016 at 11:00 AM to 8/31/2016 at 01:30 PM in Courtroom 6 before Judge Andrew S Hanen. Status Conference set for 8/31/2016(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 08/05/2016)
391 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. (Attachments: # 1 Defendants' Response to the Court's Order of June 7, 2016 REDACTED, # 2 Exhibit A − Declaration of Benjamin C. Mizer REDACTED, # 3 Exhibit B − Declaration of Joyce R. Branda REDACTED, # 4 Exhibit D − Declaration of Joseph H. Hunt REDACTED)(Schwei, Daniel) (Entered: 08/08/2016)
392 MOTION to Intervene by Robin Clarice Parezanin, Raheleh Ziaei, Tammy Willis, Rhonda Ann Fleming, filed. Motion Docket Date 8/31/2016. (bcampos, 1) (Entered: 08/10/2016)
393 MOTION for Temporary Restraining Order and Motion for Preliminary Injunction by Rhonda Ann Fleming, Robin Clarice Parezanin, Tammy Willis, Raheleh Ziaei, filed. Motion Docket Date 8/31/2016. (bcampos, 1) (Entered: 08/10/2016)
394 MOTION for Expedited Evidentiary Hearing due to the Imminent Harm or Danger to the Plaintiff−Intervenors by Rhonda Ann Fleming, Tammy Willis, Raheleh Ziaei, filed. Motion Docket Date 9/1/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (rnieto, 1) (Entered: 08/11/2016)
395 Unopposed MOTION for Leave to File Amicus Brief by Angelica Villalobos, filed. Motion Docket Date 9/2/2016. (Attachments: # 1 Proposed Amicus Brief, # 2 Exhibit to Amicus Brief, # 3 Proposed Order)(Saldivar, Edgar) (Entered: 08/12/2016)
396 Unopposed MOTION Motion For Leave To Proceed Under Pseudonyms by jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Saldivar, Edgar) (Entered: 08/12/2016)
397 MOTION for Karen Tumlin to Appear Pro Hac Vice by Angelica Villalobos, jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Saldivar, Edgar) (Additional attachment(s) added on 8/15/2016: # 1 Verified bar membership) (bcampos, 1). (Entered: 08/12/2016)
398 MOTION for Nora Preciado to Appear Pro Hac Vice by Angelica Villalobos, jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Saldivar, Edgar) (Additional attachment(s) added on 8/15/2016: # 1 Verified bar membership) (bcampos, 1). (Entered: 08/12/2016)
399 MOTION for Justin Cox to Appear Pro Hac Vice by Angelica Villalobos, jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Saldivar, Edgar) (Additional attachment(s) added on 8/15/2016: # 1 Verified bar membership) (bcampos, 1). (Entered: 08/12/2016)
400 MOTION for Omar Jadwat to Appear Pro Hac Vice by Angelica Villalobos, jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Saldivar, Edgar) (Additional attachment(s) added on 8/15/2016: # 1 Verified membership status) (bcampos, 1). (Entered: 08/12/2016)
401 MOTION for Cecillia Wang to Appear Pro Hac Vice by Angelica Villalobos, jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Saldivar, Edgar) (Additional attachment(s) added on 8/15/2016: # 1 Verified bar membership) (bcampos, 1). (Entered: 08/12/2016)
402 MOTION for Cody Wofsy to Appear Pro Hac Vice by Angelica Villalobos, jane doe #4, jane doe #5, filed. Motion Docket Date 9/2/2016. (Saldivar, Edgar) (Additional attachment(s) added on 8/15/2016: # 1 Verified bar membership) (bcampos, 1). (Entered: 08/12/2016)
403 ORDER granting 395 Motion for Leave to File Brief as Amici Curiae.(Signed by Judge Andrew S Hanen) Parties notified.(dnoriega, 1) (Entered: 08/22/2016)
404 BRIEF of Angelica Villalobos, Juan Escalante, Jane Doe #4 & jane Doe #5 as Amici Curae Opposing Certain Sanctions Contemplated by the Court's May 19 Order re: 347 Memorandum and Order by Angelica Villalobos, Jane Doe #4, Jane Doe #5, filed.

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 65 of 69

08/22/2016 08/29/2016
08/30/2016 08/30/2016 08/30/2016 08/30/2016 08/30/2016 08/30/2016 08/30/2016 08/30/2016 08/30/2016 08/31/2016
09/01/2016 09/02/2016 09/06/2016 09/08/2016 09/12/2016

(Attachments: # 1 Exhibit)(dnoriega, 1) (Entered: 08/22/2016)
405 Addendum to the Motion for Expedited Evidentiary Hearing by Tammy Willis, filed. (avleal, 1) (Entered: 08/22/2016)
406 RESPONSE in Opposition to 392 MOTION to Intervene, 393 MOTION for Temporary Restraining Order, filed by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello. (Kirschner, Adam) (Entered: 08/29/2016)
407 SUPPLEMENT to 406 Response in Opposition to Motion by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Kirschner, Adam) (Entered: 08/30/2016)
408 NOTICE of Appearance by Carlos M. Garcia on behalf of Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. (Perales, Nina) (Entered: 08/30/2016)
409 RESPONSE to 392 MOTION to Intervene, 394 MOTION for Evidentiary Hearing, 393 MOTION for Temporary Restraining Order filed by Jane Doe #1, Jane Doe #2, Jane Doe #3. (Perales, Nina) (Entered: 08/30/2016)
410 ORDER regarding 401 Motion for Cecilia Wang to Appear Pro Hac Vice. (Signed by Judge Andrew S Hanen) Parties notified. (avleal, 1) (Entered: 08/30/2016)
411 ORDER regarding 402 Motion for Cody Wofsy to Appear Pro Hac Vice.(Signed by Judge Andrew S Hanen) Parties notified. (avleal, 1) (Entered: 08/30/2016)
412 ORDER granting 399 Motion to Appear Pro Hac Vice as to Justin B. Cox.(Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 08/30/2016)
413 ORDER granting 400 Motion to Appear Pro Hac Vice as to Omar Jadwat.(Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 08/30/2016)
414 ORDER granting 397 Motion for Karen C. Tumlin to Appear Pro Hac Vice. (Signed by Judge Andrew S Hanen) Parties notified. (rnieto, 1) (Entered: 08/30/2016)
415 ORDER granting 398 Motion for Nora A. Preciado to Appear Pro Hac Vice. (Signed by Judge Andrew S Hanen) Parties notified. (rnieto, 1) (Entered: 08/30/2016)
Minute Entry for proceedings held before Judge Andrew S Hanen. STATUS CONFERENCE held on 8/31/2016. Appearances: Attorneys for Plaintiffs: Aadam Nicholas Bitter; Attorneys for Defendants: Jennifer D. Ricketts, Daniel Hu, Daniel Schwei, James J. Gilligan, John R Tyler, ; Attorneys for Intervenors: Jane Does 1, 2,3 − Nina Perales; Carlos Garcia; Attorney for Sealed Filer: Murray J. Fogler;(Court Reporter: Sheila Perales)(01:34−02:25). Discussion held as to 354 Motion to Stay. Agreement between parties that it would be appropriate for the Court to continue the stay until the Supreme Court rules on the United States petition for re−hearing and then allow the parties 30 days to discuss before coming back to the Court on the scheduling matters. Discussion held as to 392 . 392 Motion to Intervene −DENIED along with others from same party. Discussion held as to affidavits. Court adjourned., filed.(csustaeta, 1) (Entered: 08/31/2016)
416 AO 435 TRANSCRIPT REQUEST by Defendants for Transcript of 8/31/16. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Sheila Perales, filed. (Kirschner, Adam) (Entered: 09/01/2016)
417 TRANSCRIPT re: Hearing held on August 31, 2016 before Judge Andrew S Hanen. Court Reporter/Transcriber sperales. Ordering Party Adam Kirschner Release of Transcript Restriction set for 12/1/2016., filed. (sperales, ) (Entered: 09/02/2016)
418 Notice of Filing of Official Transcript as to 417 Transcript. Party notified, filed. (mperez, 1) (Entered: 09/06/2016)
419 MOTION for Court Order Granting Injuctive Relief on Unopposed Motion for Preliminary Injuction Pursuant to 28 USC 1651(a) by Rhonda Ann Fleming, filed. Motion Docket Date 9/29/2016. (scastillo, 1) (Entered: 09/08/2016)
420 SURREPLY to 392 MOTION to Intervene, filed by Rhonda Ann Fleming. (dnoriega, 1) (Entered: 09/12/2016)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 66 of 69

09/15/2016 10/06/2016
10/11/2016 10/11/2016
10/11/2016
10/17/2016 10/17/2016
10/17/2016
10/20/2016 10/26/2016 11/07/2016 11/07/2016 11/10/2016 11/18/2016 11/22/2016 11/22/2016 12/28/2016

421 ADVISORY by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed.(Schwei, Daniel) (Entered: 09/15/2016)
422 ORDER entered. In light of the Supreme Court of the U.S.' denial of the Petition for Rehearing and taking into account the parties' agreement, disclosed to this Court in the last hearing, the parties shall meet and confer among themselves to see if they can agree to an appropriate Scheduling Order, which, if adopted by this Court, will govern this matter to its conclusion. This conference should take place before 11−11−16. If an agreement is reached, the parties should file the proposed schedule for consideration by this Court. If an agreement cannot be reached, the parties should jointly file a pleading outlining the areas of agreement and disagreement. The appropriate filing shall be accomplished by 11−18−16. The Court will wait to review the parties' submission before determining whether a scheduling hearing will be necessary. (Signed by Judge Andrew S Hanen) Parties notified. (rnieto, 1) (Entered: 10/06/2016)
423 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit regarding Order denying Motion to Intervene by Rhonda Ann Fleming, filed. (rnieto, 1) (Entered: 10/11/2016)
424 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 423 Notice of Appeal. Fee status: Not Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Public Docket Sheet) (rnieto, 1) (Entered: 10/11/2016)
Appeal Review Notes re: 423 Notice of Appeal. Fee status: Not Paid. The appeal filing fee has not been paid, and appellant is a pro se litigant.Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 1, filed. (rnieto, 1) (Entered: 10/11/2016)
425 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit by Rhonda Ann Fleming, filed.(bcampos, 1) (Entered: 10/17/2016)
426 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 425 Notice of Appeal. Fee status: Not Paid, filed. (Attachments: # 1 Notice of Appeal, # 2 Public Docket Sheet) (bcampos, 1) (Entered: 10/17/2016)
Appeal Review Notes re: 425 Notice of Appeal. Fee status: Not Paid. The appeal filing fee has not been paid, and appellant is a pro se litigant.Hearings were held in the case − transcripts were produced. Number of DKT−13 Forms expected: 1, filed.(bcampos, 1) (Entered: 10/17/2016)
Notice of Assignment of USCA No. 16−41411 re: 425 Notice of Appeal, filed.(scastillo, 1) (Entered: 10/21/2016)
427 Notice of Non−Compliance. Appellant has failed to: Pay the notice of appeal filing fee. Submit the DKT13 transcript order form. Parties notified, filed. (bcampos, 1) (Entered: 10/26/2016)
428 MOTION for Reconsideration of 392 MOTION to Intervene by Rhonda Ann Fleming, filed. Motion Docket Date 11/28/2016. (bcampos, 1) (Entered: 11/07/2016)
429 MOTION for Leave to Appeal in forma pauperis by Rhonda Ann Fleming, filed. Motion Docket Date 11/28/2016. (bcampos, 1) (Entered: 11/07/2016)
Notice of Assignment of USCA No. 16−41411 re: 425 Notice of Appeal, filed.(jtabares, 1) (Entered: 11/10/2016)
430 Joint MOTION to Stay Merits Proceedings by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, Ronald D. Vitiello, filed. Motion Docket Date 12/9/2016. (Attachments: # 1 Proposed Order)(Kirschner, Adam) (Entered: 11/18/2016)
431 Sealed Event, filed. (Entered: 11/22/2016)
432 Sealed Event, filed. (With attachments) (Entered: 11/22/2016)
433 Order of USCA; Judgment issued as mandate 12−28−16 re: 425 Notice of Appeal; USCA No. 16−41411. Appeal is dismissed as of 12−28−16 for want of prosecution.

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 67 of 69

01/19/2017 01/19/2017
01/19/2017
03/17/2017 03/17/2017 03/22/2017
04/06/2017 04/06/2017 06/07/2017 06/08/2017
06/15/2017 06/20/2017 06/29/2017

The appellant failed to timely pay the docketing fee, filed. (rnieto, 1) (Entered: 12/28/2016)
434 Memorandum Opinion and Order entered by the Court.(Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 01/19/2017)
435 Order entered by the Court. The Defendant−Intervenors' Motion to Use a Pseudonymous Declaration by Jane Doe #1, Jane Doe #2, and Jane Doe #3 doc 357 is denied as moot. The Motion to Proceed Under Pseudonyms filed by Jane Doe #4 and Jane Doe #5 in their capacity as amici is granted doc 396 . The sealed Motion doc 432 is granted. (Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 01/19/2017)
436 Order entered by the Court. The Plaintiff−Intervenors have until February 17, 2017 to provide both the (1) the affidavits with the above−listed requirements and (2) the certified copies of their trust accounts (or institutional equivalents) for the six−month period immediately preceding the filing of the Plaintiff−Intervenors' Second Notice of Appeal [doc no. 425]. After, February 17, 2017, the Court will rule on Plaintiff−Intervenors' motion to proceed in forma pauperis. (Signed by Judge Andrew S Hanen) Parties notified.(dbenavides, 1) (Entered: 01/19/2017)
437 MOTION for Julie Saltman to Appear Pro Hac Vice by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 4/7/2017. (Saltman, Julie) (Entered: 03/17/2017)
438 Unopposed MOTION to Stay Merits Proceedings by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 4/7/2017. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 03/17/2017)
439 ORDER granting 438 Motion to Stay. FURTHER ORDERED that proceedings on the merits of Plaintiffs' claims, including the obligation to propose a schedule for resolving the case, are stayed until June 15, 2017; and it is FURTHER ORDERED that the parties shall meet and confer and formulate and file with the Court an agreed upon (to the extent possible) schedule for the resolution of the merits of this case no later than June 15, 2017.(Signed by Judge Andrew S Hanen) Parties notified.(jtabares, 1) (Entered: 03/22/2017)
440 Mail Returned Undeliverable as to Tammy Willis re: 439 Order on Motion to Stay,,, filed. (cjones, 7) (Entered: 04/06/2017)
441 Mail Returned Undeliverable as to Raheleh Ziaei re: 439 Order on Motion to Stay,,, filed. (cjones, 7) (Entered: 04/06/2017)
442 MOTION for Daniel Halainen to Appear Pro Hac Vice by United States of America, filed. Motion Docket Date 6/28/2017. (Hu, Daniel) (Additional attachment(s) added on 6/8/2017: # 1 Verified Status of Bar Membership for Motion Pro Hac Vice) (jtabares, 1). (Entered: 06/07/2017)
443 NOTICE of Appearance by Adam Arthur Biggs on behalf of Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed. (Biggs, Adam) (Entered: 06/08/2017)
444 Unopposed MOTION to Stay Merits Proceedings by Jeh Johnson, R. Gil Kerlikowske, Leon Rodriguez, Sarah R Saldana, United States of America, Ronald D. Vitiello, filed. Motion Docket Date 7/6/2017. (Attachments: # 1 Exhibit A)(Saltman, Julie) (Entered: 06/15/2017)
445 Courtesy copy of SCOTUS Application sent to court in Washington DC in their case 1:17CV517 by Harold William Van Allen, filed.(bcampos, 1) (Entered: 06/20/2017)
446 ORDER entered. The Court hereby orders that this case is stayed until July 7, 2017. After the parties have determined the course of action they wish to pursue, they shall

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 68 of 69

07/07/2017
07/10/2017 07/14/2017
07/14/2017
07/24/2017 07/24/2017 07/24/2017 07/28/2017
07/28/2017 08/02/2017 08/02/2017 08/02/2017 08/03/2017 08/07/2017 08/10/2017 08/15/2017 08/17/2017
08/18/2017 08/21/2017 08/31/2017

notify the Court by way of a filing a joint status report. (Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 06/29/2017)
447 MOTION to Stay by State of Texas, filed. Motion Docket Date 7/28/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Biggs, Adam) (Entered: 07/07/2017)
448 AMICUS BRIEF by William F. Reade, Jr., filed. (Attachments: # 1 Envelope)(agarcia, 7) (Entered: 07/11/2017)
449 ORDER entered. The Court hereby orders the intervenor parties to file a response to the State of Texass motion to stay by July 28, 2017.Motion−related deadline set re: 447 MOTION to Stay Responses due by 7/28/2017.(Signed by Judge Andrew S Hanen) Parties notified.(bcampos, 1) (Entered: 07/14/2017)
450 Mail Returned Undeliverable as to attorney Justin B Cox as to Juan Escalante, Angelica Villalobos, jane doe #4, jane doe #5 re: 446 Order,, filed. (MonicaBalboa, 4) (Entered: 07/14/2017)
451 Mail Returned Undeliverable as to Tammy Willis re: 446 Order,, filed. (drodriguez, 7) (Entered: 07/24/2017)
452 Mail Returned Undeliverable as to Raheleh Ziaei re: 446 Order,, filed. (drodriguez, 7) (Entered: 07/24/2017)
453 Mail Returned Undeliverable as to attorney Justin B Cox re: 449 Order, filed. (MonicaBalboa, 4) (Entered: 07/24/2017)
454 MOTION to Dismiss 14 Amended Complaint/Counterclaim/Crossclaim etc.,, as moot without leave to amend by Jane Doe #1, Jane Doe #2, Jane Doe #3, filed. Motion Docket Date 8/18/2017. (Attachments: # 1 Proposed Order)(Perales, Nina) (Entered: 07/28/2017)
455 RESPONSE in Opposition to 447 MOTION to Stay , filed by Jane Doe #1, Jane Doe #2, Jane Doe #3. (Perales, Nina) (Entered: 07/28/2017)
456 Mail Returned Undeliverable as to Raheleh Ziaei re: 449 Order,, filed. (mmapps, 4) (Entered: 08/02/2017)
457 Mail Returned Undeliverable as to Robin Clarice Parezanin re: 449 Order,, filed. (jmarks, 2) (Entered: 08/02/2017)
458 Mail Returned Undeliverable as to Tammy Willis re: 449 Order, filed. (LaurenWebster, 4) (Entered: 08/02/2017)
459 Mail Returned Undeliverable as to Robin Clarice Parezanin re: 446 Order,, filed. (ShoshanaArnow, 4) (Entered: 08/03/2017)
460 REPLY in Support of 447 MOTION to Stay , filed by State of Texas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bitter, Adam) (Entered: 08/07/2017)
461 NOTICE of Change of Address by Justin B. Cox, counsel for Angelica Villalobos, filed. (mperez, 1) (Entered: 08/10/2017)
462 Sealed Event, filed. (With attachments) (Entered: 08/15/2017)
463 ORDER granting 447 Motion to Stay. IT IS HEREBY ORDERED that all merits proceedings are stayed until September 5, 2017.(Signed by Judge Andrew S Hanen) Parties notified.(jtabares, 1) (Entered: 08/17/2017)
464 MOTION to Unseal Document # 462 by Orly Taitz, filed. Motion Docket Date 9/8/2017. (dnoriega, 1) (Entered: 08/18/2017)
465 Mail Returned Undeliverable as to William F. Reade, Jr. re: 463 Order on Motion to Stay, filed. (LaurenWebster, 4) (Entered: 08/22/2017)
466 ORDER denying 419 Motion.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 08/31/2017)

Case: 1:14-cv-254 As of: 01/30/2018 08:27 PM CST 69 of 69

08/31/2017 09/05/2017
09/06/2017 09/08/2017
09/11/2017 09/12/2017
09/14/2017 09/25/2017 12/08/2017

467 ORDER denying 428 Motion for Reconsideration; denying 429 Motion for Leave to Appeal in forma pauperis.(Signed by Judge Andrew S Hanen) Parties notified.(scastillo, 1) (Entered: 08/31/2017)
469 NOTICE of Dismissal as to All Defendants by State of Louisiana, State of Alabama, C.L. "Butch" Otter, State of Arizona, State of Texas, Patrick L. McCrory, State of Tennessee, State of Oklahoma, State of Wisconsin, Phil Bryant, State of South Carolina, State of Ohio, State of South Dakota, State of Arkansas, State of West Virginia, State of Kansas, Bill Schuette, State of Georgia, State of Nebraska, State of North Dakota, State of Utah, Paul R. LePage, State of Montana, State of Idaho, State of Nevada, State of Florida, State of Indiana, filed. (Colmenero, Angela) (Entered: 09/05/2017)
470 Mail Returned Undeliverable as to Robin Clarice Parezanin re: 463 Order on Motion to Stay, filed. (sanderson, 3) (Entered: 09/06/2017)
471 ORDER re: 469 Notice of Dismissal. This Order does not presage any ultimate ruling should a different form of dismissal motion be filed. The parties are hereby granted leave to file such a motion which should include a proposed order, and pursuant to this Court's local rules, a certificate of conference. If such a motion is filed, the Court will give it due consideration. (Signed by Judge Andrew S Hanen) Parties notified.(mperez, 1) (Entered: 09/08/2017)
472 Certified Mail Receipt Returned, executed on 09/07/2017 re: 468 Document(s) Sent, − receipt attached, access restricted to court users for privacy reasons −, filed. (JenniferLongoria, 1) (Entered: 09/11/2017)
473 STIPULATION of Dismissal by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of Nevada, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Texas, State of Utah, State of West Virginia, State of Wisconsin, filed.(Colmenero, Angela) (Entered: 09/12/2017)
474 ORDER denying as moot 437 Motion to Appear Pro Hac Vice ; denying as moot 442 Motion to Appear Pro Hac Vice ; denying as moot 444 Motion to Stay; denying as moot 454 Motion to Dismiss; denying as moot 464 Motion to Unseal.(Signed by Judge Andrew S Hanen) Parties notified.(JenniferLongoria, 1) (Entered: 09/14/2017)
475 Mail Returned Undeliverable as to Robin Clarice Parezanin re: 4 Order for Initial Conference − FORM,, filed. (BelindaSaenz, 7) (Entered: 09/25/2017)
476 Order of USCA − JUDGMENT; Judgment issued as mandate 12/8/2017 re: 358 Notice of Appeal ; USCA No. 16−40796. the appeal is dismissed as of 12/8/2017, pursuant to Intervenors−Appellants' motion, filed.(dnoriega, 1) (Entered: 12/08/2017)

 
 No.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, ET AL., PETITIONERS v.
STATE OF TEXAS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEVAN E. BUNNELL General Counsel
U.S. Department of Homeland Security
Washington, D.C. 20528

DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
EDWIN S. KNEEDLER Deputy Solicitor General
BETH S. BRINKMANN Deputy Assistant Attorney General
ZACHARY D. TRIPP Assistant to the Solicitor General
DOUGLAS N. LETTER SCOTT R. MCINTOSH JEFFREY CLAIR WILLIAM E. HAVEMANN
Attorneys
Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTIONS PRESENTED
The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘deferred action,’ ” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999). On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.
The questions presented are: 1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action. 2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law. 3. Whether the Guidance was subject to the APA’s notice-and-comment procedures.
(I)

PARTIES TO THE PROCEEDING
Petitioners were appellants in the court of appeals. They are: the United States of America; Jeh Charles Johnson, in his official capacity as Secretary of Homeland Security; R. Gil Kerlikowske, in his official capacity as Commissioner of U.S. Customs and Border Protection; Ronald D. Vitiello, in his official capacity as Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; Sarah R. Saldaña, in her official capacity as Director of U.S. Immigration and Customs Enforcement; and León Rodríguez, in his official capacity as Director of U.S. Citizenship and Immigration Services.
Respondents were appellees in the court of appeals. They are: The State of Texas; State of Alabama; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of South Carolina; State of South Dakota; State of Utah; State of West Virginia; State of Wisconsin; Paul R. LePage, Governor, State of Maine; Patrick L. McCrory, Governor, State of North Carolina; C.L. “Butch” Otter, Governor, State of Idaho; Phil Bryant, Governor, State of Mississippi; State of North Dakota; State of Ohio; State of Oklahoma; State of Florida; State of Arizona; State of Arkansas; Bill Schuette, Attorney General, State of Michigan; State of Nevada; and the State of Tennessee.*
* Several putative beneficiaries of the Guidance moved to intervene as defendants in the district court. The court denied the motion, but the court of appeals reversed that order. See 2015 WL 6876054.
(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statutory and regulatory provisions involved ........................... 2 Statement:
A. Legal framework.................................................... 2 B. Factual and procedural background .................... 8 Reasons for granting the petition ............................................. 11 I. Respondents do not have Article III standing or a cognizable claim under the APA ............................... 14 A. A State’s voluntary decision to extend a
subsidy to aliens accorded deferred action does not give it standing to challenge federal deferred-action policies ....................................... 14 B. Respondents lack a cognizable APA claim........ 18 II. The Secretary had ample statutory authority to issue the Guidance ................................................. 24 III. The Guidance is exempt from notice-andcomment requirements.............................................. 29 IV. This case warrants immediate review ...................... 32 Conclusion ................................................................................... 35 Appendix A .................................................................................. 1a Appendix B .............................................................................. 156a Appendix C .............................................................................. 244a Appendix D.............................................................................. 407a Appendix E.............................................................................. 411a Appendix F .............................................................................. 420a Appendix G .............................................................................. 430a

Cases:

TABLE OF AUTHORITIES

Page

Arizona v. United States, 132 S. Ct. 2492 (2012) ...... passim
Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) ......................................................... 15

(III)

IV

Cases—Continued:

Page

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015), petition for cert. pending, No. 15-643 (filed Nov. 12, 2015) ...................................................... 34, 35
Block v. Community Nutrition Inst., 467 U.S. 340 (1984) .................................................................................... 23
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .................................................................................... 17
Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) .............................................................................. 18, 19
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)........ 15 Heckler v. Chaney, 470 U.S. 821 (1985)..................... 3, 12, 20 Johns v. Department of Justice, 653 F.2d 884
(5th Cir. 1981)...................................................................... 20 Lincoln v. Vigil, 508 U.S. 182 (1993) ................... 4, 20, 29, 30 Linda R.S. v. Richard D., 410 U.S. 614 (1973) ................... 14 Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) .................................................................................... 14 Massachusetts v. EPA, 549 U.S. 497 (2007) ................. 15, 16 Mathews v. Diaz, 426 U.S. 67 (1976) ................................... 19 Pennsylvania v. New Jersey, 426 U.S. 660 (1976) ....... 16, 17 Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) ...................................... passim Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .................... 14 Truax v. Raich, 239 U.S. 33 (1915) .................................. 2, 23 Vermont Yankee Nuclear Power Corp. v. Natural
Res. Def. Council, Inc., 435 U.S. 519 (1978)..................... 32 Wayte v. United States, 470 U.S. 598 (1985) ...................... 30 Whitman v. American Trucking Ass’ns, Inc.,
531 U.S. 457 (2001).............................................................. 24 Wyoming v. Oklahoma, 502 U.S. 437 (1992) ...................... 17

V

Constitution, statutes and regulations:

Page

U.S. Const.: Art. II, § 3, Cl. 5.............................................................. 10 Art. III.................................................................. 11, 12, 14
Administrative Procedure Act, 5 U.S.C. 500 et seq. .................................................................................... 10 5 U.S.C. 553............................................................ 10, 430a 5 U.S.C. 553(a)(2)................................................... 31, 430a 5 U.S.C. 553(b)(A) ................................................. 29, 431a 5 U.S.C. 701(a)(1)................................................... 23, 432a 5 U.S.C. 701(a)(2)................................................... 20, 432a 5 U.S.C. 702............................................................ 18, 432a 5 U.S.C. 706............................................................ 10, 433a
Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. F, Tit. II, 128 Stat. 250............................. 4
Department of Homeland Security Appropriations Act, 2015, Pub. L. No. 114-4, 129 Stat. 39: Tit. II: 129 Stat. 42 ......................................................... 4, 450a 129 Stat. 42-43 .................................................. 25, 450a 129 Stat. 43 ......................................................... 4, 451a
Immigration and Nationality Act, 8 U.S.C. 1101 et seq. ...................................................................................... 2 8 U.S.C. 1103(a) ..................................................... 26, 436a 8 U.S.C. 1103(a)(1)............................................. 2, 20, 436a 8 U.S.C. 1103(a)(1)-(3)..................................... 25, 30, 436a 8 U.S.C. 1103(a)(2)................................................... 3, 436a 8 U.S.C. 1103(a)(3)............................................. 3, 20, 436a 8 U.S.C. 1154(a)(1)(D)(i)(II) ............................................. 8 8 U.S.C. 1154(a)(1)(D)(i)(IV) ............................................ 8

VI

Statutes and regulations—Continued:

Page

8 U.S.C. 1182.......................................................... 22, 437a 8 U.S.C. 1182(a) ....................................................... 2, 437a 8 U.S.C. 1182(a)(9)(B) ............................................. 6, 437a 8 U.S.C. 1182(a)(9)(B)(i) ......................................... 6, 437a 8 U.S.C. 1182(a)(9)(B)(ii) .............................6, 22, 32, 438a 8 U.S.C. 1226(a)(3)........................................................... 22 8 U.S.C. 1226(c) ............................................................... 25 8 U.S.C. 1227(a) ............................................................. 2, 5 8 U.S.C. 1229b.................................................................. 28 8 U.S.C. 1231(a)(7)........................................................... 22 8 U.S.C. 1252.................................................................... 23 8 U.S.C. 1252(a)(2)(B) ..................................................... 27 8 U.S.C. 1252(a)(2)(B)(ii) ................................................ 22 8 U.S.C. 1252(g) ............................................... 8, 23, 26, 27 8 U.S.C. 1324a........................................................ 22, 439a 8 U.S.C. 1324a(a) ................................................... 27, 439a 8 U.S.C. 1324a(a)(1)................................................. 5, 439a 8 U.S.C. 1324a(h)(3) .........................5, 13, 22, 23, 27, 440a Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 ...................................... 5 National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat. 1694-1695 ............................................................... 8 Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-3010 ......................... 27 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 411, 110 Stat. 2268 (8 U.S.C. 1601 et seq.) ..................... 19 8 U.S.C. 1611.......................................................... 20, 441a 8 U.S.C. 1611(a) ....................................................... 6, 441a 8 U.S.C. 1611(b) ..................................................... 20, 441a

VII

Statutes and regulations—Continued:

Page

8 U.S.C. 1611(b)(2) ................................................ 22, 443a 8 U.S.C. 1611(b)(2)-(b)(4)........................................ 6, 443a 8 U.S.C. 1611(b)(3) ................................................ 22, 443a 8 U.S.C. 1611(c) ..................................................... 20, 444a 8 U.S.C. 1621.......................................................... 19, 445a 8 U.S.C. 1621(a) ................................................. 7, 19, 445a 8 U.S.C. 1621(b) ................................................. 7, 19, 446a 8 U.S.C. 1621(c) ..................................................... 19, 447a 8 U.S.C. 1621(c)(1)(B) ........................................... 20, 447a 8 U.S.C. 1621(d) ............................................7, 19, 20, 448a 8 U.S.C. 1641(b) ....................................................... 6, 449a REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302 .......................................................................... 8 49 U.S.C. 30301 note ......................................................... 8 USA PATRIOT Act, Pub. L. No. 107-56, § 423(b), 115 Stat. 361 .......................................................................... 8 Violence Against Women Act of 1994, Pub. L. No. 103-322, Tit. V, 108 Stat. 1092. ..................................... 8 6 U.S.C. 202(3) ............................................................... 2, 435a 6 U.S.C. 202(5) ..............................................2, 20, 25, 30, 435a 6 U.S.C. 271(b) ......................................................................... 2 6 U.S.C. 557 .............................................................................. 2 Ariz. Rev. Stat. Ann. § 43-1001(2) (2013) ............................ 18 Tex. Transp. Code Ann. § 521.421(a-3) (West 2013) .......... 15 8 C.F.R.: Section 1.3(a).......................................................... 20, 473a Section 1.3(a)(4)(vi) ........................................... 7, 32, 474a Section 274a.12(a) .................................................... 5, 452a Section 274a.12(b).................................................... 5, 456a Section 274a.12(c) .................................................... 5, 465a Section 274a.12(c)(14) ....................................... 5, 32, 469a

VIII

Miscellaneous:

Page

Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458 (2009) ..................................................... 25
Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act (1947) .............................. 29
Dep’t of Homeland Sec., Yearbook of Immigration Statistics: 2013 Enforcement Actions, Tbl. 39, Aliens Removed or Returned: Fiscal Years 1892 to 2013 (2014), http://www.dhs.gov/publication/ yearbook-immigration-statistics-2013-enforcementactions .................................................................................... 4
44 Fed. Reg. 43,480 (July 25, 1979)................................ 23, 27
46 Fed. Reg. 25,080 (May 5, 1981) ............................. 6, 27, 32
61 Fed. Reg. 47,041 (Sept. 6, 1996) .................................. 7, 32
6 Charles Gordon et al., Immigration Law and Procedure (1998) ................................................................... 5
Memorandum from Gene McNary, Comm’r, to Reg’l Comm’rs, Family Fairness, reprinted as 67 No. 6 Interpreter Releases 153, App. I (Feb. 2, 1990) .............. 30
Memorandum from Doris Meissner, Immigration & Naturalization Serv. Comm’r, to Reg’l Dirs. et al., Exercising Prosecutorial Discretion, reprinted as 77 No. 46 Interpreter Releases 1661, App. I (Nov. 17, 2000) .......................................................... 3
Memorandum from Donald Neufeld, Acting Assoc. Dir., to Field Leadership, 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 42 (May 6, 2009), http://www.uscis.gov/sites/ default/files/USCIS/Laws/Memoranda/Static_ Files_Memoranda/2009/revision_redesign_ AFM.PDF ............................................................................. 6

IX

Miscellaneous—Continued:

Page

Manuel Pastor et al., The Kids Aren’t Alright – But They Could Be: The Impact of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) on Children (Mar. 2015), https://dornsife.usc.edu/assets/sites/731/docs/DAP A_Impact_on_Children_CSII_Brief_Final_01.pdf ........ 33
Tex. Dep’t of Pub. Safety, Verifying Lawful Presence (July 2013), http://www.txdps.state.tx.us/ DriverLiense/documents/verifyingLawful Presence.pdf........................................................................ 17
The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. __ (Nov. 19, 2014)............................................................. 7, 8, 33

In the Supreme Court of the United States
No. UNITED STATES OF AMERICA, ET AL., PETITIONERS
v. STATE OF TEXAS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the federal parties, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. (App.) 1a-155a) is not yet published but is available at 2015 WL 6873190. The opinion of the court of appeals denying a stay pending appeal (App. 156a-243a) is reported at 787 F.3d 733. The opinion of the district court (App. 244a-406a) is reported at 86 F. Supp. 3d 591.
JURISDICTION
The judgment of the court of appeals was entered on November 9, 2015. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
(1)

2
STATUTORY AND REGULATORY PROVISIONS INVOLVED
Pertinent statutory and regulatory provisions are reproduced in the appendix to this petition. App. 430a-475a.
STATEMENT
A. Legal Framework
1. The “authority to control immigration * * * is vested solely in the Federal Government.” Truax v. Raich, 239 U.S. 33, 42 (1915). Pursuant to that authority, Congress enacted the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. The INA charges the Secretary of Homeland Security “with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.” 8 U.S.C. 1103(a)(1).1
Congress has expressly assigned the Secretary the responsibility for “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5). One of the enforcement matters over which the Secretary has authority is the removal of aliens if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012); see 8 U.S.C. 1182(a), 1227(a). In this and other matters, the Secretary is vested with the authority to “establish such regulations; * * * issue such instructions; and perform
1 Congress has transferred to the Department of Homeland Security (DHS) most of the functions of the former Immigration and Naturalization Service (INS). E.g., 6 U.S.C. 202(3), 271(b), 557. Unless otherwise indicated, references to the actions of DHS and the Secretary include actions by their predecessors.

3
such other acts as he deems necessary,” and to have “control, direction, and supervision” of all DHS employees. 8 U.S.C. 1103(a)(2) and (3).
2. “A principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S. Ct. at 2499. When they encounter a removable alien, immigration officials, “as an initial matter, must decide whether it makes sense to pursue removal at all.” Ibid. They decide whether to “[f]ocus[] investigative resources on particular offenses or conduct”; “to issue, serve, or file a Notice to Appear”; to oppose a request for relief; to settle or dismiss a proceeding; to appeal an adverse ruling; and to execute a removal order. Memorandum from Doris Meissner, INS Comm’r, Exercising Prosecutorial Discretion 2, reprinted as 77 No. 46 Interpreter Releases 1661, App. I (Nov. 17, 2000). “At each stage the Executive has discretion to abandon the endeavor.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (AADC).
Like other agencies exercising enforcement discretion, DHS balances “a number of factors which are peculiarly within its expertise.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Those factors include “whether agency resources are best spent on this violation or another” and “whether the agency has enough resources to undertake the action at all,” ibid., as well as “immediate human concerns,” such as “whether the alien has children born in the United States [or] long ties to the community,” Arizona, 132 S. Ct. at 2499.
The Secretary faces resource constraints that require the exercise of enforcement discretion. More than 11 million removable aliens are estimated to live

4
in the United States. App. 5a. But Congress has appropriated the funds to remove only a fraction of that population in any given year. The number of removals has varied depending on circumstances, but DHS has not been able to remove more than four percent of the estimated removable population in any year. See DHS, Yearbook of Immigration Statistics: 2013 Enforcement Actions, Tbl. 39, Aliens Removed or Returned: Fiscal Years 1892 to 2013 (2014). And more aliens enter unlawfully or otherwise become removable each year.
Recognizing that DHS cannot actually remove the vast majority of removable aliens, Congress has directed U.S. Immigration and Customs Enforcement (ICE), the relevant DHS component, to use at least $1.6 billion to identify and remove aliens convicted of crimes, and to prioritize removals of criminal aliens “by the severity of th[e] crime.” DHS Appropriations Act, 2015 (Appropriations Act), Pub. L. No. 114-4, Tit. II, 129 Stat. 43. But as relevant here, Congress has otherwise committed to DHS’s discretion the choice of how to allocate its lump-sum appropriation for “necessary expenses for enforcement of immigration and customs laws, detention and removals, and investigations.” Id. at 42; see Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. F, Tit. II, 128 Stat. 250 (same); Lincoln v. Vigil, 508 U.S. 182, 191-194 (1993).
3. For decades, DHS has engaged in “a regular practice * * * known as ‘deferred action,’ ” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States for a designated period of time. AADC, 525 U.S. at 483-484. Deferred action thus

5
memorializes a decision “[t]o ameliorate a harsh and unjust outcome” through forbearance. Id. at 484 (quoting 6 Charles Gordon et al. Immigration Law and Procedure § 72.03[2][h] (1998)). Through “[t]his commendable exercise in administrative discretion, developed without express statutory authorization,” ibid. (citation omitted), a removable alien is able to remain in the country for the duration of the agency’s forbearance. That person’s continued presence does not violate any criminal law, because “[r]emoval is a civil, not criminal, matter,” and “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona, 132 S. Ct. at 2499, 2505; see 8 U.S.C. 1227(a). But deferred action provides no defense to the civil consequence of continued presence: The alien remains removable, and DHS has discretion to revoke deferred action at any time. See AADC, 525 U.S. at 484-485.
Under other longstanding federal law, according aliens deferred action has several consequences. First, aliens with deferred action—like many other aliens whose presence is temporarily countenanced— become eligible for work authorization. 8 C.F.R. 274a.12(a), (b), (c), and (14). As amended by the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, the INA makes it unlawful to knowingly hire an “unauthorized alien.” 8 U.S.C. 1324a(a)(1). Aliens are “unauthorized” to be hired if they are not permanent residents or not “authorized to be so employed by [the INA] or by the [Secretary].” 8 U.S.C. 1324a(h)(3). Pursuant to a regulation in place when Congress enacted IRCA, aliens with deferred action and economic need may apply for work authorization. 8 C.F.R. 274a.12(c)(14);

6
see 46 Fed. Reg. 25,080 (May 5, 1981). Otherwise, during the period the government has countenanced an alien’s presence, that person would have no lawful way to make ends meet and would be vulnerable to exploitation by unscrupulous employers.
Second, like many other aliens, aliens accorded deferred action cease accruing time for purposes of the admissibility bars in 8 U.S.C. 1182(a)(9)(B). That provision makes an alien inadmissible for three or ten years if she departs the United States after being “unlawfully present” for six months or a year. 8 U.S.C. 1182(a)(9)(B)(i). “For purposes of this paragraph,” an alien is “unlawfully present” if she is present “after the expiration of the period of stay authorized by the [Secretary].” 8 U.S.C. 1182(a)(9)(B)(ii). The Secretary has long considered deferred action to toll accrual of time for purposes of that calculation. See Memorandum from Donald Neufeld, Acting Assoc. Dir., 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 42 (May 6, 2009).
Third, aliens with deferred action become potentially eligible for certain federal public benefits. For most such benefits, only “qualified alien[s]” are eligible, and aliens with deferred action are not “qualified.” 8 U.S.C. 1611(a); see 8 U.S.C. 1641(b) (defining “qualified alien”). But that limitation does not apply to some Social Security, Medicare, and railroadretirement benefits when a non-qualified alien is “lawfully present in the United States as determined by the [Secretary].” 8 U.S.C. 1611(b)(2)-(4). Under longstanding regulations, deferred action makes an alien eligible for some Social Security benefits under this

7
provision. 8 C.F.R. 1.3(a)(4)(vi); 61 Fed. Reg. 47,041 (Sept. 6, 1996).
As a matter of federal law, deferred action has no impact on whether an alien is eligible for any state public benefit. States may provide certain minimal benefits to all aliens. See 8 U.S.C. 1621(b). But non“qualified” aliens (who are also not parolees or nonimmigrants) are prohibited from receiving any additional state public benefits, unless the State has affirmatively chosen after August 22, 1996 to provide them. 8 U.S.C. 1621(a) and (d). Deferred action does not make an alien “qualified” (or a parolee or nonimmigrant). See 8 U.S.C. 1641(b). Deferred action thus does not trigger eligibility for any state public benefit, unless a State voluntarily chooses to provide such a benefit on that basis.
4. DHS has repeatedly accorded deferred action and exercised similar forms of discretion on the basis of the Secretary’s general authority to administer the immigration laws. The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. ___, *14*20 (Nov. 19, 2014) (OLC Op.) (collecting examples). For example, in 1990, INS expanded a “Family Fairness” policy to provide extended voluntary departure to spouses or children of aliens with legalized status, and some estimates were that 1.5 million people— about 40% of the total removable population at the time—could be eligible. Id. at *31. In 2005, DHS implemented a policy of according deferred action to foreign students affected by Hurricane Katrina. Id. at *16-*17. And in 2012, DHS implemented the Deferred Action for Childhood Arrivals (DACA) policy

8
for certain aliens who were brought or came to this country as children and have lived here for years. Id. at *17-*18. More than 600,000 people have been accorded deferred action via that policy. App. 4a.
Congress has repeatedly recognized in legislation that DHS has inherent authority to defer action. For example, without defining or codifying the term, Congress has made aliens who petition for relief under the Violence Against Women Act of 1994, Pub. L. No. 103322, Tit. V, 108 Stat. 1092, eligible to request “deferred action.” 8 U.S.C. 1154(a)(1)(D)(i)(II) and (IV). Similarly, certain family members of lawful permanent residents killed on September 11, 2001, or of citizens killed in combat, are “eligible for deferred action.” USA PATRIOT Act, Pub. L. No. 107-56, § 423(b), 115 Stat. 361; National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, § 1703(c)-(d), 117 Stat. 1694-1695. Congress has also provided that, if a State participates in the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302, it may issue compliant driver’s licenses to aliens with “approved deferred action status.” 49 U.S.C. 30301 note. And 8 U.S.C. 1252(g) bars judicial review of “no deferred action” decisions. AADC, 525 U.S. at 485.
B. Factual And Procedural Background
1. On November 20, 2014, the Secretary issued two memoranda relevant here. The first directs DHS to focus “to the greatest degree possible” on removing serious criminals, terrorists, aliens who recently crossed the border, and aliens who have abused the immigration system. App. 426a; see App. 420a-429a.
The second announces “new policies for the use of deferred action.” App. 412a (Guidance); see App. 411a-419a. The Guidance directs U.S. Citizenship and

9
Immigration Services (USCIS) to expand eligibility under the 2012 DACA policy to aliens with a wider range of ages and arrival dates, and extends the period of deferred action from two years to three. App. 415a-416a. The Guidance also directs 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.” App. 416a-417a. This process is known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). App. 2a. To request consideration for deferred action via DAPA, an applicant must: (1) as of November 20, 2014, be the parent of a son or daughter who is a U.S. citizen or permanent resident; (2) have continuously resided here since before January 1, 2010; (3) have been physically present here on November 20, 2014, and when applying for relief; (4) have no lawful immigration status on that date; (5) not fall within the Secretary’s enforcement priorities; and (6) “present no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” App. 417a.
The Secretary explained that the new policy would reach “hard-working people who have become integrated members of American society,” have not committed serious crimes, and “are extremely unlikely to be deported given * * * limited enforcement resources.” App. 415a. Deferring action for these individuals, the Secretary continued, supports “this Nation’s security and economic interests and make[s] common sense, because [it] encourage[s] these people to come out of the shadows, submit to background

10
checks, pay fees, apply for work authorization (which by separate authority I may grant), and be counted.” Ibid. The Guidance emphasizes that it does not establish any right to deferred action, that deferred action “does not confer any form of legal status in this country,” and that deferred action “may be terminated at any time at the agency’s discretion.” App. 413a.
Under the Guidance, DHS was to begin accepting requests under the expanded DACA criteria no later than February 18, 2015, and for DAPA no later than May 19, 2015. App. 416a, 418a.
2. On December 3, 2014, respondent States sued in district court, seeking declaratory and injunctive relief against implementing the Guidance. Respondents alleged that the Guidance violates the Take Care Clause, U.S. Const. Art. II, § 3, Cl. 5; is arbitrary and capricious, 5 U.S.C. 706; and could only be adopted through notice-and-comment procedures, 5 U.S.C. 553. App. 9a.
On February 16, 2015, the district court entered a nationwide preliminary injunction against implementing the Guidance. App. 407a-410a. The court held that respondents were likely to succeed in establishing that they had standing and a cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., and that the Secretary was required to conduct notice-and-comment rulemaking before issuing the Guidance. App. 405a. The court did not reach respondents’ substantive APA and constitutional claims. App. 403a-405a.
The government appealed, moved to expedite, and moved for a stay pending appeal. App. 2a. The court of appeals expedited the appeal. On May 26, 2015, a divided panel declined to stay the injunction pending

11
appeal. App. 156a-210a. Judge Higginson dissented. App. 211a-243a.
On November 9, 2015, a divided panel affirmed the preliminary injunction. App. 1a-90a. The majority, consisting of the same two judges who were in the stay-panel majority, held that “[a]t least one state”— Texas—had Article III standing and a justiciable cause of action under the APA, and that respondents were substantially likely to establish that notice-andcomment rulemaking was required. App. 20a; see App. 11a-69a. Although the district court had not addressed the issue, the majority further held that the Guidance is “manifestly contrary” to the INA. App. 76a; see App. 69a-86a.
The new panel member, Judge King, dissented. App. 91a-155a. Like Judge Higginson, she concluded that the Guidance involves non-reviewable matters that are committed to agency discretion by law, and that, if the Guidance “is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements.” App. 92a-93a. She also found it inappropriate to rule on the substantive validity of the Guidance but stated that, if she were to reach the question, she would not have found the Guidance unlawful. App. 146a-155a.
REASONS FOR GRANTING THE PETITION
A divided court of appeals has upheld an unprecedented nationwide injunction against implementing a federal immigration enforcement policy of great national importance, and has done so in violation of established limits on the judicial power. If left undisturbed, that ruling will allow States to frustrate the federal government’s enforcement of the Nation’s

12
immigration laws. It will force millions of people— who are not removal priorities under criteria the court conceded are valid, and who are parents of U.S. citizens and permanent residents—to continue to work off the books, without the option of lawful employment to provide for their families. And it will place a cloud over the lives of hundreds of thousands of people who came to the United States as children, have lived here for years, and been accorded deferred action under the 2012 DACA policy, which respondents have never challenged. The decision warrants immediate review.
The court of appeals’ justiciability rulings threaten a vast expansion of the judicial power that would entangle federal courts in policy disputes that are properly resolved through the political process. The court erroneously permitted any State to create Article III standing to challenge a federal policy, based on the State’s voluntary decision to provide a state subsidy to the aliens that policy would benefit. But the Guidance does not bar a State from eliminating that subsidy if it believes that federal policy choices no longer align with its interests. The court compounded that error by rewriting the established limits on APA review in disregard of this Court’s admonition that an “agency is far better equipped than the courts to deal with the many variables involved” in setting enforcement policies. Heckler v. Chaney, 470 U.S. 821, 831832 (1985).
The court of appeals’ merits rulings warrant review because they strip DHS of authority it has long exercised to provide deferred action to categories of aliens. The majority acknowledged that DHS could lawfully exercise enforcement discretion to forbear from removing the parents and children covered by the Guid-

13
ance, who have lived here for years. App. 44a. It nevertheless believed that the INA forbade the government from according those same parents and children deferred action. But “deferred action” itself is simply the name in immigration parlance for when DHS memorializes a decision to forbear from removing an alien, as a matter of enforcement discretion, for a designated time.
To be sure, deferred action has several other consequences for the alien under longstanding federal law, including eligibility to apply for work authorization. But the Secretary has discretion under the INA to grant that work authorization, which is closely bound up with his exercise of discretion over removals. Indeed, the INA for decades has made clear that the determination of which aliens are authorized to be hired lawfully may be made “by the [Secretary].” 8 U.S.C. 1324a(h)(3). The INA thus authorizes the Secretary to accord deferred action to the parents here—and to have them come forward, submit to a background check, and support their U.S.-citizen and permanent-resident children by working lawfully.
The court of appeals also fundamentally erred in holding that the Guidance was subject to the APA’s notice-and-comment requirements. The Guidance is a classic example of a “general statement of policy” that is expressly exempt from those requirements. The court’s contrary ruling threatens to deprive agencies throughout the government of the flexibility that is essential in fashioning and revising policies for enforcement and other discretionary practices.
The court of appeals thus committed manifold and significant errors in affirming the unprecedented nationwide injunction barring implementation of an

14
important federal policy affecting the parents and children here. This Court should grant certiorari and reverse.
I. RESPONDENTS DO NOT HAVE ARTICLE III STANDING OR A COGNIZABLE CLAIM UNDER THE APA
A. A State’s Voluntary Decision To Extend A Subsidy To Aliens Accorded Deferred Action Does Not Give It Standing To Challenge Federal Deferred-Action Poli-
cies
1. Like a member of the public, a State generally lacks standing to challenge the Executive’s policy choices about how to enforce federal laws, including the immigration laws. In the context of criminal proceedings, “a citizen lacks standing to contest the policies of [a] prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Private parties similarly “have no judicially cognizable interest in procuring enforcement of the immigration laws” against someone else. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984). And because “the removal process is entrusted to the discretion of the Federal Government” to the exclusion of the States, Arizona v. United States, 132 S. Ct. 2492, 2506 (2012), it is not a process in which a State inherently has a sovereign or quasi-sovereign interest.
Nor does a State obtain standing to challenge a federal immigration policy by virtue of the collateral consequences for aliens who are the policy’s beneficiaries. See p. 7, supra. “[M]uch more is needed” to establish standing than a mere assertion of “the government’s allegedly unlawful regulation (or lack of regulation) of someone else.” Lujan v. Defenders

15
of Wildlife, 504 U.S. 555, 562 (1992); see, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 346 (2006). Indeed, the Constitution’s assignment of immigration responsibilities exclusively to the national government renders States particularly unlikely candidates for invoking the jurisdiction of federal courts to interfere with the relationship between the national government and aliens.
2. If a State could ever have standing to challenge a federal deferred-action policy despite these structural bars, at a minimum it would have to show a cognizable injury that affects it in an “individual way” that is “fairly . . . traceable” to the policy. Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011) (emphasis added; brackets and citations omitted). Respondents cannot make that showing because the Guidance does not regulate States or require States to do (or not do) anything.
The court of appeals nonetheless held that Texas had standing by extending Massachusetts v. EPA, 549 U.S. 497 (2007). App. 12a. According Texas “special solicitude,” ibid., the majority found standing based on an injury that results from Texas’s own decisions (1) to subsidize the costs of its alien “temporary visitor” driver’s licenses; and (2) to allow aliens with deferred action to apply for those subsidized licenses. See App. 11a-36a; App. 105a (King, J., dissenting) (dissent); see also Tex. Transp. Code Ann. § 521.421(a-3) (West 2013). By increasing the number of aliens in Texas with deferred action, the majority reasoned, the Guidance will increase the subsidy’s overall cost. See App. 20a-21a. The majority recognized that “Texas could avoid financial loss by requiring applicants to pay the full costs of [those] licenses.”

16
App. 24a. But in the majority’s view, Texas still suffered an actionable harm because the Guidance imposed “substantial pressure” on Texas to change its state laws. App. 16a, 20a. Ultimately, therefore, it was not the prospect of increased costs that provided standing; it was the prospect that Texas might want to change its laws to avoid those costs. Ibid.
Unlike in Massachusetts, however, the INA does not grant Texas any special “procedural right” to challenge federal immigration policy. 549 U.S. at 517. And the interest Texas asserts is nothing like the sovereign interest in Massachusetts. There, the State was threatened with a loss of sovereign territory—a literal loss of sovereignty—it could not unilaterally avoid. See id. at 519-520. Here, the Guidance causes no loss of sovereignty. Texas has chosen to link the availability of state-subsidized licenses to a federal immigration category that the State believed suited its sovereign interests. Nothing in the Guidance affects Texas’s freedom to alter or eliminate its subsidy at any time. Any “pressure” here is thus self-created and fundamentally unlike preemption, where a federal law overrides a duly-enacted state law.
The decision below is therefore at odds with Pennsylvania v. New Jersey, 426 U.S. 660 (1976). That decision holds that a State’s choice to extend a subsidy on the basis of another sovereign’s actions is not a proper basis for standing when the other sovereign’s policies change and thus increase the cost of the subsidy. In Pennsylvania, the Court concluded that Pennsylvania lacked standing to challenge a New Jersey tax that triggered a tax credit under Pennsylvania law and thereby reduced Pennsylvania’s tax revenue. Id. at 662-664. The Court explained that

17
“[n]o State can be heard to complain about damage inflicted by its own hand” and that “nothing prevents Pennsylvania from withdrawing [the] credit.” Id. at 664; cf. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1152-1153 (2013). So too here.
The panel majority instead relied on Wyoming v. Oklahoma, 502 U.S. 437 (1992), but that case is inapposite. It held that Wyoming had standing to challenge a discriminatory Oklahoma law targeted at reducing sales of Wyoming coal in Oklahoma, when the effect was to reduce Wyoming’s revenues from its neutral tax on coal extraction. Id. at 442-446, 454. Wyoming, however, did not “tie[] its law to that of another sovereign.” App. 106a n.16 (dissent). Wyoming’s tax depended solely on activity in Wyoming. It was the defendant (Oklahoma) that reached out to connect the two sovereigns’ policies by targeting Wyoming coal for particular burdens. Here, as in Pennsylvania but unlike in Wyoming, the link has been created by the plaintiff State. But to the extent Pennsylvania and Wyoming can be read to point in different directions, that only underscores the need for this Court’s review.
3. As the dissent recognized, “[t]he majority’s breathtaking expansion of state standing would inject the courts into far more federal-state disputes and review of the political branches than is now the case.” App. 103a. For example, Texas provides the same subsidy to myriad other aliens, including those with parole, asylum, temporary protected status, deferred enforced departure, and extended voluntary departure. See Tex. Dep’t of Pub. Safety, Verifying Lawful Presence 1-5 (July 2013). Under the majority’s reasoning, Texas could claim standing to sue the govern-

18
ment for making an individual decision to grant asylum—and would clearly have standing to sue the government any time it adopted immigration policies providing relief to a substantial number of aliens in Texas in any of these categories.
The harms of the majority’s theory also could extend well beyond immigration. For example, a State that voluntarily incorporates the federal definition of “adjusted gross income” in computing state income taxes—as many States do, see, e.g., Ariz. Rev. Stat. Ann. § 43-1001(2) (2013)—could have standing to challenge an IRS revenue ruling that lowered adjusted gross income under federal law, and thereby incidentally decreased state revenues. But the consequences of the majority’s theory are particularly acute in a case, like this one, where a State seeks to leverage its own policy choices to insert itself—and the federal courts—into discretionary immigration policy decisions that Congress and the Constitution have committed exclusively to the national government.
B. Respondents Lack A Cognizable APA Claim
The court of appeals’ decision also warrants review because it vastly expands what qualifies as a cognizable cause of action under the APA and impermissibly subjects the federal government’s exercise of enforcement discretion to judicial oversight.
1. The APA does not “allow suit by every person suffering injury in fact.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 395 (1987). It limits the right of judicial review to a plaintiff “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. 702. That provision requires that “the interest sought to be protected by the complainant be arguably within the zone of interests

19
to be protected or regulated by the statute * * * in question.” Clarke, 479 U.S. at 396 (brackets and citation omitted). Here, Texas’s asserted interest in avoiding costs flowing from a voluntary state-law subsidy falls far outside the zone of interests of the INA’s removal provisions. The INA “regulat[es] the relationship between the United States and our alien visitors,” Mathews v. Diaz, 426 U.S. 67, 81 (1976), not between aliens and third-party States.
Relying on 8 U.S.C. 1621, the court of appeals concluded that the INA protected Texas’s interest in “participat[ing] in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson’s choice of spending millions of dollars to subsidize driver’s licenses or changing its statutes.” App. 37a-38a. Section 1621 is part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, § 411, 110 Stat. 2268, not the INA, and it does not cover Texas’s driver’s-license subsidy, which is not a state “public benefit.” See 8 U.S.C. 1621(c). Under PRWORA, deferred action does not trigger eligibility for any state public benefit, unless a State voluntarily chooses after PRWORA’s effective date to confer such benefits on that basis. See 8 U.S.C. 1621(a), (b), and (d); 8 U.S.C. 1641(b). It thus is up to each State—and each State alone—to protect itself from the costs of providing such benefits to aliens with deferred action.2
2 The majority also erred in assuming (App. 8a-9a, 44a-45a) that deferred action makes aliens eligible for Texas unemployment compensation. That is a state public benefit, so aliens with deferred action cannot receive it unless Texas affirmatively opted to extend that benefit after PRWORA became effective. See 8 U.S.C.

20
The INA also contains no notice-and-comment provision or other procedure granting States a special right to “participate” before the Secretary changes immigration policies that may have incidental consequences for a State, including on any voluntary statelaw subsidies. App. 37a-38a. Rather, the INA gives the Secretary authority to set immigration enforcement policies himself. Arizona, 132 S. Ct. at 2506; see 8 U.S.C. 1103(a)(1) and (3); see also 6 U.S.C. 202(5).
2. The APA also bars respondents’ suit because, as both dissents concluded, App. 93a; App. 213a-214a, it challenges actions that are “committed to agency discretion by law.” 5 U.S.C. 701(a)(2). That exception “preclude[s] judicial review of certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’ ” and decisions under statutes that furnish “no meaningful standard against which to judge the agency’s exercise of discretion.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (citations omitted). In Heckler, this Court held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” 470 U.S. at 832; accord Vigil, 508 U.S. at 191. That principle applies to deferredaction policies because they involve nonbinding and revocable determinations to forbear from removing particular aliens for a period of time. See AADC, 525 U.S. at 484-485; cf. Johns v. Department of Justice,
1621(a), (c)(1)(B), and (d). Texas has not done so. Texas’s alleged injury is also neither fairly traceable to nor within the zone of interests of Section 1611, under which deferred-action recipients may become eligible for some federal benefits. 8 U.S.C. 1611(b) and (c); 8 C.F.R. 1.3(a).

21
653 F.2d 884, 893 (5th Cir. 1981) (“Th[e] discretion [to commence deportation proceedings] is, like prosecutorial discretion, immune from review.”).
The majority nonetheless concluded that deferredaction policies are reviewable under the APA because “[d]eferred action” is “much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” App. 44a. But insofar as deferred action itself is concerned, “lawful presence” is simply the label for the consequence of memorializing a decision to forbear from enforcement action for a designated time: A decision to forbear from removing a person results in “lawful presence” in the sense that DHS has decided to countenance that person’s continued presence in the United States so long as DHS continues to forbear. See App. 113a-114a (dissent). Under Heckler, a deferred-action policy is presumptively unreviewable, whether a litigant chooses to focus on the choice itself (to forbear from enforcement) or its effect (to countenance the activity that could be the subject of enforcement). Either way, the discretion is the same.
Deferred action also has several consequences under different provisions of federal law, but they do not make a deferred-action policy reviewable. Those consequences “are not new”; they “are a function of statutes and regulations that were enacted by Congresses and administrations long past.” App. 109a110a (dissent). “That a prior statute or regulation ties a benefit to the exercise of prosecutorial discretion does not make that ordinarily unreviewable exercise of prosecutorial discretion reviewable.” App. 115a. Indeed, many exercises of discretion have collateral

22
benefits, such as drug treatment following pretrial diversion. App. 117a.
In any event, Congress also has committed to the Secretary’s discretion each of the consequences that result from deferred action under federal law. In PRWORA, Congress gave the Secretary discretion to decide which non-qualified aliens are eligible for Social Security and certain other federal benefits. 8 U.S.C. 1611(b)(2) and (3) (“as determined by the [Secretary]”). In the INA, Congress similarly specified that the Secretary has discretion to decide whether aliens with deferred action accrue time for purposes of the three- and ten-year bars, see 8 U.S.C. 1182(a)(9)(B)(ii) (after “period of stay authorized by the [Secretary]”), and whether to authorize aliens to be lawfully hired, 8 U.S.C. 1324a(h)(3) (“authorized to be so employed * * * by the [Secretary]”). No statute contains a relevant justiciable limit on the Secretary’s ability to do so for the parents and children covered by the Guidance. 3 Moreover, the INA expressly prohibits review of any “decision or action of the [Secretary]” “the authority for which is specified under [INA subchapter II] to be in the discretion of the [Secretary].” 8 U.S.C. 1252(a)(2)(B)(ii). Sections 1182 and 1324a are both in that Subchapter. This statutory shield from judicial interference underscores that the Secretary’s exercise of discretion re-
3 Congress has prohibited the Secretary from giving work authorization on the basis that an alien has been released on bond during removal proceedings, 8 U.S.C. 1226(a)(3), and has limited work authorization for aliens released on orders of supervision following entry of a final order of removal, 8 U.S.C. 1231(a)(7). The Guidance implicates neither limitation.

23
lating to these benefits—including work authorization—is not reviewable in a suit by third-party States.
Authorizing aliens to be hired is also closely bound up with the Secretary’s discretion over removals. When DHS accords deferred action to an alien, that alien will continue living here, and “in ordinary cases [aliens] cannot live where they cannot work.” Truax v. Raich, 239 U.S. 33, 42 (1915). Accordingly, authorizing aliens to be hired has long been considered a “necessary incident of [the Secretary’s] authority to administer the [INA].” 44 Fed. Reg. 43,480 (July 25, 1979). And IRCA reinforces that point by confirming that “the [Secretary]” may decide whether an alien may be lawfully hired. 8 U.S.C. 1324a(h)(3).
The INA’s text provides additional confirmation that the Guidance is not subject to review. The INA provides a cause of action solely to aliens to challenge individual orders of removal, 8 U.S.C. 1252—but no cause of action at all to third-parties, including States. If Congress had intended to allow suits based on the consequences of deferred action, one would expect that the most impacted parties—aliens denied deferred action—could sue. Instead, 8 U.S.C. 1252(g) squarely prohibits such suits. As this Court explained in AADC, Section 1252(g) is “directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion.” 525 U.S. at 486 n.9. That is just what respondents seek in this suit.4
4 The INA’s provisions not only confirm that the Guidance involves actions that are committed to agency discretion by law, but also they are part of a broader statutory framework establishing that a challenge by third-party States to a deferred-action policy is precluded by the INA under 5 U.S.C. 701(a)(1). See Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984) (“[T]he

24
II. THE SECRETARY HAD AMPLE STATUTORY AU-
THORITY TO ISSUE THE GUIDANCE
The court of appeals’ ruling that the Secretary lacked substantive authority to adopt the Guidance is wrong, unduly restricts DHS’s enforcement discretion, precludes implementation of a national policy of great importance, and places a cloud over a longstanding DHS practice that affects hundreds of thousands of people.
“[D]eferred action—whether ad hoc or through DAPA—is not an effort by DHS to ‘hide elephants in mouseholes.’ ” App. 153a (dissent) (quoting Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)). To the contrary, it manifests the discretion that is “[a] principal feature of the removal system.” Ibid. (quoting Arizona, 132 S. Ct. at 2499). As this Court recognized in Arizona, “[f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” 132 S. Ct. at 2499. These officials exercise discretion knowing that “[i]mmigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” Id. at 2498.
Deferred action—which the Court described in AADC as a “regular practice” of forbearing, as a matter of discretion, from removing an alien, 525 U.S. at 483-484—is a decades-old species of this removal discretion. Like other forms of immigration discretion, it is grounded in expansive statutory authority,
presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole.”).

25
see 6 U.S.C. 202(5); 8 U.S.C. 1103(a)(1)-(3), and historical practice by both the Executive and Congress, see pp. 7-8, supra. It also reflects the reality that Congress has enacted laws under which a huge population of aliens is removable, but has appropriated the funds to remove only a small fraction of that population. See p. 3, supra. Congress has thus necessarily delegated to the Secretary “tremendous authority” to decide that large classes of aliens do not warrant immediate removal efforts. Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 463 (2009); see id. at 510–511. In particular instances, Congress has channeled the exercise of that discretion by directing the Secretary to prioritize the removal of serious criminals, see Appropriations Act, 129 Stat. 42-43, and by requiring DHS to apprehend and detain certain criminal and terrorist aliens pending their removal, 8 U.S.C. 1226(c). But Congress has not disturbed the broad discretion the Secretary otherwise exercises in this area—and in particular his ability to establish policies for deferring action for the parents and children here.
The court of appeals majority acknowledged that the Secretary has discretion to decide to forbear from removing every alien who could benefit under the Guidance. App. 44a. But the majority nonetheless concluded that the Guidance is unlawful, based on two inferences: (1) that the Secretary cannot defer action or confer work authorization, except to classes of aliens the INA itself identifies; and (2) that the INA implicitly precludes the Secretary from deferring action for parents under more forgiving standards than would apply if those parents were seeking to become permanent residents or to obtain cancellation

26
of removal. App. 85a-86a; see App. 71a-76a. The result is that the Secretary can forbear from removing each alien covered by the Guidance and thus enable them to remain present for a period of time—but is barred from enabling them to work lawfully to support themselves and their families while they are here. Congress did not constrain the Secretary’s broad discretion to such half measures.
First, the Secretary may decide whether a class of aliens warrants deferred action. Congress has long been aware of DHS’s “regular practice” of granting deferred action, AADC, 525 U.S. at 483-484, including for classes of aliens. But Congress has done nothing that would prevent the Secretary from deferring action for the class of parents and children here. App. 149a-150a (dissent). To the contrary, Congress has protected deferred-action decisions from judicial intervention, see 8 U.S.C. 1252(g); AADC, 525 U.S. at 485 & n.9, and repeatedly recognized that the Secretary has authority to defer action for classes of aliens by directing him to use that authority for additional classes of aliens, see p. 8, supra. Contrary to the majority’s stilted inference, statutes encouraging the Secretary to use this preexisting authority in more circumstances do not prevent him from using it elsewhere.
The Secretary has similarly longstanding authority to decide whether a class of aliens should be eligible to be lawfully employed. See pp. 22-23, supra. In 1952, Congress authorized the Secretary to issue regulations for the administration of the INA. 8 U.S.C. 1103(a). And since 1981, regulations governing work authorization—including for deferred-action recipients—have been in place as a “necessary incident”

27
of that authority. 44 Fed. Reg. at 43,480; see 46 Fed. Reg. at 25,080. Otherwise, aliens whose presence DHS has officially countenanced would be unable to support themselves through lawful work.
In IRCA, Congress imposed penalties on employers who knowingly employ an “unauthorized” alien. 8 U.S.C. 1324a(a). And in that same statute, Congress provided that this proscription does not apply to hiring aliens who are “authorized to be so employed by [the INA] or by the [Secretary].” 8 U.S.C. 1324a(h)(3) (emphasis added). The “or” confirms that work authorization is not conferred solely by the INA itself: “the [Secretary]” may also authorize categories of aliens to be lawfully hired. Ibid. This language thus signals that Congress “implicit[ly] approv[ed]” the “longstanding” work-authorization regulation. App. 152a (dissent). Since Congress enacted IRCA, DHS has repeatedly provided deferred action and other similar relief—as well as work authorization—to categories of aliens as a matter of discretion, including to substantial populations. See pp. 7-8, supra (collecting examples). And although Congress has amended Section 1324a six times, e.g., Pub. L. No. 104-208, 110 Stat. 3009-3010, it has not limited the Secretary’s authority in any way relevant here. Instead, it has further shielded the Secretary’s discretion from judicial interference. See 8 U.S.C. 1252(a)(2)(B) and (g).
Second, according deferred action and work authorization for the parents here is consistent with the INA. The majority noted that parents who could obtain deferred action are not currently entitled to become lawful permanent residents or seek cancellation of removal under the INA. App. 71a-74a. But by definition, deferred action is relevant only when aliens

28
lack lawful status or are otherwise removable, and thus when the Secretary could exercise discretion to pursue removal. His choice instead to defer action is consistent with the INA both because that discretion is a “principal feature” of immigration enforcement, Arizona, 132 S. Ct. at 2499, and because deferred action provides lesser relief. Permanent residents and aliens who receive cancellation of removal under 8 U.S.C. 1229b are no longer removable and have legal rights to remain in the United States. Aliens with deferred action, by contrast, are removable and may remain present only so long as DHS continues to forbear. See App. 413a (Deferred action “does not confer any form of legal status.”).
Granting deferred action and work authorization to the parents of children who are U.S. citizens or permanent residents is also consistent with the INA’s longstanding aims of protecting family unity and selfreliance. Indeed, these parents must work to support themselves and their children—who are U.S. citizens and permanent residents. See Arizona, 132 S. Ct. at 2499 (enforcement discretion may “embrace[] immediate human concerns,” including “whether the alien has children born in the United States”). And because the Guidance only covers parents and children who have “long ties to the community,” ibid., deferred action and work authorization will make these individuals more likely to be self-reliant and pay taxes, and less likely to harm American workers by working for below-market wages. See App. 96a (dissent); Wash. State et al. C.A. Amicus Br. 4-8 (anticipating that the Guidance will benefit States).

29
III. THE GUIDANCE IS EXEMPT FROM NOTICE-AND-
COMMENT REQUIREMENTS
The court of appeals’ notice-and-comment ruling warrants this Court’s review because it threatens farreaching consequences by constraining needed flexibility to adapt enforcement policies to changing circumstances and priorities. The APA exempts from notice-and-comment all “general statements of policy.” 5 U.S.C. 553(b)(A). Those are “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” Vigil, 508 U.S. at 197 (quoting Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 30 n.3 (1947)). Enforcement policies lie at the heart of this exception, as they inform the public how an agency will exercise its discretion to enforce (or forbear from enforcing) the law. E.g., App. 231a-232a (Higginson, J., dissenting). And the Guidance fits the bill: It embodies “the Secretary’s tentative decision, based on an assessment of the best uses of DHS’s limited resources and under his congressionally delegated authority to ‘[e]stablish[] national immigration enforcement policies and priorities,’ not to remove qualifying applicants for a certain period of time.” App. 108a (dissent) (citation omitted; brackets in original).
The majority nonetheless concluded that respondents were likely to establish that the Secretary could not issue the Guidance without notice-and-comment rulemaking, because the Guidance “would not genuinely leave the agency and its employees free to exercise discretion.” App. 64a; see App. 54a-64a. But the majority’s speculation about how individual DHS agents might act in the future overlooks that the dis-

30
cretion being exercised belongs in the first instance to the Secretary. See 6 U.S.C. 202(5); 8 U.S.C. 1103(a)(1)-(3). The Guidance reflects the Secretary’s discretionary judgment that the stated threshold criteria describe individuals who, in his view, are likely to warrant deferred action as a matter of discretion. App. 414a-415a.
The APA does not require senior officials to use notice-and-comment procedures whenever their discretionary policies preclude subordinates from exercising their discretion in a different way. For example, the memorandum in Vigil announced a decision about resource allocation from which agency employees could not deviate. See 508 U.S. at 188. The “passive enforcement” policy in Wayte v. United States, 470 U.S. 598, 601 (1985), categorically exempted all but 286 of a possible 674,000 violators—99.96% of the total—from prosecution for the continuing offense of failing to register for the draft. Id. at 604 & n.3. And the expanded Family Fairness policy in 1990 directed that officials “will” grant relief when an applicant satisfied stated criteria, without mentioning case-bycase deviation. Memorandum from Gene McNary, Comm’r, Family Fairness 1-2, reprinted as 67 No. 6 Interpreter Releases 153, App. I (Feb. 2, 1990).
In any event, the Guidance expressly requires agents to make discretionary case-by-case decisions. “[A]pplying the[] threshold criteria itself involves an exercise of discretion.” App. 124a (dissent). For example, USCIS must determine whether the applicant is an enforcement priority, App. 417a, which depends on whether the alien is “a threat to national security, border security, or public safety” or has “significantly abused” a visa program. App. 425a. Agents also must

31
exercise discretion whether to deny an application for deferred action even when those criteria are satisfied. App. 122a (dissent). Indeed, DAPA’s stated criteria require agents to determine that a request “present[s] no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” App. 417a. The majority viewed all this discretion as “merely pretext.” App. 56a. But as both dissenting judges concluded, it is plainly wrong to conclude that the discretion apparent on the Guidance’s face is “pretextual” when, among other things, this is a facial challenge to a policy that “has yet to be implemented.” App. 131a; see App. 234a-242a.
It is also immaterial that, under preexisting law, deferred action triggers “eligibility for [certain] federal benefits—for example, under title II and XVIII of the Social Security Act.” App. 44a. The APA does not impose procedural roadblocks before an agency can adopt policies that have this consequence. Indeed, it exempts from notice-and-comment requirements agency action on any “matter relating to * * * benefits.” 5 U.S.C. 553(a)(2). Many agencies have waived the APA’s benefits exception, but DHS has not. App. 68a & n.155. Accordingly, if the Guidance were reviewable because deferred action renders aliens eligible for benefits, see App. 44a-45a, it would be exempt from notice-and-comment because it would “relat[e] to” those same benefits.
Moreover, the consequences of deferred action result from pre-existing regulations that are independent of the Guidance and were adopted through noticeand-comment rulemaking. App. 111a-113a (dissent). DHS’s predecessor followed notice-and-comment procedures when adopting the regulations providing

32
that aliens with deferred action may obtain work authorization, 8 C.F.R. 274a.12(c)(14); 46 Fed. Reg. at 25,080, and that they may become eligible for Social Security, 8 C.F.R. 1.3(4)(vi); 61 Fed. Reg. at 47,041. 5 Under the APA, once is enough. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 549 (1978).
IV. THIS CASE WARRANTS IMMEDIATE REVIEW
The court of appeals’ judgment enjoins nationwide a federal policy of great importance to federal law enforcement, to many States, and to millions of families with longstanding and close connections with this country. A twice-divided court of appeals should not have the last word on whether that policy can be implemented.
A. As set forth above, the majority has permitted some States (over the objection of others) and a federal court to interfere with the Secretary’s exercise of discretion in establishing policies regarding enforcement of the federal immigration laws. That is unprecedented and momentous. Moreover, the majority’s decision is “very damaging to DHS’s immigration enforcement policy, which has operated, from time to time, on a class-wide basis.” App. 111a (dissent).
5 DHS’s policy that aliens with deferred action cease accruing time for the three- and ten-year bars, see p. 6, supra, was not adopted through notice-and-comment rulemaking. But that policy has no bearing on respondents’ asserted injury. It is relevant only “[f]or purposes of ” DHS’s computation of a barrier to admissibility if aliens depart the country. 8 U.S.C. 1182(a)(9)(B)(ii). Tolling also will not help “[m]ost adult beneficiaries” of the Guidance because they already face the maximum barrier if they depart. App. 44a n.99.

33
The nationwide injunction also has far-reaching and irreparable humanitarian impact. It bars approximately 4 million parents—who have lived in this country for years, would pass a background check, are not priorities for removal, and have “a son or daughter who is a U.S. citizen or lawful permanent resident,” App. 417a—from requesting deferred action under the Guidance and receiving authorization to work lawfully. See OLC Op. *30. In so doing, it has a profound effect not only on those parents but also on their children. One study estimated that “there are 6.3 million children who live in a household with a DAPA eligible mom or dad, and of that, 5.5 million are U.S. citizens.” Manuel Pastor et al., The Kids Aren’t Alright – But They Could Be: The Impact of [DAPA] on Children 1 (Mar. 2015). And although respondents have not challenged the Secretary’s 2012 DACA memorandum for providing deferred action, the majority’s expansive reasoning places a cloud over the deferred action accorded to more than 600,000 people under that policy, all of whom came here as children and many of whom have never known another home. App. 4a.
Most of the parents and children the Guidance would affect “are hard-working people who have become integrated members of American society,” lived here for years, have not committed serious crimes, and “are extremely unlikely to be deported given * * * limited enforcement resources.” App. 415a. Deferred action would give these parents and children the dignity of coming forward and “be[ing] counted.” Ibid. Without work authorization, they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting

34
American workers and giving unscrupulous employers an unfair advantage.
The injunction also undermines the Secretary’s efforts to “focus [DHS’s] resources on removing those undocumented aliens most disruptive to the public safety and national security of the United States.” Arpaio v. Obama, 797 F.3d 11, 24 (D.C. Cir. 2015), petition for cert. pending, No. 15-643 (filed Nov. 12, 2015). The Guidance would complement those priorities by having millions of low-priority aliens pay for and pass a background check. App. 417a. If lawenforcement officials later encountered such an individual, ICE could “quickly confirm the alien’s identity through a biometric match” and confirm that he or she does not warrant the effort of removal. D. Ct. Doc. 150-1 ¶ 15 (Feb. 23, 2015); see id. ¶¶ 14-17. But without the Guidance, ICE would have to do the underlying legwork every time—and it would be ICE footing the bill, thus depleting its already-limited resources. See id. ¶¶ 14-17; D. Ct. Doc. 150-2 ¶¶ 7-13 (Feb. 23, 2015).
B. This Court’s review is warranted now. Although the court of appeals ruled in the context of a preliminary injunction, this Court decided Arizona in the same posture. 132 S. Ct. at 2498. The court of appeals held that Texas’s “standing is plain”; that Texas “satisfies the zone-of-interests test”; that the Guidance “is not an unreviewable agency action . . . committed to agency discretion by law”; that Texas is likely to establish that it must go through notice-andcomment; and that it is “manifestly contrary to the INA.” App. 11a, 37a, 50a, 68a, 76a.
It is unlikely any other court of appeals will address the questions presented here. The injunction

35

has prevented DHS from putting the Guidance into operation anywhere in the country, including in States that have actively supported the Guidance in this litigation. The only other pre-enforcement challenge to the Guidance was brought by a county sheriff and was dismissed for his lack of standing, without reaching any question under the APA. See Arpaio, 797 F.3d at 15.
The great and immediate significance of the Secretary’s Guidance, the irreparable injury to the many families affected by delay in its implementation, and the broad importance of the questions presented, counsel strongly in favor of certiorari now.
CONCLUSION
This Court should grant the petition for a writ of certiorari.
Respectfully submitted.

STEVAN E. BUNNELL General Counsel U.S. Department of Homeland Security
NOVEMBER 2015

DONALD B. VERRILLI, JR. Solicitor General
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
EDWIN S. KNEEDLER Deputy Solicitor General
BETH S. BRINKMANN Deputy Assistant Attorney General
ZACHARY D. TRIPP Assistant to the Solicitor General
DOUGLAS N. LETTER SCOTT R. MCINTOSH JEFFREY CLAIR WILLIAM E. HAVEMANN
Attorneys